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G.R. No. L-35748

December 14, 1931

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. ROMANA SILVESTRE and MARTIN ATIENZA, defendants-appellants. Teofilo Mendoza for appellants. Attorney-General Jaranilla for appellee. VILLA-REAL, J.: Martin Atienza and Romana Silvestre appeal to this court from the judgment of the Court of First Instance of Bulacan convicting them upon the information of the crime of arson as follows: The former as principal by direct participation, sentenced to fourteen years, eight months, and one day of cadena temporal, in accordance with paragraph 2 of article 550, Penal Code; and the latter as accomplice, sentenced to six years and one day ofpresidio mayor; and both are further sentenced to the accessories of the law, and to pay each of the persons whose houses were destroyed by the fire, jointly and severally, the amount set forth in the information, with costs. Counsel appointed by the court to defend the accused- appellants de oficio, after delivering his argument, prayed for the affirmance of the judgment with reference to the appellant Martin Atienza, and makes the following assignments of error with reference to Romana Silvestre, to wit: 1. The lower court erred in convincing Romana Silvestre as accomplice of the crime charged in the information. 2. Finally, the court erred in not acquitting said defendant from the information upon the ground of insufficient evidence, or at the least, of reasonable doubt. The following facts were proved at the hearing beyond a reasonable doubt: Romana Silvestre, wife of Domingo Joaquin by her second marriage, cohabited with her codefendant Martin Atienza from the month of March, 1930, in the barrio of Masocol, municipality of Paombong, Province of Bulacan. On May 16, 1930, the complaining husband, Domingo Joaquin, filed with the justice of the peace for that municipality, a sworn complaint for adultery, supported by affidavits of Gerardo Cabigao and Castor de la Cruz (Exhibit B). On the same date, May 16, 1930, the said accused were arrested on a warrant issued by said justice of the peace. On the 20th of the month, they were released on bail, each giving a personal bond of P6,000. Pending the preliminary investigation of the case, the two defendants begged the municipal president of Paombong, Francisco Suerte Felipe, to speak to the complaint, Domingo Joaquin, urging him to withdraw the complaint, the two accused binding

themselves to discontinue cohabitation, and promising not to live again in the barrio of Masocol; Martin Atienza voluntarily signed the promise (Exhibit A). The municipal president transmitted the defendants' petition to the complaining husband, lending it his support. Domingo Joaquin acceded to it, and on May 20, 1930, filed a motion for the dismissal of his complaint. In consideration of this petition, the justice of the peace of Paombong dismissed the adultery case commenced against the accused, and cancelled the bonds given by them, with the costs against the complainant. The accused then left the barrio of Masocol and went to live in that of Santo Niño, in the same municipality of Paombong. About November 20, 1930, the accused Romana Silvestre met her son by her former marriage, Nicolas de la Cruz, in the barrio of Santo Niño, and under pretext of asking him for some nipa leaves, followed him home to the village of Masocol, and remained there. The accused, Martin Atienza, who had continued to cohabit with said Romana Silvestre, followed her and lived in the home of Nicolas de la Cruz. On the night of November 25, 1930, while Nicolas de la Cruz and his wife, Antonia de la Cruz, were gathered together with the appellants herein after supper, Martin Atienza told said couple to take their furniture out of the house because he was going to set fire to it. Upon being asked by Nicolas and Antonia why he wanted to set fire to the house, he answered that that was the only way he could be revenged upon the people of Masocol who, he said, had instigated the charge of adultery against him and his codefendant, Romana Silvestre. As Martin Atienza was at that time armed with a pistol, no one dared say anything to him, not even Romana Silvestre, who was about a meter away from her codefendant. Alarmed at what Martin Atienza had said, the couple left the house at once to communicate with the barrio lieutenant, Buenaventura Ania, as to what they had just heard Martin Atienza say; but they had hardly gone a hundred arms' length when they heard cries of "Fire! Fire!" Turning back they saw their home in flames, and ran back to it; but seeing that the fire had assumed considerable proportions, Antonia took refuge in the schoolhouse with her 1 year old babe in her arms, while Nicolas went to the home of his parents-in-law, took up the furniture he had deposited there, and carried it to the schoolhouse. The fire destroyed about forty-eight houses. Tomas Santiago coming from the barrio artesian well, and Tomas Gonzalez, teacher at the barrio school of Masocol, and Felipe Clemente, an old man 61 years of age, coming from their homes, to the house on fire, saw Martin Atienza going away from the house where the fire started, and Romana Silvestre leaving it.lawphil.net As stated in the beginning, counsel appointed by this court to defend the accused-appellant de oficio, prays for the affirmance of the judgment appealed from with reference to defendant Martin Atienza. The facts related heretofore, proved beyond a reasonable doubt at the hearing, justify this petition of the de oficio counsel, and establish beyond a reasonable doubt said defendant's guilt of arson as charged, as principal by direct participation. With respect to the accused-appellant Romana Silvestre, the only evidence of record against her are: That, being married, she lived adulterously with her codefendant Martin Atienza, a married man; that both were denounced for adultery by Domingo Joaquin, Romana Silvestre's

second husband; that in view of the petition of the accused, who promised to discontinue their life together, and to leave the barrio of Masocol, and through the good offices of the municipal president of Paombong, the complaining husband asked for the dismissal of the complaint; that in pursuance of their promise, both of the accused went to lived in the barrio of Santo Niño, in the same municipality; that under pretext for some nipa leaves from her son by her former marriage, Nicolas de la Cruz, who had gone to the barrio of Santo Niño, Romana Silvestre followed him to his house in the barrio of Masocol on November 23, 1930, and remained there; that her codefendant, Martin Atienza followed her, and stayed with his coaccused in the same house; that on the night of November 25, 1930, at about 8 o'clock, while all were gathered together at home after supper, Martin Atienza expressed his intention of burning the house as the only means of taking his revenge on the Masocol resident, who had instigated Domingo Joaquin to file the complaint for adultery against them, which compelled them to leave the barrio of Masocol; that Romana Silvestre listened to her codefendant's threat without raising a protest, and did not give the alarm when the latter set fire to the house. Upon the strength of these facts, the court below found her guilty of arson as accomplice. Article 14 of the Penal Code, considered in connection with article 13, defines an accomplice to be one who does not take a direct part in the commission of the act, who does not force or induce other to commit it, nor cooperates in the commission of the act by another act without which it would not have been accomplished, yet cooperates in the execution of the act by previous or simultaneous actions. Now then, which previous or simultaneous acts complicate Romana Silvestre in the crime of arson committed by her codefendant Martin Atienza? Is it her silence when he told the spouses, Nicolas de la Cruz and Antonia de la Cruz, to take away their furniture because he was going to set fire to their house as the only means of revenging himself on the barrio residents, her passive presence when Martin Atienza set fire to the house, where there is no evidence of conspiracy or cooperation, and her failure to give the alarm when the house was already on fire? The complicity which is penalized requires a certain degree of cooperation, whether moral, through advice, encouragement, or agreement, or material, through external acts. In the case of the accused-appellant Romana Silvestre, there is no evidence of moral or material cooperation, and none of an agreement to commit the crime in question. Her mere presence and silence while they are simultaneous acts, do not constitute cooperation, for it does not appear that they encouraged or nerved Martin Atienza to commit the crime of arson; and as for her failure to give the alarm, that being a subsequent act it does not make her liable as an accomplice. The trial court found the accused-appellant Martin Atienza guilty of arson, defined and penalized in article 550, paragraph 2, of the Penal Code, which reads as follows: ART. 550. The penalty of cadena temporal shall be imposed upon:

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2. Any person who shall set fire to any inhabited house or any building in which people are accustomed to meet together, without knowing whether or not such building or house was occupied at the time, or any freight train in motion, if the damage caused in such cases shall exceed six thousand two hundred and fiftypesetas. While the defendant indeed knew that besides himself and his codefendant, Romana Silvestre, there was nobody in De la Cruz's house at the moment of setting fire to it, he cannot be convicted merely arson less serious than what the trial court sentenced him for, inasmuch as that house was the means of destroying the others, and he did not know whether these were occupied at the time or not. If the greater seriousness of setting fire to an inhabited house, when the incendiary does not know whether there are people in it at the time, depends upon the danger to which the inmates are exposed, not less serious is the arson committed by setting fire to inhabited houses by means of another inhabited house which the firebrand knew to be empty at the moment of committing the act, if he did not know whether there were people or not in the others, inasmuch as the same danger exists. With the evidence produced at the trial, the accused-appellant Martin Atienza might have been convicted of the crime of arson in the most serious degree provided for in article 549 of the Penal Code, if the information had alleged that at the time of setting fire to the house, the defendant knew that the other houses were occupied, taking into account that barrio residents are accustomed to retire at the tolling of the bell for the souls in purgatory, i.e., at 8 o'clock at night. For all the foregoing considerations, we are of the opinion and so hold, that: (1) Mere passive presence at the scene of another's crime, mere silence and failure to give the alarm, without evidence of agreement or conspiracy, do not constitute the cooperation required by article 14 of the Penal Code for complicity in the commission of the crime witnessed passively, or with regard to which one has kept silent; and (2) he who desiring to burn the houses in a barrio, without knowing whether there are people in them or not, sets fire to one known to be vacant at the time, which results in destroying the rest, commits the crime of arson, defined and penalized in article 550, paragraph 2, Penal Code. By virtue wherefore, the judgment appealed from is modified as follows: It is affirmed with reference to the accused-appellant Martin Atienza, and reversed with reference to the accusedappellant Romana Silvestre, who is hereby acquitted with one-half of the costs de oficio. So ordered. Avanceña, C.J., Johnson, Street, Malcolm, Villamor, Ostrand, Romualdez, and Imperial, JJ., concur.

G.R. No. L-32126 July 6, 1978 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NEMESIO TALINGDAN, MAGELLAN TOBIAS, AUGUSTO BERRAS, PEDRO BIDES and TERESA DOMOGMA,accused-appellants. PER CURIAM: Appeal from the conviction for the crime of murder and the sentence of life imprisonment, with indemnity to the offended party, the heirs of the deceased Bernardo Bagabag, in the amount of P12,000, rendered by the Court of First Instance of Abra in its Criminal Case No. 686, of all the accused the namely, Nemesio Talingdan, Magellan Tobias, Augusta Berras, Pedro Bides and Teresa Domogma, the last being the supposed wife of the deceased, who, because no certificate nor any other proof of their marriage could be presented by the prosecution, could not be charged with parricide. Prior to the violent death of Bernardo Bagabag on the night of June 24, 1967, he and appellant Teresa Domogma and their children, arrived together in their house at Sobosob, Salapadan, Abra, some 100 meters distant from the municipal building of the place. For sometime, however, their relationship had been strained and beset with troubles, for Teresa had deserted their family home a couple of times and each time Bernardo took time out to look for her. On two (2) different occasions, appellant Nemesis Talingdan had visited Teresa in their house while Bernardo was out at work, and during those visits Teresa had made Corazon, their then 12-year old daughter living with them, go down the house and leave them. Somehow, Bernardo had gotten wind that illicit relationship was going on between Talingdan and Teresa, and during a quarrel between him and Teresa, he directly charged the latter that should she get pregnant, the child would not be his. About a month or so before Bernardo was killed, Teresa had again left their house and did not come back for a period of more than three (3) weeks, and Bernardo came to know later that she and Talingdan were seen together in the town of Tayum Abra during that time; then on Thursday night, just two (2) days before he was gunned down, Bernardo and Teresa had a violent quarrel; Bernardo slapped Teresa several times; the latter went down the house and sought the help of the police, and shortly thereafter, accused Talingdan came to the vicinity of Bernardo's house and called him to come down; but Bernardo ignored him, for accused Talingdan was a policeman at the time and was armed, so the latter left the place, but not without warning Bernardo that someday he would kin him. Between 10:00 and 11:00 o'clock the following Friday morning, Bernardo's daughter, Corazon, who was then in a creek to wash clothes saw her mother, Teresa, meeting with Talingdan and their co-appellants Magellan Tobias, Augusto Berras and Pedro Bides in a small hut owned by Bernardo, some 300 to 400 meters away from the latter's house; as she approached them, she heard one of them say "Could he elude a bullet"; and when accused Teresa Domogma noticed the presence of her daughter, she shoved her away saying "You tell your father that we will kill him".

Shortly after the sun had set on the following day, a Saturday, June 24, 1967, while the same 12-year old daughter of Bernardo was cooking food for supper in the kitchen of their house, she saw her mother go down the house through the stairs and go to the yard where she again met with the other appellants. As they were barely 3-4 meters from the place where the child was in the "batalan", she heard them conversing in subdued tones, although she could not discern what they were saying. She was able to recognize all of them through the light coming from the lamp in the kitchen through the open "batalan" and she knows them well for they are all residents of Sobosob and she used to see them almost everytime. She noted that the appellants had long guns at the time. Their meeting did not last long, after about two (2) minutes Teresa came up the house and proceeded to her room, while the other appellants went under an avocado tree nearby. As supper was then ready, the child caged her parents to eat, Bernardo who was in the room adjoining the kitchen did not heed his daughter's call to supper but continued working on a plow, while Teresa also excused herself by saying she would first put her small baby to sleep. So Corazon ate supper alone, and as soon as she was through she again called her parents to eat. This time, she informed her father about the presence of persons downstairs, but Bernardo paid no heed to what she said. He proceeded to the kitchen and sat himself on the floor near the door. Corazon stayed nearby watching him. At that moment, he was suddenly fired upon from below the stairs of the "batalan". The four accused then climbed the stairs of the "batalan" carrying their long guns and seeing that Bernardo was still alive, Talingdan and Tobias fired at him again. Bides and Berras did not fire their guns at that precise time, but when Corazon tried to call for help Bides warned her, saying "You call for help and I will kill you", so she kept silent. The assailants then fled from the scene, going towards the east. The first to come to the aid of the family was Corazon's male teacher who lived nearby. Teresa came out of her "silid" later; she pulled Corazon aside and questioned her, and when Corazon informed her that she recognized the killers of her father to be her co-appellants herein, she warned her not to reveal the matter to anyone, threatening to kill her if she ever did so. Still later on, other persons arrived and helped fix and dress the lifeless body of the victim, Bernardo, autopsy on which was performed in his own house by the Municipal Health Officer of the place on June 26, 1967, about 36 hours after death; burial took place on the same day. The victim's brother who came from Manila arrived one day after the burial followed by their mother who came from La Paz, Abra where she resides. Corazon, who had not earlier revealed the Identities of the killers of her father because she was afraid of her own mother, was somehow able to reveal the circ*mstances surrounding his killing to these immediate relatives of hers, and the sworn statement she thereafter executed on August 5, 1967 (Exh. B) finally led to the filing of the information for murder against the herein five (5) appellants. On the other hand, according to the evidence for the defense: Teresa prior to her marriage with Bernardo, was a resident of the town of Manabo, Abra. She has a sister in Manila and two (2) brothers in America who love her dearly, that is why said brothers of hers had been continuously and regularly sending her monthly $100.00 in checks, starting from the time she was still single up to the time of her husband's violent death on June 24, 1967, and thereafter. After their marriage, they moved to and resided in her husband's place in Sallapadan, Abra,

bringing with them three (3) carabaos and two (2) horses, which Bernardo and she used in tilling a parcel of land in said place, separate and distinct from the parcel of land worked on by Bernardo's parents and their other children. She and Bernardo lived in their own house which was about 4-5 meters away from the house of her parents-in-law. She loved Bernardo dearly, they never quarreled, and her husband never maltreated her; although sometimes she had to talk to Bernardo when he quarrels with his own mother who wanted that Bernardo's earnings be given to her, (the mother) which Bernardo never did, and at those times, Bernardo would admonish Teresa "You leave me alone". Her in-laws also hated her because her mother-in-law could not get the earnings of Bernardo for the support of her other son, Juanito, in his schooling. On his part, Juanito also disliked her because she did not give him any of the carpentry tools which her brothers in America were sending over to her. She never left their conjugal home for any long period of time as charged by her mother-in-law, and if she ever did leave the house to go to other places they were only during those times when she had to go to Bangued to cash her dollar checks with the PNB branch there, and even on said trips, she was sometimes accompanied by Bernardo, or if she had to go alone and leaves Sallapadan in the morning, she rode in a weapons carrier along with merchants going to Bangued in the morning and always rode back with them to Sallapadan in the afternoon of the same day because the weapons carrier is owned by a resident of Sallapadan who waits for them. Teresa came to know Talingdan only when the latter became a policeman in Sallapadan, as whenever any of the carabaos and horses they brought from Manabo to Sallapadan got lost, she and Bernardo would go and report the matter to the Mayor who would then refer the matter to his policemen, one of whom is Talingdan, so that they may help locate the lost animals; Teresa knew Talingdan well because they are neighbors, the latter's home being only about 250-300 meters away from theirs. But illicit relationship had never existed between them. Early in the evening of June 24, 1967, Teresa was in the kitchen of their house cooking their food for supper. Two of the children, Corazon and Judit, were with her. Her husband, Bernardo, was then in the adjoining room making a plow. He had to make the plow at that time of the night because at daytime he worked as a carpenter in the convent. As soon as the food was ready, she and the children moved over to the adjoining room where Bernardo was to call him for supper, and he then proceeded to the kitchen to eat. Teresa and the two children were about to follow him to the kitchen when suddenly they heard more than five (5) or six (6) successive gun shots coming from near their "batalan". They were all so terrified that they immediately cried for help, albeit she did not know yet at that precise time that her husband was shot, as she and the children were still in the other room on their way to the kitchen, about three (3) meters away from Bernardo. But soon Teresa heard her husband crying in pain, and as soon as she reached him, she took Bernardo into her arms. She did not see the killers of her husband, as the night was then very dark and it was raining. Bernardo was in her arms when the first group of people who responded to their cry for help arrived. Among them were the chief of police, some members of the municipal council and appellant Tobias who even advised Teresa not to carry the lifeless body of Bernardo to avoid abortion as she was then six (6) months pregnant. The chief of police then conducted an investigation of the surroundings and he found some empty shells and foot prints on the ground some meters away from the "batalan". He also found some bullet holes on the southern walls of said "batalan" and on the nothern wallings of the kitchen. Later, Teresa requested some persons to relay the information

about the death of her husband to her relatives in Manabo, Abra, and they in turn passed on the news to Bernardo's mother and her family in La Paz, Abra, where they were then residing, as they have left their house in Sallapadan about two (2) months previous after they lost the land they used to till there in a case with the natives called Tingians. Two (2) PC soldiers arrived in the afternoon of June 26, 1967, and after Bernardo's remains was autopsied and he was buried under their house, they conducted an investigation, but she did not give them any information relative to the Identity of the persons who shot her husband because she did not really see them. Her mother-in-law and a brother-in-law, Juanita Bagabag, arrived later, the former from the town of La Paz, Abra, and the latter from Manila, and after the usual nine (9) days mourning was over, they left Sallapadan, taking Teresa's children under their custody. Teresa suspects that since her mother-in-law and her brother-in-law have axes to grind against her and they have her daughter, Corazon, under their custody, they had forced the said child to testify against her. She further declared that her late husband, Bernardo, had enemies during his lifetime, as he had quarrels with some people over the land they work on. Furthermore, the defense presented evidence to the effect that: Talingdan was not in Sallapadan at the time of the killing of Bernardo on June 24, 1967; being a policeman of the place at the time, he was one of the two (2) policemen who escorted and acted as bodyguard of the Mayor, when the latter attended the cursillo in Bangued, all of them leaving Sallapadan on June 22 and returning thereto four (4) days later on June 26, hence, he could not have anything to do with the said killing. On the other hand, Tobias claimed to be in the house of one Mrs. Bayongan in Sallapadan on the date of said killing, but he was one of the persons who was called upon by the chief of police of the place to accompany him in answer to the call for help of the wife of the victim. The other two appellants Bides and Berras also alleged that they were in the same house of Mrs. Bayongan on that date; they are tillers of the land of said Mrs. Bayongan and had been staying in her house for a long time. They were sleeping when the chief of police came that evening and asked Tobias, who was then municipal secretary, to accompany him to the place of the shooting. They did not join them, but continued sleeping. They never left the said house of Mrs. Bayongan, which is about 250-300 meters away from the place of the killing, that evening of June 24, 1967. After carefully weighing the foregoing conflicting evidence of the prosecution and defense, We have no doubt in Our mind that in that fatal evening of June 24, 1967, appellants Nemesio Talingdan, Magellan Tobias, Augusto Berras and Pedro Bides, all armed with long firearms and acting inconspiracy with each other gunned down Bernardo as the latter was sitting by the supper table in their house at Sobosob, Sallapadan, Abra. They were actually seen committing the offense by the witness Corazon. She was the one who prepared the food and was watching her father nearby. They were all known to her, for they were all residents of Sobosob and she used to see them often before that night. Although only Talingdan and Tobias continued firing at her father after they had climbed the stairs of the "batalan", it was Bides who threatened her that he would kill her if she called for help. Berras did not fire any shot then. But even before the four appellants went up the "batalan", they already fired shots from downstairs.

We also fully believe Corazon's testimony that two nights before, or on Thursday, June 22, 1967, the deceased Bernardo and appellant Teresa had a violent quarrel during which he slapped her several times. She went to seek the help of the police, and it was appellant Talingdan, a policeman of their town, who went to the vicinity of their house and challenged her father to come down, but the latter refused because the former was a policeman and was armed. And so, Talingdan left after shouting to her father that "If I will find you someday, I will kill you." We likewise accept as truthful, Corazon's declaration regarding the amorous relationship between her mother and appellant Talingdan, as already related earlier above. So also her testimony that in the morning following the quarrel between her father and her mother and the threat made by Talingdan to the former, between 10:00 and 11:00 o'clock, she saw all the herein four male accused-appellants meeting with her mother in a small hut some 300 or 400 meters away from their house, near where she was then washing clothes, and that on said occasion she overheard one of them ask "Could (sic) he elude a bullet?", We have our doubts, however, as to whether or not her mother did say to her in shoving her away upon seeing her approach, "You tell your father we will kill him." If it were true that there was really such a message, it is to be wondered why she never relayed the same to her father, specially when she again saw the said appellants on the very night in question shortly before the shooting talking together in subdued tones with her mother and holding long arms. Moreover, it is quite unnatural that such a warning could have been done in such a manner. Accordingly, it is Our conclusion from the evidence related above and which We have carefully reviewed that appellants Nemesio Talingdan, Magellan Tobias, Augusto Berras and Pedro Bides are guilty of murder qualified by treachery, as charged, and that they committed the said offense in conspiracy with each other, with evident premeditation and in the dwelling of the offended party. In other words, two aggravating circ*mstances attended the commission of the offense, namely, evident premeditation and that it was committed in the dwelling of the victim. No mitigating circ*mstance has been proven. Appellants insist in their brief that the lone testimony of Corazon suffered from vital contradictions and inconsistencies and badges of falsehood because of patently unnatural circ*mstances alleged by her. We do not agree. As the Solicitor General has well pointed out, the fact that the witness varied on cross-examination the exact time of some of the occurrences she witnessed, such as, (1) whether it was before or after Bernardo had began eating when he was shot; (2) whether it was before or after seeing her mother's meeting with her co-accused in the morning of Friday, June 23, 1967, that she went to wash clothes; and (3) whether or not the accused were already upstairs or still downstairs when they first fired their guns, cannot alter the veracity of her having seen appellants in the act of mercilessly and cold-bloodedly shooting her father to death. Contrary to the contention of appellants, there was nothing inherently unnatural in the circ*mstances related by her. We agree with the following rebuttal of the Solicitor General:

Appellants also attempt to buttress their attack against the credibility of Corazon Bagabag by pointing out five supposed unnatural declarations in her testimony; First, she said that her father, appeared unconcerned when she informed him of the presence of people downstairs. But as correctly observed by the prosecuting fiscal the witness does not know then "the mentality of her father" (p. 62, t.s.n., hearing of March 29, 1968). Second, Corazon also declared that the accused conversed that Saturday night preceding the day the crime charged was committed in a lighted place although there was a place which was unlighted in the same premises. But this only proves that the accused were too engrossed in their conversation, unmindful of whether the place where they were talking was lighted or not, and unmindful even of the risk of recognition. Third, witness declared that Pedro Bides and Augusto Berras did not fire their guns. Even if these accused did withhold their fire, however, since they were privies to the same criminal design, would this alter their culpability? Should the witness Corazon Bagabag be discredited for merely stating an observation on her part which is not inherently unnatural? Fourth, Corazon also declared that only three bullets from the guns of the four male accused found their mark on the body of her father. But would this not merely prove that not all the accused were good shots? And fifth, the witness declared that her father was still able to talk after he was shot yet Dr. Jose Dalisan declared that his death was instantaneous It is respectfully submitted, however, that the doctor's opinion could yield to the positive testimony of Corazon Bagabag in this regard without in the least affecting the findings of said doctor as regards the cause of the death of the deceased. As thus viewed, there are no evident badges of falsehood in the whole breadth and length of Corazon Bagabag's testimony. (Pp. 9-10, People's Brief.) Why and how Corazon could have concocted her version of the killing of her father, if it were not basically true, is hardly conceivable, considering she was hardly thirteen (13) years old when she testified, an age when according to Moore, a child , is, as a rule, but little influenced by the suggestion of others" because "he has already got some principles, lying is distasteful to him, because he thinks it is mean, he is no stranger to the sentiment of self- respect, and he never loses an opportunity of being right in what he affirms." (II Moore on Facts, pp. 10551056.) No cogent explanation has been offered why she would attribute the assault on her father to three other men, aside from Talingdan whom she knew had relations with her mother, were she merely making-up her account of how he was shot, no motive for her to do so having been shown. Demolishing the theory of the accused that such testimony was taught to her by her uncle, His Honor pointed out that said "testimony, both direct and cross, would show that she was constant, firm and steady in her answers to questions directed to her." We have Ourselves read said testimony and We are convinced of the sincerity and truthfulness of the witness. We

cannot, therefore, share appellants' apprehension in their Seventh Assignment of Error that the grave imputation of a mother's infidelity and her suggested participation in the killing of her husband, would if consistently impressed in the mind of their child, constitute a vicious poison enough to make the child, right or wrong, a willing instrument in any scheme to get even with her wicked mother. We feel Corazon was too young to he affected by the infidelity of her mother in the manner the defense suggests. We are convinced from a reading of her whole testimony that it could not have been a fabrication. On the whole, it is too consistent for a child of thirteen years to be able to substantially maintain throughout her stay on the witness stand without any fatal flaw, in the face of severe and long cross-interrogations, if she had not actually witnessed the event she had described. We reject the possibility of her having been "brainwashed or coached" to testify as she did. The second to the sixth assignments of error in the appeal brief do not merit serious consideration. Anent these alleged errors, suffice it to say that the following refutations of the Solicitor General are well taken: Appellants also decry that the trial court allegedly failed to consider the testimony of Dr. Dalisan that the distance between the assailants and the deceased could have been 4 to 5 meters when the shots were fired. But the appellants overlook the testimony of Corazon Bagabag that when the first shot was fired, the gunman was about 3-½ meters from her father (p. 60, t.s.n., hearing of March 29, 1968), which disproves the theory of the defense that the killers fired from a stonepile under anavocado tree some 4 to 5 meters away from the deceased's house. Appellants also insist that the Court a quo ignored the testimonies of defense witness Cpl. Bonifacio Hall and Chief of Police Rafael Berras on their having found bullet marks on the southern walling of the house of the deceased, as well as empty cal. 30 carbine shells under the aforementioned avocado tree. The trial court, however, made the following apt observations on the testimony of defense witness Cpl. Bonifacio Hall: This witness stated that we went to the house of the deceased to investigate the crime after the deceased had already been buried; that he investigated the widow as well as the surroundings of the house where the deceased was shot. He found empty shells of carbine under the avocado tree. He stated that the 'batalan' of the house of the deceased has a siding of about 1-½ meters high and that he saw bullet holes on the top portion of the wall directly pointing to the open door of the 'batalan' of the house of the deceased. When the court asked the witness what could have been the position of the assailant in shooting the deceased, he stated that the assailant might have been standing. The assailant could not have made a bullet hole on the top portion of the sidings of the 'batalan' because the 'batalan' is only 1-½ meters high, and further, when asked as to the level of the ground in relation to the top sidings of the 'batalan,' he answered that it

is in the same level with the ground. If this is true, it is impossible for the assailant to make a bullet hole at the top portion sidings of the 'batalan,' hence, the testimony of this witness who is a PC corporal is of no consequence and without merit. The court is puzzled to find a PC corporal testifying for the defense in this case, which case was filed by another PC sergeant belonging to the same unit and assigned in the same province of Abra (pp. 324- 325, rec.). As regards the empty shells also found in the vicinity of the shooting, suffice it to state that no testimony has been presented, expert or otherwise, linking said shells to the bullets that were fired during the shooting incident. Surmises in this respect surely would not overcome the positive testimony of Corazon Bagabag that the accused shot her father as they came up the 'batalan' of their house. (Pp. 11-12, People's Brief.) At the trial, the four male appellants tried to prove that they were not at the scene of the crime when it happened. This defense of alibi was duly considered by the trial court, but it was properly brushed aside as untenable. In their brief, no mention thereof is made, which goes to show that in the mind of the defense itself,. it cannot be successfully maintained and they do not, therefore, insist on it. Nonetheless, it would do well for this Court to specifically affirm the apt pertinent ratiocination of His Honor in reference thereto thus: This defense, therefore, is alibi which, in the opinion of the court, can not stand firmly in the face of a positive and unwavering testimony of the prosecution witness who pointed out to the accused as the authors of the crime. This is so because, first, according to the three accused — Bides, Tobias and Berras — they were sleeping at 8:00 o'clock that night in the house of Mrs. Bayongan which is only 250 meters away from the scene of the crime. Granting, for the sake of argument, but without admitting, that they were already sleeping at 8:00 o'clock in the house of Mrs. Bayongan, Corazon Bagabag clearly stated that her father was gunned down at sunset which is approximately between 6:00 and 6:30 in the evening, hence, the accused Tobias, Berras and Bides could have committed the crime and went home to sleep in the house of Mrs. Bayongan after the commission of the crime. According to Pedro Bides, the house of Mrs. Bayongan is only 250 meters away from the house of the victim. Second, the three accused have failed miserably to present the testimony of Mrs. Bayongan, the owner of the house where they slept that night to corroborate or bolster their defense of alibi. (Pp. 27A-28A, Annex of Appellants' Brief.) xxx xxx xxx Nemesio Talingdan, alias Oming, the last of the accused, also in his defense of alibi, stated that on June 22, 1967, he accompanied Mayor

Gregorio Banawa of Sallapadan to Bangued, together with policeman Cresencio Martinez for the purpose of attending a cursillo in Bangued They started in Sallapadan in the early morning of June 22, 1967 and arrived in Bangued the same day. According to him, he went to accompany the mayor to the cursillo house near the Bangued Cathedral and after conducting the mayor to the cursillo house, he went to board in the house of the cousin of Mayor Banawa near the Filoil Station at Bangued, Abra. From that time, he never saw the mayor until after they went home to Sallapadan on June 26th. This kind of alibi could not gain much weight because he could have returned anytime on the evening of June 22 or anytime before the commission of the offense to Sallapadan and commit the crime on the 24th at sunset, then returned to Bangued, Abra to fetch the mayor and bring him back to Sallapadan on the 26th. The irony of this defense of alibi is that the mayor who was alleged to have been accompanied by witness-accused is still living and very much alive. As a matter of fact, Mayor Gregorio Banawa is still the mayor of Sallapadan, Abra, and also policeman Cresencio Martinez, another policeman who accompanied the mayor to Bangued, is also still living and still a policeman of Sallapadan. Why were not the mayor and the policeman presented to corroborate or deny the testimony of Nemesio Talingdan? Conrado B. Venus, Municipal Judge of Penarrubia Abra, and a member of the Cursillo Movement, was presented as rebuttal witness for the prosecution. On the witness stand, he stated that he belongs to Cursillo No. 3 of the Parish of Bangued, Abra, and said cursillo was held on October 20 to 23, 1966, at the St. Joseph Seminary in Galicia, Pidigan Abra, and not on June 23 to 26, 1967. As a matter of fact, Mayor Banawa of Sallapadan also attended the cursillo held on October 20 to 23, 1966, as could be seen in his 'Guide Book' where the signature of Gregorio Banawa appears because they both attended Cursillo No. 3 of the Parish of Bangued. (To) this testimony of the rebuttal witness belies partly, if not in full, the testimony of accused Nemesio Talingdan. (Pp. 29A-30A, Annex of Appellants' Brief.) Coming now to the particular case of appellant Teresa Domogma, as to whom the Solicitor General has submitted a recommendation of acquittal, We find that she is not as wholly innocent in law as she appears to the Counsel of the People. It is contended that there is no evidence proving that she actually joined in the conspiracy to kill her husband because there is

no showing of 'actual cooperation" on her part with her co-appellants in their culpable acts that led to his death. If at all, what is apparent, it is claimed, is "mere cognizance, acquiescence or approval" thereof on her part, which it is argued is less than what is required for her conviction as a conspirator per People vs. Mahlon, 99 Phil. 1068. We do not see it exactly that way. True it is that the proof of her direct participation in the conspiracy is not beyond reasonable doubt, for which reason, sue cannot have the same liability as her co-appellants. Indeed, she had no hand at all in the actual shooting of her husband. Neither is it clear that she helped directly in the planning and preparation thereof, albeit We are convinced that she knew it was going to be done and did not object. (U.S. vs. Romulo, 15 Phil. 408, 411-414.) It is not definitely shown that she masterminded it either by herself alone or together with her coappellant Talingdan. At best, such conclusion could be plain surmise, suspicion and conjecture, not really includible. After all, she had been having her own unworthy ways with him for quite a long time, seemingly without any need of his complete elimination. Why go to so much trouble for something she was already enjoying, and not even very surreptitiously? In fact, the only remark Bernardo had occasion to make to Teresa one time was "If you become pregnant, the one in your womb is not my child." The worst he did to her for all her faults was just to slap her. But this is not saying that she is entirely free from criminal liability. There is in the record morally convincing proof that she is at the very least an accessory to the offense committed by her co-accused. She was inside the room when her husband was shot. As she came out after the shooting, she inquired from Corazon if she was able to recognize the assailants of her father. When Corazon Identified appellants Talingdan, Tobias, Berras and Bides as the culprits, Teresa did not only enjoin her daughter not to reveal what she knew to anyone, she went to the extent of warning her, "Don't tell it to anyone. I will kill you if you tell this to somebody." Later, when the peace officers who repaired to their house to investigate what happened, instead of helping them with the information given to her by Corazon, she claimed she had no suspects in mind. In other words, whereas, before the actual shooting of her husband, she was more or less passive in her attitude regarding her co-appellants' conspiracy, known to her, to do away with him, after Bernardo was killed, she became active in her cooperation with them. These subsequent acts of her constitute "concealing or assisting in the escape of the principal in the crime" which makes her liable as an accessory after the fact under paragraph 3 of Article 19 of the Revised Penal Code. As already indicated earlier, the offense committed by appellants was murder qualified by treachery. It being obvious that appellants deliberately chose nighttime to suddenly and without warning assault their victim, taking advantage of their number and arms, it is manifest that they employed treachery to insure success in attaining their malevolent objective. In addition, it is indisputable that appellants acted with evident premeditation. Talingdan made the threat to kill Bernardo Thursday night, then he met with his co-accused to work out their conspiracy Friday and again on Saturday evening just before the actual shooting. In other words, they had motive Talingdan's taking up the cudgels for his paramour, Teresa and enough

time to meditate, and desist, if they were not resolved to proceed with their objective. Finally, they committed the offense in the dwelling of the offended party. In these premises, the crime committed by the male appellants being murder, qualified by treachery, and attended by the generic aggravating circ*mstances of evident premeditation and that the offense was committed in the dwelling of the offended party, the Court has no alternative under the law but to impose upon them the capital penalty. However, as to appellant Teresa, she is hereby found guilty only as an accessory to the same murder. WHEREFORE, with the above finding of guilt beyond reasonable doubt of the appellants Nemesio Talingdan, Magellan Tobias, Augusto Berras and Pedro Bides of the crime of murder with two aggravating circ*mstances, without any mitigating circ*mstance to offset them, they are each hereby sentenced to DEATH to be executed in accordance with law. Guilty beyond reasonable doubt as accessory to the same murder, appellant Teresa Domogma is hereby sentenced to suffer the indeterminate penalty of five (5) years of prision correccional as minimum to eight (8) years of prision mayor as maximum, with the accessory penalties of the law. In all other respects, the judgment of the trial court is affirmed, with costs against appellants. Barredo, Muñoz Palma, Aquino, Concepcion, Jr., Santos, Fernandez and Guerrero, JJ., concur. Antonio, Fernando, JJ., took no part.

G.R. No. 165842 November 29, 2005 EDUARDO P. MANUEL, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent.

The couple was happy during the first three years of their married life. Through their joint efforts, they were able to build their home in Cypress Point, Irisan, Baguio City. However, starting 1999, Manuel started making himself scarce and went to their house only twice or thrice a year. Tina was jobless, and whenever she asked money from Eduardo, he would slap her.6 Sometime in January 2001, Eduardo took all his clothes, left, and did not return. Worse, he stopped giving financial support.

DECISION CALLEJO, SR., J.: 1

Before us is a petition for review on certiorari of the Decision of the Court of Appeals (CA) in CA-G.R. CR No. 26877, affirming the Decision 2 of the Regional Trial Court (RTC) of Baguio City, Branch 3, convicting Eduardo P. Manuel of bigamy in Criminal Case No. 19562R. Eduardo was charged with bigamy in an Information filed on November 7, 2001, the accusatory portion of which reads: That on or about the 22nd day of April, 1996, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused EDUARDO P. MANUEL, being then previously and legally married to RUBYLUS [GAÑA] and without the said marriage having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage with TINA GANDALERA-MANUEL, herein complainant, who does not know the existence of the first marriage of said EDUARDO P. MANUEL to Rubylus [Gaña]. CONTRARY TO LAW. 3 The prosecution adduced evidence that on July 28, 1975, Eduardo was married to Rubylus Gaña before Msgr. Feliciano Santos in Makati, which was then still a municipality of the Province of Rizal.4 He met the private complainant Tina B. Gandalera in Dagupan City sometime in January 1996. She stayed in Bonuan, Dagupan City for two days looking for a friend. Tina was then 21 years old, a Computer Secretarial student, while Eduardo was 39. Afterwards, Eduardo went to Baguio City to visit her. Eventually, as one thing led to another, they went to a motel where, despite Tina’s resistance, Eduardo succeeded in having his way with her. Eduardo proposed marriage on several occasions, assuring her that he was single. Eduardo even brought his parents to Baguio City to meet Tina’s parents, and was assured by them that their son was still single. Tina finally agreed to marry Eduardo sometime in the first week of March 1996. They were married on April 22, 1996 before Judge Antonio C. Reyes, the Presiding Judge of the RTC of Baguio City, Branch 61.5 It appeared in their marriage contract that Eduardo was "single."

Sometime in August 2001, Tina became curious and made inquiries from the National Statistics Office (NSO) in Manila where she learned that Eduardo had been previously married. She secured an NSO-certified copy of the marriage contract. 7 She was so embarrassed and humiliated when she learned that Eduardo was in fact already married when they exchanged their own vows.8 For his part, Eduardo testified that he met Tina sometime in 1995 in a bar where she worked as a Guest Relations Officer (GRO). He fell in love with her and married her. He informed Tina of his previous marriage to Rubylus Gaña, but she nevertheless agreed to marry him. Their marital relationship was in order until this one time when he noticed that she had a "love-bite" on her neck. He then abandoned her. Eduardo further testified that he declared he was "single" in his marriage contract with Tina because he believed in good faith that his first marriage was invalid. He did not know that he had to go to court to seek for the nullification of his first marriage before marrying Tina. Eduardo further claimed that he was only forced to marry his first wife because she threatened to commit suicide unless he did so. Rubylus was charged with estafa in 1975 and thereafter imprisoned. He visited her in jail after three months and never saw her again. He insisted that he married Tina believing that his first marriage was no longer valid because he had not heard from Rubylus for more than 20 years. After trial, the court rendered judgment on July 2, 2002 finding Eduardo guilty beyond reasonable doubt of bigamy. He was sentenced to an indeterminate penalty of from six (6) years and ten (10) months, as minimum, to ten (10) years, as maximum, and directed to indemnify the private complainant Tina Gandalera the amount ofP200,000.00 by way of moral damages, plus costs of suit.9 The trial court ruled that the prosecution was able to prove beyond reasonable doubt all the elements of bigamy under Article 349 of the Revised Penal Code. It declared that Eduardo’s belief, that his first marriage had been dissolved because of his first wife’s 20-year absence, even if true, did not exculpate him from liability for bigamy. Citing the ruling of this Court in People v. Bitdu,10 the trial court further ruled that even if the private complainant had known that Eduardo had been previously married, the latter would still be criminally liable for bigamy.

Eduardo appealed the decision to the CA. He alleged that he was not criminally liable for bigamy because when he married the private complainant, he did so in good faith and without any malicious intent. He maintained that at the time that he married the private complainant, he was of the honest belief that his first marriage no longer subsisted. He insisted that conformably to Article 3 of the Revised Penal Code, there must be malice for one to be criminally liable for a felony. He was not motivated by malice in marrying the private complainant because he did so only out of his overwhelming desire to have a fruitful marriage. He posited that the trial court should have taken into account Article 390 of the New Civil Code. To support his view, the appellant cited the rulings of this Court inUnited States v. Peñalosa11 and Manahan, Jr. v. Court of Appeals.12 The Office of the Solicitor General (OSG) averred that Eduardo’s defense of good faith and reliance on the Court’s ruling in United States v. Enriquez13 were misplaced; what is applicable is Article 41 of the Family Code, which amended Article 390 of the Civil Code. Citing the ruling of this Court in Republic v. Nolasco,14 the OSG further posited that as provided in Article 41 of the Family Code, there is a need for a judicial declaration of presumptive death of the absent spouse to enable the present spouse to marry. Even assuming that the first marriage was void, the parties thereto should not be permitted to judge for themselves the nullity of the marriage; the matter should be submitted to the proper court for resolution. Moreover, the OSG maintained, the private complainant’s knowledge of the first marriage would not afford any relief since bigamy is an offense against the State and not just against the private complainant. However, the OSG agreed with the appellant that the penalty imposed by the trial court was erroneous and sought the affirmance of the decision appealed from with modification. On June 18, 2004, the CA rendered judgment affirming the decision of the RTC with modification as to the penalty of the accused. It ruled that the prosecution was able to prove all the elements of bigamy. Contrary to the contention of the appellant, Article 41 of the Family Code should apply. Before Manuel could lawfully marry the private complainant, there should have been a judicial declaration of Gaña’s presumptive death as the absent spouse. The appellate court cited the rulings of this Court in Mercado v. Tan15 and Domingo v. Court of Appeals16to support its ruling. The dispositive portion of the decision reads: WHEREFORE, in the light of the foregoing, the Decision promulgated on July 31, 2002 is hereby MODIFIED to reflect, as it hereby reflects, that accused-appellant is sentenced to an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to ten (10) years of prision mayor as maximum. Said Decision is AFFIRMED in all other respects. SO ORDERED.17 Eduardo, now the petitioner, filed the instant petition for review on certiorari, insisting that:

I THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT RULED THAT PETITIONER’S FIRST WIFE CANNOT BE LEGALLY PRESUMED DEAD UNDER ARTICLE 390 OF THE CIVIL CODE AS THERE WAS NO JUDICIAL DECLARATION OF PRESUMPTIVE DEATH AS PROVIDED FOR UNDER ARTICLE 41 OF THE FAMILY CODE. II THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT AFFIRMED THE AWARD OF PHP200,000.00 AS MORAL DAMAGES AS IT HAS NO BASIS IN FACT AND IN LAW.18 The petitioner maintains that the prosecution failed to prove the second element of the felony, i.e., that the marriage has not been legally dissolved or, in case his/her spouse is absent, the absent spouse could not yet be presumed dead under the Civil Code. He avers that when he married Gandalera in 1996, Gaña had been "absent" for 21 years since 1975; under Article 390 of the Civil Code, she was presumed dead as a matter of law. He points out that, under the first paragraph of Article 390 of the Civil Code, one who has been absent for seven years, whether or not he/she is still alive, shall be presumed dead for all purposes except for succession, while the second paragraph refers to the rule on legal presumption of death with respect to succession. The petitioner asserts that the presumptive death of the absent spouse arises by operation of law upon the satisfaction of two requirements: the specified period and the present spouse’s reasonable belief that the absentee is dead. He insists that he was able to prove that he had not heard from his first wife since 1975 and that he had no knowledge of her whereabouts or whether she was still alive; hence, under Article 41 of the Family Code, the presumptive death of Gaña had arisen by operation of law, as the two requirements of Article 390 of the Civil Code are present. The petitioner concludes that he should thus be acquitted of the crime of bigamy. The petitioner insists that except for the period of absences provided for in Article 390 of the Civil Code, the rule therein on legal presumptions remains valid and effective. Nowhere under Article 390 of the Civil Code does it require that there must first be a judicial declaration of death before the rule on presumptive death would apply. He further asserts that contrary to the rulings of the trial and appellate courts, the requirement of a judicial declaration of presumptive death under Article 41 of the Family Code is only a requirement for the validity of the subsequent or second marriage. The petitioner, likewise, avers that the trial court and the CA erred in awarding moral damages in favor of the private complainant. The private complainant was a "GRO" before he married her, and even knew that he was already married. He genuinely loved and took care of her and

gave her financial support. He also pointed out that she had an illicit relationship with a lover whom she brought to their house. In its comment on the petition, the OSG maintains that the decision of the CA affirming the petitioner’s conviction is in accord with the law, jurisprudence and the evidence on record. To bolster its claim, the OSG cited the ruling of this Court in Republic v. Nolasco.19 The petition is denied for lack of merit. Article 349 of the Revised Penal Code, which defines and penalizes bigamy, reads: Art. 349. Bigamy. – The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.

In his commentary on the Revised Penal Code, Albert is of the same view as Viada and declared that there are three (3) elements of bigamy: (1) an undissolved marriage; (2) a new marriage; and (3) fraudulent intention constituting the felony of the act. 28 He explained that: … This last element is not stated in Article 349, because it is undoubtedly incorporated in the principle antedating all codes, and, constituting one of the landmarks of our Penal Code, that, where there is no willfulness there is no crime. There is no willfulness if the subject believes that the former marriage has been dissolved; and this must be supported by very strong evidence, and if this be produced, the act shall be deemed not to constitute a crime. Thus, a person who contracts a second marriage in the reasonable and well-founded belief that his first wife is dead, because of the many years that have elapsed since he has had any news of her whereabouts, in spite of his endeavors to find her, cannot be deemed guilty of the crime of bigamy, because there is no fraudulent intent which is one of the essential elements of the crime.29

El que contrajere Segundo o ulterior matrimonio sin hallarse legítimamente disuelto el anterior, será castigado con la pena de prision mayor. xxx

As gleaned from the Information in the RTC, the petitioner is charged with bigamy, a felony by dolo (deceit). Article 3, paragraph 2 of the Revised Penal Code provides that there is deceit when the act is performed with deliberate intent. Indeed, a felony cannot exist without intent. Since a felony by dolo is classified as an intentional felony, it is deemed voluntary. 30 Although the words "with malice" do not appear in Article 3 of the Revised Penal Code, such phrase is included in the word "voluntary."31

The reason why bigamy is considered a felony is to preserve and ensure the juridical tie of marriage established by law.20 The phrase "or before the absent spouse had been declared presumptively dead by means of a judgment rendered in the proper proceedings" was incorporated in the Revised Penal Code because the drafters of the law were of the impression that "in consonance with the civil law which provides for the presumption of death after an absence of a number of years, the judicial declaration of presumed death like annulment of marriage should be a justification for bigamy."21

Malice is a mental state or condition prompting the doing of an overt act without legal excuse or justification from which another suffers injury.32 When the act or omission defined by law as a felony is proved to have been done or committed by the accused, the law presumes it to have been intentional.33 Indeed, it is a legal presumption of law that every man intends the natural or probable consequence of his voluntary act in the absence of proof to the contrary, and such presumption must prevail unless a reasonable doubt exists from a consideration of the whole evidence.34

For the accused to be held guilty of bigamy, the prosecution is burdened to prove the felony: (a) he/she has been legally married; and (b) he/she contracts a subsequent marriage without the former marriage having been lawfully dissolved. The felony is consummated on the celebration of the second marriage or subsequent marriage. 22 It is essential in the prosecution for bigamy that the alleged second marriage, having all the essential requirements, would be valid were it not for the subsistence of the first marriage. 23 Viada avers that a third element of the crime is that the second marriage must be entered into with fraudulent intent (intencion fraudulente) which is an essential element of a felony by dolo.24 On the other hand, Cuello Calon is of the view that there are only two elements of bigamy: (1) the existence of a marriage that has not been lawfully dissolved; and (2) the celebration of a second marriage. It does not matter whether the first marriage is void or voidable because such marriages have juridical effects until lawfully dissolved by a court of competent jurisdiction. 25 As the Court ruled in Domingo v. Court of Appeals26 and Mercado v. Tan,27 under the Family Code of the Philippines, the judicial declaration of nullity of a previous marriage is a defense.

