Art 6

Article 6
Attempted/frustrated/consummated overt acts, acts of execution

a. Subjective and Objective phase of Felony
[G.R. No. 12155. February 2, 1917. ]

THE UNITED STATES, Plaintiff-Appellee, v. PROTASIO EDUAVE, Defendant-
Appellant.
Manuel Roxas for Appellant.
Attorney-General Avancena for Appellee.
SYLLABUS
1. CRIMINAL LAW; FRUSTRATED CRIMES. — A felony is frustrated when the offender

performs all the acts of execution which should produce the felony as a consequence,
but which, nevertheless, do not produce it by reason of causes independent of the will
of the perpetrator.
2. ID.; ATTEMPTED CRIMES. — There is an attempt when the offender commences the
commission of the felony directly by overt acts, and does not perform all the acts of
execution which constitute the felony by reason of some cause or accident other than
his own voluntary desistance.
3. ID.; ID. — In case of an attempt the offender never passes the subjective phase of
the offense. He is interrupted and compelled to desist by the intervention of outside
causes before the subjective phase is passed.
4. ID.; FRUSTRATED CRIMES. — In case of frustrated crimes the subjective phase is

completely passed. Subjectively the crime is complete. Nothing interrupted the offender
while he was passing through the subject phase. The crime, however, is not
consummated by reason of the intervention of causes independent of the will of the
offender. He did all that was necessary to commit the crime. If the crime did not result
as a consequence it was due to something beyond his control.
5. ID.; ID.; SUBJECTIVE PHASE. — The subjective phase is that portion of the acts
constituting the crime included between the act which begins the commission of the
crime and the last act performed by the offender which, with the prior acts, should
result in the consummated crime. From that time forward the phase is objective. It may
also be said to be that period occupied by the acts of the offender over which he has
control -- that period between the point where he begins and the point where he
voluntarily desists. If between these two points the offender is stopped by any cause
outside of his own voluntary desistance, the subjective phase has not been passed and
it is attempt. If he is not so stopped but continues until he performs the last act, it is
frustrated.
DECISION
MORELAND, J. :
We believe that the accused is guilty of frustrated murder.
We are satisfied that there was intent to kill in this case. A deadly weapon was used.
The blow was directed toward a vital part of the body. The aggressor stated his purpose
to kill, thought he had killed, and threw the body into the bushes. When he gave
himself up he declared that he had killed the complainant.
There was alevosia to qualify the crime as murder if death had resulted. The accused
rushed upon the girl suddenly and struck her from behind, in part at least, with a sharp
bolo, producing a frightful gash in the lumbar region and slightly to the side eight and
one-half inches long and two inches deep, severing all of the muscles and tissues of
that part.
The motive of the crime was that the accused was incensed at the girl for the reason
that she had theretofore charged him criminally before the local officials with having
raped her and with being the cause of her pregnancy. He was her mother’s querido and
was living with her as such at the time the crime here charged was committed.
Article 6

That the accused is guilty of some crime is not denied. The only question is the precise
crime of which he should be convicted. It is contended, in the first place, that, if death
had resulted, the crime would not have been murder but homicide, and in the second
place, that it is attempted and not frustrated homicide.
As to the first contention, we are of the opinion that the crime committed would have
been murder if the girl had been killed. It is qualified by the circumstance of alevosia,
the accused making a sudden attack upon his victim from the rear, or partly from the
rear, and dealing her a terrible blow in the back and side with his bolo. Such an attack
necessitates the finding that it was made treacherously; and that being so the crime
would have been qualified as murder if death had resulted.
As to the second contention, we are of the opinion that the crime was frustrated and
not attempted murder. Article 3 of the Penal Code defines a frustrated felony as
follows: jgc:chanrobles.com.ph
"A felony is frustrated when the offender performs all the acts of execution which
should produce the felony as a consequence, but which, nevertheless, do not produce it
by reason of causes independent of the will of the perpetrator." cralaw virtua1aw library
An attempted felony is defined thus: jgc:chanrobles.com.ph
"There is an attempt when the offender commences the commission of the felony
directly by overt acts, and does not perform all the acts of execution which constitute
the felony by reason of some cause or accident other than his own voluntarily
desistance." cralaw virtua1aw library
The crime cannot be attempted murder. This is clear from the fact that the defendant
performed all of the acts which should have resulted in the consummated crime and
voluntarily desisted from further acts. A crime cannot be held to be attempted unless
the offender, after beginning the commission of the crime by overt acts, is prevented,
against his will, by some outside cause from performing all of the acts which should
produce the crime. In other words, to be an attempted crime the purpose of the
offender must be thwarted by a foreign force or agency which intervenes and compels
him to stop prior to the moment when he has performed all of the acts which should
produce the crime as a consequence, which acts it is his intention to perform. If he has
performed all of the acts which should result in the consummation of the crime and
voluntarily desists from proceeding further, it can not be an attempt. The essential
element which distinguishes attempted from frustrated felony is that, in the latter,
there is no intervention of a foreign or extraneous cause or agency between the
beginning of the commission of the crime and the moment when all of the acts have
been performed which should result in the consummated crime; while in the former
there is such intervention and the offender does not arrive at the point of performing all
of the acts which should produce the crime. He is stopped short of that point by same
cause apart from his from his voluntary desistance.
To put it in another way, in case of an attempt the offender never passes the subjective
phase of the offense. he is interrupted and compelled to desist by the intervention of
outside causes before the subjective phase is passed.
On the other hand, in case of frustrated crimes the subjective phase is completely
passed. Subjectively the crime is complete. Nothing interrupted the offender while he
was passing through the subjective phase. The crime, however, is not consummated by
reason of the intervention of causes independent of the will of the offender. he did all
that was necessary to commit the crime. If the crime did not result as a consequence it
was due to something beyond his control.
The subjective phase is that portion of the acts constituting the crime included between
the act which begins the commission of the crime and the last act performed by the
offender which, with the prior acts, should result in the consummated crime. From that
time forward the phase is objective. It may also be said to be that period occupied by
the acts of the offender over which he has control — that period between the point
where he begins and the point where he voluntarily desists. If between these two points
the offender is stopped by reason of any cause outside of his own voluntary desistance,
the subjective phase has not been passed and it is an attempt. If he is not so stopped
but continues until he performs the last act, it is frustrated.
Article 6

Then the case before us is frustrated is clear.
The penalty should have been thirteen years of cadena temporal there being neither
aggravating nor mitigating circumstance. As so modified, the judgment is affirmed with
costs. So ordered.
Article 6

b. RAPE
Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 88724 April 3, 1990
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CEILITO ORITA alias "Lito," defendant-appellant.
The Office of the Solicitor General for plaintiff-appellee.

C. Manalo for defendant-appellant.
MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No. 83-
031-B before the Regional Trial Court, Branch II, Borongan, Eastern Samar. The information filed in
the said case reads as follows (p. 47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath by the
offended party, accuses CEILITO ORITA alias LITO of the crime of Rape committed as
follows:
That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house at
Victoria St., Poblacion, Borongan, Eastern Samar, Philippines, and within the jurisdiction of
this Honorable Court, above named accused with lewd designs and by the use of a
Batangas knife he conveniently provided himself for the purpose and with threats and
intimidation, did, then and there wilfully, unlawfully and feloniously lay with and succeeded in
having sexual intercourse with Cristina S. Abayan against her will and without her consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the
witnesses for the People testified and the exhibits were formally offered and admitted, the
prosecution rested its case. Thereafter, the defense opted not to present any exculpatory evidence
and instead filed a Motion to Dismiss. On August 5, 1985, the trial court rendered its decision, the
dispositive portion of which reads (pp. 59-60, Rollo):
WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA @
LITO, of the crime of Frustrated Rape (Art. 335, RPC), beyond reasonable doubt, with the
aggravating circumstances of dwelling and nightime (sic) with no mitigating circumstance to
offset the same, and considering the provisions of the Indeterminate Sentence Law, imposes
on accused an imprisonment of TEN (10) YEARS and ONE (1) DAY, PRISION MAYOR, as
minimum to TWELVE (12) YEARS PRISION MAYOR, maximum; to indemnify CRISTINA S.
ABAYAN, the amount of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment
in case of insolvency, and to pay costs.
SO ORDERED.
Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29,
1988, the Court of Appeals rendered its decision, the dispositive portion of which reads (p.
102, Rollo):
WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant found guilty
of the crime of rape, and consequently, sentenced to suffer imprisonment of reclusion
perpetua and to indemnify the victim in the amount of P30,000.00.
SO ORDERED.
Article 6

On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29, 1988
decision and forwarded the case to this Court, considering the provision of Section 9, paragraph 3 of
Batas Pambansa Blg. 129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the
Judiciary Act of 1948.
The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's
College at Borongan, Eastern Samar. Appellant was a Philippine Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived at her boarding house. Her
classmates had just brought her home from a party (p. 44, tsn, May 23, 1984). Shortly after
her classmates had left, she knocked at the door of her boarding house (p. 5, ibid). All of a
sudden, somebody held her and poked a knife to her neck. She then recognized appellant
who was a frequent visitor of another boarder (pp. 8-9, ibid).
She pleaded with him to release her, but he ordered her to go upstairs with him. Since the
door which led to the first floor was locked from the inside, appellant forced complainant to
use the back door leading to the second floor (p. 77, ibid). With his left arm wrapped around
her neck and his right hand poking a "balisong" to her neck, appellant dragged complainant
up the stairs (p. 14, ibid). When they reached the second floor, he commanded her to look
for a room. With the Batangas knife still poked to her neck, they entered complainant's room.
Upon entering the room, appellant pushed complainant who hit her head on the wall. With
one hand holding the knife, appellant undressed himself. He then ordered complainant to
take off her clothes. Scared, she took off her T-shirt. Then he pulled off her bra, pants and
panty (p. 20, ibid).
He ordered her to lie down on the floor and then mounted her. He made her hold his penis
and insert it in her vagina. She followed his order as he continued to poke the knife to her. At
said position, however, appellant could not fully penetrate her. Only a portion of his penis
entered her as she kept on moving (p. 23, ibid).
Appellant then lay down on his back and commanded her to mount him. In this position, only
a small part again of his penis was inserted into her vagina. At this stage, appellant had both
his hands flat on the floor. Complainant thought of escaping (p. 20, ibid).
She dashed out to the next room and locked herself in. Appellant pursued her and climbed
the partition. When she saw him inside the room, she ran to another room. Appellant again
chased her. She fled to another room and jumped out through a window (p. 27, ibid).
Still naked, she darted to the municipal building, which was about eighteen meters in front of
the boarding house, and knocked on the door. When there was no answer, she ran around
the building and knocked on the back door. When the policemen who were inside the
building opened the door, they found complainant naked sitting on the stairs crying. Pat.
Donceras, the first policeman to see her, took off his jacket and wrapped it around her. When
they discovered what happened, Pat. Donceras and two other policemen rushed to the
boarding house. They heard a sound at the second floor and saw somebody running away.
Due to darkness, they failed to apprehend appellant.
Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital
where she was physically examined.
Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a Medical
Certificate (Exhibit "A") which states:
Physical Examination — Patient is fairly built, came in with loose clothing with no
under-clothes; appears in state of shock, per unambulatory.
PE Findings — Pertinent Findings only.
Neck- — Circumscribed hematoma at Ant. neck.
Breast — Well developed, conical in shape with prominent nipples; linear abrasions
below (L) breast.
Back — Multiple pinpoint marks.

Article 6

Extremities — Abrasions at (R) and (L) knees.
Vulva — No visible abrasions or marks at the perineal area or over the

vulva, errythematous (sic) areas noted surrounding vaginal orifice, tender, hymen
intact; no laceration fresh and old noted; examining finger can barely enter and with
difficulty; vaginal canal tight; no discharges noted.
As aforementioned, the trial court convicted the accused of frustrated rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the
witnesses; and
2) The trial court erred in declaring that the crime of frustrated rape was committed by the accused.
The accused assails the testimonies of the victim and Pat. Donceras because they "show
remarkable and vital inconsistencies and its incredibility amounting to fabrication and therefore
casted doubt to its candor, truth and validity." (p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies which
are not sufficient to blur or cast doubt on the witnesses' straightforward attestations. Far from being
badges of fabrication, the inconsistencies in their testimonies may in fact be justifiably considered as
manifestations of truthfulness on material points. These little deviations also confirm that the
witnesses had not been rehearsed. The most candid witnesses may make mistakes sometimes but
such honest lapses do not necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L-
37400, April 15, 1988, 160 SCRA 98). Rather than discredit the testimonies of the prosecution
witnesses, discrepancies on minor details must be viewed as adding credence and veracity to such
spontaneous testimonies (Aportadera et al. v. Court of Appeals, et al., G.R. No. L-41358, March 16,
1988, 158 SCRA 695). As a matter of fact, complete uniformity in details would be a strong
indication of untruthfulness and lack of spontaneity (People v. Bazar, G.R. No. L-41829, June 27,
1988, 162 SCRA 609). However, one of the alleged inconsistencies deserves a little discussion
which is, the testimony of the victim that the accused asked her to hold and guide his penis in order
to have carnal knowledge of her. According to the accused, this is strange because "this is the only
case where an aggressor's advances is being helped-out by the victim in order that there will be a
consumation of the act." (p. 34, Rollo). The allegation would have been meritorious had the
testimony of the victim ended there. The victim testified further that the accused was holding a
Batangas knife during the aggression. This is a material part of the victim's testimony which the
accused conveniently deleted.
We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial court
on the credibility of witnesses should be accorded the highest respect because it has the advantage
of observing the demeanor of witnesses and can discern if a witness is telling the truth (People v.
Samson, G.R. No. 55520, August 25, 1989). We quote with favor the trial court's finding regarding
the testimony of the victim (p 56, Rollo):
As correctly pointed out in the memorandum for the People, there is not much to be desired
as to the sincerity of the offended party in her testimony before the court. Her answer to
every question profounded (sic), under all circumstances, are plain and straightforward. To
the Court she was a picture of supplication hungry and thirsty for the immediate vindication
of the affront to her honor. It is inculcated into the mind of the Court that the accused had
wronged her; had traversed illegally her honor.
When a woman testifies that she has been raped, she says in effect all that is necessary to show
that rape was committed provided her testimony is clear and free from contradiction and her sincerity
and candor, free from suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA
487; People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v. Soterol
G.R. No. 53498, December 16, 1985, 140 SCRA 400). The victim in this case did not only state that
she was raped but she testified convincingly on how the rape was committed. The victim's testimony
from the time she knocked on the door of the municipal building up to the time she was brought to
the hospital was corroborated by Pat. Donceras. Interpreting the findings as indicated in the medical
certificate, Dr. Reinerio Zamora (who was presented in view of the unavailability of Dr. Abude)
declared that the abrasions in the left and right knees, linear abrasions below the left breast, multiple
pinpoint marks, circumscribed hematoma at the anterior neck, erythematous area surrounding the
vaginal orifice and tender vulva, are conclusive proof of struggle against force and violence exerted
on the victim (pp. 52-53, Rollo). The trial court even inspected the boarding house and was fully
satisfied that the narration of the scene of the incident and the conditions therein is true (p.
54, Rollo):
Article 6

. . . The staircase leading to the first floor is in such a condition safe enough to carry the
weight of both accused and offended party without the slightest difficulty, even in the manner
as narrated. The partitions of every room were of strong materials, securedly nailed, and
would not give way even by hastily scaling the same.
A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et al.,
G.R. No. L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo):
. . . And the jump executed by the offended party from that balcony (opening) to the ground
which was correctly estimated to be less than eight (8) meters, will perhaps occasion no
injury to a frightened individual being pursued. Common experience will tell us that in
occasion of conflagration especially occuring (sic) in high buildings, many have been saved
by jumping from some considerable heights without being injured. How much more for a
frightened barrio girl, like the offended party to whom honor appears to be more valuable
than her life or limbs? Besides, the exposure of her private parts when she sought
assistance from authorities, as corroborated, is enough indication that something not
ordinary happened to her unless she is mentally deranged. Sadly, nothing was adduced to
show that she was out of her mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We
ruled that:
What particularly imprints the badge of truth on her story is her having been rendered
entirely naked by appellant and that even in her nudity, she had to run away from the latter
and managed to gain sanctuary in a house owned by spouses hardly known to her. All these
acts she would not have done nor would these facts have occurred unless she was sexually
assaulted in the manner she narrated.
The accused questions also the failure of the prosecution to present other witnesses to corroborate
the allegations in the complaint and the non-presentation of the medico-legal officer who actually
examined the victim. Suffice it to say that it is up to the prosecution to determine who should be
presented as witnesses on the basis of its own assessment of their necessity (Tugbang v. Court of
Appeals, et al., G.R. No. 56679, June 29, 1989; People v. Somera, G.R. No. 65589, May 31, 1989).
As for the non-presentation of the medico-legal officer who actually examined the victim, the trial
court stated that it was by agreement of the parties that another physician testified inasmuch as the
medico-legal officer was no longer available. The accused did not bother to contradict this
statement.
Summing up, the arguments raised by the accused as regards the first assignment of error fall flat
on its face. Some were not even substantiated and do not, therefore, merit consideration. We are
convinced that the accused is guilty of rape. However, We believe the subject matter that really calls
for discussion, is whether or not the accused's conviction for frustrated rape is proper. The trial court
was of the belief that there is no conclusive evidence of penetration of the genital organ of the victim
and thus convicted the accused of frustrated rape only.
The accused contends that there is no crime of frustrated rape. The Solicitor General shares the
same view.
Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape:
Art. 335. When and how rape is committed. — Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious and
3. When the woman is under twelve years of age, even though neither of the circumstances
mentioned in the two next preceding paragraphs shall be present.
x x x x x x x x x
Carnal knowledge is defined as the act of a man in having sexual bodily connections with a woman
(Black's Law Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:

Article 6

Art. 6. Consummated, frustrated, and attempted felonies. — Consummated felonies as well
as those which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated when the offender performs all the acts of
execution which would produce the felony as a consequence but which, nevertheless, do not
produce it by reason of causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a felony directly by
overt acts, and does not perform all the acts of execution which should produce the felony by
reason of some cause or accident other than his own spontaneous desistance.
Correlating these two provisions, there is no debate that the attempted and consummated stages
apply to the crime of rape. Our concern now is whether or not the frustrated stage applies to the
1âwphi1
crime of rape.
The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution
which would produce the felony and (2) that the felony is not produced due to causes independent of
the perpetrator's will. In the leading case of United States v. Eduave, 36 Phil. 209, 212, Justice
Moreland set a distinction between attempted and frustrated felonies which is readily understood
even by law students:
. . . A crime cannot be held to be attempted unless the offender, after beginning the
commission of the crime by overt acts, is prevented, against his will, by some outside cause
from performing all of the acts which should produce the crime. In other words, to be an
attempted crime the purpose of the offender must be thwarted by a foreign force or agency
which intervenes and compels him to stop prior to the moment when he has performed all of
the acts which should produce the crime as a consequence, which acts it is his intention to
perform. If he has performed all of the acts which should result in the consummation of the
crime and voluntarily desists from proceeding further, it can not be an attempt. The essential
element which distinguishes attempted from frustrated felony is that, in the latter, there is no
intervention of a foreign or extraneous cause or agency between the beginning of the
commission of the crime and the moment when all of the acts have been performed which
should result in the consummated crime; while in the former there is such intervention and
the offender does not arrive at the point of performing all of the acts which should produce
the crime. He is stopped short of that point by some cause apart from his voluntary
desistance.
Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he
actually attains his purpose and, from that moment also all the essential elements of the offense
have been accomplished. Nothing more is left to be done by the offender, because he has
performed the last act necessary to produce the crime. Thus, the felony is consummated. In a long
line of cases (People v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v. Royeras,
G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996, August 21,
1974, 58 SCRA 505), We have set the uniform rule that for the consummation of rape, perfect
penetration is not essential. Any penetration of the female organ by the male organ is sufficient.
Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina
is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the
female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United States
v. Garcia: 9 Phil. 434) because not all acts of execution was performed. The offender merely
commenced the commission of a felony directly by overt acts. Taking into account the nature,
elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly
conceivable how the frustrated stage in rape can ever be committed.
Of course, We are aware of our earlier pronouncement in the case of People v. Eriña 50 Phil. 998
[1927] where We found the offender guilty of frustrated rape there being no conclusive evidence of
penetration of the genital organ of the offended party. However, it appears that this is a "stray"
decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are
aware of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated
September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its
penultimate paragraph, for the penalty of death when the rape is attempted or frustrated and a
homicide is committed by reason or on the occasion thereof. We are of the opinion that this
particular provision on frustrated rape is a dead provision. The Eriña case, supra, might have
prompted the law-making body to include the crime of frustrated rape in the amendments introduced
by said laws.
In concluding that there is no conclusive evidence of penetration of the genital organ of the victim,
the trial court relied on the testimony of Dr. Zamora when he "categorically declared that the findings
in the vulva does not give a concrete disclosure of penetration. As a matter of fact, he tossed back to
Article 6

the offended party the answer as to whether or not there actually was penetration." (p. 53, Rollo)
Furthermore, the trial court stated (p. 57, Rollo):
. . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as interpreted
by Dr. Reinerio Zamora and the equivocal declaration of the latter of uncertainty whether
there was penetration or not. It is true, and the Court is not oblivious, that conviction for rape
could proceed from the uncorroborated testimony of the offended party and that a medical
certificate is not necessary (People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the
citations the people relied upon cannot be applicable to the instant case. The testimony of
the offended party is at variance with the medical certificate. As such, a very disturbing doubt
has surfaced in the mind of the court. It should be stressed that in cases of rape where there
is a positive testimony and a medical certificate, both should in all respect, compliment each
other, for otherwise to rely on the testimony alone in utter disregard of the manifest variance
in the medical certificate, would be productive of mischievous results.
The alleged variance between the testimony of the victim and the medical certificate does not exist.
On the contrary, it is stated in the medical certificate that the vulva was erythematous (which means
marked by abnormal redness of the skin due to capillary congestion, as in inflammation) and tender.
It bears emphasis that Dr. Zamora did not rule out penetration of the genital organ of the victim. He
merely testified that there was uncertainty whether or not there was penetration. Anent this
testimony, the victim positively testified that there was penetration, even if only partially (pp. 302,
304, t.s.n., May 23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
x x x x x x x x x
Q What do you mean when you said comply, or what act do you referred (sic) to, when you
said comply?
A I inserted his penis into my vagina.
Q And was it inserted?
A Yes only a little.
The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of
the victim's testimony if credible (People v. Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA
65; People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People v. Taduyo,
G.R. Nos. L-37928-29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's testimony is
merely corroborative and is not an indispensable element in the prosecution of this case (People v.
Alfonso, supra).
Although the second assignment of error is meritorious, it will not tilt the scale in favor of the accused
because after a thorough review of the records, We find the evidence sufficient to prove his guilt
beyond reasonable doubt of the crime of consummated rape.
Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is
committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. The
trial court appreciated the aggravating circumstances of dwelling and nighttime. Thus, the proper
imposable penalty is death. In view, however, of Article 111, Section 19(1) of the 1987 Constitution
and Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that the cited
Constitutional provision did not declare the abolition of the death penalty but merely prohibits the
imposition of the death penalty, the Court has since February 2, 1987 not imposed the death penalty
whenever it was called for under the Revised Penal Code but instead reduced the same to reclusion
perpetua (People v. Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion perpetua,
being a single indivisible penalty under Article 335, paragraph 3, is imposed regardless of any
mitigating or aggravating circumstances (in relation to Article 63, paragraph 1, Revised Penal
Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA 615; People v. Manzano,
G.R. No. L38449, November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744, May 31,
1985, 136 SCRA 702).
ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused Ceilito
Orita is hereby found guilty beyond reasonable doubt of the crime of rape and sentenced
to reclusion perpetua as well as to indemnify the victim in the amount of P30,000.00.
SO ORDERED.
Article 6
G.R. No. 129433 March 30, 2000
PEOPLE OF THE PHILIPPINES, plaintiff,

vs.
PRIMO CAMPUHAN Y BELLO accused.
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita finally did away with frustrated rape and allowed only
1 2
attempted rape and consummated rape to remain in our statute books. The instant case lurks at the
threshold of another emasculation of the stages of execution of rape by considering almost every
attempt at sexual violation of a woman as consummated rape, that is, if the contrary view were to be
adopted. The danger there is that that concept may send the wrong signal to every roaming lothario,
whenever the opportunity bares itself, to better intrude with climactic gusto, sans any restraint, since
after all any attempted fornication would be considered consummated rape and punished as such. A
mere strafing of the citadel of passion would then be considered a deadly fait accompli, which is
absurd.
In Orita we held that rape was consummated from the moment the offender had carnal knowledge of
the victim since by it he attained his objective. All the elements of the offense were already present
and nothing more was left for the offender to do, having performed all the acts necessary to produce
the crime and accomplish it. We ruled then that perfect penetration was not essential; any
penetration of the female organ by the male organ, however slight, was sufficient. The Court further
held that entry of the labia or lips of the female organ, even without rupture of the hymen or
laceration of the vagina, was sufficient to warrant conviction for consummated rape. We
distinguished consummated rape from attempted rape where there was no penetration of the female
organ because not all acts of execution were performed as the offender merely commenced the
commission of a felony directly by overt acts. The inference that may be derived therefrom is that
3
complete or full penetration of the vagina is not required for rape to be consummated. Any
penetration, in whatever degree, is enough to raise the crime to its consummated stage.
But the Court in Orita clarified the concept of penetration in rape by requiring entry into the labia or
lips of the female organ, even if there be no rupture of the hymen or laceration of the vagina, to
warrant a conviction for consummated rape. While the entry of the penis into the lips of the female
organ was considered synonymous with mere touching of the external genitalia, e.g., labia majora,
labia minora, etc., the crucial doctrinal bottom line is that touching must be inextricably viewed in
4
light of, in relation to, or as an essential part of, the process of penile penetration, and not just mere
touching in the ordinary sense. In other words, the touching must be tacked to the penetration itself.
The importance of the requirement of penetration, however slight, cannot be gainsaid because
where entry into the labia or the lips of the female genitalia has not been established, the crime
committed amounts merely to attempted rape.
Verily, this should be the indicium of the Court in determining whether rape has been committed
either in its attempted or in its consummated stage; otherwise, no substantial distinction would exist
between the two, despite the fact that penalty-wise, this distinction, threadbare as it may seem,
irrevocably spells the difference between life and death for the accused — a reclusive life that is not
even perpetua but only temporal on one hand, and the ultimate extermination of life on the other.
And, arguing on another level, if the case at bar cannot be deemed attempted but consummated
rape, what then would constitute attempted rape? Must our field of choice be thus limited only to
consummated rape and acts of lasciviousness since attempted rape would no longer be possible in
light of the view of those who disagree with this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced by the
court a quo to the extreme penalty of death, hence this case before us on automatic review under
5
Art. 335 of the Revised Penal Code as amended by RA 7659. 6
As may be culled from the evidence on record, on 25 April 1996, at around 4 o'clock in the
afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year old Crysthel Pamintuan, went down
from the second floor of their house to prepare Milo chocolate drinks for her two (2) children. At the
ground floor she met Primo Campuhan who was then busy filling small plastic bags with water to be
frozen into ice in the freezer located at the second floor. Primo was a helper of Conrado Plata Jr.,
brother of Corazon. As Corazon was busy preparing the drinks, she heard one of her daughters cry,
"Ayo'ko, ayo'ko!" prompting Corazon to rush upstairs. Thereupon, she saw Primo Campuhan inside
7
Article 6

her children's room kneeling before Crysthel whose pajamas or "jogging pants" and panty were
already removed, while his short pants were down to his knees.
According to Corazon, Primo was forcing his penis into Crysthel's vagina. Horrified, she cursed the
accused, "P - t - ng ina mo, anak ko iyan!" and boxed him several times. He evaded her blows and
pulled up his pants. He pushed Corazon aside when she tried to block his path. Corazon then ran
out and shouted for help thus prompting her brother, a cousin and an uncle who were living within
their compound, to chase the accused. Seconds later, Primo was apprehended by those who
8
answered Corazon's call for help. They held the accused at the back of their compound until they
were advised by their neighbors to call the barangay officials instead of detaining him for his
misdeed. Physical examination of the victim yielded negative results. No evident sign of extra-genital
physical injury was noted by the medico-legal officer on Crysthel's body as her hymen was intact and
its orifice was only 0.5 cm. in diameter.
Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and
assailed the charge as a mere scheme of Crysthel's mother who allegedly harbored ill will against
him for his refusal to run an errand for her. He asserted that in truth Crysthel was in a playing mood
9
and wanted to ride on his back when she suddenly pulled him down causing both of them to fall
down on the floor. It was in this fallen position that Corazon chanced upon them and became
hysterical. Corazon slapped him and accused him of raping her child. He got mad but restrained
himself from hitting back when he realized she was a woman. Corazon called for help from her
brothers to stop him as he ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente
punched him and threatened to kill him. Upon hearing the threat, Primo immediately ran towards the
house of Conrado Plata but Vicente followed him there. Primo pleaded for a chance to explain as he
reasoned out that the accusation was not true. But Vicente kicked him instead. When Primo saw
Vicente holding a piece of lead pipe, Primo raised his hands and turned his back to avoid the blow.
At this moment, the relatives and neighbors of Vicente prevailed upon him to take Primo to the
barangay hall instead, and not to maul or possibly kill him.
Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him guilty
of statutory rape, sentenced him to the extreme penalty of death, and ordered him to pay his victim
P50,000.00 for moral damages, P25,000.00 for exemplary damages, and the costs.
The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He
argues that her narration should not be given any weight or credence since it was punctured with
implausible statements and improbabilities so inconsistent with human nature and experience. He
claims that it was truly inconceivable for him to commit the rape considering that Crysthel's younger
sister was also in the room playing while Corazon was just downstairs preparing Milo drinks for her
daughters. Their presence alone as possible eyewitnesses and the fact that the episode happened
within the family compound where a call for assistance could easily be heard and responded to,
would have been enough to deter him from committing the crime. Besides, the door of the room was
wide open for anybody to see what could be taking place inside. Primo insists that it was almost
inconceivable that Corazon could give such a vivid description of the alleged sexual contact when
from where she stood she could not have possibly seen the alleged touching of the sexual organs of
the accused and his victim. He asserts that the absence of any external signs of physical injuries or
of penetration of Crysthel's private parts more than bolsters his innocence.
In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she
saw Primo with his short pants down to his knees kneeling before Crysthel whose pajamas and
panty were supposedly "already removed" and that Primo was "forcing his penis into Crysthel's
vagina." The gravamen of the offense of statutory rape is carnal knowledge of a woman below
twelve (12), as provided in Art. 335, par. (3), of the Revised Penal Code. Crysthel was only four (4)
years old when sexually molested, thus raising the penalty, from reclusion perpetua to death, to the
single indivisible penalty of death under RA 7659, Sec. 11, the offended party being below seven (7)
years old. We have said often enough that in concluding that carnal knowledge took place, full
penetration of the vaginal orifice is not an essential ingredient, nor is the rupture of the hymen
necessary; the mere touching of the external genitalia by the penis capable of consummating the
sexual act is sufficient to constitute carnal knowledge. But the act of touching should be understood
10
here as inherently part of the entry of the penis into the labias of the female organ and not mere
touching alone of the mons pubis or the pudendum.
In People v. De la Peña we clarified that the decisions finding a case for rape even if the attacker's
11
penis merely touched the external portions of the female genitalia were made in the context of the
presence or existence of an erect penis capable of full penetration. Where the accused failed to
achieve an erection, had a limp or flaccid penis, or an oversized penis which could not fit into the
victim's vagina, the Court nonetheless held that rape was consummated on the basis of the victim's
testimony that the accused repeatedly tried, but in vain, to insert his penis into her vagina and in all
likelihood reached the labia of her pudendum as the victim felt his organ on the lips of her vulva, or
12
Article 6

that the penis of the accused touched the middle part of her vagina. Thus, touching when applied to
13
rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight
brush or a scrape of the penis on the external layer of the victim's vagina, or the mons pubis, as in
this case. There must be sufficient and convincing proof that the penis indeed touched the labias or
slid into the female organ, and not merely stroked the external surface thereof, for an accused to be
convicted of consummated rape. As the labias, which are required to be "touched" by the penis, are
14
by their natural situs or location beneath the mons pubis or the vaginal surface, to touch them with
the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that
touching the labia majora or the labia minora of the pudendum constitutes consummated rape.
The pudendum or vulva is the collective term for the female genital organs that are visible in the
perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal
orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is
instantly visible within the surface. The next layer is the labia majora or the outer lips of the female
organ composed of the outer convex surface and the inner surface. The skin of the outer convex
surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which
does not have any hair but has many sebaceous glands. Directly beneath the labia majora is the
labia minora. Jurisprudence dictates that the labia majora must be entered for rape to be
15
consummated, and not merely for the penis to stroke the surface of the female organ. Thus, a
16
grazing of the surface of the female organ or touching the mons pubis of the pudendum is not
sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the
female organ, i.e., touching of either labia of the pudendum by the penis, there can be no
consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness.
Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the
female organ," but has also progressed into being described as "the introduction of the male organ
17
into the labia of the pudendum," or "the bombardment of the drawbridge." But, to our mild, the
18 19
case at bar merely constitutes a "shelling of the castle of orgasmic potency," or as earlier stated, a
"strafing of the citadel of passion.
A review of the records clearly discloses that the prosecution utterly failed to discharge its onus of
proving that Primo's penis was able to penetrate Crysthel's vagina however slight. Even if we
grant arguendo that Corazon witnessed Primo in the act of sexually molesting her daughter, we
seriously doubt the veracity of her claim that she saw the inter-genital contact between Primo and
Crysthel. When asked what she saw upon entering her children's room Corazon plunged into saying
that she saw Primo poking his penis on the vagina of Crysthel without explaining her relative position
to them as to enable her to see clearly and sufficiently, in automotive lingo, the contact point. It
should be recalled that when Corazon chanced upon Primo and Crysthel, the former was allegedly
in a kneeling position, which Corazon described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that the chest of the accused is pinning
down the victim, while his right hand is holding his penis and his left hand is spreading the
legs of the victim).
It can reasonably be drawn from the foregoing narration that Primo's kneeling position rendered an
unbridled observation impossible. Not even a vantage point from the side of the accused and the
victim would have provided Corazon an unobstructed view of Primo's penis supposedly reaching
Crysthel's external genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc., since the legs and
arms of Primo would have hidden his movements from Corazon's sight, not to discount the fact that
Primo's right hand was allegedly holding his penis thereby blocking it from Corazon's view. It is the
burden of the prosecution to establish how Corazon could have seen the sexual contact and to
shove her account into the permissive sphere of credibility. It is not enough that she claims that she
saw what was done to her daughter. It is required that her claim be properly demonstrated to inspire
belief. The prosecution failed in this respect, thus we cannot conclude without any taint of serious
doubt that inter-genital contact was at all achieved. To hold otherwise would be to resolve the doubt
in favor of the prosecution but to run roughshod over the constitutional right of the accused to be
presumed innocent.
Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite her
timely appearance, thus giving her the opportunity to fully witness his beastly act.
We are not persuaded. It is inconsistent with man's instinct of self-preservation to remain where he is
and persist in satisfying his lust even when he knows fully well that his dastardly acts have already
been discovered or witnessed by no less than the mother of his victim. For, the normal behavior or
reaction of Primo upon learning of Corazon's presence would have been to pull his pants up to avoid
being caught literally with his pants down. The interval, although relatively short, provided more than
enough opportunity for Primo not only to desist from but even to conceal his evil design.
Article 6

What appears to be the basis of the conviction of the accused was Crysthel's answer to the question
of the court —
Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis penetrated her organ, she readily said, "No." Thus —
Q: But did his penis penetrate your organ?
A: No, sir. 20
This testimony alone should dissipate the mist of confusion that enshrouds the question of whether
rape in this case was consummated. It has foreclosed the possibility of Primo's penis penetrating her
vagina, however slight. Crysthel made a categorical statement denying penetration, obviously
27
induced by a question propounded to her who could not have been aware of the finer distinctions
between touching and penetration. Consequently, it is improper and unfair to attach to this reply of a
four (4)-year old child, whose vocabulary is yet as underdeveloped as her sex and whose language
is bereft of worldly sophistication, an adult interpretation that because the penis of the accused
touched her organ there was sexual entry. Nor can it be deduced that in trying to penetrate the
victim's organ the penis of the accused touched the middle portion of her vagina and entered the
labia of her pudendum as the prosecution failed to establish sufficiently that Primo made efforts to
penetrate Crysthel. Corazon did not say, nay, not even hint that Primo's penis was erect or that he
22
responded with an erection. On the contrary, Corazon even narrated that Primo had to hold his
23
penis with his right hand, thus showing that he had yet to attain an erection to be able to penetrate
his victim.
Antithetically, the possibility of Primo's penis having breached Crysthel's vagina is belied by the
child's own assertion that she resisted Primo's advances by putting her legs close
together; consequently, she did not feel any intense pain but just felt "not happy" about what Primo
24
did to her. Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases where
25
penetration was not fully established, the Court had anchored its conclusion that rape nevertheless
was consummated on the victim's testimony that she felt pain, or the medico-legal finding of
discoloration in the inner lips of the vagina, or the labia minora was already gaping with redness, or
the hymenal tags were no longer visible. None was shown in this case. Although a child's testimony
26
must be received with due consideration on account of her tender age, the Court endeavors at the
same time to harness only what in her story appears to be true, acutely aware of the equally
guaranteed rights of the accused. Thus, we have to conclude that even on the basis of the testimony
of Crysthel alone the accused cannot be held liable for consummated rape; worse, be sentenced to
death. 1âwphi1
Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no
external signs of physical injuries on complaining witness' body to conclude from a medical
perspective that penetration had taken place. As Dr. Aurea P. Villena explained, although the
absence of complete penetration of the hymen does not negate the possibility of contact, she
clarified that there was no medical basis to hold that there was sexual contact between the accused
and the victim. 27
In cases of rape where there is a positive testimony and a medical certificate, both should in all
respects complement each other; otherwise, to rely on the testimonial evidence alone, in utter
disregard of the manifest variance in the medical certificate, would be productive of unwarranted or
even mischievous results. It is necessary to carefully ascertain whether the penis of the accused in
reality entered the labial threshold of the female organ to accurately conclude that rape was
consummated. Failing in this, the thin line that separates attempted rape from consummated rape
will significantly disappear.
Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender
commences the commission of rape directly by overt acts, and does not perform all the acts of
execution which should produce the crime of rape by reason of some cause or accident other than
his own spontaneous desistance. All the elements of attempted rape — and only of attempted rape
— are present in the instant case, hence, the accused should be punished only for it.
The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the
offense charged, which is statutory rape of a minor below seven (7) years. Two (2) degrees lower
is reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years.
Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating
circumstance, the maximum of the penalty to be imposed upon the accused shall be taken from the
medium period of reclusion temporal, the range of which is fourteen (14) years, eight (8) months and
Article 6

(1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the
penalty next lower in degree, which is prision mayor, the range of which is from six (6) years and
one (1) day to twelve (12) years, in any of its periods.
WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN Y
BELLO guilty of statutory rape and sentencing him to death and to pay damages is MODIFIED. He is
instead found guilty of ATTEMPTED RAPE and sentenced to an indeterminate prison term of eight
(8) years four (4) months and ten (10) days of prision mayor medium as minimum, to fourteen (14)
years ten (10) months and twenty (20) days of reclusion temporal medium as maximum. Costs de
oficio.
SO ORDERED. 1âwphi1.nêt
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena,
Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.
Pnganiban, J., in the result.
Article 6
G.R. No. 138033 February 22, 2006
RENATO BALEROS, JR., Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
GARCIA, J.:
In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks the reversal
of the January 13, 1999 decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 17271 as
reiterated in its March 31, 1999 resolution 2 denying petitioner’s motion for reconsideration.
The assailed decision affirmed an earlier decision of the Regional Trial Court (RTC) of Manila,
Branch 2, in Criminal Case No. 91-101642 finding petitioner Renato Baleros, Jr. y David (CHITO)
guilty of attempted rape.3
The accusatory portion of the information4 dated December 17, 1991 charging petitioner with
attempted rape reads as follow:
That about 1:50 in the morning or sometime thereafter of 13 December 1991 in Manila and within
the jurisdiction of this Honorable Court, the above-named accused, by forcefully covering the face of
Martina Lourdes T. Albano with a piece of cloth soaked in chemical with dizzying effects, did then
and there willfully, unlawfully and feloniously commenced the commission of rape by lying on top of
her with the intention to have carnal knowledge with her but was unable to perform all the acts of
execution by reason of some cause or accident other than his own spontaneous desistance, said
acts being committed against her will and consent to her damage and prejudice.
Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded "Not

Guilty."5 Thereafter, trial on the merits ensued.
To prove its case, the prosecution presented thirteen (13) witnesses. Among them were private
complainant Martina Lourdes Albano (Malou), and her classmates, Joseph Bernard Africa, Rommel
Montes, Renato Alagadan and Christian Alcala. Their testimonies, as narrated in some detail in the
decision of the CA, established the following facts:
Like most of the tenants of the Celestial Marie Building (hereafter "Building", …) along A.H. Lacson
Street, Sampaloc, Manila, MALOU, occupying Room 307 with her maid, Marvilou Bebania
(Marvilou), was a medical student of the University of Sto. Tomas [UST] in 1991.
In the evening of December 12, inside Unit 307, MALOU retired at around 10:30. Outside, right in
front of her bedroom door, her maid, Marvilou, slept on a folding bed.
Early morning of the following day, MALOU was awakened by the smell of chemical on a piece of
cloth pressed on her face. She struggled but could not move. Somebody was pinning her down on
the bed, holding her tightly. She wanted to scream for help but the hands covering her mouth with
cloth wet with chemicals were very tight (TSN, July 5, 1993, p. 33). Still, MALOU continued fighting
off her attacker by kicking him until at last her right hand got free. With this …the opportunity
presented itself when she was able to grab hold of his sex organ which she then squeezed.
The man let her go and MALOU went straight to the bedroom door and roused Marvilou. xxx. Over
the intercom, MALOU told S/G Ferolin that: "may pumasok sa kuarto ko pinagtangkaan ako" (Ibid.,
p. 8). Who it was she did not, however, know. The only thing she had made out during their struggle
was the feel of her attacker’s clothes and weight. His upper garment was of cotton material while
that at the lower portion felt smooth and satin-like (Ibid, p. 17). He … was wearing a t-shirt and
shorts … Original Records, p. 355).
To Room 310 of the Building where her classmates Christian Alcala, Bernard Baptista, Lutgardo
Acosta and Rommel Montes were staying, MALOU then proceeded to seek help. xxx.
It was then when MALOU saw her bed … topsy-turvy. Her nightdress was stained with blue … (TSN,
July 5, 1993, pp. 13-14). Aside from the window with grills which she had originally left opened,
another window inside her bedroom was now open. Her attacker had fled from her room going
Article 6

through the left bedroom window (Ibid, Answers to Question number 5; Id), the one without iron grills
which leads to Room 306 of the Building (TSN, July 5, 1993, p.6).
xxx xxx xxx
Further, MALOU testified that her relation with CHITO, who was her classmate …, was friendly until
a week prior to the attack. CHITO confided his feelings for her, telling her: "Gusto kita, mahal kita"
(TSN, July 5, 1993, p. 22) and she rejected him. …. (TSN, July 5, 1993, p. 22).
Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the Building at 1:30 in
the early morning of December 13, 1991, wearing a white t-shirt with “‘…a marking on the front of
the T-shirt T M and a Greek letter (sic) ΣΦ’ and below the quoted letters the word ‘1946’ ‘UST
Medicine and Surgery’” (TSN, October 9, 1992, p. 9) and black shorts with the brand name “Adidas”
(TSN, October 16, 1992, p.7) and requested permission to go up to Room 306. This Unit was being
leased by Ansbert Co and at that time when CHITO was asking permission to enter, only Joseph
Bernard Africa was in the room.
He asked CHITO to produce the required written authorization and when CHITO could not, S/G
Ferolin initially refused [but later, relented] …. S/G Ferolin made the following entry in the security
guard’s logbook …:
"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have (sic) a Request letter from
our tenant of Unit #-306 Ansbert, but still I let him inter (sic) for the reason that he will be our tenant
this coming summer break as he said so I let him sign it here
(Sgd.) Baleros Renato Jr."
(Exhibit "A-2")
That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was corroborated by Joseph
Bernard Africa (Joseph), ….
xxx xxx xxx
Joseph was already inside Room 306 at 9 o’clock in the evening of December 12, 1991. xxx by the
time CHITO’s knocking on the door woke him up, …. He was able to fix the time of CHITO’s arrival
at 1:30 A.M. because he glanced at the alarm clock beside the bed when he was awakened by the
knock at the door ….
Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt (Ibid., p. 23) when he
let the latter in. …. It was at around 3 o’clock in the morning of December 13, 1991 when he woke up
again later to the sound of knocking at the door, this time, by Bernard Baptista (Bernard), ….
xxx. With Bernard, Joseph then went to MALOU’s room and thereat was shown by Bernard the open
window through which the intruder supposedly passed.
xxx xxx xxx
Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was finally able to talk to
CHITO …. He mentioned to the latter that something had happened and that they were not being
allowed to get out of the building. Joseph also told CHITO to follow him to Room 310.
CHITO did just that. He followed after Joseph to Unit 310, carrying his gray bag. xxx. None was in
Room 310 so Joseph went to their yet another classmate, Renato Alagadan at Room 401 to see if
the others were there. xxx.
People from the CIS came by before 8 o’clock that same morning …. They likewise invited CHITO
and Joseph to go with them to Camp Crame where the two (2) were questioned ….
An occupant of Room 310 … Christian Alcala (Christian) recalled in Court that in the afternoon of
December 13, 1991, after their 3:30 class, he and his roommates, Bernard Baptista and Lutgardo
Acosta (Gary) were called to the Building and were asked by the CIS people to look for anything not
belonging to them in their Unit. While they were outside Room 310 talking with the authorities,
Rommel Montes (Loyloy), another roommate of his, went inside to search the Unit. Loyloy found
(TSN, January 12, 1993, p. 6) a gray "Khumbella" bag cloth type (Ibid, pp. 44-45) from inside their
unit which they did not know was there and surrender the same to the investigators. When he saw
the gray bag, Christian knew right away that it belonged to CHITO (Ibid, p. 55) as he had seen the
latter usually bringing it to school inside the classroom (Ibid, p. 45).
Article 6

In their presence, the CIS opened the bag and pulled out its contents, among others, a white t-shirt
with a Taunu (sic) Sigma Phi sign (Ibid, p. 7), a Black Adidas short pants, a handkerchief , three (3)
white T-shirts, an underwear, and socks (Ibid).
Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit "D-5"), and the
handkerchief (Exhibit "D-3) to be CHITO’s because CHITO had lent the very same one to him ….
The t-shirt with CHITO’s fraternity symbol, CHITO used to wear on weekends, and the handkerchief
he saw CHITO used at least once in December.
That CHITO left his bag inside Room 310 in the morning of December 13, 1991, was what consisted
mainly of Renato R. Alagadan’s testimony.
xxx xxx xxx.
The colored gray bag had a handle and a strap, was elongated to about 11/4 feet and appeared to
be full but was closed with a zipper when Renato saw it then (Ibid, pp. 19-20). At that time Christian,
Gary, Bernard, and Renato went back to Room 310 at around 3 to 4 o’clock that afternoon along
with some CIS agents, they saw the bag at the same place inside the bedroom where Renato had
seen CHITO leave it. Not until later that night at past 9 o’clock in Camp Crame, however, did Renato
know what the contents of the bag were.
xxx xxx xxx.
The forensic Chemist, Leslie Chambers, of the Philippine National Police Crime Laboratory in Camp
Crame, having acted in response to the written request of PNP Superintendent Lucas M.
Managuelod dated December 13, 1991, (Exhibit "C"; Original Records, p. 109.) conducted laboratory
examination on the specimen collated and submitted…. Her Chemistry Report No. C-487-91 (Exhibit
"E"; Ibid., p. 112) reads in part, thus:
"SPECIMEN SUBMITTED:
xxx xxx xxx:
1) One (1) small white plastic bag marked ‘UNIMART’ with the following:
xxx xxx xxx
Exh ‘C’ – One (1) night dress colored salmon pink.
2) One (1) small white pl astic bag marked ‘JONAS’ with the following:
Exh. ‘D’ – One (1) printed handkerchief.
Exh. ‘E’ – One (1) white T-shirt marked ‘TMZI’.
Exh. ‘F’ – One (1) black short (sic) marked ‘ADIDAS’.
PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of volatime (sic), non-volatile and/or metallic poison on the above stated
specimens.
FINDINGS:
Toxicological examination conducted on the above stated specimens gave the following results:
Exhs. ‘C’ and ‘D’ – POSITIVE to the test for chloroform, a volatile poison.
Exhs. ‘A’, ‘B’, ‘E’ and ‘F’ are insufficient for further analysis.
CONCLUSION:
Exhs. ‘C’ and ‘D’ contain chloroform, a volatile poison." 6 (Words in bracket added)
For its part, the defense presented, as its main witness, the petitioner himself. He denied committing
the crime imputed to him or making at any time amorous advances on Malou. Unfolding a different
Article 6

version of the incident, the defense sought to establish the following, as culled from the same
decision of the appellate court:
In December of 1991, CHITO was a medical student of … (UST). With Robert Chan and Alberto
Leonardo, he was likewise a member of the Tau Sigma Phi Fraternity …. MALOU, …, was known to
him being also a medical student at the UST at the time.
From Room 306 of the Celestial Marie Building …, CHITO, wearing the prescribed barong tagalog
over dark pants and leather shoes, arrived at their Fraternity house located at … Dos Castillas,
Sampaloc, Manila at about 7 o’clock in the evening of December 12, 1991. He was included in the
entourage of some fifty (50) fraternity members scheduled for a Christmas gathering at the house of
their senior fraternity brother, Dr. Jose Duran, at No. 3 John Street, North Greenhills, San Juan. xxx.
The party was conducted at the garden beside [the] swimming pool …. Soon after, … the four (4)
presidential nominees of the Fraternity, CHITO included, were being dunked one by one into the
pool. xxx.
xxx CHITO had anticipated his turn … and was thus wearing his t-shirt and long pants when he was
dunked. Perla Duran, …, offered each … dry clothes to change into and CHITO put on the white t-
shirt with the Fraternity’s symbol and a pair of black shorts with stripes. xxx .
Again riding on Alberto’s car and wearing "barong tagalog over a white t-shirt with the symbol TAU
Sigma Phi, black short pants with stripe, socks and shoes" (TSN, April 25, 1994, p. 15), CHITO left
the party with Robert Chan and Alberto at more or less past 1 A.M. of December 13, 1991 and
proceeded to the Building which they reached at about 1:30 A.M. (Ibid., p. 19). He had left his gray
traveling bag containing "white t-shirt, sando, underwear, socks, and toothbrush (Ibid., pp. 17-18) at
room 306 in the afternoon of the previous day ….
At the gate of the Building, CHITO knocked and …, S/G Ferolin, looking at his watch, approached.
Because of this, CHITO also looked at his own watch and saw that the time was 1:30 (Ibid., p. 26).
S/G Ferolin initially refused CHITO entry …. xxx.
S/G Ferolin called Unit 306 …. xxx. When S/G Ferolin finally let him in, already about ten (10)
minutes had lapsed since CHITO first arrived (Ibid., p. 25).
CHITO went up the floor, found the key left for him by Joseph behind the opened jalousie window
and for five (5) minutes vainly tried to open the door until Rommel Montes, … approached him and
even commented: "Okey ang suot mo ha, di mo mabuksan ang pinto (Ibid., pp. 26-29). Rommel tried
to open the door of Unit 306 … but was likewise unsuccessful. CHITO then decided to just call out to
Joseph while knocking at the door.
It took another (5) minutes of calling out and knocking before Joseph, …, at last answered the door.
Telling him, "Ikaw na ang bahala diyan" Joseph immediately turned his back on CHITO and went
inside the bedroom. CHITO , …changed to a thinner shirt and went to bed. He still had on the same
short pants given by Perla Duran from the fraternity party (TSN, June 16, 1994, p. 20).
At 6 o’clock in the morning of December 13, 1991, CHITO woke up …. He was already in his school
uniform when, around 6:30 A.M, Joseph came to the room not yet dressed up. He asked the latter
why this was so and, without elaborating on it, Joseph told him that something had happened and to
just go to Room 310 which CHITO did.
At Room 310, CHITO was told by Rommel Montes that somebody, whom MALOU was not able to
identify, went to the room of MALOU and tried to rape her (TSN, April 25, 1994, p. 36). xxx.
Joseph told him that the security guard was not letting anybody out of the Building …. When two (2)
CIS men came to the unit asking for Renato Baleros, CHITO presented himself. Congressman
Rodolfo B. Albano, father of MALOU, then asked him for the key to Room 306….
xxx xxx xxx
The CIS men looked inside the bedroom and on the windows. Joseph was told to dress up and the
two (2) of them, CHITO and Joseph, were brought to Camp Crame.
When they arrived at Camp Crame …, Col. Managuelod asked Joseph inside his room and talked to
him for 30 minutes. xxx. No one interviewed CHITO to ask his side.
xxx xxx xxx

