Republic of the Philippines named Bataclan, Lara and the Visayan and the woman behind them named
SUPREME COURT Natalia Villanueva, could not get out of the overturned bus. Some of the
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 plaintiffs-
appellants.
Fortunato Jose for defendant and appellant.
MONTEMAYOR, J.:
Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina
Transportation, operated by its owner defendant Mariano Medina under a
certificate of public convenience, left the town of Amadeo, Cavite, on its way to
Pasay City, driven by its regular chauffeur, Conrado Saylon. There were about
eighteen passengers, including the driver and conductor. Among the
passengers were Juan Bataclan, seated beside and to the right of the driver,
Felipe Lara, sated to the right of Bataclan, another passenger apparently from
the Visayan Islands whom the witnesses just called Visaya, apparently not
knowing his name, seated in the left side of the driver, and a woman named
Natalia Villanueva, seated just behind the four last mentioned. At about 2:00
o'clock that same morning, while the bus was running within the jurisdiction of
Imus, Cavite, one of the front tires burst and the vehicle began to zig-zag until it
fell into a canal or ditch on the right side of the road and turned turtle. Some of
the passengers managed to leave the bus the best way they could, others had
to be helped or pulled out, while the three passengers seated beside the driver,
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 co-
passengers who were unable to leave it; that at the time the fire started,
Bataclan, though he must have suffered physical injuries, perhaps serious, was
still alive, and so damages were awarded, not for his death, but for the physical
injuries suffered by him. We disagree. A satisfactory definition of proximate
cause is found in Volume 38, pages 695-696 of American jurisprudence, cited
by plaintiffs-appellants in their brief. It is as follows:
. . . 'that cause, which, in natural and continuous sequence, unbroken
by any efficient intervening cause, produces the injury, and without
which the result would not have occurred.' And more comprehensively,
'the proximate legal cause is that acting first and producing the injury,
either immediately or by setting other events in motion, all constituting a
natural and continuous chain of events, each having a close causal
connection with its immediate predecessor, the final event in the chain
immediately effecting the injury as a natural and probable result of the
cause which first acted, under such 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.
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.
CAMPOS, JR., J.:
Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court
of Appeals 1 affirming in toto the judgment of the Regional Trial Court, Branch
XIV, Oroquieta City, finding him guilty of the crime of attempted murder.
From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos
Tubio and Avelino Daligdig went to Salvador Mandaya's house in Katugasan,
Lopez Jaena, Misamis Occidental and asked him to go with them to the house
of Bernardina Palangpangan. Thereafter, Mandaya and Intod, Pangasian, Tubio
and Daligdig had a meeting with Aniceto Dumalagan. He told Mandaya that he
wanted Palangpangan to be killed because of a land dispute between them and
that Mandaya should accompany the four (4) men, otherwise, he would also be
killed.
At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya,
Pangasian, Tubio and Daligdig, all armed with firearms, arrived at
Palangpangan's house in Katugasan, Lopez Jaena, Misamis Occidental. At the
instance of his companions, Mandaya pointed the location of Palangpangan's
bedroom. Thereafter, Petitioner, Pangasian, Tubio and Daligdig fired at said
room. It turned out, however, that Palangpangan was in another City and her
home was then occupied by her son-in-law and his family. No one was in the
room when the accused fired the shots. No one was hit by the gun fire.
Petitioner and his companions were positively identified by witnesses. One
witness testified that before the five men left the premises, they shouted: "We
will kill you (the witness) and especially Bernardina Palangpangan and we will
come back if (sic) you were not injured". 2
After trial, the Regional Trial Court convicted Intod of attempted murder. The
court (RTC), as affirmed by the Court of Appeals, holding that Petitioner was
guilty of attempted murder. Petitioner seeks from this Court a modification of the
judgment by holding him liable only for an impossible crime, citing Article 4(2) of
the Revised Penal Code which provides:
Art. 4(2). CRIMINAL RESPONSIBILITY. — Criminal
Responsibility shall be incurred:
xxx xxx xxx
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 possible, not
impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks
to remedy the void in the Old Penal Code where:
. . . it was necessary that the execution of the act has been
commenced, that the person conceiving the idea should have
set about doing the deed, employing appropriate means in
order that his intent might become a reality, and finally, that the
result or end contemplated shall have been physically possible.
So long as these conditions were not present, the law and the
courts did not hold him criminally liable. 5
This legal doctrine left social interests entirely unprotected. 6 The Revised Penal
Code, inspired by the Positivist School, recognizes in the offender his
formidability, 7 and now penalizes an act which were it not aimed at something
quite impossible or carried out with means which prove inadequate, would
constitute a felony against person or against property. 8 The rationale of Article
4(2) is to punish such criminal tendencies. 9
Under this article, the act performed by the offender cannot produce an offense
against person or property because: (1) the commission of the offense is
inherently impossible of accomplishment: or (2) the means employed is either
(a) inadequate or (b) ineffectual. 10
That the offense cannot be produced because the commission of the offense is
inherently impossible of accomplishment is the focus of this petition. To be
impossible under this clause, the act intended by the offender must be by its
nature one impossible of accomplishment. 11 There must be either impossibility
of accomplishing the intended act 12 in order to qualify the act an impossible
crime.
Legal impossibility occurs where the intended acts, even if completed, would not
amount to a crime. 13 Thus:
Legal impossibility would apply to those 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 intended act does not
amount to a crime. 14
The impossibility of killing a person already dead 15 falls in this category.
On the other hand, factual impossibility occurs when extraneous circumstances
unknown to the actor or beyond his control prevent the consummation of the
intended crime. 16 One example is the man who puts his hand in the coat pocket
of another with the intention to steal the latter's wallet and finds the pocket
empty. 17
The case at bar belongs to this category. Petitioner shoots the place where he
thought his victim would be, although in reality, the victim was not present in
said place and thus, the petitioner failed to accomplish his end.
One American case had facts almost exactly the same as this one. In People
vs. Lee Kong, 18 the accused, with intent to kill, aimed and fired at the spot
where he thought the police officer would be. It turned out, however, that the
latter was in a different place. The accused failed to hit him and to achieve his
intent. The Court convicted the accused of an attempt to kill. It held that:
 The fact that the officer was not at the spot where the attacking
party imagined where he was, and where the bullet pierced the
roof, renders it no less an attempt to kill. It is well settled
principle of criminal law in this country that where the criminal
result of an attempt is not accomplished simply because of an
obstruction in the way of the thing to be operated upon, and
these facts are unknown to the aggressor at the time, the
criminal attempt is committed.
In the case of Strokes vs. State, 19 where the accused failed to accomplish his
intent to kill the victim because the latter did not pass by the place where he was
lying-in wait, the court held him liable for attempted murder. The court explained
that:
It was no fault of Strokes that the crime was not committed. . . .
It only became impossible by reason of the extraneous
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.
In the case of Clark vs. State, 20 the court held defendant liable for attempted
robbery even if there was nothing to rob. In disposing of the case, the court
quoted Mr. Justice Bishop, to wit:
It being an accepted truth that defendant deserves punishment
by reason of his criminal intent, no one can seriously doubt that
the protection of the public requires the punishment to be
administered, equally whether in the unseen depths of the
pocket, etc., what was supposed to exist was really present or
not. The community suffers from the mere alarm of crime.
Again: Where the thing intended (attempted) as a crime and
what is done is a sort to create alarm, in other words, excite
apprehension that the evil; intention will be carried out, the
incipient act which the law of attempt takes cognizance of is in
reason committed.
In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of
victim's room thinking that the latter was inside. However, at that moment, the
victim was in another part of the house. The court convicted the accused of
attempted murder.
The aforecited cases are the same cases which have been relied upon by
Respondent to make this Court sustain the judgment of attempted murder
against Petitioner. However, we cannot rely upon these decisions to resolve the
issue at hand. There is a difference between the Philippine and the American
laws regarding the concept and appreciation of impossible crimes.
In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided
for impossible crimes and made the punishable. Whereas, in the United States,
the Code of Crimes and Criminal Procedure is silent regarding this matter. What
it provided for were attempts of the crimes enumerated in the said Code.
Furthermore, in said jurisdiction, the impossibility of committing the offense is
merely a defense to an attempt charge. In this regard, commentators and the
cases generally divide the impossibility defense into two categories: legal versus
factual impossibility. 22 In U.S. vs. Wilson 23 the Court held that:
. . . factual impossibility of the commission of the crime is not a
defense. If the crime could have been committed had the
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
avoid criminal liability for an attempt. In U.S. vs. Berrigan, 24 the accused was
indicated for attempting to smuggle letters into and out of prison. The law
governing the matter made the act criminal if done without knowledge and
consent of the warden. In this case, the offender intended to send a letter
without the latter's knowledge and consent and the act was performed.
However, unknown to him, the transmittal was achieved with the warden's
knowledge and consent. The lower court held the accused liable for attempt but
the appellate court reversed. It held unacceptable the contention of the state
that "elimination of impossibility as a defense to a charge of criminal attempt, as
suggested by the Model Penal Code and the proposed federal legislation, is
consistent with the overwhelming modern view". In disposing of this contention,
the Court held that the federal statutes did not contain such provision, and thus,
following the principle of legality, no person could be criminally liable for an act
which was not made criminal by law. Further, it said:
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 of arresto mayor, together with the accessory penalties
provided by the law, and to pay the costs.
SO ORDERED.
Feliciano, Regalado and Nocon, JJ., concur.
Narvasa, C.J., is on leave.
REPUBLIC OF THE PHILIPPINES SUPREME COURT G. R. No. L-3634
Promulgated: May 30, 1951 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
-versusBARTOLO SALADINO and ANASTACIA ALEJO, Defendants-
Appellants. Present: Paras, C.J., Feria, Pablo, Bengzon, Tuason, Montemayor,
Jugo, & Baustista Angelo, JJ. DECISION Bartolo Saladino and Anastacio Alejo
have appealed from two decisions of the court of first instance of Ilocos Norte
convicting them of the murder of Luis Bernabe. Accused in one information, they
asked, and were granted, separate trials. But with their consent, the prosecution
presented its evidence against both at the same time. Bartolo Saladino
submitted his defense first. Judge Manuel F. Barcelona found him guilty and
sentenced him to reclusion perpetua, with the accessories, and to indemnify the
heirs of the deceased in the sum of P6000, without subsidiary imprisonment,
and to pay one half of the costs. Thereafter Anastacio Alejo presented his
witnesses. Rebuttal and sub-rebuttal testimony followed. Judge Antonio
Belmonte, convicted and sentenced him to reclusion perpetua with the
accessories, and to indemnify the heirs of the deceased in the amount of P3000
with subsidiary imprisonment and to pay on half of the costs. In this appeal, the
appellants submitted, by their respective counsel, two briefs, which the Solicitor-
General answered in one. The evidence for the prosecution consisted of
documentary evidence and the testimony of five witnesses: Januaria Corpus,
Dr. Juan Pedro Blanco, Melchor Quevedo, Wilfredo Oaman and Jesus Menor.