For one to be criminally liable for a felony by dolo, there must be a confluence of both an evil act and an evil intent. Actus non facit reum, nisi mens sit rea.35

The provision was taken from Article 486 of the Spanish Penal Code, to wit:

In the present case, the prosecution proved that the petitioner was married to Gaña in 1975, and such marriage was not judicially declared a nullity; hence, the marriage is presumed to subsist.36 The prosecution also proved that the petitioner married the private complainant in 1996, long after the effectivity of the Family Code. The petitioner is presumed to have acted with malice or evil intent when he married the private complainant. As a general rule, mistake of fact or good faith of the accused is a valid defense in a prosecution for a felony by dolo; such defense negates malice or criminal intent. However, ignorance of the law is not an excuse because everyone is presumed to know the law. Ignorantia legis neminem excusat.

It was the burden of the petitioner to prove his defense that when he married the private complainant in 1996, he was of the well-grounded belief that his first wife was already dead, as he had not heard from her for more than 20 years since 1975. He should have adduced in evidence a decision of a competent court declaring the presumptive death of his first wife as required by Article 349 of the Revised Penal Code, in relation to Article 41 of the Family Code. Such judicial declaration also constitutes proof that the petitioner acted in good faith, and would negate criminal intent on his part when he married the private complainant and, as a consequence, he could not be held guilty of bigamy in such case. The petitioner, however, failed to discharge his burden. The phrase "or before the absent spouse has been declared presumptively dead by means of a judgment rendered on the proceedings" in Article 349 of the Revised Penal Code was not an aggroupment of empty or useless words. The requirement for a judgment of the presumptive death of the absent spouse is for the benefit of the spouse present, as protection from the pains and the consequences of a second marriage, precisely because he/she could be charged and convicted of bigamy if the defense of good faith based on mere testimony is found incredible. The requirement of judicial declaration is also for the benefit of the State. Under Article II, Section 12 of the Constitution, the "State shall protect and strengthen the family as a basic autonomous social institution." Marriage is a social institution of the highest importance. Public policy, good morals and the interest of society require that the marital relation should be surrounded with every safeguard and its severance only in the manner prescribed and the causes specified by law.37 The laws regulating civil marriages are necessary to serve the interest, safety, good order, comfort or general welfare of the community and the parties can waive nothing essential to the validity of the proceedings. A civil marriage anchors an ordered society by encouraging stable relationships over transient ones; it enhances the welfare of the community. In a real sense, there are three parties to every civil marriage; two willing spouses and an approving State. On marriage, the parties assume new relations to each other and the State touching nearly on every aspect of life and death. The consequences of an invalid marriage to the parties, to innocent parties and to society, are so serious that the law may well take means calculated to ensure the procurement of the most positive evidence of death of the first spouse or of the presumptive death of the absent spouse 38 after the lapse of the period provided for under the law. One such means is the requirement of the declaration by a competent court of the presumptive death of an absent spouse as proof that the present spouse contracts a subsequent marriage on a well-grounded belief of the death of the first spouse. Indeed, "men readily believe what they wish to be true," is a maxim of the old jurists. To sustain a second marriage and to vacate a first because one of the parties believed the other to be dead would make the existence of the marital relation determinable, not by certain extrinsic facts, easily capable of forensic ascertainment and proof, but by the subjective condition of individuals.39 Only with such proof can marriage be treated as so dissolved as to permit second marriages.40 Thus, Article 349 of the Revised Penal Code has made the dissolution of marriage dependent not only upon the personal belief of parties, but upon certain objective facts easily

capable of accurate judicial cognizance, 41 namely, a judgment of the presumptive death of the absent spouse. The petitioner’s sole reliance on Article 390 of the Civil Code as basis for his acquittal for bigamy is misplaced. Articles 390 and 391 of the Civil Code provide – Art. 390. After an absence of seven years, it being unknown whether or not, the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circ*mstances and his existence has not been known for four years. The presumption of death of the spouse who had been absent for seven years, it being unknown whether or not the absentee still lives, is created by law and arises without any necessity of judicial declaration. 42 However, Article 41 of the Family Code, which amended the foregoing rules on presumptive death, reads: Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circ*mstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Court for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.43

With the effectivity of the Family Code, 44 the period of seven years under the first paragraph of Article 390 of the Civil Code was reduced to four consecutive years. Thus, before the spouse present may contract a subsequent marriage, he or she must institute summary proceedings for the declaration of the presumptive death of the absentee spouse, 45 without prejudice to the effect of the reappearance of the absentee spouse. As explained by this Court in Armas v. Calisterio:46 In contrast, under the 1988 Family Code, in order that a subsequent bigamous marriage may exceptionally be considered valid, the following conditions must concur, viz.: (a) The prior spouse of the contracting party must have been absent for four consecutive years, or two years where there is danger of death under the circ*mstances stated in Article 391 of the Civil Code at the time of disappearance; (b) the spouse present has a well-founded belief that the absent spouse is already dead; and (c) there is, unlike the old rule, a judicial declaration of presumptive death of the absentee for which purpose the spouse present can institute a summary proceeding in court to ask for that declaration. The last condition is consistent and in consonance with the requirement of judicial intervention in subsequent marriages as so provided in Article 41, in relation to Article 40, of the Family Code. The Court rejects petitioner’s contention that the requirement of instituting a petition for declaration of presumptive death under Article 41 of the Family Code is designed merely to enable the spouse present to contract a valid second marriage and not for the acquittal of one charged with bigamy. Such provision was designed to harmonize civil law and Article 349 of the Revised Penal Code, and put to rest the confusion spawned by the rulings of this Court and comments of eminent authorities on Criminal Law. As early as March 6, 1937, this Court ruled in Jones v. Hortiguela47 that, for purposes of the marriage law, it is not necessary to have the former spouse judicially declared an absentee before the spouse present may contract a subsequent marriage. It held that the declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse had been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage.48 In In Re Szatraw,49 the Court declared that a judicial declaration that a person is presumptively dead, because he or she had been unheard from in seven years, being a presumption juris tantum only, subject to contrary proof, cannot reach the stage of finality or become final; and that proof of actual death of the person presumed dead being unheard from in seven years, would have to be made in another proceeding to have such particular fact finally determined. The Court ruled that if a judicial decree declaring a person presumptively dead because he or she had not been heard from in seven years cannot become final and executory even after the lapse of the reglementary period within which an appeal may be taken, for such presumption is still disputable and remains subject to contrary proof, then a petition for such a declaration is useless, unnecessary, superfluous and of no benefit to the

petitioner. The Court stated that it should not waste its valuable time and be made to perform a superfluous and meaningless act.50 The Court also took note that a petition for a declaration of the presumptive death of an absent spouse may even be made in collusion with the other spouse. In Lukban v. Republic of the Philippines,51 the Court declared that the words "proper proceedings" in Article 349 of the Revised Penal Code can only refer to those authorized by law such as Articles 390 and 391 of the Civil Code which refer to the administration or settlement of the estate of a deceased person. In Gue v. Republic of the Philippines,52 the Court rejected the contention of the petitioner therein that, under Article 390 of the Civil Code, the courts are authorized to declare the presumptive death of a person after an absence of seven years. The Court reiterated its rulings in Szatraw, Lukban and Jones. Former Chief Justice Ramon C. Aquino was of the view that "the provision of Article 349 or "before the absent spouse has been declared presumptively dead by means of a judgment reached in the proper proceedings" is erroneous and should be considered as not written. He opined that such provision presupposes that, if the prior marriage has not been legally dissolved and the absent first spouse has not been declared presumptively dead in a proper court proceedings, the subsequent marriage is bigamous. He maintains that the supposition is not true.53 A second marriage is bigamous only when the circ*mstances in paragraphs 1 and 2 of Article 83 of the Civil Code are not present. 54 Former Senator Ambrosio Padilla was, likewise, of the view that Article 349 seems to require judicial decree of dissolution or judicial declaration of absence but even with such decree, a second marriage in good faith will not constitute bigamy. He posits that a second marriage, if not illegal, even if it be annullable, should not give rise to bigamy.55 Former Justice Luis B. Reyes, on the other hand, was of the view that in the case of an absent spouse who could not yet be presumed dead according to the Civil Code, the spouse present cannot be charged and convicted of bigamy in case he/she contracts a second marriage.56 The Committee tasked to prepare the Family Code proposed the amendments of Articles 390 and 391 of the Civil Code to conform to Article 349 of the Revised Penal Code, in that, in a case where a spouse is absent for the requisite period, the present spouse may contract a subsequent marriage only after securing a judgment declaring the presumptive death of the absent spouse to avoid being charged and convicted of bigamy; the present spouse will have to adduce evidence that he had a well-founded belief that the absent spouse was already dead.57 Such judgment is proof of the good faith of the present spouse who contracted a subsequent marriage; thus, even if the present spouse is later charged with bigamy if the absentee spouse reappears, he cannot be convicted of the crime. As explained by former Justice Alicia Sempio-Diy: … Such rulings, however, conflict with Art. 349 of the Revised Penal Code providing that the present spouse must first ask for a declaration of presumptive death of the absent spouse in order not to be guilty of bigamy in case he or she marries again.

The above Article of the Family Code now clearly provides that for the purpose of the present spouse contracting a second marriage, he or she must file a summary proceeding as provided in the Code for the declaration of the presumptive death of the absentee, without prejudice to the latter’s reappearance. This provision is intended to protect the present spouse from a criminal prosecution for bigamy under Art. 349 of the Revised Penal Code because with the judicial declaration that the missing spouses presumptively dead, the good faith of the present spouse in contracting a second marriage is already established. 58 Of the same view is former Dean Ernesto L. Pineda (now Undersecretary of Justice) who wrote that things are now clarified. He says judicial declaration of presumptive death is now authorized for purposes of remarriage. The present spouse must institute a summary proceeding for declaration of presumptive death of the absentee, where the ordinary rules of procedure in trial will not be followed. Affidavits will suffice, with possible clarificatory examinations of affiants if the Judge finds it necessary for a full grasp of the facts. The judgment declaring an absentee as presumptively dead is without prejudice to the effect of reappearance of the said absentee. Dean Pineda further states that before, the weight of authority is that the clause "before the absent spouse has been declared presumptively dead x x x" should be disregarded because of Article 83, paragraph 3 of the Civil Code. With the new law, there is a need to institute a summary proceeding for the declaration of the presumptive death of the absentee, otherwise, there is bigamy.59 According to Retired Supreme Court Justice Florenz D. Regalado, an eminent authority on Criminal Law, in some cases where an absentee spouse is believed to be dead, there must be a judicial declaration of presumptive death, which could then be made only in the proceedings for the settlement of his estate. 60 Before such declaration, it was held that the remarriage of the other spouse is bigamous even if done in good faith. 61 Justice Regalado opined that there were contrary views because of the ruling in Jones and the provisions of Article 83(2) of the Civil Code, which, however, appears to have been set to rest by Article 41 of the Family Code, "which requires a summary hearing for the declaration of presumptive death of the absent spouse before the other spouse can remarry." Under Article 238 of the Family Code, a petition for a declaration of the presumptive death of an absent spouse under Article 41 of the Family Code may be filed under Articles 239 to 247 of the same Code.62 On the second issue, the petitioner, likewise, faults the trial court and the CA for awarding moral damages in favor of the private complainant. The petitioner maintains that moral damages may be awarded only in any of the cases provided in Article 2219 of the Civil Code, and bigamy is not one of them. The petitioner asserts that the appellate court failed to apply its ruling in People v. Bondoc,63 where an award of moral damages for bigamy was disallowed. In any case, the petitioner maintains, the private complainant failed to adduce evidence to prove moral damages.

The appellate court awarded moral damages to the private complainant on its finding that she adduced evidence to prove the same. The appellate court ruled that while bigamy is not included in those cases enumerated in Article 2219 of the Civil Code, it is not proscribed from awarding moral damages against the petitioner. The appellate court ruled that it is not bound by the following ruling in People v. Bondoc: ... Pero si en dichos asuntos se adjudicaron daños, ello se debió indedublamente porque el articulo 2219 del Código Civil de Filipinas autoriza la adjudicación de daños morales en los delitos de estupro, rapto, violación, adulterio o concubinato, y otros actos lascivos, sin incluir en esta enumeración el delito de bigamia. No existe, por consiguiente, base legal para adjudicar aquí los daños de P5,000.00 arriba mencionados.64 The OSG posits that the findings and ruling of the CA are based on the evidence and the law. The OSG, likewise, avers that the CA was not bound by its ruling in People v. Rodeo. The Court rules against the petitioner. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant’s wrongful act or omission. 65An award for moral damages requires the confluence of the following conditions: first, there must be an injury, whether physical, mental or psychological, clearly sustained by the claimant; second, there must be culpable act or omission factually established; third, the wrongful act or omission of the defendant is the proximate cause of the injury sustained by the claimant; and fourth, the award of damages is predicated on any of the cases stated in Article 2219 or Article 2220 of the Civil Code.66 Moral damages may be awarded in favor of the offended party only in criminal cases enumerated in Article 2219, paragraphs 1, 3, 4, 5 and 7 of the Civil Code and analogous cases, viz.: Art. 2219. Moral damages may be recovered in the following and analogous cases. (1) A criminal offense resulting in physical injuries; (2) Quasi-delicts causing physical injuries; (3) Seduction, abduction, rape, or other lascivious acts; (4) Adultery or concubinage; (5) Illegal or arbitrary detention or arrest;

(6) Illegal search; (7) Libel, slander or any other form of defamation; (8) Malicious prosecution; (9) Acts mentioned in article 309; (10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34 and 35. The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article, may also recover moral damages. The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in No. 9 of this article in the order named. Thus, the law does not intend that moral damages should be awarded in all cases where the aggrieved party has suffered mental anguish, fright, moral anxieties, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury arising out of an act or omission of another, otherwise, there would not have been any reason for the inclusion of specific acts in Article 221967 and analogous cases (which refer to those cases bearing analogy or resemblance, corresponds to some others or resembling, in other respects, as in form, proportion, relation, etc.)68 Indeed, bigamy is not one of those specifically mentioned in Article 2219 of the Civil Code in which the offender may be ordered to pay moral damages to the private complainant/offended party. Nevertheless, the petitioner is liable to the private complainant for moral damages under Article 2219 in relation to Articles 19, 20 and 21 of the Civil Code. According to Article 19, "every person must, in the exercise of his rights and in the performance of his act with justice, give everyone his due, and observe honesty and good faith." This provision contains what is commonly referred to as the principle of abuse of rights, and sets certain standards which must be observed not only in the exercise of one’s rights but also in the performance of one’s duties. The standards are the following: act with justice; give everyone his due; and observe honesty and good faith. The elements for abuse of rights are: (a) there is a legal right or duty; (b) exercised in bad faith; and (c) for the sole intent of prejudicing or injuring another.69 Article 20 speaks of the general sanctions of all other provisions of law which do not especially provide for its own sanction. When a right is exercised in a manner which does not conform to the standards set forth in the said provision and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be responsible. 70 If the provision does not provide a remedy for its violation, an action for damages under either

Article 20 or Article 21 of the Civil Code would be proper. Article 20 provides that "every person who, contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same." On the other hand, Article 21 provides that "any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for damages." The latter provision is adopted to remedy "the countless gaps in the statutes which leave so many victims of moral wrongs helpless, even though they have actually suffered material and moral injury should vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for human foresight to prove for specifically in the statutes." Whether or not the principle of abuse of rights has been violated resulting in damages under Article 20 or Article 21 of the Civil Code or other applicable provisions of law depends upon the circ*mstances of each case.71 In the present case, the petitioner courted the private complainant and proposed to marry her. He assured her that he was single. He even brought his parents to the house of the private complainant where he and his parents made the same assurance – that he was single. Thus, the private complainant agreed to marry the petitioner, who even stated in the certificate of marriage that he was single. She lived with the petitioner and dutifully performed her duties as his wife, believing all the while that he was her lawful husband. For two years or so until the petitioner heartlessly abandoned her, the private complainant had no inkling that he was already married to another before they were married. Thus, the private complainant was an innocent victim of the petitioner’s chicanery and heartless deception, the fraud consisting not of a single act alone, but a continuous series of acts. Day by day, he maintained the appearance of being a lawful husband to the private complainant, who changed her status from a single woman to a married woman, lost the consortium, attributes and support of a single man she could have married lawfully and endured mental pain and humiliation, being bound to a man who it turned out was not her lawful husband. 72 The Court rules that the petitioner’s collective acts of fraud and deceit before, during and after his marriage with the private complainant were willful, deliberate and with malice and caused injury to the latter. That she did not sustain any physical injuries is not a bar to an award for moral damages. Indeed, in Morris v. Macnab,73 the New Jersey Supreme Court ruled: xxx The defendant cites authorities which indicate that, absent physical injuries, damages for shame, humiliation, and mental anguish are not recoverable where the actor is simply negligent. See Prosser, supra, at p. 180; 2 Harper & James, Torts, 1031 (1956). But the authorities all recognize that where the wrong is willful rather than negligent, recovery may be had for the ordinary, natural, and proximate consequences though they consist of shame, humiliation, and mental anguish. See Spiegel v. Evergreen Cemetery Co., 117 NJL 90, 94, 186 A 585 (Sup. Ct. 1936); Kuzma v. Millinery Workers, etc., Local 24, 27 N.J. Super, 579, 591, 99 A.2d 833 (App. Div. 1953); Prosser, supra, at p. 38. Here the defendant’s conduct was not merely negligent, but was willfully and maliciously wrongful. It was bound to result in shame,

humiliation, and mental anguish for the plaintiff, and when such result did ensue the plaintiff became entitled not only to compensatory but also to punitive damages. See Spiegel v. Evergreen Cemetery Co., supra; Kuzma v Millinery Workers, etc., Local 24, supra. CF. Note, "Exemplary Damages in the Law of Torts," 70 Harv. L. Rev. 517 (1957). The plaintiff testified that because of the defendant’s bigamous marriage to her and the attendant publicity she not only was embarrassed and "ashamed to go out" but "couldn’t sleep" but "couldn’t eat," had terrific headaches" and "lost quite a lot of weight." No just basis appears for judicial interference with the jury’s reasonable allowance of $1,000 punitive damages on the first count. See Cabakov v. Thatcher, 37 N.J. Super 249, 117 A.2d 298 (App. Div.74 1955).

solely by the defendant’s misrepresentation, and that she does not base her cause of action upon any transgression of the law by herself. Such considerations distinguish this case from cases in which the court has refused to lend its aid to the enforcement of a contract illegal on its face or to one who has consciously and voluntarily become a party to an illegal act upon which the cause of action is founded. Szadiwicz v. Cantor, 257 Mass. 518, 520, 154 N.E. 251, 49 A. L. R. 958.76

The Court thus declares that the petitioner’s acts are against public policy as they undermine and subvert the family as a social institution, good morals and the interest and general welfare of society.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed decision of the Court of Appeals isAFFIRMED. Costs against the petitioner.

Because the private complainant was an innocent victim of the petitioner’s perfidy, she is not barred from claiming moral damages. Besides, even considerations of public policy would not prevent her from recovery. As held inJekshewitz v. Groswald:75 Where a person is induced by the fraudulent representation of another to do an act which, in consequence of such misrepresentation, he believes to be neither illegal nor immoral, but which is in fact a criminal offense, he has a right of action against the person so inducing him for damages sustained by him in consequence of his having done such act. Burrows v. Rhodes, [1899] 1 Q.B. 816. In Cooper v. Cooper, 147 Mass. 370, 17 N.E. 892, 9 Am. St. Rep. 721, the court said that a false representation by the defendant that he was divorced from his former wife, whereby the plaintiff was induced to marry him, gave her a remedy in tort for deceit. It seems to have been assumed that the fact that she had unintentionally violated the law or innocently committed a crime by cohabiting with him would be no bar to the action, but rather that it might be a ground for enhancing her damages. The injury to the plaintiff was said to be in her being led by the promise to give the fellowship and assistance of a wife to one who was not her husband and to assume and act in a relation and condition that proved to be false and ignominious. Damages for such an injury were held to be recoverable in Sherman v. Rawson, 102 Mass. 395 and Kelley v. Riley, 106 Mass. 339, 343, 8 Am. Rep. 336. Furthermore, in the case at bar the plaintiff does not base her cause of action upon any transgression of the law by herself but upon the defendant’s misrepresentation. The criminal relations which followed, innocently on her part, were but one of the incidental results of the defendant’s fraud for which damages may be assessed. [7] Actions for deceit for fraudulently inducing a woman to enter into the marriage relation have been maintained in other jurisdictions. Sears v. Wegner, 150 Mich. 388, 114 N.W. 224, 17 L.R. A. (N.S.) 819; Larson v. McMillan, 99 Wash. 626, 170 P. 324; Blossom v. Barrett, 37 N.Y. 434, 97 Am. Dec. 747; Morril v. Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411. Considerations of public policy would not prevent recovery where the circ*mstances are such that the plaintiff was conscious of no moral turpitude, that her illegal action was induced

Considering the attendant circ*mstances of the case, the Court finds the award of P200,000.00 for moral damages to be just and reasonable.

SO ORDERED. ROMEO J. CALLEJO, SR. Associate Justice WE CONCUR:

G.R. No. 97471 February 17, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ISABELO PUNO y GUEVARRA, alias "Beloy," and ENRIQUE AMURAO y PUNO, alias "Enry," accused-appellants. The Solicitor General for plaintiff-appellee. Edward C. Castañeda for accused-appellants.

REGALADO, J.: The primal issue for resolution in this case is whether accused-appellants committed the felony of kidnapping for ransom under Article 267 of the Revised Penal Code, as charged in the information; or a violation of Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974), as contended by the Solicitor General and found by the trial court; or the offense of simple robbery punished by Paragraph 5, Article 294 of the Revised Penal Code, as claimed by the defense. In an information dated and filed on May 31, 1989 in the Regional Trial Court of Quezon City, Branch 103, as Criminal Case No. Q-57404 thereof, appellants were charged with kidnapping for ransom allegedly committed in the following manner: That on or about the 13th day of January, 1988 in Quezon City, Philippines and within the jurisdiction of this Honorable Court, the said accused, being then private individuals, conspiring together, confederating with and mutually helping each other, did, then and there, wilfully, unlawfully and feloniously kidnap and carry away one MARIA DEL SOCORRO SARMIENTO y MUTUC * for the purpose of extorting ransom, to the damage and prejudice of the said offended party in such amount as may be awarded to her under the provisions of the Civil Code. 1 On a plea of not guilty when arraigned, 2 appellants went to trial which ultimately resulted in a judgment promulgated on September 26, 1990 finding them guilty of robbery with extortion committed on a highway, punishable under Presidential Decree No. 532, with this disposition in the fallo thereof: ACCORDINGLY, judgment is hereby rendered finding the accused ISABELO PUNO and ENRIQUE AMURAO GUILTY as principals of

robbery with extortion committed on a highway and, in accordance with P.D. 532, they are both sentenced to a jail term of reclusion perpetua. The two accused are likewise ordered to pay jointly and severally the offended private victim Ma. Socorro M. Sarmiento the sum of P7,000.00 as actual damages and P3,000.00 as temperate damages. 3 Before us now in this appeal, appellants contend that the court a quo erred (1) in convicting them under Presidential Decree No. 532 since they were not expressly charged with a crime therein; (2) in applying Sections 4 and 5, Rule 120 of the Rules of Court since the charge under said presidential decree is not the offense proved and cannot rightly be used as the offense proved which is necessarily included in the offense charged. 4 For the material antecedents of this case, we quote with approval the following counterstatement of facts in the People's brief 5 which adopted the established findings of the court a quo, documenting the same with page references to the transcripts of the proceedings, and which we note are without any substantial divergence in the version proffered by the defense. This is a prosecution for kidnapping for ransom allegedly done on January 13, 1988 by the two accused (tsn, Jan. 8, 1990, p. 7). Mrs. Maria Socorro Mutuc-Sarmiento owns a bakeshop in Araneta Avenue, Quezon City called Nika Cakes and Pastries. She has a driver of her own just as her husband does (Ibid., pp. 4-6). At around 5:00 in the afternoon of January 13, 1988, the accused Isabelo Puno, who is the personal driver of Mrs. Sarmiento's husband (who was then away in Davao purportedly on account of local election there) arrived at the bakeshop. He told Mrs. Socorro that her own driver Fred had to go to Pampanga on an emergency (something bad befell a child), so Isabelo will temporary (sic) take his place (Id., pp. 8-9). Mrs. Socorro's time to go home to Valle Verde in Pasig came and so she got into the Mercedes Benz of her husband with Isabelo on (sic) the wheel. After the car turned right in (sic) a corner of Araneta Avenue, it stopped. A young man, accused Enrique Amurao, boarded the car beside the driver (Id., pp. 9-10). Once inside, Enrique clambered on top of the back side of the front seat and went onto where Ma. Socorro was seated at the rear. He poke ( sic) a gun at her (Id., p. 10).

Isabelo, who earlier told her that Enrique is his nephew announced, "ma'm, you know, I want to get money from you." She said she has money inside her bag and they may get it just so they will let her go. The bag contained P7,000.00 and was taken (Id., pp. 11-14).

On these relatively simple facts, and as noted at the start of this opinion, three theories have been advanced as to what crime was committed by appellants. The trial court cohered with the submission of the defense that the crime could not be kidnapping for ransom as charged in the information. We likewise agree.

Further on, the two told her they wanted P100,000.00 more. Ma. Socorro agreed to give them that but would they drop her at her gas station in Kamagong St., Makati where the money is? The car went about the Sta. Mesa area. Meanwhile, Ma. Socorro clutched her Rosary and prayed. Enrique's gun was menacingly storing (sic) at her soft bread (sic) brown, perfumed neck. He said he is an NPA and threatened her (Id., p.15).

Prefatorily, it is worth recalling an accepted tenet in criminal law that in the determination of the crime for which the accused should be held liable in those instances where his acts partake of the nature of variant offenses, and the same holds true with regard to the modifying or qualifying circ*mstances thereof, his motive and specific intent in perpetrating the acts complained of are invaluable aids in arriving at a correct appreciation and accurate conclusion thereon.

The car sped off north towards the North superhighway. There Isabelo, Beloy as he is called, asked Ma. Socorro to issue a check for P100,000.00. Ma. Socorro complied. She drafted 3 checks in denominations of two for P30 thousand and one for P40 thousand. Enrique ordered her to swallow a pill but she refused (Id., pp. 17-23).

Thus, to illustrate, the motive of the accused has been held to be relevant or essential to determine the specific nature of the crime as, for instance, whether a murder was committed in the furtherance of rebellion in which case the latter absorbs the former, or whether the accused had his own personal motives for committing the murder independent of his membership in the rebellious movement in which case rebellion and murder would constitute separate offenses. 10 Also, where injuries were inflicted on a person in authority who was not then in the actual performance of his official duties, the motive of the offender assumes importance because if the attack was by reason of the previous performance of official duties by the person in authority, the crime would be direct assault; otherwise, it would only be physical injuries. 11

Beloy turned the car around towards Metro Manila. Later, he changed his mind and turned the car again towards Pampanga. Ma. Socorro, according to her, jumped out of the car then, crossed to the other side of the superhighway and, after some vehicles ignored her, she was finally able to flag down a fish vendors van. Her dress had blood because, according to Ma. Socorro, she fell down on the ground and was injured when she jumped out of the car. Her dress was torn too (Id., pp. 23-26). On reaching Balintawak, Ma. Socorro reported the matter to CAPCOM (Id., p. 27). Both accused were, day after, arrested. Enrique was arrested trying to encash Ma. Socorro's P40,000.00 check at PCI Bank, Makati. (tsn, Oct. 18, 1989, pp. 10-13) 6 As observed by the court below, the defense does not dispute said narrative of complainant, except that, according to appellant Puno, he stopped the car at North Diversion and freely allowed complainant to step out of the car. He even slowed the car down as he drove away, until he saw that his employer had gotten a ride, and he claimed that she fell down when she stubbed her toe while running across the highway. 7 Appellants further testified that they brought the Mercedez Benz car to Dolores, San Fernando, Pampanga and parked it near a barangay or police outpost. They thereafter ate at a restaurant and divided their loot. 8 Much later, when he took the stand at the trial of this case, appellant Puno tried to mitigate his liability by explaining that he was in dire need of money for the medication of his ulcers. 9

In the case at bar, there is no showing whatsoever that appellants had any motive, nurtured prior to or at the time they committed the wrongful acts against complainant, other than the extortion of money from her under the compulsion of threats or intimidation. This much is admitted by both appellants, without any other esoteric qualification or dubious justification. Appellant Puno, as already stated, candidly laid the blame for his predicament on his need for funds for, in his own testimony, "(w)hile we were along the way Mam (sic) Corina was telling me "Beloy, I know your family very well and I know that your (sic) not (a) bad person, why are you doing this?" I told her "Mam, (sic), because I need money and I had an ulcer and that I have been getting an (sic) advances from our office but they refused to give me any bale (sic). . . ." 12 With respect to the specific intent of appellants vis-a-vis the charge that they had kidnapped the victim, we can rely on the proverbial rule of ancient respectability that for this crime to exist, there must be indubitable proof that the actual intent of the malefactors was to deprive the offended party of her liberty, 13 and not where such restraint of her freedom of action was merely an incident in the commission of another offense primarily intended by the offenders. Hence, as early as United States vs. Ancheta, 14 and consistently reiterated thereafter, 15 it has been held that the detention and/or forcible taking away of the victims by the accused, even for an appreciable period of time but for the primary and ultimate purpose of killing them, holds the offenders liable for

taking their lives or such other offenses they committed in relation thereto, but the incidental deprivation of the victims' liberty does not constitute kidnapping or serious illegal detention. That appellants in this case had no intention whatsoever to kidnap or deprive the complainant of her personal liberty is clearly demonstrated in the veritably confessional testimony of appellant Puno: Q At what point did Mrs. Sarmiento handed (sic) the bag containing the P7,000.00 to your nephew? A Santo Domingo Exit. Q And how about the checks, where were you already when the checks was (sic) being handed to you? A Also at the Sto. Domingo exit when she signed the checks. Q If your intention was just to robbed (sic) her, why is it that you still did not allow her to stay at Sto. Domingo, after all you already received the money and the checks? A Because we had an agreement with her that when she signed the checks we will take her to her house at Villa (sic) Verde. Q And why did you not bring her back to her house at Valle Verde when she is (sic) already given you the checks?

demanded from her at gun point, what she gave under the circ*mstances of this case can be equated with or was in the concept of ransom in the law of kidnapping. These were merely amounts involuntarily surrendered by the victim upon the occasion of a robbery or of which she was summarily divested by appellants. Accordingly, while we hold that the crime committed is robbery as defined in Article 293 of the Code, we, however, reject the theory of the trial court that the same constitutes the highway robbery contemplated in and punished by Presidential Decree No. 532. The lower court, in support of its theory, offers this ratiocination: The court agrees that the crime is robbery. But it is also clear from the allegation in the information that the victim was carried away and extorted for more money. The accused admitted that the robbery was carried on from Araneta Avenue up to the North Superhighway. They likewise admitted that along the way they intimidated Ma. Socorro to produce more money that she had with her at the time for which reason Ma. Socorro, not having more cash, drew out three checks. . . . In view of the foregoing the court is of the opinion that the crimes committed is that punishable under P.D. 532 (Anti-Piracy and AntiHighway Robbery Law of 1974) under which where robbery on the highway is accompanied by extortion the penalty is reclusion perpetua. 18 The Solicitor General concurs, with the observation that pursuant to the repealing clause in Section 5 of said decree, "P.D. No- 532 is a modification of the provisions of the Revised Penal Code, particularly Article 267 which are inconsistent with it." 19 Such opinion and complementary submission consequently necessitate an evaluation of the correct interplay between and the legal effects of Presidential Decree No. 532 on the pertinent Provisions of the Revised Penal Code, on which matter we are not aware that any definitive pronouncement has as yet been made.

A Because while we were on the way back I (sic) came to my mind that if we reach Balintawak or some other place along the way we might be apprehended by the police. So when we reached Santa Rita exit I told her "Mam (sic) we will already stop and allow you to get out of the car." 16

Contrary to the postulation of the Solicitor General, Presidential Decree No. 532 is not a modification of Article 267 of the Revised Penal Code on kidnapping and serious illegal detention, but of Articles 306 and 307 on brigandage. This is evident from the fact that the relevant portion thereof which treats of "highway robbery" invariably uses this term in the alternative and synonymously with brigandage, that is, as "highway robbery/brigandage." This is but in line with our previous ruling, and which still holds sway in criminal law, that highway robbers (ladrones) and brigands are synonymous. 20

Neither can we consider the amounts given to appellants as equivalent to or in the nature of ransom, considering the immediacy of their obtention thereof from the complainant personally. Ransom, in municipal criminal law, is the money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases from captivity. 17 It can hardly be assumed that when complainant readily gave the cash and checks

Harking back to the origin of our law on brigandage (bandolerismo) in order to put our discussion thereon in the proper context and perspective, we find that a band of brigands, also known as highwaymen or freebooters, is more than a gang of ordinary robbers. Jurisprudence on the matter reveals that during the early part of the American occupation of our country, roving bands were organized for robbery and pillage and since the then existing law against

robbery was inadequate to cope with such moving bands of outlaws, the Brigandage Law was passed. 21 The following salient distinctions between brigandage and robbery are succinctly explained in a treatise on the subject and are of continuing validity: The main object of the Brigandage Law is to prevent the formation of bands of robbers. The heart of the offense consists in the formation of a band by more than three armed persons for the purpose indicated in art. 306. Such formation is sufficient to constitute a violation of art. 306. It would not be necessary to show, in a prosecution under it, that a member or members of the band actually committed robbery or kidnapping or any other purpose attainable by violent means. The crime is proven when the organization and purpose of the band are shown to be such as are contemplated by art 306. On the other hand, if robbery is committed by a band, whose members were not primarily organized for the purpose of committing robbery or kidnapping, etc., the crime would not be brigandage, but only robbery. Simply because robbery was committed by a band of more than three armed persons, it would not follow that it was committed by a band of brigands. In the Spanish text of art. 306, it is required that the band "sala a los campos para dedicarse a robar." 22 (Emphasis supplied). In fine, the purpose of brigandage is, inter alia, indiscriminate highway robbery. If the purpose is only a particular robbery, the crime is only robbery, or robbery in band if there are at least four armed participants. 23 The martial law legislator, in creating and promulgating Presidential Decree No. 532 for the objectives announced therein, could not have been unaware of that distinction and is presumed to have adopted the same, there being no indication to the contrary. This conclusion is buttressed by the rule on contemporaneous construction, since it is one drawn from the time when and the circ*mstances under which the decree to be construed originated. Contemporaneous exposition or construction is the best and strongest in the law. 24 Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of robbery perpetrated by outlaws indiscriminately against any person or persons on Philippine highways as defined therein, and not acts of robbery committed against only a predetermined or particular victim, is evident from the preambular clauses thereof, to wit: WHEREAS, reports from law-enforcement agencies reveal that lawless elements are still committing acts of depredation upon the persons and properties of innocent and defenseless inhabitants who travel from one place to another, thereby disturbing the peace, order and tranquility of the nation andstunting the economic and social progress of the people:

WHEREAS, such acts of depredations constitute . . . highway robbery/brigandage which are among the highest forms of lawlessness condemned by the penal statutes of all countries; WHEREAS, it is imperative that said lawless elements be discouraged from perpetrating such acts of depredaions by imposing heavy penalty on the offenders, with the end in view of eliminating all obstacles to the economic, social, educational and community progress of the people. (Emphasis supplied). Indeed, it is hard to conceive of how a single act of robbery against a particular person chosen by the accused as their specific victim could be considered as committed on the "innocent and defenseless inhabitants who travel from one place to another," and which single act of depredation would be capable of "stunting the economic and social progress of the people" as to be considered "among the highest forms of lawlessness condemned by the penal statutes of all countries," and would accordingly constitute an obstacle "to the economic, social, educational and community progress of the people, " such that said isolated act would constitute the highway robbery or brigandage contemplated and punished in said decree. This would be an exaggeration bordering on the ridiculous. True, Presidential Decree No. 532 did introduce amendments to Articles 306 and 307 of the Revised Penal Code by increasing the penalties, albeit limiting its applicability to the offenses stated therein when committed on the highways and without prejudice to the liability for such acts if committed. Furthermore, the decree does not require that there be at least four armed persons forming a band of robbers; and the presumption in the Code that said accused are brigands if they use unlicensed firearms no longer obtains under the decree. But, and this we broadly underline, the essence of brigandage under the Code as a crime of depredation wherein the unlawful acts are directed not only against specific, intended or preconceived victims, but against any and all prospective victims anywhere on the highway and whosoever they may potentially be, is the same as the concept of brigandage which is maintained in Presidential Decree No. 532, in the same manner as it was under its aforementioned precursor in the Code and, for that matter, under the old Brigandage Law. 25 Erroneous advertence is nevertheless made by the court below to the fact that the crime of robbery committed by appellants should be covered by the said amendatory decree just because it was committed on a highway. Aside from what has already been stressed regarding the absence of the requisite elements which thereby necessarily puts the offense charged outside the purview and intendment of that presidential issuance, it would be absurd to adopt a literal interpretation that any unlawful taking of property committed on our highways would be covered thereby. It is an elementary rule of statutory construction that the spirit or intent of the law should not be subordinated to the letter thereof. Trite as it may appear, we have perforce to stress the elementary caveat that he who considers merely the letter of an instrument goes but skin deep into its meaning, 26 and the fundamental rule that criminal justice inclines in favor of the milder form of liability in case of doubt.

If the mere fact that the offense charged was committed on a highway would be the determinant for the application of Presidential Decree No. 532, it would not be farfetched to expect mischievous, if not absurd, effects on the corpus of our substantive criminal law. While we eschew resort to a reductio ad absurdum line of reasoning, we apprehend that the aforestated theory adopted by the trial court falls far short of the desideratum in the interpretation of laws, that is, to avoid absurdities and conflicts. For, if a motor vehicle, either stationary or moving on a highway, is forcibly taken at gun point by the accused who happened to take a fancy thereto, would the location of the vehicle at the time of the unlawful taking necessarily put the offense within the ambit of Presidential Decree No. 532, thus rendering nugatory the categorical provisions of the Anti-Carnapping Act of 1972? 27 And, if the scenario is one where the subject matter of the unlawful asportation is large cattle which are incidentally being herded along and traversing the same highway and are impulsively set upon by the accused, should we apply Presidential Decree No. 532 and completely disregard the explicit prescriptions in the Anti-Cattle Rustling Law of 1974? 28

extorted ransom from the complainant. Such allegations, if not expressly but at the very least by necessary implication, clearly convey that the taking of complainant's money and checks (inaccurately termed as ransom) was unlawful, with intent to gain, and through intimidation. It cannot be logically argued that such a charge of kidnapping for ransom does not include but could negate the presence of any of the elements of robbery through intimidation of persons. 32

We do not entertain any doubt, therefore, that the coincidental fact that the robbery in the present case was committed inside a car which, in the natural course of things, was casually operating on a highway, is not within the situation envisaged by Section 2(e) of the decree in its definition of terms. Besides, that particular provision precisely defines "highway robbery/brigandage" and, as we have amply demonstrated, the single act of robbery conceived and committed by appellants in this case does not constitute highway robbery or brigandage.

SO ORDERED.

Accordingly, we hold that the offense committed by appellants is simple robbery defined in Article 293 and punished under Paragraph 5 of Article 294 of the Revised Penal Code with prision correccional in its maximum period to prision mayor in its medium period. Appellants have indisputably acted in conspiracy as shown by their concerted acts evidentiary of a unity of thought and community of purpose. In the determination of their respective liabilities, the aggravating circ*mstances of craft 29 shall be appreciated against both appellants and that of abuse of confidence shall be further applied against appellant Puno, with no mitigating circ*mstance in favor of either of them. At any rate, the intimidation having been made with the use of a firearm, the penalty shall be imposed in the maximum period as decreed by Article 295 of the Code. We further hold that there is no procedural obstacle to the conviction of appellants of the crime of simple robbery upon an information charging them with kidnapping for ransom, since the former offense which has been proved is necessarily included in the latter offense with which they are charged. 30 For the former offense, it is sufficient that the elements of unlawful taking, with intent to gain, of personal property through intimidation of the owner or possessor thereof shall be, as it has been, proved in the case at bar. Intent to gain (animus lucrandi) is presumed to be alleged in an information where it is charged that there was unlawful taking (apoderamiento) and appropriation by the offender of the things subject of the robbery. 31 These foregoing elements are necessarily included in the information filed against appellants which, as formulated, allege that they wilfully, unlawfully and feloniously kidnapped and

WHEREFORE, the assailed judgment of the trial court is hereby SET ASIDE and another one is rendered CONVICTING accused-appellants Isabelo Puno y Guevarra and Enrique Amurao y Puno of robbery as Punished in Paragraph 5 of Article 294, in relation to Article 295, of the Revised Penal Code and IMPOSING on each of them an indeterminate sentence of four (4) years and two (2) months of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum, and jointly and severally pay the offended party, Maria del Socorro M. Sarmiento, the amounts of P7,000.00 as actual damages and P20,000.00 as moral damages, with costs.

Narvasa, C.J., Feliciano, Nocon and Campos, Jr., JJ., concur.

Adm. Case No. 3086 February 23, 1988 ALEXANDER PADILLA, complainant, vs. THE HON. BALTAZAR R. DIZON, Presiding Judge of the Regional Trial Court of Pasay City Branch 113, respondent. RESOLUTION

Hongkong Dollar, without any authority as provided by law. At the time the accused was apprehended, he was able to exhibit two currency declarations which he was supposed to have accomplished upon his arrival in Manila in previous trips, namely, CB Currency Declaration No. 05048, dated May 4, 1986 for US$39,600.00 and Japanese Yen 4,000,000.00, and CB Currency Declaration No. 06346, dated June 29, 1986 for Japanese Yen 6,600,000.00. An information was filed against Lo Chi Fai, with the RTC of Pasay City for violation of Sec. 6, Central Bank Circular No. 960, as follows: That on or about the 9th day of July, 1986, in the City of Pasay, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, Mr. LO CHI FAI, did then and there wilfully, unlawfully and feloniously attempt to take out of the Philippines through the Manila International Airport the following foreign currencies in cash and in checks:

PER CURIAM: This is an administrative complaint, dated August 6, 1987, filed by the then Commissioner of Customs, Alexander Padilla, against respondent Baltazar R. Dizon, RTC Judge, Branch 115, Pasay City, for rendering a manifestly erroneous decision due, at the very least, to gross incompetence and gross ignorance of the law, in Criminal Case No. 86- 10126-P, entitled "People of the Philippines vs. Lo Chi Fai", acquitting said accused of the offense charged, i.e., smuggling of foreign currency out of the country. Required by the Court to answer the complaint, the respondent judge filed an Answer, dated October 6, 1987, reciting his "commendable record as a fearless prosecutor" since his appointment as Assistant City Fiscal of Manila on December 4, 1962, until his appointment eventually as RTC Judge on February 18, 1983; that at in the reorganization of the judiciary after the February 26, 1986 revolution, he was reappointed to his present position; that his length of service as prosecutor and judge is "tangible proof that would negate the allegations of the petitioner" (should be complainant), whereas the latter did not last long in the service for reasons only known to him; that the decision involved in the complaint was promulgated by respondent on September 29, 1986, but the complaint against him was filed only on August 6, 1987, a clear indication of malice and ill-will of the complainant to subject respondent to harassment, humiliation and vindictiveness; that his decision, of which he submits a copy (Annex A) as part of his Answer, is based on "fundamental principles and the foundation of rights and justice" and that if there are mistakes or errors in the questioned decision, they are committed in good faith. Accordingly, respondent prays for the dismissal of the petition (should be complaint). The issue before the Court is whether or not the respondent judge is guilty of gross incompetence or gross ignorance of the law in rendering the decision in question. A judge can not be held to account or answer, criminally, civilly or administratively, for an erroneous decision rendered by him in good faith. The case in which the respondent rendered a decision of acquittal involved a tourist, Lo Chi Fai, who was caught by a Customs guard at the Manila International Airport while attempting to smuggle foreign currency and foreign exchange instruments out of the country. Lo Chi Fai, was apprehended by a customs guard and two PAFSECOM officers on July 9, 1986, while on board Flight PR 300 of the Philippine Air Lines bound for Hongkong. At the time of his apprehension, he was found carrying with him foreign currency and foreign exchange instruments (380 pieces) amounting to US$ 355,349.57, in various currency denominations, to wit: Japanese Yen, Swiss Franc, Australian Dollar, Singapore Dollar, HFL Guilder, French Franc, U.S. Dollar, English Pound, Malaysian Dollar, Deutsche Mark, Canadian Dollar and

Japanese Yen

Y 32,800,000.00

Swiss Franc

SW. FR 6,9000.00

Australian Dollar

A$ 17,425.00

Singapore Dollar

S$ 9,945.00

Deutsche Marck

DM 18,595.00

Canadian Dollar

CS 13,330.00

Hongkong Dollar

HK$ 15,630.00

HFL Guilder

HFL 430.00

The case, which was docketed as Criminal Case No. 86-10126-P, was subsequently raffled to Branch 113, presided by herein respondent Judge Baltazar A. Dizon. Section 6 of Circular No. 960 of the Central Bank provides as follows:

French Franc

F/6,860.00

US Dollar

US$ 73,950.00

English Pound

5,318.00

Malaysian Dollar

M$. 14,760.00

Sec. 6. Export, import of foreign exchange; exceptions. — No person shall take out or transmit or attempt to take out or transmit foreign exchange in any form, out of the Philippines directly, through other persons, through the mails or through international carriers except when specifically authorized by the Central Bank or allowed under existing international agreements or Central Bank regulations. Tourists and non-resident visitors may take out or send out from the Philippine foreign exchange in amounts not exceeding such amounts of foreign exchange brought in by them. For purposes of establishing the amount of foreign exchange brought in or out of the Philippines, tourists and non-resident temporary visitors bringing with them more than US$3,000.00 or its equivalent in other foreign currencies shall declare their foreign exchange in the form prescribed by the Central Bank at points of entries upon arrival in the Philippines. The penal sanction is provided by Section 1, P.D. No. 1883, which reads as follows:

(in checks)

Australian Dollar

A$ 7,750.00

British Pound

700.00

US Dollar

US$ 17,630.00

Canadian Dollar

C$ 990.00

without authority from the Central Bank. Contrary to Law.