Article 6

Both CHITO and Joseph were taken to Prosecutor Abesamis who later instructed them to undergo
physical examination at the Camp Crame Hospital ….. At the hospital, … CHITO and Joseph were
physically examined by a certain Dr. de Guzman who told them to strip ….
xxx xxx xxx
CHITO had left his gray bag containing, among others, the black striped short pants lent to him by
Perla Duran (Exhibit "8-A", Original Records, p. 345), inside Room 310 at more/less 6:30 to 7 o’clock
in the morning of December 13, 1991. The next time that he saw it was between 8 to 9 P.M. when
he and Joseph were brought before Fiscal Abesamis for inquest. One of the CIS agents had taken it
there and it was not opened up in his presence but the contents of the bag were already laid out on
the table of Fiscal Abesamis who, however, made no effort to ask CHITO if the items thereat were
his.
The black Adidas short pants purportedly found in the bag, CHITO denied putting in his gray bag
which he had left at Room 306 in the early evening of December 12, 1991 before going to the
fraternity house. He likewise disavowed placing said black Adidas short pants in his gray bag when
he returned to the apartment at past 1:00 o’clock in the early morning of December 13, 1991 (TSN,
June 16, 1994, p. 24), nor when he dressed up at about 6 o’clock in the morning to go to school and
brought his gray bag to Room 310 (Ibid. 25). In fact, at any time on December 13, 1991, he was not
aware that his gray bag ever contained any black short Adidas pants (Ibid). He only found out for the
first time that the black Adidas short pants was alluded to be among the items inside his gray bag
late in the afternoon, when he was in Camp Crame.
Also taking the witness stand for the defense were petitioner’s fraternity brothers, Alberto Leonardo
and Robert Chan, who both testified being with CHITO in the December 12, 1991 party held in Dr.
Duran’s place at Greenhills, riding on the same car going to and coming from the party and dropping
the petitioner off the Celestial Marie building after the party. Both were one in saying that CHITO was
wearing a barong tagalog, with t-shirt inside, with short pants and leather shoes at the time they
parted after the party.7 Rommel Montes, a tenant of Room 310 of the said building, also testified
seeing CHITO between the hours of 1:30 and 2:00 A.M. of December 13, 1991 trying to open the
door of Room 306 while clad in dark short pants and white barong tagalog.
On the other hand, Perla Duran confirmed lending the petitioner the pair of short pants with stripes
after the dunking party held in her father’s house. 8 Presented as defense expert witness was
Carmelita Vargas, a forensic chemistry instructor whose actual demonstration in open court showed
that chloroform, being volatile, evaporates in thirty (30) seconds without tearing nor staining the cloth
on which it is applied.9
On December 14, 1994, the trial court rendered its decision 10 convicting petitioner of attempted rape
and accordingly sentencing him, thus:
WHEREFORE, under cool reflection and prescinding from the foregoing, the Court finds the accused
Renato D. Baleros, Jr., alias "Chito", guilty beyond reasonable doubt of the crime of attempted rape
as principal and as charged in the information and hereby sentences him to suffer an imprisonment
ranging from FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1) DAY of Prision Correctional, as
Minimum to TEN (10) YEARS of Prision Mayor as Maximum, with all the accessory penalties
provided by law, and for the accused to pay the offended party Martina Lourdes T. Albano, the sum
of P50,000.00 by way of Moral and exemplary damages, plus reasonable Attorney’s fees of
P30,000.00, without subsidiary imprisonment in case of insolvency, and to pay the costs.
SO ORDERED.
Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed as CA-G.R. CR
No. 17271.
As stated at the threshold hereof, the CA, in its assailed Decision dated January 13, 1999, affirmed
the trial court’s judgment of conviction, to wit:
WHEREFORE, finding no basis in fact and in law to deviate from the findings of the court a quo, the
decision appealed from is hereby AFFIRMED in toto. Costs against appellant.
SO ORDERED.11
Petitioner moved for reconsideration, but his motion was denied by the CA in its equally assailed
resolution of March 31, 1999.12
Petitioner is now with this Court, on the contention that the CA erred -
Article 6

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

since the prosecution failed to satisfy all the requisites for conviction based thereon.
3. In not finding that the circumstances it relied on to convict the petitioner are unreliable,
inconclusive and contradictory.
4. In not finding that proof of motive is miserably wanting in his case.
5. In awarding damages in favor of the complainant despite the fact that the award was
improper and unjustified absent any evidence to prove the same.
6. In failing to appreciate in his favor the constitutional presumption of innocence and that
moral certainty has not been met, hence, he should be acquitted on the ground that the
offense charged against him has not been proved beyond reasonable doubt.
Otherwise stated, the basic issue in this case turns on the question on whether or not the CA erred
in affirming the ruling of the RTC finding petitioner guilty beyond reasonable doubt of the crime of
attempted rape.
After a careful review of the facts and evidence on record in the light of applicable jurisprudence, the
Court is disposed to rule for petitioner’s acquittal, but not necessarily because there is no direct
evidence pointing to him as the intruder holding a chemical-soaked cloth who pinned Malou down on
the bed in the early morning of December 13, 1991.
Positive identification pertains essentially to proof of identity and not per se to that of being an
eyewitness to the very act of commission of the crime. There are two types of positive identification.
A witness may identify a suspect or accused as the offender as an eyewitness to the very act of the
commission of the crime. This constitutes direct evidence. There may, however, be instances where,
although a witness may not have actually witnessed the very act of commission of a crime, he may
still be able to positively identify a suspect or accused as the perpetrator of a crime as when, for
instance, the latter is the person or one of the persons last seen with the victim immediately before
and right after the commission of the crime. This is the second type of positive identification, which
forms part of circumstantial evidence. 13 In the absence of direct evidence, the prosecution may resort
to adducing circumstantial evidence to discharge its burden. Crimes are usually committed in secret
and under condition where concealment is highly probable. If direct evidence is insisted under all
circumstances, the prosecution of vicious felons who committed heinous crimes in secret or
secluded places will be hard, if not well-nigh impossible, to prove. 14
Section 4 of Rule 133 of the Rules of Court provides the conditions when circumstantial evidence
may be sufficient for conviction. The provision reads:
Sec. 4. Circumstantial evidence, when sufficient – Circumstantial evidence is sufficient for conviction
if –
a) There is more than one circumstance;
b) The facts from which the inferences are derived are proven; and
c) The combination of all the circumstances is such as to produce a conviction beyond

reasonable doubt.
In the present case, the positive identification of the petitioner forms part of circumstantial evidence,
which, when taken together with the other pieces of evidence constituting an unbroken chain, leads
to only fair and reasonable conclusion, which is that petitioner was the intruder in question.
We quote with approval the CA’s finding of the circumstantial evidence that led to the identity of the
petitioner as such intruder:
Chito was in the Building when the attack on MALOU took place. He had access to the room of
MALOU as Room 307 where he slept the night over had a window which allowed ingress and egress
to Room 306 where MALOU stayed. Not only the Building security guard, S/G Ferolin, but Joseph
Bernard Africa as well confirmed that CHITO was wearing a black "Adidas" shorts and fraternity T-
shirt when he arrived at the Building/Unit 307 at 1:30 in the morning of December 13, 1991. Though
Article 6

it was dark during their struggle, MALOU had made out the feel of her intruder’s apparel to be
something made of cotton material on top and shorts that felt satin-smooth on the bottom.
From CHITO’s bag which was found inside Room 310 at the very spot where witness Renato
Alagadan saw CHITO leave it, were discovered the most incriminating evidence: the handkerchief
stained with blue and wet with some kind of chemicals; a black "Adidas" satin short pants; and a
white fraternity T-shirt, also stained with blue. A different witness, this time, Christian Alcala,
identified these garments as belonging to CHITO. As it turned out, laboratory examination on these
items and on the beddings and clothes worn by MALOU during the incident revealed that the
handkerchief and MALOU’s night dress both contained chloroform, a volatile poison which causes
first degree burn exactly like what MALOU sustained on that part of her face where the chemical-
soaked cloth had been pressed.
This brings the Court to the issue on whether the evidence adduced by the prosecution has
established beyond reasonable doubt the guilt of the petitioner for the crime of attempted rape.
The Solicitor General maintained that petitioner, by pressing on Malou’s face the piece of cloth
soaked in chemical while holding her body tightly under the weight of his own, had commenced the
performance of an act indicative of an intent or attempt to rape the victim. It is argued that
petitioner’s actuation thus described is an overt act contemplated under the law, for there can not be
any other logical conclusion other than that the petitioner intended to ravish Malou after he
attempted to put her to an induced sleep. The Solicitor General, echoing what the CA said, adds that
if petitioner’s intention was otherwise, he would not have lain on top of the victim. 15
Under Article 335 of the Revised Penal Code, rape is committed by a man who has carnal
knowledge or intercourse with a woman under any of the following circumstances: (1) By using force
or intimidation; (2) When the woman is deprived of reason or otherwise unconscious; and (3) When
the woman is under twelve years of age or is demented. Under Article 6, in relation to the
aforementioned article of the same code, rape is attempted when the offender commences the
commission of rape directly by overt acts and does not perform all the acts of execution which
should produce the crime of rape by reason of some cause or accident other than his own
spontaneous desistance.16
Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro M. Recto in
People vs. Lamahang,17 stated that "the attempt which the Penal Code punishes is that which has a
logical connection to a particular, concrete offense; that which is the beginning of the execution of
the offense by overt acts of the perpetrator, leading directly to its realization and consummation."
Absent the unavoidable connection, like the logical and natural relation of the cause and its effect, as
where the purpose of the offender in performing an act is not certain, meaning the nature of the act
in relation to its objective is ambiguous, then what obtains is an attempt to commit an indeterminate
offense, which is not a juridical fact from the standpoint of the Penal Code. 18
There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the
present case. The next question that thus comes to the fore is whether or not the act of the
petitioner, i.e., the pressing of a chemical-soaked cloth while on top of Malou, constitutes an overt
act of rape.1avvphil.net
Overt or external act has been defined as some physical activity or deed, indicating the intention to
commit a particular crime, more than a mere planning or preparation, which if carried out to its
complete termination following its natural course, without being frustrated by external obstacles nor
by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete
offense.19
Harmonizing the above definition to the facts of this case, it would be too strained to construe
petitioner's act of pressing a chemical-soaked cloth in the mouth of Malou which would induce her to
sleep as an overt act that will logically and necessarily ripen into rape. As it were, petitioner did not
commence at all the performance of any act indicative of an intent or attempt to rape Malou. It
cannot be overemphasized that petitioner was fully clothed and that there was no attempt on his part
to undress Malou, let alone touch her private part. For what reason petitioner wanted the
complainant unconscious, if that was really his immediate intention, is anybody’s guess. The CA
maintained that if the petitioner had no intention to rape, he would not have lain on top of the
complainant. Plodding on, the appellate court even anticipated the next step that the petitioner would
have taken if the victim had been rendered unconscious. Wrote the CA:
The shedding of the clothes, both of the attacker and his victim, will have to come later. His sexual
organ is not yet exposed because his intended victim is still struggling. Where the intended victim is
an educated woman already mature in age, it is very unlikely that a rapist would be in his naked
glory before even starting his attack on her. He has to make her lose her guard first, or as in this
case, her unconsciousness.20
Article 6

At bottom then, the appellate court indulges in plain speculation, a practice disfavored under the rule
on evidence in criminal cases. For, mere speculations and probabilities cannot substitute for proof
required to establish the guilt of an accused beyond reasonable doubt. 21
In Perez vs. Court of Appeals,22 the Court acquitted therein petitioner of the crime of attempted rape,
pointing out that:
xxx. In the crime of rape, penetration is an essential act of execution to produce the felony. Thus, for
there to be an attempted rape, the accused must have commenced the act of penetrating his sexual
organ to the vagina of the victim but for some cause or accident other than his own spontaneous
desistance, the penetration, however, slight, is not completed.
xxx xxx xxx
Petitioner’s act of lying on top of the complainant, embracing and kissing her, mashing her breasts,
inserting his hand inside her panty and touching her sexual organ, while admittedly obscene and
detestable acts, do not constitute attempted rape absent any showing that petitioner actually
commenced to force his penis into the complainant’s sexual organ. xxx.
Likewise in People vs. Pancho,23 the Court held:
xxx, appellant was merely holding complainant’s feet when his Tito Onio arrived at the alleged locus
criminis. Thus, it would be stretching to the extreme our credulity if we were to conclude that mere
holding of the feet is attempted rape.
Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the premises, of
any wrongdoing whatsoever. The information filed against petitioner contained an allegation that he
forcefully covered the face of Malou with a piece of cloth soaked in chemical. And during the trial,
Malou testified about the pressing against her face of the chemical-soaked cloth and having
struggled after petitioner held her tightly and pinned her down. Verily, while the series of acts
committed by the petitioner do not determine attempted rape, as earlier discussed, they constitute
unjust vexation punishable as light coercion under the second paragraph of Article 287 of the
Revised Penal Code. In the context of the constitutional provision assuring an accused of a crime
the right to be informed of the nature and cause of the accusation, 24 it cannot be said that petitioner
was kept in the dark of the inculpatory acts for which he was proceeded against. To be sure, the
information against petitioner contains sufficient details to enable him to make his defense. As aptly
observed by then Justice Ramon C. Aquino, there is no need to allege malice, restraint or
compulsion in an information for unjust vexation. As it were, unjust vexation exists even without the
element of restraint or compulsion for the reason that this term is broad enough to include any
human conduct which, although not productive of some physical or material harm, would unjustly
annoy or irritate an innocent person. 25 The paramount question is whether the offender’s act causes
annoyance, irritation, torment, distress or disturbance to the mind of the person to whom it is
directed.26 That Malou, after the incident in question, cried while relating to her classmates what she
perceived to be a sexual attack and the fact that she filed a case for attempted rape proved beyond
cavil that she was disturbed, if not distressed by the acts of petitioner.
The penalty for coercion falling under the second paragraph of Article 287 of the Revised Penal
Code is arresto menor or a fine ranging from ₱5.00 to ₱200.00 or both.
WHEREFORE, the assailed Decision of the Court of Appeals affirming that of the Regional Trial
Court of Manila, is hereby REVERSED and SET ASIDE and a new one entered ACQUITTING
petitioner Renato D. Baleros, Jr. of the charge for attempted rape. Petitioner, however, is adjudged
GUILTY of light coercion and is accordingly sentenced to 30 days of arresto menor and to pay a fine
of ₱200.00, with the accessory penalties thereof and to pay the costs.
SO ORDERED.
Article 6
G.R. No. 166441 October 8, 2014
NORBERTO CRUZ y BARTOLOME, Petitioner,

vs.
DECISION
BERSAMIN, J.:
The intent of the offender to lie with the female defines the distinction between attempted rape and
acts of lasciviousness. The felony of attempted rape requires such intent; the felony of acts of
lasciviousness does not. Only the direct overt acts of the offender establish the intent to lie with the
female. However, merely climbing on top of a naked female does not constitute attempted rape
without proof of his erectile penis being in a position to penetrate the female's vagina.
The Case
This appeal examines the decision promulgated on July 26, 2004, whereby the Court of Appeals
1
(CA) affirmed the conviction for attempted rape of the petitioner by the Regional Trial Court, Branch
34, in Balaoan, La Union (RTC), and imposing on him the indeterminate penalty of imprisonment of
four (4) years and two (2) months of prision correccional, as minimum, to ten (10) years of prision
mayor, as maximum, and ordering him to pay moral damages of ₱20,000.00 to AAA, the victim.
2
Antecedents
The petitioner was charged in the RTC with attempted rape and acts of lasciviousness involving
different victims. At arraignment, he pleaded not guiltyto the respective informations, to wit: Criminal
Case No. 2388
Attempted Rape
That on or about the 21st day of December 1993, at about 2:00 o'clock in the morning, along the
Bangar-Luna Road, Barangay Central West No. 2, Municipality of Bangar,Province of La Union,
Philippines and within the jurisdiction of this Honorable Court, said accused, did then and there
willfully, unlawfully and feloniously and by means of force and intimidation commenced the
commission ofrape directly byovert acts, to wit: While private complainant AAA, an unmarried
woman, fifteen (15) yearsold, was sleeping inside the tentalong Bangar-Luna Road, the said
accused remove her panty and underwear and lay on top of said AAA embracing and touching her
vagina and breast with intent of having carnal knowledge of her by means of force, and if the
accused did not accomplish his purpose that is to have carnal knowledge of the said AAA it was not
because of his voluntary desistance but because the said offended party succeeded in resisting the
criminal attempt of said accused to the damage and prejudice of said offended party.
CONTRARY TO LAW. 3
Criminal Case No. 2389

Acts of Lasciviousness
That on or about the 21st day of December 1993, at about 3:00 o’clock in the morning, along the
Bangar-Luna Road, Barangay Central West No. 2, Municipality of Bangar, Province of La Union,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused with lewd
design, did then and there willfully, unlawfully and feloniously touch the vagina of [BBB] against the
4
latter’s will and with no other purpose but to satisfy his lascivious desire to the damage and prejudice
of said offended party.
CONTRARY TO LAW. 5
Version of the Prosecution
The CA summarized the version of the Prosecution as follows: 6

Article 6

x x x [Petitioner] Norberto Bartolome and [his wife] Belinda Cruz were engaged in the selling of
plastic wares and glass wares in different municipalities around the country. On December 20, 1993,
Norberto and Belinda employed AAA and BBB to help them in selling their wares in Bangar, La
Union which was then celebrating its fiesta. From Libsong East, Lingayen, Pangasinan to Bangar, La
Union, AAA and BBB boarded a passenger jeepney owned by Norberto. The young girls were
accompanied by Norberto, Belinda, Ruben Rodriguez (driver) and a sales boy by the name of
"Jess".
Upon reaching Bangar, La Union, at around 8:00 in the evening of December 20, 1993, they parked
in front of Maroon enterprises. They brought out all the goods and wares for display. Two tents were
fixed in order that they will have a place to sleep. Belinda and the driver proceeded to Manila in
order to get more goods to be sold.
On December 21, 1993, at around 1:00 o’clock in the morning, AAA and BBB went to sleep. Less
thanan hour later, AAA was awakened when she felt that somebody was on top of her. Norberto was
mashing her breast and touching her private part. AAA realized that she was divested of her clothing
and that she was totally naked. Norberto ordered her not to scream or she’ll be killed. AAA tried to
push Norberto away and pleaded to have pity on her but her pleas fell on deaf ears. She fought back
and kicked Norberto twice.
Norberto was not able to pursue his lustful desires. Norberto offered her money and told her not
totell the incident to her mother otherwise, she will be killed. AAA went out of the tent to seek help
from Jess (the house boy) but she failed to wake him up.
Thirty minutes later, when AAA returned to their tent, she saw Norberto touching the private parts of
BBB. AAA saw her companion awake but her hands wereshaking. When she finally entered the tent,
Norberto left and went outside.
Later that day, AAA and BBB narrated to Jess the incident that took place that early morning. Later
still, while they were on their way to fetch water, AAA and BBB asked the people around where they
can find the municipal building. An old woman pointed to them the place.
In the evening of December 21, 1993, AAA and BBB went straight to the municipal hall where they
met a policeman by the name of "Sabas".
They told Sabas the sexual advances made to them by Norberto. Norberto was summoned to the
police station where he personally confronted his accusers. When Norberto’s wife, Belinda, arrived
at the police station, an argument ensued between them.
On December 22, 1993, at around 2:20 o’clock in the morning, the police investigator ordered the
complainants to return at6:00 o’clock in the morning. Norberto and Belinda were still able to bring
AAA and BBB home with them and worked for them until December 30, 1994, after which they were
sent back to Lingayen, Pangasinan.
On January 10, 1994, AAA and BBB went back to La Union and executed their respective sworn
statements against Norberto.
Version of the Defense
The petitioner denied the criminal acts imputed to him. His version was presented in the assailed
decision of the CA, as follows:
7
In a bid to exculpate himself, accused-appellant presents a totally different version of the story. The
accused maintains that it was not possible for him to commit the crimes hurled against him. On the
date of the alleged incident, there were many people around who were preparing for the "simbang
gabi". Considering the location of the tents, which were near the road and the municipal hall, he
could not possibly do the dastardly acts out in the open, not to mention the fact that once AAA and
BBB would scream, the policemen in the municipal hall could hear them. He believes that the reason
why the complainants filed these cases against him was solely for the purpose of extorting money
from him.
Judgment of the RTC
After the joint trial of the two criminal cases, the RTC rendered its judgment on April 6, 2000 finding
the petitioner guilty beyond reasonable doubt of attempted rape in Criminal Case No. 2388 and acts
of lasciviousness in Criminal Case No. 2389, to wit:
8
WHEREFORE, in the light of the foregoing, the Court hereby renders judgment declaring the
accused NORBERTO CRUZ Y BARTOLOME guilty beyond reasonable doubt of the crimes of
Article 6

ATTEMPTED RAPE and ACTS OF LASCIVIOUSNESS as defined and penalized in Article 335 in
relation with (sic) Article 6, par. 3 and Article 336 of the Revised Penal Code respectively. With
respect to the crime of ATTEMPTED RAPE, the Court hereby sentences the accused to suffer an
indeterminate penalty of imprisonment from FOUR (4) YEARS and TWO (2) MONTHS PRISION
CORRECCIONAL as Minimum to TEN (10) YEARS PRISION MAYOR as Maximum and the
accessory penalties provided for by law and to pay the victim AAA the amount of ₱20,000.00 as
moral damages.
With regard to the crime ofACTS OF LASCIVIOUSNESS, the Court hereby sentences the accused
to suffer an indeterminate penalty of imprisonment from FOUR (4) MONTHS ARRESTO MAYOR as
Minimum to FOUR (4) YEARS and TWO (2) MONTHS PRISION CORRECCIONAL as Maximum
and the accessory penalties provided for by law, and to pay the victim BBBthe amount of
₱10,000.00 as moral damages.
The preventive imprisonment suffered by the accused by reason of the two cases is counted in his
favor.
SO ORDERED. 9
Decision of the CA
On appeal, the petitioner contended that the RTC gravely erred in convicting him of attempted rape
despite the dubious credibility of AAA, and of acts of lasciviousness despite the fact that BBB did not
testify.
On July 26, 2004, the CA promulgated its decision affirming the conviction of the petitioner for
attempted rape in Criminal Case No. 2388, but acquitting him of the acts of lasciviousness charged
in Criminal Case No. 2389 due to the insufficiency of the evidence, holding thusly:
10
In sum, the arguments of the accused-appellant are too puerile and inconsequential as to dent, even
slightly, the overall integrity and probative value of the prosecution's evidence insofar as AAA is
concerned.
Under Article 51 of the Revised Penal Code, the penalty for an attempted felony is the "penalty lower
by two (2) degrees" prescribed by law for the consummated felony. In this case, the penalty for rape
if it had been consummated would have been reclusion perpetuapursuant to Article 335 of the
Revised Penalty Code, as amended by Republic Act No. 7659. The penalty two degrees lower than
reclusion perpetuais prision mayor.
Applying the Indeterminate Sentence Law, the maximum term of the penalty shall be the medium
period of prision mayorin the absence of any mitigating or aggravating circumstance and the
minimum shall be within the range of the penalty nextlower to that prescribed for the offense which in
this case is prision correccionalin any of its periods.
We also find that the trial court correctly assessed the amount of ₱20,000.00 by way of moral
damages against the accused-appellant. In a rape case, moral damages may be awarded without
the need of proof or pleading since it is assumed that the private complainant suffered moral injuries,
more so, when the victim is aged 13 to 19.
Insofar as the crime of acts of lasciviousness committed against BBB, the accused argues that there
is not enough evidence to support such accusation. BBB did not testify and neither her sworn
statement was formally offered in evidence to support the charge for acts of lasciviousness.
In this case, the evidence adducedby the prosecution is insufficient to substantiate the charge of
acts of lasciviousness against the accusedappellant. The basis of the complaint for acts of
lasciviousness is the sworn statement of BBB to the effectthat the accused-appellant likewise
molested her by mashing her breast and touching her private part. However, she was not presented
to testify. While AAA claims that she personally saw the accused touching the private parts of BBB,
there was no testimony to the effect that suchlascivious acts were without the consent or against the
will of BBB.11
Issues
In this appeal, the petitioner posits that the CA’s decision was not in accord with law or with
jurisprudence, particularly:
I. In giving credence to the incredulous and unbelievable testimony of the alleged victim; and
Article 6

II. In convicting the accused notwithstanding the failure of the prosecution to prove the guilt
of the petitioner beyond reasonable doubt.
Anent the first issue, the petitioner assails the behavior and credibility of AAA. He argues that AAA
still continued working for him and his wife until December 30, 1994 despite the alleged attempted
rape in the early morning of December 21, 1994, thereby belying his commission of the crime
against her; that he could not have undressed her without rousing her if she had gone to sleep only
an hour before, because her bra was locked at her back; that her testimony about his having been
on top of her for nearly an hour while they struggled was also inconceivable unless she either
consented to his act and yielded to his lust, or the incident did not happen at all, being the product
only of her fertileimagination; that the record does not indicate if he himself was also naked, or that
his penis was poised to penetrate her; and that she and her mother demanded from him ₱80,000.00
as settlement, under threat that she would file a case against him. 12
On the second issue, the petitioner assails the glaring inconsistencies in the testimony of AAA that
cast doubt on her veracity.
Ruling of the Court
The appeal is partly meritorious.
In an appeal under Rule 45 of the Rules of Court, the Court reviews only questions of law. No
13
review of the findings of fact by the CA is involved. As a consequence of thisrule, the Court accords
the highest respect for the factual findings of the trial court, its assessment of the credibility of
witnesses and the probative weight of their testimonies and the conclusions drawn from its factual
findings, particularly when they are affirmed by the CA. Judicial experience has shown, indeed, that
the trial courts are in the best position to decideissues of credibility of witnesses, having themselves
heard and seen the witnesses and observed firsthand their demeanor and deportment and the
manner of testifying under exacting examination. As such, the contentionsof the petitioner on the
credibility of AAA as a witness for the State cannot beentertained. He thereby raises questions of
fact that are outside the scope of this appeal. Moreover, he thereby proposes to have the Court,
which is not a trier of facts, review the entire evidence adduced by the Prosecution and the Defense.
Conformably with this limitation, our review focuses only on determining the question of law of
whether or not the petitioner’s climbing on top of the undressed AAA such thatthey faced each other,
with him mashing her breasts and touching her genitalia with his hands, constituted attempted rape,
the crime for which the RTC and the CA convicted and punished him. Based on the information,
supra, he committed such acts "with intent of having carnal knowledge ofher by means of force, and
if the accused did not accomplish his purpose that is to have carnal knowledge of the said AAA it
was not because of his voluntary desistance but because the said offended party succeeded in
resisting the criminal attempt of said accused to the damage and prejudice of said offended party."
There is an attempt, according to Article 6 of the Revised Penal Code, when the offender
commences the commission of a felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause or accident other than this own
spontaneous desistance. In People v. Lamahang, the Court, speaking through the eminent Justice
14
Claro M.Recto, eruditely expounded on what overt acts would constitute anattempted felony, to wit:
It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which
has a logical relation to a particular, concrete offense; that, which is the beginning of the execution of
the offense by overt acts of the perpetrator, leading directly to its realization and consummation. The
attempt to commit an indeterminate offense, inasmuch as its nature in relation to its objective is
ambiguous, is not a juridical fact from the standpoint of the Penal Code. xxxx But it is not sufficient,
for the purpose of imposing penal sanction, that an act objectively performed constitute a mere
beginning of execution; it is necessary to establish its unavoidable connection, like the logical and
natural relation of the cause and its effect, with the deed which, upon its consummation, will develop
into one of the offenses defined and punished by the Code; it is necessary to prove that said
beginning of execution, if carried to its complete termination following its natural course, without
being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically
and necessarily ripen into a concrete offense. x x x x.
"It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material
damage iswanting, the nature of the action intended (accion fin) cannot exactly be ascertained, but
the same must be inferred from the nature of the acts of execution (accion medio). Hence, the
necessity that these acts be such that by their very nature, by the facts to which they are related, by
the circumstances of the persons performing the same, and by the things connected therewith, they
must show without any doubt, that they are aimed at the consummation of a crime. Acts susceptible
of double interpretation, that is, in favor as well as against the culprit, and which show an innocent
aswell as a punishable act, must not and cannot furnish grounds by themselves for attempted or
Article 6

frustrated crimes. The relation existing between the facts submitted for appreciation and the offense
of which said facts are supposed to produce must be direct; the intention must be ascertainedfrom
the facts and therefore it is necessary, in order to avoid regrettable instance of injustice, that the
mind be able to directly infer from them the intention of the perpetrator to cause a particular injury.
This must have been the intention of the legislator in requiring that in order for an attempt to exist,
the offender must commence the commission of the felony directly by overt acts, that is to say, that
the acts performed must be such that, withoutthe intent to commit an offense, they would be
meaningless." 15
To ascertain whether the acts performed by the petitioner constituted attempted rape, we have to
determine the law on rape in effect on December 21, 1993, when the petitioner committed the crime
he was convicted of. That law was Article 335 of the Revised Penal Code, which pertinently provided
as follows:
Article335. When and how rape is committed. — Rape is committed by having carnal knowledge of a
woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived ofreason or otherwise unconscious; and
3. When the woman is under twelve years of age, even though neither of the circumstances
mentioned in the two next preceding paragraphs shall be present.
xxxx
The basic element of rape then and now is carnal knowledge of a female. Carnal knowledge
isdefined simply as "theact of a man having sexual bodily connections with a woman," which
16
explains why the slightest penetration of the female genitalia consummates the rape. In other words,
rape is consummated once the peniscapable of consummating the sexual act touches the external
genitalia of the female. In People v. Campuhan, the Court has defined the extent of "touching" by
17 18
the penis in rape in the following terms:
[T]ouching when applied to rape cases does not simply mean mere epidermal contact, stroking or
grazing of organs, a slight brush or a scrape of the penis on the external layer of the victim’s vagina,
or the mons pubis, as in this case. There must be sufficient and convincing proof that the penis
indeedtouched the labias or slid into the female organ, and not merely stroked the external surface
thereof, for an accused to be convicted of consummated rape. As the labias, which are required to
be "touched" bythe penis, are by their natural situsor location beneath the mons pubisor the vaginal
surface, to touch them with the penis is to attain some degree of penetration beneath the surface,
hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes
consummated rape.
The pudendumor vulvais the collective term for the female genital organs that are visible in the
perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal
orifice, etc. The mons pubisis the rounded eminence that becomes hairy after puberty, and is
instantly visible within the surface. The next layer is the labia majoraor the outer lips of the female
organ composed of the outer convex surface and the inner surface. The skin of the outer convex
surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which
does not have any hair but has many sebaceous glands. Directly beneath the labia majorais the
labia minora. Jurisprudence dictates that the labia majoramust be entered for rape to be
consummated, and not merely for the penis to stroke the surface of the female organ. xxxx Thus, a
grazing of the surface of the female organ or touching the mons pubisof the pudendum is not
sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the
female organ, i.e., touching of either labia of the pudendumby the penis, there can be no
consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness. [Bold
emphasis supplied]
It is noteworthy that in People v. Orita, the Court clarified that the ruling in People v.
19
Eriñia whereby the offender was declared guilty of frustrated rapebecause of lack of conclusive
20
evidence of penetration of the genital organ of the offended party, was a stray decisionfor not having
been reiterated in subsequent cases. As the evolving case law on rape stands, therefore, rape in its
frustrated stage is a physical impossibility, considering that the requisites of a frustrated felony under
Article 6 of the Revised Penal Codeare that: (1) the offender has performed all the acts of execution
which would produce the felony; and (2) that the felony is not produced due to causes independent
of the perpetrator’s will. Obviously, the offender attains his purpose from the moment he has carnal
knowledge of his victim, because from that moment all the essential elements of the offense have
been accomplished, leaving nothing more to be done by him. 21
Article 6

Nonetheless, rape admits of an attempted stage. In this connection, the character of the overt
actsfor purposes of the attempted stage has been explained in People v. Lizada: 22
An overt or external act is defined as some physical activity or deed, indicating the intention to
commit a particular crime, more than a mere planning or preparation, which if carried out to its
complete termination following its natural course, without being frustrated by external obstacles nor
by the spontaneous desistance of the perpetrator, will logically and necessarily ripen into a concrete
offense. The raison d’etrefor the law requiring a direct overtact is that, in a majority of cases, the
conduct of the accused consisting merely of acts of preparation has never ceased to be equivocal;
and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that
must be lacking before the act becomes one which may be said to be a commencement of the
commission of the crime, or an overt act or before any fragment of the crime itself has been
committed, and this is so for the reason that so long as the equivocal quality remains, no one can
say with certainty what the intent of the accused is.It is necessary that the overt act should have
been the ultimate step towards the consummation of the design. It is sufficient if it was the "first or
some subsequent step in a direct movement towards the commission of the offense after the
preparations are made." The act done need not constitute the last proximate one for completion. It is
necessary, however, that the attempt must have a causal relation to the intended crime. In the words
of Viada, the overt acts must have an immediate and necessary relation to the offense. (Bold
emphasis supplied)
In attempted rape, therefore, the concrete felony is rape, but the offender does not perform all the
acts of execution of having carnal knowledge. If the slightest penetration of the female genitalia
consummates rape, and rape in its attempted stage requires the commencement of the commission
of the felony directly by overt actswithout the offender performing all the acts of execution that
should produce the felony, the only means by which the overt acts performed by the accused can be
shown to have a causal relation to rape as the intended crime is to make a clear showing of his
intent to lie with the female. Accepting that intent, being a mental act, is beyond the sphere of
criminal law, that showing must be through his overt acts directly connected with rape. He cannot
23
be held liable for attempted rape withoutsuch overt acts demonstrating the intent to lie with the
female. In short, the State, to establish attempted rape, must show that his overt acts, should his
criminalintent be carried to its complete termination without being thwarted by extraneous matters,
would ripen into rape, for, as succinctly put in People v. Dominguez, Jr.: "The gauge in determining
24 25
whether the crime of attempted rape had been committed is the commencement of the act of sexual
intercourse, i.e., penetration of the penis into the vagina, before the interruption."
The petitioner climbed on top of the naked victim, and was already touching her genitalia with his
hands and mashing her breasts when she freed herself from his clutches and effectively ended his
designs on her. Yet, inferring from such circumstances thatrape, and no other,was his intended
felony would be highly unwarranted. This was so, despite his lust for and lewd designs towards her
being fully manifest. Such circumstances remained equivocal, or "susceptible of double
interpretation," as Justice Recto put in People v. Lamahang, supra, such that it was not permissible
to directly infer from them the intention to cause rape as the particular injury. Verily, his felony would
not exclusively be rapehad he been allowed by her to continue, and to have sexual congress with
her, for some other felony like simple seduction (if he should employ deceit to have her yield to
him) could also be ultimate felony.
26
We clarify that the direct overt acts of the petitioner that would have produced attempted rape did not
include equivocal preparatory acts. The former would have related to his acts directly connected to
rape as the intended crime, but the latter, whether external or internal, had no connection with rape
as the intended crime. Perforce, his perpetration of the preparatory acts would not render him guilty
of an attempt to commit such felony. His preparatory acts could include his putting up of the
27
separate tents, with one being for the use of AAA and BBB, and the other for himself and his
assistant, and his allowing his wife to leave for Manila earlier that evening to buy more wares. Such
acts, being equivocal, had no direct connection to rape. As a rule, preparatory acts are not
punishable under the Revised Penal Codefor as long as they remained equivocal or of uncertain
significance, because by their equivocality no one could determine with certainty what the
perpetrator’s intent really was. 28
If the acts of the petitioner did not constitute attempted rape, did they constitute acts of
lasciviousness?
It is obvious that the fundamental difference between attempted rape and acts of lasciviousness is
the offender’sintent to lie with the female. In rape, intent to lie with the female is indispensable, but
this element is not required in acts of lasciviousness. Attempted rape is committed, therefore, when
29
the "touching" of the vagina by the penis is coupled with the intent to penetrate. The intent to
penetrate is manifest only through the showing of the penis capable of consummating the sexual act
touching the external genitalia of the female. Without such showing, only the felony of acts of
30
lasciviousness is committed. 31
Article 6

Based on Article 336 of the Revised Penal Code, the felony of acts of lasciviousness is
consummated whenthe following essential elements concur, namely: (a) the offender commits any
act of lasciviousness or lewdness upon another person of either sex; and (b) the act of
lasciviousness or lewdness is committed either (i) by using force or intimidation; or (ii) when the
offended party is deprived ofreason or is otherwise unconscious; or (iii) when the offended party is
under 12 years of age. In that regard, lewdis defined as obscene, lustful, indecent, lecherous; it
32
signifies that form of immorality that has relation to moral impurity; or that which is carried on a
wanton manner. 33
The information charged that the petitioner "remove[d] her panty and underwear and la[id] on top of
said AAA embracing and touching her vagina and breast." With such allegation of the information
being competently and satisfactorily proven beyond a reasonable doubt, he was guilty only of acts of
lasciviousness, not attempted rape. His embracing her and touching her vagina and breasts did not
directly manifest his intent to lie with her. The lack of evidence showing his erectile penis being in the
position to penetrate her when he was on top of her deterred any inference about his intent to lie
with her. At most, his acts reflected lewdness and lust for her.
The intent to commit rape should not easily be inferred against the petitioner, even from his own
declaration of it, if any, unless he committed overt acts directly leading to rape. A good illustration of
this can be seen in People v. Bugarin, where the accused was charged with attempted rape
34
through an information alleging that he, by means of force and intimidation, "did then and there
willfully, unlawfully and feloniously commence the commission of the crime of Rape directly by overt
acts, by then and there kissing the nipples and the vagina of the undersigned [complainant], a minor,
and about to lay on top of her, all against her will, however, [he] did not perform all the acts of
execution which would have produced the crime of Rape by reason of some causes other than his
own spontaneous desistance, that is, undersigned complainant push[ed] him away." The accused
was held liable only for acts of lasciviousness because the intent to commit rape "is not apparent
from the actdescribed," and the intent to have sexual intercourse with her was not inferable from the
act of licking her genitalia. The Court also pointed out that the "act imputed to him cannot be
considered a preparatory act to sexual intercourse." 35
Pursuant to Article 336 of the Revised Penal Code, the petitioner, being guilty of acts of
lasciviousness, is punished with prision correccional. In the absence of modifying circumstances,
prision correccional is imposed in its medium period, which ranges from two (2) years, four (4)
months and one day to four (4) years and two (2) months. Applying the Indeterminate Sentence
Law, the minimum of the penalty should come from arresto mayor, the penalty next lower than
prision correccionalwhich ranges from one (1) month to six (6) months. Accordingly, the Court fixes
the indeterminate sentence of three (3) months of arresto mayor, as the minimum, to two (2) years,
four (4) months and one day of prision correccional, as the maximum.
In acts of lasciviousness, the victim suffers moral injuries because the offender violates her chastity
by his lewdness. "Moral damages include physical suffering, mental anguish, fright, serious anxiety,
1âwphi1
besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though
incapable of pecuniary computation, moral damages may be recovered if they are the proximate
result of the defendant's wrongful act for omission." Indeed, Article 2219, (3), of the Civil Code
36
expressly recognizes the right of the victim in acts of lasciviousness to recover moral
damages. Towards that end, the Court, upon its appreciation of the record, decrees that
37
₱30,000.00 is a reasonable award of moral damages. In addition, AAA was entitled to recover civil
38
indemnity of ₱20,000.00. 39
Under Article 2211 of the Civil Code, the courts are vested with the discretion to impose interest as a
part of the damages in crimes and quasidelicts. In that regard, the moral damages of ₱20,000.00
shall earn interest of 6% per annum reckoned from the finality of this decision until full payment. 40
WHEREFORE, the Court FINDS and PRONOUNCES petitioner NORBERTO CRUZ y BARTOLOME
guilty of ACTS OF LASCIVIOUSNESS, and, ACCORDINGLY, PENALIZES him with the
indeterminate sentence of three (3) months of arresto mayor, as the minimum, to two (2) years, four
(4) months and one day of prision correccional, as the maximum; ORDERS him to pay moral
damages of ₱30,000.00 and civil indemnity of ₱20,000.00 to the complainant, with interest of 6% per
annum on such awards reckoned from the finality of this decision until full payment; and DIRECTS
him to pay the costs of suit.
SO ORDERED.
LUCAS P. BERSA
Article 6
c. Theft
EN BANC
G. R. No. 160188 June 21, 2007
ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS NACHURA, respondents.
DECISION
TINGA, J.:
This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner
effectively concedes having performed the felonious acts imputed against him, but instead insists
that as a result, he should be adjudged guilty of frustrated theft only, not the felony in its
consummated stage of which he was convicted. The proposition rests on a common theory
expounded in two well-known decisions 1 rendered decades ago by the Court of Appeals, upholding
the existence of frustrated theft of which the accused in both cases were found guilty. However, the
rationale behind the rulings has never been affirmed by this Court.
As far as can be told,2 the last time this Court extensively considered whether an accused was guilty
of frustrated or consummated theft was in 1918, in People v. Adiao. 3 A more cursory
treatment of the question was followed in 1929, in People v. Sobrevilla, 4 and in 1984, in Empelis v.
IAC.5 This petition now gives occasion for us to finally and fully measure if or how frustrated theft is
susceptible to commission under the Revised Penal Code.
I.
The basic facts are no longer disputed before us. The case stems from an Information 6 charging
petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft. On
19 May 1994, at around 4:30 p.m., petitioner and Calderon were sighted outside the Super Sale
Club, a supermarket within the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago),
a security guard who was then manning his post at the open parking area of the supermarket. Lago
saw petitioner, who was wearing an identification card with the mark "Receiving Dispatching Unit
(RDU)," hauling a push cart with cases of detergent of the well-known "Tide" brand. Petitioner
unloaded these cases in an open parking space, where Calderon was waiting. Petitioner then
returned inside the supermarket, and after five (5) minutes, emerged with more cartons of Tide
Ultramatic and again unloaded these boxes to the same area in the open parking space. 7
Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it
towards the parking space where Calderon was waiting. Calderon loaded the cartons of Tide
Ultramatic inside the taxi, then boarded the vehicle. All these acts were eyed by Lago, who
proceeded to stop the taxi as it was leaving the open parking area. When Lago asked petitioner for a
receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot, but Lago fired a
warning shot to alert his fellow security guards of the incident. Petitioner and Calderon were
apprehended at the scene, and the stolen merchandise recovered. 8 The filched items seized from
the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3)
additional cases of detergent, the goods with an aggregate value of ₱12,090.00. 9
Petitioner and Calderon were first brought to the SM security office before they were transferred on
the same day to the Baler Station II of the Philippine National Police, Quezon City, for investigation.
It appears from the police investigation records that apart from petitioner and Calderon, four (4) other
persons were apprehended by the security guards at the scene and delivered to police custody at
the Baler PNP Station in connection with the incident. However, after the matter was referred to the
Office of the Quezon City Prosecutor, only petitioner and Calderon were charged with theft by the
Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day after the incident. 10
Article 6

After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having
been innocent bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May 1994
when they were haled by Lago and his fellow security guards after a commotion and brought to the
Baler PNP Station. Calderon alleged that on the afternoon of the incident, he was at the Super Sale
Club to withdraw from his ATM account, accompanied by his neighbor, Leoncio Rosulada. 11 As the
queue for the ATM was long, Calderon and Rosulada decided to buy snacks inside the supermarket.
It was while they were eating that they heard the gunshot fired by Lago, leading them to head out of
the building to check what was
transpiring. As they were outside, they were suddenly "grabbed" by a security guard, thus
commencing their detention.12 Meanwhile, petitioner testified during trial that he and his cousin, a
Gregorio Valenzuela,13 had been at the parking lot, walking beside the nearby BLISS complex and
headed to ride a tricycle going to Pag-asa, when they saw the security guard Lago fire a shot. The
gunshot caused him and the other people at the scene to start running, at which point he was
apprehended by Lago and brought to the security office. Petitioner claimed he was detained at the
security office until around 9:00 p.m., at which time he and the others were brought to the Baler
Police Station. At the station, petitioner denied having stolen the cartons of detergent, but he was
detained overnight, and eventually brought to the prosecutor’s office where he was charged with
theft.14 During petitioner’s cross-examination, he admitted that he had been employed as a "bundler"
of GMS Marketing, "assigned at the supermarket" though not at SM. 15
In a Decision16 promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City,
Branch 90, convicted both petitioner and Calderon of the crime of consummated theft. They were
sentenced to an indeterminate prison term of two (2) years of prision correccional as minimum to
seven (7) years of prision mayor as maximum.17 The RTC found credible the testimonies of the
prosecution witnesses and established the convictions on the positive identification of the accused
as perpetrators of the crime.
Both accused filed their respective Notices of Appeal, 18 but only petitioner filed a brief19 with the Court
of Appeals, causing the appellate court to deem Calderon’s appeal as abandoned and consequently
dismissed. Before the Court of Appeals, petitioner argued that he should only be convicted of
frustrated theft since at the time he was apprehended, he was never placed in a position to freely
dispose of the articles stolen. 20 However, in its Decision dated 19 June 2003,21 the Court of Appeals
rejected this contention and affirmed petitioner’s conviction. 22 Hence the present Petition for
Review,23 which expressly seeks that petitioner’s conviction "be modified to only of Frustrated
Theft."24
Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious
intent and his actual participation in the theft of several cases of detergent with a total value of
₱12,090.00 of which he was charged. 25 As such, there is no cause for the Court to consider a factual
scenario other than that presented by the prosecution, as affirmed by the RTC and the Court of
Appeals. The only question to consider is whether under the given facts, the theft should be deemed
as consummated or merely frustrated.
II.
In arguing that he should only be convicted of frustrated theft, petitioner cites 26 two decisions
rendered many years ago by the Court of Appeals: People v. Diño 27 and People v. Flores.28 Both
decisions elicit the interest of this Court, as they modified trial court convictions from consummated
to frustrated theft and involve a factual milieu that bears similarity to the present case. Petitioner
invoked the same rulings in his appeal to the Court of Appeals, yet the appellate court did not
expressly consider the import of the rulings when it affirmed the conviction.
It is not necessary to fault the Court of Appeals for giving short shrift to the Diño and Flores rulings
since they have not yet been expressly adopted as precedents by this Court. For whatever reasons,
the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet
despite the silence on our part, Diño and Flores have attained a level of renown reached by very few
other appellate court rulings. They are comprehensively discussed in the most popular of our
criminal law annotations,29 and studied in criminal law classes as textbook examples of frustrated
crimes or even as definitive of frustrated theft.
More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that populate
criminal law exams more than they actually occur in real life. Indeed, if we finally say that Diño and
Flores are doctrinal, such conclusion could profoundly influence a multitude of routine theft
prosecutions, including commonplace shoplifting. Any scenario that involves the thief having to exit
with the stolen property through a supervised egress, such as a supermarket checkout counter or a
parking area pay booth, may easily call for the application of Diño and Flores. The fact that lower
courts have not hesitated to lay down convictions for frustrated theft further validates that Diño and
Article 6

Flores and the theories offered therein on frustrated theft have borne some weight in our
jurisprudential system. The time is thus ripe for us to examine whether those theories are correct
and should continue to influence prosecutors and judges in the future.
III.
To delve into any extended analysis of Diño and Flores, as well as the specific issues relative to
"frustrated theft," it is necessary to first refer to the basic rules on the three stages of crimes under
our Revised Penal Code.30
Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A
felony is consummated "when all the elements necessary for its execution and accomplishment are
present." It is frustrated "when the offender performs all the acts of execution which would produce
the felony as a consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator." Finally, it is attempted "when the offender commences the
commission of a felony directly by overt acts, and does not perform all the acts of execution which
should produce the felony by reason of some cause or accident other than his own spontaneous
desistance."
Each felony under the Revised Penal Code has a "subjective phase," or that portion of the acts
constituting the crime included between the act which begins the commission of the crime and the
last act performed by the offender which, with prior acts, should result in the consummated
crime.31 After that point has been breached, the subjective phase ends and the objective phase
begins.32 It has been held that if the offender never passes the subjective phase of the offense, the
crime is merely attempted.33 On the other hand, the subjective phase is completely passed in case of
frustrated crimes, for in such instances, "[s]ubjectively the crime is complete." 34
Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and
attempted felonies on the other. So long as the offender fails to complete all the acts of execution
despite commencing the commission of a felony, the crime is undoubtedly in the attempted stage.
Since the specific acts of execution that define each crime under the Revised Penal Code are
generally enumerated in the code itself, the task of ascertaining whether a crime is attempted only
would need to compare the acts actually performed by the accused as against the acts that
constitute the felony under the Revised Penal Code.
In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial

concession that all of the acts of execution have been performed by the offender. The critical
distinction instead is whether the felony itself was actually produced by the acts of execution. The
determination of whether the felony was "produced" after all the acts of execution had been
performed hinges on the particular statutory definition of the felony. It is the statutory definition that
generally furnishes the elements of each crime under the Revised Penal Code, while the elements in
turn unravel the particular requisite acts of execution and accompanying criminal intent.
The long-standing Latin maxim "actus non facit reum, nisi mens sit rea" supplies an important
characteristic of a crime, that "ordinarily, evil intent must unite with an unlawful act for there to be a
crime," and accordingly, there can be no crime when the criminal mind is wanting. 35 Accepted in this
jurisdiction as material in crimes mala in se,36 mens rea has been defined before as "a guilty mind, a
guilty or wrongful purpose or criminal intent,"37 and "essential for criminal liability."38 It follows that the
statutory definition of our mala in se crimes must be able to supply what the mens rea of the crime
is, and indeed the U.S. Supreme Court has comfortably held that "a criminal law that contains no
mens rea requirement infringes on constitutionally protected rights." 39 The criminal statute must also
provide for the overt acts that constitute the crime. For a crime to exist in our legal law, it is not
enough that mens rea be shown; there must also be an actus reus.40
It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the
felony is produced. As a postulate in the craftsmanship of constitutionally sound laws, it is extremely
preferable that the language of the law expressly provide when the felony is produced. Without such
provision, disputes would inevitably ensue on the elemental question whether or not a crime was
committed, thereby presaging the undesirable and legally dubious set-up under which the judiciary is
assigned the legislative role of defining crimes. Fortunately, our Revised Penal Code does not suffer
from such infirmity. From the statutory definition of any felony, a decisive passage or term is
embedded which attests when the felony is produced by the acts of execution. For example, the
statutory definition of murder or homicide expressly uses the phrase "shall kill another," thus making
it clear that the felony is produced by the death of the victim, and conversely, it is not produced if the
victim survives.
We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its
elements are spelled out as follows:
Article 6