These related in substance the following facts and circumstances: In the night of
June 23, 1948 Corporal Bartolo Saladino and Private Anastacia Alejo of the
Philippine Constabulary were resting in the house of Celso Abucay in Paoay,
Ilocos Norte, together with policemen Melchor Quevedo, Wilfredo Osman and
George Plan of that municipality. They had gone on patrol duty to the barrio for
the purpose of apprehending those who on a previous night had fired upon the
dwelling. About midnight they were suddenly awakened by cries for help. They
went down and were approached by one Felix Pasion who reported he had
been robbed, one of the robbers being Luis Bernabe. The next morning,
Saladino and Alejo, accompanied by the policemen proceeded to the house of
Luis Bernabe in Barrio Samac of San Nicolas same province. Having found the
suspect, they brought him, for questioning, to the residence of Felix Pasion in
Barrio Singao same municipality. It was about ten in the morning. As Pasion
reiterated his imputation, Saladino led Bernabe up the house for further
investigation. He was followed by Anastacio Alejo and the policemen. Bernabe
denied the charge. To extract a confession, Saladino repeatedly boxed and
kicked him in different parts of the body. Bernabe continued denying his guilt.
Saladino got a piece of wood, two inched thick and one yard long, and clubbed
him several times on the chest, abdomen and the back. Then he called on Alejo
to take his turn. Alejo reluctantly whipped Bernabe four times with the branch of
a tree, and then retired to the kitchen. Saladino again questioned his prisoner
and as the latter would not admit his culpability, he repeated the severe beating,
and tying Bernabe’s wrists together with a rubber strap, made him stand on a
chair, tied the strap to a beam in the ceiling and then pushed the chair from
under Bernabe with the result that the latter was left hanging in the air. While in
that position Bernabe was cudgeled by Saladino, with the wooden club, on the
sides, armpits, stomach, hips and back. It was at this juncture that policeman
Plan interceded for the victim saying, Stop now corporal. Better bring him to
your headquarters and there you will investigate him”. But Saladino ignored
plea, and resumed the maltreatment, loudly predicting that Bernabe would
confess before noon. After Bernabe had remained suspended for five minutes,
Saladino untied him, made him sit on a chair and urged him to acknowledge his
offense. As Bernabe persisted in his refusal, Saladino kicked the chair and
Bernabe fell on the floor, even as Saladino pouncing on his captive booted him
several times until the latter lay motionless on the floor. “It seems he is dead,”
Policeman Oaman exclaimed. Saladino replied “No, he is only feigning death”
and presently stepped on Bernabe’s throat and chest. Then Saladino let him
alone for fifteen minutes, during which time Bernabe did not stir nor breathe. An
old man approaching Bernabe and taking his pulse said that the man was dead.
Suddenly realizing his predicament, Saladino ordered two civilians to carry
Bernabe down and told Alejo: “shoot him now and we will say that he ran away”.
Complying with the corporal’s order Alejo shot Bernabe four times with his
carbine, after the latter had been laid down flat on his stomach about thirty
meters away from the house. Three days afterwards Bernabe was intered.
Saladino lost no time preparing his defense. On that same day, June 24, he
swore before the assistant fiscal an affidavit stating that, while he was
conversing with Pasion inside the house, Luis Bernabe was downstairs under
the vigilance of Anastacio Alejo; that four shots were suddenly heard; and that
Alejo, it turned out, had fired at Bernabe because the latter had attempted to
escape. We also wrote a joint affidavit of the three policemen corroborating his
own version of the affair. He requested the said officers to sign, and they had
not the courage to decline. However a few days afterwards the fiscal quizzed
Quevedo, and this man gave a different story: one that subsequently accorded
with the account given by the People’s witnesses during the trial. On the witness
stand, Bartolo Saladino stuck to his version, which was corroborated by Felix
Pasion, the man who having charged Luis Bernabe, was indirectly the cause of
the outrage, and who was understandably interested in Saladino’s exoneration.
However it was rejected by the trial judge, correctly we believe, because it was
contradicted (1) by the three policemen who had no reason to falsify (2) by the
nature and direction of the wounds described by the doctor who saw them,
wounds which could not have been inflicted while Bernabe was running away
and (3) by the discovery of one of the bullets embedded in the ground
underneath the corpse of Luis Bernabe. There is no doubt in our minds that this
man is guilty of having cruelly tortured and treacherously caused the death of
Luis Bernabe. On the other hand Anastacio Alejo admitted having whipped and
shot Luis Bernabe upon orders of Saladino, who allegedly backed his command
to shoot by pointing his pistol at Alejo. His attorneys also insist that Luis
Bernabe was already dead when Alejo fired at the corpse. Of course obedience
to the order of a superior official is not an excuse where the order was not for a
lawful purpose. (People v. Bañaga 54 Phil. 247; People v. Moreno 43 Of. Gaz.
4644) Like the trial judge, we do not believe Alejo fired the shots at the point of
Saladino’s gun. We believe the shooting occurred in the manner described by
the prosecution witnesses. Yet the matter of Bernabe’s moment of death is of
grave doubt. Two eye-witnesses who declared for the prosecution, namely,
policemen Quevedo and Oaman repeatedly stated on the witness stand that
after the maltreatment, and before Bernabe was carried downstairs to be shot,
he had already expired. Policeman Jorge Plan, another eye-witness confirming
Alejo’s testimony declared that when Bernabe lay flat on the floor and did not
stir, an old man felt his pulse and pronounced him dead. The medical expert, on
the contrary, asserted that death was due to the loss of blood occasioned by the
three shots that pierced the body of Bernabe. Alejo’s attorney-de-officio made a
thorough analysis of such testimony, pointing out that the medical examination
was superficial, because it took place a few moments before the burial when the
body was already in a “moderately advance state of decomposition”, and that
the conclusion derived by said expert from the amount of blood in the garments
worn by the corpse which he examined were not those worn at the time of the
shooting; second because the cadaver had been embalmed and the stains on
the clothing might have been produced by the embalming fluid that oozed out;
and third because in post-mortem wounds blood comes out too from the blood
vessels. (Angeles, Legal Medicine Sec. 105) All of which raise, at least, a doubt
that Bernabe, was already dead when shot. Such doubt must be resolved in
favor of appellant Alejo. From the foregoing it is plain that Bernabe having died
as a consequence of the violent mauling by Saladino, the latter must be
declared guilty of assassination. Anastacio Alejo does not appear to have
conspired with him, and is not liable either as principal or as accomplice of the
murder. But he is guilty as accessory after the fact for having performed acts
tending to conceal Saladino’s crime by making it appear that Bernabe had run
away. U.S. v. Cuison 20 Phil. 433 is a relevant example. Facundo Balangac was
shot from behind by Private Valentin Fortuna in the cemetery of Barili, Cebu.
“Some hours afterwards, the defendant Cuison with several constabulary
privates, among them Valentin Fortuna, went by order of Lieutenant Poggi to the
place where the body of the deceased lay, and commanded the soldiers to
spread out in skirmish like and discharge their firearms into the air; then the
defendant, with the private Fortunam, went to the house of Epimaco Sosa to ask
him for a dagger to place beside the body of a man whom they had shot,
thereby to give the appearance that the deceased had been carrying a dagger.”
This court declared the defendant Cuison guilty of accessory after the fact
saying: “But we do find criminal liability in the acts performed by Corporal
Cuison, even though he obeyed orders from his Lieutenant, Poggi; such liability
consists in his having intervened subsequently to the commission of the crime,
by furnishing the means to make it appear that the deceased was armed and
that it was necessary to kill him on account of his resistance to the constabulary
man, who, to lend color to such pretended resistance, discharged their firearms
into the air, under the direction of Cuison, at the place there where the corpse
was lying; and also consists in his having tried to find a dagger to place beside
the deceased. Such acts must be characterized as concealment, and since they
are not only wrong but also unlawful, the defendant is not exempt from liability,
even though he acted in obedience to a command from his superior, because
such command was illegal and in conflict with law and justice. Therefore it can
not be alleged that obedience was due, or that it exempts the defendant from
criminal liability.” As accessory after the fact, Alejo is liable to a penalty lower by
two degrees than that prescribed by law for the consummated felony of murder,
namely, prision correctional in its maximum period to prision mayor in its
medium period. (Art. 53 in connection with Art. 248 of the Revised Penal Code.)
Therefore, inasmuch as the penalty imposed on appellant Saladino accords with
the law, the judgment against him is affirmed, with costs. As to appellant Alejo
the appealed decision is revoked and one will be entered sentencing him to
imprisonment for not less than 3 years of prision correctional nor more than six
years and two months, of prision mayor; and in case of insolvency of Saladino
to indemnify the heirs of the deceased in the sum of P6000 without subsidiary
imprisonment in case of his own inability to pay. No costs against this appellant.
So ordered. (SGD) CESAR BENGZON
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 162540 July 13, 2009
GEMMA T. JACINTO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
Before us is a petition for review on certiorari filed by petitioner Gemma T.
Jacinto seeking the reversal of the Decision1 of the Court of Appeals (CA) in CA-
G.R. CR No. 23761 dated December 16, 2003, affirming petitioner's conviction
of the crime of Qualified Theft, and its Resolution2 dated March 5, 2004 denying
petitioner's motion for reconsideration.
Petitioner, along with two other women, namely, Anita Busog de Valencia y
Rivera and Jacqueline Capitle, was charged before the Regional Trial Court
(RTC) of Caloocan City, Branch 131, with the crime of Qualified Theft, allegedly
committed as follows:
That on or about and sometime in the month of July 1997, in Kalookan City,
Metro Manila, and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring together and mutually helping one another, being
then all employees of MEGA FOAM INTERNATIONAL INC., herein represented
by JOSEPH DYHENGCO Y CO, and as such had free access inside the
aforesaid establishment, with grave abuse of trust and confidence reposed upon
them with intent to gain and without the knowledge and consent of the owner
thereof, did then and there willfully, unlawfully and feloniously take, steal and
deposited in their own account, Banco De Oro Check No. 0132649 dated July
14, 1997 in the sum of P10,000.00, representing payment made by customer
Baby Aquino to the Mega Foam Int'l. Inc. to the damage and prejudice of the
latter in the aforesaid stated amount of P10,000.00.
CONTRARY TO LAW.3
The prosecution's evidence, which both the RTC and the CA found to be more
credible, reveals the events that transpired to be as follows.
In the month of June 1997, Isabelita Aquino Milabo, also known as Baby
Aquino, handed petitioner Banco De Oro (BDO) Check Number 0132649
postdated July 14, 1997 in the amount of P10,000.00. The check was payment
for Baby Aquino's purchases from Mega Foam Int'l., Inc., and petitioner was
then the collector of Mega Foam. Somehow, the check was deposited in the
Land Bank account of Generoso Capitle, the husband of Jacqueline Capitle; the
latter is the sister of petitioner and the former pricing, merchandising and
inventory clerk of Mega Foam.
Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a
phone call sometime in the middle of July from one of their customers, Jennifer
Sanalila. The customer wanted to know if she could issue checks payable to the
account of Mega Foam, instead of issuing the checks payable to CASH. Said
customer had apparently been instructed by Jacqueline Capitle to make check
payments to Mega Foam payable to CASH. Around that time, Ricablanca also
received a phone call from an employee of Land Bank, Valenzuela Branch, who
was looking for Generoso Capitle. The reason for the call was to inform Capitle
that the subject BDO check deposited in his account had been dishonored.
Ricablanca then phoned accused Anita Valencia, a former employee/collector of
Mega Foam, asking the latter to inform Jacqueline Capitle about the phone call
from Land Bank regarding the bounced check. Ricablanca explained that she
had to call and relay the message through Valencia, because the Capitles did
not have a phone; but they could be reached through Valencia, a neighbor and
former co-employee of Jacqueline Capitle at Mega Foam.
Valencia then told Ricablanca that the check came from Baby Aquino, and
instructed Ricablanca to ask Baby Aquino to replace the check with cash.
Valencia also told Ricablanca of a plan to take the cash and divide it equally into
four: for herself, Ricablanca, petitioner Jacinto and Jacqueline Capitle.
Ricablanca, upon the advise of Mega Foam's accountant, reported the matter to
the owner of Mega Foam, Joseph Dyhengco.
Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm
that the latter indeed handed petitioner a BDO check for P10,000.00 sometime
in June 1997 as payment for her purchases from Mega Foam.4 Baby Aquino
further testified that, sometime in July 1997, petitioner also called her on the
phone to tell her that the BDO check bounced.5 Verification from company
records showed that petitioner never remitted the subject check to Mega Foam.
However, Baby Aquino said that she had already paid Mega Foam P10,000.00
cash in August 1997 as replacement for the dishonored check. 6
Generoso Capitle, presented as a hostile witness, admitted depositing the
subject BDO check in his bank account, but explained that the check came into
his possession when some unknown woman arrived at his house around the
first week of July 1997 to have the check rediscounted. He parted with his cash
in exchange for the check without even bothering to inquire into the identity of
the woman or her address. When he was informed by the bank that the check
bounced, he merely disregarded it as he didn’t know where to find the woman
who rediscounted the check.
Meanwhile, Dyhengco filed a Complaint with the National Bureau of
Investigation (NBI) and worked out an entrapment operation with its agents. Ten
pieces of P1,000.00 bills provided by Dyhengco were marked and dusted with
fluorescent powder by the NBI. Thereafter, the bills were given to Ricablanca,
who was tasked to pretend that she was going along with Valencia's plan.
On August 15, 2007, Ricablanca and petitioner met at the latter's house.
Petitioner, who was then holding the bounced BDO check, handed over said
check to Ricablanca. They originally intended to proceed to Baby Aquino's place
to have the check replaced with cash, but the plan did not push through.
However, they agreed to meet again on August 21, 2007.
On the agreed date, Ricablanca again went to petitioner’s house, where she
met petitioner and Jacqueline Capitle. Petitioner, her husband, and Ricablanca
went to the house of Anita Valencia; Jacqueline Capitle decided not to go with
the group because she decided to go shopping. It was only petitioner, her
husband, Ricablanca and Valencia who then boarded petitioner's jeep and went
on to Baby Aquino's factory. Only Ricablanca alighted from the jeep and entered
the premises of Baby Aquino, pretending that she was getting cash from Baby
Aquino. However, the cash she actually brought out from the premises was
the P10,000.00 marked money previously given to her by Dyhengco.
Ricablanca divided the money and upon returning to the jeep, gave P5,000.00
each to Valencia and petitioner. Thereafter, petitioner and Valencia were
arrested by NBI agents, who had been watching the whole time.
Petitioner and Valencia were brought to the NBI office where the Forensic
Chemist found fluorescent powder on the palmar and dorsal aspects of both of
their hands. This showed that petitioner and Valencia handled the marked
money. The NBI filed a criminal case for qualified theft against the two and one
Jane Doe who was later identified as Jacqueline Capitle, the wife of Generoso
Capitle.
The defense, on the other hand, denied having taken the subject check and
presented the following scenario.
Petitioner admitted that she was a collector for Mega Foam until she resigned
on June 30, 1997, but claimed that she had stopped collecting payments from
Baby Aquino for quite some time before her resignation from the company. She
further testified that, on the day of the arrest, Ricablanca came to her mother’s
house, where she was staying at that time, and asked that she accompany her
(Ricablanca) to Baby Aquino's house. Since petitioner was going for a pre-natal
check-up at the Chinese General Hospital, Ricablanca decided to hitch a ride
with the former and her husband in their jeep going to Baby Aquino's place in
Caloocan City. She allegedly had no idea why Ricablanca asked them to wait in
their jeep, which they parked outside the house of Baby Aquino, and was very
surprised when Ricablanca placed the money on her lap and the NBI agents
arrested them.
Anita Valencia also admitted that she was the cashier of Mega Foam until she
resigned on June 30, 1997. It was never part of her job to collect payments from
customers. According to her, on the morning of August 21, 1997, Ricablanca
called her up on the phone, asking if she (Valencia) could accompany her
(Ricablanca) to the house of Baby Aquino. Valencia claims that she agreed to
do so, despite her admission during cross-examination that she did not know
where Baby Aquino resided, as she had never been to said house. They then
met at the house of petitioner's mother, rode the jeep of petitioner and her
husband, and proceeded to Baby Aquino's place. When they arrived at said
place, Ricablanca alighted, but requested them to wait for her in the jeep. After
ten minutes, Ricablanca came out and, to her surprise, Ricablanca gave her
money and so she even asked, "What is this?" Then, the NBI agents arrested
them.
The trial of the three accused went its usual course and, on October 4, 1999,
the RTC rendered its Decision, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the Court finds accused Gemma
Tubale De Jacinto y Latosa, Anita Busog De Valencia y Rivera and
Jacqueline Capitle GUILTY beyond reasonable doubt of the crime
ofQUALIFIED THEFT and each of them is hereby sentenced to suffer
imprisonment of FIVE (5) YEARS, FIVE (5) MONTHS AND ELEVEN (11)
DAYS, as minimum, to SIX (6) YEARS, EIGHT (8) MONTHS AND TWENTY
(20) DAYS, as maximum.
SO ORDERED.7
The three appealed to the CA and, on December 16, 2003, a Decision was
promulgated, the dispositive portion of which reads, thus:
IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED, in
that:
(a) the sentence against accused Gemma Jacinto stands;
(b) the sentence against accused Anita Valencia is reduced to 4
months arresto mayor medium.
(c) The accused Jacqueline Capitle is acquitted.
SO ORDERED.
A Partial Motion for Reconsideration of the foregoing CA Decision was filed only
for petitioner Gemma Tubale Jacinto, but the same was denied per Resolution
dated March 5, 2004.
Hence, the present Petition for Review on Certiorari filed by petitioner alone,
assailing the Decision and Resolution of the CA. The issues raised in the
petition are as follows:
1. Whether or not petitioner can be convicted of a crime not charged in
the information;
2. Whether or not a worthless check can be the object of theft; and
3. Whether or not the prosecution has proved petitioner's guilt beyond
reasonable doubt.8
The petition deserves considerable thought.
The prosecution tried to establish the following pieces of evidence to constitute
the elements of the crime of qualified theft defined under Article 308, in relation
to Article 310, both of the Revised Penal Code: (1) the taking of personal
property - as shown by the fact that petitioner, as collector for Mega Foam, did
not remit the customer's check payment to her employer and, instead,
appropriated it for herself; (2) said property belonged to another − the check
belonged to Baby Aquino, as it was her payment for purchases she made; (3)
the taking was done with intent to gain – this is presumed from the act of
unlawful taking and further shown by the fact that the check was deposited to
the bank account of petitioner's brother-in-law; (4) it was done without the
owner’s consent – petitioner hid the fact that she had received the check
payment from her employer's customer by not remitting the check to the
company; (5) it was accomplished without the use of violence or intimidation
against persons, nor of force upon things – the check was voluntarily handed to
petitioner by the customer, as she was known to be a collector for the company;
and (6) it was done with grave abuse of confidence – petitioner is admittedly
entrusted with the collection of payments from customers.
However, as may be gleaned from the aforementioned Articles of the Revised
Penal Code, the personal property subject of the theft must have some
value, as the intention of the accused is to gain from the thing stolen.This
is further bolstered by Article 309, where the law provides that the penalty to be
imposed on the accused is dependent on the value of the thing stolen.
In this case, petitioner unlawfully took the postdated check belonging to Mega
Foam, but the same was apparently without value, as it was subsequently
dishonored. Thus, the question arises on whether the crime of qualified theft
was actually produced.
The Court must resolve the issue in the negative.
Intod v. Court of Appeals9 is highly instructive and applicable to the present
case. In Intod, the accused, intending to kill a person, peppered the latter’s
bedroom with bullets, but since the intended victim was not home at the time, no
harm came to him. The trial court and the CA held Intod guilty of attempted
murder. But upon review by this Court, he was adjudged guilty only of
an impossible crime as defined and penalized in paragraph 2, Article 4, in
relation to Article 59, both of the Revised Penal Code, because of the factual
impossibility of producing the crime. Pertinent portions of said provisions read
as follows:
Article 4(2). Criminal Responsibility. - Criminal responsibility shall be incurred:
xxxx
2. By any person performing an act which would be an offense against persons
or property, were it not for theinherent impossibility of its accomplishment or
on account of the employment of inadequate to ineffectual means. (emphasis
supplied)
Article 59. Penalty to be imposed in case of failure to commit the crime because
the means employed or the aims sought are impossible. - When the person
intending to commit an offense has already performed the acts for the execution
of the same but nevertheless the crime was not produced by reason of the fact
that the act intended was by its nature one of impossible accomplishment or
because the means employed by such person are essentially inadequate to
produce the result desired by him, the court, having in mind the social danger
and the degree of criminality shown by the offender, shall impose upon him the
penalty of arresto mayor or a fine ranging from 200 to 500 pesos.
Thus, the requisites of an impossible crime are: (1) that the act performed would
be an offense against persons or property; (2) that the act was done with evil
intent; and (3) that its accomplishment was inherently impossible, or the means
employed was either inadequate or ineffectual. The aspect of the inherent
impossibility of accomplishing the intended crime under Article 4(2) of the
Revised Penal Code was further explained by the Court in Intod10 in this wise:
Under this article, the act performed by the offender cannot produce an offense
against persons or property because: (1) the commission of the offense is
inherently impossible of accomplishment; or (2) the means employed is either
(a) inadequate or (b) ineffectual.