Section 1. Blackmarketing of Foreign Exchange .— That any person who shall engage in the trading or purchase and sale of foreign currency in violation of existing laws or rules and regulations of the Central Bank shall be guilty of the crime of blackmarketing of foreign exchange and shall suffer the penalty of reclusion temporal, (minimum of 12 years and I day and maximum of 20 years) and a fine of no less than fifty thousand (P50,000.00) Pesos. At the trial, the accused tried to establish that he was a businessman from Kowloon, Hongkong, engaged in the garment business, in which he had invested 4 to 5 million Hongkong Dollars; that he had come to the Philippines 9 to 1 0 times, although the only dates he could remember were April 2, 1986, May 4, 1986, June 28,1986, and July 8, 1986; that the reason for his coming to the Philippines was to invest in business in the Philippines and also to play in the casino; that he had a group of business associates who decided to invest in business with him, namely: Wakita Noboyuki, Kobayashi Nabuo, Lee Shiang Pin, Lee Chin and Cze Kai Kwan, who had their own businesses in Japan and Hongkong; that when he came to the Philippines on April 2,1986, he brought US$50,000.00 and 8,500,000.00 Japanese Yen which he tried to declare but the Central Bank representative refused to accept his declaration, until he could get a confirmation as to the source of the money, for which reason he contacted his bank in Hongkong and a telex was sent to him on April 3,1986 (Exh. 4). He also brought in with him US$39,000.00 and 4,000,000.00 Japanese Yen when he arrived on May 4,1986 which he declared (Exh. 1). Again, he declared 8,600,000.00 Japanese Yen when he arrived on June 28, 1986 (Exh. 2). He also testified that his business associates, as per their agreement to invest in some business with him in the Philippines, started putting their money for this purpose in a common fund, hence, every time anyone of them came to the Philippines, they would declare the money they were bringing in, and all declarations were handed to and kept

by him; these currency declarations were presented at the trial as exhibits for the defense. When asked by the court why he did not present all of these declarations when he was apprehended at the airport, his answer was that he was not asked to present the declaration papers of his associates, and besides, he does not understand English and he was not told to do so. He also testified on cross-examination that the reason he was going back to Hongkong bringing with him all the money intended to be invested in the Philippines was because of the fear of his group that the "revolution" taking place in Manila might become widespread. It was because of this fear that he was urged by his associates to come to Manila on July 8, 1986 to bring the money out of the Philippines. The respondent judge, in his decision acquitting the accused, stated: The factual issue for this Court to determine is whether or not the accused wilfully violated Section 6 of Circular No. 960. The fact that the accused had in his possession the foreign currencies when he was about to depart from the Philippines did not by that act alone make him liable for Violation of Section 6. What is imperative is the purpose for which the act of bringing foreign currencies out of the country was done the very intention. It is that which qualifies the act as criminal or not. There must be that clear intention to violate and benefit from the act done. Intent is a mental state, the existence of which is shown by overt acts of a person. The respondent proceeded to analyze the evidence which, according to him, tended to show that the accused had no wilfull intention to violate the law. According to the respondent in his decision: ... this Court is persuaded to accept the explanation of the defense that the currencies confiscated and/or seized from the accused belong to him and his business associates abovenamed. And from the unwavering and unequivocal testimonies of Mr. Templo and all of currencies in question came from abroad and not from the local source which is what is being prohibited by the government. Yes, simply reading the provisions of said circular will, readily show that the currency declaration is required for the purpose of establishing the amount of currency being brought by tourist or temporary non-resident visitors into the country. The currency declarations, therefore, is already (sic) intended to serve as a guideline for the Customs authorities to determine the amounts actually brought in by them to correspond to the amounts that could be allowed to be taken out. Indeed, this Court is amazed and really has its misgivings in the manner currency declarations were made as testified to by the Central Bank employees. Why the Bureau of Customs representative never took part in all these declarations testified to by no less than five (5) Central Bank employees? Seemingly, these employees are the favorites of these travellers. It is the hope of this Court that the authorities must do something to remedy the evident flaw in the system for effective implementation of the questioned Central Bank Circular No. 960.

But even with a doubtful mind this Court would not be able to pin criminal responsibility on the accused. This is due to its steadfast adherence and devotion to the rule of law-a factor in restoring the almost lost faith and erosion of confidence of the people in the administration of justice. Courts of Justice are guided only by the rule of evidence. The respondent-judge has shown gross incompetence or gross ignorance of the law in holding that to convict the accused for violation of Central Bank Circular No. 960, the prosecution must establish that the accused had the criminal intent to violate the law. The respondent ought to know that proof of malice or deliberate intent (mens rea) is not essential in offenses punished by special laws, which are mala prohibita. In requiring proof of malice, the respondent has by his gross ignorance allowed the accused to go scot free. The accused at the time of his apprehension at the Manila International Airport had in his possession the amount of US$355,349.57 in assorted foreign currencies and foreign exchange instruments (380 pieces), without any specific authority from the Central Bank as required by law. At the time of his apprehension, he was able to exhibit only two foreign currency declarations in his possession. These were old declarations made by him on the occasion of his previous trips to the Philippines. Although lack of malice or wilfull intent is not a valid defense in a case for violation of Central Bank Circular No. 960, the respondent nonetheless chose to exonerate the accused based on his defense that the foreign currency he was bringing out of the country at the time he was apprehended by the customs authorities were brought into the Philippines by him and his alleged business associates on several previous occasions when they came to the Philippines, supposedly to be used for the purpose of investing in some unspecified or undetermined business ventures; that this money was kept in the Philippines and he precisely came to the Philippines to take the money out as he and his alleged business associates were afraid that the "attempted revolution" which occurred on July 6,1986 might spread. Such fantastic tale, although totally irrelevant to the matter of the criminal liability of the accused under the information, was swallowed by the respondent-judge "hook, line and sinker." It did not matter to the respondent that the foreign currency and foreign currency instruments found in the possession of the accused when he was apprehended at the airport-380 pieces in all-and the amounts of such foreign exchange did not correspond to the foreign currency declarations presented by the accused at the trial. It did not matter to the respondent that the accused by his own story admitted, in effect, that he was a carrier" of foreign currency for other people. The respondent closed his eyes to the fact that the very substantial amounts of foreign exchange found in the possession of the accused at the time of his apprehension consisted of personal checks of other people, as well as cash in various currency denominations (12 kinds of currency in all), which clearly belied the claim of the accused that they were part of the funds which he and his supposed associates had brought in and kept in the Philippines for the purpose of investing in some business ventures. The respondent ignored the fact that most of the CB Currency declarations presented by the defense at the trial were declarations belonging to other people which could not be utilized by the accused to justify his having the foreign exchange in his possession. Although contrary to ordinary human experience and behavior, the respondent judge chose to give credence to the fantastic tale of the accused that he and his alleged business associates had brought in from time to time and accumulated and kept in the Philippines foreign exchange (of very substantial amounts in cash and checks in various foreign currency denominations) for the purpose of investing in business even before they knew and had come to an agreement as to the specific business venture in which they were going to invest. These and other circ*mstances which make the story concocted by the accused so palpably unbelievable as to render the findings of the respondent judge obviously contrived

to favor the acquittal of the accused, thereby clearly negating his claim that he rendered the decision "in good faith." His actuations in this case amount to grave misconduct prejudicial to the interest of sound and fair administration of justice. He not only acquitted the accused Lo Chi Fai, but directed in his decision the release to the accused of at least the amount of US$3,000.00, allowed, according to respondent, under Central Bank Circular No. 960. This, in spite of the fact that forfeiture proceedings had already been instituted by the Bureau of Customs over the currency listed in the information, which according to the respondent should be respected since the Bureau of Customs "has the exclusive jurisdiction in the matter of seizure and forfeiture of the property involved in the alleged infringements of the aforesaid Central Bank Circular." In invoking the provisions of CB Circular No. 960 to justify the release of US$ 3,000.00 to the accused, the respondent judge again displayed gross incompetence and gross ignorance of the law. There is nothing in the said CB Circular which could be taken as authority for the trial court to release the said amount of U.S. Currency to the accused. According to the above-cited CB Circular, tourists may take out or send out from the Philippines foreign exchange in amounts not exceeding such amounts of foreign exchange brought in by them; for the purpose of establishing such amount, tourists or non-resident temporary visitors bringing with them more than US$3,000.00 or its equivalent in other foreign currencies must declare their foreign exchange at points of entries upon arrival in the Philippines. In other words, CB Circular No. 960 merely provides that for the purpose of establishing the amount of foreign currency brought in or out of the Philippines, a tourist upon arrival is required to declare any foreign exchange he is bringing in at the time of his arrival, if the same exceeds the amount of US$3,000.00 or its equivalent in other foreign currencies. There is nothing in said circular that would justify returning to him the amount of at least US$3,000.00, if he is caught attempting to bring out foreign exchange in excess of said amount without specific authority from the Central Bank. Accordingly, the Court finds the respondent Regional Trial Court Judge, Baltazar R. Dizon, guilty of gross incompetence, gross ignorance of the law and grave and serious misconduct affecting his integrity and efficiency, and consistent with the responsibility of this Court for the just and proper administration of justice and for the attainment of the objective of maintaining the people's faith in the judiciary (People vs. Valenzuela, 135 SCRA 712), it is hereby ordered that the Respondent Judge be DISMISSED from the service. All leave and retirement benefits and privileges to which he may be entitled are hereby forfeited with prejudice to his being reinstated in any branch of government service, including governmentowned and/or controlled agencies or corporations.

ARSENIA B. GARCIA, Petitioner, vs. HON. COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, Respondents DECISION QUISUMBING, J.: This petition seeks the review of the judgment of the Court of Appeals in CA-G.R. CR No. 245471that affirmed the conviction of petitioner by the Regional Trial Court 2of Alaminos City, Pangasinan, Branch 54, for violation of Section 27(b) of Republic Act No. 6646. 3 Based on the complaint-affidavit of Aquilino Q. Pimentel, Jr., who ran in the 1995 senatorial elections, an information dated March 30, 1998, was filed in the Regional Trial Court of Alaminos, charging Herminio R. Romero, Renato R. Viray, Rachel Palisoc and Francisca de Vera, and petitioner, with violation of Section 27(b). The information reads: That on or about May 11, 1995, which was within the canvassing period during the May 8, 1995 elections, in the Municipality of Alaminos, Province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Election Officer Arsenia B. Garcia, Municipal Treasurer Herminio R. Romero, Public School District Supervisor Renato R. Viray, Chairman, Vice-Chairman, and Member-Secretary, respectively, of the Municipal Board of Canvassers of Alaminos, Pangasinan, tabulators Rachel Palisoc and Francisca de Vera, conspiring with, confederating together and mutually helping each other, did, then and there, willfully, and unlawfully decrease[d] the votes received by senatorial candidate Aquilino Q. Pimentel, Jr. from six thousand nine hundred ninety-eight (6,998) votes, as clearly disclosed in the total number of votes in the one hundred fifty-nine (159) precincts of the Statement of Votes by Precincts of said municipality, with Serial Nos. 008417, 008418, 008419, 008420, 008421, 008422 and 008423 to one thousand nine hundred twenty-one (1,921) votes as reflected in the Statement of Votes by Precincts with Serial No. 008423 and Certificate of Canvass with Serial No. 436156 with a difference of five thousand seventyseven (5,077) votes.

This resolution is immediately executory. CONTRARY TO LAW.4 SO ORDERED. Teehankee, C.J., Yap, Fernan, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento Cortes, and Griño-Aquino, JJ., concur. Padilla, Narvasa, JJ., took no part. G.R. No. 157171

March 14, 2006

In a Decision dated September 11, 2000, the RTC acquitted all the accused for insufficiency of evidence, except petitioner who was convicted as follows: xxx 5. And finally, on the person of Arsenia B. Garcia, the Court pronounces her GUILTY beyond reasonable doubt, of the crime defined under Republic Act 6646, Section 27 (b) for decreasing the votes of Senator Pimentel in the total of 5,034 and in relation to BP Blg. 881, considering

that this finding is a violation of Election Offense, she is thus sentenced to suffer an imprisonment of SIX (6) YEARS as maximum, but applying the INDETERMINATE SENTENCE LAW, the minimum penalty is the next degree lower which is SIX (6) MONTHS; however, accused Arsenia B. Garcia is not entitled to probation; further, she is sentenced to suffer disqualification to hold public office and she is also deprived of her right of suffrage.

ON THE FOURTH GROUND, NAMELY, THAT THE PETITIONER WAS THE ONE WHO ENTERED THE REDUCED FIGURE OF 1,921 IN THE CERTIFICATE OF CANVASS (COC), Exh. "7", WHEN THE DUTY WAS THAT OF THE SECRETARY OF THE BOARD.

The bailbond posted by her is hereby ordered cancelled, and the Provincial Warden is ordered to commit her person to the Bureau of Correctional Institution for Women, at Metro Manila, until further orders from the court.

THE REDUCTION OF THE VOTES OF CANDIDATE PIMENTEL WAS CLEARLY NOT WILLFUL OR INTENTIONAL.7

No pronouncement as to costs.

Petitioner contends that (1) the Court of Appeals’ judgment is erroneous, based on speculations, surmises and conjectures, instead of substantial evidence; and (2) there was no motive on her part to reduce the votes of private complainant.

IV

IT IS SO ORDERED.5 Petitioner appealed before the Court of Appeals which affirmed with modification the RTC Decision, thus, WHEREFORE, foregoing considered, the appealed decision is hereby affirmed with modification, increasing the minimum penalty imposed by the trial court from six (6) months to one (1) year. SO ORDERED.6 The Court of Appeals likewise denied the motion for reconsideration. Hence, this appeal assigning the following as errors of the appellate court: I ON THE FIRST AND SECOND GROUNDS RELIED UPON BY THE RESPONDENT COURT, NAMELY, THAT IT COULD NOT HAVE BEEN SECRETARY VIRAY WHO DECREASED THE VOTES OF COMPLAINANT PIMENTEL SINCE HE MERELY RELIED ON WHAT THE PETITIONER DICTATED, AND THAT IT COULD NOT HAVE ALSO BEEN THE TABULATORS BECAUSE PETITIONER WAS THE ONE WHO READ THE ADDING [MACHINE] TAPE.

Respondent on the other hand contends that good faith is not a defense in the violation of an election law, which falls under the class of mala prohibita. The main issue is, Is a violation of Section 27(b) of Rep. Act No. 6646, classified under mala in se or mala prohibita? Could good faith and lack of criminal intent be valid defenses? Generally, mala in se felonies are defined and penalized in the Revised Penal Code. When the acts complained of are inherently immoral, they are deemed mala in se, even if they are punished by a special law.8Accordingly, criminal intent must be clearly established with the other elements of the crime; otherwise, no crime is committed. On the other hand, in crimes that are mala prohibita, the criminal acts are not inherently immoral but become punishable only because the law says they are forbidden. With these crimes, the sole issue is whether the law has been violated. 9Criminal intent is not necessary where the acts are prohibited for reasons of public policy.10 Section 27(b) of Republic Act No. 664611provides: SEC. 27. Election Offenses.- In addition to the prohibited acts and election offenses enumerated in Sections 261 and 262 of Batas Pambansa Blg. 881, as amended, the following shall be guilty of an election offense: xxx

II ON THE THIRD GROUND, NAMELY, THAT PETITIONER DID NOT PRODUCE THE TAPES DURING THE TRIAL BECAUSE IF PRODUCED, IT IS GOING TO BE ADVERSE TO HER.

(b) Any member of the board of election inspectors or board of canvassers who tampers, increases, or decreases the votes received by a candidate in any election or any member of the board who refuses, after proper verification and hearing, to credit the correct votes or deduct such tampered votes.

III

xxx

Clearly, the acts prohibited in Section 27(b) are mala in se.12For otherwise, even errors and mistakes committed due to overwork and fatigue would be punishable. Given the volume of votes to be counted and canvassed within a limited amount of time, errors and miscalculations are bound to happen. And it could not be the intent of the law to punish unintentional election canvass errors. However, intentionally increasing or decreasing the number of votes received by a candidate is inherently immoral, since it is done with malice and intent to injure another. Criminal intent is presumed to exist on the part of the person who executes an act which the law punishes, unless the contrary shall appear.13Thus, whoever invokes good faith as a defense has the burden of proving its existence. Records show that the canvassing of votes on May 11, 1995 before the Board of Canvassers of the Municipality of Alaminos, Pangasinan was conducted as follows: 1. After the votes in the 159 precincts of the municipality of Alaminos were tallied, the results thereof were sealed and forwarded to the Municipal Board of Canvassers for canvassing; 2. The number of votes received by each candidate in each precinct was then recorded in the Statement of Votes with appellant, in her capacity as Chairman, reading the figures appearing in the results from the precincts and accused Viray, in his capacity as secretary of the Board, entering the number in the Statements of Votes as read by the appellant. Six Statements of Votes were filled up to reflect the votes received by each candidate in the 159 precincts of the Municipality of Alaminos, Pangasinan. 3. After the number of votes received by each candidate for each precincts were entered by accused Viray in the Statements of Votes, these votes were added by the accused Palisoc and de Vera with the use of electrical adding machines. 4. After the tabulation by accused Palisoc and de Vera, the corresponding machine tapes were handed to appellant who reads the subtotal of votes received by each candidate in the precincts listed in each Statement of Votes. Accused Viray [then] records the subtotal in the proper column in the Statement of Votes. 5. After the subtotals had been entered by accused Viray, tabulators accused Palisoc and de Vera added all the subtotals appearing in all Statement of Votes. 6. After the computation, the corresponding machine tape on which the grand total was reflected was handed to appellant who reads the same and accused Viray enters the figure read by appellant in the column for grand total in the Statement of Votes. 14

Neither the correctness of the number of votes entered in the Statement of Votes (SOV) for each precinct, nor of the number of votes entered as subtotals of votes received in the precincts listed in SOV Nos. 008417 to 008422 was raised as an issue. At first glance, however, there is a noticeable discrepancy in the addition of the subtotals to arrive at the grand total of votes received by each candidate for all 159 precincts in SOV No. 008423.15The grand total of the votes for private complainant, Senator Aquilino Pimentel, was only 1,921 instead of 6,921, or 5,000 votes less than the number of votes private complainant actually received. This error is also evident in the Certificate of Canvass (COC) No. 436156 signed by petitioner, Viray and Romero.16 During trial of this case, petitioner admitted that she was indeed the one who announced the figure of 1,921, which was subsequently entered by then accused Viray in his capacity as secretary of the board.17Petitioner likewise admitted that she was the one who prepared the COC (Exhibit A-7), though it was not her duty. To our mind, preparing the COC even if it was not her task, manifests an intention to perpetuate the erroneous entry in the COC. 18 Neither can this Court accept petitioner’s explanation that the Board of Canvassers had no idea how the SOV (Exhibit "6") and the COC reflected that private complainant had only 1,921 votes instead of 6,921 votes. As chairman of the Municipal Board of Canvassers, petitioner’s concern was to assure accurate, correct and authentic entry of the votes. Her failure to exercise maximum efficiency and fidelity to her trust deserves not only censure but also the concomitant sanctions as a matter of criminal responsibility pursuant to the dictates of the law.19 The fact that the number of votes deducted from the actual votes received by private complainant, Sen. Aquilino Pimentel, Jr. was not added to any senatorial candidate does not relieve petitioner of liability under Section 27(b) of Rep. Act No. 6646. The mere decreasing of the votes received by a candidate in an election is already punishable under the said provision.20 At this point, we see no valid reason to disturb the factual conclusions of the appellate court. The Court has consistently held that factual findings of the trial court, as well as of the Court of Appeals are final and conclusive and may not be reviewed on appeal, particularly where the findings of both the trial court and the appellate court on the matter coincide. 21 Public policy dictates that extraordinary diligence should be exercised by the members of the board of canvassers in canvassing the results of the elections. Any error on their part would result in the disenfranchisem*nt of the voters. The Certificate of Canvass for senatorial candidates and its supporting statements of votes prepared by the municipal board of canvassers are sensitive election documents whose entries must be thoroughly scrutinized. 22 In our review, the votes in the SOV should total 6,998.23

As between the grand total of votes alleged to have been received by private complainant of 6,921 votes and statement of his actual votes received of 6,998 is a difference of 77 votes. The discrepancy may be validly attributed to mistake or error due to fatigue. However, a decrease of 5,000 votes as reflected in the Statement of Votes and Certificate of Canvass is substantial, it cannot be allowed to remain on record unchallenged, especially when the error results from the mere transfer of totals from one document to another. WHEREFORE, the instant petition is DENIED. The assailed Decision of the Court of Appeals sustaining petitioner’s conviction but increasing the minimum penalty in her sentence to one year instead of six months isAFFIRMED. SO ORDERED.

G.R. No. 142773

January 28, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARLON DELIM, LEON DELIM, MANUEL DELIM alias "BONG" (At Large), ROBERT DELIM (At Large), and RONALD DELIM alias "BONG", accused-appellants. CALLEJO, SR., J.: Before the Court on automatic review is the Decision, 1 dated January 14, 2000, of the Regional Trial Court, Branch 46, Urdaneta City, finding accused appellants Marlon Delim, Leon Delim and Ronald Delim guilty beyond reasonable doubt of the crime of murder and sentencing them to suffer the supreme penalty of death. The court also ordered accusedappellants to pay, jointly and severally, the heirs of the victim the sums of P75,000.00 as moral damages and P25,000.00 as exemplary damages. Accused-appellants Marlon, Ronald and Leon, together with Manuel alias "Bong" and Robert, all surnamed Delim, were indicted for murder under an Information dated May 4, 1999 which reads: "That on or about January 23, 1999, in the evening at Brgy. Bila, Sison, Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused, armed with short firearms barged-in and entered the house of Modesto Delim and once inside with intent to kill, treachery, evident premedidation (sic), conspiring with one another, did then and there, wilfully, unlawfully and feloniously grab, hold, hogtie, gag with a piece of cloth, brought out and abduct Modesto Delim, accused Leon Delim and Manuel Delim stayed in the house guarded and prevented the wife and son of Modesto Delim from helping the latter, thereafter with abuse of superior strength stabbed and killed said Modesto Delim, to the damage and prejudice of his heirs. CONTRARY to Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659."2 Only accused-appellants Marlon (Bongbong), Leon and Ronald, all surnamed Delim, were apprehended. Accused Robert and Manuel remain at-large. At their arraignment, Marlon, Ronald and Leon, with the assistance of their counsel, pleaded not guilty to the charge. At the trial, the prosecution established the following relevant facts 3 — Marlon, Manuel and Robert Delim are brothers. They are the uncles of Leon Delim and Ronald Delim. Modesto Manalo Bantas, the victim, was an Igorot and a carpenter. He took the surname Delim after he was "adopted" by the father of Marlon, Manuel and Robert. However, Modesto's wife, Rita, an illiterate, and their 16-year old son, Randy, continued using Manalo Bantas as their surname. Modesto, Rita and Randy considered Marlon, Robert, Ronald,

Manuel and Leon as their relatives. Manuel and Leon were the neighbors of Modesto. Marlon, Robert and Ronald used to visit Modesto and his family. Modesto and his family and the Delim kins resided in Barangay Bila, Sison, Pangasinan. On January 23, 1999, at around 6:30 in the evening, Modesto, Rita and Randy were preparing to have their supper in their home. Joining them were Modesto and Rita's two young grandchildren, aged 5 and 7 years old. They were about to eat their dinner when Marlon, Robert and Ronald suddenly barged into the house and closed the door. Each of the three intruders was armed with a short handgun. Marlon poked his gun at Modesto while Robert and Ronald simultaneously grabbed and hog-tied the victim. A piece of cloth was placed in the mouth of Modesto.4 Marlon, Robert and Ronald herded Modesto out of the house on their way towards the direction of Paldit, Sison, Pangasinan. Rita and Randy were warned by the intruders not to leave the house. Leon and Manuel, who were also armed with short handguns, stayed put by the door to the house of Modesto and ordered Rita and Randy to stay where they were. Leon and Manuel left the house of Modesto only at around 7:00 a.m. the following day, January 24, 1999. As soon as Leon and Manuel had left, Randy rushed to the house of his uncle, Darwin Niño, at Sitio Labayog, informed the latter of the incident the night before and sought his help for the retrieval of Modesto. Randy was advised to report the matter to the police authorities. However, Randy opted to first look for his father. He and his other relatives scoured the vicinity to locate Modesto to no avail. They proceeded to Paldit, Sison, Pangasinan, around 200 meters away from Modesto's house, to locate Modesto but failed to find him there. On January 25, 1999, Randy and his relatives returned to the housing project in Paldit, Sison, Pangasinan to locate Modesto but again failed to find him there. On January 26, 1999, Randy reported the incident to the police authorities. At around 3:00 in the afternoon of January 27, 1999, Randy, in the company of his relatives, Nida Pucal, Pepito Pucal, Bernard Osias and Daniel Delim, returned to the housing project in Paldit, Sison, Pangasinan and this time they found Modesto under thick bushes in a grassy area. He was already dead. The cadaver was bloated and in the state of decomposition. It exuded a bad odor. Tiny white worms swarmed over and feasted on the cadaver. Randy and his relatives immediately rushed to the police station to report the incident and to seek assistance. When informed of the discovery of Modesto's cadaver, the local chief of police and SPO2 Jovencio Fajarito and other policemen rushed to the scene and saw the cadaver under the thick bushes. Pictures were taken of the cadaver.5 Rita and Randy divulged to the police investigators the names and addresses of Marlon, Ronald, Robert, Leon and Manuel, whom they claimed were responsible for the death of Modesto. Rita and Randy were at a loss why the five malefactors seized Modesto and killed him. Rita and Randy gave their respective sworn statements to the police investigators. 6 Police authorities proceeded to arrest Marlon, Ronald, Robert, Manuel and Leon but failed to find them in their respective houses. The police officers scoured the mountainous parts of Barangays Immalog and Labayog to no avail. The cadaver was autopsied by Dr. Maria Fe L. De Guzman who prepared her autopsy report, which reads:

"SIGNIFICANT EXTERNAL FINDINGS:



1 x 1 cm. stabbed wound, lateral aspect M/3rd left arm



Body



both upper extremities are flexed



1 x 1 cm. stabbed wound, lateral aspect D/3rd, left arm



both lower extremities are flexed



1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm



(+) body decomposition



1 x 1 cm. stabbed wound medial aspect D/3rd, left arm



(+) worms coming out from injuries



#3; 1 x 1 cm. in line with each other, stabbed would, medial aspect, M/3rd, left forearm



10 x 10 ml. GSW, pre-auricular area, right



1 x 1 cm. stabbed wound, medial aspect, D/3rd, left forearm



20 x 20 ml. GSW, mandibular areas, right



10 x 6 cms. Inflamed scrotum



10 x 10 ml. GSW, maxillary area, right



penis inflamed



10 x 10 ml. GSW, below middle nose, directed upward (POE)

SIGNIFICANT INTERNAL FINDINGS:



30 x 40 ml. GSW, mid parieto — occipital area (POEx)





2 x 1 cms. lacerated wound, right cheek

CAUSE OF DEATH:



1 x 1 cm. stabbed wound, axillary area, left



no significant internal findings

GUN SHOT WOUND, HEAD."7

The stab wounds sustained by Modesto on his left arm and forearm were defensive wounds. The police investigators were able to confirm that Marlon, Ronald, Robert, Leon and Manuel had no licenses for their firearms.8

The Branch Clerk of Court is hereby ordered to transmit the entire records of this case to the Honorable Supreme Court, and to prepare the mittimus fifteen (15) days from date of promulgation.

Records of the PNP Criminal Investigation and Detection Group in Baguio City show that Marlon had pending cases for robbery in the Regional Trial Court of Baguio City in Criminal Case No. 16193-R, and for robbery in band in Criminal Cases Nos. 9801 and 9802 pending with the Regional Trial Court in Urdaneta, Pangasinan. 9

The Jail Warden, Bureau of Jail Management and Penology, Urdaneta District Jail, Urdaneta City is hereby ordered to transmit the persons of Marlon, Ronald and Leon, all surnamed Delim to the New Bilibid Prisons, Muntinlupa City, fifteen days from receipt of this decision.

To exculpate themselves, Marlon, Ronald and Leon interposed denial and alibi. 10

SO ORDERED."12

Ronald claimed that on January 23, 1999, he, his wife and children, his mother, his brothers and sisters were in their house at Asan Norte, Sison, Pangasinan about two kilometers away from Modesto's house. He denied having been in the house of Modesto on January 23, 1999 and of abducting and killing him. He theorized that Rita and Randy falsely implicated him upon the coaching of Melchor Javier who allegedly had a quarrel with him concerning politics. Leon for his part averred that on January 23, 1999, he was in the house of his sister, Hermelita Estabillo at No. 55-B, Salet, Laoag City, Ilocos Norte where he had been living since 1997 after leaving Asan Norte, Sison, Pangasinan. Since then, he had been working for Sally Asuncion at a hollow-block factory in that city where he was a stay-in worker. Sally Asuncion corroborated Leon's alibi. She testified that Leon Delim never went home to his hometown in Pangasinan during his employment. His sister, Hermelita Estabillo, likewise averred that on January 23, 1999, his brother was at her house to give her his laundry. She claimed that the distance between Laoag City and Bila, Sison, Pangasinan can be traversed in six hours by bus. Leon presented a Barangay Certificate to prove that he was a resident of Laoag City from January 1998 up to February 1999.11 Marlon asserted that he was on vacation in Dumaguete City from December 26, 1998 up to January 29, 1999. During his stay there, he lived with his sister, Francisca Delim. Upon his return to Manila on January 29, 1999, he immediately proceeded to Baguio to visit his cousin. Marlon denied setting foot in Bila, Sison, Pangasinan after his sojourn in Dumaguete City. The trial court rendered judgment finding accused-appellants guilty of murder. The dispositive portion of the trial court's decision reads: "WHEREFORE, JUDGMENT OF CONVICTION beyond reasonable doubt is hereby rendered against Ronald Delim, Marlon Delim and Leon Delim (for) the commission of Aggravated Murder, an offense defined and penalized under Article 248 of the Revised Penal Code, as amended by R.A. 7659 and the Court sentences Marlon Delim, Ronald Delim and Leon Delim to suffer the penalty of DEATH, to be implemented in the manner as provided for by law; the Court likewise orders the accused, jointly and solidarily, to indemnify the heirs of Modesto Delim the sum of P75,000.00 as moral damages, plus the amount of P25,000.00 as exemplary damages.

The trial court appreciated treachery as a qualifying circ*mstance and of taking advantage of superior strength, nighttime and use of unlicensed firearms as separate of aggravating circ*mstances in the commission of the crime. Marlon, Ronald and Leon, in their appeal brief, assail the decision alleging that: "I THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER. II THE COURT A QUO GRAVELY ERRED IN FINDING THAT CONSPIRACY EXISTED IN THE CASE AT BAR. III THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND CREDENCE TO ACCUSED-APPELLANTS' DEFENSE OF ALIBI."13 Before resolving the merits of the case at bar, we first resolve the matter of whether the crime charged in the Information is murder or kidnapping. During the deliberation, some distinguished members of the Court opined that under the Information, Marlon, Ronald and Leon are charged with kidnapping under Article 267 of the Revised Penal Code and not with murder in its aggravated form in light of the allegation therein that the accused " willfully, unlawfully and feloniously grab(bed), h(e)ld, hog-tie(d), gag(ged), with a piece of cloth, brought out and abduct(ed) Modesto Delim (while) Leon Delim and Manuel Delim stayed in the house (and) guarded and prevented the wife and son of Modesto Delim from helping the latter." They submit that the foregoing allegation constitutes the act of deprivation of liberty of the victim, the gravamen in the crime of kidnapping. They contend that the fact that the Information went further to charge accused with the killing of the victim should be of no moment, the real nature of the criminal charge being determined not from the caption or the preamble of the Information nor from the specification of the law alleged to have been violated — these being conclusions of law — but by the actual recital of facts in the complaint or information. They further submit that since the prosecution failed to prove motive on the part of Marlon, Ronald and Leon to kill Modesto, they are not criminally liable for the death of the victim but only for kidnapping the victim.

It bears stressing that in determining what crime is charged in an information, the material inculpatory facts recited therein describing the crime charged in relation to the penal law violated are controlling. Where the specific intent of the malefactor is determinative of the crime charged such specific intent must be alleged in the information and proved by the prosecution. A decade ago, this Court held in People v. Isabelo Puno, et al.,14 that for kidnapping to exist, there must be indubitable proof that the actual specific intent of the malefactor is to deprive the offended party of his liberty and not where such restraint of his freedom of action is merely an incident in the commission of another offense primarily intended by the malefactor. This Court further held: "x x x Hence, as early as United States vs. Ancheta, and consistently reiterated thereafter, it has been held that the detention and/or forcible taking away of the victims by the accused, even for an appreciable period of time but for the primary and ultimate purpose of killing them, holds the offenders liable for taking their lives or such other offenses they committed in relation thereto, but the incidental deprivation of the victims' liberty does not constitute kidnapping or serious illegal detention."15 If the primary and ultimate purpose of the accused is to kill the victim, the incidental deprivation of the victim's liberty does not constitute the felony of kidnapping but is merely a preparatory act to the killing, and hence, is merged into, or absorbed by, the killing of the victim.16 The crime committed would either be homicide or murder. What is primordial then is the specific intent of the malefactors as disclosed in the information or criminal complaint that is determinative of what crime the accused is charged with — that of murder or kidnapping. Philippine and American penal laws have a common thread on the concept of specific intent as an essential element of specific intent crimes. Specific intent is used to describe a state of mind which exists where circ*mstances indicate that an offender actively desired certain criminal consequences or objectively desired a specific result to follow his act or failure to act.17 Specific intent involves a state of the mind. It is the particular purpose or specific intention in doing the prohibited act. Specific intent must be alleged in the Information and proved by the state in a prosecution for a crime requiring specific intent. 18 Kidnapping and murder are specific intent crimes. Specific intent may be proved by direct evidence or by circ*mstantial evidence. It may be inferred from the circ*mstances of the actions of the accused as established by the evidence on record.19 Specific intent is not synonymous with motive. Motive generally is referred to as the reason which prompts the accused to engage in a particular criminal activity. Motive is not an essential element of a crime and hence the prosecution need not prove the same. As a general rule, proof of motive for the commission of the offense charged does not show guilt and absence of proof of such motive does not establish the innocence of accused for the crime charged such as murder.20 The history of crimes shows that murders are generally committed from motives comparatively trivial. 21 Crime is rarely rational. In murder, the specific intent is to kill the victim. In kidnapping, the specific intent is to deprive the victim of his/her liberty. If there is no motive for the crime, the accused cannot be convicted for kidnapping. 22 In

kidnapping for ransom, the motive is ransom. Where accused kills the victim to avenge the death of a loved one, the motive is revenge. In this case, it is evident on the face of the Information that the specific intent of the malefactors in barging into the house of Modesto was to kill him and that he was seized precisely to kill him with the attendant modifying circ*mstances. The act of the malefactors of abducting Modesto was merely incidental to their primary purpose of killing him. Moreover, there is no specific allegation in the information that the primary intent of the malefactors was to deprive Modesto of his freedom or liberty and that killing him was merely incidental to kidnapping.23Irrefragably then, the crime charged in the Information is Murder under Article 248 of the Revised Penal Code and not Kidnapping under Article 268 thereof. The threshold issue that now comes to fore is whether or not the prosecution mustered the requisite quantum of evidence to prove that Marlon, Ronald and Leon are guilty of murder. In criminal prosecutions, the prosecution is burdened to prove the guilt of the accused beyond cavil of doubt. The prosecution must rely on the strength of its own evidence and not on the weakness of the evidence of the accused. The proof against the accused must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. 24 In the case at bar, the prosecution was burdened to prove the corpus delicti which consists of two things: first, the criminal act and second, defendant's agency in the commission of the act.25 Wharton says that corpus delictiincludes two things: first, the objective; second, the subjective element of crimes.26 In homicide (by dolo) and in murder cases, the prosecution is burdened to prove: (a) the death of the party alleged to be dead; (b) that the death was produced by the criminal act of some other than the deceased and was not the result of accident, natural cause or suicide; and (c) that defendant committed the criminal act or was in some way criminally responsible for the act which produced the death. 27 To prove the felony of homicide or murder, there must be incontrovertible evidence, direct or circ*mstantial, that the victim was deliberately killed (with malice); in other words, that there was intent to kill. Such evidence may consist inter alia in the use of weapons by the malefactors, the nature, location and number of wounds sustained by the victim and the words uttered by the malefactors before, at the time or immediately after the killing of the victim. If the victim dies because of a deliberate act of the malefactor, intent to kill is conclusively presumed. The prosecution is burdened to prove corpus delicti beyond reasonable doubt either by direct evidence or by circ*mstantial or presumptive evidence. 28 In the case at bar, the prosecution adduced the requisite quantum of proof of corpus delicti. Modesto sustained five (5) gunshot wounds. He also sustained seven (7) stab wounds,29 defensive in nature. The use by the malefactors of deadly weapons, more specifically handguns and knives, in the killing of the victim as well as the nature, number and location of the wounds sustained by said victim are evidence of the intent by the malefactors to kill the victim with all the consequences flowing therefrom. 30 As the State Supreme Court of Wisconsin held inCupps v. State:31 "This rule, that every person is presumed to contemplate the ordinary and natural consequences of his own acts, is applied even in capital cases. Because men generally act deliberately and by the determination of their own will, and not from

the impulse of blind passion, the law presumes that every man always thus acts, until the contrary appears. Therefore, when one man is found to have killed another, if the circ*mstances of the homicide do not of themselves show that it was not intended, but was accidental, it is presumed that the death of the deceased was designed by the slayer; and the burden of proof is on him to show that it was otherwise." The prosecution did not present direct evidence to prove the authors of the killing of Modesto. It relied on circ*mstantial evidence to discharge its burden of proving the guilt of accusedappellants of murder. Circ*mstantial evidence consists of proof of collateral facts and circ*mstances from which the existence of the main fact may be inferred according to reason and common experience.32 What was once a rule of account respectability is now entombed in Section 4, Rule 133 of the Revised Rules of Evidence which states that circ*mstantial evidence, sometimes referred to as indirect or presumptive evidence, is sufficient as anchor for a judgment of conviction if the following requisites concur: "x x x if (a) there is more than one circ*mstance; (b) the facts from which the inferences are derived have been established; and (c) the combination of all the circ*mstances is such as to warrant a finding of guilt beyond reasonable doubt." 33 The prosecution is burdened to prove the essential events which constitute a compact mass of circ*mstantial evidence, and the proof of each being confirmed by the proof of the other, and all without exception leading by mutual support to but one conclusion: the guilt of accused for the offense charged.34 For circ*mstantial evidence to be sufficient to support a conviction, all the circ*mstances must be consistent with each other, consistent with the hypothesis that accused is guilty and at the same time inconsistent with the hypothesis that he is innocent, and with every other rational hypothesis except that of guilt. 35 If the prosecution adduced the requisite circ*mstantial evidence to prove the guilt of accused beyond reasonable doubt, the burden of evidence shifts to the accused to controvert the evidence of the prosecution. In the present case, the prosecution mustered the requisite quantum of circ*mstantial evidence to prove that accused-appellants, in confabulation with their co-accused, conspired to kill and did kill Modesto: 1. Randy Bantas testified that Marlon and Ronald barged into the house of Modesto, each armed with a handgun. Marlon poked his gun on Modesto while Ronald hog-tied Modesto. They then seized Modesto and herded him out of his house:

A

When we were about to start to eat three armed men entered our house.

Q

Do you know these three armed men who entered your house?

A

Yes, sir.

Q

Who are they, name them one by one?

A

Marlon Delim, Robert Delim and Ronald Delim.

Q

Are these three persons inside the courtroom now?

A

Two of them, sir.

Q

Who are these two who are inside the courtroom?

A

Marlon and Ronald, sir.

Q

Will you please stand up and point to them?

A (Witness is pointing to a person seated on the bench inside the courtroom, who, when his name was asked answered Marlon Delim. Likewise, witness is pointing unto a person seated on the bench inside the courtroom, who, when his name was asked he answered Ronald Delim). Q You said that these two armed persons entered your house, what kind of arm were they carrying at that time? A

Short handgun, sir.

Q When these three armed persons whom you have mentioned, armed with short firearms, what did they do then when they entered your house? A

They took my father, sir.

Q

Who took your father?

A

Marlon Delim, Robert Delim and Ronald Delim, sir.

Q

When these three persons took your father, what did you do then?

A

None, sir.

"FISCAL TOMBOC: What were you doing then at that time in your house? A

We were eating, sir.

Q

You said we, who were your companions eating then at that time?

A

My father, my mother and the two children and myself, sir.

Q While taking your supper that time, do you recall if there was anything unusual that happened at that time?

COURT: How did they get your father?

A

They poked a gun and brought him outside the house, sir.

ATTY. FLORENDO: We just make of record that the witness is taking her time to answer, Your Honor.

FISCAL TOMBOC: Who poked a gun? A

Marlon Delim, sir.

Q

Again, Mr. Witness, will you point to the person who poked a gun?

A

(Witness is pointing to Malon (sic) Delim, one of the accused).

Q

After bringing your father out from your house, what transpired next?

A

Manuel Delim and Leon Delim said, 'Stay in your house,' and guarded us.

COURT: You said your father was taken out, who? A

Marlon, Robert and Ronald, sir.

FISCAL TOMBOC: Where did these three persons bring your father? A

I do not know where they brought my father, sir.

COURT: Was your father taken inside your house or outside? A

Inside our house, sir.

Q

You said that Marlon poked a gun at your father, is that correct?

A

Yes, sir.

PROSECUTOR TOMBOC: You said that Marlon Delim, Robert Delim and Bongbong entered your house, are these three (3) persons who entered your house in Court now? A

They are here except the other one, sir.

Q

Will you please step down and point to the persons who entered your house?

A Witness is pointing to Marlon Delim, Robert Delim is not in Court and Bongbong is Ronald Delim. Q

After these three (3) armed men entered your house, what happened then?

A

My husband was brought out, sir.

Q

What is the name of your husband?

A

Modesto Delim, sir."37

2. Randy said that when Marlon and Ronald barged into their house, Leon, armed with a handgun, acted as a lookout when he stood guard by the door of the house of Modesto and remained thereat until 7:00 a.m. of the next day: "FISCAL TOMBOC: When your father was pulled out from your house by these three persons, what did you and your mother do while these three persons were taking out of your house? A

Q What did Ronald and Robert do while Marlon was poking his gun to your father? A

Ronald and Robert were the ones who pulled my father out, sir."36

Randy's account of the incident was corroborated by his mother, Rita, who testified: "PROSECUTION TOMBOC: You said during the last hearing that on January 23, 1999 at around 6:30 in the evening while preparing for your supper three (3) armed men entered inside your house, who were these three (3) men who entered your house? A

I know, Marlon, Bongbong and Robert, sir.

We did not do anything because Manuel and Leon Delim guarded us.

COURT: Where, in your house? A

Yes, sir.

FISCAL TOMBOC: From that very time that your father was pulled out by these three persons Marlon, Robert and Ronal (sic), where were Leon and Manuel then? A

They were at the door, sir.

COURT: Why do you know that they were guarding you? A

Because they were at the door, sir.

FISCAL TOMBOC: What was their appearance that time when these two persons were guarding you, these Leon and Manuel? A

They were armed, sir.

Q

What do you mean by armed?

A

They have gun, sir.

Q

What kind of firearm?

A

Short firearm, sir.

Q

By the way, where are these Leon and Manuel now, if you know?

A

Leon is here, sir.

Q

About Manuel?

A

None, sir.

Q

Will you please stand up and point at Leon, Mr. Witness?

A

Yes, sir.

Q

Who?

A

My Aunt, sir.

Q

What is the name of your Aunt?

A

Nida Pucal, sir.

Q

Who else?

A

Pepito Pucal, Bernard Osias and Daniel Delim, sir.

COURT: When you found your father, what was his condition? A

He was dead, sir.

COURT: Go ahead.

A (Witness pointed to a person seated on the bench inside the courtroom, who when his name was asked, answered, Leon Delim)."38 3. Rita and Randy were ordered by Leon not to leave the house as Ronald and Marlon left the house with Modesto in tow. Rita and Randy were detained in their house up to 7:00 a.m. of January 24, 1999 to prevent them from seeking help from their relatives and police authorities. 4. Randy likewise testified that on January 27, 1999, at about 3:00 p.m., the cadaver of Modesto was found under the thick bushes in a grassy area in the housing project located about 200 meters away from the house of Modesto. The cadaver exuded bad odor and was already in the state of decomposition: "Q A

So what did you do then on January 27, where did you look for your father? The same place and at 3:00 o'clock P.M., we were able to find my father.

COURT: Where? A

FISCAL TOMBOC: You said that he was already dead, what was his appearance then when you saw him dead? A

He has bad odor, sir, in the state of decompsition (sic)."39

The testimony of Randy was corroborated by Dr. de Guzman who testified that the cadaver of Modesto was in a state of decomposition, with tiny white worms crawling from his wounds, and that his penis and scrotum were inflamed. The victim sustained five gunshot wounds and defensive wounds on the left arm and forearm: "PROS. TOMBOC: Q

Will you please tell the Honorable Court your findings, Doctora?

WITNESS: A First finding: Upon seeing the cadaver, this is the position of the body, both upper extremities are flexed and both lower extremities are flexed (Nakakukot). Q How many days had already elapsed when you autopsied the cadaver of the victim, Doctora?

At the housing project at Paldit, Sison, Pangasinan, sir.

FISCAL TOMBOC: Do you have companions at that time when you were able to look for your father on January 27, 1999 at 3:00 o'clock P.M.?

A

Four (4) days upon the recovery of the body, sir.

Q

And what was your findings Doctora?

A The body was already under the state of decomposition, sir, with foul odor and there were so many worms coming out from the injuries, there were tiny white worms, sir. Q

What else did you observe Doctora?

A Upon seeing the cadaver I asked the relative to refer it to the NBI sir. Actually the victim was an igorot (sic) and they have tradition that they will bury immediately. Whether they like it or not I should do it, sir. Q

What else Doctora?

A

And the penis was inflammed (sic), the scrotum was also inflammed (sic), sir.

And for the head injuries there was 10 x 10 ml. GSW pre-auricular area, right; there was also 20 ml x 20 ml. GSW, mandibular area, right; I cannot also determine the exit. Q

So there were two (2) gunshot wounds (GSW) Doctora?

A

Yes sir.

And there was also 10 x 10 ml. GSW, maxillary area, right; there was also 10 x 10 ml. GSW, below middle nose, directed upward (POE); and there was also 30 x 40 ml. GSW, mid parieto-occipital area (POEx). Q

How many all in all are the gunshot wound?

A

Five (5) sir. And also there was 2 x 1 cms. Lacerated wound, right cheek; 1 x 1 cm. stabbed wound, axillary area, left; 1 x 1 cm. stabbed wound, lateral aspect M/3rd, left arm; 1 x 1 cm. stabbed wound lateral aspect D/3rd, left arm; 1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm; 1 x 1 cm. stabbed wound, medial aspect D/3rd, left arm; and #3; 1 x 1 cm. in line with each other, stabbed wound, medial aspect, M/3rd, left forearm.

The state of decomposition of the cadaver, with tiny white worms swarming and feasting on it and the distention of his scrotum and penis are evidence that the cadaver was in the stage of putrefaction and that the victim had been dead for a period ranging from three to six days.41 Admittedly, there are variant factors determinative of the exact death of the victim. An equally persuasive authority states:

"Chronological Sequence of Putrefactive Changes Occurring in Tropical Region:

Time Since Death

Condition of the Body

48 hours

Ova of flies seen. Trunk bloated. Face discolored and swollen. present. Moving maggots seen

72 hours

Whole body grossly swollen and disfigured. Hair and nails loose. Tissu and discolored."42

The lapse of two or three to four days from the seizure of the victim in the evening of January 23, 1999 to the discovery of his cadaver which was already in the state of putrefaction in the afternoon of January 27, 1999, about 200 meters away from his house, is consistent with and confirmatory of the contention of the prosecution that the victim was killed precisely by the very malefactors who seized him on January 23, 1999. 5. When police authorities went to the residences of all the malefactors, the latter had flown the coop and were nowhere to be found: "COURT: In connection with this case, you investigated the wife and son of Modesto Delim? A

Yes, sir.

Q

How many stabbed wound are there Doctora?

A

There were seven (7) stabbed wounds, sir.

Q

Those stabbed wounds were defensive wounds, Doctora?

A Yes, sir, she elaborated that the suspects were their neighbors, Marlon Delim and his brothers, sir.

A

Yes sir."40

Q

What are the names of the brothers?

A

Manuel Delim, Leon Delim I cannot remember the others, sir.

Q In the course of the investigation did you come to know who were the suspects?

Q By reason of that information were you able to apprehend any of them for investigation?

A

They are my neighbors, sir.

A

No, sir.

Q How about Marlon, Robert and Bongbong do you know them before January 23, 1999?

Q

Why?

A

I know them, sir.

Q

Why do you know them?

A

They used to go to our house, sir.

A Because when we were dispatched by the Chief of Police no Delim brothers could be found, they all left the place, sir. Q

In what place did you look for the brothers Delim?

A

Within the vicinity, sir.

Q I noticed that Marlon, Bongbong, Robert, Manuel and Leon are all Delims and your husband's name is Modesto Delim are they related with each other?

Q

In what place?

A

A Brgy. Bila and the place where the crime was committed in Brgy. Bila and the place where the cadaver was found in Paldit, sir. Q

Where did you look for the Delim brothers?

A

Nearby barangays, Immalog, sir.

Q

Wherelse (sic)?

A

Labayog, Sison, sir.

Q

Wherelse?

A

In mountainous part of Immalog, part of Tuba Benguet, sir.

Q

What was the result?

A

Negative result, sir."43

6. Leon was the neighbor of Modesto and Rita while Marlon and Ronald used to go to the house of Modesto and Rita: "COURT: These Leon and Manuel Delim are they known to you prior to that day, January 23, 1999? A

Yes, sir, I know them.

Q

Why do you know Manuel and Leon prior to January 23, 1999?