Art. 308. Who are liable for theft.— Theft is committed by any person who, with intent to gain but
without violence against or intimidation of persons nor force upon things, shall take personal
property of another without the latter’s consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or
to its owner;
2. Any person who, after having maliciously damaged the property of another, shall remove or make
use of the fruits or object of the damage caused by him; and
3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which
belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall
gather cereals, or other forest or farm products.
Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic
means by which theft may be committed.41 In the present discussion, we need to concern ourselves
only with the general definition since it was under it that the prosecution of the accused was
undertaken and sustained. On the face of the definition, there is only one operative act of execution
by the actor involved in theft ─ the taking of personal property of another. It is also clear from the
provision that in order that such taking may be qualified as theft, there must further be present the
descriptive circumstances that the taking was with intent to gain; without force upon things or
violence against or intimidation of persons; and it was without the consent of the owner of the
property.
Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the
Revised Penal Code, namely: (1) that there be taking of personal property; (2) that said property
belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without
the consent of the owner; and (5) that the taking be accomplished without the use of violence
against or intimidation of persons or force upon things. 42
In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early
Roman law as defined by Gaius, was so broad enough as to encompass "any kind of physical
handling of property belonging to another against the will of the owner," 43 a definition similar to that
by Paulus that a thief "handles (touches, moves) the property of another." 44 However, with the
Institutes of Justinian, the idea had taken hold that more than mere physical handling, there must
further be an intent of acquiring gain from the object, thus: "[f]urtum est contrectatio rei fraudulosa,
lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve." 45 This requirement of animo
lucrandi, or intent to gain, was maintained in both the Spanish and Filipino penal laws, even as it has
since been abandoned in Great Britain. 46
In Spanish law, animo lucrandi was compounded with apoderamiento, or "unlawful taking," to
characterize theft. Justice Regalado notes that the concept of apoderamiento once had a
controversial interpretation and application. Spanish law had already discounted the belief that mere
physical taking was constitutive of apoderamiento, finding that it had to be coupled with "the intent to
appropriate the object in order to constitute apoderamiento; and to appropriate means to deprive the
lawful owner of the thing."47 However, a conflicting line of cases decided by the Court of Appeals
ruled, alternatively, that there must be permanency in the taking 48 or an intent to permanently deprive
the owner of the stolen property; 49 or that there was no need for permanency in the taking or in its
intent, as the mere temporary possession by the offender or disturbance of the proprietary rights of
the owner already constituted apoderamiento.50 Ultimately, as Justice Regalado notes, the Court
adopted the latter thought that there was no need of an intent to permanently deprive the owner of
his property to constitute an unlawful taking. 51
So long as the "descriptive" circumstances that qualify the taking are present, including animo
lucrandi and apoderamiento, the completion of the operative act that is the taking of personal
property of another establishes, at least, that the transgression went beyond the attempted stage. As
applied to the present case, the moment petitioner obtained physical possession of the cases of
detergent and loaded them in the pushcart, such seizure motivated by intent to gain, completed
without need to inflict violence or intimidation against persons nor force upon things, and
accomplished without the consent of the SM Super Sales Club, petitioner forfeited the extenuating
benefit a conviction for only attempted theft would have afforded him.
On the critical question of whether it was consummated or frustrated theft, we are obliged to apply
Article 6 of the Revised Penal Code to ascertain the answer. Following that provision, the theft would
have been frustrated only, once the acts committed by petitioner, if ordinarily sufficient to produce
theft as a consequence, "do not produce [such theft] by reason of causes independent of the will of
the perpetrator." There are clearly two determinative factors to consider: that the felony is not
Article 6

"produced," and that such failure is due to causes independent of the will of the perpetrator. The
second factor ultimately depends on the evidence at hand in each particular case. The first,
however, relies primarily on a doctrinal definition attaching to the individual felonies in the Revised
Penal Code52 as to when a particular felony is "not produced," despite the commission of all the acts
of execution.
So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as
to how exactly is the felony of theft "produced." Parsing through the statutory definition of theft under
Article 308, there is one apparent answer provided in the language of the law — that theft is already
"produced" upon the "tak[ing of] personal property of another without the latter’s consent."
U.S. v. Adiao53 apparently supports that notion. Therein, a customs inspector was charged with theft
after he abstracted a leather belt from the baggage of a foreign national and secreted the item in his
desk at the Custom House. At no time was the accused able to "get the merchandise out of the
Custom House," and it appears that he "was under observation during the entire
transaction."54 Based apparently on those two circumstances, the trial court had found him guilty,
instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive, and
holding instead that the accused was guilty of consummated theft, finding that "all the elements of
the completed crime of theft are present."55 In support of its conclusion that the theft was
consummated, the Court cited three (3) decisions of the Supreme Court of Spain, the discussion of
which we replicate below:
The defendant was charged with the theft of some fruit from the land of another. As he was in the act
of taking the fruit[,] he was seen by a policeman, yet it did not appear that he was at that moment
caught by the policeman but sometime later. The court said: "[x x x] The trial court did not err [x x x ]
in considering the crime as that of consummated theft instead of frustrated theft inasmuch as nothing
appears in the record showing that the policemen who saw the accused take the fruit from the
adjoining land arrested him in the act and thus prevented him from taking full possession of the thing
stolen and even its utilization by him for an interval of time." (Decision of the Supreme Court of
Spain, October 14, 1898.)
Defendant picked the pocket of the offended party while the latter was hearing mass in a church.
The latter on account of the solemnity of the act, although noticing the theft, did not do anything to
prevent it. Subsequently, however, while the defendant was still inside the church, the offended party
got back the money from the defendant. The court said that the defendant had performed all the acts
of execution and considered the theft as consummated. (Decision of the Supreme Court of Spain,
December 1, 1897.)
The defendant penetrated into a room of a certain house and by means of a key opened up a case,
and from the case took a small box, which was also opened with a key, from which in turn he took a
purse containing 461 reales and 20 centimos, and then he placed the money over the cover of the
case; just at this moment he was caught by two guards who were stationed in another room near-by.
The court considered this as consummated robbery, and said: "[x x x] The accused [x x x] having
materially taken possession of the money from the moment he took it from the place where it had
been, and having taken it with his hands with intent to appropriate the same, he executed all the acts
necessary to constitute the crime which was thereby produced; only the act of making use of the
thing having been frustrated, which, however, does not go to make the elements of the
consummated crime." (Decision of the Supreme Court of Spain, June 13, 1882.) 56
It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the
criminal actors in all these cases had been able to obtain full possession of the personal property
prior to their apprehension. The interval between the commission of the acts of theft and the
apprehension of the thieves did vary, from "sometime later" in the 1898 decision; to the very moment
the thief had just extracted the money in a purse which had been stored as it was in the 1882
decision; and before the thief had been able to spirit the item stolen from the building where the theft
took place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of no
consequence in those cases, as it was ruled that the thefts in each of those cases was
consummated by the actual possession of the property belonging to another.
In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated
rather than consummated theft. The case is People v. Sobrevilla, 57 where the accused, while in the
midst of a crowd in a public market, was already able to abstract a pocketbook from the trousers of
the victim when the latter, perceiving the theft, "caught hold of the [accused]’s shirt-front, at the same
time shouting for a policeman; after a struggle, he recovered his pocket-book and let go of the
defendant, who was afterwards caught by a policeman." 58 In rejecting the contention that only
frustrated theft was established, the Court simply said, without further comment or elaboration:
We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-
book, and that determines the crime of theft. If the pocket-book was afterwards recovered, such
Article 6

recovery does not affect the [accused’s] criminal liability, which arose from the [accused] having
succeeded in taking the pocket-book.59
If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the
latter, in that the fact that the offender was able to succeed in obtaining physical possession of the
stolen item, no matter how momentary, was able to consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of
petitioner in this case. Yet to simply affirm without further comment would be disingenuous, as there
is another school of thought on when theft is consummated, as reflected in the Diño and Flores
decisions.
Diño was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before
Flores. The accused therein, a driver employed by the United States Army, had driven his truck into
the port area of the South Harbor, to unload a truckload of materials to waiting U.S. Army personnel.
After he had finished unloading, accused drove away his truck from the Port, but as he was
approaching a checkpoint of the Military Police, he was stopped by an M.P. who inspected the truck
and found therein three boxes of army rifles. The accused later contended that he had been stopped
by four men who had loaded the boxes with the agreement that they were to meet him and retrieve
the rifles after he had passed the checkpoint. The trial court convicted accused of consummated
theft, but the Court of Appeals modified the conviction, holding instead that only frustrated theft had
been committed.
In doing so, the appellate court pointed out that the evident intent of the accused was to let the
boxes of rifles "pass through the checkpoint, perhaps in the belief that as the truck had already
unloaded its cargo inside the depot, it would be allowed to pass through the check point without
further investigation or checking." 60 This point was deemed material and indicative that the theft had
not been fully produced, for the Court of Appeals pronounced that "the fact determinative of
consummation is the ability of the thief to dispose freely of the articles stolen, even if it were more or
less momentary."61 Support for this proposition was drawn from a decision of the Supreme Court of
Spain dated 24 January 1888 (1888 decision), which was quoted as follows:
Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la

consumacion del delito de hurto es preciso que so haga en circunstancias tales que permitan al
sustractor la libre disposicion de aquella, siquiera sea mas o menos momentaneamente, pues de
otra suerte, dado el concepto del delito de hurto, no puede decirse en realidad que se haya
producido en toda su extension, sin materializar demasiado el acto de tomar la cosa ajena. 62
Integrating these considerations, the Court of Appeals then concluded:
This court is of the opinion that in the case at bar, in order to make the booty subject to the control
and disposal of the culprits, the articles stolen must first be passed through the M.P. check point, but
since the offense was opportunely discovered and the articles seized after all the acts of execution
had been performed, but before the loot came under the final control and disposal of the looters, the
offense can not be said to have been fully consummated, as it was frustrated by the timely
intervention of the guard. The offense committed, therefore, is that of frustrated theft. 63
Diño thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the
time of apprehension is determinative as to whether the theft is consummated or frustrated. This
theory was applied again by the Court of Appeals some 15 years later, in Flores, a case which
according to the division of the court that decided it, bore "no substantial variance between the
circumstances [herein] and in [Diño]."64 Such conclusion is borne out by the facts in Flores. The
accused therein, a checker employed by the Luzon Stevedoring Company, issued a delivery receipt
for one empty sea van to the truck driver who had loaded the purportedly empty sea van onto his
truck at the terminal of the stevedoring company. The truck driver proceeded to show the delivery
receipt to the guard on duty at the gate of the terminal. However, the guards insisted on inspecting
the van, and discovered that the "empty" sea van had actually contained other merchandise as
well.65 The accused was prosecuted for theft qualified by abuse of confidence, and found himself
convicted of the consummated crime. Before the Court of Appeals, accused argued in the alternative
that he was guilty only of attempted theft, but the appellate court pointed out that there was no
intervening act of spontaneous desistance on the part of the accused that "literally frustrated the
theft." However, the Court of Appeals, explicitly relying on Diño, did find that the accused was guilty
only of frustrated, and not consummated, theft.
As noted earlier, the appellate court admitted it found "no substantial variance"
between Diño and Flores then before it. The prosecution in Flores had sought to distinguish that
case from Diño, citing a "traditional ruling" which unfortunately was not identified in the decision
itself. However, the Court of Appeals pointed out that the said "traditional ruling" was qualified by the
words "is placed in a situation where [the actor] could dispose of its contents at once." 66 Pouncing on
Article 6

this qualification, the appellate court noted that "[o]bviously, while the truck and the van were still
within the compound, the petitioner could not have disposed of the goods ‘at once’." At the same
time, the Court of Appeals conceded that "[t]his is entirely different from the case where a much less
bulk and more common thing as money was the object of the crime, where freedom to dispose of or
make use of it is palpably less restricted," 67 though no further qualification was offered what the effect
would have been had that alternative circumstance been present instead.
Synthesis of the Diño and Flores rulings is in order. The determinative characteristic as to whether
the crime of theft was produced is the ability of the actor "to freely dispose of the articles stolen, even
if it were only momentary." Such conclusion was drawn from an 1888 decision of the Supreme Court
of Spain which had pronounced that in determining whether theft had been consummated, "es
preciso que so haga en circunstancias tales que permitan al sustractor de aquella, siquiera sea mas
o menos momentaneamente." The qualifier "siquiera sea mas o menos momentaneamente" proves
another important consideration, as it implies that if the actor was in a capacity to freely dispose of
the stolen items before apprehension, then the theft could be deemed consummated. Such
circumstance was not present in either Diño or Flores, as the stolen items in both cases were
retrieved from the actor before they could be physically extracted from the guarded compounds from
which the items were filched. However, as implied in Flores, the character of the item stolen could
lead to a different conclusion as to whether there could have been "free disposition," as in the case
where the chattel involved was of "much less bulk and more common x x x, [such] as money x x x." 68
In his commentaries, Chief Justice Aquino makes the following pointed observation on the import of
the Diño ruling:
There is a ruling of the Court of Appeals that theft is consummated when the thief is able to freely
dispose of the stolen articles even if it were more or less momentary. Or as stated in another
case[69 ], theft is consummated upon the voluntary and malicious taking of property belonging to
another which is realized by the material occupation of the thing whereby the thief places it under his
control and in such a situation that he could dispose of it at once. This ruling seems to have been
based on Viada’s opinion that in order the theft may be consummated, "es preciso que se haga en
circumstancias x x x [70 ]"71
In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also
states that "[i]n theft or robbery the crime is consummated after the accused had material
possession of the thing with intent to appropriate the same, although his act of making use of the
thing was frustrated."72
There are at least two other Court of Appeals rulings that are at seeming variance with the Diño and
Flores rulings. People v. Batoon73 involved an accused who filled a container with gasoline from a
petrol pump within view of a police detective, who followed the accused onto a passenger truck
where the arrest was made. While the trial court found the accused guilty of frustrated qualified theft,
the Court of Appeals held that the accused was guilty of consummated qualified theft, finding that
"[t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that actual taking
with intent to gain is enough to consummate the crime of theft." 74
In People v. Espiritu,75 the accused had removed nine pieces of hospital linen from a supply depot
and loaded them onto a truck. However, as the truck passed through the checkpoint, the stolen
items were discovered by the Military Police running the checkpoint. Even though those facts clearly
admit to similarity with those in Diño, the Court of Appeals held that the accused were guilty of
consummated theft, as the accused "were able to take or get hold of the hospital linen and that the
only thing that was frustrated, which does not constitute any element of theft, is the use or benefit
that the thieves expected from the commission of the offense." 76
In pointing out the distinction between Diño and Espiritu, Reyes wryly observes that "[w]hen the
meaning of an element of a felony is controversial, there is bound to arise different rulings as to the
stage of execution of that felony." 77 Indeed, we can discern from this survey of jurisprudence that the
state of the law insofar as frustrated theft is concerned is muddled. It fact, given the disputed
foundational basis of the concept of frustrated theft itself, the question can even be asked whether
there is really such a crime in the first place.
IV.
The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not
consummated, theft. As we undertake this inquiry, we have to reckon with the import of this Court’s
1984 decision in Empelis v. IAC.78
As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the
premises of his plantation, in the act of gathering and tying some coconuts. The accused were
surprised by the owner within the plantation as they were carrying with them the coconuts they had
Article 6

gathered. The accused fled the scene, dropping the coconuts they had seized, and were
subsequently arrested after the owner reported the incident to the police. After trial, the accused
were convicted of qualified theft, and the issue they raised on appeal was that they were guilty only
of simple theft. The Court affirmed that the theft was qualified, following Article 310 of the Revised
Penal Code,79 but further held that the accused were guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether the theft was consummated
or frustrated was raised by any of the parties. What does appear, though, is that the disposition of
that issue was contained in only two sentences, which we reproduce in full:
However, the crime committed is only frustrated qualified theft because petitioners were not able to
perform all the acts of execution which should have produced the felony as a consequence. They
were not able to carry the coconuts away from the plantation due to the timely arrival of the owner. 80
No legal reference or citation was offered for this averment, whether Diño, Flores or the Spanish
authorities who may have bolstered the conclusion. There are indeed evident problems with this
formulation in Empelis.
Empelis held that the crime was only frustrated because the actors "were not able to perform all the
acts of execution which should have produced the felon as a consequence." 81 However, per Article 6
of the Revised Penal Code, the crime is frustrated "when the offender performs all the acts of
execution," though not producing the felony as a result. If the offender was not able to perform all the
acts of execution, the crime is attempted, provided that the non-performance was by reason of some
cause or accident other than spontaneous desistance. Empelis concludes that the crime was
frustrated because not all of the acts of execution were performed due to the timely arrival of the
owner. However, following Article 6 of the Revised Penal Code, these facts should elicit the
conclusion that the crime was only attempted, especially given that the acts were not performed
because of the timely arrival of the owner, and not because of spontaneous desistance by the
offenders.
For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if
the two sentences we had cited actually aligned with the definitions provided in Article 6 of the
Revised Penal Code, such passage bears no reflection that it is the product of the considered
evaluation of the relevant legal or jurisprudential thought. Instead, the passage is offered as if it were
sourced from an indubitable legal premise so settled it required no further explication.
Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft.
Indeed, we cannot see how Empelis can contribute to our present debate, except for the bare fact
that it proves that the Court had once deliberately found an accused guilty of frustrated theft. Even if
Empelis were considered as a precedent for frustrated theft, its doctrinal value is extremely
compromised by the erroneous legal premises that inform it, and also by the fact that it has not been
entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in
this jurisdiction. Considering the flawed reasoning behind its conclusion of frustrated theft, it cannot
present any efficacious argument to persuade us in this case. Insofar as Empelis may imply that
convictions for frustrated theft are beyond cavil in this jurisdiction, that decision is subject to
reassessment.
V.
At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de España was
then in place. The definition of the crime of theft, as provided then, read as follows:
Son reos de hurto:
1. Los que con ánimo de lucrarse, y sin volencia o intimidación en las personas ni fuerza en las
cosas, toman las cosas muebles ajenas sin la voluntad de su dueño.
2. Los que encontrándose una cosa perdida y sabiendo quién es su dueño se la apropriaren co
intención de lucro.
3. Los dañadores que sustrajeren o utilizaren los frutos u objeto del daño causado, salvo los casos
previstos en los artίculos 606, núm. 1.0; 607, núms, 1.0, 2.0 y 3.0; 608, núm. 1.0; 611; 613;
Segundo párrafo del 617 y 618.
It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court
decisions were handed down. However, the said code would be revised again in 1932, and several
Article 6

times thereafter. In fact, under the Codigo Penal Español de 1995, the crime of theft is now simply
defined as "[e]l que, con ánimo de lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueño será castigado" 82
Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, "la libre disposicion" of
the property is not an element or a statutory characteristic of the crime. It does appear that the
principle originated and perhaps was fostered in the realm of Spanish jurisprudence.
The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the
1870 Codigo Penal de España. Therein, he raised at least three questions for the reader whether
the crime of frustrated or consummated theft had occurred. The passage cited in Diño was actually
utilized by Viada to answer the question whether frustrated or consummated theft was committed
"[e]l que en el momento mismo de apoderarse de la cosa ajena, viéndose sorprendido, la arroja al
suelo."83 Even as the answer was as stated in Diño, and was indeed derived from the 1888 decision
of the Supreme Court of Spain, that decision’s factual predicate occasioning the statement was
apparently very different from Diño, for it appears that the 1888 decision involved an accused who
was surprised by the employees of a haberdashery as he was abstracting a layer of clothing off a
mannequin, and who then proceeded to throw away the garment as he fled. 84
Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of
the Supreme Court of Spain that have held to that effect. 85 A few decades later, the esteemed
Eugenio Cuello Calón pointed out the inconsistent application by the Spanish Supreme Court with
respect to frustrated theft.
Hay frustración cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de
harino del carro que los conducia a otro que tenían preparado, 22 febrero 1913; cuando el resultado
no tuvo efecto por la intervención de la policia situada en el local donde se realizó la sustracción que
impidió pudieran los reos disponer de lo sustraído, 30 de octubre 1950. Hay "por lo menos"
frustración, si existe apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril 1930;
hay frustración "muy próxima" cuando el culpable es detenido por el perjudicado acto seguido de
cometer la sustracción, 28 febrero 1931. Algunos fallos han considerado la existencia de frustración
cuando, perseguido el culpable o sorprendido en el momento de llevar los efectos hurtados, los
abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, éstos,
conforme a lo antes expuesto, son hurtos consumados. 86
Ultimately, Cuello Calón attacked the very idea that frustrated theft is actually possible:
La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa queda
de hecho a la disposición del agente. Con este criterio coincide la doctrina sentada últimamente
porla jurisprudencia española que generalmente considera consumado el hurto cuando el culpable
coge o aprehende la cosa y ésta quede por tiempo más o menos duradero bajo su poder. El hecho
de que éste pueda aprovecharse o no de lo hurtado es indiferente. El delito no pierde su carácter de
consumado aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada. No se concibe
la frustración, pues es muy dificil que el que hace cuanto es necesario para la consumación del
hurto no lo consume efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante,
declara hurtos frustrados son verdaderos delitos consumados. 87 (Emphasis supplied)
Cuello Calón’s submissions cannot be lightly ignored. Unlike Viada, who was content with replicating
the Spanish Supreme Court decisions on the matter, Cuello Calón actually set forth his own thought
that questioned whether theft could truly be frustrated, since "pues es muy dificil que el que hace
cuanto es necesario para la consumación del hurto no lo consume efectivamente." Otherwise put, it
would be difficult to foresee how the execution of all the acts necessary for the completion of the
crime would not produce the effect of theft.
This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought
that obliges us to accept frustrated theft, as proposed in Diño and Flores. A final ruling by the Court
that there is no crime of frustrated theft in this jurisdiction will not lead to scholastic pariah, for such a
submission is hardly heretical in light of Cuello Calón’s position.
Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a
fresh perspective, as we are not bound by the opinions of the respected Spanish commentators,
conflicting as they are, to accept that theft is capable of commission in its frustrated stage. Further, if
we ask the question whether there is a mandate of statute or precedent that must compel us to
adopt the Diño and Flores doctrines, the answer has to be in the negative. If we did so, it would arise
not out of obeisance to an inexorably higher command, but from the exercise of the function of
statutory interpretation that comes as part and parcel of judicial review, and a function that allows
breathing room for a variety of theorems in competition until one is ultimately adopted by this Court.
Article 6

V.
The foremost predicate that guides us as we explore the matter is that it lies in the province of the
legislature, through statute, to define what constitutes a particular crime in this jurisdiction. It is the
legislature, as representatives of the sovereign people, which determines which acts or combination
of acts are criminal in nature. Judicial interpretation of penal laws should be aligned with what was
the evident legislative intent, as expressed primarily in the language of the law as it defines the
crime. It is Congress, not the courts, which is to define a crime, and ordain its punishment. 88 The
courts cannot arrogate the power to introduce a new element of a crime which was unintended by
the legislature, or redefine a crime in a manner that does not hew to the statutory language. Due
respect for the prerogative of Congress in defining crimes/felonies constrains the Court to refrain
from a broad interpretation of penal laws where a "narrow interpretation" is appropriate. "The Court
must take heed of language, legislative history and purpose, in order to strictly determine the wrath
and breath of the conduct the law forbids."89
With that in mind, a problem clearly emerges with the Diño/Flores dictum. The ability of the offender
to freely dispose of the property stolen is not a constitutive element of the crime of theft. It finds no
support or extension in Article 308, whether as a descriptive or operative element of theft or as the
mens rea or actus reus of the felony. To restate what this Court has repeatedly held: the elements of
the crime of theft as provided for in Article 308 of the Revised Penal Code are: (1) that there be
taking of personal property; (2) that said property belongs to another; (3) that the taking be done with
intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be
accomplished without the use of violence against or intimidation of persons or force upon things. 90
Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain,
of personal property of another without the latter’s consent. While the Diño/Flores dictum is
considerate to the mindset of the offender, the statutory definition of theft considers only the
perspective of intent to gain on the part of the offender, compounded by the deprivation of property
on the part of the victim.
For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage,
the question is again, when is the crime of theft produced? There would be all but certain unanimity
in the position that theft is produced when there is deprivation of personal property due to its taking
by one with intent to gain. Viewed from that perspective, it is immaterial to the product of the felony
that the offender, once having committed all the acts of execution for theft, is able or unable to freely
dispose of the property stolen since the deprivation from the owner alone has already ensued from
such acts of execution. This conclusion is reflected in Chief Justice Aquino’s commentaries, as
earlier cited, that "[i]n theft or robbery the crime is consummated after the accused had material
possession of the thing with intent to appropriate the same, although his act of making use of the
thing was frustrated."91
It might be argued, that the ability of the offender to freely dispose of the property stolen delves into
the concept of "taking" itself, in that there could be no true taking until the actor obtains such degree
of control over the stolen item. But even if this were correct, the effect would be to downgrade the
crime to its attempted, and not frustrated stage, for it would mean that not all the acts of execution
have not been completed, the "taking not having been accomplished." Perhaps this point could
serve as fertile ground for future discussion, but our concern now is whether there is indeed a crime
of frustrated theft, and such consideration proves ultimately immaterial to that question. Moreover,
such issue will not apply to the facts of this particular case. We are satisfied beyond reasonable
doubt that the taking by the petitioner was completed in this case. With intent to gain, he acquired
physical possession of the stolen cases of detergent for a considerable period of time that he was
able to drop these off at a spot in the parking lot, and long enough to load these onto a taxicab.
Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the
moment the offender gains possession of the thing, even if he has no opportunity to dispose of the
same.92 And long ago, we asserted in People v. Avila: 93
x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated
into the physical power of the thief, which idea is qualified by other conditions, such as that the
taking must be effected animo lucrandi and without the consent of the owner; and it will be here
noted that the definition does not require that the taking should be effected against the will of the
owner but merely that it should be without his consent, a distinction of no slight importance. 94
Insofar as we consider the present question, "unlawful taking" is most material in this respect.
Unlawful taking, which is the deprivation of one’s personal property, is the element which produces
the felony in its consummated stage. At the same time, without unlawful taking as an act of
execution, the offense could only be attempted theft, if at all.
Article 6

With these considerations, we can only conclude that under Article 308 of the Revised Penal Code,
theft cannot have a frustrated stage. Theft can only be attempted or consummated.
Neither Diño nor Flores can convince us otherwise. Both fail to consider that once the offenders
therein obtained possession over the stolen items, the effect of the felony has been produced as
there has been deprivation of property. The presumed inability of the offenders to freely dispose of
the stolen property does not negate the fact that the owners have already been deprived of their
right to possession upon the completion of the taking.
Moreover, as is evident in this case, the adoption of the rule —that the inability of the offender to
freely dispose of the stolen property frustrates the theft — would introduce a convenient defense for
the accused which does not reflect any legislated intent, 95 since the Court would have carved a
viable means for offenders to seek a mitigated penalty under applied circumstances that do not
admit of easy classification. It is difficult to formulate definite standards as to when a stolen item is
susceptible to free disposal by the thief. Would this depend on the psychological belief of the
offender at the time of the commission of the crime, as implied in Diño?
Or, more likely, the appreciation of several classes of factual circumstances such as the size and
weight of the property, the location of the property, the number and identity of people present at the
scene of the crime, the number and identity of people whom the offender is expected to encounter
upon fleeing with the stolen property, the manner in which the stolen item had been housed or
stored; and quite frankly, a whole lot more. Even the fungibility or edibility of the stolen item would
come into account, relevant as that would be on whether such property is capable of free disposal at
any stage, even after the taking has been consummated.
All these complications will make us lose sight of the fact that beneath all the colorful detail, the
owner was indeed deprived of property by one who intended to produce such deprivation for
reasons of gain. For such will remain the presumed fact if frustrated theft were recognized, for
therein, all of the acts of execution, including the taking, have been completed. If the facts establish
the non-completion of the taking due to these peculiar circumstances, the effect could be to
downgrade the crime to the attempted stage, as not all of the acts of execution have been
performed. But once all these acts have been executed, the taking has been completed, causing the
unlawful deprivation of property, and ultimately the consummation of the theft.
Maybe the Diño/Flores rulings are, in some degree, grounded in common sense. Yet they do not
align with the legislated framework of the crime of theft. The Revised Penal Code provisions on theft
have not been designed in such fashion as to accommodate said rulings. Again, there is no
language in Article 308 that expressly or impliedly allows that the "free disposition of the items
stolen" is in any way determinative of whether the crime of theft has been produced. Diño itself did
not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was
ultimately content in relying on Diño alone for legal support. These cases do not enjoy the weight of
stare decisis, and even if they did, their erroneous appreciation of our law on theft leave them
susceptible to reversal. The same holds true of Empilis, a regrettably stray decision which has not
since found favor from this Court.
We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As
petitioner has latched the success of his appeal on our acceptance of the Diño and Flores rulings,
his petition must be denied, for we decline to adopt said rulings in our jurisdiction. That it has taken
all these years for us to recognize that there can be no frustrated theft under the Revised Penal
Code does not detract from the correctness of this conclusion. It will take considerable amendments
to our Revised Penal Code in order that frustrated theft may be recognized. Our deference to Viada
yields to the higher reverence for legislative intent.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
Article 6
d. Robbery
G.R. No. L-43530 August 3, 1935
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
AURELIO LAMAHANG, defendant-appellant.
Honesto K. Bausa for appellant.

Office of the Solicitor-General Hilado for appellee.
RECTO, J.:
The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First
Instance of Iloilo, finding him guilty of attempted robbery and sentencing him to suffer two years and
four months of prision correccional and to an additional penalty of ten years and one day of prision
mayor for being an habitual delinquent, with the accessory penalties of the law, and to pay the costs
of the proceeding.
At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on
Delgado and C.R. Fuentes streets of the City of Iloilo, caught the accused in the act of making an
opening with an iron bar on the wall of a store of cheap goods located on the last named street. At
that time the owner of the store, Tan Yu, was sleeping inside with another Chinaman. The accused
had only succeeded in breaking one board and in unfastening another from the wall, when the
policeman showed up, who instantly arrested him and placed him under custody.
The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the
trial judge and the Solicitor-General, as constituting attempted robbery, which we think is erroneous.
It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which
has a logical relation to a particular, concrete offense; that, which is the beginning of the execution of
the offense by overt acts of the perpetrator, leading directly to its realization and consummation. The
attempt to commit an indeterminate offense, inasmuch as its nature in relation to its objective is
ambiguous, is not a juridical fact from the standpoint of the Penal Code. There is no doubt that in the
case at bar it was the intention of the accused to enter Tan Yu's store by means of violence, passing
through the opening which he had started to make on the wall, in order to commit an offense which,
due to the timely arrival of policeman Tomambing, did not develop beyond the first steps of its
execution. But it is not sufficient, for the purpose of imposing penal sanction, that an act objectively
performed constitute a mere beginning of execution; it is necessary to establish its unavoidable
connection, like the logical and natural relation of the cause and its effect, with the deed which, upon
its consummation, will develop into one of the offenses defined and punished by the Code; it is
necessary to prove that said beginning of execution, if carried to its complete termination following
its natural course, without being frustrated by external obstacles nor by the voluntary desistance of
the perpetrator, will logically and necessarily ripen into a concrete offense. Thus, in case of robbery,
in order that the simple act of entering by means of force or violence another person's dwelling may
be considered an attempt to commit this offense, it must be shown that the offender clearly intended
to take possession, for the purpose of gain, of some personal property belonging to another. In the
instant case, there is nothing in the record from which such purpose of the accused may reasonably
be inferred. From the fact established and stated in the decision, that the accused on the day in
question was making an opening by means of an iron bar on the wall of Tan Yu's store, it may only
be inferred as a logical conclusion that his evident intention was to enter by means of force said
store against the will of its owner. That his final objective, once he succeeded in entering the store,
was to rob, to cause physical injury to the inmates, or to commit any other offense, there is nothing
in the record to justify a concrete finding.
1avvphil.ñet
It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the
material damage is wanting, the nature of the action intended (accion fin) cannot exactly be
ascertained, but the same must be inferred from the nature of the acts executed (accion
medio). Hence, the necessity that these acts be such that by their very nature, by the facts to
Article 6

which they are related, by the circumstances of the persons performing the same, and by the
things connected therewith, they must show without any doubt, that they are aimed at the
consummation of a crime. Acts susceptible of double interpretation , that is, in favor as well
as against the culprit, and which show an innocent as well as a punishable act, must not and
can not furnish grounds by themselves for attempted nor frustrated crimes. The relation
existing between the facts submitted for appreciation and the offense which said facts are
supposed to produce must be direct; the intention must be ascertained from the facts and
therefore it is necessary, in order to avoid regrettable instances of injustice, that the mind be
able to directly infer from them the intention of the perpetrator to cause a particular injury.
This must have been the intention of the legislator in requiring that in order for an attempt to
exist, the offender must commence the commission of the felony directly by overt acts, that is
to say, that the acts performed must be such that, without the intent to commit an offense,
they would be meaningless.
Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the
commission of the offense, are not punished except when they are aimed directly to its execution,
and therefore they must have an immediate and necessary relation to the offense."
Considering — says the Supreme Court of Spain in its decision of March 21, 1892 — that in
order to declare that such and such overt acts constitute an attempted offense it is necessary
that their objective be known and established, or that said acts be of such nature that they
themselves should obviously disclose the criminal objective necessarily intended, said
objective and finality to serve as ground for the designation of the offense: . . . .
In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does
not constitute attempted robbery but attempted trespass to dwelling (People vs. Tayag and Morales,
59 Phil., 606, and decisions of the Supreme Court of Spain therein cited). Under article 280 of the
Revised Penal Code, this offense is committed when a private person shall enter the dwelling of
another against the latter's will. The accused may be convicted and sentenced for an attempt to
commit this offense in accordance with the evidence and the following allegation contained in the
information: "... the accused armed with an iron bar forced the wall of said store by breaking a board
and unfastening another for the purpose of entering said store ... and that the accused did not
succeed in entering the store due to the presence of the policeman on beat Jose Tomambing, who
upon hearing the noise produced by the breaking of the wall, promptly approached the accused ... ."
Under the circumstances of this case the prohibition of the owner or inmate is presumed. (U.S. vs.
Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21
Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against the accused
must be taken into consideration the aggravating circumstances of nighttime and former convictions,
— inasmuch as the record shows that several final judgments for robbery and theft have been
rendered against him — and in his favor, the mitigating circumstance of lack of instruction. The
breaking of the wall should not be taken into consideration as an aggravating circumstance
inasmuch as this is the very fact which in this case constitutes the offense of attempted trespass to
dwelling.
The penalty provided by the Revised Penal Code for the consummated offense of trespass to
dwelling, if committed with force, is prision correccional in its medium and maximum periods and a
fine not exceeding P1,000 (art. 280, par. 2); therefore the penalty corresponding to attempted
trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its minimum and medium
periods. Because of the presence of two aggravating circumstances and one mitigating
circumstance the penalty must be imposed in its maximum period. Pursuant to article 29 of the same
Code, the accused is not entitled to credit for one-half of his preventive imprisonment.
Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of
attempted trespass to dwelling, committed by means of force, with the aforesaid aggravating and
mitigating circumstances and sentenced to three months and one day of arresto mayor, with the
accessory penalties thereof and to pay the costs.
Article 6
G.R. No. 86163 April 26, 1990
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO CANASARES, and SIMPLICIO
CANASARES, BIENVENIDO SALVILLA, defendant-appellant.
The Solicitor General for plaintiff-appellee.

Resurreccion S. Salvilla for defendant-appellant.
MELENCIO-HERRERA, J.:
Accused Bienvenido Salvilla alone appeals from the Decision of the Regional Trial Court, Branch 28,
Iloilo City, * dated 29 August 1988, in Criminal Case No. 20092, finding him and his co-accused
Reynaldo, Ronaldo and Simplicio, all surnamed Canasares, guilty beyond reasonable doubt of the
crime of "Robbery with Serious Physical Injuries and Serious Illegal Detention" and sentencing them
to suffer the penalty of reclusion perpetua.
The Information filed against them reads:
The undersigned City Fiscal accuses BIENVENIDO SALVILLA, REYNALDO CANASARES,

RONALDO CANASARES, and SIMPLICIO CANASARES, whose maternal surnames, dated
and places of birth cannot be ascertained of the crime of ROBBERY WITH SERIOUS
PHYSICAL INJURIES AND SERIOUS ILLEGAL DETENTION (Art, 294, paragraph 3, in
conjunction with Article 267 of the Revised Penal Code), committed as follows:
That on or about the 12th day of April, 1986, in the City of Iloilo, Philippines and within the
jurisdiction of this Court, said accused, conspiring and confederating among themselves,
working together and helping one another, armed with guns and handgrenade and with the
use of violence or intimidation employed on the person of Severino Choco, Mary Choco,
Mimie Choco and Rodita Hablero did then and there wilfully, unlawfully and criminally take
and carry away, with intent of gain, cash in the amount of P20,000.00, two (2) Men's wrist
watches, one (1) Lady's Seiko quartz wrist watch and one (1) Lady's Citizen wrist watch and
assorted jewelries, all valued at P50,000.00; that on the occasion and by reason of said
robbery, Mary Choco suffered serious physical injuries under paragraph 2 of Article 263,
Bienvenido Salvilla likewise suffered serious physical injuries and Reynaldo Canasares also
suffered physical injuries; that the said accused also illegally detained, at the compound of
the New Iloilo Lumber Company, Iznart Street, Iloilo City, Severino Choco, owner/proprietor
of said Lumber Company, Mary Choco, Mimie Choco, who is a minor, being 15 years of age,
and Rodita Hablero, who is a salesgirl at said Company; that likewise on the occasion of the
robbery, the accused also asked and were given a ransom money of P50,000.00; that the
said crime was attended by aggravating circumstances of band, and illegal possession of
firearms and explosives; that the amount of P20,000.00, the ransom money of P50,000.00,
two (2) Men's wrist watches, two (2) lady's wrist watches, one (1) .38 caliber revolver and
one (1) live grenade were recovered from the accused; to the damage and prejudice of the
New Iloilo Lumber Company in the amount of P120,000.00.
The evidence for the prosecution may be re-stated as follows:
On 12 April 1986, a robbery was staged by the four accused at the New Iloilo Lumber Yard at about
noon time. The plan was hatched about two days before. The accused were armed with homemade
guns and a hand grenade. When they entered the establishment, they met Rodita Hablero an
employee thereat who was on her way out for her meal break and announced to her that it was a
hold-up. She was made to go back to the office and there Appellant Salvilla pointed his gun at the
owner, Severino Choco, and his two daughters, Mary and Mimie the latter being a minor 15 years of
age, and told the former that all they needed was money. Hearing this, Severino told his daughter,
Article 6

Mary, to get a paper bag wherein he placed P20,000.00 cash (P5,000.00, according to the defense)
and handed it to Appellant. Thereafter, Severino pleaded with the four accused to leave the
premises as they already had the money but they paid no heed. Instead, accused Simplicio
Canasares took the wallet and wristwatch of Severino after which the latter, his two daughters, and
Rodita, were herded to the office and kept there as hostages.
At about 2:00 o'clock of the same day, the hostages were allowed to eat. The four accused also took
turns eating while the others stood guard. Then, Appellant told Severino to produce P100,000.00 so
he and the other hostages could be released. Severino answered that he could not do so because it
was a Saturday and the banks were closed.
In the meantime, police and military authorities had surrounded the premises of the lumber yard.
Major Melquiades B. Sequio Station Commander of the INP of Iloilo City, negotiated with the
accused using a loud speaker and appealed to them to surrender with the assurance that no harm
would befall them as he would accompany them personally to the police station. The accused
refused to surrender or to release the hostages.
Thereafter, OIC Mayor, Rosa Caram, of Iloilo City arrived and joined the negotiations. In her
dialogue with the accused, which lasted for about four hours, Appellant demanded P100,000.00, a
coaster, and some raincoats. She offered them P50,000.00 instead, explaining the difficulty of
raising more as it was a Saturday. Later, the accused agreed to receive the same and to release
Rodita to be accompanied by Mary Choco in going out of the office. When they were out of the door,
one of the accused whose face was covered by a handkerchief, gave a key to Mayor Caram. With
this, Mayor Caram unlocked the padlocked door and handed to Rodita the P50,000.00, which the
latter, in turn, gave to one of the accused. Rodita was later set free but Mary was herded back to the
office.
Mayor Caram, Major Sequio and even volunteer radio newscasters continued to appeal to the
accused to surrender peacefully but they refused. UItimatums were given but the accused did not
1âwphi1
budge. Finally, the police and military authorities decided to launch an offensive and assault the
place. This resulted in injuries to the girls, Mimie and Mary Choco as well as to the accused Ronaldo
and Reynaldo Canasares. Mary suffered a "macerated right lower extremity just below the knee" so
that her right leg had to be amputated. The medical certificate described her condition as "in a state
of hemorrhagic shock when she was brought in to the hospital and had to undergo several major
operations during the course of her confinement from April 13, 1986 to May 30, 1986."
For his part, Appellant Salvilla confirmed that at about noon time of 12 April 1986 he and his co-
accused entered the lumber yard and demanded money from the owner Severino Choco He
demanded P100,000.00 but was given only P5,000.00, which he placed on the counter of the office
of the lumber yard. He admitted that he and his co-accused kept Severino, his daughters, and
Rodita inside the office. He maintained, however, that he stopped his co-accused from getting the
wallet and wristwatch of Severino and, like the P5,000.00 were all left on the counter, and were
never touched by them. He claimed further that they had never fired on the military because they
intended to surrender. Appellant's version also was that during the gunfire, Severino's daughter
stood up and went outside; he wanted to stop her but he himself was hit by a bullet and could not
prevent her. Appellant also admitted the appeals directed to them to surrender but that they gave
themselves up only much later.
After trial, the Court a quo meted out a judgment of conviction and sentenced each of the accused
"to suffer the penalty of reclusion perpetua, with the accessory penalties provided by law and to pay
the costs."
Appellant Salvilla's present appeal is predicated on the following Assignments of Error:
1. The lower court erred in holding that the crime charged was consummated and in not
holding that the same was merely attempted.
2. The lower court erred in not appreciating the mitigating circumstance of voluntary
surrender."
Upon the facts and the evidence, we affirm.
The defense contends that "The complete crime of larceny (theft/robbery) as distinguished from an
attempt requires asportation or carrying away, in addition to the taking, In other words, the crime of
robbery/theft has three consecutive stages: 1) the giving 2) the taking and 3) the carrying away or
asportation And without asportation the crime committed is only attempted" (Memorandum for
Appellant Salvilla, Records, p. 317).
Article 6

There is no question that in robbery, it is required that there be a taking of personal property
belonging to another. This is known as the element of asportation the essence of which is the taking
of a thing out of the possession of the owner without his privity and consent and without the animus
revertendi (Aquino, Revised Penal Code, p. 97, citing 5 C.J. 607). In fact, if there is no actual taking,
there can be no robbery. Unlawful taking of personal property of another is an essential part of the
crime of robbery.
Appellant insists that while the "giving" has been proven, the "taking" has not. And this is because
neither he nor his three co-accused touched the P5,000.00 given by Severino nor the latter's wallet
or watch during the entire incident; proof of which is that none of those items were recovered from
their persons.
Those factual allegations are contradicted by the evidence. Rodita, the lumberyard employee,
testified that upon demand by Appellant, Severino put P20,000.00 inside a paper bag and
subsequently handed it to Appellant. In turn, accused Simplicio Canasares took the wallet and
wristwatch of Severino. In respect of the P50,000.00 from Mayor Caram, Rodita declared that the
Mayor handed the amount to her after she (the Mayor) had opened the padlocked door and that she
thereafter gave the amount to one of the holduppers. The "taking" was, therefore, sufficiently proved
(TSN, July 1, 1987, pp. 12-13, 15-16, 27-31). The money demanded, and the wallet and wristwatch
were within the dominion and control of the Appellant and his co-accused and completed the taking.
The State established a "taking" sufficient to support a conviction of robbery even though the
perpetrators were interrupted by police and so did not pick up the money offered by the
victim, where the defendant and an accomplice, armed with a knife and a club respectively,
had demanded the money from the female clerk of a convenience store, and the clerk had
complied with their instructions and placed money from the register in a paper bag and then
placed the bag on the counter in front of the two men; these actions brought the
money within the dominion and control of defendant and completed the taking. (Johnson vs.
State, 432 So 2d 758).
"Severance of the goods from the possession of the owner and absolute control of the
property by the taker, even for an instant, constitutes asportation (Adams vs.
Commonwealth, 154 SW 381; State vs. Murray, 280 SW 2d 809; Mason vs. Commonwealth,
105 SE 2d 149) [Emphasis supplied].
It is no defense either that Appellant and his co-accused had no opportunity to dispose of the
personalities taken. That fact does not affect the nature of the crime, From the moment the offender
gained possession of the thing, even if the culprit had no opportunity to dispose of the same, the
unlawful taking is complete (Reyes, Revised Penal Code Annotated, Book II, 1981 ed., p. 594).
The crime is consummated when the robber acquires possession of the property, even if for
a short time, and it is not necessary that the property be taken into the hands of the robber,
or that he should have actually carried the property away, out of the physical presence of the
lawful possessor, or that he should have made his escape with it" (People vs. Quinn, 176 P
2d 404; Woods vs. State, 220 SW 2d 644; People vs. Beal, 39 P 2d 504; People vs. Clark,
160 P 2d 553).
Contrary to Appellant's submission, therefore, a conviction for consummated and not merely
attempted Robbery is in order.
It is the contention of Appellant that Rodita could not have seen the taking because the place was
dark since the doors were closed and there were no windows. It will be recalled, however, that
Rodita was one of the hostages herself and could observe the unfolding of events. Her failure to
mention the taking in her sworn statement would not militate against her credibility, it being settled
that an affidavit is almost always incomplete and inaccurate and does not disclose the complete
facts for want of inquiries or suggestions (People vs. Andaya, G.R. No. L-63862, 31 July 1987, 152
SCRA 570; People vs. Tan, et al., 89 Phil. 337 [1951]).
The fact, too, that Rodita was an employee of Severino would not lessen her credibility. The defense
has not proven that she was actuated by any improper motive in testifying against the accused.
In the last analysis, the basic consideration centers around the credibility of witnesses in respect of
which the findings of the Trial Court are entitled to great weight as it was in a superior position to
assess the same in the course of the trial (see People vs. Ornoza G.R. No. L-56283, 30 June 1987,
151 SCRA 495; People vs. Alcantara, G.R. No. L-38042, 30 June 1987, 151 SCRA 326).
Anent the second assignment of error, the "surrender" of the Appellant and his co-accused cannot
be considered in their favor to mitigate their liability. To be mitigating, a surrender must have the
following requisites: (a) that the offender had not been actually arrested; (b) that the offender
Article 6

surrendered himself to a person in authority or to his agent; and (c) that the surrender was voluntary
(People vs. Canamo, G.R. No. L-62043, 13 August 1985, 138 SCRA 141).
The "surrender" by the Appellant and his co-accused hardly meets these requirements. They were,
indeed, asked to surrender by the police and military authorities but they refused until only much
later when they could no longer do otherwise by force of circumstances when they knew they were
completely surrounded and there was no chance of escape. The surrender of the accused was held
not to be mitigating as when he gave up only after he was surrounded by the constabulary and
police forces (People vs. Sigayan et al., G.R. Nos. L-18523-26, 30 April 1966, 16 SCRA 839; People
vs. Mationg G.R. No. L-33488, 29 March 1982, 113 SCRA 167). Their surrender was not
spontaneous as it was motivated more by an intent to insure their safety. And while it is claimed that
they intended to surrender, the fact is that they did not despite several opportunities to do so. There
is no voluntary surrender to speak of (People vs. Dimdiman 106 Phil. 391 [1959]).
All told, the assigned errors remain unsubstantiated and we find the guilt of the accused-appellant,
Bienvenido Salvilla, established beyond reasonable doubt.
Although unassigned as an error, we deem it necessary to turn now to the nature of the linked
offenses involved and the penalty imposed by the Trial Court.
Appellant and his co-accused were charged in the Information with "Robbery with Serious Physical
Injuries and Serious Illegal Detention ("Art. 295, par. 3, in conjunction with Art. 267, RPC )and
sentenced to reclusion perpetua. We agree with the Trial Court that a complex crime under Article
48 of the Revised Penal Code has been committed such that the penalty for the more serious
offense of Serious Illegal Detention (Art. 267, Revised Penal Code), or "reclusion perpetua to death,"
is to be imposed instead of the penalty prescribed for Robbery with Serious Physical Injuries (Art.
294 (3), which is reclusion temporal.
Under Article 48, a complex crime arises "when an offense is a necessary means for committing the
other." The term "necessary means" does not connote indispensable means for if it did then the
offense as a "necessary means" to commit another would be an indispensable element of the latter
and would be an ingredient thereof. The phrase "necessary means" merely signifies that one crime
is committed to facilitate and insure the commission of the other (Aquino, Revised Penal Code, Vol.
I, 1987 ed., p. 624, citing Dissent, Montemayor, J., Amado Hernandez, 99 Phil. 515). In this case,
the crime of Serious Illegal Detention was such a "necessary means" as it was selected by Appellant
and his co-accused to facilitate and carry out more effectively their evil design to stage a robbery.
The facts of this case differ from those in People vs. Astor, et al. (G.R. Nos. L-71765-66, 29 April
1987, 149 SCRA 325) where the accused were convicted of Robbery but acquitted in the case for
Serious Illegal Detention and where it was held that "the detention is absorbed in the crime of
robbery." For one, in Astor, there were two (2) separate Informations filed, one for Robbery and
another for Serious Illegal Detention. In the present case, only one Information was filed charging
the complex offense. For another, in Astor, the robbery had already been consummated and the
detention was merely to forestall the capture of the robbers by the police. Not so in this case, where
the detention was availed of as a means of insuring the consummation of the robbery. Further,
in Astor, the detention was only incidental to the main crime of robbery so that it was held therein:
. . . were appellants themselves not trapped by the early arrival of the police at the scene of
the crime, they would have not anymore detained the people inside since they have already
completed their job. Obviously, appellants were left with no choice but to resort to detention
of these people as security, until arrangements for their safe passage were made. This is not
the crime of illegal detention punishable under the penal laws but an act of restraint in order
to delay the pursuit of the criminals by peace officers (People v. Sol, 9 Phil. 265; People v.
Uday 55 Phil. 167, cited in the Revised Penal Code, Aquino, Vol. 3, 1976 ed., p. 1337).
Where the victims in a robbery case were detained in the course of robbery, the detention is
absorbed by the crime of robbery (P. v. Baysa, 92 Phil. 1008, id.). In the case at bar, the
detention was only incidental to the main crime of robbery, and although in the course
thereof women and children were also held, that threats to kill were made, the act should not
be considered as a separate offense. Appellants should only be held guilty of robbery.
In contract, the detention in the case at bar was not only incidental to the robbery but was a
necessary means to commit the same. After the amount of P20,000.00 was handed to Appellant,
1âwphi1
the latter and his co-accused still refused to leave. The victims were then taken as hostages and the
demand to produce an additional P100,000.00 was made as a prerequisite for their release. The
detention was not because the accused were trapped by the police nor were the victims held as
security against the latter. The detention was not merely a matter of restraint to enable the
malefactors to escape, but deliberate as a means of extortion for an additional amount. The police
and other authorities arrived only much later after several hours of detention had already passed.
And, despite appeals to appellant and his co-accused to surrender, they adamantly refused until the
Article 6

amount of P100,000.00 they demanded could be turned over to them. They even considered
P50,000.00, the amount being handed to them, as inadequate.
The foregoing features also distinguish this case from those of U.S. v. Sol, 9 Phil. 265 [1907] where
the restraint was for no other purpose than to prevent the victims from reporting the crime to the
authorities; from People v. Gamboa, 92 Phil. 1085 [1953] where the victims were taken to a place
one kilometer away and shot in order to liquidate the witnesses to the robbery; from People v.
Baysa, 92 Phil. 1008 [1953]; People v. Manzanilla, 43 Phil. 167 [1922], all of which cases were cited
in Astor and where the victims were only incidentally detained so that the detention was deemed
absorbed in robbery.
In other words, unlike in the above cases, the elements of the offense of Serious Illegal Detention
are present in this case. The victims were illegally deprived of their liberty. Two females (Mary and
Minnie) and a minor (Minnie), a specified circumstance in Article 267 (3), were among those
detained. The continuing detention was also for the purpose of extorting ransom, another listed
circumstance in Article 267 (last parag.) not only from the detained persons themselves but even
from the authorities who arrived to rescue them.
It follows then that as the detention in this case was not merely incidental to the robbery but a
necessary means employed to facilitate it, the penalty imposed by the Trial Court is proper.
WHEREFORE, the judgment appealed from is hereby AFFIRMED. Proportionate costs.
SO ORDERED.
Paras, Padilla Sarmiento and Regalado JJ., concur.