That the offense cannot be produced because the commission of the offense is
inherently impossible of accomplishment is the focus of this petition. To be
impossible under this clause, the act intended by the offender must be by its
nature one impossible of accomplishment. There must be either (1) legal
impossibility, or (2) physical impossibility of accomplishing the intended act in
order to qualify the act as an impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would not
amount to a crime.
 xxxx
The impossibility of killing a person already dead falls in this category.
On the other hand, factual impossibility occurs when extraneous circumstances
unknown to the actor or beyond his control prevent the consummation of the
intended crime. x x x 11
In Intod, the Court went on to give an example of an offense that involved
factual impossibility, i.e., a man puts his hand in the coat pocket of another with
the intention to steal the latter's wallet, but gets nothing since the pocket is
empty.
Herein petitioner's case is closely akin to the above example of factual
impossibility given in Intod. In this case, petitioner performed all the acts to
consummate the crime of qualified theft, which is a crime against property.
Petitioner's evil intent cannot be denied, as the mere act of unlawfully taking the
check meant for Mega Foam showed her intent to gain or be unjustly enriched.
Were it not for the fact that the check bounced, she would have received the
face value thereof, which was not rightfully hers. Therefore, it was only due to
the extraneous circumstance of the check being unfunded, a fact unknown to
petitioner at the time, that prevented the crime from being produced. The thing
unlawfully taken by petitioner turned out to be absolutely worthless, because the
check was eventually dishonored, and Mega Foam had received the cash to
replace the value of said dishonored check.1avvphi1
The fact that petitioner was later entrapped receiving the P5,000.00 marked
money, which she thought was the cash replacement for the dishonored check,
is of no moment. The Court held in Valenzuela v. People12 that under the
definition of theft in Article 308 of the Revised Penal Code, "there is only one
operative act of execution by the actor involved in theft ─ the taking of personal
property of another." Elucidating further, the Court held, thus:
x x x Parsing through the statutory definition of theft under Article 308, there is
one apparent answer provided in the language of the law — that theft is already
"produced" upon the "tak[ing of] personal property of another without the latter’s
consent."
xxxx
x x x when is the crime of theft produced? There would be all but certain
unanimity in the position that theft is produced when there is deprivation of
personal property due to its taking by one with intent to gain. Viewed from that
perspective, it is immaterial to the product of the felony that the offender, once
having committed all the acts of execution for theft, is able or unable to freely
dispose of the property stolen since the deprivation from the owner alone has
already ensued from such acts of execution. x x x
xxxx
x x x we have, after all, held that unlawful taking, or apoderamiento, is deemed
complete from the moment the offender gains possession of the thing, even if
he has no opportunity to dispose of the same. x x x
x x x Unlawful taking, which is the deprivation of one’s personal property, is the
element which produces the felony in its consummated stage. x x x 13
From the above discussion, there can be no question that as of the time that
petitioner took possession of the check meant for Mega Foam, she had
performed all the acts to consummate the crime of theft, had it not been
impossible of accomplishment in this case. The circumstance of petitioner
receiving the P5,000.00 cash as supposed replacement for the dishonored
check was no longer necessary for the consummation of the crime of qualified
theft. Obviously, the plan to convince Baby Aquino to give cash as replacement
for the check was hatched only after the check had been dishonored by the
drawee bank. Since the crime of theft is not a continuing offense, petitioner's act
of receiving the cash replacement should not be considered as a continuation of
the theft. At most, the fact that petitioner was caught receiving the marked
money was merely corroborating evidence to strengthen proof of her intent to
gain.
Moreover, the fact that petitioner further planned to have the dishonored check MORELAND, J.:
replaced with cash by its issuer is a different and separate fraudulent scheme.
Unfortunately, since said scheme was not included or covered by the allegations We believe that the accused is guilty of frustrated murder.
in the Information, the Court cannot pronounce judgment on the accused;
otherwise, it would violate the due process clause of the Constitution. If at all,
We are satisfied that there was an intent to kill in this case. A deadly weapon
that fraudulent scheme could have been another possible source of criminal
was used. The blow was directed toward a vital part of the body. The aggressor
liability.
stated his purpose to kill, thought he had killed, and threw the body into the
bushes. When he gave himself up he declared that he had killed the
IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the complainant.
Court of Appeals, dated December 16, 2003, and its Resolution dated March 5,
2004, are MODIFIED. Petitioner Gemma T. Jacinto is found GUILTY of
There was alevosia to qualify the crime as murder if death had resulted. The
an IMPOSSIBLE CRIME as defined and penalized in Articles 4, paragraph 2,
accused rushed upon the girl suddenly and struck her from behind, in part at
and 59 of the Revised Penal Code, respectively. Petitioner is sentenced to least, with a sharp bolo, producing a frightful gash in the lumbar region and
suffer the penalty of six (6) months of arrresto mayor, and to pay the costs.
slightly to the side eight and one-half inches long and two inches deep, severing
all of the muscles and tissues of that part.
SO ORDERED.
The motive of the crime was that the accused was incensed at the girl for the
DIOSDADO M. PERALTA reason that she had theretofore charged him criminally before the local officials
Associate Justice with having raped her and with being the cause of her pregnancy. He was her
mother's querido and was living with her as such at the time the crime here
Republic of the Philippines charged was committed.
SUPREME COURT
Manila That the accused is guilty of some crime is not denied. The only question is the
precise crime of which he should be convicted. It is contended, in the first place,
EN BANC that, if death has resulted, the crime would not have been murder but homicide,
and in the second place, that it is attempted and not frustrated homicide.
G.R. No. L-12155 February 2, 1917
As to the first contention, we are of the opinion that the crime committed would
THE UNITED STATES, plaintiff-appellee, have been murder if the girl had been killed. It is qualified by the circumstance
vs. of alevosia, the accused making a sudden attack upon his victim from the rear,
PROTASIO EDUAVE, defendant-appellant. or partly from the rear, and dealing her a terrible blow in the back and side with
his bolo. Such an attack necessitates the finding that it was made treacherously;
Manuel Roxas for appellant. and that being so the crime would have been qualified as murder if death had
Attorney-General Avanceña for appellee. resulted.
As to the second contention, we are of the opinion that the crime was frustrated
and not attempted murder. Article 3 of the Penal Code defines a frustrated
felony as follows:
A felony is frustrated when the offender performs all the acts of
execution which should produce the felony as a consequence, but
which, nevertheless, do not produce it by reason of causes independent
of the will of the perpetrator.
An attempted felony is defined thus:
There is an attempt when the offender commences the commission of
the felony directly by overt acts, and does not perform all the acts of
execution which constitute the felony by reason of some cause or
accident other than his own voluntarily desistance.
The crime cannot be attempted murder. This is clear from the fact that the
defendant performed all of the acts which should have resulted in the
consummated crime and voluntarily desisted from further acts. A crime cannot
be held to be attempted unless the offender, after beginning the commission of
the crime by overt acts, is prevented, against his will, by some outside cause
from performing all of the acts which should produce the crime. In other words,
to be an attempted crime the purpose of the offender must be thwarted by a
foreign force or agency which intervenes and compels him to stop prior to the
moment when he has performed all of the acts which should produce the crime
as a consequence, which acts it is his intention to perform. If he has performed
all of the acts which should result in the consummation of the crime
and voluntarily desists from proceeding further, it can not be an attempt. The
essential element which distinguishes attempted from frustrated felony is that, in
the latter, there is no intervention of a foreign or extraneous cause or agency
between the beginning of the commission of the crime and the moment when all
of the acts have been performed which should result in the consummated crime;
while in the former there is such intervention and the offender does not arrive at
the point of performing all of the acts which should produce the crime. He is
stopped short of that point by some cause apart from his voluntary desistance.
To put it in another way, in case of an attempt the offender never passes the
subjective phase of the offense. He is interrupted and compelled to desist by the
intervention of outside causes before the subjective phase is passed.
On the other hand, in case of frustrated crimes the subjective phase is
completely passed. Subjectively the crime is complete. Nothing interrupted the
offender while he was passing through the subjective phase. The crime,
however, is not consummated by reason of the intervention of causes
independent of the will of the offender. He did all that was necessary to commit
the crime. If the crime did not result as a consequence it was due to something
beyond his control.
The subjective phase is that portion of the acts constituting the crime included
between the act which begins the commission of the crime and the last act
performed by the offender which, with the prior acts, should result in the
consummated crime. From that time forward the phase is objective. It may also
be said to be that period occupied by the acts of the offender over which he has
control — that period between the point where he begins and the points where
he voluntarily desists. If between these two points the offender is stopped by
reason of any cause outside of his own voluntary desistance, the subjective
phase has not been passed and it is an attempt. If he is not so stopped but
continues until he performs the last act, it is frustrated.
That the case before us is frustrated is clear.
The penalty should have been thirteen years of cadena temporal there being
neither aggravating nor mitigating circumstance. As so modified, the judgment is
affirmed with costs. So ordered.
Torres and Araullo, JJ., concur.
Carson and Trent, JJ., concur in the result.
Republic of the Philippines
SUPREME COURT
Manila
 FIRST DIVISION
G.R. No. 166326 January 25, 2006
ESMERALDO RIVERA, ISMAEL RIVERA, EDGARDO RIVERA, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
CALLEJO, SR., J.:
This is a petition for review of the Decision1 of the Court of Appeals (CA) in CA-
G.R. CR No. 27215 affirming, with modification, the Decision2 of the Regional
Trial Court (RTC) of Cavite, Branch 90, in Criminal Case No. 6962-99,
entitled People of the Philippines. v. Esmeraldo Rivera, et al.
On April 12, 1999, an Information was filed in the RTC of Imus, Cavite, charging
Esmeraldo, Ismael and Edgardo, all surnamed Rivera, of attempted murder.
The accusatory portion of the Information reads:
That on or about the 3rd day of May 1998, in the Municipality of Dasmariñas,
Province of Cavite, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating and mutually
helping one another, with intent to kill, with treachery and evident premeditation,
did then and there, wilfully, unlawfully, and feloniously attack, assault and hit
with a piece of hollow block, one RUBEN RODIL who thereby sustained a non-
mortal injury on his head and on the different parts of his body, the accused thus
commenced the commission of the felony directly by overt acts, but failed to
perform all the acts of execution which would produce the crime of Murder by
reason of some causes other than their own spontaneous desistance, that is,
the said Ruben Rodil was able to ran (sic) away and the timely response of the
policemen, to his damage and prejudice.
CONTRARY TO LAW.3
Ruben Rodil testified that he used to work as a taxi driver. He stopped driving in
April 1998 after a would-be rapist threatened his life. He was even given a
citation as a Bayaning Pilipino by the television network ABS-CBN for saving the
would-be victim. His wife eked out a living as a manicurist. They and their three
children resided in Barangay San Isidro Labrador II, Dasmariñas, Cavite, near
the house of Esmeraldo Rivera and his brothers Ismael and Edgardo.