Yes, sir."44

The sudden disappearance of Marlon, Ronald and Leon from their houses in Barangay Bila, Sison is strong circ*mstantial evidence of their guilt for the death of Modesto. Although flight after the commission of an offense does not create a legal presumption of guilt, nevertheless, the same is admissible in evidence against them and if not satisfactorily explained in a manner consistent with their innocence, will tend to show that they, in fact, killed Modesto. 45 It is true that the prosecution failed to prove motive on the part of the malefactors to abduct and kill Modesto. Indeed, Randy and Rita testified that they were not aware of any misunderstanding or grudge between Modesto on the one hand and Marlon, Ronald and Leon and their co-accused on the other before the incident, or any motivation on the part of the three malefactors to cause harm to Modesto. Nonetheless, it cannot thereby be concluded that a person or persons other than Marlon, Ronald and Leon were criminally responsible for the death of the victim. It is a matter of judicial notice that nowadays persons have killed or committed serious crimes for no reason at all. 46 In this case, the inscrutable facts are that Marlon and Ronald, each of whom was armed with a handgun, forcibly took Modesto from his house at the gunpoint, hog-tied, put a piece of cloth in his mouth and after Ronald and Marlon had left the house with Modesto in tow, Rita heard three gunshots or so and the cadaver of Modesto was found concealed under the bushes and already in a state of putrefaction in the afternoon of January 27, 1999. Modesto sustained several gunshot wounds and died because of a gunshot wound on the head. The criminal acts and the connection of Marlon, Ronald and Leon with said acts having been proved by the prosecution beyond reasonable doubt, the act itself furnishes the evidence, that to its perpetration there was some causes or influences moving the mind.47 The remarkable tapestry intricately woven by the prosecution should not be trashed simply because the malefactors had no motive to kill Modesto. Ranged against the evidence of the prosecution, the burden of evidence shifted on Marlon, Ronald and Leon to rebut the same and explain what happened to the victim after taking him from his house in the evening of January 23, 1999. They may have freed the victim shortly after taking him, or the victim may have been able to escape and that thereafter a person or some other persons may have killed him. However, Marlon, Ronald and Leon failed to give any explanation. Instead, they merely denied having seized and killed the victim and interposed alibi as their defense.

Leon is equally guilty for the death of Modesto because the evidence on record shows that he conspired with accused-appellants Marlon and Ronald and accused Robert and Manuel in killing the victim. There is conspiracy when two or more persons agree to commit a felony and decide to commit it.48 Conspiracy must be proven with the same quantum of evidence as the felony itself, more specifically by proof beyond reasonable doubt. Conspiracy is not presumed. It may be proved by direct evidence or by circ*mstantial evidence. Conspiracy is deducible from the acts of the malefactors before, during and after the commission of the crime which are indicative of a joint purpose, concerted action and concurrence of sentiment. 49 To establish conspiracy, it is not essential that there be proof as to the existence of a previous agreement to commit a crime.50It is sufficient if, at the time of the commission of the crime, the accused had the same purpose and were united in its execution. If conspiracy is established, the act of one is deemed the act of all. It matters not who among the accused actually shot and killed the victim. 51 This is based on the theory of a joint or mutual agency ad hoc for the prosecution of the common plan: "x x x The acts and declarations of an agent, within the scope of his authority, are considered and treated as the acts and declarations of his principal. 'What is so done by an agent, is done by the principal, through him, as his mere instrument.' Franklin Bank of Baltimore v. Pennsylvania D. & M. Steam Navigation Co., 11 G. & J. 28, 33 (1839). 'If the conspiracy be proved to have existed, or rather if evidence be given to the jury of its existence, the acts of one in furtherance of the common design are the acts of all; and whatever one does in furtherance of the common design, he does as the agent of the co-conspirators.' R. v. O'Connell, 5 St.Tr. (N.S.) 1, 710."52 In the eyes of the law, conspirators are one man, they breathe one breath, they speak one voice, they wield one arm and the law says that the acts, words and declaration of each, while in the pursuit of the common design, are the acts, words and declarations of all. 53 In the case at bar, Marlon, Ronald and Leon arrived together in the house of Modesto, each armed with a handgun. Marlon and Ronald barged into said house while Leon stood guard by the door thereof. After Marlon and Ronald had left with Modesto in tow, Leon stood by the door and warned Randy and Rita not to leave the house. Leon stood guard by the door of the house until 7:00 a.m. of January 24, 1999 when he left the house. The overt acts of all the malefactors were so synchronized and executed with precision evincing a preconceived plan or design of all the malefactors to achieve a common purpose, namely the killing of Modesto. Irrefragably, the tasks assigned to Leon in the commission of the crime were — (a) to act as a lookout; (b) to ensure that Rita and Randy remain in their house to prevent them from seeking assistance from police authorities and their relatives before their mission to kill Modesto shall have been a fait accompli as well as the escape of Marlon and Ronald. 54 Patently, Leon, a lookout for the group, is guilty of the killing of Modesto. 55 Leon may not have been at the situs criminis when Modesto was killed by Marlon and Ronald nevertheless he is a principal by direct participation.56 If part of a crime has been committed in one place and part in another, each person concerned in the commission of either part is liable as principal. No matter how wide may be the separation of the conspirators, if they are all engaged in a common plan for the execution of a felony and all take their part in furtherance of the common design, all are liable as principals. Actual presence is not necessary if there is a direct connection between the actor and the crime. 57

Ronald, Marlon and Leon, however, assail the testimonies of Randy and Rita alleging that the same were marred by inconsistencies. 1. Randy initially stated that he did not know where the assailants brought his father. Later however, Randy claimed that the malefactors proceeded to the direction of Paldit, Sison, Pangasinan; 2. Rita on the other hand identified Leon, Marlon and Ronald as those who barged into their house. She later changed her testimony and declared that it was Robert, together with Marlon and Ronald who barged into the house; 3. Rita likewise testified that two men stood outside the house guarding them. Later, she testified that after the three men brought out the victim, the two other accused entered the house and guarded them there; 4. Rita claimed that she went out to look for her husband the next day, or on January 25, 1999, and she was accompanied by her son Randy. However, Randy testified that he was alone when he looked for his father from January 24 to 26, 1999. 58 We do not agree with Marlon, Ronald and Leon. Case law has it that the findings of facts of the trial court, its calibration of the collective testimonies of witnesses and its assessment of the probative weight thereof and its conclusions culled from its findings are accorded by the appellate court great respect, if not conclusive effect, because of its unique advantage of observing at close range the demeanor, deportment and conduct of the witnesses as they give their testimonies before the court. In the present case, the trial court gave credence and full probative weight to the testimonies of the witnesses of the prosecution. Moreover, there is no evidence on record that Randy and Rita were moved by any improper or ill motive in testifying against the malefactors and the other accused; hence, their testimonies must be given full credit and probative weight. 59 The inconsistencies in the testimonies of Rita and Randy do not render them incredible or their testimonies barren of probative weight. It must be borne in mind that human memory is not as unerring as a photograph and a person's sense of observation is impaired by many factors including the shocking effect of a crime. A truth-telling witness is not always expected to give an error-free testimony considering the lapse of time and the treachery of human memory. What is primordial is that the mass of testimony jibes on material points, the slight clashing of statements dilute neither the witnesses' credibility nor the veracity of his testimony.60 Variations on the testimony of witnesses on the same side with respect to minor, collateral or incidental matters do not impair the weight of their united testimony to the prominent facts.61 Inconsistencies on minor and trivial matters only serve to strengthen rather than weaken the credibility of witnesses for they erase the suspicion of rehearsed testimony. 62 Moreover, the testimony of a witness should be construed in its entirety and not in truncated terms and the true meaning of answers to isolated questions propounded to a witness is to be ascertained by due consideration of all the questions propounded to the witness and his answers thereto.63 Randy's testimony that he did know where the malefactors brought his father is not inconsistent with his testimony that Ronald and Marlon brought his father towards the

direction of Paldit, Sison, Pangasinan. Randy may not have known the destination of accusedappellants but he saw the direction to which they went. While it may be true that when asked to identify the three who barged into their house, Rita pointed to Leon as one of them, however, Rita had been consistent throughout her testimony that those who barged into their house were Ronald and Marlon. Leon's counsel never cross-examined Rita and impeached her testimony on her identification of Leon as one of those who barged into their house to give her an opportunity to explain her perceived inconsistency conformably with Rule 132, Section 13, of the Revised Rules of Evidence which reads: "Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circ*mstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them."64 Hence, the presentation of the inconsistent statements made by Rita is insufficient for the desired impeachment of her.65 As to whether Rita and Randy were together in looking for Modesto or Leon merely stood guard by the door of the house or entered the house are inconsequential. The fact is that Leon stood guard throughout the night to prevent Rita and Randy from seeking assistance for the seizure and killing of Modesto. This Court is convinced, as the trial court was, that the respective testimonies of Randy and Rita bear the earmarks of truth and sincerity. Despite intense and grueling cross-examination, they responded with consistency upon material details that could only come from a firsthand knowledge of the shocking events which unfolded before their eyes. The Court thus finds no cogent reason to disregard the findings of the trial court regarding their credibility. Marlon, Ronald and Leon contend that the trial court committed a reversible error in not giving credence and probative weight to their evidence to prove their defense of alibi. They aver that their collective evidence to prove their defense is strong. We do not agree. Case law has it that the defense of alibi is one of the weakest of defenses in criminal prosecution because the same is easy to concoct between relatives, friends and even those not related to the offender.66 It is hard for the prosecution to disprove. For alibi to merit approbation by the trial court and this Court, Marlon, Ronald and Leon are burdened to prove with clear and convincing evidence that they were in a place other than the situs criminis at the time of the commission of the crime; that it was physically impossible for them to have committed the said crime.67 They failed to discharge their burden. Moreover, Rita and Randy positively and spontaneously identified Marlon, Ronald and Leon as the culprits. The house of Ronald, where he claimed he was when the crime was committed, was only two kilometers away from the house of Modesto and can be negotiated by a tricycle. Leon failed to adduce any documentary evidence to prove his employment by Sally Asuncion. The barefaced fact that he was a resident of Laoag City does not constitute proof that he was in Laoag City on the day of the commission of the crime. With respect to Marlon, he failed to adduce evidence aside from his self-serving testimony that he resided in, left Dumaguete City and arrived in Manila on January 29, 1999.

The trial court convicted Marlon, Ronald and Leon of murder with the qualifying circ*mstance of treachery in the killing of Modesto. The trial court likewise appreciated nighttime and abuse of superior strength and the use of unlicensed firearms as separate aggravating circ*mstances. The Office of the Solicitor General contends that indeed treachery was attendant in the killing of Modesto. Hence, Marlon, Ronald and Leon are guilty of murder defined in and penalized by Article 248 of the Revised Penal Code. The Court however finds that Marlon, Ronald and Leon are guilty only of homicide defined in and penalized by Article 248 of the Revised Penal Code. Qualifying circ*mstances such as treachery and abuse of superior strength must be alleged and proved clearly and conclusively as the crime itself. Mere conjectures, suppositions or presumptions are utterly insufficient and cannot produce the effect of qualifying the crime.68 As this Court held: "No matter how truthful these suppositions or presumptions may seem, they must not and cannot produce the effect of aggravating the condition of defendant."69 Article 14, paragraph 16 of the Revised Penal Code provides that there is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and especially to insure its execution, without risk to himself arising from the defense which the offended party might make. For treachery to be appreciated as a qualifying circ*mstance, the prosecution is burdened to prove the following elements: (a) the employment of means of execution which gives the person attacked no opportunity to defend himself or retaliate; (b) the means of execution is deliberately or consciously adopted. 70 Although the victim may have been defenseless at the time he was seized but there is no evidence as to the particulars of how he was assaulted and killed, treachery cannot be appreciated against the accused. 71 In this case, the victim was defenseless when seized by Marlon and Ronald. However, the prosecution failed to present any witness or conclusive evidence that Modesto was defenseless immediately before and when he was attacked and killed. It cannot be presumed that although he was defenseless when he was seized the victim was in the same situation when he was attacked, shot and stabbed by the malefactors. To take advantage of superior strength means to purposely use force that is out of proportion to the means of defense available to the person attacked.72 What is primordial, this Court held in People v. Rogelio Francisco73 isthat the assailants deliberately took advantage of their combined strength in order to consummate the crime. It is necessary to show that the malefactors cooperated in such a way as to secure advantage from their superiority in strength. 74 In this case, the prosecution failed to adduce evidence that Marlon and Ronald deliberately took advantage of their numerical superiority when Modesto was killed. The barefaced facts that the malefactors outnumbered Modesto and were armed while Modesto was not does not constitute proof that the three took advantage of their numerical superiority and their handguns when Modesto was shot and stabbed. 75 In sum then, we believe that Marlon, Ronald and Leon are guilty only of Homicide defined in and penalized by Article 249 of the Revised Penal Code with reclusion temporal in its full period. Although the special aggravating circ*mstance of the use of unlicensed firearms was proven during the trial, there is no allegation in the Information that Marlon, Ronald and Leon had no license to possess the firearm. Lack of license to possess a firearm is an essential element of the crime of violation of PD 1866 as amended by Republic Act No. 8294, or as a special aggravating circ*mstance in the felony of homicide or murder. 76 Neither can dwelling, although proven, aggravate the crime because said circ*mstance was not alleged in the

Information as required by Rule 110, Section 8, of the Revised Rules of Court. 77 Although this rule took effect on December 1, 2000, after the commission of the offense in this case, nonetheless it had been given retroactive effect considering that the rule is favorable to the accused.78 There being no modifying circ*mstances in the commission of homicide, Marlon, Ronald and Leon should be meted an indeterminate penalty, the minimum of which shall be taken from the entirety of prision mayor, ranging from 6 years and one day to 12 years and the maximum period of which shall be taken from the medium period ofreclusion temporal, ranging from 14 years, 8 months and one day to 17 years and 4 months. Consequently, the award for damages in favor of the heirs of the victim should be modified. The sum of P75,000.00 awarded as moral damages should be reduced to P50,000.00 in accordance with prevailing jurisprudence. 79 The amount of P25,000.00 as exemplary damages is in order.80 In addition, civil indemnity in the amount of P50,000.00 should be awarded without need of proof, likewise in consonance with prevailing jurisprudence. 81 IN LIGHT OF ALL THE FOREGOING, the decision of the trial court is AFFIRMED with MODIFICATION. Accused-appellants Marlon Delim, Ronald Delim and Leon Delim are hereby found guilty beyond reasonable doubt of the felony of Homicide defined in and penalized by Article 249 of the Revised Penal Code. There being no modifying circ*mstances in the commission of the crime, each of accused-appellants is hereby meted an indeterminate penalty of from ten (10) years and one (1) day of prision mayor in its maximum period as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal in its medium period as maximum. Accused-appellants are hereby ordered to pay, jointly and severally, to the heirs of the victim the amount of P50,000.00 by way of civil indemnity, the amount of P50,000.00 by way of moral damages and the amount of P25,000.00 by way of exemplary damages. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, Carpio, AustriaMartinez, Corona, Carpio-Morales and Azcuna, JJ., concur. Vitug, J., see separate opinion. Ynares-Santiago, J., joins the dissenting opinion of J. Vitug. Gutierrez, J., joins Justice Vitug in his dissenting opinion.

G.R. No. L-74324 November 17, 1988 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y MAGDALENA, accusedappellants. The Solicitor General for plaintiff-appellee. Citizens Legal Assistance Office for accused-appellants. MEDIALDEA, J.: For the death of Bayani Miranda, a retardate, FERNANDO PUGAY y BALCITA and BENJAMIN SAMSON y MAGDALENA were charged with the crime of MURDER in Criminal Case No. L-175-82 of the Court of First Instance (now Regional Trial Court) of Cavite, under an information which reads as follows: That on or about May 19, 1982 at the town plaza of the Municipality of Rosario, Province of Cavite, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping and assisting one another, with treachery and evident premeditation, taking advantage of their superior strength, and with the decided purpose to kill, poured gasoline, a combustible liquid to the body of Bayani Miranda and with the use of fire did then and there, wilfully, unlawfully and feloniously, burn the whole body of said Bayani Miranda which caused his subsequent death, to the damage and prejudice of the heirs of the aforenamed Bayani Miranda. That the crime was committed with the qualifying circ*mstance of treachery and the aggravating circ*mstances of evident premeditation and superior strength, and the means employed was to weaken the defense; that the wrong done in the commission of the crime was deliberately augmented by causing another wrong, that is the burning of the body of Bayani Miranda.

WHEREFORE, the accused Fernando Pugay y Balcita and Benjamin Samson y Magdalena are pronounced guilty beyond reasonable doubt as principals by direct participation of the crime of murder for the death of Bayani Miranda, and appreciating the aforestated mitigating circ*mstance in favor of Pugay, he is sentenced to a prison term ranging from twelve (12) years of prision mayor, as minimum, to twenty (20) years of reclusion temporal, as maximum, and Samson to suffer the penalty of reclusion perpetua together with the accessories of the law for both of them. The accused are solidarily held liable to indemnify the heirs of the victim in the amount of P13,940.00 plus moral damages of P10,000.00 and exemplary damages of P5,000.00. Let the preventive imprisonment of Pugay be deducted from the principal penalty. Cost against both accused. SO ORDERED (p. 248, Records). Not satisfied with the decision, both accused interposed the present appeal and assigned the following errors committed by the court a quo: 1. THE COURT A QUO ERRED IN UTILIZING THE STATEMENTS OF ACCUSED-APPELLANTS IN ITS APPRECIATION OF FACTS DESPITE ITS ADMISSION THAT THE ACCUSED-APPELLANTS WERE NOT ASSISTED BY A COUNSEL DURING THE CUSTODIAL INVESTIGATION. 2. THE COURT A QUO ERRED IN NOT FINDING THAT THE SUPPRESSION BY THE PROSECUTION OF SOME EVIDENCE IS FATAL TO ITS CASE. 3. THE COURT A QUO ERRED IN LENDING CREDENCE TO THE INCREDIBLE TESTIMONY OF EDUARDO GABION WHO WAS ONE OF THE MANY SUSPECTS ARRESTED BY THE POLICE (Accusedappellants' Brief, p. 48, Rollo).

CONTRARY TO LAW (p. 1, Records). The antecedent facts are as follows: Upon being arraigned, both accused pleaded not guilty to the offense charged. After trial, the trial court rendered a decision finding both accused guilty on the crime of murder but crediting in favor of the accused Pugay the mitigating circ*mstance of lack of intention to commit so grave a wrong, the dispositive portion of which reads as follows:

The deceased Miranda, a 25-year old retardate, and the accused Pugay were friends. Miranda used to run errands for Pugay and at times they slept together. On the evening of May 19, 1982, a town fiesta fair was held in the public plaza of Rosario, Cavite. There were different kinds of ride and one was a ferris wheel.

Sometime after midnight of the same date, Eduardo Gabion was sitting in the ferris wheel and reading a comic book with his friend Henry. Later, the accused Pugay and Samson with several companions arrived. These persons appeared to be drunk as they were all happy and noisy. As the group saw the deceased walking nearby, they started making fun of him. They made the deceased dance by tickling him with a piece of wood. Not content with what they were doing with the deceased, the accused Pugay suddenly took a can of gasoline from under the engine of the ferns wheel and poured its contents on the body of the former. Gabion told Pugay not to do so while the latter was already in the process of pouring the gasoline. Then, the accused Samson set Miranda on fire making a human torch out of him. The ferris wheel operator later arrived and doused with water the burning body of the deceased. Some people around also poured sand on the burning body and others wrapped the same with rags to extinguish the flame. The body of the deceased was still aflame when police officer Rolando Silangcruz and other police officers of the Rosario Police Force arrived at the scene of the incident. Upon inquiring as to who were responsible for the dastardly act, the persons around spontaneously pointed to Pugay and Samson as the authors thereof. The deceased was later rushed to the Grace Hospital for treatment. In the meantime, the police officers brought Gabion, the two accused and five other persons to the Rosario municipal building for interrogation. Police officer Reynaldo Canlas took the written statements of Gabion and the two accused, after which Gabion was released. The two accused remained in custody. After a careful review of the records, We find the grounds relied upon by the accusedappellants for the reversal of the decision of the court a quo to be without merit. It bears emphasis that barely a few hours after the incident, accused-appellants gave their written statements to the police. The accused Pugay admitted in his statement, Exhibit F, that he poured a can of gasoline on the deceased believing that the contents thereof was water and then the accused Samson set the deceased on fire. The accused Samson, on the other hand, alleged in his statement that he saw Pugay pour gasoline on Miranda but did not see the person who set him on fire. Worthy of note is the fact that both statements did not impute any participation of eyewitness Gabion in the commission of the offense. While testifying on their defense, the accused-appellants repudiated their written statements alleging that they were extracted by force. They claimed that the police maltreated them into admitting authorship of the crime. They also engaged in a concerted effort to lay the blame on Gabion for the commission of the offense.

Thus, while it is true that the written statements of the accused-appellants were mentioned and discussed in the decision of the court a quo, the contents thereof were not utilized as the sole basis for the findings of facts in the decision rendered. The said court categorically stated that "even without Exhibits 'F' and 'G', there is still Gabion's straightforward, positive and convincing testimony which remains unaffected by the uncorroborated, self-serving and unrealiable testimonies of Pugay and Samson" (p. 247, Records). Accused-appellants next assert that the prosecution suppressed the testimonies of other eyewitnesses to the incident. They claim that despite the fact that there were other persons investigated by the police, only Gabion was presented as an eyewitness during the trial of the case. They argue that the deliberate non- presentation of these persons raises the presumption that their testimonies would be adverse to the prosecution. There is no dispute that there were other persons who witnessed the commission of the crime. In fact there appears on record (pp. 16-17, Records) the written statements of one Abelardo Reyes and one Monico Alimorong alleging the same facts and imputing the respective acts of pouring of gasoline and setting the deceased on fire to the accused-appellants as testified to by Gabion in open court. They were listed as prosecution witnesses in the information filed. Considering that their testimonies would be merely corroborative, their non-presentation does not give rise to the presumption that evidence wilfully suppressed would be adverse if produced. This presumption does not apply to the suppression of merely corroborative evidence (U.S. vs. Dinola, 37 Phil. 797).<äre||anº•1àw>Besides, the matter as to whom to utilize as witness is for the prosecution to decide. Accused-appellants also attack the credibility of the eyewitness Gabion alleging that not only was the latter requested by the mother of the deceased to testify for the prosecution in exchange for his absolution from liability but also because his testimony that he was reading a comic book during an unusual event is contrary to human behavior and experience. Gabion testified that it was his uncle and not the mother of the deceased who asked him to testify and state the truth about the incident. The mother of the deceased likewise testified that she never talked to Gabion and that she saw the latter for the first time when the instant case was tried. Besides, the accused Pugay admitted that Gabion was his friend and both Pugay and the other accused Samson testified that they had no previous misunderstanding with Gabion. Clearly, Gabion had no reason to testify falsely against them. In support of their claim that the testimony of Gabion to the effect that he saw Pugay pour gasoline on the deceased and then Samson set him on fire is incredible, the accused-appellants quote Gabion's testimony on cross-examination that, after telling Pugay not to pour gasoline on the deceased, he (Gabion) resumed reading comics; and that it was only when the victim's body was on fire that he noticed a commotion. However, explaining this testimony on re-direct examination, Gabion stated:

Q. Mr. Gabion, you told the Court on crossexamination that you were reading comics when you saw Pugay poured gasoline unto Bayani Miranda and lighted by Samson. How could you possibly see that incident while you were reading comics? A. I put down the comics which I am reading and I saw what they were doing. Q. According to you also before Bayani was poured with gasoline and lighted and burned later you had a talk with Pugay, is that correct? A. When he was pouring gasoline on Bayani Miranda I was trying to prevent him from doing so. Q. We want to clarify. According to you a while ago you had a talk with Pugay and as a matter of fact, you told him not to pour gasoline. That is what I want to know from you, if that is true? A. Yes, sir. Q. Aside from Bayani being tickled with a stick on his ass, do you mean to say you come to know that Pugay will pour gasoline unto him? A. I do not know that would be that incident. Q. Why did you as(k) Pugay in the first place not to pour gasoline before he did that actually? A. Because I pity Bayani, sir. Q. When you saw Pugay tickling Bayani with a stick on his ass you tried according to you to ask him not to and then later you said you asked not to pour gasoline. Did Pugay tell you he was going to pour gasoline on Bayani? A. I was not told, sir.

Q. Did you come to know..... how did you come to know he was going to pour gasoline that is why you prevent him? A. Because he was holding on a container of gasoline. I thought it was water but it was gasoline. Q. It is clear that while Pugay was tickling Bayani with a stick on his ass, he later got hold of a can of gasoline, is that correct? A. Yes, sir. Q. And when he pick up the can of gasoline, was that the time you told him not to pour gasoline when he merely pick up the can of gasoline. A. I saw him pouring the gasoline on the body of Joe. Q. So, it is clear when you told Pugay not to pour gasoline he was already in the process of pouring gasoline on the body of Bayani? A. Yes, sir (Tsn, July 30, 1983, pp. 32-33). It is thus clear that prior to the incident in question, Gabion was reading a comic book; that Gabion stopped reading when the group of Pugay started to make fun of the deceased; that Gabion saw Pugay get the can of gasoline from under the engine of the ferris wheel; that it was while Pugay was in the process of pouring the gasoline on the body of the deceased when Gabion warned him not to do so; and that Gabion later saw Samson set the deceased on fire. However, there is nothing in the records showing that there was previous conspiracy or unity of criminal purpose and intention between the two accused-appellants immediately before the commission of the crime. There was no animosity between the deceased and the accused Pugay or Samson. Their meeting at the scene of the incident was accidental. It is also clear that the accused Pugay and his group merely wanted to make fun of the deceased. Hence, the respective criminal responsibility of Pugay and Samson arising from different acts directed against the deceased is individual and not collective, and each of them is liable only for the act committed by him (U.S. vs. Magcomot, et. al. 13, Phil. 386; U.S. vs. Abiog, et. al. 37 Phil. 1371). The next question to be determined is the criminal responsibility of the accused Pugay. Having taken the can from under the engine of the ferris wheel and holding it before pouring its

contents on the body of the deceased, this accused knew that the can contained gasoline. The stinging smell of this flammable liquid could not have escaped his notice even before pouring the same. Clearly, he failed to exercise all the diligence necessary to avoid every undesirable consequence arising from any act that may be committed by his companions who at the time were making fun of the deceased. We agree with the Solicitor General that the accused is only guilty of homicide through reckless imprudence defined in Article 365 of the Revised Penal Code, as amended. In U.S. vs. Maleza, et. al. 14 Phil. 468, 470, this Court ruled as follows:

As no sufficient evidence appears in the record establishing any qualifying circ*mstances, the accused Samson is only guilty of the crime of homicide defined and penalized in Article 249 of the Revised Penal Code, as amended. We are disposed to credit in his favor the ordinary mitigating circ*mstance of no intention to commit so grave a wrong as that committed as there is evidence of a fact from which such conclusion can be drawn. The eyewitness Gabion testified that the accused Pugay and Samson were stunned when they noticed the deceased burning (Tsn, June 1, 1983, pp. 16-17).<äre||anº•1àw>

A man must use common sense and exercise due reflection in all his acts; it is his duty to be cautious, careful, and prudent, if not from instinct, then through fear of incurring punishment. He is responsible for such results as anyone might foresee and for acts which no one would have performed except through culpable abandon. Otherwise his own person, rights and property, all those of his fellow-beings, would ever be exposed to all manner of danger and injury.

The proper penalty that the accused Samson must suffer is an indeterminate one ranging from eight (8) years ofprision mayor, as minimum, to fourteen (14) years of reclusion temporal, as maximum.

The proper penalty that the accused Pugay must suffer is an indeterminate one ranging from four (4) months ofarresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. With respect to the accused Samson, the Solicitor General in his brief contends that "his conviction of murder, is proper considering that his act in setting the deceased on fire knowing that gasoline had just been poured on him is characterized by treachery as the victim was left completely helpless to defend and protect himself against such an outrage" (p. 57, Rollo). We do not agree. There is entire absence of proof in the record that the accused Samson had some reason to kill the deceased before the incident. On the contrary, there is adequate evidence showing that his act was merely a part of their fun-making that evening. For the circ*mstance of treachery to exist, the attack must be deliberate and the culprit employed means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from any defense which the offended party might make. There can be no doubt that the accused Samson knew very well that the liquid poured on the body of the deceased was gasoline and a flammable substance for he would not have committed the act of setting the latter on fire if it were otherwise. Giving him the benefit of doubt, it call be conceded that as part of their fun-making he merely intended to set the deceased's clothes on fire. His act, however, does not relieve him of criminal responsibility. Burning the clothes of the victim would cause at the very least some kind of physical injuries on his person, a felony defined in the Revised Penal Code. If his act resulted into a graver offense, as what took place in the instant case, he must be held responsible therefor. Article 4 of the aforesaid code provides, inter alia, that criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended.

The lower court held the accused solidarily liable for P13,940.00, the amount spent by Miranda's parents for his hospitalization, wake and interment. The indemnity for death is P30,000.00. Hence, the indemnity to the heirs of the deceased Miranda is increased to P43,940.00. Both accused shall be jointly and severally liable for the aforesaid amount plus the P10,000.00 as moral damages and P5,000.00 as exemplary damages as found by the court a quo. Accordingly, the judgment is affirmed with the modifications above-indicated. Costs against the accused-appellants. SO ORDERED. Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.

G.R. No. 153591

February 23, 2004

PEOPLE OF THE PHILIPPINES, appellee vs. RENATO GARCIA y ROMANO, appellant. DECISION YNARES-SANTIAGO, J.: Appellant Renato Garcia y Romano was charged with Murder before the Regional Trial Court of Quezon City, Branch 87, in Criminal Case No. Q-98-79961 in an Information 1 which reads: That on or about the 22nd day of May, 1998, in Quezon City, Philippines, the said accused, being then the driver and/or person in charge of an Isuzu Jitney bearing Plate No. NPJ-948 did then and there unlawfully and feloniously drive, manage and operate the same along Zabarte Road in said City, in a careless, reckless, negligent and impudent manner, by then and there making the said vehicle run at a speed greater than was reasonable and proper without taking the necessary precaution to avoid accident to person/s of the traffic at said place at the time, causing as consequence of his said carelessness, negligence, impudence and lack of precaution, the said vehicle so driven, managed and operated by him to hit and bump, as in fact it hit and bumped Sanily Billon y Trinidad, a pedestrian, thereafter, with intent to kill, qualified by evident premeditation and use of motor vehicle, did then and there willfully, unlawfully and feloniously ran said vehicle over the victim thereby causing her serious and mortal wounds which were the direct and immediate cause of her untimely death, to the damage and prejudice of the heirs of the said Sanily Billon y Trinidad.

Dr. Emmanuel Reyes,2 Medico-legal of the Southern Police District, Fort Bonifacio, testified that the attending physician, Dr. Santiago C. Sagad, noted lacerations in Sanily’s liver and spleen which was caused by a blunt/strong force on the victim’s body, resulting to her death due to internal bleeding. He opined that the blunt force may have also caused lacerations in the victim’s intestine and the abrasions on the arm, from the elbow to the shoulder could be the result of the skin’s contact with a rough surface. Appellant admitted having ran over the victim, but claimed that it was an accident. He narrated that at around noon on May 22, 1998, while driving his passenger jeepney along Zabarte Road, he saw a boy crossing the street followed by the victim. While the vehicle was running, he heard a thud. He immediately applied his breaks and alighted to check what it was. He saw to his horror a girl sprawled underneath his vehicle between the front and the rear tires. He and the victim’s brother rushed the girl to the Sta. Lucia Hospital, but they transferred her to the Quezon City General Hospital which has better facilities. A week later, he learned that the victim died. On May 2, 2002, the trial court rendered judgment, 3 finding appellant guilty beyond reasonable doubt of Murder and sentenced him to suffer the penalty of reclusion perpetua, the dispositive portion of which reads:4 WHEREFORE, judgment is hereby rendered finding accused guilty beyond reasonable doubt of the crime of Murder, for which, said RENATO GARCIA y ROMANO is hereby sentenced to suffer the penalty of reclusion perpetua and to indemnify the heirs of Sanily Billon the sum of One Hundred and Twenty Three Thousand and Five Hundred Pesos (P123,500.00) as actual damages including attorney’s fees; Fifty Thousand Pesos (P50,000.00) as civil indemnity for the death of Sanily and Five Hundred Thousand Pesos (P500,000.00) as moral damages.

CONTRARY TO LAW.

Cost against the accused.

On arraignment, appellant pleaded "not guilty". Thereafter, trial on the merits followed.

SO ORDERED.

The prosecution alleged that at around 12:00 noon of May 22, 1998, Bentley Billon and his younger sister, Sanily, boarded a passenger jeepney on their way to Sacred Heart School in Barangay Kaligayahan, Novaliches, Quezon City to attend remedial classes. They alighted on Zabarte Road in front of the school. Bentley crossed the street and waited on the center island for Sanily to cross. While Sanily was crossing the street, a passenger jeepney driven by appellant, coming from Camarin and heading towards Quirino Highway, hit her on the left side of the body. Sanily fell and was thrown to the ground a meter away from the vehicle. The jeepney stopped. But as Bentley was running towards his sister, the vehicle suddenly accelerated with its front tire running over Sanily’s stomach. Bentley and appellant pulled Sanily, who was writhing in excruciating pain, from underneath the vehicle and brought her to the Sta. Lucia Hospital but due to lack of medical facilities, she was transferred to the Quezon City General Hospital (QCGH) where she was operated. However, she died four days later.

The trial court held that appellant is guilty of murder qualified by evident premeditation because he deliberately ran over the slumped body of the victim. Hence this appeal, raising the following errors, to wit: I. THE TRIAL COURT GRAVELY ERRED IN APPRECIATING AGAINST ACCUSEDAPPELLANT THE QUALIFYING CIRc*msTANCE OF EVIDENT PREMEDITAION II. THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED GUILTY BEYOND REASONABLE BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER AS CHARGED.

The issue to be resolved is whether or not appellant is guilty of murder or reckless imprudence resulting in homicide. Appellant argues that the trial court gravely erred in finding that the qualifying circ*mstance of evident premeditation attended the commission of the offense. He contends that the mere allegation by the prosecution that he bumped the victim and intentionally ran over her body is not sufficient to establish evident premeditation. He claims that he did not intentionally run over the victim when his vehicle bumped her because he was rattled and was no longer aware of what he was doing. We find from a careful review of the facts on record that the unfortunate incident was more the result of reckless imprudence than of malicious intent. Therefore, the trial court erred in convicting appellant of the crime of murder qualified by evident premeditation. The elements of evident premeditation are: (1) a previous decision by the appellant to commit the crime; (2) an overt act/acts manifestly indicating that the appellant clung to his determination; and (3) a lapse of time between the decision to commit the crime and its actual execution sufficient to allow appellant to reflect upon the consequences of his acts. The victim’s brother, Bentley, testified that the vehicle stopped after it bumped the victim, but it moved forward and ran over the prostrate body of her sister. From his narration, we find that no sufficient time elapsed for appellant to decide to commit the crime and reflect on its consequences. Moreover, there was no showing that appellant performed other overt acts to show that he was determined to commit murder. The essence of evident premeditation is that the execution of the criminal act must be preceded by cool thought and reflection upon the resolution to carry out the criminal intent, during the space of time sufficient to arrive at a calm judgment.5 These circ*mstances do not obtain in the case at bar. Appellant could have reacted on instinct and relied on sheer impulse to respond to the situation at hand. While it is possible that appellant deliberately ran over the victim, it is equally possible, if not more probable, that the vehicle moved forward because appellant failed to control its momentum. Indeed, this is more consistent with the unrebutted evidence that the jeepney, which had no handbrake, was moving fast and that appellant became confused when the accident occurred. Furthermore, appellant’s act of bringing the victim to the hospital despite numerous opportunities to flee from the scene is more compatible with a state of mind devoid of criminal intent. In view of the gravity of the offense involved, the trial court should have been more circ*mspect in weighing the evidence of both parties. Our own evaluation of the evidence reveals that appellant had no intention to kill the victim. As such, he cannot be held liable for an intentional felony. All reasonable doubt intended to demonstrate negligence, and not criminal intent, must be resolved in favor of appellant. 6

Thus, appellant is guilty of reckless imprudence resulting in homicide defined in Article 365 of the Revised Penal Code, as amended. In U.S. v. Maleza, 7 we explained the rationale behind this crime as follows: A man must use common sense, and exercise due reflection in all his acts; it is his duty to be cautious, careful, and prudent, if not from instinct, then through fear of incurring punishment. He is responsible for such results as anyone might foresee and for acts which no one would have performed except through culpable abandon. Otherwise his own person, rights and property, all those of his fellow-beings, would ever be exposed to all manner of danger and injury. In intentional crimes, the act itself is punished; in negligence or imprudence, what is principally penalized is the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible. 8 Article 365 of the Revised Penal Code, as amended, states that reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing such act. Compared to intentional felonies, such as homicide or murder, what takes the place of the element of malice or intention to commit a wrong or evil is the failure of the offender to take precautions due to lack of skill taking into account his employment, or occupation, degree of intelligence, physical condition, and other circ*mstances regarding persons, time, and place. 9 Appellant showed an inexcusable lack of precaution when he disregarded a traffic sign cautioning motorists to slow down 10 and drove his vehicle in full speed despite being aware that he was traversing a school zone and pedestrians were crossing the street. He should have observed due diligence of a reasonably prudent man by slackening his speed and proceeding cautiously while passing the area. The imposable penalty, under Art. 365 (2) 11 of the Revised Penal Code, homicide resulting from reckless imprudence in the use of motor vehicle is prision correccional in its medium and maximum periods, which ranges from two (2) years, four (4) months and one (1) day to six (6) years. Under Article 65 of the Revised Penal Code, the penalty shall be divided into three equal portions of time, each of which shall form one period. There being no aggravating or mitigating circ*mstance, the proper penalty shall be within the medium period, which is three (3) years, six (6) months and twenty-one (21) days to four (4) years, nine (9) months and ten (10) days. Applying the provisions of the Indeterminate Sentence Law, appellant is entitled to a minimum term to be taken from the penalty next lower in degree, which is arresto mayor, maximum to prision correccional, minimum. Accordingly, appellant should be sentenced to an indeterminate penalty of four (4) months and one (1) day of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. 12 The trial court correctly awarded P50,000.00 as civil indemnity. However, the award of moral damages in the amount of P500,000.00 should be reduced to P50,000.00. 13 The award of P30,000.00 as actual damages must likewise be modified. The mother of the victim presented

receipts that they, in fact, spent P58,257.90 14 for hospital bills and funeral expenses. The fact that she received P40,000.00 from insurance will not affect the award of actual damages. 15 The award of exemplary damages is deleted for lack of factual basis. WHEREFORE, in view of the foregoing, the Decision of the Regional Trial Court of Quezon City, Branch 87, in Civil Case No. Q-98-79961, convicting appellant of the crime of murder is REVERSED and SET ASIDE. Appellant Renato Garcia y Romano is found guilty beyond reasonable doubt of the crime reckless imprudence resulting in homicide, and he is sentenced to suffer an indeterminate prison term of four (4) months and one (1) day of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. Appellant is ordered to pay the heirs of the victim, P50,000.00 as civil indemnity, P58,257.90 as actual damages and P50,000.00 as moral damages. Costs de oficio. SO ORDERED.

G.R. No. 172716

November 17, 2010

proceedings and postponing his arraignment until after his arrest. 5 Petitioner sought reconsideration but as of the filing of this petition, the motion remained unresolved.

JASON IVLER y AGUILAR, Petitioner, vs. HON. MARIA ROWENA MODESTO-SAN PEDRO, Judge of the Metropolitan Trial Court, Branch 71, Pasig City, and EVANGELINE PONCE, Respondents.

Relying on the arrest order against petitioner, respondent Ponce sought in the RTC the dismissal of S.C.A. No. 2803 for petitioner’s loss of standing to maintain the suit. Petitioner contested the motion.

DECISION

The Ruling of the Trial Court

CARPIO, J.:

In an Order dated 2 February 2006, the RTC dismissed S.C.A. No. 2803, narrowly grounding its ruling on petitioner’s forfeiture of standing to maintain S.C.A. No. 2803 arising from the MeTC’s order to arrest petitioner for his non-appearance at the arraignment in Criminal Case No. 82366. Thus, without reaching the merits of S.C.A. No. 2803, the RTC effectively affirmed the MeTC. Petitioner sought reconsideration but this proved unavailing. 6

The Case The petition seeks the review1 of the Orders2 of the Regional Trial Court of Pasig City affirming sub-silencio a lower court’s ruling finding inapplicable the Double Jeopardy Clause to bar a second prosecution for Reckless Imprudence Resulting in Homicide and Damage to Property. This, despite the accused’s previous conviction for Reckless Imprudence Resulting in Slight Physical Injuries arising from the same incident grounding the second prosecution. The Facts Following a vehicular collision in August 2004, petitioner Jason Ivler (petitioner) was charged before the Metropolitan Trial Court of Pasig City, Branch 71 (MeTC), with two separate offenses: (1) Reckless Imprudence Resulting in Slight Physical Injuries (Criminal Case No. 82367) for injuries sustained by respondent Evangeline L. Ponce (respondent Ponce); and (2) Reckless Imprudence Resulting in Homicide and Damage to Property (Criminal Case No. 82366) for the death of respondent Ponce’s husband Nestor C. Ponce and damage to the spouses Ponce’s vehicle. Petitioner posted bail for his temporary release in both cases. On 7 September 2004, petitioner pleaded guilty to the charge in Criminal Case No. 82367 and was meted out the penalty of public censure. Invoking this conviction, petitioner moved to quash the Information in Criminal Case No. 82366 for placing him in jeopardy of second punishment for the same offense of reckless imprudence. The MeTC refused quashal, finding no identity of offenses in the two cases. 3 After unsuccessfully seeking reconsideration, petitioner elevated the matter to the Regional Trial Court of Pasig City, Branch 157 (RTC), in a petition for certiorari (S.C.A. No. 2803). Meanwhile, petitioner sought from the MeTC the suspension of proceedings in Criminal Case No. 82366, including the arraignment on 17 May 2005, invoking S.C.A. No. 2803 as a prejudicial question. Without acting on petitioner’s motion, the MeTC proceeded with the arraignment and, because of petitioner’s absence, cancelled his bail and ordered his arrest.4 Seven days later, the MeTC issued a resolution denying petitioner’s motion to suspend

Hence, this petition. Petitioner denies absconding. He explains that his petition in S.C.A. No. 2803 constrained him to forego participation in the proceedings in Criminal Case No. 82366. Petitioner distinguishes his case from the line of jurisprudence sanctioning dismissal of appeals for absconding appellants because his appeal before the RTC was a special civil action seeking a pre-trial relief, not a post-trial appeal of a judgment of conviction. 7 Petitioner laments the RTC’s failure to reach the merits of his petition in S.C.A. 2803. Invoking jurisprudence, petitioner argues that his constitutional right not to be placed twice in jeopardy of punishment for the same offense bars his prosecution in Criminal Case No. 82366, having been previously convicted in Criminal Case No. 82367 for the same offense of reckless imprudence charged in Criminal Case No. 82366. Petitioner submits that the multiple consequences of such crime are material only to determine his penalty. Respondent Ponce finds no reason for the Court to disturb the RTC’s decision forfeiting petitioner’s standing to maintain his petition in S.C.A. 2803. On the merits, respondent Ponce calls the Court’s attention to jurisprudence holding that light offenses (e.g. slight physical injuries) cannot be complexed under Article 48 of the Revised Penal Code with grave or less grave felonies (e.g. homicide). Hence, the prosecution was obliged to separate the charge in Criminal Case No. 82366 for the slight physical injuries from Criminal Case No. 82367 for the homicide and damage to property. In the Resolution of 6 June 2007, we granted the Office of the Solicitor General’s motion not to file a comment to the petition as the public respondent judge is merely a nominal party and private respondent is represented by counsel. The Issues

Two questions are presented for resolution: (1) whether petitioner forfeited his standing to seek relief in S.C.A. 2803 when the MeTC ordered his arrest following his non-appearance at the arraignment in Criminal Case No. 82366; and (2) if in the negative, whether petitioner’s constitutional right under the Double Jeopardy Clause bars further proceedings in Criminal Case No. 82366. The Ruling of the Court We hold that (1) petitioner’s non-appearance at the arraignment in Criminal Case No. 82366 did not divest him of personality to maintain the petition in S.C.A. 2803; and (2) the protection afforded by the Constitution shielding petitioner from prosecutions placing him in jeopardy of second punishment for the same offense bars further proceedings in Criminal Case No. 82366. Petitioner’s Non-appearance Criminal Case No. 82366 to Maintain the Petition in S.C.A. 2803

at did

not

the Divest

Arraignment in him of Standing

Dismissals of appeals grounded on the appellant’s escape from custody or violation of the terms of his bail bond are governed by the second paragraph of Section 8, Rule 124, 8 in relation to Section 1, Rule 125, of the Revised Rules on Criminal Procedure authorizing this Court or the Court of Appeals to "also, upon motion of the appellee or motu proprio, dismiss the appeal if the appellant escapes from prison or confinement, jumps bail or flees to a foreign country during the pendency of the appeal." The "appeal" contemplated in Section 8 of Rule 124 is a suit to review judgments of convictions. The RTC’s dismissal of petitioner’s special civil action for certiorari to review a prearraignment ancillary question on the applicability of the Due Process Clause to bar proceedings in Criminal Case No. 82366 finds no basis under procedural rules and jurisprudence. The RTC’s reliance on People v. Esparas9 undercuts the cogency of its ruling because Esparas stands for a proposition contrary to the RTC’s ruling. There, the Court granted review to an appeal by an accused who was sentenced to death for importing prohibited drugs even though she jumped bail pending trial and was thus tried and convicted in absentia. The Court in Esparas treated the mandatory review of death sentences under Republic Act No. 7659 as an exception to Section 8 of Rule 124. 10 The mischief in the RTC’s treatment of petitioner’s non-appearance at his arraignment in Criminal Case No. 82366 as proof of his loss of standing becomes more evident when one considers the Rules of Court’s treatment of a defendant who absents himself from postarraignment hearings. Under Section 21, Rule 114 11 of the Revised Rules of Criminal Procedure, the defendant’s absence merely renders his bondsman potentially liable on its bond (subject to cancellation should the bondsman fail to produce the accused within 30 days); the defendant retains his standing and, should he fail to surrender, will be tried in absentia and could be convicted or acquitted. Indeed, the 30-day period granted to the bondsman to produce

the accused underscores the fact that mere non-appearance does not ipso facto convert the accused’s status to that of a fugitive without standing. Further, the RTC’s observation that petitioner provided "no explanation why he failed to attend the scheduled proceeding"12 at the MeTC is belied by the records. Days before the arraignment, petitioner sought the suspension of the MeTC’s proceedings in Criminal Case No. 82366 in light of his petition with the RTC in S.C.A. No. 2803. Following the MeTC’s refusal to defer arraignment (the order for which was released days after the MeTC ordered petitioner’s arrest), petitioner sought reconsideration. His motion remained unresolved as of the filing of this petition. Petitioner’s Conviction in Criminal Bars his Prosecution in Criminal Case No. 82366

Case

No.

82367

The accused’s negative constitutional right not to be "twice put in jeopardy of punishment for the same offense"13protects him from, among others, post-conviction prosecution for the same offense, with the prior verdict rendered by a court of competent jurisdiction upon a valid information.14 It is not disputed that petitioner’s conviction in Criminal Case No. 82367 was rendered by a court of competent jurisdiction upon a valid charge. Thus, the case turns on the question whether Criminal Case No. 82366 and Criminal Case No. 82367 involve the "same offense." Petitioner adopts the affirmative view, submitting that the two cases concern the same offense of reckless imprudence. The MeTC ruled otherwise, finding that Reckless Imprudence Resulting in Slight Physical Injuries is an entirely separate offense from Reckless Imprudence Resulting in Homicide and Damage to Property "as the [latter] requires proof of an additional fact which the other does not."15 We find for petitioner. Reckless its Property the Penalty

Imprudence is a Consequences on are Material Only

Single Persons to

Crime, and Determine

The two charges against petitioner, arising from the same facts, were prosecuted under the same provision of the Revised Penal Code, as amended, namely, Article 365 defining and penalizing quasi-offenses. The text of the provision reads: Imprudence and negligence. — Any person who, by reckless imprudence, shall commit any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its maximum period to prision correccional in its medium period; if it would have constituted a less grave felony, the penalty of arresto mayor in its minimum and medium periods shall be imposed; if it would have constituted a light felony, the penalty of arresto menor in its maximum period shall be imposed.