Article 6
Murder
G.R. NO. 157057 June 26, 2007
LEONIDAS EPIFANIO Y LAZARO, Petitioner,

vs.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court
assailing the Decision1 dated May 22, 2002 of the Court of Appeals (CA) in CA-G.R. CR No. 17995
which affirmed the Decision2 dated July 5, 1994 of the Regional Trial Court, Branch 4, Panabo,
Davao (RTC) in Criminal Case No. 91-15 finding Leonidas Epifanio y Lazaro (petitioner) guilty of
Frustrated Murder, and the CA Resolution3 dated January 14, 2003 which denied petitioner's Motion
for Reconsideration.
The facts of the case, as found by the RTC and the CA, are as follows:
At around 9:00 o'clock in the evening of August 15, 1990, Crisaldo Alberto (Crisaldo) and his cousin,
Allan Perez (Allan), were walking to their respective homes in Kilometer 7, Del Monte, Samal, Davao
after spending time at the house of Crisaldo's father. Since the pavement going to Crisaldo's house
followed a narrow pathway along the local shrubs called banganga, Allan walked ahead of Crisaldo
at a distance of about three (3) meters.4 Suddenly, Crisaldo felt the piercing thrust of a bladed
weapon on his back, which caused him to cry out in pain. He made a quick turnaround and saw his
attacker, petitioner, also known as "Iyo (Uncle) Kingkoy." Petitioner stabbed Crisaldo again but only
hit the latter's left arm.5
When Allan heard Crisaldo's outcry, he rushed to Crisaldo's side and said, "Iyo Kingkoy (Uncle
Kingkoy), why did you stab Saldo?" which caused petitioner to run away. 6 Allan then brought
Crisaldo to his father's house where Crisaldo's wounds were wrapped in a blanket. Crisaldo was
then brought to the Peñaplata Hospital where he was given first aid and then transferred to the
Davao Medical Center where he stayed for three weeks to recuperate from his wounds. 7 The
attending physician, Santiago Aquino, issued a Medical Certificate dated September 4, 1990, with
the following findings:
1. Stab wound (R) scapular area (Medial border) at level 5-7th ICS (L) arm Medial aspect M3rd
2. Fracture 7th and 8th rib, posterior, right.
Probable healing time will be 15-30 days barring complication. 8
Subsequently, petitioner was charged with Frustrated Murder in Criminal Case No. 91-15. The
Information dated January 4, 1991 reads:
That on or about August 15, 1990, in the Municipality of Samal, Province of Davao, Philippines, and
within the jurisdiction of the Honorable Court, the above-named accused, with treachery and evident
premeditation, with intent to kill, armed with a knife, did then and there willfully, unlawfully, and
feloniously attack, assault and stab one Crisaldo Alberto, thereby inflicting upon him wounds which
ordinarily would have caused his death, thus the accused performed all the acts of execution which
would produce the crime of murder, as a consequence but which, nevertheless, did not produce it by
reason of some causes independent of the will of the accused, that is, by the timely and able
medical assistance rendered to said Crisaldo Alberto, and further causing actual, moral and
compensatory damages to the offended party.
Contrary to law.9
Article 6

During his arraignment on June 25, 1991, petitioner, with the assistance of counsel, pleaded "not
guilty."10
Petitioner's defense consisted mainly of denial. He claims that at 7:00 o'clock in the morning of
August 15, 1990, he went to Anonang, within the Municipality of Kaputian, and harvested coconuts
by climbing the coconut trees; that he went back home at 4:30 in the afternoon and he slept at 8:00
o'clock in the evening; that while he was sleeping, his wife awakened him because Salvador Epifanio
(Salvador) was asking for help, as somebody was hacked, and he went to the place of incident with
Salvador; that he found out that Crisaldo was already wrapped in cloth and he asked Crisaldo who
was responsible for stabbing him, but he did not answer; that they loaded Crisaldo in the jeep to take
him to the nearby hospital; that he and Salvador took a ride with Crisaldo up to Del Monte where the
two of them alighted and reported the incident to the barangay captain; that the following morning,
he went to Anonang to harvest coconuts; that at around 1:00 o'clock in the afternoon when he
arrived home, policemen Barraga and Labrador were in his house and told him that he was the
suspect in the stabbing incident; that he was detained but he was not investigated anymore and was
ordered to go home.11
On July 5, 1994, the RTC rendered its Decision12 convicting the petitioner, the dispositive portion of
which reads:
IN THE LIGHT OF THE FOREGOING, finding the accused, Leonidas Epifanio y Lazaro guilty
beyond reasonable doubt of the crime of Frustrated Murder punishable under Article 248 in relation
to Article 6 of the Revised Penal Code, the Court hereby sentence this accused to an indeterminate
imprisonment of SIX (6) YEARS and ONE (1) DAY of prision mayor as minimum to TEN (10)
YEARS of prision mayor as maximum together with the accessory penalties provided by law, and to
pay the costs.
Accused is hereby ordered to indemnify Crisaldo Alberto the sum of P6,000.00 by way of damages.
SO ORDERED.13
Petitioner appealed his conviction to the CA, docketed as CA-G.R. CR No. 17995. 14 On May 22,
2002, the CA rendered a Decision15 affirming in toto the Decision of the RTC.
Petitioner filed a Motion for Reconsideration 16 but it was denied by the CA in a Resolution17 dated
January 14, 2003.
Petitioner filed the present petition raising a sole issue for resolution, to wit:
WHETHER THE GUILT OF THE PETITIONER FOR THE CRIME OF FRUSTRATED MURDER
WAS PROVEN BEYOND REASONABLE DOUBT.18
Petitioner does not seek the reversal of his conviction but only that it be for the lesser offense of
attempted murder. He contends that there is no evidence that the injuries sustained by Crisaldo
were life-threatening or would have caused his death had it not been for timely medical intervention
since the medical certificate only stated that the healing time of the wounds sustained by Crisaldo
was "15-30 days barring complication", with no notation or testimony of the attending physician that
any of the injuries was life-threatening.
The Office of the Solicitor General (OSG), on the other hand, contends that the failure to present the
doctor to testify on the nature of the wounds suffered by Crisaldo was not raised as an issue in the
RTC; that petitioner is now barred from raising it in the present petition for review without offending
the basic rules of fair play, justice and due process; that petitioner did not object to the admissibility
of the medical certificate when it was offered in evidence; that the crime is frustrated murder since
petitioner performed "all the acts of execution"; that the three-week length of stay in the hospital of
Crisaldo is not determinative of whether or not the wounds are fatal.
The petition is impressed with merit.
The non-presentation of the doctor to testify on the nature of the wounds, while not raised as an
issue in the RTC, does not bar the petitioner from raising it on appeal. It is a well-settled rule that an
appeal in a criminal case throws the whole case wide open for review and the reviewing tribunal can
correct errors, though unassigned in the appealed judgment, or even reverse the trial court’s
decision on the basis of grounds other than those that the parties raised as errors. 19
It must be stressed that it is not the gravity of the wounds alone which determines whether a felony
is attempted or frustrated, but whether the assailant had passed the subjective phase in the
commission of the offense.
Article 6

In the leading case of United States v. Eduave,20 Justice Moreland, speaking for the Court,
distinguished an attempted from a frustrated felony. He said that to be an attempted crime, the
purpose of the offender must be thwarted by a foreign force or agency which intervenes and
compels him to stop prior to the moment when he has performed all the acts which should produce
the crime as a consequence, which act it is his intention to perform. 21
The subjective phase in the commission of a crime is that portion of the acts constituting the crime
included between the act which begins the commission of the crime and the last act performed by
the offender which, with prior acts, should result in the consummated crime. Thereafter, the phase is
objective.22
In case of an attempted crime, the offender never passes the subjective phase in the commission of
the crime. The offender does not arrive at the point of performing all of the acts of execution which
should produce the crime. He is stopped short of that point by some cause apart from his voluntary
desistance.23
On the other hand, a crime is frustrated when the offender has performed all the acts of execution
which should result in the consummation of the crime. The offender has passed the subjective phase
in the commission of the crime. Subjectively, the crime is complete. Nothing interrupted the offender
while passing through the subjective phase. He did all that was necessary to consummate the crime;
however, the crime is not consummated by reason of the intervention of causes independent of the
will of the offender.24
In homicide cases, the offender is said to have performed all the acts of execution if the wound
inflicted on the victim is mortal and could cause the death of the victim barring medical intervention
or attendance.25 If one inflicts physical injuries on another but the latter survives, the crime committed
is either consummated physical injuries, if the offender had no intention to kill the victim; or frustrated
or attempted homicide or frustrated murder or attempted murder if the offender intends to kill the
victim.26
Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of weapons used in
the commission of the crime; (c) the nature and number of wounds inflicted on the victim; (d) the
manner the crime was committed; and (e) words uttered by the offender at the time the injuries were
inflicted by him on the victim.27
In the present case, the intent to kill is very evident and was established beyond reasonable doubt
through the unwavering testimony of Crisaldo on the manner of execution of the attack as well as the
number of wounds he sustained. Crisaldo was stabbed from behind by petitioner. When Crisaldo
turned around, petitioner continued his assault, hitting Crisaldo on the left arm as the latter tried to
defend himself. The treacherous manner in which petitioner perpetrated the crime is shown not only
by the sudden and unexpected attack upon the unsuspecting victim but also by the deliberate
manner in which the assault was perpetrated. 28
Nonetheless, petitioner failed to perform all the acts of execution, because Allan came to the aid of
Crisaldo and petitioner was forced to scamper away. He did not voluntarily desist from stabbing
Crisaldo, but he had to stop stabbing when Allan rushed to help Crisaldo and recognized petitioner.
Thus, the subjective phase of the crime had not been completed.
Moreover, the prosecution failed to present testimonial evidence on the nature of the wounds
sustained by Crisaldo. The Court has discussed the importance of ascertaining the degree of injury
sustained by a victim in People v. Matyaong,29 thus:
In considering the extent of injury done, account must be taken of the injury to the function of the
various organs, and also the danger to life. A division into mortal and nonmortal wounds, if it could
be made, would be very desirable; but the unexpected complications and the various extraneous
causes which give gravity to the simplest cases, and, on the other hand, the favorable termination of
some injuries apparently the most dangerous, render any such classification impracticable. The
general classification into slight, severe, dangerous, and mortal wounds may be used, but the
possibility of the slight wound terminating with the loss of the person’s life, and the apparently mortal
ending with only a slight impairment of some function, must always be kept in mind. x x x
The danger to life of any wound is dependent upon a number of factors: the extent of the injury, the
form of the wound, the region of the body affected, the blood vessels, nerves, or organs involved,
the entrance of disease-producing bacteria or other organisms into the wound, the age and
constitution of the person injured, and the opportunities for administering proper surgical treatment. x
x x30
No evidence in this case was introduced to prove that Crisaldo would have died from his wound
without timely medical attendance. It is well-settled that where there is nothing in the evidence to
Article 6

show that the wound would be fatal if not medically attended to, the character of the wound is
doubtful; hence, the doubt should be resolved in favor of the accused and the crime committed by
him may be declared as attempted, not frustrated, murder. 31
Accordingly, the imposable penalty for the crime of attempted murder, following Article 51 of the
Revised Penal Code, is prision correccional in its maximum period to prision mayor in its medium
period. Applying the Indeterminate Sentence Law, the minimum of the penalty to be imposed should
be within the range of arresto mayor in its maximum period to prision correccional in its medium
period, and the maximum of the penalty to be imposed should be within the range of prision
correccional in its maximum period to prision mayor in its medium period. Since no generic
aggravating or mitigating circumstance attended the commission of the crime of attempted murder,
the penalty should be two (2) years and four (4) months of prision correccional, as minimum; and
eight (8) years of prision mayor, as maximum.
Anent the award of ₱6,000.00 as damages, the Court notes that the receipts showing the expenses
incurred during Crisaldo's hospitalization amounted only to ₱853.50. 32 As a general rule, a party
seeking the award of actual damages must produce competent proof or the best evidence
obtainable to justify such award.33 Only substantiated and proven expenses will be recognized in
court. Nonetheless, in lieu of actual damages, the Court grants temperate damages of ₱6,000.00, as
it cannot be denied that Crisaldo incurred expenses during his three-week stay in the provincial
hospital, although the exact amount cannot be proved with certainty. 34
WHEREFORE, the Decision dated July 5, 1994 of the Regional Trial Court, Branch 4, Panabo,
Davao in Criminal Case No. 91-15 is MODIFIED to the effect that petitioner is found GUILTY of
ATTEMPTED MURDER and is sentenced to suffer an indeterminate imprisonment of 2 years and 4
months of prision correccional, as minimum, and 8 years of prision mayor, as maximum together
with the accessory penalties provided by law; and petitioner is ordered to indemnify Crisaldo Alberto
the sum of ₱6,000.00 as temperate damages, and costs.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice
Article 6
G.R. No. L-5848 April 30, 1954

vs.
SY PIO, alias POLICARPIO DE LA CRUZ, defendant-appellant.
Exequiel Zaballero, Jr. for appellant.

Assistant Solicitor General Guillermo E. Torres and Solicitor Florencio Villamor for appellee.
LABRADOR, J.:
This is an appeal from a judgment of the Court of First Instance of Manila finding the defendant-
appellant herein Sy Pio, alias Policarpio de la Cruz, guilty of frustrated murder against the person of
Tan Siong Kiap, and sentencing him to suffer an indeterminate sentence of 6 years, 1 month, and 11
days of prision mayor, to 14 years, 8 months, and 1 day of reclusion temporal, to indemnify the
offended party Tan Siong Kiap in the sum of P350, without subsidiary imprisonment in case of
insolvency, and to pay the costs. The case was appealed to the Court of Appeals, but that court
certified it to this Court under the provisions of section 17 (4) of Republic Act No. 296, on the ground
that the crime charged was committed on the same occasion that the defendant-appellant had
committed crime of murder, with which the defendant-appellant was also charged.
The evidence for the prosecution shows that early in the morning of September 3, 1949, the
defendant-appellant entered the store at 511 Misericordia, Sta Cruz, Manila. Once inside he started
firing a .45 caliber pistol that he had in his hand. The first one shot was Jose Sy. Tan Siong Kiap,
who was in the store and saw the accused enter and afterwards fire a shot at Jose Sy, asked the
defendant-appellant, "What is the idea?" Thereupon defendant-appellant turned around and fired at
him also. The bullet fired from defendant-appellant's pistol entered the right shoulder of Tan Siong
Kiap immediately ran to a room behind the store to hide. From there he still heard gunshot fired from
defendant-appellant's pistol, but afterwards defendant-appellant ran away.
Tan Siong Kiap was brought to the Chinese General Hospital, where his wound was treated. He
stayed there from September 3 to September 12, 1949, when he was released upon his request and
against the physician's advice. He was asked to return to the hospital for further treatment, and he
did so five times for a period of more than ten days. Thereafter his wound was completely healed.
He spent the sum of P300 for hospital and doctor's fees.
The defendant-appellant shot two other persons in the morning of September 3, 1949, before
shooting and wounding Tan Siong Kiap; one was Ong Pian and the other Jose Sy. On September 5
information was received by the Manila Police Department that defendant-appellant was in custody
of the Constabulary in Tarlac, so a captain of the Manila police by the name of Daniel V. Lomotan
proceeded to Tarlac. There he saw the defendant-appellant and had a conversation with him. On
this occasion defendant-appellant and had a conversation with him. On this occasion defendant-
appellant admitted to Lomotan that his victims were Tan Siong Kiap, Ong Pian, and Jose Sy. The
Constabulary in Tarlac also delivered to Lomotan the pistol used by the defendant-appellant, marked
Exhibit C, and its magazine, Exhibit C-1, both of which the Constabulary had confiscated from the
defendant-appellant. The defendant-appellant was thereupon delivered to the custody of Lomotan,
and the latter brought him to Manila, where his statement was taken down in writing. This declaration
was submitted at the time of the trial as Exhibit D, and it contains all the details of the assaults that
defendant-appellant 3 against the persons of Tan Siong Kiap, Ong Pian, and Jose Sy. This written
statement was taken down on a typewriter and afterwards signed by the defendant-appellant in both
his Chinese and Filipino names, the latter being Policarpio de la Cruz.
According to the declaration of the defendant-appellant, some months prior to September 3, 1949,
he was employed as an attendant in a restaurant belonging to Ong Pian. Defendant-appellant's wife
by the name of Vicenta was also employed by Ong Pian's partner, Eng Cheng Suy. Prior to
September 3 the relatives of his wife had been asking the latter for help, because her father was
sick. Defendant-appellant asked money from Ong Pian, but the latter could only give him P1. His
wife was able to borrow P20 from her employer, and this was sent to his wife's parents in Cebu.
Afterwards defendant-appellant was dismissed from his work at the restaurant of Ong Pian, and he
became a peddler. Ong Pian presented a list of the sums that defendant-appellant had borrowed
Article 6

from him, and these sums were deducted from the salary of his wife. Defendant-appellant did not
recognize these sums as his indebtedness, and so he resented Ong Pian's conduct.
As to Tan Siong Kiap, the confession states that a few days before September 3, 1949, defendant-
appellant had been able to realize the sum of P70 from the sales of medicine that he peddled. He
laid his money in a place in his room, but the following morning he found that it had disappeared
from the place in which he had placed it. Tan Siong Kiap and Jose Sy, upon the discovery of the loss
of money, told defendant-appellant that he must have given the money to his wife, and that nobody
had stolen it. After this incident of the loss, the defendant-appellant used to hear Tan Siong Kiap and
Jose Sy and other Chinamen say that the money had not been actually stolen, but that he lost it in
gambling. Because of these accusations against him, he nurtured resentment against both Tan
Siong Kiap and Jose Sy.
So early in the morning of September 3, while a Chinaman by the name of Ngo Cho, who the
possessor of a caliber .45 pistol, was away from his room, defendant-appellant got his pistol and
tucked it in his belt. With this pistol he went to the restaurant at 822 Ongpin, and there shot Ong
Pian. After shooting him, he proceeded to 511 Misericordia, in store where Jose Sy and Tan Siong
Kiap were, and there he fired at them. Then he escaped to Legarda Street, in Sampaloc, where he
borrowed P1 from his relatives. From there he went to Malabon, to the house of his mother, to whom
he told he had killed two persons and from he asked money.
The foregoing is the substance of the written declaration made by the defendant-appellant in Exhibit
D on September 6, 1949. At the time of the trial, however, he disowned the confession and
explained that he signed it without having read its contents. He declared that it was not he who shot
the three victims, but it was one by the name of Chua Tone, with whom he had previously connived
to kill the three other victims. He introduced no witnesses, however, to support his denial. Neither did
he deny that he admitted before Captain Lomotan having killed the three persons, or having been
found in Tarlac in possession of the caliber .45 pistol, Exhibit C, and its magazine, Exhibit C-1. In his
cross-examination he admitted many of the incidents mentioned in the confession, especially the
cause of his resentment against his victims Ong Pian, Jose Sy, and Tan Siong Kiap.
The trial court refused to believed his testimony, and therefore, found him guilty of the crime
charged.
On this appeal counsel for the defendant-appellant claims that the trial court erred in not finding that
Tan Siong Kiap received the shot accidentally from the same bullet that had been fired at Jose Sy,
and in finding that defendant-appellant has committed a crime distinct and separate from that of
murder for the slaying of Jose Sy. We find no merit in this contention. According to the
uncontradicted testimony of the offended party Tan Siong Kiap, when the latters saw defendant-
appellant firing shots he asked him why he was doing so, and the defendant-appellant, instead of
answering him, turned around and fired at him also. It is not true, therefore, that the shot which hit
him was fired at Sy.
It is also contended that the evidence is not sufficient to sustain the judgment of conviction. We also
find no merit in this contention. The evidence submitted to prove the charge consists of: the
uncontradicted testimony of the victim himself; the admissions made verbally by the defendant-
appellant before Captain Lomotan in Tarlac; the fact that the defendant-appellant had escaped and
was found in Tarlac; his possession of the .45 caliber pistol coupled with the fact, attested to by the
testimony of the physician who examined and treated the wounds of Tan Siong Kiap, that the
wounds found in his person must have been caused by the caliber .45 bullet; and, lastly, the
confession of the defendant-appellant himself, Exhibit D, which he was not able to impugn. As
against this mass of evidence, defendant-appellant has only made a very unbelievable story that it
was not he but another that had committed the crime charged. His admissions at the time of the trial
regarding the incidents, as well as the cause of his having assaulted his victims, coincide exactly
with the reasons given in his written confession. This shows that he had made the confession
himself, for nobody but himself could have known the facts therein stated. The claim that the offense
has not been proved beyond reasonable doubt must be dismissed.
The defendant-appellant lastly claims that the lower court also erred in sentencing him to pay an
indemnity of P350. The offended party testified that he actually spent P300 for hospital and doctor's
fees, and that he was confined in the hospital for nine days. The above facts stand uncontradicted.
This assignment of error must also be dismissed.
It is lastly contended that the defendant-appellant should be found guilty only of less serious physical
injuries instead of the crime of frustrated murder as defendant-appellant admitted in his confession in
the open court that he had a grudge against the offended party, and that he connived with another to
kill the latter. The intent to kill is also evident from his conduct in firing the shot directly at the body of
the offended party.
Article 6

But while intent to kill is conclusively proved the wound inflicted was not necessarily fatal, because it
did not touch any of the vital organs of the body. As a matter of fact, the medical certification issued
by the physician who examined the wound of the offended party at the time he went to the hospital,
states that the wound was to heal within a period of fourteen days, while the offended party actually
stayed in the hospital for nine days and continued receiving treatment thereafter five time for the
period of more than ten days, or a total of not more than thirty days. The question that needs to be
determined, therefore, is: Did the defendant-appellant perform all the acts of execution necessary to
produce the death of his victim?
In the cases of U.S. vs. Eduave, 36 Phil., 209, People vs. Dagman, 47 Phil., 768 and People vs.
Borinaga, 55 Phil., 433, this Court has held that it is not necessary that the accused actually commit
all the acts of execution necessary to produce the death of his victim, but that it is sufficient that he
believes that he has committed all said acts. In the case of People vs. Dagman, supra, the victim
was first knocked down by a stone thrown at him, then attacked with a lance, and then wounded by
bolos and clubs wielded by the accused, but the victim upon falling down feigned death, and the
accused desisted from further continuing in the assault in the belief that their victim was dead. And in
the case of People vs. Borinaga, supra, the accused stabbed his intended victim, but the knife with
which he committed the aggression instead of hitting the body of the victim, lodged in the back of the
chair in which he was seated, although the accused believed that he had already harmed him. In
both these cases this Court held that of the crime committed was that of frustrated murder, because
the subjective phase of the acts necessary to commit the offense had already passed; there was full
and complete belief on the part of the assailant that he had committed all the acts of execution
necessary to produce the death of the intended victim.
In the case at bar, however, the defendant-appellant fired at his victim, and the latter was hit, but he
was able to escape and hide in another room. The fact that he was able to escape, which appellant
must have seen, must have produced in the mind of the defendant-appellant that he was not able to
his his victim at a vital part of the body. In other words, the defendant-appellant knew that he had not
actually all the acts of execution necessary to kill his victim. Under these circumstances, it can not
be said that the subjective phase of the acts of execution had been completed. And as it does not
appear that the defendant-appellant continued in the pursuit, and as a matter of fact, he ran away
afterwards a reasonable doubt exist in our mind that the defendant-appellant had actually believed
that he has committed all the acts of execution or passed the subjective phase of the said acts. This
doubt must be resolved in favor of the defendant-appellant.
We are, therefore, not prepared to find the defendant-appellant guilty of frustrated murder, as
charged in the information. We only find him guilty of attempted murder, because he did not perform
all the acts of execution, actual and subjective, in order that the purpose and intention that he had to
kill his victim might be carried out.
Therefore, the judgment appealed from should be, as it is hereby, modified and the defendant-
appellant is found guilty of the crime of attempted murder, and the sentence imposed upon him
reduced to an indeterminate penalty of from 4 years, 2 months, and 1 day of prision correccional to
10 years of prision mayor. In all other respects the judgment is affirmed. With costs against the
defendant-appellant.
Paras, C.J., Pablo, Bengzon, Reyes, Jugo, Bautista Angelo, and Concepcion, JJ., concur.
Article 6
G.R. No. 78781-82 October 15, 1991

vs.
PEDRO RAVELO, JERRY RAVELO, BONIFACIO "PATYONG" PADILLA, ROMEO ASPIRIN,
NICOLAS GUADALUPE AND HERMIE PAHIT, accused-appellants.
The Solicitor General for plaintiff-appellee.

Robert J. Landas for acussed-appellants.
GUTIERREZ, JR., J.:
The accused Pedro Ravelo, Bonifacio "Patyong" Padilla, Romeo Aspirin, Nicolas Guadalupe and
Hermie Pahit appeal the two (2) judgments of the Regional Trial Court of Tandag, Surigao del Sur,
Branch 27, which convicted them of murder of one Reynaldo Cabrera Gaurano and of frustrated
murder of Joey Lugatiman.
In the murder case (Criminal Case No. 1187), each of the accused was sentenced to serve the
penalty of reclusion perpetua and to severally pay an indemnity of P25,000.00 to the mother of the
victim. In the frustrated murder case (Criminal Case No. 1194), each of them was sentenced to
serve the penalty of imprisonment ranging from eight (8) years and one (1) day of prision mayor as
minimum to ten (10) years of prision mayor as maximum.
The accused were all charged with kidnapping with murder and kidnapping with frustrated murder.
However, the trial court found accused-appellants guilty only of murder and frustrated murder as
convicted. The accused Josen Ravelo and Jerry Ravelo are still at large.
The present petition was originally one that sought the issuance of a writ of habeas corpus. The
Court instead resolved to treat it as an appeal in view of the near capital nature of the crimes for
which the appellants were convicted.
The accused-appellants are all membersof the Civilian Home Defense Force (CHDF) stationed at a
checkpoint near the airport at Awasian in Mabua, Tandag,Surigao del Sur. The prosecution alleged
that they stopped the two (2) victims for questioning on the suspicion that the latter were insurgents
or members of the New People's Army. (NPA).
In Criminal Case No. 1187, the accused-appellants were charged with having committed kidnapping
with murder in the following manner:
That at approximately 6:30 o'clock in the evening, May 21, 1984, in Barangay Dawis, San
Agustin Sur, municipality of Tandag, province of Surigao del Sur, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, PEDRO RAVELO, JERRY
RAVELO, BONIFACIO `Patyong' PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE,
HERMIE PAHIT and JOSEN RAVELO, conspiring, confederating, and mutually helping each
other did, then and there, wilfully, unlawfully and feloniously take, pick-up, kidnap by
meansof force, one REYNALDO CABRERA GAURANO, a minor, while the latter was
walking along Tandag Bridge at barangay Dawis, San Agustin Sur, then the above-named
accused carried away the said, Reynaldo Cabrera Gaurano to barangay Awasian and
detained, kept and locked him in a room at the house of Pedro Ravelo, one of the accused
herein, from 7:00 o'clock in the evening, May 21, 1984 to 4:00 o'clock dawn, May 22, 1984,
or a period of 10 hours under restraint and against the will of said minor, Reynaldo Cabrera
Gaurano and that the above named accused during the said period of kidnapping,
maltreated and refused to release said Reynaldo Cabrera Gaurano, and while on the same
period of time at about 4:00 o'clock dawn, May 22, 1984, at barangay Awasian, Tandag,
Surigao del Sur and within the jurisdiction of this Honorable Court, the above-named
accused, Pedro Ravelo, Jerry Ravelo, Bonifacio `Patyong' Padilla, Romeo Aspirin, Nicolas
Article 6

Guadalupe, Hermie Pahit, and Josen Ravelo, conspiring, confederating, and mutually
helping each other, armed with a pistol, armalites, and carbines, with intent to kill, with
treachery and evident premeditation did, then and there wilfully, unlawfully and feloniously,
assault, attack, cut, slash, and burn, the said Reynaldo Cabrera Guarano, hitting and
inflicting upon the latter, the following wounds or injuries:
1. Blisters formation noted all over the body reddish in color, which easily peel off on
pressure; containing clear fluids; with hemorrhagic reaction beneath blisters;
2. Swollen face with contusion and hematoma formation; loosening of hair notes; right ear
missing with circular incised wound around;
3. Incised wound 24 cm. length around the neck cutting the esophagus, pharynx, arteries
and veins; up to the 2nd cervical bone in depth;
4. Contusions and hematomas noted anterior chest wall, abdomen and at the back; upper
and lower extremeties of different sizes and forms. (Rollo, pp. 8-9)
In Criminal Case No. 1194, they werecharged with kidnapping with frustrated murder committed as
follows:
That on or about 1:00 o'clock in the morning on May 22, 1984 in barangay Awasian,
municipality of Tandag, province of Surigao del Sur, Philippines and within the jurisdiction of
this Honorable Court, the above named accused PEDRO RAVELO, HERMIE PAHIT,
BONIFACIO PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE, JERRY RAVELO AND
JOSEN RAVELO, conspiring, confederating and mutually aiding one another armed with the
deadly weapons such as pistols, armalite and carbine, did then and there wilfully, unlawfully
and feloniously by means of force and at gun point stop the hauler truck of the South Sea
Merchant Company which was on the way to Tandag, Surigao del Sur from sitio
Lumbayagan, Barangay Maticdom, municipality of Tandag, Surigao del Sur and kidnap one
JOEY LUGATIMAN, who is on board the said hauler truck by forcibly taking said Joey
Lugatiman and carry him to the house of accused Pedro Ravelo then to the Airborne
Headquarters at Mabua, Tandag, Surigao del Sur, and while thereat and in pursuance of
their conspiracy, with intent to kill, with evident premeditation and treachery and by taking
advantage of their superior strength being armed with deadly weapon did then and there
wilfully, unlawfully and feloniously assault, by hitting and inflicting upon the latter the
following wounds or injuries:
1. Small abrasion and hematoma, both wrist and left ankle;
2. Multiple small abrasions, chest and right neck and right ankle;
3. Multiple small abrasions and small hematoma, back;
4. Abrasion, upper left lips. (Rollo, pp.18-19)
The trial court based its findings on evidence presented by the prosecution at the trial proper which
commenced several months after the informations were filed. The prosecution evidence in Criminal
Case No. 1187 are quoted from the judgment, thus:
Witness Edilberto Salazar, 17 years old, student and resident of Tandag, testified that he
knew all the accused Pedro Ravelo, Bonifacio Padilla, Romeo Aspirin, Nicolas Guadalupe
and Hermie Pahit. On May 21, 1984 at 5:30 in the afternoon, he was with a certain Diego
Gallardo and Reynaldo Cabrera Gaurano walking from Dawis to Dagocdoc to attend a
dance. The dance not having began being too early yet, they decided to go back to Dawis.
On their way back while crossing the Tandag bridge across the Tandag river, the accused
Pedro Ravelo, Jerry Ravelo, Josen Ravelo, Bonifacio Padilla, Romeo Aspirin, Hermie Pahit
and Nicolas Guadalupe stopped them by pointing their guns. He and Diego Gallardo ran
away towards a group of old junk tractors and hid there. He saw Reynaldo Gaurano chased
by all the accused. He saw Reynaldo Gaurano ran up to the house of a certain Fernando
Cortes which was just opposite the tractors they were hiding, and which was just across the
road in front of the house of Fernando Cortes. Reynaldo Gaurano was caught up in the
house by Jerry Ravelo, Bonifacio Padilla and Nicolas Guadalupe. He saw Reynaldo Gaurano
forced and dragged down to a waiting pick-up on the road by Jerry Ravelo, Bonifacio Padilla
and Nicolas Guadalupe. Reynaldo Gaurano was loaded on the pick-up owned and driven by
the accused Pedro Ravelo. All the accused, together with Reynaldo Gaurano rode on the
pick-up towards the Tandag airport at Awasian. After Reynaldo Gaurano disappeared, he
and Diego Gallardo went to the police and reported the matter that Reynaldo Gaurano was
brought by the accused to the airport.
Article 6

On May 23, 1984, he was with the group who exhumed the body of Reynaldo Gaurano
under a mango tree near the Tandag airport and pointed to the investigator that that was the
body of Reynaldo Gaurano with blisters, without ear and a big wound on the neck. Placed on
the mat the cadaver was brought to the Mata Funeral Parlor at Tandag, Surigao del Sur in
that morning of May 23, 1984.
Witness Francisco Villasis, 48 years old, farmer and resident of Awasian, testified that he
knew very well all the accused and that he personally saw them in the early dawn of May 22,
1984. He declared that he was at the Awasian creek near a mango tree catching crabs with
the use of a "panggal", a bamboo knitted trap. From a distance of around twenty meters
away, he saw a man hanging from the mango tree over a fire. He saw the accused Jerry
Ravelo placed fire on the hanging person and the accused Romeo Aspirin placed a burning
torch made of dried coconut leaves at the back of the hanging person. The man hanging was
not known to him. The man hanged was also surrounded by Pedro Ravelo, Josen Ravelo,
Nicolas Guadalupe, Hermie Pahit and Bonifacio Padilla. For five minutes watching, he saw
the clothing and body burned, he heard the moanings of the person and heard the laughters
of the accused. After witnessing that horrible incident he went home hurriedly. On cross
examination he further stated that he saw for the first time the man already hanging under a
fire (sic).
Witness Joey Lugatiman, 22 years old and resident of Dawis, Tandag, testifies that all the
accused are known to him for a long time. On May 21, 1984, with ten companions they went
to a place in the interior called Maticdum, Tandag, Surigao del Sur. After five hours stay, he,
together with his companions left Maticdum past midnight for Tandag on a loggingtruck. As
soon as they passed by the airport, they were stopped by the accused and were told to go
down from the truck for questioning. He was brought to the house of the accused Pedro
Ravelo near the checkpoint. He was asked if he was Joey Lugatiman and if he knew
Reynaldo Gaurano. There at the headquarters, he was asked if he was an NPA. For almost
an hour stay at the headquarters he was boxed, kicked and manhandled by Pedro Ravelo
and by the other accused with the use of their guns until he became almost unconscious.
Then, from the headquarters at Mabua on that early dawn he was brought again back in the
same pick-up to Awasian airport, to the house of Pedro Ravelo and then to the house of
Bonifacio Padilla. Before proceeding to the house of Bonifacio Padilla, he saw his friend
Reynaldo Gaurano, one meter away, already weak with bruises on his face, hands tied at
the back and with a gag around the mouth, moving as if in the act of trying to free himself,
with a bleeding mouth. When he reached the house of Bonifacio Padilla, he was chained and
tied to the wall near the window of the house. Alone, he peeped through the window and saw
Reynaldo Gaurano hanging up the mango tree with fire below him. He heard the moanings
of Reynaldo Gaurano while hanging from the mango tree thirty meters away from the window
of the house of Bonifacio Padilla. He saw Pedro Ravelo and Josen Ravelo set fire on the
body of Reynaldo Gaurano. At 5:00 o'clock a.m. May 22, 1984, when alone, after being told
that he would be killed at 9:00 o'clock in the evening at the Awasian bridge, he escaped by
being able to untie himself at 10:00 o'clock in the morning of May 22, 1984. He reported what
happened to him and to Reynaldo Gaurano, to his parents and then to the police authorities
and later submitted for physical examination on that day, May 22, 1984 and finally was
investigated on May 23, 1984 in connection with this case. On cross examination he said
that he knew all the accused. He knew that all the accused are members of the CHDF.
Witness Zosima Gaurano, 46 years old, market vendor, a native of Tandag, testified that she
is the mother of Reynaldo Gaurano. Her son Reynaldo Gaurano left Cebu City on April 12,
1984 for Tandag. On May 22, 1984 she received a telegram from her sister Remedios
Fernandez that her son Reynaldo is dead. She left for Tandag upon receipt of the telegram
and arrived at Tandag on May 24, 1984. Upon her arrival she went to the Mata Funeral
Parlor and then she found the dead body of her son Reynaldo Gaurano inside the coffin and
she saw many parts of the body of her son with burns. She suffered moral damages and
other expenses to the tune of P64,350.00.
Witness Remedios Cabrera Fernandez, widow, meat vendor and resident of Tandag testified
that Reynaldo Gaurano is her nephew because his mother Zosima is her younger sister. Her
nephew Reynaldo Gaurano was here in Tandag on vacation. On May 20, 1984, with two
companions, Diego Gallardo and Edilberto Salazar, he failed to go home to the house of her
sister. After the second day, May 22, 1984 at around 5:00 o'clock in the afternoon Edilberto
Salazar and Diego Gallardo informed her that Reynaldo Gaurano was kidnapped by Pedro
Ravelo and his men. The message was relayed to her to Atty. Buenaflor and to Col. Jesus
Hermosa. On the following day, May 23, 1984, Col. Hermosa, with other officers inspected
the house of Pedro Ravelo and the nearby surroundings at Awasian. She was made to
Identify an exhumed body at the back of the house of Pedro Ravelo near the Mango tree.
She saw the dead body of her nephew Reynaldo Gaurano without an ear, the neck was
almost cut, entire body with blisters, and naked. His body was pictured and later on brought
to the Mata Funeral Parlor at Tandag. She requested Dr. Romeo delos Reyes of the Tandag
Article 6

Provincial Hospital to conduct an autopsy and after which the dead body of Reynaldo
Gaurano was embalmed to await the arrival of the mother from Cebu City.
Witness Dr. Romeo delos Reyes, a senior Resident physician of the Tandag Provincial
Hospital testified that he conducted an autopsy on the dead body of a certain Reynaldo
Gaurano, Exhibit "A", at the Mata Funeral Parlor. He found blisters formation caused by fire
burns throughout; the body was reddish and skin peels off easily; swollen face, hematoma,
contusion, losing of hair, wound around the neck; and these injuries could have been
inflicted 36 to 48 hours before the autopsy. Death certificate, Exhibit "B" was issued. The
burns and the injuries above stated were suffered before Reynaldo Gaurano died.
Witness Roberto Awa, a photographer of the Similar Studio who, for fifteen years, is a
photographer at Tandag, testified that he took the pictures of a dead man inside a hole upon
orders of Col. Hermosa at Awasian near the airport. He took pictures as shown in Exhibit
"C", "C-1"; he took 8 positions of the dead body. While yet inside the holeexhibit "D" and as
shown in Exhibit "E" and "F", that was the dead body of Reynaldo Gaurano near the mango
tree; Exhibit "G", while the cadaver was inside the hole and Exhibit "H" is the picture while
the body was lying on the mat.
Witness Cresenciano Rulona, Police Investigator of the Tandag Police Force, testified that at
around 8:00 o'clock in the morning of May 23, 1984, he was the assistant team leader of the
group that proceeded to Tambacan, Awasian, Tandag to look for and inspect the place
where a certain Reynaldo Gaurano was kidnapped. Under a mango tree and about 25
meters near the house of Bonifacio Padilla the group recovered a P.25 coin, a small comb,
two zippers and burned pieces ofcloth and burned coconut leaves, together with new
excavated soil. Further search under the mango tree led to the very place where the body of
Reynaldo Gaurano was buried. At around 10:00 o'clock a.m., May 23, 1984, they exhumed
the dead body which was buried under a depth of around one meter under the mango tree
which was around 25 meters from the house of Bonifacio Padilla and around 150 meters
from the house of Pedro Ravelo. The cadaver was first Identified to be that of Reynaldo
Gaurano by Edilberto Salazar. A photographer was called and pictures were taken of the
dead body of Reynaldo Gaurano from the hole and then the body was brought to the surface
and placed on the mat. Not one of the accused was present during the period while the
group was searching and exhuming the body of Reynaldo Gaurano. The body of Reynaldo
Gaurano shows signs of burns and several injuries, and was finally brought to the funeral
parlor at Tandag.
As shown by the evidence, Reynaldo Cabrera Gaurano died on May 22, 1984 at Awasian,
Tandag, Surigao del Sur. His death was the result of the shock secondary to the wound
around the neck, Exhibit "A", and occurred while he was hanged by the accused with hands
tied to a branch of a mango tree. Sufferings of pains, through his moanings, were
augmented and aggravated by the tortures inflicted as vividly seen through the removal of
the right ear, the wound around the neck and placing of fires on his body, and the fire below
his feet. Not only were these acts brutal and cruel but also heartless and savage acts of the
accused, devoid of an iota of sympathy, who, instead, were happy and delighted to see the
miseries suffered by their victim. Further, it was shown that they helped one another or
conspired with one another in torturing with the use of their firearms, and in killing Reynaldo
Gaurano. (Rollo, pp. 10-16)
Meanwhile, the prosecution evidence in Criminal Case No. 1194 are as follows:
The evidence of the prosecution consisted of the testimonies of the witnesses and the
Medical Certificate. Witness Joey Lugatiman, 22 years old, resident of Dawis, Tandag,
Surigao del Sur testified that he personally knew all the accused for quite a long time. On
May 21, 1984 with ten companions he went to a place called Maticdom, Tandag, Surigao del
Sur. After staying at Maticdum for five hours he went home on board on a cargo truck. On
the way near the Tandag Airport they were stopped by all the accused. They, including
himself, were ordered by the accused Pedro Ravelo to come down from the truck. Then he
was brought to the nearby house of Pedro Ravelo and there he was asked if he was Joey
Lugatiman and if he knows Reynaldo Gaurano.
His companions were ordered to proceed to Tandag while he was loaded on a service pick
up driven by the accused Pedro Ravelo. He was brought by all the accused to the
Headquarters of the Airborne Company at Mabua, Tandag, Surigao del Sur. In the
Headquarters of the Airborne, he was interrogated if he was an NPA. After hearing his denial
of being an NPA he was boxed, kicked and pistol whipped by the accused Pedro Ravelo and
his co-accused. He was manhandled by the accused with the use of the firearms for almost
an hour. Later he was brought back again to Awasian Airport to the house of Pedro Ravell
(should be Ravelo) then to the house of Bonifacio Padilla. But before proceeding to the
house of Bonifacio Padilla, he saw his friend Reynaldo Gaurano one meter away, already
Article 6

weak with bruises on the face, hands, tied at the back and gagged around the mouth.
Reynaldo Gaurano could not talk and he was moving in the act to free himself and with a
bleeding mouth. Upon arriving in the house of Bonifacio Padilla he was chained and hogtied
near the open window by the companions of Pedro Ravelo. Not long after, through the
window, he saw Reynaldo Gaurano hanging up the mango tree and a big fire was set on the
ground. He heard the groaning and moaning of Reynaldo Gaurano. He saw Pedro Ravelo
and Jerry Ravelo setting fire on the right and left side of Reynaldo Gaurano with the use of
dried coconut leaves. He saw all the accused surrounding and watching the hanging and
burning of Reynaldo Gaurano. It was Pedro Ravelo who cut the right ear and who also
slashed the neck of Reynaldo Gaurano. He could not shout because he was afraid. While
lying down after he saw the horrible incident he fell asleep. At around 5:00 o'clock in the
morning of May 22, 1984 he awoke and saw Bonifacio Padilla bringing nylon line with which
he was tied to a piece of wood; while Nicolas Gaudalupe gagged him, and he was blind
folded by Hermie Pahit. While the three were about to leave him behind, he heard them
saying that they will kill him at the Awasian bridge at 9:00 o'clock in the evening of May 22,
1984. When he was left alone in that house he successfully freed himself. He jumped out of
the window and escaped via the nipa palm grove. As consequences of the manhandling of
the accused, he suffered several bruises on the breast, at the back and his mouth. He was
physically examined by a doctor in the Provincial Hospital on that day, Exhibit "A", "A-1" and
"A-2" which is Exhibit "1" and "2", "1-A", and "1-B" for the defense. On cross examination, he
testified that he escaped at around 10:00 o'clock in the morning from the house of Bonifacio
Padilla, and that he knew all the accused to be members of the Civilian Home Defense Force
(CHDF). He testified that the house of Pedro Ravelo and the house of Bonifacio Padilla is
around one hundred (100) meters away from each other.
Witness Dr. Petronila Montero testified that she is a resident physician of the Provincial
Hospital, and on May 22, 1984 she examined Joey Lugatiman and she issued a medical
certificate, Exhibit "A". All her findings were placed down in Exhibit "A". Upon being cross-
examined, she testified that the hematomas, small abrasions will not cause death. When she
examined Joey Lugatiman, she found that he was weak and haggard caused by the injuries
mentioned in Exhibit "A".
Witness Emilio Espinoza, 68 years old, farmer, resident of Awasian, Tandag testified that
while he was tendering his carabao near the house of Bonifacio Padilla he was surprised to
see Joey Lugatiman, wearing blue t-shirt and a jogging pants jumped out of the window of
the house of Bonifacio Padilla, twelve meters away from him. He saw Joey Lugatiman ran
towards the nipa palm then ran towards the airport. He knew Joey Lugatiman because
during the barrio fiesta Joey used to stay in his house at Awasian.
Witness Bernardo Frias, 21 years old, farmer and resident of Awasian, testified that on May
22, 1984 he was in Maticdom together with Joey Lugatiman, Miguel, Gregorio Urbiztondo,
Leonildo Naragas, Jesus Espinoza, Mauricio Estoya, the driver and a helper from 5:00
o'clock in the afternoon and started to go home at around 11:00 o'clock p.m. for Tandag. On
the way, near the airport, he, together with his companions on a logging truck was stopped
by the accused Pedro Ravelo, Jerry Ravelo, Josen Ravelo, Hermie Pahit, Bonifacio Padilla,
Romeo Aspirin and Nicolas Guadalupe. They were ordered to come down and were made to
identify each other. He saw Bonifacio Padilla dragged Joey Lugatiman to the house of Pedro
Ravelo. It was Pedro Ravelo who later brought Joey Lugatiman to the pick-up. They were
ordered to board on the truck except Joey Lugatiman who loaded in the pick-up driven by
Pedro Ravelo. Then, the accused Bonifacio Padilla ordered the group to proceed to Tandag
while Joey Lugatiman was left behind. He reported to the police authorities that his
companion Joey Lugatiman was being held under arrest at Awasian and that he knows all
the accused before this incident. (Rollo, pp. 21-24)
The accused-appellants were not able to or did not present evidence on their behalf, nor were they
themselves able to confront the prosecution witnesses who testified against them except through a
counsel de oficio appointed by the trial judge to represent them namely, Atty. Pretextato Montenegro
and Atty. Florito Cuartero, in place of their defense counsel, Atty. Eliseo Cruz.
The continued absence of Atty. Cruz, a Quezon City-based lawyer who perennially made requests
for postponements by telegrams stating his inability to appear for health reasons, led to the refusal
by the accused-appellants to be present at the trial. The accused-appellants alleged that Atty. Cruz
left an instruction that they will not submit themselves to trial without him.
The accused-appellants now maintain that they did not "waive" their right to be present during the
trial because their refusal was not done by their own free will but only in accordance with their
lawyer's instructions.
The Court notes that Atty. Cruz resorted to several other delaying tactics aside from sending
telegraphic notes requesting for postponements. He filed a petition for change of place of detention
Article 6

and venue for trial before this Court, which denied it; a first petition for habeas corpus on the ground
that they should be tried by a military tribunal, which petition was denied; and a motion for new trial
on the ground of lack of due process due to improper waiver of presence at the trial. This motion for
new trial was granted to give the accused-appellants a last chance to be heard and be present. Still,
the defense counsel failed to appear and so did the appellants.
In their second petition for habeas corpus which we now treat as an appeal, Atty. Cruz failed to file
the required brief. The Court then appointed a new counsel de oficio for the accused-appellants.
Accused-appellants raised the following alleged errors of the trial court:
THE LOWER COURT'S FINDING THAT ACCUSED-APPELLANTS ARE GUILTY OF

FRUSTRATED MURDER HAS NO BASIS IN FACT AND IN LAW.
II
THE LOWER COURT ERRED IN CONCLUDING THAT ACCUSED-APPELLANTS WAIVED

THEIR RIGHTS TO BE PRESENT DURING THE TRIALS AND TO PRESENT EVIDENCE
TO PROVE THEIR INNOCENCE (Brief for Appellants, pp. 10-11; Rollo, p. 144)
It is contended that there can be no frustrated murder committed in Criminal Case No. 1194 absent
any proof of intent to kill, which is an essential element of the offense of frustrated murder.
Appellants aver that the trial court erroneously based its conclusion on the fact that when Lugatiman
was tied and gagged, the latter heard one of the accused-appellants utter that they would kill him at
Awasianbridge.
The trial court made the following inference which we find to be erroneous:
To this Court the real intention to kill Joey Lugatiman was made manifest at 5:00 in the
morning of May 22, 1984 when the accused Bonifacio Padilla together with Hermie Pahit and
Nicolas Guadalupe tied his hands to the wall with a nylon line and gagged him; and when the
accused said they will kill him (Joey Lugatiman) at 9:00 o'clock p.m. at Awasian bridge.
These final and parting words uttered to Joey Lugatiman eloquently expressed intent to kill.
Killing, however, was not consummated because Joey Lugatiman was able to escape at
around 10:00 o'clock in the morning of May 22, 1984. (Rollo, p. 25)
The facts and evidence on record do not show anything from which intent to kill could be deduced to
warrant a conviction for frustrated murder. A mere statement by the accused stating that Lugatiman
would be killed is not sufficient proof of intent to kill to convict a person of frustrated murder.
In a crime of murder or an attempt or frustration thereof, the offender must have the intent or the
actual design to kill (US v. Burns, 41 Phil. 418 [1921]) which must be manifested by external acts.
For there to be frustrated murder, the offender must perform all the acts of execution that would
produce the felony as a consequence, but the felony is not thereby produced by reason of causes
independent of the will of the perpetrator. A verbal expression that Lugatiman would be killed sixteen
(16) hours after such statement was made is not sufficient to show an actual design to perpetrate the
act. Intent must be shown not only by a statement by the aggressor of the purpose to kill, but also by
the execution of all acts and the use of means necessary to deliver a fatal blow while the victim is
not placed in a position to defend himself. However, after the performance of the last act necessary,
or after the subjective phase of the criminal act was passed, the crime is not produced by reason of
forces outside of the will of the aggressor. (People v. Borinaga, 55 Phil., 433 [1930]).
Tying the victim's left leg with a chain on a 2" by 3" piece of wood and leaving him inside the house
of accused-appellant, Bonifacio Padilla are not acts that would result in death. These were done only
to restrain his liberty of movement for the period of time the accused-appellants were busy hanging
and burning the body of Reynaldo Gaurano some thirty (30) meters away from where Lugatiman
was left. Also, tying Lugatiman's hands behind his back and his whole body to the wall, and
blindfolding him were for the purpose of restraining his liberty until the evening of May 22, 1984
came.
Accused-appellants also maintain that the injuries sustained by Lugatiman from the manhandling at
the Headquarters of the Airborne Company were not fatal as stated by the prosecution's expert
witness, Dr. Petronila Montero; hence, there can be no frustrated murder. This is supported by the
records (Exhibit "A-2", Records of Criminal Case No. 1194, p. 21; TSN, June 4, 1985, pp. 24-26)
Lugatiman did not lose consciousness as a result of the blows he sustained (TSN, May 31, 1985, p.
49, Record, p. 115)
Article 6