At noon of May 2, 1998, Ruben went to a nearby store to buy food. Edgardo
mocked him for being jobless and dependent on his wife for support. Ruben
resented the rebuke and hurled invectives at Edgardo. A heated exchange of
words ensued.
At about 7:30 p.m. the next day, a Sunday, Ruben went to the store to buy food
and to look for his wife. His three-year-old daughter was with him. Momentarily,
Esmeraldo and his two brothers, Ismael and Edgardo, emerged from their
house and ganged up on Ruben. Esmeraldo and Ismael mauled Ruben with fist
blows and he fell to the ground. In that helpless position, Edgardo hit Ruben
three times with a hollow block on the parietal area. Esmeraldo and Ismael
continued mauling Ruben. People who saw the incident shouted: "Awatin sila!
Awatin sila!" Ruben felt dizzy but managed to stand up. Ismael threw a stone at
him, hitting him at the back. When policemen on board a mobile car arrived,
Esmeraldo, Ismael and Edgardo fled to their house.
Ruben was brought to the hospital. His attending physician, Dr. Lamberto
Cagingin, Jr., signed a medical certificate in which he declared that Ruben
sustained lacerated wounds on the parietal area, cerebral concussion or
contusion, hematoma on the left upper buttocks, multiple abrasions on the left
shoulder and hematoma periorbital left.4 The doctor declared that the lacerated
wound in the parietal area was slight and superficial and would heal from one to
seven days.5 The doctor prescribed medicine for Ruben’s back pain, which he
had to take for one month.6
Esmeraldo testified that at around 1:00 p.m. on May 3, 1998, Ruben arrived at
his house and banged the gate. Ruben challenged him and his brothers to come
out and fight. When he went out of the house and talked to Ruben, the latter
punched him. They wrestled with each other. He fell to the ground. Edgardo
arrived and pushed Ruben aside. His wife arrived, and he was pulled away and
brought to their house.
For his part, Ismael testified that he tried to pacify Ruben and his brother
Esmeraldo, but Ruben grabbed him by the hair. He managed to free himself
from Ruben and the latter fled. He went home afterwards. He did not see his
brother Edgardo at the scene.
Edgardo declared that at about 1:00 p.m. on May 3, 1998, he was throwing
garbage in front of their house. Ruben arrived and he went inside the house to
avoid a confrontation. Ruben banged the gate and ordered him to get out of
their house and even threatened to shoot him. His brother Esmeraldo went out
of their house and asked Ruben what the problem was. A fist fight ensued.
Edgardo rushed out of the house and pushed Ruben aside. Ruben fell to the
ground. When he stood up, he pulled at Edgardo’s shirt and hair, and, in the
process, Ruben’s head hit the lamp post.7
On August 30, 2002, the trial court rendered judgment finding all the accused
guilty beyond reasonable doubt of frustrated murder. The dispositive portion of
the decision reads:
WHEREFORE, premises considered, all the accused are found GUILTY beyond
reasonable doubt and are sentenced to an imprisonment of six (6) years and
one (1) day to eight (8) years of prision mayor as the prosecution has proved
beyond reasonable doubt the culpability of the accused. Likewise, the accused
are to pay, jointly and severally, civil indemnity to the private complainant in the
amount of P30,000.00.
SO ORDERED.8
The trial court gave no credence to the collective testimonies of the accused
and their witnesses. The accused appealed to the CA, which rendered judgment
on June 8, 2004 affirming, with modification, the appealed decision. The
dispositive portion of the CA decision reads:
WHEREFORE, the Decision of the Regional Trial Court of Imus, Cavite, Branch
90, is MODIFIED in that the appellants are convicted of ATTEMPTED MURDER
and sentenced to an indeterminate penalty of 2 years of prision correccional as
minimum to 6 years and 1 day of prision mayor as maximum. In all other
respects, the decision appealed from is AFFIRMED.
SO ORDERED.9
The accused, now petitioners, filed the instant petition for review on certiorari,
alleging that the CA erred in affirming the RTC decision. They insist that the
prosecution failed to prove that they had the intention to kill Ruben when they
mauled and hit him with a hollow block. Petitioners aver that, based on the
testimony of Dr. Cagingin, Ruben sustained only a superficial wound in the
parietal area; hence, they should be held criminally liable for physical injuries
only. Even if petitioners had the intent to kill Ruben, the prosecution failed to
prove treachery; hence, they should be held guilty only of attempted homicide.
On the other hand, the CA held that the prosecution was able to prove
petitioners’ intent to kill Ruben:
On the first assigned error, intent to kill may be deduced from the nature of the
wound inflicted and the kind of weapon used. Intent to kill was established by
victim Ruben Rodil in his testimony as follows:
Q: And while you were being boxed by Esmeraldo and Bong, what happened
next?
A: When I was already lying [down] xxx, Dagol Rivera showed up with a piece of
hollow block xxx and hit me thrice on the head, Sir.
Q: And what about the two (2), what were they doing when you were hit with a
hollow block by Dagol?
A: I was already lying on the ground and they kept on boxing me while Dagol
was hitting, Sir.
As earlier stated by Dr. Cagingin, appellants could have killed the victim had the
hollow block directly hit his head, and had the police not promptly intervened so
that the brothers scampered away. When a wound is not sufficient to cause
death, but intent to kill is evident, the crime is attempted. Intent to kill was shown
by the fact that the (3) brothers helped each other maul the defenseless victim,
and even after he had already fallen to the ground; that one of them even picked
up a cement hollow block and proceeded to hit the victim on the head with it
three times; and that it was only the arrival of the policemen that made the
appellants desist from their concerted act of trying to kill Ruben Rodil. 10
The Office of the Solicitor General (OSG), for its part, asserts that the decision
of the CA is correct, thus:
The evidence and testimonies of the prosecution witnesses defeat the
presumption of innocence raised by petitioners. The crime has been clearly
established with petitioners as the perpetrators. Their intent to kill is very evident
and was established beyond reasonable doubt.
Eyewitnesses to the crime, Alicia Vera Cruz and Lucita Villejo clearly and
categorically declared that the victim Ruben Rodil was walking along St. Peter
Avenue when he was suddenly boxed by Esmeraldo "Baby" Rivera. They
further narrated that, soon thereafter, his two brothers Ismael and Edgardo
"Dagul" Rivera, coming from St. Peter II, ganged up on the victim. Both Alicia
Vera Cruz and Lucita Villejo recounted that they saw Edgardo "Dagul" Rivera
pick up a hollow block and hit Ruben Rodil with it three (3) times. A careful
review of their testimonies revealed the suddenness and unexpectedness of the
attack of petitioners. In this case, the victim did not even have the slightest
warning of the danger that lay ahead as he was carrying his three-year old
daughter. He was caught off-guard by the assault of Esmeraldo "Baby" Rivera
and the simultaneous attack of the two other petitioners. It was also established
that the victim was hit by Edgardo "Dagul" Rivera, while he was lying on the
ground and being mauled by the other petitioners. Petitioners could have killed
the victim had he not managed to escape and had the police not promptly
intervened.
Petitioners also draw attention to the fact that the injury sustained by the victim
was superficial and, thus, not life threatening. The nature of the injury does not
negate the intent to kill. The Court of Appeals held:
As earlier stated by Dr. Cagingin, appellants could have killed the victim had the
hollow block directly hit his head, and had the police not promptly intervened so
that the brothers scampered away. When a wound is not sufficient to cause
death, but intent to kill is evident, the crime is attempted. Intent to kill was shown
by the fact that the three (3) brothers helped each other maul the defenseless
victim, and even after he had already fallen to the ground; that one of them
picked up a cement hollow block and proceeded to hit the victim on the head
with it three times; and that it was only the arrival of the policemen that made
the appellants desist from their concerted act of trying to kill Ruben Rodil. 11
The petition is denied for lack of merit.
An essential element of murder and homicide, whether in their consummated,
frustrated or attempted stage, is intent of the offenders to kill the victim
immediately before or simultaneously with the infliction of injuries. Intent to kill is
a specific intent which the prosecution must prove by direct or circumstantial
evidence, while general criminal intent is presumed from the commission of a
felony by dolo.
In People v. Delim,12 the Court declared that evidence to prove intent to kill in
crimes against persons may consist,inter alia, in the means used by the
malefactors, the nature, location and number of wounds sustained by the victim,
the conduct of the malefactors before, at the time, or immediately after the killing
of the victim, the circumstances under which the crime was committed and the
motives of the accused. If the victim dies as a result of a deliberate act of the
malefactors, intent to kill is presumed.
In the present case, the prosecution mustered the requisite quantum of
evidence to prove the intent of petitioners to kill Ruben. Esmeraldo and Ismael
pummeled the victim with fist blows. Even as Ruben fell to the ground, unable to
defend himself against the sudden and sustained assault of petitioners, Edgardo
hit him three times with a hollow block. Edgardo tried to hit Ruben on the head,
missed, but still managed to hit the victim only in the parietal area, resulting in a
lacerated wound and cerebral contusions.
That the head wounds sustained by the victim were merely superficial and could
not have produced his death does not negate petitioners’ criminal liability for
attempted murder. Even if Edgardo did not hit the victim squarely on the head,
petitioners are still criminally liable for attempted murder.
The last paragraph of Article 6 of the Revised Penal Code defines an attempt to
commit a felony, thus:
There is an attempt when the offender commences the commission of a felony
directly by overt acts, and does not perform all the acts of execution which
should produce the felony by reason of some cause or accident other than his
own spontaneous desistance.
The essential elements of an attempted felony are as follows:
1. The offender commences the commission of the felony directly by
overt acts;
2. He does not perform all the acts of execution which should produce
the felony;
3. The offender’s act be not stopped by his own spontaneous
desistance;
4. The non-performance of all acts of execution was due to cause or
accident other than his spontaneous desistance.13
The first requisite of an attempted felony consists of two elements, namely:
(1) That there be external acts;
(2) Such external acts have direct connection with the crime intended to
be committed.14
The Court in People v. Lizada15 elaborated on the concept of an overt or
external act, thus:
An overt or external act is defined as some physical activity or deed, indicating
the intention to commit a particular crime, more than a mere planning or
preparation, which if carried out to its complete termination following its natural
course, without being frustrated by external obstacles nor by the spontaneous
desistance of the perpetrator, will logically and necessarily ripen into a concrete
offense. The raison d’etre for the law requiring a direct overt act is that, in a
majority of cases, the conduct of the accused consisting merely of acts of
preparation has never ceased to be equivocal; and this is necessarily so,
irrespective of his declared intent. It is that quality of being equivocal that must
be lacking before the act becomes one which may be said to be a
commencement of the commission of the crime, or an overt act or before any
fragment of the crime itself has been committed, and this is so for the reason
that so long as the equivocal quality remains, no one can say with certainty what
the intent of the accused is. It is necessary that the overt act should have been
the ultimate step towards the consummation of the design. It is sufficient if it was
the "first or some subsequent step in a direct movement towards the
commission of the offense after the preparations are made." The act done need
not constitute the last proximate one for completion. It is necessary, however,
that the attempt must have a causal relation to the intended crime. In the words
of Viada, the overt acts must have an immediate and necessary relation to the
offense.16
In the case at bar, petitioners, who acted in concert, commenced the felony of
murder by mauling the victim and hitting him three times with a hollow block;
they narrowly missed hitting the middle portion of his head. If Edgardo had done
so, Ruben would surely have died.