Any person who, by simple imprudence or negligence, shall commit an act which would otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods; if it would have constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be imposed. When the execution of the act covered by this article shall have only resulted in damage to the property of another, the offender shall be punished by a fine ranging from an amount equal to the value of said damages to three times such value, but which shall in no case be less than twenty-five pesos. A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by simple imprudence or negligence, shall cause some wrong which, if done maliciously, would have constituted a light felony. In the imposition of these penalties, the court shall exercise their sound discretion, without regard to the rules prescribed in Article sixty-four. The provisions contained in this article shall not be applicable: 1. When the penalty provided for the offense is equal to or lower than those provided in the first two paragraphs of this article, in which case the court shall impose the penalty next lower in degree than that which should be imposed in the period which they may deem proper to apply. 2. When, by imprudence or negligence and with violation of the Automobile Law, to death of a person shall be caused, in which case the defendant shall be punished by prision correccional in its medium and maximum periods. Reckless imprudence consists in voluntary, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circ*mstances regarding persons, time and place.

(2) a modified penalty scheme for either or both quasi-offenses (paragraphs 3-4, 6 and 9); (3) a generic rule for trial courts in imposing penalties (paragraph 5); and (4) the definition of "reckless imprudence" and "simple imprudence" (paragraphs 7-8). Conceptually, quasioffenses penalize "the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible," 16 unlike willful offenses which punish the intentional criminal act. These structural and conceptual features of quasi-offenses set them apart from the mass of intentional crimes under the first 13 Titles of Book II of the Revised Penal Code, as amended. Indeed, the notion that quasi-offenses, whether reckless or simple, are distinct species of crime, separately defined and penalized under the framework of our penal laws, is nothing new. As early as the middle of the last century, we already sought to bring clarity to this field by rejecting in Quizon v. Justice of the Peace of Pampanga the proposition that "reckless imprudence is not a crime in itself but simply a way of committing it x x x" 17 on three points of analysis: (1) the object of punishment in quasi-crimes (as opposed to intentional crimes); (2) the legislative intent to treat quasi-crimes as distinct offenses (as opposed to subsuming them under the mitigating circ*mstance of minimal intent) and; (3) the different penalty structures for quasi-crimes and intentional crimes: The proposition (inferred from Art. 3 of the Revised Penal Code) that "reckless imprudence" is not a crime in itself but simply a way of committing it and merely determines a lower degree of criminal liability is too broad to deserve unqualified assent. There are crimes that by their structure cannot be committed through imprudence: murder, treason, robbery, malicious mischief, etc. In truth, criminal negligence in our Revised Penal Code is treated as a mere quasi offense, and dealt with separately from willful offenses. It is not a mere question of classification or terminology. In intentional crimes, the act itself is punished; in negligence or imprudence, what is principally penalized is the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible. x x x x

The penalty next higher in degree to those provided for in this article shall be imposed upon the offender who fails to lend on the spot to the injured parties such help as may be in this hand to give.

Were criminal negligence but a modality in the commission of felonies, operating only to reduce the penalty therefor, then it would be absorbed in the mitigating circ*mstances of Art. 13, specially the lack of intent to commit so grave a wrong as the one actually committed. Furthermore, the theory would require that the corresponding penalty should be fixed in proportion to the penalty prescribed for each crime when committed willfully. For each penalty for the willful offense, there would then be a corresponding penalty for the negligent variety. But instead, our Revised Penal Code (Art. 365) fixes the penalty for reckless imprudence at arresto mayor maximum, to prision correccional [medium], if the willful act would constitute a grave felony, notwithstanding that the penalty for the latter could range all the way from prision mayor to death, according to the case. It can be seen that the actual penalty for criminal negligence bears no relation to the individual willful crime, but is set in relation to a whole class, or series, of crimes. 18 (Emphasis supplied)

Structurally, these nine paragraphs are collapsible into four sub-groupings relating to (1) the penalties attached to the quasi-offenses of "imprudence" and "negligence" (paragraphs 1-2);

This explains why the technically correct way to allege quasi-crimes is to state that their commission results in damage, either to person or property.19

Simple imprudence consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not immediate nor the danger clearly manifest.

Accordingly, we found the Justice of the Peace in Quizon without jurisdiction to hear a case for "Damage to Property through Reckless Imprudence," its jurisdiction being limited to trying charges for Malicious Mischief, an intentional crime conceptually incompatible with the element of imprudence obtaining in quasi-crimes. Quizon, rooted in Spanish law20 (the normative ancestry of our present day penal code) and since repeatedly reiterated,21 stands on solid conceptual foundation. The contrary doctrinal pronouncement in People v. Faller22that "[r]eckless impudence is not a crime in itself x x x [but] simply a way of committing it x x x," 23 has long been abandoned when the Court en banc promulgated Quizon in 1955 nearly two decades after the Court decided Faller in 1939. Quizon rejected Faller’s conceptualization of quasi-crimes by holding that quasi-crimes under Article 365 are distinct species of crimes and not merely methods of committing crimes. Faller found expression in post-Quizon jurisprudence24 only by dint of lingering doctrinal confusion arising from an indiscriminate fusion of criminal law rules defining Article 365 crimes and the complexing of intentional crimes under Article 48 of the Revised Penal Code which, as will be shown shortly, rests on erroneous conception of quasi-crimes. Indeed, the Quizonian conception of quasi-crimes undergirded a related branch of jurisprudence applying the Double Jeopardy Clause to quasi-offenses, barring second prosecutions for a quasi-offense alleging one resulting act after a prior conviction or acquittal of a quasi-offense alleging another resulting act but arising from the same reckless act or omission upon which the second prosecution was based. Prior Reckless Subsequent Quasi-Offense

Conviction Prosecution

or Imprudence for

Acquittal the

of Bars Same

The doctrine that reckless imprudence under Article 365 is a single quasi-offense by itself and not merely a means to commit other crimes such that conviction or acquittal of such quasioffense bars subsequent prosecution for the same quasi-offense, regardless of its various resulting acts, undergirded this Court’s unbroken chain of jurisprudence on double jeopardy as applied to Article 365 starting with People v. Diaz, 25 decided in 1954. There, a full Court, speaking through Mr. Justice Montemayor, ordered the dismissal of a case for "damage to property thru reckless imprudence" because a prior case against the same accused for "reckless driving," arising from the same act upon which the first prosecution was based, had been dismissed earlier. Since then, whenever the same legal question was brought before the Court, that is, whether prior conviction or acquittal of reckless imprudence bars subsequent prosecution for the same quasi-offense, regardless of the consequences alleged for both charges, the Court unfailingly and consistently answered in the affirmative in People v. Belga26(promulgated in 1957 by the Court en banc, per Reyes, J.), Yap v. Lutero27 (promulgated in 1959, unreported, per Concepcion, J.), People v. Narvas28 (promulgated in 1960 by the Court en banc, per Bengzon J.), People v. Silva29 (promulgated in 1962 by the Court en banc, per Paredes, J.), People v. Macabuhay30 (promulgated in 1966 by the Court en banc, per Makalintal, J.), People v.

Buan31 (promulgated in 1968 by the Court en banc, per Reyes, J.B.L., acting C. J.), Buerano v. Court of Appeals32 (promulgated in 1982 by the Court en banc, per Relova, J.), and People v. City Court of Manila33 (promulgated in 1983 by the First Division, per Relova, J.). These cases uniformly barred the second prosecutions as constitutionally impermissible under the Double Jeopardy Clause. The reason for this consistent stance of extending the constitutional protection under the Double Jeopardy Clause to quasi-offenses was best articulated by Mr. Justice J.B.L. Reyes in Buan, where, in barring a subsequent prosecution for "serious physical injuries and damage to property thru reckless imprudence" because of the accused’s prior acquittal of "slight physical injuries thru reckless imprudence," with both charges grounded on the same act, the Court explained:34 Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi offense of criminal negligence under article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty, it does not qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense (criminal negligence) remains one and the same, and can not be split into different crimes and prosecutions.35 x x x (Emphasis supplied) Evidently, the Diaz line of jurisprudence on double jeopardy merely extended to its logical conclusion the reasoning of Quizon. There is in our jurisprudence only one ruling going against this unbroken line of authority. Preceding Diaz by more than a decade, El Pueblo de Filipinas v. Estipona, 36 decided by the pre-war colonial Court in November 1940, allowed the subsequent prosecution of an accused for reckless imprudence resulting in damage to property despite his previous conviction for multiple physical injuries arising from the same reckless operation of a motor vehicle upon which the second prosecution was based. Estipona’s inconsistency with the post-war Diaz chain of jurisprudence suffices to impliedly overrule it. At any rate, all doubts on this matter were laid to rest in 1982 in Buerano. 37 There, we reviewed the Court of Appeals’ conviction of an accused for "damage to property for reckless imprudence" despite his prior conviction for "slight and less serious physical injuries thru reckless imprudence," arising from the same act upon which the second charge was based. The Court of Appeals had relied on Estipona. We reversed on the strength of Buan:38 Th[e] view of the Court of Appeals was inspired by the ruling of this Court in the pre-war case of People vs. Estipona decided on November 14, 1940. However, in the case of People vs. Buan, 22 SCRA 1383 (March 29, 1968), this Court, speaking thru Justice J. B. L. Reyes, held that –

Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi offense of criminal negligence under Article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty, it does not qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense (criminal negligence) remains one and the same, and can not be split into different crimes and prosecutions. xxxx . . . the exoneration of this appellant, Jose Buan, by the Justice of the Peace (now Municipal) Court of Guiguinto, Bulacan, of the charge of slight physical injuries through reckless imprudence, prevents his being prosecuted for serious physical injuries through reckless imprudence in the Court of First Instance of the province, where both charges are derived from the consequences of one and the same vehicular accident, because the second accusation places the appellant in second jeopardy for the same offense.39 (Emphasis supplied) Thus, for all intents and purposes, Buerano had effectively overruled Estipona. It is noteworthy that the Solicitor General in Buerano, in a reversal of his earlier stance in Silva, joined causes with the accused, a fact which did not escape the Court’s attention: Then Solicitor General, now Justice Felix V. Makasiar, in his MANIFESTATION dated December 12, 1969 (page 82 of the Rollo) admits that the Court of Appeals erred in not sustaining petitioner’s plea of double jeopardy and submits that "its affirmatory decision dated January 28, 1969, in Criminal Case No. 05123-CR finding petitioner guilty of damage to property through reckless imprudence should be set aside, without costs." He stressed that "if double jeopardy exists where the reckless act resulted into homicide and physical injuries. then the same consequence must perforce follow where the same reckless act caused merely damage to property-not death-and physical injuries. Verily, the value of a human life lost as a result of a vehicular collision cannot be equated with any amount of damages caused to a motors vehicle arising from the same mishap."40 (Emphasis supplied) Hence, we find merit in petitioner’s submission that the lower courts erred in refusing to extend in his favor the mantle of protection afforded by the Double Jeopardy Clause. A more fitting jurisprudence could not be tailored to petitioner’s case than People v. Silva, 41 a Diaz progeny. There, the accused, who was also involved in a vehicular collision, was charged in two separate Informations with "Slight Physical Injuries thru Reckless Imprudence" and "Homicide with Serious Physical Injuries thru Reckless Imprudence." Following his acquittal of the former, the accused sought the quashal of the latter, invoking the Double Jeopardy Clause. The trial court initially denied relief, but, on reconsideration, found merit in the

accused’s claim and dismissed the second case. In affirming the trial court, we quoted with approval its analysis of the issue following Diaz and its progeny People v. Belga: 42 On June 26, 1959, the lower court reconsidered its Order of May 2, 1959 and dismissed the case, holding: — [T]he Court believes that the case falls squarely within the doctrine of double jeopardy enunciated in People v. Belga, x x x In the case cited, Ciriaco Belga and Jose Belga were charged in the Justice of the Peace Court of Malilipot, Albay, with the crime of physical injuries through reckless imprudence arising from a collision between the two automobiles driven by them (Crim. Case No. 88). Without the aforesaid complaint having been dismissed or otherwise disposed of, two other criminal complaints were filed in the same justice of the peace court, in connection with the same collision one for damage to property through reckless imprudence (Crim. Case No. 95) signed by the owner of one of the vehicles involved in the collision, and another for multiple physical injuries through reckless imprudence (Crim. Case No. 96) signed by the passengers injured in the accident. Both of these two complaints were filed against Jose Belga only. After trial, both defendants were acquitted of the charge against them in Crim. Case No. 88. Following his acquittal, Jose Belga moved to quash the complaint for multiple physical injuries through reckless imprudence filed against him by the injured passengers, contending that the case was just a duplication of the one filed by the Chief of Police wherein he had just been acquitted. The motion to quash was denied and after trial Jose Belga was convicted, whereupon he appealed to the Court of First Instance of Albay. In the meantime, the case for damage to property through reckless imprudence filed by one of the owners of the vehicles involved in the collision had been remanded to the Court of First Instance of Albay after Jose Belga had waived the second stage of the preliminary investigation. After such remand, the Provincial Fiscal filed in the Court of First Instance two informations against Jose Belga, one for physical injuries through reckless imprudence, and another for damage to property through reckless imprudence. Both cases were dismissed by the Court of First Instance, upon motion of the defendant Jose Belga who alleged double jeopardy in a motion to quash. On appeal by the Prov. Fiscal, the order of dismissal was affirmed by the Supreme Court in the following language: . The question for determination is whether the acquittal of Jose Belga in the case filed by the chief of police constitutes a bar to his subsequent prosecution for multiple physical injuries and damage to property through reckless imprudence. In the case of Peo[ple] v. F. Diaz, G. R. No. L-6518, prom. March 30, 1954, the accused was charged in the municipal court of Pasay City with reckless driving under sec. 52 of the Revised Motor Vehicle Law, for having driven an automobile in a ῾fast and reckless manner ... thereby causing an accident.’ After the accused had pleaded not guilty the case was dismissed in that court ῾for failure of the Government to prosecute’. But some time thereafter the city attorney filed an information in the Court of First Instance of Rizal, charging the same accused with damage to property thru reckless imprudence. The amount of the damage was alleged to beP249.50. Pleading double jeopardy, the accused filed a motion, and on appeal by the

Government we affirmed the ruling. Among other things we there said through Mr. Justice Montemayor —

in the identical case of Yap v. Hon. Lutero, etc., L-12669, April 30, 1959. 45 (Emphasis supplied)

The next question to determine is the relation between the first offense of violation of the Motor Vehicle Law prosecuted before the Pasay City Municipal Court and the offense of damage to property thru reckless imprudence charged in the Rizal Court of First Instance. One of the tests of double jeopardy is whether or not the second offense charged necessarily includes or is necessarily included in the offense charged in the former complaint or information (Rule 113, Sec. 9). Another test is whether the evidence which proves one would prove the other that is to say whether the facts alleged in the first charge if proven, would have been sufficient to support the second charge and vice versa; or whether one crime is an ingredient of the other. x x x

Article 48 Does not Under Article 365 of the Revised Penal Code

xxxx The foregoing language of the Supreme Court also disposes of the contention of the prosecuting attorney that the charge for slight physical injuries through reckless imprudence could not have been joined with the charge for homicide with serious physical injuries through reckless imprudence in this case, in view of the provisions of Art. 48 of the Revised Penal Code, as amended. The prosecution’s contention might be true. But neither was the prosecution obliged to first prosecute the accused for slight physical injuries through reckless imprudence before pressing the more serious charge of homicide with serious physical injuries through reckless imprudence. Having first prosecuted the defendant for the lesser offense in the Justice of the Peace Court of Meycauayan, Bulacan, which acquitted the defendant, the prosecuting attorney is not now in a position to press in this case the more serious charge of homicide with serious physical injuries through reckless imprudence which arose out of the same alleged reckless imprudence of which the defendant have been previously cleared by the inferior court.43 Significantly, the Solicitor General had urged us in Silva to reexamine Belga (and hence, Diaz) "for the purpose of delimiting or clarifying its application."44 We declined the invitation, thus: The State in its appeal claims that the lower court erred in dismissing the case, on the ground of double jeopardy, upon the basis of the acquittal of the accused in the JP court for Slight Physical Injuries, thru Reckless Imprudence. In the same breath said State, thru the Solicitor General, admits that the facts of the case at bar, fall squarely on the ruling of the Belga case x x x, upon which the order of dismissal of the lower court was anchored. The Solicitor General, however, urges a re-examination of said ruling, upon certain considerations for the purpose of delimiting or clarifying its application. We find, nevertheless, that further elucidation or disquisition on the ruling in the Belga case, the facts of which are analogous or similar to those in the present case, will yield no practical advantage to the government. On one hand, there is nothing which would warrant a delimitation or clarification of the applicability of the Belga case. It was clear. On the other, this Court has reiterated the views expressed in the Belga case,

Apply

to

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Penalized

The confusion bedeviling the question posed in this petition, to which the MeTC succumbed, stems from persistent but awkward attempts to harmonize conceptually incompatible substantive and procedural rules in criminal law, namely, Article 365 defining and penalizing quasi-offenses and Article 48 on complexing of crimes, both under the Revised Penal Code. Article 48 is a procedural device allowing single prosecution of multiple felonies falling under either of two categories: (1) when a single act constitutes two or more grave or less grave felonies (thus excluding from its operation light felonies 46); and (2) when an offense is a necessary means for committing the other. The legislature crafted this procedural tool to benefit the accused who, in lieu of serving multiple penalties, will only serve the maximum of the penalty for the most serious crime. In contrast, Article 365 is a substantive rule penalizing not an act defined as a felony but "the mental attitude x x x behind the act, the dangerous recklessness, lack of care or foresight x x x,"47 a single mental attitude regardless of the resulting consequences. Thus, Article 365 was crafted as one quasi-crime resulting in one or more consequences. Ordinarily, these two provisions will operate smoothly. Article 48 works to combine in a single prosecution multiple intentional crimes falling under Titles 1-13, Book II of the Revised Penal Code, when proper; Article 365 governs the prosecution of imprudent acts and their consequences. However, the complexities of human interaction can produce a hybrid quasioffense not falling under either models – that of a single criminal negligence resulting in multiple non-crime damages to persons and property with varying penalties corresponding to light, less grave or grave offenses. The ensuing prosecutorial dilemma is obvious: how should such a quasi-crime be prosecuted? Should Article 48’s framework apply to "complex" the single quasi-offense with its multiple (non-criminal) consequences (excluding those amounting to light offenses which will be tried separately)? Or should the prosecution proceed under a single charge, collectively alleging all the consequences of the single quasi-crime, to be penalized separately following the scheme of penalties under Article 365? Jurisprudence adopts both approaches. Thus, one line of rulings (none of which involved the issue of double jeopardy) applied Article 48 by "complexing" one quasi-crime with its multiple consequences48 unless one consequence amounts to a light felony, in which case charges were split by grouping, on the one hand, resulting acts amounting to grave or less grave felonies and filing the charge with the second level courts and, on the other hand, resulting acts amounting to light felonies and filing the charge with the first level courts.49 Expectedly, this is the approach the MeTC impliedly sanctioned (and respondent Ponce invokes), even though under Republic Act No. 7691, 50 the MeTC has now exclusive

original jurisdiction to impose the most serious penalty under Article 365 which is prision correccional in its medium period. Under this approach, the issue of double jeopardy will not arise if the "complexing" of acts penalized under Article 365 involves only resulting acts penalized as grave or less grave felonies because there will be a single prosecution of all the resulting acts. The issue of double jeopardy arises if one of the resulting acts is penalized as a light offense and the other acts are penalized as grave or less grave offenses, in which case Article 48 is not deemed to apply and the act penalized as a light offense is tried separately from the resulting acts penalized as grave or less grave offenses.

A becoming regard of this Court’s place in our scheme of government denying it the power to make laws constrains us to keep inviolate the conceptual distinction between quasi-crimes and intentional felonies under our penal code. Article 48 is incongruent to the notion of quasicrimes under Article 365. It is conceptually impossible for a quasi-offense to stand for (1) a single act constituting two or more grave or less grave felonies; or (2) anoffense which is a necessary means for committing another. This is why, way back in 1968 in Buan, we rejected the Solicitor General’s argument that double jeopardy does not bar a second prosecution for slight physical injuries through reckless imprudence allegedly because the charge for that offense could not be joined with the other charge for serious physical injuries through reckless imprudence following Article 48 of the Revised Penal Code:

The second jurisprudential path nixes Article 48 and sanctions a single prosecution of all the effects of the quasi-crime collectively alleged in one charge, regardless of their number or severity,51 penalizing each consequence separately. Thus, in Angeles v. Jose, 52 we interpreted paragraph three of Article 365, in relation to a charge alleging "reckless imprudence resulting in damage to property and less serious physical injuries," as follows:

The Solicitor General stresses in his brief that the charge for slight physical injuries through reckless imprudence could not be joined with the accusation for serious physical injuries through reckless imprudence, because Article 48 of the Revised Penal Code allows only the complexing of grave or less grave felonies. This same argument was considered and rejected by this Court in the case of People vs. [Silva] x x x:

[T]he third paragraph of said article, x x x reads as follows:

[T]he prosecution’s contention might be true. But neither was the prosecution obliged to first prosecute the accused for slight physical injuries through reckless imprudence before pressing the more serious charge of homicide with serious physical injuries through reckless imprudence. Having first prosecuted the defendant for the lesser offense in the Justice of the Peace Court of Meycauayan, Bulacan, which acquitted the defendant, the prosecuting attorney is not now in a position to press in this case the more serious charge of homicide with serious physical injuries through reckless imprudence which arose out of the same alleged reckless imprudence of which the defendant has been previously cleared by the inferior court.

When the execution of the act covered by this article shall have only resulted in damage to the property of another, the offender shall be punished by a fine ranging from an amount equal to the value of said damage to three times such value, but which shall in no case be less than 25 pesos. The above-quoted provision simply means that if there is only damage to property the amount fixed therein shall be imposed, but if there are also physical injuries there should be an additional penalty for the latter. The information cannot be split into two; one for the physical injuries, and another for the damage to property, x x x. 53(Emphasis supplied) By "additional penalty," the Court meant, logically, the penalty scheme under Article 365. Evidently, these approaches, while parallel, are irreconcilable. Coherence in this field demands choosing one framework over the other. Either (1) we allow the "complexing" of a single quasi-crime by breaking its resulting acts into separate offenses (except for light felonies), thus re-conceptualize a quasi-crime, abandon its present framing under Article 365, discard its conception under the Quizon and Diaz lines of cases, and treat the multiple consequences of a quasi-crime as separate intentional felonies defined under Titles 1-13, Book II under the penal code; or (2) we forbid the application of Article 48 in the prosecution and sentencing of quasicrimes, require single prosecution of all the resulting acts regardless of their number and severity, separately penalize each as provided in Article 365, and thus maintain the distinct concept of quasi-crimes as crafted under Article 365, articulated in Quizon and applied to double jeopardy adjudication in the Diaz line of cases.1avvphi1

[W]e must perforce rule that the exoneration of this appellant x x x by the Justice of the Peace x x x of the charge of slight physical injuries through reckless imprudence, prevents his being prosecuted for serious physical injuries through reckless imprudence in the Court of First Instance of the province, where both charges are derived from the consequences of one and the same vehicular accident, because the second accusation places the appellant in second jeopardy for the same offense.54 (Emphasis supplied) Indeed, this is a constitutionally compelled choice. By prohibiting the splitting of charges under Article 365, irrespective of the number and severity of the resulting acts, rampant occasions of constitutionally impermissible second prosecutions are avoided, not to mention that scarce state resources are conserved and diverted to proper use. Hence, we hold that prosecutions under Article 365 should proceed from a single charge regardless of the number or severity of the consequences. In imposing penalties, the judge will do no more than apply the penalties under Article 365 for each consequence alleged and proven. In short, there shall be no splitting of charges under Article 365, and only one information shall be filed in the same first level court. 55

Our ruling today secures for the accused facing an Article 365 charge a stronger and simpler protection of their constitutional right under the Double Jeopardy Clause. True, they are thereby denied the beneficent effect of the favorable sentencing formula under Article 48, but any disadvantage thus caused is more than compensated by the certainty of non-prosecution for quasi-crime effects qualifying as "light offenses" (or, as here, for the more serious consequence prosecuted belatedly). If it is so minded, Congress can re-craft Article 365 by extending to quasi-crimes the sentencing formula of Article 48 so that only the most severe penalty shall be imposed under a single prosecution of all resulting acts, whether penalized as grave, less grave or light offenses. This will still keep intact the distinct concept of quasioffenses. Meanwhile, the lenient schedule of penalties under Article 365, befitting crimes occupying a lower rung of culpability, should cushion the effect of this ruling. WHEREFORE, we GRANT the petition. We REVERSE the Orders dated 2 February 2006 and 2 May 2006 of the Regional Trial Court of Pasig City, Branch 157. We DISMISS the Information in Criminal Case No. 82366 against petitioner Jason Ivler y Aguilar pending with the Metropolitan Trial Court of Pasig City, Branch 71 on the ground of double jeopardy. Let a copy of this ruling be served on the President of the Senate and the Speaker of the House of Representatives. SO ORDERED.

G.R. No. 151258

February 1, 2012

ARTEMIO VILLAREAL, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. x-----------------------x G.R. No. 154954 PEOPLE OF THE PHILIPPINES, Petitioner, vs. The HONORABLE COURT OF APPEALS, ANTONIO MARIANO ALMEDA, DALMACIO LIM, Jr., JUNEL ANTHONY AMA, ERNESTO JOSE MONTECILLO, VINCENT TECSON, ANTONIO GENERAL, SANTIAGO RANADA III, NELSON VICTORINO, JAIME MARIA FLORES II, ZOSIMO MENDOZA, MICHAEL MUSNGI, VICENTE VERDADERO, ETIENNE GUERRERO, JUDE FERNANDEZ, AMANTE PURISIMA II, EULOGIO SABBAN, PERCIVAL BRIGOLA, PAUL ANGELO SANTOS, JONAS KARL B. PEREZ, RENATO BANTUG, JR., ADEL ABAS, JOSEPH LLEDO, and RONAN DE GUZMAN, Respondents. x-----------------------x G.R. No. 155101 FIDELITO DIZON, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent.

special law, which became effective in 1995, that would criminalize hazing. 2 The intent of the law was to discourage members from making hazing a requirement for joining their sorority, fraternity, organization, or association. 3 Moreover, the law was meant to counteract the exculpatory implications of "consent" and "initial innocent act" in the conduct of initiation rites by making the mere act of hazing punishable or mala prohibita. 4 Sadly, the Lenny Villa tragedy did not discourage hazing activities in the country. 5 Within a year of his death, six more cases of hazing-related deaths emerged – those of Frederick Cahiyang of the University of Visayas in Cebu; Raul Camaligan of San Beda College; Felipe Narne of Pamantasan ng Araullo in Cabanatuan City; Dennis Cenedoza of the Cavite Naval Training Center; Joselito Mangga of the Philippine Merchant Marine Institute; and Joselito Hernandez of the University of the Philippines in Baguio City.6 Although courts must not remain indifferent to public sentiments, in this case the general condemnation of a hazing-related death, they are still bound to observe a fundamental principle in our criminal justice system – "[N]o act constitutes a crime… unless it is made so by law."7 Nullum crimen, nulla poena sine lege. Even if an act is viewed by a large section of the populace as immoral or injurious, it cannot be considered a crime, absent any law prohibiting its commission. As interpreters of the law, judges are called upon to set aside emotion, to resist being swayed by strong public sentiments, and to rule strictly based on the elements of the offense and the facts allowed in evidence. Before the Court are the consolidated cases docketed as G.R. No. 151258 (Villareal v. People), G.R. No. 154954 (People v. Court of Appeals), G.R. No. 155101 (Dizon v. People), and G.R. Nos. 178057 and 178080 (Villa v. Escalona). Facts The pertinent facts, as determined by the Court of Appeals (CA) 8 and the trial court,9 are as follows:

x-----------------------x G.R. Nos. 178057 & 178080 GERARDA H. VILLA, Petitioner, vs. MANUEL LORENZO ESCALONA II, MARCUS JOEL CAPELLAN RAMOS, CRISANTO CRUZ SARUCA, Jr., and ANSELMO ADRIANO, Respondents. DECISION SERENO, J.: The public outrage over the death of Leonardo "Lenny" Villa – the victim in this case – on 10 February 1991 led to a very strong clamor to put an end to hazing. 1 Due in large part to the brave efforts of his mother, petitioner Gerarda Villa, groups were organized, condemning his senseless and tragic death. This widespread condemnation prompted Congress to enact a

In February 1991, seven freshmen law students of the Ateneo de Manila University School of Law signified their intention to join the Aquila Legis Juris Fraternity (Aquila Fraternity). They were Caesar "Bogs" Asuncion, Samuel "Sam" Belleza, Bienvenido "Bien" Marquez III, Roberto Francis "Bert" Navera, Geronimo "Randy" Recinto, Felix Sy, Jr., and Leonardo "Lenny" Villa (neophytes). On the night of 8 February 1991, the neophytes were met by some members of the Aquila Fraternity (Aquilans) at the lobby of the Ateneo Law School. They all proceeded to Rufo’s Restaurant to have dinner. Afterwards, they went to the house of Michael Musngi, also an Aquilan, who briefed the neophytes on what to expect during the initiation rites. The latter were informed that there would be physical beatings, and that they could quit at any time. Their initiation rites were scheduled to last for three days. After their "briefing," they were brought to the Almeda Compound in Caloocan City for the commencement of their initiation. Even before the neophytes got off the van, they had already received threats and insults from the Aquilans. As soon as the neophytes alighted from the van and walked towards the pelota

court of the Almeda compound, some of the Aquilans delivered physical blows to them. The neophytes were then subjected to traditional forms of Aquilan "initiation rites." These rites included the "Indian Run," which required the neophytes to run a gauntlet of two parallel rows of Aquilans, each row delivering blows to the neophytes; the "Bicol Express," which obliged the neophytes to sit on the floor with their backs against the wall and their legs outstretched while the Aquilans walked, jumped, or ran over their legs; the "Rounds," in which the neophytes were held at the back of their pants by the "auxiliaries" (the Aquilans charged with the duty of lending assistance to neophytes during initiation rites), while the latter were being hit with fist blows on their arms or with knee blows on their thighs by two Aquilans; and the "Auxies’ Privilege Round," in which the auxiliaries were given the opportunity to inflict physical pain on the neophytes. During this time, the neophytes were also indoctrinated with the fraternity principles. They survived their first day of initiation. On the morning of their second day – 9 February 1991 – the neophytes were made to present comic plays and to play rough basketball. They were also required to memorize and recite the Aquila Fraternity’s principles. Whenever they would give a wrong answer, they would be hit on their arms or legs. Late in the afternoon, the Aquilans revived the initiation rites proper and proceeded to torment them physically and psychologically. The neophytes were subjected to the same manner of hazing that they endured on the first day of initiation. After a few hours, the initiation for the day officially ended. After a while, accused non-resident or alumni fraternity members 10 Fidelito Dizon (Dizon) and Artemio Villareal (Villareal) demanded that the rites be reopened. The head of initiation rites, Nelson Victorino (Victorino), initially refused. Upon the insistence of Dizon and Villareal, however, he reopened the initiation rites. The fraternity members, including Dizon and Villareal, then subjected the neophytes to "paddling" and to additional rounds of physical pain. Lenny received several paddle blows, one of which was so strong it sent him sprawling to the ground. The neophytes heard him complaining of intense pain and difficulty in breathing. After their last session of physical beatings, Lenny could no longer walk. He had to be carried by the auxiliaries to the carport. Again, the initiation for the day was officially ended, and the neophytes started eating dinner. They then slept at the carport. After an hour of sleep, the neophytes were suddenly roused by Lenny’s shivering and incoherent mumblings. Initially, Villareal and Dizon dismissed these rumblings, as they thought he was just overacting. When they realized, though, that Lenny was really feeling cold, some of the Aquilans started helping him. They removed his clothes and helped him through a sleeping bag to keep him warm. When his condition worsened, the Aquilans rushed him to the hospital. Lenny was pronounced dead on arrival. Consequently, a criminal case for homicide was filed against the following 35 Aquilans: In Criminal Case No. C-38340(91) 1. Fidelito Dizon (Dizon) 2. Artemio Villareal (Villareal) 3. Efren de Leon (De Leon)

4. Vincent Tecson (Tecson) 5. Junel Anthony Ama (Ama) 6. Antonio Mariano Almeda (Almeda) 7. Renato Bantug, Jr. (Bantug) 8. Nelson Victorino (Victorino) 9. Eulogio Sabban (Sabban) 10. Joseph Lledo (Lledo) 11. Etienne Guerrero (Guerrero) 12. Michael Musngi (Musngi) 13. Jonas Karl Perez (Perez) 14. Paul Angelo Santos (Santos) 15. Ronan de Guzman (De Guzman) 16. Antonio General (General) 17. Jaime Maria Flores II (Flores) 18. Dalmacio Lim, Jr. (Lim) 19. Ernesto Jose Montecillo (Montecillo) 20. Santiago Ranada III (Ranada) 21. Zosimo Mendoza (Mendoza) 22. Vicente Verdadero (Verdadero) 23. Amante Purisima II (Purisima) 24. Jude Fernandez (J. Fernandez) 25. Adel Abas (Abas)

26. Percival Brigola (Brigola)

were also ordered to jointly pay the heirs of the victim the sum of P30,000 as indemnity.

In Criminal Case No. C-38340 1. Manuel Escalona II (Escalona) 2. Crisanto Saruca, Jr. (Saruca) 3. Anselmo Adriano (Adriano) 4. Marcus Joel Ramos (Ramos) 5. Reynaldo Concepcion (Concepcion) 6. Florentino Ampil (Ampil)

3. Two of the accused-appellants – Fidelito Dizon and Artemio Villareal – were found guilty beyond reasonable doubt of the crime of homicide under Article 249 of the Revised Penal Code. Having found no mitigating or aggravating circ*mstance, the CA sentenced them to an indeterminate sentence of 10 years of prision mayor to 17 years of reclusion temporal. They were also ordered to indemnify, jointly and severally, the heirs of Lenny Villa in the sum of P 50,000 and to pay the additional amount of P 1,000,000 by way of moral damages. On 5 August 2002, the trial court in Criminal Case No. 38340 dismissed the charge against accused Concepcion on the ground of violation of his right to speedy trial. 16 Meanwhile, on different dates between the years 2003 and 2005, the trial court denied the respective Motions to Dismiss of accused Escalona, Ramos, Saruca, and Adriano. 17 On 25 October 2006, the CA in CA-G.R. SP Nos. 89060 & 9015318 reversed the trial court’s Orders and dismissed the criminal case against Escalona, Ramos, Saruca, and Adriano on the basis of violation of their right to speedy trial.19

7. Enrico de Vera III (De Vera) 8. Stanley Fernandez (S. Fernandez)

From the aforementioned Decisions, the five (5) consolidated Petitions were individually brought before this Court.

9. Noel Cabangon (Cabangon)

G.R. No. 151258 – Villareal v. People

Twenty-six of the accused Aquilans in Criminal Case No. C-38340(91) were jointly tried.11 On the other hand, the trial against the remaining nine accused in Criminal Case No. C-38340 was held in abeyance due to certain matters that had to be resolved first. 12 On 8 November 1993, the trial court rendered judgment in Criminal Case No. C-38340(91), holding the 26 accused guilty beyond reasonable doubt of the crime of homicide, penalized with reclusion temporal under Article 249 of the Revised Penal Code. 13 A few weeks after the trial court rendered its judgment, or on 29 November 1993, Criminal Case No. C-38340 against the remaining nine accused commenced anew.14 On 10 January 2002, the CA in (CA-G.R. No. 15520) 15 set aside the finding of conspiracy by the trial court in Criminal Case No. C-38340(91) and modified the criminal liability of each of the accused according to individual participation. Accused De Leon had by then passed away, so the following Decision applied only to the remaining 25 accused, viz: 1. Nineteen of the accused-appellants – Victorino, Sabban, Lledo, Guerrero, Musngi, Perez, De Guzman, Santos, General, Flores, Lim, Montecillo, Ranada, Mendoza, Verdadero, Purisima, Fernandez, Abas, and Brigola (Victorino et al.) – were acquitted, as their individual guilt was not established by proof beyond reasonable doubt. 2. Four of the accused-appellants – Vincent Tecson, Junel Anthony Ama, Antonio Mariano Almeda, and Renato Bantug, Jr. (Tecson et al.) – were found guilty of the crime of slight physical injuries and sentenced to 20 days of arresto menor. They

The instant case refers to accused Villareal’s Petition for Review on Certiorari under Rule 45. The Petition raises two reversible errors allegedly committed by the CA in its Decision dated 10 January 2002 in CA-G.R. No. 15520 – first, denial of due process; and, second, conviction absent proof beyond reasonable doubt.20 While the Petition was pending before this Court, counsel for petitioner Villareal filed a Notice of Death of Party on 10 August 2011. According to the Notice, petitioner Villareal died on 13 March 2011. Counsel thus asserts that the subject matter of the Petition previously filed by petitioner does not survive the death of the accused. G.R. No. 155101 – Dizon v. People Accused Dizon filed a Rule 45 Petition for Review on Certiorari, questioning the CA’s Decision dated 10 January 2002 and Resolution dated 30 August 2002 in CA-G.R. No. 15520.21 Petitioner sets forth two main issues – first, that he was denied due process when the CA sustained the trial court’s forfeiture of his right to present evidence; and, second, that he was deprived of due process when the CA did not apply to him the same "ratio decidendi that served as basis of acquittal of the other accused."22 As regards the first issue, the trial court made a ruling, which forfeited Dizon’s right to present evidence during trial. The trial court expected Dizon to present evidence on an earlier date since a co-accused, Antonio General, no longer presented separate evidence during trial. According to Dizon, his right should not have been considered as waived because he was justified in asking for a postponement. He argues that he did not ask for a resetting of any of

the hearing dates and in fact insisted that he was ready to present evidence on the original preassigned schedule, and not on an earlier hearing date. Regarding the second issue, petitioner contends that he should have likewise been acquitted, like the other accused, since his acts were also part of the traditional initiation rites and were not tainted by evil motives.23 He claims that the additional paddling session was part of the official activity of the fraternity. He also points out that one of the neophytes admitted that the chairperson of the initiation rites "decided that [Lenny] was fit enough to undergo the initiation so Mr. Villareal proceeded to do the paddling…." 24 Further, petitioner echoes the argument of the Solicitor General that "the individual blows inflicted by Dizon and Villareal could not have resulted in Lenny’s death."25 The Solicitor General purportedly averred that, "on the contrary, Dr. Arizala testified that the injuries suffered by Lenny could not be considered fatal if taken individually, but if taken collectively, the result is the violent death of the victim."26 Petitioner then counters the finding of the CA that he was motivated by ill will. He claims that Lenny’s father could not have stolen the parking space of Dizon’s father, since the latter did not have a car, and their fathers did not work in the same place or office. Revenge for the loss of the parking space was the alleged ill motive of Dizon. According to petitioner, his utterances regarding a stolen parking space were only part of the "psychological initiation." He then cites the testimony of Lenny’s co-neophyte – witness Marquez – who admitted knowing "it was not true and that he was just making it up…."27 Further, petitioner argues that his alleged motivation of ill will was negated by his show of concern for Villa after the initiation rites. Dizon alludes to the testimony of one of the neophytes, who mentioned that the former had kicked the leg of the neophyte and told him to switch places with Lenny to prevent the latter’s chills. When the chills did not stop, Dizon, together with Victorino, helped Lenny through a sleeping bag and made him sit on a chair. According to petitioner, his alleged ill motivation is contradicted by his manifestation of compassion and concern for the victim’s well-being. G.R. No. 154954 – People v. Court of Appeals

Petitioner also argues that the rule on double jeopardy is inapplicable. According to the Solicitor General, the CA acted with grave abuse of discretion, amounting to lack or excess of jurisdiction, in setting aside the trial court’s finding of conspiracy and in ruling that the criminal liability of all the accused must be based on their individual participation in the commission of the crime. G.R. Nos. 178057 and 178080 – Villa v. Escalona Petitioner Villa filed the instant Petition for Review on Certiorari, praying for the reversal of the CA’s Decision dated 25 October 2006 and Resolution dated 17 May 2007 in CA-G.R. S.P. Nos. 89060 and 90153.30 The Petition involves the dismissal of the criminal charge filed against Escalona, Ramos, Saruca, and Adriano. Due to "several pending incidents," the trial court ordered a separate trial for accused Escalona, Saruca, Adriano, Ramos, Ampil, Concepcion, De Vera, S. Fernandez, and Cabangon (Criminal Case No. C-38340) to commence after proceedings against the 26 other accused in Criminal Case No. C-38340(91) shall have terminated. On 8 November 1993, the trial court found the 26 accused guilty beyond reasonable doubt. As a result, the proceedings in Criminal Case No. C-38340 involving the nine other co-accused recommenced on 29 November 1993. For "various reasons," the initial trial of the case did not commence until 28 March 2005, or almost 12 years after the arraignment of the nine accused. Petitioner Villa assails the CA’s dismissal of the criminal case involving 4 of the 9 accused, namely, Escalona, Ramos, Saruca, and Adriano. She argues that the accused failed to assert their right to speedy trial within a reasonable period of time. She also points out that the prosecution cannot be faulted for the delay, as the original records and the required evidence were not at its disposal, but were still in the appellate court. We resolve herein the various issues that we group into five. Issues

This Petition for Certiorari under Rule 65 seeks the reversal of the CA’s Decision dated 10 January 2002 and Resolution dated 30 August 2002 in CA-G.R. No. 15520, insofar as it acquitted 19 (Victorino et al.) and convicted 4 (Tecson et al.) of the accused Aquilans of the lesser crime of slight physical injuries. 28 According to the Solicitor General, the CA erred in holding that there could have been no conspiracy to commit hazing, as hazing or fraternity initiation had not yet been criminalized at the time Lenny died.

1. Whether the forfeiture of petitioner Dizon’s right to present evidence constitutes denial of due process;

In the alternative, petitioner claims that the ruling of the trial court should have been upheld, inasmuch as it found that there was conspiracy to inflict physical injuries on Lenny. Since the injuries led to the victim’s death, petitioner posits that the accused Aquilans are criminally liable for the resulting crime of homicide, pursuant to Article 4 of the Revised Penal Code.29 The said article provides: "Criminal liability shall be incurred… [b]y any person committing a felony (delito) although the wrongful act done be different from that which he intended."

3. Whether the CA committed grave abuse of discretion, amounting to lack or excess of jurisdiction, when it set aside the finding of conspiracy by the trial court and adjudicated the liability of each accused according to individual participation;

2. Whether the CA committed grave abuse of discretion, amounting to lack or excess of jurisdiction when it dismissed the case against Escalona, Ramos, Saruca, and Adriano for violation of the right of the accused to speedy trial;

4. Whether accused Dizon is guilty of homicide; and 5. Whether the CA committed grave abuse of discretion when it pronounced Tecson, Ama, Almeda, and Bantug guilty only of slight physical injuries.

Discussion Resolution on Preliminary Matters G.R. No. 151258 – Villareal v. People In a Notice dated 26 September 2011 and while the Petition was pending resolution, this Court took note of counsel for petitioner’s Notice of Death of Party. According to Article 89(1) of the Revised Penal Code, criminal liability for personal penalties is totally extinguished by the death of the convict. In contrast, criminal liability for pecuniary penalties is extinguished if the offender dies prior to final judgment. The term "personal penalties" refers to the service of personal or imprisonment penalties, 31 while the term "pecuniary penalties" (las pecuniarias) refers to fines and costs, 32 including civil liability predicated on the criminal offense complained of (i.e., civil liability ex delicto). 33 However, civil liability based on a source of obligation other than the delict survives the death of the accused and is recoverable through a separate civil action. 34 Thus, we hold that the death of petitioner Villareal extinguished his criminal liability for both personal and pecuniary penalties, including his civil liability directly arising from the delict complained of. Consequently, his Petition is hereby dismissed, and the criminal case against him deemed closed and terminated. G.R. No. 155101 (Dizon v. People) In an Order dated 28 July 1993, the trial court set the dates for the reception of evidence for accused-petitioner Dizon on the 8th, 15th, and 22nd of September; and the 5th and 12 of October 1993.35 The Order likewise stated that "it will not entertain any postponement and that all the accused who have not yet presented their respective evidence should be ready at all times down the line, with their evidence on all said dates. Failure on their part to present evidence when required shall therefore be construed as waiver to present evidence." 36 However, on 19 August 1993, counsel for another accused manifested in open court that his client – Antonio General – would no longer present separate evidence. Instead, the counsel would adopt the testimonial evidence of the other accused who had already testified. 37 Because of this development and pursuant to the trial court’s Order that the parties "should be ready at all times down the line," the trial court expected Dizon to present evidence on the next trial date – 25 August 1993 – instead of his originally assigned dates. The original dates were supposed to start two weeks later, or on 8 September 1993. 38 Counsel for accused Dizon was not able to present evidence on the accelerated date. To address the situation, counsel filed a Constancia on 25 August 1993, alleging that he had to appear in a previously scheduled case, and that he would be ready to present evidence on the dates originally assigned to his clients.39 The trial court denied the Manifestation on the same date and treated the Constancia as a motion for postponement, in violation of the three-day-notice rule under the Rules of Court.40 Consequently, the trial court ruled that the failure of Dizon to present evidence amounted to a waiver of that right.41

Accused-petitioner Dizon thus argues that he was deprived of due process of law when the trial court forfeited his right to present evidence. According to him, the postponement of the 25 August 1993 hearing should have been considered justified, since his original pre-assigned trial dates were not supposed to start until 8 September 1993, when he was scheduled to present evidence. He posits that he was ready to present evidence on the dates assigned to him. He also points out that he did not ask for a resetting of any of the said hearing dates; that he in fact insisted on being allowed to present evidence on the dates fixed by the trial court. Thus, he contends that the trial court erred in accelerating the schedule of presentation of evidence, thereby invalidating the finding of his guilt. The right of the accused to present evidence is guaranteed by no less than the Constitution itself.42 Article III, Section 14(2) thereof, provides that "in all criminal prosecutions, the accused … shall enjoy the right to be heard by himself and counsel…" This constitutional right includes the right to present evidence in one’s defense, 43 as well as the right to be present and defend oneself in person at every stage of the proceedings. 44 In Crisostomo v. Sandiganbayan, 45 the Sandiganbayan set the hearing of the defense’s presentation of evidence for 21, 22 and 23 June 1995. The 21 June 1995 hearing was cancelled due to "lack of quorum in the regular membership" of the Sandiganbayan’s Second Division and upon the agreement of the parties. The hearing was reset for the next day, 22 June 1995, but Crisostomo and his counsel failed to attend. The Sandiganbayan, on the very same day, issued an Order directing the issuance of a warrant for the arrest of Crisostomo and the confiscation of his surety bond. The Order further declared that he had waived his right to present evidence because of his nonappearance at "yesterday’s and today’s scheduled hearings." In ruling against the Order, we held thus: Under Section 2(c), Rule 114 and Section 1(c), Rule 115 of the Rules of Court, Crisostomo’s non-appearance during the 22 June 1995 trial was merely a waiver of his right to be present for trial on such date only and not for the succeeding trial dates… xxx

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Moreover, Crisostomo’s absence on the 22 June 1995 hearing should not have been deemed as a waiver of his right to present evidence. While constitutional rights may be waived, such waiver must be clear and must be coupled with an actual intention to relinquish the right. Crisostomo did not voluntarily waive in person or even through his counsel the right to present evidence. The Sandiganbayan imposed the waiver due to the agreement of the prosecution, Calingayan, and Calingayan's counsel. In criminal cases where the imposable penalty may be death, as in the present case, the court is called upon to see to it that the accused is personally made aware of the consequences of a waiver of the right to present evidence. In fact, it is not enough that the accused is simply warned of the consequences of another failure to attend the succeeding hearings. The court must first explain to the accused personally in clear terms the exact nature and consequences of a waiver. Crisostomo was not even forewarned. The Sandiganbayan simply went ahead to deprive Crisostomo of his right to present evidence without even allowing Crisostomo to explain his absence on the 22 June 1995 hearing.

Clearly, the waiver of the right to present evidence in a criminal case involving a grave penalty is not assumed and taken lightly. The presence of the accused and his counsel is indispensable so that the court could personally conduct a searching inquiry into the waiver x x x.46 (Emphasis supplied) The trial court should not have deemed the failure of petitioner to present evidence on 25 August 1993 as a waiver of his right to present evidence. On the contrary, it should have considered the excuse of counsel justified, especially since counsel for another accused – General – had made a last-minute adoption of testimonial evidence that freed up the succeeding trial dates; and since Dizon was not scheduled to testify until two weeks later. At any rate, the trial court pre-assigned five hearing dates for the reception of evidence. If it really wanted to impose its Order strictly, the most it could have done was to forfeit one out of the five days set for Dizon’s testimonial evidence. Stripping the accused of all his pre-assigned trial dates constitutes a patent denial of the constitutionally guaranteed right to due process. Nevertheless, as in the case of an improvident guilty plea, an invalid waiver of the right to present evidence and be heard does not per se work to vacate a finding of guilt in the criminal case or to enforce an automatic remand of the case to the trial court. 47 In People v. Bodoso, we ruled that where facts have adequately been represented in a criminal case, and no procedural unfairness or irregularity has prejudiced either the prosecution or the defense as a result of the invalid waiver, the rule is that a guilty verdict may nevertheless be upheld if the judgment is supported beyond reasonable doubt by the evidence on record. 48 We do not see any material inadequacy in the relevant facts on record to resolve the case at bar. Neither can we see any "procedural unfairness or irregularity" that would substantially prejudice either the prosecution or the defense as a result of the invalid waiver. In fact, the arguments set forth by accused Dizon in his Petition corroborate the material facts relevant to decide the matter. Instead, what he is really contesting in his Petition is the application of the law to the facts by the trial court and the CA. Petitioner Dizon admits direct participation in the hazing of Lenny Villa by alleging in his Petition that "all actions of the petitioner were part of the traditional rites," and that "the alleged extension of the initiation rites was not outside the official activity of the fraternity." 49He even argues that "Dizon did not request for the extension and he participated only after the activity was sanctioned." 50 For one reason or another, the case has been passed or turned over from one judge or justice to another – at the trial court, at the CA, and even at the Supreme Court. Remanding the case for the reception of the evidence of petitioner Dizon would only inflict further injustice on the parties. This case has been going on for almost two decades. Its resolution is long overdue. Since the key facts necessary to decide the case have already been determined, we shall proceed to decide it. G.R. Nos. 178057 and 178080 (Villa v. Escalona) Petitioner Villa argues that the case against Escalona, Ramos, Saruca, and Adriano should not have been dismissed, since they failed to assert their right to speedy trial within a reasonable period of time. She points out that the accused failed to raise a protest during the dormancy of the criminal case against them, and that they asserted their right only after the trial court had dismissed the case against their co-accused Concepcion. Petitioner also emphasizes that the trial court denied the respective Motions to Dismiss filed by Saruca, Escalona, Ramos, and

Adriano, because it found that "the prosecution could not be faulted for the delay in the movement of this case when the original records and the evidence it may require were not at its disposal as these were in the Court of Appeals."51 The right of the accused to a speedy trial has been enshrined in Sections 14(2) and 16, Article III of the 1987 Constitution. 52 This right requires that there be a trial free from vexatious, capricious or oppressive delays. 53 The right is deemed violated when the proceeding is attended with unjustified postponements of trial, or when a long period of time is allowed to elapse without the case being tried and for no cause or justifiable motive. 54 In determining the right of the accused to speedy trial, courts should do more than a mathematical computation of the number of postponements of the scheduled hearings of the case. 55 The conduct of both the prosecution and the defense must be weighed. 56 Also to be considered are factors such as the length of delay, the assertion or non-assertion of the right, and the prejudice wrought upon the defendant.57 We have consistently ruled in a long line of cases that a dismissal of the case pursuant to the right of the accused to speedy trial is tantamount to acquittal. 58 As a consequence, an appeal or a reconsideration of the dismissal would amount to a violation of the principle of double jeopardy.59 As we have previously discussed, however, where the dismissal of the case is capricious, certiorari lies.60 The rule on double jeopardy is not triggered when a petition challenges the validity of the order of dismissal instead of the correctness thereof. 61 Rather, grave abuse of discretion amounts to lack of jurisdiction, and lack of jurisdiction prevents double jeopardy from attaching.62 We do not see grave abuse of discretion in the CA’s dismissal of the case against accused Escalona, Ramos, Saruca, and Adriano on the basis of the violation of their right to speedy trial. The court held thus: An examination of the procedural history of this case would reveal that the following factors contributed to the slow progress of the proceedings in the case below: xxx

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5) The fact that the records of the case were elevated to the Court of Appeals and the prosecution’s failure to comply with the order of the court a quo requiring them to secure certified true copies of the same. xxx

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While we are prepared to concede that some of the foregoing factors that contributed to the delay of the trial of the petitioners are justifiable, We nonetheless hold that their right to speedy trial has been utterly violated in this case x x x. xxx

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[T]he absence of the records in the trial court [was] due to the fact that the records of the case were elevated to the Court of Appeals, and the prosecution’s failure to comply with the order of the court a quo requiring it to secure certified true copies of the same. What is glaring from

the records is the fact that as early as September 21, 1995, the court a quo already issued an Order requiring the prosecution, through the Department of Justice, to secure the complete records of the case from the Court of Appeals. The prosecution did not comply with the said Order as in fact, the same directive was repeated by the court a quo in an Order dated December 27, 1995. Still, there was no compliance on the part of the prosecution. It is not stated when such order was complied with. It appears, however, that even until August 5, 2002, the said records were still not at the disposal of the trial court because the lack of it was made the basis of the said court in granting the motion to dismiss filed by co-accused Concepcion x x x.

The rule on double jeopardy is one of the pillars of our criminal justice system. It dictates that when a person is charged with an offense, and the case is terminated – either by acquittal or conviction or in any other manner without the consent of the accused – the accused cannot again be charged with the same or an identical offense. 69 This principle is founded upon the law of reason, justice and conscience. 70 It is embodied in the civil law maxim non bis in idem found in the common law of England and undoubtedly in every system of jurisprudence.71 It found expression in the Spanish Law, in the Constitution of the United States, and in our own Constitution as one of the fundamental rights of the citizen, 72 viz: Article III – Bill of Rights

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It is likewise noticeable that from December 27, 1995, until August 5, 2002, or for a period of almost seven years, there was no action at all on the part of the court a quo. Except for the pleadings filed by both the prosecution and the petitioners, the latest of which was on January 29, 1996, followed by petitioner Saruca’s motion to set case for trial on August 17, 1998 which the court did not act upon, the case remained dormant for a considerable length of time. This prolonged inactivity whatsoever is precisely the kind of delay that the constitution frowns upon x x x.63(Emphasis supplied) This Court points out that on 10 January 1992, the final amended Information was filed against Escalona, Ramos, Saruca, Ampil, S. Fernandez, Adriano, Cabangon, Concepcion, and De Vera.64 On 29 November 1993, they were all arraigned. 65 Unfortunately, the initial trial of the case did not commence until 28 March 2005 or almost 12 years after arraignment. 66 As illustrated in our ruling in Abardo v. Sandiganbayan, the unexplained interval or inactivity of the Sandiganbayan for close to five years since the arraignment of the accused amounts to an unreasonable delay in the disposition of cases – a clear violation of the right of the accused to a speedy disposition of cases.67 Thus, we held: The delay in this case measures up to the unreasonableness of the delay in the disposition of cases in Angchangco, Jr. vs. Ombudsman, where the Court found the delay of six years by the Ombudsman in resolving the criminal complaints to be violative of the constitutionally guaranteed right to a speedy disposition of cases; similarly, in Roque vs. Office of the Ombudsman, where the Court held that the delay of almost six years disregarded the Ombudsman's duty to act promptly on complaints before him; and in Cervantes vs. Sandiganbayan, where the Court held that the Sandiganbayan gravely abused its discretion in not quashing the information which was filed six years after the initiatory complaint was filed and thereby depriving petitioner of his right to a speedy disposition of the case. So it must be in the instant case, where the reinvestigation by the Ombudsman has dragged on for a decade already.68 (Emphasis supplied) From the foregoing principles, we affirm the ruling of the CA in CA-G.R. SP No. 89060 that accused Escalona et al.’s right to speedy trial was violated. Since there is nothing in the records that would show that the subject of this Petition includes accused Ampil, S. Fernandez, Cabangon, and De Vera, the effects of this ruling shall be limited to accused Escalona, Ramos, Saruca, and Adriano. G.R. No. 154954 (People v. Court of Appeals)

Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. Rule 117, Section 7 of the Rules of Court, which implements this particular constitutional right, provides as follows:73 SEC. 7. Former conviction or acquittal; double jeopardy. — When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. The rule on double jeopardy thus prohibits the state from appealing the judgment in order to reverse the acquittal or to increase the penalty imposed either through a regular appeal under Rule 41 of the Rules of Court or through an appeal by certiorari on pure questions of law under Rule 45 of the same Rules. 74 The requisites for invoking double jeopardy are the following: (a) there is a valid complaint or information; (b) it is filed before a competent court; (c) the defendant pleaded to the charge; and (d) the defendant was acquitted or convicted, or the case against him or her was dismissed or otherwise terminated without the defendant’s express consent.75 As we have reiterated in People v. Court of Appeals and Galicia, "[a] verdict of acquittal is immediately final and a reexamination of the merits of such acquittal, even in the appellate courts, will put the accused in jeopardy for the same offense. The finality-of-acquittal doctrine has several avowed purposes. Primarily, it prevents the State from using its criminal processes as an instrument of harassment to wear out the accused by a multitude of cases with accumulated trials. It also serves the additional purpose of precluding the State, following an acquittal, from successively retrying the defendant in the hope of securing a conviction. And finally, it prevents the State, following conviction, from retrying the defendant again in the hope of securing a greater penalty."76 We further stressed that "an acquitted defendant is entitled to the right of repose as a direct consequence of the finality of his acquittal." 77 This prohibition, however, is not absolute. The state may challenge the lower court’s acquittal of the accused or the imposition of a lower penalty on the latter in the following recognized

exceptions: (1) where the prosecution is deprived of a fair opportunity to prosecute and prove its case, tantamount to a deprivation of due process; 78 (2) where there is a finding of mistrial;79 or (3) where there has been a grave abuse of discretion. 80 The third instance refers to this Court’s judicial power under Rule 65 to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. 81 Here, the party asking for the review must show the presence of a whimsical or capricious exercise of judgment equivalent to lack of jurisdiction; a patent and gross abuse of discretion amounting to an evasion of a positive duty or to a virtual refusal to perform a duty imposed by law or to act in contemplation of law; an exercise of power in an arbitrary and despotic manner by reason of passion and hostility;82 or a blatant abuse of authority to a point so grave and so severe as to deprive the court of its very power to dispense justice. 83 In such an event, the accused cannot be considered to be at risk of double jeopardy.84 The Solicitor General filed a Rule 65 Petition for Certiorari, which seeks the reversal of (1) the acquittal of Victorino et al. and (2) the conviction of Tecson et al. for the lesser crime of slight physical injuries, both on the basis of a misappreciation of facts and evidence. According to the Petition, "the decision of the Court of Appeals is not in accordance with law because private complainant and petitioner were denied due process of law when the public respondent completely ignored the a) Position Paper x x x b) the Motion for Partial Reconsideration x x x and c) the petitioner’s Comment x x x." 85 Allegedly, the CA ignored evidence when it adopted the theory of individual responsibility; set aside the finding of conspiracy by the trial court; and failed to apply Article 4 of the Revised Penal Code. 86 The Solicitor General also assails the finding that the physical blows were inflicted only by Dizon and Villareal, as well as the appreciation of Lenny Villa’s consent to hazing. 87 In our view, what the Petition seeks is that we reexamine, reassess, and reweigh the probative value of the evidence presented by the parties. 88 In People v. Maquiling, we held that grave abuse of discretion cannot be attributed to a court simply because it allegedly misappreciated the facts and the evidence.89 Mere errors of judgment are correctible by an appeal or a petition for review under Rule 45 of the Rules of Court, and not by an application for a writ of certiorari.90 Therefore, pursuant to the rule on double jeopardy, we are constrained to deny the Petition contra Victorino et al. – the 19 acquitted fraternity members. We, however, modify the assailed judgment as regards Tecson, Ama, Almeda, and Bantug – the four fraternity members convicted of slight physical injuries. Indeed, we have ruled in a line of cases that the rule on double jeopardy similarly applies when the state seeks the imposition of a higher penalty against the accused. 91 We have also recognized, however, that certiorari may be used to correct an abusive judgment upon a clear demonstration that the lower court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice. 92 The present case is one of those instances of grave abuse of discretion. In imposing the penalty of slight physical injuries on Tecson, Ama, Almeda, and Bantug, the CA reasoned thus:

Based on the medical findings, it would appear that with the exclusion of the fatal wounds inflicted by the accused Dizon and Villareal, the injuries sustained by the victim as a result of the physical punishment heaped on him were serious in nature. However, by reason of the death of the victim, there can be no precise means to determine the duration of the incapacity or the medical attendance required. To do so, at this stage would be merely speculative. In a prosecution for this crime where the category of the offense and the severity of the penalty depend on the period of illness or incapacity for labor, the length of this period must likewise be proved beyond reasonable doubt in much the same manner as the same act charged [People v. Codilla, CA-G.R. No. 4079-R, June 26, 1950]. And when proof of the said period is absent, the crime committed should be deemed only as slight physical injuries [People v. De los Santos, CA, 59 O.G. 4393, citing People v. Penesa, 81 Phil. 398]. As such, this Court is constrained to rule that the injuries inflicted by the appellants, Tecson, Ama, Almeda and Bantug, Jr., are only slight and not serious, in nature. 93 (Emphasis supplied and citations included) The appellate court relied on our ruling in People v. Penesa 94 in finding that the four accused should be held guilty only of slight physical injuries. According to the CA, because of "the death of the victim, there can be no precise means to determine the duration of the incapacity or medical attendance required."95 The reliance on Penesa was utterly misplaced. A review of that case would reveal that the accused therein was guilty merely of slight physical injuries, because the victim’s injuries neither caused incapacity for labor nor required medical attendance.96 Furthermore, he did not die. 97 His injuries were not even serious. 98 Since Penesa involved a case in which the victim allegedly suffered physical injuries and not death, the ruling cited by the CA was patently inapplicable. On the contrary, the CA’s ultimate conclusion that Tecson, Ama, Almeda, and Bantug were liable merely for slight physical injuries grossly contradicts its own findings of fact. According to the court, the four accused "were found to have inflicted more than the usual punishment undertaken during such initiation rites on the person of Villa." 99It then adopted the NBI medico-legal officer’s findings that the antecedent cause of Lenny Villa’s death was the "multiple traumatic injuries" he suffered from the initiation rites. 100 Considering that the CA found that the "physical punishment heaped on [Lenny Villa was] serious in nature," 101 it was patently erroneous for the court to limit the criminal liability to slight physical injuries, which is a light felony. Article 4(1) of the Revised Penal Code dictates that the perpetrator shall be liable for the consequences of an act, even if its result is different from that intended. Thus, once a person is found to have committed an initial felonious act, such as the unlawful infliction of physical injuries that results in the death of the victim, courts are required to automatically apply the legal framework governing the destruction of life. This rule is mandatory, and not subject to discretion. The CA’s application of the legal framework governing physical injuries – punished under Articles 262 to 266 for intentional felonies and Article 365 for culpable felonies – is therefore tantamount to a whimsical, capricious, and abusive exercise of judgment amounting to lack of jurisdiction. According to the Revised Penal Code, the mandatory and legally imposable penalty in case the victim dies should be based on the framework governing the destruction of the life of a person, punished under Articles 246 to 261 for intentional felonies and Article 365 for culpable felonies, and not under the aforementioned provisions. We emphasize that these

two types of felonies are distinct from and legally inconsistent with each other, in that the accused cannot be held criminally liable for physical injuries when actual death occurs. 102 Attributing criminal liability solely to Villareal and Dizon – as if only their acts, in and of themselves, caused the death of Lenny Villa – is contrary to the CA’s own findings. From proof that the death of the victim was the cumulative effect of the multiple injuries he suffered,103 the only logical conclusion is that criminal responsibility should redound to all those who have been proven to have directly participated in the infliction of physical injuries on Lenny. The accumulation of bruising on his body caused him to suffer cardiac arrest. Accordingly, we find that the CA committed grave abuse of discretion amounting to lack or excess of jurisdiction in finding Tecson, Ama, Almeda, and Bantug criminally liable for slight physical injuries. As an allowable exception to the rule on double jeopardy, we therefore give due course to the Petition in G.R. No. 154954. Resolution on Ultimate Findings According to the trial court, although hazing was not (at the time) punishable as a crime, the intentional infliction of physical injuries on Villa was nonetheless a felonious act under Articles 263 to 266 of the Revised Penal Code. Thus, in ruling against the accused, the court a quo found that pursuant to Article 4(1) of the Revised Penal Code, the accused fraternity members were guilty of homicide, as it was the direct, natural and logical consequence of the physical injuries they had intentionally inflicted. 104 The CA modified the trial court’s finding of criminal liability. It ruled that there could have been no conspiracy since the neophytes, including Lenny Villa, had knowingly consented to the conduct of hazing during their initiation rites. The accused fraternity members, therefore, were liable only for the consequences of their individual acts. Accordingly, 19 of the accused – Victorino et al. – were acquitted; 4 of them – Tecson et al. – were found guilty of slight physical injuries; and the remaining 2 – Dizon and Villareal – were found guilty of homicide. The issue at hand does not concern a typical criminal case wherein the perpetrator clearly commits a felony in order to take revenge upon, to gain advantage over, to harm maliciously, or to get even with, the victim. Rather, the case involves an ex ante situation in which a man – driven by his own desire to join a society of men – pledged to go through physically and psychologically strenuous admission rituals, just so he could enter the fraternity. Thus, in order to understand how our criminal laws apply to such situation absent the Anti-Hazing Law, we deem it necessary to make a brief exposition on the underlying concepts shaping intentional felonies, as well as on the nature of physical and psychological initiations widely known as hazing. Intentional Felony and Conspiracy Our Revised Penal Code belongs to the classical school of thought. 105 The classical theory posits that a human person is essentially a moral creature with an absolute free will to choose between good and evil.106 It asserts that one should only be adjudged or held accountable for wrongful acts so long as free will appears unimpaired. 107 The basic postulate of the classical penal system is that humans are rational and calculating beings who guide their actions with reference to the principles of pleasure and pain. 108 They refrain from criminal acts if threatened with punishment sufficient to cancel the hope of possible gain or advantage in committing the

crime.109 Here, criminal liability is thus based on the free will and moral blame of the actor.110 The identity of mens rea – defined as a guilty mind, a guilty or wrongful purpose or criminal intent – is the predominant consideration. 111 Thus, it is not enough to do what the law prohibits.112 In order for an intentional felony to exist, it is necessary that the act be committed by means of dolo or "malice."113 The term "dolo" or "malice" is a complex idea involving the elements of freedom, intelligence, and intent.114 The first element, freedom, refers to an act done with deliberation and with power to choose between two things. 115The second element, intelligence, concerns the ability to determine the morality of human acts, as well as the capacity to distinguish between a licit and an illicit act. 116 The last element, intent, involves an aim or a determination to do a certain act.117 The element of intent – on which this Court shall focus – is described as the state of mind accompanying an act, especially a forbidden act. 118 It refers to the purpose of the mind and the resolve with which a person proceeds. 119 It does not refer to mere will, for the latter pertains to the act, while intent concerns the result of the act. 120 While motive is the "moving power" that impels one to action for a definite result, intent is the "purpose" of using a particular means to produce the result.121 On the other hand, the term "felonious" means, inter alia, malicious, villainous, and/or proceeding from an evil heart or purpose. 122 With these elements taken together, the requirement of intent in intentional felony must refer to malicious intent, which is a vicious and malevolent state of mind accompanying a forbidden act. Stated otherwise, intentional felony requires the existence of dolus malus – that the act or omission be done "willfully," "maliciously," "with deliberate evil intent," and "with malice aforethought." 123 The maxim is actus non facit reum, nisi mens sit rea – a crime is not committed if the mind of the person performing the act complained of is innocent. 124 As is required of the other elements of a felony, the existence of malicious intent must be proven beyond reasonable doubt. 125 In turn, the existence of malicious intent is necessary in order for conspiracy to attach. Article 8 of the Revised Penal Code – which provides that "conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it" – is to be interpreted to refer only to felonies committed by means of dolo or malice. The phrase "coming to an agreement" connotes the existence of a prefaced "intent" to cause injury to another, an element present only in intentional felonies. In culpable felonies or criminal negligence, the injury inflicted on another is unintentional, the wrong done being simply the result of an act performed without malice or criminal design. 126 Here, a person performs an initial lawful deed; however, due to negligence, imprudence, lack of foresight, or lack of skill, the deed results in a wrongful act. 127 Verily, a deliberate intent to do an unlawful act, which is a requisite in conspiracy, is inconsistent with the idea of a felony committed by means of culpa.128 The presence of an initial malicious intent to commit a felony is thus a vital ingredient in establishing the commission of the intentional felony of homicide. 129 Being mala in se, the felony of homicide requires the existence of malice or dolo 130 immediately before or simultaneously with the infliction of injuries. 131 Intent to kill – or animus interficendi – cannot and should not be inferred, unless there is proof beyond reasonable doubt of such intent.132 Furthermore, the victim’s death must not have been the product of accident, natural cause, or suicide.133 If death resulted from an act executed without malice or criminal intent – but with lack of foresight, carelessness, or negligence – the act must be qualified as reckless or simple negligence or imprudence resulting in homicide. 134

Hazing and other forms of initiation rites The notion of hazing is not a recent development in our society. 135 It is said that, throughout history, hazing in some form or another has been associated with organizations ranging from military groups to indigenous tribes.136 Some say that elements of hazing can be traced back to the Middle Ages, during which new students who enrolled in European universities worked as servants for upperclassmen.137 It is believed that the concept of hazing is rooted in ancient Greece,138 where young men recruited into the military were tested with pain or challenged to demonstrate the limits of their loyalty and to prepare the recruits for battle. 139 Modern fraternities and sororities espouse some connection to these values of ancient Greek civilization.140 According to a scholar, this concept lends historical legitimacy to a "tradition" or "ritual" whereby prospective members are asked to prove their worthiness and loyalty to the organization in which they seek to attain membership through hazing. 141 Thus, it is said that in the Greek fraternity system, custom requires a student wishing to join an organization to receive an invitation in order to be a neophyte for a particular chapter. 142 The neophyte period is usually one to two semesters long. 143 During the "program," neophytes are required to interview and to get to know the active members of the chapter; to learn chapter history; to understand the principles of the organization; to maintain a specified grade point average; to participate in the organization’s activities; and to show dignity and respect for their fellow neophytes, the organization, and its active and alumni members. 144 Some chapters require the initiation activities for a recruit to involve hazing acts during the entire neophyte stage.145 Hazing, as commonly understood, involves an initiation rite or ritual that serves as prerequisite for admission to an organization. 146 In hazing, the "recruit," "pledge," "neophyte," "initiate," "applicant" – or any other term by which the organization may refer to such a person – is generally placed in embarrassing or humiliating situations, like being forced to do menial, silly, foolish, or other similar tasks or activities. 147 It encompasses different forms of conduct that humiliate, degrade, abuse, or physically endanger those who desire membership in the organization.148 These acts usually involve physical or psychological suffering or injury.149 The concept of initiation rites in the country is nothing new. In fact, more than a century ago, our national hero – Andres Bonifacio – organized a secret society named Kataastaasan Kagalanggalangang Katipunan ng mga Anak ng Bayan (The Highest and Most Venerable Association of the Sons and Daughters of the Nation). 150 The Katipunan, or KKK, started as a small confraternity believed to be inspired by European Freemasonry, as well as by confraternities or sodalities approved by the Catholic Church. 151 The Katipunan’s ideology was brought home to each member through the society’s initiation ritual. 152 It is said that initiates were brought to a dark room, lit by a single point of illumination, and were asked a series of questions to determine their fitness, loyalty, courage, and resolve. 153 They were made to go through vigorous trials such as "pagsuot sa isang lungga" or "[pagtalon] sa balon."154 It would seem that they were also made to withstand the blow of "pangherong bakal sa pisngi" and to endure a "matalas na punyal."155 As a final step in the ritual, the neophyte Katipunero was made to sign membership papers with the his own blood.156 It is believed that the Greek fraternity system was transported by the Americans to the Philippines in the late 19th century. As can be seen in the following instances, the manner of hazing in the United States was jarringly similar to that inflicted by the Aquila Fraternity on Lenny Villa.

Early in 1865, upperclassmen at West Point Academy forced the fourth classmen to do exhausting physical exercises that sometimes resulted in permanent physical damage; to eat or drink unpalatable foods; and in various ways to humiliate themselves. 157 In 1901, General Douglas MacArthur got involved in a congressional investigation of hazing at the academy during his second year at West Point.158 In Easler v. Hejaz Temple of Greenville, decided in 1985, the candidate-victim was injured during the shriner’s hazing event, which was part of the initiation ceremonies for Hejaz membership.159 The ritual involved what was known as the "mattress-rotating barrel trick." 160 It required each candidate to slide down an eight to nine-foot-high metal board onto connected mattresses leading to a barrel, over which the candidate was required to climb. 161 Members of Hejaz would stand on each side of the mattresses and barrel and fun-paddle candidates en route to the barrel.162 In a video footage taken in 1991, U.S. Marine paratroopers in Camp Lejeune, North Carolina, were seen performing a ceremony in which they pinned paratrooper jump wings directly onto the neophyte paratroopers’ chests. 163 The victims were shown writhing and crying out in pain as others pounded the spiked medals through the shirts and into the chests of the victims. 164 In State v. Allen, decided in 1995, the Southeast Missouri State University chapter of Kappa Alpha Psi invited male students to enter into a pledgeship program. 165 The fraternity members subjected the pledges to repeated physical abuse including repeated, open-hand strikes at the nape, the chest, and the back; caning of the bare soles of the feet and buttocks; blows to the back with the use of a heavy book and a cookie sheet while the pledges were on their hands and knees; various kicks and punches to the body; and "body slamming," an activity in which active members of the fraternity lifted pledges up in the air and dropped them to the ground.166 The fraternity members then put the pledges through a seven-station circle of physical abuse.167 In Ex Parte Barran, decided in 1998, the pledge-victim went through hazing by fraternity members of the Kappa Alpha Order at the Auburn University in Alabama. 168 The hazing included the following: (1) having to dig a ditch and jump into it after it had been filled with water, urine, feces, dinner leftovers, and vomit; (2) receiving paddlings on the buttocks; (3) being pushed and kicked, often onto walls or into pits and trash cans; (4) eating foods like peppers, hot sauce, butter, and "yerks" (a mixture of hot sauce, mayonnaise, butter, beans, and other items); (5) doing chores for the fraternity and its members, such as cleaning the fraternity house and yard, being designated as driver, and running errands; (6) appearing regularly at 2 a.m. "meetings," during which the pledges would be hazed for a couple of hours; and (7) "running the gauntlet," during which the pledges were pushed, kicked, and hit as they ran down a hallway and descended down a flight of stairs. 169 In Lloyd v. Alpha Phi Alpha Fraternity, decided in 1999, the victim – Sylvester Lloyd – was accepted to pledge at the Cornell University chapter of the Alpha Phi Alpha Fraternity. 170 He participated in initiation activities, which included various forms of physical beatings and torture, psychological coercion and embarrassment. 171 In Kenner v. Kappa Alpha Psi Fraternity, decided in 2002, the initiate-victim suffered injuries from hazing activities during the fraternity’s initiation rites. 172 Kenner and the other initiates

went through psychological and physical hazing, including being paddled on the buttocks for more than 200 times.173 In Morton v. State, Marcus Jones – a university student in Florida – sought initiation into the campus chapter of the Kappa Alpha Psi Fraternity during the 2005-06 academic year. 174 The pledge’s efforts to join the fraternity culminated in a series of initiation rituals conducted in four nights. Jones, together with other candidates, was blindfolded, verbally harassed, and caned on his face and buttocks. 175 In these rituals described as "preliminaries," which lasted for two evenings, he received approximately 60 canings on his buttocks. 176 During the last two days of the hazing, the rituals intensified. 177 The pledges sustained roughly 210 cane strikes during the four-night initiation.178 Jones and several other candidates passed out.179 The purported raison d’être behind hazing practices is the proverbial "birth by fire," through which the pledge who has successfully withstood the hazing proves his or her worth. 180 Some organizations even believe that hazing is the path to enlightenment. It is said that this process enables the organization to establish unity among the pledges and, hence, reinforces and ensures the future of the organization.181 Alleged benefits of joining include leadership opportunities; improved academic performance; higher self-esteem; professional networking opportunities; and the esprit d’corp associated with close, almost filial, friendship and common cause.182

unless the act creates a substantial risk to the life of the student or prospective member, in which case it becomes a Class C felony. 196 A Class C felony provides for an imprisonment term not to exceed seven years.197 In Texas, hazing that causes the death of another is a state jail felony. 198 An individual adjudged guilty of a state jail felony is punished by confinement in a state jail for any term of not more than two years or not less than 180 days. 199 Under Utah law, if hazing results in serious bodily injury, the hazer is guilty of a third-degree felony. 200 A person who has been convicted of a third-degree felony may be sentenced to imprisonment for a term not to exceed five years.201 West Virginia law provides that if the act of hazing would otherwise be deemed a felony, the hazer may be found guilty thereof and subject to penalties provided therefor. 202 In Wisconsin, a person is guilty of a Class G felony if hazing results in the death of another. 203 A Class G felony carries a fine not to exceed $25,000 or imprisonment not to exceed 10 years, or both.204 In certain states in the U.S., victims of hazing were left with limited remedies, as there was no hazing statute.205This situation was exemplified in Ballou v. Sigma Nu General Fraternity, wherein Barry Ballou’s family resorted to a civil action for wrongful death, since there was no anti-hazing statute in South Carolina until 1994.206 The existence of animus interficendi or intent to kill not proven beyond reasonable doubt

Anti-Hazing laws in the U.S. The first hazing statute in the U.S. appeared in 1874 in response to hazing in the military.183 The hazing of recruits and plebes in the armed services was so prevalent that Congress prohibited all forms of military hazing, harmful or not. 184 It was not until 1901 that Illinois passed the first state anti-hazing law, criminalizing conduct "whereby any one sustains an injury to his [or her] person therefrom."185 However, it was not until the 1980s and 1990s, due in large part to the efforts of the Committee to Halt Useless College Killings and other similar organizations, that states increasingly began to enact legislation prohibiting and/or criminalizing hazing. 186 As of 2008, all but six states had enacted criminal or civil statutes proscribing hazing. 187 Most anti-hazing laws in the U.S. treat hazing as a misdemeanor and carry relatively light consequences for even the most severe situations. 188 Only a few states with anti-hazing laws consider hazing as a felony in case death or great bodily harm occurs. 189 Under the laws of Illinois, hazing is a Class A misdemeanor, except hazing that results in death or great bodily harm, which is a Class 4 felony.190 In a Class 4 felony, a sentence of imprisonment shall be for a term of not less than one year and not more than three years.191 Indiana criminal law provides that a person who recklessly, knowingly, or intentionally performs hazing that results in serious bodily injury to a person commits criminal recklessness, a Class D felony.192 The offense becomes a Class C felony if committed by means of a deadly weapon. 193 As an element of a Class C felony – criminal recklessness – resulting in serious bodily injury, death falls under the category of "serious bodily injury." 194 A person who commits a Class C felony is imprisoned for a fixed term of between two (2) and eight (8) years, with the advisory sentence being four (4) years.195 Pursuant to Missouri law, hazing is a Class A misdemeanor,

The presence of an ex ante situation – in this case, fraternity initiation rites – does not automatically amount to the absence of malicious intent or dolus malus. If it is proven beyond reasonable doubt that the perpetrators were equipped with a guilty mind – whether or not there is a contextual background or factual premise – they are still criminally liable for intentional felony. The trial court, the CA, and the Solicitor General are all in agreement that – with the exception of Villareal and Dizon – accused Tecson, Ama, Almeda, and Bantug did not have the animus interficendi or intent to kill Lenny Villa or the other neophytes. We shall no longer disturb this finding. As regards Villareal and Dizon, the CA modified the Decision of the trial court and found that the two accused had the animus interficendi or intent to kill Lenny Villa, not merely to inflict physical injuries on him. It justified its finding of homicide against Dizon by holding that he had apparently been motivated by ill will while beating up Villa. Dizon kept repeating that his father’s parking space had been stolen by the victim’s father.207 As to Villareal, the court said that the accused suspected the family of Bienvenido Marquez, one of the neophytes, to have had a hand in the death of Villareal’s brother.208 The CA then ruled as follows: The two had their own axes to grind against Villa and Marquez. It was very clear that they acted with evil and criminal intent. The evidence on this matter is unrebutted and so for the death of Villa, appellants Dizon andVillareal must and should face the consequence of their acts, that is, to be held liable for the crime of homicide. 209 (Emphasis supplied) We cannot subscribe to this conclusion.

The appellate court relied mainly on the testimony of Bienvenido Marquez to determine the existence of animus interficendi. For a full appreciation of the context in which the supposed utterances were made, the Court deems it necessary to reproduce the relevant portions of witness Marquez’s testimony: Witness We were brought up into [Michael Musngi’s] room and we were briefed as to what to expect during the next three days and we were told the members of the fraternity and their batch and we were also told about the fraternity song, sir. xxx

xxx

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Atty. Tadiar During the time that this rounds [of physical beating] were being inflicted, was there any utterances by anybody? Witness Yes sir. Some were piercing, some were discouraging, and some were encouraging others who were pounding and beating us, it was just like a fiesta atmosphere, actually some of them enjoyed looking us being pounded, sir. Atty. Tadiar Do you recall what were those voices that you heard? Witness One particular utterance always said was, they asked us whether "matigas pa yan, kayang-kaya pa niyan."

Witness We were escorted out of [Michael Musngi’s] house and we were made to ride a van and we were brought to another place in Kalookan City which I later found to be the place of Mariano Almeda, sir.

Atty. Tadiar Do you know who in particular uttered those particular words that you quote?

xxx

Witness I cannot particularly point to because there were utterances simultaneously, I could not really pin point who uttered those words, sir.

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Witness Upon arrival, we were instructed to bow our head down and to link our arms and then the driver of the van and other members of the Aquilans who were inside left us inside the van, sir. xxx

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Witness We heard voices shouted outside the van to the effect, "Villa akin ka," "Asuncion Patay ka" and the people outside pound the van, rock the van, sir. Atty. Tadiar Will you please recall in what tone of voice and how strong a voice these remarks uttered upon your arrival? Witness Some were almost shouting, you could feel the sense of excitement in their voices, sir. xxx

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Atty. Tadiar Were there any utterances that you heard during the conduct of this Bicol Express? Witness Yes, sir I heard utterances. Atty. Tadiar Will you please recall to this Honorable Court what were the utterances that you remember? Witness For example, one person particularly Boyet Dizon stepped on my thigh, he would say that and I quote "ito, yung pamilya nito ay pinapatay yung kapatid ko," so that would in turn sort of justifying him in inflicting more serious pain on me. So instead of just walking, he would jump on my thighs and then after on was Lenny Villa. He was saying to the effect that "this guy, his father stole the parking space of my father," sir. So, that’s why he inflicted more pain on Villa and that went on, sir.

Atty. Tadiar During all these times that the van was being rocked through and through, what were the voices or utterances that you heard?

Atty. Tadiar And you were referring to which particular accused?

Witness "Villa akin ka," "Asuncion patay ka," "Recinto patay ka sa amin," etc., sir.

Witness Boyet Dizon, sir.

Atty. Tadiar And those utterances and threats, how long did they continue during the rocking of the van which lasted for 5 minutes?

Atty. Tadiar When Boyet Dizon at that particular time was accusing you of having your family have his brother killed, what was your response?

xxx

Witness Of course, I knew sir that it was not true and that he was just making it up sir. So he said that I knew nothing of that incident. However, he just in fact after the Bicol Express, he kept on uttering those words/statements so that it would in turn justify him and to give me harder blows, sir.

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Witness Even after they rocked the van, we still kept on hearing voices, sir. xxx

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Atty. Tadiar You mentioned about Dizon in particular mentioning that Lenny Villa’s father stole the parking space allotted for his father, do you recall who were within hearing distance when that utterance was made?

Witness That’s all, sir. Atty. Tadiar And on that first night of February 8, 1991, did ever a doctor or a physician came around as promised to you earlier? Witness No, sir.210 (Emphasis supplied)

Witness Yes, sir. All of the neophytes heard that utterance, sir. On cross-examination, witness Bienvenido Marquez testified thus: xxx

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Witness There were different times made this accusation so there were different people who heard from time to time, sir.

Judge Purisima When you testified on direct examination Mr. Marquez, have you stated that there was a briefing that was conducted immediately before your initiation as regards to what to expect during the initiation, did I hear you right?

xxx

Witness Yes, sir.

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Atty. Tadiar Can you tell the Honorable Court when was the next accusation against Lenny Villa’s father was made?

Judge Purisima Who did the briefing? Witness Mr. Michael Musngi, sir and Nelson Victorino.

Witness When we were line up against the wall, Boyet Dizon came near to us and when Lenny Villa’s turn, I heard him uttered those statements, sir.

Judge Purisima Will you kindly tell the Honorable Court what they told you to expect during the initiation?

Atty. Tadiar What happened after he made this accusation to Lenny Villa’s father? Witness He continued to inflict blows on Lenny Villa.

Witness They told us at the time we would be brought to a particular place, we would be mocked at, sir.

Atty. Tadiar How were those blows inflicted?

Judge Purisima So, you expected to be mocked at, ridiculed, humiliated etc., and the likes?

Witness There were slaps and he knelt on Lenny Villa’s thighs and sometime he stand up and he kicked his thighs and sometimes jumped at it, sir.

Witness Yes, sir. Judge Purisima You were also told beforehand that there would be physical contact?

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xxx Witness Yes, sir at the briefing.

Atty. Tadiar We would go on to the second day but not right now. You mentioned also that accusations made byDizon "you or your family had his brother killed," can you inform this Honorable Court what exactly were the accusations that were charged against you while inflicting blows upon you in particular? Witness While he was inflicting blows upon me, he told me in particular if I knew that his family who had his brother killed, and he said that his brother was an NPA, sir so I knew that it was just a story that he made up and I said that I knew nothing about it and he continued inflicting blows on me, sir. And another incident was when a talk was being given, Dizon was on another part of the pelota court and I was sort of looking and we saw that he was drinking beer, and he said and I quote: "Marquez, Marquez, ano ang tinitingin-tingin mo diyan, ikaw yung pamilya mo ang nagpapatay sa aking kapatid, yari ka sa akin," sir.

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Witness Yes, sir, because they informed that we could immediately go back to school. All the bruises would be limited to our arms and legs, sir. So, if we wear the regular school uniforms like long sleeves, it would be covered actually so we have no thinking that our face would be slapped, sir. Judge Purisima So, you mean to say that beforehand that you would have bruises on your body but that will be covered? Witness Yes, sir.

Atty. Tadiar What else?

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JudgePurisima So, what kind of physical contact or implements that you expect that would create bruises to your body?

Atty. Jimenez In other words, he was only psychologizing you perhaps, the purpose as I have mentioned before, terrifying you, scaring you or frightening you into quitting the initiation, this is correct?

Witness At that point I am already sure that there would be hitting by a paddling or paddle, sir. xxx

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Judge Purisima Now, will you admit Mr. Marquez that much of the initiation procedures is psychological in nature?

Witness No, sir, perhaps it is one but the main reason, I think, why he was saying those things was because he wanted to inflict injury. Atty. Jimenez He did not tell that to you. That is your only perception, correct? Witness No, sir, because at one point, while he was telling this to Villareal, he was hitting me.

Witness Combination, sir.211 (Emphasis supplied) xxx

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Atty. Jimenez The initiation that was conducted did not consist only of physical initiation, meaning body contact, is that correct?

Atty. Jimenez But did you not say earlier that you [were] subjected to the same forms of initiation by all the initiating masters? You said that earlier, right? Witness Yes, sir.

Witness Yes, sir.

Atty. Jimenez Are you saying also that the others who jumped on you or kicked you said something similar as was told to you by Mr. Dizon?

Atty. Jimenez Part of the initiation was the so-called psychological initiation, correct?

Witness No, sir.

Witness Yes, sir.

Atty. Jimenez But the fact remains that in the Bicol Express for instance, the masters would run on your thighs, right?

Atty. Jimenez And this consisted of making you believe of things calculated to terrify you, scare you, correct?

Witness Yes, sir.

Witness Yes, sir.

Atty. Jimenez This was the regular procedure that was followed by the initiating masters not only on you but also on the other neophytes?

Atty. Jimenez In other words, the initiating masters made belief situation intended to, I repeat, terrify you, frighten you, scare you into perhaps quitting the initiation, is this correct?

Witness Yes, sir.

Witness Sometimes sir, yes. Atty. Jimenez You said on direct that while Mr. Dizon was initiating you, he said or he was supposed to have said according to you that your family were responsible for the killing of his brother who was an NPA, do you remember saying that? Witness Yes, sir. Atty. Jimenez You also said in connection with that statement said to you by Dizon that you did not believe him because that is not true, correct?

Atty. Jimenez In other words, it is fair to say that whatever forms of initiation was administered by one master, was also administered by one master on a neophyte, was also administered by another master on the other neophyte, this is correct? Witness Yes, sir.212 (Emphasis supplied) According to the Solicitor General himself, the ill motives attributed by the CA to Dizon and Villareal were "baseless,"213 since the statements of the accused were "just part of the psychological initiation calculated to instill fear on the part of the neophytes"; that "[t]here is no element of truth in it as testified by Bienvenido Marquez"; and that the "harsh words uttered by Petitioner and Villareal are part of ‘tradition’ concurred and accepted by all the fraternity members during their initiation rites."214

Witness Yes, sir. We agree with the Solicitor General.

The foregoing testimony of witness Marquez reveals a glaring mistake of substantial proportion on the part of the CA – it mistook the utterances of Dizon for those of Villareal. Such inaccuracy cannot be tolerated, especially because it was the CA’s primary basis for finding that Villarreal had the intent to kill Lenny Villa, thereby making Villareal guilty of the intentional felony of homicide. To repeat, according to Bienvenido Marquez’s testimony, as reproduced above, it was Dizon who uttered both "accusations" against Villa and Marquez; Villareal had no participation whatsoever in the specific threats referred to by the CA. It was "Boyet Dizon [who] stepped on [Marquez’s] thigh"; and who told witness Marquez, "[I]to, yung pamilya nito ay pinapatay yung kapatid ko." It was also Dizon who jumped on Villa’s thighs while saying, "[T]his guy, his father stole the parking space of my father." With the testimony clarified, we find that the CA had no basis for concluding the existence of intent to kill based solely thereon. As to the existence of animus interficendi on the part of Dizon, we refer to the entire factual milieu and contextual premise of the incident to fully appreciate and understand the testimony of witness Marquez. At the outset, the neophytes were briefed that they would be subjected to psychological pressure in order to scare them. They knew that they would be mocked, ridiculed, and intimidated. They heard fraternity members shout, "Patay ka, Recinto," "Yari ka, Recinto," "Villa, akin ka," "Asuncion, gulpi ka," "Putang ina mo, Asuncion," "Putang ina nyo, patay kayo sa amin," or some other words to that effect. 215 While beating the neophytes, Dizon accused Marquez of the death of the former’s purported NPA brother, and then blamed Lenny Villa’s father for stealing the parking space of Dizon’s father. According to the Solicitor General, these statements, including those of the accused Dizon, were all part of the psychological initiation employed by the Aquila Fraternity.216

during the public hearing testified that such acts can result in some mental aberration, that they can even lead to psychosis, neurosis or insanity. This is what we want to prevent. 217 (Emphasis supplied) Thus, without proof beyond reasonable doubt, Dizon’s behavior must not be automatically viewed as evidence of a genuine, evil motivation to kill Lenny Villa. Rather, it must be taken within the context of the fraternity’s psychological initiation. This Court points out that it was not even established whether the fathers of Dizon and Villa really had any familiarity with each other as would lend credence to the veracity of Dizon’s threats. The testimony of Lenny’s co-neophyte, Marquez, only confirmed this view. According to Marquez, he "knew it was not true and that [Dizon] was just making it up…." 218 Even the trial court did not give weight to the utterances of Dizon as constituting intent to kill: "[T]he cumulative acts of all the accused were not directed toward killing Villa, but merely to inflict physical harm as part of the fraternity initiation rites x x x."219 The Solicitor General shares the same view. Verily, we cannot sustain the CA in finding the accused Dizon guilty of homicide under Article 249 of the Revised Penal Code on the basis of the existence of intent to kill. Animus interficendi cannot and should not be inferred unless there is proof beyond reasonable doubt of such intent.220 Instead, we adopt and reinstate the finding of the trial court in part, insofar as it ruled that none of the fraternity members had the specific intent to kill Lenny Villa. 221 The existence of animus iniuriandi or malicious intent to injure not proven beyond reasonable doubt

Thus, to our understanding, accused Dizon’s way of inflicting psychological pressure was through hurling make-believe accusations at the initiates. He concocted the fictitious stories, so that he could "justify" giving the neophytes harder blows, all in the context of fraternity initiation and role playing. Even one of the neophytes admitted that the accusations were untrue and made-up.

The Solicitor General argues, instead, that there was an intent to inflict physical injuries on Lenny Villa. Echoing the Decision of the trial court, the Solicitor General then posits that since all of the accused fraternity members conspired to inflict physical injuries on Lenny Villa and death ensued, all of them should be liable for the crime of homicide pursuant to Article 4(1) of the Revised Penal Code.

The infliction of psychological pressure is not unusual in the conduct of hazing. In fact, during the Senate deliberations on the then proposed Anti-Hazing Law, former Senator Lina spoke as follows:

In order to be found guilty of any of the felonious acts under Articles 262 to 266 of the Revised Penal Code,222the employment of physical injuries must be coupled with dolus malus. As an act that is mala in se, the existence of malicious intent is fundamental, since injury arises from the mental state of the wrongdoer – iniuria ex affectu facientis consistat. If there is no criminal intent, the accused cannot be found guilty of an intentional felony. Thus, in case of physical injuries under the Revised Penal Code, there must be a specific animus iniuriandi or malicious intention to do wrong against the physical integrity or well-being of a person, so as to incapacitate and deprive the victim of certain bodily functions. Without proof beyond reasonable doubt of the required animus iniuriandi, the overt act of inflicting physical injuries per se merely satisfies the elements of freedom and intelligence in an intentional felony. The commission of the act does not, in itself, make a man guilty unless his intentions are. 223

Senator Lina. -- so as to capture the intent that we conveyed during the period of interpellations on why we included the phrase "or psychological pain and suffering." xxx

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So that if no direct physical harm is inflicted upon the neophyte or the recruit but the recruit or neophyte is made to undergo certain acts which I already described yesterday, like playing the Russian roulette extensively to test the readiness and the willingness of the neophyte or recruit to continue his desire to be a member of the fraternity, sorority or similar organization or playing and putting a noose on the neck of the neophyte or recruit, making the recruit or neophyte stand on the ledge of the fourth floor of the building facing outside, asking him to jump outside after making him turn around several times but the reality is that he will be made to jump towards the inside portion of the building – these are the mental or psychological tests that are resorted to by these organizations, sororities or fraternities. The doctors who appeared

Thus, we have ruled in a number of instances 224 that the mere infliction of physical injuries, absent malicious intent, does not make a person automatically liable for an intentional felony. In Bagajo v. People,225 the accused teacher, using a bamboo stick, whipped one of her students behind her legs and thighs as a form of discipline. The student suffered lesions and bruises from the corporal punishment. In reversing the trial court’s finding of criminal liability for slight physical injuries, this Court stated thus: "Independently of any civil or administrative responsibility … [w]e are persuaded that she did not do what she had done with criminal intent

… the means she actually used was moderate and that she was not motivated by ill-will, hatred or any malevolent intent." Considering the applicable laws, we then ruled that "as a matter of law, petitioner did not incur any criminal liability for her act of whipping her pupil." In People v. Carmen,226 the accused members of the religious group known as the Missionaries of Our Lady of Fatima – under the guise of a "ritual or treatment" – plunged the head of the victim into a barrel of water, banged his head against a bench, pounded his chest with fists, and stabbed him on the side with a kitchen knife, in order to cure him of "nervous breakdown" by expelling through those means the bad spirits possessing him. The collective acts of the group caused the death of the victim. Since malicious intent was not proven, we reversed the trial court’s finding of liability for murder under Article 4 of the Revised Penal Code and instead ruled that the accused should be held criminally liable for reckless imprudence resulting in homicide under Article 365 thereof. Indeed, the threshold question is whether the accused’s initial acts of inflicting physical pain on the neophytes were attended by animus iniuriandi amounting to a felonious act punishable under the Revised Penal Code, thereby making it subject to Article 4(1) thereof. In People v. Regato, we ruled that malicious intent must be judged by the action, conduct, and external acts of the accused.227 What persons do is the best index of their intention. 228 We have also ruled that the method employed, the kind of weapon used, and the parts of the body on which the injury was inflicted may be determinative of the intent of the perpetrator. 229 The Court shall thus examine the whole contextual background surrounding the death of Lenny Villa. Lenny died during Aquila’s fraternity initiation rites. The night before the commencement of the rites, they were briefed on what to expect. They were told that there would be physical beatings, that the whole event would last for three days, and that they could quit anytime. On their first night, they were subjected to "traditional" initiation rites, including the "Indian Run," "Bicol Express," "Rounds," and the "Auxies’ Privilege Round." The beatings were predominantly directed at the neophytes’ arms and legs. In the morning of their second day of initiation, they were made to present comic plays and to play rough basketball. They were also required to memorize and recite the Aquila Fraternity’s principles. Late in the afternoon, they were once again subjected to "traditional" initiation rituals. When the rituals were officially reopened on the insistence of Dizon and Villareal, the neophytes were subjected to another "traditional" ritual – paddling by the fraternity. During the whole initiation rites, auxiliaries were assigned to the neophytes. The auxiliaries protected the neophytes by functioning as human barriers and shielding them from those who were designated to inflict physical and psychological pain on the initiates. 230 It was their regular duty to stop foul or excessive physical blows; to help the neophytes to "pump" their legs in order that their blood would circulate; to facilitate a rest interval after every physical activity or "round"; to serve food and water; to tell jokes; to coach the initiates; and to give them whatever they needed. 231

These rituals were performed with Lenny’s consent. A few days before the "rites," he asked both his parents for permission to join the Aquila Fraternity.232 His father knew that Lenny would go through an initiation process and would be gone for three days. 233 The CA found as follows:

It is worth pointing out that the neophytes willingly and voluntarily consented to undergo physical initiation and hazing. As can be gleaned from the narration of facts, they voluntarily agreed to join the initiation rites to become members of the Aquila Legis Fraternity. Prior to the initiation, they were given briefings on what to expect. It is of common knowledge that before admission in a fraternity, the neophytes will undergo a rite of passage. Thus, they were made aware that traditional methods such as mocking, psychological tests and physical punishment would take place. They knew that the initiation would involve beatings and other forms of hazing. They were also told of their right and opportunity to quit at any time they wanted to. In fact, prosecution witness Navera testified that accused Tecson told him that "after a week, you can already play basketball." Prosecution witness Marquez for his part, admitted that he knew that the initiates would be hit "in the arms and legs," that a wooden paddle would be used to hit them and that he expected bruises on his arms and legs…. Indeed, there can be no fraternity initiation without consenting neophytes. 234 (Emphasis supplied) Even after going through Aquila’s grueling traditional rituals during the first day, Lenny continued his participation and finished the second day of initiation. Based on the foregoing contextual background, and absent further proof showing clear malicious intent, we are constrained to rule that the specific animus iniuriandi was not present in this case. Even if the specific acts of punching, kicking, paddling, and other modes of inflicting physical pain were done voluntarily, freely, and with intelligence, thereby satisfying the elements of freedom and intelligence in the felony of physical injuries, the fundamental ingredient of criminal intent was not proven beyond reasonable doubt. On the contrary, all that was proven was that the acts were done pursuant to tradition. Although the additional "rounds" on the second night were held upon the insistence of Villareal and Dizon, the initiations were officially reopened with the consent of the head of the initiation rites; and the accused fraternity members still participated in the rituals, including the paddling, which were performed pursuant to tradition. Other than the paddle, no other "weapon" was used to inflict injuries on Lenny. The targeted body parts were predominantly the legs and the arms. The designation of roles, including the role of auxiliaries, which were assigned for the specific purpose of lending assistance to and taking care of the neophytes during the initiation rites, further belied the presence of malicious intent. All those who wished to join the fraternity went through the same process of "traditional" initiation; there is no proof that Lenny Villa was specifically targeted or given a different treatment. We stress that Congress itself recognized that hazing is uniquely different from common crimes. 235 The totality of the circ*mstances must therefore be taken into consideration. The underlying context and motive in which the infliction of physical injuries was rooted may also be determined by Lenny’s continued participation in the initiation and consent to the method used even after the first day. The following discussion of the framers of the 1995 AntiHazing Law is enlightening: Senator Guingona. Most of these acts, if not all, are already punished under the Revised Penal Code. Senator Lina. That is correct, Mr. President. Senator Guingona. If hazing is done at present and it results in death, the charge would be murder or homicide.

Senator Lina. That is correct, Mr. President. Senator Guingona. If it does not result in death, it may be frustrated homicide or serious physical injuries. Senator Lina. That is correct, Mr. President. Senator Guingona. Or, if the person who commits sexual abuse does so it can be penalized under rape or acts of lasciviousness. Senator Lina. That is correct, Mr. President. Senator Guingona. So, what is the rationale for making a new offense under this definition of the crime of hazing? Senator Lina. To discourage persons or group of persons either composing a sorority, fraternity or any association from making this requirement of initiation that has already resulted in these specific acts or results, Mr. President. That is the main rationale. We want to send a strong signal across the land that no group or association can require the act of physical initiation before a person can become a member without being held criminally liable. xxx

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Senator Guingona. Yes, but what would be the rationale for that imposition? Because the distinguished Sponsor has said that he is not punishing a mere organization, he is not seeking the punishment of an initiation into a club or organization, he is seeking the punishment of certain acts that resulted in death, et cetera as a result of hazing which are already covered crimes. The penalty is increased in one, because we would like to discourage hazing, abusive hazing, but it may be a legitimate defense for invoking two or more charges or offenses, because these very same acts are already punishable under the Revised Penal Code. That is my difficulty, Mr. President. Senator Lina. x x x Another point, Mr. President, is this, and this is a very telling difference: When a person or group of persons resort to hazing as a requirement for gaining entry into an organization, the intent to commit a wrong is not visible or is not present, Mr. President. Whereas, in these specific crimes, Mr. President, let us say there is death or there is homicide, mutilation, if one files a case, then the intention to commit a wrong has to be proven. But if the crime of hazing is the basis, what is important is the result from the act of hazing.

To me, that is the basic difference and that is what will prevent or deter the sororities or fraternities; that they should really shun this activity called "hazing." Because, initially, these fraternities or sororities do not even consider having a neophyte killed or maimed or that acts of lasciviousness are even committed initially, Mr. President. So, what we want to discourage is the so-called initial innocent act. That is why there is need to institute this kind of hazing. Ganiyan po ang nangyari. Ang fraternity o ang sorority ay magre-recruit. Wala talaga silang intensiyong makamatay. Hindi ko na babanggitin at buhay pa iyong kaso. Pero dito sa anim o pito na namatay nitong nakaraang taon, walang intensiyong patayin talaga iyong neophyte. So, kung maghihintay pa tayo, na saka lamang natin isasakdal ng murder kung namatay na, ay after the fact ho iyon. Pero, kung sasabihin natin sa mga kabataan na: "Huwag ninyong gagawin iyong hazing. Iyan ay kasalanan at kung mamatay diyan, mataas ang penalty sa inyo." xxx

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Senator Guingona. I join the lofty motives, Mr. President, of the distinguished Sponsor. But I am again disturbed by his statement that the prosecution does not have to prove the intent that resulted in the death, that resulted in the serious physical injuries, that resulted in the acts of lasciviousness or deranged mind. We do not have to prove the willful intent of the accused in proving or establishing the crime of hazing. This seems, to me, a novel situation where we create the special crime without having to go into the intent, which is one of the basic elements of any crime. If there is no intent, there is no crime. If the intent were merely to initiate, then there is no offense. And even the distinguished Sponsor admits that the organization, the intent to initiate, the intent to have a new society or a new club is, per se, not punishable at all. What are punishable are the acts that lead to the result. But if these results are not going to be proven by intent, but just because there was hazing, I am afraid that it will disturb the basic concepts of the Revised Penal Code, Mr. President. Senator Lina. Mr. President, the act of hazing, precisely, is being criminalized because in the context of what is happening in the sororities and fraternities, when they conduct hazing, no one will admit that their intention is to maim or to kill. So, we are already criminalizing the fact of inflicting physical pain. Mr. President, it is a criminal act and we want it stopped, deterred, discouraged. If that occurs, under this law, there is no necessity to prove that the masters intended to kill or the masters intended to maim. What is important is the result of the act of hazing. Otherwise, the masters or those who inflict the physical pain can easily escape responsibility and say, "We did not have the intention to kill. This is part of our initiation rites. This is normal. We do not have any intention to kill or maim." This is the lusot, Mr. President. They might as well have been charged therefore with the ordinary crime of homicide, mutilation, et cetera, where the prosecution will have a difficulty proving the elements if they are separate offenses. xxx

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Senator Guingona. Mr. President, assuming there was a group that initiated and a person died. The charge is murder. My question is: Under this bill if it becomes a law, would the prosecution have to prove conspiracy or not anymore? Senator Lina. Mr. President, if the person is present during hazing x x x Senator Guingona. The persons are present. First, would the prosecution have to prove conspiracy? Second, would the prosecution have to prove intent to kill or not? Senator Lina. No more. As to the second question, Mr. President, if that occurs, there is no need to prove intent to kill. Senator Guingona. But the charge is murder. Senator Lina. That is why I said that it should not be murder. It should be hazing, Mr. President. 236 (Emphasis supplied) During a discussion between Senator Biazon and Senator Lina on the issue of whether to include sodomy as a punishable act under the Anti-Hazing Law, Senator Lina further clarified thus: Senator Biazon. Mr. President, this Representation has no objection to the inclusion of sodomy as one of the conditions resulting from hazing as necessary to be punished. However, the act of sodomy can be committed by two persons with or without consent. To make it clearer, what is being punished here is the commission of sodomy forced into another individual by another individual. I move, Mr. President, that sodomy be modified by the phrase "without consent" for purposes of this section. Senator Lina. I am afraid, Mr. President, that if we qualify sodomy with the concept that it is only going to aggravate the crime of hazing if it is done without consent will change a lot of concepts here. Because the results from hazing aggravate the offense with or without consent. In fact, when a person joins a fraternity, sorority, or any association for that matter, it can be with or without the consent of the intended victim. The fact that a person joins a sorority or fraternity with his consent does not negate the crime of hazing. This is a proposed law intended to protect the citizens from the malpractices that attend initiation which may have been announced with or without physical infliction of pain or injury, Mr. President. Regardless of whether there is announcement that there will be physical hazing or whether there is none, and therefore, the neophyte is duped into joining a fraternity is of no moment. What is important is that there is an infliction of physical pain. The bottom line of this law is that a citizen even has to be protected from himself if he joins a fraternity, so that at a certain point in time, the State, the individual, or the parents of the victim can run after the perpetrators of the crime, regardless of whether or not there was consent on the part of the victim.

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Senator Lina. Mr. President, I understand the position taken by the distinguished Gentleman from Cavite and Metro Manila. It is correct that society sometimes adopts new mores, traditions, and practices. In this bill, we are not going to encroach into the private proclivities of some individuals when they do their acts in private as we do not take a peek into the private rooms of couples. They can do their thing if they want to make love in ways that are not considered acceptable by the mainstream of society. That is not something that the State should prohibit. But sodomy in this case is connected with hazing, Mr. President. Such that the act may even be entered into with consent. It is not only sodomy. The infliction of pain may be done with the consent of the neophyte. If the law is passed, that does not make the act of hazing not punishable because the neophyte accepted the infliction of pain upon himself. If the victim suffers from serious physical injuries, but the initiator said, "Well, he allowed it upon himself. He consented to it." So, if we allow that reasoning that sodomy was done with the consent of the victim, then we would not have passed any law at all. There will be no significance if we pass this bill, because it will always be a defense that the victim allowed the infliction of pain or suffering. He accepted it as part of the initiation rites. But precisely, Mr. President that is one thing that we would want to prohibit. That the defense of consent will not apply because the very act of inflicting physical pain or psychological suffering is, by itself, a punishable act. The result of the act of hazing, like death or physical injuries merely aggravates the act with higher penalties. But the defense of consent is not going to nullify the criminal nature of the act. So, if we accept the amendment that sodomy can only aggravate the offense if it is committed without consent of the victim, then the whole foundation of this proposed law will collapse. Senator Biazon. Thank you, Mr. President. Senator Lina. Thank you very much. The President. Is there any objection to the committee amendment? (Silence.) The Chair hears none; the same is approved.237 (Emphasis supplied) Realizing the implication of removing the state’s burden to prove intent, Senator Lina, the principal author of the Senate Bill, said: I am very happy that the distinguished Minority Leader brought out the idea of intent or whether there it is mala inse or mala prohibita. There can be a radical amendment if that is the point that he wants to go to.

If we agree on the concept, then, maybe, we can just make this a special law on hazing. We will not include this anymore under the Revised Penal Code. That is a possibility. I will not foreclose that suggestion, Mr. President.238(Emphasis supplied) Thus, having in mind the potential conflict between the proposed law and the core principle of mala in se adhered to under the Revised Penal Code, Congress did not simply enact an amendment thereto. Instead, it created a special law on hazing, founded upon the principle of mala prohibita. This dilemma faced by Congress is further proof of how the nature of hazing – unique as against typical crimes – cast a cloud of doubt on whether society considered the act as an inherently wrong conduct or mala in se at the time. It is safe to presume that Lenny’s parents would not have consented239 to his participation in Aquila Fraternity’s initiation rites if the practice of hazing were considered by them as mala in se. Furthermore, in Vedaña v. Valencia (1998), we noted through Associate Justice (now retired Chief Justice) Hilario Davide that "in our nation’s very recent history, the people have spoken, through Congress, to deem conduct constitutive of … hazing, [an] act[] previously considered harmless by custom, as criminal."240 Although it may be regarded as a simple obiter dictum, the statement nonetheless shows recognition that hazing – or the conduct of initiation rites through physical and/or psychological suffering – has not been traditionally criminalized. Prior to the 1995 Anti-Hazing Law, there was to some extent a lacuna in the law; hazing was not clearly considered an intentional felony. And when there is doubt on the interpretation of criminal laws, all must be resolved in favor of the accused. In dubio pro reo. For the foregoing reasons, and as a matter of law, the Court is constrained to rule against the trial court’s finding of malicious intent to inflict physical injuries on Lenny Villa, there being no proof beyond reasonable doubt of the existence of malicious intent to inflict physical injuries or animus iniuriandi as required in mala in se cases, considering the contextual background of his death, the unique nature of hazing, and absent a law prohibiting hazing. The accused fraternity members guilty of reckless imprudence resulting in homicide The absence of malicious intent does not automatically mean, however, that the accused fraternity members are ultimately devoid of criminal liability. The Revised Penal Code also punishes felonies that are committed by means of fault (culpa). According to Article 3 thereof, there is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill. Reckless imprudence or negligence consists of a voluntary act done without malice, from which an immediate personal harm, injury or material damage results by reason of an inexcusable lack of precaution or advertence on the part of the person committing it. 241 In this case, the danger is visible and consciously appreciated by the actor.242 In contrast, simple imprudence or negligence comprises an act done without grave fault, from which an injury or material damage ensues by reason of a mere lack of foresight or skill. 243 Here, the threatened harm is not immediate, and the danger is not openly visible. 244

The test245 for determining whether or not a person is negligent in doing an act is as follows: Would a prudent man in the position of the person to whom negligence is attributed foresee harm to the person injured as a reasonable consequence of the course about to be pursued? If so, the law imposes on the doer the duty to take precaution against the mischievous results of the act. Failure to do so constitutes negligence. 246 As we held in Gaid v. People, for a person to avoid being charged with recklessness, the degree of precaution and diligence required varies with the degree of the danger involved.247 If, on account of a certain line of conduct, the danger of causing harm to another person is great, the individual who chooses to follow that particular course of conduct is bound to be very careful, in order to prevent or avoid damage or injury. 248 In contrast, if the danger is minor, not much care is required. 249 It is thus possible that there are countless degrees of precaution or diligence that may be required of an individual, "from a transitory glance of care to the most vigilant effort."250The duty of the person to employ more or less degree of care will depend upon the circ*mstances of each particular case. 251 There was patent recklessness in the hazing of Lenny Villa. According to the NBI medico-legal officer, Lenny died of cardiac failure secondary to multiple traumatic injuries.252The officer explained that cardiac failure refers to the failure of the heart to work as a pump and as part of the circulatory system due to the lack of blood. 253 In the present case, the victim’s heart could no longer work as a pumping organ, because it was deprived of its requisite blood and oxygen. 254 The deprivation was due to the "channeling" of the blood supply from the entire circulatory system – including the heart, arteries, veins, venules, and capillaries – to the thigh, leg, and arm areas of Lenny, thus causing the formation of multiple hematomas or blood clots.255 The multiple hematomas were wide, thick, and deep,256 indicating that these could have resulted mainly from injuries sustained by the victim from fist blows, knee blows, paddles, or the like. 257 Repeated blows to those areas caused the blood to gradually ooze out of the capillaries until the circulating blood became so markedly diminished as to produce death. 258 The officer also found that the brain, liver, kidney, pancreas, intestines, and all other organs seen in the abdominals, as well as the thoracic organ in the lungs, were pale due to the lack of blood, which was redirected to the thighs and forearms.259 It was concluded that there was nothing in the heart that would indicate that the victim suffered from a previous cardiac arrest or disease. 260 The multiple hematomas or bruises found in Lenny Villa’s arms and thighs, resulting from repeated blows to those areas, caused the loss of blood from his vital organs and led to his eventual death. These hematomas must be taken in the light of the hazing activities performed on him by the Aquila Fraternity. According to the testimonies of the co-neophytes of Lenny, they were punched, kicked, elbowed, kneed, stamped on; and hit with different objects on their arms, legs, and thighs. 261 They were also "paddled" at the back of their thighs or legs; 262 and slapped on their faces. 263 They were made to play rough basketball. 264 Witness Marquez testified on Lenny, saying: "[T]inamaan daw sya sa spine." 265 The NBI medico-legal officer explained that the death of the victim was the cumulative effect of the multiple injuries suffered by the latter.266 The relevant portion of the testimony is as follows: Atty. Tadiar Doctor, there was, rather, it was your testimony on various cross examinations of defense counsels that the injuries that you have enumerated on the body of the deceased Lenny Villa previously marked as Exhibit "G-1" to "G-14" individually by themselves would not

cause the death of the victim. The question I am going to propound to you is what is the cumulative effect of all of these injuries marked from Exhibit "G-1" to "G-14"? Witness All together nothing in concert to cause to the demise of the victim. So, it is not fair for us to isolate such injuries here because we are talking of the whole body. At the same manner that as a car would not run minus one (1) wheel. No, the more humane in human approach is to interpret all those injuries in whole and not in part. 267 There is also evidence to show that some of the accused fraternity members were drinking during the initiation rites.268 Consequently, the collective acts of the fraternity members were tantamount to recklessness, which made the resulting death of Lenny a culpable felony. It must be remembered that organizations owe to their initiates a duty of care not to cause them injury in the process.269 With the foregoing facts, we rule that the accused are guilty of reckless imprudence resulting in homicide. Since the NBI medico-legal officer found that the victim’s death was the cumulative effect of the injuries suffered, criminal responsibility redounds to all those who directly participated in and contributed to the infliction of physical injuries. It appears from the aforementioned facts that the incident may have been prevented, or at least mitigated, had the alumni of Aquila Fraternity – accused Dizon and Villareal – restrained themselves from insisting on reopening the initiation rites. Although this point did not matter in the end, as records would show that the other fraternity members participated in the reopened initiation rites – having in mind the concept of "seniority" in fraternities – the implication of the presence of alumni should be seen as a point of review in future legislation. We further note that some of the fraternity members were intoxicated during Lenny’s initiation rites. In this light, the Court submits to Congress, for legislative consideration, the amendment of the Anti-Hazing Law to include the fact of intoxication and the presence of non-resident or alumni fraternity members during hazing as aggravating circ*mstances that would increase the applicable penalties. It is truly astonishing how men would wittingly – or unwittingly –impose the misery of hazing and employ appalling rituals in the name of brotherhood. There must be a better way to establish "kinship." A neophyte admitted that he joined the fraternity to have more friends and to avail himself of the benefits it offered, such as tips during bar examinations. 270 Another initiate did not give up, because he feared being looked down upon as a quitter, and because he felt he did not have a choice. 271 Thus, for Lenny Villa and the other neophytes, joining the Aquila Fraternity entailed a leap in the dark. By giving consent under the circ*mstances, they left their fates in the hands of the fraternity members. Unfortunately, the hands to which lives were entrusted were barbaric as they were reckless.

Our finding of criminal liability for the felony of reckless imprudence resulting in homicide shall cover only accused Tecson, Ama, Almeda, Bantug, and Dizon. Had the Anti-Hazing Law been in effect then, these five accused fraternity members would have all been convicted of the crime of hazing punishable by reclusion perpetua (life imprisonment). 272 Since there was no law prohibiting the act of hazing when Lenny died, we are constrained to rule according to existing laws at the time of his death. The CA found that the prosecution failed to prove, beyond reasonable doubt, Victorino et al.’s individual participation in the infliction of physical injuries upon Lenny Villa.273As to accused Villareal, his criminal liability was totally extinguished by the fact of his death, pursuant to Article 89 of the Revised Penal Code. Furthermore, our ruling herein shall be interpreted without prejudice to the applicability of the Anti-Hazing Law to subsequent cases. Furthermore, the modification of criminal liability from slight physical injuries to reckless imprudence resulting in homicide shall apply only with respect to accused Almeda, Ama, Bantug, and Tecson. The accused liable to pay damages The CA awarded damages in favor of the heirs of Lenny Villa in the amounts of P 50,000 as civil indemnity ex delicto and P 1,000,000 as moral damages, to be jointly and severally paid by accused Dizon and Villareal. It also awarded the amount of P 30,000 as indemnity to be jointly and severally paid by accused Almeda, Ama, Bantug, and Tecson.1âwphi1 Civil indemnity ex delicto is automatically awarded for the sole fact of death of the victim.274 In accordance with prevailing jurisprudence, 275 we sustain the CA’s award of indemnity in the amount of P 50,000. The heirs of the victim are entitled to actual or compensatory damages, including expenses incurred in connection with the death of the victim, so long as the claim is supported by tangible documents.276 Though we are prepared to award actual damages, the Court is prevented from granting them, since the records are bereft of any evidence to show that actual expenses were incurred or proven during trial. Furthermore, in the appeal, the Solicitor General does not interpose any claim for actual damages. 277 The heirs of the deceased may recover moral damages for the grief suffered on account of the victim’s death.278This penalty is pursuant to Article 2206(3) of the Civil Code, which provides that the "spouse, legitimate and illegitimate descendants and the ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased."279 Thus, we hereby we affirm the CA’s award of moral damages in the amount of P 1,000,000. WHEREFORE, the appealed Judgment in G.R. No. 155101 finding petitioner Fidelito Dizon guilty of homicide is hereby MODIFIED and set aside IN PART. The appealed Judgment in G.R. No. 154954 – finding Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and Vincent Tecson guilty of the crime of slight physical injuries – is also MODIFIED and set aside in part. Instead, Fidelito Dizon, Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and Vincent Tecson are found guilty beyond reasonable doubt of reckless imprudence resulting in homicide defined and penalized under Article 365 in relation to Article 249 of the Revised Penal Code. They are hereby sentenced to suffer an indeterminate prison term of four (4) months and one (1) day of arresto mayor, as minimum, to four (4) years

and two (2) months of prision correccional, as maximum. In addition, accused are ORDERED jointly and severally to pay the heirs of Lenny Villa civil indemnity ex delicto in the amount of P 50,000, and moral damages in the amount of P 1,000,000, plus legal interest on all damages awarded at the rate of 12% from the date of the finality of this Decision until satisfaction.280 Costs de oficio. The appealed Judgment in G.R. No. 154954, acquitting Victorino et al., is hereby affirmed. The appealed Judgments in G.R. Nos. 178057 & 178080, dismissing the criminal case filed against Escalona, Ramos, Saruca, and Adriano, are likewise affirmed. Finally, pursuant to Article 89(1) of the Revised Penal Code, the Petition in G.R. No. 151258 is hereby dismissed, and the criminal case against Artemio Villareal deemed closed and TERMINATED. Let copies of this Decision be furnished to the Senate President and the Speaker of the House of Representatives for possible consideration of the amendment of the Anti-Hazing Law to include the fact of intoxication and the presence of non-resident or alumni fraternity members during hazing as aggravating circ*mstances that would increase the applicable penalties. SO ORDERED. MARIA Associate Justice

LOURDES

P.

A.

SERENO

G.R. No. L-38773

December 19, 1933

downstairs. What happened later, nobody witnessed. But the undisputed fact is that on that occasion the appellant inflicted a wound at the base of the neck of the deceased, causing his death.

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. GINES ALBURQUERQUE Y SANCHEZ, defendant-appellant. Gibbs and McDonough and Roman Office of the Solicitor-General Hilado for appellee.

Ozaeta,

for

appellant.

AVANCEÑA, C.J.: The judgment appealed from finds the appellants Gines Alburquerque guilty of the crime of homicide committed on the person of Manuel Osma and sentences him to eight years and one day of prision mayor, and to indemnify the heirs of the deceased in the sum of P1,000, with costs. The appellant herein, who is a widower of fifty-five years of age and father of nine living children, has been suffering from partial paralysis for some time, walks dragging one leg and has lost control of the movement of his right arm. He has been unable to work since he suffered the stroke of paralysis. One of his daughters was named Maria and another, are married, while still another one is a nun. With the exemption of the other married daughter and the nun, of all of them, including the appellant, live with Maria upon whom they depend for support. Among the daughters living with Maria, one named Pilar became acquainted and had intimate relations later with the deceased Manuel Osma about the end of the year 1928. It was then that the appellant became acquainted with the deceased who frequently visited Pilar in his house. The relations between Pilar and the deceased culminated in Pilar's giving birth to a child. The appellant did not know that his daughter's relations with the deceased had gone to such extremes, that he had to be deceived with the information that she had gone to her godfather's house in Singalong, when in fact she had been taken to the Chinese Hospital for delivery. The appellant learned the truth only when Pilar returned home with her child. Naturally the appellant was deeply affected by this incident, since which time he has appeared sad and worried not only because of the dishonor it brought upon his family but also because the child meant an added burden to Maria upon whom they all depended for support. For some time the appellant wrote letters, that at times were hostile and threatening and at other times entreating the deceased to legitimize his union with Pilar by marrying her, or at least, to support her and his child. Although the deceased agreed to give the child a monthly allowance by way of support, he never complied with his promise. The appellant was in such a mood when he presented himself one day at the office where the deceased worked and asked leave of the manager thereof to speak to Osma. They both went

After excluding the improbable portions thereof, the court infers from the testimony of the appellant that he proposed to said deceased to marry his daughter and that, upon hearing that the latter refused to do so, he whipped out his penknife. Upon seeing the appellant's attitude, the deceased tried to seize him by the neck whereupon the said appellant stabbed him on the face with the said penknife. Due to his lack of control of the movement of his arm, the weapon landed on the base of the neck of the deceased. The trial court found that the appellant did not intend to cause so grave an injury as the death of the deceased. We find that his conclusion is supported by the evidence. In his testimony the appellant emphatically affirmed that he only wanted to inflict a wound that would leave a permanent scar on the face of the deceased, or one that would compel him to remain in the hospital for a week or two but never intended to kill him, because then it would frustrate his plan of compelling him to marry or, at least, support his daughter. The appellant had stated this intention in some of his letters to the deceased by way of a threat to induce him to accept his proposal for the benefit of his daughter. That the act of the appellant in stabbing the deceased resulted in the fatal wound at the base of his neck, was due solely to the fact hereinbefore mentioned that appellant did not have control of his right arm on account of paralysis and the blow, although intended for the face, landed at the base of the neck. Therefore, the mitigating circ*mstance of lack of intention to cause so grave an injury as the death of the deceased as well as those of his having voluntarily surrendered himself to the authorities, and acted under the influence of passion and obfuscation, should be taken into consideration in favor of the appellant. Under the facts above stated, we cannot entertain the appellant's contention that he acted in legitimate self-defense inasmuch as he provoked and commenced the aggression by whipping out and brandishing his penknife. The defense likewise claims that, at all events, article 49 of the Revised Penal Code, which refers to cases where the crime committed is different from that intended by the accused, should be applied herein. This article is a reproduction of article 64 of the old Code and has been interpreted as applicable only in cases where the crime befalls a different person (decisions of the Supreme Court of Spain of October 20, 1897, and June 28,1899), which is not the case herein. The facts as herein proven constitute the crime of homicide defined and penalized in article 249 of the Revised Penal Code with reclusion temporal. In view of the concurrence therein of three mitigating circ*mstances without any aggravating circ*mstance, the penalty next lower in degree, that is prision mayor, should be imposed.

Wherefore, pursuant to the provisions of Act No. 4103, the appellant is hereby sentenced to suffer the indeterminate penalty of from one (1) year of prision correccional to eight (8) years and (1) day of prision mayor, affirming the judgment appealed from in all other respects, with the costs. So ordered. Street, Abad Santos, Vickers, and Butte, JJ., concur.

G.R. No. L-10126

October 22, 1957

SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA, LUZVIMINDA, ELENITA, OSCAR and ALFREDO BATACLAN, represented by their Natural guardian, SALUD VILLANUEVA VDA. DE BATACLAN, plaintiffs-appellants, vs. MARIANO MEDINA, defendant-appellant. Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs-appellants. Fortunato Jose for defendant and appellant. MONTEMAYOR, J.: Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina Transportation, operated by its owner defendant Mariano Medina under a certificate of public convenience, left the town of Amadeo, Cavite, on its way to Pasay City, driven by its regular chauffeur, Conrado Saylon. There were about eighteen passengers, including the driver and conductor. Among the passengers were Juan Bataclan, seated beside and to the right of the driver, Felipe Lara, sated to the right of Bataclan, another passenger apparently from the Visayan Islands whom the witnesses just called Visaya, apparently not knowing his name, seated in the left side of the driver, and a woman named Natalia Villanueva, seated just behind the four last mentioned. At about 2:00 o'clock that same morning, while the bus was running within the jurisdiction of Imus, Cavite, one of the front tires burst and the vehicle began to zig-zag until it fell into a canal or ditch on the right side of the road and turned turtle. Some of the passengers managed to leave the bus the best way they could, others had to be helped or pulled out, while the three passengers seated beside the driver, named Bataclan, Lara and the Visayan and the woman behind them named Natalia Villanueva, could not get out of the overturned bus. Some of the passengers, after they had clambered up to the road, heard groans and moans from inside the bus, particularly, shouts for help from Bataclan and Lara, who said they could not get out of the bus. There is nothing in the evidence to show whether or not the passengers already free from the wreck, including the driver and the conductor, made any attempt to pull out or extricate and rescue the four passengers trapped inside the vehicle, but calls or shouts for help were made to the houses in the neighborhood. After half an hour, came about ten men, one of them carrying a lighted torch made of bamboo with a wick on one end, evidently fueled with petroleum. These men presumably approach the overturned bus, and almost immediately, a fierce fire started, burning and all but consuming the bus, including the four passengers trapped inside it. It would appear that as the bus overturned, gasoline began to leak and escape from the gasoline tank on the side of the chassis, spreading over and permeating the body of the bus and the ground under and around it, and that the lighted torch brought by one of the men who answered the call for help set it on fire. That same day, the charred bodies of the four deemed passengers inside the bus were removed and duly identified that of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in her name and in behalf of her five minor children, brought the present suit to recover from

Mariano Medina compensatory, moral, and exemplary damages and attorney's fees in the total amount of P87,150. After trial, the Court of First Instance of Cavite awarded P1,000 to the plaintiffs plus P600 as attorney's fee, plus P100, the value of the merchandise being carried by Bataclan to Pasay City for sale and which was lost in the fire. The plaintiffs and the defendants appealed the decision to the Court of Appeals, but the latter endorsed the appeal to us because of the value involved in the claim in the complaint. Our new Civil Code amply provides for the responsibility of common carrier to its passengers and their goods. For purposes of reference, we are reproducing the pertinent codal provisions: ART. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to all the circ*mstances of each case. Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while the extra ordinary diligence for the safety of the passengers is further set forth in articles 1755 and 1756. ART. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circ*mstances. ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in articles 1733 and 1755 ART. 1759. Common carriers are liable for the death of or injuries to passengers through the negligence or willful acts of the former's employees, although such employees may have acted beyond the scope of their authority or in violation of the order of the common carriers. This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good father of a family in the selection and supervision of their employees. ART. 1763. A common carrier responsible for injuries suffered by a passenger on account of the willful acts or negligence of other passengers or of strangers, if the common carrier's employees through the exercise of the diligence of a good father of a family could have prevented or stopped the act or omission. We agree with the trial court that the case involves a breach of contract of transportation for hire, the Medina Transportation having undertaken to carry Bataclan safely to his destination,

Pasay City. We also agree with the trial court that there was negligence on the part of the defendant, through his agent, the driver Saylon. There is evidence to show that at the time of the blow out, the bus was speeding, as testified to by one of the passengers, and as shown by the fact that according to the testimony of the witnesses, including that of the defense, from the point where one of the front tires burst up to the canal where the bus overturned after zigzaging, there was a distance of about 150 meters. The chauffeur, after the blow-out, must have applied the brakes in order to stop the bus, but because of the velocity at which the bus must have been running, its momentum carried it over a distance of 150 meters before it fell into the canal and turned turtle. There is no question that under the circ*mstances, the defendant carrier is liable. The only question is to what degree. The trial court was of the opinion that the proximate cause of the death of Bataclan was not the overturning of the bus, but rather, the fire that burned the bus, including himself and his co-passengers who were unable to leave it; that at the time the fire started, Bataclan, though he must have suffered physical injuries, perhaps serious, was still alive, and so damages were awarded, not for his death, but for the physical injuries suffered by him. We disagree. A satisfactory definition of proximate cause is found in Volume 38, pages 695-696 of American jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows: . . . 'that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.' And more comprehensively, 'the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circ*mstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom. It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely causing him physical injuries, if through some event, unexpected and extraordinary, the overturned bus is set on fire, say, by lightning, or if some highwaymen after looting the vehicle sets it on fire, and the passenger is burned to death, one might still contend that the proximate cause of his death was the fire and not the overturning of the vehicle. But in the present case under the circ*mstances obtaining in the same, we do not hesitate to hold that the proximate cause was the overturning of the bus, this for the reason that when the vehicle turned not only on its side but completely on its back, the leaking of the gasoline from the tank was not unnatural or unexpected; that the coming of the men with a lighted torch was in response to the call for help, made not only by the passengers, but most probably, by the driver and the conductor themselves, and that because it was dark (about 2:30 in the morning), the rescuers had to carry a light with them, and coming as they did from a rural area where

lanterns and flashlights were not available; and what was more natural than that said rescuers should innocently approach the vehicle to extend the aid and effect the rescue requested from them. In other words, the coming of the men with a torch was to be expected and was a natural sequence of the overturning of the bus, the trapping of some of its passengers and the call for outside help. What is more, the burning of the bus can also in part be attributed to the negligence of the carrier, through is driver and its conductor. According to the witness, the driver and the conductor were on the road walking back and forth. They, or at least, the driver should and must have known that in the position in which the overturned bus was, gasoline could and must have leaked from the gasoline tank and soaked the area in and around the bus, this aside from the fact that gasoline when spilled, specially over a large area, can be smelt and directed even from a distance, and yet neither the driver nor the conductor would appear to have cautioned or taken steps to warn the rescuers not to bring the lighted torch too near the bus. Said negligence on the part of the agents of the carrier come under the codal provisions above-reproduced, particularly, Articles 1733, 1759 and 1763. As regard the damages to which plaintiffs are entitled, considering the earning capacity of the deceased, as well as the other elements entering into a damage award, we are satisfied that the amount of SIX THOUSAND (P6,000) PESOS would constitute satisfactory compensation, this to include compensatory, moral, and other damages. We also believe that plaintiffs are entitled to attorney's fees, and assessing the legal services rendered by plaintiffs' attorneys not only in the trial court, but also in the course of the appeal, and not losing sight of the able briefs prepared by them, the attorney's fees may well be fixed at EIGHT HUNDRED (P800) PESOS for the loss of merchandise carried by the deceased in the bus, is adequate and will not be disturbed. There is one phase of this case which disturbs if it does not shock us. According to the evidence, one of the passengers who, because of the injuries suffered by her, was hospitalized, and while in the hospital, she was visited by the defendant Mariano Medina, and in the course of his visit, she overheard him speaking to one of his bus inspectors, telling said inspector to have the tires of the bus changed immediately because they were already old, and that as a matter of fact, he had been telling the driver to change the said tires, but that the driver did not follow his instructions. If this be true, it goes to prove that the driver had not been diligent and had not taken the necessary precautions to insure the safety of his passengers. Had he changed the tires, specially those in front, with new ones, as he had been instructed to do, probably, despite his speeding, as we have already stated, the blow out would not have occurred. All in all, there is reason to believe that the driver operated and drove his vehicle negligently, resulting in the death of four of his passengers, physical injuries to others, and the complete loss and destruction of their goods, and yet the criminal case against him, on motion of the fiscal and with his consent, was provisionally dismissed, because according to the fiscal, the witnesses on whose testimony he was banking to support the complaint, either failed or appear or were reluctant to testify. But the record of the case before us shows the several witnesses, passengers, in that bus, willingly and unhesitatingly testified in court to the effect of the said driver was negligent. In the public interest the prosecution of said erring driver should be pursued, this, not only as a matter of justice, but for the promotion of the safety of passengers

on public utility buses. Let a copy of this decision be furnished the Department of Justice and the Provincial Fiscal of Cavite. In view of the foregoing, with the modification that the damages awarded by the trial court are increased from ONE THOUSAND (P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from SIX HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for the death of Bataclan and for the attorney's fees, respectively, the decision appealed is from hereby affirmed, with costs. Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Endencia, and Felix, JJ., concur.

G.R. No. 72964 January 7, 1988

TO WHOM IT MAY CONCERN:

FILOMENO URBANO, petitioner, vs. HON. INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE PHILIPPINES, respondents.

This is to certify that I have examined the wound of Marcelo Javier, 20 years of age, married, residing at Barangay Anonang, San Fabian, Pangasinan on October 23, 1980 and found the following:

GUTIERREZ, JR., J.:

1 -Incised wound 2 inches in length at the upper portion of the lesser palmar prominence, right.

This is a petition to review the decision of the then Intermediate Appellate Court which affirmed the decision of the then Circuit Criminal Court of Dagupan City finding petitioner Filomeno Urban guilty beyond reasonable doubt of the crime of homicide.

As to my observation the incapacitation is from (7-9) days period. This wound was presented to me only for medico-legal examination, as it was already treated by the other doctor. (p. 88, Original Records)

The records disclose the following facts of the case. At about 8:00 o'clock in the morning of October 23, 1980, petitioner Filomeno Urbano went to his ricefield at Barangay Anonang, San Fabian, Pangasinan located at about 100 meters from the tobacco seedbed of Marcelo Javier. He found the place where he stored his palay flooded with water coming from the irrigation canal nearby which had overflowed. Urbano went to the elevated portion of the canal to see what happened and there he saw Marcelo Javier and Emilio Erfe cutting grass. He asked them who was responsible for the opening of the irrigation canal and Javier admitted that he was the one. Urbano then got angry and demanded that Javier pay for his soaked palay. A quarrel between them ensued. Urbano unsheathed his bolo (about 2 feet long, including the handle, by 2 inches wide) and hacked Javier hitting him on the right palm of his hand, which was used in parrying the bolo hack. Javier who was then unarmed ran away from Urbano but was overtaken by Urbano who hacked him again hitting Javier on the left leg with the back portion of said bolo, causing a swelling on said leg. When Urbano tried to hack and inflict further injury, his daughter embraced and prevented him from hacking Javier.

Upon the intercession of Councilman Solis, Urbano and Javier agreed to settle their differences. Urbano promised to pay P700.00 for the medical expenses of Javier. Hence, on October 27, 1980, the two accompanied by Solis appeared before the San Fabian Police to formalize their amicable settlement. Patrolman Torio recorded the event in the police blotter (Exhibit A), to wit: xxx xxx xxx Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257 both parties appeared before this Station accompanied by brgy. councilman Felipe Solis and settled their case amicably, for they are neighbors and close relatives to each other. Marcelo Javier accepted and granted forgiveness to Filomeno Urbano who shoulder (sic) all the expenses in his medical treatment, and promising to him and to this Office that this will never be repeated anymore and not to harbour any grudge against each other. (p. 87, Original Records.)

Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought Javier to his house about 50 meters away from where the incident happened. Emilio then went to the house of Barangay Captain Menardo Soliven but not finding him there, Emilio looked for barrio councilman Felipe Solis instead. Upon the advice of Solis, the Erfes together with Javier went to the police station of San Fabian to report the incident. As suggested by Corporal Torio, Javier was brought to a physician. The group went to Dr. Guillermo Padilla, rural health physician of San Fabian, who did not attend to Javier but instead suggested that they go to Dr. Mario Meneses because Padilla had no available medicine.

Urbano advanced P400.00 to Javier at the police station. On November 3, 1980, the additional P300.00 was given to Javier at Urbano's house in the presence of barangay captain Soliven.

After Javier was treated by Dr. Meneses, he and his companions returned to Dr. Guillermo Padilla who conducted a medico-legal examination. Dr. Padilla issued a medico-legal certificate (Exhibit "C" dated September 28, 1981) which reads:

On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The medical findings of Dr. Exconde are as follows:

At about 1:30 a.m. on November 14, 1980, Javier was rushed to the Nazareth General Hospital in a very serious condition. When admitted to the hospital, Javier had lockjaw and was having convulsions. Dr. Edmundo Exconde who personally attended to Javier found that the latter's serious condition was caused by tetanus toxin. He noticed the presence of a healing wound in Javier's palm which could have been infected by tetanus.

Date Diagnosis

11-14-80 ADMITTED due to trismus adm. at DX TETANUS 1:30 AM Still having frequent muscle spasm. With diffi#35, 421 culty opening his mouth. Restless at times. Febrile 11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessation of respiration and HR after muscular spasm. 02 inhalation administered. Ambo bag resuscitation and cardiac massage done but to no avail. Pronounced dead by Dra. Cabugao at 4:18 P.M. PMC done and cadaver brought home by relatives. (p. 100, Original Records) In an information dated April 10, 1981, Filomeno Urbano was charged with the crime of homicide before the then Circuit Criminal Court of Dagupan City, Third Judicial District. Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court found Urbano guilty as charged. He was sentenced to suffer an indeterminate prison term of from TWELVE (12) YEARS of prision mayor, as minimum to SEVENTEEN (17) years, FOUR (4) MONTHS and ONE (1) DAY of reclusion temporal, as maximum, together with the accessories of the law, to indemnify the heirs of the victim, Marcelo Javier, in the amount of P12,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs. He was ordered confined at the New Bilibid Prison, in Muntinlupa, Rizal upon finality of the decision, in view of the nature of his penalty. The then Intermediate Appellate Court affirmed the conviction of Urbano on appeal but raised the award of indemnity to the heirs of the deceased to P30,000.00 with costs against the appellant. The appellant filed a motion for reconsideration and/or new trial. The motion for new trial was based on an affidavit of Barangay Captain Menardo Soliven (Annex "A") which states: That in 1980, I was the barrio captain of Barrio Anonang, San Fabian, Pangasinan, and up to the present having been re-elected to such position in the last barangay elections on May 17, 1982; That sometime in the first week of November, 1980, there was a typhoon that swept Pangasinan and other places of Central Luzon including San Fabian, a town of said province;

said canals and ditches became shallow which was suitable for catching mudfishes; That after the storm, I conducted a personal survey in the area affected, with my secretary Perfecto Jaravata; That on November 5, 1980, while I was conducting survey, I saw the late Marcelo Javier catching fish in the shallow irrigation canals with some companions; That few days there after,or on November l5, l980, I came to know that said Marcelo Javier died of tetanus. (p. 33, Rollo) The motion was denied. Hence, this petition. In a resolution dated July 16, 1986, we gave due course to the petition. The case involves the application of Article 4 of the Revised Penal Code which provides that "Criminal liability shall be incurred: (1) By any person committing a felony (delito) although the wrongful act done be different from that which he intended ..." Pursuant to this provision "an accused is criminally responsible for acts committed by him in violation of law and for all the natural and logical consequences resulting therefrom." (People v. Cardenas, 56 SCRA 631). The record is clear that Marcelo Javier was hacked by the petitioner who used a bolo as a result of which Javier suffered a 2-inch incised wound on his right palm; that on November 14, 1981 which was the 22nd day after the incident, Javier was rushed to the hospital in a very serious condition and that on the following day, November 15, 1981, he died from tetanus. Under these circ*mstances, the lower courts ruled that Javier's death was the natural and logical consequence of Urbano's unlawful act. Hence, he was declared responsible for Javier's death. Thus, the appellate court said:

That during the typhoon, the sluice or control gates of the Bued irrigation dam which irrigates the ricefields of San Fabian were closed and/or controlled so much so that water and its flow to the canals and ditches were regulated and reduced;

The claim of appellant that there was an efficient cause which supervened from the time the deceased was wounded to the time of his death, which covers a period of 23 days does not deserve serious consideration. True, that the deceased did not die right away from his wound, but the cause of his death was due to said wound which was inflicted by the appellant. Said wound which was in the process of healing got infected with tetanus which ultimately caused his death.

That due to the locking of the sluice or control gates of the dam leading to the canals and ditches which will bring water to the ricefields, the water in

Dr. Edmundo Exconde of the Nazareth General Hospital testified that the victim suffered lockjaw because of the infection of the wound with

tetanus. And there is no other way by which he could be infected with tetanus except through the wound in his palm (tsn., p. 78, Oct. 5, 1981). Consequently, the proximate cause of the victim's death was the wound which got infected with tetanus. And the settled rule in this jurisdiction is that an accused is liable for all the consequences of his unlawful act. (Article 4, par. 1, R.P.C. People v. Red, CA 43 O.G. 5072; People v. Cornel 78 Phil. 418). Appellant's allegation that the proximate cause of the victim's death was due to his own negligence in going back to work without his wound being properly healed, and lately, that he went to catch fish in dirty irrigation canals in the first week of November, 1980, is an afterthought, and a desperate attempt by appellant to wiggle out of the predicament he found himself in. If the wound had not yet healed, it is impossible to conceive that the deceased would be reckless enough to work with a disabled hand. (pp. 20-21, Rollo) The petitioner reiterates his position that the proximate cause of the death of Marcelo Javier was due to his own negligence, that Dr. Mario Meneses found no tetanus in the injury, and that Javier got infected with tetanus when after two weeks he returned to his farm and tended his tobacco plants with his bare hands exposing the wound to harmful elements like tetanus germs. The evidence on record does not clearly show that the wound inflicted by Urbano was infected with tetanus at the time of the infliction of the wound. The evidence merely confirms that the wound, which was already healing at the time Javier suffered the symptoms of the fatal ailment, somehow got infected with tetanus However, as to when the wound was infected is not clear from the record. In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the following definition of proximate cause: xxx xxx xxx ... A satisfactory definition of proximate cause is found in Volume 38, pages 695-696 of American Jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows: ... "that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred."And more comprehensively, "the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection

with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circ*mstances that the person responsible for the first event should, as an ordinarily prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom." (at pp. 185-186) The issue, therefore, hinges on whether or not there was an efficient intervening cause from the time Javier was wounded until his death which would exculpate Urbano from any liability for Javier's death. We look into the nature of tetanusThe incubation period of tetanus, i.e., the time between injury and the appearance of unmistakable symptoms, ranges from 2 to 56 days. However, over 80 percent of patients become symptomatic within 14 days. A short incubation period indicates severe disease, and when symptoms occur within 2 or 3 days of injury the mortality rate approaches 100 percent. Non-specific premonitory symptoms such as restlessness, irritability, and headache are encountered occasionally, but the commonest presenting complaints are pain and stiffness in the jaw, abdomen, or back and difficulty swallowing. As the progresses, stiffness gives way to rigidity, and patients often complain of difficulty opening their mouths. In fact, trismus in the commonest manifestation of tetanus and is responsible for the familiar descriptive name of lockjaw. As more muscles are involved, rigidity becomes generalized, and sustained contractions called risus sardonicus. The intensity and sequence of muscle involvement is quite variable. In a small proportion of patients, only local signs and symptoms develop in the region of the injury. In the vast majority, however, most muscles are involved to some degree, and the signs and symptoms encountered depend upon the major muscle groups affected. Reflex spasm usually occur within 24 to 72 hours of the first symptom, an interval referred to as the onset time. As in the case of the incubation period, a short onset time is associated with a poor prognosis. Spasms are caused by sudden intensification of afferent stimuli arising in the periphery, which increases rigidity and causes simultaneous and excessive contraction of muscles and their antagonists. Spasms may be both painful and dangerous. As the disease progresses, minimal or inapparent stimuli produce more intense and longer lasting spasms with increasing frequency. Respiration may be impaired by laryngospasm or tonic contraction of

respiratory muscles which prevent adequate ventilation. Hypoxia may then lead to irreversible central nervous system damage and death. Mild tetanus is characterized by an incubation period of at least 14 days and an onset time of more than 6 days. Trismus is usually present, but dysphagia is absent and generalized spasms are brief and mild. Moderately severe tetanus has a somewhat shorter incubation period and onset time; trismus is marked, dysphagia and generalized rigidity are present, but ventilation remains adequate even during spasms. The criteria for severe tetanus include a short incubation time, and an onset time of 72 hrs., or less, severe trismus, dysphagia and rigidity and frequent prolonged, generalized convulsive spasms. (Harrison's Principle of Internal Medicine, 1983 Edition, pp. 1004-1005; Emphasis supplied) Therefore, medically speaking, the reaction to tetanus found inside a man's body depends on the incubation period of the disease. In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he parried the bolo which Urbano used in hacking him. This incident took place on October 23, 1980. After 22 days, or on November 14, 1980, he suffered the symptoms of tetanus, like lockjaw and muscle spasms. The following day, November 15, 1980, he died. If, therefore, the wound of Javier inflicted by the appellant was already infected by tetanus germs at the time, it is more medically probable that Javier should have been infected with only a mild cause of tetanus because the symptoms of tetanus appeared on the 22nd day after the hacking incident or more than 14 days after the infliction of the wound. Therefore, the onset time should have been more than six days. Javier, however, died on the second day from the onset time. The more credible conclusion is that at the time Javier's wound was inflicted by the appellant, the severe form of tetanus that killed him was not yet present. Consequently, Javier's wound could have been infected with tetanus after the hacking incident. Considering the circ*mstance surrounding Javier's death, his wound could have been infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died.

Doubts are present. There is a likelihood that the wound was but the remote cause and its subsequent infection, for failure to take necessary precautions, with tetanus may have been the proximate cause of Javier's death with which the petitioner had nothing to do. As we ruled in Manila Electric Co. v. Remoquillo, et al. (99 Phil. 118). "A prior and remote cause cannot be made the be of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, and efficient cause of the injury, even though such injury would not have happened but for such condition or occasion. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause. And if an independent negligent act or defective condition sets into operation the instances which result in injury because of the prior defective condition, such subsequent act or condition is the proximate cause." (45 C.J. pp. 931-932). (at p. 125) It strains the judicial mind to allow a clear aggressor to go scot free of criminal liability. At the very least, the records show he is guilty of inflicting slight physical injuries. However, the petitioner's criminal liability in this respect was wiped out by the victim's own act. After the hacking incident, Urbano and Javier used the facilities of barangay mediators to effect a compromise agreement where Javier forgave Urbano while Urbano defrayed the medical expenses of Javier. This settlement of minor offenses is allowed under the express provisions of Presidential Decree G.R. No. 1508, Section 2(3). (See also People v. Caruncho, 127 SCRA 16). We must stress, however, that our discussion of proximate cause and remote cause is limited to the criminal aspects of this rather unusual case. It does not necessarily follow that the petitioner is also free of civil liability. The well-settled doctrine is that a person, while not criminally liable, may still be civilly liable. Thus, in the recent case of People v. Rogelio Ligon y Tria, et al. (G.R. No. 74041, July 29, 1987), we said: xxx xxx xxx

The rule is that the death of the victim must be the direct, natural, and logical consequence of the wounds inflicted upon him by the accused. (People v. Cardenas, supra) And since we are dealing with a criminal conviction, the proof that the accused caused the victim's death must convince a rational mind beyond reasonable doubt. The medical findings, however, lead us to a distinct possibility that the infection of the wound by tetanus was an efficient intervening cause later or between the time Javier was wounded to the time of his death. The infection was, therefore, distinct and foreign to the crime. (People v. Rellin, 77 Phil. 1038).

... While the guilt of the accused in a criminal prosecution must be established beyond reasonable doubt, only a preponderance of evidence is required in a civil action for damages. (Article 29, Civil Code). The judgment of acquittal extinguishes the civil liability of the accused only when it includes a declaration that the facts from which the civil liability might arise did not exist. (Padilla v. Court of Appeals, 129 SCRA 559). The reason for the provisions of article 29 of the Civil Code, which provides that the acquittal of the accused on the ground that his guilt has not been proved beyond reasonable doubt does not necessarily exempt him

from civil liability for the same act or omission, has been explained by the Code Commission as follows: The old rule that the acquittal of the accused in a criminal case also releases him from civil liability is one of the most serious flaws in the Philippine legal system. It has given use to numberless instances of miscarriage of justice, where the acquittal was due to a reasonable doubt in the mind of the court as to the guilt of the accused. The reasoning followed is that inasmuch as the civil responsibility is derived from the criminal offense, when the latter is not proved, civil liability cannot be demanded. This is one of those causes where confused thinking leads to unfortunate and deplorable consequences. Such reasoning fails to draw a clear line of demarcation between criminal liability and civil responsibility, and to determine the logical result of the distinction. The two liabilities are separate and distinct from each other. One affects the social order and the other, private rights. One is for the punishment or correction of the offender while the other is for reparation of damages suffered by the aggrieved party. The two responsibilities are so different from each other that article 1813 of the present (Spanish) Civil Code reads thus: "There may be a compromise upon the civil action arising from a crime; but the public action for the imposition of the legal penalty shall not thereby be extinguished." It is just and proper that, for the purposes of the imprisonment of or fine upon the accused, the offense should be proved beyond reasonable doubt. But for the purpose of indemnity the complaining party, why should the offense also be proved beyond reasonable doubt? Is not the invasion or violation of every private right to be proved only by a preponderance of evidence? Is the right of the aggrieved person any less private because the wrongful act is also punishable by the criminal law?

"For these reasons, the Commission recommends the adoption of the reform under discussion. It will correct a serious defect in our law. It will close up an inexhaustible source of injustice-a cause for disillusionment on the part of the innumerable persons injured or wronged." The respondent court increased the P12,000.00 indemnification imposed by the trial court to P30,000.00. However, since the indemnification was based solely on the finding of guilt beyond reasonable doubt in the homicide case, the civil liability of the petitioner was not thoroughly examined. This aspect of the case calls for fuller development if the heirs of the victim are so minded. WHEREFORE, the instant petition is hereby GRANTED. The questioned decision of the then Intermediate Appellate Court, now Court of Appeals, is REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime of homicide. Costs de oficio. SO ORDERED. Fernan, (Chairman), Feliciano, Bidin and,Cortes, JJ., concur.

G.R. No. 103119 October 21, 1992

xxx xxx xxx

SULPICIO INTOD, petitioner, vs. HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

2. By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means.

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

Petitioner contends that, Palangpangan's absence from her room on the night he and his companions riddled it with bullets made the crime inherently impossible. On the other hand, Respondent People of the Philippines argues that the crime was not impossible. Instead, the facts were sufficient to constitute an attempt and to convict Intod for attempted murder. Respondent alleged that there was intent. Further, in its Comment to the Petition, respondent pointed out that: . . . The crime of murder was not consummated, not because of the inherent impossibility of its accomplishment (Art. 4(2), Revised Penal Code), but due to a cause or accident other than petitioner's and his accused's own spontaneous desistance (Art. 3., Ibid.) Palangpangan did not sleep at her house at that time. Had it not been for this fact, the crime is possible, not impossible. 3 Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to remedy the void in the Old Penal Code where: . . . it was necessary that the execution of the act has been commenced, that the person conceiving the idea should have set about doing the deed, employing appropriate means in order that his intent might become a reality, and finally, that the result or end contemplated shall have been physically possible. So long as these conditions were not present, the law and the courts did not hold him criminally liable. 5 This legal doctrine left social interests entirely unprotected. 6 The Revised Penal Code, inspired by the Positivist School, recognizes in the offender his formidability, 7 and now penalizes an act which were it not aimed at something quite impossible or carried out with means which prove inadequate, would constitute a felony against person or against property. 8 The rationale of Article 4(2) is to punish such criminal tendencies. 9 Under this article, the act performed by the offender cannot produce an offense against person or property because: (1) the commission of the offense is inherently impossible of accomplishment: or (2) the means employed is either (a) inadequate or (b) ineffectual. 10

That the offense cannot be produced because the commission of the offense is inherently impossible of accomplishment is the focus of this petition. To be impossible under this clause, the act intended by the offender must be by its nature one impossible of accomplishment. 11 There must be either impossibility of accomplishing the intended act 12 in order to qualify the act an impossible crime. Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime. 13 Thus: Legal impossibility would apply to those circ*mstances where (1) the motive, desire and expectation is to perform an act in violation of the law; (2) there is intention to perform the physical act; (3) there is a performance of the intended physical act; and (4) the consequence resulting from the intended act does not amount to a crime. 14 The impossibility of killing a person already dead

15

falls in this category.

On the other hand, factual impossibility occurs when extraneous circ*mstances unknown to the actor or beyond his control prevent the consummation of the intended crime. 16 One example is the man who puts his hand in the coat pocket of another with the intention to steal the latter's wallet and finds the pocket empty. 17 The case at bar belongs to this category. Petitioner shoots the place where he thought his victim would be, although in reality, the victim was not present in said place and thus, the petitioner failed to accomplish his end. One American case had facts almost exactly the same as this one. In People vs. Lee Kong, 18 the accused, with intent to kill, aimed and fired at the spot where he thought the police officer would be. It turned out, however, that the latter was in a different place. The accused failed to hit him and to achieve his intent. The Court convicted the accused of an attempt to kill. It held that: The fact that the officer was not at the spot where the attacking party imagined where he was, and where the bullet pierced the roof, renders it no less an attempt to kill. It is well settled principle of criminal law in this country that where the criminal result of an attempt is not accomplished simply because of an obstruction in the way of the thing to be operated upon, and these facts are unknown to the aggressor at the time, the criminal attempt is committed. In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent to kill the victim because the latter did not pass by the place where he was lying-in wait, the court held him liable for attempted murder. The court explained that:

It was no fault of Strokes that the crime was not committed. . . . It only became impossible by reason of the extraneous circ*mstance that Lane did not go that way; and further, that he was arrested and prevented from committing the murder. This rule of the law has application only where it is inherently impossible to commit the crime. It has no application to a case where it becomes impossible for the crime to be committed, either by outside interference or because of miscalculation as to a supposed opportunity to commit the crime which fails to materialize; in short it has no application to the case when the impossibility grows out of extraneous acts not within the control of the party. In the case of Clark vs. State, 20 the court held defendant liable for attempted robbery even if there was nothing to rob. In disposing of the case, the court quoted Mr. Justice Bishop, to wit: It being an accepted truth that defendant deserves punishment by reason of his criminal intent, no one can seriously doubt that the protection of the public requires the punishment to be administered, equally whether in the unseen depths of the pocket, etc., what was supposed to exist was really present or not. The community suffers from the mere alarm of crime. Again: Where the thing intended (attempted) as a crime and what is done is a sort to create alarm, in other words, excite apprehension that the evil; intention will be carried out, the incipient act which the law of attempt takes cognizance of is in reason committed. In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's room thinking that the latter was inside. However, at that moment, the victim was in another part of the house. The court convicted the accused of attempted murder. The aforecited cases are the same cases which have been relied upon by Respondent to make this Court sustain the judgment of attempted murder against Petitioner. However, we cannot rely upon these decisions to resolve the issue at hand. There is a difference between the Philippine and the American laws regarding the concept and appreciation of impossible crimes. In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for impossible crimes and made the punishable. Whereas, in the United States, the Code of Crimes and Criminal Procedure is silent regarding this matter. What it provided for were attempts of the crimes enumerated in the said Code. Furthermore, in said jurisdiction, the impossibility of committing the offense is merely a defense to an attempt charge. In this regard, commentators and the cases generally divide the impossibility defense into two categories: legal versus factual impossibility. 22 In U.S. vs. Wilson 23 the Court held that: . . . factual impossibility of the commission of the crime is not a defense. If the crime could have been committed had the circ*mstances been as the

defendant believed them to be, it is no defense that in reality the crime was impossible of commission. Legal impossibility, on the other hand, is a defense which can be invoked to avoid criminal liability for an attempt. In U.S. vs. Berrigan, 24 the accused was indicated for attempting to smuggle letters into and out of prison. The law governing the matter made the act criminal if done without knowledge and consent of the warden. In this case, the offender intended to send a letter without the latter's knowledge and consent and the act was performed. However, unknown to him, the transmittal was achieved with the warden's knowledge and consent. The lower court held the accused liable for attempt but the appellate court reversed. It held unacceptable the contention of the state that "elimination of impossibility as a defense to a charge of criminal attempt, as suggested by the Model Penal Code and the proposed federal legislation, is consistent with the overwhelming modern view". In disposing of this contention, the Court held that the federal statutes did not contain such provision, and thus, following the principle of legality, no person could be criminally liable for an act which was not made criminal by law. Further, it said:

To uphold the contention of respondent that the offense was Attempted Murder because the absence of Palangpangan was a supervening cause independent of the actor's will, will render useless the provision in Article 4, which makes a person criminally liable for an act "which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment . . ." In that case all circ*mstances which prevented the consummation of the offense will be treated as an accident independent of the actor's will which is an element of attempted and frustrated felonies. WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision of respondent Court of Appeals holding Petitioner guilty of Attempted Murder is hereby MODIFIED. We hereby hold Petitioner guilty of an impossible crime as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code, respectively. Having in mind the social danger and degree of criminality shown by Petitioner, this Court sentences him to suffer the penalty of six (6) months ofarresto mayor, together with the accessory penalties provided by the law, and to pay the costs. SO ORDERED.

Congress has not yet enacted a law that provides that intent plus act plus conduct constitutes the offense of attempt irrespective of legal impossibility until such time as such legislative changes in the law take place, this court will not fashion a new non-statutory law of criminal attempt. To restate, in the United States, where the offense sought to be committed is factually impossible or accomplishment, the offender cannot escape criminal liability. He can be convicted of an attempt to commit the substantive crime where the elements of attempt are satisfied. It appears, therefore, that the act is penalized, not as an impossible crime, but as an attempt to commit a crime. On the other hand, where the offense is legally impossible of accomplishment, the actor cannot be held liable for any crime — neither for an attempt not for an impossible crime. The only reason for this is that in American law, there is no such thing as an impossible crime. Instead, it only recognizes impossibility as a defense to a crime charge — that is, attempt. This is not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The impossibility of accomplishing the criminal intent is not merely a defense, but an act penalized by itself. Furthermore, the phrase "inherent impossibility" that is found in Article 4(2) of the Revised Penal Code makes no distinction between factual or physical impossibility and legal impossibility. Ubi lex non distinguit nec nos distinguere debemos. The factual situation in the case at bar present a physical impossibility which rendered the intended crime impossible of accomplishment. And under Article 4, paragraph 2 of the Revised Penal Code, such is sufficient to make the act an impossible crime.

Feliciano, Regalado and Nocon, JJ., concur. Narvasa, C.J., is on leave.

G.R. Nos. 137481-83 & 138455. March 7, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CONRADO SALADINO Y DINGLE, accused-appellant. DECISION BELLOSILLO, J.: CONRADO SALADINO y Dingle was convicted of three (3) counts of rape and one (1) attempted rape and sentenced to death.[1] He is now with us on automatic review. Lourdes Relevo is the niece of accused-appellant Conrado Saladino. Her mother and Conrado's wife Rosita are sisters. Lourdes calls him Kuya Conrad. The parents of Lourdes live in Balayan, Batangas. Sometime in 1995 Lourdes, then thirteen (13) years old, was sent by her parents to Manila to live with Conrado and Rosita Saladino in Pasig City because her own parents could not afford to send her to school. Rosita was a factory worker while Conrado was a moneychanger in a bus terminal. Rosita, whom Lourdes called Ate Rose, gave the young girl weekly allowance; in turn, she helped out in the household chores. The Saladinos lived in a small two-storey house in 126-D Pastor Compound, Rosario, Pasig City, along with the spouses Zaldy and Corazon Cedeo and their three (3) children, Estrella, Elizabeth and Evelyn, together with three (3) boarders whom Lourdes only knew as Tita, Liza and Glenda. There were three (3) rooms separated only by curtains. Conrado, Rosita and Lourdes slept in a small cramped room - the couple on a bed and Lourdes on a mattress on the floor. Sometime in September 1995 at about 10:00 oclock in the evening while Lourdes was lying on her mattress resting and feeling sick, Conrado woke her up and asked her to transfer to the bed as she might catch cold. Rosita was already dressed up because she was working in the 10:00 oclock PM to 6:00 oclock AM shift. Conrado conducted Rosita to the jeepney stop and returned to their room about fifteen (15) minutes later. He laid down beside Lourdes. About twenty-five (25) minutes later, he started fondling her breasts. He poked a kitchen knife at her waist and threatened to kill her if she shouted. He dropped the knife, pinned down Lourdes hands to her belly, and removed her shorts and panty with his hand that was free. He then removed his own shorts and underwear, went on top of Lourdes, and inserted his penis inside her vagin*.[2] Lourdes struggled and Conrados penis slipped out several times, but he re-inserted it everytime and resumed his bestial movements for about fifty (50) minutes according to Lourdes. When she finally succeeded in pushing him away, he warned her not to tell anyone or else he would kill her. Lourdes confided the sexual assault to Rosita. But Rosita refused to believe her and even said that her husband was not capable of doing such a dastardly act. Lourdes also told Corazon

Cedeo who reacted by asking the Saladinos to leave the house. It took the Saladinos almost a year to find a house. Meanwhile, Lourdes slept in the room of Corazon and Zaldy. The Saladino couple finally transferred to 101-B Dr. Sixto Antonio Avenue, Rosario, Pasig City, leaving behind Lourdes with the Cedeos.But Lourdes did not tell her mother, who was in Batangas, about the rape. After some time, Rosita invited Lourdes to live with them in their new house. Rosita assured her that the incident would not happen again because they had a boarder. Wanting to finish her schooling and in need of money, Lourdes relented and moved in with the Saladinos again. Despite Rositas assurances, things did not turn out well for Lourdes. On 17 December 1996 at about 7:00 oclock in the morning, while Lourdes was sleeping in the living room, Conrado again held her at knifepoint and threatened her into silence. He removed her shorts and panties, then his own shorts and underwear and had forced intercourse with her. Again, she cried and struggled but her efforts were in vain. Lourdes told Rosita about the new incident but Rosita, as in the past, refused to believe her. She turned to Corazon who advised her to wait for her mother, who was spending Christmas in Manila, before going to the police. When Lourdes and Rosita went to Batangas to fetch Lourdes mother Elena Relevo, the complaining witness could not summon enough courage to tell her mother about the rape. Elena stayed in Pasig City for eleven (11) days after which, on 28 December 1996, she, Lourdes, Rosita and Conrado went to Batangas to celebrate New Years Eve. On 1 January 1997 Lourdes, Conrado and Rosita returned to Manila. The following day at 7:00 o'clock in the morning Conrado again raped Lourdes at knifepoint. On 3 January 1997 at about the same time the day before, he again poked a knife at her and proceeded to remove her shorts and panties and attempted to insert his penis into her vagin*. This time, when Lourdes saw him let go of the knife, she freed herself from his grasp and kicked him. Then she ran to the bathroom and stayed there until he left the house. Lourdes packed her clothes and went to Corazon Cedeos house. Finally, she gathered enough strength to tell her mother about the sexual abuses, which prompted Elena to fetch her and take her home to Batangas. Elena had Lourdes examined by a doctor, who confirmed that Lourdes was no longer a virgin. They then filed a case with the Pasig City Prosecutors office. Lourdes underwent another physical examination at the PNP Crime Laboratory in Camp Crame. The examination by Dr. Romeo Salen, Medico-Legal Officer, revealed that Lourdes had deep healed lacerations at 3:00 oclock and 9:00 oclock positions. Dr. Salen concluded that Lourdes was already in a non-virgin state physically.[3]

Four (4) Informations for rape were filed against Conrado Saladino for the incidents in September 1995, on 17 December 1996, 2 January 1997 and 3 January 1997. All four (4) Informations similarly alleged that on the dates indicated accused-appellant with lewd design and by means of force had sexual intercourse with Lourdes Relevo y Mendoza, against her will and consent. Testifying in his defense, accused-appellant Conrado Saladino claimed that on the night of the alleged first rape, he was drunk. After taking his wife to the jeepney stop, he went back to his room where he saw Lourdes lying on bed. He then laid beside her. Being in an amorous mood, he started fondling her breasts. According to him, he was not met with any resistance. Emboldened, he proceeded to kiss her lips, breasts and private parts. He then took off both their undergarments and went on top of her. He attempted to insert his penis into her vagin* but since he was drunk, he failed to achieve an erection.According to him, Lourdes was fully aware of what was happening yet did not show any reaction. Conrado also testified that the reason they left the old house was because they did not have any privacy since the rooms were separated only by curtains that were fastened together only by safety pins.Also, Corazon and Rosita had a misunderstanding over Rositas jewelry that disappeared. After some time, Lourdes and one of the boarders in the old house, Glenda Andrade, followed them to their new house. He tried to avoid any intimate contact with Lourdes but he noticed that she was seducing him, parang tinutukso niya ako.[4] Unable to resist, he gave in to fondling her at least once a week, [5] then kissed her everyday before going to work. But he did not have sex with her because he was afraid she would get pregnant. He also testified that Lourdes would get angry every time he refused to insert his penis into her vagin*. The trial court found accused-appellant Conrado Saladino guilty of rape in Crim. Cases Nos. 112410-H, 112411-H and 112412-H. Taking into account the qualifying circ*mstance of the minority of the victim and her relationship to accused-appellant, the lower court meted Conrado Saladino three (3) death penalties pursuant to RA 7659. He was also sentenced to pay the private complainant P150,000.000 as indemnity, and P90,000.00 as moral damages. The trial court also found accused-appellant guilty of attempted rape in Crim. Case No. 112413-H and sentenced him to serve an indeterminate penalty of eight (8) years and one (1) day of prision mayor minimum as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal minimum, as maximum, and to pay the offended partyP50,000.00 in civil indemnity and P30,000.00 for moral damages. The complaining witness and accused-appellant presented conflicting versions. Lourdes Relevo, on one hand, told a harrowing account of a young girl's life utterly destroyed because of the satyrical urges of a man who was entrusted with her life and future. Accused-appellant, on the other hand, painted a tale of consensual sex between an unwilling but weak male adult and a young temptress.

Which of the two (2) conflicting narrations of what transpired between the parties deserves greater weight and better entitled to full credence, is the crux of this controversy. Indeed, this matter involves the assessment of credibility, a task best left to the trial court, which had the advantage of observing the witnesses directly, picking up on the subtle nuances of human behavior, and the emphasis, gesture and inflection of voice; and, of testing their credibility by their demeanor on the stand. [6] We have often said that we will not interfere with the judgment of the trial court in determining the credibility of witnesses, unless there appears in the record some fact or circ*mstance of weight and influence which has been overlooked or the significance of which has been misinterpreted. In giving credence to the testimony of the private complainant, the lower court said The testimony of the Private Complainant, Lourdes Relevo, was candid, straightforward and firm. She testified with spontaneity, only interrupted when she was overcome with emotion. She cried when asked to recall details of the incidents when the Accused assaulted her virtue. She remained steadfast and firm in her declarations notwithstanding humiliation and embarrassment, especially when, upon cross examination, she was asked to narrate the lurid details of the sexual acts committed upon her. On the witness stand, she pointed an accusing finger at the Accused, her uncle, and in an avenging tone, reaffirmed her accusations against him.[7] In contrast, the lower court observed that accused-appellant appeared evasive, answered in a low voice, which was hardly audible. It also pointed out that Conrado appeared uncertain when he admitted that he touched the breasts, kissed the lips and private parts of the private complainant and laid on top of her, insinuating that she consented to this sexual activity. This led the trial court to conclude that accused-appellant "did not have the demeanor of a man unjustly accused of a serious offense."[8] Such observations do not portend well for accused-appellant. In reviewing with utmost scrutiny the records of this case, we fail to see any reason to disturb the findings of the court a quo. The emotion displayed by private complainant thoroughly convinced the trial court that her testimony was genuine. Even the transcripts of her direct and cross examinations would point to no other conclusion. In her testimony, she revealed sordid details of the assault with such clarity and lucidity that could only come from the victim of the malevolent act. When asked questions designed to elicit conflicting answers, she stood her ground and answered the questions in the manner of a person with nothing to tell but the truth. Indeed, it is highly unlikely for a young girl like Lourdes to falsely accuse an uncle of a heinous crime, undergo a medical examination of her private parts, subject herself to the humiliation of a public trial and tarnish her family's honor and reputation, unless motivated by a potent desire to seek justice for the wrong committed against her.[9] In the absence of evidence of improper motive on the part of the victim to falsely testify against the accused, her testimony deserves credence.[10]

On the other hand, accused-appellant's perverted version of the "sweetheart theory" is uncorroborated, self-serving and deserves scant consideration from the Court. Save for his own declaration, accused-appellant was unable to present anything else to prove that carnal knowledge between him and Lourdes was consensual. Indeed, this Court finds it unlikely that a young girl like Lourdes would consent to have sexual relations with a person she calls Kuya and more than ten (10) years her senior, and an uncle-in-law in fact. There is no evidence on record that she is a pervert, nymphomaniac, temptress or in any other condition that may justify such a theory. Contrary to accused appellant's assertions, the long delay in the filing of the charges is not an indication of false accusation, since the delay was satisfactorily explained. After the first incident, Lourdes confided to her aunt Rosita and to Corazon; however they refused to do anything. Faced with two (2) prior rejections, it is understandable for a young girl like Lourdes to remain silent rather than endure the humiliating experience of being rebuffed once again by disbelieving adults. It has also been held that there is no standard form of behavior when people, particularly young girls, are confronted by shocking and frightful incidents such as rape. [11] A thirteen (13)year old girl who kept silent about being raped and becoming pregnant as a result thereof, is not necessarily lying. It would not have been easy to speak of such a humiliating occurrence. Besides, Lourdes also feared for her life and that of her family. Her assessment of the threatened risk caused by accused-appellant might have been overestimated, but considering her youth and inexperience, this fact alone does not render her testimony unreliable. One cannot expect a thirteen (13)-year old girl to act like an adult or a mature and experienced woman who would have the courage and intelligence to disregard a threat to her life and complain immediately that she had been forcibly sexually assaulted. [12] Accused-appellant assails the lower court in concluding that he used force and intimidation. He insists that "the resistance of a woman in rape must be tenacious and manifest. A mere verbal objection unaccompanied by physical resistance may amount to consent."[13] He asserts that since there was no showing that he ever covered the mouth of the victim during the alleged rape, her failure to shout for help to the other house occupants was an indication that the intercourse was consensual. He also posits that if indeed Lourdes was raped, she would not have agreed to transfer to the house of the person who abused her. We do not agree. According to Lourdes, accused-appellant poked a knife at her waist while threatening to kill her and her aunt if she resisted. That act of accused-appellant was more than sufficient to subdue the victim and cow her into silence, because of the imminent danger not only to her life but to her aunt as well. Under the circ*mstances, her failure to shout or offer tenacious resistance did not make voluntary her submission to the criminal acts of the accused-appellant.[14] Also, we have held in People v. Grefiel[15] that "(i)ntimidation must be viewed in the light of the victim's perception and judgment at the time of the commission of

the crime and not by any hard and fast rule; it is therefore enough that it produces fear -- fear that if the victim does not yield to the bestial demands of the accused something would happen to her at that moment or even thereafter as when she is threatened with death if she reports the incident." It might be that to the depraved mind of accused-appellant, the lack of resistance or shouting on the part of his poor victim was a sign of consent, nay, even enjoyment. But in the crime of rape, what is given paramount consideration is the state of mind of the victim and not that of the perpetrator. From the point of view of the victim, the knife aimed at her waist was a real threat to her life. Her failure to shout or offer resistance was not because she consented to the deed but because she honestly believed she would be killed if she shouted or resisted. Such threat is sufficient intimidation as contemplated by our jurisprudence on rape. And be that as it may, if resistance would nevertheless be futile because of a continuing intimidation, then offering none at all would not mean consent to the assault as to make the victim's participation in the sexual act voluntary.[16] Lourdes' transferring to the new residence of accused-appellant despite the rape does not affect her credibility. It was established that she depended on accused-appellant and his wife Rosita for support.Her return to the house of Conrado after she was raped was out of necessity. If she did not do so, she would not have been able to continue her schooling in Manila. Besides, she was assured by accused-appellant's wife, her very own aunt, that the incident would not happen again. In an attempt to discredit the private complainant, accused-appellant pointed out supposed "inconsistencies" in her testimony, to wit: (a) Every time Lourdes testified she always brought with her a copy of her complaint-affidavit; (b) Her claim in her complaintaffidavit that accused-appellant removed her panties is inconsistent with her claim at the witness stand, where she said that accused-appellant removed her shorts; (c) Her claim that accused-appellant held her two (2) nipples while he was holding a knife is a physical impossibility; (d) Her testimony that accused-appellant told her to be quiet or he would kill her and Rosita is contrary to what she alleged in her complaint-affidavit that he would kill her Ate Rosita only; (e) Her statement that accused-appellant held her two (2) hands with one hand while his other hand was removing her shorts and panties is a physical impossibility; (f) Her claim that when she was first raped the private parts of accused-appellant pumped her for more than fifty (50) minutes is physically impossible; and, (g) Her testimony that in the first rape accused-appellant attempted to kiss her on the lips and her cheeks but he failed is another impossibility considering that he was on top of her and could have easily kissed her on the lips and cheeks.[17] The crux of Lourdes' testimony was that accused-appellant had copulated with her, and the act was accomplished through intimidation. The alleged "inconsistencies" raised by accused-appellant are of minor significance and do not impinge upon her assertion that she was raped. Errorless testimonies cannot be expected especially when a witness is recounting details of a harrowing experience. [18] A witness who is telling the truth is not always expected

to give a perfectly concise testimony, considering the lapse of time and the treachery of human memory. Thus, we have followed the rule in accord with human nature and experience that honest inconsistencies on minor and trivial matters serve to strengthen, rather than destroy, the credibility of a witness, especially of witnesses to crimes shocking to the conscience and numbing to the senses.[19] However, the lower court erred in imposing the death penalty. In People v. Ramos[20] the concurrence of the minority of the victim and her relationship to the offender, being special qualifying circ*mstances should be alleged in the information, otherwise, the death penalty cannot be imposed. In the case at bar, although the prosecution did prove complainants minority and relationship to accused-appellant, it failed to implead both minority and relationship in the four (4) Informations filed against accused-appellant. It is not enough that the relationship was subsequently proved during the trial. Both relationship and minority must be alleged in the Information to qualify the crime as punishable by death. To hold otherwise would deny accused-appellants constitutional right to be informed of the nature and the cause of the accusation against him. [21] Thus, he can only be convicted of simple rape, punishable by reclusion perpetua. The imposition of an indeterminate penalty of eight (8) years and one (1) day of prision mayor minimum as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporalminimum as maximum, in attempted rape is also erroneous. The proper penalty for rape in the attempted stage should be two (2) degrees lower than the penalty for consummated rape,[22] or prision mayor.Applying the Indeterminate Sentence Law, the maximum imposable penalty should be taken from prision mayor in its medium period and the minimum from prision correccional. In the three (3) cases of simple rape, the award of P50,000.00 as civil indemnity for each count is upheld, consistent with current jurisprudence. [23] The award of P30,000.00 as moral damages for each count of rape is increased to P50,000.00 also consistent with jurisprudence. [24] In addition, an award of P30,000.00 in exemplary damages is also imposed, the relationship between the sex offender and his victim being aggravating. [25] In the case of attempted rape the P30,000.00 award as moral damages is reduced to P15,000.00.[26] The award of P50,000.00 as civil indemnity is removed, there being no legal basis therefor. WHEREFORE, the Decision of the trial court is MODIFIED as follows: 1. In Crim. Cases Nos. 112410-H (G.R. No. 137481), 112411-H (G.R. No. 137482) and 112412-H (G.R. No. 137483) accused-appellant Conrado Saladino y Dingle is found guilty of three (3) counts of Simple Rape and sentenced to suffer the penalty of reclusion perpetua for each count. He is also ordered to pay private complainant Lourdes Relevo P50,000.00 for civil indemnity, another P50,000.00 for moral damages and P30,000.00 for exemplary damages, for each count of rape.

2. In Crim. Case No. 112413-H (G.R. No. 138455), accused-appellant Conrado Saladino y Dingle is found guilty of Attempted Rape and is sentenced to ten (10) months and twenty (20) days of prision correccional minimum as minimum, to eight (8) years, four (4) months and ten (10) days of prision mayor medium as maximum. The accused-appellant is further ordered to pay private complainant Lourdes Relevo moral damages of P15,000.00. SO ORDERED.

G.R. No. 162540

July 13, 2009

GEMMA T. JACINTO, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION PERALTA, J.: Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto seeking the reversal of the Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 23761 dated December 16, 2003, affirming petitioner's conviction of the crime of Qualified Theft, and its Resolution2 dated March 5, 2004 denying petitioner's motion for reconsideration. Petitioner, along with two other women, namely, Anita Busog de Valencia y Rivera and Jacqueline Capitle, was charged before the Regional Trial Court (RTC) of Caloocan City, Branch 131, with the crime of Qualified Theft, allegedly committed as follows: That on or about and sometime in the month of July 1997, in Kalookan City, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping one another, being then all employees of MEGA FOAM INTERNATIONAL INC., herein represented by JOSEPH DYHENGCO Y CO, and as such had free access inside the aforesaid establishment, with grave abuse of trust and confidence reposed upon them with intent to gain and without the knowledge and consent of the owner thereof, did then and there willfully, unlawfully and feloniously take, steal and deposited in their own account, Banco De Oro Check No. 0132649 dated July 14, 1997 in the sum of P10,000.00, representing payment made by customer Baby Aquino to the Mega Foam Int'l. Inc. to the damage and prejudice of the latter in the aforesaid stated amount of P10,000.00. CONTRARY TO LAW.3 The prosecution's evidence, which both the RTC and the CA found to be more credible, reveals the events that transpired to be as follows. In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino, handed petitioner Banco De Oro (BDO) Check Number 0132649 postdated July 14, 1997 in the amount of P10,000.00. The check was payment for Baby Aquino's purchases from Mega Foam Int'l., Inc., and petitioner was then the collector of Mega Foam. Somehow, the check was deposited in the Land Bank account of Generoso Capitle, the husband of Jacqueline Capitle; the latter is the sister of petitioner and the former pricing, merchandising and inventory clerk of Mega Foam.

Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone call sometime in the middle of July from one of their customers, Jennifer Sanalila. The customer wanted to know if she could issue checks payable to the account of Mega Foam, instead of issuing the checks payable to CASH. Said customer had apparently been instructed by Jacqueline Capitle to make check payments to Mega Foam payable to CASH. Around that time, Ricablanca also received a phone call from an employee of Land Bank, Valenzuela Branch, who was looking for Generoso Capitle. The reason for the call was to inform Capitle that the subject BDO check deposited in his account had been dishonored. Ricablanca then phoned accused Anita Valencia, a former employee/collector of Mega Foam, asking the latter to inform Jacqueline Capitle about the phone call from Land Bank regarding the bounced check. Ricablanca explained that she had to call and relay the message through Valencia, because the Capitles did not have a phone; but they could be reached through Valencia, a neighbor and former co-employee of Jacqueline Capitle at Mega Foam. Valencia then told Ricablanca that the check came from Baby Aquino, and instructed Ricablanca to ask Baby Aquino to replace the check with cash. Valencia also told Ricablanca of a plan to take the cash and divide it equally into four: for herself, Ricablanca, petitioner Jacinto and Jacqueline Capitle. Ricablanca, upon the advise of Mega Foam's accountant, reported the matter to the owner of Mega Foam, Joseph Dyhengco. Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that the latter indeed handed petitioner a BDO check for P10,000.00 sometime in June 1997 as payment for her purchases from Mega Foam. 4Baby Aquino further testified that, sometime in July 1997, petitioner also called her on the phone to tell her that the BDO check bounced. 5 Verification from company records showed that petitioner never remitted the subject check to Mega Foam. However, Baby Aquino said that she had already paid Mega Foam P10,000.00 cash in August 1997 as replacement for the dishonored check.6 Generoso Capitle, presented as a hostile witness, admitted depositing the subject BDO check in his bank account, but explained that the check came into his possession when some unknown woman arrived at his house around the first week of July 1997 to have the check rediscounted. He parted with his cash in exchange for the check without even bothering to inquire into the identity of the woman or her address. When he was informed by the bank that the check bounced, he merely disregarded it as he didn’t know where to find the woman who rediscounted the check. Meanwhile, Dyhengco filed a Complaint with the National Bureau of Investigation (NBI) and worked out an entrapment operation with its agents. Ten pieces of P1,000.00 bills provided by Dyhengco were marked and dusted with fluorescent powder by the NBI. Thereafter, the bills were given to Ricablanca, who was tasked to pretend that she was going along with Valencia's plan.

On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner, who was then holding the bounced BDO check, handed over said check to Ricablanca. They originally intended to proceed to Baby Aquino's place to have the check replaced with cash, but the plan did not push through. However, they agreed to meet again on August 21, 2007. On the agreed date, Ricablanca again went to petitioner’s house, where she met petitioner and Jacqueline Capitle. Petitioner, her husband, and Ricablanca went to the house of Anita Valencia; Jacqueline Capitle decided not to go with the group because she decided to go shopping. It was only petitioner, her husband, Ricablanca and Valencia who then boarded petitioner's jeep and went on to Baby Aquino's factory. Only Ricablanca alighted from the jeep and entered the premises of Baby Aquino, pretending that she was getting cash from Baby Aquino. However, the cash she actually brought out from the premises was the P10,000.00 marked money previously given to her by Dyhengco. Ricablanca divided the money and upon returning to the jeep, gave P5,000.00 each to Valencia and petitioner. Thereafter, petitioner and Valencia were arrested by NBI agents, who had been watching the whole time. Petitioner and Valencia were brought to the NBI office where the Forensic Chemist found fluorescent powder on the palmar and dorsal aspects of both of their hands. This showed that petitioner and Valencia handled the marked money. The NBI filed a criminal case for qualified theft against the two and one Jane Doe who was later identified as Jacqueline Capitle, the wife of Generoso Capitle. The defense, on the other hand, denied having taken the subject check and presented the following scenario. Petitioner admitted that she was a collector for Mega Foam until she resigned on June 30, 1997, but claimed that she had stopped collecting payments from Baby Aquino for quite some time before her resignation from the company. She further testified that, on the day of the arrest, Ricablanca came to her mother’s house, where she was staying at that time, and asked that she accompany her (Ricablanca) to Baby Aquino's house. Since petitioner was going for a pre-natal check-up at the Chinese General Hospital, Ricablanca decided to hitch a ride with the former and her husband in their jeep going to Baby Aquino's place in Caloocan City. She allegedly had no idea why Ricablanca asked them to wait in their jeep, which they parked outside the house of Baby Aquino, and was very surprised when Ricablanca placed the money on her lap and the NBI agents arrested them. Anita Valencia also admitted that she was the cashier of Mega Foam until she resigned on June 30, 1997. It was never part of her job to collect payments from customers. According to her, on the morning of August 21, 1997, Ricablanca called her up on the phone, asking if she (Valencia) could accompany her (Ricablanca) to the house of Baby Aquino. Valencia claims that she agreed to do so, despite her admission during cross-examination that she did not know where Baby Aquino resided, as she had never been to said house. They then met at the house of petitioner's mother, rode the jeep of petitioner and her husband, and proceeded to Baby Aquino's place. When they arrived at said place, Ricablanca alighted, but requested them to

wait for her in the jeep. After ten minutes, Ricablanca came out and, to her surprise, Ricablanca gave her money and so she even asked, "What is this?" Then, the NBI agents arrested them. The trial of the three accused went its usual course and, on October 4, 1999, the RTC rendered its Decision, the dispositive portion of which reads: WHEREFORE, in view of the foregoing, the Court finds accused Gemma Tubale De Jacinto y Latosa, Anita Busog De Valencia y Rivera and Jacqueline Capitle GUILTY beyond reasonable doubt of the crime ofQUALIFIED THEFT and each of them is hereby sentenced to suffer imprisonment of FIVE (5) YEARS, FIVE (5) MONTHS AND ELEVEN (11) DAYS, as minimum, to SIX (6) YEARS, EIGHT (8) MONTHS AND TWENTY (20) DAYS, as maximum. SO ORDERED.7 The three appealed to the CA and, on December 16, 2003, a Decision was promulgated, the dispositive portion of which reads, thus: IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED, in that: (a) the sentence against accused Gemma Jacinto stands; (b) the sentence against accused Anita Valencia is reduced to 4 months arresto mayor medium. (c) The accused Jacqueline Capitle is acquitted. SO ORDERED. A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for petitioner Gemma Tubale Jacinto, but the same was denied per Resolution dated March 5, 2004. Hence, the present Petition for Review on Certiorari filed by petitioner alone, assailing the Decision and Resolution of the CA. The issues raised in the petition are as follows: 1. Whether or not petitioner can be convicted of a crime not charged in the information; 2. Whether or not a worthless check can be the object of theft; and

3. Whether or not the prosecution has proved petitioner's guilt beyond reasonable doubt.8

2. By any person performing an act which would be an offense against persons or property, were it not for theinherent impossibility of its accomplishment or on account of the employment of inadequate to ineffectual means. (emphasis supplied)

The petition deserves considerable thought. The prosecution tried to establish the following pieces of evidence to constitute the elements of the crime of qualified theft defined under Article 308, in relation to Article 310, both of the Revised Penal Code: (1) the taking of personal property - as shown by the fact that petitioner, as collector for Mega Foam, did not remit the customer's check payment to her employer and, instead, appropriated it for herself; (2) said property belonged to another − the check belonged to Baby Aquino, as it was her payment for purchases she made; (3) the taking was done with intent to gain – this is presumed from the act of unlawful taking and further shown by the fact that the check was deposited to the bank account of petitioner's brother-in-law; (4) it was done without the owner’s consent – petitioner hid the fact that she had received the check payment from her employer's customer by not remitting the check to the company; (5) it was accomplished without the use of violence or intimidation against persons, nor of force upon things – the check was voluntarily handed to petitioner by the customer, as she was known to be a collector for the company; and (6) it was done with grave abuse of confidence – petitioner is admittedly entrusted with the collection of payments from customers. However, as may be gleaned from the aforementioned Articles of the Revised Penal Code, the personal property subject of the theft must have some value, as the intention of the accused is to gain from the thing stolen. This is further bolstered by Article 309, where the law provides that the penalty to be imposed on the accused is dependent on the value of the thing stolen. In this case, petitioner unlawfully took the postdated check belonging to Mega Foam, but the same was apparently without value, as it was subsequently dishonored. Thus, the question arises on whether the crime of qualified theft was actually produced. The Court must resolve the issue in the negative. Intod v. Court of Appeals9 is highly instructive and applicable to the present case. In Intod, the accused, intending to kill a person, peppered the latter’s bedroom with bullets, but since the intended victim was not home at the time, no harm came to him. The trial court and the CA held Intod guilty of attempted murder. But upon review by this Court, he was adjudged guilty only of an impossible crime as defined and penalized in paragraph 2, Article 4, in relation to Article 59, both of the Revised Penal Code, because of the factual impossibility of producing the crime. Pertinent portions of said provisions read as follows: Article 4(2). Criminal Responsibility. - Criminal responsibility shall be incurred: xxxx

Article 59. Penalty to be imposed in case of failure to commit the crime because the means employed or the aims sought are impossible. - When the person intending to commit an offense has already performed the acts for the execution of the same but nevertheless the crime was not produced by reason of the fact that the act intended was by its nature one of impossible accomplishment or because the means employed by such person are essentially inadequate to produce the result desired by him, the court, having in mind the social danger and the degree of criminality shown by the offender, shall impose upon him the penalty of arresto mayor or a fine ranging from 200 to 500 pesos. Thus, the requisites of an impossible crime are: (1) that the act performed would be an offense against persons or property; (2) that the act was done with evil intent; and (3) that its accomplishment was inherently impossible, or the means employed was either inadequate or ineffectual. The aspect of the inherent impossibility of accomplishing the intended crime under Article 4(2) of the Revised Penal Code was further explained by the Court in Intod10 in this wise: Under this article, the act performed by the offender cannot produce an offense against persons or property because: (1) the commission of the offense is inherently impossible of accomplishment; or (2) the means employed is either (a) inadequate or (b) ineffectual. That the offense cannot be produced because the commission of the offense is inherently impossible of accomplishment is the focus of this petition. To be impossible under this clause, the act intended by the offender must be by its nature one impossible of accomplishment. There must be either (1) legal impossibility, or (2) physical impossibility of accomplishing the intended act in order to qualify the act as an impossible crime. Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime. xxxx The impossibility of killing a person already dead falls in this category. On the other hand, factual impossibility occurs when extraneous circ*mstances unknown to the actor or beyond his control prevent the consummation of the intended crime. x x x 11 In Intod, the Court went on to give an example of an offense that involved factual impossibility, i.e., a man puts his hand in the coat pocket of another with the intention to steal the latter's wallet, but gets nothing since the pocket is empty.

Herein petitioner's case is closely akin to the above example of factual impossibility given in Intod. In this case, petitioner performed all the acts to consummate the crime of qualified theft, which is a crime against property. Petitioner's evil intent cannot be denied, as the mere act of unlawfully taking the check meant for Mega Foam showed her intent to gain or be unjustly enriched. Were it not for the fact that the check bounced, she would have received the face value thereof, which was not rightfully hers. Therefore, it was only due to the extraneous circ*mstance of the check being unfunded, a fact unknown to petitioner at the time, that prevented the crime from being produced. The thing unlawfully taken by petitioner turned out to be absolutely worthless, because the check was eventually dishonored, and Mega Foam had received the cash to replace the value of said dishonored check.1avvphi1 The fact that petitioner was later entrapped receiving the P5,000.00 marked money, which she thought was the cash replacement for the dishonored check, is of no moment. The Court held in Valenzuela v. People12 that under the definition of theft in Article 308 of the Revised Penal Code, "there is only one operative act of execution by the actor involved in theft ─ the taking of personal property of another." Elucidating further, the Court held, thus: x x x 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."

x x x Unlawful taking, which is the deprivation of one’s personal property, is the element which produces the felony in its consummated stage. x x x 13 From the above discussion, there can be no question that as of the time that petitioner took possession of the check meant for Mega Foam, she had performed all the acts to consummate the crime of theft, had it not been impossible of accomplishment in this case. The circ*mstance of petitioner receiving the P5,000.00 cash as supposed replacement for the dishonored check was no longer necessary for the consummation of the crime of qualified theft. Obviously, the plan to convince Baby Aquino to give cash as replacement for the check was hatched only after the check had been dishonored by the drawee bank. Since the crime of theft is not a continuing offense, petitioner's act of receiving the cash replacement should not be considered as a continuation of the theft. At most, the fact that petitioner was caught receiving the marked money was merely corroborating evidence to strengthen proof of her intent to gain. Moreover, the fact that petitioner further planned to have the dishonored check replaced with cash by its issuer is a different and separate fraudulent scheme. Unfortunately, since said scheme was not included or covered by the allegations in the Information, the Court cannot pronounce judgment on the accused; otherwise, it would violate the due process clause of the Constitution. If at all, that fraudulent scheme could have been another possible source of criminal liability.

xxxx x x x 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. x x x

IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals, dated December 16, 2003, and its Resolution dated March 5, 2004, are MODIFIED. Petitioner Gemma T. Jacinto is found GUILTYof an IMPOSSIBLE CRIME as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code, respectively. Petitioner is sentenced to suffer the penalty of six (6) months of arrresto mayor, and to pay the costs. SO ORDERED.

xxxx x x x 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. x x x