It is worthy to note that the trial court, in concluding the existence of frustrated murder, did not even
use as its basis, the manhandling of Lugatiman. The trial court in fact concedes that the real purpose
of the manhandling or torture was to have Lugatiman admit and confess his being a member of the
New People's Army (NPA) and the activities of the NPA's. It was the statement made by the
accused-appellant NicolasGuadalupe that Lugatiman would later be killed, that was the basis of the
court for inferring the commission of frustrated murder. According to the trial court, murder was not
committed because of the timely escape. Escape from the aggressors cannot establish frustrated
murder without first showing that the aggressors intended to kill and that they really attacked the
victim.
Under the circumstances, accused-appellants could not even be convicted of an attempt to commit
murder. There was no commencement of the criminal act by over acts which have a direct
connection with the crime of murder intended to be committed. As stated earlier the manhandling,
express statement of purpose, and the restraint of liberty were not such as to put the victim in
danger of an imminent death. The small abrasions and hematomas of the victim resulting from the
torture by the accused were not mortal. After the victim was restrained of his liberty immediately
before Gaurano was killed, he was able to watch how Gaurano was burned hanging upside down
from a mango tree near the Awasian bridge. Due to his fatigue and extreme weakness, he was even
able to lie down and sleep after looking at the horrible incident. (TSN, May 31, 1985, pp. 22-23)
During the long period of time Lugatiman was informed that "he would be killed" and was left behind
(5:00 in the morning) until he was able to escape at 10:00 in the morning, it was not certain whether
or not appellants would really kill him as they did to Gaurano. Anything could have happened in
between. There was no distinct evidence to prove that the accused appellants were really decided
on killing him at the time specified.
The records show that Lugatiman himself was not sure that the accused-appellants would pursue it.
The uncertainty can be seen from Lugatiman's testimony on cross-examination, thus:
x x x x x x x x x
Q. Why did you say a while ago that "I will be the next one to be hung and to be
killed by Ravelo and his group"?
A. I was just afraid that I will be the next.
Q. Now, when you saw these persons burning the body of Reynaldo, did you hear
also what the people around Reynaldo were talking of?
A. What I heard was their laughing and the moaning.
Q. And you heard their laughing?
A. Yes.
Q. Why did you know that they were laughing?
A. Because I heard it.
Q. Their appearance you can see?
A. Their appearance is clear because there is a big light.
Q. And your name was never mentioned that you will be the next to be hung?
A. I did not hear them saying.
Q. There were also no other people like you who were apprehended or being
detained by Pedro Ravelo and his group?
A. I did not see.
Q. You only saw Reynaldo Gaurano, including yourself detained by Ravelo and his
group on May 21, in the early morning rather, on May 22, 1984 dawn?
A. Yes. (TSN, May 31, 1985, pp. 54-55)

Article 6

After a review of the allegations of the information in Criminal Case No. 1194 and the
evidence received and admitted by the court a quo, the Court is of the view that accused-
appellants are not guilty of frustrated murder but only the crime of slight physical injuries.
There is evidence to show that the several small abrasions on the chest, right neck and right
ankle of Lugatiman as well as the hematoma at his back was due to the hitting by a rough,
hard object like a butt of a gun. The prosecution witness, Dr. Montero testified that the
injuries were inflicted by some other persons aside from the victim, and needed medical
treatment of four (4) to five (5) days to avoid infection. (TSN, June 4, 1985, pp. 21-26)
Accused-appellants aver that there was no deliberate waiver on their part of their right to be
present at the scheduled hearing dates because they "did not appear to know the import of
their decision not to appear in the trials." According to them, the judge should have explained
to them the meaning and the consequences of their decision not to appear.
The issue of due process had been fully considered by this Court when we acted on the
habeas corpus petition. In our May 8, 1988 resolution, we outlined in detail the reasons for
our finding of dilatory tactics on the part of the petitioners and their counsel and why the
lower court correctly proceeded with trial.
After stating the various incidents characterizing the initial proceedings and the trial of the
case, we stated:
x x x x x x x x x
The petitioners are members of the Civilian Home Defense Force (CHDF) who have
been convicted of murder and frustrated murder committed under particularly brutal
circumstances. A notice of appeal was filed thirty-nine (39) days from the
promulgation of judgment and was clearly out of time. A motion for new trial was also
characterized by plainly dilatory tactics in its handling.
Were it not for the effectivity of the present Constitution, there is a likelihood that the
petitioners would have been sentenced to capital punishment. The near-capital
nature of the crimes for which the petitioners were convicted and the rather unusual
circumstances surrounding the trial of the two cases and the failure to appeal,
however, call for a closer look at the judgments of conviction. This can best be done
by calling for all the records of the case including the transcripts of stenographic
notes. If, after the consideration of the cases as appealed cases, there appears to
have been a miscarriage of justice or a need for further evidence, the case can
always be remanded for further proceedings as instructed. Otherwise, the judgment
will have to be affirmed or reversed on the basis of all the present records. (Rollo, p.
73)
For purposes of this decision, we emphasize that in the morning of May 30, 1985, the date of
the first day of the trial proper, or after five (5) postponements, the accused-appellants came
to court without their counsel of record, Atty. Eliseo Cruz. Atty. Cruz allegedly sent a
telegram through one Mrs. Delfina Cruz indicating that he met a vehicular accident and
requesting a resetting of the hearing date. The several instances in which the Court received
similar telegrams including one where he claimed a "very sick heart ailment" led the trial
court to doubt and disregard the last request of the defense. The court had earlier
categorically stated that it wouldentertain no further requests for postponement.
The court, in deciding to push through with the trial at 2:00 in the afternoon of May 30, 1988
and in appointing two (2) counsels de oficio for the accused-appellants did not only consider
the right of the accused to speedy trial which should not be abused by the defense by willful
delays, but more so, the rights of public justice. (Mercado v. Santos, 66 Phil. 215 [1938]).
Despite their new counsels who appeared to be doing their best, the accused-appellants
insisted on absenting themselves stating that they cannot and would not appear without Atty.
Cruz and allegedly for fear that they would be harassed by members of the New People's
Army. At this point, the Court informed them of (1) the importance of the appointment of
competent counsels de oficio considering the gravity of the offense and the difficulty of the
questions that may arise during the trial; and (2) the fact that there is no legal obstacle to
proceeding with the reception of prosecution evidence in their absence.
Absence at the trial did not deprive the accused-appellants of cross-examination except the
right to personally confront the prosecution witnesses face to face. Notwithstanding their
absence, they were represented by the counsels de oficio who took turns in cross-examining
each of the prosecution witnesses.
Article 6

Accused-appellants also maintain that they did not actually refuse to present evidence on
their behalf. They argued that the counsels de oficio misapprehended a telegram of Atty.
Cruz which stated that he (Atty. Cruz) cannot attend the June 20 and 21, 1985 trial because
he had a prior engagement in another court in Ilocos Sur on those dates. They also contend
that their failure to appear and present evidence was "simply because of their misplaced
trust and obedience to the instructions of their counsel, Atty. Eliseo Cruz, whose negligence
and lack of vigilance in the handling of the cases, despite the seriousness of the crimes
charged, had caused injustice to the accused-appellants." They ask this Court to take their
case as an exception to the rule that a client shall suffer the consequences of negligence or
incompetence of his counsel.
The actual desire of the accused-appellants to testify and present other evidence is not
manifest from a thorough review of the records of the case. If it were true that they wanted to
present evidence, they should have taken advantage of the opportunity to be present, to be
heard and to testify in open court with the assistance of their appointed lawyers. As a matter
of fact, they were able to convince the lower court to grant them a chance to have a new trial.
However, they still failed to make use of their last opportunity. They cannot now claim that
they were denied their right to be present and to present evidence. This Court upholds the
lower court's position that the accused-appellants were given more than generous time and
opportunity to exercise their constitutional rights which should not be overemphasized at the
expense of public policy.
The circumstances of the case do not preclude the application of the rule that a client is
bound by the acts of his counsel who represents him. Nevertheless, at the time when the
lower court appointed the de oficio counsels, the court already had ample notice of the futility
of waiting for Atty. Cruz to come and appear for the defense. From the time the accused-
appellants were represented by Atty. Montenegro and Atty. Cuartero, their decision not to
attend the trial nor to present evidence is clearly a product of their own free will.
WHEREFORE, the appealed judgments in Criminal Cases Nos. 1187 and 1194 are hereby,
respectively, affirmed and modified as to the crime proven. The accused-appellants PEDRO
RAVELO, BONIFACIO "PATYONG" PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE
and HERMIE PAHIT are hereby sentenced:
(1) To serve the penalty of reclusion perpetua and to pay the increased indemnity of FIFTY
THOUSAND PESOS (P50,000.00) in Criminal Case No. 1187 solidarily; and
(2) To serve the penalty of arresto menor in Criminal Case No. 1194.
SO ORDERED.
Fernan, C.J., (Chairman), Feliciano, Bidin and Davide, Jr., JJ., concur.
Article 6
G.R. No. 166479 February 28, 2006
RODOLFO C. VELASCO, Petitioner,
vs.
DECISION
CHICO-NAZARIO, J.:
Before Us is a petition for review on certiorari which seeks to set aside the decision 1 of the Court of
Appeals in CA-G.R. CR No. 23366 dated 30 July 2004 which affirmed the decision 2 of Branch 41 of
the Regional Trial Court (RTC) of Dagupan City in Criminal Case No. 98-02175-D dated 29 June
1999, finding accused-petitioner Rodolfo C. Velasco guilty of Attempted Murder, and its
Resolution3 dated 21 December 2004 denying petitioner’s motion for reconsideration.
An Information4 dated 20 April 1998 charged petitioner with the crime of Attempted Murder
committed as follows:
That on or about the 19th day of April, 1998, in the City of Dagupan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, SN I RODOLFO C. VELASCO,
being then armed with a gun, with treachery and with intent to kill one FREDERICK MARAMBA, did
then and there, wilfully, unlawfully and criminally, attack, assault and use personal violence upon the
latter by shooting him, hitting him on the left upper arm, the said accused having thus commenced a
felony directly by overt acts but did not perform all the acts of execution which could have produced
the crime of murder, by reason of some cause or accident other than his own spontaneous
desistance, to the damage and prejudice of said FREDERICK MARAMBA.
When arraigned, petitioner, with the assistance of counsel de oficio, pleaded not guilty to the crime
charged.5
On 29 September 1998, the Hon. Luis M. Fontanilla, Executive Judge of RTC of Dagupan City,
ordered the release of petitioner after a surety bond was posted by the Mega Pacific Insurance
Corporation in the amount of ₱120,000.00.6
The evidence is summarized by the trial court as follows:
The evidence of the prosecution tends to show that on April 19, 1998, at about 7:30 o’clock in the
morning, private complainant Frederick Maramba was cleaning and washing his owner type jeep in
front of his house at Lasip Grande, Dagupan City when a motorized tricycle stopped near him.
Accused Rodolfo Velasco dashed out of the tricycle, approached the complainant and fired at him
several times with a .45 caliber pistol. The accused missed with his first shot but the second one hit
the complainant at the upper arm, causing him to stumble on the ground. The complainant stood up
and ran, while the accused continued firing at him but missed.
The shooting incident was reported to the police sub-station in Malued District by Barangay Captain
Dacasin of Lasip Grande, describing the suspect as wearing a vest or a "chaleco." The police,
composed of SPO4 Romulo Villamil, PO3 Rolando Alvendo, and SPO1 Soliven respondent and
pursued the accused who proceeded on board a motorized tricycle to the highway going to
Barangay Banaoang in Calasiao town.
Article 6

The police caught up with the tricycle and brought the accused to the police sub-station. A firearm
(Exhibit "A") protruding from the waistline of the accused, three (3) magazines (Exhibit "B", "B-1" &
"B-2") and fourteen (14) live ammunitions (Exhibits ‘C" to "C-13") were confiscated from the
possession of the accused. The police also recovered seven (7) spent ammunitions (Exhibits "D" to
"D-6") at the crime scene. At the City Jail in Dagupan City where the accused was subsequently
brought, the private complainant Frederick Maramba identified and pointed to the accused as the
one who fired at him, hitting him on the upper left arm. Complainant identified the affidavit which he
executed naming the accused as his assailant (Exhibit "H") and who shot him on the morning of April
19, 1998 in front of his residence at Lasip Grande.
Private complainant further testified that he was hospitalized and treated at the Region 1 Medical
Center, Dagupan City by Dr. Arturo de Vera, Jr. who issued a Medico-Legal Certificate stating that
the victim sustained, "Gunshot wound point of entry: 1.5 cm lateral aspect distal, 3rd arm left" and;
"Gunshot wound point of exit: 4 cm lateral aspect posterior, 3rd arm left" (Exhibit "I"). By reason of
his wounds, complainant incurred expenses for hospitalization and medicines in the total amount of
₱2,696.06 (Exhibit "J" to "J-14").
Armando Maramba, the driver of the tricycle in which the accused rode, testified that he picked up
the accused who was wearing a chaleco, at the intersection of Pogo-Lasip Road. Upon reaching the
parked jeep which was being washed by the private complainant, the accused ordered him to stop.
The accused alighted and fired several shots at the victim. Then the accused went back to the
tricycle and ordered him to proceed to Calasiao. The accused alighted at the intersection of the De
Venecia Highway and Malued Road and took another tricycle. Witness executed an affidavit before
the Police Headquarters in Dagupan City (Exhibit "G") and identified the accused as the one who
shot the private complainant.
The accused, on the other hand, interposed the defense of alibi. He said that on April 18, 1998, he
went to a friend’s house in Lingayen, Pangasinan and spent the night there. The following morning,
April 19, 1998, between 6:00 to 7:00 o’clock, he left Lingayen riding in the Volkswagen car of Berting
Soriano. He alighted at the corner of Banaoang diversion road. From there he took a tricycle and told
the driver to bring him at the foot of the bridge going to Bayambang. While on his way to Calasiao,
he heard a jeep behind him blowing its horn and when he looked back he saw three men on board
pointing their guns at him. He told the tricycle driver to stop and thereupon the three men
approached him and introduced themselves as policemen. They confiscated his gun and then
brought him to the police station for interrogation. Thereafter, the police lodged him in the City Jail of
Dagupan.
Accused testified that he did not know personally the complaining witness and denied having fired at
him. He further said that his .45 caliber pistol which was seized from him by the police is licensed
(Exhibit "2").7
In its decision dated 29 June 1999, the RTC of Dagupan City, Branch 41, found petitioner guilty of
the crime charged, disposing of the case in this wise:
WHEREFORE, finding accused Rodolfo C. Velasco guilty beyond reasonable doubt of the crime of
attempted murder, defined and penalized under Article 248, in relation to the 3rd par. of Arts. 6 and
51 of the Revised Penal Code, he is hereby sentenced to suffer the indeterminate penalty of Four (4)
years of prision correccional, as minimum to Eight (8) years and One (1) day of prision mayor, as
maximum.
Accused is further ordered to indemnify the complaining witness the amount of ₱2,696.00, as actual
damages.8
The trial court gave credence to the testimonies of the private complainant Frederick Maramba and
Armando Maramba when they identified petitioner as the assailant. It rejected petitioner’s defense of
alibi saying it was not impossible for him to be at the crime scene when the crime was committed
because the place where he allegedly alighted from the car of a certain Berting Soriano was only
about ten minutes away. It concluded that his defense cannot prevail over the positive identification
made by the prosecution witnesses.
On 1 July 1999, petitioner filed a Notice of Appeal signifying his intention to appeal to the Court of
Appeals.9
Pending appeal with the Court of Appeals, petitioner, after filing a Motion to Bail, was allowed to post
bail in the amount of ₱160,000.00.10 To obviate the possibility of flight, the Bureau of Immigration and
Deportation (BID) was directed to include petitioner in its hold departure list. 11
On 30 July 2004, the Court of Appeals dismissed the appeal and affirmed the decision of the RTC.
The decretal portion of the decision reads:
Article 6

WHEREFORE, for lack of merit, the appeal is DISMISSED. The assailed Decision dated June 29,
1999 of the Regional Trial Court, Branch 41 of Dagupan City, in Criminal Case No. 98-02175-D, is
hereby AFFIRMED. Costs against accused-appellant. 12
Petitioner moved for a reconsideration of the decision which motion was denied per
resolution13 dated 21 December 2004.
Petitioner is now before us via petition for review on certiorari, raising the following grounds:
THE COURT OF APPEALS GRAVELY ERRED WHEN IT AFFIRMED THE DECISION OF

THE REGIONAL TRIAL COURT.
II
THE COURT OF APPEALS GRAVELY ERRED WHEN IT DENIED THE MOTION FOR
RECONSIDERATION PER THE RESOLUTION DATED DECEMBER 21, 2004. 14
Petitioner invokes the defenses of denial and alibi. He denies having shot the victim. He alleges that
the prosecution was not able to sufficiently establish the identity of the assailant because the
Barangay Chairman, who reported the incident to the policemen, identified the assailant as one
wearing a "chaleco," was not presented to corroborate the testimony of petitioner. He contends that
had the Barangay Chairman been presented, the latter’s testimony would have been adverse to the
prosecution. Instead, he points out that the prosecution presented police officers who were not
eyewitnesses. He adds that he had no motive to harm, much less kill, the victim, the latter being a
total stranger. He explains that since the identity of the assailant is in doubt, motive becomes
important and his alibi gains weight and value. 15
In a resolution dated 6 April 2005, the Court, without giving due course to the petition, required
respondent to file a Comment.16
In its Comment17 dated 8 September 2005, respondent People of the Philippines, through the Office
of the Solicitor General (OSG), argues that the factual findings of the Court of Appeals cannot be
reviewed since the issue (i.e., positive identification) petitioner is raising involves the credibility of
witnesses and the weighing of evidence. It asserts that since the same deals with a question of fact
and there being no instance present to take the case out of the general rule that factual findings of
the Court of Appeals may be reviewed, a review thereof cannot be made because only a question of
law can be re-examined if a petition for review on certiorari under Rule 45 of the Rules of Court has
been filed. It adds that even if the case is to be decided on the merits, the petition likewise will fail.
In his Reply,18 petitioner submits that a review of the facts of the case is justified on the ground that
the Court of Appeals sanctioned substantial and jurisprudential departures committed by the trial
court. He maintains that (1) the trial court precipitately observed that alibi is a weak defense; (2) the
trial court did not consider that the prosecution had no evidence proving his intention to kill; (3) the
trial court did not consider the fact that victim did not know him and vice-versa; (4) it was impossible
for him, a navy man – a protector of the people – to have failed to fatally hit the victim after firing
seven shots; and (5) the instant case is a frame up.
On 17 October 2005, the Court gave due course to the petition and required the parties to submit
their respective memoranda.19
In his memorandum, petitioner further argues that the findings of fact in this case should be reviewed
because the Court of Appeals erroneously restated the factual findings of the trial court when it
purposely omitted and added words changing the tenor of the shooting incident as found by the trial
court. He adds that the findings of fact of the trial court do not support a conviction of attempted
murder but only attempted homicide as there was no treachery since private complainant was still
able to focus his eyes on the gunman until he was fired upon. Further, he points out that the Court of
Appeals made different findings as to where the seven spent shells were recovered. He maintains
there was suppression of evidence when the prosecution failed to present a ballistic report on the
seven empty shells that would show the identity of the assailant. In addition, he claims that since
there was suppression of evidence on the part of the prosecution, the testimony of Armando
Maramba is not credible, he being a relative of the victim.
Petitioner primarily invokes the defenses of denial and alibi. It is his claim that the prosecution failed
to conclusively establish the identity of the assailant and that he was merely framed-up.
At the outset, it must be stressed that the instant petition for review on certiorari was filed pursuant to
Rule 45 of the Rules of Court where a review is not a matter of right but of sound judicial discretion
Article 6

and will be granted only when there are special and important reasons therefor. It is not the function
of this Court to re-examine the evidence submitted by the parties unless the findings of fact of the
Court of Appeals are not supported by evidence on record or the judgment is based on a
misapprehension of facts. This Court is limited to the review or revision of errors of law and not to
analyze or weigh the evidence all over again.20
We agree with the OSG that as ruled by this Court, no questions of facts may be raised in this Court
under Rule 45 of the Rules of Court, unless, among other grounds, there is clear and convincing
proof that the judgment of the Court of Appeals is based on a misapprehension of facts or when the
Court of Appeals failed to notice and appreciate certain relevant facts of substance which if properly
considered would justify a different conclusion, and when there is a grave abuse of discretion in the
appreciation of facts in the light of the evidence on record. Anything less will not suffice to overturn
the decision of the Court of Appeals affirming on appeal the decision of the trial court. It bears
stressing that the findings of facts of the trial court, its calibration of the testimonial evidence of the
parties and the assessment of the credibility and probative weight of the evidence of the parties and
its conclusion anchored on its findings are given high respect if not conclusive effect by this Court,
especially if affirmed by the Court of Appeals because of the unique advantage of the trial court of
observing and monitoring the demeanor, conduct and deportment of the witnesses as they regale
the court with their testimonies. The exception to this rule is when the trial court ignored, overlooked,
misconstrued or misappreciated cogent facts and circumstances of substance which if considered
would alter the outcome of the case.21 After scrutinizing the records of the case and thoroughly
evaluating all the evidence proffered, we find no reason to deviate from the findings of facts of the
trial court as affirmed by the Court of Appeals.
In the case at bar, the testimonies of private complainant Frederick Maramba and Armando
Maramba were given credence and full probative weight and credence by the trial court in the
identification of petitioner as the assailant. Private complainant saw petitioner alight from the tricycle
of Armando Maramba before he successively shot at him at a distance of about four meters while
chasing him for 25 to 30 meters. 22 Armando Maramba witnessed the shooting because he was the
driver of the tricycle in which petitioner rode in going to the house of private complainant and in
leaving the crime scene.23 After the shooting incident, private complainant went to the City Jail and
identified petitioner as the person who shot him. 24 At the Dagupan City Police Station, Armando
Maramba pointed to petitioner as the assailant not because he saw a man wearing a chaleco, but
because it was he whom he saw shoot the private complainant. 25
Petitioner asks that the findings of fact of the case should be reviewed because the Court of Appeals
erroneously restated the factual findings of the trial court when it purposely omitted and added words
changing the tenor of the shooting incident as found by the trial court. Petitioner said the Court of
Appeals purposely added the word "suddenly" and replaced the phrase "near him" with "in front of."
He adds that the Court of Appeals added the phrase "without any warning" and removed the phrase
"approached the complainant." He even claims that the Court of Appeals changed the manner how
private complainant was shot, when he was hit, and how he stumbled and how he was able to stand
up and continue running. He further states that the Court of Appeals made a different finding as to
where the seven spent shells were recovered. He points out that the Court said the seven spent
shells were recovered from the accused while the trial court found that the same were found in the
crime scene.
As above discussed, the findings of the trial court on its assessment of the credibility of the
witnesses and their testimonies and the probative weight thereof, are accorded by the appellate
court high respect if not conclusive effect, unless the trial court ignored, misconstrued or
misinterpreted facts and circumstances, which if considered, would alter the outcome of the
case.26 In the case at bar, the addition or omission of these words, and the difference between the
findings of the trial court and the Court of Appeals as to where the seven spent shells were found,
are too minor and inconsequential to affect the outcome of this case. These, even if considered,
would not overturn the established fact that petitioner was identified as the assailant. Nothing in the
record shows that there was any inconsistency as regards the identity of the assailant. Both private
complainant and Armando Maramba were one in pointing to petitioner as the culprit.
Petitioner interposes the defenses of denial and alibi. He denies participation in the crime claiming
that he was aboard a tricycle on his way to Calasiao, Pangasinan, when policemen arrested him and
brought him to the Dagupan Police Station. On the other hand, the victim himself identified petitioner
as his attacker which statement was corroborated by Armando Maramba.
To be believed, denial must be buttressed by strong evidence of non-culpability. Otherwise, it is

purely self-serving and without merit. 27 Settled is the rule that the defense of alibi is inherently weak
and crumbles in the light of positive declarations of truthful witnesses who testified on affirmative
matters.28 Greater weight is given to the categorical identification of the accused by the prosecution
witnesses than to the accused's plain denial of participation in the commission of the crime. 29 There
being no strong and credible evidence adduced to overcome the testimonies of private complainant
and Armando Maramba pointing to him as the culprit, no weight can be given petitioner’s denial.
Article 6

Petitioner’s defense of alibi likewise fails. As against positive identification by prosecution witnesses,
the accused’s alibi is worthless.30 Having been identified by two credible witnesses, petitioner cannot
escape liability. Moreover, for alibi to prosper, it must be proven that during the commission of the
crime, the accused was in another place and that it was physically impossible for him to be at the
locus criminis.31 Courts view the defense of alibi with suspicion and caution not only because it is
inherently weak and unreliable, but also it can be fabricated easily. 32 As found by the trial court, it
was not physically impossible for petitioner to be at the crime scene when the crime was committed
since it only takes a ten-minute ride from the place where he allegedly alighted from the car of one
Berting Soriano to the crime scene. We have held that:
Alibi, the plea of having been elsewhere than at the scene of the crime at the time of the commission
of the felony, is a plausible excuse for the accused. Let there be no mistake about it. Contrary to the
common notion, alibi is in fact a good defense. But to be valid for purposes of exoneration from a
criminal charge, the defense of alibi must be such that it would have been physically impossible for
the person charged with the crime to be at the locus criminis at the time of its commission, the
reason being that no person can be in two places at the same time. The excuse must be so airtight
that it would admit of no exception. Where there is the least possibility of accused’s presence at the
crime scene, the alibi will not hold water.33
Petitioner contends there was suppression of evidence when the prosecution did not place on the
witness stand Barangay Captain Dacasain of Lasip Grande and when it failed to present a ballistic
report on the seven empty shells because both are vital evidence to prove the identity of the
assailant.
We find such contention untenable.
As to the non-presentation of Barangay Captain Dacasin, the same does not constitute suppression
of evidence. Barangay Captain Dacasin was not an eyewitness to the shooting incident contrary to
the claim of petitioner. Although he was the one who reported the incident to the police station, he
was merely informed by Armando Maramba that the person who shot private complainant wore a
"chaleko" or vest.34 Thus, not being an eyewitness, his testimony, even if taken, would have nothing
to do with the identification of the assailant. If he really wanted to have Barangay Captain Dacasin
take the witness stand, he could have asked the trial court for a subpoena ad testificandum. This, he
did not do.
As regards the failure of the police to present a ballistic report on the seven spent shells recovered
from the crime scene, the same does not constitute suppression of evidence. A ballistic report
serves only as a guide for the courts in considering the ultimate facts of the case. 35 It would be
indispensable if there are no credible eyewitnesses to the crime inasmuch as it is corroborative in
nature.36 The presentation of weapons or the slugs and bullets used and ballistic examination are not
prerequisites for conviction. The corpus delicti and the positive identification of accused-appellant as
the perpetrator of the crime are more than enough to sustain his conviction. 37 Even without a ballistic
report, the positive identification by prosecution witnesses is more than sufficient to prove accused’s
guilt beyond reasonable doubt. 38 In the instant case, since the identity of the assailant has been
sufficiently established, a ballistic report on the slugs can be dispensed with in proving petitioner’s
guilt beyond reasonable doubt.
Petitioner’s asseveration that it is unthinkable for him to shoot private complainant because he has
no motive to harm, much less kill the latter, he being a total stranger, deserves scant consideration.
It must be stressed that motive is a state of (one’s) mind which others cannot discern. It is not an
element of the crime, and as such does not have to be proved. In fact, lack of motive for committing
a crime does not preclude conviction. It is judicial knowledge that persons have been killed or
assaulted for no reason at all.39 Even in the absence of a known motive, the time-honored rule is that
motive is not essential to convict when there is no doubt as to the identity of the culprit. 40 Motive
assumes significance only where there is no showing of who the perpetrator of the crime was. 41 In
the case at bar, since petitioner has been positively identified as the assailant, the lack of motive is
no longer of consequence.
Petitioner argues that the testimony of prosecution witness Armando Maramba should not be given
weight because the same is biased and incredible on the ground that he is the uncle of the private
complainant.
This argument does not inspire belief. The blood relationship of Armando Maramba and private
complainant would not render the former’s testimony unworthy of belief. On the contrary, relationship
could strengthen the witnesses’ credibility, for it is unnatural for an aggrieved relative to falsely
accuse someone other than the actual culprit. Their natural interest in securing the conviction of the
guilty would deter them from implicating a person other than the true offender. 42 It is settled that
where there is no evidence and nothing to indicate that the principal witnesses for the prosecution
were actuated by improper motive, the presumption is that they were not so actuated and their
testimonies are entitled to full faith and credit. 43 The weight of the testimony of witnesses is not
Article 6

impaired nor in anyway affected by their relationship to the victim when there is no showing of
improper motive on their part.44 Jurisprudence likewise holds that if an accused had really nothing to
do with a crime, it would be against the natural order of events and of human nature, and against the
presumption of good faith, that a prosecution witness would falsely testify against him. 45 In the case
before us, aside from petitioner’s claim that he was framed-up, there is nothing in the records that
shows that Armando Maramba had ulterior motives in testifying against him. Necessarily, the
testimony of Armando Maramba must be given full credit.
Petitioner claims that as a navy man who is trained to kill enemies of the state, a "protector of the
people," he could not have acted in the manner which the prosecution pointed out. He said it is
against human experience to attempt to kill a person in the presence of a witness and in broad
daylight, and that it is preposterous that after firing seven shots at close range, he failed to fatally hit
the private complainant. All these, he said, only point to a different assailant.
We are not convinced. The records show that the shooting happened at around 7:30 a.m. The fact
that the shooting occurred in broad daylight does not render its commission impossible. 46 This Court
takes notice that it is not unusual that killings are perpetrated in front of witnesses. In the instant
case, the attempted killing was witnessed by Armando Maramba, the driver of the tricycle which
petitioner rode in going to, and in leaving, the crime scene.
Petitioner argues that he could not have been the assailant because it was simply impossible for
him, being a navy man, not to fatally hit private complainant after firing seven shots at close range.
In effect, what he is saying is that the bungled killing cannot be the handiwork of an experienced
soldier like him. Such an argument does not hold water. In the case of People v. Mamarion, 47 we
brushed aside the very same argument raised by the accused therein who was an experienced
military man. We ruled that an accused is not entitled to an acquittal simply because of his previous,
or even present, good moral character and exemplary conduct. The fact that petitioner was a navy
man -- a protector of the people -- does not mean that he is innocent of the crime charged or that he
is incapable of doing it. This argument fails in light of the identification made by the victim himself
and by Armando Maramba that it was petitioner who was the assailant.
Finally, petitioner submits that if ever he committed a crime, he merely committed attempted
homicide. He maintains there was no sudden firing because the victim testified he was observing the
alleged gunman for a period of ten seconds before the latter finally drew his .45 caliber pistol and
fired at him. After the first shot, the victim was able to run away.
The lower court was correct in appreciating treachery in the commission of the crime. There is
treachery when the following essential elements are present, viz: (a) at the time of the attack, the
victim was not in a position to defend himself; and (b) the accused consciously and deliberately
adopted the particular means, methods or forms of attack employed by him. 48 The essence of
treachery is the swift and unexpected attack on an unarmed victim without the slightest provocation
on the part of the victim.49 It was clearly established that private complainant, while washing his jeep,
was suddenly fired upon by petitioner for no reason at all. The suddenness of the shooting and the
fact that he was unarmed left private complainant with no option but to run for his life. It is likewise
apparent that petitioner consciously and deliberately adopted his mode of attack making sure that
private complainant will have no chance to defend himself by reason of the surprise attack.
Petitioner’s claim that the shooting was not sudden because private complainant was observing him
from the time he alighted from the tricycle is belied by the fact that private complainant was not able
to run when he was first fired upon. Though private complainant was looking at him, the former was
not forewarned by any outward sign that an attack was forthcoming. It was only after the first shot
that he felt his life was in danger.
Having commenced the criminal act by overt acts but failing to perform all acts of execution as to
produce the felony by reason of some cause other than his own desistance, petitioner committed an
attempted felony. Petitioner already commenced his attack with a manifest intent to kill by shooting
private complainant seven times, but failed to perform all the acts of execution by reason of causes
independent of his will, that is, poor aim and the swiftness of the latter. Private complainant
sustained a wound on the left arm that is not sufficient to cause his death. The settled rule is that
where the wound inflicted on the victim is not sufficient to cause his death, the crime is only
attempted murder, since the accused did not perform all the acts of execution that would have
brought about death.50
The penalty imposed by the trial court is correct. Under Article 51 of the Revised Penal Code, the
penalty lower than two degrees than that prescribed by law for the consummated felony shall be
imposed upon the principal in an attempted felony. Under Article 248 of the Revised Penal Code, the
penalty for murder is reclusion perpertua to death. The penalty two degrees lower is prision mayor.
Applying the Indeterminate Sentence Law, and there being no aggravating or mitigating
circumstances, the minimum of the penalty to be imposed should be within the range of prision
correccional, and the maximum of the penalty to be imposed should be within the range of prision
mayor in its medium period.
Article 6

WHEREFORE, in view of the foregoing, the petition is DENIED. Costs against petitioner.
SO ORDERED.
MINITA V. CHICO-NAZARIO
Associate Justice
G.R. No. 133442 March 23, 2004
PEOPLE OF THE PHILIPPINES, appellee,

vs.
RODRIGO ALMAZAN, appellant.
DECISION
CALLEJO, SR., J.:
This is an appeal from the Decision1 of the Regional Trial Court of Bangued, Abra, Branch 2,
convicting the appellant Rodrigo Almazan of murder and sentencing him to suffer an indeterminate
penalty of fourteen (14) years, ten (10) months and twenty (20) days of reclusion temporal, as
minimum, to eighteen (18) years of reclusion temporal, as maximum. On appeal, the Court of
Appeals (CA) rendered its Decision 2 on February 27, 1998 affirming the decision of the trial court but
increasing the penalty to reclusion perpetua.3 The CA certified the case to this Court pursuant to
Section 13, Rule 124 of the Revised Rules on Criminal Procedure. The Court accepted the case.
The appellant was charged with murder in an Information, the accusatory portion of which reads as
follows:
That on or about the 14th day of May 1989, at around 9:00 o’clock in the morning, at Barangay
Calaba, in the municipality of Bangued, province of Abra, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, with intent to kill, with treachery and evident
premeditation, and while armed with a firearm (unrecovered), did then and there, willfully, unlawfully
and feloniously shoot one LORETO APOLINAR several times, hitting him on the head and other
parts of his body, which caused his death shortly thereafter, to the damage and prejudice of the heirs
of the victim.4
The appellant was duly arraigned, assisted by counsel, and entered a plea of not guilty. 5
The Case for the Prosecution
The first witness of the prosecution was Felimar Apolinar who testified that her husband Loreto
Apolinar worked as a weaver.6 In the morning of May 14, 1989, she and Loreto were taking a bath at
the Abra River, Barangay Calaba, about 45 meters away from their house. She also washed clothes.
By 9:00 a.m., they decided to go home. From the river, they trekked by a narrow trail. She carried a
basin by her side full of washed clothes. Loreto, who was naked from waist up, was ahead of her by
9 meters.7 Suddenly, Rodrigo (Odit) Almazan, who was armed with a foot-long firearm, 8 jumped from
the hill at Loreto’s right side and landed slightly at a distance of about a meter from him. Almazan
then aimed his gun at Loreto and shot him. The muzzle of the gun was about 2 feet from Loreto.
Although already mortally wounded and bloodied, Loreto instinctively fled towards the house of
spouses Eriberto and Francisca Sequerra, which was 45 meters away from the place where the
appellant first shot Loreto.9 Almazan, still armed with his gun, pursued Loreto.10 Felimar followed the
two, shouting and pleading in the Ilocano dialect to Almazan, "Odit, Odit, Odit, don’t shoot my
husband!"11 Almazan ignored her. Loreto managed to enter the house of the Sequerras. 12 Almazan
barged inside the house and saw Loreto crawling toward the sawali wall. Felimar managed to reach
the first step of the stairs to the said house but was shocked when Almazan shot Loreto for the
second time. Almazan then went out of the house and, upon seeing Felimar at the foot of the stairs,
told her, "You are also one (sic), you want that I will kill you!" 13 Before Felimar could reply, Almazan
fled from the scene. Felimar ran to the house of their neighbor, Patrolman Juanito Blanes of the
Bangued Police Station.14 She reported the shooting to him and sought help. She then lost
Article 6

consciousness and came to her senses only after about 30 minutes. 15 The next day, May 15, 1989,
she gave her sworn statement to Pat. Antonio Carpio. 16
Patrolman Juanito Blanes testified that on May 14, 1989, between 8:00 a.m. and 9:00 a.m., he was
on board a tricycle on his way to his house at Barangay Calaba when he met Almazan. 17 When he
arrived home, he heard two gunshots. After a couple of minutes, Francisca Sequerra arrived in his
house, pleading, "Brother, help us because Loreto Apolinar entered our house and he was shot by
Rodrigo Almazan."18 Blanes took his pistol and left his house to go to the house of the
Sequerras.19 On his way, he met Felimar who also pleaded to him saying, "Please brother, help us
because Rodrigo Almazan killed my husband."20 When he arrived at the Sequerras’ house, Loreto
was already dead.21 He sent someone to report the matter to the Bangued Police Station.
Momentarily, Corporal Catalino Buenafe and Lt. Esteban Pangda arrived and conducted an on-the-
spot investigation.22 They also took pictures of the crime scene.23 One of the pictures showed
Loreto’s head protruding through the sawali wall of the house. 24
Francisca Sequerra testified that on May 14, 1989 at 9:00 a.m., she was washing clothes in the Abra
River.25 She was with Monching Bayle, Rening Sequerra and some children. 26 She also saw Loreto
and even joked with him.27 However, she did not see Felimar in the river on that occasion. 28 As she
was climbing up to the trail on her way home, Loreto, who was then behind her, pleaded for her help.
She saw Loreto bloodied all over. Afraid for her life, she did not help Loreto. 29 The latter passed by
her and ran towards their (Sequerras’) house. Instead of going home, Francisca opted to proceed to
the place where there were several people. 30 Thereafter, she no longer knew what happened to
Loreto.
On July 11, 1989, or almost two weeks from the killing, Francisca gave a statement to Staff Sergeant
(S/Sgt.) Edgardo C. Dacquel of the 123rd PC Company/Police District I, Camp Juan Villamor,
Bangued, Abra. In her statement, she stated that when she was about to reach her house from the
river, he heard gunfire and heard Loreto pleading to her, "I am shot, please help me, sister!" Loreto
repeated his plea to her as he passed by her and fled to her house. She noticed that Loreto was
bloodied all over. When she arrived home, her mother-in-law, Maxima Sequerra, instructed her to
report the matter and seek help from the police. She left the house to report the matter to Patrolman
Juanito Blanes. Aside from her mother-in-law, Francisca’s daughter, Maria Sequerra, and her
children were also in the house. She did not know who shot Loreto. 31 She testified, on cross
examination, that when she reported the matter to Blanes, she did not tell the policeman that it was
Almazan who shot Loreto.32
The prosecution presented S/Sgt. Dacquel who identified his Report dated August 31, 1989 on the
killing of Loreto by Almazan which S/Sgt. Dacquel submitted to the Provincial Commander/Police
Superintendent, Abra PC/INP Command. S/Sgt. Dacquel recommended that:
10. … Criminal Complaint for MURDER be filed against C2C Rodrigo Almazan PC before the
competent military court.
11. … C2C Rodrigo Almazan PC be summarily discharged from the military service, effective upon
approval so that his case will be tried in the merits of the civil court. 33
The Provincial Commander concurred with the foregoing recommendation. The order discharging
Almazan from the service was approved by the appropriate officer of the military on November 23,
1989.34
Dr. Herminio B. Venus, Medical Specialist I of the Abra Provincial Hospital, testified that he
conducted an autopsy on Loreto’s cadaver. He, thereafter, prepared an Autopsy Report containing
the following findings:
DIAGNOSIS: MULTIPLE GUNSHOT WOUND
HEAD AND CHEST THRU
AND THRU
CADAVER - Lividity and Rigidity
Length – 160 centimeter
Weight – 60 kilos
EXTERNAL FINDINGS:
Article 6

1. Gunshot wound. Chest lateral thru and thru POE 8 holes measuring in centimeters in
diameter 5 centimeters apart 8 centimeters from the right axilla, oval in shape, inverted
edges with contusion collar around the wounds directed obliquely penetrating the thoracic
cavity existing POEX at the right chest anterior 4 holes measuring 1.5 centimeters in
diameter everted edges 3 centimeters apart below the right nipple.
2. Presence of powder burn at the right shoulder, right thumb and index finger.
3. Gunshot wound head 5 centimeters above the right ear POE measuring 4 centimeters in
diameter, oval in shape, inverted edges with contusion collar around the wound, directed
slight downward penetrating cranial cavity exiting POEX at left neck with 4 holes 3
centimeters apart everted edges.
INTERNAL FINDINGS:
1. Presence of 1000 cc. of soft clotted blood inside the thoracic cavity.
2. Presence of cylindrical tunnel at the right lung middle, upper and lower lobe with blood
contents and echymotic border.
3. Laceration of the liver
4. Laceration of the arch of aorta
5. Laceration of the brain substance soft clotted blood inside the brain.
6. Pillars and core were extracted.
CAUSE OF DEATH: CARDIAC TAMPONADE
BRAIN INJURY, INTRA
CRANIAL, INTERNAL
AND EXTERNAL
HEMORRHAGE MASSIVE,
SECONDARY TO MULTIPLE
GUNSHOT WOUND HEAD
AND CHEST THRU AND THRU35
He testified that Wound No. 1 was "thru and thru" and fatal. Powder burns were present on the
victim’s right shoulder. He managed to hold the gun as indicated by the presence of powder burns
on his right thumb and index finger. Wounds Nos. 1 and 2 could have been caused by a shotgun or
a buckshot.
The Case for the Appellant
In his Brief submitted to the CA, the appellant summarized his testimony and those of his witnesses,
thus:
1. CAPTAIN RODOLFO RIVERA
Commanding Officer of the 135th PC Co, stationed in the Municipality of La Paz,

Abra, he testified that he personally supervised and check[ed] the physical
attendance and disposition of all members of his command; that accused herein,
Rodrigo Almazan was a member of his command with the rank of Constable 2d
Class; his physical presence and performance of duty had been duly accounted for
like any other individual member of his unit; and based on official documents, duly
and daily prepared, and thereafter, officially submitted to higher headquarters, i.e.,
Morning Reports (Exhibit "3;" Daily Disposition and location of Troops (Exhibit "4,"
"5," "6," and "7"); and Guard Detail (Exhibit "9"), accused Almazan was physically
present inside camp, and actually performed his duty as guard from 13 May 1989 to
14 May 1989.
Article 6

He executed an affidavit (Exhibit "8"), confirming the fact that accused performed his
normal garrison duties, e.g., attending daily formation, camp guarding, and had
participated in combat operations against dissidents in the Cordillera mountain towns
of Daguioman and Malibcong from May 14, 1989, up to the time he was placed
under arrest on November 07, 1989.
2. T/SGT WILFREDO CACHO
The Company First Sergeant of the 135th PC Co, he testified that he conducted daily
physical check-up of the men personally, supervised the performance of duty of each
and every member thereof; that their physical presence were reflected in official
documents submitted to higher headquarters which he, himself, or his clerk, prepares
such as the Morning Reports, Daily Disposition and Location of Troops, Guard
Details, etc; that based on these documents, accused Almazan, as a bona
fide member of the command, was duly accounted for as physically present inside
the camp at La Paz, Abra for the period: May 11, 12, 13, 14, 1989 (Exhibits "4," "5,"
"6," and "7," respectively).
3. T/SGT EDMUNDO LORENZO
Designated as Sergeant of the Guard for the period – May 13-14, 1989, he
personally prepared the Guard Detail (Exhibit "9"), as follows:
1st Shift (2-hour guarding or a total of 6 hours-May 13)
5:00 P.M. – 7:00 P.M. – 1st relief – Carmelo Trinidad
7:00 P.M. – 9:00 P.M. – 2d relief – Rodrigo Almazan
9:00 P.M. –11:00 P.M. – 3d relief – Carlos Layug
2d Shift (2-hour guarding or a total of 6 hours-May 13/14)
11:00 P.M. – 01:00 A.M. – 1st relief – Carmelo Trinidad;
01:00 A.M. – 03:00 A.M. – 2d relief – Rodrigo Almazan;
03:00 A.M. – 05:00 A.M. – 3d relief – Carlos Layug
3d Shift (4-hour guarding daytime total-12 hours – May 14)
05:00 A.M. – 9:00 A.M. – 1st relief – Carmelo Trinidad;
09:00 A.M. – 01:00 P.M. – 2d relief – Rodrigo Almazan;
01:00 P.M. - 05:00 P.M. – 3d relief – Carlos Layug.
That as Sergeant of the Guard, he personally checked the performance of duty of

each guard, and in particular, accused was always physically present in his post,
never asked permission to be relieved nor abandoned his post during his tour of duty
as guard.
4. CONSTABLES CARMELO TRINIDAD AND CARLOS LAYUG
The testimonies of above defense witnesses being corroborative in nature,

prosecution initiated the stipulation of their testimonies as follows:
That during their tour of duty as guards, their assumption of and relief from their
duties as guards were performed accordingly;
That during their individual tour of duty as guards, none of them ever leave their
posts physically or go outside of camp, with or without permission.
5. RODRIGO ALMAZAN
Accused-appellant herein, testified as follows:

Article 6

As a member of the 135th PC Co, then stationed at the poblacion, Municipality of La
Paz, Abra, he performed normal garrison duties, e.g., guarding, patrolling, etc;
That he was designated as a member of the daily company guard detail for the whole
period, from 5:00 o’clock P.M. May 13, 1989 to 5:00 o’clock P.M. May 14, 1989, as
the 2d-relief guard;
That the members of the guard detail for said period were: T/Sgt Edmundo Lorenzo,
Sergeant of the Guard, Constable Carmelo Trinidad, 1st Relief; Constable Rodrigo
Almazan (accused), 2d relief, and Constable Carlos Layug as 3 rd relief;
As 2d relief he performed personally guard duty designated as follows:
First Shift [Two (2)-hour guarding]
7:00 o’clock P.M. to 9"00 o’clock P.M. May 13, 1989;
Second Shift [Two (2)-hour guarding]
1:00 o’clock A.M. to 3:00 o’clock A.M. May 14, 1989;
Third Shift [Four (4)-hour guarding]
9:00 o’clock A.M. to 1:00 o’clock P.M. May 14, 1989
That during his entire tour of duty, he never went outside of camp physically; neither did he ever ask
permission to leave his post, or, without permission (abandonment of post), left camp.
That in the early morning of May 15, 1989, his unit, 135th PC Co (to include himself), moved out from
its station at La Paz to the mountainous towns of Malibcong and Daguioman where it launched
combat operations against dissidents;
That he personally participated in the operations from that time (May 15, 1989) up to November 07,
1989, when he was placed under arrest as an accused for the death of Loreto Apolinar; he was
escorted to the Provl. Headquarters at the capital town of Bangued and thereby detained for twenty-
five (25) days until he was released on bail on December 02, 1989; 36
The trial court convicted the appellant as charged but sentenced him to an indeterminate penalty.
The decretal portion of trial court’s decision reads:
WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the crime of murder
without any mitigating or aggravating circumstances and sentences him an indeterminate penalty of
Fourteen (14) Years, Ten (10) Months and Twenty (20) Days as minimum to Eighteen (18) Years of
reclusion temporal as maximum; to indemnify the heirs of the late Loreto Apolinar in the amount of
Fifty Thousand Pesos (P50,000.00) and to pay the cost of this suit. 37
The Court of Appeals affirmed the appealed decision but increased the penalty to reclusion
perpetua.38
The appellant filed a Supplemental Brief with this Court, contending that:
THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT IN LIGHT OF EVIDENCE

ON RECORD WHICH RAISES REASONABLE DOUBT AS TO HIS GUILT. 39
The appellant harps on the fact that prosecution witness Francisca testified that she did not see
Felimar taking a bath nor washing clothes in the Abra River with her husband Loreto. Besides,
Felimar’s testimony is incredible and barren of probative weight because it is frontally contradicted
by the testimony and sworn statement of Francisca.40 Felimar could not have run after Loreto and the
appellant and reach the house of the Sequerras in time for her to hear the second gunfire from the
appellant’s firearm because she was then around eight months pregnant. The house of the
Sequerras was about 247 meters from the Abra River. Felimar could not have negotiated the
distance of 200 meters from the Sequerras’ house to the house of Blanes in her physical condition. If
she saw the appellant shoot and kill Loreto, certainly, the appellant would have also killed her to
eliminate any witness against him. Hence, Felimar’s testimony that the appellant even threatened to
shoot her is implausible. The testimony of Felimar is even contradicted by the physical evidence.
For, if as claimed by her, Loreto was first shot at around a distance of 2 feet between the gun muzzle
and skin, a shotgun blast would have produced a single entry wound although there may be isolated
shots causing independent entry. In this case, the first gunshot wound on the chest of the victim
Article 6

produced eight separate and independent entry wounds on the victim’s chest. Such number of entry
wounds could only have been caused or produced by a buckshot fired at a muzzle to skin distance
of at least ten feet. When police investigators arrived at the scene, they did not even investigate
Felimar and did not take her statement thereat. They merely asked her the assailant’s name. The
appellant could not have killed Loreto because he was a guard on duty at the PC Camp La Paz,
Abra, on May 14, 1989 from 9:00 a.m. to 1:00 p.m. It was only in November 1989 when he learned,
for the first time, that he was a suspect in the killing of Loreto.
The appeal is dismissed.
First. Felimar positively identified the appellant as her husband’s assailant. When she testified,
Felimar declared that the appellant mercilessly shot her husband twice and narrated in great detail
how the appellant committed the crime with impunity:
Q Do you know also a person by the name Loreto Apolinar?
A He is my husband.
Q Where is your husband now?
A He died already, sir.
Q And when did he die?
A May 14, 1989, sir.
COURT
Q What did he die of?
A He was shot by Rodrigo Almazan (witness pointing to the accused).
FISCAL FLORES
Q On May 14, 1989 at around 9:00 in the morning do you know where were you (sic)?
A It was when we went to take a bath at the river.
Q You said we, who was your companion?
A My late husband Loreto Apolinar.
Q How long did it take you to take [a] bath in the river?
A Maybe thirty (30) minutes, sir.
Q And after taking your bath, what did you do next, if any?
A We went home.
Q Do you recall if there was anything that transpired while you were on your way home?
A There was, sir.
Q Will you relate what was that? Start from the beginning.
A After having taken a bath, we were going home and when we were ascending the river
bank, it was then when somebody jumped from the bushes.
Q Do you know that person who jumped from the bushes?
A Yes, sir.
Q Who?
A (Witness pointing to Rodrigo Almazan).