We reject petitioners’ contention that the prosecution failed to prove treachery in
the commission of the felony. Petitioners attacked the victim in a sudden and
unexpected manner as Ruben was walking with his three-year-old daughter,
impervious of the imminent peril to his life. He had no chance to defend himself minimum, to nine (9) years and four (4) months ofprision mayor in its medium
and retaliate. He was overwhelmed by the synchronized assault of the three period, as maximum. No costs.
siblings. The essence of treachery is the sudden and unexpected attack on the
victim.17 Even if the attack is frontal but is sudden and unexpected, giving no SO ORDERED.
opportunity for the victim to repel it or defend himself, there would be
treachery.18 Obviously, petitioners assaulted the victim because of the ROMEO J. CALLEJO, SR.
altercation between him and petitioner Edgardo Rivera a day before. There
Associate Justice
being conspiracy by and among petitioners, treachery is considered against all
of them.19
Republic of the Philippines
SUPREME COURT
The appellate court sentenced petitioners to suffer an indeterminate penalty of
Manila
two (2) years of prision correccionalin its minimum period, as minimum, to six
years and one day of prision mayor in its maximum period, as maximum. This is
erroneous. Under Article 248 of the Revised Penal Code, as amended by SECOND DIVISION
Republic Act No. 7659, the penalty for murder is reclusion perpetua to death.
Since petitioners are guilty only of attempted murder, the penalty should be G.R. No. 138033 February 22, 2006
reduced by two degrees, conformably to Article 51 of the Revised Penal Code.
Under paragraph 2 of Article 61, in relation to Article 71 of the Revised Penal RENATO BALEROS, JR., Petitioner,
Code, such a penalty is prision mayor. In the absence of any modifying vs.
circumstance in the commission of the felony (other than the qualifying PEOPLE OF THE PHILIPPINES, Respondent.
circumstance of treachery), the maximum of the indeterminate penalty shall be
taken from the medium period of prision mayor which has a range of from eight DECISION
(8) years and one (1) day to ten (10) years. To determine the minimum of the
indeterminate penalty, the penalty ofprision mayor should be reduced by one
GARCIA, J.:
degree, prision correccional, which has a range of six (6) months and one (1)
day to six (6) years.
In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and
seeks the reversal of the January 13, 1999 decision1 of the Court of Appeals
Hence, petitioners should be sentenced to suffer an indeterminate penalty of
(CA) in CA-G.R. CR No. 17271 as reiterated in its March 31, 1999
from two (2) years of prision correccional in its minimum period, as minimum, to
resolution2 denying petitioner’s motion for reconsideration.
nine (9) years and four (4) months of prision mayor in its medium period, as
maximum.
The assailed decision affirmed an earlier decision of the Regional Trial Court
(RTC) of Manila, Branch 2, in Criminal Case No. 91-101642 finding petitioner
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit.
Renato Baleros, Jr. y David (CHITO) guilty of attempted rape.3
The Decision of the Court of Appeals is AFFIRMED WITH THE
MODIFICATION that petitioners are sentenced to suffer an indeterminate
penalty of from two (2) years of prision correccional in its minimum period, as The accusatory portion of the information4 dated December 17, 1991 charging
petitioner with attempted rape reads as follow:
That about 1:50 in the morning or sometime thereafter of 13 December 1991 in
Manila and within the jurisdiction of this Honorable Court, the above-named
accused, by forcefully covering the face of Martina Lourdes T. Albano with a
piece of cloth soaked in chemical with dizzying effects, did then and there
willfully, unlawfully and feloniously commenced the commission of rape by lying
on top of her with the intention to have carnal knowledge with her but was
unable to perform all the acts of execution by reason of some cause or accident
other than his own spontaneous desistance, said acts being committed against
her will and consent to her damage and prejudice.
Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded
"Not Guilty."5 Thereafter, trial on the merits ensued.
To prove its case, the prosecution presented thirteen (13) witnesses. Among
them were private complainant Martina Lourdes Albano (Malou), and her
classmates, Joseph Bernard Africa, Rommel Montes, Renato Alagadan and
Christian Alcala. Their testimonies, as narrated in some detail in the decision of
the CA, established the following facts:
Like most of the tenants of the Celestial Marie Building (hereafter "Building", …)
along A.H. Lacson Street, Sampaloc, Manila, MALOU, occupying Room 307
with her maid, Marvilou Bebania (Marvilou), was a medical student of the
University of Sto. Tomas [UST] in 1991.
In the evening of December 12, inside Unit 307, MALOU retired at around
10:30. Outside, right in front of her bedroom door, her maid, Marvilou, slept on a
folding bed.
Early morning of the following day, MALOU was awakened by the smell of
chemical on a piece of cloth pressed on her face. She struggled but could not
move. Somebody was pinning her down on the bed, holding her tightly. She
wanted to scream for help but the hands covering her mouth with cloth wet with
chemicals were very tight (TSN, July 5, 1993, p. 33). Still, MALOU continued
fighting off her attacker by kicking him until at last her right hand got free. With
this …the opportunity presented itself when she was able to grab hold of his sex
organ which she then squeezed.
The man let her go and MALOU went straight to the bedroom door and roused
Marvilou. xxx. Over the intercom, MALOU told S/G Ferolin that: "may pumasok
sa kuarto ko pinagtangkaan ako" (Ibid., p. 8). Who it was she did not, however,
know. The only thing she had made out during their struggle was the feel of her
attacker’s clothes and weight. His upper garment was of cotton material while
that at the lower portion felt smooth and satin-like (Ibid, p. 17). He … was
wearing a t-shirt and shorts … Original Records, p. 355).
To Room 310 of the Building where her classmates Christian Alcala, Bernard
Baptista, Lutgardo Acosta and Rommel Montes were staying, MALOU then
proceeded to seek help. xxx.
It was then when MALOU saw her bed … topsy-turvy. Her nightdress was
stained with blue … (TSN, July 5, 1993, pp. 13-14). Aside from the window with
grills which she had originally left opened, another window inside her bedroom
was now open. Her attacker had fled from her room going through the left
bedroom window (Ibid, Answers to Question number 5; Id), the one without iron
grills which leads to Room 306 of the Building (TSN, July 5, 1993, p.6).
xxx xxx xxx
Further, MALOU testified that her relation with CHITO, who was her classmate
…, was friendly until a week prior to the attack. CHITO confided his feelings for
her, telling her: "Gusto kita, mahal kita" (TSN, July 5, 1993, p. 22) and she
rejected him. …. (TSN, July 5, 1993, p. 22).
Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at
the Building at 1:30 in the early morning of December 13, 1991, wearing a white
t-shirt with “‘…a marking on the front of the T-shirt T M and a Greek letter (sic)
ΣΦ’ and below the quoted letters the word ‘1946’ ‘UST Medicine and Surgery’”
(TSN, October 9, 1992, p. 9) and black shorts with the brand name “Adidas”
(TSN, October 16, 1992, p.7) and requested permission to go up to Room 306.
This Unit was being leased by Ansbert Co and at that time when CHITO was
asking permission to enter, only Joseph Bernard Africa was in the room.
He asked CHITO to produce the required written authorization and when CHITO
could not, S/G Ferolin initially refused [but later, relented] …. S/G Ferolin made
the following entry in the security guard’s logbook …:
"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have (sic) a
Request letter from our tenant of Unit #-306 Ansbert, but still I let him inter (sic)
for the reason that he will be our tenant this coming summer break as he said so
I let him sign it here
(Sgd.) Baleros Renato Jr."
(Exhibit "A-2")
That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was
corroborated by Joseph Bernard Africa (Joseph), ….
xxx xxx xxx
Joseph was already inside Room 306 at 9 o’clock in the evening of December
12, 1991. xxx by the time CHITO’s knocking on the door woke him up, …. He
was able to fix the time of CHITO’s arrival at 1:30 A.M. because he glanced at
the alarm clock beside the bed when he was awakened by the knock at the door
….
Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt
(Ibid., p. 23) when he let the latter in. …. It was at around 3 o’clock in the
morning of December 13, 1991 when he woke up again later to the sound of
knocking at the door, this time, by Bernard Baptista (Bernard), ….
xxx. With Bernard, Joseph then went to MALOU’s room and thereat was shown
by Bernard the open window through which the intruder supposedly passed.
xxx xxx xxx
Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was
finally able to talk to CHITO …. He mentioned to the latter that something had
happened and that they were not being allowed to get out of the building.
Joseph also told CHITO to follow him to Room 310.
CHITO did just that. He followed after Joseph to Unit 310, carrying his gray bag.
xxx. None was in Room 310 so Joseph went to their yet another classmate,
Renato Alagadan at Room 401 to see if the others were there. xxx.
People from the CIS came by before 8 o’clock that same morning …. They
likewise invited CHITO and Joseph to go with them to Camp Crame where the
two (2) were questioned ….
An occupant of Room 310 … Christian Alcala (Christian) recalled in Court that in
the afternoon of December 13, 1991, after their 3:30 class, he and his
roommates, Bernard Baptista and Lutgardo Acosta (Gary) were called to the
Building and were asked by the CIS people to look for anything not belonging to
them in their Unit. While they were outside Room 310 talking with the
authorities, Rommel Montes (Loyloy), another roommate of his, went inside to
search the Unit. Loyloy found (TSN, January 12, 1993, p. 6) a gray "Khumbella"
bag cloth type (Ibid, pp. 44-45) from inside their unit which they did not know
was there and surrender the same to the investigators. When he saw the gray
bag, Christian knew right away that it belonged to CHITO (Ibid, p. 55) as he had
seen the latter usually bringing it to school inside the classroom (Ibid, p. 45).
In their presence, the CIS opened the bag and pulled out its contents, among
others, a white t-shirt with a Taunu (sic) Sigma Phi sign (Ibid, p. 7), a Black
Adidas short pants, a handkerchief , three (3) white T-shirts, an underwear, and
socks (Ibid).
Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit
"D-5"), and the handkerchief (Exhibit "D-3) to be CHITO’s because CHITO had
lent the very same one to him …. The t-shirt with CHITO’s fraternity symbol,
CHITO used to wear on weekends, and the handkerchief he saw CHITO used
at least once in December.
