Crim 1

already served the minimum period of her penalty while under detention
during the pendency of this case.

1. People vs Genosa

The Case
EN BANC
For automatic review before this Court is the September 25, 1998
[1]
Decision of the Regional Trial Court (RTC) of Ormoc City (Branch 35) in
Criminal Case No. 5016-0, finding Marivic Genosa guilty beyond reasonable
doubt of parricide. The decretal portion of the Decision reads:

[G.R. No. 135981. January 15, 2004]

PEOPLE
OF
THE
GENOSA, appellant.

PHILIPPINES, appellee,

vs. MARIVIC

DECISION

WHEREFORE, after all the foregoing being duly considered, the Court finds
the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of
the crime of Parricide as provided under Article 246 of the Revised Penal
Code as restored by Sec. 5, RA No. 7659, and after finding treachery as a
generic aggravating circumstance and none of mitigating circumstance,
hereby sentences the accused with the penalty of DEATH.

PANGANIBAN, J.:
Admitting she killed her husband, appellant anchors her prayer for
acquittal on a novel theory -- the battered woman syndrome (BWS), which
allegedly constitutes self-defense. Under the proven facts, however, she is
not entitled to complete exoneration because there was no unlawful
aggression -- no immediate and unexpected attack on her by her battererhusband at the time she shot him.
Absent unlawful aggression, there can be no self-defense, complete or
incomplete.
But all is not lost. The severe beatings repeatedly inflicted on appellant
constituted a form of cumulative provocation that broke down her
psychological resistance and self-control. This psychological paralysis she
suffered diminished her will power, thereby entitling her to the mitigating
factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code.
In addition, appellant should also be credited with the extenuating
circumstance of having acted upon an impulse so powerful as to have
naturally produced passion and obfuscation. The acute battering she
suffered that fatal night in the hands of her batterer-spouse, in spite of the
fact that she was eight months pregnant with their child, overwhelmed her
and put her in the aforesaid emotional and mental state, which overcame her
reason and impelled her to vindicate her life and her unborn childs.
Considering the presence of these two mitigating circumstances arising
from BWS, as well as the benefits of the Indeterminate Sentence Law, she
may now apply for and be released from custody on parole, because she has

The Court likewise penalizes the accused to pay the heirs of the deceased
the sum of fifty thousand pesos (P50,000.00), Philippine currency as
indemnity and another sum of fifty thousand pesos (P50,000.00), Philippine
[2]
currency as moral damages.
The Information

[3]

charged appellant with parricide as follows:

th

That on or about the 15 day of November 1995, at Barangay Bilwang,

Municipality of Isabel, Province of Leyte, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with intent to
kill, with treachery and evident premeditation, did then and there wilfully,
unlawfully and feloniously attack, assault, hit and wound one BEN GENOSA,
her legitimate husband, with the use of a hard deadly weapon, which the
accused had provided herself for the purpose, [causing] the following
wounds, to wit:
Cadaveric spasm.
Body on the 2

nd

stage of decomposition.

Face, black, blownup & swollen w/ evident post-mortem lividity.

Eyes protruding from its sockets and tongue slightly protrudes out
of the mouth.

Fracture, open, depressed, circular located at the occipital bone of

the head, resulting [in] laceration of the brain, spontaneous
rupture of the blood vessels on the posterior surface of the brain,
laceration of the dura and meningeal vessels producing severe
intracranial hemorrhage.

On November 16, 1995, appellant asked Erlinda Paderog, her close friend
and neighbor living about fifty (50) meters from her house, to look after her
pig because she was going to Cebu for a pregnancy check-up. Appellant
likewise asked Erlinda to sell her motorcycle to their neighbor Ronnie
Dayandayan who unfortunately had no money to buy it.

Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/

shedding of the epidermis.

That same day, about 12:15 in the afternoon, Joseph Valida was waiting for
a bus going to Ormoc when he saw appellant going out of their house with
her two kids in tow, each one carrying a bag, locking the gate and taking her
children to the waiting area where he was. Joseph lived about fifty (50)
meters behind the Genosas rented house. Joseph, appellant and her
children rode the same bus to Ormoc. They had no conversation as Joseph
noticed that appellant did not want to talk to him.

Abdomen distended w/ gas. Trunk bloated.

which caused his death.

[4]
[5]

With the assistance of her counsel, appellant pleaded not guilty during
[6]
her arraignment on March 3, 1997. In due course, she was tried for and
convicted of parricide.

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecutions
version of the facts in this wise:
Appellant and Ben Genosa were united in marriage on November 19, 1983 in
Ormoc City. Thereafter, they lived with the parents of Ben in their house at
Isabel, Leyte. For a time, Bens younger brother, Alex, and his wife lived with
them too. Sometime in 1995, however, appellant and Ben rented from
Steban Matiga a house at Barangay Bilwang, Isabel, Leyte where they lived
with their two children, namely: John Marben and Earl Pierre.
On November 15, 1995, Ben and Arturo Basobas went to a cockfight after
receiving their salary. They each had two (2) bottles of beer before heading
home. Arturo would pass Bens house before reaching his. When they arrived
at the house of Ben, he found out that appellant had gone to Isabel, Leyte to
look for him. Ben went inside his house, while Arturo went to a store across
it, waiting until 9:00 in the evening for the masiao runner to place a bet.
Arturo did not see appellant arrive but on his way home passing the side of
the Genosas rented house, he heard her say I wont hesitate to kill you to
which Ben replied Why kill me when I am innocent? That was the last time
Arturo saw Ben alive. Arturo also noticed that since then, the Genosas rented
house appeared uninhabited and was always closed.

On November 18, 1995, the neighbors of Steban Matiga told him about the
foul odor emanating from his house being rented by Ben and appellant.
Steban went there to find out the cause of the stench but the house was
locked from the inside. Since he did not have a duplicate key with him,
Steban destroyed the gate padlock with a borrowed steel saw. He was able
to get inside through the kitchen door but only after destroying a window to
reach a hook that locked it. Alone, Steban went inside the unlocked bedroom
where the offensive smell was coming from. There, he saw the lifeless body
of Ben lying on his side on the bed covered with a blanket. He was only in his
briefs with injuries at the back of his head. Seeing this, Steban went out of
the house and sent word to the mother of Ben about his sons misfortune.
Later that day, Iluminada Genosa, the mother of Ben, identified the dead
body as that of [her] son.
Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then
assigned at the police station at Isabel, Leyte, received a report regarding the
foul smell at the Genosas rented house. Together with SPO1 Millares, SPO1
Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the house and
went inside the bedroom where they found the dead body of Ben lying on his
side wrapped with a bedsheet. There was blood at the nape of Ben who only
had his briefs on. SPO3 Acodesin found in one corner at the side of
an aparador a metal pipe about two (2) meters from where Ben was, leaning
against a wall. The metal pipe measured three (3) feet and six (6) inches
long with a diameter of one and half (1 1/2) inches. It had an open end
without a stop valve with a red stain at one end. The bedroom was not in
disarray.
About 10:00 that same morning, the cadaver of Ben, because of its stench,
had to be taken outside at the back of the house before the postmortem
examination was conducted by Dr. Cerillo in the presence of the police. A
municipal health officer at Isabel, Leyte responsible for medico-legal cases,
Dr. Cerillo found that Ben had been dead for two to three days and his body

was already decomposing. The postmortem examination of Dr. Cerillo

yielded the findings quoted in the Information for parricide later filed against
appellant. She concluded that the cause of Bens death was cardiopulmonary
arrest secondary to severe intracranial hemorrhage due to a depressed
fracture of the occipital [bone].
Appellant admitted killing Ben. She testified that going home after work on
November 15, 1995, she got worried that her husband who was not home yet
might have gone gambling since it was a payday. With her cousin Ecel Arao,
appellant went to look for Ben at the marketplace and taverns at Isabel,
Leyte but did not find him there. They found Ben drunk upon their return at
the Genosas house. Ecel went home despite appellants request for her to
sleep in their house.
Then, Ben purportedly nagged appellant for following him, even challenging
her to a fight. She allegedly ignored him and instead attended to their
children who were doing their homework. Apparently disappointed with her
reaction, Ben switched off the light and, with the use of a chopping knife, cut
the television antenna or wire to keep her from watching television.
According to appellant, Ben was about to attack her so she ran to the
bedroom, but he got hold of her hands and whirled her around. She fell on
the side of the bed and screamed for help. Ben left. At this point, appellant
packed his clothes because she wanted him to leave. Seeing his packed
clothes upon his return home, Ben allegedly flew into a rage, dragged
appellant outside of the bedroom towards a drawer holding her by the neck,
and told her You might as well be killed so nobody would nag me. Appellant
testified that she was aware that there was a gun inside the drawer but since
Ben did not have the key to it, he got a three-inch long blade cutter from his
wallet. She however, smashed the arm of Ben with a pipe, causing him to
drop the blade and his wallet. Appellant then smashed Ben at his nape with
the pipe as he was about to pick up the blade and his wallet. She thereafter
ran inside the bedroom.
Appellant, however, insisted that she ended the life of her husband by
shooting him. She supposedly distorted the drawer where the gun was and
[7]
shot Ben. He did not die on the spot, though, but in the bedroom. (Citations
omitted)

Version of the Defense

Appellant relates her version of the facts in this manner:

1. Marivic and Ben Genosa were allegedly married on November 19, 1983.
Prior to her marriage, Marivic had graduated from San Carlos, Cebu City,
obtaining a degree of Bachelor of Science in Business Administration, and
was working, at the time of her husbands death, as a Secretary to the Port
Managers in Ormoc City. The couple had three (3) children: John Marben,
Earl Pierre and Marie Bianca.
2. Marivic and Ben had known each other since elementary school; they
were neighbors in Bilwang; they were classmates; and they were third
degree cousins. Both sets of parents were against their relationship, but Ben
was persistent and tried to stop other suitors from courting her. Their
closeness developed as he was her constant partner at fiestas.
3. After their marriage, they lived first in the home of Bens parents, together
with Bens brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic
and Ben lived happily. But apparently, soon thereafter, the couple would
quarrel often and their fights would become violent.
4. Bens brother, Alex, testified for the prosecution that he could not
remember when Ben and Marivic married. He said that when Ben and
Marivic quarreled, generally when Ben would come home drunk, Marivic
would inflict injuries on him. He said that in one incident in 1993 he saw
Marivic holding a kitchen knife after Ben had shouted for help as his left hand
was covered with blood. Marivic left the house but after a week, she returned
apparently having asked for Bens forgiveness. In another incident in May 22,
1994, early morning, Alex and his father apparently rushed to Bens aid again
and saw blood from Bens forehead and Marivic holding an empty bottle. Ben
and Marivic reconciled after Marivic had apparently again asked for Bens
forgiveness.
Mrs. Iluminada Genosa, Marivics mother-in-law, testified too, saying that Ben
and Marivic married in 1986 or 1985 more or less here in Fatima, Ormoc
City. She said as the marriage went along, Marivic became already very
demanding. Mrs. Iluminada Genosa said that after the birth of Marivics two
sons, there were three (3) misunderstandings. The first was when Marivic
stabbed Ben with a table knife through his left arm; the second incident was
on November 15, 1994, when Marivic struck Ben on the forehead using a
sharp instrument until the eye was also affected. It was wounded and also
the ear and her husband went to Ben to help; and the third incident was in
1995 when the couple had already transferred to the house in Bilwang and
she saw that Bens hand was plastered as the bone cracked.
Both mother and son claimed they brought Ben to a Pasar clinic for medical
intervention.

5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995

After we collected our salary, we went to the cock-fighting place of ISCO.
They stayed there for three (3) hours, after which they went to Uniloks and
drank beer allegedly only two (2) bottles each. After drinking they bought
barbeque and went to the Genosa residence. Marivic was not there. He
stayed a while talking with Ben, after which he went across the road to wait
for the runner and the usher of the masiao game because during that time,
the hearing on masiao numbers was rampant. I was waiting for the ushers
and runners so that I can place my bet. On his way home at about 9:00 in the
evening, he heard the Genosas arguing. They were quarreling loudly.
Outside their house was one Fredo who is used by Ben to feed his fighting
cocks. Basobas testimony on the root of the quarrel, conveniently overheard
by him was Marivic saying I will never hesitate to kill you, whilst Ben replied
Why kill me when I am innocent. Basobas thought they were joking.
He did not hear them quarreling while he was across the road from the
Genosa residence. Basobas admitted that he and Ben were always at the
cockpits every Saturday and Sunday. He claims that he once told Ben before
when he was stricken with a bottle by Marivic Genosa that he should leave
her and that Ben would always take her back after she would leave him so
many times.
Basobas could not remember when Marivic had hit Ben, but it was a long
time that they had been quarreling. He said Ben even had a wound on the
right forehead. He had known the couple for only one (1) year.
6. Marivic testified that after the first year of marriage, Ben became cruel to
her and was a habitual drinker. She said he provoked her, he would slap her,
sometimes he would pin her down on the bed, and sometimes beat her.
These incidents happened several times and she would often run home to
her parents, but Ben would follow her and seek her out, promising to change
and would ask for her forgiveness. She said after she would be beaten, she
would seek medical help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo.
These doctors would enter the injuries inflicted upon her by Ben into their
reports. Marivic said Ben would beat her or quarrel with her every time he
was drunk, at least three times a week.
7. In her defense, witnesses who were not so closely related to Marivic,
testified as to the abuse and violence she received at the hands of Ben.
7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas,
testified that on November 15, 1995, he overheard a quarrel between Ben
and Marivic. Marivic was shouting for help and through the open jalousies, he
saw the spouses grappling with each other. Ben had Marivic in a choke hold.

He did not do anything, but had come voluntarily to testify. (Please note this
[8]
was the same night as that testified to by Arturo Busabos. )
7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe
Barrientos, testified that he heard his neighbor Marivic shouting on the night
of November 15, 1995. He peeped through the window of his hut which is
located beside the Genosa house and saw the spouses grappling with each
other then Ben Genosa was holding with his both hands the neck of the
accused, Marivic Genosa. He said after a while, Marivic was able to extricate
he[r]self and enter the room of the children. After that, he went back to work
as he was to go fishing that evening. He returned at 8:00 the next morning.
(Again, please note that this was the same night as that testified to by Arturo
Basobas).
7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they
were living in Isabel, Leyte. His house was located about fifty (50) meters
from theirs. Marivic is his niece and he knew them to be living together for 13
or 14 years. He said the couple was always quarreling. Marivic confided in
him that Ben would pawn items and then would use the money to gamble.
One time, he went to their house and they were quarreling. Ben was so
angry, but would be pacified if somebody would come. He testified that while
Ben was alive he used to gamble and when he became drunk, he would go
to our house and he will say, Teody because that was what he used to call
me, mokimas ta, which means lets go and look for a whore. Mr. Sarabia
further testified that Ben would box his wife and I would see bruises and one
time she ran to me, I noticed a wound (the witness pointed to his right breast)
as according to her a knife was stricken to her. Mr. Sarabia also said that
once he saw Ben had been injured too. He said he voluntarily testified only
that morning.
7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic,
testified that in the afternoon of November 15, 1995, Marivic went to her
house and asked her help to look for Ben. They searched in the market
place, several taverns and some other places, but could not find him. She
accompanied Marivic home. Marivic wanted her to sleep with her in the
Genosa house because she might be battered by her husband. When they
got to the Genosa house at about 7:00 in the evening, Miss Arano said that
her husband was already there and was drunk. Miss Arano knew he was
drunk because of his staggering walking and I can also detect his face.
Marivic entered the house and she heard them quarrel noisily. (Again, please
note that this is the same night as that testified to by Arturo Basobas) Miss
Arano testified that this was not the first time Marivic had asked her to sleep
in the house as Marivic would be afraid every time her husband would come
home drunk. At one time when she did sleep over, she was awakened at
10:00 in the evening when Ben arrived because the couple were very noisy
in the sala and I had heard something was broken like a vase. She said

Marivic ran into her room and they locked the door. When Ben couldnt get in
he got a chair and a knife and showed us the knife through the window grill
and he scared us. She said that Marivic shouted for help, but no one came.
On cross-examination, she said that when she left Marivics house on
November 15, 1995, the couple were still quarreling.

Marivic testified that during her marriage she had tried to leave her husband
at least five (5) times, but that Ben would always follow her and they would
reconcile. Marivic said that the reason why Ben was violent and abusive
towards her that night was because he was crazy about his recent girlfriend,
Lulu x x x Rubillos.

7.5. Dr. Dino Caing, a physician testified that he and Marivic were coemployees at PHILPHOS, Isabel, Leyte. Marivic was his patient many times
and had also received treatment from other doctors. Dr. Caing testified that
from July 6, 1989 until November 9, 1995, there were six (6) episodes of
physical injuries inflicted upon Marivic. These injuries were reported in his
Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted the
qualifications of Dr. Caing and considered him an expert witness.

On cross-examination, Marivic insisted she shot Ben with a gun; she said
that he died in the bedroom; that their quarrels could be heard by anyone
passing their house; that Basobas lied in his testimony; that she left for
Manila the next day, November 16, 1995; that she did not bother anyone in
Manila, rented herself a room, and got herself a job as a field researcher
under the alias Marvelous Isidro; she did not tell anyone that she was leaving
Leyte, she just wanted to have a safe delivery of her baby; and that she was
arrested in San Pablo, Laguna.

xxxxxxxxx
Dr. Caings clinical history of the tension headache and hypertention of
Marivic on twenty-three (23) separate occasions was marked at Exhibits 2
and 2-B. The OPD Chart of Marivic at the Philphos Clinic which reflected all
the consultations made by Marivic and the six (6) incidents of physical
injuries reported was marked as Exhibit 3.
On cross-examination, Dr. Caing said that he is not a psychiatrist, he could
not say whether the injuries were directly related to the crime committed. He
said it is only a psychiatrist who is qualified to examine the psychological
make-up of the patient, whether she is capable of committing a crime or not.
7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas
resided, testified that about two (2) months before Ben died, Marivic went to
his office past 8:00 in the evening. She sought his help to settle or confront
the Genosa couple who were experiencing family troubles. He told Marivic to
return in the morning, but he did not hear from her again and assumed that
they might have settled with each other or they might have forgiven with each
other.
xxxxxxxxx
Marivic said she did not provoke her husband when she got home that night
it was her husband who began the provocation. Marivic said she was
frightened that her husband would hurt her and she wanted to make sure she
would deliver her baby safely. In fact, Marivic had to be admitted later at the
Rizal Medical Centre as she was suffering from eclampsia and hypertension,
and the baby was born prematurely on December 1, 1995.

Answering questions from the Court, Marivic said that she threw the gun
away; that she did not know what happened to the pipe she used to smash
him once; that she was wounded by Ben on her wrist with the bolo; and that
two (2) hours after she was whirled by Ben, he kicked her ass and dragged
her towards the drawer when he saw that she had packed his things.
9. The body of Ben Genosa was found on November 18, 1995 after an
investigation was made of the foul odor emitting from the Genosa residence.
This fact was testified to by all the prosecution witnesses and some defense
witnesses during the trial.
10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of
Isabel, Leyte at the time of the incident, and among her responsibilities as
such was to take charge of all medico-legal cases, such as the examination
of cadavers and the autopsy of cadavers. Dra. Cerillo is not a forensic
pathologist. She merely took the medical board exams and passed in 1986.
She was called by the police to go to the Genosa residence and when she
got there, she saw some police officer and neighbor around. She saw Ben
Genosa, covered by a blanket, lying in a semi-prone position with his back to
the door. He was wearing only a brief.
xxxxxxxxx
Dra. Cerillo said that there is only one injury and that is the injury involving
the skeletal area of the head which she described as a fracture. And that
based on her examination, Ben had been dead 2 or 3 days. Dra. Cerillo did
not testify as to what caused his death.
Dra. Cerillo was not cross-examined by defense counsel.

11. The Information, dated November 14, 1996, filed against Marivic Genosa
charged her with the crime of PARRICIDE committed with intent to kill, with
treachery and evidence premeditation, x x x wilfully, unlawfully and
feloniously attack, assault, hit and wound x x x her legitimate husband, with
the use of a hard deadly weapon x x x which caused his death.
12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17,
22 and 23 September 1997, 12 November 1997, 15 and 16 December 1997,
22 May 1998, and 5 and 6 August 1998.
13. On 23 September 1998, or only fifty (50) days from the day of the last
trial date, the Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35,
Ormoc City, rendered a JUDGMENT finding Marivic guilty beyond
reasonable doubt of the crime of parricide, and further found treachery as an
aggravating circumstance, thus sentencing her to the ultimate penalty of
DEATH.
14. The case was elevated to this Honorable Court upon automatic review
and, under date of 24 January 2000, Marivics trial lawyer, Atty. Gil Marvel P.
Tabucanon, filed a Motion to Withdraw as counsel, attaching thereto, as a
precautionary measure, two (2) drafts of Appellants Briefs he had prepared
for Marivic which, for reasons of her own, were not conformed to by her.
The Honorable Court allowed the withdrawal of Atty. Tabucanon and
permitted the entry of appearance of undersigned counsel.
15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated
20 January 2000, to the Chief Justice, coursing the same through Atty.
Teresita G. Dimaisip, Deputy Clerk of Court of Chief Judicial Records Office,
wherein she submitted her Brief without counsels to the Court.
This letter was stamp-received by the Honorable Court on 4 February 2000.
16. In the meantime, under date of 17 February 2000, and stamp-received
by the Honorable Court on 19 February 2000, undersigned counsel filed an
URGENT OMNIBUS MOTION praying that the Honorable Court allow the
exhumation of Ben Genosa and the re-examination of the cause of his death;
allow the examination of Marivic Genosa by qualified psychologists and
psychiatrists to determine her state of mind at the time she killed her
husband; and finally, to allow a partial re-opening of the case a quo to take
the testimony of said psychologists and psychiatrists.
Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel
Fortun, then the only qualified forensic pathologist in the country, who opined
that the description of the death wound (as culled from the post-mortem

findings, Exhibit A) is more akin to a gunshot wound than a beating with a

lead pipe.
17. In a RESOLUTION dated 29 September 2000, the Honorable Court
partly granted Marivics URGENT OMNIBUS MOTION and remanded the
case to the trial court for the reception of expert psychological and/or
psychiatric opinion on the battered woman syndrome plea, within ninety (90)
days from notice, and, thereafter to forthwith report to this Court the
proceedings taken, together with the copies of the TSN and relevant
documentary evidence, if any, submitted.
18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified
before the Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City.
Immediately before Dra. Dayan was sworn, the Court a quo asked if she had
interviewed Marivic Genosa. Dra. Dayan informed the Court that interviews
were done at the Penal Institution in 1999, but that the clinical interviews and
psychological assessment were done at her clinic.
Dra. Dayan testified that she has been a clinical psychologist for twenty (20)
years with her own private clinic and connected presently to the De La Salle
University as a professor. Before this, she was the Head of the Psychology
Department of the Assumption College; a member of the faculty of
Psychology at the Ateneo de Manila University and St. Josephs College; and
was the counseling psychologist of the National Defense College. She has
an AB in Psychology from the University of the Philippines, a Master of Arts
in Clinical [Counseling], Psychology from the Ateneo, and a PhD from the
U.P. She was the past president of the Psychological Association of the
Philippines and is a member of the American Psychological Association. She
is the secretary of the International Council of Psychologists from about 68
countries; a member of the Forensic Psychology Association; and a member
of the ASEAN [Counseling] Association. She is actively involved with the
Philippine Judicial Academy, recently lecturing on the socio-demographic
and psychological profile of families involved in domestic violence and nullity
cases. She was with the Davide Commission doing research about Military
Psychology. She has written a book entitled Energy Global Psychology
(together with Drs. Allan Tan and Allan Bernardo). The Genosa case is the
first time she has testified as an expert on battered women as this is the first
case of that nature.
Dra. Dayan testified that for the research she conducted, on the sociodemographic and psychological profile of families involved in domestic
violence, and nullity cases, she looked at about 500 cases over a period of
ten (10) years and discovered that there are lots of variables that cause all of

this marital conflicts, from domestic violence to infidelity, to psychiatric

disorder.
Dra. Dayan described domestic violence to comprise of a lot of incidents of
psychological abuse, verbal abuse, and emotional abuse to physical abuse
and also sexual abuse.
xxxxxxxxx
Dra. Dayan testified that in her studies, the battered woman usually has a
very low opinion of herself. She has a self-defeating and self-sacrificing
characteristics. x x x they usually think very lowly of themselves and so when
the violence would happen, they usually think that they provoke it, that they
were the one who precipitated the violence, they provoke their spouse to be
physically, verbally and even sexually abusive to them. Dra. Dayan said that
usually a battered x x x comes from a dysfunctional family or from broken
homes.
Dra. Dayan said that the batterer, just like the battered woman, also has a
very low opinion of himself. But then emerges to have superiority complex
and it comes out as being very arrogant, very hostile, very aggressive and
very angry. They also had (sic) a very low tolerance for frustrations. A lot of
times they are involved in vices like gambling, drinking and drugs. And they
become violent. The batterer also usually comes from a dysfunctional family
which over-pampers them and makes them feel entitled to do anything. Also,
they see often how their parents abused each other so there is a lot of
modeling of aggression in the family.
Dra. Dayan testified that there are a lot of reasons why a battered woman
does not leave her husband: poverty, self-blame and guilt that she provoked
the violence, the cycle itself which makes her hope her husband will change,
the belief in her obligations to keep the family intact at all costs for the sake
of the children.

xxxxxxxxx
Dra. Dayan said that as a result of the battery of psychological tests she
administered, it was her opinion that Marivic fits the profile of a battered
woman because inspite of her feeling of self-confidence which we can see at
times there are really feeling (sic) of loss, such feelings of humiliation which
she sees herself as damaged and as a broken person. And at the same time
she still has the imprint of all the abuses that she had experienced in the
past.
xxxxxxxxx
Dra. Dayan said Marivic thought of herself as a loving wife and did not even
consider filing for nullity or legal separation inspite of the abuses. It was at
the time of the tragedy that Marivic then thought of herself as a victim.
xxxxxxxxx
19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since
passed away, appeared and testified before RTC-Branch 35, Ormoc City.
Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow
of the Philippine Board of Psychiatry and a Fellow of the Philippine
Psychiatry Association. He was in the practice of psychiatry for thirty-eight
(38) years. Prior to being in private practice, he was connected with the
Veterans Memorial Medical Centre where he gained his training on
psychiatry and neurology. After that, he was called to active duty in the
Armed Forces of the Philippines, assigned to the V. Luna Medical Center for
twenty six (26) years. Prior to his retirement from government service, he
obtained the rank of Brigadier General. He obtained his medical degree from
the University of Santo Tomas. He was also a member of the World
Association of Military Surgeons; the Quezon City Medical Society; the
Cagayan Medical Society; and the Philippine Association of Military
Surgeons.

xxxxxxxxx
Dra. Dayan said that abused wives react differently to the violence: some
leave the house, or lock themselves in another room, or sometimes try to
fight back triggering physical violence on both of them. She said that in a
normal marital relationship, abuses also happen, but these are not
consistent, not chronic, are not happening day in [and] day out. In an
abnormal marital relationship, the abuse occurs day in and day out, is long
lasting and even would cause hospitalization on the victim and even death on
the victim.

He authored The Comparative Analysis of Nervous Breakdown in the

Philippine Military Academy from the Period 1954 1978 which was presented
twice in international congresses. He also authored The Mental Health of the
Armed Forces of the Philippines 2000, which was likewise published
internationally and locally. He had a medical textbook published on the use of
Prasepam on a Parke-Davis grant; was the first to use Enanthate (siquiline),
on an E.R. Squibb grant; and he published the use of the drug Zopiclom in
1985-86.

Dr. Pajarillo explained that psychiatry deals with the functional disorder of the
mind and neurology deals with the ailment of the brain and spinal cord
enlarged. Psychology, on the other hand, is a bachelor degree and a
doctorate degree; while one has to finish medicine to become a specialist in
psychiatry.
Even only in his 7th year as a resident in V. Luna Medical Centre, Dr.
Pajarillo had already encountered a suit involving violent family relations, and
testified in a case in 1964. In the Armed Forces of the Philippines, violent
family disputes abound, and he has seen probably ten to twenty thousand
cases. In those days, the primordial intention of therapy was reconciliation.
As a result of his experience with domestic violence cases, he became a
consultant of the Battered Woman Office in Quezon City under Atty. Nenita
Deproza.
As such consultant, he had seen around forty (40) cases of severe domestic
violence, where there is physical abuse: such as slapping, pushing, verbal
abuse, battering and boxing a woman even to an unconscious state such
that the woman is sometimes confined. The affliction of Post-Traumatic
Stress Disorder depends on the vulnerability of the victim. Dr. Pajarillo said
that if the victim is not very healthy, perhaps one episode of violence may
induce the disorder; if the psychological stamina and physiologic
constitutional stamina of the victim is stronger, it will take more repetitive
trauma to precipitate the post-traumatic stress disorder and this x x x is very
dangerous.
In psychiatry, the post-traumatic stress disorder is incorporated under the
anxiety neurosis or neurologic anxcietism. It is produced by overwhelming
brutality, trauma.
xxxxxxxxx
Dr. Pajarillo explained that with neurotic anxiety, the victim relives the beating
or trauma as if it were real, although she is not actually being beaten at that
time. She thinks of nothing but the suffering.
xxxxxxxxx
A woman who suffers battery has a tendency to become neurotic, her
emotional tone is unstable, and she is irritable and restless. She tends to
become hard-headed and persistent. She has higher sensitivity and her selfworld is damaged.
Dr. Pajarillo said that an abnormal family background relates to an
individuals illness, such as the deprivation of the continuous care and love of

the parents. As to the batterer, he normally internalizes what is around him

within the environment. And it becomes his own personality. He is very
competitive; he is aiming high all the time; he is so macho; he shows his
strong faade but in it there are doubts in himself and prone to act without
thinking.
xxxxxxxxx
Dr. Pajarillo emphasized that even though without the presence of the
precipator (sic) or the one who administered the battering, that reexperiencing of the trauma occurred (sic) because the individual cannot
control it. It will just come up in her mind or in his mind.
xxxxxxxxx
Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to
defend themselves, and primarily with knives. Usually pointed weapons or
any weapon that is available in the immediate surrounding or in a hospital x x
x because that abound in the household. He said a victim resorts to weapons
when she has reached the lowest rock bottom of her life and there is no other
recourse left on her but to act decisively.
xxxxxxxxx
Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview
he conducted for two (2) hours and seventeen (17) minutes. He used the
psychological evaluation and social case studies as a help in forming his
diagnosis. He came out with a Psychiatric Report, dated 22 January 2001.
xxxxxxxxx
On cross-examination by the private prosecutor, Dr. Pajarillo said that at the
time she killed her husband Marivicc mental condition was that she was reexperiencing the trauma. He said that we are trying to explain scientifically
that the re-experiencing of the trauma is not controlled by Marivic. It will just
come in flashes and probably at that point in time that things happened when
the re-experiencing of the trauma flashed in her mind. At the time he
interviewed Marivic she was more subdued, she was not super alert anymore
x x x she is mentally stress (sic) because of the predicament she is involved.
xxxxxxxxx

20. No rebuttal evidence or testimony was presented by either the private or

the public prosecutor. Thus, in accord with the Resolution of this Honorable
[9]
Court, the records of the partially re-opened trial aquo were elevated.

Ruling of the Trial Court

Finding the proffered theory of self-defense untenable, the RTC gave
credence to the prosecution evidence that appellant had killed the deceased
while he was in bed sleeping. Further, the trial court appreciated the generic
aggravating circumstance of treachery, because Ben Genosa was
supposedly defenseless when he was killed -- lying in bed asleep when
Marivic smashed him with a pipe at the back of his head.
The capital penalty having been imposed, the case was elevated to this
Court for automatic review.

Supervening Circumstances
On February 19, 2000, appellant filed an Urgent Omnibus Motion
praying that this Court allow (1) the exhumation of Ben Genosa and the
reexamination of the cause of his death; (2) the examination of appellant by
qualified psychologists and psychiatrists to determine her state of mind at the
time she had killed her spouse; and (3) the inclusion of the said experts
reports in the records of the case for purposes of the automatic review or, in
the alternative, a partial reopening of the case for the lower court to admit the
experts testimonies.
On September 29, 2000, this Court issued a Resolution granting in part
appellants Motion, remanding the case to the trial court for the reception of
expert psychological and/or psychiatric opinion on the battered woman
syndrome plea; and requiring the lower court to report thereafter to this Court
the proceedings taken as well as to submit copies of the TSN and additional
evidence, if any.
Acting on the Courts Resolution, the trial judge authorized the
examination of Marivic by two clinical psychologists, Drs. Natividad
[10]
[11]
Dayan and Alfredo Pajarillo, supposedly experts on domestic violence.
Their testimonies, along with their documentary evidence, were then
presented to and admitted by the lower court before finally being submitted to
[12]
this Court to form part of the records of the case.

The Issues
Appellant assigns the following alleged errors of the trial court for this
Courts consideration:
1. The trial court gravely erred in promulgating an obviously hasty decision
without reflecting on the evidence adduced as to self-defense.
2. The trial court gravely erred in finding as a fact that Ben and Marivic
Genosa were legally married and that she was therefore liable for parricide.
3. The trial court gravely erred finding the cause of death to be by beating
with a pipe.
4. The trial court gravely erred in ignoring and disregarding evidence
adduced from impartial and unbiased witnesses that Ben Genosa was a
drunk, a gambler, a womanizer and wife-beater; and further gravely erred in
concluding that Ben Genosa was a battered husband.
5. The trial court gravely erred in not requiring testimony from the children of
Marivic Genosa.
6. The trial court gravely erred in concluding that Marivics flight to Manila
and her subsequent apologies were indicia of guilt, instead of a clear attempt
to save the life of her unborn child.
7. The trial court gravely erred in concluding that there was an aggravating
circumstance of treachery.
8. The trial court gravely erred in refusing to re-evaluate the traditional
elements in determining the existence of self-defense and defense of foetus
in this case, thereby erroneously convicting Marivic Genosa of the crime of
[13]
parricide and condemning her to the ultimate penalty of death.
In the main, the following are the essential legal issues: (1) whether
appellant acted in self-defense and in defense of her fetus; and (2) whether
treachery attended the killing of Ben Genosa.

The Courts Ruling

The appeal is partly meritorious.

Collateral Factual Issues

The first six assigned errors raised by appellant are factual in nature, if
not collateral to the resolution of the principal issues. As consistently held by
this Court, the findings of the trial court on the credibility of witnesses and
their testimonies are entitled to a high degree of respect and will not be
disturbed on appeal in the absence of any showing that the trial judge
gravely abused his discretion or overlooked, misunderstood or misapplied
material facts or circumstances of weight and substance that could affect the
[14]
outcome of the case.
In appellants first six assigned items, we find no grave abuse of
discretion, reversible error or misappreciation of material facts that would
reverse or modify the trial courts disposition of the case. In any event, we will
now briefly dispose of these alleged errors of the trial court.
First, we do not agree that the lower court promulgated an obviously
hasty decision without reflecting on the evidence adduced as to self-defense.
We note that in his 17-page Decision, Judge Fortunito L. Madrona
summarized the testimonies of both the prosecution and the defense
witnesses and -- on the basis of those and of the documentary evidence on
record -- made his evaluation, findings and conclusions. He wrote a 3-page
discourse assessing the testimony and the self-defense theory of the
accused. While she, or even this Court, may not agree with the trial judges
conclusions, we cannot peremptorily conclude, absent substantial evidence,
that he failed to reflect on the evidence presented.
Neither do we find the appealed Decision to have been made in an
obviously hasty manner. The Information had been filed with the lower court
on November 14, 1996. Thereafter, trial began and at least 13 hearings were
held for over a year. It took the trial judge about two months from the
conclusion of trial to promulgate his judgment. That he conducted the trial
and resolved the case with dispatch should not be taken against him, much
less used to condemn him for being unduly hasty. If at all, the dispatch with
which he handled the case should be lauded. In any case, we find his actions
[15]
in substantial compliance with his constitutional obligation.
Second, the lower court did not err in finding as a fact that Ben Genosa
and appellant had been legally married, despite the non-presentation of their
[16]
marriage contract. In People v. Malabago, this Court held:
The key element in parricide is the relationship of the offender with the victim.
In the case of parricide of a spouse, the best proof of the relationship
between the accused and the deceased is the marriage certificate. In the
absence of a marriage certificate, however, oral evidence of the fact of
marriage may be considered by the trial court if such proof is not objected to.

Two of the prosecution witnesses -- namely, the mother and the brother
of appellants deceased spouse -- attested in court that Ben had been
[17]
married to Marivic. The defense raised no objection to these testimonies.
Moreover, during her direct examination, appellant herself made a judicial
[18]
admission of her marriage to Ben. Axiomatic is the rule that a judicial
admission is conclusive upon the party making it, except only when there is a
showing that (1) the admission was made through a palpable mistake, or (2)
[19]
no admission was in fact made. Other than merely attacking the nonpresentation of the marriage contract, the defense offered no proof that the
admission made by appellant in court as to the fact of her marriage to the
deceased was made through a palpable mistake.
Third, under the circumstances of this case, the specific or direct cause
of Bens death -- whether by a gunshot or by beating with a pipe -- has no
legal consequence. As the Court elucidated in its September 29, 2000
Resolution, [c]onsidering that the appellant has admitted the fact of killing her
husband and the acts of hitting his nape with a metal pipe and of shooting
him at the back of his head, the Court believes that exhumation is
unnecessary, if not immaterial, to determine which of said acts actually
caused the victims death. Determining which of these admitted acts caused
the death is not dispositive of the guilt or defense of appellant.
Fourth, we cannot fault the trial court for not fully appreciating evidence that
Ben was a drunk, gambler, womanizer and wife-beater. Until this case came to
us for automatic review, appellant had not raised the novel defense of battered
woman syndrome, for which such evidence may have been relevant. Her theory
of self-defense was then the crucial issue before the trial court. As will be
discussed shortly, the legal requisites of self-defense under prevailing
jurisprudence ostensibly appear inconsistent with the surrounding facts that led
to the death of the victim. Hence, his personal character, especially his past
behavior, did not constitute vital evidence at the time.
Fifth, the trial court surely committed no error in not requiring testimony
from appellants children. As correctly elucidated by the solicitor general, all
criminal actions are prosecuted under the direction and control of the public
prosecutor, in whom lies the discretion to determine which witnesses and
[20]
evidence are necessary to present. As the former further points out,
neither the trial court nor the prosecution prevented appellant from
presenting her children as witnesses. Thus, she cannot now fault the lower
court for not requiring them to testify.
Finally, merely collateral or corroborative is the matter of whether the
flight of Marivic to Manila and her subsequent apologies to her brother-in-law
are indicia of her guilt or are attempts to save the life of her unborn child. Any
reversible error as to the trial courts appreciation of these circumstances has
little bearing on the final resolution of the case.
First Legal Issue:

Self-Defense and Defense of a Fetus

Appellant admits killing Ben Genosa but, to avoid criminal liability,
invokes self-defense and/or defense of her unborn child. When the accused
admits killing the victim, it is incumbent upon her to prove any claimed
[21]
justifying circumstance by clear and convincing evidence. Well-settled is
the rule that in criminal cases, self-defense (and similarly, defense of a
stranger or third person) shifts the burden of proof from the prosecution to
[22]
the defense.

The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of the
battered woman syndrome. While new in Philippine jurisprudence, the
concept has been recognized in foreign jurisdictions as a form of self[23]
defense or, at the least, incomplete self-defense. By appreciating evidence
that a victim or defendant is afflicted with the syndrome, foreign courts
convey their understanding of the justifiably fearful state of mind of a person
[24]
who has been cyclically abused and controlled over a period of time.
A battered woman has been defined as a woman who is repeatedly
subjected to any forceful physical or psychological behavior by a man in
order to coerce her to do something he wants her to do without concern for
her rights. Battered women include wives or women in any form of intimate
relationship with men. Furthermore, in order to be classified as a battered
woman, the couple must go through the battering cycle at least twice. Any
woman may find herself in an abusive relationship with a man once. If it
occurs a second time, and she remains in the situation, she is defined as a
[25]
battered woman.
Battered women exhibit common personality traits, such as low selfesteem, traditional beliefs about the home, the family and the female sex
role; emotional dependence upon the dominant male; the tendency to accept
responsibility for the batterers actions; and false hopes that the relationship
[26]
will improve.
More graphically, the battered woman syndrome is characterized by the
[27]
so-called cycle of violence, which has three phases: (1) the tensionbuilding phase; (2) the acute battering incident; and (3) the tranquil, loving
[28]
(or, at least, nonviolent) phase.
During the tension-building phase, minor battering occurs -- it could
be verbal or slight physical abuse or another form of hostile behavior. The
woman usually tries to pacify the batterer through a show of kind, nurturing
behavior; or by simply staying out of his way. What actually happens is that

she allows herself to be abused in ways that, to her, are comparatively minor.
All she wants is to prevent the escalation of the violence exhibited by the
batterer. This wish, however, proves to be double-edged, because her
placatory and passive behavior legitimizes his belief that he has the right to
abuse her in the first place.
However, the techniques adopted by the woman in her effort to placate
him are not usually successful, and the verbal and/or physical abuse
worsens. Each partner senses the imminent loss of control and the growing
tension and despair. Exhausted from the persistent stress, the battered
woman soon withdraws emotionally. But the more she becomes emotionally
unavailable, the more the batterer becomes angry, oppressive and abusive.
Often, at some unpredictable point, the violence spirals out of control and
[29]
leads to an acute battering incident.
The acute battering incident is said to be characterized by brutality,
destructiveness and, sometimes, death. The battered woman deems this
incident as unpredictable, yet also inevitable. During this phase, she has no
control; only the batterer may put an end to the violence. Its nature can be as
unpredictable as the time of its explosion, and so are his reasons for ending
it. The battered woman usually realizes that she cannot reason with him, and
that resistance would only exacerbate her condition.
At this stage, she has a sense of detachment from the attack and the
terrible pain, although she may later clearly remember every detail. Her
apparent passivity in the face of acute violence may be rationalized thus: the
batterer is almost always much stronger physically, and she knows from her
past painful experience that it is futile to fight back. Acute battering incidents
are often very savage and out of control, such that innocent bystanders or
[30]
intervenors are likely to get hurt.
The final phase of the cycle of violence begins when the acute battering
incident ends. During this tranquil period, the couple experience profound
relief. On the one hand, the batterer may show a tender and nurturing
behavior towards his partner. He knows that he has been viciously cruel and
tries to make up for it, begging for her forgiveness and promising never to
beat her again. On the other hand, the battered woman also tries to convince
herself that the battery will never happen again; that her partner will change
for the better; and that this good, gentle and caring man is the real person
whom she loves.
A battered woman usually believes that she is the sole anchor of the
emotional stability of the batterer. Sensing his isolation and despair, she feels
responsible for his well-being. The truth, though, is that the chances of his
reforming, or seeking or receiving professional help, are very slim, especially
if she remains with him. Generally, only after she leaves him does he seek
professional help as a way of getting her back. Yet, it is in this phase of

remorseful reconciliation
psychologically.

that

she

is

most

thoroughly

tormented

The illusion of absolute interdependency is well-entrenched in a

battered womans psyche. In this phase, she and her batterer are indeed
emotionally dependent on each other -- she for his nurturant behavior, he for
her forgiveness. Underneath this miserable cycle of tension, violence and
forgiveness, each partner may believe that it is better to die than to be
separated. Neither one may really feel independent, capable of functioning
[31]
without the other.
History of Abuse
in the Present Case
To show the history of violence inflicted upon appellant, the defense
presented several witnesses. She herself described her heart-rending
experience as follows:
ATTY. TABUCANON
Q How did you describe your marriage with Ben Genosa?
A In the first year, I lived with him happily but in the subsequent
year he was cruel to me and a behavior of habitual drinker.

Q During those times that you were the recipient of such cruelty
and abusive behavior by your husband, were you able to see
a doctor?
A Yes, sir.
Q Who are these doctors?
A The company physician, Dr. Dino Caing, Dr. Lucero and Dra.
Cerillo.
xxxxxxxxx
Q You said that you saw a doctor in relation to your injuries?
A Yes, sir.
Q Who inflicted these injuries?
A Of course my husband.
Q You mean Ben Genosa?
A Yes, sir.
xxxxxxxxx

Q You said that in the subsequent year of your marriage, your

husband was abusive to you and cruel. In what way was this
abusive and cruelty manifested to you?

[Court] /to the witness

A He always provoke me in everything, he always slap me and

sometimes he pinned me down on the bed and sometimes
beat me.

A Everytime he got drunk.

Q How many times did this happen?

A Several times already.
Q What did you do when these things happen to you?
A I went away to my mother and I ran to my father and we separate
each other.
Q What was the action of Ben Genosa towards you leaving home?
A He is following me, after that he sought after me.
Q What will happen when he follow you?
A He said he changed, he asked for forgiveness and I was
convinced and after that I go to him and he said sorry.

Q How frequent was the alleged cruelty that you said?

Q No, from the time that you said the cruelty or the infliction of
injury inflicted on your occurred, after your marriage, from that
time on, how frequent was the occurrence?
A Everytime he got drunk.
Q Is it daily, weekly, monthly or how many times in a month or in a
week?
A Three times a week.
Q Do you mean three times a week he would beat you?
A Not necessarily that he would beat me but sometimes he will just
[32]
quarrel me.
[33]

Referring to his Out-Patient Chart on Marivic Genosa at the Philphos

Hospital, Dr. Dino D. Caing bolstered her foregoing testimony on chronic
battery in this manner:

Q So, do you have a summary of those six (6) incidents which are
found in the chart of your clinic?
A Yes, sir.

A So, in this 4th episode of physical injuries there is an

inflammation of left breast. So, [pain] meaning there is
tenderness. When your breast is traumatized, there is
tenderness pain.

Q Who prepared the list of six (6) incidents, Doctor?

Q So, these are objective physical injuries. Doctor?

A I did.
Q Will you please read the physical findings together with the dates
for the record.
A 1. May 12, 1990 - physical findings are as follows: Hematoma (R)
lower eyelid and redness of eye. Attending physician: Dr.
Lucero;

xxxxxxxxx
Q Were you able to talk with the patient?
A Yes, sir.
Q What did she tell you?

2. March 10, 1992 - Contusion-Hematoma (L) lower arbital

area, pain and contusion (R) breast. Attending physician: Dr.
Canora;

A As a doctor-patient relationship, we need to know the cause of

these injuries. And she told me that it was done to her by her
husband.

3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;

Q You mean, Ben Genosa?

4. August 1, 1994 - Pain, mastitis (L) breast, 2 to trauma.

Attending physician: Dr. Caing;

A Yes, sir.
xxxxxxxxx

5. April 17, 1995 - Trauma, tenderness (R) Shoulder.

Attending physician: Dr. Canora; and
6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion
Pregnancy. Attending physician: Dr. Canora.
Q Among the findings, there were two (2) incidents wherein you
were the attending physician, is that correct?
A Yes, sir.
Q Did you actually physical examine the accused?
A Yes, sir.
Q Now, going to your finding no. 3 where you were the one who
attended the patient. What do you mean by abrasion furuncle
left axilla?
A Abrasion is a skin wound usually when it comes in contact with
something rough substance if force is applied.
Q What is meant by furuncle axilla?

ATTY. TABUCANON:
Q By the way Doctor, were you able to physical examine the
accused sometime in the month of November, 1995 when this
incident happened?
A As per record, yes.
Q What was the date?
A It was on November 6, 1995.
Q So, did you actually see the accused physically?
A Yes, sir.
Q On November 6, 1995, will you please tell this Honorable Court,
was the patient pregnant?
A Yes, sir.

A It is secondary of the light infection over the abrasion.

Q Being a doctor, can you more engage at what stage of

pregnancy was she?

Q What is meant by pain mastitis secondary to trauma?

A Eight (8) months pregnant.

Q So in other words, it was an advance stage of pregnancy?

A Yes, sir.

Q You mean problem in her household?

Q What was your November 6, 1995 examination, was it an

examination about her pregnancy or for some other findings?

A Probably.

A No, she was admitted for hypertension headache which

complicates her pregnancy.
Q When you said admitted, meaning she was confined?
A Yes, sir.

Q Can family trouble cause elevation of blood pressure, Doctor?

A Yes, if it is emotionally related and stressful it can cause
increases in hypertension which is unfortunately does not
response to the medication.
Q In November 6, 1995, the date of the incident, did you take the
blood pressure of the accused?

Q For how many days?

A One day.

A On November 6, 1995 consultation, the blood pressure was

180/120.

Q Where?

Q Is this considered hypertension?

A At PHILPHOS Hospital.

A Yes, sir, severe.

xxxxxxxxx

Q Lets go back to the clinical history of Marivic Genosa. You said

that you were able to examine her personally on November 6,
1995 and she was 8 months pregnant.
What is this all about?
A Because she has this problem of tension headache secondary to
hypertension and I think I have a record here, also the same
period from 1989 to 1995, she had a consultation for twentythree (23) times.
Q For what?
A Tension headache.
Q Can we say that specially during the latter consultation, that the
patient had hypertension?
A The patient definitely had hypertension. It was refractory to our
treatment. She does not response when the medication was
given to her, because tension headache is more or less stress
related and emotional in nature.
Q What did you deduce of tension headache when you said is
emotional in nature?
A From what I deduced as part of our physical examination of the
patient is the family history in line of giving the root cause of
what is causing this disease. So, from the moment you ask to
the patient all comes from the domestic problem.

Q Considering that she was 8 months pregnant, you mean this is

dangerous level of blood pressure?
A It was dangerous to the child or to the fetus.

[34]

Another defense witness, Teodoro Sarabia, a former neighbor of the

Genosas in Isabel, Leyte, testified that he had seen the couple quarreling
several times; and that on some occasions Marivic would run to him with
[35]
bruises, confiding that the injuries were inflicted upon her by Ben.
[36]

Ecel Arano also testified that for a number of times she had been
asked by Marivic to sleep at the Genosa house, because the latter feared
that Ben would come home drunk and hurt her. On one occasion that Ecel
did sleep over, she was awakened about ten oclock at night, because the
couple were very noisy and I heard something was broken like a vase. Then
Marivic came running into Ecels room and locked the door. Ben showed up
by the window grill atop a chair, scaring them with a knife.
On the afternoon of November 15, 1995, Marivic again asked her help -this time to find Ben -- but they were unable to. They returned to the Genosa
home, where they found him already drunk. Again afraid that he might hurt
her, Marivic asked her to sleep at their house. Seeing his state of
drunkenness, Ecel hesitated; and when she heard the couple start arguing,
she decided to leave.
On that same night that culminated in the death of Ben Genosa, at least
[37]
three other witnesses saw or heard the couple quarreling. Marivic relates
in detail the following backdrop of the fateful night when life was snuffed out
of him, showing in the process a vivid picture of his cruelty towards her:
ATTY. TABUCANON:

Q Please tell this Court, can you recall the incident in November
15, 1995 in the evening?
A Whole morning and in the afternoon, I was in the office working
then after office hours, I boarded the service bus and went to
Bilwang. When I reached Bilwang, I immediately asked my
son, where was his father, then my second child said, he was
not home yet. I was worried because that was payday, I was
anticipating that he was gambling. So while waiting for him,
my eldest son arrived from school, I prepared dinner for my
children.
Q This is evening of November 15, 1995?
A Yes, sir.
Q What time did Ben Genosa arrive?
A When he arrived, I was not there, I was in Isabel looking for him.
Q So when he arrived you were in Isabel looking for him?
A Yes, sir.
Q Did you come back to your house?
A Yes, sir.
Q By the way, where was your conjugal residence situated this
time?

A Ecel Arao, the one who testified.

Q Did Ecel sleep with you in your house on that evening?
A No, because she expressed fears, she said her father would not
allow her because of Ben.
Q During this period November 15, 1995, were you pregnant?
A Yes, 8 months.
Q How advance was your pregnancy?
A Eight (8) months.
Q Was the baby subsequently born?
A Yes, sir.
Q Whats the name of the baby you were carrying at that time?
A Marie Bianca.
Q What time were you able to meet personally your husband?
A Yes, sir.
Q What time?
A When I arrived home, he was there already in his usual behavior.
Q Will you tell this Court what was his disposition?

A Bilwang.

A He was drunk again, he was yelling in his usual unruly behavior.

Q Is this your house or you are renting?

Q What was he yelling all about?

A Renting.

A His usual attitude when he got drunk.

Q What time were you able to come back in your residence at

Bilwang?

Q You said that when you arrived, he was drunk and yelling at
you? What else did he do if any?

A I went back around almost 8:00 oclock.

A He is nagging at me for following him and he dared me to quarrel

him.

Q What happened when you arrived in your residence?

A When I arrived home with my cousin Ecel whom I requested to
sleep with me at that time because I had fears that he was
again drunk and I was worried that he would again beat me so
I requested my cousin to sleep with me, but she resisted
because she had fears that the same thing will happen again
last year.
Q Who was this cousin of yours who you requested to sleep with
you?

Q What was the cause of his nagging or quarreling at you if you

know?
A He was angry at me because I was following x x x him, looking
for him. I was just worried he might be overly drunk and he
would beat me again.
Q You said that he was yelling at you, what else, did he do to you if
any?

A He was nagging at me at that time and I just ignore him because

I want to avoid trouble for fear that he will beat me again.
Perhaps he was disappointed because I just ignore him of his
provocation and he switch off the light and I said to him, why
did you switch off the light when the children were there. At
that time I was also attending to my children who were doing
their assignments. He was angry with me for not answering
his challenge, so he went to the kitchen and [got] a bolo and
cut the antenna wire to stop me from watching television.

Q What was your reason in packing his clothes?

Q What did he do with the bolo?

Q You said that when Ben came back to your house, he dragged
you? How did he drag you?

A He cut the antenna wire to keep me from watching T.V.

Q What else happened after he cut the wire?
A He switch off the light and the children were shouting because
they were scared and he was already holding the bolo.
Q How do you described this bolo?
A 1 1/2 feet.
Q What was the bolo used for usually?
A For chopping meat.
Q You said the children were scared, what else happened as Ben
was carrying that bolo?

A I wanted him to leave us.

Q During this time, where were your children, what were their
reactions?
A After a couple of hours, he went back again and he got angry
with me for packing his clothes, then he dragged me again of
the bedroom holding my neck.

COURT INTERPRETER:
The witness demonstrated to the Court by using her right hand
flexed forcibly in her front neck)
A And he dragged me towards the door backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to get something and then
he kept on shouting at me that you might as well be killed so
there will be nobody to nag me.
Q So you said that he dragged you towards the drawer?

A He was about to attack me so I run to the room.

A Yes, sir.

Q What do you mean that he was about to attack you?

Q What is there in the drawer?

A When I attempt to run he held my hands and he whirled me and I

fell to the bedside.

A I was aware that it was a gun.

Q So when he whirled you, what happened to you?

A I screamed for help and then he left.
Q You said earlier that he whirled you and you fell on the bedside?
A Yes, sir.
Q You screamed for help and he left, do you know where he was
going?
A Outside perhaps to drink more.
Q When he left what did you do in that particular time?
A I packed all his clothes.

COURT INTERPRETER:
(At this juncture the witness started crying).
ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that drawer?
A He dragged me towards the drawer and he was about to open
the drawer but he could not open it because he did not have
the key then he pulled his wallet which contained a blade
about 3 inches long and I was aware that he was going to kill
me and I smashed his arm and then the wallet and the blade

fell. The one he used to open the drawer I saw, it was a pipe
about that long, and when he was about to pick-up the wallet
and the blade, I smashed him then I ran to the other room,
and on that very moment everything on my mind was to pity
on myself, then the feeling I had on that very moment was the
same when I was admitted in PHILPHOS Clinic, I was about
to vomit.
COURT INTERPRETER:
(The witness at this juncture is crying intensely).

In addition, Dra. Natividad Dayan was called by the RTC to testify as an

expert witness to assist it in understanding the psyche of a battered person.
She had met with Marivic Genosa for five sessions totaling about seventeen
hours. Based on their talks, the former briefly related the latters ordeal to the
court a quo as follows:
Q: What can you say, that you found Marivic as a battered wife?
Could you in laymans term describe to this Court what her life
was like as said to you?
A: What I remember happened then was it was more than ten
years, that she was suffering emotional anguish. There were a
lot of instances of abuses, to emotional abuse, to verbal abuse
and to physical abuse. The husband had a very meager
income, she was the one who was practically the bread earner
of the family. The husband was involved in a lot of vices, going
out with barkadas, drinking, even womanizing being involved
in cockfight and going home very angry and which will trigger
a lot of physical abuse. She also had the experience a lot of
taunting from the husband for the reason that the husband
even accused her of infidelity, the husband was saying that
the child she was carrying was not his own. So she was very
angry, she was at the same time very depressed because she
was also aware, almost like living in purgatory or even hell
[39]
when it was happening day in and day out.

xxxxxxxxx
ATTY. TABUCANON:
Q Talking of drawer, is this drawer outside your room?
A Outside.
Q In what part of the house?
A Dining.
Q Where were the children during that time?
A My children were already asleep.

In cross-examining Dra. Dayan, the public prosecutor not merely

elicited, but wittingly or unwittingly put forward, additional supporting
evidence as shown below:

Q You mean they were inside the room?

A Yes, sir.
Q You said that he dropped the blade, for the record will you
please describe this blade about 3 inches long, how does it
look like?

Q In your first encounter with the appellant in this case in 1999,

where you talked to her about three hours, what was the most
relevant information did you gather?

A Three (3) inches long and 1/2 inch wide.

A The most relevant information was the tragedy that happened.

The most important information were escalating abuses that
she had experienced during her marital life.

Q Is it a flexible blade?
A Its a cutter.

Q Before you met her in 1999 for three hours, we presume that you
already knew of the facts of the case or at least you have
substantial knowledge of the facts of the case?

Q How do you describe the blade, is it sharp both edges?

A Yes, because he once used it to me.

A I believe I had an idea of the case, but I do not know whether I

can consider them as substantial.

Q How did he do it?

A He wanted to cut my throat.

xxxxxxxxx

Q With the same blade?

A Yes, sir, that was the object used when he intimidate me.

[38]

Q Did you gather an information from Marivic that on the side of her
husband they were fond of battering their wives?

A I also heard that from her?

Q You heard that from her?

A The objective personality test is the Millon Clinical Multiaxial

Inventory. The purpose of that test is to find out about the lying
prone[ne]ss of the person.

A Yes, sir.

Q What do you mean by that?

Q Did you ask for a complete example who are the relatives of her
husband that were fond of battering their wives?

A Meaning, am I dealing with a client who is telling me the truth, or

is she someone who can exaggerate or x x x [will] tell a lie[?]

A What I remember that there were brothers of her husband who

are also battering their wives.

Q And what did you discover on the basis of this objective

personality test?

Q Did she not inform you that there was an instance that she
stayed in a hotel in Ormoc where her husband followed her
and battered [her] several times in that room?

A She was a person who passed the honesty test. Meaning she is
a person that I can trust. That the data that Im gathering from
[41]
her are the truth.

A She told me about that.

Q Did she inform you in what hotel in Ormoc?
A Sir, I could not remember but I was told that she was battered in
that room.
Q Several times in that room?
A Yes, sir. What I remember was that there is no problem about
being battered, it really happened.
Q Being an expert witness, our jurisprudence is not complete on
saying this matter. I think that is the first time that we have this
in the Philippines, what is your opinion?
A Sir, my opinion is, she is really a battered wife and in this kind
happened, it was really a self-defense. I also believe that there
had been provocation and I also believe that she became a
disordered person. She had to suffer anxiety reaction because
of all the battering that happened and so she became an
abnormal person who had lost shes not during the time and
that is why it happened because of all the physical battering,
emotional battering, all the psychological abuses that she had
experienced from her husband.
Q I do believe that she is a battered wife. Was she extremely
battered?
A Sir, it is an extreme form of battering. Yes.

The other expert witness presented by the defense, Dr. Alfredo Pajarillo,
[42]
testified on his Psychiatric Report, which was based on his interview and
examination of Marivic Genosa. The Report said that during the first three
years of her marriage to Ben, everything looked good -- the atmosphere was
fine, normal and happy -- until Ben started to be attracted to other girls and
was also enticed in[to] gambling[,] especially cockfighting. x x x. At the same
time Ben was often joining his barkada in drinking sprees.
The drinking sprees of Ben greatly changed the attitude he showed
toward his family, particularly to his wife. The Report continued: At first, it
was verbal and emotional abuses but as time passed, he became physically
abusive. Marivic claimed that the viciousness of her husband was
progressive every time he got drunk. It was a painful ordeal Marivic had to
anticipate whenever she suspected that her husband went for a drinking
[spree]. They had been married for twelve years[;] and practically more than
eight years, she was battered and maltreated relentlessly and mercilessly by
her husband whenever he was drunk.
Marivic sought the help of her mother-in-law, but her efforts were in
vain. Further quoting from the Report, [s]he also sought the advice and help
of close relatives and well-meaning friends in spite of her feeling ashamed of
what was happening to her. But incessant battering became more and more
[43]
frequent and more severe. x x x.
From the totality of evidence presented, there is indeed no doubt in the
Courts mind that Appellant Marivic Genosa was a severely abused person.

[40]

Parenthetically, the credibility of appellant was demonstrated as follows:

Q And you also said that you administered [the] objective
personality test, what x x x [is this] all about?

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused
woman, her state of mind metamorphoses. In determining her state of mind,

we cannot rely merely on the judgment of an ordinary, reasonable person

who is evaluating the events immediately surrounding the incident. A
Canadian court has aptly pointed out that expert evidence on the
psychological effect of battering on wives and common law partners are both
relevant and necessary. How can the mental state of the appellant be
appreciated without it? The average member of the public may ask: Why
would a woman put up with this kind of treatment? Why should she continue
to live with such a man? How could she love a partner who beat her to the
point of requiring hospitalization? We would expect the woman to pack her
bags and go. Where is her self-respect? Why does she not cut loose and
make a new life for herself? Such is the reaction of the average person
[44]
confronted with the so-called battered wife syndrome.
To understand the syndrome properly, however, ones viewpoint should
not be drawn from that of an ordinary, reasonable person. What goes on in
the mind of a person who has been subjected to repeated, severe beatings
may not be consistent with -- nay, comprehensible to -- those who have not
been through a similar experience. Expert opinion is essential to clarify and
[45]
refute common myths and misconceptions about battered women.
The theory of BWS formulated by Lenore Walker, as well as her
research on domestic violence, has had a significant impact in the United
States and the United Kingdom on the treatment and prosecution of cases, in
which a battered woman is charged with the killing of her violent partner. The
psychologist explains that the cyclical nature of the violence inflicted upon
the battered woman immobilizes the latters ability to act decisively in her own
interests, making her feel trapped in the relationship with no means of
[46]
escape. In her years of research, Dr. Walker found that the abuse often
escalates at the point of separation and battered women are in greater
[47]
danger of dying then.
Corroborating these research findings, Dra. Dayan said that the battered
woman usually has a very low opinion of herself. She has x x x self-defeating
and self-sacrificing characteristics. x x x [W]hen the violence would happen,
they usually think that they provoke[d] it, that they were the one[s] who
precipitated the violence[; that] they provoke[d] their spouse to be physically,
[48]
verbally and even sexually abusive to them.

of his experience with domestic violence cases, he became a consultant of

the Battered Woman Office in Quezon City. As such, he got involved in about
forty (40) cases of severe domestic violence, in which the physical abuse on
[50]
the woman would sometimes even lead to her loss of consciousness.
Dr. Pajarillo explained that overwhelming brutality, trauma could result in
posttraumatic stress disorder, a form of anxiety neurosis or neurologic
[51]
anxietism. After being repeatedly and severely abused, battered persons
may believe that they are essentially helpless, lacking power to change their
situation. x x x [A]cute battering incidents can have the effect of stimulating
the development of coping responses to the trauma at the expense of the
victims ability to muster an active response to try to escape further trauma.
Furthermore, x x x the victim ceases to believe that anything she can do will
[52]
have a predictable positive effect.
[53]

A study conducted by Martin Seligman, a psychologist at the

University of Pennsylvania, found that even if a person has control over a
situation, but believes that she does not, she will be more likely to respond to
that situation with coping responses rather than trying to escape. He said that
it was the cognitive aspect -- the individuals thoughts -- that proved allimportant. He referred to this phenomenon as learned helplessness. [T]he
truth or facts of a situation turn out to be less important than the individuals
set of beliefs or perceptions concerning the situation. Battered women dont
attempt to leave the battering situation, even when it may seem to outsiders
that escape is possible, because they cannot predict their own safety; they
believe that nothing they or anyone else does will alter their terrible
[54]
circumstances.
Thus, just as the battered woman believes that she is somehow
responsible for the violent behavior of her partner, she also believes that he
[55]
is capable of killing her, and that there is no escape. Battered women feel
unsafe, suffer from pervasive anxiety, and usually fail to leave the
[56]
relationship. Unless a shelter is available, she stays with her husband, not
only because she typically lacks a means of self-support, but also because
[57]
she fears that if she leaves she would be found and hurt even more.

According to Dra. Dayan, there are a lot of reasons why a battered

woman does not readily leave an abusive partner -- poverty, self-blame and
guilt arising from the latters belief that she provoked the violence, that she
has an obligation to keep the family intact at all cost for the sake of their
[49]
children, and that she is the only hope for her spouse to change.

In the instant case, we meticulously scoured the records for specific

evidence establishing that appellant, due to the repeated abuse she had
suffered from her spouse over a long period of time, became afflicted with
the battered woman syndrome. We, however, failed to find sufficient
evidence that would support such a conclusion. More specifically, we failed
to find ample evidence that would confirm the presence of the essential
characteristics of BWS.

The testimony of another expert witness, Dr. Pajarillo, is also helpful. He

had previously testified in suits involving violent family relations, having
evaluated probably ten to twenty thousand violent family disputes within the
Armed Forces of the Philippines, wherein such cases abounded. As a result

The defense fell short of proving all three phases of the cycle of violence
supposedly characterizing the relationship of Ben and Marivic Genosa. No
doubt there were acute battering incidents. In relating to the court a quo how
the fatal incident that led to the death of Ben started, Marivic perfectly

described the tension-building phase of the cycle. She was able to explain in
adequate detail the typical characteristics of this stage. However, that single
incident does not prove the existence of the syndrome. In other words, she
failed to prove that in at least another battering episode in the past, she had
gone through a similar pattern.
How did the tension between the partners usually arise or build up prior
to acute battering? How did Marivic normally respond to Bens relatively
minor abuses? What means did she employ to try to prevent the situation
from developing into the next (more violent) stage?
Neither did appellant proffer sufficient evidence in regard to the third
phase of the cycle. She simply mentioned that she would usually run away to
[58]
her mothers or fathers house; that Ben would seek her out, ask for her
forgiveness and promise to change; and that believing his words, she would
return to their common abode.
Did she ever feel that she provoked the violent incidents between her
and her spouse? Did she believe that she was the only hope for Ben to
reform? And that she was the sole support of his emotional stability and wellbeing? Conversely, how dependent was she on him? Did she feel helpless
and trapped in their relationship? Did both of them regard death as
preferable to separation?
In sum, the defense failed to elicit from appellant herself her factual
experiences and thoughts that would clearly and fully demonstrate the
essential characteristics of the syndrome.
The Court appreciates the ratiocinations given by the expert witnesses
for the defense. Indeed, they were able to explain fully, albeit merely
theoretically and scientifically, how the personality of the battered woman
usually evolved or deteriorated as a result of repeated and severe beatings
inflicted upon her by her partner or spouse. They corroborated each others
testimonies, which were culled from their numerous studies of hundreds of
actual cases. However, they failed to present in court the factual experiences
and thoughts that appellant had related to them -- if at all -- based on which
they concluded that she had BWS.
We emphasize that in criminal cases, all the elements of a modifying
circumstance must be proven in order to be appreciated. To repeat, the
records lack supporting evidence that would establish all the essentials of the
battered woman syndrome as manifested specifically in the case of the
Genosas.

BWS as Self-Defense

In any event, the existence of the syndrome in a relationship does not in

itself establish the legal right of the woman to kill her abusive partner.
[59]
Evidence must still be considered in the context of self-defense.
From the expert opinions discussed earlier, the Court reckons further
that crucial to the BWS defense is the state of mind of the battered woman at
[60]
the time of the offense -- she must have actually feared imminent harm
from her batterer and honestly believed in the need to kill him in order to
save her life.
Settled in our jurisprudence, however, is the rule that the one who
resorts to self-defense must face a real threat on ones life; and the peril
sought to be avoided must be imminent and actual, not merely
[61]
imaginary. Thus, the Revised Penal Code provides the following requisites
[62]
and effect of self-defense:
Art. 11. Justifying circumstances. -- The following do not incur any criminal
liability:
1. Anyone who acts in defense of his person or rights, provided that the
following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent
or repel it;
Third. Lack of sufficient provocation on the part of the person defending
himself.
[63]

Unlawful aggression is the most essential element of self-defense. It

presupposes actual, sudden and unexpected attack -- or an imminent danger
[64]
thereof -- on the life or safety of a person. In the present case, however,
according to the testimony of Marivic herself, there was a sufficient time
interval between the unlawful aggression of Ben and her fatal attack upon
him. She had already been able to withdraw from his violent behavior and
escape to their childrens bedroom. During that time, he apparently ceased
his attack and went to bed. The reality or even the imminence of the danger
he posed had ended altogether. He was no longer in a position that
presented an actual threat on her life or safety.
Had Ben still been awaiting Marivic when she came out of their
childrens bedroom -- and based on past violent incidents, there was a great
probability that he would still have pursued her and inflicted graver harm -then, the imminence of the real threat upon her life would not have ceased
yet. Where the brutalized person is already suffering from BWS, further
evidence of actual physical assault at the time of the killing is not required.
Incidents of domestic battery usually have a predictable pattern. To require
the battered person to await an obvious, deadly attack before she can defend

[65]

her life would amount to sentencing her to murder by installment. Still,

impending danger (based on the conduct of the victim in previous battering
episodes) prior to the defendants use of deadly force must be shown.
Threatening behavior or communication can satisfy the required imminence
[66]
of danger. Considering such circumstances and the existence of BWS,
self-defense may be appreciated.
We reiterate the principle that aggression, if not continuous, does not
[67]
warrant self-defense. In the absence of such aggression, there can be no
[68]
self-defense -- complete or incomplete -- on the part of the victim. Thus,
Marivics killing of Ben was not completely justified under the circumstances.

Mitigating Circumstances Present

In any event, all is not lost for appellant. While she did not raise any
other modifying circumstances that would alter her penalty, we deem it
proper to evaluate and appreciate in her favor circumstances that mitigate
her criminal liability. It is a hornbook doctrine that an appeal in a criminal
case opens it wholly for review on any issue, including that which has not
[69]
been raised by the parties.
From several psychological tests she had administered to Marivic, Dra.
Dayan, in her Psychological Evaluation Report dated November 29, 2000,
opined as follows:
This is a classic case of a Battered Woman Syndrome. The repeated
battering Marivic experienced with her husband constitutes a form of
[cumulative] provocation which broke down her psychological resistance and
natural self-control. It is very clear that she developed heightened sensitivity
to sight of impending danger her husband posed continuously. Marivic truly
experienced at the hands of her abuser husband a state of psychological
[70]
paralysis which can only be ended by an act of violence on her part.
Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that
the effect of repetitious pain taking, repetitious battering, [and] repetitious
maltreatment as well as the severity and the prolonged administration of the
[71]
battering is posttraumatic stress disorder. Expounding thereon, he said:
Q What causes the trauma, Mr. Witness?
A What causes the trauma is probably the repetitious battering.
Second, the severity of the battering. Third, the prolonged
administration of battering or the prolonged commission of the
battering and the psychological and constitutional stamina of
the victim and another one is the public and social support

available to the victim. If nobody is interceding, the more she

will go to that disorder....
xxxxxxxxx
Q You referred a while ago to severity. What are the qualifications
in terms of severity of the postraumatic stress disorder, Dr.
Pajarillo?
A The severity is the most severe continuously to trig[g]er this
post[t]raumatic stress disorder is injury to the head, banging of
the head like that. It is usually the very very severe stimulus
that precipitate this post[t]raumatic stress disorder. Others are
suffocating the victim like holding a pillow on the face,
strangulating the individual, suffocating the individual, and
boxing the individual. In this situation therefore, the victim is
heightened to painful stimulus, like for example she is
pregnant, she is very susceptible because the woman will not
only protect herself, she is also to protect the fetus. So the
anxiety is heightened to the end [sic] degree.
Q But in terms of the gravity of the disorder, Mr. Witness, how do
you classify?
A We classify the disorder as [acute], or chronic or delayed or
[a]typical.
Q Can you please describe this pre[-]classification you called
delayed or [atypical]?
A The acute is the one that usually require only one battering and
the individual will manifest now a severe emotional instability,
higher irritability remorse, restlessness, and fear and probably
in most [acute] cases the first thing will be happened to the
individual will be thinking of suicide.
Q And in chronic cases, Mr. Witness?
A The chronic cases is this repetitious battering, repetitious
maltreatment, any prolonged, it is longer than six (6) months.
The [acute] is only the first day to six (6) months. After this six
(6) months you become chronic. It is stated in the book
specifically that after six (6) months is chronic. The [a]typical
one is the repetitious battering but the individual who is
abnormal and then become normal. This is how you get
neurosis from neurotic personality of these cases of
[72]
post[t]raumatic stress disorder.

Answering the questions propounded by the trial judge, the expert

witness clarified further:
Q But just the same[,] neurosis especially on battered woman
syndrome x x x affects x x x his or her mental capacity?
A Yes, your Honor.
Q As you were saying[,] it x x x obfuscated her rationality?
A Of course obfuscated.

[73]

In sum, the cyclical nature and the severity of the violence inflicted upon
appellant resulted in cumulative provocation which broke down her
psychological resistance and natural self-control, psychological paralysis,
and difficulty in concentrating or impairment of memory.
Based on the explanations of the expert witnesses, such manifestations
were analogous to an illness that diminished the exercise by appellant of her
will power without, however, depriving her of consciousness of her
acts. There was, thus, a resulting diminution of her freedom of action,
[74]
[75]
intelligence or intent. Pursuant to paragraphs 9 and 10 of Article 13 of
the Revised Penal Code, this circumstance should be taken in her favor and
[76]
considered as a mitigating factor.
In addition, we also find in favor of appellant the extenuating
circumstance of having acted upon an impulse so powerful as to have
naturally produced passion and obfuscation. It has been held that this state
of mind is present when a crime is committed as a result of an uncontrollable
burst of passion provoked by prior unjust or improper acts or by a legitimate
[77]
stimulus so powerful as to overcome reason. To appreciate this
circumstance, the following requisites should concur: (1) there is an act, both
unlawful and sufficient to produce such a condition of mind; and (2) this act is
not far removed from the commission of the crime by a considerable length
[78]
of time, during which the accused might recover her normal equanimity.
Here, an acute battering incident, wherein Ben Genosa was the unlawful
aggressor, preceded his being killed by Marivic. He had further threatened to
kill her while dragging her by the neck towards a cabinet in which he had
kept a gun. It should also be recalled that she was eight months pregnant at
[79]
the time. The attempt on her life was likewise on that of her fetus. His
abusive and violent acts, an aggression which was directed at the lives of
both Marivic and her unborn child, naturally produced passion and
obfuscation overcoming her reason. Even though she was able to retreat to a
separate room, her emotional and mental state continued. According to her,
she felt her blood pressure rise; she was filled with feelings of self-pity and of
fear that she and her baby were about to die. In a fit of indignation, she pried
open the cabinet drawer where Ben kept a gun, then she took the weapon
and used it to shoot him.

The confluence of these events brings us to the conclusion that there

was no considerable period of time within which Marivic could have
[80]
recovered her normal equanimity. Helpful is Dr. Pajarillos testimony that
with neurotic anxiety -- a psychological effect on a victim of overwhelming
brutality [or] trauma -- the victim relives the beating or trauma as if it were
real, although she is not actually being beaten at the time. She cannot control
re-experiencing the whole thing, the most vicious and the trauma that she
suffered. She thinks of nothing but the suffering. Such reliving which is
beyond the control of a person under similar circumstances, must have been
what Marivic experienced during the brief time interval and prevented her
from recovering her normal equanimity. Accordingly, she should further be
credited with the mitigating circumstance of passion and obfuscation.
It should be clarified that these two circumstances -- psychological
paralysis as well as passion and obfuscation -- did not arise from the same
set of facts.
On the one hand, the first circumstance arose from the cyclical nature
and the severity of the battery inflicted by the batterer-spouse upon
appellant. That is, the repeated beatings over a period of time resulted in her
psychological paralysis, which was analogous to an illness diminishing the
exercise of her will power without depriving her of consciousness of her acts.
The second circumstance, on the other hand, resulted from the violent
aggression he had inflicted on her prior to the killing. That the incident
occurred when she was eight months pregnant with their child was deemed
by her as an attempt not only on her life, but likewise on that of their unborn
child. Such perception naturally produced passion and obfuscation on her
part.
Second Legal Issue:
Treachery
There is treachery when one commits any of the crimes against persons
by employing means, methods or forms in the execution thereof without risk
[81]
to oneself arising from the defense that the offended party might make. In
order to qualify an act as treacherous, the circumstances invoked must be
proven as indubitably as the killing itself; they cannot be deduced from mere
inferences, or conjectures, which have no place in the appreciation of
[82]
evidence. Because of the gravity of the resulting offense, treachery must
[83]
be proved as conclusively as the killing itself.
Ruling that treachery was present in the instant case, the trial court
imposed the penalty of death upon appellant. It inferred this qualifying
circumstances merely from the fact that the lifeless body of Ben had been
found lying in bed with an open, depressed, circular fracture located at the
back of his head. As to exactly how and when he had been fatally attacked,

however, the prosecution failed to establish indubitably. Only the following

testimony of appellant leads us to the events surrounding his death:

COURT INTERPRETER
(The witness at this juncture is crying intensely).

Q You said that when Ben came back to your house, he dragged
you? How did he drag you?
COURT:

xxxxxxxxx

The witness demonstrated to the Court by using her right hand

flexed forcibly in her front neck)

Q You said that he dropped the blade, for the record will you
please describe this blade about 3 inches long, how does it
look like?

A And he dragged me towards the door backward.

A Three (3) inches long and inch wide.

ATTY. TABUCANON:

Q It is a flexible blade?

Q Where did he bring you?

A Its a cutter.

A Outside the bedroom and he wanted to get something and then

he kept on shouting at me that you might as well be killed so
there will be nobody to nag me

Q How do you describe the blade, is it sharp both edges?

Q So you said that he dragged you towards the drawer?

Q How did he do it?

A Yes, sir.

A He wanted to cut my throat.

Q What is there in the drawer?

Q With the same blade?

A I was aware that it was a gun.

A Yes, sir, that was the object used when he intimidate me.

A Yes, because he once used it to me.

COURT INTERPRETER

xxxxxxxxx

(At this juncture the witness started crying)

ATTY. TABUCANON:
Q Were you actually brought to the drawer?
A Yes, sir.
Q What happened when you were brought to that drawer?
A He dragged me towards the drawer and he was about to open
the drawer but he could not open it because he did not have
the key then he pulled his wallet which contained a blade
about 3 inches long and I was aware that he was going to kill
me and I smashed his arm and then the wallet and the blade
fell. The one he used to open the drawer I saw, it was a pipe
about that long, and when he was about to pick-up the wallet
and the blade, I smashed him then I ran to the other room,
and on that very moment everything on my mind was to pity
on myself, then the feeling I had on that very moment was the
same when I was admitted in PHILPHOS Clinic, I was about
to vomit.

ATTY. TABUCANON:
Q You said that this blade fell from his grip, is it correct?
A Yes, because I smashed him.
Q What happened?
A Ben tried to pick-up the wallet and the blade, I pick-up the pipe
and I smashed him and I ran to the other room.
Q What else happened?
A When I was in the other room, I felt the same thing like what
happened before when I was admitted in PHILPHOS Clinic, I
was about to vomit. I know my blood pressure was raised. I
was frightened I was about to die because of my blood
pressure.
COURT INTERPRETER:

(Upon the answer of the witness getting the pipe and smashed him,
the witness at the same time pointed at the back of her neck
or the nape).
ATTY. TABUCANON:
Q You said you went to the room, what else happened?
A Considering all the physical sufferings that Ive been through with
him, I took pity on myself and I felt I was about to die also
because of my blood pressure and the baby, so I got that gun
and I shot him.
COURT
/to Atty. Tabucanon
Q You shot him?
A Yes, I distorted the drawer.

commission of the offense, the penalty shall be lowered by one (1) degree,
[88]
[89]
pursuant to Article 64 of paragraph 5 of the same Code. The penalty
ofreclusion temporal in its medium period is imposable, considering that two
mitigating circumstances are to be taken into account in reducing the penalty
by one degree, and no other modifying circumstances were shown to have
[90]
attended the commission of the offense. Under the Indeterminate
Sentence Law, the minimum of the penalty shall be within the range of that
which is next lower in degree -- prision mayor -- and the maximum shall be
within the range of the medium period of reclusion temporal.
Considering all the circumstances of the instant case, we deem it just
and proper to impose the penalty of prision mayor in its minimum period, or
six (6) years and one (1) day in prison as minimum; to reclusion temporal in
its medium period, or 14 years 8 months and 1 day as maximum. Noting that
appellant has already served the minimum period, she may now apply for
[91]
and be released from detention on parole.

[84]

The above testimony is insufficient to establish the presence of

treachery. There is no showing of the victims position relative to appellants at
the time of the shooting. Besides, equally axiomatic is the rule that when a
killing is preceded by an argument or a quarrel, treachery cannot be
appreciated as a qualifying circumstance, because the deceased may be
said to have been forewarned and to have anticipated aggression from the
[85]
assailant.
Moreover, in order to appreciate alevosia, the method of assault
adopted by the aggressor must have been consciously and deliberately
chosen for the specific purpose of accomplishing the unlawful act without risk
[86]
from any defense that might be put up by the party attacked. There is no
showing, though, that the present appellant intentionally chose a specific
means of successfully attacking her husband without any risk to herself from
any retaliatory act that he might make. To the contrary, it appears that the
thought of using the gun occurred to her only at about the same moment
when she decided to kill her batterer-spouse. In the absence of any
convincing proof that she consciously and deliberately employed the method
by which she committed the crime in order to ensure its execution, this Court
[87]
resolves the doubt in her favor.

Proper Penalty
The penalty for parricide imposed by Article 246 of the Revised Penal
Code is reclusion perpetua to death. Since two mitigating circumstances and
no aggravating circumstance have been found to have attended the

Epilogue
Being a novel concept in our jurisprudence, the battered woman
syndrome was neither easy nor simple to analyze and recognize vis--vis the
given set of facts in the present case. The Court agonized on how to apply
the theory as a modern-day reality. It took great effort beyond the normal
manner in which decisions are made -- on the basis of existing law and
jurisprudence applicable to the proven facts. To give a just and proper
resolution of the case, it endeavored to take a good look at studies
conducted here and abroad in order to understand the intricacies of the
syndrome and the distinct personality of the chronically abused person.
Certainly, the Court has learned much. And definitely, the solicitor general
and appellants counsel, Atty. Katrina Legarda, have helped it in such
learning process.
While our hearts empathize with recurrently battered persons, we can
only work within the limits of law, jurisprudence and given facts. We cannot
make or invent them. Neither can we amend the Revised Penal Code. Only
Congress, in its wisdom, may do so.
The Court, however, is not discounting the possibility of self-defense
arising from the battered woman syndrome. We now sum up our main
points. First, each of the phases of the cycle of violence must be proven to
have characterized at least two battering episodes between the appellant
and her intimate partner. Second, the final acute battering episode preceding
the killing of the batterer must have produced in the battered persons mind
an actual fear of an imminent harm from her batterer and an honest belief
that she needed to use force in order to save her life. Third, at the time of the

killing, the batterer must have posed probable -- not necessarily immediate
and actual -- grave harm to the accused, based on the history of violence
perpetrated by the former against the latter. Taken altogether, these
circumstances could satisfy the requisites of self-defense. Under the existing
facts of the present case, however, not all of these elements were duly
established.

MELO, J.:

WHEREFORE, the conviction of Appellant Marivic Genosa for parricide

is hereby AFFIRMED. However, there being two (2) mitigating circumstances
and no aggravating circumstance attending her commission of the offense,
her penalty is REDUCED to six (6) years and one (1) day of prision mayor as
minimum; to 14 years, 8 months and 1 day of reclusion temporal as
maximum.

In the evening of March 2, 1991, M/T Tabangao, a cargo vessel owned

by the PNOC Shipping and Transport Corporation, loaded with 2,000 barrels
of kerosene, 2,600 barrels of regular gasoline, and 40,000 barrels of diesel
oil, with a total value of P40,426,793,87. was sailing off the coast of Mindoro
near Silonay Island.

Inasmuch as appellant has been detained for more than the minimum penalty
hereby imposed upon her, the director of the Bureau of Corrections may
immediately RELEASE her from custody upon due determination that she is
eligible for parole, unless she is being held for some other lawful cause.
Costs de oficio.
SO ORDERED.
Puno, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga,
JJ., concur.
Davide, Jr., C.J., Sandoval-Gutierrez, and Austria-Martinez, JJ., join
Justice Santiago in her dissent.
Vitug and Quisumbing JJ., in the result.
Ynares-Santiago J., see dissenting opinion.

2. People vs Tulin
THIRD DIVISION

[G.R. No. 111709. August 30, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGER P. TULIN,

VIRGILIO I. LOYOLA, CECILIO O. CHANGCO, ANDRES C.
INFANTE, CHEONG SAN HIONG, and JOHN DOES, accusedappellants.
DECISION

This is one of the older cases which unfortunately has remained in

docket of the Court for sometime. It was reassigned, together with other
similar cases, to undersigned ponente in pursuance of A.M. No. 00-9-03-SC
dated February 27, 2001.

The vessel, manned by 21 crew members, including Captain Edilberto

Libo-on, Second Mate Christian Torralba, and Operator Isaias Ervas, was
suddenly boarded, with the use of an aluminum ladder, by seven fully armed
pirates led by Emilio Changco, older brother of accused-appellant Cecilio
Changco. The pirates, including accused-appellants Tulin, Loyola, and
Infante, Jr. were armed with M-16 rifles, .45 and .38 caliber handguns, and
bolos. They detained the crew and took complete control of the vessel.
Thereafter, accused-appellant Loyola ordered three crew members to paint
over, using black paint, the name "M/T Tabangao" on the front and rear
portions of the vessel, as well as the PNOC logo on the chimney of the
vessel. The vessel was then painted with the name "Galilee," with registry at
San Lorenzo, Honduras. The crew was forced to sail to Singapore, all the
while sending misleading radio messages to PNOC that the ship was
undergoing repairs.
PNOC, after losing radio contact with the vessel, reported the
disappearance of the vessel to the Philippine Coast Guard and secured the
assistance of the Philippine Air Force and the Philippine Navy. However,
search and rescue operations yielded negative results. On March 9, 1991,
the ship arrived in the vicinity of Singapore and cruised around the area
presumably to await another vessel which, however, failed to arrive. The
pirates were thus forced to return to the Philippines on March 14, 1991,
arriving at Calatagan, Batangas on March 20, 1991 where it remained at sea.
On March 28, 1991, the "M/T Tabangao" again sailed to and anchored
about 10 to 18 nautical miles from Singapore's shoreline where another
vessel called "Navi Pride" anchored beside it. Emilio Changco ordered the
crew of "M/T Tabangao" to transfer the vessel's cargo to the hold of "Navi
Pride". Accused-appellant Cheong San Hiong supervised the crew of "Navi
Pride" in receiving the cargo. The transfer, after an interruption, with both
vessels leaving the area, was completed on March 30,1991.
On March 30, 1991, "M/T Tabangao" returned to the same area and
completed the transfer of cargo to "Navi Pride."

On April 8, 1991, "M/T Tabangao" arrived at Calatagan, Batangas, but

the vessel remained at sea. On April 10, 1991, the members of the crew
were released in three batches with the stern warning not to report the
incident to government authorities for a period of two days or until April 12,
1991, otherwise they would be killed. The first batch was fetched from the
shoreline by a newly painted passenger jeep driven by accused-appellant
Cecilio Changco, brother of Emilio Changco, who brought them to Imus,
Cavite and gave P20,000.00 to Captain Libo-on for fare of the crew in
proceeding to their respective homes. The second batch was fetched by
accused-appellant Changco at midnight of April 10, 1991 and were brought
to different places in Metro Manila.

Philippine waters M/T PNOC TABANGCO loaded with petroleum products,

together with the complement and crew members, employing violence
against or intimidation of persons or force upon things, then direct the vessel
to proceed to Singapore where the cargoes were unloaded and thereafter
returned to the Philippines on April 10, 1991, in violation of the aforesaid law.

On April 12, 1991, the Chief Engineer, accompanied by the members of

the crew, called the PNOC Shipping and Transport Corporation office to
report the incident. The crew members were brought to the Coast Guard
Office for investigation. The incident was also reported to the National
Bureau of Investigation where the officers and members of the crew
executed sworn statements regarding the incident.

This was docketed as Criminal Case No. 91-94896 before Branch 49 of

the Regional Trial Court of the National Capital Judicial Region stationed in
Manila. Upon arraignment, accused-appellants pleaded not guilty to the
charge. Trial thereupon ensued.

A series of arrests was thereafter effected as follows:

a. On May 19, 1991, the NBI received verified information that the
pirates were present at U.K. Beach, Balibago, Calatagan, Batangas. After
three days of surveillance, accused-appellant Tulin was arrested and brought
to the NBI headquarters in Manila.
b. Accused-appellants Infante, Jr. and Loyola were arrested by chance
at Aguinaldo Hi-way by NBI agents as the latter were pursuing the
mastermind, who managed to evade arrest.
c. On May 20, 1991, accused-appellants Hiong and Changco were
arrested at the lobby of Alpha Hotel in Batangas City.
On October 24 1991, an Information charging qualified piracy or
violation of Presidential Decree No. 532 (piracy in Philippine Waters) was
filed against accused-appellants, as follows:
The undersigned State Prosecutor accuses ROGER P. TULIN, VIRGILIO I.
LOYOLA, CECILIO O. CHANGCO, ANDRES C. INFANTE, and CHEONG
SAN HIONG, and nine (9) other JOHN DOES of qualified piracy (Violation of
P.D. No. 532), committed as follows:
That on or about and during the period from March 2 to April 10, 1991, both
dates inclusive, and for sometime prior and subsequent thereto, and within
the jurisdiction of this Honorable Court, the said accused, then manning a
motor launch and armed with high powered guns, conspiring and
confederating together and mutually helping one another, did then and there,
wilfully, unlawfully and feloniously fire upon, board and seize while in the

CONTRARY TO LAW.
(pp. 119-20,
Rollo.)

Accused-appellants Tulin, Infante, Jr., and Loyola, notwithstanding

some inconsistencies in their testimony as to where they were on March 1,
1991, maintained the defense of denial, and disputed the charge, as well as
the transfer of any cargo from "M/T Tabangao" to the "Navi Pride." All of
them claimed having their own respective sources of livelihood. Their story is
to the effect that on March 2, 1991, while they were conversing by the beach,
a red speedboat with Captain Edilberto Liboon and Second Mate Christian
Torralba on board, approached the seashore. Captain Liboon inquired from
the three if they wanted to work in a vessel. They were told that the work was
light and that each worker was to be paid P3,000.00 a month with additional
compensation if they worked beyond that period. They agreed even though
they had no sea-going experience. On board, they cooked, cleaned the
vessel, prepared coffee, and ran errands for the officers. They denied having
gone to Singapore, claiming that the vessel only went to Batangas. Upon
arrival thereat in the morning of March 21, 1991, they were paid P1,000.00
each as salary for nineteen days of work, and were told that the balance
would be remitted to their addresses. There was neither receipt nor contracts
of employment signed by the parties.
Accused-appellant Changco categorically denied the charge, averring
that he was at home sleeping on April 10, 1991. He testified that he is the
younger brother of Emilio Changco, Jr.
Accused-appellant Cheong San Hiong, also known as Ramzan Ali,
adduced evidence that he studied in Sydney, Australia, obtaining the
"Certificate" as Chief Officer, and later completed the course as a "Master" of
a vessel, working as such for two years on board a vessel. He was employed
at Navi Marine Services, Pte., Ltd. as Port Captain. The company was
engaged in the business of trading petroleum, including shipoil, bunker lube
oil, and petroleum to domestic and international markets. It owned four
vessels, one of which was "Navi Pride."

On March 2, 1991, the day before "M/T Tabangao" was seized by Emilio
Changco and his cohorts, Hiong's name was listed in the company's letter to
the Mercantile Section of the Maritime Department of the Singapore
government as the radio telephone operator on board the vessel "Ching Ma."
The company was then dealing for the first time with Paul Gan, a
Singaporean broker, who offered to sell to the former bunker oil for the
amount of 300,000.00 Singapore dollars. After the company paid over onehalf of the aforesaid amount to Paul Gan, the latter, together with Joseph Ng,
Operations Superintendent of the firm, proceeded to the high seas on board
"Navi Pride" but failed to locate the contact vessel.
The transaction with Paul Gan finally pushed through on March 27,
1991. Hiong, upon his return on board the vessel "Ching Ma," was assigned
to supervise a ship-to-ship transfer of diesel oil off the port of Singapore, the
contact vessel to be designated by Paul Gan. Hiong was ordered to ascertain
the quantity and quality of the oil and was given the amount of 300,000.00
Singapore Dollars for the purchase. Hiong, together with Paul Gan, and the
surveyor William Yao, on board "Navi Pride" sailed toward a vessel called
"M/T Galilee". Hiong was told that "M/T Galilee" would be making the
transfer. Although no inspection of "Navi Pride" was made by the port
authorities before departure, Navi Marine Services, Pte., Ltd. was able to
procure a port clearance upon submission of General Declaration and crew
list. Hiong, Paul Gan, and the brokers were not in the crew list submitted and
did not pass through the immigration. The General Declaration falsely
reflected that the vessel carried 11,900 tons.
On March 28, 1991, "Navi Pride" reached the location of "M/T Galilee".
The brokers then told the Captain of the vessel to ship-side with "M/T
Galilee" and then transfer of the oil transpired. Hiong and the surveyor
William Yao met the Captain of "M/T Galilee," called "Captain Bobby" (who
later turned out to be Emilio Changco). Hiong claimed that he did not ask for
the full name of Changco nor did he ask for the latter's personal card.
Upon completion of the transfer, Hiong took the soundings of the tanks
in the "Navi Pride" and took samples of the cargo. The surveyor prepared the
survey report which "Captain Bobby" signed under the name "Roberto
Castillo." Hiong then handed the payment to Paul Gan and William Yao.
Upon arrival at Singapore in the morning of March 29, 1991, Hiong reported
the quantity and quality of the cargo to the company.
Thereafter, Hiong was again asked to supervise another transfer of oil
purchased by the firm " from "M/T Galilee" to "Navi Pride." The same
procedure as in the first transfer was observed. This time, Hiong was told
that that there were food and drinks, including beer, purchased by the
company for the crew of "M/T Galilee. The transfer took ten hours and was
completed on March 30, 1991. Paul Gan was paid in full for the transfer.

On April 29 or 30, 1991, Emilio Changco intimated to Hiong that he had

four vessels and wanted to offer its cargo to cargo operators. Hiong was
asked to act as a broker or ship agent for the sale of the cargo in Singapore.
Hiong went to the Philippines to discuss the matter with Emilio Changco, who
laid out the details of the new transfer, this time with "M/T Polaris" as contact
vessel. Hiong was told that the vessel was scheduled to arrive at the port of
Batangas that weekend. After being billeted at Alpha Hotel in Batangas City,
where Hiong checked in under the name "SONNY CSH." A person by the
name of "KEVIN OCAMPO," who later turned out to be Emilio Changco
himself, also checked in at Alpha Hotel. From accused-appellant Cecilio
Changco, Hiong found out that the vessel was not arriving. Hiong was
thereafter arrested by NBI agents.
After trial, a 95-page decision was rendered convicting accusedappellants of the crime charged. The dispositive portion of said decision
reads:
WHEREFORE, in the light of the foregoing considerations, judgment is
hereby rendered by this Court finding the accused Roger Tulin, Virgilio
Loyola, Andres Infante, Jr. and Cecilio Changco guilty beyond reasonable
doubt, as principals, of the crime of piracy in Philippine Waters defined in
Section 2(d) of Presidential Decree No. 532 and the accused Cheong San
Hiong, as accomplice, to said crime. Under Section 3(a) of the said law, the
penalty for the principals of said crime is mandatory death. However,
considering that, under the 1987 Constitution, the Court cannot impose the
death penalty, the accused Roger Tulin, Virgilio Loyola, Andres Infante, ]r.,
and Cecilio Changco are hereby each meted the penalty of RECLUSION
PERPETUA, with all the accessory penalties of the law. The accused
Cheong San Hiong is hereby meted the penalty of RECLUSION PERPETUA,
pursuant to Article 52 of the Revised Penal Code in relation to Section 5 of
PD 532. The accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr. and
Cecilio Changco are hereby ordered to return to the PNOC Shipping and
Transport Corporation the "M/T Tabangao" or if the accused can no longer
return the same, the said accused are hereby ordered to remit, jointly and
severally, to said corporation the value thereof in the amount of
P11,240,000.00 Philippine Currency, with interests thereon, at the rate of 6%
per annum from March 2, 1991 until the said amount is paid in full. All the
accused including Cheong San Hiong are hereby ordered to return to the
Caltex Philippines, Inc. the cargo of the "M/T Tabangao", or if the accused
can no longer return the said cargo to said corporation, all the accused are
hereby condemned to pay, jointly and severally, to the Caltex Refinery, Inc.,
the value of said cargo in the amount of P40,426,793.87, Philippine Currency
plus interests until said amount is paid in full. After the accused Cheong San
Hiong has served his sentence, he shall be deported to Singapore.

All the accused shall be credited for the full period of their detention at the
National Bureau of Investigation and the City Jail of Manila during the
pendency of this case provided that they agreed in writing to abide by and
comply strictly with the rules and regulations of the City Jail of Manila and the
National Bureau of Investigation. With costs against all the accused.
SO ORDERED.
(pp. 149-150, Rollo.)
The matter was then elevated to this Court. The arguments of accusedappellants may be summarized as follows:

Roger P. Tulin Virgilio Loyola Andres C. Infante Jr., and Cecilio O. Changco
Accused-appellants Tulin, Loyola, Infante, Jr., and Cecilio Changco
assert that the trial court erred in allowing them to adopt the proceedings
taken during the time they were being represented by Mr. Tomas Posadas, a
non-lawyer, thereby depriving them of their constitutional right to procedural
due process.
In this regard, said accused-appellants narrate that Mr. Posadas
entered his appearance as counsel for all of them. However, in the course of
the proceedings, or on February 11, 1992, the trial court discovered that Mr.
Posadas was not a member of the Philippine Bar. This was after Mr.
Posadas had presented and examined seven witnesses for the accused.
Further, accused-appellants Tulin, Loyola, Infante, Cecilio, Changco
uniformly contend that during the custodial investigation, they were subjected
to physical violence; were forced to sign statements without being given the
opportunity to read the contents of the same; were denied assistance of
counsel, and were not informed of their rights, in violation of their
constitutional rights,
Said accused-appellants also argue that the trial court erred in finding
that the prosecution proved beyond reasonable doubt that they committed
the crime of qualified piracy. They allege that the pirates were outnumbered
by the crew who totaled 22 and who were not guarded at all times. The crew,
so these accused-appellants conclude, could have overpowered the alleged
pirates.

Cheong San Hiong

In his brief, Cheong argues that: (1) Republic Act No. 7659 in effect
obliterated the crime committed by him; (2) the trial court erred in declaring
that the burden is lodged on him to prove by clear and convincing evidence
that he had no knowledge that Emilio Changco and his cohorts attacked and
seized the "M/T Tabangao" and/or that the cargo of the vessel was stolen or
the subject of theft or robbery or piracy; (3) the trial court erred in finding him
guilty as an accomplice to the crime of qualified piracy under Section 4 of
Presidential Decree No. 532 (Anti-Piracy and Anti-Robbery Law of 1974); (4)
the trial court erred in convicting and punishing him as an accomplice when
the acts allegedly committed by him were done or executed outside of
Philippine waters and territory, stripping the Philippine courts of jurisdiction to
hold him for trial, to convict, and sentence; (5) the trial court erred in making
factual conclusions without evidence on record to prove the same and which
in fact are contrary to the evidence adduced during trial; (6) the trial court
erred in convicting him as an accomplice under Section 4 of Presidential
Decree No. 532 when he was charged as a principal by direct participation
under said decree, thus violating his constitutional right to be informed of the
nature and cause of the accusation against him.
Cheong also posits that the evidence against the other accusedappellants do not prove any participation on his part in the commission of the
crime of qualified piracy. He further argues that he had not in any way
participated in the seajacking of "M/T Tabangao" and in committing the crime
of qualified piracy, and that he was not aware that the vessel and its cargo
were pirated.
As legal basis for his appeal, he explains that he was charged under the
information with qualified piracy as principal under Section 2 of Presidential
Decree No. 532 which refers to Philippine waters. In the case at bar, he
argues that he was convicted for acts done outside Philippine waters or
territory. For the State to have criminal jurisdiction, the act must have been
committed within its territory.
We affirm the conviction of all the accused-appellants.
The issues of the instant case may be summarized as follows: (1) what
are the legal effects and implications of the fact that a non-lawyer
represented accused-appellants during the trial?; (2) what are the legal
effects and implications of the absence of counsel during the custodial
investigation?; (3) did the trial court err in finding that the prosecution was
able to prove beyond reasonable doubt that accused-appellants committed
the crime of qualified piracy?; (4) did Republic Act No. 7659 obliterate the
crime committed by accused-appellant Cheong?; and (5) can accusedappellant Cheong be convicted as accomplice when he was not charged as
such and when the acts allegedly committed by him were done or executed
outside Philippine waters and territory?

On the first issue, the record reveals that a manifestation (Exhibit "20",
Record) was executed by accused-appellants Tulin, Loyola, Changco, and
Infante, Jr. on February 11, 1991, stating that they were adopting the
evidence adduced when they were represented by a non-lawyer. Such
waiver of the right to sufficient representation during the trial as covered by
the due process clause shall only be valid if made with the full assistance of
a bona fide lawyer. During the trial, accused-appellants, as represented by
Atty. Abdul Basar, made a categorical manifestation that said accusedappellants were apprised of the nature and legal consequences of the
subject manifestation, and that they voluntarily and intelligently executed the
same. They also affirmed the truthfulness of its contents when asked in open
court (tsn, February 11, 1992, pp. 7-59). It is true that an accused person
shall be entitled to be present and to defend himself in person and by
counsel at every stage of the proceedings, from arraignment to promulgation
of judgment (Section 1, Rule 115, Revised Rules of Criminal Procedure).
This is hinged on the fact that a layman is not versed on the technicalities of
trial. However, it is also provided by law that "[r]ights may be waived, unless
the waiver is contrary to law, public order, public policy, morals, or good
customs or prejudicial to a third person with right recognized by law." (Article
6, Civil Code of the Philippines). Thus, the same section of Rule 115 adds
that "[u]pon motion, the accused may be allowed to defend himself in person
when it sufficiently appears to the court that he can properly protect his rights
without the assistance of counsel." By analogy , but without prejudice to the
sanctions imposed by law for the illegal practice of law, it is amply shown that
the rights of accused-appellants were sufficiently and properly protected by
the appearance of Mr. Tomas Posadas. An examination of the record will
show that he knew the technical rules of procedure. Hence, we rule that
there was a valid waiver of the right to sufficient representation during the
trial, considering that it was unequivocally, knowingly, and intelligently made
and with the full assistance of a bona fide lawyer, Atty. Abdul Basar.
Accordingly, denial of due process cannot be successfully invoked where a
valid waiver of rights has been made (People vs. Serzo, 274 SCRA 553
[1997]; Sayson vs. People, 166 SCRA 680 [1988]).
However, we must quickly add that the right to counsel during custodial
investigation may not be waived except in writing and in the presence of
counsel.
Section 12, Article III of the Constitution reads:
SEC. 12. (1) Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain silent and to
have competent and independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of
counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which
vitiate the free will shall be used against him. Secret detention places,
solitary, incommunicado, or other similar forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this or Section 17
hereof shall be inadmissible in evidence against him.
(4) The law shall provide for penal and civil sanctions for violations of this
section as well as compensation to and rehabilitation of victims of torture or
similar practices, and their families.
Such rights originated from Miranda v. Arizona (384 U. S. 436 [1966])
which gave birth to the so-called Miranda doctrine which is to the effect that
prior to any questioning during custodial investigation, the person must be
warned that he has a right to remain silent, that any statement he gives may
be used as evidence against him, and that he has the right to the presence of
an attorney, either retained or appointed. The defendant may waive
effectuation of these rights, provided the waiver is made voluntarily,
knowingly, and intelligently. The Constitution even adds the more stringent
requirement that the waiver must be in writing and made in the presence of
counsel.
Saliently, the absence of counsel during the execution of the so-called
confessions of the accused-appellants make them invalid. In fact, the very
basic reading of the Miranda rights was not even shown in the case at bar.
Paragraph [3] of the aforestated Section 12 sets forth the so-called "fruit from
the poisonous tree doctrine," a phrase minted by Mr. Justice Felix Frankfurter
in the celebrated case of Nardone vs. United States (308 U.S. 388 [1939]).
According to this rule, once the primary source (the "tree") is shown to have
been unlawfully obtained, any secondary or derivative evidence (the "fruit")
derived from it is also inadmissible. The rule is based on the principle that
evidence illegally obtained by the State should not be used to gain other
evidence because the originally illegally obtained evidence taints all evidence
subsequently obtained (People vs. Alicando, 251 SCRA 293 [1995]). Thus, in
this case, the uncounselled extrajudicial confessions of accused-appellants,
without a valid waiver of the right to counsel, are inadmissible and whatever
information is derived therefrom shall be regarded as likewise inadmissible in
evidence against them.
However, regardless of the inadmissibility of the subject confessions,
there is sufficient evidence to convict accused-appellants with moral
certainty. We agree with the sound deduction of the trial court that indeed,
Emilio Changco (Exhibits "U" and "UU") and accused-appellants Tulin,
Loyola, .and Infante, Jr. did conspire and confederate to commit the crime
charged. In the words of then trial judge, now Justice Romeo J. Callejo of the
Court of Appeals -

...The Prosecution presented to the Court an array of witnesses, officers and

members of the crew of the "M/T Tabangao" no less, who identified and
pointed to the said Accused as among those who attacked and seized, the
"M/T Tabangao" on March 2, 1991, at about 6:30 o'clock in the afternoon, off
Lubang Island, Mindoro, with its cargo, and brought the said vessel, with its
cargo, and the officers and crew of the vessel, in the vicinity of Horsebough
Lighthouse, about sixty-six nautical miles off the shoreline of Singapore and
sold its cargo to the Accused Cheong San Hiong upon which the cargo was
discharged from the "M/T Tabangao" to the "Navi Pride" for the price of about
$500,000.00 (American Dollars) on March 29, and 30, 1991...
xxx
xxx
xxx
The Master, the officers and members of the crew of the "M/T Tabangao"
were on board the vessel with the Accused and their cohorts from March 2,
1991 up to April 10, 1991 or for more than one (1) month. There can be no
scintilla of doubt in the mind of the Court that the officers and crew of the
vessel could and did see and identify the seajackers and their leader. In fact,
immediately after the Accused were taken into custody by the operatives of
the National Bureau of Investigation, Benjamin Suyo, Norberto Senosa,
Christian Torralba and Isaias Wervas executed their "Joint Affidavit" (Exhibit
"B") and pointed to and identified the said Accused as some of the pirates.
xxx
xxx
xxx
Indeed, when they testified before this Court on their defense, the three (3)
Accused admitted to the Court that they, in fact, boarded the said vessel in
the evening of March 2 1991 and remained on board when the vessel sailed
to its, destination, which turned out to be off the port of Singapore.
(pp. 106-112, Rollo.)
We also agree with the trial court's finding that accused-appellants'
defense of denial is not supported by any hard evidence but their bare
testimony. Greater weight is given to the categorical identification of the
accused by the prosecution witnesses than to the accused's plain denial of

participation in the commission of the crime (People v. Baccay, 284 SCRA

296 [1998]). Instead, accused-appellants Tulin, Loyola, and Infante, Jr.
narrated a patently desperate tale that they were hired by three complete
strangers (allegedly Captain Edilberto Liboon, Second Mate Christian
Torralba, and their companion) while said accused-appellants were
conversing with one another along the seashore at Apkaya, Balibago,
Calatagan, Batangas, to work on board the "M/T Tabangao" which was then
anchored off-shore. And readily, said accused-appellants agreed to work as
cooks and handymen for an indefinite period of time without even saying
goodbye to their families, without even knowing their destination or the
details of their voyage, without the personal effects needed for a long voyage
at sea. Such evidence is incredible and clearly not in accord with human
experience. As pointed out by the trial court, it is incredible that Captain
Liboon, Second Mate Torralba, and their companion "had to leave the vessel
at 9:30 o'clock in the evening and venture in a completely unfamiliar place
merely to recruit five (5) cooks or handymen (p. 113, Rollo)."
Anent accused-appellant Changco's defense of denial with the alibi that
on May 14 and 17, he was at his place of work and that on April 10, 1991, he
was in his house in Bacoor, Cavite, sleeping, suffice it to state that alibi is
fundamentally and inherently a weak defense, much more so when
uncorroborated by other witnesses (People v. Adora, 275 SCRA 441 [1997])
considering that it is easy to fabricate and concoct, and difficult to disprove.
Accused-appellant must adduce clear and convincing evidence that, at about
midnight on April 10, 1991, it was physically impossible for him to have been
in Calatagan, Batangas. Changco not only failed to do this, he was likewise
unable to prove that he was in his place of work on the dates aforestated.
It is doctrinal that the trial court's evaluation of the credibility of a
testimony is accorded the highest respect, for trial courts have an
untrammeled opportunity to observe directly the demeanor of witnesses and,
thus, to determine whether a certain witness is telling the truth (People v.
Obello, 284 SCRA 79 [1998]).
We likewise uphold the trial court's finding of conspiracy. A conspiracy
exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it (Article 8, Revised Penal
Code). To be a conspirator, one need not participate in every detail of
execution; he need not even take part in every act or need not even know the
exact part to be performed by the others in the execution of the
conspiracy. As noted by the trial court, there are times when conspirators are
assigned separate and different tasks which may appear unrelated to one
another, but in fact, constitute a whole and collective effort to achieve a
common criminal design.
We affirm the trial court's finding that Emilio Changco, accusedappellants Tulin, Loyola, and Infante, Jr. and others, were the ones assigned
to attack and seize the "M/T Tabangao" off Lubang, Mindoro, while accused-

appellant Cecilio Changco was to fetch the master and the members of the
crew from the shoreline of Calatagan, Batangas after the transfer, and bring
them to Imus, Cavite, and to provide the crew and the officers of the vessel
with money for their fare and food provisions on their way home. These acts
had to be well-coordinated. Accused-appellant Cecilio Changco need not be
present at the time of the attack and seizure of "M/T Tabangao" since he
performed his task in view of an objective common to all other accusedappellants.
Of notable importance is the connection of accused-appellants to one
another. Accused-appellant Cecilio Changco is the younger brother of Emilio
Changco (aka Captain Bobby/Captain Roberto Castillo/Kevin Ocampo),
owner of Phil-Asia Shipping Lines. Cecilio worked for his brother in said
corporation. Their residences are approximately six or seven kilometers
away from each other. Their families are close. Accused-appellant Tulin, on
the other hand, has known Cecilio since their parents were neighbors in
Aplaya, Balibago, Calatagan, Batangas. Accused-appellant Loyola's wife is a
relative of the Changco brothers by affinity .Besides, Loyola and Emilio
Changco had both been accused in a seajacking case regarding "M/T Isla
Luzon" and its cargo of steel coils and plates off Cebu and Bohol in
1989. Emilio Changco (aka Kevin Ocampo) was convicted of the crime while
Loyola at that time remained at large.
As for accused-appellant Hiong, he ratiocinates that he can no longer be
convicted of piracy in Philippine waters as defined and penalized in Sections
2[d] and 3[a], respectively of Presidential Decree No. 532 because Republic
Act No. 7659 (effective January 1, 1994) which amended Article 122 of the
Revised Penal Code, has impliedly superseded Presidential Decree No. 532.
He reasons out that Presidential Decree No. 532 has been rendered
"superfluous or duplicitous" because both Article 122 of the Revised Penal
Code, as amended, and Presidential Decree No. 532 punish piracy
committed in Philippine waters. He maintains that in order to reconcile the
two laws, the word "any person" mentioned in Section 1 [d] of Presidential
Decree No. 532 must be omitted such that Presidential Decree No. 532 shall
only apply to offenders who are members of the complement or to
passengers of the vessel, whereas Republic Act No. 7659 shall apply to
offenders who are neither members of the complement or passengers of the
vessel, hence, excluding him from the coverage of the law.
Article 122 of the Revised Penal Code, used to provide:
Article 122. Piracy in general and mutiny on the high seas. -The penalty of
reclusion temporal shall be inflicted upon any person who, on the high
seas, shall attack or seize a vessel or, not being a member of its complement
nor a passenger, shall seize the whole or part of the cargo of said vessel, its
equipment, or personal belongings of its complement or passengers.

(Unders
coring supplied.)
Article 122, as amended by Republic Act No. 7659 January 1, 1994),
reads:
Article 122. Piracy in general and mutiny on the high seas or in Philippine
waters. -The penalty of reclusion perpetua shall be inflicted upon any person
who, on the high seas, or in Philippine waters, shall attack or seize a vessel
or, being a member of its complement nor a passenger, shall seize the whole
or part of the cargo of said vessel, its equipment, or personal belongings of
its complement or passengers.
(Underscorin
g ours)
On the other hand, Section 2 of Presidential Decree No. 532 provides:
SEC. 2. Definition of Terms. - The following shall mean and be understood,
as follows:
d. Piracy. -Any attack upon or seizure of any vessel, or the taking away of the
whole or part thereof or its cargo, equipment, or the personal belongings of
its complement or passengers, irrespective of the value thereof, by means of
violence against or intimidation of persons or force upon things, committed
by any person. including a passenger or member of the complement of said
vessel in Philippine waters, shall be considered as piracy. The offenders
shall be considered as pirates and punished as hereinafter provided
(underscoring supplied).
To summarize, Article 122 of the Revised Penal Code, before its
amendment, provided that piracy must be committed on the high seas by any
person not a member of its complement nor a passenger thereof. Upon its
amendment by Republic Act No. 7659, the coverage of the pertinent
provision was widened to include offenses committed "in Philippine waters."
On the other hand, under Presidential Decree No. 532 (issued in 1974), the
coverage of the law on piracy embraces any person including "a passenger
or member of the complement of said vessel in Philippine waters." Hence,
passenger or not, a member of the complement or not, any person is
covered by the law.
Republic Act No. 7659 neither superseded nor amended the provisions
on piracy under Presidential Decree No. 532. There is no contradiction
between the two laws. There is likewise no ambiguity and hence, there is no
need to construe or interpret the law. All the presidential decree did was to

widen the coverage of the law, in keeping with the intent to protect the
citizenry as well as neighboring states from crimes against the law of nations.
As expressed in one of the "whereas" clauses of Presidential Decree No.
532, piracy is "among the highest forms of lawlessness condemned by the
penal statutes of all countries." For this reason, piracy under the Article 122,
as amended, and piracy under Presidential Decree No. 532 exist
harmoniously as separate laws.
As regards the contention that the trial court did not acquire jurisdiction
over the person of accused-appellant Hiong since the crime was committed
outside Philippine waters, suffice it to state that unquestionably, the attack on
and seizure of "M/T Tabangao" (renamed "M/T Galilee" by the pirates) and
its cargo were committed in Philippine waters, although the captive vessel
was later brought by the pirates to Singapore where its cargo was off-loaded,
transferred, and sold. And such transfer was done under accused-appellant
Hiong's direct supervision. Although Presidential Decree No. 532 requires
that the attack and seizure of the vessel and its cargo be committed in
Philippine waters, the disposition by the pirates of the vessel and its cargo is
still deemed part of the act of piracy, hence, the same need not be committed
in Philippine waters.
Moreover, piracy falls under Title One of Book Two of the Revised Penal
Code. As such, it is an exception to the rule on territoriality in criminal law.
The same principle applies even if Hiong, in the instant case, were charged,
not with a violation of qualified piracy under the penal code but under a
special law, Presidential Decree No. 532 which penalizes piracy in Philippine
waters. Verily, Presidential Decree No. 532 should be applied with more
force here since its purpose is precisely to discourage and prevent piracy in
Philippine waters (People v. Catantan, 278 SCRA 761 [1997]). It is likewise,
well-settled that regardless of the law penalizing the same, piracy is a
reprehensible crime against the whole world (People v. Lol-lo, 43 Phil. 19
[1922]).
However, does this constitute a violation of accused-appellant's
constitutional right to be informed of the nature and cause of the accusation
against him on the ground that he was convicted as an accomplice under
Section 4 of Presidential Decree No. 532 even though he was charged as a
principal by direct participation under Section 2 of said law?
The trial court found that there was insufficiency of evidence showing:
(a) that accused-appellant Hiong directly participated in the attack and
seizure of "M/T Tabangao" and its cargo; (b) that he induced Emilio Changco
and his group in the attack and seizure of "M/T Tabangao" and its cargo; ( c)
and that his act was indispensable in the attack on and seizure of "M/T
Tabangao" and its cargo. Nevertheless, the trial court found that accusedappellant Hiong's participation was indisputably one which aided or abetted

Emilio Changco and his band of pirates in the disposition of the stolen cargo
under Section 4 of Presidential Decree No. 532 which provides:
SEC. 4. Aiding pirates or highway robbers/brigands or abetting piracy or
highway robbery brigandage. -Any person who knowingly and in any manner
aids or protects pirates or highway robbers/brigands, such as giving them
information about the movement of police or other peace officers of the
government, or acquires or receives property taken by such pirates or
brigands or in any manner derives any benefit therefrom; or any person who
directly or indirectly abets the commission of piracy or highway robbery or
brigandage, shall be considered as an accomplice of the principal officers
and be punished in accordance with Rules prescribed by the Revised Penal
Code.
It shall be presumed that any person who does any of the acts provided in
this Section has performed them knowingly, unless the contrary is proven.
The ruling of the trial court is Within well-settle jurisprudence that if there
is lack of complete evidence of conspiracy, the liability is that of an
accomplice and not as principal (People v. Tolentino, 40 SCRA 514 [1971]).
Any doubt as to the participation of an individual in the commission of the
crime is always resolved in favor of lesser responsibility (People v. Corbes,
270 SCRA 465 [1997]; People vs. Elfano, Jr., 125 SCRA 792 [1983]; People
v. Pastores, 40 SCRA 498 [1971]).
Emphasis must also be placed on the last paragraph of Section 4 of
Presidential Decree No 532 which presumes that any person who does any
of the acts provided in said section has performed them knowingly, unless
the contrary is proven. In the case at bar, accused-appellant Hiong had failed
to overcome the legal presumption that he knowingly abetted or aided in the
commission of piracy, received property taken by such pirates and derived
benefit therefrom.
The record discloses that accused-appellant Hiong aided the pirates in
disposing of the stolen cargo by personally directing its transfer from "M/T
Galilee" to "M/T Navi Pride". He profited therefrom by buying the hijacked
cargo for Navi Marine Services, Pte., Ltd. (tsn, June 3, 1992, pp. 15-23). He
even tested the quality and verified the quantity of the petroleum products,
connived with Navi Marine Services personnel in falsifying the General
Declarations and Crew List to ensure that the illegal transfer went through,
undetected by Singapore Port Authorities, and supplied the pirates with food,
beer, and other provisions for their maintenance while in port (tsn, June 3,
1992, pp. 133-134).
We believe that the falsification of the General Declaration (Arrival and
Departure) and Crew List was accomplished and utilized by accusedappellant Hiong and Navi Marine Services personnel in the execution of their

scheme to avert detection by Singapore Port Authorities. Hence, had

accused-appellant Hiong not falsified said entries, the Singapore Port
Authorities could have easily discovered the illegal activities that took place
and this would have resulted in his arrest and prosecution in Singapore.
Moreover, the transfer of the stolen cargo from "M/T Galilee" to "Navi Pride"
could not have been effected.
We completely uphold the factual findings of the trial court showing in
detail accused-appellant Hiong's role in the disposition of the pirated goods
summarized as follows: that on March 27, 1991, Hiong with Captain Biddy
Santos boarded the "Navi Pride," one of the vessels of the Navi Marine, to
rendezvous with the "M/T Galilee"; that the firm submitted the crew list of the
vessel (Exhibit "8-CSH", Record) to the port authorities, excluding the name
of Hiong; that the "General Declaration" (for departure) of the "Navi Pride" for
its voyage off port of Singapore (Exhibits "HH" and "8-A CSH", Record)
falsely stated that the vessel was scheduled to depart at 2200 (10 o'clock in
the evening), that there were no passengers on board, and the purpose of
the voyage was for "cargo operation" and that the vessel was to unload and
transfer 1,900 tons of cargo; that after the transfer of the fuel from "M/T
Galilee" with' Emilio Changco a. k. a. Captain Bobby a. k. a. Roberto Castillo
at the helm, the surveyor prepared the "Quantity Certificate" (Exhibit "11-C
CSH, Record) stating that the cargo transferred to the "Navi Pride" was 2,406
gross cubic meters; that although Hiong was not the Master of the vessel, he
affixed his signature on the "Certificate" above the word "Master" (Exhibit
"11-C-2 CSH", Record); that he then paid $150,000.00 but did not require
any receipt for the amount; that Emilio Changco also did not issue one; and
that in the requisite "General Declaration" upon its arrival at Singapore on
March 29, 1991, at 7 o'clock in the evening, (Exhibits "JJ" and "13-A CSH",
Record), it was made to falsely appear that the "Navi Pride" unloaded 1,700
tons of cargo on the high seas during said voyage when in fact it acquired
from the "M/T Galilee" 2,000 metric tons of diesel oil. The second transfer
transpired with the same irregularities as discussed above. It was likewise
supervised by accused- appellant Cheong from his end while Emilio
Changco supervised the transfer from his end.
Accused-appellant Hiong maintains that he was merely following the
orders of his superiors and that he has no knowledge of the illegality of the
source of the cargo.
First and foremost, accused-appellant Hiong cannot deny knowledge of
the source and nature of the cargo since he himself received the same from
"M/T Tabangao". Second, considering that he is a highly educated mariner,
he should have avoided any participation in the cargo transfer given the very
suspicious circumstances under which it was acquired. He failed to show a
single piece of deed or bill of sale or even a purchase order or any contract
of sale for the purchase by the firm; he never bothered to ask for and
scrutinize the papers and documentation relative to the "M/T Galilee"; he did
not even verify the identity of Captain Robert Castillo whom he met for the

first time nor did he check the source of the cargo; he knew that the transfer
took place 66 nautical miles off Singapore in the dead of the night which a
marine vessel of his firm did not ordinarily do; it was also the first time Navi
Marine transacted with Paul Gan involving a large sum of money without any
receipt issued therefor; he was not even aware if Paul Gan was a
Singaporean national and thus safe to deal with. It should also be noted that
the value of the cargo was P40,426,793.87 or roughly more than
US$l,000,000.00 (computed at P30.00 to $1, the exchange rate at that time).
Manifestly, the cargo was sold for less than one-half of its value. Accusedappellant Hiong should have been aware of this irregularity. Nobody in his
right mind would go to far away Singapore, spend much time and money for
transportation -only to sell at the aforestated price if it were legitimate sale
involved. This, in addition to the act of falsifying records, clearly shows that
accused-appellant Hiong was well aware that the cargo that his firm was
acquiring was purloined.
Lastly, it cannot be correctly said that accused-appellant was "merely
following the orders of his superiors." An individual is justified in performing
an act in obedience to an order issued by a superior if such order, is for
some lawful purpose and that the means used by the subordinate to carry
out said order is lawful (Reyes, Revised Penal Code, Vol. 1, 1981 ed., p.
212). Notably, the alleged order of Hiong's superior Chua Kim Leng Timothy,
is a patent violation not only of Philippine, but of international law. Such
violation was committed on board a Philippine-operated vessel. Moreover,
the means used by Hiong in carrying out said order was equally unlawful. He
misled port and immigration authorities, falsified records, using a mere clerk,
Frankie Loh, to consummate said acts. During the trial, Hiong presented
himself, and the trial court was convinced, that he was an intelligent and
articulate Port Captain. These circumstances show that he must have
realized the nature and the implications of the order of Chua Kim Leng
Timothy. Thereafter, he could have refused to follow orders to conclude the
deal and to effect the transfer of the cargo to the Navi Pride. He did not do
so, for which reason, he must now suffer the consequences of his actions.
WHEREFORE, finding the conviction of accused-appellants justified by
the evidence on record, the Court hereby AFFIRMS the judgment of the trial
court in toto.
SO ORDERED.
Vitug,
JJ., concur.

Panganiban,

Gonzaga-Reyes, and Sandoval-Gutierrez,

3. White Light Corp. vs City of Manila

Republic of the Philippines
SUPREME COURT
Manila

EN BANC
G.R. No. 122846

January 20, 2009

WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA.

MESA TOURIST & DEVELOPMENT CORPORATION, Petitioners,
vs.
CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO S.
LIM, Respondent.
DECISION
Tinga, J.:
With another city ordinance of Manila also principally involving the tourist
district as subject, the Court is confronted anew with the incessant clash
between government power and individual liberty in tandem with the
archetypal tension between law and morality.
1

In City of Manila v. Laguio, Jr., the Court affirmed the nullification of a city
ordinance barring the operation of motels and inns, among other
establishments, within the Ermita-Malate area. The petition at bar assails a
similarly-motivated city ordinance that prohibits those same establishments
from offering short-time admission, as well as pro-rated or "wash up" rates
for such abbreviated stays. Our earlier decision tested the city ordinance
against our sacred constitutional rights to liberty, due process and equal
protection of law. The same parameters apply to the present petition.

SECTION 1. Declaration of Policy. It is hereby the declared policy of the City

Government to protect the best interest, health and welfare, and the morality
of its constituents in general and the youth in particular.
SEC. 2. Title. This ordinance shall be known as "An Ordinance" prohibiting
short time admission in hotels, motels, lodging houses, pension houses and
similar establishments in the City of Manila.
SEC. 3. Pursuant to the above policy, short-time admission and rate [sic],
wash-up rate or other similarly concocted terms, are hereby prohibited in
hotels, motels, inns, lodging houses, pension houses and similar
establishments in the City of Manila.
SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance
and charging of room rate for less than twelve (12) hours at any given time or
the renting out of rooms more than twice a day or any other term that may be
concocted by owners or managers of said establishments but would mean
the same or would bear the same meaning.
SEC. 5. Penalty Clause. Any person or corporation who shall violate any
provision of this ordinance shall upon conviction thereof be punished by a
fine of Five Thousand (P5,000.00) Pesos or imprisonment for a period of not
exceeding one (1) year or both such fine and imprisonment at the discretion
of the court; Provided, That in case of [a] juridical person, the president, the
manager, or the persons in charge of the operation thereof shall be liable:
Provided, further, That in case of subsequent conviction for the same
offense, the business license of the guilty party shall automatically be
cancelled.

This Petition under Rule 45 of the Revised Rules on Civil Procedure, which
3
seeks the reversal of the Decision in C.A.-G.R. S.P. No. 33316 of the Court
of Appeals, challenges the validity of Manila City Ordinance No. 7774
entitled, "An Ordinance Prohibiting Short-Time Admission, Short-Time
Admission Rates, and Wash-Up Rate Schemes in Hotels, Motels, Inns,
Lodging Houses, Pension Houses, and Similar Establishments in the City of
Manila" (the Ordinance).
I.
The facts are as follows:
On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into
4
law the Ordinance. The Ordinance is reproduced in full, hereunder:

SEC. 6. Repealing Clause. Any or all provisions of City ordinances not

consistent with or contrary to this measure or any portion hereof are hereby
deemed repealed.
SEC. 7. Effectivity. This ordinance shall take effect immediately upon
approval.
Enacted by the city Council of Manila at its regular session today, November
10, 1992.
Approved by His Honor, the Mayor on December 3, 1992.
On December 15, 1992, the Malate Tourist and Development Corporation
(MTDC) filed a complaint for declaratory relief with prayer for a writ of
5
preliminary injunction and/or temporary restraining order ( TRO) with the
Regional Trial Court (RTC) of Manila, Branch 9 impleading as defendant,

herein respondent City of Manila (the City) represented by Mayor

6
Lim. MTDC prayed that the Ordinance, insofar as it includes motels and inns
as among its prohibited establishments, be declared invalid and
unconstitutional. MTDC claimed that as owner and operator of the Victoria
Court in Malate, Manila it was authorized by Presidential Decree (P.D.) No.
259 to admit customers on a short time basis as well as to charge customers
wash up rates for stays of only three hours.
On December 21, 1992, petitioners White Light Corporation (WLC), Titanium
Corporation (TC) and Sta. Mesa Tourist and Development Corporation
(STDC) filed a motion to intervene and to admit attached complaint-in7
intervention on the ground that the Ordinance directly affects their business
8
interests as operators of drive-in-hotels and motels in Manila. The three
companies are components of the Anito Group of Companies which owns
9
and operates several hotels and motels in Metro Manila.

The RTC noted that the ordinance "strikes at the personal liberty of the
individual guaranteed and jealously guarded by the
18
Constitution." Reference was made to the provisions of the Constitution
encouraging private enterprises and the incentive to needed investment, as
well as the right to operate economic enterprises. Finally, from the
observation that the illicit relationships the Ordinance sought to dissuade
could nonetheless be consummated by simply paying for a 12-hour stay, the
RTC likened the law to the ordinance annulled in Ynot v. Intermediate
19
Appellate Court, where the legitimate purpose of preventing indiscriminate
slaughter of carabaos was sought to be effected through an inter-province
ban on the transport of carabaos and carabeef.
The City later filed a petition for review on certiorari with the Supreme
20
Court. The petition was docketed as G.R. No. 112471. However in a
resolution dated January 26, 1994, the Court treated the petition as a petition
21
forcertiorari and referred the petition to the Court of Appeals.

10

On December 23, 1992, the RTC granted the motion to intervene. The RTC
also notified the Solicitor General of the proceedings pursuant to then Rule
64, Section 4 of the Rules of Court. On the same date, MTDC moved to
11
withdraw as plaintiff.

Before the Court of Appeals, the City asserted that the Ordinance is a valid
exercise of police power pursuant to Section 458 (4)(iv) of the Local
Government Code which confers on cities, among other local government
units, the power:

12

On December 28, 1992, the RTC granted MTDC's motion to withdraw. The
RTC issued a TRO on January 14, 1993, directing the City to cease and
13
desist from enforcing the Ordinance. The City filed an Answer dated
January 22, 1993 alleging that the Ordinance is a legitimate exercise of
14
police power.
On February 8, 1993, the RTC issued a writ of preliminary injunction ordering
15
the city to desist from the enforcement of the Ordinance. A month later, on
March 8, 1993, the Solicitor General filed his Comment arguing that the
Ordinance is constitutional.
During the pre-trial conference, the WLC, TC and STDC agreed to submit the
case for decision without trial as the case involved a purely legal
16
question. On October 20, 1993, the RTC rendered a decision declaring the
Ordinance null and void. The dispositive portion of the decision reads:
WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the City
of Manila is hereby declared null and void.
Accordingly, the preliminary injunction heretofor issued is hereby made
permanent.
SO ORDERED.

17

[To] regulate the establishment, operation and maintenance of cafes,

restaurants, beerhouses, hotels, motels, inns, pension houses, lodging
houses and other similar establishments, including tourist guides and
22
transports.
The Ordinance, it is argued, is also a valid exercise of the power of the City
under Article III, Section 18(kk) of the Revised Manila Charter, thus:
"to enact all ordinances it may deem necessary and proper for the sanitation
and safety, the furtherance of the prosperity and the promotion of the
morality, peace, good order, comfort, convenience and general welfare of the
city and its inhabitants, and such others as be necessary to carry into effect
and discharge the powers and duties conferred by this Chapter; and to fix
penalties for the violation of ordinances which shall not exceed two hundred
pesos fine or six months imprisonment, or both such fine and imprisonment
23
for a single offense.
Petitioners argued that the Ordinance is unconstitutional and void since it
violates the right to privacy and the freedom of movement; it is an invalid
exercise of police power; and it is an unreasonable and oppressive
interference in their business.

The Court of Appeals reversed the decision of the RTC and affirmed the
24
constitutionality of the Ordinance. First, it held that the Ordinance did not
violate the right to privacy or the freedom of movement, as it only penalizes
the owners or operators of establishments that admit individuals for short
time stays. Second, the virtually limitless reach of police power is only
constrained by having a lawful object obtained through a lawful method. The
lawful objective of the Ordinance is satisfied since it aims to curb immoral
activities. There is a lawful method since the establishments are still allowed
to operate. Third, the adverse effect on the establishments is justified by the
well-being of its constituents in general. Finally, as held in Ermita-Malate
Motel Operators Association v. City Mayor of Manila, liberty is regulated by
law.

Nonetheless, the general rules on standing admit of several exceptions such

as the overbreadth doctrine, taxpayer suits, third party standing and,
31
especially in the Philippines, the doctrine of transcendental importance.

II.

For this particular set of facts, the concept of third party standing as an
exception and the overbreadth doctrine are appropriate. In Powers v.
32
Ohio, the United States Supreme Court wrote that: "We have recognized
the right of litigants to bring actions on behalf of third parties, provided three
important criteria are satisfied: the litigant must have suffered an injury-infact, thus giving him or her a "sufficiently concrete interest" in the outcome of
the issue in dispute; the litigant must have a close relation to the third party;
and there must exist some hindrance to the third party's ability to protect his
33
or her own interests." Herein, it is clear that the business interests of the
petitioners are likewise injured by the Ordinance. They rely on the patronage
of their customers for their continued viability which appears to be threatened
by the enforcement of the Ordinance. The relative silence in constitutional
litigation of such special interest groups in our nation such as the American
Civil Liberties Union in the United States may also be construed as a
34
hindrance for customers to bring suit.

We must address the threshold issue of petitioners standing. Petitioners

allege that as owners of establishments offering "wash-up" rates, their
business is being unlawfully interfered with by the Ordinance. However,
petitioners also allege that the equal protection rights of their clients are also
being interfered with. Thus, the crux of the matter is whether or not these
establishments have the requisite standing to plead for protection of their
patrons' equal protection rights.

American jurisprudence is replete with examples where parties-in-interest

were allowed standing to advocate or invoke the fundamental due process or
equal protection claims of other persons or classes of persons injured by
35
state action. In Griswold v. Connecticut, the United States Supreme Court
held that physicians had standing to challenge a reproductive health statute
that would penalize them as accessories as well as to plead the
constitutional protections available to their patients. The Court held that:

Standing or locus standi is the ability of a party to demonstrate to the court

sufficient connection to and harm from the law or action challenged to
support that party's participation in the case. More importantly, the doctrine of
26
standing is built on the principle of separation of powers, sparing as it does
unnecessary interference or invalidation by the judicial branch of the actions
rendered by its co-equal branches of government.

"The rights of husband and wife, pressed here, are likely to be diluted or
adversely affected unless those rights are considered in a suit involving
36
those who have this kind of confidential relation to them."

TC, WLC and STDC come to this Court via petition for review on
25
certiorari. In their petition and Memorandum, petitioners in essence repeat
the assertions they made before the Court of Appeals. They contend that the
assailed Ordinance is an invalid exercise of police power.

The requirement of standing is a core component of the judicial system

27
derived directly from the Constitution. The constitutional component of
standing doctrine incorporates concepts which concededly are not
28
susceptible of precise definition. In this jurisdiction, the extancy of "a direct
and personal interest" presents the most obvious cause, as well as the
29
standard test for a petitioner's standing. In a similar vein, the United States
Supreme Court reviewed and elaborated on the meaning of the three
constitutional standing requirements of injury, causation, and redressability
30
in Allen v. Wright.

37

An even more analogous example may be found in Craig v. Boren, wherein

the United States Supreme Court held that a licensed beverage vendor has
standing to raise the equal protection claim of a male customer challenging a
statutory scheme prohibiting the sale of beer to males under the age of 21
and to females under the age of 18. The United States High Court explained
that the vendors had standing "by acting as advocates of the rights of third
38
parties who seek access to their market or function."
Assuming arguendo that petitioners do not have a relationship with their
patrons for the former to assert the rights of the latter, the overbreadth
doctrine comes into play. In overbreadth analysis, challengers to government
actionare in effect permitted to raise the rights of third parties. Generally
applied to statutes infringing on the freedom of speech, the overbreadth

doctrine applies when a statute needlessly restrains even constitutionally

39
guaranteed rights. In this case, the petitioners claim that the Ordinance
makes a sweeping intrusion into the right to liberty of their clients. We can
see that based on the allegations in the petition, the Ordinance suffers from
overbreadth.
We thus recognize that the petitioners have a right to assert the constitutional
rights of their clients to patronize their establishments for a "wash-rate" time
frame.
III.
To students of jurisprudence, the facts of this case will recall to mind not only
the recent City of Manila ruling, but our 1967 decision in Ermita-Malate Hotel
and Motel Operations Association, Inc., v. Hon. City Mayor of
40
Manila. Ermita-Malate concerned the City ordinance requiring patrons to fill
up a prescribed form stating personal information such as name, gender,
nationality, age, address and occupation before they could be admitted to a
motel, hotel or lodging house. This earlier ordinance was precisely enacted
to minimize certain practices deemed harmful to public morals. A purpose
similar to the annulled ordinance in City of Manila which sought a blanket ban
on motels, inns and similar establishments in the Ermita-Malate area.
However, the constitutionality of the ordinance in Ermita-Malate was
sustained by the Court.
The common thread that runs through those decisions and the case at bar
goes beyond the singularity of the localities covered under the respective
ordinances. All three ordinances were enacted with a view of regulating
public morals including particular illicit activity in transient lodging
establishments. This could be described as the middle case, wherein there is
no wholesale ban on motels and hotels but the services offered by these
establishments have been severely restricted. At its core, this is another case
about the extent to which the State can intrude into and regulate the lives of
its citizens.
The test of a valid ordinance is well established. A long line of decisions
including City of Manila has held that for an ordinance to be valid, it must not
only be within the corporate powers of the local government unit to enact and
pass according to the procedure prescribed by law, it must also conform to
the following substantive requirements: (1) must not contravene the
Constitution or any statute; (2) must not be unfair or oppressive; (3) must not
be partial or discriminatory; (4) must not prohibit but may regulate trade; (5)
must be general and consistent with public policy; and (6) must not be
41
unreasonable.

The Ordinance prohibits two specific and distinct business practices, namely
wash rate admissions and renting out a room more than twice a day. The
ban is evidently sought to be rooted in the police power as conferred on local
government units by the Local Government Code through such implements
as the general welfare clause.
A.
Police power, while incapable of an exact definition, has been purposely
veiled in general terms to underscore its comprehensiveness to meet all
exigencies and provide enough room for an efficient and flexible response as
42
the conditions warrant. Police power is based upon the concept of
necessity of the State and its corresponding right to protect itself and its
43
people. Police power has been used as justification for numerous and
varied actions by the State. These range from the regulation of dance
44
45
46
47
halls, movie theaters, gas stations and cockpits. The awesome scope
of police power is best demonstrated by the fact that in its hundred or so
years of presence in our nations legal system, its use has rarely been
denied.
The apparent goal of the Ordinance is to minimize if not eliminate the use of
the covered establishments for illicit sex, prostitution, drug use and alike.
These goals, by themselves, are unimpeachable and certainly fall within the
ambit of the police power of the State. Yet the desirability of these ends do
not sanctify any and all means for their achievement. Those means must
align with the Constitution, and our emerging sophisticated analysis of its
guarantees to the people. The Bill of Rights stands as a rebuke to the
seductive theory of Macchiavelli, and, sometimes even, the political
majorities animated by his cynicism.
Even as we design the precedents that establish the framework for analysis
of due process or equal protection questions, the courts are naturally
inhibited by a due deference to the co-equal branches of government as they
exercise their political functions. But when we are compelled to nullify
executive or legislative actions, yet another form of caution emerges. If the
Court were animated by the same passing fancies or turbulent emotions that
motivate many political decisions, judicial integrity is compromised by any
perception that the judiciary is merely the third political branch of
government. We derive our respect and good standing in the annals of
history by acting as judicious and neutral arbiters of the rule of law, and there
is no surer way to that end than through the development of rigorous and
sophisticated legal standards through which the courts analyze the most
fundamental and far-reaching constitutional questions of the day.
B.

The primary constitutional question that confronts us is one of due process,

as guaranteed under Section 1, Article III of the Constitution. Due process
48
evades a precise definition. The purpose of the guaranty is to prevent
arbitrary governmental encroachment against the life, liberty and property of
individuals. The due process guaranty serves as a protection against
arbitrary regulation or seizure. Even corporations and partnerships are
protected by the guaranty insofar as their property is concerned.

A third standard, denominated as heightened or immediate scrutiny, was

later adopted by the U.S. Supreme Court for evaluating classifications based
53
54
on gender and legitimacy. Immediate scrutiny was adopted by the U.S.
55
Supreme Court in Craig, after the Court declined to do so in Reed v.
56
Reed. While the test may have first been articulated in equal protection
analysis, it has in the United States since been applied in all substantive due
process cases as well.

The due process guaranty has traditionally been interpreted as imposing two
related but distinct restrictions on government, "procedural due process" and
"substantive due process." Procedural due process refers to the procedures
that the government must follow before it deprives a person of life, liberty, or
49
property. Procedural due process concerns itself with government action
adhering to the established process when it makes an intrusion into the
private sphere. Examples range from the form of notice given to the level of
formality of a hearing.

We ourselves have often applied the rational basis test mainly in analysis of
57
equal protection challenges. Using the rational basis examination, laws or
ordinances are upheld if they rationally further a legitimate governmental
58
interest. Under intermediate review, governmental interest is extensively
examined and the availability of less restrictive measures is
59
considered. Applying strict scrutiny, the focus is on the presence of
compelling, rather than substantial, governmental interest and on the
absence of less restrictive means for achieving that interest.

If due process were confined solely to its procedural aspects, there would
arise absurd situation of arbitrary government action, provided the proper
formalities are followed. Substantive due process completes the protection
envisioned by the due process clause. It inquires whether the government
50
has sufficient justification for depriving a person of life, liberty, or property.

In terms of judicial review of statutes or ordinances, strict scrutiny refers to

the standard for determining the quality and the amount of governmental
60
interest brought to justify the regulation of fundamental freedoms. Strict
scrutiny is used today to test the validity of laws dealing with the regulation of
speech, gender, or race as well as other fundamental rights as expansion
61
from its earlier applications to equal protection. The United States Supreme
Court has expanded the scope of strict scrutiny to protect fundamental rights
62
63
64
such as suffrage, judicial access and interstate travel.

The question of substantive due process, moreso than most other fields of
law, has reflected dynamism in progressive legal thought tied with the
expanded acceptance of fundamental freedoms. Police power, traditionally
awesome as it may be, is now confronted with a more rigorous level of
analysis before it can be upheld. The vitality though of constitutional due
process has not been predicated on the frequency with which it has been
utilized to achieve a liberal result for, after all, the libertarian ends should
sometimes yield to the prerogatives of the State. Instead, the due process
clause has acquired potency because of the sophisticated methodology that
has emerged to determine the proper metes and bounds for its application.
C.
The general test of the validity of an ordinance on substantive due process
grounds is best tested when assessed with the evolved footnote 4 test laid
51
down by the U.S. Supreme Court in U.S. v. Carolene Products. Footnote 4
of the Carolene Products case acknowledged that the judiciary would defer
to the legislature unless there is a discrimination against a "discrete and
52
insular" minority or infringement of a "fundamental right." Consequently, two
standards of judicial review were established: strict scrutiny for laws dealing
with freedom of the mind or restricting the political process, and the rational
basis standard of review for economic legislation.

If we were to take the myopic view that an Ordinance should be analyzed

strictly as to its effect only on the petitioners at bar, then it would seem that
the only restraint imposed by the law which we are capacitated to act upon is
the injury to property sustained by the petitioners, an injury that would
warrant the application of the most deferential standard the rational basis
test. Yet as earlier stated, we recognize the capacity of the petitioners to
invoke as well the constitutional rights of their patrons those persons who
would be deprived of availing short time access or wash-up rates to the
lodging establishments in question.
Viewed cynically, one might say that the infringed rights of these customers
were are trivial since they seem shorn of political consequence. Concededly,
these are not the sort of cherished rights that, when proscribed, would impel
the people to tear up their cedulas. Still, the Bill of Rights does not shelter
gravitas alone. Indeed, it is those "trivial" yet fundamental freedoms which
the people reflexively exercise any day without the impairing awareness of
their constitutional consequence that accurately reflect the degree of liberty
enjoyed by the people. Liberty, as integrally incorporated as a fundamental
right in the Constitution, is not a Ten Commandments-style enumeration of
what may or what may not be done; but rather an atmosphere of freedom

where the people do not feel labored under a Big Brother presence as they
interact with each other, their society and nature, in a manner innately
understood by them as inherent, without doing harm or injury to others.
D.
The rights at stake herein fall within the same fundamental rights to liberty
which we upheld in City of Manila v. Hon. Laguio, Jr. We expounded on that
most primordial of rights, thus:
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to
include "the right to exist and the right to be free from arbitrary restraint or
servitude. The term cannot be dwarfed into mere freedom from physical
restraint of the person of the citizen, but is deemed to embrace the right of
man to enjoy the facilities with which he has been endowed by his Creator,
65
subject only to such restraint as are necessary for the common welfare."[ ]
In accordance with this case, the rights of the citizen to be free to use his
faculties in all lawful ways; to live and work where he will; to earn his
livelihood by any lawful calling; and to pursue any avocation are all deemed
66
embraced in the concept of liberty.[ ]
The U.S. Supreme Court in the case of Roth v. Board of Regents, sought to
clarify the meaning of "liberty." It said:
While the Court has not attempted to define with exactness the liberty . . .
guaranteed [by the Fifth and Fourteenth Amendments], the term denotes not
merely freedom from bodily restraint but also the right of the individual to
contract, to engage in any of the common occupations of life, to acquire
useful knowledge, to marry, establish a home and bring up children, to
worship God according to the dictates of his own conscience, and generally
to enjoy those privileges long recognized . . . as essential to the orderly
pursuit of happiness by free men. In a Constitution for a free people, there
can be no doubt that the meaning of "liberty" must be broad
67
indeed. [Citations omitted]
It cannot be denied that the primary animus behind the ordinance is the
curtailment of sexual behavior. The City asserts before this Court that the
subject establishments "have gained notoriety as venue of prostitution,
adultery and fornications in Manila since they provide the necessary
atmosphere for clandestine entry, presence and exit and thus became the
68
ideal haven for prostitutes and thrill-seekers." Whether or not this depiction
of a mise-en-scene of vice is accurate, it cannot be denied that legitimate
sexual behavior among willing married or consenting single adults which is
69
constitutionally protected will be curtailed as well, as it was in the City of
Manila case. Our holding therein retains significance for our purposes:

The concept of liberty compels respect for the individual whose claim to
privacy and interference demands respect. As the case of Morfe v. Mutuc,
borrowing the words of Laski, so very aptly stated:
Man is one among many, obstinately refusing reduction to unity. His
separateness, his isolation, are indefeasible; indeed, they are so
fundamental that they are the basis on which his civic obligations are built.
He cannot abandon the consequences of his isolation, which are, broadly
speaking, that his experience is private, and the will built out of that
experience personal to himself. If he surrenders his will to others, he
surrenders himself. If his will is set by the will of others, he ceases to be a
master of himself. I cannot believe that a man no longer a master of himself
is in any real sense free.
Indeed, the right to privacy as a constitutional right was recognized in Morfe,
the invasion of which should be justified by a compelling state
interest. Morfe accorded recognition to the right to privacy independently of
its identification with liberty; in itself it is fully deserving of constitutional
protection. Governmental powers should stop short of certain intrusions into
70
the personal life of the citizen.
We cannot discount other legitimate activities which the Ordinance would
proscribe or impair. There are very legitimate uses for a wash rate or renting
the room out for more than twice a day. Entire families are known to choose
pass the time in a motel or hotel whilst the power is momentarily out in their
homes. In transit passengers who wish to wash up and rest between trips
have a legitimate purpose for abbreviated stays in motels or hotels. Indeed
any person or groups of persons in need of comfortable private spaces for a
span of a few hours with purposes other than having sex or using illegal
drugs can legitimately look to staying in a motel or hotel as a convenient
alternative.
E.
That the Ordinance prevents the lawful uses of a wash rate depriving patrons
of a product and the petitioners of lucrative business ties in with another
constitutional requisite for the legitimacy of the Ordinance as a police power
measure. It must appear that the interests of the public generally, as
distinguished from those of a particular class, require an interference with
private rights and the means must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive of private
71
rights. It must also be evident that no other alternative for the
accomplishment of the purpose less intrusive of private rights can work. More
importantly, a reasonable relation must exist between the purposes of the
measure and the means employed for its accomplishment, for even under

the guise of protecting the public interest, personal rights and those
72
pertaining to private property will not be permitted to be arbitrarily invaded.
Lacking a concurrence of these requisites, the police measure shall be struck
down as an arbitrary intrusion into private rights. As held in Morfe v. Mutuc,
the exercise of police power is subject to judicial review when life, liberty or
73
property is affected. However, this is not in any way meant to take it away
from the vastness of State police power whose exercise enjoys the
74
presumption of validity.
Similar to the Comelec resolution requiring newspapers to donate advertising
75
space to candidates, this Ordinance is a blunt and heavy instrument. The
Ordinance makes no distinction between places frequented by patrons
engaged in illicit activities and patrons engaged in legitimate actions. Thus it
prevents legitimate use of places where illicit activities are rare or even
unheard of. A plain reading of section 3 of the Ordinance shows it makes no
classification of places of lodging, thus deems them all susceptible to illicit
patronage and subject them without exception to the unjustified prohibition.
The Court has professed its deep sentiment and tenderness of the Ermita76
Malate area, its longtime home, and it is skeptical of those who wish to
depict our capital city the Pearl of the Orient as a modern-day Sodom or
Gomorrah for the Third World set. Those still steeped in Nick Joaquindreams of the grandeur of Old Manila will have to accept that Manila like all
evolving big cities, will have its problems. Urban decay is a fact of mega
cities such as Manila, and vice is a common problem confronted by the
modern metropolis wherever in the world. The solution to such perceived
decay is not to prevent legitimate businesses from offering a legitimate
product. Rather, cities revive themselves by offering incentives for new
businesses to sprout up thus attracting the dynamism of individuals that
would bring a new grandeur to Manila.
The behavior which the Ordinance seeks to curtail is in fact already
prohibited and could in fact be diminished simply by applying existing laws.
Less intrusive measures such as curbing the proliferation of prostitutes and
drug dealers through active police work would be more effective in easing the
situation. So would the strict enforcement of existing laws and regulations
penalizing prostitution and drug use. These measures would have minimal
intrusion on the businesses of the petitioners and other legitimate merchants.
Further, it is apparent that the Ordinance can easily be circumvented by
merely paying the whole day rate without any hindrance to those engaged in
illicit activities. Moreover, drug dealers and prostitutes can in fact collect
"wash rates" from their clientele by charging their customers a portion of the
rent for motel rooms and even apartments.

IV.
We reiterate that individual rights may be adversely affected only to the
extent that may fairly be required by the legitimate demands of public interest
or public welfare. The State is a leviathan that must be restrained from
needlessly intruding into the lives of its citizens. However well-intentioned the
Ordinance may be, it is in effect an arbitrary and whimsical intrusion into the
rights of the establishments as well as their patrons. The Ordinance
needlessly restrains the operation of the businesses of the petitioners as well
as restricting the rights of their patrons without sufficient justification. The
Ordinance rashly equates wash rates and renting out a room more than twice
a day with immorality without accommodating innocuous intentions.
The promotion of public welfare and a sense of morality among citizens
deserves the full endorsement of the judiciary provided that such measures
77
do not trample rights this Court is sworn to protect. The notion that the
promotion of public morality is a function of the State is as old as
78
Aristotle. The advancement of moral relativism as a school of philosophy
does not de-legitimize the role of morality in law, even if it may foster wider
debate on which particular behavior to penalize. It is conceivable that a
society with relatively little shared morality among its citizens could be
functional so long as the pursuit of sharply variant moral perspectives yields
79
an adequate accommodation of different interests.
To be candid about it, the oft-quoted American maxim that "you cannot
legislate morality" is ultimately illegitimate as a matter of law, since as
explained by Calabresi, that phrase is more accurately interpreted as
meaning that efforts to legislate morality will fail if they are widely at variance
80
with public attitudes about right and wrong. Our penal laws, for one, are
founded on age-old moral traditions, and as long as there are widely
accepted distinctions between right and wrong, they will remain so oriented.
Yet the continuing progression of the human story has seen not only the
acceptance of the right-wrong distinction, but also the advent of fundamental
liberties as the key to the enjoyment of life to the fullest. Our democracy is
distinguished from non-free societies not with any more extensive elaboration
on our part of what is moral and immoral, but from our recognition that the
individual liberty to make the choices in our lives is innate, and protected by
the State. Independent and fair-minded judges themselves are under a moral
duty to uphold the Constitution as the embodiment of the rule of law, by
reason of their expression of consent to do so when they take the oath of
81
office, and because they are entrusted by the people to uphold the law.
Even as the implementation of moral norms remains an indispensable
complement to governance, that prerogative is hardly absolute, especially in

the face of the norms of due process of liberty. And while the tension may
often be left to the courts to relieve, it is possible for the government to avoid
the constitutional conflict by employing more judicious, less drastic means to
promote morality.
WHEREFORE, the Petition is GRANTED. The Decision of the Court of
Appeals is REVERSED, and the Decision of the Regional Trial Court of
Manila, Branch 9, is REINSTATED. Ordinance No. 7774 is hereby declared
UNCONSTITUTIONAL. No pronouncement as to costs.

[3]

sovereignty. Nevertheless, this thicket is the only path to take to conquer

the mountain of a legal problem the case at bar presents. Both the
penetrating and panoramic view this climb would provide will largely chart the
course of religious freedom in Philippine jurisdiction. That the religious
freedom question arose in an administrative case involving only one person
does not alter the paramount importance of the question for the constitution
commands the positive protection by government of religious freedom -not
only for a minority, however small- not only for a majority, however large- but
[4]
for each of us.

SO ORDERED.
I. Facts
The facts of the case will determine whether respondent will prevail in
her plea of religious freedom. It is necessary therefore to lay down the facts
in detail, careful not to omit the essentials.

4. Estrada vs Escritor
EN BANC

[A.M. No. P-02-1651. August 4, 2003]

ALEJANDRO
ESTRADA, complainant, vs.
ESCRITOR, respondent.

SOLEDAD

S.

DECISION
PUNO, J.:
The case at bar takes us to a most difficult area of constitutional law
where man stands accountable to an authority higher than the state. To be
held on balance are the states interest and the respondents religious
freedom. In this highly sensitive area of law, the task of balancing between
authority and liberty is most delicate because to the person invoking religious
freedom, the consequences of the case are not only temporal. The task is
not made easier by the American origin of our religion clauses and the wealth
of U.S. jurisprudence on these clauses for in the United States, there is
probably no more intensely controverted area of constitutional interpretation
[1]
than the religion clauses. The U.S. Supreme Court itself has acknowledged
that in this constitutional area, there is considerable internal inconsistency in
[2]
the opinions of the Court. As stated by a professor of law, (i)t is by now
notorious that legal doctrines and judicial decisions in the area of religious
freedom are in serious disarray. In perhaps no other area of constitutional
law have confusion and inconsistency achieved such undisputed

In a sworn letter-complaint dated July 27, 2000, complainant Alejandro

Estrada wrote to Judge Jose F. Caoibes, Jr., presiding judge of Branch 253,
Regional Trial Court of Las Pias City, requesting for an investigation of
rumors that respondent Soledad Escritor, court interpreter in said court, is
living with a man not her husband. They allegedly have a child of eighteen to
twenty years old. Estrada is not personally related either to Escritor or her
partner and is a resident not of Las Pias City but of Bacoor,
Cavite. Nevertheless, he filed the charge against Escritor as he believes that
she is committing an immoral act that tarnishes the image of the court, thus
she should not be allowed to remain employed therein as it might appear that
[5]
the court condones her act.
Judge Caoibes referred the letter to Escritor who stated that there is no
truth as to the veracity of the allegation and challenged Estrada to appear in
[6]
the open and prove his allegation in the proper forum. Judge Caoibes set a
preliminary conference on October 12, 2000. Escritor moved for the inhibition
of Judge Caoibes from hearing her case to avoid suspicion and bias as she
previously filed an administrative complaint against him and said case was
still pending in the Office of the Court Administrator (OCA). Escritors motion
was denied. The preliminary conference proceeded with both Estrada and
Escritor in attendance. Estrada confirmed that he filed the letter-complaint for
immorality against Escritor because in his frequent visits to the Hall of Justice
of Las Pias City, he learned from conversations therein that Escritor was
living with a man not her husband and that she had an eighteen to twentyyear old son by this man.This prompted him to write to Judge Caoibes as he
believed that employees of the judiciary should be respectable and Escritors
[7]
live-in arrangement did not command respect.

Respondent Escritor testified that when she entered the judiciary in

[8]
[9]
1999, she was already a widow, her husband having died in 1998. She
admitted that she has been living with Luciano Quilapio, Jr. without the
benefit of marriage for twenty years and that they have a son. But as a
member of the religious sect known as the Jehovahs Witnesses and the
Watch Tower and Bible Tract Society, their conjugal arrangement is in
conformity with their religious beliefs. In fact, after ten years of living together,
she executed on July 28, 1991 a Declaration of Pledging Faithfulness, viz:
DECLARATION OF PLEDGING FAITHFULNESS
I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D.
Quilapio, Jr., as my mate in marital relationship; that I have done all within
my ability to obtain legal recognition of this relationship by the proper public
authorities and that it is because of having been unable to do so that I
therefore make this public declaration pledging faithfulness in this marital
relationship.
I recognize this relationship as a binding tie before Jehovah God and before
all persons to be held to and honored in full accord with the principles of
Gods Word. I will continue to seek the means to obtain legal recognition of
this relationship by the civil authorities and if at any future time a change in
circumstances make this possible, I promise to legalize this union.
th

Signed this 28 day of July 1991.

[10]

Escritors partner, Quilapio, executed a similar pledge on the same

[11]
day. Both pledges were executed in Atimonan, Quezon and signed by
three witnesses. At the time Escritor executed her pledge, her husband was
still alive but living with another woman. Quilapio was likewise married at that
time, but had been separated in fact from his wife. During her testimony,
Escritor volunteered to present members of her congregation to confirm the
truthfulness of their Declarations of Pledging Faithfulness, but Judge Caoibes
deemed it unnecessary and considered her identification of her signature and
[12]
the signature of Quilapio sufficient authentication of the documents.
Judge Caoibes endorsed the complaint to Executive Judge Manuel B.
Fernandez, Jr., who, in turn, endorsed the same to Court Administrator
Alfredo L. Benipayo. On July 17, 2001, the Court, upon recommendation of
Acting Court Administrator Zenaida N. Elepao, directed Escritor to comment
on the charge against her. In her comment, Escritor reiterated her religious
congregations approval of her conjugal arrangement with Quilapio, viz:

Pledging Faithfulness (Exhibit 1 and Exhibit 2) duly signed by both

respondent and her mate in marital relationship with the witnesses
concurring their acceptance to the arrangement as approved by the WATCH
TOWER BIBLE and TRACT SOCIETY, Philippine Branch.
Same marital arrangement is recognized as a binding tie before JEHOVAH
God and before all persons to be held to and honored in full accord with the
principles of Gods Word.
xxx xxx xxx
Undersigned submits to the just, humane and fair discretion of the Court with
verification from the WATCH TOWER BIBLE and TRACT SOCIETY,
Philippine Branch . . . to which undersigned believes to be a high authority in
[13]
relation to her case.
Deputy Court Administrator Christopher O. Lock recommended that the
case be referred to Executive Judge Bonifacio Sanz Maceda, RTC Branch
255, Las Pias City for investigation, report and recommendation. In the
course of Judge Macedas investigation, Escritor again testified that her
congregation allows her conjugal arrangement with Quilapio and it does not
consider it immoral. She offered to supply the investigating judge some
clippings which explain the basis of her congregations belief and practice
regarding her conjugal arrangement.Escritor started living with Quilapio
twenty years ago when her husband was still alive but living with another
woman. She met this woman who confirmed to her that she was living with
[14]
her (Escritors) husband.
Gregorio Salazar, a member of the Jehovahs Witnesses since 1985,
also testified. He had been a presiding minister since 1991 and in such
capacity is aware of the rules and regulations of their congregation. He
explained the import of and procedure for executing a Declaration of
Pledging Faithfulness, viz:
Q: Now, insofar as the pre-marital relationship is concern (sic), can
you cite some particular rules and regulations in your
congregation?
A: Well, we of course, talk to the persons with regards (sic) to all
the parties involved and then we request them to execute a
Public Declaration of Pledge of faithfulness.
Q: What is that document?
A: Declaration of Pledge of faithfulness.

Herein respondent does not ignore alleged accusation but she reiterates to
state with candor that there is no truth as to the veracity of same
allegation. Included herewith are documents denominated as Declaration of

Q: What are the relations of the document Declaration of Pledge of

faithfulness, who are suppose (sic) to execute this document?

A: This must be signed, the document must be signed by the elders

of the congregation; the couple, who is a member (sic) of the
congregation, baptized member and true member of the
congregation.
Q: What standard rules and regulations do you have in relation with
this document?
A: Actually, sir, the signing of that document, ah, with the couple
has consent to marital relationship (sic) gives the Christian
Congregation view that the couple has put themselves on
record before God and man that they are faithful to each
other. As if that relation is validated by God.
Q: From your explanation, Minister, do you consider it a pledge or a
document between the parties, who are members of the
congregation?
A: It is a pledge and a document. It is a declaration, pledge of a
(sic) pledge of faithfulness.
Q: And what does pledge mean to you?
A: It means to me that they have contracted, let us say, I am the
one who contracted with the opposite member of my
congregation, opposite sex, and that this document will give
us the right to a marital relationship.
Q: So, in short, when you execute a declaration of pledge of
faithfulness, it is a preparation for you to enter a marriage?
A: Yes, Sir.
Q: But it does not necessarily mean that the parties, cohabiting or
living under the same roof?
A: Well, the Pledge of faithfulness document is (sic) already
approved as to the marital relationship.
Q: Do you mean to say, Minister, by executing this document the
contracting parties have the right to cohabit?
A: Can I sir, cite, what the Bible says, the basis of that Pledge of
Faithfulness as we Christians follow. The basis is herein
stated in the Book of Matthew, Chapter Five, Verse Twentytwo. So, in that verse of the Bible, Jesus said that everyone
divorcing his wife, except on account of fornication, makes her
a subject for adultery, and whoever marries a divorced woman
[15]
commits adultery.

Escritor and Quilapio transferred to Salazars Congregation, the

Almanza Congregation in Las Pias, in May 2001. The declarations having
been executed in Atimonan, Quezon in 1991, Salazar had no personal
knowledge of the personal circumstances of Escritor and Quilapio when they
executed their declarations. However, when the two transferred to Almanza,
Salazar inquired about their status from the Atimonan Congregation,
gathered comments of the elders therein, and requested a copy of their
declarations. The Almanza Congregation assumed that the personal
circumstances of the couple had been considered by the Atimonan
Congregation when they executed their declarations.
Escritor and Quilapios declarations are recorded in the Watch Tower
Central office. They were executed in the usual and approved form
prescribed by the Watch Tower Bible and Tract Society which was lifted from
[16]
the article, Maintaining Marriage in Honor Before God and Men,
in the
March 15, 1977 issue of the Watch Tower magazine, entitled The
Watchtower.
The declaration requires the approval of the elders of the Jehovahs
Witnesses congregation and is binding within the congregation all over the
world except in countries where divorce is allowed. The Jehovahs
congregation requires that at the time the declarations are executed, the
couple cannot secure the civil authorities approval of the marital relationship
because of legal impediments. It is thus standard practice of the
congregation to check the couples marital status before giving imprimatur to
the conjugal arrangement. The execution of the declaration finds scriptural
basis in Matthew 5:32 that when the spouse commits adultery, the offended
spouse can remarry. The marital status of the declarants and their respective
spouses commission of adultery are investigated before the declarations are
executed. Thus, in the case of Escritor, it is presumed that the Atimonan
Congregation conducted an investigation on her marital status before the
declaration was approved and the declaration is valid everywhere, including
the Almanza Congregation. That Escritors and Quilapios declarations were
approved are shown by the signatures of three witnesses, the elders in the
Atimonan Congregation. Salazar confirmed from the congregations branch
office that these three witnesses are elders in the Atimonan
Congregation. Although in 1998 Escritor was widowed, thereby lifting the
legal impediment to marry on her part, her mate is still not capacitated to
remarry. Thus, their declarations remain valid. Once all legal impediments for
both are lifted, the couple can already register their marriage with the civil
authorities and the validity of the declarations ceases. The elders in the
congregations can then solemnize their marriage as authorized by Philippine
law. In sum, therefore, insofar as the congregation is concerned, there is
nothing immoral about the conjugal arrangement between Escritor and
[17]
Quilapio and they remain members in good standing in the congregation.
Salvador Reyes, a minister at the General de Leon, Valenzuela City
Congregation of the Jehovahs Witnesses since 1974 and member of the

headquarters of the Watch Tower Bible and Tract Society of the Philippines,
Inc., presented the original copy of the magazine article entitled, Maintaining
Marriage Before God and Men to which Escritor and Minister Salazar
referred in their testimonies. The article appeared in the March 15, 1977
issue of the Watchtower magazine published in Pennsylvania, U.S.A. Felix S.
Fajardo, President of the Watch Tower Bible and Tract Society of the
Philippines, Inc., authorized Reyes to represent him in authenticating the
article. The article is distributed to the Jehovahs Witnesses congregations
[18]
which also distribute them to the public.
The parties submitted their respective memoranda to the investigating
judge. Both stated that the issue for resolution is whether or not the
relationship between respondent Escritor and Quilapio is valid and binding in
their own religious congregation, the Jehovahs Witnesses. Complainant
Estrada adds however, that the effect of the relationship to Escritors
administrative liability must likewise be determined. Estrada argued, through
counsel, that the Declaration of Pledging Faithfulness recognizes the
supremacy of the proper public authorities such that she bound herself to
seek means to . . . legalize their union. Thus, even assuming arguendo that
the declaration is valid and binding in her congregation, it is binding only to
her co-members in the congregation and serves only the internal purpose of
displaying to the rest of the congregation that she and her mate are a
respectable and morally upright couple. Their religious belief and practice,
however, cannot override the norms of conduct required by law for
government employees. To rule otherwise would create a dangerous
precedent as those who cannot legalize their live-in relationship can simply
join the Jehovahs Witnesses congregation and use their religion as a
[19]
defense against legal liability.
On the other hand, respondent Escritor reiterates the
conjugal arrangement with Quilapio based on the belief and
religion, the Jehovahs Witnesses. She quoted portions of
article entitled, Maintaining Marriage Before God and
memorandum signed by herself, viz:

validity of her
practice of her
the magazine
Men, in her

The Declaration of Pledging of Faithfulness (Exhibits 1 and 2) executed by

the respondent and her mate greatly affect the administrative liability of
respondent. Jehovahs Witnesses admit and recognize (sic) the supremacy of
the proper public authorities in the marriage arrangement. However, it is
helpful to understand the relative nature of Caesars authority regarding
marriage. From country to country, marriage and divorce legislation presents
a multitude of different angles and aspects. Rather than becoming entangled
in a confusion of technicalities, the Christian, or the one desiring to become a
disciple of Gods Son, can be guided by basic Scriptural principles that hold
true in all cases.

Gods view is of first concern. So, first of all the person must consider whether
that ones present relationship, or the relationship into which he or she
contemplates entering, is one that could meet with Gods approval, or
whether in itself, it violates the standards of Gods Word. Take, for example,
the situation where a man lives with a wife but also spends time living with
another woman as a concubine. As long as such a state of concubinage
prevails, the relationship of the second woman can never be harmonized with
Christian principles, nor could any declaration on the part of the woman or
the man make it so. The only right course is cessation of the
relationship. Similarly with an incestuous relationship with a member of ones
immediate family, or a homosexual relationship or other such situation
condemned by Gods Word. It is not the lack of any legal validation that
makes such relationships unacceptable; they are in themselves unscriptural
and hence, immoral. Hence, a person involved in such a situation could not
make any kind of Declaration of Faithfulness, since it would have no merit in
Gods eyes.
If the relationship is such that it can have Gods approval, then, a second
principle to consider is that one should do all one can to establish the
honorableness of ones marital union in the eyes of all. (Heb. 13:4). If divorce
is possible, then such step should now be taken so that, having obtained the
divorce (on whatever legal grounds may be available), the present union can
receive civil validation as a recognized marriage.
Finally, if the marital relationship is not one out of harmony with the principles
of Gods Word, and if one has done all that can reasonably be done to have it
recognized by civil authorities and has been blocked in doing so, then, a
Declaration Pledging Faithfulness can be signed. In some cases, as has
been noted, the extreme slowness of official action may make accomplishing
of legal steps a matter of many, many years of effort. Or it may be that the
costs represent a crushingly heavy burden that the individual would need
years to be able to meet. In such cases, the declaration pledging faithfulness
will provide the congregation with the basis for viewing the existing union as
honorable while the individual continues conscientiously to work out the legal
aspects to the best of his ability.
Keeping in mind the basic principles presented, the respondent as a Minister
of Jehovah God, should be able to approach the matter in a balanced way,
neither underestimating nor overestimating the validation offered by the
political state. She always gives primary concern to Gods view of the
union. Along with this, every effort should be made to set a fine example of
faithfulness and devotion to ones mate, thus, keeping the marriage
honorable among all. Such course will bring Gods blessing and result to the
honor and praise of the author of marriage, Jehovah God. (1 Cor. 10:31[20]
33)

Respondent also brought to the attention of the investigating judge that

[21]
complainants Memorandum came from Judge Caoibes chambers whom
she claims was merely using petitioner to malign her.
In his Report and Recommendation, investigating judge Maceda found
Escritors factual allegations credible as they were supported by testimonial
and documentary evidence. He also noted that (b)y strict Catholic standards,
the live-in relationship of respondent with her mate should fall within the
definition of immoral conduct, to wit: that which is willful, flagrant, or
shameless, and which shows a moral indifference to the opinion of the good
and respectable members of the community (7 C.J.S. 959) (Delos Reyes vs.
Aznar, 179 SCRA, at p. 666). He pointed out, however, that the more
relevant question is whether or not to exact from respondent Escritor, a
member of Jehovahs Witnesses, the strict moral standards of the Catholic
[22]
faith in determining her administrative responsibility in the case at bar. The
investigating judge acknowledged that religious freedom is a fundamental
right which is entitled to the highest priority and the amplest protection
among human rights, for it involves the relationship of man to his Creator (at
p. 270, EBRALINAG supra, citing Chief Justice Enrique M. Fernandos
separate opinion in German vs. Barangan, 135 SCRA 514, 530-531) and
[23]
thereby recommended the dismissal of the complaint against Escritor.
After considering the Report and Recommendation of Executive Judge
Maceda, the Office of the Court Administrator, through Deputy Court
Administrator (DCA) Lock and with the approval of Court Administrator
Presbitero Velasco, concurred with the factual findings of Judge Maceda but
departed from his recommendation to dismiss the complaint. DCA Lock
stressed that although Escritor had become capacitated to marry by the time
she joined the judiciary as her husband had died a year before, it is due to
her relationship with a married man, voluntarily carried on, that respondent
[24]
may still be subject to disciplinary action. Considering the ruling of the
[25]
Court in Dicdican v. Fernan, et al. that court personnel have been
enjoined to adhere to the exacting standards of morality and decency in their
professional and private conduct in order to preserve the good name and
integrity of the court of justice, DCA Lock found Escritors defense of freedom
of religion unavailing to warrant dismissal of the charge of
immorality. Accordingly, he recommended that respondent be found guilty of
immorality and that she be penalized with suspension of six months and one
day without pay with a warning that a repetition of a similar act will be dealt
[26]
with more severely in accordance with the Civil Service Rules.

determine the sub-issue of whether or not respondents right to religious

freedom should carve out an exception from the prevailing jurisprudence on
illicit relations for which government employees are held administratively
liable.

III. Applicable Laws

Respondent is charged with committing gross and immoral conduct
under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative
Code which provides, viz:
Sec. 46. Discipline: General Provisions. - (a) No officer or employee in the
Civil Service shall be suspended or dismissed except for cause as provided
by law and after due process.
(b) The following shall be grounds for disciplinary action:
xxx xxx xxx
(5) Disgraceful and immoral conduct; xxx.
Not represented by counsel, respondent, in laymans terms, invokes the
religious beliefs and practices and moral standards of her religion, the
Jehovahs Witnesses, in asserting that her conjugal arrangement with a man
not her legal husband does not constitute disgraceful and immoral conduct
for which she should be held administratively liable. While not articulated by
respondent, she invokes religious freedom under Article III, Section 5 of the
Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall
forever be allowed. No religious test shall be required for the exercise of civil
or political rights.

IV. Old World Antecedents of the American Religion Clauses

II. Issue
Whether or not respondent should be found guilty of the administrative
charge of gross and immoral conduct. To resolve this issue, it is necessary to

To understand the life that the religion clauses have taken, it would be
well to understand not only its birth in the United States, but its conception in
the Old World. One cannot understand, much less intelligently criticize the

approaches of the courts and the political branches to religious freedom in

the recent past in the United States without a deep appreciation of the roots
of these controversies in the ancient and medieval world and in the American
[27]
experience. This fresh look at the religion clauses is proper in deciding this
case of first impression.
In primitive times, all of life may be said to have been religious. Every
significant event in the primitive mans life, from birth to death, was marked by
religious ceremonies. Tribal society survived because religious sanctions
effectively elicited adherence to social customs. A person who broke a
custom violated a taboo which would then bring upon him the wrathful
[28]
vengeance of a superhuman mysterious power. Distinction between the
religious and non-religious would thus have been meaningless to him. He
sought protection from all kinds of evil - whether a wild beast or tribe enemy
and lightning or wind - from the same person. The head of the clan or the Old
Man of the tribe or the king protected his wards against both human and
superhuman enemies. In time, the king not only interceded for his people
with the divine powers, but he himself was looked upon as a divine being and
[29]
his laws as divine decrees.
Time came, however, when the function of acting as intermediary
between human and spiritual powers became sufficiently differentiated from
the responsibility of leading the tribe in war and policing it in peace as to
require the full-time services of a special priest class. This saw the birth of
the social and communal problem of the competing claims of the king and
priest.Nevertheless, from the beginning, the king and not the priest was
superior. The head of the tribe was the warrior, and although he also
performed priestly functions, he carried out these functions because he was
[30]
the head and representative of the community.
There being no distinction between the religious and the secular, the
same authority that promulgated laws regulating relations between man and
man promulgated laws concerning mans obligations to the supernatural. This
authority was the king who was the head of the state and the source of all
law and who only delegated performance of rituals and sacrifice to the
priests. The Code of Hammurabi, king of Babylonia, imposed penalties for
homicide, larceny, perjury, and other crimes; regulated the fees of surgeons
and the wages of masons and tailors and prescribed rules for inheritance of
[31]
property; and also catalogued the gods and assigned them their places in
the divine hierarchy so as to put Hammurabis own god to a position of
[32]
equality with existing gods. In sum, the relationship of religion to the state
(king) in pre-Hebreic times may be characterized as a union of the two
[33]
forces, with the state almost universally the dominant partner.
With the rise of the Hebrew state, a new term had to be coined to
describe the relation of the Hebrew state with the Mosaic
religion: theocracy. The authority and power of the state was ascribed to
[34]
God. The Mosaic creed was not merely regarded as the religion of the

state, it was (at least until Saul) the state itself. Among the Hebrews,
patriarch, prophet, and priest preceded king and prince. As man of God,
Moses decided when the people should travel and when to pitch camp, when
they should make war and when peace. Saul and David were made kings by
the prophet Samuel, disciple of Eli the priest. Like the Code of Hammurabi,
the Mosaic code combined civil laws with religious mandates, but unlike the
Hammurabi Code, religious laws were not of secondary importance. On the
contrary, religious motivation was primary and all-embracing: sacrifices were
made and Israel was prohibited from exacting usury, mistreating aliens or
using false weights, all because God commanded these.
Moses of the Bible led not like the ancient kings. The latter used religion
as an engine to advance the purposes of the state. Hammurabi unified
Mesopotamia and established Babylon as its capital by elevating its city-god
[35]
to a primary position over the previous reigning gods. Moses, on the other
hand, capitalized on the natural yearnings of the Hebrew slaves for freedom
and independence to further Gods purposes. Liberation and Exodus were
preludes to Sinai and the receipt of the Divine Law. The conquest of Canaan
was a preparation for the building of the temple and the full worship of
[36]
God.
Upon the monotheism of Moses was the theocracy of Israel
founded. This monotheism, more than anything else, charted not only the
future of religion in western civilization, but equally, the future of the
relationship between religion and state in the west. This fact is acknowledged
by many writers, among whom is Northcott who pointed out, viz:
Historically it was the Hebrew and Christian conception of a single and
universal God that introduced a religious exclusivism leading to
compulsion and persecution in the realm of religion.Ancient religions
were regarded as confined to each separate people believing in them,
and the question of change from one religious belief to another did not
arise. It was not until an exclusive fellowship, that the questions of
[37]
proselytism, change of belief and liberty of religion arose. (emphasis
supplied)
The Hebrew theocracy existed in its pure form from Moses to Samuel. In this
period, religion was not only superior to the state, but it was all of the
state. The Law of God as transmitted through Moses and his successors was
the whole of government.
With Saul, however, the state rose to be the rival and ultimately, the
master, of religion. Saul and David each received their kingdom from Samuel
the prophet and disciple of Eli the priest, but soon the king dominated
prophet and priest. Saul disobeyed and even sought to slay Samuel the
[38]
prophet of God. Under Solomon, the subordination of religion to state
became complete; he used religion as an engine to further the states

purposes. He reformed the order of priesthood established by Moses

because the high priest under that order endorsed the claim of his rival to the
[39]
throne.
The subordination of religion to the state was also true in pre-Christian
Rome which engaged in emperor-worship. When Augustus became head of
the Roman state and the priestly hierarchy, he placed religion at a high
esteem as part of a political plan to establish the real religion of pre-Christian
Rome - the worship of the head of the state. He set his great uncle Julius
Caesar among the gods, and commanded that worship of Divine Julius
should not be less than worship of Apollo, Jupiter and other gods. When
Augustus died, he also joined the ranks of the gods, as other emperors
[40]
before him.
The onset of Christianity, however, posed a difficulty to the emperor as
the Christians dogmatic exclusiveness prevented them from paying homage
to publicly accepted gods. In the first two centuries after the death of Jesus,
Christians were subjected to persecution. By the time of the emperor Trajan,
Christians were considered outlaws. Their crime was hatred of the human
race, placing them in the same category as pirates and brigands and other
[41]
enemies of mankind who were subject to summary punishments.
In 284, Diocletian became emperor and sought to reorganize the empire
and make its administration more efficient. But the closely-knit hierarchically
controlled church presented a serious problem, being a state within a state
over which he had no control. He had two options: either to force it into
submission and break its power or enter into an alliance with it and procure
political control over it. He opted for force and revived the persecution,
destroyed the churches, confiscated sacred books, imprisoned the clergy
[42]
and by torture forced them to sacrifice. But his efforts proved futile.
The later emperor, Constantine, took the second option of
alliance. Constantine joined with Galerius and Licinius, his two co-rulers of
the empire, in issuing an edict of toleration to Christians on condition that
[43]
nothing is done by them contrary to discipline. A year later, after Galerius
died, Constantine and Licius jointly issued the epochal Edict of Milan (312
or 313), a document of monumental importance in the history of religious
liberty. It provided that liberty of worship shall not be denied to any, but
that the mind and will of every individual shall be free to manage divine
affairs according to his own choice. (emphasis supplied) Thus, all restrictive
statutes were abrogated and it was enacted that every person who cherishes
the desire to observe the Christian religion shall freely and unconditionally
proceed to observe the same without let or hindrance. Furthermore, it was
provided that the same free and open power to follow their own religion or
worship is granted also to others, in accordance with the tranquillity of our
times, in order that every person may have free opportunity to worship
[44]
the object of his choice.(emphasis supplied)

Before long, not only did Christianity achieve equal status, but acquired
privilege, then prestige, and eventually, exclusive power. Religion became an
engine of state policy as Constantine considered Christianity a means of
unifying his complex empire. Within seven years after the Edict of Milan,
under the emperors command, great Christian edifices were erected, the
clergy were freed from public burdens others had to bear, and private
heathen sacrifices were forbidden.
The favors granted to Christianity came at a price: state
interference in religious affairs. Constantine and his successors called and
dismissed church councils, and enforced unity of belief and practice. Until
recently the church had been the victim of persecution and repression, but
this time it welcomed the states persecution and repression of the
nonconformist and the orthodox on the belief that it was better for heretics to
be purged of their error than to die unsaved.
Both in theory as in practice, the partnership between church and state
was not easy. It was a constant struggle of one claiming dominance over the
other. In time, however, after the collapse and disintegration of the
Roman Empire, and while monarchical states were gradually being
consolidated among the numerous feudal holdings, the church stood
as the one permanent, stable and universal power. Not surprisingly,
therefore, it claimed not merely equality but superiority over the secular
states. This claim, symbolized by Pope Leos crowning of Charlemagne,
became the churchs accepted principle of its relationship to the state in the
Middle Ages. As viewed by the church, the union of church and state was
now a union of the state in the church. The rulers of the states did not
concede to this claim of supremacy. Thus, while Charlemagne received his
crown from the Pope, he himself crowned his own son as successor to nullify
[45]
the inference of supremacy. The whole history of medieval Europe was
a struggle for supremacy between prince and Pope and the resulting
religious wars and persecution of heretics and nonconformists. At
th
about the second quarter of the 13 century, the Inquisition was established,
the purpose of which was the discovery and extermination of
heresy. Accused heretics were tortured with the approval of the church in the
bull Ad extirpanda issued by Pope Innocent IV in 1252.
The corruption and abuses of the Catholic Church spurred the
Reformation aimed at reforming the Catholic Church and resulting in the
establishment of Protestant churches. While Protestants are accustomed to
ascribe to the Reformation the rise of religious liberty and its acceptance as
the principle governing the relations between a democratic state and its
citizens, history shows that it is more accurate to say that the same causes
that gave rise to the Protestant revolution also resulted in the widespread
acceptance of the principle of religious liberty, and ultimately of the principle
[46]
of separation of church and state. Pleas for tolerance and freedom of
conscience can without doubt be found in the writings of leaders of the
Reformation.But just as Protestants living in the countries of papists pleaded

for toleration of religion, so did the papists that lived where Protestants were
[47]
dominant. Papist and Protestant governments alike accepted the idea of
cooperation between church and state and regarded as essential to national
unity the uniformity of at least the outward manifestations of
[48]
religion. Certainly, Luther, leader of the Reformation, stated that neither
pope, nor bishop, nor any man whatever has the right of making one syllable
[49]
binding on a Christian man, unless it be done with his own consent. But
when the tables had turned and he was no longer the hunted heretic, he
likewise stated when he made an alliance with the secular powers that
(h)eretics are not to be disputed with, but to be condemned unheard, and
whilst they perish by fire, the faithful ought to pursue the evil to its source,
and bathe their hands in the blood of the Catholic bishops, and of the Pope,
[50]
who is a devil in disguise. To Luther, unity among the peoples in the
interests of the state was an important consideration. Other personalities in
the Reformation such as Melanchton, Zwingli and Calvin strongly espoused
theocracy or the use of the state as an engine to further religion. In
establishing theocracy in Geneva, Calvin made absence from the sermon a
crime, he included criticism of the clergy in the crime of blasphemy
punishable by death, and to eliminate heresy, he cooperated in the
[51]
Inquisition.
There were, however, those who truly advocated religious
liberty. Erasmus, who belonged to the Renaissance than the Reformation,
wrote that (t)he terrible papal edict, the more terrible imperial edict, the
imprisonments, the confiscations, the recantations, the fagots and burnings,
all these things I can see accomplish nothing except to make the evil more
[52]
widespread. The minority or dissident sects also ardently advocated
religious liberty. The Anabaptists, persecuted and despised, along with the
Socinians (Unitarians) and the Friends of the Quakers founded by George
th
Fox in the 17 century, endorsed the supremacy and freedom of the
individual conscience. They regarded religion as outside the realm of political
[53]
governments. The English Baptists proclaimed that the magistrate is not to
meddle with religion or matters of conscience, nor compel men to this or that
[54]
form of religion.
Thus, out of the Reformation, three rationalizations of church-state
relations may be distinguished: the Erastian (after the German doctor
Erastus), the theocratic, and the separatist.The first assumed state
superiority in ecclesiastical affairs and the use of religion as an engine of
state policy as demonstrated by Luthers belief that civic cohesion could not
exist without religious unity so that coercion to achieve religious unity was
justified. The second was founded on ecclesiastical supremacy and the use
of state machinery to further religious interests as promoted by Calvin. The
third, which was yet to achieve ultimate and complete expression in the
New World, was discernibly in its incipient form in the arguments of
some dissident minorities that the magistrate should not intermeddle in
[55]
religious affairs. After the Reformation, Erastianism pervaded all Europe

except for Calvins theocratic Geneva. In England, perhaps more than in

any other country, Erastianism was at its height. To illustrate, a statute
was enacted by Parliament in 1678, which, to encourage woolen trade,
imposed on all clergymen the duty of seeing to it that no person was buried
[56]
in a shroud made of any substance other than wool. Under Elizabeth,
supremacy of the crown over the church was complete: ecclesiastical offices
were regulated by her proclamations, recusants were fined and imprisoned,
Jesuits and proselytizing priests were put to death for high treason, the thirtynine Articles of the Church of England were adopted and English
[57]
Protestantism attained its present doctrinal status. Elizabeth was to be
recognized as the only Supreme Governor of this realm . . . as well in all
spiritual or ecclesiastical things or causes as temporal. She and her
successors were vested, in their dominions, with all manner of jurisdictions,
privileges, and preeminences, in any wise touching or concerning any
[58]
spiritual or ecclesiastical jurisdiction. Later, however, Cromwell established
the constitution in 1647 which grantedfull liberty to all Protestant sects,
[59]
but denied toleration to Catholics. In 1689, William III issued the Act of
Toleration which established a de facto toleration for all except
th
Catholics.The Catholics achieved religious liberty in the 19 century when
the Roman Catholic Relief Act of 1829 was adopted. The Jews followed
[60]
suit in 1858 when they were finally permitted to sit in Parliament.
When the representatives of the American states met in
Philadelphia in 1787 to draft the constitutional foundation of the new
republic, the theocratic state which had flourished intermittently in Israel,
Judea, the Holy Roman Empire and Geneva was completely gone. The
prevailing church-state relationship in Europe was Erastianism embodied in
the system of jurisdictionalism whereby one faith was favored as the official
state-supported religion, but other faiths were permitted to exist with freedom
in various degrees. No nation had yet adopted as the basis of its churchstate relations the principle of the mutual independence of religion and
government and the concomitant principle that neither might be used
as an engine to further the policies of the other, although the principle
was in its seminal form in the arguments of some dissident minorities
and intellectual leaders of the Renaissance. The religious wars of
th
th
16 and 17 century Europe were a thing of the past by the time
America declared its independence from the Old World, but their
memory was still vivid in the minds of the Constitutional Fathers as
expressed by the United States Supreme Court, viz:
The centuries immediately before and contemporaneous with the
colonization of America had been filled with turmoil, civil strife, and
persecution generated in large part by established sects determined to
maintain their absolute political and religious supremacy. With the power of
government supporting them, at various times and places, Catholics had
persecuted Protestants, Protestants had persecuted Catholics, Protestant
sects had persecuted other protestant sects, Catholics of one shade of belief

had persecuted Catholics of another shade of belief, and all of these had
from time to time persecuted Jews. In efforts to force loyalty to whatever
religious group happened to be on top and in league with the government of
a particular time and place, men and women had been fined, cast in jail,
cruelly tortured, and killed. Among the offenses for which these punishments
had been inflicted were such things as speaking disrespectfully of the views
of ministers of government-established churches, non-attendance at those
churches, expressions of non-belief in their doctrines, and failure to pay
[61]
taxes and tithes to support them.
In 1784, James Madison captured in this statement the entire history of
church-state relations in Europe up to the time the United States Constitution
was adopted, viz:
Torrents of blood have been spilt in the world in vain attempts of the secular
arm to extinguish religious discord, by proscribing all differences in religious
[62]
opinions.
In sum, this history shows two salient features: First, with minor
exceptions, the history of church-state relationships was characterized by
persecution, oppression, hatred, bloodshed, and war, all in the name of the
God of Love and of the Prince of Peace. Second, likewise with minor
exceptions, this history witnessed the unscrupulous use of religion by
secular powers to promote secular purposes and policies, and the
willing acceptance of that role by the vanguards of religion in exchange
for the favors and mundane benefits conferred by ambitious princes
and emperors in exchange for religions invaluable service. This was the
context in which the unique experiment of the principle of religious
freedom and separation of church and state saw its birth in American
[63]
constitutional democracy and in human history.

V. Factors Contributing to the Adoption

of the American Religion Clauses
Settlers fleeing from religious persecution in Europe, primarily in
Anglican-dominated England, established many of the American
colonies. British thought pervaded these colonies as the immigrants brought
with them their religious and political ideas from England and English books
[64]
and pamphlets largely provided their cultural fare. But although these
settlers escaped from Europe to be freed from bondage of laws which
compelled them to support and attend government favored churches, some
of these settlers themselves transplanted into American soil the oppressive
practices they escaped from. The charters granted by the English Crown to

the individuals and companies designated to make the laws which would
control the destinies of the colonials authorized them to erect religious
establishments, which all, whether believers or not, were required to support
[65]
or attend. At one time, six of the colonies established a state religion.
Other colonies, however, such as Rhode Island and Delaware tolerated a
high degree of religious diversity. Still others, which originally tolerated only a
[66]
single religion, eventually extended support to several different faiths.
This was the state of the American colonies when the unique
American experiment of separation of church and state came
about. The birth of the experiment cannot be attributed to a single cause or
event. Rather, a number of interdependent practical and ideological factors
contributed in bringing it forth. Among these were the English Act of
Toleration of 1689, the multiplicity of sects, the lack of church affiliation on
the part of most Americans, the rise of commercial intercourse, the
exigencies of the Revolutionary War, the Williams-Penn tradition and the
success of their experiments, the writings of Locke, the social contract
theory, the Great Awakening, and the influence of European rationalism and
[67]
deism. Each of these factors shall be briefly discussed.
First, the practical factors. Englands policy of opening the gates of the
American colonies to different faiths resulted in the multiplicity of sects in the
colonies. With an Erastian justification, English lords chose to forego
protecting what was considered to be the true and eternal church of a
particular time in order to encourage trade and commerce. The colonies were
large financial investments which would be profitable only if people would
settle there. It would be difficult to engage in trade with persons one seeks to
destroy for religious belief, thus tolerance was a necessity. This tended to
distract the colonies from their preoccupations over their religion and its
exclusiveness, encouraging them to think less of the Church and more of the
[68]
State and of commerce. The diversity brought about by the colonies open
gates encouraged religious freedom and non-establishment in several
ways. First, as there were too many dissenting sects to abolish, there was no
alternative but to learn to live together. Secondly, because of the daily
exposure to different religions, the passionate conviction in the exclusive
rightness of ones religion, which impels persecution for the sake of ones
religion, waned. Finally, because of the great diversity of the sects, religious
uniformity was not possible, and without such uniformity, establishment could
[69]
not survive.
But while there was a multiplicity of denomination, paradoxically, there
was a scarcity of adherents. Only about four percent of the entire population
of the country had a church affiliation at the time the republic was
[70]
founded. This might be attributed to the drifting to the American colonies of
[71]
the skepticism that characterized European Enlightenment. Economic
considerations might have also been a factor. The individualism of the
American colonist, manifested in the multiplicity of sects, also resulted in
much unaffiliated religion which treated religion as a personal non-

institutional matter. The prevalence of lack of church affiliation contributed to

religious liberty and disestablishment as persons who were not connected
with any church were not likely to persecute others for similar independence
nor accede to compulsory taxation to support a church to which they did not
[72]
belong.
However, for those who were affiliated to churches, the colonial policy
regarding their worship generally followed the tenor of the English Act of
Toleration of 1689. In England, this Act conferred on Protestant dissenters
the right to hold public services subject to registration of their ministers and
[73]
places of worship. Although the toleration accorded to Protestant
dissenters who qualified under its terms was only a modest advance in
religious freedom, it nevertheless was of some influence to the American
[74]
experiment. Even then, for practical considerations, concessions had to be
made to other dissenting churches to ensure their cooperation in the War of
Independence which thus had a unifying effect on the colonies.
Next, the ideological factors. First, the Great Awakening in midth
18 century, an evangelical religious revival originating in New England,
caused a break with formal church religion and a resistance to coercion by
established churches. This movement emphasized an emotional, personal
religion that appealed directly to the individual, putting emphasis on the rights
and duties of the individual conscience and its answerability exclusively to
God. Thus, although they had no quarrel with orthodox Christian theology as
in fact they were fundamentalists, this group became staunch advocates of
[75]
separation of church and state.
Then there was the Williams-Penn tradition. Roger Williams was the
founder of the colony of Rhode Island where he established a community of
Baptists, Quakers and other nonconformists. In this colony, religious freedom
was not based on practical considerations but on the concept of mutual
independence of religion and government. In 1663, Rhode Island obtained a
charter from the British crown which declared that settlers have it much on
their heart to hold forth a livelie experiment that a most flourishing civil state
[76]
may best be maintained . . . with full libertie in religious concernments. In
Williams pamphlet, The Bloudy Tenent of Persecution for cause of
[77]
Conscience, discussed in a Conference between Truth and Peace, he
articulated the philosophical basis for his argument of religious liberty. To
him, religious freedom and separation of church and state did not constitute
two but only one principle.Religious persecution is wrong because it
confounds the Civil and Religious and because States . . . are proved
essentially Civil. The power of true discerning the true fear of God is not one
of the powers that the people have transferred to Civil
[78]
Authority. Williams Bloudy Tenet is considered an epochal milestone in the
[79]
history of religious freedom and the separation of church and state.
William Penn, proprietor of the land that became Pennsylvania, was
also an ardent advocate of toleration, having been imprisoned for his

religious convictions as a member of the despised Quakers. He opposed

coercion in matters of conscience because imposition, restraint and
persecution for conscience sake, highly invade the Divine prerogative. Aside
from his idealism, proprietary interests made toleration in Pennsylvania
necessary. He attracted large numbers of settlers by promising religious
toleration, thus bringing in immigrants both from the Continent and Britain. At
the end of the colonial period, Pennsylvania had the greatest variety of
religious groups. Penn was responsible in large part for the Concessions and
agreements of the Proprietors, Freeholders, and inhabitants of West Jersey,
in America, a monumental document in the history of civil liberty which
[80]
provided among others, for liberty of conscience. The Baptist followers of
Williams and the Quakers who came after Penn continued the tradition
started by the leaders of their denominations. Aside from the Baptists and the
Quakers, the Presbyterians likewise greatly contributed to the evolution of
[81]
separation and freedom. The Constitutional fathers who convened in
Philadelphia in 1787, and Congress and the states that adopted the First
Amendment in 1791 were very familiar with and strongly influenced by the
[82]
successful examples of Rhode Island and Pennsylvania.
Undeniably, John Locke and the social contract theory also
contributed to the American experiment. The social contract theory
popularized by Locke was so widely accepted as to be deemed self-evident
truth in Americas Declaration of Independence. With the doctrine of natural
rights and equality set forth in the Declaration of Independence, there was no
room for religious discrimination. It was difficult to justify inequality in religious
treatment by a new nation that severed its political bonds with the English
[83]
crown which violated the self-evident truth that all men are created equal.
The social contract theory was applied by many religious groups in
arguing against establishment, putting emphasis on religion as a natural right
that is entirely personal and not within the scope of the powers of a political
body. That Locke and the social contract theory were influential in the
development of religious freedom and separation is evident from the
memorial presented by the Baptists to the Continental Congress in 1774, viz:
Men unite in society, according to the great Mr. Locke, with an intention in
every one the better to preserve himself, his liberty and property. The power
of the society, or Legislature constituted by them, can never be supposed to
extend any further than the common good, but is obliged to secure every
ones property. To give laws, to receive obedience, to compel with the sword,
belong to none but the civil magistrate; and on this ground we affirm that the
magistrates power extends not to establishing any articles of faith or forms of
worship, by force of laws; for laws are of no force without penalties. The care
of souls cannot belong to the civil magistrate, because his power
consists only in outward force; but pure and saving religion consists in
the inward persuasion of the mind, without which nothing can be
[84]
acceptable to God. (emphasis supplied)

The idea that religion was outside the jurisdiction of civil government was
acceptable to both the religionist and rationalist. To the religionist, God or
Christ did not desire that government have that jurisdiction (render unto
Caesar that which is Caesars; my kingdom is not of this world) and to the
rationalist, the power to act in the realm of religion was not one of the powers
[85]
conferred on government as part of the social contract.
Not only the social contract theory drifted to the colonies from
Europe. Many of the leaders of the Revolutionary and post-revolutionary
[86]
period were also influenced by European deism and rationalism, in
general, and some were apathetic if not antagonistic to formal religious
worship and institutionalized religion. Jefferson, Paine, John Adams,
Washington, Franklin, Madison, among others were reckoned to be among
the Unitarians or Deists. Unitarianism and Deism contributed to the
emphasis on secular interests and the relegation of historic theology to the
[87]
background. For these men of the enlightenment, religion should be
allowed to rise and fall on its own, and the state must be protected from the
clutches of the church whose entanglements has caused intolerance and
[88]
corruption as witnessed throughout history. Not only the leaders but also
the masses embraced rationalism at the end of the eighteenth century,
[89]
accounting for the popularity of Paines Age of Reason.
Finally, the events leading to religious freedom and separation in
Virginia contributed significantly to the American experiment of the First
Amendment. Virginia was the first state in the history of the world to
proclaim the decree of absolute divorce between church and
[90]
state. Many factors contributed to this, among which were that half to twothirds of the population were organized dissenting sects, the Great
Awakening had won many converts, the established Anglican Church of
Virginia found themselves on the losing side of the Revolution and had
alienated many influential laymen with its identification with the Crowns
tyranny, and above all, present in Virginia was a group of political leaders
[91]
who were devoted to liberty generally, who had accepted the social
contract as self-evident, and who had been greatly influenced by Deism and
Unitarianism. Among these leaders were Washington, Patrick Henry,
George Mason, James Madison and above the rest, Thomas Jefferson.
The first major step towards separation in Virginia was the adoption of
the following provision in the Bill of Rights of the states first constitution:
That religion, or the duty which we owe to our Creator, and the manner of
discharging it, can be directed only by reason and conviction, not by
force or violence; and therefore, all men are equally entitled to the free
exercise of religion according to the dictates of conscience; and that it is
the mutual duty of all to practice Christian forbearance, love, and charity
[92]
towards each other. (emphasis supplied)

The adoption of the Bill of Rights signified the beginning of the end of
establishment. Baptists, Presbyterians and Lutherans flooded the first
legislative assembly with petitions for abolition of establishment. While the
majority of the population were dissenters, a majority of the legislature were
churchmen. The legislature compromised and enacted a bill in 1776
abolishing the more oppressive features of establishment and granting
exemptions to the dissenters, but not guaranteeing separation. It repealed
the laws punishing heresy and absence from worship and requiring the
[93]
dissenters to contribute to the support of the establishment. But the
dissenters were not satisfied; they not only wanted abolition of support for the
establishment, they opposed the compulsory support of their own religion as
others. As members of the established church would not allow that only they
would pay taxes while the rest did not, the legislature enacted in 1779 a bill
making permanent the establishments loss of its exclusive status and its
power to tax its members; but those who voted for it did so in the hope that a
general assessment bill would be passed. Without the latter, the
establishment would not survive. Thus, a bill was introduced in 1779
requiring every person to enroll his name with the county clerk and indicate
which society for the purpose of Religious Worship he wished to support. On
the basis of this list, collections were to be made by the sheriff and turned
over to the clergymen and teachers designated by the religious
congregation. The assessment of any person who failed to enroll in any
[94]
society was to be divided proportionately among the societies. The bill
evoked strong opposition.
In 1784, another bill, entitled Bill Establishing a Provision for Teachers
of the Christian Religion was introduced requiring all persons to pay a
moderate tax or contribution annually for the support of the Christian religion,
or of some Christian church, denomination or communion of Christians, or for
[95]
some form of Christian worship. This likewise aroused the same
opposition to the 1779 bill. The most telling blow against the 1784 bill was the
monumental Memorial and Remonstrance against Religious Assessments
written by Madison and widely distributed before the reconvening of
[96]
legislature in the fall of 1785. It stressed natural rights, the
governments lack of jurisdiction over the domain of religion, and the
social contract as the ideological basis of separation while also citing
practical considerations such as loss of population through migration. He
wrote, viz:
Because we hold it for a fundamental and undeniable truth, that
religion, or the duty which we owe to our creator, and the manner of
discharging it, can be directed only by reason and conviction, not by force or
violence. The religion, then, of every man, must be left to the conviction
and conscience of every man; and it is the right of every man to
exercise it as these may dictate. This right is, in its nature, an
unalienable right. It is unalienable, because the opinions of men, depending
only on the evidence contemplated in their own minds, cannot follow the

dictates of other men; it is unalienable, also, because what is here a right

towards men, is a duty towards the creator. It is the duty of every man to
render the creator such homage, and such only as he believes to be
acceptable to him; this duty is precedent, both in order of time and
degree of obligation, to the claims of civil society. Before any man can
be considered as a member of civil society, he must be considered as a
subject of the governor of the universe; and if a member of civil society,
who enters into any subordinate association, must always do it with a
reservation of his duty to the general authority, much more must every man
who becomes a member of any particular civil society do it with the saving
[97]
his allegiance to the universal sovereign. (emphases supplied)
Madison articulated in the Memorial the widely held beliefs in 1785 as
indicated by the great number of signatures appended to the Memorial. The
assessment bill was speedily defeated.
Taking advantage of the situation, Madison called up a much earlier
1779 bill of Jefferson which had not been voted on, the Bill for Establishing
Religious Freedom, and it was finally passed in January 1786. It
provided, viz:
Well aware that Almighty God hath created the mind free; that all
attempts to influence it by temporal punishments or burdens, or by civil
incapacitations, tend not only to beget habits of hypocrisy and meanness,
and are a departure from the plan of the Holy Author of our religion, who
being Lord both of body and mind, yet chose not to propagate it by coercions
on either, as was in his Almighty power to do;
xxx xxx xxx
Be it therefore enacted by the General Assembly. That no man shall be
compelled to frequent or support any religious worship, place or ministry
whatsoever, nor shall be enforced, restrained, molested or burdened in his
body or goods, nor shall otherwise suffer on account of his religious opinions
or beliefs, but that all men shall be free to profess, and by argument to
maintain, their opinions in matters of religion, and that the same shall in
[98]
no wise diminish, enlarge or affect their civil capacities. (emphases
supplied)
This statute forbade any kind of taxation in support of religion and effectually
[99]
ended any thought of a general or particular establishment in Virginia. But
the passage of this law was obtained not only because of the influence of the
great leaders in Virginia but also because of substantial popular support
coming mainly from the two great dissenting sects, namely the Presbyterians
and the Baptists. The former were never established in Virginia and an
underprivileged minority of the population. This made them anxious to pull

down the existing state church as they realized that it was impossible for
them to be elevated to that privileged position. Apart from these expediential
considerations, however, many of the Presbyterians were sincere advocates
[100]
of separation
grounded on rational, secular arguments and to the
[101]
language of natural religion.
Influenced by Roger Williams, the Baptists,
on the other hand, assumed that religion was essentially a matter of concern
of the individual and his God, i.e., subjective, spiritual and supernatural,
[102]
having no relation with the social order.
To them, the Holy Ghost was
sufficient to maintain and direct the Church without governmental assistance
[103]
and state-supported religion was contrary ti the spirit of the Gospel.
Thus,
[104]
separation was necessary.
Jeffersons religious freedom statute was
a milestone in the history of religious freedom. The United States Supreme
Court has not just once acknowledged that the provisions of the First
Amendment of the U.S. Constitution had the same objectives and
intended to afford the same protection against government interference
with religious liberty as the Virginia Statute of Religious Liberty.
Even in the absence of the religion clauses, the principle that
government had no power to legislate in the area of religion by restricting its
free exercise or establishing it was implicit in the Constitution of 1787. This
could be deduced from the prohibition of any religious test for federal office in
Article VI of the Constitution and the assumed lack of power of Congress to
[105]
act on any subject not expressly mentioned in the Constitution.
However,
omission of an express guaranty of religious freedom and other natural rights
[106]
nearly prevented the ratification of the Constitution.
In the ratifying
conventions of almost every state, some objection was expressed to the
absence of a restriction on the Federal Government as regards legislation on
[107]
religion.
Thus, in 1791, this restriction was made explicit with the adoption
of the religion clauses in the First Amendment as they are worded to this day,
with the first part usually referred to as the Establishment Clause and the
second part, the Free Exercise Clause, viz:
Congress shall make no law respecting an establishment of religion or
prohibiting the free exercise thereof.

VI. Religion Clauses in the United States:

Concept, Jurisprudence, Standards
With the widespread agreement regarding the value of the First
Amendment religion clauses comes an equally broad disagreement as to
what these clauses specifically require, permit and forbid. No agreement has
been reached by those who have studied the religion clauses as regards its
exact meaning and the paucity of records in Congress renders it difficult to
[108]
ascertain its meaning.
Consequently, the jurisprudence in this area is

volatile and fraught with inconsistencies whether within a Court

decision or across decisions.
One source of difficulty is the difference in the context in which the
First Amendment was adopted and in which it is applied today. In the 1780s,
religion played a primary role in social life - i.e., family responsibilities,
education, health care, poor relief, and other aspects of social life with
significant moral dimension - while government played a supportive and
indirect role by maintaining conditions in which these activities may be
carried out by religious or religiously-motivated associations. Today,
government plays this primary role and religion plays the supportive
[109]
role.
Government runs even family planning, sex education, adoption and
[110]
foster care programs.
Stated otherwise and with some exaggeration,
(w)hereas two centuries ago, in matters of social life which have a significant
moral dimension, government was the handmaid of religion, today religion, in
its social responsibilities, as contrasted with personal faith and collective
[111]
worship, is the handmaid of government.
With government regulation of
individual conduct having become more pervasive, inevitably some of those
regulations would reach conduct that for some individuals are religious. As a
result, increasingly, there may be inadvertent collisions between purely
[112]
secular government actions and religion clause values.
Parallel to this expansion of government has been the expansion of
religious organizations in population, physical institutions, types of activities
undertaken, and sheer variety of denominations, sects and cults. Churches
run day-care centers, retirement homes, hospitals, schools at all levels,
research centers, settlement houses, halfway houses for prisoners, sports
facilities, theme parks, publishing houses and mass media programs. In
these activities, religious organizations complement and compete with
commercial enterprises, thus blurring the line between many types of
activities undertaken by religious groups and secular activities. Churches
have also concerned themselves with social and political issues as a
necessary outgrowth of religious faith as witnessed in pastoral letters on war
and peace, economic justice, and human life, or in ringing affirmations for
racial equality on religious foundations. Inevitably, these developments have
brought about substantial entanglement of religion and government.
Likewise, the growth in population density, mobility and diversity has
significantly changed the environment in which religious organizations and
activities exist and the laws affecting them are made. It is no longer easy for
individuals to live solely among their own kind or to shelter their children from
exposure to competing values. The result is disagreement over what laws
[113]
should require, permit or prohibit;
and agreement that if the rights of
believers as well as non-believers are all to be respected and given their just
due, a rigid, wooden interpretation of the religion clauses that is blind to
[114]
societal and political realities must be avoided.
Religion cases arise from different circumstances. The more obvious
ones arise from a government action which purposely aids or inhibits religion.

These cases are easier to resolve as, in general, these actions are plainly
unconstitutional. Still, this kind of cases poses difficulty in ascertaining proof
[115]
of intent to aid or inhibit religion.
The more difficult religion clause cases
involve government action with a secular purpose and general applicability
which incidentally or inadvertently aids or burdens religious exercise. In Free
Exercise Clause cases, these government actions are referred to as those
with burdensome effect on religious exercise even if the government action is
[116]
not religiously motivated.
Ideally, the legislature would recognize the
religions and their practices and would consider them, when practical, in
enacting laws of general application. But when the legislature fails to do so,
religions that are threatened and burdened turn to the courts for
[117]
protection.
Most of these free exercise claims brought to the Court are for
exemption, not invalidation of the facially neutral law that has a burdensome
[118]
effect.
With the change in political and social context and the increasing
inadvertent collisions between law and religious exercise, the definition of
religion for purposes of interpreting the religion clauses has also
been modified to suit current realities. Defining religion is a difficult task
for even theologians, philosophers and moralists cannot agree on a
comprehensive definition. Nevertheless, courts must define religion for
[119]
constitutional and other legal purposes.
It was in the 1890 case of Davis
[120]
v. Beason
that the United States Supreme Courtfirst had occasion to
define religion, viz:
The term religion has reference to ones views of his relations to his
Creator, and to the obligations they impose of reverence for his being
and character, and of obedience to his will. It is often confounded with
the cultus or form of worship of a particular sect, but is distinguishable from
the latter. The First Amendment to the Constitution, in declaring that
Congress shall make no law respecting the establishment of religion, or
forbidding the free exercise thereof, was intended to allow everyone under
the jurisdiction of the United States to entertain such notions respecting his
relations to his Maker and the duties they impose as may be approved by his
judgment and conscience, and to exhibit his sentiments in such form of
worship as he may think proper, not injurious to the equal rights of others,
and to prohibit legislation for the support of any religious tenets, or the modes
[121]
of worship of any sect.
The definition was clearly theistic which was reflective of the popular
attitudes in 1890.
[122]

In 1944, the Court stated in United States v. Ballard

that the free
exercise of religion embraces the right to maintain theories of life and of
death and of the hereafter which are rank heresy to followers of the
[123]
orthodox faiths.
By the 1960s, American pluralism in religion had
flourished to include non-theistic creeds from Asia such as Buddhism and

[124]

[125]

Taoism.
In 1961, the Court, in Torcaso v. Watkins,
expanded the
term religion to non-theistic beliefs such as Buddhism, Taoism, Ethical
Culture, and Secular Humanism. Four years later, the Court faced a
[126]
definitional problem in United States v. Seeger
which involved four men
who claimed conscientious objector status in refusing to serve in the Vietnam
War. One of the four, Seeger, was not a member of any organized religion
opposed to war, but when specifically asked about his belief in a Supreme
Being, Seeger stated that you could call (it) a belief in a Supreme Being or
God. These just do not happen to be the words that I use. Forest Peter,
another one of the four claimed that after considerable meditation and
reflection on values derived from the Western religious and philosophical
tradition, he determined that it would be a violation of his moral code to take
human life and that he considered this belief superior to any obligation to the
state. The Court avoided a constitutional question by broadly interpreting not
the Free Exercise Clause, but the statutory definition of religion in the
Universal Military Training and Service Act of 1940 which exempt from
combat anyone who, by reason of religious training and belief, is
conscientiously opposed to participation in war in any form. Speaking for the
Court, Justice Clark ruled, viz:
Congress, in using the expression Supreme Being rather than the
designation God, was merely clarifying the meaning of religious tradition and
belief so as to embrace all religions and to exclude essentially political,
sociological, or philosophical views (and) the test of belief in relation to a
Supreme Being is whether a given belief that is sincere and meaningful
occupies a place in the life of its possessor parallel to the orthodox
belief in God. (emphasis supplied)
The Court was convinced that Seeger, Peter and the others were
conscientious objectors possessed of such religious belief and training.
Federal and state courts have expanded the definition of
religion in Seeger to include even non-theistic beliefs such as Taoism or
Zen Buddhism. It has been proposed that basically, a creed must meet four
criteria to qualify as religion under the First Amendment. First, there must be
belief in God or some parallel belief that occupies a central place in the
believers life. Second, the religion must involve a moral code transcending
individual belief, i.e., it cannot be purely subjective. Third, a demonstrable
sincerity in belief is necessary, but the court must not inquire into the truth or
[127]
reasonableness of the belief.
Fourth, there must be some associational
[128]
ties,
although there is also a view that religious beliefs held by a single
person rather than being part of the teachings of any kind of group or sect
[129]
are entitled to the protection of the Free Exercise Clause.
Defining religion is only the beginning of the difficult task of deciding
religion clause cases. Having hurdled the issue of definition, the court
then has to draw lines to determine what is or is not permissible under

the religion clauses. In this task, the purpose of the clauses is the
yardstick. Their purpose is singular; they are two sides of the same
[130]
coin.
In devoting two clauses to religion, the Founders were stating not
two opposing thoughts that would cancel each other out, but two
complementary thoughts that apply in different ways in different
[131]
circumstances.
The purpose of the religion clauses - both in the
restriction it imposes on the power of the government to interfere with the
free exercise of religion and the limitation on the power of government to
establish, aid, and support religion - is the protection and promotion of
[132]
religious liberty.
The end, the goal, and the rationale of the religion
[133]
clauses is this liberty.
Both clauses were adopted to prevent government
imposition of religious orthodoxy; the great evil against which they are
[134]
directed is government-induced homogeneity.
The Free Exercise
Clause directly articulates the common objective of the two clauses and
the Establishment Clause specifically addresses a form of interference with
religious liberty with which the Framers were most familiar and for which
[135]
government historically had demonstrated a propensity.
In other words,
free exercise is the end, proscribing establishment is a necessary means to
this end to protect the rights of those who might dissent from whatever
[136]
religion is established.
It has even been suggested that the sense of the
First Amendment is captured if it were to read as Congress shall make no
law respecting an establishment of religion or otherwise prohibiting the free
exercise thereof because the fundamental and single purpose of the two
religious clauses is to avoid any infringement on the free exercise of
[137]
religions
Thus, the Establishment Clause mandates separation of church
and state to protect each from the other, in service of the larger goal of
preserving religious liberty. The effect of the separation is to limit the
opportunities for any religious group to capture the state apparatus to the
[138]
disadvantage of those of other faiths, or of no faith at all
because history
has shown that religious fervor conjoined with state power is likely to tolerate
far less religious disagreement and disobedience from those who hold
[139]
different beliefs than an enlightened secular state.
In the words of the
U.S. Supreme Court, the two clauses are interrelated, viz: (t)he structure of
our government has, for the preservation of civil liberty, rescued the temporal
institutions from religious interference. On the other hand, it has secured
[140]
religious liberty from the invasion of the civil authority.
In upholding religious liberty as the end goal in religious clause
cases, the line the court draws to ensure that government does not
establish and instead remains neutral toward religion is not absolutely
straight. Chief Justice Burger explains, viz:
The course of constitutional neutrality in this area cannot be an absolutely
straight line; rigidity could well defeat the basic purpose of these provisions,
which is to insure that no religion be sponsored or favored, none commanded
[141]
and none inhibited.
(emphasis supplied)

Consequently, U.S. jurisprudence has produced two identifiably

[142]
different,
even opposing, strains of jurisprudence on the religion
clauses: separation (in the form of strict separation or the tamer version
of
strict
neutrality
or
separation) and benevolent
neutrality or accommodation. A view of the landscape of U.S. religion
clause cases would be useful in understanding these two strains, the scope
of protection of each clause, and the tests used in religious clause
cases. Most of these cases are cited as authorities in Philippine religion
clause cases.

A. Free Exercise Clause

The Court first interpreted the Free Exercise Clause in the 1878 case
[143]
of Reynolds v. United States.
This landmark case involved Reynolds, a
Mormon who proved that it was his religious duty to have several wives and
that the failure to practice polygamy by male members of his religion when
circumstances would permit would be punished with damnation in the life to
come. Reynolds act of contracting a second marriage violated Section 5352,
Revised Statutes prohibiting and penalizing bigamy, for which he was
convicted. The Court affirmed Reynolds conviction, using what in
jurisprudence would be called the belief-action test which allows absolute
protection to belief but not to action. It cited Jeffersons Bill Establishing
Religious Freedom which, according to the Court, declares the true
distinction between what properly belongs to the Church and what to the
[144]
State.
The bill, making a distinction between belief and action, states in
relevant part, viz:
That to suffer the civil magistrate to intrude his powers into the field of
opinion, and to restrain the profession or propagation of principles on
supposition of their ill tendency, is a dangerous fallacy which at once
destroys all religious liberty;
that it is time enough for the rightful purposes of civil government for its
officers to interfere when principles break out into overt acts against
[145]
peace and good order.
(emphasis supplied)
The Court then held, viz:
Congress was deprived of all legislative power over mere opinion, but
was left free to reach actions which were in violation of social duties or
subversive of good order. . .

Laws are made for the government of actions, and while they cannot
interfere with mere religious belief and opinions, they may with
practices. Suppose one believed that human sacrifice were a necessary part
of religious worship, would it be seriously contended that the civil government
under which he lived could not interfere to prevent a sacrifice? Or if a wife
religiously believed it was her duty to burn herself upon the funeral pile of her
dead husband, would it be beyond the power of the civil government to
prevent her carrying her belief into practice?
So here, as a law of the organization of society under the exclusive dominion
of the United States, it is provided that plural marriages shall not be
allowed. Can a man excuse his practices to the contrary because of his
religious belief? To permit this would be to make the professed doctrines of
religious belief superior to the law of the land, and in effect to permit every
citizen to become a law unto himself.Government could exist only in name
[146]
under such circumstances.
The construct was thus simple: the state was absolutely prohibited by the
Free Exercise Clause from regulating individual religious beliefs, but placed
no restriction on the ability of the state to regulate religiously motivated
conduct. It was logical for belief to be accorded absolute protection because
any statute designed to prohibit a particular religious belief unaccompanied
by any conduct would most certainly be motivated only by the legislatures
preference of a competing religious belief. Thus, all cases of regulation of
belief would amount to regulation of religion for religious reasons violative of
the Free Exercise Clause. On the other hand, most state regulations of
conduct are for public welfare purposes and have nothing to do with the
legislatures religious preferences. Any burden on religion that results from
state regulation of conduct arises only when particular individuals are
engaging in the generally regulated conduct because of their particular
religious beliefs. These burdens are thus usually inadvertent and did not
figure in the belief-action test. As long as the Court found that regulation
address action rather than belief, the Free Exercise Clause did not pose any
[147]
problem.
The Free Exercise Clause thus gave no protection against the
proscription of actions even if considered central to a religion unless the
[148]
legislature formally outlawed the belief itself.
This belief-action distinction was held by the Court for some years as
shown by cases where the Court upheld other laws which burdened the
practice of the Mormon religion by imposing various penalties on polygamy
such as the Davis case and Church of Latter Day Saints v. United
[149]
States.
However, more than a century since Reynolds was decided, the
Court has expanded the scope of protection from belief to speech and
conduct. But while the belief-action test has been abandoned, the rulings in
the earlier Free Exercise cases have gone unchallenged. The belief-action

distinction is still of some importance though as there remains an absolute

[150]
prohibition of governmental proscription of beliefs.
The Free Exercise Clause accords absolute protection to individual
[151]
religious convictions and beliefs
and proscribes government from
questioning a persons beliefs or imposing penalties or disabilities based
solely on those beliefs. The Clause extends protection to both beliefs and
[152]
unbelief. Thus, in Torcaso v. Watkins,
a unanimous Court struck down
a state law requiring as a qualification for public office an oath declaring
belief in the existence of God. The protection also allows courts to look into
the good faith of a person in his belief, but prohibits inquiry into the truth of
a
persons
religious
beliefs. As
held
in United
States
v.
[153]
Ballard,
(h)eresy trials are foreign to the Constitution. Men may believe
what they cannot prove. They may not be put to the proof of their religious
doctrines or beliefs.
Next to belief which enjoys virtually absolute protection, religious
speech and expressive religious conduct are accorded the highest
degree of protection. Thus, in the 1940 case of Cantwell v.
[154]
Connecticut,
the Court struck down a state law prohibiting door-to-door
solicitation for any religious or charitable cause without prior approval of a
state agency.The law was challenged by Cantwell, a member of the
Jehovahs Witnesses which is committed to active proselytizing. The Court
invalidated the state statute as the prior approval necessary was held to be a
censorship of religion prohibited by the Free Exercise Clause. The Court
held, viz:
In the realm of religious faith, and in that of political belief, sharp differences
arise. In both fields the tenets of one may seem the rankest error to his
neighbor. To persuade others to his point of view, the pleader, as we know,
resorts to exaggeration, to vilification of men who have been, or are,
prominent in church or state, and even to false statement. But the people of
this nation have ordained in the light of history, that, in spite of the probability
of excesses and abuses, these liberties are, in the long view, essential to
enlightened opinion and right conduct on the part of citizens of a
[155]
democracy.
Cantwell took a step forward from the protection afforded by
the Reynolds case in that it not only affirmed protection of belief but also
freedom to act for the propagation of that belief, viz:
Thus the Amendment embraces two concepts - freedom to believe and
freedom to act. The first is absolute but, in the nature of things, the second
cannot be. Conduct remains subject to regulation for the protection of
society. . . In every case, the power to regulate must be so exercised as
not, in attaining a permissible end, unduly to infringe the protected
[156]
freedom. (emphasis supplied)

The Court stated, however, that government had the power to regulate the
times, places, and manner of solicitation on the streets and assure the peace
and safety of the community.
Three years after Cantwell, the Court in Douglas v. City of
[157]
Jeanette,
ruled that police could not prohibit members of the Jehovahs
Witnesses from peaceably and orderly proselytizing on Sundays merely
because other citizens complained. In another case likewise involving the
[158]
Jehovahs Witnesses, Niemotko v. Maryland,
the Court unanimously
held unconstitutional a city councils denial of a permit to the Jehovahs
Witnesses to use the city park for a public meeting. The city councils refusal
was because of the unsatisfactory answers of the Jehovahs Witnesses to
questions about Catholicism, military service, and other issues. The denial of
the public forum was considered blatant censorship. While protected,
religious speech in the public forum is still subject to reasonable time, place
and manner regulations similar to non-religious speech. Religious
proselytizing in congested areas, for example, may be limited to certain
areas to maintain the safe and orderly flow of pedestrians and vehicular
traffic as held in the case of Heffron v. International Society for Krishna
[159]
Consciousness.
The least protected under the Free Exercise Clause is religious
conduct, usually in the form of unconventional religious
practices. Protection in this realm depends on the character of the action
[160]
and the government rationale for regulating the action.
The Mormons
religious conduct of polygamy is an example of unconventional religious
practice. As discussed in the Reynolds case above, the Court did not afford
protection to the practice. Reynolds was reiterated in the 1890 case
of Davis again involving Mormons, where the Court held, viz: (c)rime is not
the less odious because sanctioned by what any particular sect may
[161]
designate as religion.
The belief-action
test in Reynolds and Davis proved
unsatisfactory. Under this test, regulation of religiously dictated conduct
would be upheld no matter how central the conduct was to the exercise of
religion and no matter how insignificant was the governments non-religious
regulatory interest so long as the government is proscribing action and not
belief. Thus, the Court abandoned the simplistic belief-action distinction and
instead recognized the deliberate-inadvertent distinction, i.e., the
distinction between deliberate state interference of religious exercise for
religious reasons which was plainly unconstitutional and governments
inadvertent interference with religion in pursuing some secular
[162]
objective.
In the 1940 case ofMinersville School District v.
[163]
Gobitis,
the Court upheld a local school board requirement that all public
school students participate in a daily flag salute program, including the
Jehovahs Witnesses who were forced to salute the American flag in violation
of their religious training, which considered flag salute to be worship of a
graven image. The Court recognized that the general requirement of

compulsory flag salute inadvertently burdened the Jehovah Witnesses

practice of their religion, but justified the government regulation as an
appropriate means of attaining national unity, which was the basis of national
security. Thus, although the Court was already aware of the deliberateinadvertent distinction in government interference with religion, it continued to
hold that the Free Exercise Clause presented no problem to interference with
religion that was inadvertent no matter how serious the interference, no
matter how trivial the states non-religious objectives, and no matter how
many alternative approaches were available to the state to pursue its
objectives with less impact on religion, so long as government was acting in
pursuit of a secular objective.
Three years later, the Gobitis decision was overturned in West
[164]
Virginia v. Barnette
which involved a similar set of facts and issue. The
Court recognized that saluting the flag, in connection with the pledges, was a
form of utterance and the flag salute program was a compulsion of students
to declare a belief. The Court ruled that compulsory unification of opinions
leads only to the unanimity of the graveyard and exempt the students who
were members of the Jehovahs Witnesses from saluting the flag. A close
scrutiny of the case, however, would show that it was decided not on the
issue of religious conduct as the Court said, (n)or does the issue as we see it
turn on ones possession of particular religious views or the sincerity with
which they are held. While religion supplies appellees motive for enduring the
discomforts of making the issue in this case, many citizens who do not share
these religious views hold such a compulsory rite to infringe constitutional
[165]
liberty of the individual. (emphasis supplied)
The Court pronounced,
however, that, freedoms of speech and of press, of assembly, and of worship
. . . are susceptible only of restriction only to prevent grave and immediate
[166]
danger to interests which the state may lawfully protect.
The Court
seemed
to
recognize
the
extent
to
which
its
approach
in Gobitis subordinated the religious liberty of political minorities - a specially
protected constitutional value - to the common everyday economic and public
welfare objectives of the majority in the legislature. This time, even
inadvertent interference with religion must pass judicial scrutiny under the
Free Exercise Clause with only grave and immediate danger sufficing to
override religious liberty. But the seeds of this heightened scrutiny would only
[167]
grow to a full flower in the 1960s.
Nearly a century after Reynolds employed the belief-action test, the
[168]
Warren Court began the modern free exercise jurisprudence.
A two[169]
part balancing test was established inBraunfeld v. Brown
where the
Court considered the constitutionality of applying Sunday closing laws to
Orthodox Jews whose beliefs required them to observe another day as the
Sabbath and abstain from commercial activity on Saturday. Chief Justice
Warren, writing for the Court, found that the law placed a severe burden on
Sabattarian retailers. He noted, however, that since the burden was the
indirect effect of a law with a secular purpose, it would violate the Free

Exercise Clause only if there were alternative ways of achieving the

states interest. He employed a two-part balancing test of validity where
the first step was for plaintiff to show that the regulation placed a real burden
on his religious exercise. Next, the burden would be upheld only if the state
showed that it was pursuing an overriding secular goal by the means which
[170]
imposed the least burden on religious practices.
The Court found that the
state had an overriding secular interest in setting aside a single day for rest,
recreation and tranquility and there was no alternative means of pursuing this
interest but to require Sunday as a uniform rest day.
Two years after came the stricter compelling state interest test in the
[171]
1963 case of Sherbert v. Verner.
This test was similar to the two-part
[172]
balancing test in Braunfeld,
but this latter test stressed that the state
interest was not merely any colorable state interest, but must be
paramount and compelling to override the free exercise claim. In this
case, Sherbert, a Seventh Day Adventist, claimed unemployment
compensation under the law as her employment was terminated for refusal to
work on Saturdays on religious grounds. Her claim was denied. She sought
recourse in the Supreme Court. In laying down the standard for determining
whether the denial of benefits could withstand constitutional scrutiny, the
Court ruled,viz:
Plainly enough, appellees conscientious objection to Saturday work
constitutes no conduct prompted by religious principles of a kind within the
reach of state legislation. If, therefore, the decision of the South Carolina
Supreme Court is to withstand appellants constitutional challenge, it must
be either because her disqualification as a beneficiary represents no
infringement by the State of her constitutional rights of free exercise, or
because any incidental burden on the free exercise of appellants
religion may be justified by a compelling state interest in the regulation
of a subject within the States constitutional power to regulate. .
. NAACP v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct
[173]
328.
(emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that it
is not sufficient to merely show a rational relationship of the substantial
infringement to the religious right and a colorable state interest. (I)n this
highly sensitive constitutional area, [o]nly the gravest abuses, endangering
paramount interests, give occasion for permissible limitation. Thomas v.
[174]
Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct 315.
The Court
found that there was no such compelling state interest to override Sherberts
religious liberty. It added that even if the state could show that Sherberts
exemption would pose serious detrimental effects to the unemployment
compensation fund and scheduling of work, it was incumbent upon the state
to show that no alternative means of regulations would address such
detrimental effects without infringing religious liberty. The state, however, did

not discharge this burden. The Court thus carved out for Sherbert an
exemption from the Saturday work requirement that caused her
disqualification from claiming the unemployment benefits. The Court
reasoned that upholding the denial of Sherberts benefits would force her to
choose between receiving benefits and following her religion. This choice
placed the same kind of burden upon the free exercise of religion as would a
fine imposed against (her) for her Saturday worship. This germinal case
[175]
of Sherbert firmly established the exemption doctrine,
viz:
It is certain that not every conscience can be accommodated by all the laws
of the land; but when general laws conflict with scruples of conscience,
exemptions ought to be granted unless some compelling state interest
intervenes.
Thus, in a short period of twenty-three years from Gobitis to Sherbert (or
even as early as Braunfeld), the Court moved from the doctrine that
inadvertent or incidental interferences with religion raise no problem under
the Free Exercise Clause to the doctrine that such interferences violate the
Free Exercise Clause in the absence of a compelling state interest - the
highest level of constitutional scrutiny short of a holding of a per
se violation. Thus, the problem posed by the belief-action test and
[176]
the deliberate-inadvertent distinction was addressed.
Throughout the 1970s and 1980s under the Warren, and afterwards, the
Burger Court, the rationale in Sherbert continued to be applied. In Thomas
[177]
v.
Review
Board
and Hobbie
v.
Unemployment
Appeals
[178]
Division,
for example, the Court reiterated the exemption doctrine and
held that in the absence of a compelling justification, a state could not
withhold unemployment compensation from an employee who resigned or
was discharged due to unwillingness to depart from religious practices and
beliefs that conflicted with job requirements.But not every governmental
refusal to allow an exemption from a regulation which burdens a sincerely
held religious belief has been invalidated, even though strict or heightened
[179]
scrutiny is applied. In United States v. Lee,
for instance, the Court using
strict scrutiny and referring to Thomas, upheld the federal governments
refusal to exempt Amish employers who requested for exemption from
paying social security taxes on wages on the ground of religious beliefs. The
Court held that (b)ecause the broad public interest in maintaining a sound tax
system is of such a high order, religious belief in conflict with the payment of
[180]
taxes affords no basis for resisting the tax.
It reasoned that unlike
in Sherbert, an exemption would significantly impair governments
achievement of its objective - the fiscal vitality of the social security system;
mandatory participation is indispensable to attain this objective. The Court
noted that if an exemption were made, it would be hard to justify not allowing
a similar exemption from general federal taxes where the taxpayer argues
that his religious beliefs require him to reduce or eliminate his payments so

that he will not contribute to the governments war-related activities, for

example.
The strict scrutiny and compelling state interest test significantly
increased the degree of protection afforded to religiously motivated
conduct. While not affording absolute immunity to religious activity, a
compelling secular justification was necessary to uphold public policies that
collided with religious practices. Although the members of the Court often
disagreed over which governmental interests should be considered
compelling, thereby producing dissenting and separate opinions in religious
conduct cases, this general test established a strong presumption in
[181]
favor of the free exercise of religion.
Heightened scrutiny was also used in the 1972 case of Wisconsin v.
[182]
Yoder
where the Court upheld the religious practice of the Old Order
Amish faith over the states compulsory high school attendance law. The
Amish parents in this case did not permit secular education of their children
beyond the eighth grade. Chief Justice Burger, writing for the majority,
held,viz:
It follows that in order for Wisconsin to compel school attendance beyond the
eighth grade against a claim that such attendance interferes with the practice
of a legitimate religious belief, it must appear either that the State does
not deny the free exercise of religious belief by its requirement, or that
there is a state interest of sufficient magnitude to override the interest
claiming protection under the Free Exercise Clause. Long before there
was general acknowledgement of the need for universal education, the
Religion Clauses had specially and firmly fixed the right of free exercise of
religious beliefs, and buttressing this fundamental right was an equally firm,
even if less explicit, prohibition against the establishment of any religion. The
values underlying these two provisions relating to religion have been
zealously protected, sometimes even at the expense of other interests of
admittedly high social importance. . .
The essence of all that has been said and written on the subject is that only
those interests of the highest order and those not otherwise served can
overbalance legitimate claims to the free exercise of religion. . .
. . . our decisions have rejected the idea that that religiously grounded
conduct is always outside the protection of the Free Exercise Clause. It is
true that activities of individuals, even when religiously based, are often
subject to regulation by the States in the exercise of their undoubted power
to promote the health, safety, and general welfare, or the Federal
government in the exercise of its delegated powers . . .But to agree that
religiously grounded conduct must often be subject to the broad police
power of the State is not to deny that there are areas of conduct
protected by the Free Exercise Clause of the First Amendment and thus

beyond the power of the State to control, even under regulations of

general applicability. . . .This case, therefore, does not become easier
because respondents were convicted for their actions in refusing to send
their children to the public high school; in this context belief and action
[183]
cannot be neatly confined in logic-tight compartments. . .

development. . . .To make an individuals obligation to obey such a law

contingent upon the laws coincidence with his religious beliefs except
where the States interest is compelling - permitting him, by virtue of his
beliefs, to become a law unto himself, . . . - contradicts both
constitutional tradition and common sense.

The onset of the 1990s, however, saw a major setback in the

protection afforded by the Free Exercise Clause. In Employment
[184]
Division, Oregon Department of Human Resources v. Smith,
the
sharply divided Rehnquist Court dramatically departed from the heightened
scrutiny and compelling justification approach and imposed serious limits on
the scope of protection of religious freedom afforded by the First
Amendment. In this case, the well-established practice of the Native
American Church, a sect outside the Judeo-Christian mainstream of
American religion, came in conflict with the states interest in prohibiting the
use of illicit drugs. Oregons controlled substances statute made the
possession of peyote a criminal offense. Two members of the church, Smith
and Black, worked as drug rehabilitation counselors for a private social
service agency in Oregon. Along with other church members, Smith and
Black ingested peyote, a hallucinogenic drug, at a sacramental ceremony
practiced by Native Americans for hundreds of years. The social service
agency fired Smith and Black citing their use of peyote as job-related
misconduct. They applied for unemployment compensation, but the Oregon
Employment Appeals Board denied their application as they were discharged
for job-related misconduct. Justice Scalia, writing for the majority, ruled that if
prohibiting the exercise of religion . . . is . . . merely the incidental effect
of a generally applicable and otherwise valid law, the First Amendment
has not been offended. In other words, the Free Exercise Clause would be
offended only if a particular religious practice were singled out for
proscription. The majority opinion relied heavily on the Reynolds case and in
effect, equated Oregons drug prohibition law with the anti-polygamy statute
in Reynolds. The relevant portion of the majority opinion held, viz:

Justice OConnor wrote a concurring opinion pointing out that the

majoritys rejection of the compelling governmental interest test was the most
controversial part of the decision.Although she concurred in the result that
the Free Exercise Clause had not been offended, she sharply criticized the
majority opinion as a dramatic departure from well-settled First Amendment
jurisprudence. . . and . . . (as) incompatible with our Nations fundamental
commitment to religious liberty. This portion of her concurring opinion was
supported by Justices Brennan, Marshall and Blackmun who dissented from
the Courts decision. Justice OConnor asserted that (t)he compelling state
interest test effectuates the First Amendments command that religious
liberty is an independent liberty, that it occupies a preferred position,
and that the Court will not permit encroachments upon this liberty,
whether direct or indirect, unless required by clear and compelling
government interest of the highest order. Justice Blackmun registered a
separate dissenting opinion, joined by Justices Brennan and Marshall. He
charged the majority with mischaracterizing precedents and overturning. . .
settled law concerning the Religion Clauses of our Constitution. He pointed
out that the Native American Church restricted and supervised the
sacramental use of peyote. Thus, the state had no significant health or safety
justification for regulating the sacramental drug use.He also observed that
Oregon had not attempted to prosecute Smith or Black, or any Native
Americans, for that matter, for the sacramental use of peyote. In conclusion,
he said that Oregons interest in enforcing its drug laws against religious use
of peyote (was) not sufficiently compelling to outweigh respondents right to
the free exercise of their religion.

We have never invalidated any governmental action on the basis of

the Sherbert test except the denial of unemployment compensation.
Even if we were inclined to breathe into Sherbert some life beyond the
unemployment compensation field, we would not apply it to require
exemptions from a generally applicable criminal law. . .
We conclude today that the sounder approach, and the approach in
accord with the vast majority of our precedents, is to hold the test
inapplicable to such challenges. The governments ability to enforce
generally applicable prohibitions of socially harmful conduct, like its ability to
carry out other aspects of public policy, cannot depend on measuring the
effects of a governmental action on a religious objectors spiritual

The Court went back to the Reynolds and Gobitis doctrine

in Smith. The Courts standard in Smith virtually eliminated the requirement
that the government justify with a compelling state interest the burdens on
religious exercise imposed by laws neutral toward religion. The Smith
doctrine is highly unsatisfactory in several respects and has been criticized
as
exhibiting
a
shallow
understanding
of
free
exercise
[185]
jurisprudence.
First, the First amendment was intended to protect minority
religions from the tyranny of the religious and political majority. A deliberate
regulatory interference with minority religious freedom is the worst form of
this tyranny. But regulatory interference with a minority religion as a result of
ignorance or sensitivity of the religious and political majority is no less an
interference with the minoritys religious freedom. If the regulation had instead
restricted the majoritys religious practice, the majoritarian legislative process
would in all probability have modified or rejected the regulation. Thus, the
imposition of the political majoritys non-religious objectives at the expense of

the minoritys religious interests implements the majoritys religious viewpoint

at the expense of the minoritys. Second, government impairment of religious
liberty would most often be of the inadvertent kind as in Smith considering
the political culture where direct and deliberate regulatory imposition of
religious orthodoxy is nearly inconceivable. If the Free Exercise Clause could
not afford protection to inadvertent interference, it would be left almost
meaningless. Third, the Reynolds-Gobitis-Smith doctrine simply defies
common sense. The state should not be allowed to interfere with the most
deeply held fundamental religious convictions of an individual in order to
pursue some trivial state economic or bureaucratic objective. This is
especially true when there are alternative approaches for the state to
effectively pursue its objective without serious inadvertent impact on
[186]
religion.
Thus, the Smith decision has been criticized not only for increasing the
power of the state over religion but as discriminating in favor of mainstream
religious groups against smaller, more peripheral groups who lack legislative
[187]
clout,
contrary
to
the
original
theory
of
the
First
[188]
Amendment.
Undeniably, claims for judicial exemption emanate almost
invariably from relatively politically powerless minority religions
[189]
and Smith virtually wiped out their judicial recourse for exemption.
Thus,
the Smith decision elicited much negative public reaction especially from the
religious community, and commentaries insisted that the Court was allowing
[190]
the Free Exercise Clause to disappear.
So much was the uproar that a
majority in Congress was convinced to enact the Religious Freedom
Restoration Act (RFRA) of 1993. The RFRA prohibited government at all
levels from substantially burdening a persons free exercise of religion, even if
such burden resulted from a generally applicable rule, unless the government
could demonstrate a compelling state interest and the rule constituted the
[191]
least restrictive means of furthering that interest.
RFRA, in effect, sought
to overturn the substance of the Smith ruling and restore the status
quo prior to Smith. Three years after the RFRA was enacted, however, the
Court, dividing 6 to 3, declared the RFRA unconstitutional in City of Boerne
[192]
v. Flores.
The Court ruled that RFRA contradicts vital principles
necessary to maintain separation of powers and the federal balance. It
emphasized the primacy of its role as interpreter of the Constitution and
unequivocally rejected, on broad institutional grounds, a direct congressional
challenge of final judicial authority on a question of constitutional
interpretation.
After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of
[193]
Hialeah
which was ruled consistent with the Smith doctrine. This case
involved animal sacrifice of the Santeria, a blend of Roman Catholicism and
West African religions brought to the Carribean by East African slaves. An
ordinance made it a crime to unnecessarily kill, torment, torture, or mutilate
an animal in public or private ritual or ceremony not for the primary purpose
of food consumption. The ordinance came as a response to the local concern

over the sacrificial practices of the Santeria. Justice Kennedy, writing for the
majority, carefully pointed out that the questioned ordinance was not a
generally applicable criminal prohibition, but instead singled out practitioners
of the Santeria in that it forbade animal slaughter only insofar as it took place
within the context of religious rituals.
It may be seen from the foregoing cases that under the Free Exercise
Clause, religious belief is absolutely protected, religious speech and
proselytizing are highly protected but subject to restraints applicable to nonreligious speech, and unconventional religious practice receives less
protection; nevertheless conduct, even if its violates a law, could be accorded
[194]
protection as shown in Wisconsin.

B. Establishment Clause
The Courts first encounter with the Establishment Clause was in the
[195]
1947 case of Everson v. Board of Education.
Prior cases had made
[196]
passing reference to the Establishment Clause
and raised establishment
[197]
questions but were decided on other grounds.
It was in the Everson
case that the U.S. Supreme Court adopted Jeffersons metaphor of a wall of
separation between church and state as encapsulating the meaning of the
Establishment Clause. The often and loosely used phrase separation of
church and state does not appear in the U.S. Constitution. It became part of
U.S. jurisprudence when the Court in the 1878 case of Reynolds v. United
[198]
States
quoted Jeffersons famous letter of 1802 to the Danbury Baptist
Association in narrating the history of the religion clauses, viz:
Believing with you that religion is a matter which lies solely between man and
his God; that he owes account to none other for his faith or his worship; that
the legislative powers of the Government reach actions only, and not
opinions, I contemplate with sovereign reverence that act of the whole
American people which declared that their Legislature should make no law
respecting an establishment of religion or prohibiting the free exercise
thereof, thus building a wall of separation between Church and
[199]
State.
(emphasis supplied)
Chief Justice Waite, speaking for the majority, then added, (c)oming as this
does from an acknowledged leader of the advocates of the measure, it may
be accepted almost as an authoritative declaration of the scope and effect of
[200]
the amendment thus secured.
The interpretation of the Establishment Clause has in large part been in
cases involving education, notably state aid to private religious schools and
[201]
prayer in public schools.
InEverson v. Board of Education, for example,

the issue was whether a New Jersey local school board could reimburse
parents for expenses incurred in transporting their children to and from
Catholic schools. The reimbursement was part of a general program under
which all parents of children in public schools and nonprofit private schools,
regardless of religion, were entitled to reimbursement for transportation
costs. Justice Hugo Black, writing for a sharply divided Court, justified the
reimbursements on the child benefit theory, i.e., that the school board was
merely furthering the states legitimate interest in getting children regardless
of their religion, safely and expeditiously to and from accredited schools. The
Court, after narrating the history of the First Amendment in Virginia,
interpreted the Establishment Clause, viz:
The establishment of religion clause of the First Amendment means at least
this: Neither a state nor the Federal Government can set up a
church. Neither can pass laws which aid one religion, aid all religions, or
prefer one religion over another. Neither can force nor influence a person
to go to or remain away from church against his will or force him to profess a
belief or disbelief in any religion. No person can be punished for entertaining
or professing religious beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support
any religious activities or institutions, whatever they may be called, or
whatever form they may adopt to teach or practice religion. Neither a state
nor the Federal Government can, openly or secretly participate in the affairs
of any religious organizations or groups and vice versa. In the words of
Jefferson, the clause against establishment of religion by law was
[202]
intended to erect a wall of separation between Church and State.
The Court then ended the opinion, viz:
The First Amendment has erected a wall between church and state. That
wall must be kept high and impregnable. We could not approve the slightest
[203]
breach. New Jersey has not breached it here.
By 1971, the Court integrated the different elements of the Courts
Establishment Clause jurisprudence that evolved in the 1950s and 1960s
[204]
and laid down a three-pronged test inLemon v. Kurtzman
in determining
the constitutionality of policies challenged under the Establishment
Clause. This case involved a Pennsylvania statutory program providing
publicly funded reimbursement for the cost of teachers salaries, textbooks,
and instructional materials in secular subjects and a Rhode Island statute
providing
salary
supplements
to
teachers
in
parochial
schools. The Lemon test requires a challenged policy to meet the following
criteria to pass scrutiny under the Establishment Clause. First, the statute
must have a secular legislative purpose; second, its primary or
principal effect must be one that neither advances nor inhibits religion
(Board of Education v. Allen, 392 US 236, 243, 20 L Ed 2d 1060, 1065, 88

S Ct 1923 [1968]); finally, the statute must not foster an excessive

entanglement with religion. (Walz v.Tax Commission, 397 US 664, 668,
[205]
25 L Ed 2d 697, 701, 90 S Ct 1409 [1970]) (emphasis supplied)
Using
this test, the Court held that the Pennsylvania statutory program and Rhode
Island statute were unconstitutional as fostering excessive entanglement
between government and religion.
The most controversial of the education cases involving the
Establishment Clause are the school prayer decisions. Few decisions of the
modern Supreme Court have been criticized more intensely than the school
[206]
prayer decisions of the early 1960s.
In the 1962 case of Engel v.
[207]
Vitale,
the Court invalidated a New York Board of Regents policy that
established the voluntary recitation of a brief generic prayer by children in the
public schools at the start of each school day. The majority opinion written by
Justice Black stated that in this country it is no part of the business of
government to compose official prayers for any group of the American people
to recite as part of a religious program carried on by government. In fact,
history shows that this very practice of establishing governmentally
composed prayers for religious services was one of the reasons that caused
many of the early colonists to leave England and seek religious freedom in
America. The Court called to mind that the first and most immediate purpose
of the Establishment Clause rested on the belief that a union of government
and religion tends to destroy government and to degrade religion. The
following year, the Engel decision was reinforced in Abington School
[208]
[209]
District v. Schempp
and Murray v. Curlett
where the Court struck
down the practice of Bible reading and the recitation of the Lords prayer in
the Pennsylvania and Maryland schools. The Court held that to withstand the
strictures of the Establishment Clause, a statute must have a secular
legislative purpose and a primary effect that neither advances nor inhibits
religion. It reiterated, viz:
The wholesome neutrality of which this Courts cases speak thus stems from
a recognition of the teachings of history that powerful sects or groups might
bring about a fusion of governmental and religious functions or a concert or
dependency of one upon the other to the end that official support of the State
of Federal Government would be placed behind the tenets of one or of all
orthodoxies. This the Establishment Clause prohibits. And a further reason
for neutrality is found in the Free Exercise Clause, which recognizes the
value of religious training, teaching and observance and, more particularly,
the right of every person to freely choose his own course with reference
[210]
thereto, free of any compulsion from the state.
The school prayer decisions drew furious reactions. Religious leaders and
conservative members of Congress and resolutions passed by several state
[211]
legislatures condemned these decisions.
On several occasions,
constitutional amendments have been introduced in Congress to overturn the

school prayer decisions. Still, the Court has maintained its position and has
[212]
in fact reinforced it in the 1985 case of Wallace v. Jaffree
where the
Court struck down an Alabama law that required public school students to
observe a moment of silence for the purpose of meditation or voluntary
prayer at the start of each school day.
Religious instruction in public schools has also pressed the Court to
interpret the Establishment Clause. Optional religious instruction within public
school premises and instructional time were declared offensive of the
Establishment Clause in the 1948 case of McCollum v. Board of
[213]
Education,
decided just a year after the seminal Everson case. In this
case, interested members of the Jewish, Roman Catholic and a few
Protestant faiths obtained permission from the Board of Education to offer
classes in religious instruction to public school students in grades four to
nine. Religion classes were attended by pupils whose parents signed printed
cards requesting that their children be permitted to attend. The classes were
taught in three separate groups by Protestant teachers, Catholic priests and
a Jewish rabbi and were held weekly from thirty to forty minutes during
regular class hours in the regular classrooms of the school building. The
religious teachers were employed at no expense to the school authorities but
they were subject to the approval and supervision of the superintendent of
schools.Students who did not choose to take religious instruction were
required to leave their classrooms and go to some other place in the school
building for their secular studies while those who were released from their
secular study for religious instruction were required to attend the religious
classes. The Court held that the use of tax-supported property for religious
instruction and the close cooperation between the school authorities and the
religious council in promoting religious education amounted to a prohibited
use of tax-established and tax-supported public school system to aid
religious groups spread their faith. The Court rejected the claim that the
Establishment Clause only prohibited government preference of one religion
over another and not an impartial governmental assistance of all
[214]
religions. In Zorach v. Clauson,
however, the Court upheld released time
programs allowing students in public schools to leave campus upon parental
permission to attend religious services while other students attended study
hall. Justice Douglas, the writer of the opinion, stressed that (t)he First
Amendment does not require that in every and all respects there shall be a
separation
of
Church
and
State. The
Court
distinguished Zorach from McCollum, viz:
In the McCollum case the classrooms were used for religious instruction and
the force of the public school was used to promote that instruction. . . We
follow the McCollum case. But we cannot expand it to cover the present
released time program unless separation of Church and State means that
public institutions can make no adjustments of their schedules to
accommodate the religious needs of the people. We cannot read into the Bill
[215]
of Rights such a philosophy of hostility to religion.

In the area of government displays or affirmations of belief, the Court

has given leeway to religious beliefs and practices which have acquired a
secular meaning and have become deeply entrenched in history. For
[216]
instance, in McGowan v. Maryland,
the Court upheld laws that
prohibited certain businesses from operating on Sunday despite the obvious
religious underpinnings of the restrictions. Citing the secular purpose of the
Sunday closing laws and treating as incidental the fact that this day of rest
happened to be the day of worship for most Christians, the Court held, viz:
It is common knowledge that the first day of the week has come to have
special significance as a rest day in this country. People of all religions and
people with no religion regard Sunday as a time for family activity, for visiting
friends and relatives, for later sleeping, for passive and active
[217]
entertainments, for dining out, and the like.
[218]

In the 1983 case of Marsh v. Chambers,

the Court refused to invalidate
Nebraskas policy of beginning legislative sessions with prayers offered by a
Protestant chaplain retained at the taxpayers expense. The majority
opinion did not rely on the Lemon test and instead drew heavily from
history and the need for accommodation of popular religious
beliefs, viz:
In light of the unambiguous and unbroken history of more than 200 years,
there can be no doubt that the practice of opening legislative sessions with
prayer has become the fabric of our society. To invoke Divine guidance on a
public body entrusted with making the laws is not, in these circumstances, an
establishment of religion or a step toward establishment; it is simply
a tolerable acknowledgement of beliefs widely held among the people
of this country. As Justice Douglas observed, (w)e are a religious
people whose institutions presuppose a Supreme Being. (Zorach c.
[219]
Clauson, 343 US 306, 313 [1952])
(emphasis supplied)
Some view the Marsh ruling as a mere aberration as the Court would
inevitably be embarrassed if it were to attempt to strike down a practice that
occurs in nearly every legislature in the United States, including the U.S.
[220]
Congress.
That Marsh was not an aberration is suggested by subsequent
[221]
cases. In the 1984 case of Lynch v. Donnelly,
the Court upheld a citysponsored nativity scene in Rhode Island. By a 5-4 decision, the majority
opinion hardly employed the Lemon test and again relied on history
and the fact that the creche had become a neutral harbinger of the
holiday season for many, rather than a symbol of Christianity.
The Establishment Clause has also been interpreted in the area of tax
exemption. By tradition, church and charitable institutions have been exempt
from local property taxes and their income exempt from federal and state
[222]
income taxes. In the 1970 case of Walz v. Tax Commission,
the New

York City Tax Commissions grant of property tax exemptions to churches as

allowed by state law was challenged by Walz on the theory that this required
him to subsidize those churches indirectly. The Court upheld the law
stressing its neutrality, viz:
It has not singled out one particular church or religious group or even
churches as such; rather, it has granted exemptions to all houses of religious
worship within a broad class of property owned by non-profit, quasi-public
corporations . . . The State has an affirmative policy that considers these
groups as beneficial and stabilizing influences in community life and finds this
[223]
classification useful, desirable, and in the public interest.
The Court added that the exemption was not establishing religion but sparing
the exercise of religion from the burden of property taxation levied on private
[224]
profit institutions
and preventing excessive entanglement between state
and religion. At the same time, the Court acknowledged the long-standing
practice of religious tax exemption and the Courts traditional deference to
legislative bodies with respect to the taxing power, viz:

constitutional for the government to give money to religiously-affiliated

organizations to teach adolescents about proper sexual behavior (Bowen v.
Kendrick, 487 US 589, 611 [1988]), but not to teach them science or history
(Lemon v. Kurtzman, 403 US 602, 618-619 [1971]). It is constitutional for the
government to provide religious school pupils with books (Board of Education
v. Allen, 392 US 236, 238 [1968]), but not with maps (Wolman v. Walter, 433
US 229, 249-51 [1977]); with bus rides to religious schools (Everson v. Board
of Education, 330 US 1, 17 [1947]), but not from school to a museum on a
field trip (Wolman v. Walter, 433 US 229, 252-55 [1977]); with cash to pay for
state-mandated standardized tests (Committee for Pub. Educ. and Religious
Liberty v. Regan, 444 US 646, 653-54 [1980]), but not to pay for safetyrelated maintenance (Committee for Pub. Educ v. Nyquist, 413 US 756, 774[226]
80 [1973]). It is a mess.

To be sure, the cases discussed above, while citing many landmark

decisions in the religious clauses area, are but a small fraction of the
hundreds of religion clauses cases that the U.S. Supreme Court has passed
upon. Court rulings contrary to or making nuances of the above cases may
be cited. Professor McConnell poignantly recognizes this, viz:

But the purpose of the overview is not to review the entirety of the U.S.
religion clause jurisprudence nor to extract the prevailing case law regarding
particular religious beliefs or conduct colliding with particular government
regulations. Rather, the cases discussed above suffice to show that, as legal
scholars observe, this area of jurisprudence has demonstrated two main
standards used by the Court in deciding religion clause cases: separation
(in the form of strict separation or the tamer version of strict neutrality
or separation) andbenevolent neutrality or accommodation. The weight
of current authority, judicial and in terms of sheer volume, appears to lie with
[227]
the separationists, strict or tame.
But the accommodationists have also
[228]
attracted a number of influential scholars and jurists.
The two standards
producing two streams of jurisprudence branch out respectively from the
history of the First Amendment in England and the American colonies and
climaxing in Virginia as narrated in this opinion and officially acknowledged
by the Court in Everson, and from American societal life which reveres
religion
and
practices
age-old
religious
traditions. Stated
otherwise, separation - strict or tame - protects the principle of church-state
separation with a rigid reading of the principle while benevolent
neutrality protects religious realities, tradition and established practice with a
[229]
flexible reading of the principle.
The latter also appeals to history in
support of its position, viz:

Thus, as of today, it is constitutional for a state to hire a Presbyterian minister

to lead the legislature in daily prayers (Marsh v. Chambers, 463 US783, 79293[1983]), but unconstitutional for a state to set aside a moment of silence in
the schools for children to pray if they want to (Wallace v. Jaffree, 472 US 38,
56 [1985]). It is unconstitutional for a state to require employers to
accommodate their employees work schedules to their sabbath observances
(Estate of Thornton v. Caldor, Inc., 472 US 703, 709-10 [1985]) but
constitutionally mandatory for a state to require employers to pay workers
compensation when the resulting inconsistency between work and sabbath
leads to discharge (. . .Sherbert v. Verner, 374 US 398, 403-4 [1963]). It is

The opposing school of thought argues that the First Congress intended
to allow government support of religion, at least as long as that support
did not discriminate in favor of one particular religion. . . the Supreme
Court has overlooked many important pieces of history. Madison, for
example, was on the congressional committee that appointed a chaplain, he
declared several national days of prayer and fasting during his presidency,
and he sponsored Jeffersons bill for punishing Sabbath breakers; moreover,
while president, Jefferson allowed federal support of religious missions to the
Indians. . . And so, concludes one recent book, there is no support in the
Congressional records that either the First Congress, which framed the First

(f)ew concepts are more deeply embedded in the fabric of our national
life, beginning with pre-Revolutionary colonial times, than for the
government to exercise . . . this kind of benevolent neutrality toward
churches and religious exercise generally so long as none was favored
[225]
over others and none suffered interference.
(emphasis supplied)

C. Strict Neutrality v. Benevolent Neutrality

Amendment, or its principal author and sponsor, James Madison, intended

that Amendment to create a state of complete independence between
religion and government. In fact, the evidence in the public documents goes
[230]
the other way.
(emphasis supplied)

embedded in history and contemporary practice that enormous amounts of

aid, both direct and indirect, flow to religion from government in return for
huge amounts of mostly indirect aid from religion. Thus, strict separationists
are caught in an awkward position of claiming a constitutional principle that
[240]
has never existed and is never likely to.

To succinctly and poignantly illustrate the historical basis of

benevolent neutrality that gives room for accommodation, less than
twenty-four hours after Congress adopted the First Amendments prohibition
on laws respecting an establishment of religion, Congress decided to
express its thanks to God Almighty for the many blessings enjoyed by the
nation with a resolution in favor of a presidential proclamation declaring a
national day of Thanksgiving and Prayer. Only two members of Congress
opposed the resolution, one on the ground that the move was a mimicking of
European customs, where they made a mere mockery of thanksgivings, the
other on establishment clause concerns. Nevertheless, the salutary effect of
thanksgivings throughout Western history was acknowledged and the motion
[231]
was
passed
without
further
recorded
discussion.
Thus,
accommodationists also go back to the framers to ascertain the meaning of
the First Amendment, but prefer to focus on acts rather than words. Contrary
to the claim of separationists that rationalism pervaded America in the late
th
19 century and that America was less specifically Christian during those
[232]
years than at any other time before or since,
accommodationaists claim
that American citizens at the time of the Constitutions origins were a
[233]
remarkably religious people in particularly Christian terms.

A tamer version of the strict separationist view, the strict

neutrality or separationist view is largely used by the Court, showing the
[241]
Courts tendency to press relentlessly towards a more secular society.
It
finds basis in the Everson case where the Court declared that Jeffersons
wall of separation encapsulated the meaning of the First Amendment but at
the same time held that the First Amendment requires the state to
be neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary.State power
is no more to be used so as to handicap religions than it is to favor
[242]
them. (emphasis supplied)
While the strict neutrality approach is not
hostile to religion, it is strict in holding that religion may not be used as a
basis for classification for purposes of governmental action, whether the
action confers rights or privileges or imposes duties or obligations. Only
secular criteria may be the basis of government action. It does not permit,
much less require, accommodation of secular programs to religious
[243]
belief.
Professor Kurland wrote, viz:

The two streams of jurisprudence - separationist or

accommodationist - are anchored on a different reading of the wall of
separation. The strict separtionist view holds that Jefferson meant the wall
of separation to protect the state from the church. Jefferson was a man of the
Enlightenment Era of the eighteenth century, characterized by the rationalism
[234]
and anticlericalism of that philosophic bent.
He has often been regarded
as espousing Deism or the rationalistic belief in a natural religion and natural
law divorced from its medieval connection with divine law, and instead
[235]
adhering to a secular belief in a universal harmony.
Thus, according to
this Jeffersonian view, the Establishment Clause being meant to protect the
state from the church, the states hostility towards religion allows no
[236]
interaction between the two.
In fact, when Jefferson became President,
he refused to proclaim fast or thanksgiving days on the ground that these are
religious exercises and the Constitution prohibited the government from
[237]
intermeddling with religion.
This approach erects an absolute barrier to
formal interdependence of religion and state. Religious institutions could not
receive aid, whether direct or indirect, from the state. Nor could the state
adjust its secular programs to alleviate burdens the programs placed on
[238]
believers.
Only the complete separation of religion from politics would
eliminate the formal influence of religious institutions and provide for a free
choice among political views thus a strict wall of separation is
[239]
necessary.
Strict separation faces difficulties, however, as it is deeply

The thesis proposed here as the proper construction of the religion clauses
of the first amendment is that the freedom and separation clauses should be
read as a single precept that government cannot utilize religion as a standard
for action or inaction because these clauses prohibit classification in terms of
[244]
religion either to confer a benefit or to impose a burden.
The Court has repeatedly declared that religious freedom means government
neutrality in religious matters and the Court has also repeatedly interpreted
this policy of neutrality to prohibit government from acting except for secular
[245]
purposes and in ways that have primarily secular effects.
Prayer in public schools is an area where the Court has applied strict
neutrality and refused to allow any form of prayer, spoken or silent, in the
[246]
public
schools
as
in Engel andSchempp.
The McCollum
case prohibiting optional religious instruction within public school premises
during regular class hours also demonstrates strict neutrality. In these
education cases, the Court refused to uphold the government action as they
were based not on a secular but on a religious purpose. Strict neutrality was
also used in Reynolds and Smith which both held that if government acts in
pursuit of a generally applicable law with a secular purpose that merely
incidentally burdens religious exercise, the First Amendment has not been
offended.However, if the strict neutrality standard is applied in interpreting
the Establishment Clause, it could de facto void religious expression in the
Free Exercise Clause. As pointed out by Justice Goldberg in his concurring

opinion in Schempp, strict neutrality could lead to a brooding and pervasive

devotion to the secular and a passive, or even active, hostility to the religious
[247]
which is prohibited by the Constitution.
Professor Laurence Tribe
commented in his authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the very
idea of a free exercise clause. The Framers, whatever specific applications
they may have intended, clearly envisioned religion as something special;
they enacted that vision into law by guaranteeing the free exercise of religion
but not, say, of philosophy or science. The strict neutrality approach all but
erases this distinction. Thus it is not surprising that the Supreme Court has
rejected strict neutrality, permitting and sometimes mandating religious
[248]
classifications.
The separationist approach, whether strict or tame, is caught in a dilemma
because while the Jeffersonian wall of separation captures the spirit of the
American ideal of church-state separation, in real life church and state are
[249]
not and cannot be totally separate.
This is all the more true in
contemporary times when both the government and religion are growing and
expanding their spheres of involvement and activity, resulting in the
[250]
intersection of government and religion at many points.
Consequently, the Court has also decided cases employing benevolent
neutrality. Benevolent neutrality which gives room for accommodation is
buttressed by a different view of the wall of separation associated with
Williams, founder of the Rhode Island colony. In Mark DeWolfe Howes
classic, The Garden and the Wilderness, he asserts that to the extent the
Founders had a wall of separation in mind, it was unlike the Jeffersonian wall
that is meant to protect the state from the church; instead, the wall is meant
[251]
to protect the church from the state,
i.e., the garden of the church must be
[252]
walled in for its own protection from the wilderness of the world
with its
potential for corrupting those values so necessary to religious
[253]
commitment.
Howe called this the theological or evangelical rationale for
church-state separation while the wall espoused by enlightened statesmen
such as Jefferson and Madison, was a political rationale seeking to protect
[254]
politics from intrusions by the church.
But it has been asserted that this
contrast between the Williams and Jeffersonian positions is more accurately
described as a difference in kinds or styles of religious thinking, not as a
conflict between religious and secular (political); the religious style was
biblical and evangelical in character while the secular style was grounded in
[255]
natural religion, more generic and philosophical in its religious orientation.
The Williams wall is, however, breached for the church is in the state
and so the remaining purpose of the wall is to safeguard religious
liberty. Williams view would therefore allow for interaction between church
and state, but is strict with regard to state action which would threaten the
[256]
integrity of religious commitment.
His conception of separation is not total

such that it provides basis for certain interactions between church and state
[257]
dictated by apparent necessity or practicality.
This theological view of
separation is found in Williams writings, viz:
. . . when they have opened a gap in the hedge or wall of separation between
the garden of the church and the wilderness of the world, God hath ever
broke down the wall itself, removed the candlestick, and made his garden a
wilderness, as this day. And that therefore if He will eer please to restore His
garden and paradise again, it must of necessity be walled in peculiarly unto
[258]
Himself from the world. . .
Chief Justice Burger spoke of benevolent neutrality in Walz, viz:
The general principle deducible from the First Amendment and all that has
been said by the Court is this: that we will not tolerate either governmentally
established religion or governmental interference with religion. Short of those
expressly proscribed governmental acts there is room for play in the joints
productive of a benevolent neutrality which will permit religious exercise
[259]
to exist without sponsorship and without interference.
(emphasis
supplied)
The Zorach case expressed the doctrine of accommodation,

[260]

viz:

The First Amendment, however, does not say that in every and all
respects there shall be a separation of Church and State. Rather, it
studiously defines the manner, the specific ways, in which there shall
be no concert or union or dependency one or the other. That is the
common sense of the matter. Otherwise, the state and religion would
be aliens to each other - hostile, suspicious, and even
unfriendly. Churches could not be required to pay even property
taxes. Municipalities would not be permitted to render police or fire protection
to religious groups. Policemen who helped parishioners into their places of
worship would violate the Constitution. Prayers in our legislative halls; the
appeals to the Almighty in the messages of the Chief Executive; the
proclamations making Thanksgiving Day a holiday; so help me God in our
courtroom oaths- these and all other references to the Almighty that run
through our laws, our public rituals, our ceremonies would be flouting the
First Amendment. A fastidious atheist or agnostic could even object to the
supplication with which the Court opens each session: God save the United
States and this Honorable Court.
xxx xxx xxx
We are a religious people whose institutions presuppose a Supreme
Being. We guarantee the freedom to worship as one chooses. . . When the

[266]

state encourages religious instruction or cooperates with religious

authorities by adjusting the schedule of public events, it follows the
best of our traditions. For it then respects the religious nature of our
people and accommodates the public service to their spiritual
needs. To hold that it may not would be to find in the Constitution a
requirement that the government show a callous indifference to
religious groups. . . But we find no constitutional requirement which
makes it necessary for government to be hostile to religion and to throw
its weight against efforts to widen their effective scope of religious
[261]
influence.
(emphases supplied)

with
strong
moral
dimension.
The
persistence
of
these de
facto establishments are in large part explained by the fact that throughout
history, the evangelical theory of separation, i.e., Williams wall, has
[267]
demanded respect for these de facto establishments.
But the
separationists have a different explanation. To characterize these as de
jure establishments according to the principle of the Jeffersonian wall, the
U.S. Supreme Court, the many dissenting and concurring opinions explain
some of these practices as de minimis instances of government
endorsement or as historic governmental practices that have largely lost their
religious significance or at least have proven not to lead the government into
[268]
further involvement with religion.

Benevolent neutrality is congruent with the sociological proposition that

religion serves a function essential to the survival of society itself, thus there
is no human society without one or more ways of performing the essential
function of religion. Although for some individuals there may be no felt need
for religion and thus it is optional or even dispensable, for society it is not,
which is why there is no human society without one or more ways of
performing the essential function of religion. Even in ostensibly atheistic
societies, there are vigorous underground religion(s) and surrogate
[262]
religion(s) in their ideology.
As one sociologist wrote:

With
religion
looked
upon
with
benevolence
and
not
hostility, benevolent neutrality allows accommodation of religion under
certain circumstances. Accommodations are government policies that take
religion specifically into account not to promote the governments favored
form of religion, but to allow individuals and groups to exercise their
religion without hindrance. Their purpose or effect therefore is to remove a
burden on, or facilitate the exercise of, a persons or institutions religion. As
Justice Brennan explained, the government [may] take religion into
accountto exempt, when possible, from generally applicable
governmental regulation individuals whose religious beliefs and practices
would otherwise thereby be infringed, or to create without state involvement
an
atmosphere
in
which
voluntary
religious
exercise
may
[269]
flourish.
(emphasis supplied) Accommodation is forbearance and not
alliance.it does not reflect agreement with the minority, but respect for the
conflict between the temporal and spiritual authority in which the minority
[270]
finds itself.

It is widely held by students of society that there are certain functional

prerequisites without which society would not continue to exist. At first
glance, this seems to be obvious - scarcely more than to say that an
automobile could not exist, as a going system, without a carburetor. . . Most
[263]
writers list religion among the functional prerequisites.
Another noted sociologist, Talcott Parsons, wrote: There is no known human
society without something which modern social scientists would classify as a
[264]
religionReligion is as much a human universal as language.
Benevolent neutrality thus recognizes that religion plays an important
role in the public life of the United States as shown by many traditional
government practices which, to strict neutrality, pose Establishment Clause
questions. Among these are the inscription of In God We Trust on American
currency, the recognition of America as one nation under God in the official
pledge of allegiance to the flag, the Supreme Courts time-honored practice of
opening oral argument with the invocation God save the United States and
this honorable Court, and the practice of Congress and every state
legislature of paying a chaplain, usually of a particular Protestant
[265]
denomination to lead representatives in prayer.
These practices clearly
show the preference for one theological viewpoint -the existence of and
potential for intervention by a god - over the contrary theological viewpoint of
atheism. Church and government agencies also cooperate in the building of
low-cost housing and in other forms of poor relief, in the treatment of
alcoholism and drug addiction, in foreign aid and other government activities

Accommodation is distinguished from strict neutrality in that the

latter holds that government should base public policy solely on
secular considerations, without regard to the religious consequences
of its actions. The debate between accommodation and strict neutrality is at
base a question of means: Is the freedom of religion best achieved when the
government is conscious of the effects of its action on the various religious
practices of its people, and seeks to minimize interferences with those
practices? Or is it best advanced through a policy of religious blindness keeping government aloof from religious practices and issues? An
accommodationist holds that it is good public policy, and sometimes
constitutionally required, for the state to make conscious and deliberate
efforts to avoid interference with religious freedom. On the other hand, the
strict neutrality adherent believes that it is good public policy, and also
constitutionally required, for the government to avoid religion-specific policy
[271]
even at the cost of inhibiting religious exercise.
There are strong and compelling reasons, however, to take
the accommodationist position
rather
than
the
strict
neutrality
position. First, the accommodationist interpretation is most consistent

with the language of the First Amendment. The religion clauses contain
two parallel provisions, both specifically directed at religion. The government
may not establish religion and neither may government prohibit it. Taken
together, the religion clauses can be read most plausibly as warding off two
equal and opposite threats to religious freedom - government action that
promotes the (political) majoritys favored brand of religion and government
action that impedes religious practices not favored by the
majority. The substantive endin view is the preservation of the autonomy of
religious life and not just the formal process value of ensuring that
government does not act on the basis of religious bias. On the other hand,
strict neutrality interprets the religion clauses as allowing government to do
whatever it desires to or for religion, as long as it does the same to or for
comparable secular entities. Thus, for example, if government prohibits all
alcoholic consumption by minors, it can prohibit minors from taking part in
communion. Paradoxically, this view would make the religion clauses violate
the religion clauses, so to speak, since the religion clauses single out religion
by name for special protection. Second, the accommodationist position
best achieves the purposes of the First Amendment. The principle
underlying the First Amendment is that freedom to carry out ones duties to
a Supreme Being is an inalienable right, not one dependent on the
grace of legislature. Although inalienable, it is necessarily limited by the
rights of others, including the public right of peace and good
order. Nevertheless it is a substantive right and not merely a privilege against
discriminatory legislation. The accomplishment of the purpose of the First
Amendment requires more than the religion blindness of strict neutrality. With
the pervasiveness of government regulation, conflicts with religious practices
become frequent and intense. Laws that are suitable for secular entities are
sometimes inappropriate for religious entities, thus the government must
make special provisions to preserve a degree of independence for religious
entities for them to carry out their religious missions according to their
religious beliefs. Otherwise, religion will become just like other secular
entities subject to pervasive regulation by majoritarian institutions. Third, the
accommodationist interpretation is particularly necessary to protect
adherents of minority religions from the inevitable effects of
majoritarianism, which include ignorance and indifference and overt hostility
to the minority. In a democratic republic, laws are inevitably based on the
presuppositions of the majority, thus not infrequently, they come into conflict
with the religious scruples of those holding different world views, even in the
absence of a deliberate intent to interfere with religious practice. At times,
this effect is unavoidable as a practical matter because some laws are so
necessary to the common good that exceptions are intolerable. But in other
instances, the injury to religious conscience is so great and the advancement
of public purposes so small or incomparable that only indifference or hostility
could explain a refusal to make exemptions. Because of plural traditions,
legislators and executive officials are frequently willing to make such
exemptions when the need is brought to their attention, but this may not

always be the case when the religious practice is either unknown at the time
of enactment or is for some reason unpopular. In these cases, a
constitutional interpretation that allows accommodations prevents
needless injury to the religious consciences of those who can have an
influence in the legislature; while a constitutional interpretation
that requires accommodations extends this treatment to religious faiths
that are less able to protect themselves in the political
arena. Fourth, the accommodationist position is practical as it is a
commonsensical way to deal with the various needs and beliefs of different
faiths in a pluralistic nation. Without accommodation, many otherwise
beneficial laws would interfere severely with religious freedom. Aside from
laws against serving alcoholic beverages to minors conflicting with
celebration of communion, regulations requiring hard hats in construction
areas can effectively exclude Amish and Sikhs from the workplace, or
employment anti-discrimination laws can conflict with the Roman Catholic
male priesthood, among others. Exemptions from such laws are easy to craft
and administer and contribute much to promoting religious freedom at little
cost to public policy. Without exemptions, legislature would be frequently
forced to choose between violating religious conscience of a segment
of the population or dispensing with legislation it considers beneficial
to society as a whole. Exemption seems manifestly more reasonable
[272]
than either of the alternative: no exemption or no law.
Benevolent
neutrality gives
room
for
different
kinds
of accommodation: those which are constitutionally compelled, i.e., required
by the Free Exercise Clause; and those which are discretionary or legislative,
i.e., and those not required by the Free Exercise Clause but nonetheless
[273]
permitted by the Establishment Clause.
Some Justices of the Supreme
Court have also used the term accommodation to describe government
actions that acknowledge or express prevailing religious sentiments of the
community such as display of a religious symbol on public property or the
[274]
delivery of a prayer at public ceremonial events.
Stated otherwise,
using benevolent neutrality as a standard could result to three situations
of accommodation:those where accommodation is required, those where
it is permissible, and those where it is prohibited. In the first situation,
accommodation is required to preserve free exercise protections and not
unconstitutionally infringe on religious liberty or create penalties for religious
freedom. Contrary to the Smith declaration that free exercise exemptions are
intentional government advancement, these exemptions merely relieve the
prohibition on the free exercise thus allowing the burdened religious adherent
to be left alone. The state must create exceptions to laws of general
applicability when these laws threaten religious convictions or practices in the
[275]
absence of a compelling state interest.
By allowing such exemptions, the
Free Exercise Clause does not give believers the right or privilege to choose
for themselves to override socially-prescribed decision; it allows them to obey
[276]
spiritual rather than temporal authority
for those who seriously invoke the
Free Exercise Clause claim to be fulfilling a solemn duty. Religious freedom

is a matter less of rights than duties; more precisely, it is a matter of rights

derived from duties. To deny a person or a community the right to act upon
such a duty can be justified only by appeal to a yet more compelling duty. Of
course, those denied will usually not find the reason for the denial
compelling. Because they may turn out to be right about the duty in question,
and because, even if they are wrong, religion bears witness to that which
transcends the political order, such denials should be rare and painfully
[277]
reluctant.
The Yoder case is an example where the Court held that the state must
accommodate the religious beliefs of the Amish who objected to enrolling
their children in high school as required by law. The Sherbert case is
another example where the Court held that the state unemployment
compensation plan must accommodate the religious convictions of
[278]
Sherbert.
In these cases of burdensome effect, the modern approach of
the Court has been to apply strict scrutiny, i.e., to declare the burden as
permissible, the Court requires the state to demonstrate that the regulation
which burdens the religious exercise pursues a particularly important or
compelling government goal through the least restrictive means. If the states
objective could be served as well or almost as well by granting an exemption
to those whose religious beliefs are burdened by the regulation, such an
[279]
exemption must be given.
This approach of the Court on burdensome
effect was only applied since the 1960s. Prior to this time, the Court took the
separationist view that as long as the state was acting in pursuit of nonreligious ends and regulating conduct rather than pure religious beliefs, the
[280]
Free Exercise Clause did not pose a hindrance such as in Reynolds.
In
the second situation where accommodation is permissible, the state may, but
is not required to, accommodate religious interests. The Walz case illustrates
this situation where the Court upheld the constitutionality of tax exemption
given by New York to church properties, but did not rule that the state was
required to provide tax exemptions. The Court declared that (t)he limits of
permissible state accommodation to religion are by no means co-extensive
[281]
with the noninterference mandated by the Free Exercise Clause.
The
Court held that New York could have an interest in encouraging religious
values and avoiding threats to those values through the burden of property
taxes. Other examples are the Zorach case allowing released time in public
schools andMarsh allowing payment of legislative chaplains from public
funds. Finally, in the situation where accommodation is prohibited,
establishment concerns prevail over potential accommodation interests. To
say that there are valid exemptions buttressed by the Free Exercise Clause
[282]
does not mean that all claims for free exercise exemptions are valid.
An
example where accommodation was prohibited is McCollum where the
Court ruled against optional religious instruction in the public school
[283]
premises.
In effect, the last situation would arrive at a strict neutrality
conclusion.

In the first situation where accommodation is required, the approach

follows this basic framework:
If the plaintiff can show that a law or government practice inhibits the free
exercise of his religious beliefs, the burden shifts to the government to
demonstrate that the law or practice is necessary to the accomplishment of
some important (or compelling) secular objective and that it is the least
restrictive means of achieving that objective. If the plaintiff meets this burden
and the government does not, the plaintiff is entitled to exemption from the
law or practice at issue. In order to be protected, the claimants beliefs must
be sincere, but they need not necessarily be consistent, coherent, clearly
articulated, or congruent with those of the claimants religious
denomination. Only beliefs rooted in religion are protected by the Free
Exercise Clause; secular beliefs, however sincere and conscientious, do not
[284]
suffice.
In other words, a three-step process (also referred to as the two-step
balancing process supra when the second and third steps are
combined) as in Sherbert is followed in weighing the states interest and
religious freedom when these collide. Three questions are answered in this
process. First, (h)as the statute or government action created a burden on
the free exercise of religion? The courts often look into the sincerity of the
religious belief, but without inquiring into the truth of the belief because the
Free Exercise Clause prohibits inquiring about its truth as held
in Ballard and Cantwell. The sincerity of the claimants belief is ascertained
to avoid the mere claim of religious beliefs to escape a mandatory
regulation. As evidence of sincerity, the U.S. Supreme Court has considered
historical evidence as in Wisconsin where the Amish people had held a
long-standing objection to enrolling their children in ninth and tenth grades in
[285]
public high schools. In another case, Dobkin v. District of Columbia,
the
Court denied the claim of a party who refused to appear in court on Saturday
alleging he was a Sabbatarian, but the Court noted that he regularly
conducted business on Saturday. Although it is true that the Court might
erroneously deny some claims because of a misjudgment of sincerity, this is
not as argument to reject all claims by not allowing accommodation as a
rule. There might be injury to the particular claimant or to his religious
community, but for the most part, the injustice is done only in the particular
[286]
case.
Aside from the sincerity, the court may look into the centrality of
those beliefs, assessing them not on an objective basis but in terms of the
opinion and belief of the person seeking exemption. In Wisconsin, for
example, the Court noted that the Amish peoples convictions against
becoming involved in public high schools were central to their way of life and
faith. Similarly, in Sherbert, the Court concluded that the prohibition against
[287]
Saturday work was a cardinal principle.
Professor Lupu puts to task the
person claiming exemption, viz:

On the claimants side, the meaning and significance of the relevant religious
practice must be demonstrated. Religious command should outweigh
custom, individual conscience should count for more than personal
convenience, and theological principle should be of greater significance than
institutional ease. Sincerity matters, (footnote omitted) and longevity of
practice - both by the individual and within the individuals religious tradition reinforces sincerity. Most importantly, the law of free exercise must be
inclusive and expansive, recognizing non-Christian religions - eastern,
Western, aboriginal and otherwise - as constitutionally equal to their Christian
counterparts, and accepting of the intensity and scope of fundamentalist
[288]
creed.
Second, the court asks: (i)s there a sufficiently compelling state interest
to justify this infringement of religious liberty? In this step, the government
has to establish that its purposes are legitimate for the state and that
they are compelling. Government must do more than assert the objectives
at risk if exemption is given; it must precisely show how and to what extent
[289]
those objectives will be undermined if exemptions are granted.
The
person claiming religious freedom, on the other hand, will endeavor to show
that the interest is not legitimate or that the purpose, although legitimate, is
not compelling compared to infringement of religious liberty. This step
involves balancing, i.e., weighing the interest of the state against religious
liberty to determine which is more compelling under the particular set of
facts. The greater the states interests, the more central the religious belief
would have to be to overcome it.In assessing the state interest, the court will
have to determine the importance of the secular interest and the extent to
which that interest will be impaired by an exemption for the religious
practice. Should the court find the interest truly compelling, there will be no
requirement that the state diminish the effectiveness of its regulation by
[290]
granting the exemption.
Third, the court asks: (h)as the state in achieving its legitimate purposes
used the least intrusive means possible so that the free exercise is not
infringed any more than necessary to achieve the legitimate goal of the
[291]
state?
The analysis requires the state to show that the means in which it
is achieving its legitimate state objective is the least intrusive means, i.e., it
has chosen a way to achieve its legitimate state end that imposes as little as
possible on religious liberties. In Cantwell, for example, the Court invalidated
the license requirement for the door-to-door solicitation as it was a forbidden
burden on religious liberty, noting that less drastic means of insuring peace
and tranquility existed. As a whole, in carrying out the compelling state
interest test, the Court should give careful attention to context, both religious
[292]
and regulatory, to achieve refined judgment.
In sum, as shown by U.S. jurisprudence on religion clause cases, the
competing values of secular government and religious freedom create

tensions that make constitutional law on the subject of religious liberty

[293]
unsettled, mirroring the evolving views of a dynamic society.

VII. Religion Clauses in the Philippines

A. History
Before our country fell under American rule, the blanket of Catholicism
covered the archipelago. There was a union of church and state and
Catholicism was the state religion under theSpanish Constitution of
1876. Civil authorities exercised religious functions and the friars exercised
[294]
civil powers.
Catholics alone enjoyed the right of engaging in public
[295]
ceremonies of worship.
Although the Spanish Constitution itself was not
extended to the Philippines, Catholicism was also the established church in
our country under the Spanish rule. Catholicism was in fact protected by the
Spanish Penal Code of 1884 which was in effect in the Philippines. Some of
the offenses in chapter six of the Penal Code entitled Crimes against
[296]
Religion and Worship referred to crimes against the state religion.
The
coming of the Americans to our country, however, changed this state-church
scheme for with the advent of this regime, the unique American experiment
of separation of church and state was transported to Philippine soil.
Even as early as the conclusion of the Treaty of Paris between the
United States and Spain on December 10, 1898, the American guarantee of
religious freedom had been extended to the Philippines. The Treaty provided
that the inhabitants of the territories over which Spain relinquishes or cedes
[297]
her sovereignty shall be secured in the free exercise of religion.
Even the
Filipinos themselves guaranteed religious freedom a month later or on
January 22, 1899 upon the adoption of the Malolos Constitution of the
Philippine Republic under General Emilio Aguinaldo. It provided that the
State recognizes the liberty and equality of all religion (de todos los cultos) in
the same manner as the separation of the Church and State. But the Malolos
Constitution and government was short-lived as the Americans took over the
[298]
reigns of government.
With the Philippines under the American regime, President McKinley
issued Instructions to the Second Philippine Commission, the body created
to
take
over
the
civil
government
in
the
Philippines
in
1900. The Instructions guaranteed religious freedom, viz:
That no law shall be made respecting the establishment of religion or
prohibiting the free exercise thereof, and that the free exercise and
enjoyment of religious profession and worship without discrimination or
preference shall forever be allowed ... that no form of religion and no minister

of religion shall be forced upon the community or upon any citizen of the
Islands, that, on the other hand, no minister of religion shall be interfered with
[299]
or molested in following his calling.
This provision was based on the First Amendment of the United States
Constitution. Likewise, the Instructions declared that (t)he separation
[300]
between State and Church shall be real, entire and absolute.
Thereafter, every organic act of the Philippines contained a provision on
freedom of religion. Similar to the religious freedom clause in the Instructions,
the Philippine Bill of 1902 provided that:
No law shall be made respecting an establishment of religion or prohibiting
the free exercise thereof, and that free exercise and enjoyment of religious
worship, without discrimination or preference, shall forever be allowed.
[301]

In U.S. v. Balcorta,
the Court stated that the Philippine Bill of 1902
caused the complete separation of church and state, and the abolition of all
special privileges and all restrictions theretofor conferred or imposed upon
[302]
any particular religious sect.
The Jones Law of 1916 carried the same provision, but expanded it
with a restriction against using public money or property for religious
purposes, viz:
That no law shall be made respecting an establishment of religion or
prohibiting the free exercise thereof, and that the free exercise and
enjoyment of religious profession and worship without discrimination or
preference, shall forever be allowed; and no religious test shall be required
for the exercise of civil or political rights. No public money or property shall
ever be appropriated, applied, donated, or used, directly or indirectly, for the
use, benefit, or support of any sect, church, denomination, sectarian
institution, or system of religion, or for the use, benefit or support of any
priest, preacher, minister, or other religious teachers or dignitary as such.
This was followed by the Philippine Independence Law or TydingsMcDuffie Law of 1934 which guaranteed independence to the Philippines
and authorized the drafting of a Philippine constitution. It enjoined Filipinos to
include freedom of religion in drafting their constitution preparatory to the
grant of independence. The law prescribed that (a)bsolute toleration of
religious sentiment shall be secured and no inhabitant or religious
organization shall be molested in person or property on account of religious
[303]
belief or mode of worship.
The Constitutional Convention then began working on the 1935
Constitution. In their proceedings, Delegate Jose P. Laurel as Chairman of

the Committee on Bill of Rights acknowledged that (i)t was the Treaty of
Paris of December 10, 1898, which first introduced religious toleration in our
country. President
McKinleys Instructions to
the
Second
Philippine
Commission reasserted this right which later was incorporated into the
[304]
Philippine Bill of 1902 and in the Jones Law.
In accordance with the
Tydings-McDuffie Law, the 1935 Constitution provided in the Bill of Rights,
Article IV, Section 7, viz:
Sec. 7. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof, and the free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall
forever be allowed. No religious test shall be required for the exercise of civil
or political rights.
This provision, borrowed from the Jones Law, was readily approved by the
[305]
Convention.
In his speech as Chairman of the Committee on Bill of
Rights, Delegate Laurel said that modifications in phraseology of the Bill of
Rights in the Jones Law were avoided whenever possible because the
principles must remain couched in a language expressive of their historical
background, nature, extent and limitations as construed and interpreted by
[306]
the great statesmen and jurists that vitalized them.
The 1973 Constitution which superseded the 1935 Constitution
contained an almost identical provision on religious freedom in the Bill of
Rights in Article IV, Section 8, viz:
Sec. 8. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall
forever be allowed. No religious test shall be required for the exercise of civil
or political rights.
This time, however, the General Provisions in Article XV added in Section 15
that (t)he separation of church and state shall be inviolable.
Without discussion by the 1986 Constitutional Commission, the 1973
religious clauses were reproduced in the 1987 Constitution under the Bill of
[307]
Rights in Article III, Section 5.
Likewise, the provision on separation of
church and state was included verbatim in the 1987 Constitution, but this
time as a principle in Section 6, Article II entitled Declaration of Principles
and State Policies.
Considering the American origin of the Philippine religion clauses and
the intent to adopt the historical background, nature, extent and limitations of
the First Amendment of the U.S. Constitution when it was included in the
1935 Bill of Rights, it is not surprising that nearly all the major Philippine
cases involving the religion clauses turn to U.S. jurisprudence in explaining

the nature, extent and limitations of these clauses. However, a close scrutiny
of these cases would also reveal that while U.S. jurisprudence on religion
clauses flows into two main streams of interpretation - separation and
benevolent neutrality - the well-spring of Philippine jurisprudence on
this subject is for the most part, benevolent neutrality which gives
room for accommodation.

The realm of belief and creed is infinite and limitless bounded only by
ones imagination and thought. So is the freedom of belief, including
religious belief, limitless and without bounds. One may believe in most
anything, however strange, bizarre and unreasonable the same may appear
to others, even heretical when weighed in the scales of orthodoxy or doctrinal
standards. But between the freedom of belief and the exercise of said belief,
[314]
there is quite a stretch of road to travel.

B. Jurisprudence

The difficulty in interpretation sets in when belief is externalized into speech

and action.

In revisiting the landscape of Philippine jurisprudence on the religion

clauses, we begin with the definition of religion. Religion is derived from
the Middle English religioun, from Old French religion, from Latin religio,
[308]
vaguely referring to a bond between man and the gods.
This preChristian term for the cult and rituals of pagan Rome was first Christianized
[309]
in the Latin translation of the Bible.
While the U.S. Supreme Court has
had to take up the challenge of defining the parameters and contours of
religion to determine whether a non-theistic belief or act is covered by the
religion clauses, this Court has not been confronted with the same issue. In
Philippine jurisprudence, religion, for purposes of the religion clauses, has
thus far been interpreted as theistic. In 1937, the Philippine case of Aglipay
[310]
v. Ruiz
involving the Establishment Clause, defined religion as a
profession of faith to an active power that binds and elevates man to his
Creator. Twenty years later, the Court cited the Aglipay definition
[311]
in American Bible Society v. City of Manila,
a case involving the Free
Exercise clause. The latter also cited the American case of Davis in defining
religion, viz: (i)t has reference to ones views of his relations to His Creator
and to the obligations they impose of reverence to His being and character
and obedience to His Will. The Beason definition, however, has been
expanded in U.S. jurisprudence to include non-theistic beliefs.

1. Free Exercise Clause

Freedom of choice guarantees the liberty of the religious conscience
and prohibits any degree of compulsion or burden, whether direct or indirect,
in the practice of ones religion. The Free Exercise Clause principally
guarantees voluntarism, although the Establishment Clause also assures
voluntarism by placing the burden of the advancement of religious groups on
[312]
their intrinsic merits and not on the support of the state.
In interpreting the Free Exercise Clause, the realm of belief poses no
[313]
difficulty. The early case of Gerona v. Secretary of Education
is
instructive on the matter, viz:

Religious speech comes within the pale of the Free Exercise Clause
as illustrated in the American Bible Society case. In that case, plaintiff
American Bible Society was a foreign, non-stock, non-profit, religious
missionary corporation which sold bibles and gospel portions of the bible in
the course of its ministry. The defendant City of Manila required plaintiff to
secure a mayors permit and a municipal license as ordinarily required of
those engaged in the business of general merchandise under the citys
ordinances. Plaintiff argued that this amounted to religious censorship and
restrained the free exercise and enjoyment of religious profession, to wit: the
distribution and sale of bibles and other religious literature to the people of
the Philippines.
After defining religion, the Court, citing Tanada and Fernando, made this
statement, viz:
The constitutional guaranty of the free exercise and enjoyment of religious
profession and worship carries with it the right to disseminate religious
information. Any restraint of such right can only be justifiedlike other
restraints of freedom of expression on the grounds that there is a clear
and present danger of any substantive evil which the State has the right
to prevent. (Tanada and Fernando on the Constitution of the Philippines,
th
vol. 1, 4 ed., p. 297) (emphasis supplied)
This was the Courts maiden unequivocal affirmation of the clear and
present danger rule in the religious freedom area, and in Philippine
[315]
jurisprudence, for that matter.
The case did not clearly show, however,
whether the Court proceeded to apply the test to the facts and issues of the
case, i.e., it did not identify the secular value the government regulation
sought to protect, whether the religious speech posed a clear and present
danger to this or other secular value protected by government, or whether
there was danger but it could not be characterized as clear and present. It is
one thing to apply the test and find that there is no clear and present danger,
and quite another not to apply the test altogether.
Instead, the Court categorically held that the questioned ordinances
were not applicable to plaintiff as it was not engaged in the business or

occupation of selling said merchandise for profit. To add, the Court,

[316]
citing Murdock v. Pennsylvania,
ruled that applying the ordinance
requiring it to secure a license and pay a license fee or tax would impair its
free exercise of religious profession and worship and its right of
dissemination of religious beliefs as the power to tax the exercise of a
privilege is the power to control or suppress its enjoyment. Thus, inAmerican
Bible Society, the clear and present danger rule was laid down but it was
not clearly applied.
[317]

In the much later case of Tolentino v. Secretary of Finance,

also
involving the sale of religious books, the Court distinguished the American
Bible Society case from the facts and issues in Tolentino and did not apply
the American Bible Society ruling. In Tolentino, the Philippine Bible
Society challenged the validity of the registration provisions of the Value
Added Tax (VAT) Law as a prior restraint. The Court held, however, that the
fixed amount of registration fee was not imposed for the exercise of a
privilege like a license tax whichAmerican Bible Society ruled was violative
of religious freedom. Rather, the registration fee was merely an
administrative fee to defray part of the cost of registration which was a
central feature of the VAT system. Citing Jimmy Swaggart Ministries v.
[318]
Board of Equalization,
the Court also declared prefatorily that the Free
Exercise of Religion Clause does not prohibit imposing a generally applicable
sales and use tax on the sale of religious materials by a religious
organization. In the Courts resolution of the motion for reconsideration of
the Tolentino decision, the Court noted that the burden on religious
freedom caused by the tax was just similar to any other economic imposition
that might make the right to disseminate religious doctrines costly.
Two years after American Bible Society came the 1959 case of
[319]
Gerona
v.
Secretary
of
Education,
this
time
involving conduct expressive of religious belief colliding with a rule
prescribed in accordance with law. In this case, petitioners were members of
the Jehovahs Witnesses. They challenged a Department Order issued by the
Secretary of Education implementing Republic Act No. 1265 which
prescribed compulsory flag ceremonies in all public schools. In violation of
the Order, petitioners children refused to salute the Philippine flag, sing the
national anthem, or recite the patriotic pledge, hence they were expelled from
school. Seeking protection under the Free Exercise Clause, petitioners
claimed that their refusal was on account of their religious belief that the
Philippine flag is an image and saluting the same is contrary to their religious
belief. The Court stated, viz:
. . . If the exercise of religious belief clashes with the established institutions
of society and with the law, then the former must yield to the latter. The
Government steps in and either restrains said exercise or even prosecutes
[320]
the one exercising it. (emphasis supplied)

The Court then proceeded to determine if the acts involved constituted a

religious ceremony in conflict with the beliefs of the petitioners with the
following justification:
After all, the determination of whether a certain ritual is or is not a religious
ceremony must rest with the courts. It cannot be left to a religious group or
sect, much less to a follower of said group or sect; otherwise, there would be
confusion and misunderstanding for there might be as many interpretations
and meaning to be given to a certain ritual or ceremony as there are religious
groups or sects or followers, all depending upon the meaning which they,
though in all sincerity and good faith, may want to give to such ritual or
[321]
ceremony.
It was held that the flag was not an image, the flag salute was not a religious
ceremony, and there was nothing objectionable about the singing of the
national anthem as it speaks only of love of country, patriotism, liberty and
the glory of suffering and dying for it. The Court upheld the questioned Order
and the expulsion of petitioners children, stressing that:
Men may differ and do differ on religious beliefs and creeds, government
policies, the wisdom and legality of laws, even the correctness of judicial
decisions and decrees; but in the field of love of country, reverence for the
flag, national unity and patriotism, they can hardly afford to differ, for these
are matters in which they are mutually and vitally interested, for to them, they
[322]
mean national existence and survival as a nation or national extinction.
In support of its ruling, the Court cited Justice Frankfurters dissent in
the Barnette case, viz:
The constitutional protection of religious freedom x x x gave religious
equality, not civil immunity. Its essence is freedom from conformity to
religious dogma, not freedom from conformity to law because of religious
[323]
dogma.
It stated in categorical terms, viz:
The freedom of religious belief guaranteed by the Constitution does not
and cannot mean exemption from or non-compliance with reasonable and
non-discriminatory laws, rules and regulations promulgated by competent
[324]
authority.
Thus, the religious freedom doctrines one can derive from Gerona are:
(1) it is incumbent upon the Court to determine whether a certain ritual is
religious or not; (2) religious freedom will not be upheld if it clashes with
the established institutions of society and with the law such that when

a law of general applicability (in this case the Department Order)

incidentally burdens the exercise of ones religion, ones right to
religious freedom cannot justify exemption from compliance with the
law. The Gerona ruling was reiterated inBalbuna, et al. v. Secretary of
[325]
Education, et al.
Fifteen years after Gerona came the 1974 case of Victoriano v.
[326]
Elizalde Rope Workers Union.
In this unanimously decided en
banc case, Victoriano was a member of the Iglesia ni Cristo which prohibits
the affiliation of its members with any labor organization. He worked in the
Elizalde Rope Factory, Inc. and was a member of the Elizalde Rope Workers
Union which had with the company a closed shop provision pursuant to
Republic Act No. 875 allowing closed shop arrangements. Subsequently,
Republic Act No. 3350 was enacted exempting from the application and
coverage of a closed shop agreement employees belonging to any religious
sect which prohibits affiliation of their members with any labor
organization. Victoriano resigned from the union after Republic Act No. 3350
took effect. The union notified the company of Victorianos resignation, which
in turn notified Victoriano that unless he could make a satisfactory
arrangement with the union, the company would be constrained to dismiss
him from the service. Victoriano sought to enjoin the company and the union
from dismissing him.The court having granted the injunction, the union came
to this Court on questions of law, among which was whether Republic Act
No. 3350 was unconstitutional for impairing the obligation of contracts and for
granting an exemption offensive of the Establishment Clause. With respect to
the first issue, the Court ruled, viz:
Religious freedom, although not unlimited, is a fundamental personal right
and liberty (Schneider v. Irgington, 308 U.S. 147, 161, 84 L.ed.155, 164, 60
S.Ct. 146) and has a preferred position in the hierarchy of
values. Contractual rights, therefore, must yield to freedom of religion. It is
only where unavoidably necessary to prevent an immediate and grave
danger to the security and welfare of the community that infringement
of religious freedom may be justified, and only to the smallest extent
[327]
necessary.
(emphasis supplied)
As regards the Establishment Clause issue, the Court after citing the
constitutional provision on establishment and free exercise of religion,
declared, viz:
The constitutional provisions not only prohibits legislation for the support of
any religious tenets or the modes of worship of any sect, thus forestalling
compulsion by law of the acceptance of any creed or the practice of any form
of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also
assures the free exercise of ones chosen form of religion within limits of
utmost amplitude. It has been said that the religion clauses of the

Constitution are all designed to protect the broadest possible liberty of

conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live,
consistent with the liberty of others and with the common
good. (footnote omitted). Any legislation whose effect or purpose is to
impede the observance of one or all religions, or to discriminate
invidiously between the religions, is invalid, even though the burden
may be characterized as being only indirect. (Sherbert v. Verner, 374
U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates
conduct by enacting, within its power, a general law which has for its
purpose and effect to advance the states secular goals, the statute is
valid despite its indirect burden on religious observance, unless the
state can accomplish its purpose without imposing such burden.
(Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144;
[328]
McGowan v. Maryland, 366 U.S. 420, 444-5 and 449)
(emphasis
supplied)
[329]

Quoting Aglipay v. Ruiz,

the Court held that government is not
precluded from pursuing valid objectives secular in character even if the
incidental result would be favorable to a religion or sect. It also cited Board
[330]
of Education v. Allen,
which held that in order to withstand the strictures
of constitutional prohibition, a statute must have a secular legislative purpose
and a primary effect that neither advances nor inhibits religion. Using these
criteria in upholding Republic Act No. 3350, the Court pointed out, viz:
(Republic Act No. 3350) was intended to serve the secular purpose of
advancing the constitutional right to the free exercise of religion, by averting
that certain persons be refused work, or be dismissed from work, or be
dispossessed of their right to work and of being impeded to pursue a modest
means of livelihood, by reason of union security agreements. . . . The primary
effects of the exemption from closed shop agreements in favor of members
of religious sects that prohibit their members from affiliating with a labor
organization, is the protection of said employees against the aggregate force
of the collective bargaining agreement, and relieving certain citizens of a
burden on their religious beliefs, and . . . eliminating to a certain extent
[331]
economic insecurity due to unemployment.
The Court stressed that (a)lthough the exemption may benefit those
who are members of religious sects that prohibit their members from joining
labor unions, the benefit upon the religious sects is merely incidental and
[332]
indirect.
In enacting Republic Act No. 3350, Congress merely relieved
the exercise of religion by certain persons of a burden imposed by
union security agreements which Congress itself also imposed through
the Industrial Peace Act. The Court concluded the issue of exemption by
citing Sherbert which laid down the rule that when general laws conflict with
scruples of conscience, exemptions ought to be granted unless some

compelling state interest intervenes. The Court then abruptly added that (i)n
the instant case, We see no compelling state interest to withhold
[333]
exemption.
A close look at Victoriano would show that the Court mentioned several
tests in determining when religious freedom may be validly limited. First, the
Court mentioned the test of immediate and grave danger to the security and
welfare of the community and infringement of religious freedom only to the
smallest
extent
necessary
to
justify
limitation
of
religious
freedom. Second, religious exercise may be indirectly burdened by a general
law which has for its purpose and effect the advancement of the states
secular goals, provided that there is no other means by which the state can
accomplish this purpose without imposing such burden. Third, the Court
referred to the compelling state interest test which grants exemptions when
general laws conflict with religious exercise, unless a compelling state
interest intervenes.
It is worth noting, however, that the first two tests were mentioned only
for the purpose of highlighting the importance of the protection of religious
freedom as the secular purpose of Republic Act No. 3350. Upholding
religious freedom was a secular purpose insofar as it relieved the burden on
religious freedom caused by another law, i.e, the Industrial Peace Act
providing for union shop agreements. The first two tests were only mentioned
in Victoriano but were not applied by the Court to the facts and issues of the
case. The third, the compelling state interest test was employed by the Court
to determine whether the exemption provided by Republic Act No. 3350 was
not unconstitutional. It upheld the exemption, stating that there was no
compelling state interest to strike it down. However, after careful
consideration of the Sherbert case from which Victoriano borrowed this
test, the inevitable conclusion is that the compelling state interest test was
not appropriate and could not find application in the Victoriano
case. In Sherbert, appellant Sherbert invoked religious freedom in seeking
exemption from the provisions of the South Carolina Unemployment
Compensation Act which disqualified her from claiming unemployment
benefits. It was the appellees, members of the South Carolina Employment
Commission, a government agency, who propounded the state interest to
justify overriding Sherberts claim of religious freedom. The U.S. Supreme
Court, considering Sherberts and the Commissions arguments, found that
the state interest was not sufficiently compelling to prevail over Sherberts
free exercise claim. This situation did not obtain in the Victoriano
case where it was the government itself, through Congress, which provided
the exemption in Republic Act No. 3350 to allow Victorianos exercise of
religion. Thus, the government could not argue against the exemption on the
basis of a compelling state interest as it would be arguing against itself; while
Victoriano would not seek exemption from the questioned law to allow the
free exercose of religion as the law in fact provides such an exemption. In
sum, although Victoriano involved a religious belief and conduct, it did not

involve a free exercise issue where the Free Exercise Clause is invoked to
exempt him from the burden imposed by a law on his religious freedom.
Victoriano was reiterated in several cases involving the Iglesia ni
Cristo, namely Basa, et al. v. Federacion Obrera de la Industria
[334]
Tabaquera y Otros Trabajadores de Filipinas,
Anucension v.
[335]
National Labor Union, et al.,
and Gonzales, et al. v. Central Azucarera
[336]
de Tarlac Labor Union.
Then came German v. Barangan in 1985 at the height of the antiadministration rallies. Petitioners were walking to St. Jude Church within the
Malacanang security area to pray for an end to violence when they were
barred by the police. Invoking their constitutional freedom of religious worship
and locomotion, they came to the Court on a petition for mandamus to allow
them to enter and pray inside the St. Jude Chapel. The Court was divided on
the issue. The slim majority of six recognized their freedom of religion but
noted their absence of good faith and concluded that they were using their
religious
liberty
to
express
their
opposition
to
the
government. Citing Cantwell, the Court distinguished between freedom to
believe and freedom to act on matters of religion, viz:
. . . Thus the (First) amendment embraces two concepts - freedom to believe
and freedom to act. The first is absolute, but in the nature of things, the
[337]
second cannot be.
The Court reiterated the Gerona ruling, viz:
In the case at bar, petitioners are not denied or restrained of their freedom of
belief or choice of their religion, but only in the manner by which they had
attempted to translate the same to action. This curtailment is in accord
with the pronouncement of this Court in Gerona v. Secretary of Education
(106 Phil. 2), thus:
. . . But between the freedom of belief and the exercise of said belief, there is
quite a stretch of road to travel. If the exercise of said religious belief clashes
with the established institutions of society and with the law, then the former
must yield and give way to the latter. The government steps in and either
restrains said exercise or even prosecutes the one exercising it. (italics
supplied)
The majority found that the restriction imposed upon petitioners was
necessary to maintain the smooth functioning of the executive branch of the
[338]
government, which petitioners mass action would certainly disrupt
and
denied the petition. Thus, without considering the tests mentioned
in Victoriano, German went back to the Gerona rule that religious

freedom will not be upheld if it clashes with the established institutions

of society and the law.
Then Associate Justice Teehankee registered a dissent which in
subsequent jurisprudence would be cited as a test in religious freedom
cases. His dissent stated in relevant part, viz:
A brief restatement of the applicable constitutional principles as set forth in
the landmark case of J.B.L. Reyes v. Bagatsing (125 SCRA 553[1983])
should guide us in resolving the issues.
1. The right to freely exercise ones religion is guaranteed in Section 8 of our
Bill of Rights. (footnote omitted) Freedom of worship, alongside with
freedom of expression and speech and peaceable assembly along with
the other intellectual freedoms, are highly ranked in our scheme of
constitutional values. It cannot be too strongly stressed that on the judiciary
- even more so than on the other departments - rests the grave and delicate
responsibility of assuring respect for and deference to such preferred
rights. No verbal formula, no sanctifying phrase can, of course, dispense with
what has been so felicitously termed by Justice Holmes as the sovereign
prerogative of judgment. Nonetheless, the presumption must be to incline
the weight of the scales of justice on the side of such rights, enjoying
as they do precedence and primacy. (J.B.L. Reyes, 125 SCRA at pp. 569570)
2. In the free exercise of such preferred rights, there is to be no prior restraint
although there may be subsequent punishment of any illegal acts committed
during the exercise of such basic rights. The sole justification for a prior
restraint or limitation on the exercise of these basic rights is the
existence of a grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals, public health
or any other legitimate public interest, that the State has a right (and
[339]
duty) to prevent (Idem, at pp. 560-561).
(emphasis supplied)
The J.B.L. Reyes v. Bagatsing case from which this portion of Justice
Teehankees dissent was taken involved the rights to free speech and
assembly, and not the exercise of religious freedom. At issue in that case
was a permit sought by retired Justice J.B.L. Reyes, on behalf of the AntiBases Coalition, from the City of Manila to hold a peaceful march and rally
from
the
Luneta
to
the
gates
of
the
U.S.
Embassy. Nevertheless Bagatsing was used by Justice Teehankee in his
dissent which had overtones of petitioner German and his companions right
[340]
to assemble and petition the government for redress of grievances.
In 1993, the issue on the Jehovahs Witnesses participation in the flag
ceremony again came before the Court in Ebralinag v. The Division

[341]

Superintendent of Schools.
A unanimous Court overturned the Gerona
ruling after three decades. Similar to Gerona, this case involved several
Jehovahs Witnesses who were expelled from school for refusing to salute the
flag, sing the national anthem and recite the patriotic pledge, in violation of
the Administrative Code of 1987. In resolving the same religious freedom
issue as in Gerona, the Court this time transported the grave and imminent
danger test laid down in Justice Teehankees dissent in German, viz:
The sole justification for a prior restraint or limitation on the exercise of
religious freedom (according to the late Chief Justice Claudio Teehankee in
his dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is the
existence of a grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals, public health or
any other legitimate public interest, that the State has a right (and duty) to
prevent. Absent such a threat to public safety, the expulsion of the petitioners
[342]
from the schools is not justified.
(emphasis supplied)
The Court added, viz:
We are not persuaded that by exempting the Jehovahs Witnesses from
saluting the flag, singing the national anthem and reciting the patriotic
pledge, this religious group which admittedly comprises a small portion of the
school population will shake up our part of the globe and suddenly produce a
nation untaught and uninculcated in and unimbued with reverence for the
flag, patriotism, love of country and admiration for national heroes (Gerona v.
Secretary of Education, 106 Phil. 224). After all, what the petitioners seek
only is exemption from the flag ceremony, not exclusion from the public
schools where they may study the Constitution, the democratic way of life
and form of government, and learn not only the arts, sciences, Philippine
history and culture but also receive training for a vocation or profession and
be taught the virtues of patriotism, respect for human rights, appreciation of
national heroes, the rights and duties of citizenship, and moral and spiritual
values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the
curricula. Expelling or banning the petitioners from Philippine schools will
bring about the very situation that this Court has feared in Gerona. Forcing a
small religious group, through the iron hand of the law, to participate in a
ceremony that violates their religious beliefs, will hardly be conducive to love
[343]
of country or respect for duly constituted authorities.
Barnette also found its way to the opinion, viz:
Furthermore, let it be noted that coerced unity and loyalty even to the
country, x x x- assuming that such unity and loyalty can be attained through
coercion- is not a goal that is constitutionally obtainable at the expense of

religious liberty. A desirable end cannot be promoted by prohibited means.

[344]
(Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046).

even mention what the Solicitor General argued as the compelling state
interest, much less did the Court explain why the interest was not sufficiently
compelling to override petitioners religious freedom.

Towards the end of the decision, the Court also cited the Victoriano
case and its use of the compelling state interest test in according exemption
to the Jehovahs Witnesses, viz:

Three years after Ebralinag, the Court decided the 1996 case of Iglesia
[348]
ni Cristo v. Court of Appeals, et al.
Although there was a dissent with
respect to the applicability of the clear and present danger test in this case,
the majority opinion in unequivocal terms applied the clear and present
danger test to religious speech. This case involved the television program,
Ang Iglesia ni Cristo, regularly aired over the television. Upon petitioner
Iglesia ni Cristos submission of the VTR tapes of some of its episodes,
respondent Board of Review for Motion Pictures and Television classified
these as X or not for public viewing on the ground that they offend and
constitute an attack against other religions which is expressly prohibited by
law.Invoking religious freedom, petitioner alleged that the Board acted
without jurisdiction or with grave abuse of discretion in requiring it to submit
the VTR tapes of its television program and x-rating them. While upholding
the Boards power to review the Iglesia television show, the Court was
emphatic about the preferred status of religious freedom. Quoting
Justice Cruz commentary on the constitution, the Court held that freedom to
believe is absolute but freedom to act on ones belief, where it affects the
public, is subject to the authority of the state. The commentary quoted
Justice Frankfurters dissent in Barnette which was quoted in Gerona, viz:
(t)he constitutional provision on religious freedom terminated disabilities, it
did not create new privileges. It gave religious liberty, not civil immunity. Its
essence is freedom from conformity to religious dogma, not freedom from
[349]
conformity to law because of religious dogma.
Nevertheless, the Court
was quick to add the criteria by which the state can regulate the exercise of
religious freedom, that is, when the exercise will bring about the clear and
present danger of some substantive evil which the State is duty bound to
prevent, i.e., serious detriment to the more overriding interest of public
[350]
health, public morals, or public welfare.

In Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, 72-75, we

upheld the exemption of members of the Iglesia ni Cristo, from the coverage
of a closed shop agreement between their employer and a union because it
would violate the teaching of their church not to join any group:
x x x It is certain that not every conscience can be accommodated by all the
laws of the land; but when general laws conflict with scruples of conscience,
exemptions ought to be granted unless some compelling state interest
intervenes. (Sherbert vs. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83
S.Ct. 1790)
We hold that a similar exemption may be accorded to the Jehovahs
Witnesses with regard to the observance of the flag ceremony out of respect
for their religious beliefs, however bizarre those beliefs may seem to
[345]
others.
The Court annulled the orders expelling petitioners from school.
Thus, the grave and imminent danger test laid down in a dissenting
opinion in German which involved prior restraint of religious worship with
overtones of the right to free speech and assembly, was transported
to Ebralinag which did not involve prior restraint of religious worship, speech
or assembly. Although, it might be observed that the Court faintly implied
thatEbralinag also involved the right to free speech when in its preliminary
remarks, the Court stated that compelling petitioners to participate in the flag
ceremony is alien to the conscience of the present generation of Filipinos
who cut their teeth on the Bill of Rights which guarantees their rights to free
speech and the free exercise of religious profession and worship; the Court
then stated in a footnote that the flag salute, singing the national anthem and
[346]
reciting the patriotic pledge are all forms of utterances.
The compelling state interest test was not fully applied by the Court
in Ebralinag. In the Solicitor Generals consolidated comment, one of the
grounds cited to defend the expulsion orders issued by the public
respondents was that (t)he States compelling interests being pursued by the
DECs lawful regulations in question do not warrant exemption of the school
children of the Jehovahs Witnesses from the flag salute ceremonies on the
[347]
basis of their own self-perceived religious convictions.
The Court,
however, referred to the test only towards the end of the decision and did not

In annulling the x-rating of the shows, the Court stressed that the
Constitution is hostile to all prior restraints on speech, including religious
speech and the x-rating was a suppression of petitioners freedom of speech
as much as it was an interference with its right to free exercise of
religion. Citing Cantwell, the Court recognized that the different religions
may criticize one another and their tenets may collide, but the Establishment
Clause prohibits the state from protecting any religion from this kind of attack.
The Court then called to mind the clear and present danger test first laid
down in the American Bible Society case and the test of immediate and
grave danger with infringement only to the smallest extent necessary to avoid
danger in Victoriano and pointed out that the reviewing board failed to apply
the clear and present danger test. Applying the test, the Court noted,viz:

The records show that the decision of the respondent Board, affirmed by the
respondent appellate court, is completely bereft of findings of facts to justify
the conclusion that the subject video tapes constitute impermissible attacks
against another religion. There is no showing whatsoever of the type of
harm the tapes will bring about especially the gravity and imminence of the
threatened harm. Prior restraint on speech, including religious speech,
cannot be justified by hypothetical fears but only by the showing of a
substantive and imminent evil which has taken the life of a reality already on
ground.

compulsory faith lacks religious efficacy. Compelled religion is a contradiction

[354]
in terms.
As a social value, it means that the growth of a religious sect
as a social force must come from the voluntary support of its members
because of the belief that both spiritual and secular society will benefit if
religions are allowed to compete on their own intrinsic merit without benefit of
official patronage. Such voluntarism cannot be achieved unless the political
process is insulated from religion and unless religion is insulated from
[355]
politics.
Non-establishment thus calls for government neutrality in
religious matters to uphold voluntarism and avoid breeding interfaith
[356]
dissension.

Replying to the challenge on the applicability of the clear and present danger
test to the case, the Court acknowledged the permutations that the test has
undergone, but stressed that the test is still applied to four types of speech:
speech that advocates dangerous ideas, speech that provokes a hostile
audience reaction, out of court contempt and release of information that
[351]
endangers a fair trial
and ruled, viz:

The neutrality principle was applied in the first significant nonestablishment case under the 1935 Constitution. In the 1937 case of Aglipay
[357]
v. Ruiz,
the Philippine Independent Church challenged the issuance and
sale of postage stamps commemorating the Thirty-Third International
Eucharistic Congress of the Catholic Church on the ground that the
constitutional prohibition against the use of public money for religious
purposes has been violated. It appears that the Director of Posts issued the
[358]
questioned stamps under the provisions of Act No. 4052
which
appropriated a sum for the cost of plates and printing of postage stamps with
new designs and authorized the Director of Posts to dispose of the sum in a
manner and frequency advantageous to the Government. The printing and
issuance of the postage stamps in question appears to have been approved
by authority of the President. Justice Laurel, speaking for the Court, took
pains explaining religious freedom and the role of religion in society, and in
conclusion, found no constitutional infirmity in the issuance and sale of the
stamps,viz:

. . . even allowing the drift of American jurisprudence, there is reason to apply

the clear and present danger test to the case at bar which concerns speech
that attacks other religions and could readily provoke hostile audience
reaction. It cannot be doubted that religious truths disturb and disturb
[352]
terribly.
In Iglesia therefore, the Court went back to Gerona insofar as holding
that religious freedom cannot be invoked to seek exemption from compliance
with a law that burdens ones religious exercise. It also reiterated the clear
and present danger test in American Bible Society and the grave and
imminent danger in Victoriano, but this time clearly justifying its applicability
and showing how the test was applied to the case.
In sum, the Philippine Supreme Court has adopted a posture of not
invalidating a law offensive to religious freedom, but carving out an
exception or upholding an exception to accommodate religious
[353]
exercise where it is justified.

2. Establishment Clause
In Philippine jurisdiction, there is substantial agreement on the
values sought to be protected by the Establishment Clause, namely,
voluntarism and insulation of the political process from interfaith
dissension. The first, voluntarism, has both a personal and a social
dimension. As a personal value, it refers to the inviolability of the human
conscience which, as discussed above, is also protected by the free exercise
clause. From the religious perspective, religion requires voluntarism because

The prohibition herein expressed is a direct corollary of the principle of

separation of church and state. Without the necessity of adverting to the
historical background of this principle in our country, it is sufficient to say that
our history, not to speak of the history of mankind, has taught us that
the union of church and state is prejudicial to both, for occasions might
arise when the state will use the church, and the church the state, as a
weapon in the furtherance of their respective ends and aims . . . It is
almost trite to say now that in this country we enjoy both religious and civil
freedom. All the officers of the Government, from the highest to the lowest, in
taking their oath to support and defend the Constitution, bind themselves to
recognize and respect the constitutional guarantee of religious freedom, with
its inherent limitations and recognized implications. It should be stated that
what is guaranteed by our Constitution is religious liberty, not mere toleration.
Religious freedom, however, as a constitutional mandate is not an
inhibition of profound reverence for religion and is not a denial of its
influence in human affairs. Religion as a profession of faith to an active
power that binds and elevates man to his Creator is recognized. And, in

so far as it instills into the minds the purest principles of morality, its
influence is deeply felt and highly appreciated. When the Filipino
people, in the preamble of their Constitution, implored the aid of Divine
Providence, in order to establish a government that shall embody their
ideals, conserve and develop the patrimony of the nation, promote the
general welfare, and secure to themselves and their posterity the
blessings of independence under a regime of justice, liberty and
democracy, they thereby manifested their intense religious nature and
placed unfaltering reliance upon Him who guides the destinies of men
and nations. The elevating influence of religion in human society is
recognized here as elsewhere. In fact, certain general concessions are
[359]
indiscriminately accorded to religious sects and denominations. . .
xxx xxx xxx
It is obvious that while the issuance and sale of the stamps in question may
be said to be inseparably linked with an event of a religious character, the
resulting propaganda, if any, received by the Roman Catholic Church, was
not the aim and purpose of the Government. We are of the opinion that the
Government should not be embarrassed in its activities simply because
of incidental results, more or less religious in character, if the purpose
had in view is one which could legitimately be undertaken by
appropriate legislation. The main purpose should not be frustrated by its
subordination to mere incidental results not contemplated. (Vide Bradfield vs.
Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44 Law. ed.,
[360]
168)
(emphases supplied)
In so deciding the case, the Court, citing U.S. jurisprudence, laid down the
doctrine that a law or government action with a legitimate secular
purpose does not offend the Establishment Clause even if it
incidentally aids a particular religion.
Almost
forty-five
years
after Aglipay came Garces
v.
[361]
Estenzo.
Although the Court found that the separation of church and
state was not at issue as the controversy was over who should have custody
of a saints image, it nevertheless made pronouncements on the separation of
church and state along the same line as the Aglipay ruling. The Court held
that there was nothing unconstitutional or illegal in holding a fiesta and
having a patron saint for the barrio. It adhered to the barrio resolutions of
the barangay involved in the case stating that thebarrio fiesta is a socioreligious affair, the celebration of which is an ingrained tradition in rural
communities that relieves the monotony and drudgery of the lives of the
masses. Corollarily, the Court found nothing illegal about any activity
intended to facilitate the worship of the patron saint such as the acquisition
and display of his image bought with funds obtained through solicitation from
the barrio residents. The Court pointed out that the image of the patron saint

was purchased in connection with the celebration of the barrio fiesta

honoring the patron saint, San Vicente Ferrer, and not for the purpose of
favoring any religion nor interfering with religious matters or the religious
beliefs of the barrio residents. Citing the Aglipay ruling, the Court
declared, viz:
Not every governmental activity which involves the expenditure of public
funds and which has some religious tint is violative of the constitutional
provisions regarding separation of church and state, freedom of worship and
banning the use of public money or property.
[362]

Then came the 1978 case of Pamil v. Teleron, et al.

which
presented a novel issue involving the religion clauses. In this case, Section
2175 of the Revised Administrative Code of 1917 disqualifying ecclesiastics
from appointment or election as municipal officer was challenged. After
protracted deliberation, the Court was sharply divided on the issue. Seven
members of the Court, one short of the number necessary to declare a law
unconstitutional, approached the problem from a free exercise perspective
and considered the law a religious test offensive of the constitution. They
were Justices Fernando, Teehankee, Muoz-Palma, Concepcion, Jr., Santos,
Fernandez, and Guerrero. Then Associate Justice Fernando, the ponente,
stated, viz: The challenged Administrative Code provision, certainly insofar
as it declares ineligible ecclesiastics to any elective or appointive office, is,
on its face, inconsistent with the religious freedom guaranteed by the
[363]
Constitution. Citing Torcaso v. Watkins,
the ponencia held, viz:
Torcaso v. Watkins, an American Supreme Court decision, has persuasive
weight. What was there involved was the validity of a provision in the
Maryland Constitution prescribing that no religious test ought ever to be
required as a disqualification for any office or profit or trust in this State, other
than a declaration of belief in the existence of God ***. Such a constitutional
requirement was assailed as contrary to the First Amendment of the United
States Constitution by an appointee to the office of notary public in Maryland,
who was refused a commission as he would not declare a belief in God. He
failed in the Maryland Court of Appeals but prevailed in the United States
Supreme Court, which reversed the state court decision. It could not have
been otherwise. As emphatically declared by Justice Black: this Maryland
religious test for public office unconstitutionally invades the appellants
freedom of belief and religion and therefore cannot be enforced against him.
The analogy appears to be obvious. In that case, it was lack of belief in God
that was a disqualification. Here being an ecclesiastic and therefore
professing a religious faith suffices to disqualify for a public office. There is
thus an incompatibility between the Administrative Code provision relied
[364]
upon by petitioner and an express constitutional mandate.

On the other hand, the prevailing five other members of the Court Chief Justice Castro, Justices Barredo, Makasiar, Antonio and Aquino approached the case from a non-establishment perspective and upheld the
law as a safeguard against the constant threat of union of church and state
that has marked Philippine history. Justice Makasiar stated: To allow an
ecclesiastic to head the executive department of a municipality is to permit
the erosion of the principle of separation of Church and State and thus open
the floodgates for the violation of the cherished liberty of religion which the
constitutional provision seeks to enforce and protect. Consequently, the
Court upheld the validity of Section 2175 of the Revised Administrative Code
and declared respondent priest ineligible for the office of municipal mayor.
Another type of cases interpreting the establishment clause deals with
[365]
intramural religious disputes. Fonacier v. Court of Appeals
is the
leading case. The issue therein was the right of control over certain
properties of the Philippine Independent Church, the resolution of which
necessitated the determination of who was the legitimate bishop of the
[366]
church. The Court cited American Jurisprudence,
viz:
Where, however, a decision of an ecclesiastical court plainly violates the law
it professes to administer, or is in conflict with the law of the land, it will not
be followed by the civil courts. . . In some instances, not only have the civil
courts the right to inquire into the jurisdiction of the religious tribunals and the
regularity of their procedure, but they have subjected their decisions to the
test of fairness or to the test furnished by the constitution and the law of the
[367]
church. . .
The Court then ruled that petitioner Fonacier was legitimately ousted and
respondent de los Reyes was the duly elected head of the Church, based on
their internal laws. To finally dispose of the property issue, the Court,
[368]
citing Watson v. Jones,
declared that the rule in property controversies
within religious congregations strictly independent of any other superior
ecclesiastical association (such as the Philippine Independent Church) is that
the rules for resolving such controversies should be those of any voluntary
association. If the congregation adopts the majority rule then the majority
should prevail; if it adopts adherence to duly constituted authorities within the
congregation, then that should be followed. Applying these rules, Fonacier
lost the case. While the Court exercised jurisdiction over the case, it
nevertheless refused to touch doctrinal and disciplinary differences
raised, viz:
The amendments of the constitution, restatement of articles of religion and
abandonment of faith or abjuration alleged by appellant, having to do with
faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule
of a church and having reference to the power of excluding from the church

those allegedly unworthy of membership, are unquestionably ecclesiastical

[369]
matters which are outside the province of the civil courts.

VIII. Free Exercise Clause vis--vis Establishment Clause

In both Philippine and U.S. jurisdiction, it is recognized that there is a
tension between the Free Exercise Clause and the Establishment
Clause in their application. There is a natural antagonism between a
command not to establish religion and a command not to inhibit its practice;
this tension between the religion clauses often leaves the courts with a
[370]
choice between competing values in religion cases.
One set of facts, for instance, can be differently viewed from the
Establishment Clause perspective and the Free Exercise Clause point of
view, and decided in opposite directions. InPamil, the majority gave more
weight to the religious liberty of the priest in holding that the prohibition of
ecclesiastics to assume elective or appointive government positions was
violative of the Free Exercise Clause. On the other hand, the prevailing five
justices gave importance to the Establishment Clause in stating that the
principle of separation of church and state justified the prohibition.
Tension is also apparent when a case is decided to uphold the Free
Exercise Clause and consequently exemptions from a law of general
applicability are afforded by the Court to the person claiming religious
freedom; the question arises whether the exemption does not amount to
support of the religion in violation of the Establishment Clause. This was the
case in the Free Exercise Clause case of Sherbert where the U.S. Supreme
Court ruled, viz:
In holding as we do, plainly we are not fostering the establishment of the
Seventh-day Adventist religion in South Carolina, for the extension of
unemployment benefits to Sabbatarians in common with Sunday worshippers
reflects nothing more than the governmental obligation of neutrality in
the face of religious differences, and does not represent that involvement
of religious with secular institutions which it is the object of the Establishment
[371]
Clause to forestall.
(emphasis supplied)
Tension also exists when a law of general application provides
exemption in order to uphold free exercise as in the Walz case where the
appellant argued that the exemption granted to religious organizations, in
effect, required him to contribute to religious bodies in violation of the
Establishment Clause. But the Court held that the exemption was not a case
of establishing religion but merely upholding the Free Exercise Clause by

sparing the exercise of religion from the burden of property taxation levied on
private profit institutions. Justice Burger wrote, viz:
(t)he Court has struggled to find a neutral course between the two religion
clauses, both of which are cast in absolute terms, and either of which, if
[372]
expanded to a logical extreme, would tend to clash with the other.
Similarly, the Philippine Supreme Court in the Victoriano case held that the
exemption afforded by law to religious sects who prohibit their members from
joining unions did not offend the Establishment Clause. We ruled, viz:
We believe that in enacting Republic Act No. 3350, Congress acted
consistently with the spirit of the constitutional provision. It acted merely
to relieve the exercise of religion, by certain persons, of a burden that is
[373]
imposed by union security agreements.
(emphasis supplied)
Finally, in some cases, a practice is obviously violative of the
Establishment Clause but the Court nevertheless upholds it. In Schempp,
Justice Brennan stated: (t)here are certain practices, conceivably violative of
the Establishment Clause, the striking down of which might seriously
interfere with certain religious liberties also protected by the First
Amendment.
How the tension between the Establishment Clause and the Free
Exercise Clause will be resolved is a question for determination in the actual
cases that come to the Court. In cases involving both the Establishment
Clause and the Free Exercise Clause, the two clauses should be balanced
against each other. The courts must review all the relevant facts and
determine whether there is a sufficiently strong free exercise right that should
prevail over the Establishment Clause problem. In the United States, it has
been proposed that in balancing, the free exercise claim must be given an
edge not only because of abundant historical evidence in the colonial and
early national period of the United States that the free exercise principle long
antedated any broad-based support of disestablishment, but also because an
Establishment Clause concern raised by merely accommodating a citizens
free exercise of religion seems far less dangerous to the republic than pure
establishment cases. Each time the courts side with the Establishment
Clause in cases involving tension between the two religion clauses, the
courts convey a message of hostility to the religion that in that case cannot
[374]
be freely exercised.
American professor of constitutional law, Laurence
Tribe, similarly suggests that the free exercise principle should be dominant
in any conflict with the anti-establishment principle. This dominance would be
the result of commitment to religious tolerance instead of thwarting at all
[375]
costs even the faintest appearance of establishment.
In our jurisdiction,
Fr. Joaquin Bernas, S.J. asserts that a literal interpretation of the religion
clauses does not suffice. Modern society is characterized by the expanding

regulatory arm of government that reaches a variety of areas of human

conduct and an expanding concept of religion. To adequately meet the
demands of this modern society, the societal values the religion clauses are
intended to protect must be considered in their interpretation and resolution
of the tension. This, in fact, has been the approach followed by the Philippine
[376]
Court.

IX. Philippine Religion Clauses: Nature, Purpose, Tests

Based on Philippine and American Religion Clause History,
Law and Jurisprudence
The history of the religion clauses in the 1987 Constitution shows that
these clauses were largely adopted from the First Amendment of the U.S.
Constitution. The religion clauses in the First Amendment were contained in
every organic Act of the Philippines under the American regime. When the
delegates of the 1934 Constitutional Convention adopted a Bill of Rights in
the 1935 Constitution, they purposely retained the phraseology of the religion
clauses in the First Amendment as contained in the Jones Law in order to
adopt its historical background, nature, extent and limitations. At that time,
there were not too many religion clause cases in the United States as the
U.S. Supreme Court decided an Establishment Clause issue only in the
1947 Everson case. The Free Exercise Clause cases were also scarce
then. Over the years, however, with the expanding reach of government
regulation to a whole gamut of human actions and the growing plurality and
activities of religions, the number of religion clause cases in the U.S.
exponentially increased. With this increase came an expansion of the
interpretation of the religion clauses, at times reinforcing prevailing case law,
at other times modifying it, and still at other times creating contradictions so
that two main streams of jurisprudence had become identifiable. The first
stream employs separation while the second employs benevolent
neutrality in interpreting the religious clauses. Alongside this change in the
landscape of U.S. religion clause jurisprudence, the Philippines continued to
adopt the 1935 Constitution religion clauses in the 1973 Constitution and
later, the 1987 Constitution.Philippine jurisprudence and commentaries
on the religious clauses also continued to borrow authorities from U.S.
jurisprudence without articulating the stark distinction between the two
streams of U.S. jurisprudence. One might simply conclude that the
Philippine Constitutions and jurisprudence also inherited the disarray of U.S.
religion clause jurisprudence and the two identifiable streams; thus, when a
religion clause case comes before the Court, a separationist approach or
a benevolent neutrality approach might be adopted and each will have U.S.
authorities to support it. Or, one might conclude that as the history of the First
Amendment
as
narrated
by
the
Court
in Everson supports
the separationistapproach, Philippine jurisprudence should also follow this

approach in light of the Philippine religion clauses history. As a result, in a

case where the party claims religious liberty in the face of a general law that
inadvertently burdens his religious exercise, he faces an almost
insurmountable wall in convincing the Court that the wall of separation would
not be breached if the Court grants him an exemption. These conclusions,
however, are not and were never warranted by the 1987, 1973 and 1935
Constitutions as shown by other provisions on religion in all three
constitutions. It is a cardinal rule in constitutional construction that the
constitution must be interpreted as a whole and apparently conflicting
provisions should be reconciled and harmonized in a manner that will give to
[377]
all of them full force and effect.
From this construction, it will be
ascertained that the intent of the framers was to adopt a benevolent
neutrality approach in interpreting the religious clauses in the
Philippine constitutions, and the enforcement of this intent is the goal of
[378]
construing the constitution.
We first apply the hermeneutical scalpel to dissect the 1935
Constitution. At the same time that the 1935 Constitution provided for an
Establishment Clause, it also provided for tax exemption of church property
in Article VI, Section 22, par. 3(b), viz:
(3) Cemeteries, churches, and parsonages or convents, appurtenant
thereto, and all lands, buildings, and improvements used exclusively
for religious, charitable, or educational purposes shall be exempt from
taxation.
Before the advent of the 1935 Constitution, Section 344 of the Administrative
Code provided for a similar exemption. To the same effect, the TydingsMcDuffie Law contained a limitation on the taxing power of the Philippine
[379]
government during the Commonwealth period.
The original draft of the
Constitution placed this provision in an ordinance to be appended to the
Constitution because this was among the provisions prescribed by the
Tydings-McDuffie Law. However, in order to have a constitutional guarantee
for such an exemption even beyond the Commonwealth period, the provision
was introduced in the body of the Constitution on the rationale that if
churches, convents [rectories or parsonages] and their accessories are
always necessary for facilitating the exercise of such [religious] freedom, it
would also be natural that their existence be also guaranteed by exempting
[380]
them from taxation.
The amendment was readily approved with 83
[381]
affirmative votes against 15 negative votes.
The Philippine constitutional provision on tax exemption is not found in
the U.S. Constitution. In the U.S. case of Walz, the Court struggled to justify
this kind of exemption to withstand Establishment Clause scrutiny by stating
that church property was not singled out but was exempt along with property
owned by non-profit, quasi-public corporations because the state upheld the
secular policy that considers these groups as beneficial and stabilizing

influences in community life and finds this classification useful, desirable, and
in the public interest. The Court also stated that the exemption was meant to
relieve the burden on free exercise imposed by property taxation. At the
same time, however, the Court acknowledged that the exemption was an
exercise of benevolent neutrality to accommodate a long-standing tradition
of exemption. With the inclusion of the church property tax exemption in the
body of the 1935 Constitution and not merely as an ordinance appended to
the Constitution, the benevolent neutrality referred to in the Walz case was
given constitutional imprimatur under the regime of the 1935
Constitution. The provision, as stated in the deliberations, was an
acknowledgment of the necessity of the exempt institutions to the exercise of
religious liberty, thereby evincing benevolence towards religious exercise.
Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:
(3) No public money, or property shall ever be appropriated, applied, or used,
directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution or system of religion, for the use, benefit
or support of any priest, preacher, ministers or other religious teacher or
dignitary as such, except when such priest, preacher, minister, or
dignitary is assigned to the armed forces or to any penal institution,
orphanage, or leprosarium. (emphasis supplied)
The original draft of this provision was a reproduction of a portion of section 3
of the Jones Law which did not contain the above exception, viz:
No public money or property shall ever be appropriated, applied, or used,
directly or indirectly, for the use, benefit, or support of any sect, church
denomination, sectarian institution, or system of religion, or for the use,
[382]
benefit or support of any priest, preacher, minister, or dignitary as such
In the deliberations of this draft provision, an amendment was proposed to
[383]
strike down everything after church denomination.
The proposal intended
to imitate the silence of the U.S. Constitution on the subject of support for
priests and ministers. It was also an imitation of the silence of the Malolos
Constitution to restore the situation under the Malolos Constitution and prior
to the Jones Law, when chaplains of the revolutionary army received pay
from public funds with no doubt about its legality. It was pointed out,
however, that even with the prohibition under the Jones Law, appropriations
were made to chaplains of the national penitentiary and the Auditor General
upheld its validity on the basis of a similar United States practice. But it was
also pointed out that the U.S. Constitution did not contain a prohibition on
[384]
appropriations similar to the Jones Law.
To settle the question on the
constitutionality of payment of salaries of religious officers in certain
government institutions and to avoid the feared situation where the
enumerated government institutions could not employ religious officials with

compensation, the exception in the 1935 provision was introduced and

approved. The provision garnered 74 affirmative votes against 34 negative
[385]
votes.
As pointed out in the deliberations, the U.S. Constitution does not
provide for this exemption. However, the U.S. Supreme Court in Cruz v.
Beto, apparently taking a benevolent neutrality approach, implicitly approved
the state of Texas payment of prison chaplains salaries as reasonably
necessary to permit inmates to practice their religion. Also, in the Marsh
case, the U.S. Supreme Court upheld the long-standing tradition of
beginning legislative sessions with prayers offered by legislative chaplains
retained at taxpayers expense. The constitutional provision exempting
religious officers in government institutions affirms the departure of the
Philippine Constitution from the U.S. Constitution in its adoption of
benevolent neutrality in Philippine jurisdiction.While the provision prohibiting
aid to religion protects the wall of separation between church and state, the
provision at the same time gives constitutional sanction to a breach in the
wall.
To further buttress the thesis that benevolent neutrality is contemplated
in the Philippine Establishment Clause, the 1935 Constitution provides for
optional religious instruction in public schools in Article XIII, Section 5, viz:
. . . Optional religious instruction shall be maintained in the public schools as
now authorized by law. . .
The law then applicable was Section 928 of the Administrative Code, viz:
It shall be lawful, however, for the priest or minister of any church established
in the town where a public school is situated, either in person or by a
designated teacher of religion, to teach religion for one-half hour three times
a week, in the school building, to those public-school pupils whose parents or
guardians desire it and express their desire therefor in writing filed with the
principal of the school . . .
During the debates of the Constitutional Convention, there were three
positions on the issue of religious instruction in public schools. The first held
that the teaching of religion in public schools should be prohibited as this was
a violation of the principle of separation of church and state and the
prohibition against the use of public funds for religious purposes. The second
favored the proposed optional religious instruction as authorized by the
Administrative Code and recognized that the actual practice of allowing
religious instruction in the public schools was sufficient proof that religious
instruction was not and would not be a source of religious discord in the
[386]
schools.
The third wanted religion to be included as a course in the
curriculum of the public schools but would only be taken by pupils at the
option of their parents or guardians. After several rounds of debate, the
second camp prevailed, thus raising to constitutional stature the optional

teaching of religion in public schools, despite the opposition to the provision

[387]
on the ground of separation of church and state.
As in the provisions on
church property tax exemption and compensation of religious officers in
government institutions, the U.S. Constitution does not provide for optional
religious instruction in public schools. In fact, in theMcCollum case, the
Court, using strict neutrality, prohibited this kind of religious instruction
where the religion teachers would conduct class within the school
premises. The constitutional provision on optional religious instruction shows
that Philippine jurisdiction rejects the strict neutrality approach which does
not allow such accommodation of religion.
Finally, to make certain the Constitutions benevolence to religion, the
Filipino people implored (ing) the aid of Divine Providence (,) in order to
establish a government that shall embody their ideals, conserve and develop
the patrimony of the nation, promote the general welfare, and secure to
themselves and their posterity the blessings of independence under a regime
of justice, liberty, and democracy, (in) ordain(ing) and promulgat(ing) this
Constitution. A preamble is a key to open the mind of the authors of the
constitution as to the evil sought to be prevented and the objects sought to
[388]
be accomplished by the provisions thereof.
There was no debate on the
inclusion of a Divine Providence in the preamble. In Aglipay, Justice Laurel
noted that when the Filipino people implored the aid of Divine Providence,
(t)hey thereby manifested their intense religious nature and placed
unfaltering reliance upon Him who guides the destinies of men and
[389]
nations.
The 1935 Constitutions religion clauses, understood alongside
the other provisions on religion in the Constitution, indubitably shows not
[390]
hostility, but benevolence, to religion.
The 1973 Constitution contained in Article VI, Section 22(3) a provision
similar to Article VI, Section 22, par. 3(b) of the 1935 Constitution on
exemption of church property from taxation, with the modification that the
property should not only be used directly, but also actually and exclusively for
religious or charitable purposes. Parallel to Article VI, Section 23(3) of the
1935 Constitution, the 1973 Constitution also contained a similar provision on
salaries of religious officials employed in the enumerated government
institutions. Article XIII, Section 5 of the 1935 Constitution on optional
religious instruction was also carried to the 1973 Constitution in Article XV,
Section 8(8) with the modification that optional religious instruction shall be
conducted as may be provided by law and not as now authorized by law as
stated in the 1935 Constitution. The 1973 counterpart, however, made
explicit in the constitution that the religious instruction in public elementary
and high schools shall be done (a)t the option expressed in writing by the
parents or guardians, and without cost to them and the government. With the
adoption of these provisions in the 1973 Constitution, the benevolent
neutrality approach continued to enjoy constitutional sanction. In Article XV,
Section 15 of the General Provisions of the 1973 Constitution this provision
made its maiden appearance: (t)he separation of church and state shall be

inviolable. The 1973 Constitution retained the portion of the preamble

imploring the aid of Divine Providence.
In the Report of the Ad Hoc Sub-Committee on Goals, Principles and
Problems of the Committee on Church and State of the 1971 Constitutional
Convention, the question arose as to whether the absolute separation of
Church and State as enunciated in the Everson case and reiterated
in Schempp - i.e., neutrality not only as between one religion and another
but even as between religion and non-religion - is embodied in the Philippine
Constitution. The sub-committees answer was that it did not seem so. Citing
the Aglipay case where Justice Laurel recognized the elevating influence of
religion in human society and the Filipinos imploring of Divine Providence in
the 1935 Constitution, the sub-committee asserted that the state may not
prefer or aid one religion over another, but may aid all religions equally or the
[391]
cause of religion in general.
Among the position papers submitted to the
Committee on Church on State was a background paper for reconsideration
of the religion provisions of the constitution by Fr. Bernas, S.J. He stated
therein that the Philippine Constitution is not hostile to religion and in fact
recognizes the value of religion and accommodates religious
[392]
values.
Stated otherwise, the Establishment Clause contemplates not a
strict neutrality but benevolent neutrality. While the Committee introduced the
provision on separation of church and state in the General Provisions of the
1973 Constitution, this was nothing new as according to it, this principle was
implied in the 1935 Constitution even in the absence of a similar
[393]
provision.
Then came the 1987 Constitution. The 1973 Constitutional provision on
tax exemption of church property was retained with minor modification in
Article VI, Section 28(3) of the 1987 Constitution. The same is true with
respect to the prohibition on the use of public money and property for
religious purposes and the salaries of religious officers serving in the
enumerated government institutions, now contained in Article VI, Section
29(2). Commissioner Bacani, however, probed into the possibility of allowing
the government to spend public money for purposes which might have
religious connections but which would benefit the public generally. Citing
the Aglipay case, Commissioner Rodrigo explained that if a public
expenditure would benefit the government directly, such expense would be
constitutional even if it results to an incidental benefit to religion. With that
[394]
explanation, Commissioner Bacani no longer pursued his proposal.
The provision on optional religious instruction was also adopted in the
1987 Constitution in Article XIV, Section 3(3) with the modification that it was
expressly provided that optional instruction shall be conducted within the
regular class hours and without additional cost to the government. There
were protracted debates on what additional cost meant, i.e., cost over and
above what is needed for normal operations such as wear and tear,
[395]
electricity, janitorial services,
and when during the day instruction would
[396]
be conducted.
In deliberating on the phrase within the regular class

hours, Commissioner Aquino expressed her reservations to this proposal as

this would violate the time-honored principle of separation of church and
state.She cited the McCullom case where religious instruction during regular
school hours was stricken down as unconstitutional and also cited what she
considered the most liberal interpretation of separation of church and state
in Surach v. Clauson where the U.S. Supreme Court allowed only release
time for religious instruction. Fr. Bernas replied, viz:
. . . the whole purpose of the provision was to provide for an exception to
the rule on non-establishment of religion, because if it were not
necessary to make this exception for purposes of allowing religious
instruction, then we could just drop the amendment. But, as a matter of fact,
this is necessary because we are trying to introduce something here
[397]
which is contrary to American practices.
(emphasis supplied)
(W)ithin regular class hours was approved.
The provision on the separation of church and state was retained but
placed under the Principles in the Declaration of Principles and State Policies
in Article II, Section 6. In opting to retain the wording of the provision, Fr.
Bernas stated, viz:
. . . It is true, I maintain, that as a legal statement the sentence The
separation of Church and State is inviolable, is almost a useless statement;
but at the same time it is a harmless statement. Hence, I am willing to
tolerate it there, because, in the end, if we look at the jurisprudence on
Church and State, arguments are based not on the statement of separation
of church and state but on the non-establishment clause in the Bill of
[398]
Rights.
The preamble changed Divine Providence in the 1935 and 1973
Constitutions to Almighty God. There was considerable debate on whether to
use Almighty God which Commissioner Bacani said was more reflective of
Filipino religiosity, but Commissioner Rodrigo recalled that a number of
atheistic delegates in the 1971 Constitutional Convention objected to
[399]
reference to a personal God.
God of History, Lord of History and God
were also proposed, but the phrase Almighty God prevailed. Similar to the
1935 and 1971 Constitutions, it is obvious that the 1987 Constitution is not
[400]
hostile nor indifferent to religion;
its wall of separation is not a wall of
[401]
hostility or indifference.
The provisions of the 1935, 1973 and 1987 constitutions on tax
exemption of church property, salary of religious officers in government
institutions, optional religious instruction and the preamble all reveal without
doubt that the Filipino people, in adopting these constitutions, did not intend
to erect a high and impregnable wall of separation between the church and

[402]

state.
The strict neutrality approach which examines only whether
government action is for a secular purpose and does not consider
inadvertent burden on religious exercise protects such a rigid barrier. By
adopting the above constitutional provisions on religion, the Filipinos
manifested their adherence to the benevolent neutrality approach in
interpreting the religion clauses, an approach that looks further than the
secular purposes of government action and examines the effect of these
actions on religious exercise. Benevolent neutrality recognizes the religious
nature of the Filipino people and the elevating influence of religion in society;
at the same time, it acknowledges that government must pursue its secular
goals. In pursuing these goals, however, government might adopt laws or
actions of general applicability which inadvertently burden religious
exercise. Benevolent neutrality gives room for accommodation of these
religious exercises as required by the Free Exercise Clause. It allows these
breaches in the wall of separation to uphold religious liberty, which after all is
the integral purpose of the religion clauses. The case at bar involves this first
type of accommodation where an exemption is sought from a law of general
applicability that inadvertently burdens religious exercise.
Although
our
constitutional
history
and
interpretation
mandate benevolent neutrality, benevolent neutrality does not mean
that the Court ought to grant exemptions every time a free exercise
claim comes before it. But it does mean that the Court will not look with
hostility or act indifferently towards religious beliefs and practices and
that it will strive to accommodate them when it can within flexible
constitutional limits; it does mean that the Court will not simply dismiss
a claim under the Free Exercise Clause because the conduct in
question offends a law or the orthodox view for this precisely is the
protection afforded by the religion clauses of the Constitution, i.e., that
in the absence of legislation granting exemption from a law of general
applicability, the Court can carve out an exception when the religion
clauses justify it. While the Court cannot adopt a doctrinal formulation that
can eliminate the difficult questions of judgment in determining the degree of
burden on religious practice or importance of the state interest or the
sufficiency of the means adopted by the state to pursue its interest, the Court
can set a doctrine on the ideal towards which religious clause jurisprudence
[403]
should be directed.
We here lay down the doctrine that in Philippine
jurisdiction, we adopt the benevolent neutrality approach not only
because of its merits as discussed above, but more importantly,
because our constitutional history and interpretation indubitably show
that benevolent neutrality is the launching pad from which the Court
should take off in interpreting religion clause cases. The ideal towards
which this approach is directed is the protection of religious liberty not
only for a minority, however small- not only for a majority, however
large- but for each of us to the greatest extent possible within flexible
constitutional limits.

Benevolent neutrality is manifest not only in the Constitution but has

also been recognized in Philippine jurisprudence, albeit not expressly called
benevolent neutrality or accommodation. In Aglipay, the Court not only
stressed the elevating influence of religion in human society but
acknowledged the Constitutional provisions on exemption from tax of church
property, salary of religious officers in government institutions, and optional
religious instruction as well as the provisions of the Administrative Code
making Thursday and Friday of the Holy Week, Christmas Day and Sundays
legal holidays. In Garces, the Court not only recognized the Constitutional
provisions indiscriminately granting concessions to religious sects and
denominations, but also acknowledged that government participation in longstanding traditions which have acquired a social character - the barrio fiesta
is a socio-religious affair - does not offend the Establishment
Clause. In Victoriano, the Court upheld the exemption from closed shop
provisions of members of religious sects who prohibited their members from
joining unions upon the justification that the exemption was not a violation of
the Establishment Clause but was only meant to relieve the burden on free
exercise of religion. In Ebralinag,members of the Jehovahs Witnesses were
exempt from saluting the flag as required by law, on the basis not of a statute
granting exemption but of the Free Exercise Clause without offending the
Establishment Clause.
While the U.S. and Philippine religion clauses are similar in form
and origin, Philippine constitutional law has departed from the U.S.
jurisprudence of employing a separationist or strict neutrality
approach. The Philippine religion clauses have taken a life of their own,
breathing the air of benevolent neutrality and accommodation. Thus, the
wall of separation in Philippine jurisdiction is not as high and impregnable as
[404]
the wall created by the U.S. Supreme Court in Everson.
While the
religion clauses are a unique American experiment which understandably
came about as a result of Americas English background and colonization, the
life that these clauses have taken in this jurisdiction is the Philippines own
experiment, reflective of the Filipinos own national soul, history and
tradition. After all, the life of the law. . . has been experience.
But while history, constitutional construction, and earlier jurisprudence
unmistakably show that benevolent neutrality is the lens with which the
Court ought to view religion clause cases, it must be stressed that the
interest of the state should also be afforded utmost protection. To do
this, a test must be applied to draw the line between permissible and
forbidden religious exercise. It is quite paradoxical that in order for the
members of a society to exercise their freedoms, including their religious
liberty, the law must set a limit when their exercise offends the higher interest
of the state. To do otherwise is self-defeating for unlimited freedom would
erode order in the state and foment anarchy, eventually destroying the very
state its members established to protect their freedoms. The very purpose of
the social contract by which people establish the state is for the state to

protect their liberties; for this purpose, they give up a portion of these
freedoms - including the natural right to free exercise - to the state. It was
certainly not the intention of the authors of the constitution that free exercise
could be used to countenance actions that would undo the constitutional
[405]
order that guarantees free exercise.
The all important question then is the test that should be used in
ascertaining the limits of the exercise of religious freedom. Philippine
jurisprudence articulates several tests to determine these limits. Beginning
with the first case on the Free Exercise Clause, American Bible
Society, the Court mentioned the clear and present danger test but did not
employ it.Nevertheless, this test continued to be cited in subsequent cases
on religious liberty. The Gerona case then pronounced that the test of
permissibility of religious freedom is whether it violates the established
institutions of society and law. The Victoriano case mentioned the
immediate and grave danger test as well as the doctrine that a law of general
applicability may burden religious exercise provided the law is the least
restrictive means to accomplish the goal of the law. The case also used,
albeit inappropriately, the compelling state interest test. AfterVictoriano,
German went back to the Gerona rule. Ebralinag then employed the grave
and immediate danger test and overruled the Gerona test. The fairly recent
case of Iglesia ni Cristo went back to the clear and present danger test in
the maiden case of American Bible Society. Not surprisingly, all the
cases which employed the clear and present danger or grave and
immediate danger test involved, in one form or another, religious
speech as this test is often used in cases on freedom of expression. On
the other hand, the Geronaand German cases set the rule that religious
freedom will not prevail over established institutions of society and
law. Gerona, however, which was the authority cited by German has been
overruled by Ebralinag which employed the grave and immediate danger
test. Victoriano was the only case that employed the compelling state
interest test, but as explained previously, the use of the test was
inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible
Society, Ebralinag and Iglesia ni Cristo where the clear and present
danger and grave and immediate danger tests were appropriate as speech
has easily discernible or immediate effects. The Gerona and German
doctrine, aside from having been overruled, is not congruent with
the benevolent neutrality approach, thus not appropriate in this
jurisdiction. Similar to Victoriano, the present case involves purely
conduct arising from religious belief. The compelling state interest test is
proper where conduct is involved for the whole gamut of human
conduct has different effects on the states interests: some effects may
be immediate and short-term while others delayed and far-reaching. A
test that would protect the interests of the state in preventing a substantive
evil, whether immediate or delayed, is therefore necessary. However, not any

interest of the state would suffice to prevail over the right to religious freedom
as this is a fundamental right that enjoys a preferred position in the hierarchy
of rights - the most inalienable and sacred of all human rights, in the words of
[406]
Jefferson.
This right is sacred for an invocation of the Free Exercise
Clause is an appeal to a higher sovereignty. The entire constitutional order of
limited government is premised upon an acknowledgment of such higher
[407]
sovereignty,
thus the Filipinos implore the aid of Almighty God in order to
build a just and humane society and establish a government. As held
in Sherbert, only the gravest abuses, endangering paramount interests can
limit this fundamental right. A mere balancing of interests which balances a
right with just a colorable state interest is therefore not appropriate. Instead,
only a compelling interest of the state can prevail over the fundamental right
to religious liberty. The test requires the state to carry a heavy burden, a
compelling one, for to do otherwise would allow the state to batter religion,
[408]
especially the less powerful ones until they are destroyed.
In determining
which shall prevail between the states interest and religious liberty,
[409]
reasonableness shall be the guide.
The compelling state interest serves
the purpose of revering religious liberty while at the same time affording
protection to the paramount interests of the state. This was the test used
in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the
end, the compelling state interest test, by upholding the paramount interests
of the state, seeks to protect the very state, without which, religious liberty
will not be preserved.

X. Application of the Religion Clauses to the Case at Bar

A. The Religion Clauses and Morality

In a catena of cases, the Court has ruled that government employees
engaged in illicit relations are guilty of disgraceful and immoral conduct for
[410]
which he/she may be held administratively liable.
In these cases, there
was not one dissent to the majoritys ruling that their conduct was
immoral. The respondents themselves did not foist the defense that their
conduct was not immoral, but instead sought to prove that they did not
commit the alleged act or have abated from committing the act. The facts of
[411]
the 1975 case of De Dios v. Alejo
and the 1999 case of Maguad v. De
[412]
Guzman,
are similar to the case at bar - i.e., the complainant is a mere
stranger and the legal wife has not registered any objection to the illicit
relation, there is no proof of scandal or offense to the moral sensibilities of
the community in which the respondent and the partner live and work, and
the government employee is capacitated to marry while the partner is not
capacitated but has long been separated in fact. Still, the Court found the
government employees administratively liable for disgraceful and immoral

conduct and only considered the foregoing circumstances to mitigate the

penalty. Respondent Escritor does not claim that there is error in the settled
jurisprudence that an illicit relation constitutes disgraceful and immoral
conduct for which a government employee is held liable. Nor is there an
allegation that the norms of morality with respect to illicit relations have
shifted towards leniency from the time these precedent cases were
decided. The Court finds that there is no such error or shift, thus we find no
reason to deviate from these rulings that such illicit relationship constitutes
disgraceful and immoral conduct punishable under the Civil Service Law.
Respondent having admitted the alleged immoral conduct, she, like the
respondents in the above-cited cases, could be held administratively
liable. However, there is a distinguishing factor that sets the case at bar apart
from the cited precedents, i.e., as a defense, respondent invokes religious
freedom since her religion, the Jehovahs Witnesses, has, after thorough
investigation, allowed her conjugal arrangement with Quilapio based on the
churchs religious beliefs and practices. This distinguishing factor compels the
Court to apply the religious clauses to the case at bar.
Without holding that religious freedom is not in issue in the case at bar,
both the dissenting opinion of Mme. Justice Ynares-Santiago and the
separate opinion of Mr. Justice Vitug dwell more on the standards of morality
than on the religion clauses in deciding the instant case. A discussion on
morality is in order.
At base, morality refers to, in Socrates words, how we ought to live and
why. Any definition of morality beyond Socrates simple formulation is bound
to offend one or another of the many rival theories regarding what it means to
[413]
live morally.
The answer to the question of how we ought to live
necessarily considers that man does not live in isolation, but in society.Devlin
posits that a society is held together by a community of ideas, made up not
only of political ideas but also of ideas about the manner its members should
behave and govern their lives. The latter are their morals; they constitute the
public morality. Each member of society has ideas about what is good and
what is evil. If people try to create a society wherein there is no fundamental
agreement about good and evil, they will fail; if having established the society
on common agreement, the agreement collapses, the society will
disintegrate. Society is kept together by the invisible bonds of common
thought so that if the bonds are too loose, the members would drift apart. A
common morality is part of the bondage and the bondage is part of the price
[414]
of society; and mankind, which needs society, must pay its price.
This
design is parallel with the social contract in the realm of politics: people give
up a portion of their liberties to the state to allow the state to protect their
liberties. In a constitutional order, people make a fundamental agreement
about the powers of government and their liberties and embody this
agreement in a constitution, hence referred to as the fundamental law of the
land. A complete break of this fundamental agreement such as by revolution
[415]
destroys the old order and creates a new one.
Similarly, in the realm of

morality, the breakdown of the fundamental agreement about the manner a

societys members should behave and govern their lives would disintegrate
society. Thus, society is justified in taking steps to preserve its moral code by
law as it does to preserve its government and other essential
[416]
institutions.
From these propositions of Devlin, one cannot conclude that
Devlin negates diversity in society for he is merely saying that in the midst of
this diversity, there should nevertheless be a fundamental agreement about
good and evil that will govern how people in a society ought to live. His
propositions, in fact, presuppose diversity hence the need to come to an
agreement; his position also allows for change of morality from time to time
which may be brought about by this diversity. In the same vein, a pluralistic
society lays down fundamental rights and principles in their constitution in
establishing and maintaining their society, and these fundamental values and
principles are translated into legislation that governs the order of society,
laws that may be amended from time to time. Harts argument propounded in
Mr. Justice Vitugs separate opinion that, Devlins view of people living in a
single society as having common moral foundation (is) overly simplistic
because societies have always been diverse fails to recognize the necessity
of Devlins proposition in a democracy. Without fundamental agreement on
political and moral ideas, society will fall into anarchy; the agreement is
necessary to the existence and progress of society.
In a democracy, this common agreement on political and moral ideas is
distilled in the public square. Where citizens are free, every opinion, every
prejudice, every aspiration, and every moral discernment has access to the
public square where people deliberate the order of their life together. Citizens
are the bearers of opinion, including opinion shaped by, or espousing
religious belief, and these citizens have equal access to the public square. In
this representative democracy, the state is prohibited from determining which
convictions and moral judgments may be proposed for public
deliberation. Through a constitutionally designed process, the people
deliberate and decide. Majority rule is a necessary principle in this
[417]
democratic governance.
Thus, when public deliberation on moral
judgments is finally crystallized into law, the laws will largely reflect the
beliefs and preferences of the majority, i.e., the mainstream or median
[418]
groups.
Nevertheless, in the very act of adopting and accepting a
constitution and the limits it specifies -- including protection of religious
freedom not only for a minority, however small- not only for a majority,
however large- but for each of us -- the majority imposes upon itself a selfdenying ordinance. It promises not to do what it otherwise could do: to ride
[419]
roughshod over the dissenting minorities.
In the realm of religious
exercise, benevolent neutrality that gives room for accommodation carries
out this promise, provided the compelling interests of the state are not
eroded for the preservation of the state is necessary to the preservation of
religious liberty. That is why benevolent neutrality is necessary in a
pluralistic society such as the United States and the Philippines to
accommodate those minority religions which are politically powerless. It is

not surprising that Smith is much criticized for it blocks the judicial recourse
of the minority for religious accommodations.
The laws enacted become expressions of public morality. As Justice
[420]
Holmes put it, (t)he law is the witness and deposit of our moral life.
In a
liberal democracy, the law reflects social morality over a period of
[421]
time.
Occasionally though, a disproportionate political influence might
cause a law to be enacted at odds with public morality or legislature might fail
[422]
to repeal laws embodying outdated traditional moral views.
Law has also
been defined as something men create in their best moments to protect
[423]
themselves in their worst moments.
Even then, laws are subject to
amendment or repeal just as judicial pronouncements are subject to
modification and reversal to better reflect the public morals of a society at a
given time.After all, the life of the law...has been experience, in the words of
Justice Holmes. This is not to say though that law is all of morality. Law deals
with the minimum standards of human conduct while morality is concerned
with the maximum. A person who regulates his conduct with the sole object
of avoiding punishment under the law does not meet the higher moral
standards set by society for him to be called a morally upright
[424]
person.
Law also serves as a helpful starting point for thinking about a
[425]
proper or ideal public morality for a society
in pursuit of moral progress.
[426]

In Magno v. Court of Appeals, et al.,

we articulated the relationship
between law and public morality. We held that under the utilitarian theory, the
protective theory in criminal law, criminal law is founded upon the moral
disapprobation x x x of actions which are immoral, i.e., which
are detrimental (or dangerous) to those conditions upon which depend
the existence and progress of human society. This disapprobation is
inevitable to the extent that morality is generally founded and built upon a
certain concurrence in the moral opinions of all. x x x That which we call
punishment is only an external means of emphasizing moral disapprobation:
[427]
the method of punishment is in reality the amount of punishment.
Stated
otherwise, there are certain standards of behavior or moral principles which
society requires to be observed and these form the bases of criminal
law. Their breach is an offense not only against the person injured but
[428]
against society as a whole.
Thus, even if all involved in the misdeed are
consenting parties, such as in the case at bar, the injury done is to the public
[429]
morals and the public interest in the moral order.
Mr. Justice Vitug
expresses concern on this point in his separate opinion. He observes that
certain immoral acts which appear private and not harmful to society such as
sexual congress between a man and a prostitute, though consensual and
private, and with no injured third party, remains illegal in this country. His
opinion asks whether these laws on private morality are justified or they
constitute impingement on ones freedom of belief. Discussion on private
morality, however, is not material to the case at bar for whether respondents
[430]
conduct, which constitutes concubinage,
is private in the sense that there
is no injured party or the offended spouse consents to the concubinage, the

inescapable fact is that the legislature has taken concubinage out of the
sphere of private morals. The legislature included concubinage as a crime
under the Revised Penal Code and the constitutionality of this law is not
being raised in the case at bar. In the definition of the crime of concubinage,
consent of the injured party, i.e., the legal spouse, does not alter or negate
[431]
the crime unlike in rape
where consent of the supposed victim negates
the crime. If at all, the consent or pardon of the offended spouse in
[432]
concubinage negates the prosecution of the action,
but does not alter the
legislatures characterization of the act as a moral disapprobation punishable
by law. The separate opinion states that, (t)he ponencia has taken pains to
distinguish between secular and private morality, and reached the conclusion
that the law, as an instrument of the secular State should only concern itself
with secular morality. The Court does not draw this distinction in the case at
bar. The distinction relevant to the case is not, as averred and discussed by
the separate opinion, between secular and private morality, but between
public and secular morality on the one hand, and religious morality on the
other, which will be subsequently discussed.
Not every moral wrong is foreseen and punished by law, criminal or
otherwise. We recognized this reality in Velayo, et al. v. Shell Co. of the
Philippine Islands, et al., where we explained that for those wrongs which
are not punishable by law, Articles 19 and 21 in Chapter 2 of the Preliminary
Title of the New Civil Code, dealing with Human Relations, provide for the
recognition of the wrong and the concomitant punishment in the form of
damages. Articles 19 and 21 provide, viz:
Art. 19. Any person must, in the exercise of his rights and in the performance
of his duties, act with justice, give everyone his due and observe honesty and
good faith.
xxx xxx xxx
Art. 21. 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 the damage. (emphasis supplied)
We then cited in Velayo the Code Commissions comment on Article 21:
Thus at one stroke, the legislator, if the foregoing rule is approved (as it was
approved), would vouchsafe adequate legal remedy for that untold numbers
of moral wrongs which is impossible for human foresight to provide for
specifically in the statutes.
But, it may be asked, would this proposed article obliterate the boundary line
between morality and law? The answer is that, in the last analysis, every
good law draws its breath of life from morals, from those principles which

are written with words of fire in the conscience of man. If this premise is
admitted, then the proposed rule is a prudent earnest of justice in the face of
the impossibility of enumerating, one by one, all wrongs which cause
damages. When it is reflected that while codes of law and statutes have
changed from age to age, the conscience of man has remained fixed to its
ancient moorings, one can not but feel that it is safe and salutary to
transmute, as far as may be, moral norms into legal rules, thus imparting
to every legal system that enduring quality which ought to be one of its
superlative attributes.
Furthermore, there is no belief of more baneful consequence upon the social
order than that a person may with impunity cause damage to his fellow-men
so long as he does not break any law of the State, though he may be defying
the most sacred postulates of morality. What is more, the victim loses faith in
the ability of the government to afford him protection or relief.
A provision similar to the one under consideration is embodied in article 826
[433]
of the German Civil Code.
(emphases supplied)
The public morality expressed in the law is necessarily secular for in our
constitutional order, the religion clauses prohibit the state from establishing a
religion, including the morality it sanctions. Religious morality proceeds from
a persons views of his relations to His Creator and to the obligations they
impose of reverence to His being and character and obedience to His Will, in
accordance with this Courts definition of religion in American Bible
Society citing Davis. Religion also dictates how we ought to live for the
nature of religion is not just to know, but often, to act in accordance with
[434]
mans views of his relations to His Creator.
But the Establishment Clause
puts a negative bar against establishment of this morality arising from one
religion or the other, and implies the affirmative establishment of a civil order
for the resolution of public moral disputes. This agreement on a secular
mechanism is the price of ending the war of all sects against all; the
establishment of a secular public moral order is the social contract produced
[435]
by religious truce.
Thus, when the law speaks of immorality in the Civil Service Law or
[436]
immoral in the Code of Professional Responsibility for lawyers
, or public
[437]
[438]
morals in the Revised Penal Code,
or morals in the New Civil Code,
or
[439]
moral character in the Constitution,
the distinction between public and
secular morality on the one hand, and religious morality, on the other, should
[440]
be kept in mind.
The morality referred to in the law is public and
necessarily secular, not religious as the dissent of Mr. Justice Carpio
holds. Religious teachings as expressed in public debate may influence the
civil public order but public moral disputes may be resolved only on grounds
[441]
articulable in secular terms.
Otherwise, if government relies upon
religious beliefs in formulating public policies and morals, the resulting

policies and morals would require conformity to what some might regard as
religious programs or agenda. The non-believers would therefore be
compelled to conform to a standard of conduct buttressed by a religious
belief, i.e., to a compelled religion, anathema to religious freedom. Likewise,
if government based its actions upon religious beliefs, it would tacitly approve
or endorse that belief and thereby also tacitly disapprove contrary religious or
non-religious views that would not support the policy. As a result,
government will not provide full religious freedom for all its citizens, or even
make it appear that those whose beliefs are disapproved are second-class
citizens.Expansive religious freedom therefore requires that government be
neutral in matters of religion; governmental reliance upon religious
[442]
justification is inconsistent with this policy of neutrality.
In other words, government action, including its proscription of
immorality as expressed in criminal law like concubinage, must have a
secular purpose. That is, the government proscribes this conduct because it
is detrimental (or dangerous) to those conditions upon which depend the
existence and progress of human society and not because the conduct is
proscribed by the beliefs of one religion or the other. Although admittedly,
moral judgments based on religion might have a compelling influence on
those engaged in public deliberations over what actions would be considered
a moral disapprobation punishable by law. After all, they might also be
adherents of a religion and thus have religious opinions and moral codes with
a compelling influence on them; the human mind endeavors to regulate the
temporal and spiritual institutions of society in a uniform manner,
[443]
harmonizing earth with heaven.
Succinctly put, a law could be religious or
Kantian or Aquinian or utilitarian in its deepest roots, but it must have an
articulable and discernible secular purpose and justification to pass scrutiny
of the religion clauses. Otherwise, if a law has an apparent secular purpose
but upon closer examination shows a discriminatory and prohibitory religious
purpose, the law will be struck down for being offensive of the religion
clauses as in Church of the Lukumi Babalu Aye, Inc. where the U.S.
Supreme Court invalidated an ordinance prohibiting animal sacrifice of the
Santeria.Recognizing the religious nature of the Filipinos and the elevating
influence of religion in society, however, the Philippine constitutions religion
clauses prescribe not a strict but abenevolent neutrality. Benevolent
neutrality recognizes that government must pursue its secular goals and
interests but at the same time strives to uphold religious liberty to the
greatest extent possible within flexible constitutional limits. Thus, although
the morality contemplated by laws is secular, benevolent neutrality could
allow for accommodation of morality based on religion, provided it does not
offend compelling state interests.
Mr. Justice Vitugs separate opinion embraces the benevolent
neutrality approach when it states that in deciding the case at bar, the
approach should consider that, (a)s a rule . . . moral laws are justified only to
the extent that they directly or indirectly serve to protect the interests of the

larger society. It is only where their rigid application would serve to obliterate
the value which society seeks to uphold, or defeat the purpose for which they
are enacted would, a departure be justified. In religion clause parlance, the
separate opinion holds that laws of general applicability governing morals
should have a secular purpose of directly or indirectly protecting the interests
of the state. If the strict application of these laws (which are the Civil Service
Law and the laws on marriage) would erode the secular purposes of the law
(which the separate opinion identifies as upholding the sanctity of marriage
and
the
family),
then
in
abenevolent
neutrality framework,
an accommodation of the unconventional religious belief and practice
(which the separate opinion holds should be respected on the ground of
freedom of belief) that would promote the very same secular purpose of
upholding the sanctity of marriage and family through the Declaration
Pledging Faithfulness that makes the union binding and honorable before
God and men, is required by the Free Exercise Clause. The separate opinion
then makes a preliminary discussion of the values society seeks to protect in
adhering to monogamous marriage, but concludes that these values and the
purposes of the applicable laws should be thoroughly examined and
evidence
in
relation
thereto
presented
in
the
OCA. Theaccommodation approach in the case at bar would also require a
similar discussion of these values and presentation of evidence before the
OCA by the state that seeks to protect its interest on marriage and opposes
the accommodation of the unconventional religious belief and practice
regarding marriage.
The distinction between public and secular morality as expressed albeit not exclusively - in the law, on the one hand, and religious morality, on
the other, is important because the jurisdiction of the Court extends only
to public and secular morality. Whatever pronouncement the Court makes
in the case at bar should be understood only in this realm where it has
authority. More concretely, should the Court declare respondents conduct as
immoral and hold her administratively liable, the Court will be holding that in
the realm of public morality, her conduct is reprehensible or there are state
interests overriding her religious freedom. For as long as her conduct is
being judged within this realm, she will be accountable to the state. But in so
ruling, the Court does not and cannot say that her conduct should be made
reprehensible in the realm of her church where it is presently sanctioned and
that she is answerable for her immorality to her Jehovah God nor that other
religions prohibiting her conduct are correct. On the other hand, should the
Court declare her conduct permissible, the Court will be holding that under
her unique circumstances, public morality is not offended or that upholding
her religious freedom is an interest higher than upholding public morality thus
her conduct should not be penalized. But the Court is not ruling that the
tenets and practice of her religion are correct nor that other churches which
do not allow respondents conjugal arrangement should likewise allow such
conjugal arrangement or should not find anything immoral about it and
therefore members of these churches are not answerable for immorality to

their Supreme Being. The Court cannot speak more than what it has
authority to say. In Ballard, the U.S. Supreme Court held that courts cannot
inquire about the truth of religious beliefs. Similarly, in Fonacier, this Court
declared that matters dealing with faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a churchare unquestionably
ecclesiastical matters which are outside the province of the civil
[444]
courts.
But while the state, including the Court, accords such deference to
religious belief and exercise which enjoy protection under the religious
clauses, the social contract and the constitutional order are designed in such
a way that when religious belief flows into speech and conduct that step out
of the religious sphere and overlap with the secular and public realm, the
state has the power to regulate, prohibit and penalize these expressions and
embodiments of belief insofar as they affect the interests of the state. The
states inroad on religion exercise in excess of this constitutional design is
prohibited by the religion clauses; the Old World, European and American
history narrated above bears out the wisdom of this proscription.
Having distinguished between public and secular morality and religious
morality, the more difficult task is determining which immoral acts under this
public and secular morality fall under the phrase disgraceful and immoral
conduct for which a government employee may be held administratively
liable. The line is not easy to draw for it is like a line that divides land and
[445]
sea, a coastline of irregularities and indentations.
But the case at bar
does not require us to comprehensively delineate between those immoral
acts for which one may be held administratively liable and those to which
administrative liability does not attach. We need not concern ourselves in this
case therefore whether laziness, gluttony, vanity, selfishness, avarice and
cowardice are immoral acts which constitute grounds for administrative
liability. Nor need we expend too much energy grappling with the
propositions that not all immoral acts are illegal or not all illegal acts are
immoral, or different jurisdictions have different standards of morality as
discussed by the dissents and separate opinions, although these
observations and propositions are true and correct. It is certainly a fallacious
argument that because there are exceptions to the general rule that the law
is the witness and deposit of our moral life, then the rule is not true; in fact,
that there are exceptions only affirms the truth of the rule. Likewise, the
observation that morality is relative in different jurisdictions only affirms the
truth that there is morality in a particular jurisdiction; without, however,
discounting the truth that underneath the moral relativism are certain moral
absolutes such as respect for life and truth-telling, without which no society
will survive. Only one conduct is in question before this Court, i.e., the
conjugal arrangement of a government employee whose partner is legally
married to another which Philippine law and jurisprudence consider both
immoral and illegal. Lest the Court inappropriately engage in the impossible
task of prescribing comprehensively how one ought to live, the Court must
focus its attention upon the sole conduct in question before us.

In interpreting disgraceful and immoral conduct, the dissenting opinion

of Mme. Justice Ynares-Santiago groped for standards of morality and stated
that the ascertainment of what is moral or immoral calls for the discovery of
contemporary community standards but did not articulate how these
standards are to be ascertained. Instead, it held that, (f)or those in the
service of the Government, provisions of law and court precedents . . . have
to be considered. It identified the Civil Service Law and the laws on adultery
and concubinage as laws which respondents conduct has offended and cited
a string of precedents where a government employee was found guilty of
committing a disgraceful and immoral conduct for maintaining illicit relations
and was thereby penalized. As stated above, there is no dispute that under
settled jurisprudence, respondents conduct constitutes disgraceful and
immoral conduct. However, the cases cited by the dissent do not involve the
defense of religious freedom which respondent in the case at bar
invokes. Those cited cases cannot therefore serve as precedents in settling
the issue in the case at bar.
Mme. Justice Ynares-Santiagos dissent also cites Cleveland v. United
[446]
States
in laying down the standard of morality, viz: (w)hether an act is
immoral within the meaning of the statute is not to be determined by
respondents concept of morality. The law provides the standard; the offense
is complete if respondent intended to perform, and did in fact perform, the act
which it condemns. The Mann Act under consideration in the Cleveland
case declares as an offense the transportation in interstate commerce of any
woman or girl for the purpose of prostitution or debauchery, or for any other
[447]
immoral purpose.
The resolution of that case hinged on the interpretation
of the phrase immoral purpose. The U.S. Supreme Court held that the
petitioner Mormons act of transporting at least one plural wife whether for the
purpose of cohabiting with her, or for the purpose of aiding another member
of their Mormon church in such a project, was covered by the phrase immoral
purpose. In so ruling, the Court relied on Reynolds which held that the
Mormons practice of polygamy, in spite of their defense of religious freedom,
[448]
was odious among the northern and western nations of Europe,
a return
[449]
to barbarism,
contrary to the spirit of Christianity and of the civilization
[450]
which Christianity has produced in the Western world,
and thus
punishable by law.
The Cleveland standard, however, does not throw light to the issue in
the case at bar. The pronouncements of the U.S. Supreme Court that
polygamy is intrinsically odious or barbaric do not apply in the Philippines
where Muslims, by law, are allowed to practice polygamy. Unlike
in Cleveland, there is no jurisprudence in Philippine jurisdiction holding that
the defense of religious freedom of a member of the Jehovahs Witnesses
under the same circumstances as respondent will not prevail over the laws
on adultery, concubinage or some other law. We cannot summarily conclude
therefore that her conduct is likewise so odious and barbaric as to be
immoral and punishable by law.

While positing the view that the resolution of the case at bar lies more
on determining the applicable moral standards and less on religious freedom,
Mme. Justice Ynares-Santiagos dissent nevertheless discussed respondents
plea of religious freedom and disposed of this defense by stating that (a)
clear and present danger of a substantive evil, destructive to public morals, is
a ground for the reasonable regulation of the free exercise and enjoyment of
religious profession. (American Bible Society v. City of Manila, 101 Phil. 386
[1957]). In addition to the destruction of public morals, the substantive evil in
this case is the tearing down of morality, good order, and discipline in the
judiciary. However, the foregoing discussion has shown that the clear and
present danger test that is usually employed in cases involving freedom of
expression is not appropriate to the case at bar which involves purely
religious conduct. The dissent also cites Reynolds in supporting its
conclusion that respondent is guilty of disgraceful and immoral
conduct. The Reynolds ruling, however, was reached with a strict neutrality
approach, which is not the approach contemplated by the Philippine
constitution. As discussed above, Philippine jurisdiction adopts benevolent
neutrality in interpreting the religion clauses.
In the same vein, Mr. Justice Carpios dissent which employs strict
neutrality does not reflect the constitutional intent of employing benevolent
neutrality in interpreting the Philippine religion clauses. His dissent avers
that respondent should be held administratively liable not for disgraceful and
immoral conduct but conduct prejudicial to the best interest of the service as
she is a necessary co-accused of her partner in concubinage. The dissent
stresses that being a court employee, her open violation of the law is
prejudicial to the administration of justice. Firstly, the dissent offends due
process as respondent was not given an opportunity to defend herself
against the charge of conduct prejudicial to the best interest of the service. In
addition, there is no evidence of the alleged prejudice to the best interest of
the service. Most importantly, the dissent concludes that respondents plea of
religious freedom cannot prevail without so much as employing a test that
would balance respondents religious freedom and the states interest at stake
in the case at bar. The foregoing discussion on the doctrine of religious
freedom, however, shows that with benevolent neutrality as a framework,
the Court cannot simply reject respondents plea of religious freedom without
even subjecting it to the compelling state interest test that would balance her
freedom with the paramount interests of the state. The strict neutrality
employed in the cases the dissent cites -Reynolds, Smith and People v.
Bitdu decided before the 1935 Constitution which unmistakably shows
adherence to benevolent neutrality - is not contemplated by our
constitution.
Neither is Sulu Islamic Association of Masjid Lambayong v. Judge
[451]
Nabdar J. Malik
cited in Mr. Justice Carpios dissent decisive of the
immorality issue in the case at bar. In that case, the Court dismissed the
charge of immorality against a Tausug judge for engaging in an adulterous

relationship with another woman with whom he had three children because it
(was) not immoral by Muslim standards for Judge Malik to marry a second
time while his first marriage (existed). Putting the quoted portion in its proper
context would readily show that the Sulu Islamic case does not provide a
precedent to the case at bar. Immediately prior to the portion quoted by the
dissent, the Court stressed, viz: (s)ince Art. 180 of P.D. No. 1083, otherwise
known as the Code of Muslim Personal Laws of the Philippines, provides that
the penal laws relative to the crime of bigamy shall not apply to a person
married x x x under Muslim Law, it is not immoral by Muslim standards for
[452]
Judge Malik to marry a second time while his first marriage exists.
It was
by law, therefore, that the Muslim conduct in question was classified as an
exception to the crime of bigamy and thus an exception to the general
standards of morality. The constitutionality of P.D. No. 1083 when measured
against the Establishment Clause was not raised as an issue in the Sulu
Islamic case. Thus, the Court did not determine whether P.D. No. 1083
suffered from a constitutional infirmity and instead relied on the provision
excepting the challenged Muslim conduct from the crime of bigamy in holding
that the challenged act is not immoral by Muslim standards. In
contradistinction, in the case at bar, there is no similar law which the Court
can apply as basis for treating respondents conduct as an exception to the
prevailing jurisprudence on illicit relations of civil servants. Instead, the Free
Exercise Clause is being invoked to justify exemption.

B. Application of Benevolent Neutrality and the

Compelling State Interest Test to the Case at Bar
The case at bar being one of first impression, we now subject the
respondents claim of religious freedom to the compelling state interest test
from a benevolent neutrality stance - i.e. entertaining the possibility that
respondents claim to religious freedom would warrant carving out an
exception from the Civil Service Law; necessarily, her defense of religious
freedom will be unavailing should the government succeed in demonstrating
a more compelling state interest.
In applying the test, the first inquiry is whether respondents right
to religious freedom has been burdened. There is no doubt that choosing
between keeping her employment and abandoning her religious belief and
practice and family on the one hand, and giving up her employment and
keeping her religious practice and family on the other hand, puts a burden on
her free exercise of religion. In Sherbert, the Court found that Sherberts
religious exercise was burdened as the denial of unemployment benefits
forces her to choose between following the precepts of her religion and
forfeiting benefits, on the one hand, and abandoning one of the precepts of
her religion in order to accept work, on the other hand. The burden on

respondent in the case at bar is even greater as the price she has to pay for
her employment is not only her religious precept but also her family which, by
the Declaration Pledging Faithfulness, stands honorable before God and
men.
The second step is to ascertain respondents sincerity in her
religious belief. Respondent appears to be sincere in her religious belief
and practice and is not merely using the Declaration of Pledging Faithfulness
to avoid punishment for immorality. She did not secure the Declaration only
after entering the judiciary where the moral standards are strict and defined,
much less only after an administrative case for immorality was filed against
her. The Declaration was issued to her by her congregation after ten years of
living together with her partner, Quilapio, and ten years before she entered
the judiciary. Ministers from her congregation testified on the authenticity of
the Jehovahs Witnesses practice of securing a Declaration and their doctrinal
or scriptural basis for such a practice. As the ministers testified, the
Declaration is not whimsically issued to avoid legal punishment for illicit
conduct but to make the union of their members under respondents
circumstances honorable before God and men. It is also worthy of notice that
the Report and Recommendation of the investigating judge annexed
[453]
letters
of the OCA to the respondent regarding her request to be exempt
from attending the flag ceremony after Circular No. 62-2001 was issued
requiring attendance in the flag ceremony. The OCAs letters were not
submitted by respondent as evidence but annexed by the investigating judge
in explaining that he was caught in a dilemma whether to find respondent
guilty of immorality because the Court Administrator and Deputy Court
Administrator had different positions regarding respondents request for
exemption from the flag ceremony on the ground of the Jehovahs Witnesses
contrary belief and practice. Respondents request for exemption from the
flag ceremony shows her sincerity in practicing the Jehovahs Witnesses
beliefs and not using them merely to escape punishment. She is a practicing
member of the Jehovahs Witnesses and the Jehovah ministers testified that
she is a member in good standing.Nevertheless, should the government, thru
the Solicitor General, want to further question the respondents sincerity and
the centrality of her practice in her faith, it should be given the opportunity to
do so. The government has not been represented in the case at bar from its
incipience until this point.
In any event, even if the Court deems sufficient respondents
evidence on the sincerity of her religious belief and its centrality in her
faith, the case at bar cannot still be decided using the compelling state
interest test. The case at bar is one of first impression, thus the parties
were not aware of the burdens of proof they should discharge in the Courts
use of the compelling state interest test. We note that the OCA found
respondents defense of religious freedom unavailing in the face of the Courts
ruling in Dicdican v. Fernan, et al., viz:

It bears emphasis that the image of a court of justice is mirrored in the

conduct, official and otherwise, of the personnel who work thereat, from the
judge to the lowest of its personnel. Court personnel have been enjoined to
adhere to the exacting standards of morality and decency in their
professional and private conduct in order to preserve the good name and
integrity of the courts of justice.
It is apparent from the OCAs reliance upon this ruling that the state
interest it upholds is the preservation of the integrity of the judiciary by
maintaining among its ranks a high standard of morality and
decency. However, there is nothing in the OCAs memorandum to the Court
that demonstrates how this interest is so compelling that it should override
respondents plea of religious freedom nor is it shown that the means
employed by the government in pursuing its interest is the least restrictive to
respondents religious exercise.
Indeed, it is inappropriate for the complainant, a private person, to
present evidence on the compelling interest of the state. The burden of
evidence should be discharged by the proper agency of the government
which is the Office of the Solicitor General. To properly settle the issue in the
case at bar, the government should be given the opportunity to demonstrate
the compelling state interest it seeks to uphold in opposing the respondents
stance that her conjugal arrangement is not immoral and punishable as it
comes within the scope of free exercise protection. Should the Court
prohibit and punish her conduct where it is protected by the Free
Exercise Clause, the Courts action would be an unconstitutional
[454]
encroachment of her right to religious freedom.
We cannot therefore
simply take a passing look at respondents claim of religious freedom, but
must instead apply the compelling state interest test.The government must
be heard on the issue as it has not been given an opportunity to discharge its
burden of demonstrating the states compelling interest which can override
respondents religious belief and practice. To repeat, this is a case of first
impression where we are applying the compelling state interest test in a case
involving purely religious conduct. The careful application of the test is
indispensable as how we will decide the case will make a decisive difference
in the life of the respondent who stands not only before the Court but before
her Jehovah God.
IN VIEW WHEREOF, the case is REMANDED to the Office of the Court
Administrator. The Solicitor General is ordered to intervene in the case where
it will be given the opportunity (a) to examine the sincerity and centrality of
respondents claimed religious belief and practice; (b) to present evidence on
the states compelling interest to override respondents religious belief and
practice; and (c) to show that the means the state adopts in pursuing its
interest is the least restrictive to respondents religious freedom. The
rehearing should be concluded thirty (30) days from the Office of the Court
Administrators receipt of this Decision.

SO ORDERED.
Davide, Jr., C.J., Austria-Martinez, Corona, Azcuna, and Tinga,
JJ., concur.
Bellosillo and Vitug, JJ., please see separate opinion.
Ynares-Santiago, and Carpio, JJ., see dissenting opinion.
Panganiban, Carpio-Morales, and Callejo, Sr., JJ., joins the dissenting
opinion of J. Carpio.
Quisumbing, and Sandoval-Gutierrez, JJ., on official leave.
5. People vs . Silvestre and Atienza

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
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
Nio, 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 Nio, 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-inlaw, 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 Nio, 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 Nio, 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:
xxx

xxx

xxx

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 accused-appellant Romana Silvestre, who is
hereby
acquitted
with
one-half of the costs de oficio. So ordered.
Avancea, C.J., Johnson, Street, Malcolm, Villamor, Ostrand, Romualdez,
and Imperial, JJ., concur.

6. People vs. Talingdan

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
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 circumstances
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 brotherin-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 circumstances attended
the commission of the offense, namely, evident premeditation and that it was
committed in the dwelling of the victim. No mitigating circumstance 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 circumstances 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 circumstances 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 selfrespect, and he never loses an opportunity of being right in what he affirms."
(II Moore on Facts, pp. 1055-1056.) 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- 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- 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- 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. 1112, 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, 411414.) It is not definitely shown that she masterminded it either by herself
alone or together with her co-appellant 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 coappellants' 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
circumstances 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 circumstances,
without any mitigating circumstance 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, Muoz Palma, Aquino, Concepcion, Jr., Santos, Fernandez and
Guerrero, JJ., concur.
Antonio, Fernando, JJ., took no part.

7. People vs. Puno

Republic of the Philippines
SUPREME COURT
Manila

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
1
under the provisions of the Civil Code.
2

SECOND DIVISION

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. Castaeda 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

On a plea of not guilty when arraigned, 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
3
P3,000.00 as temperate damages.
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
4
proved which is necessarily included in the offense charged.
For the material antecedents of this case, we quote with approval the
5
following counter-statement of facts in the People's brief 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).
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).
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).
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
6
PCI Bank, Makati. (tsn, Oct. 18, 1989, pp. 10-13)
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
7
toe while running across the highway.
Appellants further testified that they brought the Mercedez Benz car to
Dolores, San Fernando, Pampanga and parked it near a barangay or police
8
outpost. They thereafter ate at a restaurant and divided their loot. 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
9
medication of his ulcers.
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.
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 circumstances
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.
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
10
constitute separate offenses. 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
11
physical injuries.
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
12
give me any bale (sic). . . ."
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
13
liberty, and not where such restraint of her freedom of action was merely
an incident in the commission of another offense primarily intended by the
14
offenders. Hence, as early as United States vs. Ancheta, and consistently
15
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.
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?
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
16
allow you to get out of the car."

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
17
captured person or persons, a payment that releases from captivity. It can
hardly be assumed that when complainant readily gave the cash and checks
demanded from her at gun point, what she gave under the circumstances 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.

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
20
are synonymous.
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,
21
the Brigandage Law was passed.

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 (AntiPiracy and Anti-Highway Robbery Law of 1974) under which
where robbery on the highway is accompanied by extortion
18
the penalty is reclusion perpetua.
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
19
are inconsistent with it." 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.
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

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
22
dedicarse a robar." (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,
23
or robbery in band if there are at least four armed participants. 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 circumstances under which the decree to be construed originated.
Contemporaneous exposition or construction is the best and strongest in the
24
law.
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,
25
under the old Brigandage Law.
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
26
goes but skin deep into its meaning, 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
27
1972? 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
28
explicit prescriptions in the Anti-Cattle Rustling Law of 1974?

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.

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.
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,
29
the aggravating circumstances of craft shall be appreciated against both
appellants and that of abuse of confidence shall be further applied against
appellant Puno, with no mitigating circumstance 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.

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

8. People vs Ah Chong
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

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
30
charged. 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
31
the robbery.
These foregoing elements are necessarily included in the information filed
against appellants which, as formulated, allege that they wilfully, unlawfully
and feloniously kidnapped and 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
32
of the elements of robbery through intimidation of persons.
WHEREFORE, the assailed judgment of the trial court is hereby SET ASIDE
and another one is rendered CONVICTING accused-appellants Isabelo Puno

G.R. No. L-5272

March 19, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
AH CHONG, defendant-appellant.
Gibb & Gale, for appellant.
Attorney-General Villamor, for appellee.
CARSON, J.:
The evidence as to many of the essential and vital facts in this case is limited
to the testimony of the accused himself, because from the very nature of
these facts and from the circumstances surrounding the incident upon which
these proceedings rest, no other evidence as to these facts was available
either to the prosecution or to the defense. We think, however, that, giving
the accused the benefit of the doubt as to the weight of the evidence
touching those details of the incident as to which there can be said to be any
doubt, the following statement of the material facts disclose by the record
may be taken to be substantially correct:

The defendant, Ah Chong, was employed as a cook at "Officers' quarters,

No. 27," Fort Mc Kinley, Rizal Province, and at the same place Pascual
Gualberto, deceased, was employed as a house boy or muchacho. "Officers'
quarters No. 27" as a detached house situates some 40 meters from the
nearest building, and in August, 19087, was occupied solely as an officers'
mess or club. No one slept in the house except the two servants, who jointly
occupied a small room toward the rear of the building, the door of which
opened upon a narrow porch running along the side of the building, by which
communication was had with the other part of the house. This porch was
covered by a heavy growth of vines for its entire length and height. The door
of the room was not furnished with a permanent bolt or lock, and occupants,
as a measure of security, had attached a small hook or catch on the inside of
the door, and were in the habit of reinforcing this somewhat insecure means
of fastening the door by placing against it a chair. In the room there was but
one small window, which, like the door, opened on the porch. Aside from the
door and window, there were no other openings of any kind in the room.
On the night of August 14, 1908, at about 10 o'clock, the defendant, who had
received for the night, was suddenly awakened by some trying to force open
the door of the room. He sat up in bed and called out twice, "Who is there?"
He heard no answer and was convinced by the noise at the door that it was
being pushed open by someone bent upon forcing his way into the room.
Due to the heavy growth of vines along the front of the porch, the room was
very dark, and the defendant, fearing that the intruder was a robber or a thief,
leaped to his feet and called out. "If you enter the room, I will kill you." At that
moment he was struck just above the knee by the edge of the chair which
had been placed against the door. In the darkness and confusion the
defendant thought that the blow had been inflicted by the person who had
forced the door open, whom he supposed to be a burglar, though in the light
of after events, it is probable that the chair was merely thrown back into the
room by the sudden opening of the door against which it rested. Seizing a
common kitchen knife which he kept under his pillow, the defendant struck
out wildly at the intruder who, it afterwards turned out, was his roommate,
Pascual. Pascual ran out upon the porch and fell down on the steps in a
desperately wounded condition, followed by the defendant, who immediately
recognized him in the moonlight. Seeing that Pascual was wounded, he
called to his employers who slept in the next house, No. 28, and ran back to
his room to secure bandages to bind up Pascual's wounds.
There had been several robberies in Fort McKinley not long prior to the date
of the incident just described, one of which took place in a house in which the
defendant was employed as cook; and as defendant alleges, it was because
of these repeated robberies he kept a knife under his pillow for his personal
protection.

The deceased and the accused, who roomed together and who appear to
have on friendly and amicable terms prior to the fatal incident, had an
understanding that when either returned at night, he should knock at the door
and acquiant his companion with his identity. Pascual had left the house
early in the evening and gone for a walk with his friends, Celestino Quiambao
and Mariano Ibaez, servants employed at officers' quarters No. 28, the
nearest house to the mess hall. The three returned from their walk at about
10 o'clock, and Celestino and Mariano stopped at their room at No. 28,
Pascual going on to his room at No. 27. A few moments after the party
separated, Celestino and Mariano heard cries for assistance and upon
returning to No. 27 found Pascual sitting on the back steps fatally wounded in
the stomach, whereupon one of them ran back to No. 28 and called
Liuetenants Jacobs and Healy, who immediately went to the aid of the
wounded man.
The defendant then and there admitted that he had stabbed his roommate,
but said that he did it under the impression that Pascual was "a ladron"
because he forced open the door of their sleeping room, despite defendant's
warnings.
No reasonable explanation of the remarkable conduct on the part of
Pascuals suggests itself, unless it be that the boy in a spirit of mischief was
playing a trick on his Chinese roommate, and sought to frightened him by
forcing his way into the room, refusing to give his name or say who he was,
in order to make Ah Chong believe that he was being attacked by a robber.
Defendant was placed under arrest forthwith, and Pascual was conveyed to
the military hospital, where he died from the effects of the wound on the
following day.
The defendant was charged with the crime of assassination, tried, and found
guilty by the trial court of simple homicide, with extenuating circumstances,
and sentenced to six years and one day presidio mayor, the minimum
penalty prescribed by law.
At the trial in the court below the defendant admitted that he killed his
roommate, Pascual Gualberto, but insisted that he struck the fatal blow
without any intent to do a wrongful act, in the exercise of his lawful right of
self-defense.
Article 8 of the Penal Code provides that
The following are not delinquent and are therefore exempt from
criminal liability:

xxx

xxx

xxx

4 He who acts in defense of his person or rights, provided there are

the following attendant circumstances:
(1) Illegal aggression.
(2) Reasonable necessity of the means employed to prevent or repel
it.
(3) Lack of sufficient provocation on the part of the person defending
himself.
Under these provisions we think that there can be no doubt that defendant
would be entitle to complete exception from criminal liability for the death of
the victim of his fatal blow, if the intruder who forced open the door of his
room had been in fact a dangerous thief or "ladron," as the defendant
believed him to be. No one, under such circumstances, would doubt the right
of the defendant to resist and repel such an intrusion, and the thief having
forced open the door notwithstanding defendant's thrice-repeated warning to
desist, and his threat that he would kill the intruder if he persisted in his
attempt, it will not be questioned that in the darkness of the night, in a small
room, with no means of escape, with the thief advancing upon him despite
his warnings defendant would have been wholly justified in using any
available weapon to defend himself from such an assault, and in striking
promptly, without waiting for the thief to discover his whereabouts and deliver
the first blow.
But the evidence clearly discloses that the intruder was not a thief or a
"ladron." That neither the defendant nor his property nor any of the property
under his charge was in real danger at the time when he struck the fatal
blow. That there was no such "unlawful aggression" on the part of a thief or
"ladron" as defendant believed he was repelling and resisting, and that there
was no real "necessity" for the use of the knife to defend his person or his
property or the property under his charge.
The question then squarely presents it self, whether in this jurisdiction one
can be held criminally responsible who, by reason of a mistake as to the
facts, does an act for which he would be exempt from criminal liability if the
facts were as he supposed them to be, but which would constitute the crime
of homicide or assassination if the actor had known the true state of the facts
at the time when he committed the act. To this question we think there can
be but one answer, and we hold that under such circumstances there is no
criminal liability, provided always that the alleged ignorance or mistake or fact
was not due to negligence or bad faith.

In broader terms, ignorance or mistake of fact, if such ignorance or mistake

of fact is sufficient to negative a particular intent which under the law is a
necessary ingredient of the offense charged (e.g., in larcerny, animus
furendi; in murder, malice; in crimes intent) "cancels the presumption of
intent," and works an acquittal; except in those cases where the
circumstances demand a conviction under the penal provisions touching
criminal negligence; and in cases where, under the provisions of article 1 of
the Penal Code one voluntarily committing a crime or misdeamor incurs
criminal liability for any wrongful act committed by him, even though it be
different from that which he intended to commit. (Wharton's Criminal Law,
sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and cases cited;
Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596;
Yates vs. People, 32 N.Y., 509; Isham vs. State, 38 Ala., 213;
Commonwealth vs. Rogers, 7 Met., 500.)
The general proposition thus stated hardly admits of discussion, and the only
question worthy of consideration is whether malice or criminal intent is an
essential element or ingredient of the crimes of homicide and assassination
as defined and penalized in the Penal Code. It has been said that since the
definitions there given of these as well as most other crimes and offense
therein defined, do not specifically and expressly declare that the acts
constituting the crime or offense must be committed with malice or with
criminal intent in order that the actor may be held criminally liable, the
commission of the acts set out in the various definitions subjects the actor to
the penalties described therein, unless it appears that he is exempted from
liability under one or other of the express provisions of article 8 of the code,
which treats of exemption. But while it is true that contrary to the general rule
of legislative enactment in the United States, the definitions of crimes and
offenses as set out in the Penal Code rarely contain provisions expressly
declaring that malice or criminal intent is an essential ingredient of the crime,
nevertheless, the general provisions of article 1 of the code clearly indicate
that malice, or criminal intent in some form, is an essential requisite of all
crimes and offense therein defined, in the absence of express provisions
modifying the general rule, such as are those touching liability resulting from
acts negligently or imprudently committed, and acts done by one voluntarily
committing a crime or misdemeanor, where the act committed is different
from that which he intended to commit. And it is to be observed that even
these exceptions are more apparent than real, for "There is little distinction,
except in degree, between a will to do a wrongful thing and indifference
whether it is done or not. Therefore carelessness is criminal, and within limits
supplies the place of the affirmative criminal intent" (Bishop's New Criminal
Law, vol. 1, s. 313); and, again, "There is so little difference between a
disposition to do a great harm and a disposition to do harm that one of them
may very well be looked upon as the measure of the other. Since, therefore,
the guilt of a crime consists in the disposition to do harm, which the criminal
shows by committing it, and since this disposition is greater or less in

proportion to the harm which is done by the crime, the consequence is that
the guilt of the crime follows the same proportion; it is greater or less
according as the crime in its own nature does greater or less harm" (Ruth.
Ints. C. 18, p. 11); or, as it has been otherwise stated, the thing done, having
proceeded from a corrupt mid, is to be viewed the same whether the
corruption was of one particular form or another.

And to the same effect are various decisions of the supreme court of Spain,
as, for example in its sentence of May 31, 1882, in which it made use of the
following language:
It is necessary that this act, in order to constitute a crime, involve all
the malice which is supposed from the operation of the will and an
intent to cause the injury which may be the object of the crime.

Article 1 of the Penal Code is as follows:

Crimes or misdemeanors are voluntary acts and ommissions
punished by law.
Acts and omissions punished by law are always presumed to be
voluntarily unless the contrary shall appear.
An person voluntarily committing a crime or misdemeanor shall incur
criminal liability, even though the wrongful act committed be different
from that which he had intended to commit.
The celebrated Spanish jurist Pacheco, discussing the meaning of the word
"voluntary" as used in this article, say that a voluntary act is a free, intelligent,
and intentional act, and roundly asserts that without intention (intention to do
wrong or criminal intention) there can be no crime; and that the word
"voluntary" implies and includes the words "con malicia," which were
expressly set out in the definition of the word "crime" in the code of 1822, but
omitted from the code of 1870, because, as Pacheco insists, their use in the
former code was redundant, being implied and included in the word
"voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)
Viada, while insisting that the absence of intention to commit the crime can
only be said to exempt from criminal responsibility when the act which was
actually intended to be done was in itself a lawful one, and in the absence of
negligence or imprudence, nevertheless admits and recognizes in his
discussion of the provisions of this article of the code that in general without
intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we have
shown above, the exceptions insisted upon by Viada are more apparent than
real.
Silvela, in discussing the doctrine herein laid down, says:
In fact, it is sufficient to remember the first article, which declared
that where there is no intention there is no crime . . . in order to
affirm, without fear of mistake, that under our code there can be no
crime if there is no act, an act which must fall within the sphere of
ethics if there is no moral injury. (Vol. 2, the Criminal Law, folio 169.)

And again in its sentence of March 16, 1892, wherein it held that
"considering that, whatever may be the civil effects of the inscription of his
three sons, made by the appellant in the civil registry and in the parochial
church, there can be no crime because of the lack of the necessary element
or criminal intention, which characterizes every action or ommission
punished by law; nor is he guilty of criminal negligence."
And to the same effect in its sentence of December 30, 1896, it made use of
the following language:
. . . Considering that the moral element of the crime, that is, intent or
malice or their absence in the commission of an act defined and
punished by law as criminal, is not a necessary question of fact
submitted to the exclusive judgment and decision of the trial court.
That the author of the Penal Code deemed criminal intent or malice to be an
essential element of the various crimes and misdemeanors therein defined
becomes clear also from an examination of the provisions of article 568,
which are as follows:
He who shall execute through reckless negligence an act that, if
done with malice, would constitute a grave crime, shall be punished
with the penalty of arresto mayor in its maximum degree, to prision
correccional in its minimum degrees if it shall constitute a less grave
crime.
He who in violation of the regulations shall commit a crime through
simple imprudence or negligence shall incur the penalty of arresto
mayor in its medium and maximum degrees.
In the application of these penalties the courts shall proceed
according to their discretion, without being subject to the rules
prescribed in article 81.
The provisions of this article shall not be applicable if the penalty
prescribed for the crime is equal to or less than those contained in

the first paragraph thereof, in which case the courts shall apply the
next one thereto in the degree which they may consider proper.
The word "malice" in this article is manifestly substantially equivalent to the
words "criminal intent," and the direct inference from its provisions is that the
commission of the acts contemplated therein, in the absence of malice
(criminal intent), negligence, and imprudence, does not impose any criminal
liability on the actor.
The word "voluntary" as used in article 1 of the Penal Code would seem to
approximate in meaning the word "willful" as used in English and American
statute to designate a form of criminal intent. It has been said that while the
word "willful" sometimes means little more than intentionally or designedly,
yet it is more frequently understood to extent a little further and approximate
the idea of the milder kind of legal malice; that is, it signifies an evil intent
without justifiable excuse. In one case it was said to mean, as employed in a
statute in contemplation, "wantonly" or "causelessly;" in another, "without
reasonable grounds to believe the thing lawful." And Shaw, C. J., once said
that ordinarily in a statute it means "not merely `voluntarily' but with a bad
purpose; in other words, corruptly." In English and the American statutes
defining crimes "malice," "malicious," "maliciously," and "malice aforethought"
are words indicating intent, more purely technical than "willful" or willfully,"
but "the difference between them is not great;" the word "malice" not often
being understood to require general malevolence toward a particular
individual, and signifying rather the intent from our legal justification.
(Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.)
But even in the absence of express words in a statute, setting out a condition
in the definition of a crime that it be committed "voluntarily," willfully,"
"maliciously" "with malice aforethought," or in one of the various modes
generally construed to imply a criminal intent, we think that reasoning from
general principles it will always be found that with the rare exceptions
hereinafter mentioned, to constitute a crime evil intent must combine with an
act. Mr. Bishop, who supports his position with numerous citations from the
decided cases, thus forcely present this doctrine:
In no one thing does criminal jurisprudence differ more from civil than
in the rule as to the intent. In controversies between private parties
the quo animo with which a thing was done is sometimes important,
not always; but crime proceeds only from a criminal mind. So that
There can be no crime, large or small, without an evil mind. In other
words, punishment is the sentence of wickedness, without which it
can not be. And neither in philosophical speculation nor in religious
or mortal sentiment would any people in any age allow that a man

should be deemed guilty unless his mind was so. It is therefore a

principle of our legal system, as probably it is of every other, that the
essence of an offense is the wrongful intent, without which it can not
exists. We find this doctrine confirmed by
Legal maxims. The ancient wisdom of the law, equally with the
modern, is distinct on this subject. It consequently has supplied to us
such maxims as Actus non facit reum nisi mens sit rea, "the act itself
does not make man guilty unless his intention were so;" Actus me
incito factus non est meus actus, "an act done by me against my will
is not my act;" and others of the like sort. In this, as just said, criminal
jurisprudence differs from civil. So also
Moral science and moral sentiment teach the same thing. "By
reference to the intention, we inculpate or exculpate others or
ourselves without any respect to the happiness or misery actually
produced. Let the result of an action be what it may, we hold a man
guilty simply on the ground of intention; or, on the dame ground, we
hold him innocent." The calm judgment of mankind keeps this
doctrine among its jewels. In times of excitement, when vengeance
takes the place of justice, every guard around the innocent is cast
down. But with the return of reason comes the public voice that
where the mind is pure, he who differs in act from his neighbors does
not offend. And
In the spontaneous judgment which springs from the nature given by
God to man, no one deems another to deserve punishment for what
he did from an upright mind, destitute of every form of evil. And
whenever a person is made to suffer a punishment which the
community deems not his due, so far from its placing an evil mark
upon him, it elevates him to the seat of the martyr. Even infancy itself
spontaneously pleads the want of bad intent in justification of what
has the appearance of wrong, with the utmost confidence that the
plea, if its truth is credited, will be accepted as good. Now these facts
are only the voice of nature uttering one of her immutable truths. It is,
then, the doctrine of the law, superior to all other doctrines, because
first in nature from which the law itself proceeds, that no man is to be
punished as a criminal unless his intent is wrong. (Bishop's New
Criminal Law, vol. 1, secs. 286 to 290.)
Compelled by necessity, "the great master of all things," an apparent
departure from this doctrine of abstract justice result from the adoption of the
arbitrary rule that Ignorantia juris non excusat ("Ignorance of the law excuses
no man"), without which justice could not be administered in our tribunals;
and compelled also by the same doctrine of necessity, the courts have
recognized the power of the legislature to forbid, in a limited class of cases,

the doing of certain acts, and to make their commission criminal without
regard to the intent of the doer. Without discussing these exceptional cases
at length, it is sufficient here to say that the courts have always held that
unless the intention of the lawmaker to make the commission of certain acts
criminal without regard to the intent of the doer is clear and beyond question
the statute will not be so construed (cases cited in Cyc., vol. 12, p. 158, notes
76 and 77); and the rule that ignorance of the law excuses no man has been
said not to be a real departure from the law's fundamental principle that
crime exists only where the mind is at fault, because "the evil purpose need
not be to break the law, and if suffices if it is simply to do the thing which the
law in fact forbids." (Bishop's New Criminal Law, sec. 300, and cases cited.)
But, however this may be, there is no technical rule, and no pressing
necessity therefore, requiring mistake in fact to be dealt with otherwise that in
strict accord with the principles of abstract justice. On the contrary, the
maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact
is, in all cases of supposed offense, a sufficient excuse"). (Brown's Leg.
Max., 2d ed., 190.)
Since evil intent is in general an inseparable element in every crime, any
such mistake of fact as shows the act committed to have proceeded from no
sort of evil in the mind necessarily relieves the actor from criminal liability
provided always there is no fault or negligence on his part; and as laid down
by Baron Parke, "The guilt of the accused must depend on the
circumstances as they appear to him." (Reg. vs. Thurborn, 1 Den. C., 387;
P. vs.Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N.
Y., 509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41;
P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to
say, the question as to whether he honestly, in good faith, and without fault
or negligence fell into the mistake is to be determined by the circumstances
as they appeared to him at the time when the mistake was made, and the
effect which the surrounding circumstances might reasonably be expected to
have on his mind, in forming the intent, criminal or other wise, upon which he
acted.
If, in language not uncommon in the cases, one has reasonable
cause to believe the existence of facts which will justify a killing or,
in terms more nicely in accord with the principles on which the rule is
founded, if without fault or carelessness he does believe them he
is legally guiltless of the homicide; though he mistook the facts, and
so the life of an innocent person is unfortunately extinguished. In
other words, and with reference to the right of self-defense and the
not quite harmonious authorities, it is the doctrine of reason and
sufficiently sustained in adjudication, that notwithstanding some
decisions apparently adverse, whenever a man undertakes selfdefense, he is justified in acting on the facts as they appear to him.

If, without fault or carelessness, he is misled concerning them, and

defends himself correctly according to what he thus supposes the
facts to be the law will not punish him though they are in truth
otherwise, and he was really no occassion for the extreme
measures. (Bishop's New Criminal Law, sec. 305, and large array of
cases there cited.)
The common illustration in the American and English textbooks of the
application of this rule is the case where a man, masked and disguised as a
footpad, at night and on a lonely road, "holds up" his friends in a spirit of
mischief, and with leveled pistol demands his money or his life, but is killed
by his friend under the mistaken belief that the attack is a real one, that the
pistol leveled at his head is loaded, and that his life and property are in
imminent danger at the hands of the aggressor. No one will doubt that if the
facts were such as the slayer believed them to be he would be innocent of
the commission of any crime and wholly exempt from criminal liability,
although if he knew the real state of the facts when he took the life of his
friend he would undoubtedly be guilty of the crime of homicide or
assassination. Under such circumstances, proof of his innocent mistake of
the facts overcomes the presumption of malice or criminal intent, and (since
malice or criminal intent is a necessary ingredient of the "act punished by
law" in cases of homicide or assassination) overcomes at the same time the
presumption established in article 1 of the code, that the "act punished by
law" was committed "voluntarily."
Parson, C.J., in the Massachusetts court, once said:
If the party killing had reasonable grounds for believing that the
person slain had a felonious design against him, and under that
supposition killed him, although it should afterwards appear that
there was no such design, it will not be murder, but it will be either
manslaughter or excusable homicide, according to the degree of
caution used and the probable grounds of such belief. (Charge to the
grand jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's report
of the case, p.7.)
In this case, Parker, J., charging the petit jury, enforced the doctrine as
follows:
A, in the peaceable pursuit of his affairs, sees B rushing rapidly
toward him, with an outstretched arms and a pistol in his hand, and
using violent menaces against his life as he advances. Having
approached near enough in the same attitude, A, who has a club in
his hand, strikes B over the head before or at the instant the pistol is
discharged; and of the wound B dies. It turns out the pistol was

loaded with powder only, and that the real design of B was only
to terrify A. Will any reasonable man say that A is more criminal that
he would have been if there had been a bullet in the pistol? Those
who hold such doctrine must require that a man so attacked must,
before he strikes the assailant, stop and ascertain how the pistol is
loaded a doctrine which would entirely take away the essential
right of self-defense. And when it is considered that the jury who try
the cause, and not the party killing, are to judge of the reasonable
grounds of his apprehension, no danger can be supposed to flow
from this principle. (Lloyd's Rep., p. 160.)
To the same effect are various decisions of the supreme court of Spain, cited
by Viada, a few of which are here set out in full because the facts are
somewhat analogous to those in the case at bar.
QUESTION III. When it is shown that the accused was sitting at his
hearth, at night, in company only of his wife, without other light than
reflected from the fire, and that the man with his back to the door
was attending to the fire, there suddenly entered a person whom he
did not see or know, who struck him one or two blows, producing a
contusion on the shoulder, because of which he turned, seized the
person and took from his the stick with which he had undoubtedly
been struck, and gave the unknown person a blow, knocking him to
the floor, and afterwards striking him another blow on the head,
leaving the unknown lying on the floor, and left the house. It turned
out the unknown person was his father-in-law, to whom he rendered
assistance as soon as he learned his identity, and who died in about
six days in consequence of cerebral congestion resulting from the
blow. The accused, who confessed the facts, had always sustained
pleasant relations with his father-in-law, whom he visited during his
sickness, demonstrating great grief over the occurrence. Shall he be
considered free from criminal responsibility, as having acted in selfdefense, with all the circumstances related in paragraph 4, article 8,
of the Penal Code? The criminal branch of theAudiencia of Valladolid
found that he was an illegal aggressor, without sufficient provocation,
and that there did not exists rational necessity for the employment of
the force used, and in accordance with articles 419 and 87 of the
Penal Code condemned him to twenty months of imprisonment, with
accessory penalty and costs. Upon appeal by the accused, he was
acquitted by the supreme court, under the following sentence:
"Considering, from the facts found by the sentence to have been
proven, that the accused was surprised from behind, at night, in his
house beside his wife who was nursing her child, was attacked,
struck, and beaten, without being able to distinguish with which they
might have executed their criminal intent, because of the there was
no other than fire light in the room, and considering that in such a

situation and when the acts executed demonstrated that they might
endanger his existence, and possibly that of his wife and child, more
especially because his assailant was unknown, he should have
defended himself, and in doing so with the same stick with which he
was attacked, he did not exceed the limits of self-defense, nor did he
use means which were not rationally necessary, particularly because
the instrument with which he killed was the one which he took from
his assailant, and was capable of producing death, and in the
darkness of the house and the consteration which naturally resulted
from such strong aggression, it was not given him to known or
distinguish whether there was one or more assailants, nor the arms
which they might bear, not that which they might accomplish, and
considering that the lower court did not find from the accepted facts
that there existed rational necessity for the means employed, and
that it did not apply paragraph 4 of article 8 of the Penal Code, it
erred, etc." (Sentence of supreme court of Spain, February 28,
1876.) (Viada, Vol. I, p. 266.) .
QUESTION XIX. A person returning, at night, to his house, which
was situated in a retired part of the city, upon arriving at a point
where there was no light, heard the voice of a man, at a distance of
some 8 paces, saying: "Face down, hand over you money!" because
of which, and almost at the same money, he fired two shots from his
pistol, distinguishing immediately the voice of one of his friends (who
had before simulated a different voice) saying, "Oh! they have killed
me," and hastening to his assistance, finding the body lying upon the
ground, he cried, "Miguel, Miguel, speak, for God's sake, or I am
ruined," realizing that he had been the victim of a joke, and not
receiving a reply, and observing that his friend was a corpse, he
retired from the place. Shall he be declared exempt in toto from
responsibility as the author of this homicide, as having acted in just
self-defense under the circumstances defined in paragraph 4, article
8, Penal Code? The criminal branch of the Audiencia of Malaga did
not so find, but only found in favor of the accused two of the
requisites of said article, but not that of the reasonableness of the
means employed to repel the attack, and, therefore, condemned the
accused to eight years and one day of prison mayor, etc. The
supreme court acquitted the accused on his appeal from this
sentence, holding that the accused was acting under a justifiable and
excusable mistake of fact as to the identity of the person calling to
him, and that under the circumstances, the darkness and
remoteness, etc., the means employed were rational and the
shooting justifiable. (Sentence supreme court, March 17, 1885.)
(Viada, Vol. I, p. 136.)

QUESTION VI. The owner of a mill, situated in a remote spot, is

awakened, at night, by a large stone thrown against his window at
this, he puts his head out of the window and inquires what is wanted,
and is answered "the delivery of all of his money, otherwise his
house would be burned" because of which, and observing in an
alley adjacent to the mill four individuals, one of whom addressed
him with blasphemy, he fired his pistol at one the men, who, on the
next morning was found dead on the same spot. Shall this man be
declared exempt from criminal responsibility as having acted in just
self-defense with all of the requisites of law? The criminal branch of
the requisites of law? The criminal branch of the Audiencia of
Zaragoza finds that there existed in favor of the accused a majority
of the requisites to exempt him from criminal responsibility, but not
that of reasonable necessity for the means, employed, and
condemned the accused to twelve months of prision correctional for
the homicide committed. Upon appeal, the supreme court acquitted
the condemned, finding that the accused, in firing at the malefactors,
who attack his mill at night in a remote spot by threatening robbery
and incendiarism, was acting in just self-defense of his person,
property, and family. (Sentence of May 23, 1877). (I Viada, p. 128.)
A careful examination of the facts as disclosed in the case at bar convinces
us that the defendant Chinaman struck the fatal blow alleged in the
information in the firm belief that the intruder who forced open the door of his
sleeping room was a thief, from whose assault he was in imminent peril, both
of his life and of his property and of the property committed to his charge;
that in view of all the circumstances, as they must have presented
themselves to the defendant at the time, he acted in good faith, without
malice, or criminal intent, in the belief that he was doing no more than
exercising his legitimate right of self-defense; that had the facts been as he
believed them to be he would have been wholly exempt from criminal liability
on account of his act; and that he can not be said to have been guilty of
negligence or recklessness or even carelessness in falling into his mistake
as to the facts, or in the means adopted by him to defend himself from the
imminent danger which he believe threatened his person and his property
and the property under his charge.
The judgment of conviction and the sentence imposed by the trial court
should be reversed, and the defendant acquitted of the crime with which he
is charged and his bail bond exonerated, with the costs of both instance de
oficio. So ordered.
Johnson Moreland and Elliott, JJ., concur.
Arellano, C.J., and Mapa, J., dissent.

9. People vs. Oanis

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-47722

July 27, 1943

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants.
Antonio Z. Oanis in his own behalf.
Maximo L. Valenzuela for appellant Galanta.
Acting Solicitor-General Ibaez and Assistant Attorney Torres for appellee.
MORAN, J.:
Charged with the crime of murder of one Serapio Tecson, the accused
Antonio Z. Oanis and Alberto Galanta, chief of police of Cabanatuan and
corporal of the Philippine Constabulary, respectively, were, after due trial,
found guilty by the lower court of homicide through reckless imprudence and
were sentenced each to an indeterminate penalty of from one year and six
months to two years and two months of prison correccional and to indemnify
jointly and severally the heirs of the deceased in the amount of P1,000.
Defendants appealed separately from this judgment.
In the afternoon of December 24, 1938. Captain Godofredo Monsod,
Constabulary Provincial Inspector at Cabanatuan, Nueva Ecija, received
from Major Guido a telegram of the following tenor: "Information received
escaped convict Anselmo Balagtas with bailarina and Irene in Cabanatuan
get him dead or alive." Captain Monsod accordingly called for his first
sergeant and asked that he be given four men. Defendant corporal Alberto
Galanta, and privates Nicomedes Oralo, Venancio Serna and D. Fernandez,
upon order of their sergeant, reported at the office of the Provincial Inspector
where they were shown a copy of the above-quoted telegram and a
newspaper clipping containing a picture of Balagtas. They were instructed to
arrest Balagtas and, if overpowered, to follow the instruction contained in the
telegram. The same instruction was given to the chief of police Oanis who
was likewise called by the Provincial Inspector. When the chief of police was
asked whether he knew one Irene, a bailarina, he answered that he knew

one of loose morals of the same name. Upon request of the Provincial
Inspector, the chief of police tried to locate some of his men to guide the
constabulary soldiers in ascertaining Balagtas' whereabouts, and failing to
see anyone of them he volunteered to go with the party. The Provincial
Inspector divided the party into two groups with defendants Oanis and
Galanta, and private Fernandez taking the route to Rizal street leading to the
house where Irene was supposedly living. When this group arrived at Irene's
house, Oanis approached one Brigida Mallare, who was then stripping
banana stalks, and asked her where Irene's room was. Brigida indicated the
place and upon further inquiry also said that Irene was sleeping with her
paramour. Brigida trembling, immediately returned to her own room which
was very near that occupied by Irene and her paramour. Defendants Oanis
and Galanta then went to the room of Irene, and an seeing a man sleeping
with his back towards the door where they were, simultaneously or
successively fired at him with their .32 and .45 caliber revolvers. Awakened
by the gunshots, Irene saw her paramour already wounded, and looking at
the door where the shots came, she saw the defendants still firing at him.
Shocked by the entire scene. Irene fainted; it turned out later that the person
shot and killed was not the notorious criminal Anselmo Balagtas but a
peaceful and innocent citizen named Serapio Tecson, Irene's paramour. The
Provincial Inspector, informed of the killing, repaired to the scene and when
he asked as to who killed the deceased. Galanta, referring to himself and to
Oanis, answered: "We two, sir." The corpse was thereafter brought to the
provincial hospital and upon autopsy by Dr. Ricardo de Castro, multiple
gunshot wounds inflicted by a .32 and a .45 caliber revolvers were found on
Tecson's body which caused his death.
These are the facts as found by the trial court and fully supported by the
evidence, particularly by the testimony of Irene Requinea. Appellants gave,
however, a different version of the tragedy. According to Appellant Galanta,
when he and chief of police Oanis arrived at the house, the latter asked
Brigida where Irene's room was. Brigida indicated the place, and upon further
inquiry as to the whereabouts of Anselmo Balagtas, she said that he too was
sleeping in the same room. Oanis went to the room thus indicated and upon
opening the curtain covering the door, he said: "If you are Balagtas, stand
up." Tecson, the supposed Balagtas, and Irene woke up and as the former
was about to sit up in bed. Oanis fired at him. Wounded, Tecson leaned
towards the door, and Oanis receded and shouted: "That is Balagtas."
Galanta then fired at Tecson.
On the other hand, Oanis testified that after he had opened the curtain
covering the door and after having said, "if you are Balagtas stand up."
Galanta at once fired at Tecson, the supposed Balagtas, while the latter was
still lying on bed, and continued firing until he had exhausted his bullets: that
it was only thereafter that he, Oanis, entered the door and upon seeing the

supposed Balagtas, who was then apparently watching and picking up

something from the floor, he fired at him.
The trial court refused to believe the appellants. Their testimonies are
certainly incredible not only because they are vitiated by a natural urge to
exculpate themselves of the crime, but also because they are materially
contradictory. Oasis averred that be fired at Tecson when the latter was
apparently watching somebody in an attitudes of picking up something from
the floor; on the other hand, Galanta testified that Oasis shot Tecson while
the latter was about to sit up in bed immediately after he was awakened by a
noise. Galanta testified that he fired at Tecson, the supposed Balagtas, when
the latter was rushing at him. But Oanis assured that when Galanta shot
Tecson, the latter was still lying on bed. It is apparent from these
contradictions that when each of the appellants tries to exculpate himself of
the crime charged, he is at once belied by the other; but their mutual
incriminating averments dovetail with and corroborate substantially, the
testimony of Irene Requinea. It should be recalled that, according to
Requinea, Tecson was still sleeping in bed when he was shot to death by
appellants. And this, to a certain extent, is confirmed by both appellants
themselves in their mutual recriminations. According, to Galanta, Oanis shot
Tecson when the latter was still in bed about to sit up just after he was
awakened by a noise. And Oanis assured that when Galanta shot Tecson,
the latter was still lying in bed. Thus corroborated, and considering that the
trial court had the opportunity to observe her demeanor on the stand, we
believe and so hold that no error was committed in accepting her testimony
and in rejecting the exculpatory pretensions of the two appellants.
Furthermore, a careful examination of Irene's testimony will show not only
that her version of the tragedy is not concocted but that it contains all indicia
of veracity. In her cross-examination, even misleading questions had been
put which were unsuccessful, the witness having stuck to the truth in every
detail of the occurrence. Under these circumstances, we do not feel
ourselves justified in disturbing the findings of fact made by the trial court.
The true fact, therefore, of the case is that, while Tecson was sleeping in his
room with his back towards the door, Oanis and Galanta, on sight, fired at
him simultaneously or successively, believing him to be Anselmo Balagtas
but without having made previously any reasonable inquiry as to his identity.
And the question is whether or not they may, upon such fact, be held
responsible for the death thus caused to Tecson. It is contended that, as
appellants acted in innocent mistake of fact in the honest performance of
their official duties, both of them believing that Tecson was Balagtas, they
incur no criminal liability. Sustaining this theory in part, the lower court held
and so declared them guilty of the crime of homicide through reckless
imprudence. We are of the opinion, however, that, under the circumstances
of the case, the crime committed by appellants is murder through specially
mitigated by circumstances to be mentioned below.

In support of the theory of non-liability by reasons of honest mistake of fact,

appellants rely on the case of U.S. v. Ah Chong, 15 Phil., 488. The maxim
is ignorantia facti excusat, but this applies only when the mistake is
committed without fault or carelessness. In the Ah Chong case, defendant
therein after having gone to bed was awakened by someone trying to open
the door. He called out twice, "who is there," but received no answer. Fearing
that the intruder was a robber, he leaped from his bed and called out again.,
"If you enter the room I will kill you." But at that precise moment, he was
struck by a chair which had been placed against the door and believing that
he was then being attacked, he seized a kitchen knife and struck and fatally
wounded the intruder who turned out to be his room-mate. A common
illustration of innocent mistake of fact is the case of a man who was marked
as a footpad at night and in a lonely road held up a friend in a spirit of
mischief, and with leveled, pistol demanded his money or life. He was killed
by his friend under the mistaken belief that the attack was real, that the pistol
leveled at his head was loaded and that his life and property were in
imminent danger at the hands of the aggressor. In these instances, there is
an innocent mistake of fact committed without any fault or carelessness
because the accused, having no time or opportunity to make a further
inquiry, and being pressed by circumstances to act immediately, had no
alternative but to take the facts as they then appeared to him, and such facts
justified his act of killing. In the instant case, appellants, unlike the accused in
the instances cited, found no circumstances whatsoever which would press
them to immediate action. The person in the room being then asleep,
appellants had ample time and opportunity to ascertain his identity without
hazard to themselves, and could even effect a bloodless arrest if any
reasonable effort to that end had been made, as the victim was unarmed,
according to Irene Requinea. This, indeed, is the only legitimate course of
action for appellants to follow even if the victim was really Balagtas, as they
were instructed not to kill Balagtas at sight but to arrest him, and to get him
dead or alive only if resistance or aggression is offered by him.
Although an officer in making a lawful arrest is justified in using such force as
is reasonably necessary to secure and detain the offender, overcome his
resistance, prevent his escape, recapture him if he escapes, and protect
himself from bodily harm (People vs. Delima, 46 Phil, 738), yet he is never
justified in using unnecessary force or in treating him with wanton violence,
or in resorting to dangerous means when the arrest could be effected
otherwise (6 C.J.S., par. 13, p. 612). The doctrine is restated in the new
Rules of Court thus: "No unnecessary or unreasonable force shall be used in
making an arrest, and the person arrested shall not be subject to any greater
restraint than is necessary for his detention." (Rule 109, sec. 2, par. 2). And a
peace officer cannot claim exemption from criminal liability if he uses
unnecessary force or violence in making an arrest (5 C.J., p. 753;
U.S.vs. Mendoza, 2 Phil., 109). It may be true that Anselmo Balagtas was a
notorious criminal, a life-termer, a fugitive from justice and a menace to the

peace of the community, but these facts alone constitute no justification for
killing him when in effecting his arrest, he offers no resistance or in fact no
resistance can be offered, as when he is asleep. This, in effect, is the
principle laid down, although upon different facts, in U.S. vs. Donoso (3 Phil.,
234, 242).
It is, however, suggested that a notorious criminal "must be taken by storm"
without regard to his right to life which he has by such notoriety already
forfeited. We may approve of this standard of official conduct where the
criminal offers resistance or does something which places his captors in
danger of imminent attack. Otherwise we cannot see how, as in the present
case, the mere fact of notoriety can make the life of a criminal a mere trifle in
the hands of the officers of the law. Notoriety rightly supplies a basis for
redoubled official alertness and vigilance; it never can justify precipitate
action at the cost of human life. Where, as here, the precipitate action of the
appellants has cost an innocent life and there exist no circumstances
whatsoever to warrant action of such character in the mind of a reasonably
prudent man, condemnation not condonation should be the rule;
otherwise we should offer a premium to crime in the shelter of official
actuation.
The crime committed by appellants is not merely criminal negligence, the
killing being intentional and not accidental. In criminal negligence, the injury
caused to another should be unintentional, it being simply the incident of
another act performed without malice. (People vs. Sara, 55 Phil., 939). In the
words of Viada, "para que se celifique un hecho de imprudencia es preciso
que no haya mediado en el malicia ni intencion alguna de daar; existiendo
esa intencion, debera calificarse el hecho del delito que ha producido, por
mas que no haya sido la intencion del agente el causar un mal de tanta
gravedad como el que se produjo." (Tomo 7, Viada Codigo Penal
Comentado, 5.a ed. pag. 7). And, as once held by this Court, a deliberate
intent to do an unlawful act is essentially inconsistent with the idea of
reckless imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor,
56 Phil., 16), and where such unlawful act is wilfully done, a mistake in the
identity of the intended victim cannot be considered as reckless imprudence
(People vs. Gona, 54 Phil., 605) to support a plea of mitigated liability.
As the deceased was killed while asleep, the crime committed is murder with
the qualifying circumstance ofalevosia. There is, however, a mitigating
circumstance of weight consisting in the incomplete justifying circumstance
defined in article 11, No. 5, of the Revised Penal Code. According to such
legal provision, a person incurs no criminal liability when he acts in the
fulfillment of a duty or in the lawful exercise of a right or office. There are two
requisites in order that the circumstance may be taken as a justifying one: (a)
that the offender acted in the performance of a duty or in the lawful exercise
of a right; and (b) that the injury or offense committed be the necessary

consequence of the due performance of such duty or the lawful exercise of

such right or office. In the instance case, only the first requisite is present
appellants have acted in the performance of a duty. The second requisite is
wanting for the crime by them committed is not the necessary consequence
of a due performance of their duty. Their duty was to arrest Balagtas or to get
him dead or alive if resistance is offered by him and they are overpowered.
But through impatience or over-anxiety or in their desire to take no chances,
they have exceeded in the fulfillment of such duty by killing the person whom
they believed to be Balagtas without any resistance from him and without
making any previous inquiry as to his identity. According to article 69 of the
Revised Penal Code, the penalty lower by one or two degrees than that
prescribed by law shall, in such case, be imposed.
For all the foregoing, the judgment is modified and appellants are hereby
declared guilty of murder with the mitigating circumstance above mentioned,
and accordingly sentenced to an indeterminate penalty of from five (5) years
of prision correctional to fifteen (15) years of reclusion temporal, with the
accessories of the law, and to pay the heirs of the deceased Serapio Tecson
jointly and severally an indemnity of P2,000, with costs.
Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.

10. Padilla vs Dizon

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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

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
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.

Canadian Dollar

C$ 990.00
without authority from the Central Bank.

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:
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

French Franc

F/6,860.00

US Dollar

US$ 73,950.00

English Pound

5,318.00

Malaysian Dollar

M$. 14,760.00

(in checks)
Australian Dollar

A$ 7,750.00

British Pound

700.00

US Dollar

US$ 17,630.00

Contrary to Law.
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:
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:
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 crossexamination 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 circumstances 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 government-owned and/or

controlled agencies or corporations.

in Criminal Cases Q-35693 to 35696 before they were elevated on appeal to

the respondent appellate Court under CA-G.R. CR No. 04889.

This resolution is immediately executory.

The antecedent facts and circumstances of the four (4) counts of the offense
charged, have been clearly illustrated, in the Comment of the Office of the
Solicitor General as official counsel for the public respondent, thus:

SO ORDERED.
Teehankee, C.J., Yap, Fernan, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Feliciano, Gancayco, Bidin, Sarmiento Cortes, and Grio-Aquino, JJ.,
concur.
Padilla, Narvasa, JJ., took no part.

11. Magno vs, CA

Republic of the Philippines
SUPREME COURT
Manila

Petitioner was in the process of putting up a car repair shop sometime in

April 1983, but a did not have complete equipment that could make his
venture workable. He also had another problem, and that while he was going
into this entrepreneurship, he lacked funds with which to purchase the
necessary equipment to make such business operational. Thus, petitioner,
representing Ultra Sources International Corporation, approached Corazon
Teng, (private complainant) Vice President of Mancor Industries (hereinafter
referred to as Mancor) for his needed car repair service equipment of which
Mancor was a distributor, (Rollo, pp. 40-41)
Having been approached by petitioner on his predicament, who fully bared
that he had no sufficient funds to buy the equipment needed, the former
(Corazon Teng) referred Magno to LS Finance and Management Corporation
(LB Finance for brevity) advising its Vice-President, Joey Gomez, that
Mancor was willing and able to supply the pieces of equipment needed if LS
Finance could accommodate petitioner and provide him credit facilities. (Ibid.,
P. 41)

SECOND DIVISION

G.R. No. 96132 June 26, 1992

ORIEL MAGNO, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.

PARAS, J.:
This is an appeal by certiorari under Rule 45 of the Revised Rules of Court,
from the decision* of the respondent Court of Appeals which affirmed in
toto the decision of the Regional Trial Court of Quezon City, Branch 104
finding the accused petitioner, guilty of violations of Batas Pambansa Blg. 22,

The arrangement went through on condition that petitioner has to put up a

warranty deposit equivalent to thirtyper centum (30%) of the total value of the
pieces of equipment to be purchased, amounting to P29,790.00. Since
petitioner could not come up with such amount, he requested Joey Gomez
on a personal level to look for a third party who could lend him the equivalent
amount of the warranty deposit, however, unknown to petitioner, it was
Corazon Teng who advanced the deposit in question, on condition that the
same would be paid as a short term loan at 3% interest (Ibid., P. 41)
The specific provision in the Leasing Agreement, reads:
1.1. WARRANTY DEPOSIT Before or upon delivery of
each item of Equipment, the Lessee shall deposit with the
Lessor such sum or sums specified in Schedule A to serve
as security for the faithful performance of its obligations.
This deposit shall be refunded to the Lessee upon the
satisfactory completion of the entire period of Lease, subject
to the conditions of clause 1.12 of this Article. (Ibid., p. 17)

As part of the arrangement, petitioner and LS Finance entered into a leasing

agreement whereby LS Finance would lease the garage equipments and
petitioner would pay the corresponding rent with the option to buy the same.
After the documentation was completed, the equipment were delivered to
petitioner who in turn issued a postdated check and gave it to Joey Gomez
who, unknown to the petitioner, delivered the same to Corazon Teng. When
the check matured, Petitioner requested through Joey Gomez not to deposit
the check as he (Magno) was no longer banking with Pacific Bank.
To replace the first check issued, petitioner issued another set of six (6)
postdated checks. Two (2) checks dated July 29, 1983 were deposited and
cleared while the four (4) others, which were the subject of the four counts of
the aforestated charges subject of the petition, were held momentarily by
Corazon Teng, on the request of Magno as they were not covered with
sufficient funds. These checks were a) Piso Bank Check Nos. 006858, dated
August 15, 1983, 006859 dated August 28, 1983 and 006860 dated
September 15, 1983, all in the amount of P5,038.43 and No. 006861 dated
September 28, 1983, in the amount of P10,076.87. (Ibid., pp. 42 & 43).
Subsequently, petitioner could not pay LS Finance the monthly rentals, thus
it pulled out the garage equipments. It was then on this occasion that
petitioner became aware that Corazon Teng was the one who advanced the
warranty deposit. Petitioner with his wife went to see Corazon Teng and
promised to pay the latter but the payment never came and when the four (4)
checks were deposited they were returned for the reason "account closed."
(Ibid., p. 43)
After joint trial before the Regional Trial Court of Quezon City, Branch 104,
the accused-petitioner was convicted for violations of BP Blg. 22 on the four
(4) cases, as follows:
. . . finding the accused-appellant guilty beyond reasonable
doubt of the offense of violations of B.P. Blg. 22 and
sentencing the accused to imprisonment for one year in
each Criminal Case Nos. Q-35693, Q-35695 and Q-35696
and to pay to complainant the respective amounts reflected
in subject checks. (Ibid., pp. 25, 27)
Reviewing the above and the affirmation of the above-stated decision of the
court a quo, this Court is intrigued about the outcome of the checks subject
of the cases which were intended by the parties, the petitioner on the one
hand and the private complainant on the other, to cover the "warranty
deposit" equivalent to the 30% requirement of the financing company.
Corazon Teng is one of the officers of Mancor, the supplier of the equipment
subject of the Leasing Agreement subject of the high financing scheme

undertaken by the petitioner as lessee of the repair service equipment, which

was arranged at the instance of Mrs. Teng from the very beginning of the
transaction.
By the nature of the "warranty deposit" amounting to P29,790.00
corresponding to 30% of the "purchase/lease" value of the equipments
subject of the transaction, it is obvious that the "cash out" made by Mrs. Teng
was not used by petitioner who was just paying rentals for the equipment. It
would have been different if petitioner opted to purchase the pieces of
equipment on or about the termination of the lease-purchase agreement in
which case he had to pay the additional amount of the warranty deposit
which should have formed part of the purchase price. As the transaction did
not ripen into a purchase, but remained a lease with rentals being paid for
the loaned equipment, which were pulled out by the Lessor (Mancor) when
the petitioner failed to continue paying possibly due to economic constraints
or business failure, then it is lawful and just that the warranty deposit should
not be charged against the petitioner.
To charge the petitioner for the refund of a "warranty deposit" which he did
not withdraw as it was not his own account, it having remained with LS
Finance, is to even make him pay an unjust "debt", to say the least, since
petitioner did not receive the amount in question. All the while, said amount
was in the safekeeping of the financing company, which is managed,
supervised and operated by the corporation officials and employees of LS
Finance. Petitioner did not even know that the checks he issued were turned
over by Joey Gomez to Mrs. Teng, whose operation was kept from his
knowledge on her instruction. This fact alone evoke suspicion that the
transaction is irregular and immoral per se, hence, she specifically requested
Gomez not to divulge the source of the "warranty deposit".
It is intriguing to realize that Mrs. Teng did not want the petitioner to know
that it was she who "accommodated" petitioner's request for Joey Gomez, to
source out the needed funds for the "warranty deposit". Thus it unfolds the
kind of transaction that is shrouded with mystery, gimmickry and doubtful
legality. It is in simple language, a scheme whereby Mrs. Teng as the
supplier of the equipment in the name of her corporation, Mancor, would be
able to "sell or lease" its goods as in this case, and at the same time,
privately financing those who desperately need petty accommodations as
this one. This modus operandi has in so many instances victimized
unsuspecting businessmen, who likewise need protection from the law, by
availing of the deceptively called "warranty deposit" not realizing that they
also fall prey to leasing equipment under the guise of a lease-purchase
agreement when it is a scheme designed to skim off business clients.
This maneuvering has serious implications especially with respect to the
threat of the penal sanction of the law in issue, as in this case. And, with a

willing court system to apply the full harshness of the special law in question,
using the "mala prohibitia" doctrine, the noble objective of the law is tainted
with materialism and opportunism in the highest, degree.
This angle is bolstered by the fact that since the petitioner or lessee referred
to above in the lease agreement knew that the amount of P29,790.00 subject
of the cases, were mere accommodation-arrangements with somebody thru
Joey Gomez, petitioner did not even attempt to secure the refund of said
amount from LS Finance, notwithstanding the agreement provision to the
contrary. To argue that after the termination of the lease agreement, the
warranty deposit should be refundable in full to Mrs. Teng by petitioner when
he did not cash out the "warranty deposit" for his official or personal use, is to
stretch the nicety of the alleged law (B.P. No, 22) violated.
For all intents and purposes, the law was devised to safeguard the interest of
the banking system and the legitimate public checking account user. It did
not intend to shelter or favor nor encourage users of the system to enrich
themselves through manipulations and circumvention of the noble purpose
and objective of the law. Least should it be used also as a means of
jeopardizing honest-to-goodness transactions with some color of "get-rich"
scheme to the prejudice of well-meaning businessmen who are the pillars of
society.
Under the utilitarian theory, the "protective theory" in criminal law, "affirms
that the primary function of punishment is the protective (sic) of
society against actual and potential wrongdoers." It is not clear whether
petitioner could be considered as having actually committed the wrong
sought to be punished in the offense charged, but on the other hand, it can
be safely said that the actuations of Mrs. Carolina Teng amount to that of
potential wrongdoers whose operations should also be clipped at some point
in time in order that the unwary public will not be failing prey to such a vicious
transaction (Aquino, The Revised Penal Code, 1987 Edition, Vol. I, P. 11)
Corollary to the above view, is the application of the theory that "criminal law
is founded upon that moral disapprobation . . . of actions which are
immoral, i.e., which are detrimental (or dangerous) to those conditions upon
which depend the existence and progress of human society. This
disappropriation is inevitable to the extent that morality is generally founded
and built upon a certain concurrence in the moral opinions of all. . . . That
which we call punishment is only an external means of emphasizing moral
disapprobation the method of punishment is in reality the amount of
punishment," (Ibid., P. 11, citing People v. Roldan Zaballero, CA 54 O.G.
6904, Note also Justice Pablo's view in People v. Piosca and Peremne, 86
Phil. 31).

Thus, it behooves upon a court of law that in applying the punishment

imposed upon the accused, the objective of retribution of a wronged society,
should be directed against the "actual and potential wrongdoers." In the
instant case, there is no doubt that petitioner's four (4) checks were used to
collateralize an accommodation, and not to cover the receipt of an actual
"account or credit for value" as this was absent, and therefore petitioner
should not be punished for mere issuance of the checks in question.
Following the aforecited theory, in petitioner's stead the "potential
wrongdoer", whose operation could be a menace to society, should not be
glorified by convicting the petitioner.
While in case of doubt, the case should have been resolved in favor of the
accused, however, by the open admission of the appellate court below, oven
when the ultimate beneficiary of the "warranty deposit" is of doubtful
certainty, the accused was convicted, as shown below:
Nor do We see any merit in appellant's claim that the
obligation of the accused to complainant had been
extinguished by the termination of the leasing agreement
by the terms of which the warranty deposit advanced by
complainant was refundable to the accused as lessee and
that as the lessor L.S. Finance neither made any liquidation
of said amount nor returned the same to the accused, it may
he assumed that the amount was already returned to the
complainant. For these allegations, even if true, do not
change the fact, admitted by appellant and established by
the evidence, that the four checks were originally issued on
account or for value. And as We have already observed, in
order that there may be a conviction under the from
paragraph of Section 2 of B.P. Blg 22 with respect to the
element of said offense that the check should have been
made and issued on account or for value it is sufficient, all
the other elements of the offense being present, that the
check must have been drawn and issued in payment of an
obligation.
Moreover, even granting, arguendo, that the extinguishment,
after the issuance of the checks, of the obligation in
consideration of which the checks were issued, would have
resulted in placing the case at bar beyond the purview of the
prohibition in Section 1 of BP Blg. 22, there is no satisfactory
proof that there was such an extinguishment in the present
case. Appellee aptly points out that appellant had not
adduced any direct evidence to prove that the amount
advanced by the complainant to cover the warranty deposit
must already have been returned to her. (Rollo, p. 30)

It is indubitable that the respondent Court of Appeals even disregarded the

cardinal rule that the accused is presumed innocent until proven guilty
beyond reasonable doubt. On the contrary, the same court even expected
the petitioner-appellant to adduce evidence to show that he was not guilty of
the crime charged. But how can be produce documents showing that the
warranty deposit has already been taken back by Mrs. Teng when she is an
officer of Mancor which has interest in the transaction, besides being
personally interested in the profit of her side-line. Thus, even if she may have
gotten back the value of the accommodation, she would still pursue collecting
from the petitioner since she had in her possession the checks that
"bounced".

excluded or modified, an implied warranty that the goods

shall be fit for such purpose, (Ibid., p. 573)
b) Deposit: Money lodged with a person as an earnest or
security for the performance of some contract, to be forfeited
if the depositor fails in his undertaking. It may be deemed to
be part payment and to that extent may constitute the
purchaser the actual owner of the estate.
To commit to custody, or to lay down; to place; to put. To
lodge for safe- keeping or as a pledge to intrust to the care
of another.

That the court a quo merely relied on the law, without looking into the real
nature of the warranty deposit is evident from the following pronouncement:

The act of placing money in the custody of a bank or banker,

for safety or convenience, to be withdrawn at the will of the
depositor or under rules and regulations agreed on. Also, the
money so deposited, or the credit which the depositor
receives for it. Deposit, according to its commonly accepted
and generally understood among bankers and by the public,
includes not only deposits payable on demand and for which
certificates, whether interest-bearing or not, may be issued,
payable on demand, or on certain notice or at a fixed future
time. (Ibid., pp. 394-395)

And the trail court concluded that there is no question that

the accused violated BP Blg. 22, which is a special statutory
law, violations of which are mala prohibita. The court relied
on the rule that in cases of mala prohibita, the only inquiry is
whether or not the law had been violated, proof of criminal
intent not being necessary for the conviction of the accused,
the acts being prohibited for reasons of public policy and the
defenses of good faith and absence of criminal intent being
unavailing in prosecutions for said offenses." (Ibid., p. 26)
The crux of the matter rests upon the reason for the drawing of the postdated
checks by the petitioner, i.e.,whether they were drawn or issued "to apply on
account or for value", as required under Section 1 of B.P. Blg, 22. When
viewed against the following definitions of the catch-terms "warranty" and
"deposit", for which the postdated checks were issued or drawn, all the more,
the alleged crime could not have been committed by petitioner:
a) Warranty A promise that a proposition of fact is true. A
promise that certain facts are truly as they are represented
to be and that they will remain so: . . . (Black's Law
Dictionary, Fifth Edition, (1979) p. 1423)
A cross-reference to the following term shows:

Furthermore, the element of "knowing at the time of issue that he does not
have sufficient funds in or credit with the drawee bank for the payment of
such check in full upon its presentment, which check is subsequently
dishonored by the drawee bank for insufficiency of funds or credit or would
have been dishonored for the same reason . . . is inversely applied in this
case. From the very beginning, petitioner never hid the fact that he did not
have the funds with which to put up the warranty deposit and as a matter of
fact, he openly intimated this to the vital conduit of the transaction, Joey
Gomez, to whom petitioner was introduced by Mrs. Teng. It would have been
different if this predicament was not communicated to all the parties he dealt
with regarding the lease agreement the financing of which was covered by
L.S. Finance Management.
WHEREFORE, the appealed decision is REVERSED and the accusedpetitioner is hereby ACQUITTED of the crime charged.

Fitness for Particular Purpose:

SO ORDERED.
Where the seller at the time of contracting has reason to
know any particular purpose for which the goods are
required and that the buyer is relying on the seller's skill or
judgment to select or furnish suitable goods, there is, unless

Padilla and Regalado, JJ., concur.

Narvasa, C.J.,, concurs in the result.

Nocon, J., is on leave.

12. Garia vs. CA

THIRD DIVISION
ARSENIA B. GARCIA,
Petitioner,

G.R. No. 157171

Present:

- versus -

QUISUMBING, J., Chairperson,

CARPIO,
CARPIO MORALES, and
TINGA, JJ.

HONORABLE
COURT
OF
Promulgated:
APPEALS and THE
PEOPLE
OF THE PHILIPPINES,
March 14, 2006
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
QUISUMBING, J.:

This petition seeks the review of the judgment of the Court of

[1]
Appeals in CA-G.R. CR No. 24547 that affirmed the conviction of petitioner
[2]
by the Regional TrialCourt of Alaminos City, Pangasinan, Branch 54, for
[3]
violation of Section 27(b) of Republic Act No. 6646.
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 SupervisorRenato 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 seventy-seven
(5,077) votes.
CONTRARY TO LAW.

[4]

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.
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.
No pronouncement as to costs.
IT IS SO ORDERED.

[5]

III
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.
IV
THE REDUCTION OF THE VOTES OF CANDIDATE
PIMENTEL WAS
CLEARLY
NOT WILLFUL OR
[7]
INTENTIONAL.

Petitioner appealed before the Court of Appeals which affirmed with

modification the RTC Decision, thus,

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.

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.

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.

SO ORDERED.

[6]

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?

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.
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.

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
[8]
law. Accordingly, 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
[9]
these crimes, the sole issue is whether the law has been violated. Criminal
intent is not necessary where the acts are prohibited for reasons of public
[10]
policy.
Section 27(b) of Republic Act No. 6646

[11]

provides:

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

(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.

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
[14]
in the Statement of Votes.

xxx
Clearly, the acts prohibited in Section 27(b) are mala in
se. For 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.
[12]

Criminal intent is presumed to exist on the part of the person who

executes an act which the law punishes, unless the contrary shall
[13]
appear. Thus, 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

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
[15]
candidate for all 159 precincts in SOV No. 008423. The 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
[16]
Canvass (COC) No. 436156 signed by petitioner, Viray and Romero.
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
[17]
then accused Viray in his capacity as secretary of the board. Petitioner
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
[18]
COC.
Neither can this Court accept petitioners 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, petitioners 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
[19]
responsibility pursuant to the dictates of the law.
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
[20]
provision.

13. People vs. Pugay

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-74324 November 17, 1988

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
[21]
coincide.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y
MAGDALENA, accused-appellants.

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
disenfranchisement 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
[22]
thoroughly scrutinized.

Citizens Legal Assistance Office for accused-appellants.

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 petitioners conviction but increasing the
minimum penalty in her sentence to one year instead of six months
is AFFIRMED.
SO ORDERED.

The Solicitor General for plaintiff-appellee.

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 abovenamed 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
circumstance of treachery and the aggravating

circumstances 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.
CONTRARY TO LAW (p. 1, Records).
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 circumstance of lack of intention to commit so grave a wrong, the
dispositive portion of which reads as follows:
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 circumstance 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.

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 (Accused-appellants' Brief, p.
48, Rollo).
The antecedent facts are 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.

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.

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
accused-appellants 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, accusedappellants 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, selfserving 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. 1617, 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 accusedappellants 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).<re||an1w>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 crossexamination 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. 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?

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. 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. 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 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. I do not know that would be that incident.

A. Yes, sir (Tsn, July 30, 1983, pp. 32-33).
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.

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:
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 fellowbeings, would ever be exposed to all manner of danger and
injury.
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 funmaking that evening. For the circumstance 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.
As no sufficient evidence appears in the record establishing any qualifying
circumstances, 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
circumstance 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. 1617).<re||an1w>
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 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 Grio-Aquino, JJ., concur.

14. Ivler vs. San Pedro

SECOND DIVISION

JASON IVLER y AGUILAR, G.R. No. 172716

Petitioner,
Present:
CARPIO, J. Chairperson,
*
CARPIO MORALES,
- versus - PERALTA, ABAD, and

The MeTC refused quashal, finding no identity of offenses in the two

cases.

MENDOZA, JJ.
HON. MARIA ROWENA MODESTOSAN PEDRO, Judge of the Metropolitan
Trial Court, Branch 71, Pasig City, and Promulgated:
EVANGELINE PONCE,
Respondents. November 17, 2010
x --------------------------------------------------------------------------------------- x
DECISION
CARPIO, J.:

[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 petitioners motion, the MeTC
proceeded with the arraignment and, because of petitioners absence,
[4]
cancelled his bail and ordered his arrest. Seven days later, the MeTC
issued a resolution denying petitioners motion to suspend proceedings and
[5]
postponing his arraignment until after his arrest. Petitioner sought
reconsideration but as of the filing of this petition, the motion remained
unresolved.
Relying on the arrest order against petitioner, respondent Ponce
sought in the RTC the dismissal of S.C.A. No. 2803 for petitioners loss of
standing to maintain the suit. Petitioner contested the motion.

The Case
[1]

[2]

The petition seeks the review of the Orders of the Regional Trial Court of
Pasig City affirming sub-silencio a lower courts 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 accuseds 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 Ponces husband
Nestor C. Ponce and damage to the spouses Ponces 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 Ruling of the Trial Court

In an Order dated 2 February 2006, the RTC dismissed S.C.A. No.
2803, narrowly grounding its ruling on petitioners forfeiture of standing to
maintain S.C.A. No. 2803 arising from the MeTCs 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
[6]
unavailing.
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
[7]
a post-trial appeal of a judgment of conviction.
Petitioner laments the RTCs 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.

country during the pendency of the appeal. The appeal contemplated in

Section 8 of Rule 124 is a suit to review judgments of convictions.

Respondent Ponce finds no reason for the Court to disturb the RTCs
decision forfeiting petitioners standing to maintain his petition in S.C.A. 2803.
On the merits, respondent Ponce calls the Courts 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.

The RTCs dismissal of petitioners special civil action for certiorari to review
a pre-arraignment 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 RTCs reliance on People v.
[9]
Esparas undercuts the cogency of its ruling because Esparas stands for a
proposition contrary to the RTCs 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
[10]
Section 8 of Rule 124.

In the Resolution of 6 June 2007, we granted the Office of the Solicitor

Generals 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 petitioners constitutional right under the
Double Jeopardy Clause bars further proceedings in Criminal Case No.
82366.
The Ruling of the Court
We hold that (1) petitioners 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.
Petitioners Non-appearance at the Arraignment in
Criminal Case No. 82366 did not Divest him of Standing
to Maintain the Petition in S.C.A. 2803
Dismissals of appeals grounded on the appellants escape from custody or
violation of the terms of his bail bond are governed by the second paragraph
[8]
of Section 8, Rule 124, 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

The mischief in the RTCs treatment of petitioners 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 Courts treatment of
a defendant who absents himself from post-arraignment hearings. Under
[11]
Section 21, Rule 114 of the Revised Rules of Criminal Procedure, the
defendants 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 accuseds status to that of a fugitive without standing.

Further, the RTCs observation that petitioner provided no

[12]
explanation why he failed to attend the scheduled proceeding at the MeTC
is belied by the records. Days before the arraignment, petitioner sought the
suspension of the MeTCs proceedings in Criminal Case No. 82366 in light of
his petition with the RTC in S.C.A. No. 2803. Following the MeTCs refusal to
defer arraignment (the order for which was released days after the MeTC
ordered petitioners arrest), petitioner sought reconsideration. His motion
remained unresolved as of the filing of this petition.
Petitioners Conviction in Criminal Case No. 82367
Bars his Prosecution in Criminal Case No. 82366
The accuseds negative constitutional right not to be twice put in
[13]
jeopardy of punishment for the same offense protects 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

[14]
information. It is not disputed that petitioners 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
[15]
the other does not.
We find for petitioner.
Reckless Imprudence is a Single Crime,
its Consequences on Persons and
Property are Material Only to Determine
the Penalty
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 circumstances regarding persons, time and place.
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.
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.
Structurally, these nine paragraphs are collapsible into four subgroupings relating to (1) the penalties attached to the quasi-offenses of
imprudence and negligence (paragraphs 1-2); (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,
quasi-offenses penalize the mental attitude or condition behind the act, the
dangerous recklessness, lack of care or foresight, the imprudencia
[16]
punible, 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
[17]
committing it x x x 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 circumstance 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
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
circumstances 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,
[18]
or series, of crimes. (Emphasis supplied)
This explains why the technically correct way to allege quasi-crimes is to
[19]
state that their commission results in damage, either to person or property.
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.
[20]

Quizon, rooted in Spanish law (the normative ancestry of our

[21]
present day penal code) and since repeatedly reiterated, stands on solid
conceptual foundation. The contrary doctrinal pronouncement in People v.
[22]
Faller that [r]eckless impudence is not a crime in itself x x x [but] simply a
[23]
way of committing it x x x, 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 Fallers conceptualization of quasicrimes by holding that quasi-crimes under Article 365 are distinct species of
crimes and not merely methods of committing crimes. Faller found
[24]
expression in post-Quizonjurisprudence 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 Conviction or Acquittal of

Reckless Imprudence Bars

Subsequent Prosecution for the Same
Quasi-Offense
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 quasi-offense bars subsequent
prosecution for the same quasi-offense, regardless of its various resulting
acts, undergirded this Courts unbroken chain of jurisprudence on double
[25]
jeopardy as applied to Article 365 starting with People v. Diaz, 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 quasioffense, regardless of the consequences alleged for both charges, the Court
unfailingly and consistently answered in the affirmative in People v.
[26]
Belga (promulgated in 1957 by the Court en banc, per Reyes, J.), Yap v.
[27]
Lutero (promulgated in 1959, unreported, per Concepcion, J.), People v.
[28]
Narvas (promulgated in 1960 by the Court en banc, per Bengzon J.),
[29]
People v. Silva (promulgated in 1962 by the Court en banc, per
[30]
Paredes,J.), People v. Macabuhay (promulgated in 1966 by the Court en
[31]
banc, per Makalintal, J.), People v. Buan (promulgated in 1968 by the
Court en banc, per Reyes, J.B.L., acting C. J.), Buerano v. Court of
[32]
Appeals (promulgated in 1982 by the Court en banc, per Relova, J.),
[33]
and People v. City Court of Manila (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 accuseds prior acquittal of slight
physical injuries thru reckless imprudence, with both charges grounded on
[34]
the same act, the Court explained:
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
[35]
and prosecutions. 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
[36]
Pueblo de Filipinas v. Estipona, 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. Estiponas inconsistency with the post-war Diaz chain of jurisprudence
suffices to impliedly overrule it. At any rate, all doubts on this matter were laid
[37]
to rest in 1982 in Buerano. 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
[38]
reversed on the strength of Buan:
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.

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
[40]
mishap. (Emphasis supplied)
Hence, we find merit in petitioners 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
[41]
petitioners case than People v. Silva,
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 accuseds claim and dismissed the
second case. In affirming the trial court, we quoted with approval its analysis
[42]
of the issue following Diaz and its progeny People v. Belga:

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
[39]
offense. (Emphasis supplied)
Thus, for all intents
overruled Estipona.

and

purposes, Buerano had

On June 26, 1959, the lower court reconsidered its

Order of May 2, 1959 and dismissed the case, holding:

effectively

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 Courts 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 petitioners 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

[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 be P249.50.
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
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
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 prosecutions
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
[43]
court.
Significantly, the Solicitor General had urged us in Silva to
reexamine Belga (and hence, Diaz) for the purpose of delimiting or clarifying
[44]
its application. 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, in the
identical case of Yap v. Hon. Lutero, etc., L-12669, April 30,
[45]
1959. (Emphasis supplied)
Article 48 Does not Apply to Acts Penalized
Under Article 365 of the Revised Penal Code
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
[46]
operation light felonies ); 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
[47]
the act, the dangerous recklessness, lack of care or foresight x x x, 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 48s framework apply to complex the single quasioffense 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
[48]
complexing one quasi-crime with its multiple consequences 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
[49]
with the first level courts. Expectedly, this is the approach the MeTC
impliedly sanctioned (and respondent Ponce invokes), even though under
[50]
Republic Act No. 7691, 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.
The second jurisprudential path nixes Article 48 and sanctions a
single prosecution of all the effects of the quasi-crime collectively alleged in
[51]
one charge, regardless of their number or severity, penalizing each
[52]
consequence separately. Thus, in Angeles v. Jose, 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:
[T]he third paragraph of said article, x x x reads as follows:
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 anadditional penalty for the latter. The information
cannot be split into two; one for the physical injuries, and
[53]
another for the damage to property, x x x. (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 reconceptualize 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 quasi-crimes,
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.
A becoming regard of this Courts 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 quasi-crimes 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)
an offense which is a necessary means for committing another. This is why,
way back in 1968 in Buan, we rejected the Solicitor Generals 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 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 prosecutions 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.
[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
[54]
same offense. (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
[55]
information shall be filed in the same first level court.
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. WeDISMISS 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.

15. People vs. Echagaray

EN BANC

[G.R. No. 117472. June 25, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEO ECHEGARAY

y PILO, accused-appellant.
DECISION

PER CURIAM:

"This is a case of rape by the father of his ten-year old daughter.

Amidst the endless debates on whether or not the reimposition of the

death penalty is indeed a deterrent as far as the commission of heinous
crimes is concerned and while the attendant details pertaining to the
execution of a death sentence remain as yet another burning issue, we are
tasked with providing a clear-cut resolution of whether or not the herein
accused-appellant deserves to forfeit his place in human society for the
infliction of the primitive and bestial act of incestuous lust on his own blood.

Complainant RODESSA ECHEGARAY is a ten-year old girl and a fifthgrader, born on September 11, 1983. Rodessa is the eldest of five
siblings. She has three brothers aged 6, 5 and 2, respectively, and a 3-month
old baby sister. Her parents are Rosalie and Leo Echegaray, the latter being
the accused-appellant himself. The victim lives with her family in a small
house located at No. 199 Fernandez St., Barangay San Antonio, San
Francisco Del Monte, Quezon City (pp. 5-9, Aug. 9, 1994, TSN).

Before us for automatic review is the judgment of conviction, dated

September 7, 1994, for the crime of Rape, rendered after marathon hearing
by the Regional Trial Court of Quezon City, Branch 104, the dispositive
portion of which reads:
"WHEREFORE, judgment is hereby rendered finding accused LEO
ECHEGARAY Y PILO guilty beyond reasonable doubt of the crime of RAPE
as charged in the complaint, aggravated by the fact that the same was
committed by the accused who is the father/stepfather of the complainant, he
is hereby sentenced to suffer the penalty of DEATH, as provided for under
RA. No. 7659; to pay the complainant Rodessa Echegaray the sum of
P50,000.00 as damages, plus all the accessory penalties provided by law,
without subsidiary imprisonment in case of insolvency, and to pay the
[1]
costs."
We note, however, that the charge had been formulated in this manner:
"C O M P L A I N T
The undersigned accuses LEO ECHEGARAY Y PILO of the crime of RAPE,
committed as follows:
That on or about the month of April 1994, in Quezon City, Philippines, the
above-named accused, by means of force and intimidation, did then and
there, wilfully, unlawfully and feloniously have carnal knowledge of the
undersigned complainant his daughter, a minor, 10 years of age, all against
her will and without her consent, to her damage and prejudice.
CONTRARY TO LAW."

[2]

Upon being arraigned on August 1, 1994, the accused-appellant,

assisted by his counsel de oficio, entered the plea of "not guilty."
These are the pertinent facts of the case as summarized by the
Solicitor-General in his brief:

Sometime in the afternoon of April 1994, while Rodessa was looking after her
three brothers in their house as her mother attended a gambling session in
another place, she heard her father, the accused-appellant in this case, order
her brothers to go out of the house (pp. 10-11, ibid.). As soon as her brothers
left, accused-appellant Leo Echegaray approached Rodessa and suddenly
dragged her inside the room (p. 12, ibid). Before she could question the
appellant, the latter immediately removed her panty and made her lie on the
floor (p. 13, ibid.). Thereafter, appellant likewise removed his underwear and
immediately placed himself on top of Rodessa. Subsequently, appellant
forcefully inserted his penis into Rodessa's organ causing her to suffer
intense pain (pp. 14-15, ibid.). While appellant was pumping on her, he even
uttered: 'Masarap ba, masarap ba?' and to which Rodessa answered: 'Tama
na Papa, masakit' (p. 16, ibid.). Rodessa's plea proved futile as appellant
continued with his act. After satisfying his bestial instinct, appellant
threatened to kill her mother if she would divulge what had
happened. Scared that her mother would be killed by appellant, Rodessa
kept to herself the ordeal she suffered. She was very afraid of appellant
because the latter, most of the time, was high on drugs (pp. 17-18, ibid.). The
same sexual assault happened up to the fifth time and this usually took place
when her mother was out of the house (p. 19, ibid.). However, after the fifth
time, Rodessa decided to inform her grandmother, Asuncion Rivera, who in
turn told Rosalie, Rodessa's mother. Rodessa and her mother proceeded to
the Barangay Captain where Rodessa confided the sexual assaults she
suffered. Thereafter, Rodessa was brought to the precinct where she
executed an affidavit (p. 21, ibid.). From there, she was accompanied to the
Philippine National Police Crime Laboratory for medical examination (p.
22, ibid.).
Rodessa testified that the said sexual assaults happened only during the
time when her mother was pregnant. Rodessa added that at first, her mother
was on her side. However, when appellant was detained, her mother kept on
telling her: 'Kawawa naman ang Tatay mo, nakakulong' (pp. 39-40, ibid.).
When Rodessa was examined by the medico-legal officer in the person of
[3]
Dra. Ma. Cristina B. Preyna, the complainant was described as physically

on a non-virgin state, as evidenced by the presence of laceration of the

[4]
hymen of said complainant (TSN., Aug. 22,1995, pp. 8-9)."

abnormal to report the imputed commission of the crime to the grandmother

of the victim.

On the other hand, the accused-appellant's brief presents a different

story:

Accused further stated that her(sic) mother-in-law trumped-up a charge of

drug pushing earlier and he pleaded guilty to a lesser offense of using
drugs. The decretal portion of the judgment of conviction ordering the
accused to be confined at the Bicutan Rehabilitation Center irked the
grandmother of Rodessa because it was her wish that accused should be
meted the death penalty.

"x x x the defense presented its first witness, Rosalie Echegaray. She
asserted that the RAPE charge against the accused was only the figment of
her mother's dirty mind. That her daughter's complaint was forced upon her
by her grandma and the answers in the sworn statement of Rodessa were
coached. That the accusation of RAPE was motivated by Rodessa's
grandmother's greed over the lot situated at the Madrigal Estate-NHA
Project, Barangay San Antonio, San Francisco del Monte, Quezon City,
which her grandmother's paramour, Conrado Alfonso gave to the accused in
order to persuade the latter to admit that Rodessa executed an affidavit of
desistance after it turned out that her complaint of attempted homicide was
substituted with the crime of RAPE at the instance of her mother. That when
her mother came to know about the affidavit of desistance, she placed her
granddaughter under the custody of the Barangay Captain. That her mother
was never a real mother to her.
She stated that her complaint against accused was for attempted homicide
as her husband poured alcohol on her body and attempted to burn her. She
identified the certification issued by the NHA and Tag No. 87-0393 (Exh.
2). That the Certification based on the Masterlist (Exh. 3) indicates that the
property is co-owned by accused and Conrado Alfonso. That Rodessa is her
daughter sired by Conrado Alfonso, the latter being the paramour of her
mother. That Conrado Alfonso waived his right and participation over the lot
in favor of the accused in consideration of the latter's accepting the fact that
he is the father of Rodessa to simulate the love triangle and to conceal the
nauseating sex orgies from Conrado Alfonso's real Wife.
Accused testified in his behalf and stated that the grandmother of the
complainant has a very strong motive in implicating him to the crime of RAPE
since she was interested to become the sole owner of a property awarded to
her live-in partner by the Madrigal Estate-NHA Project. That he could not
have committed the imputed crime because he considers Rodessa as his
own daughter. That he is a painter-contractor and on the date of the alleged
commission of the crime, he was painting the house of one Divina Ang of
Barangay Vitalis, Paraaque, Metro Manila (Exh 4). The travel time between
his work place to his residence is three (3) hours considering the condition of
traffic. That the painting contract is evidenced by a document denominated
'Contract of Services' duly accomplished (see submarkings of Exh. 4). He
asserted that he has a big sexual organ which when used to a girl 11 years
old like Rodessa, the said female organ will be 'mawawarak.' That it is

Accused remain steadfast in his testimony perorating the strong motive of

Rodessa's grandmother in implicating him in this heinous crime because of
her greed to become the sole owner of that piece of property at the National
Housing Authority-Madrigal Project, situated at San Francisco del Monte,
Quezon City, notwithstanding rigid cross-examination. He asserted that the
imputed offense is far from his mind considering that he treated Rodessa as
his own daughter. He categorically testified that he was in his painting job
site on the date and time of the alleged commission of the crime.
Mrs. Punzalan was presented as third defense witness. She said that she is
the laundry woman and part time baby sitter of the family of accused. That at
one time, she saw Rodessa reading sex books and the Bulgar
newspaper. That while hanging washed clothes on the vacant lot she saw
Rodessa masturbating by tinkering her private parts. The masturbation took
sometime.
This sexual fling of Rodessa were corroborated by Silvestra Echegaray, the
fourth and last witness for the defense. She stated that she tried hard to
correct the flirting tendency of Rodessa and that she scolded her when she
saw Rodessa viewing an X-rated tape. Rodessa according to her was fond of
going with friends of ill-repute. That (sic) she corroborated the testimony of
Mrs Punzalan by stating that she herself saw Rodessa masturbating inside
[5]
the room of her house."
In finding the accused-appellant guilty beyond reasonable doubt of the
crime of rape, the lower court dismissed the defense of alibi and lent
credence to the straightforward testimony of the ten-year old victim to whom
no ill motive to testify falsely against accused-appellant can be
attributed. The lower court likewise regarded as inconsequential the defense
of the accused-appellant that the extraordinary size of his penis could not
have insinuated itself into the victim's vagina and that the accused is not the
real father of the said victim.
The accused-appellant now reiterates his position in his attempt to seek
a reversal of the lower court's verdict through the following assignment of
errors:

1. THE LOWER COURT FAILED TO APPRECIATE THE

SINISTER
MOTIVE
OF
PRIVATE
COMPLAINANT'S
GRANDMOTHER THAT PRECIPITATED THE FILING OF THE
CHARGE OF RAPE, HENCE IT ERRED IN HOLDING
ACCUSED GUILTY AS CHARGED.
2. THE COURT BELOW OVERLOOKED THE FACT THAT THE
HEALED LACERATIONS AT 3 AND 7 O'CLOCK COULD NOT
HAVE BEEN DUE TO THE PUMPING OF THE PENIS OF
ACCUSED TO THE VAGINA OF PRIVATE COMPLAINANT,
HENCE IT ERRED IN HOLDING THAT ACCUSED
COMMITTED THE CRIME CHARGED, NOTWITHSTANDING
VEHEMENT DENIAL.
3. THE COURT A QUO WHIMSICALLY IGNORED THE DEFENSE
OF ALIBI THAT ACCUSED WAS IN PARAAQUE ON THE
DATE AND TIME OF THE IMPUTED CRIME HENCE, IT
ERRED IN HOLDING THAT ALIBI IS NOT SUSTAINABLE IN
[6]
THE CASE AT BAR."
Considering that a rape charge, in the light of the reimposition of the
death penalty, requires a thorough and judicious examination of the
circumstances relating thereto, this Court remains guided by the following
principles in evaluating evidence in cases of this nature: (a) An accusation for
rape can be made with facility; it is difficult to prove but more difficult for the
accused though innocent to disprove; (b) In view of the intrinsic nature of the
crime of rape where only two persons are involved, the testimony of the
complainant must be scrutinized with extreme caution; and (c) The evidence
for the prosecution must stand and fall on its own merits, and cannot be
allowed to draw strength from the weakness of the evidence for the
[7]
defense."
Anent the first assigned error, no amount of persuasion can convince
this Court to tilt the scales of justice in favor of the accused-appellant
notwithstanding that he cries foul insisting that the rape charge was merely
concocted and strongly motivated by greed over a certain lot situated at the
NHA-Madrigal Estate Housing Project, Barangay San Antonio, San
Francisco del Monte, Quezon City. The accused-appellant theorizes that
prosecution witness Asuncion Rivera, the maternal grandmother of the victim
Rodessa, concocted the charge of rape so that, in the event that the
accused-appellant shall be meted out a death sentence, title to the lot will be
consolidated in her favor. Indeed, the lot in question is co-owned by the
accused-appellant and Conrado Alfonso, the live-in partner of Asuncion
Rivera, according to the records of the National Housing Authority (Exh.
"3"). The accused-appellant would want us to believe that the rape charge
was fabricated by Asuncion Rivera in order to eliminate the accusedappellant from being a co-owner. So, the live-in partners would have the
[8]
property for their own.

We believe, as did the Solicitor-General, that no grandmother would be

so callous as to instigate her 10-year old granddaughter to file a rape case
against her own father simply on account of her alleged interest over the
[9]
disputed lot.
It is a well-entrenched jurisprudential rule that the testimony of a rape
[10]
victim is credible where she has no motive to testify against the accused.
We find no flaws material enough to discredit the testimony of the tenyear old Rodessa which the trial court found convincing enough and
unrebutted by the defense. The trial court not surprisingly noted that
Rodessa's narration in detail of her father's monstrous acts had made her
[11]
cry. Once again, we rule that:
"x x x The testimony of the victim who was only 12 years old at the time of
the rape as to the circumstances of the rape must be given weight for
testimony of young and immature rape victims are credible (People v.
Guibao, 217 SCRA 64 [1993]). No woman especially one of tender age,
practically only a girl, would concoct a story of defloration, allow an
examination of her private parts and thereafter expose herself to a public
trial, if she were not motivated solely by the desire to have the culprit
[12]
apprehended and punished (People v. Guibao, supra)."
The accused-appellant points out certain inconsistencies in the
testimonies of the prosecution witnesses in his attempt to bolster his claim
that the rape accusation against him is malicious and baseless. Firstly,
Rodessa's testimony that the accused-appellant was already naked when he
dragged her inside the room is inconsistent with her subsequent testimony
that the said accused-appellant was still wearing short pants when she was
dragged inside the room. Secondly, Rodessa's sworn statement before the
police investigator which indicated that, while the accused was executing
pumping acts, he uttered the words "Masarap ba?", differ from her testimony
in court wherein she related that when the accused took out his penis from
her vagina, the accused said "Masarap, tapos na." Thirdly, the victim's
grandmother, Asuncion Rivera, recounted in her sworn statement that it was
the accused who went to see her to apprise her of the rape committed on her
granddaughter. However, in her testimony in court, Asuncion Rivera claimed
that she was the one who invited the accused-appellant to see her in her
[13]
house so as to tell her a secret. These alleged discrepancies merely
pertain to minor details which in no way pose serious doubt as to the
credibility of the prosecution witnesses.Whether or not the accused was
naked when he dragged Rodessa inside the room where he sexually
assaulted her bears no significant effect on Rodessa's testimony that she
was actually raped by the accused-appellant. Moreover, a conflicting account
of whatever words were uttered by the accused-appellant after he forcefully
inserted his penis into Rodessa's private organ against her will cannot impair
the prosecution's evidence as a whole. A determination of which version

earmarks the truth as to how the victim's grandmother learned about the rape
is inconsequential to the judgment of conviction.
As we have pronounced in the case of People v. Jaymalin:

[14]

"This Court has stated time and again that minor inconsistencies in the
narration of a witness do not detract from its essential credibility as long as it
is on the whole coherent and intrinsically believable.Inaccuracies may in fact
suggest that the witness is telling the truth and has not been rehearsed as it
is not to be expected that he will be able to remember every single detail of
an incident with perfect or total recall."
After due deliberation, this Court finds that the trial judge's assessment
of the credibility of the prosecution witnesses deserves our utmost respect in
the absence of arbitrariness.
With respect to the second assigned error, the records of the instant
case are bereft of clear and concrete proof of the accused-appellant's claim
as to the size of his penis and that if that be the fact, it could not have merely
[15]
caused shallow healed lacerations at 3:00 and 7:00 o'clock. In his
testimony, the accused- appellant stated that he could not have raped
Rodessa because of the size of his penis which could have ruptured her
[16]
vagina had he actually done so. This Court gives no probative value on the
accused-appellant's self-serving statement in the light of our ruling in the
[17]
case of People v. Melivo, supra, that:
"The vaginal wall and the hymenal membrane are elastic organs capable of
varying degrees of distensibility. The degree of distensibility of the female
reproductive organ is normally limited only by the character and size of the
pelvic inlet, other factors being minor. The female reproductive canal being
capable of allowing passage of a regular fetus, there ought to be no difficulty
allowing the entry of objects of much lesser size, including the male
reproductive organ, which even in its largest dimensions, would still be
considerably smaller than the full-term fetus.
xxx xxx xxx
In the case at bench, the presence of healed lacerations in various parts of
the vaginal wall, though not as extensive as appellant might have expected
them to be, indicate traumatic injury to the area within the period when the
incidents were supposed to have occurred." (At pp. 13-14, Italics supplied)
[18]

In rape cases, a broken hymen is not an essential element thereof. A

mere knocking at the doors of the pudenda, so to speak, by the accused's
penis suffices to constitute the crime of rape as full entry into the victim's
[19]
vagina is not required to sustain a conviction. In the case, Dr. Freyra, the

medico-legal examiner, categorically testified that the healed lacerations of

Rodessa on her vagina were consistent with the date of the commission of
[20]
the rape as narrated by the victim to have taken place in April, 1994.
Lastly, the third assigned error deserves scant consideration. The
accused-appellant erroneously argues that the Contract of Services (Exhibit
4) offered as evidence in support of the accused-appellant's defense of alibi
need not be corroborated because there is no law expressly requiring
[21]
so. In view of our finding that the prosecution witnesses have no motive to
falsely testify against the accused-appellant, the defense of alibi, in this case,
uncorroborated
by
other
witnesses,
should
be
completely
[22]
disregarded. More importantly, the defense of alibi which is inherently
weak becomes even weaker in the face of positive identification of the
accused-appellant as perpetrator of the crime of rape by his victim,
[23]
Rodessa.
The Contract of Services whereby the accused-appellant obligated
himself to do some painting Job at the house of one Divina Ang in
Paranaque, Metro Manila, within 25 days from April 4, 1994, is not proof of
the whereabouts of the accused-appellant at the time of the commission of
the offense.
The accused-appellant in this case is charged with Statutory Rape on
the basis of the complaint, dated July 14, 1994. The gravamen of the said
offense, as stated in paragraph 3, Article 335 of the Revised Penal Code, is
[24]
the carnal knowledge of a woman below twelve years old. Rodessa
positively identified his father accused-appellant, succeeded in
consummating his grievous and odious sexual assault on her is free from any
substantial self-contradiction. It is highly inconceivable that it is rehearsed
and fabricated upon instructions from Rodessa's maternal grandmother
Asuncion Rivera as asserted by the accused-appellant. The words of Chief
Justice Enrique M. Fernando, speaking for the Court, more than two decades
ago, are relevant and worth reiterating, thus:
"x x x it is manifest in the decisions of this Court that where the offended
parties are young and immature girls like the victim in this case, (Cited cases
omitted) there is marked receptivity on its part to lend credence to their
version of what transpired. It is not to be wondered at. The state, as parens
patria, is under the obligation to minimize the risk of harm to those, who,
because of their minority, are as yet unable to take care of themselves
fully. Those of tender years deserve its utmost protection. Moreover, the
injury in cases of rape is not inflicted on the unfortunate victim alone. The
consternation it causes her family must also be taken into account. It may
reflect a failure to abide by the announced concern in the fundamental law for
such institution. There is all the more reason then for the rigorous application
of the penal law with its severe penalty for this offense, whenever
warranted. It has been aptly remarked that with the advance in civilization,

the disruption in public peace and order it represents defies explanation,

much more so in view of what currently appears to be a tendency for sexual
permissiveness. Where the prospects of relationship based on consent are
[25]
hardly minimal, self-restraint should even be more marked."
Under Section 11 of Republic Act No. 7659 often referred to as the
Death Penalty Law, Art. 335 of the Revised Penal Code was amended, to
wit:
"The death penalty shall also be imposed if the crime of rape is committed
with any of the following attendant circumstances:

inevitable under the circumstances of this case that the accused-appellant

face the supreme penalty of death.
WHEREFORE, we AFFIRM the decision of the Regional Trial Court of
Quezon City, Branch 104.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr.,
Panganiban, and Torres, Jr., JJ., concur.

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

16. Corpuz vs. People

Republic of the Philippines
SUPREME COURT
Baguio City

(Italics supplied)
Apparently, as a last glimpse of hope, the accused-appellant questions
the penalty imposed by the trial court by declaring that he is neither a father,
stepfather or grandfather of Rodessa although he was a confirmed lover of
[26]
Rodessa's mother. On direct examination, he admitted that before the
charge of rape was filed against him, he had treated Rodessa as his real
daughter and had provided for her food, clothing, shelter and
[27]
education. The Court notes that Rodessa uses the surname of the
accused-appellant, not Rivera (her mother's maiden name) nor Alfonso (her
grandmother's live-in partner). Moreover, Rodessa's mother stated during the
cross-examination that she, the accused-appellant and her five children,
[28]
including Rodessa, had been residing in one house only. At any rate, even
if he were not the father, stepfather or grandfather of Rodessa, this
disclaimer cannot save him from the abyss where perpetrators of heinous
crimes ought to be, as mandated by law. Considering that the accused[29]
appellant is a confirmed lover of Rodessa's mother, he falls squarely within
the aforequoted portion of the Death Penalty Law under the term "commonlaw spouse of the parent of the victim."
The fact that the ten-year old Rodessa referred to the accused-appellant
as "Papa" is reason enough to conclude that accused-appellant is either the
father or stepfather of Rodessa.Thus, the act of sexual assault perpetrated
by the accused on his young victim has become all the more repulsive and
perverse. The victim's tender age and the accused-appellant's moral
ascendancy and influence over her are factors which forced Rodessa to
succumb to the accused's selfish and bestial craving. The law has made it

EN BANC
G.R. No. 180016

April 29, 2014

LITO CORPUZ, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
This is to resolve the Petition for Review on Certiorari, under Rule 45 of the
Rules of Court, dated November 5, 2007, of petitioner Lito Corpuz
1
(petitioner), seeking to reverse and set aside the Decision dated March 22,
2
2007 and Resolution dated September 5, 2007 of the Court of Appeals
3
(CA), which affirmed with modification the Decision dated July 30, 2004 of
the Regional Trial Court (RTC), Branch 46, San Fernando City, finding the
petitioner guilty beyond reasonable doubt of the crime of Estafa under Article
315, paragraph (1), sub-paragraph (b) of the Revised Penal Code.

The antecedent facts follow.

Private complainant Danilo Tangcoy and petitioner met at the Admiral Royale
Casino in Olongapo City sometime in 1990. Private complainant was then
engaged in the business of lending money to casino players and, upon
hearing that the former had some pieces of jewelry for sale, petitioner
approached him on May 2, 1991 at the same casino and offered to sell the
said pieces of jewelry on commission basis. Private complainant agreed, and
as a consequence, he turned over to petitioner the following items: an 18k
diamond ring for men; a woman's bracelet; one (1) men's necklace and
another men's bracelet, with an aggregate value of P98,000.00, as
evidenced by a receipt of even date. They both agreed that petitioner shall
remit the proceeds of the sale, and/or, if unsold, to return the same items,
within a period of 60 days. The period expired without petitioner remitting the
proceeds of the sale or returning the pieces of jewelry. When private
complainant was able to meet petitioner, the latter promised the former that
he will pay the value of the said items entrusted to him, but to no avail.
Thus, an Information was filed against petitioner for the crime of estafa,
which reads as follows:
That on or about the fifth (5th) day of July 1991, in the City of Olongapo,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, after having received from one Danilo Tangcoy, one (1)
men's diamond ring, 18k, worth P45,000.00; one (1) three-baht men's
bracelet, 22k, worth P25,000.00; one (1) two-baht ladies' bracelet, 22k,
worth P12,000.00, or in the total amount of Ninety-Eight Thousand Pesos
(P98,000.00), Philippine currency, under expressed obligation on the part of
said accused to remit the proceeds of the sale of the said items or to return
the same, if not sold, said accused, once in possession of the said items,
with intent to defraud, and with unfaithfulness and abuse of confidence, and
far from complying with his aforestated obligation, did then and there wilfully,
unlawfully and feloniously misappropriate, misapply and convert to his own
personal use and benefit the aforesaid jewelries (sic) or the proceeds of the
sale thereof, and despite repeated demands, the accused failed and refused
to return the said items or to remit the amount of Ninety- Eight Thousand
Pesos (P98,000.00), Philippine currency, to the damage and prejudice of
said Danilo Tangcoy in the aforementioned amount.

The prosecution, to prove the above-stated facts, presented the lone

testimony of Danilo Tangcoy. On the other hand, the defense presented the
lone testimony of petitioner, which can be summarized, as follows:
Petitioner and private complainant were collecting agents of Antonio
Balajadia, who is engaged in the financing business of extending loans to
Base employees. For every collection made, they earn a commission.
Petitioner denied having transacted any business with private complainant.
However, he admitted obtaining a loan from Balajadia sometime in 1989 for
which he was made to sign a blank receipt. He claimed that the same receipt
was then dated May 2, 1991 and used as evidence against him for the
supposed agreement to sell the subject pieces of jewelry, which he did not
even see.
After trial, the RTC found petitioner guilty beyond reasonable doubt of the
crime charged in the Information. The dispositive portion of the decision
states:
WHEREFORE, finding accused LITO CORPUZ GUILTY beyond reasonable
doubt of the felony of Estafa under Article 315, paragraph one (1),
subparagraph (b) of the Revised Penal Code;
there being no offsetting generic aggravating nor ordinary mitigating
circumstance/s to vary the penalty imposable;
accordingly, the accused is hereby sentenced to suffer the penalty of
deprivation of liberty consisting of an imprisonment under the Indeterminate
Sentence Law of FOUR (4) YEARS AND TWO (2) MONTHS of Prision
Correccional in its medium period AS MINIMUM, to FOURTEEN (14) YEARS
AND EIGHT (8) MONTHS of Reclusion Temporal in its minimum period AS
MAXIMUM; to indemnify private complainant Danilo Tangcoy the amount
of P98,000.00 as actual damages, and to pay the costs of suit.
SO ORDERED.
The case was elevated to the CA, however, the latter denied the appeal of
petitioner and affirmed the decision of the RTC, thus:

CONTRARY TO LAW.
On January 28, 1992, petitioner, with the assistance of his counsel, entered a
plea of not guilty. Thereafter, trial on the merits ensued.

WHEREFORE, the instant appeal is DENIED. The assailed Judgment dated

July 30, 2004 of the RTC of San Fernando City (P), Branch 46, is hereby
AFFIRMED with MODIFICATION on the imposable prison term, such that
accused-appellant shall suffer the indeterminate penalty of 4 years and 2
months of prision correccional, as minimum, to 8 years of prision mayor, as

maximum, plus 1 year for each additional P10,000.00, or a total of 7 years.

The rest of the decision stands.

3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND

APPLIED TO THIS CASE;

SO ORDERED.

4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST

THE STATE.

Petitioner, after the CA denied his motion for reconsideration, filed with this
Court the present petition stating the following grounds:
A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING THE
ADMISSION AND APPRECIATION BY THE LOWER COURT OF
PROSECUTION EVIDENCE, INCLUDING ITS EXHIBITS, WHICH ARE
MERE MACHINE COPIES, AS THIS VIOLATES THE BEST EVIDENCE
RULE;
B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE
LOWER COURT'S FINDING THAT THE CRIMINAL INFORMATION FOR
ESTAFA WAS NOT FATALLY DEFECTIVE ALTHOUGH THE SAME DID
NOT CHARGE THE OFFENSE UNDER ARTICLE 315 (1) (B) OF THE
REVISED PENAL CODE IN THAT 1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH
THE SUBJECT [PIECES OF] JEWELRY SHOULD BE RETURNED,
IF UNSOLD, OR THE MONEY TO BE REMITTED, IF SOLD;
2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED
IN THE INFORMATION AS OF 05 JULY 1991 WAS MATERIALLY
DIFFERENT FROM THE ONE TESTIFIED TO BY THE PRIVATE
COMPLAINANT WHICH WAS 02 MAY 1991;
C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE
LOWER COURT'S FINDING THAT DEMAND TO RETURN THE SUBJECT
[PIECES OF] JEWELRY, IF UNSOLD, OR REMIT THE PROCEEDS, IF
SOLD AN ELEMENT OF THE OFFENSE WAS PROVED;
D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE
LOWER COURT'S FINDING THAT THE PROSECUTION'S CASE WAS
PROVEN BEYOND REASONABLE DOUBT ALTHOUGH 1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2)
VERSIONS OF THE INCIDENT;
2. THE VERSION OF THE PETITIONER ACCUSED IS MORE
STRAIGHTFORWARD AND LOGICAL, CONSISTENT WITH
HUMAN EXPERIENCE;

In its Comment dated May 5, 2008, the Office of the Solicitor General (OSG)
stated the following counter-arguments:
The exhibits were properly admitted inasmuch as petitioner failed to object to
their admissibility.
The information was not defective inasmuch as it sufficiently established the
designation of the offense and the acts complained of.
The prosecution sufficiently established all the elements of the crime
charged.
This Court finds the present petition devoid of any merit.
The factual findings of the appellate court generally are conclusive, and carry
even more weight when said court affirms the findings of the trial court,
absent any showing that the findings are totally devoid of support in the
records, or that they are so glaringly erroneous as to constitute grave abuse
4
of discretion. Petitioner is of the opinion that the CA erred in affirming the
factual findings of the trial court. He now comes to this Court raising both
procedural and substantive issues.
According to petitioner, the CA erred in affirming the ruling of the trial court,
admitting in evidence a receipt dated May 2, 1991 marked as Exhibit "A" and
its submarkings, although the same was merely a photocopy, thus, violating
the best evidence rule. However, the records show that petitioner never
objected to the admissibility of the said evidence at the time it was identified,
marked and testified upon in court by private complainant. The CA also
correctly pointed out that petitioner also failed to raise an objection in his
Comment to the prosecution's formal offer of evidence and even admitted
having signed the said receipt. The established doctrine is that when a party
failed to interpose a timely objection to evidence at the time they were
5
offered in evidence, such objection shall be considered as waived.
Another procedural issue raised is, as claimed by petitioner, the formally
defective Information filed against him. He contends that the Information
does not contain the period when the pieces of jewelry were supposed to be
returned and that the date when the crime occurred was different from the
one testified to by private complainant. This argument is untenable. The CA

did not err in finding that the Information was substantially complete and in
reiterating that objections as to the matters of form and substance in the
Information cannot be made for the first time on appeal. It is true that the
gravamen of the crime of estafa under Article 315, paragraph 1,
subparagraph (b) of the RPC is the appropriation or conversion of money or
6
property received to the prejudice of the owner and that the time of
occurrence is not a material ingredient of the crime, hence, the exclusion of
the period and the wrong date of the occurrence of the crime, as reflected in
the Information, do not make the latter fatally defective. The CA ruled:
x x x An information is legally viable as long as it distinctly states the
statutory designation of the offense and the acts or omissions constitutive
thereof. Then Section 6, Rule 110 of the Rules of Court provides that a
complaint or information is sufficient if it states the name of the accused;
the designation of the offense by the statute; the acts or omissions
complained of as constituting the offense; the name of the offended party;
the approximate time of the commission of the offense, and the place
wherein the offense was committed. In the case at bar, a reading of the
subject Information shows compliance with the foregoing rule. That the time
of the commission of the offense was stated as " on or about the fifth (5th)
day of July, 1991" is not likewise fatal to the prosecution's cause considering
that Section 11 of the same Rule requires a statement of the precise time
only when the same is a material ingredient of the offense. The gravamen of
the crime of estafa under Article 315, paragraph 1 (b) of the Revised Penal
Code (RPC) is the appropriation or conversion of money or property received
to the prejudice of the offender. Thus, aside from the fact that the date of the
commission thereof is not an essential element of the crime herein charged,
the failure of the prosecution to specify the exact date does not render the
Information ipso facto defective. Moreover, the said date is also near the due
date within which accused-appellant should have delivered the proceeds or
returned the said [pieces of jewelry] as testified upon by Tangkoy, hence,
there was sufficient compliance with the rules. Accused-appellant, therefore,
cannot now be allowed to claim that he was not properly apprised of the
7
charges proferred against him.
It must be remembered that petitioner was convicted of the crime of Estafa
under Article 315, paragraph 1 (b) of the RPC, which reads:
ART. 315. Swindling (estafa). Any person who shall defraud another by any
of the means mentioned hereinbelow.
1. With unfaithfulness or abuse of confidence, namely:
xxxx

(b) By misappropriating or converting, to the prejudice of another, money,

goods, or any other personal property received by the offender in trust or on
commission, or for administration, or under any other obligation involving the
duty to make delivery of or to return the same, even though such obligation
be totally or partially guaranteed by a bond; or by denying having received
such money, goods, or other property; x x x
The elements of estafa with abuse of confidence are as follows: (a) that
money, goods or other personal property is received by the offender in trust,
or on commission, or for administration, or under any other obligation
involving the duty to make delivery of, or to return the same; (b) that there be
misappropriation or conversion of such money or property by the offender or
denial on his part of such receipt; (c) that such misappropriation or
conversion or denial is to the prejudice of another; and (d) that there is a
8
demand made by the offended party on the offender.
Petitioner argues that the last element, which is, that there is a demand by
the offended party on the offender, was not proved. This Court disagrees. In
his testimony, private complainant narrated how he was able to locate
petitioner after almost two (2) months from the time he gave the pieces of
jewelry and asked petitioner about the same items with the latter promising to
pay them. Thus:
PROS. MARTINEZ
q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction
could have been finished on 5 July 1991, the question is what happens (sic)
when the deadline came?
a I went looking for him, sir.
q For whom?
a Lito Corpuz, sir.
q Were you able to look (sic) for him?
a I looked for him for a week, sir.
q Did you know his residence?
a Yes, sir.
q Did you go there?

a Yes, sir.

written and oral demand. Thus, the failure of the prosecution to present a
written demand as evidence is not fatal.

q Did you find him?

In Tubb v. People, where the complainant merely verbally inquired about the
money entrusted to the accused, we held that the query was tantamount to a
demand, thus:

a No, sir.
q Were you able to talk to him since 5 July 1991?
a I talked to him, sir.
q How many times?
a Two times, sir.
q What did you talk (sic) to him?
a About the items I gave to (sic) him, sir.
q Referring to Exhibit A-2?
a Yes, sir, and according to him he will take his obligation and I asked him
where the items are and he promised me that he will pay these amount, sir.
q Up to this time that you were here, were you able to collect from him
partially or full?
a No, sir.

No specific type of proof is required to show that there was

10
11
demand. Demand need not even be formal; it may be verbal. The specific
word "demand" need not even be used to show that it has indeed been made
upon the person charged, since even a mere query as to the whereabouts of
12
the money [in this case, property], would be tantamount to a demand. As
13
expounded in Asejo v. People:
With regard to the necessity of demand, we agree with the CA that demand
under this kind of estafa need not be formal or written. The appellate court
observed that the law is silent with regard to the form of demand in estafa
under Art. 315 1(b), thus:
When the law does not qualify, We should not qualify. Should a written
demand be necessary, the law would have stated so. Otherwise, the word
"demand" should be interpreted in its general meaning as to include both

x x x [T]he law does not require a demand as a condition precedent to the

existence of the crime of embezzlement. It so happens only that failure to
account, upon demand for funds or property held in trust, is circumstantial
evidence of misappropriation. The same way, however, be established by
14
other proof, such as that introduced in the case at bar.
In view of the foregoing and based on the records, the prosecution was able
to prove the existence of all the elements of the crime. Private complainant
gave petitioner the pieces of jewelry in trust, or on commission basis, as
shown in the receipt dated May 2, 1991 with an obligation to sell or return the
same within sixty (60) days, if unsold. There was misappropriation when
petitioner failed to remit the proceeds of those pieces of jewelry sold, or if no
sale took place, failed to return the same pieces of jewelry within or after the
agreed period despite demand from the private complainant, to the prejudice
of the latter.
Anent the credibility of the prosecution's sole witness, which is questioned by
petitioner, the same is unmeritorious. Settled is the rule that in assessing the
credibility of witnesses, this Court gives great respect to the evaluation of the
trial court for it had the unique opportunity to observe the demeanor of
witnesses and their deportment on the witness stand, an opportunity denied
15
the appellate courts, which merely rely on the records of the case. The
assessment by the trial court is even conclusive and binding if not tainted
with arbitrariness or oversight of some fact or circumstance of weight and
16
influence, especially when such finding is affirmed by the CA. Truth is
established not by the number of witnesses, but by the quality of their
testimonies, for in determining the value and credibility of evidence, the
17
witnesses are to be weighed not numbered.
As regards the penalty, while this Court's Third Division was deliberating on
this case, the question of the continued validity of imposing on persons
convicted of crimes involving property came up. The legislature apparently
pegged these penalties to the value of the money and property in 1930 when
it enacted the Revised Penal Code. Since the members of the division
reached no unanimity on this question and since the issues are of first
impression, they decided to refer the case to the Court en banc for
consideration and resolution. Thus, several amici curiae were invited at the
behest of the Court to give their academic opinions on the matter. Among

those that graciously complied were Dean Jose Manuel Diokno, Dean
Sedfrey M. Candelaria, Professor Alfredo F. Tadiar, the Senate President,
and the Speaker of the House of Representatives. The parties were later
heard on oral arguments before the Court en banc, with Atty. Mario L.
Bautista appearing as counsel de oficio of the petitioner.
After a thorough consideration of the arguments presented on the matter, this
Court finds the following:
There seems to be a perceived injustice brought about by the range of
penalties that the courts continue to impose on crimes against property
committed today, based on the amount of damage measured by the value of
money eighty years ago in 1932. However, this Court cannot modify the said
range of penalties because that would constitute judicial legislation. What the
legislature's perceived failure in amending the penalties provided for in the
said crimes cannot be remedied through this Court's decisions, as that would
be encroaching upon the power of another branch of the government. This,
however, does not render the whole situation without any remedy. It can be
appropriately presumed that the framers of the Revised Penal Code (RPC)
had anticipated this matter by including Article 5, which reads:
ART. 5. Duty of the court in connection with acts which should be repressed
but which are not covered by the law, and in cases of excessive penalties. Whenever a court has knowledge of any act which it may deem proper to
repress and which is not punishable by law, it shall render the proper
decision, and shall report to the Chief Executive, through the Department of
Justice, the reasons which induce the court to believe that said act should be
made the subject of penal legislation.
In the same way, the court shall submit to the Chief Executive, through the
Department of Justice, such statement as may be deemed proper, without
suspending the execution of the sentence, when a strict enforcement of the
provisions of this Code would result in the imposition of a clearly excessive
penalty, taking into consideration the degree of malice and the injury caused
18
by the offense.
The first paragraph of the above provision clearly states that for acts bourne
out of a case which is not punishable by law and the court finds it proper to
repress, the remedy is to render the proper decision and thereafter, report to
the Chief Executive, through the Department of Justice, the reasons why the
same act should be the subject of penal legislation. The premise here is that
a deplorable act is present but is not the subject of any penal legislation,
thus, the court is tasked to inform the Chief Executive of the need to make
that act punishable by law through legislation. The second paragraph is
similar to the first except for the situation wherein the act is already

punishable by law but the corresponding penalty is deemed by the court as

excessive. The remedy therefore, as in the first paragraph is not to suspend
the execution of the sentence but to submit to the Chief Executive the
reasons why the court considers the said penalty to be non-commensurate
with the act committed. Again, the court is tasked to inform the Chief
Executive, this time, of the need for a legislation to provide the proper
penalty.
19

In his book, Commentaries on the Revised Penal Code, Guillermo B.

Guevara opined that in Article 5, the duty of the court is merely to report to
the Chief Executive, with a recommendation for an amendment or
modification of the legal provisions which it believes to be harsh. Thus:
This provision is based under the legal maxim "nullum crimen, nulla poena
sige lege," that is, that there can exist no punishable act except those
previously and specifically provided for by penal statute.
No matter how reprehensible an act is, if the law-making body does not
deem it necessary to prohibit its perpetration with penal sanction, the Court
of justice will be entirely powerless to punish such act.
Under the provisions of this article the Court cannot suspend the execution of
a sentence on the ground that the strict enforcement of the provisions of this
Code would cause excessive or harsh penalty. All that the Court could do in
such eventuality is to report the matter to the Chief Executive with a
recommendation for an amendment or modification of the legal provisions
20
which it believes to be harsh.
Anent the non-suspension of the execution of the sentence, retired Chief
Justice Ramon C. Aquino and retired Associate Justice Carolina C. Grio21
Aquino, in their book, The Revised Penal Code, echoed the above-cited
commentary, thus:
The second paragraph of Art. 5 is an application of the humanitarian principle
that justice must be tempered with mercy. Generally, the courts have nothing
to do with the wisdom or justness of the penalties fixed by law. "Whether or
not the penalties prescribed by law upon conviction of violations of particular
statutes are too severe or are not severe enough, are questions as to which
commentators on the law may fairly differ; but it is the duty of the courts to
enforce the will of the legislator in all cases unless it clearly appears that a
given penalty falls within the prohibited class of excessive fines or cruel and
unusual punishment." A petition for clemency should be addressed to the
22
Chief Executive.

There is an opinion that the penalties provided for in crimes against property
be based on the current inflation rate or at the ratio of P1.00 is equal
to P100.00 . However, it would be dangerous as this would result in
uncertainties, as opposed to the definite imposition of the penalties. It must
be remembered that the economy fluctuates and if the proposed imposition
of the penalties in crimes against property be adopted, the penalties will not
cease to change, thus, making the RPC, a self-amending law. Had the
framers of the RPC intended that to be so, it should have provided the same,
instead, it included the earlier cited Article 5 as a remedy. It is also improper
to presume why the present legislature has not made any moves to amend
the subject penalties in order to conform with the present times. For all we
know, the legislature intends to retain the same penalties in order to deter the
further commission of those punishable acts which have increased
tremendously through the years. In fact, in recent moves of the legislature, it
is apparent that it aims to broaden the coverage of those who violate penal
laws. In the crime of Plunder, from its original minimum amount
of P100,000,000.00 plundered, the legislature lowered it to P50,000,000.00.
In the same way, the legislature lowered the threshold amount upon which
the Anti-Money Laundering Act may apply, from P1,000,000.00
to P500,000.00.
It is also worth noting that in the crimes of Theft and Estafa, the present
penalties do not seem to be excessive compared to the proposed imposition
of their corresponding penalties. In Theft, the provisions state that:
Art. 309. Penalties. Any person guilty of theft shall be punished by:
1. The penalty of prision mayor in its minimum and medium periods,
if the value of the thing stolen is more than 12,000 pesos but does
not exceed 22,000 pesos, but if the value of the thing stolen exceeds
the latter amount the penalty shall be the maximum period of the one
prescribed in this paragraph, and one year for each additional ten
thousand pesos, but the total of the penalty which may be imposed
shall not exceed twenty years. In such cases, and in connection with
the accessory penalties which may be imposed and for the purpose
of the other provisions of this Code, the penalty shall be termed
prision mayor or reclusion temporal, as the case may be.
2. The penalty of prision correccional in its medium and maximum
periods, if the value of the thing stolen is more than 6,000 pesos but
does not exceed 12,000 pesos.
3. The penalty of prision correccional in its minimum and medium
periods, if the value of the property stolen is more than 200 pesos
but does not exceed 6,000 pesos.

4. Arresto mayor in its medium period to prision correccional in its

minimum period, if the value of the property stolen is over 50 pesos
but does not exceed 200 pesos.
5. Arresto mayor to its full extent, if such value is over 5 pesos but
does not exceed 50 pesos.
6. Arresto mayor in its minimum and medium periods, if such value
does not exceed 5 pesos.
7. Arresto menor or a fine not exceeding 200 pesos, if the theft is
committed under the circumstances enumerated in paragraph 3 of
the next preceding article and the value of the thing stolen does not
exceed 5 pesos. If such value exceeds said amount, the provision of
any of the five preceding subdivisions shall be made applicable.
8. Arresto menor in its minimum period or a fine not exceeding 50
pesos, when the value of the thing stolen is not over 5 pesos, and
the offender shall have acted under the impulse of hunger, poverty,
or the difficulty of earning a livelihood for the support of himself or his
family.
In a case wherein the value of the thing stolen is P6,000.00, the aboveprovision states that the penalty is prision correccional in its minimum and
medium periods (6 months and 1 day to 4 years and 2 months). Applying the
proposal, if the value of the thing stolen is P6,000.00, the penalty is
imprisonment of arresto mayor in its medium period to prision correccional
minimum period (2 months and 1 day to 2 years and 4 months). It would
seem that under the present law, the penalty imposed is almost the same as
the penalty proposed. In fact, after the application of the Indeterminate
Sentence Law under the existing law, the minimum penalty is still lowered by
one degree; hence, the minimum penalty is arresto mayor in its medium
period to maximum period (2 months and 1 day to 6 months), making the
offender qualified for pardon or parole after serving the said minimum period
and may even apply for probation. Moreover, under the proposal, the
minimum penalty after applying the Indeterminate Sentence Law is arresto
menor in its maximum period to arresto mayor in its minimum period (21
days to 2 months) is not too far from the minimum period under the existing
law. Thus, it would seem that the present penalty imposed under the law is
23
not at all excessive. The same is also true in the crime of Estafa.
Moreover, if we apply the ratio of 1:100, as suggested to the value of the
thing stolen in the crime of Theft and the damage caused in the crime of
Estafa, the gap between the minimum and the maximum amounts, which is
the basis of determining the proper penalty to be imposed, would be too wide

and the penalty imposable would no longer be commensurate to the act

committed and the value of the thing stolen or the damage caused:
I. Article 309, or the penalties for the crime of Theft, the value would be
modified but the penalties are not changed:
1. P12,000.00 to P22,000.00 will become P1,200,000.00
to P2,200,000.00, punished by prision mayor minimum to prision
mayor medium (6 years and 1 day to 10 years).
2. P6,000.00 to P12,000.00 will become P600,000.00
to P1,200,000.00, punished by prision correccional medium and to
prision correccional maximum (2 years, 4 months and 1 day to 6
24
years).
3. P200.00 to P6,000.00 will become P20,000.00 to P600,000.00,
punishable by prision correccional minimum to prision correccional
medium (6 months and 1 day to 4 years and 2 months).

3rd. P200.00 to P6,000.00 will become P20,000.00 to P600,000.00,

punishable by arresto mayor maximum to prision correccional
minimum (4 months and 1 day to 2 years and 4 months).
4th. P200.00 will become P20,000.00, punishable by arresto mayor
maximum (4 months and 1 day to 6 months).
An argument raised by Dean Jose Manuel I. Diokno, one of our esteemed
amici curiae, is that the incremental penalty provided under Article 315 of the
RPC violates the Equal Protection Clause.
The equal protection clause requires equality among equals, which is
determined according to a valid classification. The test developed by
27
jurisprudence here and yonder is that of reasonableness, which has four
requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;

4. P50.00 to P200.00 will become P5,000.00 to P20,000.00,

punishable by arresto mayor medium to prision correccional
minimum (2 months and 1 day to 2 years and 4 months).
5. P5.00 to P50.00 will become P500.00 to P5,000.00, punishable by
arresto mayor (1 month and 1 day to 6 months).
6. P5.00 will become P500.00, punishable by arresto mayor
minimum to arresto mayor medium.
x x x x.
II. Article 315, or the penalties for the crime of Estafa, the value would also
be modified but the penalties are not changed, as follows:
1st. P12,000.00 to P22,000.00, will become P1,200,000.00
to P2,200,000.00, punishable by prision correccional maximum to
25
prision mayor minimum (4 years, 2 months and 1 day to 8 years).
2nd. P6,000.00 to P12,000.00 will become P600,000.00
to P1,200,000.00, punishable by prision correccional minimum to
prision correccional medium (6 months and 1 day to 4 years and 2
26
months).

(3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class.

28

According to Dean Diokno, the Incremental Penalty Rule (IPR) does not rest
on substantial distinctions asP10,000.00 may have been substantial in the
past, but it is not so today, which violates the first requisite; the IPR was
devised so that those who commit estafa involving higher amounts would
receive heavier penalties; however, this is no longer achieved, because a
person who steals P142,000.00 would receive the same penalty as someone
who steals hundreds of millions, which violates the second requisite; and, the
IPR violates requisite no. 3, considering that the IPR is limited to existing
conditions at the time the law was promulgated, conditions that no longer
exist today.
Assuming that the Court submits to the argument of Dean Diokno and
declares the incremental penalty in Article 315 unconstitutional for violating
the equal protection clause, what then is the penalty that should be applied in
case the amount of the thing subject matter of the crime
exceeds P22,000.00? It seems that the proposition poses more questions
than answers, which leads us even more to conclude that the appropriate
remedy is to refer these matters to Congress for them to exercise their
inherent power to legislate laws.

Even Dean Diokno was of the opinion that if the Court declares the IPR
unconstitutional, the remedy is to go to Congress. Thus:
xxxx

Yes, Your Honor, that is, if the court will take the route of statutory
interpretation.
JUSTICE PERALTA:

JUSTICE PERALTA:

Ah ...

Now, your position is to declare that the incremental penalty should be struck
down as unconstitutional because it is absurd.

DEAN DIOKNO:
If the Court will say that they can go beyond the literal wording of the law...

DEAN DIOKNO:
JUSTICE PERALTA:
Absurd, it violates equal protection, Your Honor, and cruel and unusual
punishment.

But if we de ... (interrupted)

JUSTICE PERALTA:

DEAN DIOKNO:

Then what will be the penalty that we are going to impose if the amount is
more than Twenty-Two Thousand (P22,000.00) Pesos.

....then....

DEAN DIOKNO:
Well, that would be for Congress to ... if this Court will declare the
incremental penalty rule unconstitutional, then that would ... the void should
be filled by Congress.
JUSTICE PERALTA:

JUSTICE PERALTA:
Ah, yeah. But if we declare the incremental penalty as unsconstitutional, the
court cannot fix the amount ...
DEAN DIOKNO:
No, Your Honor.

But in your presentation, you were fixing the amount at One Hundred
Thousand (P100,000.00) Pesos ...

JUSTICE PERALTA:

DEAN DIOKNO:

... as the equivalent of one, as an incremental penalty in excess of TwentyTwo Thousand (P22,000.00) Pesos.

Well, my presen ... (interrupted)

DEAN DIOKNO:

JUSTICE PERALTA:
For every One Hundred Thousand (P100,000.00) Pesos in excess of
Twenty-Two Thousand (P22,000.00) Pesos you were suggesting an
additional penalty of one (1) year, did I get you right?
DEAN DIOKNO:

No, Your Honor.

JUSTICE PERALTA:
The Court cannot do that.
DEAN DIOKNO:

the application of a similar Constitutional provision prohibiting cruel and

unusual punishment, to the duration of the penalty, and not just its form. The
court therein ruled that three things must be done to decide whether a
sentence is proportional to a specific crime, viz.; (1) Compare the nature and
gravity of the offense, and the harshness of the penalty; (2) Compare the
sentences imposed on other criminals in the same jurisdiction, i.e., whether
more serious crimes are subject to the same penalty or to less serious
penalties; and (3) Compare the sentences imposed for commission of the
same crime in other jurisdictions.

Could not be.

JUSTICE PERALTA:
The only remedy is to go to Congress...
DEAN DIOKNO:
Yes, Your Honor.
JUSTICE PERALTA:
... and determine the value or the amount.
DEAN DIOKNO:
Yes, Your Honor.
JUSTICE PERALTA:
That will be equivalent to the incremental penalty of one (1) year in excess of
Twenty-Two Thousand (P22,000.00) Pesos.
DEAN DIOKNO:
Yes, Your Honor.
JUSTICE PERALTA:
The amount in excess of Twenty-Two Thousand (P22,000.00) Pesos.
Thank you, Dean.
DEAN DIOKNO:
Thank you.
xxxx

29

Dean Diokno also contends that Article 315 of the Revised Penal Code
30
constitutes cruel and unusual punishment. Citing Solem v. Helm, Dean
Diokno avers that the United States Federal Supreme Court has expanded

However, the case of Solem v. Helm cannot be applied in the present case,
because in Solem what respondent therein deemed cruel was the penalty
imposed by the state court of South Dakota after it took into account the
latters recidivist statute and not the original penalty for uttering a "no
account" check. Normally, the maximum punishment for the crime would
have been five years imprisonment and a $5,000.00 fine. Nonetheless,
respondent was sentenced to life imprisonment without the possibility of
parole under South Dakotas recidivist statute because of his six prior felony
convictions. Surely, the factual antecedents of Solem are different from the
present controversy.
With respect to the crime of Qualified Theft, however, it is true that the
imposable penalty for the offense is high. Nevertheless, the rationale for the
imposition of a higher penalty against a domestic servant is the fact that in
the commission of the crime, the helper will essentially gravely abuse the
trust and confidence reposed upon her by her employer. After accepting and
allowing the helper to be a member of the household, thus entrusting upon
such person the protection and safekeeping of the employers loved ones
and properties, a subsequent betrayal of that trust is so repulsive as to
warrant the necessity of imposing a higher penalty to deter the commission
of such wrongful acts.
There are other crimes where the penalty of fine and/or imprisonment are
dependent on the subject matter of the crime and which, by adopting the
proposal, may create serious implications. For example, in the crime of
Malversation, the penalty imposed depends on the amount of the money
malversed by the public official, thus:
Art. 217. Malversation of public funds or property; Presumption of
malversation. Any public officer who, by reason of the duties of his office,
is accountable for public funds or property, shall appropriate the same or
shall take or misappropriate or shall consent, through abandonment or
negligence, shall permit any other person to take such public funds, or
property, wholly or partially, or shall otherwise be guilty of the
misappropriation or malversation of such funds or property, shall suffer:

1. The penalty of prision correccional in its medium and maximum

periods, if the amount involved in the misappropriation or
malversation does not exceed two hundred pesos.
2. The penalty of prision mayor in its minimum and medium periods,
if the amount involved is more than two hundred pesos but does not
exceed six thousand pesos.
3. The penalty of prision mayor in its maximum period to reclusion
temporal in its minimum period, if the amount involved is more than
six thousand pesos but is less than twelve thousand pesos.
4. The penalty of reclusion temporal, in its medium and maximum
periods, if the amount involved is more than twelve thousand pesos
but is less than twenty-two thousand pesos. If the amount exceeds
the latter, the penalty shall be reclusion temporal in its maximum
period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty of
perpetual special disqualification and a fine equal to the amount of the funds
malversed or equal to the total value of the property embezzled.
The failure of a public officer to have duly forthcoming any public funds or
property with which he is chargeable, upon demand by any duly authorized
officer, shall be prima facie evidence that he has put such missing funds or
property to personal use.
The above-provisions contemplate a situation wherein the Government loses
money due to the unlawful acts of the offender. Thus, following the proposal,
if the amount malversed is P200.00 (under the existing law), the amount now
becomes P20,000.00 and the penalty is prision correccional in its medium
and maximum periods (2 years 4 months and 1 day to 6 years). The penalty
may not be commensurate to the act of embezzlement ofP20,000.00
compared to the acts committed by public officials punishable by a special
law, i.e., Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act,
31
specifically Section 3, wherein the injury caused to the government is not
generally defined by any monetary amount, the penalty (6 years and 1 month
32
to 15 years) under the Anti-Graft Law will now become higher. This should
not be the case, because in the crime of malversation, the public official
takes advantage of his public position to embezzle the fund or property of the
government entrusted to him.
The said inequity is also apparent in the crime of Robbery with force upon
things (inhabited or uninhabited) where the value of the thing unlawfully
taken and the act of unlawful entry are the bases of the penalty imposable,

and also, in Malicious Mischief, where the penalty of imprisonment or fine is

dependent on the cost of the damage caused.
In Robbery with force upon things (inhabited or uninhabited), if we increase
the value of the thing unlawfully taken, as proposed in the ponencia, the sole
basis of the penalty will now be the value of the thing unlawfully taken and no
longer the element of force employed in entering the premises. It may
likewise cause an inequity between the crime of Qualified Trespass to
Dwelling under Article 280, and this kind of robbery because the former is
punishable by prision correccional in its medium and maximum periods (2
years, 4 months and 1 day to 6 years) and a fine not exceeding P1,000.00
(P100,000.00 now if the ratio is 1:100) where entrance to the premises is
with violence or intimidation, which is the main justification of the penalty.
Whereas in the crime of Robbery with force upon things, it is punished with a
penalty of prision mayor (6 years and 1 day to 12 years) if the intruder is
unarmed without the penalty of Fine despite the fact that it is not merely the
illegal entry that is the basis of the penalty but likewise the unlawful taking.
Furthermore, in the crime of Other Mischiefs under Article 329, the highest
penalty that can be imposed is arresto mayor in its medium and maximum
periods (2 months and 1 day to 6 months) if the value of the damage caused
exceeds P1,000.00, but under the proposal, the value of the damage will now
become P100,000.00 (1:100), and still punishable by arresto mayor (1 month
and 1 day to 6 months). And, if the value of the damaged property does not
exceed P200.00, the penalty is arresto menor or a fine of not less than the
value of the damage caused and not more than P200.00, if the amount
involved does not exceed P200.00 or cannot be estimated. Under the
proposal, P200.00 will now become P20,000.00, which simply means that
the fine of P200.00 under the existing law will now become P20,000.00. The
amount of Fine under this situation will now become excessive and afflictive
in nature despite the fact that the offense is categorized as a light felony
33
penalized with a light penalty under Article 26 of the RPC. Unless we also
amend Article 26 of the RPC, there will be grave implications on the penalty
of Fine, but changing the same through Court decision, either expressly or
impliedly, may not be legally and constitutionally feasible.
There are other crimes against property and swindling in the RPC that may
also be affected by the proposal, such as those that impose imprisonment
and/or Fine as a penalty based on the value of the damage caused, to wit:
Article 311 (Theft of the property of the National Library and National
Museum), Article 312 (Occupation of real property or usurpation of real rights
in property), Article 313 (Altering boundaries or landmarks), Article 316
(Other forms of swindling), Article 317 (Swindling a minor), Article 318 (Other
deceits), Article 328 (Special cases of malicious mischief) and Article 331
(Destroying or damaging statues, public monuments or paintings). Other
crimes that impose Fine as a penalty will also be affected, such as: Article

213 (Frauds against the public treasury and similar offenses), Article 215
(Prohibited Transactions),
Article 216 (Possession of prohibited interest by a public officer), Article 218
(Failure of accountable officer to render accounts), Article 219 (Failure of a
responsible public officer to render accounts before leaving the country).
In addition, the proposal will not only affect crimes under the RPC. It will also
affect crimes which are punishable by special penal laws, such as Illegal
Logging or Violation of Section 68 of Presidential Decree No. 705, as
34
amended. The law treats cutting, gathering, collecting and possessing
timber or other forest products without license as an offense as grave as and
35
equivalent to the felony of qualified theft. Under the law, the offender shall
36
be punished with the penalties imposed under Articles 309 and 310 of the
Revised Penal Code, which means that the penalty imposable for the offense
is, again, based on the value of the timber or forest products involved in the
offense. Now, if we accept the said proposal in the crime of Theft, will this
particular crime of Illegal Logging be amended also in so far as the penalty is
concerned because the penalty is dependent on Articles 309 and 310 of the
RPC? The answer is in the negative because the soundness of this particular
law is not in question.
With the numerous crimes defined and penalized under the Revised Penal
Code and Special Laws, and other related provisions of these laws affected
by the proposal, a thorough study is needed to determine its effectivity and
necessity. There may be some provisions of the law that should be
amended; nevertheless, this Court is in no position to conclude as to the
intentions of the framers of the Revised Penal Code by merely making a
study of the applicability of the penalties imposable in the present times.
Such is not within the competence of the Court but of the Legislature which is
empowered to conduct public hearings on the matter, consult legal
luminaries and who, after due proceedings, can decide whether or not to
amend or to revise the questioned law or other laws, or even create a new
legislation which will adopt to the times.
Admittedly, Congress is aware that there is an urgent need to amend the
Revised Penal Code. During the oral arguments, counsel for the Senate
informed the Court that at present, fifty-six (56) bills are now pending in the
37
Senate seeking to amend the Revised Penal Code, each one proposing
much needed change and updates to archaic laws that were promulgated
decades ago when the political, socio-economic, and cultural settings were
far different from todays conditions.
Verily, the primordial duty of the Court is merely to apply the law in such a
way that it shall not usurp legislative powers by judicial legislation and that in

the course of such application or construction, it should not make or

supervise legislation, or under the guise of interpretation, modify, revise,
amend, distort, remodel, or rewrite the law, or give the law a construction
38
which is repugnant to its terms. The Court should apply the law in a manner
that would give effect to their letter and spirit, especially when the law is clear
as to its intent and purpose. Succinctly put, the Court should shy away from
encroaching upon the primary function of a co-equal branch of the
Government; otherwise, this would lead to an inexcusable breach of the
doctrine of separation of powers by means of judicial legislation.
Moreover, it is to be noted that civil indemnity is, technically, not a penalty or
a Fine; hence, it can be increased by the Court when appropriate. Article
2206 of the Civil Code provides:
Art. 2206. The amount of damages for death caused by a crime or quasidelict shall be at least three thousand pesos, even though there may have
been mitigating circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning capacity
of the deceased, and the indemnity shall be paid to the heirs of the
latter; such indemnity shall in every case be assessed and awarded
by the court, unless the deceased on account of permanent physical
disability not caused by the defendant, had no earning capacity at
the time of his death;
(2) If the deceased was obliged to give support according to the
provisions of Article 291, the recipient who is not an heir called to the
decedent's inheritance by the law of testate or intestate succession,
may demand support from the person causing the death, for a period
not exceeding five years, the exact duration to be fixed by the court;
(3) The spouse, legitimate and illegitimate descendants and
ascendants of the deceased may demand moral damages for mental
anguish by reason of the death of the deceased.
In our jurisdiction, civil indemnity is awarded to the offended party as a kind
of monetary restitution or compensation to the victim for the damage or
infraction that was done to the latter by the accused, which in a sense only
covers the civil aspect. Precisely, it is civil indemnity. Thus, in a crime where
a person dies, in addition to the penalty of imprisonment imposed to the
offender, the accused is also ordered to pay the victim a sum of money as
restitution. Clearly, this award of civil indemnity due to the death of the victim
could not be contemplated as akin to the value of a thing that is unlawfully
taken which is the basis in the imposition of the proper penalty in certain
crimes. Thus, the reasoning in increasing the value of civil indemnity

awarded in some offense cannot be the same reasoning that would sustain
the adoption of the suggested ratio. Also, it is apparent from Article 2206 that
the law only imposes a minimum amount for awards of civil indemnity, which
is P3,000.00. The law did not provide for a ceiling. Thus, although the
minimum amount for the award cannot be changed, increasing the amount
awarded as civil indemnity can be validly modified and increased when the
present circumstance warrants it. Corollarily, moral damages under Article
39
2220 of the Civil Code also does not fix the amount of damages that can be
awarded. It is discretionary upon the court, depending on the mental anguish
or the suffering of the private offended party. The amount of moral damages
can, in relation to civil indemnity, be adjusted so long as it does not exceed
the award of civil indemnity.
In addition, some may view the penalty provided by law for the offense
committed as tantamount to cruel punishment. However, all penalties are
generally harsh, being punitive in nature. Whether or not they are excessive
or amount to cruel punishment is a matter that should be left to lawmakers. It
is the prerogative of the courts to apply the law, especially when they are
clear and not subject to any other interpretation than that which is plainly
written.
Similar to the argument of Dean Diokno, one of Justice Antonio Carpios
opinions is that the incremental penalty provision should be declared
unconstitutional and that the courts should only impose the penalty
corresponding to the amount of P22,000.00, regardless if the actual amount
involved exceeds P22,000.00. As suggested, however, from now until the
law is properly amended by Congress, all crimes of Estafa will no longer be
punished by the appropriate penalty. A conundrum in the regular course of
criminal justice would occur when every accused convicted of the crime of
estafa will be meted penalties different from the proper penalty that should be
imposed. Such drastic twist in the application of the law has no legal basis
and directly runs counter to what the law provides.
It should be noted that the death penalty was reintroduced in the
dispensation of criminal justice by the Ramos Administration by virtue of
40
Republic Act No. 7659 in December 1993. The said law has been
questioned before this Court. There is, arguably, no punishment more cruel
than that of death. Yet still, from the time the death penalty was re-imposed
41
until its lifting in June 2006 by Republic Act No. 9346, the Court did not
impede the imposition of the death penalty on the ground that it is a "cruel
42
punishment" within the purview of Section 19 (1), Article III of the
Constitution. Ultimately, it was through an act of Congress suspending the
imposition of the death penalty that led to its non-imposition and not via the
intervention of the Court.

Even if the imposable penalty amounts to cruel punishment, the Court cannot
declare the provision of the law from which the proper penalty emanates
unconstitutional in the present action. Not only is it violative of due process,
considering that the State and the concerned parties were not given the
opportunity to comment on the subject matter, it is settled that the
constitutionality of a statute cannot be attacked collaterally because
43
constitutionality issues must be pleaded directly and not collaterally, more
so in the present controversy wherein the issues never touched upon the
constitutionality of any of the provisions of the Revised Penal Code.
Besides, it has long been held that the prohibition of cruel and unusual
punishments is generally aimed at the form or character of the punishment
rather than its severity in respect of duration or amount, and applies to
punishments which public sentiment has regarded as cruel or obsolete, for
instance, those inflicted at the whipping post, or in the pillory, burning at the
stake, breaking on the wheel, disemboweling, and the like. Fine and
44
imprisonment would not thus be within the prohibition.
It takes more than merely being harsh, excessive, out of proportion, or
severe for a penalty to be obnoxious to the Constitution. The fact that the
punishment authorized by the statute is severe does not make it cruel and
unusual. Expressed in other terms, it has been held that to come under the
ban, the punishment must be "flagrantly and plainly oppressive," "wholly
disproportionate to the nature of the offense as to shock the moral sense of
45
the community."
Cruel as it may be, as discussed above, it is for the Congress to amend the
law and adapt it to our modern time.
The solution to the present controversy could not be solved by merely
adjusting the questioned monetary values to the present value of money
based only on the current inflation rate. There are other factors and variables
that need to be taken into consideration, researched, and deliberated upon
before the said values could be accurately and properly adjusted. The effects
on the society, the injured party, the accused, its socio-economic impact, and
the likes must be painstakingly evaluated and weighed upon in order to arrive
at a wholistic change that all of us believe should be made to our existing
law. Dejectedly, the Court is ill-equipped, has no resources, and lacks
sufficient personnel to conduct public hearings and sponsor studies and
surveys to validly effect these changes in our Revised Penal Code. This
function clearly and appropriately belongs to Congress. Even Professor
Tadiar concedes to this conclusion, to wit:
xxxx

JUSTICE PERALTA:

JUSTICE PERALTA:

Yeah, Just one question. You are suggesting that in order to determine the
value of Peso you have to take into consideration several factors.

Yeah, but ...

PROFESSOR TADIAR:

PROFESSOR TADIAR:
Yes.

And I dont think it is within the power of the Supreme Court to pass upon
and peg the value to One Hundred (P100.00) Pesos to ...

JUSTICE PERALTA:

JUSTICE PERALTA:

Per capita income.

Yeah.

PROFESSOR TADIAR:

PROFESSOR TADIAR:

Per capita income.

... One (P1.00.00) Peso in 1930.

JUSTICE PERALTA:

JUSTICE PERALTA:

Consumer price index.

That is legislative in nature.

PROFESSOR TADIAR:

PROFESSOR TADIAR:

Yeah.

That is my position that the Supreme Court ...

JUSTICE PERALTA:

JUSTICE PERALTA:

Inflation ...

Yeah, okay.

PROFESSOR TADIAR:

PROFESSOR TADIAR:

Yes.

... has no power to utilize the power of judicial review to in order to adjust, to
make the adjustment that is a power that belongs to the legislature.

JUSTICE PERALTA:
JUSTICE PERALTA:
... and so on. Is the Supreme Court equipped to determine those factors?
Thank you, Professor.
PROFESSOR TADIAR:
PROFESSOR TADIAR:
There are many ways by which the value of the Philippine Peso can be
determined utilizing all of those economic terms.

Thank you.

46

Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno

echoes the view that the role of the Court is not merely to dispense justice,
but also the active duty to prevent injustice. Thus, in order to prevent injustice
in the present controversy, the Court should not impose an obsolete penalty
pegged eighty three years ago, but consider the proposed ratio of 1:100 as
simply compensating for inflation. Furthermore, the Court has in the past
taken into consideration "changed conditions" or "significant changes in
circumstances" in its decisions.
Similarly, the Chief Justice is of the view that the Court is not delving into the
validity of the substance of a statute. The issue is no different from the
Courts adjustment of indemnity in crimes against persons, which the Court
had previously adjusted in light of current times, like in the case of People v.
47
Pantoja. Besides, Article 10 of the Civil Code mandates a presumption that
the lawmaking body intended right and justice to prevail.
With due respect to the opinions and proposals advanced by the Chief
Justice and my Colleagues, all the proposals ultimately lead to prohibited
judicial legislation. Short of being repetitious and as extensively discussed
above, it is truly beyond the powers of the Court to legislate laws, such
immense power belongs to Congress and the Court should refrain from
crossing this clear-cut divide. With regard to civil indemnity, as elucidated
before, this refers to civil liability which is awarded to the offended party as a
kind of monetary restitution. It is truly based on the value of money. The
same cannot be said on penalties because, as earlier stated, penalties are
not only based on the value of money, but on several other factors. Further,
since the law is silent as to the maximum amount that can be awarded and
only pegged the minimum sum, increasing the amount granted as civil
indemnity is not proscribed. Thus, it can be adjusted in light of current
conditions.
Now, with regard to the penalty imposed in the present case, the CA
modified the ruling of the RTC. The RTC imposed the indeterminate penalty
of four (4) years and two (2) months of prision correccional in its medium
period, as minimum, to fourteen (14) years and eight (8) months of reclusion
temporal in its minimum period, as maximum. However, the CA imposed the
indeterminate penalty of four (4) years and two (2) months of prision
correccional, as minimum, to eight (8) years of prision mayor, as maximum,
plus one (1) year for each additionalP10,000.00, or a total of seven (7) years.
In computing the penalty for this type of estafa, this Court's ruling in Cosme,
48
Jr. v. People is highly instructive, thus:
With respect to the imposable penalty, Article 315 of the Revised Penal Code
provides:

ART. 315 Swindling (estafa). - Any person who shall defraud another by any
of the means mentioned hereinbelow shall be punished by:
1st. The penalty of prision correccional in its maximum period to prision
mayor in its minimum period, if the amount of the fraud is over 12,000 but
does not exceed 22,000 pesos, and if such amount exceeds the latter sum,
the penalty provided in this paragraph shall be imposed in its maximum
period, adding one year for each additional 10,000 pesos; but the total
penalty which may be imposed shall not exceed twenty years. In such case,
and in connection with the accessory penalties which may be imposed and
for the purpose of the other provisions of this Code, the penalty shall be
termed prision mayor or reclusion temporal, as the case may be.
The penalty prescribed by Article 315 is composed of only two, not three,
periods, in which case, Article 65 of the same Code requires the division of
the time included in the penalty into three equal portions of time included in
the penalty prescribed, forming one period of each of the three portions.
Applying the latter provisions, the maximum, medium and minimum periods
of the penalty prescribed are:
Maximum - 6 years, 8 months, 21 days to 8 years
Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days
Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days

49

To compute the maximum period of the prescribed penalty, prisin

correccional maximum to prisin mayor minimum should be divided into
three equal portions of time each of which portion shall be deemed to form
50
51
one period in accordance with Article 65 of the RPC. In the present case,
the amount involved is P98,000.00, which exceeds P22,000.00, thus, the
maximum penalty imposable should be within the maximum period of 6
years, 8 months and 21 days to 8 years of prision mayor. Article 315 also
states that a period of one year shall be added to the penalty for every
additional P10,000.00 defrauded in excess of P22,000.00, but in no case
shall the total penalty which may be imposed exceed 20 years.
Considering that the amount of P98,000.00 is P76,000.00 more than
the P22,000.00 ceiling set by law, then, adding one year for each
additional P10,000.00, the maximum period of 6 years, 8 months and 21
days to 8 years of prision mayor minimum would be increased by 7 years.
Taking the maximum of the prescribed penalty, which is 8 years, plus an
additional 7 years, the maximum of the indeterminate penalty is 15 years.

Applying the Indeterminate Sentence Law, since the penalty prescribed by

law for the estafa charge against petitioner is prision correccional maximum
to prision mayor minimum, the penalty next lower would then be prision
correccional in its minimum and medium periods.
Thus, the minimum term of the indeterminate sentence should be anywhere
from 6 months and 1 day to 4 years and 2 months.
One final note, the Court should give Congress a chance to perform its
primordial duty of lawmaking. The Court should not pre-empt Congress and
usurp its inherent powers of making and enacting laws. While it may be the
most expeditious approach, a short cut by judicial fiat is a dangerous
proposition, lest the Court dare trespass on prohibited judicial legislation.
WHEREFORE, the Petition for Review on Certiorari dated November 5, 2007
of petitioner Lito Corpuz is hereby DENIED. Consequently, the Decision
dated March 22, 2007 and Resolution dated September 5, 2007 of the Court
of Appeals, which affirmed with modification the Decision dated July 30, 2004
of the Regional Trial Court, Branch 46, San Fernando City, finding petitioner
guilty beyond reasonable doubt of the crime of Estafa under Article 315,
paragraph (1), sub-paragraph (b) of the Revised Penal Code, are hereby
AFFIRMED with MODIFICATION that the penalty imposed is the
indeterminate penalty of imprisonment ranging from THREE (3) YEARS,
TWO (2) MONTHS and ELEVEN DAYS of prision correccional, as minimum,
to FIFTEEN (15) YEARS of reclusion temporal as maximum.
Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision
be furnished the President of the Republic of the Philippines, through the
Department of Justice.
Also, let a copy of this Decision be furnished the President of the Senate and
the Speaker of the House of Representatives.
SO ORDERED.

17. People vs. Ferrer

Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. Nos. L-32613-14 December 27, 1972

PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. SIMEON. FERRER (in his capacity as Judge of the Court of First
Instance of Tarlac, Branch I), FELICIANO CO alias LEONCIO CO alias
"Bob," and NILO S. TAYAG alias Romy Reyes alias "Taba,"respondents.
Solicitor R. Mutuc for respondent Feliciano Co.
Jose W. Diokno for respondent Nilo Tayag.

CASTRO, J.:p
I. Statement of the Case
Posed in issue in these two cases is the constitutionality of the AntiSubversion
1
Act, which outlaws the Communist Party of the Philippines and other
"subversive associations," and punishes any person who "knowingly, willfully
and by overt acts affiliates himself with, becomes or remains a member" of
the Party or of any other similar "subversive" organization.
On March 5, 1970 a criminal complaint for violation of section 4 of the AntiSubversion Act was filed against the respondent Feliciano Co in the Court of
First Instance of Tarlac. On March 10 Judge Jose C. de Guzman conducted
a preliminary investigation and, finding a prima facie case against Co,
directed the Government prosecutors to file the corresponding information.
The twice-amended information, docketed as Criminal Case No. 27, recites:
That on or about May 1969 to December 5, 1969, in the
Municipality of Capas, Province of Tarlac, Philippines, and
within the jurisdiction of this Honorable Court, the
abovenamed accused, feloniously became an officer and/or
ranking leader of the Communist Party of the Philippines, an
outlawed and illegal organization aimed to overthrow the
Government of the Philippines by means of force, violence,
deceit, subversion, or any other illegal means for the
purpose of establishing in the Philippines a totalitarian
regime and placing the government under the control and

domination of an alien power, by being an instructor in the

Mao Tse Tung University, the training school of recruits of
the New People's Army, the military arm of the said
Communist Party of the Philippines.
That in the commission of the above offense, the following
aggravating circumstances are present, to wit:
(a) That the crime has been committed in contempt of or with
insult to public authorities;
(b) That the crime was committed by a band; and afford
impunity.
(c) With the aid of armed men or persons who insure or
afford impunity.
Co moved to quash on the ground that the Anti-Subversion Act is a bill of
attainder.
Meanwhile, on May 25, 1970, another criminal complaint was filed with the
same court, sharing the respondent Nilo Tayag and five others with
subversion. After preliminary investigation was had, an information was filed,
which, as amended, reads:
The undersigned provincial Fiscal of Tarlac and State
Prosecutors duly designated by the Secretary of Justice to
collaborate with the Provincial Fiscal of Tarlac, pursuant to
the Order dated June 5, above entitled case, hereby accuse
Nilo S. Tayag, alias Romy Reyes alias TABA, ARTHUR
GARCIA, RENATO (REY) CASIPE, ABELARDO GARCIA,
MANUEL ALAVADO, BENJAMIN BIE alias COMMANDER
MELODY and several JOHN DOES, whose identities are still
unknown, for violation of REPUBLIC ACT No. 1700,
otherwise known as the Anti-Subversion Law, committed as
follows:
That in or about March 1969 and for sometime prior thereto
and thereafter, in the Province of Tarlac, within the
jurisdiction of this Honorable Court, and elsewhere in the
Philippines, the above-named accused knowingly, willfully
and by overt acts organized, joined and/or remained as
offices and/or ranking leaders, of the KABATAANG
MAKABAYAN, a subversive organization as defined in
Republic Act No. 1700; that BENJAMIN BIE and

COMMANDER MELODY, in addition thereto, knowingly,

willfully and by over acts joined and/or remained as a
member and became an officer and/or ranking leader not
only of the Communist Party of the Philippines but also of
the New People's Army, the military arm of the Communist
Party of the Philippines; and that all the above-named
accused, as such officers and/or ranking leaders of the
aforestated subversive organizations, conspiring,
confederating and mutually helping one another, did then
and there knowingly, willfully and feloniously commit
subversive and/or seditious acts, by inciting, instigating and
stirring the people to unite and rise publicly and tumultuously
and take up arms against the government, and/or engage in
rebellious conspiracies and riots to overthrow the
government of the Republic of the Philippines by force,
violence, deceit, subversion and/or other illegal means
among which are the following:
1. On several occasions within the province of Tarlac, the
accused conducted meetings and/or seminars wherein the
said accused delivered speeches instigating and inciting the
people to unite, rise in arms and overthrow the Government
of the Republic of the Philippines, by force, violence, deceit,
subversion and/or other illegal means; and toward this end,
the said accused organized, among others a chapter of the
KABATAANG MAKABAYAN in barrio Motrico, La Paz,
Tarlac for the avowed purpose of undertaking or promoting
an armed revolution, subversive and/or seditious
propaganda, conspiracies, and/or riots and/or other illegal
means to discredit and overthrow the Government of the
Republic of the Philippines and to established in the
Philippines a Communist regime.
2. The accused NILO TAYAG alias ROMY REYES alias
TABA, together with FRANCISCO PORTEM alias KIKO
Gonzales and others, pursued the above subversive and/or
seditious activities in San Pablo City by recruiting members
for the New People's Army, and/or by instigating and inciting
the people to organize and unite for the purpose of
overthrowing the Government of the Republic of the
Philippines through armed revolution, deceit, subversion
and/or other illegal means, and establishing in the
Philippines a Communist Government.
That the following aggravating circumstances attended the
commission of the offense: (a) aid of armed men or persons

to insure or afford impunity; and (b) craft, fraud, or disguise

was employed.
On July 21, 1970 Tayag moved to quash, impugning the validity of the
statute on the grounds that (1) it is a bill of attainder; (2) it is vague; (3) it
embraces more than one subject not expressed in the title thereof; and (4) it
denied him the equal protection of the laws.
Resolving the constitutional issues raised, the trial court, in its resolution of
September 15, 1970, declared the statute void on the grounds that it is a bill
of attainder and that it is vague and overboard, and dismissed the
informations against the two accused. The Government appealed. We
resolved to treat its appeal as a special civil action for certiorari.
II. Is the Act a Bill of Attainder?
Article III, section 1 (11) of the Constitution states that "No bill of attainder
2
or ex port facto law shall be enacted." A bill of attainder is a legislative act
3
which inflicts punishment without trial. Its essence is the substitution of a
4
legislative for a judicial determination of guilt. The constitutional ban against
bills of attainder serves to implement the principle of separation of
5
powers by confining legislatures to
6
rule-making and thereby forestalling legislative usurpation of the judicial
7
function. History in perspective, bills of attainder were employed to
8
suppress unpopular causes and political minorities, and it is against this evil
that the constitutional prohibition is directed. The singling out of a definite
class, the imposition of a burden on it, and a legislative intent, suffice to
9
stigmatizea statute as a bill of attainder.
In the case at bar, the Anti-Subversion Act was condemned by the court a
quo as a bill of attainder because it "tars and feathers" the Communist Party
of the Philippines as a "continuing menace to the freedom and security of the
country; its existence, a 'clear, present and grave danger to the security of
the Philippines.'" By means of the Act, the trial court said, Congress usurped
"the powers of the judge," and assumed "judicial magistracy by pronouncing
the guilt of the CCP without any of the forms or safeguards of judicial trial."
Finally, according to the trial court, "if the only issue [to be determined] is
whether or not the accused is a knowing and voluntary member, the law is
still a bill of attainder because it has expressly created a presumption of
organizational guilt which the accused can never hope to overthrow."
1. When the Act is viewed in its actual operation, it will be seen that it does
not specify the Communist Party of the Philippines or the members thereof
for the purpose of punishment. What it does is simply to declare the Party to
be an organized conspiracy for the overthrow of the Government for the

purposes of the prohibition, stated in section 4, against membership in the

outlawed organization. The term "Communist Party of the Philippines" issued
solely for definitional purposes. In fact the Act applies not only to the
Communist Party of the Philippines but also to "any other organization
having the same purpose and their successors." Its focus is not on
10
individuals but on conduct.
This feature of the Act distinguishes it from section 504 of the U.S. Federal
11
Labor-Management Reporting and Disclosure Act of 1959 which, in U.S.
12
vs. Brown, was held to be a bill of attainder and therefore unconstitutional.
Section 504 provided in its pertinent parts as follows:
(a) No person who is or has been a member of the
Communist
Party ... shall serve
(1) as an officer, director, trustee, member of any executive
board or similar governing body, business agent, manager,
organizer, or other employee (other than as an employee
performing exclusively clerical or custodial duties) of any
labor organization.
during or for five years after the termination of his
membership in the Communist Party....
(b) Any person who willfully violates this section shall be
fined not more than $10,000 or imprisoned for not more than
one year, or both.
This statute specified the Communist Party, and imposes disability and
penalties on its members. Membership in the Party, without more, ipso
facto disqualifies a person from becoming an officer or a member of the
governing body of any labor organization. As the Supreme Court of the
United States pointed out:
Under the line of cases just outlined, sec. 504 of the Labor
Management Reporting and Disclosure Act plainly
constitutes a bill of attainder. Congress undoubtedly
possesses power under the Commerce Clause to enact
legislation designed to keep from positions affecting
interstate commerce persons who may use of such positions
to bring about political strikes. In section 504, however,
Congress has exceeded the authority granted it by the
Constitution. The statute does not set forth a generally
applicable rule decreeing that any person who commits

certain acts or possesses certain characteristics (acts and

characteristics which, in Congress' view, make them likely to
initiate political strikes) shall not hold union office, and leaves
to courts and juries the job of deciding what persons have
committed the specified acts or possessed the specified
characteristics. Instead, it designates in no uncertain terms
the persons who possess the feared characteristics and
therefore cannot hold union office without incurring criminal
liability members of the Communist Party.

Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally

unnecessary to charge Communists in court, as the law alone, without more,
would suffice to secure their punishment. But the undeniable fact is that their
guilt still has to be judicially established. The Government has yet to prove at
the trial that the accused joined the Party knowingly, willfully and by overt
acts, and that they joined the Party, knowing its subversive character and
with specific intent to further its basic objective, i.e., to overthrow the existing
Government by force deceit, and other illegal means and place the country
under the control and domination of a foreign power.

Communist Party v. Subversive Activities Control Board, 367

US 1, 6 L ed 2d 625, 81 S CT 1357, lend a support to our
conclusion. That case involved an appeal from an order by
the Control Board ordering the Communist Party to register
as a "Communist-action organization," under the Subversive
Activities Control Act of 1950, 64 Stat 987, 50 USC sec.
781 et seq. (1958 ed). The definition of "Communist-action
organization" which the Board is to apply is set forth in sec. 3
of the Act:

As to the claim that under the statute organizationl guilt is nonetheless

imputed despite the requirement of proof of knowing membership in the
Party, suffice it to say that is precisely the nature of conspiracy, which has
been referred to as a "dragneet device" whereby all who participate in the
criminal covenant are liable. The contention would be correct if the statute
were construed as punishing mere membership devoid of any specific intent
13
to further the unlawful goals of the Party. But the statute specifically
required that membership must be knowing or active, with specific intent to
further the illegal objectives of the Party. That is what section 4 means when
it requires that membership, to be unlawful, must be shown to have been
14
acquired "knowingly, willfully and by overt acts." The ingredient of specific
intent to pursue the unlawful goals of the Party must be shown by "overt
15
acts." This constitutes an element of "membership" distinct from the
ingredient of guilty knowledge. The former requires proof of direct
participation in the organization's unlawful activities, while the latter requires
proof of mere adherence to the organization's illegal objectives.

[A]ny organization in the United States ... which (i)is

substantially directed, dominated, or controlled by the foreign
government or foreign organization controlling the world
Communist movement referred to in section 2 of this title,
and(ii) operates primarily to advance the objectives of such
world Communist movement... 64 Stat 989, 50 USC sec.
782 (1958 ed.)
A majority of the Court rejected the argument that the Act
was a bill of attainder, reasoning that sec. 3 does not specify
the persons or groups upon which the deprivations setforth
in the Act are to be imposed, but instead sets forth a general
definition. Although the Board has determined in 1953 that
the Communist Party was a "Communist-action
organization," the Court found the statutory definition not to
be so narrow as to insure that the Party would always come
within it:
In this proceeding the Board had found, and the Court of
Appeals has sustained its conclusion, that the Communist
Party, by virtud of the activities in which it now engages,
comes within the terms of the Act. If the Party should at
anytime choose to abandon these activities, after it is once
registered pursuant to sec. 7, the Act provides adequate
means of relief. (367 US, at 87, 6 L ed 2d at 683)

2. Even assuming, however, that the Act specifies individuals and not
activities, this feature is not enough to render it a bill of attainder. A statute
prohibiting partners or employees of securities underwriting firms from
serving as officers or employees of national banks on the basis of a
legislative finding that the persons mentioned would be subject to the
temptation to commit acts deemed inimical to the national economy, has
16
been declared not to be a bill of attainder. Similarly, a statute requiring
every secret, oath-bound society having a membership of at least twenty to
register, and punishing any person who becomes a member of such society
which fails to register or remains a member thereof, was declared valid even
if in its operation it was shown to apply only to the members of the Ku Klux
17
Klan.
In the Philippines the validity of section 23 (b) of the Industrial Peace
18
Act, requiring labor unions to file with the Department of Labor affidavits of
union officers "to the effect that they are not members of the Communist
Party and that they are not members of any organization which teaches the
overthrow of the Government by force or by any illegal or unconstitutional
19
method," was upheld by this Court.

Indeed, it is only when a statute applies either to named individuals or to

easily ascertainable members of a group in such a way as to inflict
punishment on them without a judicial trial does it become a bill of
20
attainder. It is upon this ground that statutes which disqualified those who
had taken part in the rebellion against the Government of the United States
21
during the Civil War from holding office, or from exercising their
22
profession, or which prohibited the payment of further compensation to
individuals named in the Act on the basis of a finding that they had engages
23
in subversive activities, or which made it a crime for a member of the
24
Communist Party to serve as an officer or employee of a labor union, have
been invalidated as bills of attainder.
But when the judgment expressed in legislation is so universally
acknowledged to be certain as to be "judicially noticeable," the legislature
may apply its own rules, and judicial hearing is not needed fairly to make
25
such determination.
26

In New York ex rel. Bryant vs. Zimmerman, the New York legislature
passed a law requiring every secret, oath-bound society with a membership
of at least twenty to register, and punishing any person who joined or
remained a member of such a society failing to register. While the statute did
not specify the Ku Klux Klan, in its operation the law applied to the KKK
exclusively. In sustaining the statute against the claim that it discriminated
against the Ku Klux Klan while exempting other secret, oath-bound
organizations like masonic societies and the Knights of Columbus, the United
States Supreme Court relied on common knowledge of the nature and
activities of the Ku Klux Klan. The Court said:
The courts below recognized the principle shown in the
cases just cited and reached the conclusion that the
classification was justified by a difference between the two
classes of associations shown by experience, and that the
difference consisted (a) in a manifest tendency on the part of
one class to make the secrecy surrounding its purpose and
membership a cloak for acts and conduct inimical to
personal rights and public welfare, and (b) in the absence of
such a tendency on the part of the other class. In pointing
out this difference one of the courts said of the Ku Klux Klan,
the principal association in the included class: "It is a matter
of common knowledge that this organization functions
largely at night, its members disguised by hoods and gowns
and doing things calculated to strike terror into the minds of
the people;" and later said of the other class: "These
organizations and their purposes are well known, many of
them having been in existence for many years. Many of
them are oath-bound and secret. But we hear no complaint

against them regarding violation of the peace or interfering

with the rights of others." Another of the courts said: "It is a
matter of common knowledge that the association or
organization of which the relator is concededly a member
exercises activities tending to the prejudice and intimidation
of sundry classes of our citizens. But the legislation is not
confined to this society;" and later said of the other class:
"Labor unions have a recognized lawful purpose. The
benevolent orders mentioned in the Benevolent Orders Law
have already received legislative scrutiny and have been
granted special privileges so that the legislature may well
consider them beneficial rather than harmful agencies." The
third court, after recognizing "the potentialities of evil in
secret societies," and observing that "the danger of certain
organizations has been judicially demonstrated," meaning
in that state, said: "Benevolent orders, labor unions and
college fraternities have existed for many years, and, while
not immune from hostile criticism, have on the whole justified
their existence."
We assume that the legislature had before it such
information as was readily available including the published
report of a hearing, before a committee of the House of
Representatives of the 57th Congress relating to the
formation, purposes and activities of the Klu Klux Klan. If so
it was advised putting aside controverted evidence that
the order was a revival of the Ku Klux Klan of an earlier time
with additional features borrowed from the Know Nothing
and the A. P. A. orders of other periods; that its
memberships was limited to native-born, gentile, protestant
whites; that in part of its constitution and printed creed it
proclaimed the widest freedom for all and full adherence to
the Constitution of the United States; in another exacted of
its member an oath to shield and preserve "white
supremacy;" and in still another declared any person actively
opposing its principles to be "a dangerous ingredient in the
body politic of our country and an enemy to the weal of our
national commonwealth;" that it was conducting a crusade
against Catholics, Jews, and Negroes, and stimulating
hurtful religious and race prejudices; that it was striving for
political power and assuming a sort of guardianship over the
administration of local, state and national affairs; and that at
times it was taking into its own hands the punishment of
27
what some of its members conceived to be crimes.

In the Philippines the character of the Communist Party has been the object
of continuing scrutiny by this Court. In 1932 we found the Communist Party
28
of the Philippines to be an illegal association. In 1969 we again found that
the objective of the Party was the "overthrow of the Philippine Government
by armed struggle and to establish in the Philippines a communist form of
29
government similar to that of Soviet Russia and Red China." More
30
recently, in Lansang vs. Garcia, we noted the growth of the Communist
Party of the Philippines and the organization of Communist fronts among
youth organizations such as the Kabataang Makabayan (KM) and the
emergence of the New People's Army. After meticulously reviewing the
evidence, we said: "We entertain, therefore, no doubts about the existence of
a sizeable group of men who have publicly risen in arms to overthrow the
government and have thus been and still are engaged in rebellion against the
Government of the Philippines.
3. Nor is it enough that the statute specify persons or groups in order that it
may fall within the ambit of the prohibition against bills of attainder. It is also
necessary that it must apply retroactively and reach past conduct. This
requirement follows from the nature of a bill of attainder as a legislative
adjudication of guilt. As Justice Frankfurter observed, "frequently a bill of
attainder was ... doubly objectionable because of its ex post factofeatures.
This is the historic explanation for uniting the two mischiefs in one
clause 'No Bill of Attainder or ex post facto law shall be passed.' ...
Therefore, if [a statute] is a bill of attainder it is also an ex post facto law. But
if it is not an ex post facto law, the reasons that establish that it is not are
31
persuasive that it cannot be a bill of attainder."
32

Thus in Gardner vs. Board of Public Works, the U.S. Supreme Court
upheld the validity of the Charter of the City of Los Angeles which provided:
... [N]o person shall hold or retain or be eligible for any public
office or employment in the service of the City of Los
Angeles, in any office or department thereof, either elective
or appointive, who has within five (5) years prior to the
effective date of this section advised, advocated, or taught,
or who may, after this section becomes effective, become a
member of or affiliated with any group, society, association,
organization or party which advises, advocates or teaches or
has within said period of five (5) years advised, advocated,
or taught the overthrow by force or violence of the
Government of the United States of America or of the State
of California.
In upholding the statute, the Court stressed the prospective application of the
Act to the petitioner therein, thus:

... Immaterial here is any opinion we might have as to the

charter provision insofar as it purported to apply
restrospectively for a five-year period to its effective date.
We assume that under the Federal Constitution the Charter
Amendment is valid to the extent that it bars from the city's
public service persons who, subsequently to its adoption in
1941, advise, advocate, or reach the violent overthrow of the
Government or who are or become affiliated with any group
doing so. The provisions operating thus prospectively were a
reasonable regulation to protect the municipal service by
establishing an employment qualification of loyalty to the
State and the United States.
... Unlike the provisions of the charter and ordinance under
which petitioners were removed, the statute in the Lovett
case did not declare general and prospectively operative
standards of qualification and eligibility for public
employment. Rather, by its terms it prohibited any further
payment of compensationto named individuals or
employees. Under these circumstances, viewed against the
legislative background, the statutewas held to have imposed
penalties without judicial trial.
Indeed, if one objection to the bill of attainder is thatCongress thereby
assumed judicial magistracy, them it mustbe demonstrated that the statute
claimed to be a bill of attainderreaches past conduct and that the penalties it
imposesare inescapable. As the U.S. Supreme Court observedwith respect
to the U.S. Federal Subversive Activities ControlAct of 1950:
Nor is the statute made an act of "outlawry" or of attainderby
the fact that the conduct which it regulates is describedwith
such particularity that, in probability, few organizationswill
come within the statutory terms. Legislatures may act tocurb
behaviour which they regard as harmful to the public
welfare,whether that conduct is found to be engaged in by
manypersons or by one. So long as the incidence of
legislation issuch that the persons who engage in the
regulated conduct, bethey many or few, can escape
regulation merely by altering thecourse of their own present
33
activities, there can be no complaintof an attainder.
This statement, mutatis mutandis, may be said of theAnti-Subversion Act.
Section 4 thereof expressly statesthat the prohibition therein applies only to
acts committed"After the approval of this Act." Only those who
"knowingly,willfully and by overt acts affiliate themselves with,become or
remain members of the Communist Party of thePhilippines and/or its

successors or of any subversive association"after June 20, 1957, are

punished. Those whowere members of the Party or of any other subversive
associationat the time of the enactment of the law, weregiven the opportunity
of purging themselves of liability byrenouncing in writing and under oath their
membershipin the Party. The law expressly provides that such
34
renunciationshall operate to exempt such persons from penalliability. The
penalties prescribed by the Act are thereforenot inescapable.
III. The Act and the Requirements of Due Process
1. As already stated, the legislative declaration in section 2 of the Act that the
Communist Party of the Philippinesis an organized conspiracy for the
overthrow of theGovernment is inteded not to provide the basis for a
legislativefinding of guilt of the members of the Party butrather to justify the
proscription spelled out in section 4. Freedom of expression and freedom of
association are sofundamental that they are thought by some to occupy
35
a"preferred position" in the hierarchy of constitutional values. Accordingly,
any limitation on their exercise mustbe justified by the existence of a
substantive evil. This isthe reason why before enacting the statute in
question Congressconducted careful investigations and then stated
itsfindings in the preamble, thus:
... [T]he Communist Party of the Philippines
althoughpurportedly a political party, is in fact an organized
conspiracyto overthrow the Government of the Republic of
the Philippinesnot only by force and violence but also by
deceit, subversionand other illegal means, for the purpose of
establishing in thePhilippines a totalitarian regime subject to
alien dominationand control;

In saying that by means of the Act Congress has assumed judicial

magistracy, the trial courd failed to takeproper account of the distinction
between legislative fact and adjudicative fact. Professor Paul Freund
elucidatesthe crucial distinction, thus:
... A law forbidding the sale of beverages containingmore
than 3.2 per cent of alcohol would raise a question of
legislativefact, i.e., whether this standard has a reasonable
relationto public health, morals, and the enforcement
problem. Alaw forbidding the sale of intoxicating beverages
(assuming itis not so vague as to require supplementation by
rule-making)would raise a question of adjudicative fact, i.e.,
whether thisor that beverage is intoxicating within the
meaning of the statuteand the limits on governmental action
imposed by the Constitution. Of course what we mean by
fact in each case is itselfan ultimate conclusion founded on
underlying facts and oncriteria of judgment for weighing
them.
A conventional formulation is that legislative facts those
facts which are relevant to the legislative judgment will not
be canvassed save to determine whether there is a
rationalbasis for believing that they exist, while
adjudicativefacts those which tie the legislative enactment
to the litigant are to be demonstrated and found according
36
to the ordinarystandards prevailing for judicial trials.
37

... [T]he continued existence and activities of the

CommunistParty of the Philippines constitutes a clear,
present andgrave danger to the security of the Philippines;

The test formulated in Nebbia vs. new York, andadopted by this Court
38
in Lansang vs. Garcia, is that 'if laws are seen to have a reasonable
relation to a proper legislative purpose, and are neither arbitrary nor
discriminatory, the requirements of due process are satisfied, and judicial
determination to that effect renders a court functus officio." The recital of
legislative findings implements this test.

... [I]n the face of the organized, systematice and

persistentsubversion, national in scope but international in
direction,posed by the Communist Party of the Philippines
and its activities,there is urgent need for special legislation to
cope withthis continuing menace to the freedom and security
of the country.

With respect to a similar statement of legislative findingsin the U.S. Federal

Subversive Activities Control Actof 1950 (that "Communist-action
organizations" are controlledby the foreign government controlling the
worldCommunist movement and that they operate primarily to"advance the
objectives of such world Communist movement"),the U.S. Supreme Court
said:

In truth, the constitutionality of the Act would be opento question if, instead of
making these findings in enactingthe statute, Congress omitted to do so.

It is not for the courts to reexamine the validity of

theselegislative findings and reject them....They are the
productof extensive investigation by Committes of Congress
over morethan a decade and a half. Cf. Nebbia v. New York,

291 U.S.502, 516, 530. We certainly cannot dismiss them as

unfoundedirrational imaginings. ... And if we accept them, as
we mustas a not unentertainable appraisal by Congress of
the threatwhich Communist organizations pose not only to
existing governmentin the United States, but to the United
States as asovereign, independent Nation. ...we must
recognize that thepower of Congress to regulate Communist
organizations of thisnature is
39
extensive.
This statement, mutatis mutandis, may be said of thelegislative findings
articulated in the Anti-Subversion Act.
That the Government has a right to protect itself againstsubversion is a
proposition too plain to require elaboration.Self-preservation is the "ultimate
value" of society. It surpasses and transcendes every other value, "forif a
society cannot protect its very structure from armedinternal attack, ...no
40
subordinate value can be protected" As Chief Justice Vinson so aptly said
41
in Dennis vs. United States:
Whatever theoretical merit there may be to the argumentthat
there is a 'right' to rebellion against dictatorial governmentsis
without force where the existing structure of government
provides for peaceful and orderly change. We rejectany
principle of governmental helplessness in the face of
preparationfor revolution, which principle, carried to its
logical conclusion,must lead to anarchy. No one could
conceive that it isnot within the power of Congress to prohibit
acts intended tooverthrow the government by force and
violence.
2. By carefully delimiting the reach of the Act to conduct (as explicitly
described in sectin 4 thereof), Congressreaffirmed its respect for the rule that
"even throughthe governmental purpose be legitimate and substantial,that
purpose cannot be pursued by means that broadly stiflefundamental
42
personal liberties when the end can be more narrowly achieved." The
requirement of knowing membership,as distinguished
from nominalmembership, hasbeen held as a sufficient basis for penalizing
43
membershipin a subversive organization. For, as has been stated:
Membership in an organization renders aid and
encouragement to the organization; and when membership
is acceptedor retained with knowledge that the organization
is engaged inan unlawful purpose, the one accepting or

retaining membershipwith such knowledge makes himself a

44
party to the unlawfulenterprise in which it is engaged.
3. The argument that the Act is unconstitutionallyoverbroad because section
2 merely speaks of "overthrow"of the Government and overthrow may be
achieved by peaceful means, misconceives the function of the
phrase"knowingly, willfully and by overt acts" in section 4. Section 2 is merely
a legislative declaration; the definitionsof and the penalties prescribed for the
different acts prescribedare stated in section 4 which requires that
membershipin the Communist Party of the Philippines, to be unlawful, must
be acquired "knowingly, willfully and by overt acts." Indeed, the first
"whereas" clause makes clear thatthe overthrow contemplated is "overthrow
not only by forceand violence but also be deceit, subversion and other
illegalmeans." The absence of this qualificatio in section 2 appearsto be due
more to an oversight rather than to deliberateomission.
Moreover, the word "overthrow' sufficiently connotesthe use of violent and
other illegal means. Only in a metaphoricalsense may one speak of peaceful
overthrow ofgovernments, and certainly the law does not speak in
metaphors.In the case of the Anti-Subversion Act, the use ofthe word
"overthrow" in a metaphorical sense is hardlyconsistent with the clearly
delineated objective of the "overthrow,"namely, "establishing in the
Philippines a totalitarianregime and place [sic] the Government under
thecontrol and domination of an alien power." What thisCourt once said in a
prosecution for sedition is appropos: "The language used by the appellant
clearly imported anoverthrow of the Government by violence, and it should
beinterpreted in the plain and obvious sense in which it wasevidently
intended to be understood. The word 'overthrow'could not have been
intended as referring to an ordinarychange by the exercise of the elective
franchise. The useof the whip [which the accused exhorted his audience to
useagainst the Constabulary], an instrument designed toleave marks on the
sides of adversaries, is inconsistentwith the mild interpretation which the
45
appellant wouldhave us impute to the language."
IV. The Act and the Guaranty of Free Expression
As already pointed out, the Act is aimed against conspiracies to overthrow
the Government by force, violence orother illegal means. Whatever interest
in freedom of speechand freedom of association is infringed by the
prohibitionagainst knowing membership in the Communist Party ofthe
Philippines, is so indirect and so insubstantial as to beclearly and heavily
outweighed by the overriding considerationsof national security and the
preservartion of democraticinstitutions in his country.

The membership clause of the U.S. Federal Smith Actis similar in many
respects to the membership provision ofthe Anti-Subversion Act. The former
provides:
Whoever organizes or helps or attempts to organize
anysociety, group, or assembly of persons who teach,
advocate, orencourage the overthrow or destruction of any
such governmentby force or violence; or becomes or is a
member of, or affiliatedwith, any such society, group or
assembly of persons, knowingthe purpose thereof
Shall be fined not more than $20,000 or imprisoned notmore
than twenty years, or both, and shall be ineligible for
emplymentby the United States or any department or
agencythereof, for the five years next following his
46
conviction....
In sustaining the validity of this provision, the "Court said in Scales vs. United
47
States:
It was settled in Dennis that advocacy with which we arehere
concerned is not constitutionally protected speech, and itwas
further established that a combination to promote
suchadvocacy, albeit under the aegis of what purports to be
a politicalparty, is not such association as is protected by the
firstAmendment. We can discern no reason why
membership, whenit constitutes a purposeful form of
complicity in a group engagingin this same forbidden
advocacy, should receive anygreater degree of protection
from the guarantees of that Amendment.
Moreover, as was held in another case, where the problemsof
accommodating the exigencies of self-preservationand the values of liberty
are as complex and intricate as inthe situation described in the legislative
findings stated inthe U.S. Federal Subversive Activities Control Act of
1950,the legislative judgment as to how that threat may best bemet
consistently with the safeguards of personal freedomsis not to be set aside
merely because the judgment of judgeswould, in the first instance, have
48
chosen other methods. For in truth, legislation, "whether it restrains
freedom tohire or freedom to speak, is itself an effort at compromisebetween
the claims of the social order and individual freedom,and when the legislative
compromise in either case isbrought to the judicial test the court stands one
49
step removedfrom the conflict and its resolution through law."

The respondent Tayag invokes the constitutional commandthat "no bill which
may be enacted into law shall embrace more than one subject which shall be
50
expressed in the title of the bill."
What is assailed as not germane to or embraced in thetitle of the Act is the
last proviso of section 4 which reads:
And provided, finally, That one who conspires with anyother
person to overthrow the Government of the Republic ofthe
Philippines, or the government of any of its political
subdivisionsby force, violence, deceit, subversion or illegal
means,for the purpose of placing such Government or
political subdivisionunder the control and domination of any
lien power, shallbe punished by prision
correccional to prision mayor with allthe accessory penalties
provided therefor in the same code.
It is argued that the said proviso, in reality, punishes notonly membership in
the Communist Party of the Philippinesor similar associations, but as well
"any conspiracyby two persons to overthrow the national or any local
governmentby illegal means, even if their intent is not to establisha
totalitarian regime, burt a democratic regime, evenif their purpose is not to
place the nation under an aliencommunist power, but under an alien
democratic power likethe United States or England or Malaysia or even an
anti-communistpower like Spain, Japan, Thailand or Taiwanor Indonesia."
The Act, in addition to its main title ("An Act to Outlawthe Communist Party of
the Philippines and SimilarAssociations, Penalizing Membership Therein,
and forOther Purposes"), has a short title. Section 1 providesthat "This Act
shall be known as the
Anti-Subversion Act."Together with the main title, the short title of the
statuteunequivocally indicates that the subject matter is subversionin general
which has for its fundamental purpose the substitutionof a foreign totalitarian
regime in place of theexisting Government and not merely subversion by
Communistconspiracies..
The title of a bill need not be a catalogue or an indexof its contents, and need
51
not recite the details of the Act. It is a valid title if it indicates in broad but
clear termsthe nature, scope, and consequences of the proposed lawand its
52
operation. A narrow or technical construction isto be avoided, and the
statute will be read fairly and reasonablyin order not to thwart the legislative
intent. We holdthat the Anti-Subversion Act fully satisfies these requirements.
VI. Conclusion and Guidelines

V. The Act and its Title

In conclusion, even as we uphold the validity of theAnti-Subversion Act, we

cannot overemphasize the needfor prudence and circumspection in its
enforcement, operatingas it does in the sensitive area of freedom of
expressionand belief. Accordingly, we set the following basic guidelines to be
observed in any prosecution under the Act.The Government, in addition to
proving such circumstancesas may affect liability, must establish the
following elementsof the crime of joining the Communist Party of the
Philippinesor any other subversive association:
(1) In the case of subversive organizations other thanthe Communist Party of
the Philippines, (a) that thepurpose of the organization is to overthrow the
presentGovernment of the Philippines and to establish in thiscountry a
totalitarian regime under the domination of aforeign power; (b) that the
accused joined such organization;and (c) that he did so knowingly, willfully
and byovert acts; and
(2) In the case of the Communist Party of the Philippines,(a) that the CPP
continues to pursue the objectiveswhich led Congress in 1957 to declare it to
be an organizedconspiracy for the overthrow of the Government by
illegalmeans for the purpose of placing the country under thecontrol of a
foreign power; (b) that the accused joined theCPP; and (c) that he did so
willfully, knowingly and byovert acts.
We refrain from making any pronouncement as to thecrime or remaining a
member of the Communist Party ofthe Philippines or of any other subversive
association: weleave this matter to future determination.
ACCORDINGLY, the questioned resolution of September15, 1970 is set
aside, and these two cases are herebyremanded to the court a quo for trial
on the merits. Costs de oficio.
Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur.
Concepcion, C.J., concurs in the result.
Makasiar and Antonio, JJ., took no part.

18. US vs. Diaz-Conde

Republic of the Philippines
SUPREME COURT
Manila

EN BANC
G.R. No. L-18208

February 14, 1922

THE UNITED STATES, plaintiff-appellee,

vs.
VICENTE DIAZ CONDE and APOLINARIA R. DE CONDE, defendantsappellants.
Araneta & Zaragoza for appellants.
Attorney-General Villareal for appellee.
JOHNSON, J.:
It appears from the record that on the 6th day of May, 1921, a complaint was
presented in the Court of First Instance of the city of Manila, charging the
defendants with a violation of the Usury Law (Act No. 2655). Upon said
complaint they were each arrested, arraigned, and pleaded not guilty. The
cause was finally brought on for trial on the 1st day of September, 1921. At
the close of the trial, and after a consideration of the evidence adduced, the
Honorable M. V. del Rosario, judge, found that the defendants were guilty of
the crime charged in the complaint and sentenced each of them to pay a fine
of P120 and, in case of insolvency, to suffer subsidiary imprisonment in
accordance with the provisions of the law. From that sentence each of the
defendants appealed to this court.
The appellants now contend: (a) That the contract upon which the alleged
usurious interest was collected was executed before Act No. 2655 was
adopted; (b) that at the time said contract was made (December 30, 1915),
there was no usury law in force in the Philippine Islands; (c) that said Act No.
2655 did not become effective until the 1st day of May, 1916, or four months
and a half after the contract in question was executed; (d) that said law could
have no retroactive effect or operation, and (e) that said law impairs the
obligation of a contract, and that for all of said reasons the judgment imposed
by the lower court should be revoked; that the complaint should be
dismissed, and that they should each be discharged from the custody of the
law.
The essential facts constituting the basis of the criminal action are not in
dispute, and may be stated as follows: (1) That on the 30th day of December,
1915, the alleged offended persons Bartolome Oliveros and Engracia Lianco
executed and delivered to the defendants a contract (Exhibit B) evidencing
the fact that the former had borrowed from the latter the sum of P300, and (2)
that, by virtue of the terms of said contract, the said Bartolome Oliveros and
Engracia Lianco obligated themselves to pay to the defendants interest at the

rate of five per cent (5%) per month, payable within the first ten days of each
and every month, the first payment to be made on the 10th day of January,
1916. There were other terms in the contract which, however, are not
important for the decision in the present case.
The lower court, in the course of its opinion, stated that at the time of the
execution and delivery of said contract (Exhibit B), there was no law in force
in the Philippine Islands punishing usury; but, inasmuch as the defendants
had collected a usurious rate of interest after the adoption of the Usury Law
in the Philippine Islands (Act No. 2655), they were guilty of a violation of that
law and should be punished in accordance with its provisions.
The law, we think, is well established that when a contract contains an
obligation to pay interest upon the principal, the interest thereby becomes
part of the principal and is included within the promise to pay. In other words,
the obligation to pay interest on money due under a contract, be it express or
implied, is a part of the obligation of the contract. Laws adopted after the
execution of a contract, changing or altering the rate of interest, cannot be
made to apply to such contract without violating the provisions of the
constitution which prohibit the adoption of a law "impairing the obligation of
contract." (8 Cyc., 996; 12 Corpus Juris, 1058-1059.)
The obligation of the contract is the law which binds the parties to perform
their agreement if it is not contrary to the law of the land, morals or public
order. That law must govern and control the contract in every aspect in which
it is intended to bear upon it, whether it affect its validity, construction, or
discharge. Any law which enlarges, abridges, or in any manner changes the
intention of the parties, necessarily impairs the contract itself. If a law impairs
the obligation of a contract, it is prohibited by the Jones Law, and is null and
void. The laws in force in the Philippine Islands prior to any legislation by the
American sovereignty, prohibited the Legislature from giving to any penal law
a retroactive effect unless such law was favorable to the person accused.
(Articles 21 and 22, Penal Code.)
A law imposing a new penalty, or a new liability or disability, or giving a new
right of action, must not be construed as having a retroactive effect. It is an
elementary rule of contract that the laws in force at the time the contract was
made must govern its interpretation and application. Laws must be construed
prospectively and not retrospectively. If a contract is legal at its inception, it
cannot be rendered illegal by any subsequent legislation. If that were
permitted then the obligations of a contract might be impaired, which is
prohibited by the organic law of the Philippine Islands. (U.S. vs. Constantino
Tan Quingco Chua, 39 Phil., 552; Aguilar vs. Rubiato and Gonzales Vila, 40
Phil., 570.)

Ex post facto laws, unless they are favorable to the defendant, are prohibited
in this jurisdiction. Every law that makes an action, done before the passage
of the law, and which was innocent when done, criminal, and punishes such
action, is an ex post facto law. In the present case Act No. 2655 made an act
which had been done before the law was adopted, a criminal act, and to
make said Act applicable to the act complained of would be to give it an ex
post facto operation. The Legislature is prohibited from adopting a law which
will make an act done before its adoption a crime. A law may be given a
retroactive effect in civil action, providing it is curative in character, but ex
post facto laws are absolutely prohibited unless its retroactive effect is
favorable to the defendant.
For the reason, therefore, that the acts complained of in the present case
were legal at the time of their occurrence, they cannot be made criminal by
any subsequent or ex post facto legislation. What the courts may say,
considering the provisions of article 1255 of the Civil Code, when a civil
action is brought upon said contract, cannot now be determined. A contract
may be annulled by the courts when it is shown that it is against morals or
public order.
For all of the foregoing reasons, we are of the opinion, and so decide, that
the acts complained of by the defendants did not constitute a crime at the
time they were committed, and therefore the sentence of the lower court
should be, and is hereby, revoked; and it is hereby ordered and decreed that
the complaint be dismissed, and that the defendants be discharged from the
custody of the law, with costs de oficio. So ordered.
Araullo, C.J., Street, Malcolm, Avancea, Ostrand, Johns and Romualdez,
JJ., concur.

19. People vs. Abilong

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-1960

November 26, 1948

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FLORENTINO ABILONG, defendant-appellant.

Carlos Perfecto for appellant.

Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Manuel
Tomacruz for appellee.

The Solicitor General in his brief says that had the original text of the Revised
Penal Code been in the English language, then the theory of the appellant
could be uphold. However, it is the Spanish text that is controlling in case of
doubt. The Spanish text of article 157 in part reads thus:

MONTEMAYOR, J.:
Florentino Abilong was charged in the Court of First Instance of Manila with
evasion of service of sentence under the following information:
That on or about the 17th day of September, 1947, in the City of
Manila, Philippines, the said accused, being then a convict
sentenced and ordered to serve two (2) years, four (4) months and
one (1) day of destierro during which he should not enter any place
within the radius of 100 kilometers from the City of Manila, by virtue
of final judgment rendered by the municipal court on April 5, 1946, in
criminal case No. B-4795 for attempted robbery, did then and there
wilfully, unlawfully and feloniously evade the service of said sentence
by going beyond the limits made against him and commit vagrancy.
Contrary to law.
Upon arraignment he pleaded guilty and was sentenced to two (2) years, four
(4) months and one (1) day ofprision correccional, with the accessory
penalties of the law and to pay the costs. He is appealing from that decision
with the following assignment of error:
1. The lower court erred in imposing a penalty on the accused under
article 157 of the Revised Penal Code, which does not cover evasion
of service of "destierro."
Counsel for the appellant contends that a person like the accused evading a
sentence of destierro is not criminally liable under the provisions of the
Revised Penal Code, particularly article 157 of the said Code for the reason
that said article 157 refers only to persons who are imprisoned in a penal
institution and completely deprived of their liberty. He bases his contention
on the word "imprisonment" used in the English text of said article which in
part reads as follows:
Evasion of service of sentence. The penalty of prision
correccional in its medium and maximum periods shall be imposed
upon any convict who shall evade service of his sentence by
escaping during the term of his imprisonment by reason of final
judgment.

ART. 157. Quebrantamiento de sentencia. Sera castigado con

prision correccional en sus grados medio y maximo el sentenciado
que quebrantare su condena, fugandose mientras estuviere
sufriendo privacion de libertad por sentencia firme; . . . .
We agree with the Solicitor General that inasmuch as the Revised Penal
Code was originally approved and enacted in Spanish, the Spanish text
governs (People vs. Manaba, 58 Phil., 665, 668). It is clear that the word
"imprisonment" used in the English text is a wrong or erroneous translation of
the phrase "sufriendo privacion de libertad" used in the Spanish text. It is
equally clear that although the Solicitor General impliedly admits destierro as
not constituting imprisonment, it is a deprivation of liberty, though partial, in
the sense that as in the present case, the appellant by his sentence
of destierro was deprived of the liberty to enter the City of Manila. This view
has been adopted in the case of People vs. Samonte, No. 36559 (July 26,
1932; 57 Phil., 968) wherein this Court held, as quoted in the brief of the
Solicitor General that "it is clear that a person under sentence of destierro is
suffering deprivation of his liberty and escapes from the restrictions of the
penalty when he enters the prohibited area." Said ruling in that case was
ratified by this Court, though, indirectly in the case of People vs. Jose de
1
Jesus, (45 Off. Gaz. Supp. to No. 9, p. 370) , where it was held that one
evades the service of his sentence of destierrowhen he enters the prohibited
area specified in the judgment of conviction, and he cannot invoke the
provisions of the Indeterminate Sentence Law which provides that its
provisions do not apply to those who shall have escaped from confinement or
evaded sentence.
In conclusion we find and hold that the appellant is guilty of evasion of
service of sentence under article 157 of the Revised Penal Code (Spanish
text), in that during the period of his sentence of destierro by virtue of final
judgment wherein he was prohibited from entering the City of Manila, he
entered said City.
Finding no reversible error in the decision appealed from, the same is hereby
affirmed with costs against the appellant. So ordered.
Moran, C. J., Paras, Feria, Pablo, Bengzon and Tuason, JJ., concur.

20. People vs. Fermigones

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-3246

November 29, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ABELARDO FORMIGONES, defendant-appellant.
Luis Contreras for appellant.
Office of the Solicitor General Felix Bautista Angelo and Solicitor Felix V.
Makasiar for appellee.
MONTEMAYOR, J.:
This is an appeal from the decision of the Court of First Instance of
Camarines Sur finding the appellant guilty of parricide and sentencing him
to reclusion perpetua, to indemnify the heirs of the deceased in the amount
of P2,000, and to pay the costs. The following facts are not disputed.
In the month of November, 1946, the defendant Abelardo Formigones was
living on his farm in Bahao, Libmanan, municipality of Sipocot, Camarines
Sur, with his wife, Julia Agricola, and his five children. From there they went
to live in the house of his half-brother, Zacarias Formigones, in the barrio of
Binahian of the same municipality of Sipocot, to find employment as
harvesters of palay. After about a month's stay or rather on December 28,
1946, late in the afternoon, Julia was sitting at the head of the stairs of the
house. The accused, without any previous quarrel or provocation
whatsoever, took his bolo from the wall of the house and stabbed his wife,
Julia, in the back, the blade penetrating the right lung and causing a severe
hemorrhage resulting in her death not long thereafter. The blow sent Julia
toppling down the stairs to the ground, immediately followed by her husband
Abelardo who, taking her up in his arms, carried her up the house, laid her on
the floor of the living room and then lay down beside her. In this position he
was found by the people who came in response to the shouts for help made
by his eldest daughter, Irene Formigones, who witnessed and testified to the
stabbing of her mother by her father.

Investigated by the Constabulary, defendant Abelardo signed a written

statement, Exhibit D, wherein he admitted that he killed The motive was
admittedly of jealousy because according to his statement he used to have
quarrels with his wife for the reason that he often saw her in the company of
his brother Zacarias; that he suspected that the two were maintaining illicit
relations because he noticed that his had become indifferent to him
(defendant).
During the preliminary investigation conducted by the justice of the peace of
Sipocot, the accused pleaded guilty, as shown by Exhibit E. At the trial of the
case in the Court of First Instance, the defendant entered a plea of not guilty,
but did not testify. His counsel presented the testimony of two guards of the
provincial jail where Abelardo was confined to the effect that his conduct
there was rather strange and that he behaved like an insane person; that
sometimes he would remove his clothes and go stark naked in the presence
of his fellow prisoners; that at times he would remain silent and indifferent to
his surroundings; that he would refused to take a bath and wash his clothes
until forced by the prison authorities; and that sometimes he would sing in
chorus with his fellow prisoners, or even alone by himself without being
asked; and that once when the door of his cell was opened, he suddenly
darted from inside into the prison compound apparently in an attempt to
regain his liberty.
The appeal is based merely on the theory that the appellant is an imbecile
and therefore exempt from criminal liability under article 12 of the Revised
Penal Code. The trial court rejected this same theory and we are inclined to
agree with the lower court. According to the very witness of the defendant,
Dr. Francisco Gomez, who examined him, it was his opinion that Abelardo
was suffering only from feeblemindedness and not imbecility and that he
could distinguish right from wrong.
In order that a person could be regarded as an imbecile within the meaning
of article 12 of the Revised Penal Code so as to be exempt from criminal
liability, he must be deprived completely of reason or discernment and
freedom of the will at the time of committing the crime. The provisions of
article 12 of the Revised Penal Code are copied from and based on
paragraph 1, article 8, of the old Penal Code of Spain. Consequently, the
decisions of the Supreme Court of Spain interpreting and applying said
provisions are pertinent and applicable. We quote Judge Guillermo Guevara
on his Commentaries on the Revised Penal Code, 4th Edition, pages 42 to
43:
The Supreme Court of Spain held that in order that this exempting
circumstances may be taken into account, it is necessary that there
be a complete deprivation of intelligence in committing the act, that
is, that the accused be deprived of reason; that there be no

responsibility for his own acts; that he acts without the least
1
discernment; that there be a complete absence of the power to
discern, or that there be a total deprivation of freedom of the will. For
this reason, it was held that the imbecility or insanity at the time of
the commission of the act should absolutely deprive a person of
intelligence or freedom of will, because mere abnormality of his
2
mental faculties does not exclude imputability.
The Supreme Court of Spain likewise held that deaf-muteness
cannot be equaled to imbecility or insanity.
The allegation of insanity or imbecility must be clearly proved.
Without positive evidence that the defendant had previously lost his
reason or was demented, a few moments prior to or during the
perpetration of the crime, it will be presumed that he was in a normal
condition. Acts penalized by law are always reputed to be voluntary,
and it is improper to conclude that a person acted unconsciously, in
order to relieve him from liability, on the basis of his mental condition,
unless his insanity and absence of will are proved.
As to the strange behaviour of the accused during his confinement, assuming
that it was not feigned to stimulate insanity, it may be attributed either to his
being feebleminded or eccentric, or to a morbid mental condition produced
by remorse at having killed his wife. From the case of United
States vs. Vaquilar (27 Phil. 88), we quote the following syllabus:
Testimony of eye-witnesses to a parricide, which goes no further
than to indicate that the accused was moved by a wayward or
hysterical burst of anger or passion, and other testimony to the effect
that, while in confinement awaiting trial, defendant acted
absentmindedly at times, is not sufficient to establish the defense of
insanity. The conduct of the defendant while in confinement appears
to have been due to a morbid mental condition produced by remorse.
After a careful study of the record, we are convinced that the appellant is not
an imbecile. According to the evidence, during his marriage of about 16
years, he has not done anything or conducted himself in anyway so as to
warrant an opinion that he was or is an imbecile. He regularly and dutifully
cultivated his farm, raised five children, and supported his family and even
maintained in school his children of school age, with the fruits of his work.
Occasionally, as a side line he made copra. And a man who could feel the
pangs of jealousy to take violent measure to the extent of killing his wife
whom he suspected of being unfaithful to him, in the belief that in doing so he
was vindicating his honor, could hardly be regarded as an imbecile. Whether

or not his suspicions were justified, is of little or no import. The fact is that he
believed her faithless.
But to show that his feeling of jealousy had some color of justification and
was not a mere product of hallucination and aberrations of a disordered mind
as that an imbecile or a lunatic, there is evidence to the following effect. In
addition to the observations made by appellant in his written statement
Exhibit D, it is said that when he and his wife first went to live in the house of
his half brother, Zacarias Formigones, the latter was living with his
grandmother, and his house was vacant. However, after the family of
Abelardo was settled in the house, Zacarias not only frequented said house
but also used to sleep there nights. All this may have aroused and even
partly confirmed the suspicions of Abelardo, at least to his way of thinking.
The appellant has all the sympathies of the Court. He seems to be one of
those unfortunate beings, simple, and even feebleminded, whose faculties
have not been fully developed. His action in picking up the body of his wife
after she fell down to the ground, dead, taking her upstairs, laying her on the
floor, and lying beside her for hours, shows his feeling of remorse at having
killed his loved one though he thought that she has betrayed him. Although
he did not exactly surrender to the authorities, still he made no effort to flee
and compel the police to hunt him down and arrest him. In his written
statement he readily admitted that he killed his wife, and at the trial he made
no effort to deny or repudiate said written statement, thus saving the
government all the trouble and expense of catching him, and insuring his
conviction.
Although the deceased was struck in the back, we are not prepared to find
that the aggravating circumstance of treachery attended the commission of
the crime. It seems that the prosecution was not intent or proving it. At least
said aggravating circumstance was not alleged in the complaint either in the
justice of the peace court or in the Court of First Instance. We are inclined to
give him the benefit of the doubt and we therefore declined to find the
existence of this aggravating circumstance. On the other hand, the fact that
the accused is feebleminded warrants the finding in his favor of the mitigating
circumstance provided for in either paragraph 8 or paragraph 9 of article 13
of the Revised Penal Code, namely that the accused is "suffering some
physical defect which thus restricts his means of action, defense, or
communication with his fellow beings," or such illness "as would diminish the
exercise of his will power." To this we may add the mitigating circumstance in
paragraph 6 of the same article, that of having acted upon an impulse so
powerful as naturally to have produced passion or obfuscation. The accused
evidently killed his wife in a fit of jealousy.
With the presence of two mitigating circumstances without any aggravating
circumstance to offset them, at first we thought of the possible applicability of

the provisions of article 64, paragraph 5 of the Revised Penal Code for the
purpose of imposing the penalty next lower to that prescribed by article 246
for parricide, which is reclusion perpetua to death. It will be observed
however, that article 64 refers to the application of penalties which contain
three periods whether it be a single divisible penalty or composed of three
different penalties, each one of which forms a period in accordance with the
provisions of articles 76 and 77, which is not true in the present case where
the penalty applicable for parricide is composed only of two indivisible
penalties. On the other hand, article 63 of the same Code refers to the
application of indivisible penalties whether it be a single divisible penalty, or
two indivisible penalties like that of reclusion perpetua to death. It is therefore
clear that article 63 is the one applicable in the present case.
Paragraph 2, rule 3 of said article 63 provides that when the commission of
the act is attended by some mitigating circumstance and there is no
aggravating circumstance, the lesser penalty shall be applied. Interpreting a
similar legal provision the Supreme Court in the case of United States vs.
Guevara (10 Phil. 37), involving the crime of parricide, in applying article 80,
paragraph 2 (rule 3 of the old Penal Code) which corresponds to article 63,
paragraph 2 (rule 3 of the present Revised Penal Code), thru Chief Justice
Arellano said the following:
And even though the court should take into consideration the
presence of two mitigating circumstances of a qualifying nature,
which it can not afford to overlook, without any aggravating one, the
penalty could not be reduced to the next lower to that imposed by
law, because, according to a ruling of the court of Spain, article 80
above-mentioned does not contain a precept similar to that
contained in Rule 5 of article 81 (now Rule 5, art. 64 of the Rev.
Penal Code.) (Decision of September 30, 1879.)

mitigating circumstances found to exist, inasmuch as the penalty for parricide

as fixed by article 246 of the Revised Penal Code is composed of two
indivisible penalties, namely, reclusion perpetua to death, paragraph 3 of
article 63 of the said Code must be applied. The Court further observed:
We are likewise convinced that appellant did not have that malice
nor has exhibited such moral turpitude as requires life imprisonment,
and therefore under the provisions of article 5 of the Revised Penal
Code, we respectfully invite the attention of the Chief Executive to
the case with a view to executive clemency after appellant has
served an appreciable amount of confinement.
In conclusion, we find the appellant guilty of parricide and we hereby affirm
the judgment of the lower court with the modification that the appellant will be
credited with one-half of any preventive imprisonment he has undergone.
Appellant will pay costs.
Following the attitude adopted and the action taken by this same court in the
two cases above cited, and believing that the appellant is entitled to a lighter
penalty, this case should be brought to the attention of the Chief Executive
who, in his discretion may reduce the penalty to that next lower to reclusion
perpetua to death or otherwise apply executive clemency in the manner he
sees fit.
Moran, Bengzon, C. J., Paras, Feria, Pablo, Tuason, Reyes, and Jugo, JJ.,
concur.
21. People vs. Guillen
Republic of the Philippines
SUPREME COURT
Manila

Yet, in view of the excessive penalty imposed, the strict application

of which is inevitable and which, under the law, must be sustained,
this court now resorts to the discretional power conferred by
paragraph 2 of article 2 of the Penal Code; and.
Therefore, we affirm the judgment appealed from with costs, and
hereby order that a proper petition be filed with the executive branch
of the Government in order that the latter, if it be deemed proper in
the exercise of the prerogative vested in it by the sovereign
power, may reduce the penalty to that of the next lower.
Then, in the case of People vs. Castaeda (60 Phil. 604), another parricide
case, the Supreme Court in affirming the judgment of conviction sentencing
defendant to reclusion perpetua, said that notwithstanding the numerous

EN BANC
G.R. No. L-1477

January 18, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JULIO GUILLEN, defendant-appellant.
Mariano A. Albert for appellant.
Office of the Solicitor General Felix Bautista Angelo and Solicitor Francisco
A. Carreon for appellee.

PER CURIAM, J.:

This case is before us for review of, and by virtue of appeal from, the
judgment rendered by the Court of First Instance of Manila in case No. 2746,
whereby Julio Guillen y Corpus, or Julio C. Guillen, is found guilty beyond
reasonable doubt of the crime of murder and multiple frustrated murder, as
charged in the information, and is sentenced to the penalty of death, to
indemnify the of the deceased Simeon Valera (or Barrela) in the sum of
P2,000 and to pay the costs.
Upon arraignment the accused entered a plea of not guilty to the charges
contained in the information.
Then the case was tried in one of the branches of the Court of First Instance
of Manila presided over by the honorable Buenaventura Ocampo who, after
the submission of the evidence of the prosecution and the defense, rendered
judgment as above stated.
In this connection it should be stated that, at the beginning of the trial and
before arraignment, counsel de oficiofor the accused moved that the mental
condition of Guillen be examined. The court, notwithstanding that it had
found out from the answers of the accused to questions propounded to him
in order to test the soundness of his mind, that he was not suffering from any
mental derangement, ordered that Julio Guillen be confined for Hospital,
there to be examined by medical experts who should report their findings
accordingly. This was done, and, according to the report of the board of
medical experts, presided over by Dr. Fernandez of the National
Psychopathic Hospital, Julio Guillen was not insane. Said report (Exhibit L),
under the heading "Formulation and Diagnosis," at pages 13 and 14, reads:
FORMULATION AND DIAGNOSIS
Julio C. Guillen was placed under constant observation since
admission. There was not a single moment during his whole 24
hours daily, that he was not under observation.

always able to differentiate right from wrong, fully aware of the nature
of the crime he committed and is equally decided to suffer for it in
any manner or form.
His version of the circumstances of the crime, his conduct and
conversation relative thereto, the motives, temptations and
provocations that preceded the act, were all those of an individual
with a sound mind.
On the other hand he is an man of strong will and conviction and
once arriving at a decision he executes, irrespective of
consequences and as in this case, the commission of the act at
Plaza Miranda.
What is of some interest in the personality of Julio C. Guillen is his
commission of some overt acts. This is seen not only in the present
instance, but sometime when an employee in la Clementina Cigar
Factory he engaged in a boxing bout Mr. Manzano, a Span-wanted
to abuse the women cigar makers, and felt it his duty to defend them.
One time he ran after a policeman with a knife in hand after being
provoked to a fight several times. He even challenged Congressman
Nueno to a fight sometime before when Mr. Nueno was running for a
seat in the Municipal Board of the City of Manila, after hearing him
deliver one of his apparently outspoken speeches.
All these mean a defect in his personality characterized by a
weakness of censorship especially in relation to rationalization about
the consequences of his acts.
In view of the above findings it is our considered opinion that Julio C.
Guillen is not insane but is an individual with a personality defect
which in Psychiatry is termed, Constitutional Psychopathic Inferiority.
Final Diagnosis
Not insane: Constitutional Psychopathic Inferiority, without psychosis.

The motive behind the commission of the crime is stated above. The
veracity of this motivation was determined in the Narcosynthesis.
That the narco-synthesis was successful was checked up the day
after the test. The narco-synthesis proved not only reveal any conflict
or complex that may explain a delusional or hallucinatory motive
behind the act.
Our observation and examination failed to elicit any sign or symptom
of insanity in Mr. Julio C. Guillen. He was found to be intelligent,

In view of the above-quoted findings of the medical board, and

notwithstanding the contrary opinion of one Dr. Alvarez, who was asked by
the defense to give his opinion on the matter, the court ruled that Guillen, not
being insane, could be tired, as he was tired, for the offenses he committed
on the date in question.
THE FACTS

Upon careful perusal of the evidence and the briefs submitted by counsel for
the accused, the Solicitor General and their respective memoranda, we find
that there is no disagreement between the prosecution and the defense, as
to the essential facts which caused the filing of the present criminal case
against this accused. Those facts may be stated as follows:
On the dates mentioned in this decision, Julio Guillen y Corpus, although not
affirmed with any particular political group, has voted for the defeated
candidate in the presidential elections held in 1946. Manuel A. Roxas, the
successful candidate, assumed the office of President of the Commonwealth
and subsequently President of the President of the Philippine Republic.
According to Guillen, he became disappointed in President Roxas for his
alleged failure to redeem the pledges and fulfill the promises made by him
during the presidential election campaign; and his disappointment was
aggravated when, according to him, President Roxas, instead of looking after
the interest of his country, sponsored and campaigned for the approval of the
so-called "parity" measure. Hence he determined to assassinate the
President.
After he had pondered for some time over the ways and means of
assassinating President Roxas, the opportunity presented itself on the night
of March 10, 1947, when at a popular meeting held by the Liberal Party at
Plaza de Miranda, Quiapo, Manila attended by a big crowd, President Roxas,
accompanied by his wife and daughter and surrounded by a number of ladies
and gentlemen prominent in government and politics, stood on a platform
erected for that purpose and delivered his speech expounding and trying to
convince his thousand of listeners of the advantages to be gained by the
Philippines, should the constitutional amendment granting American citizens
the same rights granted to Filipino nationals be adopted.
Guillen had first intended to use a revolver for the accomplishment of his
purpose, but having lost said firearm, which was duly licensed, he thought of
two hand grenades which were given him by an American soldier in the early
days of the liberation of Manila in exchange for two bottles of whisky. He had
likewise been weighing the chances of killing President Roxas, either by
going to Malacaan, or following his intended victim in the latter's trips to
provinces, for instance, to Tayabas (now Quezon) where the President was
scheduled to speak, but having encountered many difficulties, he decided to
carry out his plan at the pro-parity meeting held at Plaza de Miranda on the
night of March 10, 1947.
On the morning of that he went to the house of Amando Hernandez whom he
requested to prepare for him a document (Exhibit B), in accordance with their
pervious understanding in the preceding afternoon, when they met at the
premises of the Manila Jockey Club on the occasion of an "anti-parity"
meeting held there. On account of its materially in this case, we deem it

proper to quote hereunder the contents of said document. An English

translation (Exhibit B-2) from its original Tagalog reads:
FOR THE SAKE OF A FREE PHILIPPINES
I am the only one responsible for what happened. I conceived it, I
planned it, and I carried it out all by myself alone. It took me many
days and nights pondering over this act, talking to my own
conscience, to my God, until I reached my conclusion. It was my
duty.
I did not expected to live long; I only had on life to spare. And had I
expected to lives to spare, I would not have hesitated either ton
sacrifice it for the sake of a principle which was the welfare of the
people.
Thousands have died in Bataan; many more have mourned the loss
of their husbands, of their sons, and there are millions now suffering.
Their deeds bore no fruits; their hopes were frustrated.
I was told by my conscience and by my God that there was a man to
be blamed for all this: he had deceived the people, he had
astounded them with no other purpose than to entice them; he even
went to the extent of risking the heritage of our future generations.
For these reasons he should not continue any longer. His life would
mean nothing as compared with the welfare of eighteen million souls.
And why should I not give up my life too if only the good of those
eighteen million souls.
These are the reasons which impelled me to do what I did and I am
willing to bear up the consequences of my act. I t matters not if
others will curse me. Time and history will show, I am sure, that I
have only displayed a high degree of patriotism in my performance of
my said act.
Hurrah for a free Philippines.
Cheers for the happiness of every Filipino home.
May God pity on me.
Amen.

JULIO C. GUILLEN

Robles) was acquainted with Julio Guillen for the previous ten years and had
seen each other in the plaza a few moments previous to the explosion.

A copy (Exhibit B-1) of the original in Tagalog (Exhibit B), made at the
request of Guillen by his nephew, was handed to him only at about 6 o'clock
in the afternoon of March 10, 1947, for which reason said Exhibit B-1
appears unsigned, because he was in a hurry for that meeting at Plaza de
Miranda.

The police operatives interrogated Garcia and Robles, and Julio Guillen was,
within two hours after the occurrence, found in his home at 1724 Juan Luna
Street, Manila, brought to the police headquarters and identified by Angel
Garcia, as the same person who hurled towards the platform the object
which exploded and whom Garcia tried to hold when he was running away.

When he reached Plaza de Miranda, Guillen was carrying two hand

grenades concealed in a paper bag which also contained peanuts. He buried
one of the hand grenades (Exhibit D), in a plant pot located close to the
platform, and when he decided to carry out his evil purpose he stood on the
chair on which he had been sitting and, from a distance of about seven
meters, he hurled the grenade at the President when the latter had just
closed his speech, was being congratulated by Ambassador Romulo and
was about to leave the platform.

During the investigation conducted by the police he readily admitted his

responsibility, although at the same time he tried to justify his action in
throwing the bomb at President Roxas. He also indicated to his captors the
place where he had hidden his so called last will quoted above and marked
Exhibit B, which was then unsigned by him and subsequently signed at the
police headquarters.

General Castaeda, who was on the platform, saw the smoking, hissing,
grenade and without losing his presence of mind, kicked it away from the
platform, along the stairway, and towards an open space where the general
thought the grenade was likely to do the least harm; and, covering the
President with his body, shouted to the crowd that everybody should lie
down. The grenade fell to the ground and exploded in the middle of a group
of persons who were standing close to the platform. Confusion ensued, and
the crowd dispersed in a panic. It was found that the fragments of the
grenade had seriously injured Simeon Varela (or Barrela ) who died on the
following day as the result of mortal wounds caused by the fragments of the
grenade (Exhibits F and F-1) Alfredo Eva, Jose Fabio, Pedro Carrillo and
Emilio Maglalang.
Guillen was arrested by members of the Police Department about two hours
after the occurrence. It appears that one Angel Garcia, who was one
spectators at that meeting, saw how a person who was standing next to him
hurled an object at the platform and, after the explosion, ran away towards a
barber shop located near the platform at Plaza de Miranda. Suspecting that
person was the thrower of the object that exploded, Garcia went after him
and had almost succeeded in holding him, but Guillen offered stiff resistance,
got loose from Garcia and managed to escape. Garcia pursued him, but
some detectives, mistaking the former for the real criminal and the author of
the explosion, placed him under arrest. In the meantime, while the City
Mayor and some agents of the Manila Police Department were investigating
the affair, one Manuel Robles volunteered the information that the person
with whom Angel Garcia was wrestling was Julio Guillen; that he (Manuel

Re-enacting the crime (Exhibit C), he pointed out to the police where he had
buried (Exhibit C-1) the other hand grenade (Exhibit D), and, in the presence
of witnesses he signed a statement which contained his answers to question
propounded to him by Major A. Quintos of the Manila Police, who
investigated him soon after his arrest (Exhibit E). From a perusal of his
voluntary statement, we are satisfied that it tallies exactly with the
declarations and made by him on the witness stand during the trial of this
case.
THE ISSUES
In the brief submitted by counsel de oficio for this appellant, several errors
are assigned allegedly committed by the trial court, namely: first, "in finding
the appellant guilty of murder for the death of Simeon Varela"; second, "in
declaring the appellant guilty of the complex crime of murder and multiple
frustrated murder"; third, "in applying sub-section 1 of article 49 of the
Revised Penal Code in determining the penalty to be imposed upon the
accused"; and fourth, "in considering the concurrence of the aggravating
circumstances of nocturnity and of contempt of public authorities in the
commission of crime."
The evidence for the prosecution, supported by the brazen statements made
by the accused, shows beyond any shadow of doubt that, when Guillen
attended that meeting, carrying with him two hand grenades, to put into
execution his preconceived plan to assassinate President Roxas, he knew
fully well that, by throwing one of those two hand grenades in his possession
at President Roxas, and causing it to explode, he could not prevent the
persons who were around his main and intended victim from being killed or

at least injured, due to the highly explosive nature of the bomb employed by
him to carry out his evil purpose.
Guillen, testifying in his own behalf, in answer to questions propounded by
the trial judge (page 96 of transcript) supports our conclusion. He stated that
he performed the act voluntarily; that his purpose was to kill the President,
but that it did not make any difference to him if there were some people
around the President when he hurled that bomb, because the killing of those
who surrounded the President was tantamount to killing the President, in
view of the fact that those persons, being loyal to the President being loyal to
the President, were identified with the latter. In other word, although it was
not his main intention to kill the persons surrounding the President, he felt no
conjunction in killing them also in order to attain his main purpose of killing
the President.
The facts do not support the contention of counsel for appellant that the latter
is guilty only of homicide through reckless imprudence in regard to the death
of Simeon Varela and of less serious physical injuries in regard to Alfredo
Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang, and that he should be
sentenced to the corresponding penalties for the different felonies committed,
the sum total of which shall not exceed three times the penalty to be imposed
for the most serious crime in accordance with article 70 in relation to article
74 of the Revised Penal Code.
In throwing hand grenade at the President with the intention of killing him, the
appellant acted with malice. He is therefore liable for all the consequences of
his wrongful act; for in accordance with article 4 of the Revised Penal Code,
criminal liability is incurred by any person committing felony (delito) although
the wrongful act done be different from that which he intended. In criminal
negligence, the injury caused to another should be unintentional, it being
simply the incident of another act performed without malice. (People vs.
Sara, 55 Phil., 939.) In the words of Viada, "in order that an act may be
qualified as imprudence it is necessary that either malice nor intention to
cause injury should intervene; where such intention exists, the act should
qualified by the felony it has produced even though it may not have been the
intention of the actor to cause an evil of such gravity as that produced.'
(Viada's Comments on the Penal Code, vol. 7, 5th ed., p.7.) And, as held by
this Court, a deliberate intent to do an unlawful act is essentially inconsistent
with the idea of reckless imprudence. (People vs. Nanquil, 43 Phil., 232.)
Where such unlawful act is wilfully done, a mistake in the identity of the
intended victim cannot be considered as reckless imprudence. (People vs.
Gona, 54 Phil., 605)
Squarely on the point by counsel is the following decision of the Supreme
Court of Spain:

Cuestion 62. Se presenta A, a las ocho de la noche, en el estanco

de B a comprar tabaco, y habiendose negado este a darselo al fiado,
se retira a quel sin mediar entre ambos disputa alguna; pero;
trnscurrido un cuarto de hora, hallandose el estanquero
despachando a C, se oye la detonacion de un arma de fuego
disparada por A desde la calle, quedando muertos en el acto C y el
estanquero; supuesta la no intencion en A de matar a C y si solo al
estanquero, cabe calificar la muerte de este de homicidio y la de c
de imprudencia temeraria? La Sala de lo Criminal de la
Auudiencia de Granada lo estimo asi, y condeno al procesado a
catorse anos de reclusion por el homivcidio y a un ao de prision
correctional por la imprudencia. Aparte de que la muerte del
estanquero debio calificarse de assesinato y no de homicidio, por
haberse ejecutado con aleviosa. es evidente que la muerte de C,
suponiendo que no se propusiera ejecutaria el procesado, no pudo
calificarse de imprudencia teme raria, sino que tambien debio
declararsele responsable de la misma, a tenor de lo puesto en este
apartado ultimo del articulo; y que siendo ambas muertes producidas
por un solo hecho, o sea por un solo disparo, debio imponerse al reo
la pena del delito de asesinato en el grado maximo, a tenor de lo
dispuesto en el art. 90 del Codigo, o sea la pena de muerte. Se ve,
pues, claramente que en el antedicha sentencia, aparte de otros
articulos del Codigo, se infringio por la Sala la disposicion de este
apartado ultimo del articulo muy principalmente, y asi lo declaro el
Tribunal Supremo en S. de 18 junio de 1872. (Gaceta de 1,0 de
agosto.) (I Viada, 5th Ed., p. 42.)
Article 48 of the Revised Penal Code provides as follows:
Art. 48. Penalty for Complex Crimes. When a single act
constitutes two or more grave or less grave felonies, or when an
offense is a necessary means for committing the other, the penalty
for the most serious crime shall be imposed, the same to be applied
in its maximum period.
We think it is the above-quoted article and not paragraph 1 of article 49 that
is applicable. The case before us is clearly governed by the first clause of
article 48 because by a single act, that a throwing highly explosive hand
grenade at President Roxas, the accused committed two grave felonies,
namely: (1) murder, of which Simeon Varela was the victim; and (2) multiple
attempted murder, of which President Roxas, Alfredo Eva, Jose Fabio, Pedro
Carrillo and Emilio Maglalang were the injured parties.
The killing of Simeon Varela was attended by the qualifying circumstance of
treachery. In the case of People vs. Mabug-at, supra, this court held that the
qualifying circumstance of treachery may be properly considered, even when

the victim of the attack was not the one whom the defendant intended to kill,
if it appears from the evidence that neither of the two persons could in any
manner put up defense against the attack, or become aware of it. In the
same case it was held that the qualifying circumstance of premeditation may
not be properly taken into the account when the person whom the defendant
proposed to kill was different from the one who became his victim.
There can be no question that the accused attempted to kill President Roxas
by throwing a hand grenade at him with the intention to kill him, thereby
commencing the commission of a felony by over acts, but he did not succeed
in assassinating him "by reason of some cause or accident other than his
own spontaneous desistance." For the same reason we qualify the injuries
caused on the four other persons already named as merely attempted and
not frustrated murder.
In this connection, it should be stated that , although there is abundant proof
that , in violation of the provisions of article 148 of the Revised Penal Code,
the accused Guillen has committed among others the offense of assault
upon a person in authority, for in fact his efforts were directed towards the
execution of his main purpose of eliminating President Roxas for his failure to
redeem his electoral campaign promises, by throwing at him in his official
capacity as the Chief Executive of the nation the hand grenade in question,
yet, in view of the appropriate allegation charging Guillen with the
commission of said offense, we shall refrain making a finding to that effect.
The complex crimes of murder and multiple attempted murder committed by
the accused with the single act of throwing a hand grenade at the President,
was attended by the various aggravating circumstances alleged in the
information, without any mitigating circumstance. But we do not deem it
necessary to consider said aggravating circumstances because in any event
article 48 of the Revised Penal Code above-quoted requires that the penalty
for the most serious of said crimes be applied in its maximum period. The
penalty for murder is reclusion temporalin its maximum period to death. (Art.
248.)
It is our painful duty to apply the law and mete out to the accused the
extreme penalty provided by it upon the facts and circumstances
hereinabove narrated.
The sentence of the trial court being correct, we have no alternative but to
affirm it, and we hereby do so by a unanimous vote. The death sentence
shall be executed in accordance with article 81 of the Revised Penal Code,
under authority of the Director of Prisons, on such working day as the trial
court may fix within 30 days from the date the record shall have been
remanded. It is so ordered.

Moran, C.J., Ozaeta, Paras, Pablo, Bengzon, Padilla, Tuason, Montemayor,

Reyes and Torres, JJ., concur.

22. People vs. Sabalones

FIRST DIVISION

[G.R. No. 123485. August 31, 1998]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLUSAPE

SABALONES alias Roling, ARTEMIO TIMOTEO BERONGA,
TEODULO ALEGARBES and EUFEMIO CABANERO, accused,
ROLUSAPE SABALONES alias Roling and ARTEMIO TIMOTEO
BERONGA, accused-appellants.
DECISION
PANGANIBAN, J.:
Factual findings of trial courts which are affirmed by the Court of
Appeals are, as a general rule, binding and conclusive upon the Supreme
Court. Alibi, on the other hand, cannot prevail over positive identification by
credible witnesses. Furthermore, alleged violations of constitutional rights
during custodial investigation are relevant only when the conviction of the
accused by the trial court is based on the evidence obtained during such
investigation.

The Case
These are the principles relied upon by the Court in resolving this
[1]
[2]
appeal from the Court of Appeals (CA) Decision dated September 28,
1995, convicting Rolusape Sabalones and Timoteo Beronga of murder and
frustrated murder. The convictions arose from a shooting incident on June 1,

1985 in Talisay, Cebu, which resulted in the killing of two persons and the
wounding of three others, who were all riding in two vehicles which were
allegedly ambushed by appellants.
After conducting a preliminary investigation, Second Assistant Provincial
Prosecutor Juanito M. Gabiana Sr. filed before the Regional Trial Court
[3]
(RTC) of Cebu City, Branch 7, five amended Informations charging four
John Does, who were later identified as Rolusape Sabalones, Artemio
Timoteo Beronga, Teodulo Alegarbes and Eufemio Cabanero, with two
counts of murder and three counts of frustrated murder. The Informations are
quoted hereunder.
1) Crim Case No. CBU-9257 for murder:
That on the 1st day of June, 1985, at 11:45 oclock in the evening, more or
less, at Mansueto Village, Bulacao, Municipality of Talisay, Province of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating and mutually helping one another,
armed with high-powered firearms, with intent to kill and treachery, did then
and there wilfully, unlawfully and feloniously attack, assault and shoot
GLENN TIEMPO, who was riding [i]n a jeep and who gave no provocation,
thereby inflicting upon the latter several gunshot wounds, thereby causing his
instantaneous death.
CONTRARY TO Article 248 of the Revised Penal Code.
2) Criminal Case No. 9258 for murder:
That on the 1st day of June, 1985 at 11:45 oclock in the evening, more or
less at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating and mutually
helping one another, armed with high-powered firearms, with intent to kill and
treachery, did [then] and there wilfully, unlawfully and feloniously attack,
assault and shoot ALFREDO NARDO, who was riding on a jeep and who
gave no provocation, thereby inflicting upon the latter several gunshot
wounds, thereby causing his instantaneous death.

Court, the above-named accused conspiring, confederating and mutually

helping one another, armed with high-powered firearms, with intent to kill and
treachery, did and there wilfully, unlawfully and feloniously attack, assault
and shoot REY BOLO who was riding in a car and who gave no provocation,
thereby inflicting upon the latter the following injuries to wit:
laceration, mouth due to gunshot wound, gunshot wound (L) shoulder
penetrating (L) chest; gunshot wound (R) hand (palm); open fracture (L)
clavicle (L) scapula; contusion (L) lung;
thereby performing all the acts of execution which would produce the crime
of [m]urder as a consequence but which, nevertheless, did not produce it by
reason of causes independent of the will of the perpetrator, i.e. the timely
medical attendance.
IN VIOLATION of Article 248 of the Revised Penal Code.
4) Criminal Case No. 9260 for frustrated murder:
That on the 1st day of June, 1985 at 11:45 oclock in the evening, more or
less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused conspiring, confederating and mutually
helping one another, armed with high-powered firearms, with intent to kill and
treachery, did then and there wilfully, unlawfully and feloniously attack,
assault and shoot ROGELIO PRESORES, who was riding in a car and who
gave no provocation, thereby inflicting upon the latter the following injuries, to
wit:
gunshot wound, thru and thru right chest
thereby performing all the acts of execution which would produce the crime
of [m]urder as a consequence but which, nevertheless, did not produce it by
reason of causes independent of the will of the perpetrator, i.e. the timely
medical attendance.
IN VIOLATION of Article 248 of the Revised Penal Code.

CONTRARY TO Article 248 of the Revised Penal Code.

5) Criminal Case No. 9261 for frustrated murder:
3) Crim Case No. CBU-9259 for frustrated murder:
That on the 1st day of June, 1985 at 11:45 oclock in the evening, more or
less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the jurisdiction of this Honorable

That on the 1st day of June, 1985 at 11:45 oclock in the evening, more or
less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused conspiring, confederating and mutually

helping one another, armed with high-powered firearms, with intent to kill and
treachery, did then and there wilfully, unlawfully and feloniously attack,
assault and shoot NELSON TIEMPO, who was riding in a car and who gave
no provocation, thereby inflicting upon the latter the following injuries, to wit:
Gunshot wound neck penetrating wound perforating trachea (cricoid) thereby
performing all the acts of execution which would produce the crime of
[m]urder as a consequence but which nevertheless, did not produce it by
reason of causes independent of the will of the perpetrator, i.e. the timely
medical attendance.
IN VIOLATION of Article 248 of the Revised Penal Code.
Of the four indictees in the five Informations, Teodulo Alegarbes and
Artemio Timoteo Beronga were the first to be arraigned. Upon the arrest of
the two, the Informations were amended by the public prosecutor, with the
conformity of the defense counsel, by substituting the names of the two
accused for the John Does appearing in the original Informations. When
arraigned, said accused, assisted by their respective lawyers, pleaded not
guilty to the five Informations.
Alegarbes died in the course of trial; thus, the cases against him were
dismissed. Accused Cabanero remained at large. Sabalones, on the other
hand, was eventually arrested.Subsequently, he jumped bail but was
recaptured in 1988 and thereafter pleaded not guilty during his arraignment.
The cases against Sabalones and Beronga were jointly
tried. Thereafter, the lower court found them guilty beyond reasonable doubt
of the crimes charged. The RTC disposed as follows:
WHEREFORE, premises above-set forth, the Court finds accused
ROLUSAPE SABALONES and (ARTEMIO) TIMOTEO BERONGA, [g]uilty
beyond reasonable doubt, as principals:
In Crim. Case No. CBU-9257, for MURDER, defined and penalized in Art.
248 of the Revised Penal Code, hereby sentences each said accused to
suffer the penalty of [f]ourteen (14) years, [e]ight (8) months and [o]ne (1)
day, as minimum, to [s]eventeen (17) years, [f]our (4) months and [o]ne (1)
day, of [r]eclusion [t]emporal, as maximum, to indemnify the heirs of
deceased, Glenn Tiempo, the sum of P50,000.00;
In Crim. Case No. CBU-9258, for MURDER, defined and penalized in Art.
248 of the Revised Penal Code, hereby sentences each said accused to
suffer the penalty of [f]ourteen (14) years, [e]ight (8) months and [o]ne (1)
day, as minimum, to [s]eventeen (17) years, [f]our (4) months and [o]ne (1)

day, of [r]eclusion [t]emporal, as maximum, to indemnify the heirs of

deceased, Alfredo Nardo, the sum of P50,000.00;
In Crim. Case No. CBU-9259, for FRUSTRATED MURDER, defined and
penalized in Art. 248 in relation to Art. 50 of the Revised Penal Code, hereby
sentences each said accused to suffer the penalty of [e]ight (8) years
of prision mayor, as minimum, to [f]ourteen (14) years and [e]ight (8) months
of [re]clusion [t]emporal, as maximum, to indemnify the victim, Rey Bolo, the
sum of P20,000.00;
In Crim. Case No. CBU-9260, for FRUSTRATED MURDER, defined and
penalized in Art. 248 in relation to Art. 50 of the Revised Penal Code, hereby
sentences each said accused to suffer the penalty of [e]ight (8) years
of prision mayor, as minimum, to [f]ourteen (14) years and [e]ight months of
[r]eclusion [t]emporal, as maximum, to indemnify the victim, Rogelio
Presores, the sum of P20,000.00;
In Crim. Case no. CBU-9261, for FRUSTRATED MURDER, defined and
penalized in Art. 248 in relation to Art. 50 of the Revised Penal Code, hereby
sentences each said accused to suffer the penalty of [e]ight (8) years
of prision mayor, as minimum, to [f]ourteen (14) years and [e]ight (8) months
of [r]eclusion [t]emporal, as maximum, to indemnify the victim, Nelson
Tiempo, the sum of P20,000.00; and
To pay the costs in all instances. The period of their preventive imprisonment
shall be credited to each accused in full.
SO ORDERED.

[4]

Appellants filed a notice of appeal to the Court of Appeals. Thereafter,

the CA affirmed their conviction but sentenced them to reclusion perpetua for
the murders they were found guilty of. Accordingly, the appellate court,
without entering judgment, certified the case to the Supreme Court in
accordance with Section 13, Rule 124 of the Rules of Court. The dispositive
portion of the CA Decision reads:
WHEREFORE, the Decision of the trial court convicting accused-appellants
Rolusa[p]e Sabalones and Artemio Timoteo Beronga for murder in Crim.
Cases Nos. CBU-9257 and CBU-9258, and [f]rustrated [m]urder in Crim.
Cases Nos. CBU-9259, CBU-9260, and CBU-9261 is hereby AFFIRMED;
however, the penalties in the [f]rustrated [m]urder and [m]urder cases are
hereby MODIFIED, such that both accused-appellants are each sentenced to
imprisonment of TEN (10) YEARS of [p]rision [m]ayor medium as minimum
to SEVENTEEN (17) YEARS and FOUR (4) MONTHS of
[r]eclusion [t]emporal medium as maximum in each of the three [f]rustrated

[m]urder cases (Crim. Cases Nos. CBU-9259, CBU-9260 and CBU-9261);

and are each sentenced to [r]eclusion [p]erpetua in each of the two [m]urder
cases (Crim. Cases Nos. CBU-9257 and CBU-9258). The indemnity to the
victim in each [f]rustrated [m]urder case shall remain. In conformity with Rule
124, Section 13 of the Rules of Court, however, this Court refrains from
entering judgment, and hereby certifies the case and orders that the entire
[5]
record hereof be elevated to the Supreme Court for review.
After the Court of Appeals certified the case to this Court, we required
appellants to file supplemental briefs. Appellants failed to comply within the
prescribed period and were deemed to have waived their right to do
[6]
so. Thus, in resolving this case, this Court will address primarily the
arguments raised by the appellants in their Brief before the Court of Appeals,
which assailed the RTC Decision.

The Facts

Version of the Prosecution

The solicitor general
court:

[7]

quoted the following factual findings of the trial

Edwin Santos, a resident of Mambaling, Cebu City stated that on June 1,

1985 at 6:00 oclock in the evening, he was at the residence of Inday
Presores, sister of Rogelio Presores, located at Rizal Ave., Cebu City to
attend a wedding. He stayed until 9:00 oclock in the evening and proceeded
to the house of Maj. Tiempo at Basak, Mambaling, Cebu City where a small
gathering was also taking place. (pp. 3-6, tsn, April 7, 1987)
Arriving thereat, he saw Nelson and Glenn Tiempo as well as Rogelio
Presores, Rogelio Oliveros, Junior Villoria, Rey Bolo and Alfredo Nardo. (p.
7, ibid.)
At about 11:00 oclock in the evening, Stephen Lim, who was also at the
party, called their group and requested them to push his car. When the
engine started, the former asked them to drive his car home. (pp. 7-11, ibid.)
Together with Nelson Tiempo, who was at the wheel, Rogelio Presores,
Rogelio Oliveros and Junior Villoria, they drove to the residence of Stephen
Lim at Mansueto Compound, Bulacao, Talisay, Cebu. (p. 12, ibid.)

Glenn Tiempo, Rey Bolo and Alfredo Nardo also went with them riding in an
owner-type jeep, driven by the latter, in order to bring back the group [as]
soon as the car of Mr. Lim was parked in his home. (p. 21, ibid.)
The two vehicles traveled in convoy with the jeep 3 to 4 meters ahead of the
car. When they arrived at the gate of the house of Stephen Lim, they were
met with a sudden burst of gunfire.He looked at the direction where the
gunfire came, and saw [the] persons [who] fired at the jeep. He identified
accused, Teodulo Alegarbes, Rolusape Sabalones and Timoteo Beronga as
the persons who fired at the vehicle. Except for Teodulo Alegarbes, who was
naked from [the] waist up, the gunmen wore clothes. (pp. 21-23; 13-16;
33, ibid.)
After firing at the jeep, the assailants shot the car they were riding[,] hitting
Nelson Tiempo on the throat and Rogelio Presores on the breast. Despite
the injury he sustained, Nelson Tiempo was able to maneuver the car back to
their residence. (pp. 17-19, ibid.)
He immediately informed Maj. Tiempo about the incident and the lat[t]er
brought the victims to the Cebu Doctors Hospital. (p. 20, ibid.)
Rogelio Presores corroborated in substance the testimony of Edwin Santos,
being one of those who were in the car driven by Nelson Tiempo to the
residence of Stephen Lim. (pp. 4-6, tsn, Aug. 14, 1987)
He further testified that when the jeep driven by Alfredo Nardo with Rey Bolo
and Glenn Tiempo as passengers arrived at the front gate of Lims residence
and while their car was 3 meters from the rear end of the jeep, there was a
volley of gunfire. He glanced at the direction of the gunfire and saw the jeep
being fired at by four persons, who were standing behind a concrete wall, 42
inches in height, and armed with long firearms. Thenceforth, he saw Alfredo
Nardo, Glenn Tiempo and Rey Bolo f[a]ll to the ground. (pp. 6-7, ibid.)
He recognized accused, Rolusape Sabalones, as one of those who fired at
the jeep. He also identified in Court accused, Teodulo Alegarbes, Timoteo
Beronga and another person, whom he recognized only through his facial
appearance. (pp. 7-8, ibid.)
When the shots were directed [at] their car[,] they were able to bend their
heads low. When the firing stopped, he directed Nelson Tiempo to back out
from the place. As the latter was maneuvering the car, the shooting
continued and he was hit in the breast while Nelson Tiempo, in the neck, and
the windshield of the vehicle was shattered. (p. 10, ibid.)

Arriving at the house of Maj. Tiempo, they were brought to Cebu Doctors
Hospital. He and Nelson Tiempo were operated on. He had incurred hospital
expenses in the sum of P5,412.69, (Exh. I, K). (pp. 11-12, ibid.)
Ladislao Diola, Jr., [m]edico-[l]egal [o]fficer of the PC Crime Laboratory,
Regional Unit 7 stationed at Camp Sotero Cabahug, Cebu City remembered
having performed a post-mortem examination on the dead body of Glenn
Tiempo on June 2, 1985 at the Cosmopolitan Funeral Homes, Cebu City. (p.
7, tsn, Nov. 11, 1987)
He issued the necessary Death Certificate, (Exh. D) and Necropsy Report,
(Exh. F) and indicated therein that the victims cause of death was [c]ardio
respiratory arrest due to [s]hock and [h]emorrhage [s]econdary to [g]unshot
wounds to the trunk. (p. 8, ibid.)
The victim sustained gunshot wounds in the right chest and left lumbar
area. (pp. 10-11, ibid.)

They buried his son, who was then barely 14 years old, at Cebu Memorial
Park and had incurred funeral expenses (Exhs. K, L, O). (pp. 7-8, ibid.)
His other son, Nelson, then 21 years old and a graduate of [m]edical
[t]echology, was admitted at the Cebu Doctors Hospital for gunshot wound in
the neck. The latter survived but could hardly talk as a result of the injuries
he sustained. He had incurred medical and hospitalization expenses in the
sum of P21,594.22, (Exh. H), (pp. 8-10, ibid.)
He had also incurred expenses in connection with the hospitalization of the
injured victims, Rogelio Presores and Rey Bolo in the amount[s]
of P5,412.69, (exh. I) and P9,431.10, (Exh. J), respectively. (p. 11, ibid.)
He further stated that he [was] familiar with the accused, Roling Sabalones,
because the latter had a criminal record in their office in connection with the
kidnapping of a certain Zabate and Macaraya. (p. 16, ibid.)
xxxxxxxxx

He explained that in gunshot wound no. 1, the wound entrance[,] which [was]
characterized by invaginated edges and contusion collar[,] was located in the
right chest and the bullet went up to the left clavicle hitting a bone which
incompletely fractured it causing the navigation of the bullet to the left and to
the anterior side of the body. He recovered a slug, (Exh. G) below the
muscles of the left clavicle. (p. 21, ibid.)
Based on the trajectory of the bullet, the assailant could have been [o]n the
right side of the victim or in front of the victim but [o]n a lower level than the
latter.
In both gunshot wounds, he did not find any powder burns which would
indicate that the muzzle of the gun was beyond a distance of 12 inches from
the target. (p. 15, ibid.)
At the time he conducted the autopsy, he noted that rigor mortis in its early
stage had already set in which denote[s] that death had occurred 5 to 6
hours earlier. (pp. 34-5, ibid.)
Maj. Juan Tiempo, father of the victims, Glenn and Nelson Tiempo, testified
that when he learned about the incident in question, he immediately
summoned military soldiers and together they proceeded to the scene. (pp.
4-6, tsn, Nov. 12, 1988)
Arriving thereat, he saw the lifeless body of his son, Glenn. He immediately
carried him in his arms and rushed him to the hospital but the victim was
pronounced Dead on Arrival. (pp. 6-7,ibid.)

Dr. Jesus P. Cerna, [m]edico-[l]egal [o]fficer of the PC/INP, Cebu

Metrodiscom, had conducted an autopsy on the dead body of Alfredo Nardo,
who sustained two (2) gunshot wounds in the lower lip and left intraclavicular
region, upon the request of the [c]hief of the Homicide Section of Cebu
Metrodiscom. He issued the victims Necropsy Report, (Exh. F) and Death
Certificate, (Exh. G). (pp. 5-8, tsn, Dec. 4, 1987; pp. 4-6, tsn, Nov. 29, 1988)
He stated that the wound of entrance in gunshot wound no. 1 was located in
the lower lip, more or less[,] on the left side making an exit in the left
mandibular region. (pp. 9-11, tsn, Dec. 4, 1987; pp. 6-8, tsn, Nov. 29, 1988)
In gunshot wound no. 2, the wound of entrance was in the left intraclavicular
region exiting at the back as reflected in the sketch, (Exh. F-2). This wound
was fatal and [could] almost cause an instantaneous death considering that
the bullet penetrated the thoracic cavity, lacerating the lungs and perforating
the heart before making an exit. (pp. 11-13, tsn, Dec. 4, 1987; pp. 13-15, tsn,
Nov. 29, 1988)
He found no tattooing around the wound of entrance in both gunshot
wounds. (pp. 8-9, tsn, Nov. 29, 1988)
He prepared and issued th[e] Necropsy Report, (Exh. F) and Death
Certificate, (Exh. G) of Alfredo Nardo who was identified to him by the latters
daughter, Anita Nardo. (pp. 26-27, ibid.)

Rey Bolo, one of the victims, testified that when the jeep he was riding [in]
together with Glenn Tiempo and Alfredo Nardo, reached the gate of the
residence of Stephen Lim, they were suddenly fired upon. (pp. 5-8, tsn,
March 6, 1989)
He was hit in the right palm and left cheek. He jumped out of the vehicle and
ran towards the car which was behind them but he was again shot at [,] [and
hit] in the left scapular region. He was still able to reach the road despite the
injuries he sustained and tried to ask help from the people who were in the
vicinity but nobody dared to help him, [they] simply disappeared from the
scene, instead. (pp. 8-9, ibid.)
He took a passenger jeepney to the city and had himself treated at the Cebu
Doctors Hospital, and incurred medical expenses in the sum
of P9,000.00. (p. 9, ibid.)
He was issued a Medical Certificate, (Exh. N) by his attending physician.
Dr. Miguel Mancao, a [p]hysician-[s]urgeon, recalled having attended [to] the
victims, Nelson Tiempo, Rey Bolo and Rogelio Presores at the Cebu Doctors
Hospital on June 2, 1985. (pp. 7-8, 11, 14, tsn, May 30, 1989)
Nelson Tiempo sustained gunshot wound[s] in the neck and in the right chest
but the bullet did not penetrate the chest cavity but only the left axilla. He was
not able to recover any slugs because the same disintegrated while the other
was thru and thru. The wound could have proved fatal but the victim
miraculously survived. As a consequence of the injury he sustained, Nelson
Tiempo permanently lost his voice because his trachea was shattered. His
only chance of recovery is by coaching and speech therapy. He issued his
Medical Certificate. (Exh. O).(pp. 8-11, ibid.)
With regard to the patient, Rey Bolo, the latter suffered multiple gunshot
wounds in the left shoulder penetrating the chest and fracturing the 2nd, 3rd,
and 4th ribs in the process, in the right hand fracturing the proximal right
thumb and in the mouth lacerating its soft tissues, per Medical Certificate,
(Exh. N) which he issued. (pp. 11-16, ibid.)
Based on the trajectory of the bullet, the gunman could have been in front of
the victim, when gunshot would no. 1 was inflicted. (p. 30, ibid.)
With respect to the patient, Rogelio Presores, the latter suffered [a] gunshot
wound in the chest with the wound of entrance in the right anterior chest
exiting at the back which was slightly lower than the wound of entrance. He
issued the victims Medical Certificate, (Exh. M). (pp. 34-35, ibid.)

Based on the location of the wound, the gunman could have been in front of
the victim but [o]n a slightly higher elevation than the latter. (pp. 35[8]
36, ibid.)

Version of the Defense

Appellants interposed denial and alibi. Their version of the facts is
[9]
summarized by the trial court thus:
xxx Timoteo Beronga, a cristo or bet caller in the cockpit, testified that in the
afternoon of June 1, 1985, he was in the Talisay Sports Complex located at
Tabunok, Talisay, Cebu to attend a cock-derby.
At about 7:00 oclock in the evening, he was fetched by his wife and they left
taking a taxicab going to their residence in Lapulapu City. After passing by
the market place, they took a tricycle and arrived home at 8:00 oclock in the
evening.
After taking his supper with his family, he went home to sleep at 10:30 in the
evening. The following morning, after preparing breakfast, he went back to
sleep until 11:00 in the morning.
On February 24, 1987, while he was playing mahjong at the corner of R.R.
Landon and D. Jakosalem Sts., Cebu City, complainant, Maj. Juan Tiempo
with some companions, arrived and after knowing that he [was] Timmy,
[which was] his nickname, the former immediately held him by the neck.
He ran away but the latter chased him and kicked the door of the house
where he hid. He was able to escape through the back door and took refuge
in Mandaue at the residence of Nito Seno, a driver of Gen. Emilio
Narcissi.(Tsn-Abangan, pp. 4-17, October 19, 1989)
On February 27, 1987, upon the advi[c]e of his friend, they approached Gen.
Narcissi and informed him of the incident. The latter brought him to the
Provincial Command Headquarters in Lahug, Cebu City to confront Maj.
Juan Tiempo.
After several days, he was brought by Maj. Tiempo to the PC Headquarter[s]
in Jones Ave., Cebu City where he was provided with a lawyer to defend him
but he was instructed that he should assent to whatever his lawyer would ask
of him.

He was introduced to Atty. Marcelo Guinto, his lawyer, who made him sign
an Affidavit, (Exh. U) the contents of which, co[u]ched in the dialect, were
read to him.
He also testified that before he was detained at the CPDRC, complainant
brought him inside the shop of a certain Den Ong, where he was again
mauled after he denied having any knowledge of the whereabouts of Roling
Sabalones and the carbine.
At the instance of Col. Medija, he was physically examined at the Southern
Islands Hospital, Cebu City and was issued a [M]edical Certificate. (TsnFormentera, pp. 3-36, Jan. 18, 1990).
Justiniano Cuizon, [a]ccount [o]fficer of the Visayan Electric Company
(VECO) South Extension Office, who is in charge of the billing, disconnection
and reconnection of electric current, testified that based on the entries in their
logbook, (Exh. 3) made by their checker, Remigio Villaver, the electrical
supply at the Mansueto Compound, Bulacao, Talisay, Cebu, particularly the
Mansueto Homeowners covered by Account No. 465-293000-0, (Exh. 4-B)
was disconnected on January 10, 1985, (Exh. 3-A) for non-payment of
electric bills from March 1984 to January 1985 and was reconnected only on
June 17, 1985 (Exh. 4, 4-A). (Tsn-Abangan, pp. 22-27, Jan. 31, 1990).
Remigio Villaver, a checker of VECO, whose area of responsibility cover[ed]
the towns of Talisay and San Fernando, Cebu had kept the record of
disconnection of electrical supply of Mansueto Subdivision in Bulacao,
Talisay, Cebu and the same showed that on January 10, 1985, (Exh. 3-A), a
service order was issued by their office to the Mansueto Homeowners for the
permanent disconnection of their electric lights due to non-payment of their
electric bills from March 1984 until January 1985. The actual disconnection
took place on December 29, 1984.
Witness Fredo Canete made efforts to corroborate their testimony. (TsnFormentera, pp.3-5, Apr. 20, 1990).
Vicente Cabanero, a resident of Mansueto Compound in Talisay, Cebu since
1957 until the present, remembered that on June 1, 1985, between 10:00
oclock and 11:00 oclock in the evening, he heard a burst of gunfire about 15
to 20 armslength [sic] from his residence.
He did not bother to verify because he was scared since the whole place was
in total darkness. (Tsn-Abangan, pp. 18-23, Feb. 22, 1990).
Marilyn Boc, another witness for the accused, stated that on the date and
time of the incident in question, while she was at the wake of Junior

Sabalones, younger brother of Roling Sabalones, who died on May 26, 1985,
a sudden burst of gunfire occurred more or less 60 meters away.
Frightened, she went inside a room to hide and saw accused, Roling
Sabalones, sound asleep.
She came to know accused, Timoteo Beronga, only during one of the
hearings of this case and during the entire period that the body of the late
Junior Sabalones [lay] in state at his residence, she never saw said accused.
She was requested to testify in this case by Thelma Beronga, wife of Timoteo
Beronga. (Tsn-Abangan, pp. 9-13, February 28, 1990).
Dr. Daniel Medina, while then the [r]esident [p]hysician of Southern Islands
Hospital, Cebu City had treated the patient, Timoteo Beronga on March 18,
1987.
Upon examination, he found out that the patient sustained linear abrasion,
linear laceration and hematoma in the different parts of the body. Except for
the linear laceration which he believed to have been inflicted two or three
days prior to [the] date of examination, all the other injuries were already
healed indicating that the same were inflicted 10 to 12 days earlier.
He issued the corresponding Medical Certificate (Exh. 2) to the patient. (TsnAbangan, pp. 9-13, May 21, 1990).
Atty. Jesus Pono, counsel for accused Beronga, mounted the witness stand
and averred that he [was] a resident of Mansueto Compound, Bulacao,
Talisay, Cebu. As shown in the pictures, (Exhs. 3, 4 & 5 with submarkings)
his house is enclosed by a concrete fence about 5 feet 6 inches tall. It is
situated 6 meters from the residence of accused, Roling Sabalones, which
was then being rented by Stephen Lim. Outside the fence [are] shrubs and at
the left side is a lamp post provided with 200 watts fluorescent bulb.
On June 1, 1985 at about 7:00 oclock in the evening, he saw Roling
Sabalones, whom he personally [knew] because they used to be neighbors
in Talisay, Cebu, at the wake of his brother, Federico Sabalones, Jr. or
Junior Sabalones, as mentioned repeatedly hereabout. They even had a talk
and he noticed accused to be physically indisposed being gravely affected by
the loss of his only brother, who met a violent death in the hands of an
unknown hitman on May 26, 1985.
He went home after he saw accused [lie] down on a bamboo bench to rest.

At about 12:00 oclock midnight, he was awakened by a rapid burst of gunfire

which emanated near his house. He did not attempt to go down or look
outside. He [was] in no position to tell whether or not the street light was
lighted.
When he verified the following morning, he noticed bloodstains on the ground
as well as inside the jeep which was parked 2 to 3 meters from his fence and
50 to 70 meters from the house where Junior Sabalones [lay] in state. He
observed that the jeep was riddled with bullets and its windshield shattered.
(Tsn-Abangan, pp. 3-16, June 6, 1990).
He admitted that he used to be a counsel of accused, Roling Sabalones, in
several cases, among which involved the death of a certain Garces and
Macaraya, which cases were however, dismissed by the Office of the
Provincial Fiscal of Cebu. (Tsn-Tumarao, pp. 2-3, June 13, 1990).
Doroteo Ejares, a relative of accused, testified that when he attended the
wake of Junior Sabalones on June 1, 1985 at 8:00 oclock in the evening, he
saw accused lying on a bamboo bench in the yard of the house of the
deceased.

Russo Sabalones, uncle of accused, Sabalones, averred that the latter was
once, one of his undercover agents while he was then the [c]hief of the
Intelligence Service of the PC from 1966 until 1968.
As part of their intelligence tradition, an undercover agent is not allowed to
carry his real name. In the case of his nephew and accused, Rolusape
Sabalones, the latter chose the name Paciano Laput which name was
recorded in their code of names.
When he retired in 1968, the accused ceased to be an agent and xxx
likewise ceased to have the authority to use the name Paciano Laput. (TsnAbangan, p. 12, July 23, 1990).
Alfonso Allere, a distant relative of the accused, remembered having
received a call from Roling Sabalones, one morning after the burial of the
latters brother, asking for his advise because of the threats [to] his life which
he received thru telephone from the group of Nabing Velez and the group of
the military.
After he had advised accused to lie low, he had not heard of him, since then.

At past 10:00 oclock in the evening, accused excused himself as he was not
feeling well and entered a room to rest while he remained by the door and
slept.

Godofredo Mainegro of the Public Assistance and Complaint Action Office of

the Regional Unified Command 7, received a complaint from one Inocencia
Sabalones on March 13, 1986.

At almost 12:00 oclock midnight, he was awakened by a burst of gunfire

which took place more or less 20 meters away and saw the people
scamper[ing] for safety. He hid inside the room where accused was sleeping
and peeped thru the door. Not long after, Marilyn Boc entered and in a low
voice talked about the incident.

He recorded the complaint in their Complaint Sheet, (Exh. 6) and let

complainant affix her signature.

They decided to wake up the accused to inform him of what was happening,
but the latter merely opened his eyes and realizing that accused was too
weak, they allowed him to go back to sleep.
When he went home at past 5:00 oclock in the morning of June 2, 1985, he
saw a jeep outside of the compound. He did not bother to investigate or
inquire about the incident as he was in a hurry to go home and prepare for
the burial of Junior Sabalones.
He was requested to testify in this case by his aunt and mother of accused
Rolusape Sabalones. (Tsn-Tumarao, pp. 10-15, June 13, 1990).

After the document was subscribed and sworn to before him, (Exh. 6-C), he
indorsed it to their [c]ommanding [o]fficer, Apolinario Castano. (TsnFormentera, pp. 3-10, July 24, 1990).
Ret. Col. Apolinario Castano, recalled that while he was then with the
Regional Unified Command 7, his niece, Racquel Sabalones together with
her husband Roling Sabalones, came to him for advi[c]e because the latter
was afraid of his life brought about by the rampant killings of which his
brother and the son of Maj. Tiempo were victims.
Considering that accuseds problem was a police matter, they approached
Gen. Ecarma, the then [c]ommander of the PC/INP, Recom 7, and the latter
referred them to his [c]hief of [s]taff, Col. Roger Denia, who informed them
that there was no case filed against the accused. Nevertheless, the latter
was advised to be careful and consult a lawyer.

Inocencia Sabalones, mother of accused, Roling Sabalones, narrated that on

March 12, 1986 at past 10:00 oclock in the evening, she was roused from
sleep by a shout of a man demanding for Roling Sabalones.

At 8:30 in the morning of June 2, 1985, during the burial of Junior Sabalones,
they were informed by Pedro Cabanero that Roling Sabalones was a suspect
for the death of Nabing Velez and the son of Maj. Tiempo.

Upon hearing the name of her son, she immediately stood up and peeped
through the door of her store and saw men in fatigue uniforms carrying long
firearms. Thenceforth, these men boarded a vehicle and left.

She believed that the reason why her husband was implicated in the killing of
Nabing Velez was because of the slapping incident involving her father-inlaw, Federico Sabalones, Sr. and Nabing Velez which took place prior to the
death of Junior Sabalones.

On the following morning, she was again awakened by the persistent shouts
and pushing of the gate. When she verified, the man who introduced himself
to her as Maj. Tiempo, ordered her to open the gate. Once opened, the men
of Maj. Tiempo entered the house and proceeded to search for Roling
Sabalones, whom Maj. Tiempo suspected to have killed his son and shot
another to near death. When she demanded for a search warrant, she was
only shown a piece of paper but was not given the chance to read its
contents.
Racquel Sabalones, wife of accused, Rolusape Sabalones, maintained that
on June 1, 1985 at 1:00 oclock in the afternoon, she was at the wake of her
brother-in-law, Junior Sabalones, at his residence in Bulacao, Talisay, Cebu.
At 11:00 oclock in the evening of the same day, together with her 3
daughters as well as Marlyn Sabarita, Rose Lapasaran and Gloria Mondejar,
left the place in order to sleep in an unoccupied apartment situated 30
meters away from the house where her deceased, brother-in-law, Junior,
was lying in state, as shown in the Sketch, (Exh. 7 and submarkings)
prepared by her. They brought with them a flashlight because the whole
place was in total darkness.
As they were about to enter the gate leading to her apartment she noticed a
sedan car coming towards them. She waited for the car to come nearer as
she thought that the same belong[ed] to her friend, but the vehicle instead
stopped at the corner of the road, (Exh. 7-F) and then proceeded to the end
portion of Mansueto Compound, (Exh. 7-G). As it moved slowly towards the
highway, she rushed inside the apartment.
Few minutes later, she heard a burst of gunfire outside their gate. She
immediately gathered her children and instructed Marlyn Sabarita to use the
phone situated at the third door apartment and call the police.
After the lull of gunfire, she went to the terrace and saw people in civilian and
in fatigue uniforms with firearms, gathered around the place. One of these
men even asked her about the whereabouts of her husband, whom she left
sleeping in the house of the deceased.

After the funeral, she began to receive mysterious calls at their residence in
Sikatuna St., Cebu City where they began staying since 1978. She also
noticed cars with tinted windows strangely parked in front of their residence.
Frightened and cowed, they decided to seek the advice of Col. Apolinario
Castano, who after relating to him their fears, advised her husband to lie low
and to consult a lawyer.
To allay their apprehension, accused, Roling Sabalones, left Cebu City for
Iligan, Manila and other cities to avoid those who were after him. When she
learned about the threat made by Maj. Tiempo on her husband, she
forewarned the latter not to return to Cebu.
Marlyn Sabarita, an illegitimate daughter of Rolusape Sabalones, stated that
in the night in question, she was at the wake of Junior Sabalones and saw
her Papa Roling, the herein accused, lying on the lawn of the house of the
deceased.
She was already in the apartment with her Mama Racquel when she heard a
burst of gunfire. Upon instructions of the latter, she went out to call the police
thru the phone located [in] the third apartment occupied by a certain Jet.
(Tsn-Tumarao, pp. 3-15, Oct. 15, 1990).
Edward Gutang, [a]sst. lay-out [e]ditor and [a]sst. [s]ports [e]ditor of Sun-Star
Daily, while then a military and police reporter had covered the shooting
incident which took place on June 1, 1985 at the Mansueto Compound,
Bulacao, Talisay, Cebu.
At past 1:00 oclock dawn, together with their newspaper photographer,
Almario Bitang, they went to the crime scene boarding the vehicle of the
Cosmopolitan Funeral Homes. Arriving thereat, they decided not to proceed
inside the compound because of fear. The place was then in complete
darkness.
Upon being informed that the victims were brought to Cebu City Medical
Center, they rushed to the place and met Maj. Tiempo hugging the dead

body of his 14-year old son. His photographer took a picture of that pathetic
scene. (Exh. 8-B).

in the capabilities of the police. The matter was however reported by his
uncle, Ambassador Sabalones, to the authorities.

Samson Sabalones, a retired [a]mbassador and uncle of Rolusape

Sabalones, posted a bail bond for his nephew with Eastern Insurance
Company, when a warrant for his arrest was issued by the Municipal Court,
on March 12, 1986 because he was bothered by the fact that the latter was
being unreasonably hunted by several groups. He even advised the accused
to appear in [c]ourt to clarify the nature of the case filed against him.

He stayed at the wake until 10:00 oclock in the evening because he was not
feeling well. He retired in a small room adjacent to the sala of the house of
the deceased. Not long after, he felt somebody waking him up but he merely
opened his eyes and went back to sleep as he was really exhausted.

Virgincita Pajigal, a resident of Butuan City, met accused, Rolusape

Sabalones, who introduced himself to her as Paciano Laput nicknamed,
Ondo, in a massage clinic where she was working.
For less than a year, they lived together as husband and wife without the
benefit of marriage because according to her the accused was married but
separated from his wife, whose name was never mentioned to her. For such
a short span of time being together, her love for the accused developed to
the extent that whatever happen[ed] to him, she [would] always be there to
defend him.
With the help of Maj. delos Santos, who advised her to always stay close [to]
the accused, she was able to board the same vessel. She saw the latter clad
in green T-shirt, (Exh. 14) and pants, handcuffed and guarded.
Reaching Cebu City, they took a taxicab and as the vehicle went around the
city, she was instructed by Maj. Tiempo to place the towel, (Exh. 15) which
she found inside her bag, on the head of the accused. They stopped at the
Reclamation Area and Maj. Tiempo pulled them out of the vehicle but she
held on tightly to Ondo, ripping his shirt. This pulling incident happened for
several times but complainant failed to let them out of the vehicle.

At 6:30 the following morning, he was roused by his wife so he could prepare
for the burial. He came to know about the burst of gunfire which took place
the previous night upon the information of his wife. He did not take the news
seriously as he was busy preparing for the burial of his deceased brother,
Jun.
The funeral started at past 8:00 oclock in the morning and he noticed the
presence of Maj. Eddie Ricardo and his men, who were sent by Col. Castano
purposely to provide the burial with military security, upon the request of his
wife.
He had a conversation with Maj. Ricardo who inquired about the shooting
incident which resulted in the death of the son of Maj. Tiempo and others in
his company. Also in the course of their conversation, he came to know that
Nabing Velez was killed earlier on that same night in Labangon, Cebu [C]ity.
On the same occasion, Pedro Cabanero also notified him that he was a
suspect in the killing of Nabing Velez, a radio commentator of ferocious
character, who was engaged in a protection racket with several under his
control.

The accused was finally brought to the Provincial Jail while she stayed in the
residence of the accused. She returned to Butuan after a week. (TsnFormentera, pp. 5-33, Jan. 22, 1991).

He remembered that a month prior to the death of Nabing Velez, his father,
Federico Sabalones, Sr. and the deceased while matching their fighting
cocks at the Talisay Sports Complex, had an altercation and the latter
slapped his paralytic father and challenged him to ask one of his sons to
avenge what he had done to him. He came to know about the incident only
after a week.

Accused, Rolusape Sabalones, alias Roling, in his defense, with ancillary

incidental narrations, testified , that on June 1, 1985 at 6:00 oclock in the
evening, he was at the wake of his only brother, Junior Sabalones, who was
killed on May 26, 1985.

He did not deny the fact that he was hurt by the actuation of the deceased for
humiliating his father but it did not occur to him to file a case or take any
action against the deceased because he was too busy with his business and
with his work as a bet caller in the cockpit.

He had no idea as to who was responsible for the killing of his brother
inasmuch as the latter had plenty of enemies. He also did not exert effort to
look into the case and to place it under police authority since he had lost faith

He advised his father to stay in Bohol to avoid further trouble because he

knew that the latter would frequent the cockpit[,] being a cockfight aficionado.

Likewise, during the burial, he was informed by a PC soldier, Roger

Capuyan, that he was also a suspect in the killing of the son of Maj. Tiempo
and even advised him to leave the place.
On the following days after the burial, his wife started to notice cars
suspiciously parked in front of their house and [she] also received mysterious
calls.
Together with his wife, they decided to see Col. Apolinario Castao to seek his
advise. The latter verified from the Cebu Metrodiscom and learned that there
was no case filed against him.
In the evening of June 6, 1985, he left for Iligan and after a month, he
transferred to Ozamis and then to Pagadian. He likewise went to Manila
especially when he learned that his uncle, Samson Sabalones, had arrived
from abroad. The latter posted a bond for his temporary liberty immediately
after being informed that a case was filed against him, before the Municipal
Court of Talisay.
Despite xxx the bond put up by his uncle, he did not return to Cebu City
because it came to his knowledge that Maj. Tiempo inquired from the
bonding company as to his address.
He also stayed in Marikina in the house of his friend and during his stay in
the said place, he registered as a voter and was issued a Voters Affidavit,
(Exh. 19; Exh. R for the prosecution) which bore the name Paciano Mendoza
Laput which [was] his baptismal name. He explained that the name[s]
Mendoza and Laput [were] the middle name and surname, respectively of his
mother. The name Rolusape was given to him by his father and the same
[was] not his registered name because during the old days, priests would not
allow parents to name their children with names not found in the Almanac;
thus, Paciano [was] his chosen name and the same appeared in his
Baptismal Certificate, (Exh. 20) issued by the Parish of the Blessed Trinity of
Talibon, Bohol. In his Birth Certificate, it [was] the name Rolusape which
appeared based upon the data supplied by his father.
He had used the name Paciano during the time when he [was] still a secret
agent under his uncle, Gen. Russo Sabalones, when the latter was still the
[c]hief of the C-2 in 1966 until 1967 and as such, he was issued a firearm. He
likewise used said name at the time he was employed at the Governors
Office in Agusan and when he registered in the Civil Service Commission to
conceal his identity to protect himself from those who were after him.
From Marikina he proceeded to Davao and then to Butuan City where he
was made to campaign for the candidacy of Gov. Eddie Rama. When the

latter won in the election, he was given a job at the Provincial Capitol and
later became an agent of the PC in Butuan using the name, Paciano Laput.
During his stay in Butuan, he met Virgie Pajigal, a manicurist who became
his live-in partner.
On October 23, 1988 while he was at the Octagon Cockpit in Butuan with
Sgt. Tambok, he was arrested by Capt. Ochate and was brought to the PC
Headquarter[s] in Libertad, Butuan City and was detained. Among the papers
confiscated from him was his Identification Card No. 028-88, (Exh. 21) issued
by the PC Command bearing the name Paciano Laput.
On October 26, 1988 he was taken from the City Jail by Capt. Ochate and
some soldiers, one of whom was Maj. Tiempo whom he met for the first time.
On their way to Nasipit to board a vessel bound for Cebu City, Maj. Tiempo
made him lie flat on his belly and stepped on his back and handcuffed
him. He cried in pain because of his sprained shoulder. A certain soldier also
took his watch and ring.
Arriving in Cebu at 7:00 oclock in the morning, he and Virgie Pajigal, who
followed him in the boat, were made to board a taxicab. Maj. Tiempo alighted
in certain place and talked to a certain guy. Thereafter, they were brought to
the Reclamation Area and were forced to go down from the vehicle but Virgie
Pajigal held him tightly. They were again pulled out of the taxi but they
resisted.
From the Capitol Building, they proceeded to CPDRC and on their way
thereto, Maj. Tiempo sat beside him inside the taxi and boxed him on the
right cheek below the ear and pulled his cuffed hands apart.
At the Provincial Jail, he was physically examined by its resident physician,
Dr. Dionisio Sadaya, and was also fingerprinted and photographed, (Exh.
21). He was issued a Medical Certificate, (Exh. 22).
He further stated that he [was] acquainted with his co-accused Timoteo
Beronga, known to him as Timmy being also a bet caller in the cockpit. (TsnFormentera, pp. 5-23, Feb. 26, 1991; Tsn-Abangan, pp. 3-33, Feb. 27, 1991;
Tsn-Abangan, pp. 4-18, Apr. 10, 1991).
As surrebuttal witness, accused Rolusape Sabalones denied that he bribed a
certain soldier because at the time he was arrested, his wallet as well as his
wristwatch and ring worthP2,000.00 each were confiscated and his hands
tied behind his back.

He also denied the allegation of Maj. Tiempo that he offered the latter the
amount of P1,000.000.00 to drop the case against him, the truth being that
while they were on board a vessel bound for Cebu City, Maj. Tiempo
compelled him to tell [who] the real killers of his son [were] because he knew
that he (Rolusape Sabalones) was not responsible. The former also inquired
from him as to the whereabouts of the carbine.

The court a quo erred in finding that accused Sabalones and his friends left
the house where his brother Sabalones Junior was lying in state and went to
their grisly destination amidst the dark and positioned themselves in defense
of his turf against the invasion of a revengeful gang of the supporters of
Nabing Velez.
II

He also rebutted complainants testimony that upon their arrival here in Cebu
City and while on board a taxicab, he directed the former [to] first go around
the city to locate a certain Romeo Cabaero, whom he did not know
[10]
personally.

The court a quo erred in finding that accused Sabalones and his two coaccused were identified as among the four gunmen who fired at the victims.
III

Ruling of the Court of Appeals

Giving full credence to the evidence of the prosecution, the Court of
Appeals affirmed the trial courts Decision convicting appellants of two counts
of murder and three counts of frustrated murder. Like the trial court, it
appreciated the qualifying circumstance of treachery and rejected appellants
defense of alibi.
The Court of Appeals, however, ruled that the penalties imposed by the
trial court were erroneous. Hence, for each count of murder, it sentenced
appellants to reclusion perpetua. For each count of frustrated murder, it
imposed the following penalty: ten years (10) of prision mayor (medium), as
minimum, to seventeen years (17) years and four (4) months of reclusion
temporal (medium), as maximum. Sustaining the trial court, the Court of
Appeals awarded indemnity of P20,000 to each of the victims of frustrated
murder. However, it was silent on the indemnity of P50,000 awarded by the
trial court to the heirs of each of the two deceased.
Having imposed reclusion perpetua on the appellants, the Court of
Appeals, as earlier noted, refrained from entering judgment and certified the
case to the Supreme Court for review, in conformity with Section 13, Rule
124 of the Rules of Court.
Hence, this appeal before this Court.

In his Brief, Appellant Sabalones raised the following errors allegedly

committed by the trial court:
I

IV
The court a quo erred in holding that the instant case is one of aberratio
ictus, which is not a defense, and that the defense of alibi interposed by the
accused may not be considered.
V
The court a quo erred in not finding that the evidence of the prosecution has
not overcome the constitutional presumption of innocence in favor of the
accused.
VI
The court a quo erred in not acquitting the accused on ground of reasonable
doubt.

[11]

The Issues
[12]

The court a quo erred in overlooking or disregarding physical evidence that

would have contradicted the testimony of prosecution witnesses Edwin
Santos and Rogelio Presores that the gunmen were shooting at them from a
standing position.

In a Manifestation dated December 20, 1995, Appellant Beronga, through

[13]
counsel, adopted as his own the Brief of Sabalones.
The foregoing assignment of errors shall be reformulated by the Court into
these three issues or topics: (1) credibility of the witnesses and sufficiency of
the prosecution evidence, (2) defense of denial and alibi, and (3)
characterization of the crimes committed and the penalty therefor.

The Courts Ruling

WITNESS:
A There was a rapid fire in succession.

The appeal is devoid of merit.

Q When you heard this rapid firing, what did you do?
A I tried to look from where the firing came from.

First Issue:

Q After that, what did you find?

A I saw persons firing towards us.

Credibility of Witnesses and Sufficiency of Evidence

Q Where were these persons situated when they were firing towards you?
A Near the foot of the electric post and close to the cemented wall.

Well-entrenched is the tenet that this Court will not interfere with the trial
courts assessment of the credibility of the witnesses, absent any indication or
showing that the trial court has overlooked some material facts or gravely
[14]
abused its discretion, especially where, as in this case, such assessment
is affirmed by the Court of Appeals. As this Court has reiterated often
enough, the matter of assigning values to declarations at the witness stand is
best and most competently performed or carried out by a trial judge who,
unlike appellate magistrates, can weigh such testimony in light of the
[15]
accuseds behavior, demeanor, conduct and attitude at the trial. Giving
credence to the testimonies of the prosecution witnesses, the trial court
concluded:

Q This electric post, was that lighted at that moment?

Stripped of unnecessary verbiage, this Court, given the evidence, finds that
there is more realism in the conclusion based on a keener and realistic
appraisal of events, circumstances and evidentiary facts on record, that the
gun slaying and violent deaths of Glenn Tiempo and Alfredo Nardo, and the
near fatal injuries of Nelson Tiempo, Rey Bolo and Rogelio Presores,
resulted from the felonious and wanton acts of the herein accused for
[16]
mistaking said victims for the persons [who were] objects of their wrath.

Q How long did these persons fire the guns at you?

We stress that factual findings of the lower courts, the trial court and the
Court of Appeals are, as a general rule, binding and conclusive upon the
[17]
Supreme Court. We find nothing in the instant case to justify a reversal or
modification of the findings of the trial court and the Court of Appeals that
appellants committed two counts of murder and three counts of frustrated
murder.
Edwin Santos, a survivor of the assault, positively pointed to and
identified the appellants as the authors of the crime. His categorical and
[18]
straightforward testimony is quoted hereunder:
COURT:
Q You stated there was a gun fired. What happened next?

A Yes, sir, it was lighted.

Q How far were these persons firing, to the place where you were?
A From here to there (The witness indicating the distance by pointing to a
place inside the courtroom, indicating a distance of about 6 to 7
meters, making the witness stand as the point of reference).
Q Were you able to know how many persons fired towards you?
A I only saw 3 to 4 persons.

A Until we went home. The persons were still firing, until we went home.
Q You stated that you saw these persons who were firing at you. Do you
know these persons?
A I can identify [them] when I [see] them.
Q Try to look around this courtroom, if these persons you saw who were
firing at you are present in the courtroom[.]
A Yes, sir.
Q Can you point to these persons?
A Yes, sir.
Q Point at them.
COURT INTERPRETER:
The Court directed the witness to go down from the witness stand and
[point] at them, Beronga and Alegarbes.
FISCAL GABIANA:

I would like to make it of record that on the bench of prisoner, only the two
accused were seated.
COURT:
Make it of record that only two prisoners were present.

Q What happened after that?

A So, I looked, whence the burst of gunfire came from.
Q What did you see from that gunfire?
A I saw 4 persons standing at the back of the fence.

Q Now, Mr. Santos, aside from these two accused you identified as
among those who fired [at] you on that evening, were there other
persons that you saw on that particular occasion who fired at you?

Q What were those 4 persons doing when they were standing at the back
of the fence?

A Yes, sir, there were[;] if I can see them, I can identify them.

A They were bringing long firearms.

Corroborating the foregoing, Rogelio Presores, another survivor, also

pointed to Timoteo Beronga, Teodulo Alegarbes and Roling Sabalones as
[19]
the perpetrators of the crime. His testimony proceeded in this manner:

Q Did you recognize these persons?

A I can clearly recognize one and the 3 persons[.] I can identify them, if I
can see them again.

Q When you arrived at the residence of Stephen Lim, can you remember
of any unusual incident that took place?

Q If you are shown these persons, can you recognize them? Can you
name these persons?

A Yes, sir.

A No, sir. Only their facial appearance.

Q What was that?

Q What about the 3 persons?

A When the jeep arrived, the car was following.

Q What happened next?

A Thats why the 3 persons, I do not know them. I can recognize only their
facial appearance.

A When the jeep was near the gate, the car was following.

Q What about one person?

Q The car was following the jeep, at what distance?

A Yes, sir.

A 3 to 4 meters.

Q What is the name of the person?

Q While the car was following the jeep at that distance of 3 to 4 meters,
what happened?

A Roling Sabalones.

A All of a sudden, we heard the burst of gunfire.

Q If Roling Sabalones is inside the courtroom, can you recognize Roling

Sabalones?

Q From what direction was the gunfire?

A Yes, sir, he is around.

A Through the direction of the jeep.

Q Can you point to Roling Sabalones?

Q After hearing the gunfire, what happened?

A Yes, he is there (The witness pointing to the person who answered the
name of Roling Sabalones).

A We looked at the jeep.

Q What did you see?
A We saw Alfredo Nardo and Glenn Tiempo and Rey Bolo f[a]ll to the
ground. There were only 3.
Q Who was driving the jeep at that time?
A Alfredo Nardo.

Q I would like [you] again to please look around and see, if those persons
whom you know through their faces, if they are here around?
A The two of them (The witness pointing to the 2 persons, who, when
asked, answered that his name [was] Teofilo Beronga and the other
[was] Alegarbes).
Indeed, we have carefully waded through the voluminous records of this
case and the testimonies of all the fifty-nine witnesses, and we find that the

prosecution has presented the required quantum of proof to establish that

appellants are indeed guilty as charged. Appellants arguments, as we shall
now discuss, fail to rebut this conclusion.

Positive Identification
Appellants allege that the two witnesses could not have properly
identified the appellants because, after the first burst of shooting, they both
crouched down, such that they could not have seen the faces of their
assailants. This contention does not persuade. Both eyewitnesses testified
that the firing was not continuous; thus, during a lull in the firing, they raised
their heads and managed a peek at the perpetrators. Edwin Santos testified
as follows:
Atty. Albino, counsel for accused Beronga:
Q You mean to say that when you bent you heard the successive shots,
[and] you again raised your head. Is that correct?
A There were times that the shots were not in succession and continuous
[20]
and that was the time I raised my head again.
Like Santos, Rogelio Presores also stooped down when the firing
started, but he raised his head during a break in the gunfire:
Atty. Albino:
Q So, what did you do when you first heard that one shot?
A So, after the first shot, we looked towards the direction we were facing
and when we heard the second shot, that was the time we stooped
[21]
down.
He further testified:
Atty. Acido: [Counsel for Appellant Sabalones]
Q And you said you stooped down inside the car when you heard the first
firing to the jeep. Is that what you want the Court to understand[?]

Q And that was the first time you saw them?

A Yes, sir.

[22]

The records clearly show that two vehicles proceeded to the house of
Stephen Lim on that fateful day. The first was the jeep where Alfredo Nardo,
Glenn Tiempo and Rey Bolo were riding. About three to four meters behind
was the second car carrying Nelson Tiempo, Guillermo Viloria, Rogelio
Oliveros and the two prosecution witnesses -- Edwin Santos and Rogelio
[23]
Presores. As stated earlier, said witnesses attested to the fact that after
the first volley of shots directed at the jeep, they both looked at the direction
where the shots were coming from, and they saw their friends in the jeep
[24]
falling to the ground, as well as the faces of the perpetrators. It was only
then that a rapid succession of gunshots were directed at them, upon which
they started crouching to avoid being hit.
Hence, they were able to see and identify the appellants, having had a
good look at them after the initial burst of shots. We stress that the normal
reaction of a person is to direct his sights towards the source of a startling
[25]
shout or occurrence. As held in People v. Dolar, the most natural reaction
for victims of criminal violence is to strive to see the looks and faces of their
assailants and to observe the manner in which the crime is committed.
In bolstering their claim that it was impossible for the witnesses to have
identified them, appellants further aver that the crime scene was dark, there
being no light in the lampposts at the time. To prove that the service wire to
the street lamps at the Mansueto Compound was disconnected as early as
December 1984 and reconnected only on June 27, 1985, they presented the
[26]
[27]
[28]
testimonies of Vicente Cabanero, Remigio Villaver, Fredo Canete and
[29]
Edward Gutang. The trial court, however, did not lend weight to said
testimonies, preferring to believe the statement of other prosecution
witnesses that the place was lighted during that time.
The Court of Appeals sustained said findings by citing the testimonies
of defense witnesses. Fredo Canete of the Visayan Electric Company
(VECO), for instance, admitted that it was so easy to connect and disconnect
the lights. He testified thus:
Atty. Kintanar:

Presores:

Q Now, as a cutter, what instruments do you usually use in cutting the

electrical connection of a certain place?

A Yes, sir.

Canete:

Q So, you never saw who fired the successive shots to the car as you
said you stooped down inside the car?

A Pliers and screw driver.

A The bursts of gunfire stopped for a while and that was the time I reared
of [sic] my head.

Q Does it need xxx very sophisticated instruments to disconnect the

lights?
A No, these are the only instruments we use.

Q Ordinary pliers and ordinary screw driver?

A Yes, sir.
Q And does [one] need to be an expert in electronic [sic] in order to
conduct the disconnection?
A No, sir.
Q In other words, Mr. Canete, any ordinary electrician can cut it?
A That is if they are connected with the Visayan Electric Company.
Q What I mean is that, can the cutting be done by any ordinary
electrician?
A Yes, sir.

[30]

Said witness even admitted that he could not recall if he did in fact cut
[31]
the electrical connection of the Mansueto Compound. The Court of
Appeals further noted that none of the above witnesses were at the crime
scene at or about the exact time that the ambush occurred. Thus, none was
in a position to state with absolute certainty that there was allegedly no light
[32]
to illuminate the gunmen when they rained bullets on the victims.
Even assuming arguendo that the lampposts were not functioning at the
time, the headlights of the jeep and the car were more than sufficient to
[33]
illuminate the crime scene. The Court has previously held that the light
from the stars or the moon, an oven, or a wick lamp or gasera can give
[34]
ample illumination to enable a person to identify or recognize another. In
the same vein, the headlights of a car or a jeep are sufficient to enable
eyewitnesses to identify appellants at the distance of 4 to 10 meters.

Extrajudicial Statement of Beronga

Appellants insist that Berongas extrajudicial statement was obtained
through violence and intimidation. Citing the res inter alios acta rule, they
also argue that the said statement is inadmissible against
Sabalones. Specifically, they challenge the trial courts reliance on the
following portions of Berongas statement:
Q After Roling knew that Na[b]ing Velez was killed, have you observed [if]
Roling and his companions prepared themselves for any eventuality?
A It did not take long after we knew that Na[b]ing was killed, somebody
called up by telephone looking for Roling, and this was answered by
Roling but we did not know what they were conversing about and
then Roling went back to the house of Junior after answering the

phone. And after more than two hours, we heard the sound of
engines of vehicles arriving, and then Meo, the man who was told by
Roling to guard, shouted saying: They are already here[;] after that,
Roling came out carrying a carbine accompanied by Tsupe, and not
long after we heard gunshots and because of that we ran towards
the house where the wake was. But before the gun-shots, I heard
Pedring Sabalones father of Roling saying: You clarify, [t]hat you
watch out for mistake[n] in identity, and after that shout, gunshots
followed. [sic] Then after the gun-shots Roling went back inside still
carrying the carbine and shouted: GATHER THE EMPTY SHELLS
AND MEO[,] YOU BRING A FLASHLIGHT, and then I was called by
Meo to help him gather the empty shells of the carbine and also our
third companion to gather the empty shells.
These arguments have no merit. In the first place, it is well to stress that
appellants were convicted based primarily on the positive identification of the
two survivors, Edwin Santos and Rogelio Presores, and not only on the
extrajudicial statement, which merely corroborates the eyewitness
testimonies. Thus, said arguments have no relevance to this case. As the
[35]
Court held in People vs. Tidula: Any allegation of violation of rights during
custodial investigation is relevant and material only to cases in which an
extrajudicial admission or confession extracted from the accused becomes
the basis of their conviction.
In any case, we sustain the trial courts holding, as affirmed by the Court
of Appeals, that the extrajudicial statement of Beronga was executed in
[36]
compliance with the constitutional requirements. Extrajudicial confessions,
especially those which are adverse to the declarants interests are presumed
voluntary, and in the absence of conclusive evidence showing that the
declarants consent in executing the same has been vitiated, such confession
[37]
shall be upheld.
The exhaustive testimony of Sgt. Miasco, who undertook the
investigation, shows that the appellant was apprised of his constitutional
rights to remain silent and to have competent and independent counsel of his
[38]
own choice. Said witness also stated that Beronga was assisted by Atty.
[39]
Marcelo Guinto during the custodial investigation. In fact, Atty. Guinto also
took the witness stand and confirmed that Appellant Beronga was informed
of his rights, and that the investigation was proper, legal and not
objectionable. Indeed, other than appellants bare allegations, there was no
[40]
showing that Berongas statement was obtained by force or duress.
Equally unavailing is appellants reliance on the res inter alios acta rule
under Section 30, Rule 130 of the Rules of Court, which provides:
The act or declaration of a conspirator relating to the conspiracy and during
its existence, may be given in evidence against the co-conspirator after the
conspiracy is shown by evidence other than such act or declaration.

Appellants assert that the admission referred to in the above provision is

considered to be against a co-conspirator only when it is given during the
existence of the conspiracy. They argue that Berongas statement was
made after the termination of the conspiracy; thus, it should not be admitted
and used against Sabalones.

Q This armalite that you saw, - how far was this in relation to the groups
of Sabalones?

The well-settled rule is that the extrajudicial confession of an accused is

binding only upon himself and is not admissible as evidence against his coaccused, it being mere hearsay evidence as far as the other accused are
[41]
concerned. But this rule admits of exception. It does not apply when the
confession, as in this case, is used as circumstantial evidence to show the
[42]
probability of participation of the co-accused in the killing of the victims or
[43]
when the confession of the co-accused is corroborated by other evidence.

Q When you looked xxx through the window and saw there were two
vehicles and there were bursts of gunfire, what happened after that?

Berongas extrajudicial statement is, in fact, corroborated by the

testimony of Prosecution Witness Jennifer Binghoy. Pertinent portions of said
testimony are reproduced hereunder:
Q While you were at the wake of Jun Sabalones and the group were
sitting with Roling Sabalones, what were they doing?
A They were gathered in one table and they were conversing with each
other.
xxxxxxxxx
Q On that same date, time and place, at about 10:00 [i]n the evening, can
you remember if there was unusual incident that took place?
A I heard over the radio at the Sabalones Family that a certain Nabing
Velez was shot.

A There (The witness indicating a distance of about 4 to 5 meters).

ATTY. KINTANAR:

A I did not proceed to look xxx through the window because I stooped
down.
Q When you stooped down, what happened?
A After the burst of gunfire, I again opened the window.
Q And when again you opened the window, what happened?
A I saw two persons going towards the jeep.
Q What transpired next after [you saw] those 2 persons?
A When they arrived there, they nodded their head[s].
Q After that, what happened?
A So, they went back to the direction where they came from, going to the
house of Sabalones.
Q While they were going to the direction of the house of Sabalones, what
transpired?

Q That [a] certain Nabing Velez was shot? What else xxx transpired?

A I saw 5 to 6 persons coming from the highway and looking to the jeep,
and before they reached the jeep, somebody shouted that its ours.

A I observed that their reactions were so queer, - as if they were running.

Q Who shouted?

xxxxxxxxx

A The voice was very familiar to me.

Q In that evening of June 1, 1985, when you went there at the house of
Jun Sabalones, have you seen an armalite?

Q Whose voice?

A Yes, sir.
Q Where did you see this armalite?

Q What else have you noticed during the commotion [when] wives were
advising their husbands to go home?

A At the table where they were conversing.

A They were really in chaos.

Q How many armalites or guns [did you see] that evening in that place?
A Two (2).
xxxxxxxxx

A The voice of Roling Sabalones.

[44]

A careful reading of her testimony buttresses the finding of the trial court
that Rolusape Sabalones and his friends were gathered at one table,
conversing in whispers with each other, that there were two rifles on top of
the table, and that they became panicky after hearing of the death of Nabing
Velez on the radio. Hence, the observation of the trial court that they went to

their grisly destination amidst the dark and positioned themselves in defense
of his turf against the invasion of a revengeful gang of supporters of the
[45]
recently slain Nabing Velez.

Alleged Inconsistencies
Appellants also allege that the prosecution account had inconsistencies
relating to the number of shots heard, the interval between gunshots and the
victims positions when they were killed. These, however, are minor and
inconsequential flaws which strengthen, rather than impair, the credibility of
said eyewitnesses. Such harmless errors are indicative of truth, not
falsehood, and do not cast serious doubt on the veracity and reliability of
[46]
complainants testimony.
Appellants further claim that the relative positions of the gunmen, as
testified to by the eyewitnesses, were incompatible with the wounds
sustained by the victims. They cite the testimony of Dr. Ladislao Diola, who
conducted the autopsy on Glenn Tiempo. He declared that the victim must
necessarily be on a higher level than the assailant, in the light of the path of
the bullet from the entrance wound to where the slug was extracted. This
finding, according to appellant, negates the prosecutions account that the
appellants were standing side by side behind a wall when they fired at the
victims. If standing, appellants must have been on a level higher than that of
the occupants of the vehicles; if beside each other, they could not have
inflicted wounds which were supposed to have come from opposite angles.
We are not persuaded. The defense presumes that the victims were
sitting still when they were fired upon, and that they froze in the same
position during and after the shooting. This has no testimonial foundation. On
the contrary, it was shown that the victims ducked and hid themselves, albeit
in vain, when the firing began. After the first volley, they crouched and tried to
take cover from the hail of bullets. It would have been unnatural for them to
remain upright and still in their seats. Hence, it is not difficult to imagine that
the trajectories of the bullet wounds varied as the victims shifted their
positions. We agree with the following explanation of the Court of Appeals:
The locations of the entry wounds can readily be explained. xxx Glenn
Tiempo, after looking in the direction of the explosion, turned his
body around; and since the ambushers were between the jeep and
the car, he received a bullet in his right chest (wound no. 1) which
traveled to the left. As to wound No. 2, it can be explained by the
spot where Major Tiempo found his fallen son.
Atty. Kintanar:

Q: Upon being informed by these occupants who were ambushed and

[you] were able to return the car, what did you do?
Major Tiempo:
A: I immediately got soldiers and we immediately proceeded to the area
or to the place where my fallen son was located and when we
reached x x x the place, I saw my fallen son [in] a kneeling position
where both knees [were] touching the ground and the toes also and
the forehead was touching towards the ground. (TSN, Feb. 12, 1988,
p. 6)
In such position, the second bullet necessarily traveled upwards in relation to
the body, and thus the entry wound should be lower than the exit
wound. There is no showing that both wounds were inflicted at the same
[47]
time.
In any event, the witnesses saw that the appellants were the gunmen
who were standing side by side firing at them. They could have been in a
different position and in another hiding place when they first fired, but this is
not important. They were present at the crime scene, and they were shooting
their rifles at the victims.

Aberratio Ictus
Appellants likewise accuse the trial court of engaging in conjecture in
ruling that there was aberratio ictus in this case. This allegation does not
advance the cause of the appellants. It must be stressed that the trial court
relied on the concept of aberratio ictus to explain why the appellants staged
the ambush, not to prove that appellants did in fact commit the crimes. Even
assuming that the trial court did err in explaining the motive of the appellants,
this does not detract from its findings, as affirmed by the Court of Appeals
and sustained by this Court in the discussion above, that the guilt of the
appellants was proven beyond reasonable doubt.
In any event, the trial court was not engaging in conjecture in so
ruling. The conclusion of the trial court and the Court of Appeals that the
appellants killed the wrong persons was based on the extrajudicial statement
of Appellant Beronga and the testimony of Jennifer Binghoy. These pieces of
evidence sufficiently show that appellants believed that they were suspected
of having killed the recently slain Nabing Velez, and that they expected his
group to retaliate against them. Hence, upon the arrival of the victims
vehicles which they mistook to be carrying the avenging men of Nabing
Velez, appellants opened fire. Nonetheless, the fact that they were mistaken
does not diminish their culpability. The Court has held that mistake in the

identity of the victim carries the same gravity as when the accused zeroes in
[48]
on his intended victim.
Be that as it may, the observation of the solicitor general on this point is
well-taken. The case is better characterized as error in personae or mistake
in the identity of the victims, rather than aberratio ictus which means mistake
in the blow, characterized by aiming at one but hitting the other due to
imprecision in the blow.

Second Issue:

Denial and Alibi

Appellants decry the lower courts disregard of their defense of alibi. We
disagree. As constantly enunciated by this Court, the established doctrine
requires the accused to prove not only that he was at some other place at the
time of the commission of the crime, but that it was physically impossible for
him at the time to have been present at the locus criminis or its immediate
[49]
vicinity. This the appellants miserably failed to do.
Appellant Beronga testified that, at the time of the incident, he was in his
residence in Lapulapu City, which was not shown to be so remote and
inaccessible that it precluded his presence in Mansueto Subdivision. The
alibi of Sabalones is even more unworthy of belief; he sought to establish
that he was a mere 20-25 meters away from the scene of the crime. He was
allegedly in the house of his brother who was lying in state, which was so
near the ambush site that some of the defense witnesses even testified that
they were terrified by the gunfire.Clearly, appellants failed to establish the
requisites of alibi.
Furthermore, the defense of alibi cannot overcome the positive
[50]
identification of the appellants. As aptly held by this Court in People v.
[51]
Nescio:
Alibi is not credible when the accused-appellant is only a short distance from
the scene of the crime. The defense of alibi is further offset by the positive
identification made by the prosecution witnesses. Alibi, to reiterate a wellsettled doctrine, is accepted only upon the clearest proof that the accusedappellant was not or could not have been at the crime scene when it was
committed.

Flight

Appellants further object to the finding that Sabalones, after the incident,
made himself scarce from the place of commission. He left for Manila, thence
Mindanao on the supposition that he want[ed] to escape from the wrath of
Maj. Tiempo and his men for the death of Glenn Tiempo and the near fatal
shooting of the other son or from the supporters of Nabing Velez. x x xOn his
supposedly borrowed freedom, he jumped bail and hid himself deeper into
Mindanao, under a cloak of an assumed name. Why, did his conscience
[52]
bother him for comfort?
Appellants rationalized that Sabalones was forced to jump bail in order
to escape two groups, who were allegedly out to get him, one of Nabing
Velez and the other of Major Tiempo.Their ratiocination is futile. It is wellestablished that the flight of an accused is competent evidence to indicate his
guilt, and flight, when unexplained, is a circumstance from which an
[53]
inference of guilt may be drawn. It must be stressed, nonetheless, that
appellants were not convicted based on legal inference alone but on the
overwhelming evidence presented against them.

Third Issue:

Crime and Punishment

We agree with the appellate court that accused-appellants are guilty of
murder for the deaths of Glenn Tiempo and Alfredo Nardo. The allegation of
treachery as charged in the Information was duly proven by the
prosecution. Treachery is committed when two conditions concur, namely,
that the means, methods, and forms of execution employed gave the person
attacked no opportunity to defend himself or to retaliate; and that such
means, methods and forms of execution were deliberately and consciously
[54]
adopted by the accused without danger to his person. These requisites
were evidently present when the accused, swiftly and unexpectedly, fired at
the victims who were inside their vehicles and were in no position and
without any means to defend themselves.
The appellate court also correctly convicted them of frustrated murder
for the injuries sustained by Nelson Tiempo, Rey Bolo and Rogelio
Presores. As evidenced by the medical certificates and the testimony of Dr.
Miguel Mancao who attended to the victims, Nelson Tiempo sustained a
neck wound which completely shattered his trachea and rendered him
voiceless, as well as a wound on the right chest which penetrated his axilla
[55]
but not his chest cavity. Rey Bolo sustained three injuries which affected
[56]
his clavicle, ribs and lungs. Rogelio Presores, on the other hand, sustained

an injury to his lungs from a bullet wound which entered his right chest and
[57]
exited through his back.
The wounds sustained by these survivors would have caused their
death had it not been for the timely medical intervention. Hence, we sustain
the ruling of the Court of Appeals that appellants are guilty of three counts of
frustrated murder.
We also uphold the Court of Appeals modification of the penalty for
murder, but not its computation of the sentence for frustrated murder.
For each of the two counts of murder, the trial court imposed the penalty
of fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal (medium), as minimum, to seventeen (17) years, four (4) months
and one (1) day of reclusion temporal (maximum), as maximum. This is
incorrect. Under Article 248 of the Revised Penal Code, the imposable
penalty is reclusion temporal, in its maximum period, to death. There being
no aggravating or mitigating circumstance, aside from the qualifying
circumstance of treachery, the appellate court correctly imposed reclusion
perpetua for murder.
The Court of Appeals, however, erred in computing the penalty for each
of the three counts of frustrated murder. It sentenced appellants to
imprisonment of ten years of prision mayor(medium) as minimum to
seventeen years and four months of reclusion temporal (medium) as
maximum. It modified the trial courts computation of eight (8) years of prision
mayor(minimum), as minimum, to fourteen (14) years and eight (8) months
of reclusion temporal (minimum) as maximum.
Under Article 50 of the Revised Penal Code, the penalty for a frustrated
felony is the next lower in degree than that prescribed by law for the
consummated felony x x x. The imposable penalty for frustrated murder,
therefore, is prision mayor in its maximum period to reclusion temporal in its
[58]
medium period. Because there are no aggravating or mitigating
[59]
circumstance as the Court of Appeals itself held, the penalty prescribed by
law should be imposed in its medium period. With the application of the
Indeterminate Sentence Law, the penalty for frustrated murder should be 8
years of prision mayor (minimum), as minimum, to 14 years and 8 months
of reclusion temporal (minimum) as maximum.
Although the Court of Appeals was silent on this point, the trial court
correctly ordered the payment of P50,000 as indemnity to the heirs of each of
the two murdered victims. In light of current jurisprudence, this amount is
[60]
awarded without need of proof other than the fact of the victims death. The
trial court and the CA, however, erred in awarding indemnity of P20,000 each
to Nelson Tiempo, Rogelio Presores and Rey Bolo. There is no basis,
statutory or jurisprudential, for the award of a fixed amount to victims of
frustrated murder. Hence, they are entitled only to the amounts of actual
expenses duly proven during the trial.

Thus, Nelson Tiempo, who was treated for a gunshot wound on the
neck which shattered his trachea, should be awarded indemnity of
P21,594.22 for his medical expenses. This is evidenced by a statement of
[61]
account from Cebu Doctors Hospital.
Rogelio Presores, who was likewise treated for gunshot wound in the
same hospital, presented a statement of account amounting to P5,412.69 for
[62]
his hospitalization. Hence, he is likewise entitled to indemnity in the said
amount.
Rey Bolo, on the other hand, incurred an expense of P9,431.10 for the
treatment of his gunshot wounds, as evidenced by a statement of account
[63]
from the same hospital. This amount should be awarded to him as
indemnity.
WHEREFORE, the appeal is DENIED and the assailed Decision is
AFFIRMED. However, the penalties are hereby MODIFIED as follows:
1) In Crim. Case No. CBU-9257, for MURDER, the accused-appellants are
each hereby sentenced to reclusion perpetua and to indemnify, jointly and
severally, the heirs of the deceased, Glenn Tiempo, in the sum of P50,000;
2) In Crim. Case No. CBU-9258, for MURDER, the accused-appellants are
each hereby sentenced to reclusion perpetua and to indemnify, jointly and
severally, the heirs of the deceased, Alfredo Nardo, in the sum of P50,000;
3) In Crim. Case No. CBU-9259, for FRUSTRATED MURDER, the accusedappellants are each hereby sentenced to suffer the penalty of 8 years
of prision mayor (minimum), as minimum, to 14 years and 8 months
of reclusion temporal (minimum) as maximum; and to jointly and severally
pay the victim, Rey Bolo, in the sum of P9,431.10 as actual damages;
4) In Crim Case No. CBU-9260, for FRUSTRATED MURDER, the accusedappellants are hereby sentenced to suffer the penalty of 8 years of prision
mayor (minimum), as minimum, to 14 years and 8 months of reclusion
temporal (minimum) as maximum; and to jointly and severally indemnify the
victim, Rogelio Presores, in the sum of P5,412.69 for actual damages;
5) In Crim. Case No. CBU-9261 for FRUSTRATED MURDER, the accusedappellants are hereby sentenced to suffer the penalty of 8 years of prision
mayor (minimum), as minimum, to 14 years and 8 months of reclusion
temporal (minimum) as maximum; and to jointly and severally indemnify the
victim, Nelson Tiempo, in the sum of P21,594.22 as actual damages.

Let copies of this Decision be furnished the Secretary of Interior and

Local Government and the Secretary of Justice so that Accused Eufemio
Cabanero may be brought to justice.
Costs against appellants.
SO ORDERED.
Davide, Jr., (Chairman), Bellosillo, Vitug and Quisumbing, JJ., concur.

23. People vs. Albuquerque

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-38773

December 19, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
GINES ALBURQUERQUE Y SANCHEZ, defendant-appellant.
Gibbs and McDonough and Roman Ozaeta, for appellant.
Office of the Solicitor-General Hilado for appellee.

AVANCEA, 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 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.
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 circumstance 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 circumstances without
any aggravating circumstance, 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.

24. Bataclan vs. Medina

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
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 plaintiffsappellants.
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 circumstances
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 circumstances.
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 zig-zaging, 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 circumstances, 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 copassengers 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 circumstances 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 circumstances 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.
25. Intod vs. CA
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 103119 October 21, 1992

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

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
2
will come back if (sic) you were not injured".
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:
xxx xxx xxx

CAMPOS, JR., J.:

Petitioner, Sulpicio Intod, filed this petition for review of the decision of the
1
Court of Appeals 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

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.
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
3
possible, not impossible.

Article 4, paragraph 2 is an innovation 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
5
liable.
6

This legal doctrine left social interests entirely unprotected. The Revised
Penal Code, inspired by the Positivist School, recognizes in the offender his
7
formidability, 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
9
tendencies.
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
10
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
11
nature one impossible of accomplishment. There must be either
12
impossibility of accomplishing the intended act in order to qualify the act an
impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would
13
not amount to a crime. Thus:
Legal impossibility would apply to those circumstances
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
14
intended act does not amount to a crime.
The impossibility of killing a person already dead

15

falls in this category.

On the other hand, factual impossibility occurs when extraneous

circumstances unknown to the actor or beyond his control prevent the
16
consummation of the intended crime. One example is the man who puts
his hand in the coat pocket of another with the intention to steal the latter's
17
wallet and finds the pocket empty.
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
18
vs. Lee Kong, 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.
19

In the case of Strokes vs. State, 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
circumstance 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.

20

In the case of Clark vs. State, 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.
21

In State vs. Mitchell, 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
22
defense into two categories: legal versus factual impossibility. In U.S.
23
vs. Wilson 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
circumstances 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
24
avoid criminal liability for an attempt. In U.S. vs. Berrigan, 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:
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.

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 circumstances 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.

26. People vs. Saladino

EN BANC

[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
[1]
rape and one (1) attempted rape and sentenced to death. 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 money-changer 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
[2]
penis inside her vagina. 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 vagina. 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, MedicoLegal Officer, revealed that Lourdes had deep healed lacerations at 3:00
oclock and 9:00 oclock positions. Dr. Salen concluded that Lourdes was
[3]
already in a non-virgin state physically.
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 vagina 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
[4]
him, parang tinutukso niya ako. Unable to resist, he gave in to fondling her
[5]
at least once a week, 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 vagina.
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 circumstance 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
[6]
their credibility by their demeanor on the stand. 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
circumstance 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
[7]
tone, reaffirmed her accusations against him.
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
[8]
of a man unjustly accused of a serious offense."
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
[9]
justice for the wrong committed against her. In the absence of evidence of

improper motive on the part of the victim to falsely testify against the
[10]
accused, her testimony deserves credence.
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, accusedappellant 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
[11]
incidents such as rape. 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
[12]
she had been forcibly sexually assaulted.
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
[13]
physical resistance may amount to consent." 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 circumstances, her failure to
shout or offer tenacious resistance did not make voluntary her submission to
[14]
the criminal acts of the accused-appellant. Also, we have held in People v.
[15]
Grefiel 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
[16]
as to make the victim's participation in the sexual act voluntary.
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 complaintaffidavit; (b) Her claim in her complaint-affidavit 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
[17]
cheeks.
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
[18]
is recounting details of a harrowing experience. 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
[19]
crimes shocking to the conscience and numbing to the senses.
However, the lower court erred in imposing the death penalty. In People
[20]
v. Ramos the concurrence of the minority of the victim and her relationship
to the offender, being special qualifying circumstances 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
[21]
cause of the accusation against him. 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
[22]
consummated rape, 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
[23]
jurisprudence. The award of P30,000.00 as moral damages for each count
[24]
of rape is increased to P50,000.00 also consistent with jurisprudence. In
addition, an award of P30,000.00 in exemplary damages is also imposed, the
[25]
relationship between the sex offender and his victim being aggravating. In
the case of attempted rape the P30,000.00 award as moral damages is

[26]

reduced to P15,000.00. 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.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon,
Jr., and Sandoval-Gutierrez, JJ., concur.