Article 6

Q You stated that since your husband walked faster than you, you were somewhat left
behind, how far were you from your husband who was walking ahead of you?
A Ten (10) meters, more or less.
Q You said that the person who jumped was the accused, my question is, how did he appear
to you when he jumped in front of you?
ATTY. ASTUDILLO
No basis, he did not jump in front of her.
COURT
Q Did you see that person whom you identified as Rodrigo Almazan?
A Yes, sir.
COURT
Now answer the Fiscal.
WITNESS
A He jumped and he was holding a gun.
FISCAL FLORES
Q More or less, will you describe that gun he was holding according to you?
A (Witness indicating a length of one foot.)
Q And after he jumped in front of you, what transpired next?
A He shot my husband and my husband ran away but then he followed him.
COURT
Q Who ran away, your husband?
A My husband ran away it (sic) was followed by Rodrigo Almazan.
FISCAL FLORES
Q How many times did the accused shot your husband, if you know?
A Once, sir.
Q Do you know if your husband was hit at that time?
A I know that he was hit because blood was oozing from his body.
Q Alright, when you saw your husband hit already because according to you blood was
already oozing from his body, what did you see or do if any?
A I ran after them shouting: "Odit, Odit, don’t shoot my husband."
Q Who was that Odit you are addressing your pleas?
A Rodrigo Almazan (witness pointing to the acused).
COURT
Q So this Odit is the nickname of Rodrigo Almazan?
A Yes, sir.
Article 6

FISCAL FLORES
Q Your husband when he was shot ran away and he was followed by the accused, where
did they go, if you know?
A My husband went to the nearest house.
Q And what about you, what did you do when you followed them?
A I followed them, sir, because Rodrigo Almazan was also following my husband.
Q Where did Rodrigo Almazan follow your husband will you tell the court?
A Inside the house.
Q And what happened next inside the house if you know?
A The[n] he shot my husband.
Q How many times did Rodrigo Almazan shot your husband inside the house where your
husband sought refuge?
A Once, sir.
COURT
Q Your husband was shot twice, once on the way going up the riverbank and the other one
is in the house?
A Yes, sir. Once when he was ascending and once in the house where he sought refuge.
FISCAL FLORES
Q You said that your husband was shot for the second time inside the hut where he sought
refuge, how far from you when Rodrigo Almazan shot your husband for the second time, if
you know?
A Maybe less than ten (10) meters.
Q And the first time that your husband was shot when you were ascending that river bank,
how far were you, if you still remember?
ATTY. ASTUDILLO
Already answered, ten meters more or less.
COURT
Ten (10) meters.41
ATTY. ASTUDILLO
Q A while ago, when we were asking you how far was your husband to (sic) the accused at
the time he jumped, you first said less than three meters and then you corrected it, is it not?
A Yes, sir.
Q So at that distance of less than one meter while the accused was on the right side of your
husband, that was the time he shot your husband?
A Yes, sir.
Q Madam Witness, you saw actually how your husband was shot according to you on that
first burst? Would you please personify yourself as your husband and place the Interpreter
Article 6

as the assailant in the way you saw him when he allegedly shot your husband? With the
permission of the Court.
A (The witness demonstrating a firing position towards the left side of the Interpreter with a
long firearm.)
ATTY. ASTUDILLO
Q Could you please be more accurate, Madam Witness. Could you please rise again. You
are the accused. Now, you said that the accused jumped on the right side of your husband.
Please place the Interpreter as your husband, so you must be on his right side.
A (Witness raising her two hands in a firing position, aimed towards the right side of the
Interpreter; and the victim and the assailant as placed by the witness, they are directly
opposite each other.)
Q So that is now the correct position of your husband and the assailant at the time the
assailant first show (sic) the victim?
A Yes, sir.
Q Now, you raised your two hands and protruded it about a meter away from the body, is it
not?
A No, sir. The left hand is slightly bent at the elbow.
Q And you said that your husband and the assailant were less than a meter apart on the
right side of your husband, is it not?
A Yes, sir.
Q So with your protruding left hand, although slightly bent left elbow, you have consumed
about half a meter from your body, is it not?
A Yes, sir.
Q Considering likewise that your husband is only about less than a meter away from the
assailant, the muzzle of the gun, therefore, was already very close to the side of your
husband, is it not?
A It is not so near, sir.
COURT
Q How far was the muzzle of the gun from your husband?
A (Witness demonstrating about one and one-half to two feet.) 42
...
ATTY. ASTUDILLO
Q So, Madam Witness, how long after the first burst of gunfire at the trail up to the second
burst of gunfire inside the house? How long after?
A I cannot estimate, sir.
COURT
Q Before the first shot was fired, did you hear any conversation between your husband and
the assailant?
A None, sir.
Q You did not hear any?
A I did not hear any, sir.

Article 6

Q Is it not a fact, Madam Witness, that immediately after the accused and the assailant
reached the house of Francing Sequerra, there was an immediate burst of gunfire?
A After they had gone inside the house, that was the second shot, sir.
Q Yes, immediately after they had gone inside the house, there was a burst of gunfire?
A Yes, sir.
ATTY. ASTUDILLO
Q Who was ahead in running, Madam Witness, towards the house of Francing Sequerra,
your husband, is it not?
A Yes, sir.
Q And according to your testimony, the accused followed suit?
A Yes, sir.
Q And they were very close [to] each other running towards the house of Francing
Sequerra?
A Maybe less than ten meters distance, sir.
Q How about you, you said you followed suit. How far were you? How close were you from
the back of the accused, also going to the house of Francing Sequerra?
A Maybe less than ten meters also, sir.
Q That house of Francing Sequerra is a one-bedroom house, is it not?
A Two, sir.
Q One living room and two bedrooms?
A That is what they said because I have not gone on (sic) that house.
Q You were still on the ground, according to you, when the second shot was fired inside the
house?
A I was holding the upper portion of the stairs. I was about to step on the first step when I
heard the second shot.
Q How many steps up to the second floor of the house of Francing Sequerra where the
second burst of gunfire occurred?
A Three steps only, sir.
Q But in the place where you were at the time the second shot was fired, you cannot see
your husband, nor the accused, correct?
A Yes, sir.
COURT
Q But did you hear the gunfire?
A Yes, sir.43
It must be emphasized that on May 15, 1989, or barely a day after the killing of her husband,
Felimar gave her sworn statement44 to Pfc. Antonio Carpio of the Bangued Police Station and
gave a detailed narration of how the appellant shot Loreto with a long firearm. The gory
killing of her husband was still fresh in her mind. She subscribed and swore to the truth of
her statement before Notary Public Ricarte B. Valera. Felimar was a 31-year-old housewife.
She finished only Grade VI in the elementary grade. Her testimony and sworn statements
are clear, positive and full of details, including the identity of the appellant. Felimar could not
Article 6

have contrived the details of the killing. Indeed, it is most unlikely that Felimar could have
narrated all the details of the crime with clarity and lucidity unless she herself was present at
the situs criminis before and during the killing.45 The testimony of a witness, giving details of
a startling incident that cannot easily be fabricated, deserves credence and full probative
weight for it indicates sincerity and truthfulness in the narration of events. 46
Second. Felimar testified that she was with her husband at the Abra River and described
how the appellant first shot her husband when the latter was on his way home and again,
when he was inside the Sequerras’ house. On the other hand, Francisca, a prosecution
witness, testified that she did not see Felimar at the river when she washed clothes, 47 and
that she did not reach her house and did not seek help from Pat. Juanito Blanes.
Significantly, Blanes corroborated Felimar’s testimony when he testified that Francisca
arrived at his house asking for his help because the appellant had shot Loreto in her house:
FISCAL FLORES
Q What happened while you were on your way home?
A I rode on a tricycle and the driver was Marlon Barroga and we met Rodrigo Almazan.
Q This Rodrigo Almazan whom you claim to have met while you were on your way to your
barangay on that particular day, is he the same accused who is now seated there?
A The same, sir.
Q Alright, what happened next after you met the accused?
A When I reached home at around thirty (30) minutes after, I heard a gunshot.
Q How many gunshots or reports did you hear?
A Two (2) times (sic), sir.
Q After you heard the two gun reports, what did you do if any?
A I tried to determine where the shot came from and in two minutes after, a person by the
name of Francing Sequerra came to me and asked for help by saying: "Manong, arayatenna
kami ta simrek diay balaymi ni Loreto Apolinar ta pinaltoogan ni Rodrigo Almazan."
(Translated as follows: "Brother, help us because Loreto Apolinar entered our house and he
was shot by Rodrigo Almazan").
Q Do you know this person Loreto Apolinar whom Francing Sequerra was referring to you
when she came to seek your help?
A Yes, sir.
COURT
Q Why do you know Loreto Apolinar?
A We are neighbors because he is also from Calaba, Your Honor.
Q How about this Francing Sequerra, why do you know her?
A Because we are neighbors at Calaba, sir.
Q Is this Francing Sequerra a boy or girl?
A A woman, Your Honor.
COURT
Proceed.
FISCAL FLORES
Q What is the relation of this Loreto Apolinar to the victim in this case, if you know?
Article 6

A The same person, sir.
Q Alright, upon receipt of the information from Francing Sequerra, what did you do next, Mr.
Witness, if any?
A I went to get my service pistol then I went out then I met outside Felimar Apolinar, the wife
of the victim who sought my help by saying: "Manong arayatenna kami ta pinaltoogan ni
Rodrigo Almazan ni lakayko" translated into English as follows: "Please Brother, help us
because Rodrigo Almazan killed my husband."
ATTY. PURUGGANAN
We object to the presentation of that statement because it is hearsay, Your Honor.
COURT
Let it stay on record. We will rule on that but see to it that the objection is put on record. Go
ahead.
FISCAL FLORES
Q Upon being informed by the wife of the victim Felimar Apolinar, what did you do next, if
any?
A I went to the crime scene.
Q And what did you find out to (sic) the place where the incident transpired?
A I found out that Loreto Apolinar….I saw Loreto Apolinar with his head hanging
(nabalintungog) down from the house of Francing Sequerra.
COURT
Q Is this Francisca Sequerra the same as Francing Sequerra?
A Yes, sir.48
Francisca herself stated in her sworn statement to S/Sgt. Dacquel on July 11, 1989 that from the
river she was able to reach her house and, upon the instructions of her mother-in-law, she sped to
the house of Blanes and sought his help. 49 The second statement of Francisca belies her testimony
that instead of proceeding to her house, she went to another house where there were several
people. The trial court disbelieved parts and believed the other portions of Francisca’s testimony.
The trial court cannot be faulted for so doing. It was its duty to determine which portions of the
testimony are credible and which portions are not. In People v. Quilang, 50 this Court held that courts
may believe one part of the testimony of a witness and disbelieve other parts depending on its
inherent credibility or the corroborative evidence in the record. In contrast, Felimar had not
committed any material inconsistency in her sworn statement and her testimony before the trial
court. The appellant failed to present any witness to corroborate Francisca’s testimony that Felimar
was not in the river when Loreto was taking a bath and she (Francisca) was washing clothes in the
river. Likewise, the trial court cannot be faulted for giving full probative weight to the testimony of
Felimar.
Parenthetically, S/Sgt. Dacquel, who conducted the investigation on the appellant’s involvement in
the killing of Loreto, on orders of the Acting Commanding Officer/District Commander and to whom
Francisca gave her sworn statement on July 11, 1989, in his report, noted that:
… Francing Sequerra, on the other hand, might have also seen or witnessed the tragedy but for fear
of being involved or be implicated by the Almazan’s, (sic) she have (sic) turned blind and deaf, so as
to save her life and limb. (Autopsy Report of the late Loreto Apolinar hereto attached and marked as
Tab-"D") 51
Third. Admittedly, when the appellant shot the victim on May 14, 1989, Felimar was eight months on
the family way. The distance from the place where the appellant first shot Loreto to the house of the
Sequerras was only 45 meters. Completely unmindful of her physical condition and determined to
help her husband at all costs, she followed the appellant and Loreto to the house of the Sequerras.
There is no evidence that right after the appellant caught up with Loreto at the Sequerras’ house, the
appellant shot Loreto immediately. It is possible that a struggle ensued between Loreto and the
appellant even as the former crawled to the sawali wall of the house and managed to insert his head
Article 6

through the said wall. By the time Felimar reached the first step of the stairs of the house, the
appellant gave Loreto the coup de grace and shot him for the second time, this time on the head.
Fourth. That the appellant ensured the death of Loreto by shooting him twice with a long firearm but
did not shoot Felimar is not difficult to believe. The evidence on record shows that the appellant
intended and was bent on killing Loreto only. The appellant had no motive to kill Felimar, Francisca,
or any of the other people present, for that matter. Indeed, there was no reason for him to kill
Felimar. Besides, she was eight months on the family way. The appellant must have thought that
although Felimar witnessed the killing of her husband, she would be too petrified to divulge the
assailant’s identity, just like Francisca. However, Felimar proved to be of sterner stuff. She was
determined to put the appellant behind bars for his dastardly crime.
Despite her condition, it was not physically impossible for Felimar to have trekked the 250-meter
distance between the house of the Sequerras and that of Blanes and sought the latter’s help. There
is no evidence on how Felimar was able to cover said distance. She could have reached the house
of Blanes via a tricycle or other mode of transportation. It is not quite far-fetched that despite her
pregnancy, Felimar was able to run from the place where the appellant first shot her husband to the
house of the Sequerras, which was only 45 meters, and from there, still managed to go to Blanes’
house, which was only 250 meters away.
The Court observes that the spouses Loreto and Felimar worked in the farm. It is established in the
medical field that some pregnant women, even late in pregnancy, have run marathons of
considerable distance without apparent harm to themselves or their fetuses:
In general, it is not necessary for the pregnant woman to limit exercise, provided she does not
become excessively fatigued or risk injury to herself or her fetus. The current enthusiasm for jogging
has also attracted a number of pregnant women to the endeavor. In fact, several women, even late
in pregnancy, have run in marathons of considerable distance without apparent harm to themselves
or their fetuses.52
Fifth. The appellant claims that Felimar’s testimony that when he first shot Loreto, the muzzle of the
gun was only 1-1/2 to 2 feet from the victim, is belied by physical evidence. He insists that if her
testimony were true, then there should have been only a single entry wound. However, the autopsy
report showed that Loreto had eight entry wounds on his chest. We do not agree with the appellant.
The fact that the victim had been shot by a shotgun at 2 to 3 feet muzzle to skin distance does not
preclude the possibility of independent entry. Dr. Pedro Solis notes that:
2. Long Range Shot (more than 6 inches skin-muzzle distance):
a. At 2 to 3 feet muzzle-skin distance, there is still a single wound of entry although there may be
isolated shots causing independent entry.53
Sixth. As found by the trial court and the CA, which we find supported by the evidence, the
prosecution proved that the appellant had an ill-motive to kill Loreto:
Lastly, the theory of the police that the motive for the killing of the victim is revenge because earlier,
the victim, Loreto Apolinar was accused for killing P.C. S/Sgt. Rogelio Almazan, brother of the
accused on January 18, 1988, and a criminal complaint for homicide was filed against Loreto
Apolinar, the victim in the instant case or I.S. No. 178 of the Office of the Provincial Fiscal of Abra,
but the resolution of the fiscal exonerated the then respondent Apolinar, (Exhibit "1"), and the
accused in killing the victim was out to revenge his brother’s death is not farfetched. 54
S/Sgt. Dacquel, based on his report, concluded that the appellant killed Loreto to avenge the death
of his brother Rogelio Almazan:
… This is the true fact, but all these facts cannot be admitted by the Almazan’s (sic), who have
conceived hatred and taken revenge and killing the brother of Loreto Apolinar, who was hacked and
stabbed to death by the Almanzan’s (sic). But not yet satisfied with what they have done to the
brother of Loreto Apolinar, the Almazan’s (sic) have not stopped, not until C2C Rodrigo Almazan
succeeded in killing his prime target. With all these facts and circumstances, clearly manifest that
C2C Rodrigo Almazan PC of the 135th PC Company, is the killer of the late Loreto Apolinar, as being
properly identified/pinpointed by the widow of Loreto Apolinar and who was likewise threatened to be
killed by C2C Rodrigo Almazan. …55
The Provincial Commander of Abra and the Acting Commanding Officer/District Commander of the
Philippine Constabulary agreed with the findings of S/Sgt. Dacquel.
In rejecting the appellant’s defense of alibi, we agree with the encompassing disquisitions of the trial
court:
Article 6

To fortify his defense of alibi, the accused submitted the following documentary evidence, to wit:
Exhibits 3, Morning Report, 4, 5, 6 and 7, disposition and location of troops from May 12 to 14, 1989;
Exhibit 9, guard detail and the testimony of witnesses. The time honored albeit weather beaten but
still is the prevailing doctrine in this jurisdiction is that alibi is the weakest defense for the reason that
it can easily be concocted and fabricated and for this defense to hold water the physical impossibility
for the accused to be at the scene of the crime at the particular hour and day of its commission must
be established. The place where the accused claim he was at the time of the commission of the
crime is only a scant 10 kilometers away which can be negotiated by land transportation means in
30 minutes. The estimation of witnesses of the approximate time of commission of the crime
is around 9:00 o’clock in the morning, the end of the guard duty of the accused in the morning of
May 14, 1989. He is to go on guard again at 1:00 o’clock in the afternoon of that day, his last duty.
So that between 9:00 o’clock A.M. to 1:00 o’clock P.M. May 14, 1989, he is off duty and the crime
was committed at around 9:00 o’clock in the morning of May 14, 1989. It is not really impossible for
the accused to be in the vicinity of the scene of the crime at around 9:00 o’clock in the morning of
May 14, 1989. But the most damaging evidence against the accused viz-a-viz his defense of alibi, is
his positive identification by the wife of the victim, Mrs. Felimar Apolinar, a neighbor in Calaba,
Bangued, Abra, who has known the accused since childhood as the assailant of her husband Loreto
Apolinar and the identification by another resident of Calaba, Police Officer Juanito Blanes of the
Bangued Police Station, Bangued, Abra, who testified that on his way home to Calaba, Bangued,
Abra, he saw between the hours of 8:00 o’clock and 9:00 o’clock in the morning of May 14, 1989, the
accused riding on a tricycle driven by one Marlon Barroga. After some 30 minutes from the time he
arrived home, Blanes heard the 2 gunshots. He took his service firearm proceeded to the place
where he heard the shots to investigate and on the way he met Felimar, wife of the victim who
immediately sought his help about the shooting of her husband.
This alibi defense and the documents presented in this trial, as official records of the 135 P.C.
Company were the subject of investigation by authorities at the Constabulary Headquarters in Camp
Crame, Quezon City, Exhibit "14", but apparently the constabulary authorities did not give any
credence to his defense because he was discharged from the military service effective November
30, 1989, not even giving him the chance to present his evidence. In other words, it was a summary
dismissal a procedure resorted to by the military when there is no more need to investigate the case
further because of the notoriety of the occurrence giving rise to the controversy and that whatever
defense may be proffered by the respondent cannot overcome the preponderance of evidence on
record against him. This is what happened in this case and the regularity of the performance of duty
and functions by government officials is presumed. No evidence was ever offered by the accused to
overcome it.56
The Crime Committed by the Appellant
We agree with the trial court and the CA that under Article 248 of the Revised Penal Code, the
appellant is guilty of murder qualified by treachery. The crime was committed before the effectivity of
Republic Act No. 7659; hence, the crime was punishable by reclusion temporal in its maximum
period to death under Article 248 of the Revised Penal Code. Further, under Republic Act No. 8294
amending Presidential Decree No. 1866, the use of an unlicensed firearm to commit homicide or
murder is a special aggravating circumstance in the commission of the crime. The Information
merely alleged that the appellant used a firearm to kill the victim. It did not allege that the same was
unlicensed. Neither was it proved by the prosecution that the appellant had no license to possess
the firearm. The appellant’s lack of license to possess the firearm is an essential element of the
circumstance.57 Unless it is alleged in the Information and proved by the prosecution, the use by the
appellant of an unlicensed firearm to commit murder is not aggravating. Besides, the crime was
committed before the effectivity of the Revised Rules of Court and Rep. Act No. 8294. Hence, the
aggravating circumstance should not be appreciated against the appellant. 58
There being no mitigating or aggravating circumstance attendant to the crime, the medium period of
the penalty imposed by the law for the crime, namely, reclusion perpetua, shall be imposed on the
appellant.59 In this case, the CA correctly imposed the penalty of reclusion perpetua.
On the civil liability of the appellant, he should be ordered to pay exemplary damages to the heirs of
the victim conformably to current jurisprudence. 60
IN LIGHT OF ALL THE FOREGOING, the appeal is DISMISSED. The Decision of the Court of
Appeals, dated February 27, 1998, is AFFIRMED with MODIFICATION. The appellant is hereby
ordered to pay ₱25,000.00 to the heirs of the victim Loreto Apolinar, as exemplary damages.
SO ORDERED.
Quisumbing, (Acting Chairman), Austria-Martinez, and Tinga, JJ., concur.

Puno, J., (Chairman), on leave.
Article 6
F. HOMICIDE
G.R. Nos. L-39303-39305 March 17, 1934
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiffs-appellee,

vs.
FELIPE KALALO, ET AL., defendants.
FELIPE KALALO, MARCELO KALALO, JUAN KALALO, and GREGORIO RAMOS, appellants.
Meynardo M. Farol and Feliciano Gomez for appellants.

Acting Solicitor-General Peña for appellee.
DIAZ, J.:
On November 10, 1932, the herein appellants Felipe Kalalo, Marcelo Kalalo, Juan Kalalo, and
Gregorio Ramos, were tried in the Court of First Instance of Batangas jointly with Alejandro Garcia,
Fausta Abrenica and Alipia Abrenica in criminal cases Nos. 6858, 6859 and 6860, the first two for
murder, and the last for frustrated murder. Upon agreement of the parties said three cases were
tried together and after the presentation of their respective evidence, the said court acquitted
Alejandro Garcia, Fausta Abrenica and Alipia Abrenica, and sentenced the appellants as follows:
In case No. 6858, for the alleged murder of Marcelino Panaligan, to seventeen years, four months
and one day of reclusion temporal, with the corresponding accessory penalties, and to indemnify the
heirs of the said deceased Marcelino Panaligan in the sum of P1,000, with the costs.
In case No. 6859, for the alleged murder of Arcadio Holgado, to seventeen years, four months and
one day of reclusion temporal, with the corresponding accessory penalties, and to indemnify the
heirs of the aforesaid victim, the deceased Arcadio Holgado, in the sum of P1,000, with the costs.
In the third case, that is, No. 6860, wherein the court a quo held that the crime committed was simply
that of discharge of firearm, not frustrated murder, the appellant Marcelo Kalalo was sentenced to
one year, eight months and twenty-one days of prision correccional and to pay the proportionate
part of the costs of the proceedings. Felipe Kalalo and Juan Kalalo, as well as their co-accused
Fausta and Alipia Abrenica, Gregorio Ramos and Alejandro Garcia, were acquitted of the charges
therein.
The accused in the aforesaid three cases appealed from their respective sentences assigning six
alleged errors as committed by the trial court, all of which may be discussed jointly in view of the fact
that they raise only one question, to wit: whether or not said sentences are in accordance with law.
A careful study and examination of the evidence presented disclose the following facts: Prior to
October 1, 1932, the date of the commission of the three crimes alleged in the three informations
which gave rise to the aforesaid three cases Nos. 6858, 6859 and 6860, the appellant Marcelo
Kalalo or Calalo and Isabela Holgado or Olgado, the latter being the sister of the deceased Arcadio
Holgado and a cousin of the other deceased Marcelino Panaligan, had a litigation over a parcel of
land situated in the barrio of Calumpang of the municipality of San Luis, Province of Batangas. On
September 28, 1931, and again on December 8th of the same year, Marcelo Kalalo filed a complaint
against the said woman in the Court of First Instance of Batangas. By virtue of a motion filed by his
opponent Isabela Holgado, his first complaint was dismissed on December 7, 1931, and his second
complaint was likewise dismissed on February 5, 1932. Marcelo Kalalo cultivated the land in
Article 6

question during the agricultural years 1931 and 1932, but when harvest time came Isabela Holgado
reaped all that had been planted thereon.
On October 1, 1932, Isabela Holgado and her brother Arcadio Holgado, one of the deceased,
decided to order the aforesaid land plowed, and employed several laborers for that purpose. These
men, together with Arcadio Holgado, went to the said land early that day, but Marcelo Kalalo, who
had been informed thereof, proceeded to the place accompanied by his brothers Felipe and Juan
Kalalo, his brother-in-law Gregorio Ramos and by Alejandro Garcia, who were later followed by
Fausta Abrenica and Alipia Abrenica, mother and aunt, respectively, of the first three.
The first five were all armed with bolos. Upon their arrival at the said land, they ordered those who
were plowing it by request of Isabela and Arcadio Holgado, to stop, which they did in view of the
threatening attitude of those who gave them said order. 1ªvvphi1.ne+
Shortly after nine o'clock on the morning of the same day, Isabela Holgado, Maria Gutierrez and
Hilarion Holgado arrived at the place with food for the laborers. Before the men resumed their work,
they were given their food and not long after they had finished eating, Marcelino Panaligan, cousin of
said Isabela and Arcadio, likewise arrived. Having been informed of the cause of the suspension of
the work, Marcelino Panaligan ordered said Arcadio and the other laborers to again hitch their
respective carabaos to continue the work already began. At this juncture, the appellant Marcelo
Kalalo approached Arcadio, while the appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos, in
turn, approached Marcelino Panaligan. At a remark from Fausta Abrenica, mother of the Kalalos,
about as follows, "what is detaining you?" they all simultaneously struck with their bolos, the
appellant Marcelo Kalalo slashing Arcadio Holgado, while the appellants Felipe Kalalo, Juan Kalalo
and Gregorio Ramos slashed Marcelino Panaligan, inflicting upon them the wounds enumerated and
described in the medical certificates Exhibits I and H. Arcadio Holgado and Marcelino Panaligan died
instantly from the wounds received by them in the presence of Isabela Holgado and Maria Gutierrez,
not to mention the accused. The plowmen hired by Arcadio and Isabela all ran away.
Arcadio Holgado's body bore the following six wounds, to wit:
1. A cut wound on the ulnar side of right arm near the wrist, cutting the ulnar bone completely
and, the radius partially.
2. A cut wound on the anterior upper portion of the left arm measuring about 7 cm. long and
5 cm. wide extending to the bone and cutting the deltoid muscle across.
3. A penetrating wound on the left chest just below the clavicle going thru the first intercostal
space measuring about 8 cm. long and 2 cm wide.
4. A wound on the left side of the back about 20 cm. long following the 10th intercostal space
and injuring the lung, diaphragm, stomach and large intestine.
5. A small superficial cut wound about 2 cm. long and ½ cm. wide situated on the inner side
of the right scapula.
6. A superficial wound barely cutting the skin, about 4 cm. long in the lumbar region just to
the right of the spinal column. (Exhibit I.)
Marcelino Panaligan's body, in turn, bore the following fourteen wounds, to wit:
1. A penetrating cut wound in the epigastric region of the abdomen measuring about 7 cm.
long and 3 cm. wide cutting the omentum and injuring the lower portion of the stomach and a
portion of the transverse colon, but no actual perforation of either one of the two organs.
2. A cut wound on the head just above the forehead about 6 cm. long and 4 cm. wide lifting a
portion of scalp as a flap.
3. A cut wound on the left side of the head measuring about 7 cm. long and 2 cm. wide.
4. A cut wound about 12 cm. long across the face just below the eyes extending from one
cheek bone to the other, perforating the left antrum and cutting the nasal bone.
5. A cut wound on the anterior portion of the left forearm extending to the bone with a flap of
skin and muscle which measures about 12 cm long and 6 cm. wide.
6. A cut wound across the dorsal side of the right hand about 5 cm. long and 2 cm. wide
cutting the bones of the hand.
Article 6

7. A superficial wound about 6 cm. long and 4 cm. wide and 2 cm. deep situated in the left
axilla.
8. A cut wound about 6 cm. long and 2 cm. wide situated over the left scapula.
9. A cut wound on the right shoulder about 6 cm. long passing near the inner angle of the
scapula cutting the muscles of the shoulder.
10. A cut wound about 7 cm. long and 3 cm. wide situated near and almost parallel to the
inner border of the right scapula.
11. A wound on the back of the head, oval in shape, about 10 cm. long and 5 cm. wide from
which a flap of scalp was removed.
12. A wound across the back and left side of the neck about 12 cm. long and 7 cm. deep
cutting the vertebral column together with the great arteries and veins on the left side of the
neck.
13. A wound about 15 cm. long and 4 cm. wide on the left side of the back.
14. A small wound on the left thumb from which a portion of the bone and other tissues were
removed. (Exhibit H.)
The above detailed description of the wounds just enumerated discloses — and there is nothing of
record to contradict it all of them were caused by a sharp instrument or instruments.
After Arcadio Holgado and Marcelino Panaligan had fallen to the ground dead, the appellant Marcelo
Kalalo took from its holster on the belt of Panaligans' body, the revolver which the deceased carried,
and fired four shots at Hilarion Holgado who was then fleeing from the scene inorder to save his own
life.
The appellants attempted to prove that the fight, which resulted in the death of the two deceased,
was provoked by Marcelino Panaligan who fired a shot at Marcelo Kalalo upon seeing the latter's
determination to prevent Arcadio Holgado and his men from plowing the land in question. No such
firing, however, can be taken into consideration, in the first place, because of the existence of
competent evidence such as the testimony of Maria Gutierrez, who is a disinterested witness, which
corroborates that of Isabela Holgado in all its details, showing that the said deceased was already
lying prostrate and lifeless on the ground when the appellant Marcelo Kalalo approached him to take
his revolver for the purpose of using it, as he in fact did, against Hilarion Holgado; in the second
place, because the assault and aggression of the said appellant were not directed against said
Marcelino Panaligan but exclusively against Arcadio Holgado, the evidence of record on this point
being overwhelming, and if his claim were true, he naturally should have directed his attack at the
person who openly made an attempt against his life; in the third place, because the evidence shows
without question that Panaligan was an expert shot with a revolver, and among the eight wounds
that the appellant Marcelo Kalalo received (Exhibit 3), not one appears to have been caused by
bullet, and similarly, none of the other appellants received any wound that might, in any way,
suggest the possibility of having been caused by bullet; and finally, because the fact that he and his
co-appellants, together with those who had been charged jointly with them, had gone to the place of
the crime armed with bolos, determined at any cost to prevent the Holgados from plowing the land in
dispute, cannot but disclose not only their determination to resort to violence or something worse,
but that they did not need any provocation in order to carry out their intent.
They likewise attempted to prove that the appellant Marcelo Kalalo alone fought against the
deceased Marcelino Panaligan and Arcadio Holgado and inflicted upon them the wounds which
resulted in their death, said appellant testifying that he was compelled to do so in defense of his own
life because both of the deceased attacked him first, the former with a revolver, firing three shots at
him, and the latter with a bolo. For the same reasons hereinbefore stated, such defense of the
appellants cannot be given credit. One man alone could not have inflicted on the two deceased their
multiple wounds, particularly when it is borne in mind that one of them was better armed, because
he carried a revolver, and that he was furthermore an expert shot and scarcely two arm-lengths from
Kalalo, according to the latter's own testimony. The two witnesses for the defense, who witnessed
the crime very closely, refuted such allegation saying that Marcelo Kalalo alone fought the deceased
Arcadio Holgado and that the other three appellants went after the other deceased. It is true that
Arcadio Holgado also used his bolo to defend himself from Marcelo Kalalo's aggression but it is no
less true that five of the principal wounds of the other deceased Marcelino Panaligan were inflicted
on him from behind, inasmuch as according to Exhibit H they were all found at the back of the head,
on the neck and on his back. Neither is it less true that all the wounds of the appellant Marcelo
Kalalo were inflicted on him from the front, which fact shows that it was not he alone who inflicted the
wounds on the two deceased because had he been alone Panaligan would not have exposed his
Article 6

back to be thus attacked from behind, inasmuch as he was armed with a revolver, which
circumstance undoubtedly allowed him to keep at a distance from Kalalo; and in connection with the
testimony of Isabela Holgado and Maria Gutierrez, said circumstance shows furthermore that the
three appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos attacked said Panaligan with their
respective bolos at the same time that Marcelo Kalalo attacked Arcadio Holgado, in order that all
might act simultaneously in conformity with the common intent of the four and of their coaccused to
eliminate through violence and at any cost, without much risk to them, all those who wanted to plow
the land which was the cause of the dispute between the two parties. And it is not strange that the
three appellants, who inflicted the wounds upon Marcelino Panaligan, should act as they did,
because they knew that the latter carried a revolver in a holster on his belt.
Although it may seem a repetition or redundancy, it should be stated that Marcelo Kalalo's allegation
that he acted in self-defense is absolutely unfounded on the ground that, were it true that the
deceased Marcelino Panaligan succeeded in using his revolver, he would have wounded if not the
said appellant, at least the other appellants.
The trial court has acted correctly in not giving credit to the testimony of the appellants Juan and
Felipe Kalalo and Gregorio Ramos that they proceeded to the scene of the crime completely
unarmed, with the exception that one of them had a brush in his hand and the other a plane, after
Marcelino Panaligan and Arcadio Holgado had already expired, which is incredible and improbable
under the circumstances, knowing, as in fact they then knew, that their brother Marcelo Kalalo had
been attacked by armed men. This court cannot help but agree with the decision of the lower court
where it states:
It is improbable that after having been informed that their brother was engaged in a fight,
they went to the scene of the crime, one merely armed with a plane and the other with a
brush. It is improbable that Felipe Kalalo also went to that place simply to follow Juan Kalalo
and Gregorio Ramos upon seeing them run unarmed in that direction. These improbabilities
of the defenses of the accused, in the face of the positive and clear testimony of the
eyewitnesses pointing to the said accused as the aggressors of the deceased Marcelino
Panaligan and Arcadio Holgado, cannot, of course, prevail against nor detract from the
weight of the evidence of the prosecution, particularly taking into consideration the numerous
wounds of each of the deceased and the positions thereof, which show that the said
deceased were attacked by several persons and that those several persons were the
defendants. Furthermore, the established fact that after the commission of the crime the said
defendants had been in hiding in order to avoid arrest, is corroborative evidence of their guilt.
It certainly is a fact of record that the said three appellants Felipe Kalalo, Juan Kalalo and Gregorio
Ramos were not arrested until after several days, because they had been hiding or, at least,
absenting themselves from their homes.
That the four appellants should all be held liable for the death of the two deceased leaves no room
for doubt. All of them, in going to the land where the killing took place, were actuated by the same
motive which was to get rid of all those who might insist on plowing the land which they believed
belonged to one of them, that is, to Marcelo Kalalo, a fact naturally inferable from the circumstance
that all of them went there fully armed and that they simultaneously acted after they had been
instigated by their mother with the words hereinbefore stated, to wit: "What is detaining you?"
The question now to be decided is whether the appellants are guilty of murder or of simple homicide
in each of cases G.R. No. L-39303 and G.R. No. L-39304. The Attorney-General maintains that they
are guilty of murder in view of the presence of the qualifying circumstance of abuse of superior
strength in the commission of the acts to which the said two cases particularly refer. The trial court
was of the opinion that they are guilty of simple homicide but with the aggravating circumstance of
abuse of superior strength.
It is true that under article 248 of the Revised Penal Code, which defines murder, the circumstance
of "abuse of superior strength", if proven to have been presented, raises homicide to the category of
murder; but this court is of the opinion that said circumstance may not properly be taken into
consideration in the two cases at bar, either as a qualifying or as a generic circumstance, if it is
borne in mind that the deceased were also armed, one of them with a bolo, and the other with a
revolver. The risk was even for the contending parties and their strength was almost balanced
because there is no doubt but that, under circumstances similar to those of the present case, a
revolver is as effective as, if not more than three bolos. For this reason, this court is of the opinion
that the acts established in cases Nos. 6858 and 6859 (G.R. Nos. L-39303 and 39304, respectively),
merely constitute two homicides, with no modifying circumstance to be taken into consideration
because none has been proved.
As to case No. 6860 (G.R. No. 39305), the evidence shows that Marcelo Kalalo fired four successive
shots at Hilarion Holgado while the latter was fleeing from the scene of the crime in order to be out of
reach of the appellants and their companions and save his own life. The fact that the said appellant,
Article 6

not having contended himself with firing only once, fired said successive shots at Hilarion Holgado,
added to the circumstance that immediately before doing so he and his co-appellants had already
killed Arcadio Holgado and Marcelino Panaligan, cousin and brother-in-law, respectively, of the
former, shows that he was then bent on killing said Hilarion Holgado. He performed everything
necessary on his pat to commit the crime that he determined to commit but he failed by reason of
causes independent of his will, either because of his poor aim or because his intended victim
succeeded in dodging the shots, none of which found its mark. The acts thus committed by the said
appellant Marcelo Kalalo constitute attempted homicide with no modifying circumstance to be taken
into consideration, because none has been established.
Wherefore, the three appealed sentences are hereby modified as follows:
In case No. 6858, or G.R. No. 39303, the court finds that the crime committed by the appellants is
homicide and they hereby sentenced to fourteen years, eight months and one day of reclusion
temporal each, to jointly and severally indemnify the heirs of Marcelino Panaligan in the sum of
P1,000 and to pay the proportionate part of the costs of the proceedings of both instances; and by
virtue of the provisions of Act No. 4103, the minimum of the said penalty of reclusion temporal is
hereby fixed at nine years;
In case No. 6859, or G.R. No. 39304, the court likewise finds that the crime committed by the
appellants is homicide, and they are hereby sentenced to fourteen years, eight months and one day
of reclusion temporal each, to jointly and severally indemnify the heirs of Arcadio Holgado in the sum
of P1,000 and to pay the proportionate part of the costs of both instances; and in conformity with the
provisions of Act No. 4103, the minimum of the penalty of reclusion temporal herein imposed upon
them is hereby fixed at nine years;
In case No. 6860, or G.R. No. 39305, the court finds that the crime committed by the appellant
Marcelo Kalalo is attempted homicide, and he is hereby sentenced to two years, four months and
one day of prision correccional, it being understood that by virtue of the provisions of said Act No.
4103, the minimum of this penalty is six months, and he is furthermore sentenced to pay the costs of
the appeal in this case.
In all other respects, the appealed sentences in the said three cases are hereby affirmed without
prejudice to crediting the appellants therein with one-half of the time during which they have
undergone preventive imprisonment, in accordance with article 29 of the Revised Penal Code. So
ordered.
Street, Abad Santos, Hull, and Butte, JJ., concur.

Article 6
G.R. No. 122099 July 5, 2000

vs.
AGAPITO LISTERIO y PRADO and SAMSON DELA TORRE y ESQUELA, accused,
AGAPITO LISTERIO y PRADO, accused-appellant.
DECISION
YNARES-SANTIAGO, J.:
For the deadly assault on the brothers Jeonito Araque and Marlon Araque, Agapito Listerio y Prado,
Samson dela Torre y Esquela, Marlon dela Torre, George dela Torre, Bonifacio Bancaya and
several others who are still at large were charged in two (2) separate Amended Informations with
Murder and Frustrated Murder.
In Criminal Case No. 91-5842 the Amended Information for Murder alleges –
1
That on or about the 11th day of August 1991 in the Municipality of Muntinlupa, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring
and confederating together and mutually helping and aiding one another, all armed with bladed
weapons and GI lead pipes, with intent to kill, treachery and evident premeditation with abuse of
superior strength did then and there willfully, unlawfully and feloniously attack, assault and stab one
Jeonito Araque y Daniel at the back of his body, thereby inflicting upon the latter mortal wounds
which directly caused his death.
CONTRARY TO LAW.
In Criminal Case No. 91-5843, the Amended Information for Frustrated Homicide charges:
2
That on or about the 14th day of May 1991 in the Municipality of Muntinlupa, Metro Manila,
Philippines and within the jurisdiction this Honorable Court, the above-named accused, conspiring,
confederating together, mutually helping and aiding one another, with intent to kill did then and there
willfully, unlawfully and feloniously stab and hit with a lead pipe and bladed weapon one Marlon
Araque y Daniel on the vital portions of his body, thereby inflicting serious and mortal wounds which
would have cause[d] the death of the said victim thus performing all the acts of execution which
should have produce[d] the crime of Homicide as a consequence but nevertheless did not produce it
by reason of causes independent of their will, that is by timely and able medical attendance rendered
to said Marlon Araque y Daniel which prevented his death.
CONTRARY TO LAW.
Upon arraignment, accused Agapito Listerio y Prado and Samson dela Torre y Esquela pleaded not
guilty to the crimes charged. Their other co-accused have remained at large.
Trial thereafter ensued after which the court a quo rendered judgment only against accused Agapito
Listerio because his co-accused Samson dela Torre escaped during the presentation of the
Article 6

prosecution’s evidence and he was not tried in absentia. The dispositive portion of the
decision reads:
3
WHEREFORE, finding Accused AGAPITO LISTERIO guilty beyond reasonable doubt, he is

sentenced:
1. For the death of Jeonito Araque y Daniel in Criminal Case NO. 91-5842, RECLUSION
PERPETUA;
2. For the attempt to kill Marlon Araque y Daniel, in Criminal Case No. 91-5843, he is
sentenced to six (6) months and one (1) day as minimum, to four (4) years as maximum;
3. As civil indemnity, he is ordered to indemnify the heirs of Jeonito Araque y Daniel the
sum[s] of :
P54,200.66 as actual damages;
P50,000.00 as moral damages;
P5,000.00 as exemplary damages.
4. And for the damages sustained by Marlon Araque y Daniel, he is required to pay Marlon
Araque y Daniel, the sum[s] of :
P5,000.00 as actual damages;
P5,000.00 as moral damages; and
P5,000.00 as exemplary damages
SO ORDERED. 4
Dissatisfied, accused Agapito Listerio interposed this appeal alleging that –
THE PROSECUTION EVIDENCE FAILED TO ESTABLISH THE GUILT OF THE ACCUSED

BEYOND REASONABLE DOUBT.
II
THE COURT CONVICTED THE ACCUSED OF THE CRIME OF MURDER AND

ATTEMPTED HOMICIDE DESPITE ABSENCE OF PROOF OF CONSPIRACY AND
AGGRAVATING CIRCUMSTANCE OF TREACHERY.
The version of the prosecution of what transpired on that fateful day of August 14, 1991 culled from
the eyewitness account of Marlon Araque discloses that at around 5:00 p.m. of August 14, 1991, he
and his brother Jeonito were in Purok 4, Alabang, Muntinlupa to collect a sum of money from a
certain Tino. Having failed to collect anything from Tino, Marlon and Jeonito then turned back. On
5 6
their way back while they were passing Tramo near Tino’s place, a group composed of Agapito
7
Listerio, Samson dela Torre, George dela Torre, Marlon dela Torre and Bonifacio Bancaya blocked 8
their path and attacked them with lead pipes and bladed weapons.
9 10
Agapito Listerio, Marlon dela Torre and George dela Torre, who were armed with bladed weapons,
stabbed Jeonito Araque from behind. Jeonito sustained three (3) stab wounds on the upper right
11
portion of his back, another on the lower right portion and the third on the middle portion of the left
side of his back causing him to fall down. Marlon Araque was hit on the head by Samson dela Torre
12 13
and Bonifacio Bancaya with lead pipes and momentarily lost consciousness. When he regained his
14
senses three (3) minutes later, he saw that Jeonito was already dead. Their assailants then fled
15
after the incident. Marlon Araque who sustained injuries in the arm and back, was thereafter
16 17
brought to a hospital for treatment. 18
Marlon Araque was examined by Dr. Salvador Manimtim, head of the Medico Legal Division of the
UP-PGH, who thereafter issued a Medical Certificate indicating that Marlon Araque sustained two
19 20
(2) lacerated wounds, one measuring 5 centimeters in length located in the center (mid-parietal
area) of the ear. The second lacerated wound measuring 2 centimeters in length is located at the
21
mid-frontal area commonly known as the forehead. A third lacerated wound measuring 1.5
22
centimeters long is located at the forearm and a fourth which is a stab wound measuring 3
23
Article 6

centimeters is located at the right shoulder at the collar. Elaborating on the nature of Marlon
24
Araque’s injuries, Dr. Manimtim explained in detail during cross-examination that the two (2) wounds
on the forearm and the shoulder were caused by a sharp object like a knife while the rest were
caused by a blunt instrument such as a lead pipe. 25
Dr. Bievenido Munoz, NBI Medico Legal Officer conducted an autopsy on the cadaver of Jeonito
Araque and prepared an Autopsy Report of his findings. The report which contains a detailed
26 27
description of the injuries inflicted on the victim shows that the deceased sustained three (3) stab
wounds all of them inflicted from behind by a sharp, pointed and single-bladed instrument like a
kitchen knife, balisong or any similar instrument. The first stab wound, measuring 1.7 centimeters
28
with an approximate depth of 11.0 centimeters, perforated the lower lobe of the left lung and the
thoracic aorta. Considering the involvement of a vital organ and a major blood vessel, the wound
29
was considered fatal. The second wound, measuring 2.4 centimeters, affected the skin and
30
underlying soft tissues and did not penetrate the body cavity. The third wound measuring 2.7
31
centimeters was like the second and involved only the soft tissues. Unlike the first, the second and
32
third wounds were non-fatal. Dr. Munoz averred that of the three, the first and second wounds were
33
inflicted by knife thrusts delivered starting below going upward by assailants who were standing
behind the victim. 34
On the other hand, accused-appellant’s version of the incident is summed thus in his brief:
1. Accused-appellant is 39 years old, married, side walk vendor and a resident of Purok 4,
Bayanan, Muntinlupa, Metro Manila. He earns a living by selling vegetables. 35
2. At around 1:00 o’clock in the afternoon of August 14, 1991, Accused-Appellant was in the
store of Nimfa Agustin having a little fun with Edgar Demolador and Andres Gininao drinking
beer. At around 2:00 o’clock Accused-appellant went to his house and slept. 36
3. While asleep, at about 5 o’clock, Edgar Remolador and Andres Gininao woke him up and
told him there was a quarrel near the railroad track. 37
4. At around 6:00 o’clock two (2) policemen passed by going to the house of Samson de la
Torre while Accused-appellant was chatting with Edgar Remolador and Andres Gininao.
These two (2) policemen together with co-accused Samson de la Torre came back and
invited Accused-appellant for questioning at the Muntinlupa Police Headquarters together
with Edgar Demolador and Andres Gininao. Subsequently, Edgar Demolador and Andres
Gininao were sent home. 38
5. At the Police Station, Accused-Appellant was handed a Sinumpaang Salaysay executed

by Marlon Araque, implicating him for the death of Jeonito Araque and the frustrated murder
of Marlon Araque. Accused-Appellant confronted Marlon Araque as to why he was being
included in the case. Marlon Araque answered "because you eject[ed] us from your house." 39
Professing his innocence, accused-appellant claims that Marlon Araque’s uncorroborated testimony
failed to clearly and positively identify him as the malefactor responsible for his brother’s death. In
fine, he insists that Marlon’s testimony is insufficient to convict him of the crimes charged.
We disagree.
It is well settled that witnesses are to be weighed, not numbered, such that the testimony of a single,
trustworthy and credible witness could be sufficient to convict an accused. More explicitly, the well
40
entrenched rule is that "the testimony of a lone eyewitness, if found positive and credible by the trial
court is sufficient to support a conviction especially when the testimony bears the earmarks of truth
and sincerity and had been delivered spontaneously, naturally and in a straightforward manner. It
has been held that witnesses are to be weighed not numbered; hence, it is not at all uncommon to
reach a conclusion of guilt on the basis of the testimony of a single witness." 41
The trial court found Marlon Araque’s version of what transpired candid and straightforward. We
defer to the lower court’s findings on this point consistent with the oft-repeated pronouncement that:
"the trial judge is the best and the most competent person who can weigh and evaluate the
testimony of witnesses. His firsthand look at the declarant’s demeanor, conduct and attitude at the
trial places him in a peculiar position to discriminate between the true and the false. Consequently
appellate courts will not disturb the trial court’s findings save only in cases where arbitrariness has
set in and disregard for the facts important to the case have been overlooked." 42
The account of Marlon Araque as to how they were assaulted by the group of accused-appellant
was given in a categorical, convincing and straightforward manner:
Q Mr. Witness, do you know a certain Jeonito Araque y Daniel?

Article 6

A Yes, sir.
Q And why do you know him?
A He is my brother.
Q Where is Jeonito Araque now?
A He is already dead.
Q When did he die?
A Last August 14.
Q Do you know of your own knowledge how he died?
A Yes, sir.
Q Will you please inform the Honorable Court what is your own knowledge?
A He was stabbed, sir.
Q Do you know the person or persons who stabbed him?
A Yes, sir.
Q Will you please inform the Honorable Court who are these person or persons, if you know?
A Its (sic) Agapito Listerio, Samson dela Torre, George dela Torre, Marlon dela Torre and Bonifacio.
Q Now if these persons [are] inside the courtroom, could you identify them?
A They (sic) are only two persons but the three persons is (sic) not around.
Q Could you please point to this Honorable Court who are these two persons in side the courtroom?
A Yes, sir (Witness pointing to a persons [sic] and when asked [identified themselves as] Agapito
Listerio and Samson dela Torre.)
Q Now, at around 5:00 o’clock in the afternoon of August 14, 1991, do you recall where were you?
A Yes, sir.
Q Will you please inform the Honorable Court where were you at that time?
A I’m in Alabang at Purok 4 and I’m collecting.
Q Do you have any companion at that time?
A Yes, sir.
Q What are you doing at that time in [that] particular date?
A I’m collecting from a certain Tino.
Q Were you able to collect?
A No, sir.
Q If you said that there were no collections, what did you do?
A We went back.
Q When you went back, did you have any companion?
A Yes, sir.
Article 6

Q Who was your companion?
A My brother.
Q While you were going back, was there any untoward incidents that happened?
A Yes sir "Hinarang po kami."
Q Now, what particular place [where] you were waylaid, if you recall?
A In Tramo, near Tino’s place.
Q And who were the persons that were waylaid (sic)?
A Agapito Listerio, Samson dela Torre, George dela Torre and Bonifacio.
Q Will you please inform the Honorable Court how will (sic) you waylaid by these persons?
A We were walking then suddenly they stabbed us with knife (sic) and ran afterwards.
Q Who were the persons that waylaid you?
A Agapito Listerio, George and Marlon.
Q How about your brother, what happened to him?
A He fall (sic) down.
Q And after he fall (sic) down, do you know what happened?
A I was hit by a lead pipe that’s why I painted (sic).
Q Do you know the reason why your brother fall (sic) down?
A I cannot recall, sir. Because I already painted (sic).
Q Do you know the reason why your brother fall (sic) before you painted (sic)?
A Yes, sir.
Q Will you please inform the Honorable Court why your brother fall (sic) down?
x x x x x x x x x
A Yes, sir, because he was stabbed.
Q What particular place of his body was [he] stabbed if you know?
A At the back of his body.
Q Do you know the person or persons who was (sic) stabbed him?
A Yes, sir.
Q Will you please inform the Honorable Court who was that persons was stabbed him?
A Agapito, Marlon and George.
COURT
How many stabbed [him], if you know?
A Three (3), sir.
COURT
Article 6

In what particular part of his body was stabbed wound (sic)?
A Witness pointing to his back upper right portion of the back, another on the lower right portion and
another on the middle portion of the left side at the back.
COURT
Proceed.
Q Will you please inform the Honorable Court why you are (sic) lost consciousness?
A I was hit by [a] lead pipe by Samson and Bonifacio.
Q And when did you regain consciousness?
A After three minutes.
Q And when you gain[ed] consciousness, what happened to your brother?
A He was already dead.
Q How about you, what did you do?
A I go (sic) to the Hospital.
Q How about the accused, the persons who way laid, what happened to them?
A From what I know, they ran away. 43
Persistent efforts by defense counsel to establish that the attack was provoked, by eliciting from
Marlon Araque an admission that he and the deceased had a drinking spree with their attackers prior
to the incident, proved futile as Marlon steadfastly maintained on cross examination that he and his
brother never drank liquor on that fateful day:
Q After your work, was there an occasion when you drink something with your borther (sic)?
A No, sir.
Q And you stand to your testimony that you never drink (sic) on August 14, 1991?
A Yes, sir.
Q Were (sic) there no occasion on August 14, 1991 when you visited Sonny Sari-Sari Store at 4:00
p.m. on August 14, 1991?
A No, sir.
Q And did you not have a drinking spree with George dela Torre?
A No, sir.
Q Marlon dela Torre?
A No, sir.
Q Bonifacio?
A With your borther (sic)?
Q So you want to tell this Honorable Court that there was no point in time on August 14, 1991 at
4:00 p.m. that you did not take a sip of wine?
A No, sir.
Q Neither your brother?