That CHITO left his bag inside Room 310 in the morning of December 13, 1991, Exh. ‘E’ – One (1) white T-shirt marked ‘TMZI’.
was what consisted mainly of Renato R. Alagadan’s testimony.
Exh. ‘F’ – One (1) black short (sic) marked ‘ADIDAS’.
xxx xxx xxx.
PURPOSE OF LABORATORY EXAMINATION:
The colored gray bag had a handle and a strap, was elongated to about 11/4
feet and appeared to be full but was closed with a zipper when Renato saw it To determine the presence of volatime (sic), non-volatile and/or metallic poison
then (Ibid, pp. 19-20). At that time Christian, Gary, Bernard, and Renato went on the above stated specimens.
back to Room 310 at around 3 to 4 o’clock that afternoon along with some CIS
agents, they saw the bag at the same place inside the bedroom where Renato
FINDINGS:
had seen CHITO leave it. Not until later that night at past 9 o’clock in Camp
Crame, however, did Renato know what the contents of the bag were.
Toxicological examination conducted on the above stated specimens gave the
following results:
xxx xxx xxx.
Exhs. ‘C’ and ‘D’ – POSITIVE to the test for chloroform, a volatile poison.
The forensic Chemist, Leslie Chambers, of the Philippine National Police Crime
Laboratory in Camp Crame, having acted in response to the written request of
PNP Superintendent Lucas M. Managuelod dated December 13, 1991, (Exhibit Exhs. ‘A’, ‘B’, ‘E’ and ‘F’ are insufficient for further analysis.
"C"; Original Records, p. 109.) conducted laboratory examination on the
specimen collated and submitted…. Her Chemistry Report No. C-487-91 CONCLUSION:
(Exhibit "E"; Ibid., p. 112) reads in part, thus:
Exhs. ‘C’ and ‘D’ contain chloroform, a volatile poison."6 (Words in bracket
"SPECIMEN SUBMITTED: added)

xxx xxx xxx:
1) One (1) small white plastic bag marked ‘UNIMART’ with the following:
xxx xxx xxx
Exh ‘C’ – One (1) night dress colored salmon pink.
2) One (1) small white pl astic bag marked ‘JONAS’ with the following:
For its part, the defense presented, as its main witness, the petitioner himself.
He denied committing the crime imputed to him or making at any time amorous
advances on Malou. Unfolding a different version of the incident, the defense
sought to establish the following, as culled from the same decision of the
appellate court:
In December of 1991, CHITO was a medical student of … (UST). With Robert
Chan and Alberto Leonardo, he was likewise a member of the Tau Sigma Phi
Fraternity …. MALOU, …, was known to him being also a medical student at the
UST at the time.

Exh. ‘D’ – One (1) printed handkerchief.

From Room 306 of the Celestial Marie Building …, CHITO, wearing the
prescribed barong tagalog over dark pants and leather shoes, arrived at their
Fraternity house located at … Dos Castillas, Sampaloc, Manila at about 7
o’clock in the evening of December 12, 1991. He was included in the entourage
of some fifty (50) fraternity members scheduled for a Christmas gathering at the
house of their senior fraternity brother, Dr. Jose Duran, at No. 3 John Street,
North Greenhills, San Juan. xxx.
The party was conducted at the garden beside [the] swimming pool …. Soon
after, … the four (4) presidential nominees of the Fraternity, CHITO included,
were being dunked one by one into the pool. xxx.
xxx CHITO had anticipated his turn … and was thus wearing his t-shirt and long
pants when he was dunked. Perla Duran, …, offered each … dry clothes to
change into and CHITO put on the white t-shirt with the Fraternity’s symbol and
a pair of black shorts with stripes. xxx .
Again riding on Alberto’s car and wearing "barong tagalog over a white t-shirt
with the symbol TAU Sigma Phi, black short pants with stripe, socks and shoes"
(TSN, April 25, 1994, p. 15), CHITO left the party with Robert Chan and Alberto
at more or less past 1 A.M. of December 13, 1991 and proceeded to the
Building which they reached at about 1:30 A.M. (Ibid., p. 19). He had left his
gray traveling bag containing "white t-shirt, sando, underwear, socks, and
toothbrush (Ibid., pp. 17-18) at room 306 in the afternoon of the previous day ….
At the gate of the Building, CHITO knocked and …, S/G Ferolin, looking at his
watch, approached. Because of this, CHITO also looked at his own watch and
saw that the time was 1:30 (Ibid., p. 26). S/G Ferolin initially refused CHITO
entry …. xxx.
S/G Ferolin called Unit 306 …. xxx. When S/G Ferolin finally let him in, already
about ten (10) minutes had lapsed since CHITO first arrived (Ibid., p. 25).
CHITO went up the floor, found the key left for him by Joseph behind the
opened jalousie window and for five (5) minutes vainly tried to open the door
until Rommel Montes, … approached him and even commented: "Okey ang
suot mo ha, di mo mabuksan ang pinto (Ibid., pp. 26-29). Rommel tried to open
the door of Unit 306 … but was likewise unsuccessful. CHITO then decided to
just call out to Joseph while knocking at the door.
It took another (5) minutes of calling out and knocking before Joseph, …, at last
answered the door. Telling him, "Ikaw na ang bahala diyan" Joseph immediately
turned his back on CHITO and went inside the bedroom. CHITO , …changed to
a thinner shirt and went to bed. He still had on the same short pants given by
Perla Duran from the fraternity party (TSN, June 16, 1994, p. 20).
At 6 o’clock in the morning of December 13, 1991, CHITO woke up …. He was
already in his school uniform when, around 6:30 A.M, Joseph came to the room
not yet dressed up. He asked the latter why this was so and, without elaborating
on it, Joseph told him that something had happened and to just go to Room 310
which CHITO did.
At Room 310, CHITO was told by Rommel Montes that somebody, whom
MALOU was not able to identify, went to the room of MALOU and tried to rape
her (TSN, April 25, 1994, p. 36). xxx.
Joseph told him that the security guard was not letting anybody out of the
Building …. When two (2) CIS men came to the unit asking for Renato Baleros,
CHITO presented himself. Congressman Rodolfo B. Albano, father of MALOU,
then asked him for the key to Room 306….
xxx xxx xxx
The CIS men looked inside the bedroom and on the windows. Joseph was told
to dress up and the two (2) of them, CHITO and Joseph, were brought to Camp
Crame.
When they arrived at Camp Crame …, Col. Managuelod asked Joseph inside
his room and talked to him for 30 minutes. xxx. No one interviewed CHITO to
ask his side.
 xxx xxx xxx
Both CHITO and Joseph were taken to Prosecutor Abesamis who later
instructed them to undergo physical examination at the Camp Crame Hospital
….. At the hospital, … CHITO and Joseph were physically examined by a
certain Dr. de Guzman who told them to strip ….
xxx xxx xxx
CHITO had left his gray bag containing, among others, the black striped short
pants lent to him by Perla Duran (Exhibit "8-A", Original Records, p. 345), inside
Room 310 at more/less 6:30 to 7 o’clock in the morning of December 13, 1991.
The next time that he saw it was between 8 to 9 P.M. when he and Joseph were
brought before Fiscal Abesamis for inquest. One of the CIS agents had taken it
there and it was not opened up in his presence but the contents of the bag were
already laid out on the table of Fiscal Abesamis who, however, made no effort to
ask CHITO if the items thereat were his.
The black Adidas short pants purportedly found in the bag, CHITO denied
putting in his gray bag which he had left at Room 306 in the early evening of
December 12, 1991 before going to the fraternity house. He likewise disavowed
placing said black Adidas short pants in his gray bag when he returned to the
apartment at past 1:00 o’clock in the early morning of December 13, 1991 (TSN,
June 16, 1994, p. 24), nor when he dressed up at about 6 o’clock in the morning
to go to school and brought his gray bag to Room 310 (Ibid. 25). In fact, at any
time on December 13, 1991, he was not aware that his gray bag ever contained
any black short Adidas pants (Ibid). He only found out for the first time that the
black Adidas short pants was alluded to be among the items inside his gray bag
late in the afternoon, when he was in Camp Crame.
Also taking the witness stand for the defense were petitioner’s fraternity
brothers, Alberto Leonardo and Robert Chan, who both testified being with
CHITO in the December 12, 1991 party held in Dr. Duran’s place at Greenhills,
riding on the same car going to and coming from the party and dropping the
petitioner off the Celestial Marie building after the party. Both were one in saying
that CHITO was wearing a barong tagalog, with t-shirt inside, with short pants
and leather shoes at the time they parted after the party.7 Rommel Montes, a
tenant of Room 310 of the said building, also testified seeing CHITO between
the hours of 1:30 and 2:00 A.M. of December 13, 1991 trying to open the door
of Room 306 while clad in dark short pants and white barong tagalog.
On the other hand, Perla Duran confirmed lending the petitioner the pair of short
pants with stripes after the dunking party held in her father’s house.8 Presented
as defense expert witness was Carmelita Vargas, a forensic chemistry instructor
whose actual demonstration in open court showed that chloroform, being
volatile, evaporates in thirty (30) seconds without tearing nor staining the cloth
on which it is applied.9
On December 14, 1994, the trial court rendered its decision10 convicting
petitioner of attempted rape and accordingly sentencing him, thus:
WHEREFORE, under cool reflection and prescinding from the foregoing, the
Court finds the accused Renato D. Baleros, Jr., alias "Chito", guilty beyond
reasonable doubt of the crime of attempted rape as principal and as charged in
the information and hereby sentences him to suffer an imprisonment ranging
from FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1) DAY of Prision
Correctional, as Minimum to TEN (10) YEARS of Prision Mayor as Maximum,
with all the accessory penalties provided by law, and for the accused to pay the
offended party Martina Lourdes T. Albano, the sum of P50,000.00 by way of
Moral and exemplary damages, plus reasonable Attorney’s fees of P30,000.00,
without subsidiary imprisonment in case of insolvency, and to pay the costs.
SO ORDERED.
Aggrieved, petitioner went to the CA whereat his appellate recourse was
docketed as CA-G.R. CR No. 17271.
As stated at the threshold hereof, the CA, in its assailed Decision dated January
13, 1999, affirmed the trial court’s judgment of conviction, to wit:
WHEREFORE, finding no basis in fact and in law to deviate from the findings of
the court a quo, the decision appealed from is hereby AFFIRMED in toto. Costs
against appellant.
SO ORDERED.11
Petitioner moved for reconsideration, but his motion was denied by the CA in its
equally assailed resolution of March 31, 1999.12
Petitioner is now with this Court, on the contention that the CA erred -
1. In not finding that it is improbable for petitioner to have committed the
attempted rape imputed to him, absent sufficient, competent and
convincing evidence to prove the offense charged.
2. In convicting petitioner of attempted rape on the basis merely of
circumstantial evidence since the prosecution failed to satisfy all the
requisites for conviction based thereon.
3. In not finding that the circumstances it relied on to convict the
petitioner are unreliable, inconclusive and contradictory.
4. In not finding that proof of motive is miserably wanting in his case.
5. In awarding damages in favor of the complainant despite the fact that
the award was improper and unjustified absent any evidence to prove
the same.
6. In failing to appreciate in his favor the constitutional presumption of
innocence and that moral certainty has not been met, hence, he should
be acquitted on the ground that the offense charged against him has not
been proved beyond reasonable doubt.
Otherwise stated, the basic issue in this case turns on the question on whether
or not the CA erred in affirming the ruling of the RTC finding petitioner guilty
beyond reasonable doubt of the crime of attempted rape.
After a careful review of the facts and evidence on record in the light of
applicable jurisprudence, the Court is disposed to rule for petitioner’s acquittal,
but not necessarily because there is no direct evidence pointing to him as the
intruder holding a chemical-soaked cloth who pinned Malou down on the bed in
the early morning of December 13, 1991.
Positive identification pertains essentially to proof of identity and not per se to
that of being an eyewitness to the very act of commission of the crime. There
are two types of positive identification. A witness may identify a suspect or
accused as the offender as an eyewitness to the very act of the commission of
the crime. This constitutes direct evidence. There may, however, be instances
where, although a witness may not have actually witnessed the very act of
commission of a crime, he may still be able to positively identify a suspect or
accused as the perpetrator of a crime as when, for instance, the latter is the
person or one of the persons last seen with the victim immediately before and
right after the commission of the crime. This is the second type of positive
identification, which forms part of circumstantial evidence.13 In the absence of
direct evidence, the prosecution may resort to adducing circumstantial evidence
to discharge its burden. Crimes are usually committed in secret and under
condition where concealment is highly probable. If direct evidence is insisted
under all circumstances, the prosecution of vicious felons who committed
heinous crimes in secret or secluded places will be hard, if not well-nigh
impossible, to prove.14
Section 4 of Rule 133 of the Rules of Court provides the conditions when
circumstantial evidence may be sufficient for conviction. The provision reads:
Sec. 4. Circumstantial evidence, when sufficient – Circumstantial evidence is
sufficient for conviction if –
a) There is more than one circumstance;
 b) The facts from which the inferences are derived are proven; and
c) The combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.
In the present case, the positive identification of the petitioner forms part of
circumstantial evidence, which, when taken together with the other pieces of
evidence constituting an unbroken chain, leads to only fair and reasonable
conclusion, which is that petitioner was the intruder in question.
We quote with approval the CA’s finding of the circumstantial evidence that led
to the identity of the petitioner as such intruder:
Chito was in the Building when the attack on MALOU took place. He had access
to the room of MALOU as Room 307 where he slept the night over had a
window which allowed ingress and egress to Room 306 where MALOU stayed.
Not only the Building security guard, S/G Ferolin, but Joseph Bernard Africa as
well confirmed that CHITO was wearing a black "Adidas" shorts and fraternity T-
shirt when he arrived at the Building/Unit 307 at 1:30 in the morning of
December 13, 1991. Though it was dark during their struggle, MALOU had
made out the feel of her intruder’s apparel to be something made of cotton
material on top and shorts that felt satin-smooth on the bottom.
From CHITO’s bag which was found inside Room 310 at the very spot where
witness Renato Alagadan saw CHITO leave it, were discovered the most
incriminating evidence: the handkerchief stained with blue and wet with some
kind of chemicals; a black "Adidas" satin short pants; and a white fraternity T-
shirt, also stained with blue. A different witness, this time, Christian Alcala,
identified these garments as belonging to CHITO. As it turned out, laboratory
examination on these items and on the beddings and clothes worn by MALOU
during the incident revealed that the handkerchief and MALOU’s night dress
both contained chloroform, a volatile poison which causes first degree burn
exactly like what MALOU sustained on that part of her face where the chemical-
soaked cloth had been pressed.
This brings the Court to the issue on whether the evidence adduced by the
prosecution has established beyond reasonable doubt the guilt of the petitioner
for the crime of attempted rape.
The Solicitor General maintained that petitioner, by pressing on Malou’s face the
piece of cloth soaked in chemical while holding her body tightly under the weight
of his own, had commenced the performance of an act indicative of an intent or
attempt to rape the victim. It is argued that petitioner’s actuation thus described
is an overt act contemplated under the law, for there can not be any other
logical conclusion other than that the petitioner intended to ravish Malou after he
attempted to put her to an induced sleep. The Solicitor General, echoing what
the CA said, adds that if petitioner’s intention was otherwise, he would not have
lain on top of the victim.15
Under Article 335 of the Revised Penal Code, rape is committed by a man who
has carnal knowledge or intercourse with a woman under any of the following
circumstances: (1) By using force or intimidation; (2) When the woman is
deprived of reason or otherwise unconscious; and (3) When the woman is under
twelve years of age or is demented. Under Article 6, in relation to the
aforementioned article of the same code, rape is attempted when the offender
commences the commission of rape directly by overt acts and does not perform
all the acts of execution which should produce the crime of rape by reason of
some cause or accident other than his own spontaneous desistance.16
Expounding on the nature of an attempted felony, the Court, speaking thru
Justice Claro M. Recto in People vs. Lamahang,17 stated that "the attempt which
the Penal Code punishes is that which has a logical connection to a particular,
concrete offense; that which is the beginning of the execution of the offense by
overt acts of the perpetrator, leading directly to its realization and
consummation." Absent the unavoidable connection, like the logical and natural
relation of the cause and its effect, as where the purpose of the offender in
performing an act is not certain, meaning the nature of the act in relation to its
objective is ambiguous, then what obtains is an attempt to commit an
indeterminate offense, which is not a juridical fact from the standpoint of the
Penal Code.18
There is absolutely no dispute about the absence of sexual intercourse or carnal
knowledge in the present case. The next question that thus comes to the fore is
whether or not the act of the petitioner, i.e., the pressing of a chemical-soaked
cloth while on top of Malou, constitutes an overt act of rape.1avvphil.net
Overt or external act has been defined as some physical activity or deed,
indicating the intention to commit a particular crime, more than a mere planning
or preparation, which if carried out to its complete termination following its
natural course, without being frustrated by external obstacles nor by the
voluntary desistance of the perpetrator, will logically and necessarily ripen into a
concrete offense.19
Harmonizing the above definition to the facts of this case, it would be too
strained to construe petitioner's act of pressing a chemical-soaked cloth in the
mouth of Malou which would induce her to sleep as an overt act that will
logically and necessarily ripen into rape. As it were, petitioner did not commence
at all the performance of any act indicative of an intent or attempt to rape Malou.
It cannot be overemphasized that petitioner was fully clothed and that there was
no attempt on his part to undress Malou, let alone touch her private part. For
what reason petitioner wanted the complainant unconscious, if that was really
his immediate intention, is anybody’s guess. The CA maintained that if the
petitioner had no intention to rape, he would not have lain on top of the
complainant. Plodding on, the appellate court even anticipated the next step that
the petitioner would have taken if the victim had been rendered unconscious.
Wrote the CA:
The shedding of the clothes, both of the attacker and his victim, will have to
come later. His sexual organ is not yet exposed because his intended victim is
still struggling. Where the intended victim is an educated woman already mature
in age, it is very unlikely that a rapist would be in his naked glory before even
starting his attack on her. He has to make her lose her guard first, or as in this
case, her unconsciousness.20
At bottom then, the appellate court indulges in plain speculation, a practice
disfavored under the rule on evidence in criminal cases. For, mere speculations
and probabilities cannot substitute for proof required to establish the guilt of an
accused beyond reasonable doubt.21
In Perez vs. Court of Appeals,22 the Court acquitted therein petitioner of the
crime of attempted rape, pointing out that:
xxx. In the crime of rape, penetration is an essential act of execution to produce
the felony. Thus, for there to be an attempted rape, the accused must have
commenced the act of penetrating his sexual organ to the vagina of the victim
but for some cause or accident other than his own spontaneous desistance, the
penetration, however, slight, is not completed.
xxx xxx xxx
Petitioner’s act of lying on top of the complainant, embracing and kissing her,
mashing her breasts, inserting his hand inside her panty and touching her
sexual organ, while admittedly obscene and detestable acts, do not constitute
attempted rape absent any showing that petitioner actually commenced to force
his penis into the complainant’s sexual organ. xxx.
Likewise in People vs. Pancho,23 the Court held:
xxx, appellant was merely holding complainant’s feet when his Tito Onio arrived
at the alleged locus criminis. Thus, it would be stretching to the extreme our
credulity if we were to conclude that mere holding of the feet is attempted rape.
Lest it be misunderstood, the Court is not saying that petitioner is innocent,
under the premises, of any wrongdoing whatsoever. The information filed
against petitioner contained an allegation that he forcefully covered the face of
Malou with a piece of cloth soaked in chemical. And during the trial, Malou
testified about the pressing against her face of the chemical-soaked cloth and
having struggled after petitioner held her tightly and pinned her down. Verily,
while the series of acts committed by the petitioner do not determine attempted
rape, as earlier discussed, they constitute unjust vexation punishable as light
coercion under the second paragraph of Article 287 of the Revised Penal Code.
In the context of the constitutional provision assuring an accused of a crime the
right to be informed of the nature and cause of the accusation,24 it cannot be
said that petitioner was kept in the dark of the inculpatory acts for which he was
proceeded against. To be sure, the information against petitioner contains
sufficient details to enable him to make his defense. As aptly observed by then
Justice Ramon C. Aquino, there is no need to allege malice, restraint or
compulsion in an information for unjust vexation. As it were, unjust vexation
exists even without the element of restraint or compulsion for the reason that
this term is broad enough to include any human conduct which, although not
productive of some physical or material harm, would unjustly annoy or irritate an
innocent person.25 The paramount question is whether the offender’s act causes
annoyance, irritation, torment, distress or disturbance to the mind of the person
to whom it is directed.26 That Malou, after the incident in question, cried while
relating to her classmates what she perceived to be a sexual attack and the fact
that she filed a case for attempted rape proved beyond cavil that she was
disturbed, if not distressed by the acts of petitioner.

The penalty for coercion falling under the second paragraph of Article 287 of the
Revised Penal Code is arresto menor or a fine ranging from P5.00 to P200.00
or both.

WHEREFORE, the assailed Decision of the Court of Appeals affirming that of

the Regional Trial Court of Manila, is hereby REVERSED and SET ASIDE and a
new one entered ACQUITTING petitioner Renato D. Baleros, Jr. of the charge
for attempted rape. Petitioner, however, is adjudged GUILTY of light coercion
and is accordingly sentenced to 30 days of arresto menor and to pay a fine
of P200.00, with the accessory penalties thereof and to pay the costs.

SO ORDERED.