Article 6

Atty. Agoot
Objection, Your Honor, the question is vague.
COURT
Ask another question.
Q Mr. Witness, will you please tell the Honorable Court where this George dela Torre, Marlon dela
Torre and a certain Bonifacio were?
Atty. Agoot
Witness is incompetent.
Q Mr. Witness, you testified that it was your brother the deceased who invited you to Purok 4?
A Yes, sir.
Atty. Lumakang
That will be all for the witness, your Honor. 44
That Marlon was able to recognize the assailants can hardly be doubted because relatives of the
victim have a natural knack for remembering the faces of the attackers and they, more than anybody
else, would be concerned with obtaining justice for the victim by the felons being brought to the face
of the law. Indeed, family members who have witnessed the killing of a loved one usually strive to
45
remember the faces of the assailants. Marlon’s credibility cannot be doubted in this case because
46
as a victim himself and an eyewitness to the incident, it can be clearly gleaned from the foregoing
excerpts of his testimony that he remembered with a high degree of reliability the identity of the
malefactors. 47
Likewise, there is no showing that he was motivated by any ill-feeling or bad blood to falsely testify
against accused-appellant. Being a victim himself, he is expected to seek justice. It is settled that if
the accused had nothing to do with the crime, it would be against the natural order of events to
falsely impute charges of wrongdoing upon him. Accused-appellant likewise insists on the absence
48
of conspiracy and treachery in the attack on the victims.
We remain unconvinced.
It must be remembered that direct proof of conspiracy is rarely found for criminals do not write down
their lawless plans and plots. Conspiracy may be inferred from the acts of the accused before,
49
during and after the commission of the crime which indubitably point to and are indicative of a joint
purpose, concert of action and community of interest. Indeed –
50
A conspiracy exists when two or more persons come to an agreement concerning the commission of
a felony and decide to commit it. To establish the existence of a conspiracy, direct proof is not
essential since it may be shown by facts and circumstances from which may be logically inferred the
existence of a common design among the accused to commit the offense charged, or it may be
deduced from the mode and manner in which the offense was perpetrated. 51
More explicitly –
… conspiracy need not be established by direct evidence of acts charged, but may and generally
must be proved by a number of indefinite acts, conditions and circumstances, which vary according
to the purpose accomplished. Previous agreement to commit a crime is not essential to establish a
conspiracy, it being sufficient that the condition attending to its commission and the acts executed
may be indicative of a common design to accomplish a criminal purpose and objective. If there is a
chain of circumstances to that effect, conspiracy can be established. 52
Thus, the rule is that conspiracy must be shown to exist by direct or circumstantial evidence, as
clearly and convincingly as the crime itself. In the absence of direct proof thereof, as in the present
53
case, it may be deduced from the mode, method, and manner by which the offense was
perpetrated, or inferred from the acts of the accused themselves when such acts point to a joint
purpose and design, concerted action and community of interest. Hence, it is necessary that a
54
conspirator should have performed some overt acts as a direct or indirect contribution in the
execution of the crime planned to be committed. The overt act may consist of active participation in
the actual commission of the crime itself, or it may consist of moral assistance to his con-
Article 6

conspirators by being present at the commission of the crime or by exerting moral ascendancy over
the other co-conspirators. 55
Conspiracy transcends mere companionship, it denotes an intentional participation in the transaction

with a view to the furtherance of the common design and purpose. "Conspiracy to exist does not
56
require an agreement for an appreciable period prior to the occurrence. From the legal standpoint,
57
conspiracy exists if, at the time of the commission of the offense, the accused had the same
purpose and were united in its execution." In this case, the presence of accused-appellant and his
58
colleagues, all of them armed with deadly weapons at the locus criminis, indubitably shows their
criminal design to kill the victims.
Nowhere is it more evident than in this case where accused-appellant and his cohorts blocked the
path of the victims and as a group attacked them with lead pipes and bladed weapons. Accused-
appellant and his companions acted in concert during the assault on the victims. Each member of
the group performed specific and coordinated acts as to indicate beyond doubt a common criminal
design or purpose. Thus, even assuming arguendo that the prosecution eyewitness may have been
59
unclear as to who delivered the fatal blow on the victim, accused-appellant as a conspirator is
equally liable for the crime as it is unnecessary to determine who inflicted the fatal wound because in
conspiracy, the act of one is the act of all.
60
As to the qualifying circumstances here present, the treacherous manner in which accused-appellant
and his group perpetrated the crime is shown not only by the sudden and unexpected attack upon
the unsuspecting and apparently unarmed victims but also by the deliberate manner in which the
assault was perpetrated. In this case, the accused-appellant and his companions, all of them armed
with bladed weapons and lead pipes, blocked (hinarang) the path of the victims effectively cutting off
their escape. In the ensuing attack, the deceased was stabbed three (3) times from behind by a
61
sharp, pointed and single-bladed instrument like a kitchen knife, balisong or similar instrument while
62
Marlon Araque sustained lacerated wounds in the head caused by blows inflicted by lead pipes as
well as stab wounds on the shoulder and forearm which were caused by a sharp object like a knife. 63
It must be noted in this regard that the manner in which the stab wounds were inflicted on the
deceased were clearly meant to kill without posing any danger to the malefactors considering their
locations and the fact that they were caused by knife thrusts starting below going upward by
assailants who were standing behind the victim. Treachery is present when the offender commits
64
any of the crimes against persons employing means, methods or forms in the execution thereof
which tend directly and specially to insure its execution, without risk to himself arising from the
defense which the offended party might make. That circumstance qualifies the crime into murder.
65
The commission of the crime was also attended by abuse of superior strength on account of the fact
that accused-appellant and his companions were not only numerically superior to the victims but
also because all of them, armed with bladed weapons and lead pipes, purposely used force out of
proportion to the means of defense available to the persons attacked. However, this aggravating
circumstance is already absorbed in treachery. Furthermore, although alleged in the information,
66
evident premeditation was not proved by the prosecution. In the light of the finding of conspiracy,
evident premeditation need not be further appreciated, absent concrete proof as to how and when
the plan to kill was hatched or what time had elapsed before it was carried out. 67
In stark contrast to the evidence pointing to him as one of the assailants of the victims, accused-
appellant proffers the defense of alibi. At the risk of sounding trite, it must be remembered that alibi
is generally considered with suspicion and always received with caution because it can be easily
fabricated. For alibi to serve as a basis for acquittal, the accused must establish that: a.] he was
68
present at another place at the time of the perpetration of the offense; and b.] it would thus be
physically impossible for him to have been at the scene of the crime. 69
Suffice it to state that accused-appellant failed to discharge this burden. The positive identification of
the accused as one of the perpetrators of the crime by the prosecution eyewitness, absent any
showing of ill-motive, must prevail over the weak and obviously fabricated alibi of accused-
appellant. Furthermore, as aptly pointed out by the trial court "[t]he place where the accused was at
70
the time of the killing is only 100 meters away. The distance of his house to the place of the incident
makes him physically possible to be a participant in the killing [of Jeonito] and [the] wounding of
Marlon." 71
All told, an overall scrutiny of the records of this case leads us to no other conclusion than that
accused-appellant is guilty as charged for Murder in Criminal Case No. 91-5842.
In Criminal Case No. 91-5843, wherein accused-appellant was indicted for Frustrated Homicide, the
trial court convicted accused-appellant of Attempted Homicide only on the basis of Dr. Manimtim’s
testimony that none of the wounds sustained by Marlon Araque were fatal.
Article 6

The reasoning of the lower court on this point is flawed because it is not the gravity of the wounds
inflicted which determines whether a felony is attempted or frustrated but whether or not the
subjective phase in the commission of an offense has been passed. By subjective phase is meant
"[t]hat portion of the acts constituting the crime included between the act which begins the
commission of the crime and the last act performed by the offender which, with the prior acts, should
result in the consummated crime. From that time forward, the phase is objective. It may also be said
to be that period occupied by the acts of the offender over which he has control – that period
between the point where he begins and the point where he voluntarily desists. If between these two
points the offender is stopped by reason of any cause outside of his own voluntary desistance, the
subjective phase has not been passed and it is an attempt. If he is not so stopped but continues until
he performs the last act, it is frustrated."
72
It must be remembered that a felony is frustrated when: 1.] the offender has performed all the acts of
execution which would produce the felony; 2.] the felony is not produced due to causes independent
of the perpetrator’s will. On the other hand, in an attempted felony: 1.] the offender commits overt
73
acts to commence the perpetration of the crime; 2.] he is not able to perform all the acts of execution
which should produce the felony; and 3.] his failure to perform all the acts of execution was due to
some cause or accident other than his spontaneous desistance. The distinction between an
74
attempted and frustrated felony was lucidly differentiated thus in the leading case of U.S. v. Eduave: 75
A crime cannot be held to be attempted unless the offender, after beginning the commission of the
crime by overt acts, is prevented, against his will, by some outside cause from performing all of the
acts which should produce the crime. In other words, to be an attempted crime the purpose of the
offender must be thwarted by a foreign force or agency which intervenes and compels him to stop
prior to the moment when he has performed all of the acts which should produce the crime as a
consequence, which acts it is his intention to perform. If he has performed all the acts which should
result in the consummation of the crime and voluntarily desists from proceeding further, it cannot be
an attempt. The essential element which distinguishes attempted from frustrated felony is that, in the
latter, there is no intervention of a foreign or extraneous cause or agency between the beginning of
the commission of crime and the moment when all the acts have been performed which should
result in the consummated crime; while in the former there is such intervention and the offender
does not arrive at the point of performing all of the acts which should produce the crime. He is
stopped short of that point by some cause apart from his voluntary desistance.
To put it another way, in case of an attempt the offender never passes the subjective phase of the
offense. He is interrupted and compelled to desist by the intervention of outside causes before the
subjective phase is passed.
On the other hand, in case of frustrated crimes, the subjective phase is completely passed.
Subjectively the crime is complete. Nothing interrupted the offender while he was passing through
the subjective phase. The crime, however, is not consummated by reason of the intervention of
causes independent of the will of the offender. He did all that was necessary to commit the crime. If
the crime did not result as a consequence it was due to something beyond his control.
In relation to the foregoing, it bears stressing that intent to kill determines whether the infliction of
injuries should be punished as attempted or frustrated murder, homicide, parricide or consummated
physical injuries. Homicidal intent must be evidenced by acts which at the time of their execution are
76
unmistakably calculated to produce the death of the victim by adequate means. Suffice it to state
77
that the intent to kill of the malefactors herein who were armed with bladed weapons and lead pipes
can hardly be doubted given the prevailing facts of the case. It also can not be denied that the crime
is a frustrated felony not an attempted offense considering that after being stabbed and clubbed
twice in the head as a result of which he lost consciousness and fell, Marlon’s attackers apparently
thought he was already dead and fled.
An appeal in a criminal case throws the whole case wide open for review and the reviewing tribunal
78
can correct errors, though unassigned in the appealed judgement or even reverse the trial court’s
79
decision on the basis of grounds other than those that the parties raised as errors. With the
80
foregoing in mind, we now address the question of the proper penalties to be imposed.
With regard to the frustrated felony, Article 250 of the Revised Penal Code provides that –
ART. 250. Penalty for frustrated parricide, murder, or homicide. – The courts, in view of the facts of
the case, may impose upon the person guilty of the frustrated crime of parricide, murder or homicide,
defined and penalized in the preceding articles, a penalty lower by one degree than that which
should be imposed under the provisions of article 50. 81
The courts, considering the facts of the case, may likewise reduce by one degree the penalty which
under article 51 should be imposed for an attempt to commit any of such crimes.
Article 6

The penalty for Homicide is reclusion temporal thus, the penalty one degree lower would be prision
82
mayor. With the presence of the aggravating circumstance of abuse of superior strength and no
83
mitigating circumstances, the penalty is to be imposed in its maximum period. Prision mayor in its
84
maximum period ranges from ten (10) years and one (1) day to twelve (12) years. Applying further
the Indeterminate Sentence Law, the minimum of the imposable penalty shall be within the range of
85
the penalty next lower in degree, i.e. prision correccional in its maximum period which has a range
of six (6) months and one (1) day to six (6) years.
What now remains to be determined is the propriety of the awards made by the trial court with
regard to the civil aspect of the case for the death of Jeonito Araque and the injuries sustained by
Marlon Araque.
Anent actual or compensatory damages, it bears stressing that only substantiated and proven
expenses or those which appear to have been genuinely incurred in connection with the death, wake
or burial of the victim will be recognized by the courts. In this case, the expenses incurred for the
86
wake, funeral and burial of the deceased are substantiated by receipts. The trial court’s award for
87
actual damages for the death of Jeonito Araque should therefore be affirmed.
In line with current jurisprudence, the award of P50,000.00 as civil indemnity ex delicto must also be
88
sustained as it requires no proof other than the fact of death of the victim and the assailant’s
responsibility therefor. The award for moral damages for the pain and sorrow suffered by the
89
victim’s family in connection with his untimely death must likewise be affirmed. The award is
adequate, reasonable and with sufficient basis taking into consideration the anguish and suffering of
the deceased’s family particularly his mother who relied solely upon him for support. The award of
90
exemplary damages should likewise be affirmed considering that an aggravating circumstance

attended the commission of the crime. 91
The trial court, however, correctly ignored the claim for loss of income or earning capacity of the
deceased for lack of factual basis. The estimate given by the deceased’s sister on his alleged
1âwphi1
income as a ‘pre-cast’ businessman is not supported by competent evidence like income tax returns
or receipts. It bears emphasizing in this regard that compensation for lost income is in the nature of
damages and as such requires due proof thereof. In short, there must be unbiased proof of the
92 93
deceased’s average income. In this case, the victim’s sister merely gave an oral, self-serving and
94
hence unreliable statement of her deceased brother’s income.
As for the awards given to Marlon Araque, the award for actual damages must be affirmed as the
same is supported by documentary evidence. With regard to moral and exemplary damages, the
95
same being distinct from each other require separate determination. The award for moral damages
96
must be struck down as the victim himself did not testify as to the moral suffering he sustained as a
result of the assault on his person. For lack of competent proof such an award is improper. The 97
award for exemplary damages must, however, be retained considering that under Article 2230 of the
Civil Code, such damages may be imposed "when the crime is committed with one or more
aggravating circumstances." 98
Finally, this Court has observed that the trial court did not render judgment against accused Samson
dela Torre, notwithstanding that he was arraigned and pleaded not guilty to both charges. Under the
circumstances, he should be deemed to have been tried in absentia and, considering the evidence
presented by the prosecution against him, convicted of the crime charged together with appellant
Agapito Listerio.
WHEREFORE, the appealed decision is AFFIRMED with the following MODIFICATIONS:
1.] the award of P5,000.00 to Marlon Araque by way of moral damages in Criminal Case No.
91-5843 is DELETED;
2.] Accused-Appellant is found GUILTY beyond reasonable doubt in Criminal Case No. 91-
5843 of Frustrated Homicide and is sentenced to suffer an indeterminate penalty of Six (6)
Years of Prision Correccional, as minimum to Ten (10) Years and One (1) Day of Prision
Mayor, as maximum.
After finality of this Decision, the records shall be remanded to the Regional Trial Court of Makati
City, which is directed to render judgment based on the evidence against Samson dela Torre y
Esquela.
SO ORDERED.
Davide, Jr., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.

Article 6
G. ESTAFA
G.R. No. L-17021 February 23, 1921
THE UNITED STATES, plaintiff-appellee,

vs.
ISAAC DOMINGUEZ, defendant-appellant.
Pablo, Guzman & Lucero for appellant.

Attorney-General Feria for appellee.
VILLAMOR, J.:
The fact which gave rise to the present appeal is described in the information as follows:
That on or about 19th day of January, 1920, in the city of Manila, Philippine Islands, the said
accused who was a salesman at the Philippine Education Co., Inc. did then and there
receive the sum of seven pesos and fifty centavos (pesos 750) from one Lamberto Garcia as
payment for five copies of Sam's "Practical Business Letters" bought from the store of the
said company, which amount should have been turned over and delivered by him (accused)
to the company's cashier or his authorized representative therein; that instead of delivering
the said amount to the said cashier or his representative therein, which he knew it was his
obligation to do, the said accused did then and there willfully, unlawfully and criminally
misappropriate and convert it to his own personal use to the damage and prejudice of the
said Philippine Education Co., Inc. in the sum of seven pesos and fifty centavos (pesos 7.50)
equivalent to 37 ½ pesetas.
At the close of the trial the court found the accused guilty of the crime of estafa of the sum of pesos
7.50 and sentenced him to be imprisoned for two months and one day of arresto mayor, with the
accessories provided by law, and costs.
Appeal having been taken to this to this Supreme Court, the counsel for the accused assigns, as
error committed by the court, its finding that the accused is guilty of the crime charged and its action
in imposing upon him the penalty corresponding to a principal in the crime of estafa.
It is proved that the accused, as salesman of the bookstore "Philippine Education Co., Inc." sold on
the morning of January 19, 1920, five copies of Sams' "Practical Business Letters," of the value of
seven pesos and fifty centavos (pesos 7.50), which the accused should have immediately delivered
to the cashier but which he did not deliver, until after it was discovered that he had sold the books
and received their value without delivering it to the cashier, as was his duty.
The accused alleges that he did not deliver the money immediately after the sale, because the cash
boys were very busy as well as the cashier, while he had to go to the toilet for some necessity, and
upon coming out, the cashier caught him by the arm and asked him for the money, and then he
delivered the sum of pesos 7.50 to him; and that it was not his intention to make use of said money.
Such claim, nevertheless, does not exempt him from the criminal responsibility which he had
Article 6

incurred, for the evidence before us shows clearly that he attempted to defraud the "Philippine
Education Co., Inc." Upon being asked for the money, he first said that a woman, whom he did not
know, bought books, without having paid, for the reason that she was, according to herself, in a
hurry; and, latter, he went out of the store to talk to a friend who was employed in the Pacific Mail
Steamship Co. to tell him that if anyone should ask him if he (the employee of the Pacific Mail
Steamship Co.) bought books that morning in the store of the "Philippine Education Company" he
should answer affirmatively. Furthermore, he had also declared to the manager of the bookstore that
he used part of the money in purchasing postage stamps.
There can be no doubt as to the injury which the accused would have caused to the interests of the
company in retaining for himself the proceeds of the sale in question.
But the question of law to be decided is whether the fact that the accused retained in his possession
the proceeds of the sale, delivering them to the cashier only after the deceit had been discovered,
constitutes a consummated offense or merely a frustrated offense of estafa.
Should the fact that the accused attempted to get certain bundles of merchandise at the station, by
means of the presentation of the tag sent to the consignee in a letter which must have been taken
from the mail, it not having been proven by whom or how it came to the accused, who did not attain
their object, because the bundles had been withdrawn two or three days before by the consignee, be
considered as an attempted or frustrated offense? The supreme court of Spain in its decision of
January 3, 1876, in deciding the appeal taken by the accused, who alleged that the act constituted
only an attempt and not a frustrated estafa, declared that the appeal was not well taken, on the
ground that the offense is frustrated when the accused performs all the acts of execution which
would have produced the crime, and, nevertheless, do not produce it by reason of causes
independent of the will of the actor, and that in said case the appellant, together with his coaccused
attempted to take possession of the two bundles which they believed were at the station, by going
there and presenting the tag, and they did not succeed because these bundles had already been
taken, which constitutes the frustrated crime.
In his commentaries on the Penal Code Viada asks the following questions: "Is immediate return by
the accused of the thing he intended to convert, as soon as the injured party found out the fraud
committed, sufficient to divest the act of its consummated character and to place it within the limits of
a mere frustrated offense?" "The religious society of Santa Clara deposited, in the year 1868, with D.
Manuel Nuñez an oil painting on copper, but when they demanded it a few years afterwards, the
latter delivered to them the same frame but with merely a copy of the original painting, which, upon
his order, a painter had made for the sum of 40 pesetas. The substitution having been afterwards
noted, the society protested and Nuñez returned the original, valued at 125 pesetas, and in turn
obtained the copy referred to. But, in the meantime a criminal action having been instituted upon this
fact and prosecuted to trial, the Madrid court, holding that Nuñez had defrauded and injured the
society in the amount of the difference in the value of the paintings, sentenced him, as principal in
the consummated crime of estafa, defined in number 5 of article 548 of the Code, to the penalty of
two months and one day of arresto mayor, together with the accessories, and costs. An appeal
having been taken from said judgment, on the ground that it violated among others, article 3 of the
Code, the Supreme Court, declaring that the appeal was well taken, held that the estafa committed
was mere frustrated estafa. 'Considering that while the acts of D. Manuel Nuñez appear to have
been actuated by the desire to convert the painting to his own use and the consequent injury of its
owner, and that to that end he performed all the acts which should produce the crime as a
consequence, nevertheless, the injury and the appropriation were not realized, and therefore the
crime was not consummated because of a cause independent of his will, which was the discovery of
the substitution of the plate, after which the owner obtained what belonged to him without the
objection of the depositary and without any delay juridically appreciable — therefore, the trial court in
holding as consummated an offense that was frustrated, violated, in failing to apply it, article 3 of the
Code.' " (1 Viada, 65.)
The same author puts and solves the following question: "Where a person appointed Commissioner
to make collection of debts due to the public treasury for real estate taxes owing by a mining
company goes to a store and acts of the owner thereof a certain sum in order that he might not file a
complaint by virtue of which the owner might have to pay a big fine because the establishment was
not registered in the corresponding class, and the owner pays him part of the sum demanded, but he
is in the act caught by agents of the authority who were detailed for the purpose, is he guilty of the
consummated or simply frustrated crime of estafa? The criminal branch of the court of Seville found
him guilty of the former and sentenced him to the penalty of two months and one day of arresto
mayor. But, appeal having been taken from the judgment on the ground that the fact constituted only
an attempt to commit estafa, the Supreme Court, while not of the same opinion, however, held that
the crime committed was merely frustrated: 'Considering that while the acts executed by the
appellant should be qualified, not merely as an attempt, as claimed by the appellant, inasmuch as he
did not limit himself to commencing the acts of execution of the crime, but as a frustrated crime
because the accused performed all the acts of execution which should produce the crime as a result,
such s the obtaining of the money exacted, in this manner apparently realizing his object, but which
Article 6

acts nevertheless did not produce the crime by reason of a cause independent of his will, which
cause in this case was the appearance of agents of the authority at the place, as a consequence of
the complaint filed by Da. Candelaria Polanco to the treasury deputy, a fact which prevented the
consummation of the crime prosecuted, which would have consisted in completely divesting the
owner of his money, a result prevented by the vigilance of the authorities: Considering that in not so
holding the trial court erred on a point of law, as claimed, and violated the articles of the Penal Code
to which the appeal refers, etc., etc.' " (Viada, Suppl. 1887-1889, p. 8.)
Applying the doctrine, established by the supreme court of Spain in the decisions cited, to the case
at bar, we are of the opinion, and so hold, that the appellant is guilty of the frustrated offense
of estafa of 37 ½ pesetas, inasmuch as he performed all the acts of execution which should produce
the crime as a consequence, but which, by reason of causes independent of his will, did not produce
it, no appreciable damage having been caused to the offended party, such damage being one of the
essential elements of the crime, due to the timely discovery of the acts prosecuted.
From what has been said, it results that the judgment appealed from should, as it is hereby,
modified, and the accused is sentenced to pay a find of 325 pesetas, with subsidiary imprisonment
in case of insolvency, and to pay the costs of the trial. So ordered.
Mapa, C.J., Araullo, Streets and Malcolm, JJ., concur.
BRIBERY
G.R. No. L-62439 October 23, 1984
GREGORY JAMES POZAR, petitioner,

vs.
THE HONORABLE COURT OF APPEALS, respondent.
Macario C. Ofilada, Jr. for petitioner.
Gil Venerando R. Racho collaborating counsel for petitioner.
The Solicitor General for respondent.
GUERRERO, J.: ñé+.£ªwph!1
In an Information dated July 22, 1980 and filed with the City Court of Angeles City, Branch I,
docketed thereat as Criminal Case No. CAT-326, petitioner, an American citizen and a permanent
resident of the Philippines, was charged with the crime of Corruption of a Public Official, allegedly
committed as follows: têñ.£îhqwâ£
That on or about the 17th day of December, 1979, in the City of Angeles, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, being
then an applicant for probation after he was convicted of an offense by a competent
court, did then and there willfully, unlawfully, and feloniously give to the complainant,
Mr. Danilo Ocampo, the City Probation Officer, the sum of P100.00 in a paper bill
with Serial Nos. BC530309, under circumstances that would make the said City
Probation Officer Mr. Danilo Ocampo liable for bribery.
ALL CONTRARY TO LAW.
Upon arraignment, petitioner pleaded not guilty to the said information and, after trial, the City Court
inits decision of May 15, 1981 found the petitioner guilty of the crime of corruption of a public official,
the dispositive portion of which reads: têñ.£îhqwâ£
WHEREFORE, the Court finds the accused Gregory Pozar guilty of the offense of
Corruption of a Public Official as charged in the Information, and the Court pursuant
to Article 212, in relation to Article 211 of the Revised Penal Code, hereby sentences
the accused Gregory James Pozar to an imprisonment of three (3) months and one
(1) day of Arresto Mayor, and hereby censures him for his actuation in this matter,
with costs against the accused.
Article 6

The one hundred peso bill is hereby forfeited in favor of the Republic of the
Philippines.
SO ORDERED. 1äwphï1.ñët
The decision was appealed to the Court of Appeals (now In termediate Appellate Court) and
subsequently, the appellate court affirmed the same in toto. Petitioner's motion for reconsideration
was denied on October 19, 1982 and on December 21, 1982, petitioner filed the instant petition for
review of the decision of the respondent court, relying on the constitutional precept that "In all
criminal prosecutions, the accused shall be presumed innocent until the contrary is proved." (Article
IV, Sec. 19), and that the State, having the burden of establishing all the elements of the crime with
which the accused is charged, must prove the guilt of the accused beyond reasonable doubt, has
failed to present and establish the required quantum of proof against the accused petitioner, hence
he is entitled to an acquittal. .
The evidence for the prosecution are stated in the decision of the respondent court, thus: têñ.£îhqwâ£
The prosecution presented as its witnesses Mr. Ricardo Manalo, Mrs. Primitiva
Francisco and Mr. Danilo Ocampo. Upon the other hand, the defense placed on the
witness stand appellant himself and his counsel Atty. Reynaldo Suarez.
Ricardo Manalo, Clerk at the Probation Office of Angeles City, declared that he
started working at the Probation Office since May 2, 1978 and came to know
appellant because the latter had gone to said office in connection with his application
for probation; that at about noontime of December 17, 1979, appellant came to the
office looking for Probation Officer Danilo Ocampo and since the latter was out at the
time, appellant gave him a closed envelope bearing the name of Ocampo for delivery
to the latter; that two days later, he gave the envelope to Ocampo who opened the
same in his presence; that the envelope contained some official papers connected
with appellant's application for probation and attached thereto was a hundred peso
bill; that Ocampo then remarked: 'This s something bad that the opening of the
envelope was done on December 19, 1979; that Ocampo kept the envelope and its
contents, including the one hundred peso bill, but within a week's time gave them to
him with instructions to give the same to appellant but the latter never came to the
office and so he returned them to Ocampo; that although he later saw appellant
about two weeks after December 17, 1979, when the latter came to the office to sign
some papers, he never mentioned to appellant the one hundred peso bill (pp. 2-16,
t.s.n., September 16, 1980)
Manalo further declared that at the nine the envelope with the one hundred peso bill
was given to him by appellant for delivery to Ocampo, he already had an inkling or
knowledge that the Probation Office will recommend for the grant of appellant's
application for probation because he was the one who makes the final typing of a
post, sentence investigation report and before said final typing Ocampo usually talks
to him, so that he knows whether the recommendation was for a grant or denial of an
application (pp. 16-19, t.s.n., September 16, 1980).
Mrs. Primitiva Francisco, Assistant Probation Officer of the Angeles City Probation
Office, declared that she knows appellant because the latter was one of the
applicants for probation in 1979 and she was the one assigned to investigate
appellant's case; that as Assistant Probation Officer in the Investigation of
applications for probation and in the case of appellant, she requested him to submit
certain pertinent documents required by their office, such as barangay, police and
court clearances, residence certificate, etc.; that she prepared appellant's post-
sentence Investigation Report (Exhs. "B" to "B-5") that she first saw appellant on
December 7, 1979, when she interviewed him on his social and personal history and
his version of the offense, among others; that she gave the list of documents which
are to be submitted to the office; that the second time she saw appellant was on
December 21, 1979 but appellant was out at the time and when she saw that he was
in his car that broke down in front of the Pampaguena she tried to can him but the
car left as she was about to reach the place (pp. 2-21, tsn, January 26, 1981).
Mrs. Francisco further declared that at the time she saw appellant on December 21,
1979, the latter was asking person to leave for Baguio City but she told him to talk
with Probation Officer, Mr. Ocampo, anent the matter; that she then prepared a draft
of the Post-Sentence Investigation report and thereafter had a conference with
Ocampo who told him not to delete the bribery incident from the report; that it was
first from Manalo and later from Ocampo that she became aware of the bribery or
more accurately corruption of a public official committed by appellant (pp. 21-25,
t.s.n., January 26, 1981).
Article 6

The third prosecution witness was complaint himself Danilo Ocampo, who declared
that he has been the Probation Officer of an Angeles City, Probation Office since
1977 and that his employees thereat were Ricardo Manalo, Primitiva Francisco and
Ramon de Leon; that at about 9:00 o'clock in the morning of December 19, 1979, he
received a closed letter envelope from his clerk. Manalo, at the Probation Office at
Merlan Building, Angeles City, Manalo informing him that the same came from
appellant; that he opened the envelope on the presence of Manalo and found that
the same contained xerox copies of the passport (Exh. "D") and visa (Exh. "D-1") of
appellant and inserted with said documents. was a hundred peso bill with Serial No.
BC530309 (Exh. "A-l"); that the envelope given him by Manalo was addressed to him
Mr. Danilo Ocampo, Probation Officer, in handwritten for that he could not, however,
produce said envelope the same having been misplaced that he kept the one
hundred peso bill as the same was an evidence against appellant; that when he met
Atty. Reynaldo Suarez, appellant's counsel at the Angeles City Court on January 14,
1980, he told the latter about the envelope received from appellant containing the
passport, visa and the one hundred peso bill inserted with said documents and
intimated to the lawyer that the client should not have inserted said one hundred
peso bill (pp. 46-57, t.s.n. September 16, 1980).
Ocampo further declared that the Post-Sentence Investigation Report was prepared
by Mrs. Francisco who conducted the investigation; that the first time he saw
appellant was on December 10, 1979, when the latter was seeking permission to go
to Baguio City and being a foreigner, he required him to submit to his office copies of
the latter's passport and visa; that the second time he met appellant was in March,
1980, when the hearing of appellant's application for probation was conducted at
Branch I of the Angeles City Court; that he never required appellant to give money,
so that when he saw the one hundred peso bill (Exh. "A") in the envelope handed
him by Manalo, he was very much surprised; that he intended to confront appellant
but was unable to do so but was able to inform Atty. Suarez, appellant's lawyer,
about the matter when he met him at the City Court; that at the time the envelope
containing the documents and money was handed to him on, December 19, 1979,
the Post-Sentence Investigation Report was not yet finished and that the same was
submitted to the City Court by Mrs. Francisco on February 5, 1980; that the fact that
appellant enclosed a one hundred peso bill in the envelope was mentioned in said
report (pp. 60-73, t.s.n., September 16, 1980).
Ocampo further testified that at the time of the hearing of appellant's application or
petition for probation, the Presiding Judge of Branch I of the City Court held a
conference in the court's chamber with appellant's counsel the trial fiscal and himself,
during which they discussed the bribery incident mentioned in the report; that the
presiding judge of Branch I, after some clarifications regarding the incident in
question, suggested that coplainant should lodge a complaint against appellant and
the all should conduct the corresponding preliminary investigation to determine
whether there was a prima facie case (pp. 75-76, 82-86, t.s.n., September 16, 1980).
Finally, Ocampo declared that he approved the Post-Sentence Investigation Report

recommending the granting of appellant's application for probation, notwithstanding
the bribery or corruption incident mentioned in said report, because appellant's act
was not yet a disqualification under the law, as he was still presumed innocent until
he is found guilty by the court (pp. 90-91, t.s.n. December 8, 1980).
The appealed decision tersely cited the evidence for the defense in the following manner: têñ.£îhqwâ£
The evidence for the defense is that the one hundred peso bill the accused-appellant
placed in the envelope delivered to the Probation Officer was allegedly intended to
take care of the expenses in the xerox copying or reproduction of documents that
may be needed by the Probation Office. (p. 7, CA Decision).
Considering that the findings of fact in the decision of the respondent court which affirmed the
decision of the trial court, do not mention nor indicate the circumstances surrounding the incident
and the filing of the information against the petitioner other than the admitted fact that the one
hundred peso bill was placed in the envelope together with the visa and passport of the petitioner
which he handed on December 17, 1979 to Mr. Ricardo Manalo and which the latter in turn handed
on December 19, 1979 to Probation Officer Danilo Ocampo, in fairness to the petitioner, We quote
hereunder the decision of the trial court which recited the said circumstances that led to the filing of
the Information against the petitioner, to wit:
têñ.£îhqwâ£
From the evidence presented, the following facts appear to the court to be
indubitable; That the accused was convicted of the crime of less Serious Physical
Injuries, and the crime of Oral Defamation of the City Court of Angeles City, Branch
Article 6

1, and the said accused was sentenced to an imprisonment of 15 days of Arresto
Menor and to pay a fine of P50.00 and to pay the complaining witness the amount of
P500.00 as moral and exempt damages. After he was sentenced, he, on November
28, 1979 filed an Application for Probation. That after filing the application for
Probation, the accused, together with his lawyer Atty. Reynaldo Suarez, went to the
Probation Office purposely to inquire for the requirements need for his client's
petition for probation. Unfortunately, Atty. Suarez and his client did not reach the
Probation Officer Mr. Danilo Ocampo. It was Mr. Manalo, a clerk of the Probation
Office, whom they reached, and they were re. requested to come back to the office
regarding their inquiry inasmuch as the Probation Officer was not in the office. Later,
Atty. Suarez called through the telephone the Probation Office, and, on that occasion
he was able to talk with the Probation Inspector, Mrs. Primitiva Francisco. He was
inquiring from Mrs. Francisco the necessary documents regarding the application for
probation of his client and Mrs. Francisco suggested that he would come over the
office in order to give him all the necessary information. The lawyer just instructed
Mrs. Francisco to give a list of the requirements to Mr. Pozar, the accused, who was
then in the, Office of the Probation Officer, and accordingly, Mrs. Francisco handed
to Mr. Pozar a list of the documents needed in his probation (see Exhibit E for the
prosecution, and Exhibit 3 for the defense). It also appears that all the re.
requirements listed in the list given by Mrs, Francisco were given to Mrs. Francisco,
and at times to Mr. Manalo. The person who conducted the investigation was actually
Mrs. Francisco. On December 10, 1979, Pozar had an occasion to see the Probation
Officer, Mr. Danilo Ocampo, and in that meeting, aside from the fact that he was
asking permission from the Probation Officer to go to Baguio, the Probation Officer
required him to furnish the Probation Office the xerox copy of his visa, and his I.D.
picture, inasmuch as it was explained to him these were needed, he being a
foreigner. On December 17, 1979 Mr. Pozar went to the Probation Office looking for
the Probation Officer, and when the Probation Officer was not there, he handed to
Mr. Manalo an envelope address to the Probation Of officer and asked and
requested Mr. Manalo to give the same to Mr. Ocampo. It was on December 19,1979
when Mr. Manalo handed the envelope given by Mr. Pozar to Mr. Danilo Ocampo,
and when Danilo Ocampo opened it in the presence of Mr. Manalo, he found enclose
in the envelope a xerox copy of the applicant's passport, xerox copy of his visa, and
attached also with the same document was a one hundred peso bill It would seem
that Mr. Ocampo asked Mr. Manalo to keep the one hundred peso bill and return it to
Mr. Pozar, but when Mr. Pozar did not arrive to the office, Mr. Manalo gave it back to
Mr. Ocampo Mr. Danilo Ocampo kept the one hundred peso bill but made it a point
that this incident regarding the receiving of the one hundred peso being be included
in the post-sentence investigation report which was being prepared by Mrs.
Francisco. At that time when the one hundred peso bill was given, the post-sentence
investigation report was not yet finished. The record shows that the same was
submitted to the court only on February 8, 1980. At the hearing of the application for
probation in March 1980, when the Presiding Judge of City Court of Angeles City,
Branch 1, noted and saw from the report the alleged incident of the accused's giving
the one hundred peso bill he called for a conference and in that conference, he
suggested that the manner should be investigated by the Office of the City F'iscal
Acting upon such suggestion Danilo Ocampo formally filed an Information Sheet
against the accused Gregory Pozar (Exhibit 2). It is also a fact admitted by the
defense that after the one hundred peso bill was handed and the Probation Officer
was not able to return the same, he informed Atty. Suarez at the sala of City Court
Branch II sometime on January 14, 1980. (pages 8-9)
As stated earlier, petitioner was found guilty of the offense of Corruption of Public Official as defined
and penalized in the Revised Penn Code as follows: têñ.£îhqwâ£
Art. 212. Corruption of Public Officials. — The same penalties imposed upon the
officer corrupted, except those of disqualification and suspension, shall be imposed
upon any person who shall have made the offers or promises or given the gifts or
presents as described in the preceding articles.
The preceding Articles of the Revised Penal Code are Articles 210 and 211 which define and
penalize the offenses of direct bribery and indirect bribery, and they provide as follows: têñ.£îhqwâ£
Art. 210. Direct Bribery. — Any public officer who will agree to perform an act
constituting a crime, in connection with the performance of his official duties, in
consideration of any offer, promise, gift or present received by such officer,
personally or through the mediation of another, shag suffer the penalty of prision
correccional in its minimum and medium periods and a fine of not less than the value
of the gift and not more than three times such value, in addition to the penalty
corresponding to the crime agreed upon, ff the same shall have been committed.
Article 6

If the gift was accepted by the officer in consideration of the execution of an act
which does not constitute a crime, and the officer executed said act, he shall suffer
the same penalty provided in the preceding paragraph, and if said shall not have
been accomplished, the officer shall suffer the penalties of arresto mayor in its
maximum period and a fine of not less than the value of the gift and not more than
twice such value,
If the object for which the gift was received or promised was to make the public
officer refrain from doing something which it was his official duty to do, he shall suffer
the penalties of arresto mayor in its medium and maximum periods and a fine not
less than the value of the gift and not more than three times such value.
In addition to the penalties provided in the preceding paragraphs, the culprit shall
suffer the penalty of special temporary disqualification.
The provisions contained in the preceding paragraphs shall be made applicable to

assessors, arbitrators, appraisal and claim commissioners, experts, or any other
persons performing public duties.
Art. 211. Indirect Bribery. — The penalties of arresto mayor, suspension in its

minimum and medium periods, and public censure shall be imposed upon any public
officer who shall accept gifts offered to him by reason of his office.
It is well to note and distinguish direct bribery from indirect bribery. In both crimes, the public officer
receives gift. While in direct bribery, there is an agreement between the public officer and the giver
of the gift or present, in indirect bribery, usually no such agreement exist. In direct bribery, the
offender agrees to perform or performs an act or refrains from doing something, because of the gift
or promise in indirect bribery, it is not necessary that the officer should do any particular act or even
promise to do an act, as it is enough that he accepts gifts offered to him by reason of his office. (The
Revised Penal Code by Luis P. Reyes, 1975 Ed., p. 332).
In the case at bar, We find that the Information against the petitioner charged that the accused "did
then and there willfully, unlawfully, and feloniously give to the complainant, Mr. Danilo Ocampo, the
City Probation Officer, the sum of one hundred (P100.00) pesos in a paper bill with serial No.
BC530309, under circumstances that would make the said City Probation Officer, Mr. Danilo
Ocampo, liable for bribery.
The trial court found the accused guilty of the offense of Corruption of a Public Official as charged in
the Information and pursuant to Article 212, in relation to Article 211 of the Revised Penal Code,
sentenced the accused to an imprisonment of three (3) months and one (1) day of arresto mayor
and public censure. This is erroneous. The trial court erred in finding the accused guilty of the crime
of Corruption of Public Official as consummated offense (which is affirmed by the respondent
appellant court) for it is clear from the evidence of the prosecution as recited in both decisions of the
trial and appellate courts, that the complainant Probation Officer did not accept the one hundred
peso bill Hence, the crime would be attempted corruption of a public official. (See The Revised
Penal Code by Justice Ramon Aquino, 1976 Ed., Vol. II, p. 1168, citing the cases of Uy Matiao, 1
Phil. 487; Camacan 7 Phil. 329; Tan Gee, 7 Phil. 738; SyGuikao 18 Phil. 482; Te Tong, 26 Phil. 453;
Ng Pek 81 Phil. 562; Ching, CA-G.R. No. 439-R, July 31, 1947). Attempted corruption of a public
official is punished with destierro and is cognizable by inferior courts (See Revised Penal Code by
justice Aquino, Vol. II, 1976 Ed., citing the cases of Uy Chin Hua v. Dinglasan, 86 Phil. 617; Santos y
Bautista, 87 PhiL 687; Dalao v. Geronimo, 92 Phil. 1942; Ng Pek 81 Phil. 562).
Be that as it may, the crucial point is whether the prosecution has established beyond reasonable
doubt that the one hundred peso bill was given to bribe and corrupt the City Probation Officer or that
it will be used to defray expenses in xeroxing or copying of whatever documents needed by the
Probation Office in connection with petitioner's application for probation then pending in said office.
The evidence on record disclose that the petitioner was required by the Assistant Probation Officer,
Primitive Francisco, to submit in connection with his probation application the Court Information
( complaint) Court decision, Custody Status (recognizance or bail bond), clearances from the Police,
the Court, Barangay Certificate, I.D. pictures (3 copies), residence certificate, and told to report once
a week on Mondays. (Exhibit "E"). This was on December 7, 1979.
Aside from these documents, the Probation Officer required of the petitioner on December 10, 1979
when the latter was asking permission to go to Baguio to submit to the office a copy of his visa and
passport. Mrs. Francisco to testified that the petitioner was asking permission from her to leave for
Baguio. And according to the petitioner, "during all the time he was applying for probation, he made
more or less 12 visits in the office as he was directed to report every Monday at 10:00 o'clock in the
morning. He reported for 6 to 7 consecutive weeks and there were times that he went there
Article 6

unscheduled for conference and clarification of the various re. requirements he needed. During all
the time he went there, he met Manalo, Mrs. Francisco and Mr. Ocampo himself. Mrs. Francisco and
Mr. Ocampo interviewed him He submitted all the requirements to the Probation Officer; at times, he
submitted them directly to Mrs. Francisco, and at other times to Mr. Manalo, and also to Mr.
Ocampo. Other than those listed in the list given by Mrs. Francisco, he was required to submit xerox
copy of his passport, his visa and his pictures. He explained that he gave the requirements to the
person who was interviewing him, primarily Mrs. Francisco, of the documents needed. Later, he
submitted to the office xerox copy of the original He likewise submitted his two passports, and later
xerox copy of his passports. When Mrs. Francisco was asking for the original, which documents are
in the possession of his lawyer at his office, he had to return to get the originals." (Decision of Trial
Court, p. 5). Petitioner's travail is, therefore, quite evident.
From the foregoing, We can fairly deduce that the procedure for processing petitioner's application
for probation in the Probation Office at Angeles City was not precise, explicit and clear cut And since
the accused petitioner is a foreigner and quite unfamiliar with probation rules and procedures, there
is reason to conclude that petitioner was befuddled, if not confused so that his act of providing and
advancing the expenses for whatever documentation was needed further to complete and thus
hasten his probation application, was understandably innocent and not criminal.
In fine, the facts and circumstances on record amply justify and support the claim of the defense as
against the conjectures, speculation and supposition recited in the decision of the trial court and
quoted with approval in the appealed decision under review. The Government's own evidence as
indicated in the Post-Sentence Investigation Report that the giving of the one hundred pesos
( P100.00) was done in good faith, is vital for it belies petitioner's criminal intent. There being no
criminal intent to corrupt the Probation Officer, the accused petitioner is entitled to acquittal of the
crime charged. We hold and rule that the prosecution has not proved the guilt of the accused beyond
reasonable doubt. There is not that moral certainty required to convict him. Even the complainant
himself, the Probation Officer, filed the complaint only on the suggestion of the presiding judge of the
Angeles City Court during the hearing on petitioner's application for probation, the complaint having
been filed in the City Fiscal's Office on June 10, 1980 after a lapse and delay of six (6) months.
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment appealed from is hereby
REVERSED. The accused petitioner is hereby ACQUITTED. No costs.
SO ORDERED. 1äwphï1.ñët
Concepcion, Jr., Escolin and Cuevas, JJ., concur.
Aquino, J., concurs in the result.
Abad Santos, J., took no part.
MAKASIAR, J., dissenting:
1. As stated by the Solicitor General the pretension of the petitioner that he was confused with
respect to the requirements and/or processing of his application for probation pending before the
complaining witness Probation Officer Danilo Ocampo of Angeles City, is incredible. As early as
December 7, 1979, about ten (10) days before December 17, 1979 (the delivery of the P100 peso
bill inside a closed letter envelope petitioner was already interviewed by Mrs. Primitiva Francisco,
Assistant Probation Officer of the Probation Office of Angeles City, who gave him the list of
documents to be submitted to the office. Hence, petitioner already knew then what papers were
required of hint
2. His claim that the P100 peso bill contained in the aforesaid closed letter envelope was for xerox
copies of other documents that may be required of him by the Probation Office, is belied by the
aforesaid fact that as early as December 7, 1979, Assistant Probation Officer Francisco already
gave him the list of documents that he should submit to the Probation Office, and that on December
10, 1979, Probation Officer Ocampo also required him to submit xerox copies only of his passport
and visa as he was a foreigner, in connection with his request for permission to go to Baguio City.
3. If, as he alleged, the P100 bill was intended for xerox copies of other documents that may be
required of him, he should have, as stated by the Solicitor General in his comment and
memorandum, given the same to the clerk Ricardo Manalo of the Probation Office, with instructions
that the same should cover whatever xerox copies of other documents may be needed. Or he should
have attached or clipped the P100 bill to a note addressed to Probation Officer Ocampo that the said
money is to cover expenses for xerox copies of other documents that may be required of him.
Article 6

4. Petitioner could have just given the P100 bill to his lawyer, Atty. Reynaldo Suarez, with
instructions that the same should be paid for whatever xerox copies of other documents that may be
required of him in connection with his application for probation.
5. Petitioner saw Assistant Probation Officer Francisco on December 21, 1979; but on said date
petitioner did not bother to ask either Assistant Probation Officer Francisco on December 21, 1979;
but on said date petitioner did not bother to ask either Assistant Probation Officer Francisco or the
Probation Clerk Ricardo Manalo, whether the P100 bill was spent for xerox copies of other
documents. He went there that day, December 21, 1979, precisely to reiterate his request for
permission to leave for Baguio City and Assistant Probation Officer Francisco advised him to talk to
Probation Officer Ocampo whom he did not even try to see that day, December 21, 1979.
6. Petitioner could not presume that his application for probation would be favorably acted upon
because he was still then being subjected to an investigation by Assistant Probation petition Officer
Francisco who submitted her post-sentence report to the City Court only on February 5, 1980. Said
report included the statement about the bribe money. Probation Officer Ocampo had to recommend
in March, 1980 approval of petitioner's application for probation; because at that time he had not yet
filed the complaint with the City Fiscal's Office for corruption of public officer against petitioner who,
as stressed by Probation Officer Ocampo, was presumed innocent until adjudged guilty of such
corruption,
Hence, the conviction of petitioner should be affirmed but only for attempted corruption of a public
officer, because Probation officer Ocampo did not accept the money; otherwise, said probation
officer would be equally guilty as the corruptor.
ARSON
Article 6
G.R. No. L-6025 May 30, 1964

vs.
AMADO V. HERNANDEZ, ET AL., accused,
AMADO V. HERNANDEZ, ET AL., defendants-appellants.
-----------------------------
G.R. No. L-6026 May 30, 1964

vs.
BAYANI ESPIRITU, ET AL., accused,
BAYANI ESPIRITU and TEOPISTA VALERIO, defendants-appellants.
LABRADOR, J.:
This is the appeal prosecuted by the defendants from the judgment rendered by the Court of First
Instance of Manila, Hon. Agustin P. Montesa, presiding, in its Criminal Case No. 15841, People vs.
Amado V. Hernandez, et al., and Criminal Case No. 15479, People vs. Bayani Espiritu, et al. In
Criminal Case No. 15841 (G.R. No. L-6026) the charge is for Rebellion with Multiple Murder, Arsons
and Robberies; the appellants are Amado V. Hernandez, Juan J. Cruz, Genaro de la Cruz, Amado
Racanday, Fermin Rodillas and Julian Lumanog; Aquilino Bunsol, Adriano Samson and Andres
Baisa, Jr. were among those sentenced in the judgment appealed from, but they have withdrawn
their appeal. In Criminal Case No. 15479 (G.R. No. L-6026) the charge is for rebellion with murders,
arsons and kidnappings; the accused are Bayani Espiritu Teopista Valerio and Andres Balsa, Jr.;
they all appealed but Andres Balsa, Jr. withdrew his appeal.
The information filed against defendants Hernandez and others in Criminal Case No. 15481 alleged:
I. That on or about March 15, 1945, and for some time before the said date and continuously
thereafter, until the present time, in the City of Manila, Philippines, and the place which they
had chosen as the nerve center of all their rebellious activities in the different parts of the
Philippines, the said accused, conspiring, confederating and cooperating with each other, as
well as with the thirty-one (31) defendants charged in Criminal Cases Nos. 19071, 14082,
14270, 14315 and 14344 of the Court of First Instance of Manila (decided May 11, 1951) and
also with others whose whereabouts and identities are still unknown, the said accused and
their other co-conspirators, being then high ranking officers and/or members of, or otherwise
affiliated with the Communist Party of the Philippines (P.K.P.), which is now actively engaged
in an armed rebellion against the Government of the Philippines thru act theretofore
committed and planned to be further committed in Manila and other places in the Philippines,
and of which party the "Hukbong Mapagpalaya Ng Bayan"(H.M.B.) otherwise or formerly
known as the "Hukbalahaps" (Huks), unlawfully and did then and there willfully, unlawfully
and feloniously help, support, promote, maintain, cause, direct and/or command the
"Hukbong Mapagpalaya Ng Bayan" (H.M.B.) or the "Hukbalahaps" (Huks) to rise publicly and
Article 6

take arms against the Republic of the Philippines, or otherwise participate in such armed
public uprising, for the purpose of removing the territory of the Philippines from the
allegiance to the government and laws thereof as in fact the said "Hukbong Mapagpalaya Ng
Bayan" or "Hukbalahaps" have risen publicly and taken arms to attain the said purpose by
then and there making armed raids, sorties and ambushes, attacks against police,
constabulary and army detachments as well as innocent civilians, and as a necessary means
to commit the crime of rebellion, in connection therewith and in furtherance thereof, have
then and there committed acts of murder, pillage, looting, plunder, arson, and planned
destruction of private and public property to create and spread chaos, disorder, terror, and
fear so as to facilitate the accomplishment of the aforesaid purpose, as. follows, to wit:
(Enumeration of thirteen attacks on government forces or civilians by Huks on May 6, 1946,
August 6, 1946, April 10, 1947, May 9, 1947, August 19, 1947, June, 1946, April 28, 1949,
August 25, 1950, August 26, 1950, August 25, 1950, September 12, 1950, March 28, 1950
and March 29, 1950.)
II. That during the period of time and under the same circumstances herein-above indicated
the said accused in the above-entitled case, conspiring among themselves and with several
others as aforesaid, willfully, unlawfully and feloniously organized, established, led and/or
maintained the Congress of Labor Organizations (CLO), formerly known as the Committee
on Labor Organizations (CLO), with central offices in Manila and chapters and affiliated or
associated labor unions and other "mass organizations" in different places in the Philippines,
as an active agency, organ, and instrumentality of the Communist Party of the Philippines
(P.K.P.) and as such agency, organ, and instrumentality, to fully cooperate in, and
synchronize its activities — as the CLO thus organized, established, led and/or maintained
by the herein accused and their co-conspirators, has in fact fully cooperated in and
synchronized its activities with the activities of the "Hukbong Mapagpalaya Ng Bayan"
(H.M.B.) and other organs, agencies, and instrumentalities of the Communist Party of the
Philippines (P.K.P.), to thereby assure, facilitate, and effect the complete and permanent
success of the above-mentioned armed rebellion against the Government of the Philippines.
The information filed against the defendants in Criminal Case No. 15479, Bayani Espiritu Andres
Baisa, Jr. and Teopista Valerio, alleges:
That on or about the 6th day of May, 1946, and for sometime prior and subsequent thereto
and continuously up to the present time, in the City of Manila, the seat of the government of
the Republic of the Philippines, which the herein accused have intended to overthrow, and
the place chosen for that purpose as the nerve center of all their rebellious atrocities in the
different parts of the country, the said accused being then high ranking officials and/or
members of the Communist Party of the Philippines (P.K.P.) and/or of the "Hukbong
Mapagpalaya Ng Bayan" (H.M.B.) otherwise or formerly known as the "Hukbalahaps"
(HUKS), the latter being the armed forces of said Communist Party of the Philippines; having
come to an agreement with the 29 of the 31 accused in Criminal Cases Nos. 14071, 14082,
14270, 14315, 14344 of the Court of First Instance of Manila and decided to commit the
crime of rebellion, and therefore, conspiring and confederating with all of the 29 accused in
said criminal cases, acting in accordance with their conspiracy and in furtherance thereof,
together with many others whose whereabouts and identities are still unknown up to the filing
of this information, and helping one another, did then and there willfully, unlawfully and
feloniously promote maintain, cause, direct and/or command the "Hukbong Mapagpalaya Ng
Bayan", (HMB) or the Hukbalahaps (HUKS) to rise publicly and take Arms against the
Government or otherwise participate therein for the purpose of overthrowing the same, as in
fact, the said "Hukbong Mapagpalaya Ng Bayan" or Hukbalahap (HUKS) have risen publicly
and taken arms against the Government, by then and there making armed raids, sorties and
ambushes, attacks against police, constabulary and army detachment, and as a necessary
means to commit the crime of rebellion, in connection therewith and in furtherance thereof,
by then and there committing wanton acts of murder, spoilage, looting, arson, kidnappings,
planned destruction of private and public buildings, to create and spread terrorism in order to
facilitate the accomplishment of the aforesaid purpose, as follows to wit: (Enumeration of
thirteen attacks on Government forces or civilians by Huks on May 6, 1946. August 6, 1946,
April 10, 1947, May 9, 1947, August 19, 1947, June 1946, April 28, 1949, August 25, 1950,
August 26, 1950, August 25, 1950, September 12, 1950, March 28, 1950 and March 29,
1950).
A joint trial of both cases was held, after which the court rendered the decision subject of the present
appeals.
APPEAL OF AMADO V. HERNANDEZ
After trial the Court of First Instance found, as against appellant Amado V. Hernandez, the following:
(1) that he is a member of the Communist Party of the Philippines and as such had aliases, namely,
Victor or Soliman; (2) that he was furnished copies of "Titis", a Communist publication, as well as
Article 6

other publications of the Party; (3) that he held the position of President of the Congress of Labor
Organizations; (4) that he had close connections with the Secretariat of the Communist Party and
held continuous communications with its leaders and its members; (5) that he furnished a
mimeographing machine used by the Communist Party, as well as clothes and supplies for the
military operations of the Huks; (6) that he had contacted well-known Communists coming to the
Philippines and had gone abroad to the WFTU conference Brussels, Belgium as a delegate of the
CLO, etc. Evidence was also received by the court that Hernandez made various speeches
encouraging the people to join in the Huk movement in the provinces.
The court also found that there was a close tie-up between the Communist Party and the Congress
of Labor Organizations, of which Hernandez was the President, and that this Congress was
organized by Hernandez in conjunction with other Huks, namely: Alfredo Saulo, Mariano Balgos,
Guillermo Capadocia, etc.
We will now consider the nature and character of both the testimonial as well as the documentary
evidence, independently of each other, to find out if the said evidence supports the findings of the
court.
Testimonial Evidence
Amado V. Hernandez took the oath as member of the Communist Party in the month of October,
1947, at the offices of the Congress of Labor Organizations at 2070 Azcarraga in the presence of
Guillermo Capadocia, Ramon Espiritu, Pedro Castro, Andres Balsa, etc. As a Communist he was
given the pseudonyms of Victor and Soliman, and received copies of the Communist paper "Titis".
He made various speeches on the following dates and occasions:
(1) On August 29, 1948 before the Democratic Peace Rally of the CLO at Plaza Miranda, in
which he announced that the people will soon meet their dear comrade in the person of
Comrade Luis Taruc.
(2) On September 4, 1948 he conferred with Hindu Khomal Goufar at the Escolta, at which
occasion Balgos told Goufar that the PKM, CLO and the Huks are in one effort that the PKM
are the peasants in the field and the Huks are the armed forces of the Communist Party; and
the CLO falls under the TUD of the Communist Party. 1äwphï1.ñët
(3) On October 2, 1948 he went abroad to attend the Second Annual Convention of the
World Federation of Trade Unions and after arrival from abroad a dinner was given to him by
the people of Gagalangin, at which Hernandez delivered a speech and he said that he
preferred to go with the Huks because he felt safer with them than with the authorities of the
Government.
(4) In April, 1949, he made a speech before a group of tenants in Malabon attacking the
frauds in the 1947 elections, graft and corruption in the elections and that if improvement
cannot be made by the ballots, they could be made by bullets; and enjoined the people to go
to the hills and join Luis Taruc the head of the dissidents in the Philippines.
(5) On October 2, 1949 he delivered a speech on the occasion of the commemoration of the
World Peace at the CLO headquarters at 330 P. Campa. He attacked the city mayor and
incited the people to go to Balintawak and see Bonifacio there and thereafter join four
comrades under the leadership of Luis Taruc.
(6) On October 16, 1949 he delivered a speech before a convention of the unemployed at
330 P. Campa. He asked the unemployed to approve a resolution urging the Government to
give them jobs. In conclusion he said that if the Government fails to give them jobs the only
way out was to join the revolutionary forces fighting in the hills. He further said that Mao Tse
Tung, leader of the People's Army in China, drove Chiang Kai Shek from his country, and
that Luis Taruc was also being chased by Government forces run by puppets like Quirino,
etc.
(7) On January 13, 1950 there was another meeting at 330 P. Campa. In his talk Hernandez
expressed regret that two foremost leaders of the CLO, Balgos and Capadocia, had gone to
the field to join the liberation army of the HMB, justifying their going out and becoming
heroes by fighting in the fields against Government forces until the ultimate goal is achieved.
The above evidence was testified to by Florentino Diolata who was the official photographer of the
CLO since August, 1948.
On the tie-up between the Communist Party and the CLO Guillermo Calayag, a Communist and a
Huk from 1942 to 1950, explained:
Article 6

(1) The ultimate goal of the Communist Party is to overthrow the president government by
force of aims and violence; thru armed revolution and replace it with the so-called
dictatorship of the proletariat the Communist Party carries its program of armed overthrow of
the present government by organizing the HMB and other forms of organization's such as
the CLO, PKM, union organizations, and the professional and intellectual group; the CLO
was organized by the Trade Union Division TUD of the Communist Party.
(2) A good majority of the members of the Executive Committee and the Central Committee
of the CLO were also top ranking officials of the Communist Party; activities undertaken by
the TUD - the vital undertaking of the TUD is to see that the directives coming from the
organizational bureau of the Communist Party can be discussed within the CLO especially
the Executive Committee. And it is a fact that since a good majority of the members of the
Executive Committee are party members, there is no time, there is no single time that those
directives and decisions of the organizational department, thru the TUD are being objected
to by the Executive Committee of the CLO. These directives refer to how the CLO will
conduct its functions. The executive committee is under the chairmanship of accused Amado
V. Hernandez.
(3) The CLO played its role in the overall Communist program of armed overthrow of the
present government and its replacement by the dictatorship of the proletariat by means of
propaganda - by propagating the principles of Communism, by giving monetary aid, clothing,
medicine and other forms of material help to the HMB. This role is manifested in the very
constitution of the CLO itself which expounded the theory of classless society and the
eradication of social classes (par. 5, Sec. 1, Art. 2, page 18 of the CLO Constitution
contained in the Fourth Annual Convention Souvenir Program of the CLO Exh. "V-1579").
Thru propaganda, the CLO promoted the aims of Communist Party and disseminated
Communist ideas by:
(a) The conspicuous display of the portrait or, pictures of Crisanto Evangelista (Exh.
V-1662), founder of Communism in the Philippines, in the session hall of the CLO
headquarters at 2070 Azcarraga and then at 330 P. Campa;
(b) The distribution of foreign communist reading materials such as the World
Federation of Trade Union Magazine, International Union of Students magazine,
Voice magazine of the marine cooks of the CLO, World Committee of the Defenders
of the Peace magazine, Free Bulgaria magazine, Soviet Russia Today magazine and
World Federation of Democratic Youth magazine (Exhs. V-911, V-907, V-910, V-899,
V-912, V-853, W-996 and V-967);
(c) The publication and distribution of some local subversive publications such as the
"Titis", "Bisig", Kidlat", which are Communist Party organs; "The Philippine Labor
Demands Justice" and "Hands Off Korea" authored by accused Amado V.
Hernandez;
(d) Principles of Communism were also propagated thru lectures, meetings, and by
means of organization of committees in the educational department as well as
researches in the Worker's Institute of the CLO.
(4) The CLO also helped carry out the program of the Communist Party thru infiltration of
party members and selected leaders of the HMB within the trade unions under the control of
the CLO. The Communist Party thru the CLO assigned Communist Party leaders and
organizers to different factories in order to organize unions. After the organization of the
union, it will affiliate itself with the CLO thru the Communist leaders and the CLO in turn, will
register said union with the Department of Labor; and the orientation and indoctrination of
the workers is continued in the line of class struggle. After this orientation and infiltration of
the Communist Party members and selected leaders of the HMB with the trade unions under
the control of the CLO is already achieved and the group made strong enough to carry out its
aims, they will begin the sporadic strikes and the liquidation of anti-labor elements and anti-
Communist elements and will create a so-called revolutionary crisis. That revolutionary crisis
will be done for the party to give directives to the HMB who are fighting in the countrysides
and made them come to the city gates. The entry of the HMB is being paved by the
simultaneous and sporadic strikes, by ultimate general strikes thru the management of the
CLO.
Important Documents Submitted at Trial
1. Documents which proved that Amado V. Hernandez used the aliases "Victor", or was
referred to as "Victor" or "Soliman".
Article 6

(a) Letter dated April 23, 1950 (signed) by Victor addressed to Julie telling the latter
of his sympathies for other communists, describing his experiences with Communists
abroad, telling Julie to dispose of materials that may be sent by Victor. (Exh. D-2001-
2004)
(b) "Paano Maisasagawa, etc." — mentions different groups of labor unions of which
Victor heads one group, consisting of the MRRCO, PTLD, PGWU, EMWU and IRWU
(Exh. C-2001-2008) Cadres assigned to different industries. (Exh. V-40-41)
(c) Handwritten certificate of Honofre Mangila states that he knew Amado Hernandez
as Victor from co-party members Hugo and Ely. (Exh. LL)
(d) Letter of Elias to Ka Eto requesting the latter to deliver attached letter to Victor.
(Exh. 1103)
(e) Saulo's letter about his escape, asks Victor why his press statement was not
published in the newspapers. (Exh. C-362) Letter was however published by
Hernandez in the Daily Mirror.
(f) Letter of Taruc to Maclang directing the latter to give copy of Huk Story to Victor.
(Exh. D-463-64)
(g) Notes of Salome Cruz, Huk courier, stating that she went to Soliman at
Pampanga St. to bring to the latter communications from the Communist Party. (Exh.
D-1203) That Soliman was given copies of "Titis". (Exh. D-1209)
(h) SEC directions to Politburo members, Soliman not to be involved with

Nacionalista Rebels. (Exh. F-92-93. SEC)
(i) Letter of SEC to Politburo reporting that Saulo be sent out and Soliman has
"tendencies of careerism and tendency to want to deal with leaders of the party"; that
he should be asked to choose to go underground or fight legally. (Exh. F-562)
(j) Explanation given by Hernandez why he did not join Saulo in going underground.
(Exh. V-87) (1) His election as councilor until December, 1951. (Exhs. V-42, W-9) (2)
His election as President of CLO until August of following year. (Exhs. V-42, W-9)
2. Letters and Messages of Hernandez.
(a) To Lyden Henry and Harry Reich, tells Huks still fighting. (Exh. V-80)
(b) To SOBSI Jakarta — that Filipinos are joining other communist countries of the
East. (Exh. V-82)
(c) Press release on Saulo's disappearance published by Amado Hernandez. (Exh.

W-116-120)
(d) To Hugh and Eddie, July 8, 1949 — Extends greetings to National Union of
Marine Cooks and Stewards, states that labor has one common struggle — "the
liberation of all the peoples from the chains of tyranny, fascism and imperialism".
(Exh. V-259)
(e) To Kas. Pablo and Estrada - talks of the fight - fight of labor. (Exh. V-85-89)
(f) Appeal to the Women and Asia. (Exh. V-5-10)
(g) Letter to Julie (Exh. V-2001-2004)
(h) Letter to Chan Lieu - states that leaders during the war are being persecuted, like
Taruc. Tells of reward of P100,000.00 on Taruc's head. (Exh. X-85-88)
(i) Letter to John Gates of the Daily Worker — condemns Wall Street maneuvers;
corruption and graft in Quirino administration, etc. (Exh. V-83)
(j) Cablegram: CLO join ILWU commends Harry Bridges, US Communist. (Exh. V-
79)
Article 6

(k) Communication of Hernandez to CLO at MRRCO — Praises Balgos and
Capadocia for joining the Huks. (Exhs. V-12-22, V-289)
(l) "Philippine labor Demands Justice" — Attacks czars of Wall Street and U.S. Army
and Government. (Exh. V-94) .
(m) Letter to Taruc — June 28, 1948.-States solidarity among the CLO Huks and
PKM. Attacks North Atlantic Pact. Praises Mao Tse Tung (contained in Exh. V-94)
(n) "Philippines Is Not A Paradise" — States of a delegation to Roxas attacking

unemployment. (Exh. V-90-93)
(o) Article "Progressive Philippines" — (Exh. V-287)
(p) Article "Hands Off Korea" — (Exhs. V-488-494, 495-501, 509-515, W-25-26)
(q) "Limang Buwang Balak Sa Pagpapalakas Ng Organisasyon". (Exh. X-35-38)
(r) Press statement of Hernandez — opposes acceptance of decorations from

Greece by Romulo. (Exh. V-72)
3. Other Activities of Hernandez.
(a) Hernandez received clothes from Pres. Lines thru P. Campa, which clothes he
sent to the field. Letters show of sending of supplies to Huks. (Exh. S-383)
(b) Hernandez was asked to furnish portable typewriter, which he did furnish to Huks.
(Exh. C-364)
(c) Hernandez brought Taruc's letter about facts and incidents about Huks to
Bulosan for inclusion in Bulosan's book. (Exh. FF-1)
(d) Had conference with Kumar Goshal a Hindu, about the Huks and their armed
forces. (Photographs, Exhs. X-6 RR-54-55A)
(e) Supervised taking of pictures of sons of Capadocia and Joven. (Photographs,

Exhs. T-1, RR-136-138A)
(f) Had knowledge of the going underground of Capadocia and Balgos and issued
press release about their going underground. (Exh. F-91)
(g) Victor mentioned to continue as contact for Chino. (Exh. C-362)
(h) Taruc's letter to Maclang shows that Soliman had sent 7 lessons to Taruc. (Exh.
D-451-451-A)
(i) Associated with fellow ranking Communist leaders.
The Court upon consideration of the evidence submitted, found (1) that the Communist Party was
fully organized as a party and in order to carry out its aims and policies a established a National
Congress, a Central Committee (CC), Politburo PB, Secretariat (SEC), Organization Bureau (OB),
and National Courier or Communication Division (NCD), each body performing functions indicated in
their respective names; (2) that in a meeting held on August 11, 1950 the SEC discussed the
creation of a Military Committee of the Party and a new GHQ, under which on September 29, 1950
the SEC organized a special warfare division, with a technological division; (3) that on May 5, 1950 a
body known as the National Intelligence Division was created, to gather essential military intelligence
and, in general, all information useful for the conduct of the armed struggle (4) that a National
Finance Committee was also organized as a part of the Politburo and answerable to it; (5) that the
country was divided into 10 Recos, the 10th Reco comprising the Manila and suburbs command; (6)
that since November, 1949 the CPP had declared the existence of a revolutionary situation and
since then the Party had gone underground and the CPP is leading the armed struggle for national
liberation, and called on the people to organize guerrillas and coordinate with the HMB on the
decisive struggle and final overthrow of the imperialist government; (7) that in accordance with such
plan the CPP prepared plans for expansion and development not only of the Party but also of the
HMB; the expansion of the cadres from 3,600 in July 1950 to 56,000 in September 1951, the HMB
from 10,800 in July 1950 to 172,000 in September 1951, et seq.
Article 6

Around the month of January, 1950 it was decided by the CPP to intensify HMB military operations
for political purposes. The Politburo sanctioned the attacks made by the Huks on the anniversary of
the HMB on March 25, 1950. The HMB attacks that were reported to the PB were those made in
May, 1946; June, 1946; April 10, 1947; May 9, 1947; August 19, 1947; August 25, 1950; August 26,
1950; October 15 and 17, 1950; May 6, 1946; August 6, 1946; April 10, 1947; May 9, 1947; August
19, 1947; April 29, 1949; August 25, 1950; August 26, 1950; September 12, 1950; March 26, 1950;
March 29, 1950.
The theory of the prosecution, as stated in the lower court's decision, is as follows:
The evidence does not show that the defendants in these cases now before this Court had
taken a direct part in those raids and in the commission of the crimes that had been
committed. It is not, however, the theory of the prosecution that they in fact had direct
participation in the commission of the same but rather that the defendants in these cases
have cooperated, conspired and confederated with the Communist Party in the prosecution
and successful accomplishment of the aims and purposes of the said Party thru the
organization called the CLO (Congress of Labor Organizations).
The Court found that the CLO is independent and separate from the CPP, organized under the same
pattern as the CPP, having its own National Congress, a Central Committee (which acts in the
absence of and in representation of the National Congress), an Executive Committee (which acts
when the National Congress and the Executive Committee are not in session), and seven
permanent Committees, namely, of Organization, Unemployment and Public Relations, Different
Strikes and Pickets, Finance, Auditing, Legislation and Political Action. Members of the Communist
Party dominate the committees of the CLO. The supposed tie-up between CPP and the CLO of
which Hernandez was the President, is described by the court below in finding, thus:
Just how the CLO coordinates its functions with the Communist Party organ under which it operates
was explained by witness Guillermo S. Calayag, one-time ranking member of the Communist Party
and the CLO who typewrites the "Patnubay sa Education" from a handwritten draft of Capadocia,
which is one of the texts used in the Worker's institute of the CLO. According to him, the CLO plays
its role by means of propaganda, giving monetary aid, clothing, medicine and other material forms of
help to the HMB, which constitutes the armed forces of the Communist Party. Propaganda is done
by lectures, meetings, and the organization of committees of the educational department as well as
researches at the CLO Worker's Institute.
Another way of helping the Communist Party of the Philippines is by allowing the Communist
Party leaders to act as organizers in the different factories in forming a union. These Party
Members help workers in the factories to agitate for the eradication of social classes and
ultimately effect the total emancipation of the working classes thru the establishment of the
so-called dictatorship of the proletariat. It is the duty of these Communist Party members to
indoctrinate uninitiated workers in the union to become proselytes of the Communist Party
ideology. After the right number is secured and a union is formed under a communist leader,
this union is affiliated with the CLO and this in turn registers the same with the Department of
Labor. The orientation and indoctrination of the masses is continued with the help of the
CLO. The primary objective of the CLO is to create what is called a revolutionary crisis. It
seeks to attain this objective by first making demands from the employers for concessions
which become more and more unreasonable until the employers would find it difficult to grant
the same. Then a strike is declared. But the strikes are only preparation for the ultimate
attainment of the Communist goal of armed overthrow of the government. After the workers
in the factories have already struck in general at the behest of the Communist Party thru the
CLO a critical point is reached when a signal is given for the armed forces of the Communist
Party, the HMB, to intervene and carry the revolution now being conducted outside to within
the city.
On the basis of the above findings, the court below found Hernandez guilty as principal of the crime
charged against him and sentenced him to suffer the penalty of reclusion perpetua with the
accessories provided by law, and to pay the proportionate amount of the costs.
Our study of the testimonial and documentary evidence, especially those cited by the Court in its
decision and by the Solicitor General in his brief, discloses that defendant-appellant Amado V.
Hernandez, as a Communist, was an active advocate of the principles of Communism, frequently
exhorting his hearers to follow the footsteps of Taruc and join the uprising of the laboring classes
against capitalism and more specifically against America and the Quirino administration, which he
dubbed as a regime of puppets of American imperialism. But beyond the open advocacy of
Communistic Theory there appears no evidence that he actually participated in the actual conspiracy
to overthrow by force the constituted authority.
Hernandez is the founder and head of the CLO. As such, what was his relation to the rebellion? If,
as testified to by Guillermo S. Calayag, the CLO plays merely the role of propagation by lectures,
Article 6

meetings and organization of committees of education by Communists; if, as stated, the CLO merely
allowed Communist Party leaders to act as organizers in the different factories, to indoctrinate the
CLO members into the Communist Party and proselytize them to the Communist ideology; if, as also
indicated by Calayag, the CLO purports to attain the ultimate overthrow of the Government first by
making demands from employers for concessions until the employers find it difficult to grant the
same, at which time a strike is declared; if it is only after the various strikes have been carried out
and a crisis is thereby developed among the laboring class, that the Communist forces would
intervene and carry the revolution — it is apparent that the CLO was merely a stepping stone in the
preparation of the laborers for the Communist' ultimate revolution. In other words, the CLO had no
function but that of indoctrination and preparation of the members for the uprising that would come. It
was only a preparatory organization prior to revolution, not the revolution itself. The leader of the
CLO therefore, namely Hernandez, cannot be considered as a leader in actual rebellion or of the
actual uprising subject of the accusation. Hernandez, as President of the CLO therefore, by his
presidency and leadership of the CLO cannot be considered as having actually risen up in arms in
rebellion against the Government of the Philippines, or taken part in the conspiracy to commit the
rebellion as charged against him in the present case; he was merely a propagandist and
indoctrinator of Communism, he was not a Communist conspiring to commit the actual rebellion by
the mere fact of his presidency of the CLO.
The court below declares that since November 1949 the Communist Party of the Philippines had
declared the existence of the revolutionary situation and since then the Party had gone underground,
with the CPP leading the struggle for national integration and that in the month of January 1950, it
was decided by the said Party to intensify the HMB military operations for political purposes. The
court implicates the appellant Hernandez as a co-conspirator in this resolution or acts of the
Communist Party by his mere membership thereto. We find this conclusion unwarranted. The
seditious speeches of Hernandez took place before November, 1949 when the CPP went
underground. The court below has not been able to point out, nor have We been able to find among
all acts attributed to Hernandez, any single fact or act of his from which it may be inferred that he
took part in the deliberations declaring the existence of a revolutionary situation, or that he had gone
underground. As a matter of fact the prosecution's evidence is to the effect that Hernandez refused
to go underground preferring to engage in what they consider the legal battle for the cause.
We have also looked into the different documents which have been presented at the time of the trial
and which were confiscated from the office of the Politburo of the Communist Party. The speeches
of Hernandez were delivered before the declaration by the Communist Party of a state of
revolutionary situation in 1949. Neither was it shown that Hernandez was a member of the Executive
Committee, or of the SEC, or of the Politburo of the Communist Party; so NO presumption can arise
that he had taken part in the accord or conspiracy declaring a revolution. In short, there has been no
evidence, direct or indirect, to relate or connect the appellant Hernandez with the uprising or the
resolution to continue or maintain said uprising, his participation in the deliberations leading to the
uprising being inferred only from the fact that he was a communist.
The practice among the top Communists, as declared by the trial court appears to have been for
important members, if they intend actually to join the rebellion, to go underground, which meant
leaving the city, disappearing from sight and/or secretly joining the forces in the field.
The document, Exhibit F-562, which is quoted in the decision, contains the directive of the SEC of
September 1, 1950, to Saulo and Hernandez, which reads:
11. In view of the new developments in the city, send out Elias who prefers to work outside.
Present problem of fighting legally to Com. Soliman. If Soliman is prepared for martyrdom,
retain him to fight legally. If not, send him out with Elias. Same goes with Com. Mino and
other relatively exposed mass leaders.
And the lower court itself found that whereas Saulo went underground and joined the underground
forces outside the City, Hernandez remained in the City, engaged in the work of propaganda,
making speeches and causing the publication of such matters as the Communist Party leaders
directed him to publish.
That Hernandez refused to go underground is a fact which is further corroborated by the following
reasons (excuses) given by him for not going underground, namely (1) that his term of councilor of
the City of Manila was to extend to December, 1951; and (2) that he was elected President of the
CLO for a term which was to end the year 1951.
As a matter of fact the SEC gave instructions to Hernandez not to be involved with Nacionalista
Rebels, and reported to the Politburo that Hernandez "has tendencies of careerism, and tending to
want to deal with leaders of the Nacionalista Party instead of following CPP organizational
procedures."
Article 6

The court below further found that Hernandez had been furnishing supplies for the Huks in the field.
But the very document dated December 3, 1949, Exhibit D-420422, cited in the decision (printed, p.
49), is to the effect that clothes and shoes that Hernandez was supposed to have sent have not
been received. It is true that some clothes had been sent thru him to the field, but these clothes had
come from a crew member of a ship of the American President Lines. He also, upon request, sent a
portable typewriter to the SEC or Politburo. Furthermore, a certain Niagara Duplicating machine
received by Hernandez from one Rolland Scott Bullard a crew member of the SS President
Cleveland, appease later to have been forwarded by him to the officers of the SEC or the Politburo.
Lastly, it further appears that Taruc and other CPP leaders used to send notes to appellant
Hernandez, who in turn issued press releases for which he found space in the local papers. His acts
in this respect belong to the category of propaganda, to which he appears to have limited his actions
as a Communist.
The acts of the appellant as thus explained and analyzed fall under the category of acts of
propaganda, but do not prove that he actually and in fact conspired with the leaders of the
Communist Party in the uprising or in the actual rebellion, for which acts he is charged in the
information. And his refusal to go underground because of his political commitments occasioned by
his term of election as president of the CLO and the impressions caused by his acts on the
Communist leaders, to the effect that he was in direct communication or understanding with the
Nacionalista Party to which he was affiliated, creates in Us the reasonable doubt that it was not his
Communistic leanings but his political ambitions, that motivated his speeches sympathizing with the
Huks. For which reason We hold that the evidence submitted fails to prove beyond reasonable doubt
that he has conspired in the instigation of the rebellion for which he is held to account in this criminal
case.
The question that next comes up for resolution is: Does his or anyone's membership in the
Communist Party per se render Hernandez or any Communist guilty of conspiracy to commit
rebellion under the provisions of Article 136 of the Revised Penal Code? The pertinent provision
reads:
ART. 136. Conspiracy and proposal to commit rebellion or insurrection. — The conspiracy

and proposal to commit rebellion or insurrection shall be punished, respectively, by prision
correccional in its maximum period and a fine which shall not exceed 5,000 pesos, and
by prision correccional in its medium period and a fine not exceeding 2,000 pesos.
The advocacy of Communism or Communistic theory and principle is not to be considered as a

criminal act of conspiracy unless transformed or converted into an advocacy of action. In the very
nature of things, mere advocacy of a theory or principle is insufficient unless the communist
advocates action, immediate and positive, the actual agreement to start an uprising or rebellion or an
agreement forged to use force and violence in an uprising of the working class to overthrow
constituted authority and seize the reins of Government itself. Unless action is actually advocated or
intended or contemplated, the Communist is a mere theorist, merely holding belief in the supremacy
of the proletariat a Communist does not yet advocate the seizing of the reins of Government by it. As
a theorist the Communist is not yet actually considered as engaging in the criminal field subject to
punishment. Only when the Communist advocates action and actual uprising, war or otherwise, does
he become guilty of conspiracy to commit rebellion. Borrowing the language of the Supreme Court of
the United States:
In our jurisprudence guilt is personal, and when the imposition of punishment on a status or
on conduct can only be justified by reference to the relationship of that status or conduct to
other concededly criminal activity (here advocacy of violent overthrow), that relationship must
be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack
under the Due Process Clause of the Fifth Amendment. Membership, without more, in an
organization engaged in illegal advocacy, it is now said, has not heretofore been recognized
by this Court to be such a relationship. ... .
What must be met, then, is the argument that membership, even when accompanied by the
elements of knowledge and specific intent, affords an insufficient quantum of participation in
the organization's alleged criminal activity, that is, an insufficiently significant form of aid and
encouragement to permit the imposition of criminal sanctions on that basis. It must indeed be
recognized that a person who merely becomes a member of an illegal organization, by that
"act" alone need be doing nothing more than signifying his assent to its purposes and
activities on one hand, and providing, on the other, only the sort of moral encouragement
which comes from the knowledge that others believe in what the organization is doing. It may
indeed be argued that such assent and encouragement do fall short of the concrete,
practical impetus given to a criminal enterprise which is lent for instance by a commitment on
the part of the conspirator to act in furtherance of that enterprise. A member, as
distinguished from a conspirator, may indicate his approval of a criminal enterprise by the
Article 6

very fact of his membership without thereby necessarily committing himself to further it by
any act or course of conduct whatever. (Scales v. United States, 367 U.S. 203, 6 L. ed. 782)
The most important activity of appellant Hernandez appears to be the propagation of improvement of
conditions of labor through his organization, the CLO. While the CLO of which he is the founder and
active president, has communistic tendencies, its activity refers to the strengthening of the unity and
cooperation between labor elements and preparing them for struggle; they are not yet indoctrinated
in the need of an actual war with or against Capitalism. The appellant was a politician and a labor
leader and it is not unreasonable to suspect that his labor activities especially in connection with the
CLO and other trade unions, were impelled and fostered by the desire to secure the labor vote to
support his political ambitions. It is doubtful whether his desire to foster the labor union of which he
was the head was impelled by an actual desire to advance the cause of Communism, not merely to
advance his political aspirations.
Insofar as the appellant's alleged activities as a Communist are concerned, We have not found, nor
has any particular act on his part been pointed to Us, which would indicate that he had advocated
action or the use of force in securing the ends of Communism. True it is, he had friends among the
leaders of the Communist Party, and especially the heads of the rebellion, but this notwithstanding,
evidence is wanting to show that he ever attended their meetings, or collaborated and conspired with
said leaders in planning and encouraging the acts of rebellion, or advancing the cause thereof.
Insofar as the furnishing of the mimeograph machine and clothes is concerned, it appears that he
acted merely as an intermediary, who passed said machine and clothes on to others. It does not
appear that he himself furnished funds or material help of his own to the members of the rebellion or
to the forces of the rebellion in the field.
But the very act or conduct of his in refusing to go underground, in spite of the apparent desire of the
chief of the rebellion, is clear proof of his non-participation in the conspiracy to engage in or to foster
the rebellion or the uprising.
We next consider the question as to whether the fact that Hernandez delivered speeches of
propaganda in favor of Communism and in favor of rebellion can be considered as a criminal act of
conspiracy to commit rebellion as defined in the law. In this respect, the mere fact of his giving and
rendering speeches favoring Communism would not make him guilty of conspiracy, because there
was no evidence that the hearers of his speeches of propaganda then and there agreed to rise up in
arms for the purpose of obtaining the overthrow of the democratic government as envisaged by the
principles of Communism. To this effect is the following comment of Viada:
CUESTION 10. El que hace propaganda entre sus convecinos, induciendoles a que el dia
que se anunciara la subasta de consumes se echaran a la calle para conseguir aunque
fuera preciso acudir a la fuerza el reparto entre los vecinos ricos solamente, sera
responsable de un delito de conspiracion para la sedicion? — El Tribunal Supreme ha
resuelto la negative al casar cierta sentencia de la Audiencia de Valencia, que entendio lo
contrario: "Considerando que, con areglo a lo que dispone el art. 4. del Codigo Penal, hay
conspiracion cuando dos o mas personas se conciertan para la execution de un delito y
resuelven cmeterlo; y no constando que existiera ese concierto en cuanto a los hechos que
se refieren en la tercera pregunta del veredicto, pues en ella solo se habla de los actos de
induccion que el procesado realizo, sin expresar el efecto que la mismo produjo en el animo
de las personas a quienes se dirigian, ni si estas aceptaron o no lo que se las propuso,
resulta evidence que faltan los clementos integrantes de la conspiracion, etc." (Se. de 5 de
Julio de 1907, Gaceta de 7 de Enero de 1909.) (Viada, Tomo I, Codigo Penal, p. 152)
In view of all the above circumstances We find that there is no concrete evidence proving beyond
reasonable doubt that the appellant (Hernandez) actually participated in the rebellion or in any act of
conspiracy to commit or foster the cause of the rebellion. We are constrained, in view of these
circumstances, to absolve, as We hereby absolve, the appellant Amado V. Hernandez from the
crime charged, with a proportionate share of the costs de oficio.
APPEAL OF OTHER DEFENDANTS-APPELLANTS
All the other defendants were found guilty as accomplices in the crime of rebellion as charged in the
information and were each sentenced to suffer the penalty of 10 years and 1 day of prision mayor,
with the accessories provided by law, and to pay their proportionate share of the costs.
Legal Considerations. — Before proceeding to consider the appeals of the other defendants, it is
believed useful if not necessary to lay dawn the circumstances or facts that may be determinative of
their criminal responsibility or the existence or nature thereof. To begin with, as We have
exhaustively discussed in relation to the appeal of Hernandez, we do not believe that mere
membership in the Communist Party or in the CLO renders the member liable, either of rebellion or
of conspiracy to commit rebellion, because mere membership and nothing more merely implies
Article 6

advocacy of abstract theory or principle without any action being induced thereby; and that such
advocacy becomes criminal only if it is coupled with action or advocacy of action, namely, actual
rebellion or conspiracy to commit rebellion, or acts conducive thereto or evincing the same.
On the other hand, membership in the HMB (Hukbalahap) implies participation in an actual uprising
or rebellion to secure, as the Huks pretend, the liberation of the peasants and laboring class from
thraldom. By membership in the HMB, one already advocates uprising and the use of force, and by
such membership he agrees or conspires that force be used to secure the ends of the party. Such
membership, therefore, even if there is nothing more, renders the member guilty of conspiracy to
commit rebellion punishable by law.
And when a Huk member, not content with his membership, does anything to promote the ends of
the rebellion like soliciting contributions, or acting as courier, he thereby becomes guilty of
conspiracy, unless he takes to the field and joins in the rebellion or uprising, in which latter case he
commits rebellion.
In U.S. v. Vergara, infra, the defendants organized a secret society commonly known as the
"Katipunan", the purpose of which was to overthrow the government by force. Each of the
defendants on various times solicited funds from the people of Mexico, Pampanga. The Court held
that the defendants were guilty of conspiracy and proposal to commit rebellion or insurrection and
not of rebellion or insurrection itself. Thus, the Court ruled that:
From the evidence adduced in this case we are of the opinion that the said defendants are
guilty, not of inciting, setting or foot, or assisting or engaging in rebellion, but rather of the
crime of conspiring to overthrow, put down, and destroy by force the Government of the
United States in the Philippine Islands, and therefore we find that said defendants, and each
of them, did, together with others, in the months of February and March, 1903, in the
Province of Pampanga, Philippine Islands, conspire to overthrow, put down, and to destroy
by force the Government of the United States in the Philippine Islands. (U.S. v. Vergara, et
al., 3 Phil. 432, 434.)
JUAN J. CRUZ
The court found him to be a Communist with various aliases, a member of the Central Committee of
the CLO member of the Central Committee of the CPP and as such committed to the establishment
of the dictatorship of the proletariat To the same effect is the testimony of Guillermo Calayag.
There is no evidence to connect him with the rebellion or to the conspiracy to commit rebellion. He
should therefore be absolved of the charges contained in the information.
AMADO RACANDAY
The trial court found him guilty as a Communist, a Secretary and Executive Committee member of
the CLO a communications center of the Communist Party, having been found in possession of
letters from Federico Maclang to Salome Cruz, and solicitor of contributions for the Huks.
Racanday admits being a member of the Executive Committee of the CLO Editor of the Kidlat of the
Government Workers Union, receiving copies of the Titis. Calayag testified that he was a member of
the Central Committee of the Communist Party entrusted with the duty of receiving directives of the
Regional Committee of the Communist Party.
The letters found in his possession are dated February 14, 1950, before the Communist Party went
underground. We have been unable to find the evidence upon which the court bases its conclusion
that he received contributions for the Huks. With these circumstances in mind, We are not convinced
beyond reasonable doubt that as a Communist he took part in the conspiracy among the officials of
the Communist Party to take part and support the rebellion of the Huks.
We are, therefore, constrained to absolve him of the charges filed against him.
GENARO DE LA CRUZ
The court found him to be a Communist since 1945, an officer of an organized Communist branch in
Pasay City, a member of the Central Committee and Treasurer of the CLO. He admitted his
membership and his position as member of the executive committee and treasurer of the CLO these
facts being corroborated by the witness Guillermo Calayag.
His membership in the Communist Party dates as far back as the year 1945. As a communist,
Genaro de la Cruz received quotas and monetary contributions coming from the areas under his
jurisdiction, and one time he made a receipt from a member from Caloocan at the CLO headquarters
Article 6

at Azcarraga signing the receipt as "Gonzalo" which is one of his aliases. He also distributed copies
of the "Titis" magazine. `
While his membership in the Communist Party plus his having received contributions for the party
indicate that he is an active member, it was not shown that the contributions that he received from
Communist Party members were received around the year 1950 when the Central Committee of the
Communist Party had already agreed to conspire and go underground and support the Huk
rebellion. Under these circumstances We cannot find him guilty of conspiracy to commit rebellion
because of the lack of evidence to prove his guilt beyond reasonable doubt.
JULIAN LUMANOG
The court found him to be an organizer of HMB among the mill workers, solicited contributions for
the HMB and Central Committee member of the CLO as per Testimony of Guillermo Calayag.
He admitted that he joined the Communist Party because he was made to believe that the Party is
for the welfare of the laborers. He also admitted being a member of the Central Committee of the
CLO Calayag testified that Lumanog organized the HMB units of the Communist Party in the Lumber
Unions and attended a Communist meeting held by Maclang.
Domingo Clarin testified that he (Julian Lumanog) used to give the money collected by him to one
Nicasio Pamintuan, one of the members of the HMB Special Unit Trigger Squad) in Manila for the
use of the said unit.
Considering that the HMB was engaged in a rebellion to overthrow the government, it is evident that
by giving his contributions he actually participated in the conspiracy to overthrow the government
and should, therefore, be held liable for such conspiracy, and should be sentenced accordingly.
FERMIN RODILLAS
The trial court found that Fermin Rodillas was a member of the CPP and the CLO that his activities
consisted in soliciting contributions, in cash and in kind, from city residents for the use of the HMB,
turning over said collections to the Party; that he has given asylum to a wanted Hukbalahap at his
house at Juan Luna St., Gagalangin, which house was used as Military post. The above findings of
the court are fully supported by the testimony of Domingo Clarin.
Considering that while he has not actually taken part in the rebellion, he has shown sympathy with
the cause by soliciting contributions for it and had given shelter to the Huks. We feel that the court
was fully justified in finding him guilty, but We hold that he should be declared liable merely as a co-
conspirator in the crime of conspiracy to commit rebellion, and should be sentenced accordingly.
BAYANI ESPIRITU
This appellant was found by the court to be a Communist, he having admitted membership in the
Communist Party since 1945; that his duties as a Communist was to help in the office of the National
Finance Committee, assorting papers and written documents; that sometimes he accompanied the
purchaser of medicines, shoes, papers, foodstuffs and clothing to be given to the Huks; that he is a
member of the Communication Division of the CPP in Manila, in charge of distribution of letters or
communications; that he admits having written to Salome Cruz, courier of the Communist Party,
when he asked for his necessities, such as money and shoes, etc.
The facts found by the court are sufficiently supported by the communications and evidence
submitted by the prosecution. The exhibits show that he was in constant communication with the
communists; serving them as courier. His oath as a member of the Communist Party was submitted
in court and in it he admits obedience to all orders of the Party and to propagate the stability of the
PKP.
Considering that the PKP was engaged in an actual uprising against the constituted Government
and that Bayani Espiritu was in constant communication with the Communist Party and served it as
courier, We believe that the court was fully justified in finding him guilty. However, We believe that
not having actually taken up arms in the uprising he may only be declared guilty of conspiracy to
commit rebellion.
TEOPISTA VALERIO
The court below found that this appellant joined the Communists in 1938 in San Luis, Pampanga,
under Casto Alejandrino, who later became her common-law husband; that her aliases are "Estrella"
and "Star"; that she was found in possession of various documents written to top Communists like
Article 6

Alejandrino, Lava and Romy, as well as a letter from Taruc congratulating her for the delivers, of a
son.
Jose Taguiang testified that she was a member of the Provincial Committee of the CPP in Nueva
Ecija, later Chairman of the Finance Department, and then promoted to Finance Officer of the
Central Luzon Committee. Alicia Vergara, a Huk courier, testified that she delivered letter from the
mountains to Teopista Valerie, who was in turn also a courier.
Without considering the close relationship that she had with top Communist Casto Alejandrino, We
are satisfied that she herself was, aside from being a Huk courier, also a Huk, a member of the HMB
from 1942 to 1951. As she was a Communist and at the same time a member of the HMB, and
considering that the HMB was engaged in an uprising to uproot the legitimate government, there
cannot be any question that she was in conspiracy with the other members of her Party against the
constituted government. We hold, therefore, that the evidence proves beyond reasonable doubt that
she is guilty of conspiracy to commit rebellion.
DEFENDANTS NOT INCLUDED IN DECISION
In Crim. Case No. 15841 (G.R. No. L-6025) the charge against Guillermo Capadocia, Mariano P.
Balgos, Alfredo B. Saulo and Jacobo Espino was dismissed because they have not been
apprehended at the time of the trial.
PEOPLE VS. EVANGELISTA, 57 PHIL. 354 AND

REPUBLIC ACT NO. 1700, DISTINGUISHED
In the case at bar the prosecution is for actual rebellion which consists in rising publicly and taking
aims against the Government for the purpose of removing from the allegiance to said Government or
its laws, the territory of the Philippines, or any part thereof, etc., a crime defined in Article 134 of the
Revised Penal Code; whereas Evangelista was charged and convicted for inciting to rebellion under
Art. 138, Revised Penal Code (formerly Sec. 2, Act No. 292). As the specific charge against
appellants is that of rising up in arms in actual rebellion against the Government, they cannot be held
guilty of inciting the people to arms under Article 138, which is a different offense.
On the other hand, Rep. Act 1700, known as the Anti-subversion Act, which penalizes membership
in any organization or association committed to subvert the Government, cannot be applied to the
appellants because said Act was approved on June 20, 1957 and was not in force at the time of the
commission of the acts charged against appellants (committed 1945-1950) ; the Anti-Subversion Act
punishes participation or membership in an organization committed to overthrow the duly constituted
Government, a crime district from that of actual rebellion with which appellants are charged.
CONCLUSION
WHEREFORE, in Criminal Case No. 15841 (G.R. No. L-6025) defendants-appellants Amado V.
Hernandez, Juan J. Cruz, Amado Racanday and Genaro de la Cruz are absolved from the charges
contained in the information, with their proportionate share of the costs de oficio. The defendants-
appellants Julian Lumanog and Fermin Rodillas in Criminal Case No. 15841 (G.R. No. L-6025) and
the defendants-appellants Bayani Espiritu and Teopista Valerio in Criminal Case No. 15479 (G.R.
No. L-6026) are hereby found guilty of the crime of conspiracy to commit rebellion, as defined and
punished in Article 136 of the Revised Penal Code, and each and everyone of them is hereby
sentenced to suffer imprisonment for five years, four months and twenty-one days of prision
correccional, and to pay a fine of P5,000.00, with subsidiary imprisonment in case of insolvency and
to pay their proportional share of the costs. So ordered.
Article 6
G.R. No. L-14128 December 10, 1918
THE UNITED STATES, plaintiff-appellee,

vs.
SEVERINO VALDES Y GUILGAN, defendant-appellant.
Ariston Estrada for appellant.

Attorney-General Paredes for appellee.
TORRES, J.:
This cause was instituted by a complaint filed by the prosecuting attorney before the Court of First
Instance of this city, charging Severino Valdes y Guilgan and Hugo Labarro y Bunaladi, alias Hugo
Navarro y Bunadia, with the crime of arson, and, on the 20th of May of the present year, judgment
was rendered whereby Severino or Faustino Valdes u Guilgan was sentenced to six years and one
day of presidio mayor and to pay one-half of the costs. From this judgment this defendant appealed.
With respect to Hugo Labarro or Navarro, the proceedings were dismissed with the other half of the
costs de officio.
Between 8 and 9 o'clock in the morning of April 28th of this year, when M. D. Lewin was absent from
the house in which he was living his family, at No. 328, San Rafael Street, San Miguel, Mrs.
Auckback, who appears to have been a resident of the neighborhood, called Mrs. Lewin and told her
that much smoke was issuing from the lower floor of the latter's house, for until then Mrs. Lewin had
not noticed it, and as soon as her attention was brought to the fact she ordered the servant Paulino
Banal to look for the fire, as he did and he found, so asked with kerosene oil and placed between a
post of the house and a partition of the entresol, a piece of a jute sack and a rag which were burning.
At that moment the defendant Valdes was in the entresol, engaged in his work of cleaning, while, the
other defendant Hugo Labarro was cleaning the horses kept at the place.
On the same morning of the occurrence, the police arrested the defendants, having been called for
the purpose by telephone. Severino Valdes, after his arrest, according to the statement, Exhibit C,
drawn up in the police station, admitted before several policemen that it was he who had set the fire
to the sack and the rag, which had been noticed on the date mentioned. and he also who had
started the several other fires which had occurred in said house on previous days; that he had
performed such acts through the inducement of the other prisoner, Hugo Labarro, for they felt
resentment against, or had trouble with, their masters, and that, as he and his coaccused were
friends, he acted as he did under the promise on Labarro's part to give him a peso for each such fire
that he should start.
lawphi1.net
The defendant Severino Valdes admitted, in an affidavit, that he made declarations in the police
station, although he denied having placed the rag and piece of jute sack, soaked with kerosene, in
Article 6

the place where they were found, and stated, that it was the servant Paulino who had done so. He
alleged that, on being arraigned, he stated that he had set fire to a pile of dry mango leaves that he
had gathered together, which is contrary to the statement he made in the police station, to wit, that
he had set the fire to the said rag and piece of sack under the house.
For lack of evidence and on his counsel's petition, the case was dismissed with respect to the other
defendant Hugo Labarro.
Owing to the repeated attempts made for about a month past, since Severino Valdes Began to serve
the Lewin family, to burn the house above mentioned. occupied by the latter and in which this
defendant was employed, some policemen were watching the building and one of them, Antonio
Garcia del Cid., one morning prior to the commission of the crime, according to his testimony, saw
the defendant Valdes climbing up the wall of the warehouse behind the dwelling house, in which
warehouse there was some straw that had previously been burned, and that, when the defendant
noticed the presence of the policeman, he desisted from climbing the wall and entering the
warehouse.
The fact of setting fire to a jute sack and a rag, soaked with kerosene oil and placed beside an
upright of the house and a partition of the entresol of the building, thus endangering the burning of
the latter, constitutes the crime of frustrated arson of an inhabited house, on an occasion when some
of its inmates were inside of it.. This crime of provided for and punished by article 549, in connection
with articles 3, paragraph 2, and 65 of the Penal Code, and the sole proven perpetrator of the same
by direct participation is the defendant Severino Valdes, for, notwithstanding his denial and
unsubstantiated exculpations, the record discloses conclusive proof that it was he who committed
the said unlawful act, as it was also he who was guilty of having set the other fires that occurred in
said house. In an affidavit the defendant admitted having made declarations in the police station,
and though at the trial he denied that he set fire to the sacks and the rag which were found soaked in
kerosene and burning, and, without proof whatever, laid the blame unto his codefendant, the fact is
that confessed to having set fire to a pile of dry leaves whereby much smoke arose from the lower
part of the house, but which, however, did not forewarn his mistress, Mrs. Lewin, though she should
have noticed it, and he allowed the sack and the rag to continue burning until Mrs. Auckback noticing
a large volume of smoke in the house, gave the alarm. No proof was submitted to substantiate the
accusation he made against the servant Paulino, who apparently is the same persons as the driver
Hugo Labarro.
The crime is classified only as frustrated arson, inasmuch as the defendant performed all the acts
conceive to the burning of said house, but nevertheless., owing to causes independent of his will, the
criminal act which he intended was not produced. The offense committed cannot be classified as
consummated arson by the burning of said inhabited house, for the reason that no part of the
building had yet commenced to burn, although, as the piece of sack and the rag, soaked in kerosene
oil, had been placed near partition of the entresol, the partition might have started to burn, had the
fire not been put out on time.
There is no extenuating or aggravating circumstance to be considered in a connection with the

commission of the crime, and therefore the penalty of presidio mayor immediately inferior in degree
to that specified in article 549 of the Penal Code, should be imposed in its medium degree.
For the foregoing reasons the judgment appealed from should be affirmed, with the modification
however, that the penalty imposed upon the defendant shall be given eight years and one day
of presidio mayor, with the accessory penalties prescribed in article 57 of the Code. The defendant
shall also pay the costs of both instances. So ordered.
Arellano, C.J., Johnson, Araullo, Street, Malcolm and Avanceña, JJ., concur.

Art 6

Uploaded by

Copyright:

Available Formats

Art 6

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Art 6

Uploaded by

Copyright:

Available Formats

Article 6

Attempted/frustrated/consummated overt acts, acts of execution

[G.R. No. 12155. February 2, 1917. ]

Manuel Roxas for Appellant.

Attorney-General Avancena for Appellee.

1. CRIMINAL LAW; FRUSTRATED CRIMES. — A felony is frustrated when the offender

4. ID.; FRUSTRATED CRIMES. — In case of frustrated crimes the subjective phase is

We believe that the accused is guilty of frustrated murder.

Attempted/frustrated/consummated overt acts, acts of execution

An attempted felony is defined thus: jgc:chanrobles.com.ph

Attempted/frustrated/consummated overt acts, acts of execution

Attempted/frustrated/consummated overt acts, acts of execution

Republic of the Philippines

G.R. No. 88724 April 3, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

The Office of the Solicitor General for plaintiff-appellee.

Attempted/frustrated/consummated overt acts, acts of execution

PE Findings — Pertinent Findings only.

Neck- — Circumscribed hematoma at Ant. neck.

Back — Multiple pinpoint marks.

Attempted/frustrated/consummated overt acts, acts of execution

Vulva — No visible abrasions or marks at the perineal area or over the

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

In this appeal, the accused assigns the following errors:

Attempted/frustrated/consummated overt acts, acts of execution

1. By using force or intimidation;

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

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

Attempted/frustrated/consummated overt acts, acts of execution

Attempted/frustrated/consummated overt acts, acts of execution

Q Was the penis inserted on your vagina?

A It entered but only a portion of it.

A I inserted his penis into my vagina.

Q And was it inserted?

A Yes only a little.

Attempted/frustrated/consummated overt acts, acts of execution

G.R. No. 129433 March 30, 2000

PEOPLE OF THE PHILIPPINES, plaintiff,

Art. 335 of the Revised Penal Code as amended by RA 7659. 6

Attempted/frustrated/consummated overt acts, acts of execution

Attempted/frustrated/consummated overt acts, acts of execution

Q: How was Primo holding your daughter?

Attempted/frustrated/consummated overt acts, acts of execution

Q: Did the penis of Primo touch your organ?

Q: But did his penis penetrate your organ?

Attempted/frustrated/consummated overt acts, acts of execution

Attempted/frustrated/consummated overt acts, acts of execution

G.R. No. 138033 February 22, 2006

RENATO BALEROS, JR., Petitioner,

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

Attempted/frustrated/consummated overt acts, acts of execution

xxx xxx xxx

(Sgd.) Baleros Renato Jr."

xxx xxx xxx

xxx xxx xxx

Attempted/frustrated/consummated overt acts, acts of execution

xxx xxx xxx.

xxx xxx xxx.

xxx xxx xxx: