G.R. No. 5597. March 5, 1910.
] the ground, and had a severe hemorrhage and, being unable to
THE UNITED STATES, Plaintiff-Appellee, v. D. B. JEFFREY,
Defendant-Appellant.
TORRES, J. :
On the evening of March 1, 1909, while Teodorica Saguinsin was in a
Chinese shop situated in Guadalupe, municipality of San Pedro
Macati, Rizal Province, a man named D. B. Jeffrey appeared therein,
and, without any apparent reason whatever, struck the woman three
times on the hip with a bottle that he was carrying, in consequence of
which the woman fell to the ground with an abundant hemorrhage
from the womb; she was immediately taken to her home in a
carretela, and being three months pregnant she had a miscarriage on
the following day, according to the examination made by the
president of the municipal board of health. The woman was ill and
unable to attend to her usual duties for forty-five days.
Therefore a complaint was filed by the provincial fiscal with the Court
of First Instance of said province on the 5th of June, 1909, charging
D. B. Jeffrey with the crime of lesiones menos graves, whereupon
these proceedings were instituted. The trial court sentenced the
accused, on the 19th of August, 1909, to the penalty of forty-five days
of arresto mayor, to pay a fine of 325 pesetas, to indemnify the
injured woman in the sum of P50, and, in case of insolvency in the
payment of the fine and the indemnity, to suffer the corresponding
subsidiary imprisonment, not, however, to exceed one-third of the
main penalty, and to pay the costs. From this judgment defendant’s
counsel has appealed.
From the facts above related it is clearly shown that the crime of
abortion, defined and punished by article 411 of the Penal Code, has
been committed, inasmuch as, in consequence of the maltreatment
received, on the evening of March 1, 1909, by Teodorica Saguinsin, a
married woman who for three months had been pregnant, she fell to
1
return to her home, was taken there in a vehicle, with the assistance
of Basilisa Pascual, who witnessed the occurrence. On the following
day she had a miscarriage, as certified by the president of the
municipal board of health of the town of San Pedro Macati who made
an examination of and attended the victim of the maltreatment.
The defendant pleaded not guilty and denied the charge made in the
case, although he admitted that on the night in question he had a
dispute with the injured woman because he collided with her a little
push with the index finger of the right hand in the back of her body,
but without illtreating her, even though he carried a bottle at the
time. The foregoing statements to a certain extent confirm the charge
that the woman was maltreated or struck three times upon the hips
by the accused with the bottle that he was carrying, which fact is
corroborated by the testimony of the witness. The testimony of the
military surgeon, Raymond F. Metcalf, who, seven days thereafter,
examined the injured woman and stated that he did not discover
upon her body any sings of abortion, has not affected the
preponderance of the evidence offered by the prosecution, inasmuch
as, after the lapse of seven days, the miscarriage having occurred the
day following the night when the woman was brutally struck upon
the hips with a bottle, it is not strange that he did not find any traces
of the hemorrhage or of the miscarriage, as seen by the physician
who examined and attended the maltreated woman and certified to
the fact of the abortion.
Even though it was not the criminal intent of the defendant to cause
the abortion, the fact that, without any apparent reason whatever, he
maltreated Teodorica Saguinsin, presumably not knowing that she
was pregnant, as author of the abuse which caused the miscarriage,
he is liable not only for such maltreatment but also for the
consequences thereof, to wit, for the abortion; and it was also proven
that on the said occasion the defendant was drunk, which
circumstance explains how he came to strike the woman with a bottle
without any known motive. It does not appear that he is an habitual
drunkard. The penalty of prision correccional as fixed by the
aforesaid article should be imposed upon him in the minimum
degree, owing to presence of circumstance 6 of article 9 of the Penal
Code, there being no aggravating circumstance to counteract its
effect.
With respect to the question as to whether or not D. B. Jeffrey,
having been accused of the crime of lesiones menos graves, can be
lawfully sentenced for the crime of abortion, one which is distinct
from that of lesiones, it is proper to consider that the complaint filed
by the fiscal reads:jgc:chanrobles.com.ph
"The undersigned fiscal of the Province of Rizal, P. I., hereby charges
D. B. Jeffrey with the crime of lesiones menos graves committed as
follows: In that on the 1st day of March, 1909, in the municipality of
San Pedro Macati, Province of Rizal, P. I., the said D. B. Jeffrey, the
accused herein, wilfully, unlawfully, and feloniously assaulted
Teordorica Saguinsin, maltreating and striking her about the hips
which resulted in a serious hemorrhage followed by a miscarriage;
the patient required medical attendance for more than eight days,
and was unable to work for an equal period of time. All contrary to
law."cralaw virtua1aw library
The accused, attended by counsel, appeared before the Court of First
Instance of Rizal, and the foregoing complaint was read to him and
translated into English by the clerk of the court. Upon being asked by
the court to plead thereto, he pleaded not guilty.
Hence, when the defendant was informed of the complaint, he at once
understood that, although he was charged with the crime of lesiones
menos graves, the charge also included the fact that he had
maltreated Teodorica Saguinsin, striking her about the hips, in
2
consequence of which she had a hemorrhage which was followed by a
miscarriage; the woman was confined and disabled for work during
eight days and was attended by a physician. Not a single fact
constituting the crime of lesiones is alleged in the complaint, and
there can be no question that, because of the translation into
English, the accused must have heard and known that the charge
against him was that he had struck and maltreated the injured
woman who, as a result of his unlawful act, suffered an abundant
hemorrhage and a subsequent miscarriage. For this reason, when the
defendant denied the charge and plead not guilty, he defended
himself against the charge which consisted in that, in consequence of
having struck her with a bottle, he caused the abortion; and,
inasmuch as the maltreatment and the miscarriage that followed in
consequence thereof have been proved, it is perfectly just and legal
that the penalty to be applied shall be that fixed by the law of the
crime shown by the evidence and which the accused actually
committed.
For the reason above set forth, and holding that the crime committed
is that of abortion and not that of lesiones, it is our opinion that the
judgment appealed from should be set aside, and that the accused
should be and he is hereby sentenced to the penalty of eight months
of prision correccional, to indemnify the injured woman in the sum of
P50, with subsidiary imprisonment in case of insolvency, and to pay
the costs of both instances. So ordered.
G.R. No. L-42819 April 15, 1935
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs.
CRISPIN GENOVES, defendant-appellant.
HULL, J.:
Appellant was convicted in the Court of First Instance of Occidental
Negros of the complex crime of homicide with abortion.
In the morning of the 28th of May, 1934, appellant and deceased
Soledad Rivera were laborers in adjoining cane fields. Soledad
claimed that the yoke of the plow which appellant was repairing
belonged to her and tried to take it by force. Appellant struck her
with his fist, causing her to fall to the ground. She got up and
returned to the fray, whereupon she received another blow with the
fist on the left cheek which caused her again to fall to the ground.
Immediately after the incident deceased proceeded to the municipal
building, a distance of about four kilometers, and complained to the
chief of police about the maltreatment. At the time Soledad was heavy
with child, and as she complained to the chief of police of pain in the
abdomen, she was seen by the president of the sanitary district.
According to testimony deceased was in good health the day before.
From the time of the incident there was hemorrhage and pain which
were symptoms of premature delivery. Deceased remained in this
condition until June 10, 1934. On that date the condition culminated
in the painful and difficult premature delivery of one of the twin
babies that she way carrying, but the other baby could be delivered.
Both babies were dead.
The first assignment of error is the contention of appellant that the
death of the offended party was not the direct result of the assault
upon her by the defendant. It is generally known that a fall is liable
to cause premature delivery, and the evidence shows a complete
sequel of events from the assault to her death. The accused must be
held responsible for the natural consequences of his act.
The other defense is that the accused did not strike the deceased, but
this fact is clearly established by the prosecution. We find the
mitigating circumstances of lack of intent to commit so grave a wrong
as that inflicted and provocation, as the offended party by force
induced the appellant to use force on his part.1ªvvphïl.nët
3
The abortion in this case is unintentional abortion denounced by
article 257 of the Revised Penal Code. On the whole case, the period
of confinement is fixed at twelve years and one day to fourteen years,
eight months and one day of reclusion temporal. The indemnity is
fixed at P1,000.
The sentence, as thus modified, is affirmed, with costs against
appellant. So ordered
G.R. No. L-50884
March 30, 1988
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
FILOMENO SALUFRANIA, defendant-appellant.
PADILLA, J.:
In an information, dated 7 May 1976, Filomeno Salufrania y Aleman
was charged before the Court of First Instance of Camarines Norte,
Branch I, with the complex crime of parricide with intentional
abortion, committed as follows:
That on or about the 3rd day of December, 1974, in Tigbinan, Labo,
Camarines Norte, Philippines, and within the jurisdiction of the
Honorable Court the accused Filomeno Salufrania y Aleman did then
and there, willfully, unlawfully, and feloniously attack, assault and
use personal violence on MARCIANA ABUYO-SALUFRANIA, the
lawfully wedded wife of the accused, by then and there boxing and
stranging her, causing upon her injuries which resulted in her
instantaneous death; and by the same criminal act committed on the
person of the wife of the accused, who was at the time 8 months on
the family way, the accused likewise did then and there willfully,
unlawfully, and feloniously cause the death of the child while still in
its maternal womb, thereby committing both crimes of PARRICIDE
and INTENTIONAL ABORTION as defined and punished under Art.
246 and Art. 256, paragraph I, of the Revised Penal Code, to the
damage and prejudice of the heirs of said woman and child in the
amount as the Honorable Court shall assess.
CONTRARY TO LAW
Upon arraignment, the accused, assisted by counsel de officio,
pleaded not guilty to the offenses charged.
After trial the lower court rendered a decision ** dated 9 August
1978, the dispositive part of which states:
WHEREFORE, finding the accused Filomeno Salufrania y Aleman
guilty beyond reasonable doubt, of the complex crime of Parricide
with Intentional Abortion, he is hereby sentenced to suffer the
penalty of DEATH, to indemnify the heirs of the deceased Marciano
Abuyo in the sum of P12,000.00 and to pay the costs. "For unselfish,
valuable and exemplary service rendered by counsel de oficio, Atty.
Marciano C. Dating, Jr., a compensation of P500.00 is hereby
recommended for him subject to the availability of funds
SO ORDERED.
The accused having been sentenced to suffer the penalty of death,
this case is on automatic review before this Court.
At the trial in the court a quo, the prosecution presented the
following witnesses: Dr. Juan L. Dyquiangco Jr., Pedro Salufrania
and Narciso Abuyo.
Dr. Juan L. Dyquiangco Jr., who was then Rural Health Officer of
Talisay, Camarines Norte, testified that, after passing the Board
Examination, he was employed as a Resident Physician of La Union
Provincial Hospital, then as Junior Resident Physician of Bethane
Hospital in San Fernando, La Union and that later, he joined the
government service, starting from 1968 up to the time of the trial;
that as a Doctor of Medicine, he had performed about ten (10) post
mortem examinations; that he was called upon by the Municipal
4
Judge of Talisay to examine the corpse of Marciana Abuyo-Salufrania
that was exhumed from its grave in the Municipal Cemetery of
Talisay at around 11:00 o'clock in the morning of 11 December 1974;
that his post mortem examination lasted from 12:30 o'clock to 2:00
o'clock in the afternoon of the same day. He reduced his findings of
injuries into writing. (Exhibit "A"), which, together with their probable
cause, as testified to by him, are as follows:
Injury
Cause
1) Multiple abrasions with "Blunt object or friction by contusion, left
leg, middle part, hard object" (tsn., Aug. 20, posterior covering an
area of 1976, p. 7) about 2 & 1/2 by 5 inches.
2) Abrasions, 1/2 by 2 Friction on a hard object" inches, medial side
of the cubi (tsn., Aug. 20, 1976, p. 7) tal fossa (back left leg)
3) Multiple pinhead sized Hard pinhead sized material wounds, right
face, starting (tsn., Aug. 20, 1976, p. 7) from the side of the right eye
down to mandibular bone (right check)
4) Upper right eyelid more prominent than the left eyelid. No cause
given. ("the right upper eyelid a little bit bulging than the left eye
"and" sort of "swollen") (tsn., Aug. 20, 1976, pp. 7-8)
5) Tongue protruding between the lips, about 1 inch teeth protruding
tongue during line.
Usually, the main cause of death is (by) strangulation. (tsn., Aug. 20,
1976, p. 8)
6) Deceased is pregnant with a baby boy about 7-8 months old (tsn.,
Aug. 20, 1976, p. 8).
Dr. Dyquiangco testified that after conducting the post mortem
examination, he issued a certification thereof (Exhibit "A"); that he
issued a death certificate (Exhibit "B") for the deceased Marciano
Abuyo-Salufrania, bearing the date of 5 December 1974, made on the
basis of the information relayed by a certain Leonila Loma to his
nurse before the burial, without mentioning the cause of death; that
the cause of death, as cardiac arrest, was indicated on said death
certificate only after the post mortem examination on 11 December
1974.
The other witness for the prosecution was Pedro Salufrania, son of
herein appellant and of the deceased. The lower court's decision
states that, by reason of interest and relationship, before Pedro
Salufrania was allowed to testify against his father-accused Filomeno
Salufrania, he was carefully examined by the prosecuting officer and
the defense counsel under the careful supervision of the court a quo,
to determine whether, at his age of 13 years old, he was already
capable of receiving correct impressions of facts and of relating them
truly and, also, whether he was compelled and/or threatened by
anybody to testify against his father-accused. 1
The lower court found Pedro Salufrania to be determined and
intelligent. He convincingly declared that he was not threatened by
any of his uncles on his mother's side to testify against his father,
because it was true that the latter killed his mother. Then, formally
testifying as the prosecution's lone eyewitness, he stated that his
father Filomeno Salufrania and his mother Marciana Abuyo
quarrelled at about 6:00 o'clock in the evening of 3 December 1974,
in their small house at a far away sitio in barrio Tigbinan, Labo,
Camarines Norte; that during said quarrel, he saw his father box his
pregnant mother on the stomach and, once fallen on the floor, his
father strangled her to death; that he saw blood ooze from the eyes
and nose of his mother and that she died right on the spot where she
fell.
Pedro Salufrania further testified that after killing his mother, the
accused- appellant went out of the house to get a hammock; that his
brother Alex and he were the only ones who witnessed how the
accused killed their mother because his sister and other brothers
were already asleep when the horrible incident happened; that his
brothers Celedonio, Danilo and sister Merly woke up after the death
5
of their mother and kept watch at their mothers body while their
father was away; that their father arrived early the next morning with
the hammock and after placing their dead mother on the hammock,
the accused carried her on his shoulder and brought the cadaver to
the house of his sister Conching, located at a populated section of
Tigbinan that from Tigbinan the corpse was transferred to Gabon,
Talisay, Camarines Norte for burial.
Continuing his testimony, Pedro Salufrania stated that he is now
living with his uncle Eduardo Abuyo and had refused and still
refused to live with his father-accused, because the latter has
threatened to kill him and his other brothers and sister should he
reveal the true cause of his mother's death.
The third witness for the prosecution was Narciso Abuyo, a resident
of Gabon, Talisay, Camarines Norte. He testified that the accused
Filomeno Salufrania and his sister, the deceased Marciana Abuyo,
were lawfully wedded husband and wife as evidenced by a marriage
contract (Exhibit "C"). He declared that his sister was more or less
seven (7) months pregnant when she died; that he first came to know
about his sister's death on 4 December 1974 thru his nephews Pedro
and Alex Salufrania who first informed him that their mother died of
stomach ailment and headache; that he went to Tigbinan to request
for the body of his sister so that it may be buried in Talisay,
Camarines Norte and, as intended, Marciana Abuyo was buried in
the Talisay Cemetery on 6 December 1974.
Narciso Abuyo also declared that after the burial of Marciana Abuyo,
the three (3) children of his deceased sister went to his house and
refused to go home with their father Filomeno Salufrania; that when
asked for the reason why, his nephew Alex Salufraña told him that
the real cause of death of their mother was not stomach ailment and
headache, rather, she was boxed on the stomach and strangled to
death by their father; that immediately after learning of the true
cause of death of his sister, he brought the matter to the attention of
the police authorities of Talisay, Camarines Norte, who investigated
Alex and Pedro Salufirania and later, to that of the Office of the
Provincial Fiscal of Camarines Norte.
The defense had for witnesses Geronimo Villan, Juanito Bragais,
Angeles Liling Balce and the accused Filomeno Salufrania.
Geronimo Villan testified that he was a neighbor of Filomeno
Sulfrania. He declared that Marciana Abuyo died at around 6:00
o'clock in the morning of 4 December 1974 in her house at Sitio
Kapagisahan Tigbinan Labo, Camarines Norte; that he happened to
pass by said house because his attention was attracted by the bright
light in the fireplace and he saw Filomeno Salufrania boiling "ikmo"
and garlic as medicine for his wife who was about to deliver a child;
that he helped the accused by applying "ikmo" to the different parts
of the body of Marciana Abuyo and by administering the native
treatment known as "bantil", that is, by pinching and pulling the skin
with two fingers of his closed fist; that when the condition of
Marciana Abuyo worsened, he told Filomeno Salufrania to go and get
Juanita Bragais who is known as a healer but the latter arrived at
about 7:00 o'clock in the morning of 4 December 1974 and that at
that time Marciana Abuyo was already dead.
Witness Juanita Bragais testified that he was fetched by Felipe
Salufrania, another son of Filomeno Salufrania at about 6:00 o'clock
in the morning of 4 December 1974. He further testified that when he
reached the house of the Salufranias, Marciana Abuyo was already
dead so he just helped Filomeno Salufrania in transferring the body
of his wife to the house of the latter's brother-in-law at Tigbinan,
Labo, Camarines Norte.
Angeles Liling Balce, who claimed to be a former resident of
Kapagisahan Tigbinan, Labo, Camarines Norte testified that she
6
arrived in the house of Filomeno Salufrania at about 6:00 o'clock in
the morning of 4 December 1974 after being called by one of the
latter's sons; that she saw Marciana still in a coma lying on the lap of
her husband who informed her that Marciana was suffering from an
old stomach ailment.
The accused Filomeno Salufrania admitted that he was that lawful
husband of the deceased Marciana Abuyo; that at around 9:00
o'clock in the morning of 3 December 1974, Marciana arrived home
from Talisay where she had earlier stayed for about a week; that she
was hungry upon her arrival, so he allegedly cooked their food and
after eating their lunch, he proceeded to his work while his wife
rested in their house; that when he returned home at 3:00 o'clock in
the afternoon of that same day, his wife complained to him of
stomach pain and he was told to prepare the beddings because she
was already sleepy; that at about 4:00 o'clock in the morning of 4
December 1974, he was awakened by his wife who was still
complaining of stomach pain, and that she asked for a drink of hot
water; that while he was boiling water, Geronimo Villan arrived and
assisted him in administering to his wife the native treatments
known as "hilot" or massaging and "banti" that Geronimo Villan and
Francisco Repuya alternately applied "bantil" to his wife but when
her condition worsened, he woke up his children, Pedro and Alex to
fetch Rico Villanueva who might be able to ,save the life of their
mother; that his children left and returned without Rico Villanueva
but the latter arrived a little later.
Accused-appellant then went on to say that he sent for Juanito
Bragais but the latter was not able to cure his wife, since the latter
was already dead when he arrived; that after the death of his wife, he
ordered his children to get the hammock of Kaloy Belardo whose
house was about two (2) kilometers away from their house, and upon
the arrival of the hammock, he placed the body of his wife thereon
and brought it to the house of his sister Consolacion Salufrania in
Tigbinan; that while the corpse of Marciana Abuyo was at Tigbinan
he sent Chiding and his elder son to inform the brothers and sisters
of his wife at Talisay about her death and that Leonila Abuyo and
Salvador Abuyo came; that he informed the Barangay Captain of
Tigbinan of the cause of death of his wife; that upon the suggestion of
the brothers and sisters of Marciana Abuyo, especially Salvador
Abuyo, the body of their sister was brought home to Talisay and
thereafter buried at the Talisay Cemetery; that there was no quarrel
between him and his wife that preceded the latter's death, and that
during the lifetime of the deceased, they loved each other; that after
her burial, his son Pedro Salufrania was taken by his brother-in-law
Narciso Abuyo and since then, he was not able to talk to his son until
during the trial; and that at the time of death of his wife, aside from
the members of his family, Geronimo Villan Francisco Repuya and
Liling Angeles Balce were also present.
The case was considered submitted for decision by the trial court on
18 July 1978. As aforestated, the trial court found the appellant
guilty of the crimes charged and sentenced him to the penalty of
death.
The appellant assigns the following errors allegedly committed by the
trial court:
I
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED ON THE
BASIS OF THE TESTIMONY OF AN INCOMPETENT WITNESS, AND
ON INCONSISTENT AND INSUFFICIENT EVIDENCE OF THE
PROSECUTION, THEREBY VIOLATING THE RULE THAT THE
ACCUSED IS ENTITLED TO AN ACQUITTAL UNLESS HIS GUILT IS
SHOWN BEYOND ANY REASONABLE DOUBT.
II
ASSUMING ARGUENDO THAT THE EVIDENCE FOR THE
PROSECUTION IS CREDIBLE AND SUFFICIENT, THE TRIAL COURT
ERRED IN CONVICTING THE ACCUSED OF THE COMPLEX CRIME
7
OF PARRICIDE WITH INTENTIONAL ABORTION.
III
THE TRIAL COURT ERRED IN DISCREDITING THE EVIDENCE FOR
THE ACCUSED.
Appellant alleges that the trial court failed to determine the
competence of Pedro Salufrania before he was allowed to testify.
Since Pedro was allegedly a child of tender age, being only thirteen
(13) years old when he testified, and only eleven (11) years old when
the offense charged occurred, he is presumed incompetent under
Rule 130 Sec. 19 (b) of the Revised Rules of Court, which includes
among those who cannot be witnesses:
Children who appear to the court to be of such tender age and
inferior capacity as to be incapable of receiving correct impressions of
the facts respecting which they are examined, or of relating them
truly.
Therefore, according to appellant, for failure of the trial court to
determine Pedro's competence, the presumption of incompetency was
not rebutted and Pedro's testimony should not have been admitted.
Moreover, appellant stresses that there is no basis for the trial court's
finding that Pedro is intelligent.
Appellant's contention is without merit. The record shows that the
trial court determined Pedro Salufrania's competency before he was
allowed to testify under oath. 2 The trial court's conclusion that
Pedro was intelligent and competent is fully supported by Pedro's
responsiveness to the questions propounded to him when he was
already under oath:
A. Did
you go here in court to testify voluntarily?
Q.
Yes, Your Honor. Yes, sir. (tsn., pp. 3, 7,17, Nov. 12, 1976).
A. Pedro's strong sense of moral duty to tell the truth, even though it
should lead to his father's conviction, shows that he fully appreciated
Were you not forced by your uncle to testify in his case? the meaning of an oath, which likewise proves that he was no longer
Q. No, a child of tender years at the time of his testimony.
I was not forced by my uncle.
xxx xxx Appellant also alleges that, since Pedro changed his answer from no
xxx to yes when he was asked whether he was threatened by his uncle to
A. The testify against his father, shows that Pedro was lying and proves that
accused is your father? he did not appreciate the meaning of an oath at all. 3
Q.
Again, this contention is without merit, Pedro became confused when
Yes, sir. the trial court ordered that the original question be reformed. Pedro's
A. Do confusion is apparent from the fact that when asked the third time,
you love him? he affirmed his first answer,
Q. No,
sir. Q.
A.
Isn't it that your uncle threatened you with bodily harm if you will
Your father is accused now of crime which carries the penalty of not give statement before the police?
death, are you still willing to testify against him? A. No,
xxx xxx sir.
xxx xxx xxx
Q. xxx
Q. But
Why did you say that you don't love your father later you actually went with your uncle to the police because you
A. were threatened by him with bodily harm if you will not follow him?
A.
Because he killed my mother.
Q. Yes, sir.
Q. Is
And that is the reason why you hate your father now? it true that your uncle threatened you with bodily harm if you will not
A. give statement to the police?
8
A. No,
sir. (tsn., pp. 6, 7, Nov. 12, 1976)
Appellant next lists the following alleged inconsistencies to discredit
the testimony of Pedro. First, Pedro testified on direct examination
that his mother died in the evening of December 3. while on cross-
examination he said that she died in the morning of December 4. It
must be noted that he affirmed twice during cross-examination that
his mother died on December 3, just as he had testified during direct
examination. Significantly, he did not mention December 4 as the
date when she died, as appellant would make it appear. Pedro merely
answered 'yes' to the question "And isn't it that your mother died in
the early morning on that day (December 4) and not on the evening of
December 3?" 4 Thus, Pedro's answer could have resulted only from a
misapprehension of the a question, and for no other reason.
Second, appellant alleges that Pedro testified on direct examination
that he saw appellant leave the house to get a hammock after
strangling the victim and then came back the following morning.
However, upon cross-examination, Pedro testified that appellant left
at noon or in the afternoon of December 4. Moreover, Pedro allegedly
testified on re-direct that he saw appellant sleep beside the dead body
of his mother. Again Pedro misapprehended the question propounded
to him. Ajudicious reading of the transcript will bear this out:
Q.
When did your father leave to get the hammock?
A. In
the afternoon.
Q.
That may be when the body was brought to Talisay. When your
father, rather, when you said that your father left to get a hammock
so that your mother may be brought to Tigbinan what time was that?
9
A.
About 12:00 o'clock noon. (Tsn, p. 16, Nov. 12, 1976)
One may discern that the court itself noticed that there was a
missapprehension when it commented "that maybe when the body
was brought to Talisay" after Pedro answered "In the afternoon".
When Pedro answered "about 12:00 noon' he must have been
referring to the time when appellant carried his dead wife to
Tigbinan. It must be noted that the question was so worded that it
could have misled Pedro to think that what was being asked was the
time when appellant brought his dead wife to Tigbinan. In fact, there
is nothing inconsistent with Pedro's testimony that he saw his father
leave in the evening of December 3 and again saw him asleep and
thus not noticed appellant's coming back after securing a hammock
and sleeping beside the deceased. Pedro was therefore telling the
truth when he said that, upon waking up, he saw his father sleeping
beside his dead mother. By then, appellant had already returned with
the hammock.
Third, Pedro allegedly testified on direct examination that the corpse
was carried to Tigbinan in the morning of December 4, while on
cross-examination, he said it was in the evening. 5 It must be pointed
out that Pedro merely answered "yes" to a question purportedly
mentioning the time when the victim's body was transferred to
Tigbinan. The question is as follows: "The corpse of your mother was
brought to the Tigbinan proper when the vigil was had in the evening
of December 4, is that right?" It is to be noted that the question's
thrust is whether or not the victim's body was brought to Tigbinan.
The time it was brought was merely incidental. Thus, Pedro may not
have paid attention to the part of the question involving time.
Moreover, the phrase "in the evening" may have referred either to the
time of transport of the body or to the vigil, which could have
definitely confused Pedro.
Fourth, Pedro allegedly testified on direct examination that he,
together with his brothers and sister, kept vigil beside their mother's
dead body that night, while on cross-examination, he testified that
they just kept lying down and pretended to sleep. 6 There is nothing
inconsistent here. The children could have kept vigil while lying down
with their deceased mother.
Appellant further cites other alleged improbabilities to discredit
Pedro's testimony. Appellant contends that it was improbable for
Pedro to have seen the attack on his mother since he testified that
the room was dimly lighted, and that, while the attach was going on,
he closed his eyes pretending to sleep. 7 This contention is without
merit. Even though the room was dimly lighted, Pedro was only two
(2) meters away from his parents; thus, he could easily see, as he
saw, the attack on his mother. 8 Also, although he pretended to be
asleep, it was unlikely that he kept his eyes closed all the while, as he
was aware that a fight was going on. Rather, it was to be expected
that he had his eyes open and, thus, he saw the heinous crime
unfold and ultimately consumated.
Appellant alleges that he does not believe that it was fear of him that
caused the delay in Pedro's divulging the real cause of his mother's
death until 10 December 1974. According to appellant, such fear
could no longer have influenced Pedro from December 6, the date he
started to live separately from him. This contention is untenable.
Even though Pedro started to live separately from his father from
December 6, it cannot be said that the influence of appellant's threat
suddenly ceased from that time. It must be noted that Pedro was
young and was still very much under appellant's influence and
control. The thought and memory of his father's viciousness were still
too fresh even after three days from his mother's death. The fear that
he too could be killed by appellant in like manner must have deterred
him from divulging the truth earlier.
10
Appellant also alleges that it was improbable for Pedro to have just
watched the killing of his mother. This contention is untenable. At
that moment, when his mother was being assaulted and strangled,
Pedro must have been so shocked as to be rendered immobile and
powerless to do anything. This is a normal reaction in such a
situation. Besides, it is a fact of life that different people react
differently to the same types of situations. 9 One cannot overlook that
there is no standard form of behaviour when one is confronted by a
shocking occurrence.10
Appellant next alleges that since the prosecution has failed without
satisfactory explanation to present Pedro's brother Alex who is
alleged to be also an eyewitness to the killing of the victim, it is
presumed that Alex's testimony would be adverse to the prosecution
if presented. This contention is without merit. First, Alex, who is
younger than Pedro by 3 years, may not have been competent to
testify due to his tender age. Second, even assuming that he was
competent to testify, his testimony could be merely corroborative.
Corroboration is not necessary in this case because the details of the
crime have already been testified to by Pedro with sufficient clarity.
The failure to present all the eyewitnesses to an act does not
necessarily give rise to an unfavorable presumption, especially when
the testimony of the witness sought to be presented is merely
corroborative. 11 Witnesses are to be weighed, not numbered, and it
is a well established rule that the testimony of a single witness, even
if uncorroborated, but positive and credible, is sufficient to support a
conviction. 12 In any event, it is not for the appellant to say how
many witnesses the prosecution should have presented. 13
The inconsistencies magnified by appellant in the testimony of Pedro
Salufrania have been satisfactorily explained. In fact, some of them
are not material since they neither touch upon the manner of death
of the victim nor question the identity of the killer, both of which were
unwaveringly testified upon by Pedro. Thus, with the alleged
inconsistencies and improbabilities explained away, Pedro's
testimony remains unperturbed. Even if there were discrepancies,
such discrepancies were minor and may be considered as earmarks
of verisimilitude.14
The trial court's assessment of Pedro's testimony, as quoted
hereunder, deserves more than passing consideration:
... The testimony of eye-witness Pedro Salufrania, 13-year old son of
the victim Marciana Abuyo and her killer-spouse Filomeno
Salufrania, appears to be very clear, convincing and truthful. It is
vivid as to the details of the horrible occurence that took place at
about 6:00 o'clock in the evening of December 3, 1974 in their small
house at a far away sitio of Tigbinan, Labo, Camarines Norte,
resulting in the untimely and cruel death of her (sic) mother. He and
his brother Alex were the only eyewitnesses to the gory crime
committed by their father. The credibility of this witness (Pedro
Salufrania) and his testimony was invested when, despite rigid cross-
examination, the veracity of his testimony in chief was not
impeached. He remained firm and on the verge of crying, when he
pointed an accusing finger at his father during the trial. He was
unshaken notwithstanding a long and detailed cross-examination.
And, there is reason to bestow complete credence to his testimony
because he had the opportunity to closely observe how his father had
deliberately and cruelly ended the life of his mother. Despite his
tender age and apparent childish innocence, this Court believes that
he can clearly perceive and perceiving, make known his perception,
precluding the possibility of coaching or tutoring by someone. His
declaration as to when, where and how the horrible incident
complained of happened is the believable version.15
Appellant questions the competence of Dr. Dyquiangco as an expert
witness, since this is the first time that the doctor conducted an
autopsy on a cadaver which had been buried for about a week. It
11
must be noted, however, that although this was the doctor's first
autopsy under circumstances present in this case, he had, however,
conducted similar post-mortem examinations on ten (10) other
occasions. This would constitute sufficient experience. Significantly,
appellant did not object to the doctor's expression of medical opinions
during the trial. Being an expert in his field, the doctor is presumed
to have taken all pertinent factors into consideration with regard to
the autopsy, including embalming and the state of the cadaver's
decomposition. Dr. Juan Dyquiangco Jr., was a disinterested witness
in the case, and a reputable public official in whose favor the
presumption of regularity in the performance of official duties must
be applied.
Appellant further alleges that the findings of Dr. Dyquiangco and the
testimony of Pedro Salufrania do not tally. Suffice it to say that the
Court finds no inconsistencies between the findings of Dr.
Dyquiangco and Pedro Salufrania's testimony. Both are consistent on
material points. Thus, the Court sees no reason to disturb the
conclusions reached by the trial court insofar as their credibility and
the appellant's guilt are concerned.
Appellant's third assignment of error alleges that the trial court erred
in discrediting his evidence simply because the testimonies of the
defense witnesses were consistent on material points. Moreover, there
is no showing, according to the appellant, that said testimonies were
rehearsed so as to dovetail with each other.
This contention is without merit. The Court notes, first of all, that
appellant did not even bother to discuss his defense in order to refute
the massive evidence against him. This is tantamount to an
admission that he could not adequately support his version of
Marciana Abuyo's death. The trial court's reasons for rejecting the
defense version, as hereunder quoted, are tenable and sound. Thus
—
On the contrary, the testimonies of defense witnesses Geronimo
Villan, Angeles Liling Balce and the accused Filomeno Salufrania
suspiciously dove-tailed in every detail as to when, where and how
.Marciana Abuyo died at 6:00 o'clock in the morning of 4 December
1974, in their house at sitio Kapagisahan Tigbinan Labo, Carnarines
Norte, of stomach pain. On these points, these witnesses and the
accused made statements which seemed to be very fresh and clear in
their minds, despite the lapse of four long years. Their exact and
uniform declarations on these points, their phenomenal recollections,
without sufficient special or uncommon reason to recall, rendered
their testimonies unconvincing. If at all, their testimonies appeared to
this Court to be an eleventh hour concoction. And, as defense
witnesses, after observing them and their declarations on the witness
stand, they appeared to the Court to be untruthful and unreliable.
For, despite the synchronization of time when, the place where and
how the incidence happened, their testimonies on other material
points revealed their tendency to exaggerate and their propensity to
falsehood, thus-Aside from the accused Filomeno Salufrania, there
are three other witnesses for the defense Geronimo Villan Angeles
Liling Balce and Juanita Bragais. There is nothing in the testimony of
Juanito Bragais because he did not witness how and when Marciana
Abuyo died. Francisco Repuya, who was also alleged by Filomeno
Salufrania to be present when Marciana Abuyo died, did not testify.
Accused Filomeno Salufrania never claimed that he summoned for
Angeles Liling Balce. According to him Angeles Liling Balce was not
present during the moment of death of Marciana Abuyo, for she was
fetched by him only after the death of his wife. Logically, therefore,
there is no basis for the presentation of Angeles Liling Balce that she
was present during the moment of death of Marciana Abuyo. She was
merely play-acting. Geronimo Villan who claimed he passed-by the
house of Filomeno Salufrania and saw the latter boiling water with
"ikmo" and garlic, as medicine for his wife Marciana Abuyo, who was
about to give birth was discredited by accused himself who declared
he was merely boiling water for the hot drink of his wife, who was
12
suferring from her old stomach ailment. In like manner, witness
Geronimo Villan discredited the accused Filomeno Salufrania, about
the presence of Francisco Repuya, who allegedly alternated with
Geronimo Villan in applying the native treatments of 'hilot' and
'bantil' to Marciana Abuyo, when throughout his testimony he
(Geronimo Villan) never mentioned the presence of Francisco Repuya.
After closely observing defense witnesses Geronimo Villan and
Angeles Liling Balce, this Court is convinced that their testimonies
and accounts of the incident are fabricated, untruthful and not worth
of credence. Certainly, they were not present immediately before and
during the moment of death of Marciana Abuyo. ...
Added to these, there is one scandalous circumstance, which to the
mind of this Court, betrays the guilty conscience of the accused. If
there was nothing revealing in the face of the deceased Marciana
Abuyo, why was her face covered by a piece of cloth by the
accused. ...
Trial judges are in the best position to ascertain the truth and detect
falsehoods in the testimony of witnesses. This Court will normally not
disturb the findings of the trial court on the credibility of witnesses,
in view of its advantage in observing first hand their demeanor in
giving their testimony.16 Such rule applies in the present case.
Lastly, appellant alleges that, assuming he indeed killed his wife,
there is no evidence to show that he had the intention to cause an
abortion. In this contention, appellant is correct. He should not be
held guilty of the complex crime of Parricide with Intentional Abortion
but of the complex crime of Parricide with Unintentional Abortion.
The elements of Unintentional Abortion are as follows:
1.

That there is a pregnant woman.
2.
That violence is used upon such pregnant woman without intending
an abortion.
3.
That the violence is intentionally exerted.
4.
That as a result of the violence the foetus dies, either in the womb or
after having been expelled therefrom. 17
The Solicitor General's brief makes it appear that appellant intended
to cause an abortion because he boxed his pregnant wife on the
stomach which caused her to fall and then strangled her. We find
that appellant's intent to cause an abortion has not been sufficiently
established. Mere boxing on the stomach, taken together with the
immediate strangling of the victim in a fight, is not sufficient proof to
show an intent to cause an abortion. In fact, appellant must have
merely intended to kill the victim but not necessarily to cause an
abortion.
The evidence on record, therefore, establishes beyond reasonable
doubt that accused Filomeno Salufrania committed and should be
held liable for the complex crime of parricide with unintentional
abortion. The abortion, in this case, was caused by the same violence
that caused the death of Marciana Abuyo, such violence being
voluntarily exerted by the herein accused upon his victim.
It has also been clearly established (a) that Marciana Abuyo was
seven (7) to eight (8) months pregnant when she was killed; (b) that
violence was voluntarily exerted upon her by her husband accused;
13
and (c) that, as a result of said violence, Marciana Abuyo died
together with the foetus in her womb. In this afternoon, Article 48 of
the Revised Penal Code states that the accused should be punished
with the penalty corresponding to the more serious came of parricide,
to be imposed in its maximum period which is death. However, by
reason of the 1987 Constitution which has abolished the death
penalty, appellant should be sentenced to suffer the penalty of
reclusion perpetua.
WHEREFORE, as modified, the judgment appealed from is
AFFIRMED. Accused-appellant is hereby sentenced to suffer the
penalty of reclusion perpetua. The indemnity of P12,000. 00 awarded
to the heirs of the deceased Marciana Abuyo is increased to
P30,000.00 in line with the recent decisions of the Court. With costs
against the appellant, SO ORDERED
G.R. No. 2957 January 3, 1907
THE UNITED STATES, plaintiff-appelle, vs.
JUAN BOGEL, (alias CATALIN) ET AL., defendants-appellants.
CARSON, J.:
The guilt of the accused of the crime of robbery with which they were
charged was proven beyond a reasonable doubt. It was further
proven that one of the accused, on the occasion of the robbery,
stabbed a woman named Fabiana in one eye, and that as a result of
the wound thus inflicted she lost the use of the eye.
The trial court imposed the penalty prescribed in paragraph 2 of
article 503 of the Penal Code, but we are of opinion that the penalty
which should have been imposed is that prescribed in paragraph 3 of
said article.
Paragraphs 2 and 3 of article 503 are as follows:
One guilty of robbery with violence or intimidation to the person will
be punished:
xxx xxx xxx
2.
With cadena temporal in its medium degree to cadena perpetua when
the robbery was accompanied by rape or intentional mutilation, or
when for the purpose of or on occasion of the robbery any wounds
are inflicted which are penalized in paragraph 1 of article 416 of the
Penal Code, or when the person who was robbed was held prisoner
for ransom or period longer than one day.
3.
With cadena temporal when the purpose of or on occasion of the
robbery any of the wounds are inflicted which are penalized in
paragraph 2 of article 416 of the Penal Code.
Paragraphs 1 and 2 of article 416 of the Penal Code provide that he
wounds, strikes, or maltreats another will be punished for the crime
of grave injuries.
1.
With prision mayor if as a result of the wounds the offended person
became an imbecile, impotent, or blind.
2.
With prision correccional in its medium and maximum degrees if as a
result of the wounds the offended person lost an eye or some
principal member, or has been incapacitated or unfitted for the work
in which prior thereto he was habitually engaged.
14
Unless the putting out of an eye by stabbing is a mutilation in the
sense in which this word is used in the above set out paragraph 2 of
article 503, it is manifest that the penalty to be imposed in this case
is that prescribed in paragraph 3 and not paragraph 2 of said article.
Viada, in his commentary on article 415, which penalizes intentional
mutilations, points out that by mutilation (mutilacion) is understood,
according to the Diccionario de la lengua, the lopping or clipping off
(cercenamiento) of some part of the body, and it is evident that the
putting out of an eye does not fall under this definition.
The commission of the offense was marked with the aggravating
circumstances mentioned in paragraphs 15, 20, and 8 of article 10 of
the Penal Code, the robbery having taken place at night and in the
house of the offended party, and the robbers having disguised
themselves for the purpose of committing the crime with greater
security to themselves. The penalty which should be imposed in
accordance with the provisions of the above-cited paragraph 3 of
article 503 of the Penal Code is that of cadena temporal in its
maximum degree, which was the penalty imposed by the trial judge,
he not having taken into consideration the above-cited aggravating
circumstances and imposed the penalty prescribed in paragraph 2 of
article 503 in its medium degree.
The sentence of the trial court should be and is hereby affirmed, with
the costs of this instance against the appellants. After expiration of
ten days let judgment be entered in accordance herewith and in due
time thereafter the record remanded to the court from whence it
came for proper action. So ordered
G. R. No. 170723
GLORIA PILAR S. AGUIRRE, Petitioner, - versus -
SECRETARY OF THE DEPARTMENT OF JUSTICE, MICHELINA S.
AGUIRRE-OLONDRIZ, PEDRO B. AGUIRRE, DR. JUVIDO AGATEP
and DR. MARISSA B. PASCUAL, Respondents.

CHICO-NAZARIO, J.:
In this petition for review on certiorari[1] under Rule 45 of the Rules
of Court, as amended, petitioner Gloria Pilar S. Aguirre (Gloria
Aguirre) seeks the reversal of the 21 July 2005 Decision[2] and 5
December 2005 Resolution,[3] both of the Court of Appeals in CA-
G.R. SP No. 88370, entitled Gloria Pilar S. Aguirre v. Secretary of the
Department of Justice, Michelina S. Aguirre-Olondriz, Dr. Juvido
Agatep, Dra. Marissa B. Pascual, Pedro B. Aguirre and John and
Jane Does.
The Court of Appeals found no grave abuse of discretion on the part
of the Secretary of the Department of Justice (DOJ) when the latter
issued the twin resolutions dated 11 February 2004[4] and 12
November 2004,[5] respectively, which in turn affirmed the 8 January
2003 Resolution[6] of the Office of the City Prosecutor (OCP) of
Quezon City.
The Assistant City Prosecutor for the OCP of Quezon City
recommended the dismissal of the criminal complaint, docketed as
I.S. No. 02-12466, for violation of Articles 172 (Falsification by Private
Individuals and Use of Falsified Documents) and 262 (Mutilation),
both of the Revised Penal Code, in relation to Republic Act No. 7610,
otherwise known as Child Abuse, Exploitation and Discrimination
Act, for insufficiency of evidence.
The case stemmed from a complaint filed by petitioner Gloria Aguirre
against respondents Pedro B. Aguirre (Pedro Aguirre), Michelina S.
Aguirre-Olondriz (Olondriz), Dr. Juvido Agatep (Dr. Agatep), Dr.
Marissa B. Pascual (Dr. Pascual) and several John/Jane Does for
falsification, mutilation and child abuse.
The antecedents of the present petition are:
15
Laureano Larry Aguirre[7] used to be a charge of the Heart of Mary
Villa, a child caring agency run by the Good Shepherd Sisters and
licensed by the Department of Social Work and Development (DSWD).
Sometime in 1978, respondent Pedro Aguirre; the latters spouse,
Lourdes S. Aguirre (Lourdes Aguirre); and their four daughters, who
included petitioner Gloria Aguirre and respondent Olondriz, came to
know Larry, who was then just over a year old. The Aguirres would
have Larry spend a few days at their home and then return him to
the orphanage thereafter. In June 1980, Larry, then two years and
nine months of age, formally became the ward of respondent Pedro
Aguirre and his spouse Lourdes Aguirre by virtue of an Affidavit of
Consent to Legal Guardianship executed in their favor by Sister Mary
Concepta Bellosillo, Superior of the Heart of Mary Villa. On 19 June
1986, the Aguirre spouses guardianship of Larry was legalized when
the Regional Trial Court (RTC), Branch 3 of Balanga, Bataan, duly
appointed them as joint co-guardians over the person and property of
Larry.
As Larry was growing up, the Aguirre spouses and their children
noticed that his developmental milestones were remarkably delayed.
His cognitive and physical growth did not appear normal in that at
age 3 to 4 years, Larry could only crawl on his tummy like a frog x x
x;[8] he did not utter his first word until he was three years of age;
did not speak in sentences until his sixth year; and only learned to
stand up and walk after he turned five years old. At age six, the
Aguirre spouses first enrolled Larry at the Colegio de San Agustin,
Dasmarias Village, but the child experienced significant learning
difficulties there. In 1989, at age eleven, Larry was taken to
specialists for neurological and psychological evaluations. The
psychological evaluation[9] done on Larry revealed the latter to be
suffering from a mild mental deficiency.[10] Consequent thereto, the
Aguirre spouses transferred Larry to St. John Ma. Vianney, an
educational institution for special children.
In November of 2001, respondent Dr. Agatep, a urologist/surgeon,
was approached concerning the intention to have Larry, then 24
years of age, vasectomized. Prior to performing the procedure on the
intended patient, respondent Dr. Agatep required that Larry be
evaluated by a psychiatrist in order to confirm and validate whether
or not the former could validly give his consent to the medical
procedure on account of his mental deficiency.
In view of the required psychiatric clearance, Larry was brought to
respondent Dr. Pascual, a psychiatrist, for evaluation. In a
psychiatric report dated 21 January 2002, respondent Dr. Pascual
made the following recommendation:
[T]he responsibility of decision making may be given to his parent or
guardian.[11]
the full text of which reads
PSYCHIATRY REPORT
21 January 2002
GENERAL DATA
LAUREANO AGUIRRE, 24 years old, male, high school graduate of St.
John [Marie Vianney], was referred for psychiatric evaluation to
determine competency to give consent for vasectomy.
CLINICAL SUMMARY
Larry was adopted at age 3 from an orphanage and prenatal history
is not known to the adoptive family except that abortion was
attempted. Developmental milestones were noted to be delayed. He
started to walk and speak in single word at around age 5. He was
enrolled in Colegio de San Agustin at age 6 where he showed
significant learning difficulties that he had to repeat 1st and 4th
grades. A consult was done in 1989 when he was 11 years old.
Neurological findings and EEG results were not normal and he was
16
given Tecretol and Encephabol by his neurologist. Psychological
evaluation revealed mild to moderate mental retardation, special
education training was advised and thus, he was transferred to St.
John Marie Vianney. He finished his elementary and secondary
education in the said school. He was later enrolled in a vocational
course at Don Bosco which he was unable to continue. There has
been no reported behavioral problems in school and he gets along
relatively well with his teachers and some of his classmates.
Larry grew up with a very supportive adoptive family. He is the
youngest in the family of four sisters. Currently, his adoptive parents
are already old and have medical problem and thus, they could no
longer monitor and take care of him like before. His adoptive mother
has Bipolar Mood Disorder and used to physically maltreat him. A
year ago, he had an episode of dizziness, vomiting and headaches
after he was hit by his adoptive mother. Consult was done in Makati
Medical Center and several tests were done, results of which were
consistent with his developmental problem. There was no evidence of
acute insults. The family subsequently decided that he should stay
with one of his sisters to avoid similar incident and the possibility
that he would retaliate although he has never hurt anybody. There
has been no episode of violent outburst or aggressive behavior. He
would often keep to himself when sad, angry or frustrated.
He is currently employed in the company of his sister and given
assignment to do some photocopying, usually in the mornings. He
enjoys playing billiards and basketball with his nephews and, he
spends most of his leisure time watching TV and listening to music.
He could perform activities of daily living without assistance except
that he still needs supervision in taking a bath. He cannot prepare
his own meal and never allowed to go out and run errands alone. He
does not have friends and it is only his adoptive family whom he has
significant relationships. He claims that he once had a girlfriend
when he was in high school who was more like a best friend to him.
He never had sexual relations. He has learned to smoke and drink
alcohol few years ago through his cousins and the drivers. There is
no history of abuse of alcohol or any prohibited substances.
MEDICAL STATUS EXAMINATION
The applicant was appropriately dressed. He was cooperative and he
had intermittent eye contact. Speech was spontaneous, soft, and
relevant. He responded to questions in single words or simple
sentences. He was anxious specially at the start of the interview, with
full affect appropriate to mood and thought content. There was no
apparent thought or perceptual disturbance. No suicidal/homicidal
thoughts elicited. He was oriented to time, place and person. He has
intact remote and recent memory. He could do simple calculation. He
could write his name and read simple words. His human figure was
comparable to a 7-8 year old. He demonstrated fair judgment and
poor insight. He had fair impulse control.
PSYCHOLOGICAL TESTS
Psychological tests done on March 6, 1990 (Dr. Lourdes Ledesma)
and on August 4, 2000 (Dr. Ma. Teresa Gustilo-Villaosor) consistently
revealed mild to moderate mental deficiency.
SIGNIFICANT LABORATORY EXAMS RESULTS
CT scan done 09 January 2001 showed nonspecific right deep
parietal subcortical malacia. No localized mass lesion in the brain.
MRI done on 10 January 2001 showed bilateral parietal x x x volume
loss, encephalomalacia, gliosis and ulegyria consistent with sequela
of postnatal or neonatal infarcts. Ex-vacuo dilatation of the atria of
lateral ventricles associated thinned posterior half of the corpus
callosum.
ASSESSMENT AND RECOMMENDATION
Axis I None
17
Axis II Mental Retardation, mild to moderate type
Axis III None
Axis IV None at present
Axis V Current GAF = 50-60
Larrys mental deficiency could be associated with possible perinatal
insults, which is consistent with the neuroimaging findings. Mental
retardation associated with neurological problems usually has poorer
prognosis. Larry is very much dependent on his family for his needs,
adaptive functioning, direction and in making major life decisions. At
his capacity, he may never understand the nature, the foreseeable
risks and benefits, and consequences of the procedure (vasectomy)
that his family wants for his protection. Thus, the responsibility of
decision making may be given to his parent or guardian.
Marissa B. Pascual, M.D.
Psychiatrist[12]
Considering the above recommendation, respondent Pedro Aguirres
written consent was deemed sufficient in order to proceed with the
conduct of the vasectomy. Hence, on 31 January 2002, respondent
Dr. Agatep performed a bilateral vasectomy on Larry.
On 11 June 2002, petitioner Gloria Aguirre, respondent Pedro
Aguirres eldest child, instituted a criminal complaint for the violation
of the Revised Penal Code, particularly Articles 172 and 262, both in
relation to Republic Act No. 7610 against respondents Pedro Aguirre,
Olondriz, Dr. Agatep, Dr. Pascual and several John/Jane Does before
the Office of the City Prosecutor of Quezon City.
The Complaint Affidavit,[13] docketed as I.S. No. 02-12466, contained
the following allegations:
2. x x x Dr. Agatep and Dra. Pascual were (sic) medical practitioners
specializing in urology and psychiatry respectively; while respondent
Pedro B. Aguirre is my father; Michelina S. Aguirre-Olondriz is my
sister, and the victim Laureano Larry Aguirre xxx is my common law
brother. JOHN and JANE DOES were the persons who, acting upon
the apparent instructions of respondents Michelina Aguirre-Olondriz
and/or Pedro B. Aguirre, actually scouted, prospected, facilitated,
solicited and/or procured the medical services of respondents Dra.
Pascual and Dr. Agatep vis--vis the intended mutilation via bilateral
vasectomy of my common law brother Larry Aguirre subject hereof.
xxxx
4. Sometime in March 2002, however, the Heart of Mary Villa of the
Good Shepherd Sisters was furnished a copy of respondent Dra.
Pascuals Psychiatry Report dated 21 January 2004 by the DSWD, in
which my common law brother Larry was falsely and maliciously
declared incompetent and incapable of purportedly giving his own
consent to the MUTILATION VIA BILATERAL VASECTOMY intended
to be performed on him by all the respondents.
xxxx
6. Based on the foregoing charade and false pretenses invariably
committed by all of the respondents in conspiracy with each other, on
31 January 2002, my common law brother Larry Aguirre, although of
legal age but conspiratorially caused to be declared by respondents to
be mentally deficient and incompetent to give consent to his
BILATERAL VASECTOMY, was then intentionally, unlawfully,
maliciously, feloniously and/or criminally placed thereafter under
surgery for MUTILATION VIA BILATERAL VASECTOMY x x x, EVEN
WITHOUT ANY AUTHORIZATION ORDER from the GUARDIANSHIP
COURT, nor personal consent of Larry Aguirre himself.
In addition to the above, the complaint included therein an allegation
that
18
v. x x x without a PRIOR medical examination, professional interview
of nor verification and consultation with my mother, Lourdes Sabino-
Aguirre, respondent Dra. Pascual baselessly, fraudulently and with
obvious intent to defame and malign her reputation and honor, and
worse, that of our Sabido family, falsely concluded and diagnosed, via
her falsified Psychiatry Report, that my mother Lourdes Sabido-
Aguirre purportedly suffers from BIPOLAR MOOD DISORDER x x x.
To answer petitioner Gloria Aguirres accusations against them,
respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual
submitted their respective Counter-Affidavits.
In her defense,[14] respondent Olondriz denied that she prospected,
scouted, facilitated, solicited and/or procured any false statement,
mutilated or abused her common-law brother, Larry Aguirre. Further,
she countered that:
3. x x x While I am aware and admit that Larry went through a
vasectomy procedure, there is nothing in the Complaint which
explains how the vasectomy amounts to a mutilation.
xxxx
5. In any case, as I did not perform the vasectomy, I can state with
complete confidence that I did not participate in any way in the
alleged mutilation.
6. Neither did I procure or solicit the services of the physician who
performed the vasectomy, Dr. Juvido Agatep x x x. It was my father,
Pedro Aguirre, Larrys guardian, who obtained his services. I merely
acted upon his instructions and accompanied my brother to the
physician, respondents Dra. Marissa B. Pascual x x x.
xxxx
10. Neither does the Complaint explain in what manner the
Complainant is authorized or has any standing to declare that Larrys
consent was not obtained. Complainant is not the guardian or
relative of Larry. While she argues that Larrys consent should have
been obtained the Complaint does not dispute the psychiatrists
findings about Larrys inability to give consent.
xxxx
13. x x x the Complaint does not even state what alleged
participation was falsified or the portion of the psychiatric report that
allegedly states that someone participated when in fact that person
did not so participate.
xxxx
15. Again, I had no participation in the preparation of the report of
Dr. Pascual x x x.
xxxx
17. x x x the Complaint does not dispute that he (Larry) is mentally
deficient or incompetent to give consent.
xxxx
19. x x x I verified that the effect of a vasectomy operation was
explained to him (Larry) by both respondent doctors.
20. x x x I accompanied Larry and obeyed my father on the belief that
my father continues to be the legal guardian of Larry. I know of no
one else who asserts to be his legal guardian x x x.[15]
Alleging the same statement of facts and defenses, respondent Pedro
Aguirre argues against his complicity in the crime of mutilation as
charged and asserts that:
5. In any case, as I did not perform the vasectomy, I can state with
complete confidence that I did not participate in any way in the
alleged mutilation.[16]
Nevertheless, he maintains that the vasectomy performed on Larry
does not in any way amount to mutilation, as the latters reproductive
organ is still completely intact.[17] In any case, respondent Pedro
Aguirre explains that the procedure performed is reversible through
19
another procedure called Vasovasostomy, to wit:
8. I understand that vasectomy is reversible through a procedure
called Vasovasostomy. I can also state with confidence that the
procedure enables men who have undergone a vasectomy to sire a
child. Hence, no permanent damage was caused by the procedure.
Respondent Pedro Aguirre challenges the charge of falsification in the
complaint, to wit:
14. x x x I did not make it appear that any person participated in any
act or proceeding when that person did not in fact participate x x x.
xxxx
16. x x x I had no participation in the preparation of the report of
Dra. Pascual. She arrived at her report independently, using her own
professional judgment x x x.
xxxx
31. What I cannot understand about Petitas Complaint is how Larry
is argued to be legally a child under the definition of one law but
nonetheless and simultaneously argued to be capacitated to give his
consent as fully as an adult.[18]
Respondent Pedro Aguirre further clarifies that co-guardianship over
Larry had been granted to himself and his wife, Lourdes Aguirre, way
back on 19 June 1986 by the Regional Trial Court, Branch 3 of
Balanga, Bataan. Respondent Pedro Aguirre contends that being one
of the legal guardians, consequently, parental authority over Larry is
vested in him. But assuming for the sake of argument that Larry does
have the capacity to make the decision concerning his vasectomy,
respondent Pedro Aguirre argues that petitioner Gloria Aguirre has
no legal personality to institute the subject criminal complaint, for
only Larry would have the right to do so.
Just as the two preceding respondents did, respondent Dr. Agatep
also disputed the allegations of facts stated in the Complaint.
Adopting the allegations of his co-respondents insofar as they were
material to the charges against him, he vehemently denied failing to
inform Larry of the intended procedure. In his counter-statement of
facts he averred that:
(b) x x x I scheduled Larry for consultative interview x x x wherein I
painstakingly explained what vasectomy is and the consequences
thereof; but finding signs of mental deficiency, x x x I advised his
relatives and his nurse who accompanied him to have Larry
examined by a psychiatrist who could properly determine whether or
not Larry x x x can really give his consent, thus I required them to
secure first a psychiatric evaluation and clearance prior to the
contemplated procedure.
(c) On January 21, 2002, I was furnished a copy of a psychiatric
report prepared by Dr. Marissa Pascual x x x. In her said report, Dr.
Pascual found Larry to suffer from mental retardation, mild to
moderate type and further stated that at his capacity, he may never
understand the nature, the foreseeable risks and benefits and
consequences of the procedure (vasectomy) x x x, thus the
responsibility of decision making may be given to his parent or
guardian x x x.
(d) x x x I was likewise furnished a copy of an affidavit executed by
Pedro Aguirre stating that he was the legal guardian of Larry x x x
Pedro Aguirre gave his consent to vasectomize Larry x x x.
(e) Only then, specifically January 31, 2002, vasectomy was
performed with utmost care and diligence.[19]
In defense against the charge of falsification and mutilation,
respondent Dr. Agatep argued that subject complaint should be
dismissed for the following reasons:
20
1. The complainant has no legal personality to file this case. As
mentioned above, she is only a common law sister of Larry who has a
legal guardian in the person of Pedro Aguirre, one of the herein
respondents x x x.
2. x x x [t]he allegations in the complaint clearly centers on the
condition of complainants mother, Lourdes Aguirre, her reputation,
and miserably fails to implicate the degree of participation of herein
respondent. x x x
xxxx
(b) Falsification. x x x I strongly aver that this felony does not apply
to me since it clearly gives reference to co-respondent, Dr. Marissa
Pascuals Psychiatry Report, dated January 21, 2002, in relation with
her field of profession, an expert opinion. I do not have any
participation in the preparation of said report, x x x neither did I
utilized (sic) the same in any proceedings to the damage to another. x
x x I also deny using a falsified document x x x.
(c) Mutilation. x x x Vasectomy does not in anyway equate to
castration and what is touched in vasectomy is not considered an
organ in the context of law and medicine, it is quite remote from the
penis x x x.
(d) Child Abuse. x x x the complaint-affidavit is very vague in
specifying the applicability of said law. It merely avers that Laureano
Larry Aguirre is a child, and alleges his father, Pedro Aguirre, has
parental authority over him x x x.[20]
Similarly, respondent Dr. Pascual denied the criminal charges of
falsification and mutilation imputed to her. She stands by the
contents of the assailed Psychiatric Report, justifying it thus:
x x x My opinion of Larry Aguirres mental status was based on my
own personal observations, his responses during my interview of him,
the results of the two (2) psychological tests conducted by clinical
psychologists, the results of laboratory tests, including a CT Scan
and MRI, and his personal and family history which I obtained from
his sister, Michelina Aguirre-Olondriz x x x.
5. x x x the reference in my report concerning Mrs. Lourdes Aguirre is
not a statement of my opinion of Mrs. Aguirres mental status, x x x.
Rather, it is part of the patients personal and family history as
conveyed to me by Mrs. Aguirre-Olondriz.
6. x x x An expression of my opinion, especially of an expert opinion,
cannot give rise to a charge for falsification. A contrary opinion by
another expert only means that the experts differ, and does not
necessarily reflect on the truth or falsity of either opinion x x x.
7. x x x I never stated that I examined Mrs. Aguirre, because I never
did x x x.
8. I had no participation in the surgery performed on Larry Aguirre
except to render an opinion on his capacity to give informed consent
to the vasectomy x x x.
9. Without admitting the merits of the complaint, I submit that
complainants are not the proper persons to subscribe to the same as
they are not the offended party, peace officer or other public officer
charged with the enforcement of the law violated x x x.[21]
The Assistant City Prosecutor held that the circumstances attendant
to the case did not amount to the crime of falsification. He held that
[T]he claim of the complainant that the Psychiatric Report was
falsified, because consent was not given by Larry Aguirre to the
21
vasectomy and/or he was not consulted on said operation does not
constitute falsification. It would have been different if it was stated in
the report that consent was obtained from Larry Aguirre or that it
was written therein that he was consulted on the vasectomy, because
that would mean that it was made to appear in the report that Larry
Aguirre participated in the act or proceeding by giving his consent or
was consulted on the matter when in truth and in fact, he did not
participate. Or if not, the entry would have been an untruthful
statement. But that is not the case. Precisely (sic) the report was
made to determine whether Larry Aguirre could give his consent to
his intended vasectomy. Be that as it may, the matter of Larrys
consent having obtained or not may nor be an issue after all, because
complainants (sic) herself alleged that Larrys mental condition is that
of a child, who can not give consent. Based on the foregoing
consideration, no falsification can be established under the
circumstances.[22]
Even the statement in the Psychiatric Report of respondent Dr.
Pascual that Lourdes Aguirre had Bipolar Mood Disorder cannot be
considered falsification since
The report did not state that Lourdes Aguirre was in fact personally
interviewed by respondent Dr. Pascual and that the latter concluded
that Lourdes Aguirre has Bipolar Mood Disorder. The report merely
quoted other sources of information with respect to the condition of
Lourdes Aguirre, in the same manner that the fact that Lourdes
Aguirre was physically abusing Larry Aguirre was also not of Dra.
Pascual personal knowledge. But the fact that Dra. Pascual cited
finding, which is not of her own personal knowledge in her report
does not mean that she committed falsification in the process. Her
sources may be wrong and may affect the veracity of her report, but
for as long as she has not alleged therein that she personally
diagnosed Lourdes Aguirre, which allegation would not then be true,
she cannot be charged of falsification. Therefore, it goes without
saying that if the author of the report is not guilty, then with more
reason the other respondents are not liable.[23]
Respecting the charge of mutilation, the Assistant City Prosecutor
also held that the facts alleged did not amount to the crime of
mutilation as defined and penalized under Article 262 of the Revised
Penal Code, i.e., [t]he vasectomy operation did not in any way
deprived (sic) Larry of his reproductive organ, which is still very much
part of his physical self. He ratiocinated that:
While the operation renders him the inability (sic) to procreate, the
operation is reversible and therefore, cannot be the permanent
damage contemplated under Article 262 of the Revised Penal Code.
[24]
The Assistant City Prosecutor,[25] in a Resolution[26] dated 8
January 2003, found no probable cause to hold respondents Pedro
Aguirre, Olondriz, Dr. Agatep and Dr. Pascual liable for the complaint
of falsification and mutilation, more specifically, the violation of
Articles 172 and 262 of the Revised Penal Code, in relation to
Republic Act No. 7610. Accordingly, the Assistant City Prosecutor
recommended the dismissal of petitioner Gloria Aguirres complaint
for insufficiency of evidence. The dispositive portion of the resolution
reads:
WHEREFORE, it is recommended that the above-entitled case be
dismissed for insufficiency of evidence.[27]
On 18 February 2003, petitioner Gloria Aguirre appealed the
foregoing resolution to the Secretary of the DOJ by means of a
Petition for Review.[28]
In a Resolution dated 11 February 2004, Chief State Prosecutor
Jovencito R. Zuo, for the Secretary of the DOJ, dismissed the
22
petition. In resolving said appeal, the Chief State Prosecutor held
that:
Under Section 12, in relation to Section 7, of Department Circular
No. 70 dated July 3, 2000, the Secretary of Justice may, motu
proprio, dismiss outright the petition if there is no showing of any
reversible error in the questioned resolution or finds the same to be
patently without merit.
We carefully examined the petition and its attachments and found no
error that would justify a reversal of the assailed resolution which is
in accord with the law and evidenced (sic) on the matter.[29]
Petitioner Gloria Aguirres Motion for Reconsideration was likewise
denied with finality by the DOJ in another Resolution dated 12
November 2004.
Resolute in her belief, petitioner Gloria Aguirre went to the Court of
Appeals by means of a Petition for Certiorari, Prohibition and
Mandamus under Rule 65 of the Rules of Court, as amended.
On 21 July 2005, the Court of Appeals promulgated its Decision
dismissing petitioner Gloria Aguirres recourse for lack of merit.
The fallo of the assailed decision reads:
WHEREFORE, premises considered, the present petition is hereby
DENIED DUE COURSE and accordingly DISMISSED for lack of merit.
Consequently, the assailed Resolutions dated February 11, 2004 and
November 12, 2004 of the Secretary of Justice in I.S. No. 02-12466
are hereby AFFIRMED.[30]
Petitioner Gloria Aguirres motion for reconsideration proved futile as
it was denied by the appellate court in a Resolution dated 5
December 2005.
Hence, the present petition filed under Rule 45 of the Rules of Court,
as amended, premised on the following arguments:
I.
THE COURT OF APPEALS COMMITTED SERIOUS, GRAVE AND
REVERSIBLE ERRORS OF LAW WHEN IT CONCLUDED, BASED
PURPORTEDLY ON THE INTERNET WHICH RUNS AMUCK WITH
OUR SYSTEM OF THE RULE OF LAW AND THE EVIDENCE ON
RECORD, THAT BILATERAL VASECTOMY IS PURPORTEDLY 100%
REVERSIBLE BY A FUTURE MEDICAL PROCEDURE HENCE NOT
AMOUNTING TO MUTILATION, X X X; AND
II.
WORSE, THE COURT OF APPEALS COMMITTED GRAVE, SERIOUS
AND REVERSIBLE ERRORS OF LAW WHEN IT REFUSED TO
DIRECT THE INDICTMENT OF THE PRIVATE RESPONDENTS FOR
MUTILATION AND FALSIFICATION DESPITE THE EXISTENCE OF
SUFFICIENT PROBABLE CAUSE THEREFOR X X X.[31]
The foregoing issues notwithstanding, the more proper issue for this
Courts consideration is, given the facts of the case, whether or not
the Court of Appeals erred in ruling that the DOJ did not commit
grave abuse of discretion amounting to lack or excess of jurisdiction
when the latter affirmed the public prosecutors finding of lack of
probable cause for respondents Pedro Aguirre, Olondriz, Dr. Agatep
and Dr. Pascual to stand trial for the criminal complaints of
falsification and mutilation in relation to Republic Act No. 7610.
In ruling that the DOJ did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction, the Court of Appeals
explained that:
Evidently, the controversy lies in the permanency of sterilization as a
result of a vasectomy operation, and the chances of restoring fertility
23
with a reversal surgery x x x.
We sustain the DOJ in ruling that the bilateral vasectomy performed
on Larry does not constitute mutilation even if intentionally and
purposely done to prevent him from siring a child.
xxxx
Sterilization is to be distinguished from castration: in the latter act
the reproductive capacity is permanently removed or damaged.[32]
It then concluded that:
The matter of legal liability, other than criminal, which private
respondents may have incurred for the alleged absence of a valid
consent to the vasectomy performed on Larry, is certainly beyond the
province of this certiorari petition. Out task is confined to the issue of
whether or not the Secretary of Justice and the Office of the City
Prosecutor of Quezon City committed grave abuse of discretion in
their determining the existence or absence of probable cause for filing
criminal cases for falsification and mutilation under Articles 172 (2)
and 262 of the Revised Penal Code.[33]
Petitioner Gloria Aguirre, however, contends that the Court of
Appeals and the DOJ failed to appreciate several important facts: 1)
that bilateral vasectomy conducted on petitioners brother, Larry
Aguirre, was admitted[34]; 2) that the procedure caused the
perpetual destruction of Larrys reproductive organs of generation or
conception;[35] 3) that the bilateral vasectomy was intentional and
deliberate to deprive Larry forever of his reproductive organ and his
capacity to procreate; and 4) that respondents, in conspiracy with
one another, made not only one but two (2) untruthful statements,
and not mere inaccuracies when they made it appear in the
psychiatry report[36] that a) Larrys consent was obtained or at the
very least that the latter was informed of the intended vasectomy;
and b) that Lourdes Aguirre was likewise interviewed and evaluated.
Paradoxically, however, petitioner Gloria Aguirre does not in any way
state that she, instead of respondent Pedro Aguirre, has guardianship
over the person of Larry. She only insists that respondents should
have obtained Larrys consent prior to the conduct of the bilateral
vasectomy.
In contrast, the Office of the Solicitor General (OSG), for public
respondent DOJ, argues that the conduct of preliminary investigation
to determine the existence of probable cause for the purpose of filing
(an) information is the function of the public prosecutor.[37] More
importantly, the element[s] of castration or mutilation of an organ
necessary for generation is completely absent as he was not deprived
of any organ necessary for reproduction, much less the destruction of
such organ.[38]
Likewise, in support of the decision of the Court of Appeals,
respondents Pedro Aguirre and Olondriz assert that, fundamentally,
petitioner Gloria Aguirre has no standing to file the complaint, as she
has not shown any injury to her person or asserted any relationship
with Larry other than being his common law sister; further, that she
cannot prosecute the present case, as she has not been authorized by
law to file said complaint, not being the offended party, a peace
officer or a public officer charged with the enforcement of the law.
Accordingly, respondents Pedro Aguirre and Olondriz posit that they,
together with the other respondents Dr. Agatep and Dr. Pascual, may
not be charged with, prosecuted for and ultimately convicted of: 1)
mutilation x x x since the bilateral vasectomy conducted on Larry
does not involve castration or amputation of an organ necessary for
reproduction as the twin elements of the crime of mutilation x x x are
absent[39]; and 2) falsification x x x since the acts allegedly
constituting falsification involve matters of medical opinion and not
matters of fact,[40] and that petitioner Gloria Aguirre failed to prove
damage to herself or to any other person.
Respondent Dr. Agatep, in the same vein, stresses that vasectomy is
24
not mutilation. He elucidates that vasectomy is merely the excision of
the vas deferens, the duct in testis which transport semen[41]; that it
is the penis and the testis that make up the male reproductive organ
and not the vas deferens; and additionally argues that for the crime
of mutilation to be accomplished, Article 262 of the Revised Penal
Code necessitates that there be intentional total or partial deprivation
of some essential organ for reproduction. Tubes, seminal ducts, vas
deferens or prostatic urethra not being organs, respondent Dr.
Agatep concludes, therefore, that vasectomy does not correspond to
mutilation.
Anent the charge of falsification of a private document, respondent
Dr. Agatep asseverates that he never took part in disclosing any
information, data or facts as contained in the contentious Psychiatric
Report.
For her part, respondent Dr. Pascual insists that the assailed
Psychiatry Report was the result of her independent exercise of
professional judgment. Rightly or wrongly, (she) diagnosed Larry
Aguirre to be incapable of giving consent, based on interviews made
by the psychiatrist on Larry Aguirre and persons who interacted with
him.[42] And supposing that said report is flawed, it is, at most, an
erroneous medical diagnosis.
The petition has no merit.
Probable cause has been defined as the existence of such facts and
circumstances as would excite belief in a reasonable mind, acting on
the facts within the knowledge of the prosecutor, that the person
charged was guilty of the crime for which he was prosecuted.[43] The
term does not mean actual and positive cause nor does it import
absolute certainty.[44] It is merely based on opinion and reasonable
belief;[45] that is, the belief that the act or omission complained of
constitutes the offense charged. A finding of probable cause merely
binds over the suspect to stand trial. It is not a pronouncement of
guilt.[46]
The executive department of the government is accountable for the
prosecution of crimes, its principal obligation being the faithful
execution of the laws of the land. A necessary component of the
power to execute the laws is the right to prosecute their violators,[47]
the responsibility of which is thrust upon the DOJ. Hence, the
determination of whether or not probable cause exists to warrant the
prosecution in court of an accused is consigned and entrusted to the
DOJ. And by the nature of his office, a public prosecutor is under no
compulsion to file a particular criminal information where he is not
convinced that he has evidence to prop up the averments thereof, or
that the evidence at hand points to a different conclusion.
Put simply, public prosecutors under the DOJ have a wide range of
discretion, the discretion of whether, what and whom to charge, the
exercise of which depends on a smorgasbord of factors which are best
appreciated by (public) prosecutors.[48] And this Court has
consistently adhered to the policy of non-interference in the conduct
of preliminary investigations, and to leave to the investigating
prosecutor sufficient latitude of discretion in the determination of
what constitutes sufficient evidence as will establish probable cause
for the filing of an information against the supposed offender.[49]
But this is not to discount the possibility of the commission of abuses
on the part of the prosecutor. It is entirely possible that the
investigating prosecutor may erroneously exercise the discretion
lodged in him by law. This, however, does not render his act
amenable to correction and annulment by the extraordinary remedy
of certiorari, absent any showing of grave abuse of discretion
amounting to excess of jurisdiction.[50]
Prescinding from the above, the courts duty in an appropriate case,
25
therefore, is confined to a determination of whether the assailed
executive determination of probable cause was done without or in
excess of jurisdiction resulting from a grave abuse of discretion. For
courts of law to grant the extraordinary writ of certiorari, so as to
justify the reversal of the finding of whether or not there exists
probable cause to file an information, the one seeking the writ must
be able to establish that the investigating prosecutor exercised his
power in an arbitrary and despotic manner by reason of passion or
personal hostility, and it must be patent and gross as would amount
to an evasion or to a unilateral refusal to perform the duty enjoined
or to act in contemplation of law. Grave abuse of discretion is not
enough.[51] Excess of jurisdiction signifies that he had jurisdiction
over the case but has transcended the same or acted without
authority.[52]
Applying the foregoing disquisition to the present petition, the
reasons of the Assistant City Prosecutor in dismissing the criminal
complaints for falsification and mutilation, as affirmed by the DOJ, is
determinative of whether or not he committed grave abuse of
discretion amounting to lack or excess of jurisdiction.
In ruling the way he did that no probable cause for falsification and
mutilation exists - the Assistant City Prosecutor deliberated on the
factual and legal milieu of the case. He found that there was no
sufficient evidence to establish a prima facie case for the crimes
complained of as defined and punished under Articles 172,
paragraph 2, and 262 of the Revised Penal Code in relation to
Republic Act No. 7610, respectively. Concerning the crime of
falsification of a private document, the Assistant City Prosecutor
reasoned that the circumstances attendant to the case did not
amount to the crime complained of, that is, the lack of consent by
Larry Aguirre before he was vasectomized; or the fact that the latter
was not consulted. The lack of the two preceding attendant facts do
not in any way amount to falsification, absent the contention that it
was made to appear in the assailed report that said consent was
obtained. That would have been an untruthful statement. Neither
does the fact that the Psychiatric Report state that Lourdes Aguirre
has Bipolar Mood Disorder by the same token amount to falsification
because said report does not put forward that such finding arose
after an examination of the concerned patient. Apropos the charge of
mutilation, he reasoned that though the vasectomy rendered Larry
unable to procreate, it was not the permanent damage contemplated
under the pertinent provision of the penal code.
We agree. Grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the DOJ and the Assistant City Prosecutor
was not shown in the present case.
In the present petition, respondents Pedro Aguirre, Olondriz, Dr.
Agatep and Dr. Pascual are charged with violating Articles 172 and
262 of the Revised Penal Code, in relation to Republic Act No. 7610.
Article 172, paragraph 2 of the Revised Penal Code, defines the crime
of falsification of a private document, viz
Art. 172. Falsification by private individuals and use of falsified
documents. The penalty of prision correccional in its medium and
maximum periods and a fine of not more than 5,000 pesos shall be
imposed upon:
xxxx
2. Any person who, to the damage of a third party, or with the intent
to cause such damage, shall in any private document commit any of
the acts of falsification enumerated in the next preceding article.
Petitioner Gloria Aguirre charges respondents with falsification of a
private document for conspiring with one another in keeping Larry in
the dark about the foregoing (vasectomy) as the same was concealed
from him by the respondents x x x,[53] as well as for falsely
concluding and diagnosing Lourdes Aguirre to be suffering from
26
Bipolar Mood Disorder.
A scrutiny, however, of Article 171 of the Revised Penal Code which
defines the acts constitutive of falsification, that is
Art. 171. x x x shall falsify a document by committing any of the
following acts:
1. Counterfeiting or imitating any handwriting, signature, or rubric;
2. Causing it to appear that persons have participated in any act or
proceeding when they did not in fact so participate;
3. Attributing to persons who have participated in an act or
proceeding statements other than those in fact made by them;
4. Making untruthful statements in a narration of facts;
5. Altering true dates;
6. Making any alteration or intercalation in a genuine document
which changes its meaning;
7. Issuing in an authenticated form a document purporting to be a
copy of an original document when no such original exists, or
including in such copy a statement contrary to, or different from, that
of the genuine original; or
8. Intercalating any instrument or note relative to the issuance
thereof in a protocol, registry, or official book.
vis--vis the much criticized Psychiatric Report, shows that the acts
complained of do not in any manner, by whatever stretch of the
imagination, fall under any of the eight (8) enumerated acts
constituting the offense of falsification.
In order to properly address the issue presented by petitioner Gloria
Aguirre, it is necessary that we discuss the elements of the crime of
falsification of private document under the Revised Penal Code, a
crime which all the respondents have been accused of perpetrating.
The elements of said crime under paragraph 2 of Article 172 of our
penal code are as follows: 1) that the offender committed any acts of
falsification, except those in par. 7, enumerated in Article 171; 2) that
the falsification was committed in any private document; and 3) that
the falsification caused damage to a third party or at least the
falsification was committed with intent to cause such damage. Under
Article 171, paragraph 2, a person may commit falsification of a
private document by causing it to appear in a document that a
person or persons participated in an act or proceeding, when such
person or persons did not in fact so participate in the act or
proceeding. On the other hand, falsification under par. 3 of the same
article is perpetrated by a person or persons who, participating in an
act or proceeding, made statements in that act or proceeding and the
offender, in making a document, attributed to such person or
persons statements other than those in fact made by such person or
persons. And the crime defined under paragraph 4 thereof is
committed when 1) the offender makes in a document statements in
a narration of facts; 2) he has a legal obligation to disclose the truth
of the facts narrated by him; 3) the facts narrated by the offender are
absolutely false; and 4) the perversion of truth in the narration of
facts was made with the wrongful intent of injuring a third person.
Applying the above-stated elements of the crime to the case at bar, in
order that respondent Dr. Pascual, and the rest acting in conspiracy
with her, to have committed the crime of falsification under par. 3
and 4 of Article 171 of the Revised Penal Code, it is essential that
that there be prima facie evidence to show that she had caused it to
appear that Larry gave his consent to be vasectomized or at the very
least, that the proposed medical procedure was explained to Larry.
But in the assailed report, no such thing was done. Lest it be
forgotten, the reason for having Larry psychiatrically evaluated was
precisely to ascertain whether or not he can validly consent with
impunity to the proposed vasectomy, and not to obtain his consent to
it or to oblige respondent Dr. Pascual to explain to him what the
import of the medical procedure was. Further, that Larrys consent to
27
be vasectomized was not obtained by the psychiatrist was of no
moment, because nowhere is it stated in said report that such assent
was obtained. At any rate, petitioner Gloria Aguirre contradicts her
very own allegations when she persists in the contention that Larry
has the mental age of a child; hence, he was legally incapable of
validly consenting to the procedure.
In the matter of the supposed incorrect diagnosis of Lourdes Aguirre,
with regard to paragraph 2 of Article 171 of the Revised Penal Code,
we quote with approval the succinct statements of the Assistant City
Prosecutor:
[T]he fact that Dra. Pascual cited finding, which is not of her own
personal knowledge in her report does not mean that she committed
falsification in the process. Her sources may be wrong and may affect
the veracity of her report, but for as long as she has not alleged
therein that she personally diagnosed Lourdes Aguirre, which
allegation would not then be true, she cannot be charged of
falsification. Therefore, it goes without saying that if the author of the
report is not guilty, then with more reason the other respondents are
not liable.[54]
As to the charge of mutilation, Art. 262 of the Revised Penal Code
defines the crime as
Art. 262. Mutilation. The penalty of reclusion temporal to reclusion
perpetua shall be imposed upon any person who shall intentionally
mutilate another by depriving him, either totally or partially, of some
essential organ for reproduction.
Any other intentional mutilation shall be punished by prision mayor
in its medium and maximum periods.
A straightforward scrutiny of the above provision shows that the
elements[55] of mutilation under the first paragraph of Art. 262 of the
Revised Penal Code to be 1) that there be a castration, that is,
mutilation of organs necessary for generation; and 2) that the
mutilation is caused purposely and deliberately, that is, to deprive
the offended party of some essential organ for reproduction.
According to the public prosecutor, the facts alleged did not amount
to the crime of mutilation as defined and penalized above, i.e., [t]he
vasectomy operation did not in any way deprived (sic) Larry of his
reproductive organ, which is still very much part of his physical self.
Petitioner Gloria Aguirre, however, would want this Court to make a
ruling that bilateral vasectomy constitutes the crime of mutilation.
This we cannot do, for such an interpretation would be contrary to
the intentions of the framers of our penal code.
A fitting riposte to the issue at hand lies in United States v. Esparcia,
[56] in which this Court had the occasion to shed light on the
implication of the term mutilation. Therein we said that:
The sole point which it is desirable to discuss is whether or not the
crime committed is that defined and penalized by article 414 of the
Penal Code. The English translation of this article reads: "Any person
who shall intentionally castrate another shall suffer a penalty ranging
from reclusion temporal to reclusion perpetua." The Spanish text,
which should govern, uses the word "castrare," inadequately
translated into English as "castrate." The word "capar," which is
synonymous of "castrar," is defined in the Royal Academic Dictionary
as the destruction of the organs of generation or conception. Clearly
it is the intention of the law to punish any person who shall
intentionally deprived another of any organ necessary for
reproduction. An applicable construction is that of Viada in the
following language:
"At the head of these crimes, according to their order of gravity, is the
28
mutilation known by the name of 'castration' which consists of the
amputation of whatever organ is necessary for generation. The law
could not fail to punish with the utmost severity such a crime, which,
although not destroying life, deprives a person of the means to
transmit it. But bear in mind that according to this article in order
for 'castration' to exist, it is indispensable that the 'castration' be
made purposely. The law does not look only to the result but also to
the intention of the act. Consequently, if by reason of an injury or
attack, a person is deprived of the organs of generation, the act,
although voluntary, not being intentional to that end, it would not
come under the provisions of this article, but under No. 2 of article
431." (Viada, Codigo Penal, vol. 3, p. 70. See to same effect, 4
Groizard, Codigo Penal, p. 525.)
Thus, the question is, does vasectomy deprive a man, totally or
partially, of some essential organ of reproduction? We answer in the
negative.
In the male sterilization procedure of vasectomy, the tubular passage,
called the vas deferens, through which the sperm (cells) are
transported from the testicle to the urethra where they combine with
the seminal fluid to form the ejaculant, is divided and the cut ends
merely tied.[57] That part, which is cut, that is, the vas deferens, is
merely a passageway that is part of the duct system of the male
reproductive organs. The vas deferens is not an organ, i.e., a highly
organized unit of structure, having a defined function in a
multicellular organism and consisting of a range of tissues.[58] Be
that as it may, even assuming arguendo that the tubular passage can
be considered an organ, the cutting of the vas deferens does not
divest or deny a man of any essential organ of reproduction for the
simple reason that it does not entail the taking away of a part or
portion of the male reproductive system. The cut ends, after they
have been tied, are then dropped back into the incision.[59]

Though undeniably, vasectomy denies a man his power of
reproduction, such procedure does not deprive him, either totally or
partially, of some essential organ for reproduction. Notably, the
ordinary usage of the term mutilation is the deprivation of a limb or
essential part (of the body),[60] with the operative expression being
deprivation. In the same manner, the word castration is defined as
the removal of the testies or ovaries.[61] Such being the case in this
present petition, the bilateral vasectomy done on Larry could not
have amounted to the crime of mutilation as defined and punished
under Article 262, paragraph 1, of the Revised Penal Code. And no
criminal culpability could be foisted on to respondent Dr. Agatep, the
urologist who performed the procedure, much less the other
respondents. Thus, we find sufficient evidence to explain why the
Assistant City Prosecutor and the DOJ ruled the way they did. Verily,
We agree with the Court of Appeals that the writ of certiorari is
unavailing; hence, should not be issued.
It is once more apropos to pointedly apply the Courts general policy
of non-interference in the conduct of preliminary investigations. As it
has been oft said, the Supreme Court cannot order the prosecution of
a person against whom the prosecutor does not find sufficient
evidence to support at least a prima facie case.[62] The courts try and
absolve or convict the accused but, as a rule, have no part in the
initial decision to prosecute him.[63] The possible exception to this
rule is where there is an unmistakable showing of a grave abuse of
discretion amounting to lack or excess of jurisdiction that will justify
judicial intrusion into the precincts of the executive. But that is not
the case herein.
WHEREFORE, premises considered, the instant petition is DENIED
for lack of merit. The assailed 21 July 2005 Decision and 5 December
2005 Resolution, both of the Court of Appeals in CA-G.R. SP No.
88370 are hereby AFFIRMED. Costs against petitioner Gloria Aguirre.
29
SO ORDERED
G.R. Nos. L-68311-13
January 30, 1992
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
LAPNAYO BUKA @ "LAPNAYO LIBAT", PRAL NGAY, ANGEL PRAL,
BEREN MANDONG, PURONG BILAAN @ "PURONG" and TWO JOHN
DOES, accused. ANGEL PRAL and BEREN MANDONG, accused-
appellants.
DAVIDE, JR., J.:
At around noontime on 14 December 1978, a weapons carrier with
several passengers on board was ambushed by armed men in Sitio
Samlang, Datal Batong, Malungon, South Cotabato, causing the
deaths of Elena Pamoso and Estelita Imarga and the physical injuries
of Felipe Noquera. As a consequence thereof, three (3) separate
informations were filed on 5 March 1980 against Lapnayo Buka,
Angel Pral, Pral Ngay, Beren Mandong, and Purong Bilaan with the
then Court of First Instance (now Regional Trial Court) of South
Cotabato. The first charges them with the crime of Murder in
connection with the death of Elena Pamoso, committed as follows:
That on or about the 14th day of December, 1978, at 11:00 o'clock in
the morning to 12:00 o'clock noon time, at Sitio Samlang, Barangay
Datal Batong, Municipality of Malungon, Province of South Cotabato,
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused said to be in company with two John Does,
whose identities are still unknown and who are still at-large armed
with assorted high powered weapons such as Surit, shotgun rifle and
garand rifle and with evident premeditation and with deliberate intent
to kill, did then and there willfully, unlawfully and feloniously
ambush, attack, assault and shoot with the use of assorted firearms
at the weapon (sic) carrier of Edon Escobillo, boarded by 15
passengers and as a result thereof, inflicting and mortally wounding
Elena Pamuso which resulted to (sic) her instantaneous death.
CONTRARY TO LAW, with qualifying circumstances of evident pre-
meditation and with generic aggravating circumstance that the act
was committed by a band and with deliberate disregard of the respect
due the offended (sic) party on account of her sex, being a woman. 1
(emphasis supplied)
Said case was docketed as Criminal Case No. 1893.
The second 2 charges them with Frustrated Murder in the case of
Felipe Noquera on account of the wounds he suffered which would
have "ordinarily cause his death . . ., but nevertheless did not
produce it by reason of causes independent of their will that is, due
to the timely and able medical assistance rendered to said Felipe
Noquera which prevented his death." The same qualifying and
aggravating circumstances were alleged in the information except for
the aggravating circumstance of disregard of respect due the offended
party on account of her sex. This was docketed as Criminal Case No.
1894.
The third, 3 docketed as Criminal Case No. 1895, charges them with
the crime of Murder in connection with the death of Estelita Imarga
and alleges the same qualifying and aggravating circumstances as
those alleged in Criminal Case No. 1893.
The foregoing cases were ordered archived by the trial court on 30
September 1980 because all the accused were still at large;
nevertheless, warrants for their arrest were issued. 4
On 30 July 1981, the prosecution filed a motion to revive the cases
which asked for the issuance of an alias warrant of arrest.5 On 6
November 1981, accused Beren Mandong and Angel Pral were
30
arrested and brought under the custody of the law. 6 The others
remain at large up to the present.
The three (3) cases were then consolidated for joint trial as against
Beren Mandong and Angel Pral, who pleaded not guilty when
arraigned on 19 November 1981. 7
At the joint trial on the merits, the prosecution presented ten (10)
witnesses, while the defense presented eight (8) witnesses, including
the appellants themselves. 8 All of the witnesses testified before then
Judge Pedro Samson C. Animas.
After joint trial on the merits, the lower court, per Judge Marcelino R.
Valdez, rendered a consolidated decision, 9 promulgated on 20
January 1984, finding the accused Angel Pral and Beren Mandong
each guilty of "two (2) crimes of murder" and of the crime of
frustrated murder and sentencing them as follows:
WHEREFORE AND IN VIEW OF ALL THE FOREGOING, this Court
finds the accused Angel Pral and Beren Mandong guilty beyond
reasonable doubt and hereby convicts each of them of two crimes of
murder and Frustrated Murder.
As no mitigating nor (sic) aggravating circumstances were proven,
this Court hereby sentences each of them to suffer the penalty of
Reclusion Perpetua in Crim. Cases Nos. 1895 and 1893. However, in
Crim. Case No. 1894 accused is hereby sentenced to an
indeterminate penalty of eight (8) years and twenty (20) days of
Prision Mayor as Minimum to fourteen (14) years, ten (10) months
and twenty (20) days of Reclusion Temporal as maximum and to pay
the following damages to the heirs of the victims, to wit:
a)

Twelve Thousand (P12,000.00) Pesos each by reason of the death of
Estelita Imarga and Elena Pamoso and Six Thousand (P6,000.00)
Pesos for the Frustrated death (sic) of Felipe Noquera;
b)
Five Thousand (P5,000.00) Pesos each in concept of actual and moral
damages;
c)
Five Thousand (P5,000.00) Pesos each in concept of exemplary
damages and to pay the cost.
SO ORDERED.
The evidence for the prosecution upon which the convictions were
based is summarized by the trial court as follows:
On December 14, 1978, the victim with some other companions were
bound for General Santos City from Miasong Malungon, South
Cotabato, riding on a weapons carrier. Upon reaching Sitio Samlang,
Brgy Datal Batong, of said Municipality, at around 11:30 A.M. they
were ambushed by the accused resulting to (sic) the death of Estelita
Imarga, Elena Pamoso and wounding (sic) Felipe Noquera. The
weapons carrier was driven by Paquito Alvarez. Per Medical report the
cause of death of Estelita Imarga was "gun shot wounds, left chest,"
Elena Pamoso was "gun shot wounds, right chest" (Exhibits "D" and
"D-1") while Felipe Noquera suffered injuries, to wit:
Wound — gunshot with avulsion of outer layer of skin 4 cm. long,
one cm. wide left interscapular area.
Wound — gunshot with avulsion of outer layer of skin, 6 cm. long,
31
one cm. wide right, infrascapular area. (Exhibit "A")
Paquito Alvarez, driver of the weapons carrier which was ambushed
declared that he saw the ambushers with guns and recognized two of
them as Beren and Purong, the real name (sic) are Beren Mandong
and Purong Bilaan. He recognized these two among the ambushers
because he is acquainted with them long time (sic) before the
incident. The others were new to him and hence did not recognize
them.
When they were shot at, he speed (sic) up his truck until they
reached Datal Kangil, a place three kilometers, more or less, from the
ambush scene where he asked for help from the Barangay Captain.
They went back to retrieve one of the victims Estelita Imarga who fell
from the weapons carrier and brought her to Datal Kangil (TSN, pp.
7-14, Feb. 1, 1982)
Felipe Noquera, the one who sustained gun shot wounds but escaped
death, testified that they were ambushed at Sitio Samlang, Datal
Batong, Malungon, at around 11:00-11:30 o'clock A.M., on December
14, 1978, on their way to General Santos City from Brgy. Miasong, of
said Municipality, riding on a weapons Carrier (sic). He saw the
ambushers and recognized Angel, Beren, Pral and Lapnayo whose
real names are Angel Pral, Beren Mandong, Ngay Pral, Lapnayo Buka
and Purong Bilaan. The witness was acquainted with these persons
long (sic) time before the incident for he used to see them in Datal
Batong. He (Noquera) being a driver himself of a weapons carrier. He
identified Angel Pral and Beren Mandong in court during his open
testimony. (TSN, pp. 25-29, Feb. 2, 1982). He saw each of these two
ambushers with long firearms. In spite of the rigid cross examination
on this witness he stood pat on the identity of the two accused,
testifying firmly that he saw them (accused) holding long firearm
each, but he did not know what kind firearms were those. He was
investigated by the office of the Provincial Fiscal and he told the same
version — re — the identity of these two accused. (TSN, pp. 39-40,
Feb. 2, 1982)
Luis Esconde, one of the persons on board the weapon (sic) carrier at
the time of the of the time (sic) of the ambushcade (sic) testified that
upon reaching sitio Samlang, he saw the ambushers more than five,
who fired at them and he recognized three of them, Lapnayo, Beren
and Angel, whose real name (sic) are Lapnayo Buka, Beren Mandong,
and Angel Pral. He did not recognized (sic) the others. He readily
pointed to the accused Angel Pral and Beren Mandong when he was
made to identify them in Court. He is acquainted with said accused
because he usually see (sic) them in Datal Batong during market
days, cockfighting and card games. He saw the victims of the ambush
Estelita Imarga and Elena Pamoso who died immediately thereafter,
while Felipe Noquera suffered gun shot wounds (TSN, pp. 46-51, Feb.
3, 1982). Upon rigid cross-examination this witness also stand (sic)
pat on the identity of these two accused whom he saw holding long
firearm (sic) each.
Ricardo Salvador, one of the persons on the (sic) board the weapon
(sic) carrier at the time and date of the ambush, stated that he saw
the ambushers, but he only recognized Beren, whose real name is
Beren Mandong, also holding a long firearm. He saw the victims
Estelita Imarga and Elena Pamoso who died immediately thereafter
while Felipe Noquera suffered gunshot wounds. (TSN, pp. 61-64, Feb.
3, 1982). On cross (sic), this witness firmly stated that he knew
personally Beren Mandong before the incident because he usually
saw him in Datal Batong, while the rest of the ambushers were not
known to him, hence, he could not recognize them (TSN, pp. 64-65,
Feb. 3, 1982).
The trial court rejected the defense of alibi presented by both
accused, summarizing and disposing of it as follows:
32
Conversely, accused Angel Pral took up the defense of Alibi. He
denied having participated in the ambush killing at Sitio Samlang,
Brgy. Datal Batong, Malungon, South Cotabato, on December 14,
1978, for at the time of the alleged ambush he was in General Santos
City, together with his father, Fral Ngay; that on December 13, 1978
he went to General Santos City with Elisias Pempillo with (sic) whom
he sold his corn produce, that they arrive (sic) General Santos City at
around 3:00 o'clock P.M. on that date; that he did not go back to
Datal Batong on December 14, 1978 but slept in Llidos home General
Santos City (sic) and went back to Datal Batong only on December
15, 1978; that Lising Pempillo the buyer of his corn was the only one
who returned to Datal Barong on the 13th of December and went
back to General Santos City on December 14, 1978, arriving thereat
at 1:00 o'clock P.M. (TSN, pp. 174-178, July 22, 1982).
On cross (sic), this accused admitted he has not gone to school; that
he is an illiterate and does not know the month of the year; that he
knew only that he had been selling his corn produce in the month of
December, 1978, because he was told by the christians (sic) thereat;
that he harvested his corn on December 9, 1978 and finished the
same on December 12; that he remembered very well December 9-12,
when he harvested his corn, December 13, when he sold his corn to
Lising Pempillo, December 14, when he slept in General Santos City
and December 15, when he went back to Datal Batong. But when he
was ask (sic) the date when he testified on July 22, 1982, he
answered "I don't know." Asked further how he remembered those
dates, December 9, 12, 13, 14 and 15, 1978, he answered that he
was informed by the christians (sic) thereat, that those were the dates
(TSN, pp. 180-184, July 22, 1982). Then this accused was again
asked the date when he was born and he said he does not know; he
does not also know when he got married, nor does he know the birth
date of his child. He does not also know the distance from Dadiangas
to Datal Batong, nor (sic) does he know how to tell the time. (TSN, pp.
185-186, July 22, 1982).
The version of this accused was corroborated by Elisias Pempillo, the
businessman with (sic) whom accused Angel Pral sold his corn
harvest. This witness testified that he knew personally Angel Pral;
that on December 12, Angel Pral informed him that his corn was
ready for hauling; that he had been hauling Angel Pral's corn from
December 12-13 when he hauled the corn to General Santos City on
the latter date bringing with him the accused. When this witness
return (sic) to Datal Batong on December 13, 1978, Angel Pral was
left in General Santos City. He (Pempillo) again hauled the corn on
December 14, arriving in General Santos City at around 1:00 P.M.
where he saw accused Angel Pral. On December 15, 1978, all of them
returned to Datal Batong (TSN, pp. 131-136, July 20, 1982). It took
more than a year when Angel Pral was apprehended and brought to
the custody of the law. This witness knew the arrest of Angel Pral by
the police authorities but inspite of his knowledge, he did not care to
inform the police authorities that Angel Pral was innocent of the
crime charged against him. He did not also tell anybody about what
he knew about Angel Pral, that this accused was with him since
December 13-15, 1978; that Angel Pral was in General Santos City
on December 14, the date of the ambush (TSN, pp. 138-139, July 20,
1982).
However, this witness was confronted with his sworn statements
before the fiscal's (sic) Office taken on July 17, 1979, where he stated
that on December 12, 1978 they were not able to go back to General
Santos City, but instead they slept in Malungon, South Cotabato in
their house at Data (sic) Batong. Then he was asked.
Q So
what you declared here before the Investigating Fiscal was not true?
A I
cannot remember it correctly but what I can remember is that I
delivered corn on December 13, and 14 (TSN, pp. 143, July 20,
1982).
33
Asked further how he came to remember the dates of December 13,
14 and 15, 1978, and (sic) he answered: "Because those were the
dates, I delivered corn." However, when he was asked the date when
he testified before the Provincial Fiscal's Office, he could not
remember. Then his credibility was tested. He was asked how many
children he has and he answered "Twelve". When he was asked the
date of birth of his tenth child, he answered: "I cannot recall." Of the
seventh child, Charlin, he said, he cannot recall. Of the twelve (sic)
child, he said he cannot remember. Of the eleventh, he could not also
remember. Of the sixth child, he said he cannot also remember.
Under the circumstances, there is indeed a doubt as to the credibility
of this witness. The veracity for (sic) truth of his testimony is very
doubtful. What he could remember only were those dates, December
13, 14 and 15, 1978, in comparison with dates of more significant
events, which goes to show, that such line of testimony could be
dubbed as coach (sic) testimony.
On the other hand, accused Beren Mandong has the same nature of
defense. He is a bilaan (sic), and an illiterate (sic). He was arrested
sixteen months after the complaint was filed. He declared that at the
time and date of the ambush on December 14, 1978, he was farming
in the farm of Serafin Sunio at Datal Batong as a hired laborer; that
he knew of this date because Serafin Sunio told him; that when he
was asked the date he testified in Court, he answered: "I don't know"
(TSN, pp. 199-201, Nov. 18, 1982).
The foregoing version was affirmed by Serafin Sunio, that on
December 14, 1978, he had his land at Datal Batong cleared and he
employed 24 laborers, out of whom were more than ten bilaan (sic).
These laborers had been working at 7:00 A.M. to 11:30 A.M., and one
of them was accused Beren Mandong. They worked the whole day up
to 5:00 P.M. under the direct supervision of Serafin Sunio. This
witness learned of the ambush at Sitio Samlang, Datal Batong which
is three kilometers away from his farm. (TSN, pp. 159-161, July 21,
1982). There were of course clear and distinct descripancies (sic)
between the open testimony of this witness in open court with that of
his sworn statement with the Fiscal's Office regarding the number of
laborers he employed on December 14, 1978 from 24 to 33 in
number. He also testified in open Court that there were more
christians (sic) than bilaans (sic) while in his sworn statement with
the Fiscal's Office there were more Bilaans than christians (sic); and
when asked what were their names he only know (sic) five, namely:
Pilang, Beren, Oro and Ondan, and nothing more. The probative
value of this line of testimony is fatally infirmed by its unreliability.
Alibi is a week defense and cannot prevail over the testimony of
truthful witnesses. The reason is that alibi is easy of (sic) fabrication.
(Peop. vs. Bulawin, 29 SCRA 710; Peop. vs. Gomez, 28 SCRA 440).
Court should exercise great caution in accepting the defense of alibi
because it is easily concocted (Peop. vs. Bagsican, 6 SCRA 400). In
order that an (sic) alibi as a defense may prosper, the evidence to
support it must be clear and convincing as to preclude the possibility
of the accused's presence at the scene of the crime, while the
evidence as to its identification must be weak and insufficient. (Peop.
vs. Jamero, 24 SCRA 207; Peop. vs. Lumantas, 28 SCRA 764; Peop.
vs. Alcantara 33 SCRA 813). To establish alibi, the accused must
show that he was at some other place for such a period of time that it
was impossible for him to have been at the place where the crime was
committed at the time of its commission (Peop. vs. Lumantas, 28
SCRA 754). The claim of the accused that they were far from the
scene of the crime is not credible, where there is probability that they
might have spread out in the neighboring towns and barrios to
eliminate their enemies (Peop. vs. Corpuz, 1 SCRA, 33; Peop. vs.
Almeriz, 3 SCRA 252). The defense of alibi cannot prevail over the
positive identification of witnesses (Peop. vs. Baiaga, 1 SCRA 283;
Peop. vs. Estrada, 22 SCRA 111).
34
All the foregoing doctrines play a vital role against the defense of alibi
of the accused. It could not be improbable for the accused to have
been at the scene of the ambush from the place where they allegedly
were on the date of December 14, 1978, considering the distance
which is approachable within few (sic) minutes or hours. Were it a
fact that the accused were not definitely identified by witnesses for
the prosecution, then the accused (sic) defense of alibi assumes
importance. But such was not the case, for the accused were
definitely identified by the prosecution witnesses to be the
companions of the ambushers on that fatal day. Not only were they
definitely identified but that after the commission of the offense, on
December 14, 1978 these two accused went into hiding and were
only arrested on November 6, 1981 or there about (sic), after a period
of over two years. This (sic) cases were archived on September 30,
1980, for the accused escaped from their permanent residence, at
Datal Batong, Miasong, Malungon South Cotabato, and up to the
present their other co-accused are still at large and could (sic) not be
found. "The wicked fleeth while no man pursueth but the righteous
are as bold a (sic) lions," goes the saying. There could have been no
other to have stage the ambushcade (sic) except the herein and their
gang, for there were no other persons seem (sic) by the prosecution
witnesses except the herein accused and their co-accused who are
still at large. On the foregoing scores, this court arrives at the
conclusion that the presumption of innocence of the accused as
provided in the Constitution had been overcome. The denials of the
accused to have (sic) participated in the ambushcade (sic) are
ineffective to overcome the evidence of the prosecution, particularly
the positive testimonies of Felipe Noquera and Luis Esconde,
passenger (sic) of the weapons carrier when the ambush was
committed. Surprisingly the conduct of these accused right after the
shooting incident has been very suspicious, for immediately
thereafter all the accused escaped and could no longer be found.
Compared to the true identification and testimonies of the
prosecution witnesses this court does not doubt their veracity for
being disinterested witnesses and whose impartiality has not been
placed in doubt.
As to the testimony of Mayor Felipe Constantino of the Municipality
of Malungon that there has been a confrontation in July, 1980 with
some of the rebels responsible of (sic) the ambushcade (sic) on
December 14, 1978, with Col. Bumanglang and a Major from the
Army, 3rd Inf. Btn., wherein four of the rebels namely: Olding Golac,
So Dol, Toy Maliang, and Dano Pandayong admitted responsibility for
the ambush, this court believes that said result of the alleged
confrontation cannot be taken on its face value "hook line and sinker"
because of the hearsay of the said confrontation. The confrontation
was allegedly made in July, 1980, after the case had already been
filed in court. However, this witness, a Municipal Mayor at that, did
not care to give the complete details of such confrontation to the
court for its guidance, especially at that time when the accused were
all still at large and warrants of arrest had been issued against them.
Nor was there an information given to the prosecution arm of the
government regarding said confrontation whereby four of the
surrenderees admitted responsibility of (sic) the ambushcade (sic).
And if the accused were not really the perpetrators of the dastard (sic)
crime, why is it that immediately after December 14, 1978, these
accused could no longer be found at their respective residence (sic)
and could not be apprehended until November 6, 1981 when two of
them brought to the custody of the law. Besides, the surrenderees
were not brought to court before the alleged amnesty was given to
them, so this case should have been resolved pursuant to law. Under
the circumstances, this court cannot exculpate the accused based on
a flimsy defense of alibi, against the clear, convincing testimonies of
government witnesses that the accused were indeed the ones
responsible for the murder and frustrated murder or ambush
shooting resulting to (sic) the instantaneous death of Estelita Imarga,
Elena Pamoso and wounding Felipe Noquera. 10
35
In convicting each of the accused for murder as charged in Criminal
Cases Nos. 1893 and 1895 and frustrated murder in Criminal Case
No. 1894, the trial court considered the qualifying circumstances of
treachery and evident premeditation since the "ambush or shooting
was so sudden and unexpected assault (sic) perpetrated by all the
accused insured the killing of the two defenseless victim Estelita
Imarga and Elena Pamoso and the frustrated death (sic) of Felipe
Noquera." 11
Unable to accept the verdict, accused Angel Pral and Beren Mandong,
hereinafter referred to as the Appellants, filed their Notice of Appeal
12 on 6 February 1984 wherein they manifested their intention to
appeal to the then Intermediate Appellate Court (now Court of
Appeals). In view of the penalty imposed, the appeal should have
been brought directly before this Court. The Intermediate Appellate
Court, upon receipt of the records of the cases, correctly forwarded
the same to this Court on 15 August 1984; 13 the cases were then
docketed as G.R. Nos. 68311-13.
In their Brief, Appellants assign only one (1) error:
THE TRIAL COURT ERRED IN CONVICTING THE APPELLANTS OF
TWO (2) CRIMES OF MURDER AND FRUSTRATED MURDER
NOTWITHSTANDING THE INSUFFICIENCY OF EVIDENCE
ADDUCED BY THE PROSECUTION TO PROVE THEIR GUILT
BEYOND REASONABLE DOUBT. 14
and in support thereof, they assert and argue that:
(a)
Their defense of alibi should have been given more credence
considering that it is corroborated by two (2) other people, namely
Elisias Pempillo (corroborating the alibi of Angel Pral) and Serafin
Sunio (corroborating the testimony of Beren Mandong); 15
(b) The
testimonies of Mayor Felipe Constantino of Malungon, South
Cotabato and Barangay Captain Venancio Malayon of Barangay
Bilaan 16 that the real ambushers had already surrendered and had
been granted amnesty, clearly show their innocence; said testimonies
should have been given more weight by the trial court;
(c) The
testimonies of the prosecution witnesses, heavily relied upon by the
trial court in convicting the Appellants, were full of inconsistencies
such that there was a failure to positively identify the perpetrators of
the crime; 17
(d) On
the credibility of the prosecution witnesses, the findings of the trial
court in the case at bar are not controlling and should not be given
much weight because the judge who rendered the decision is not the
same judge who heard the case; 18 and
(e)
Finally, even assuming arguendo, that the Appellants were among
those who staged the ambush, they cannot be convicted for
Frustrated Murder in G.R. No. 68312 (Criminal Case No. 1894 in the
court below) because as per the testimony of prosecution witness Dr.
Casimiro Mansilla, the victim, Felipe Noquera, would have lived even
without medical attendance considering that the wound was just a
slight physical injury. 19
The People, in its Brief filed by the Solicitor General, disagrees with
the Appellants and maintains that the prosecution was able to prove
their guilt beyond reasonable doubt. It stressed that at least four (4)
36
eye-witnesses positively identified them as those who ambushed the
victims. 20 It further claims that as against the positive identification
by the prosecution witnesses, the Appellants' defense of alibi is weak
and not plausible. 21
Anent the contention that the testimonies of the prosecution
witnesses are full of inconsistencies, the People painstakingly
contradicted each and every inconsistency mentioned, to wit:
The appellants contend that the testimony of witness Paquito Alvarez
is not to be believed because there is an inconsistency when he
admitted having pointed to all the accused during the preliminary
investigation before the fiscal, while in his testimony in court he
claimed to have recognized only accused Beren Mandong and Purong
Bilaan.
The contention is without merit. There is no showing in the testimony
that when counsel mentioned the word "accused", he was referring to
all the accused, including those at-large, or that he was referring only
to all the accused who had been apprehended. Hence, the alleged
inconsistency is wanting. As to the alleged testimony of the defense
witness Barangay Captain Malayon that when he interviewed Alvarez
and the other passengers, no one told him as to who were the
ambushers, suffice it to say that the testimony of said witness cannot
be used to impeach the testimony of eye-witness Alvarez. Besides
there is no showing that Barangay Captain Malayon ever asked
Alvarez nor (sic) the passengers as to the identity of the ambushers.
The appellants likewise contends (sic) that eye-witness Felipe
Noquera is not credible because the said witness allegedly declared
that when he heard gun reports he immediately took cover by lying
face down on the roof of the weapon (sic) carrier, and that when
cross-examined, the said witness forgot the shirt worn by the
accused, their distance from one another and their relative position
from (sic) each other.
The contention lacks merit. It is not true that eye-witness Noquera
immediately took cover face down upon hearing the gun reports.
What he testified during cross-examination is that he first looked
sidewise from where the gun report came before taking cover. Thus:
Q witness Salvador when he glanced at the ambushers who were on top
And when you dived on the roof of the vehicle on your belly, you did
that instantaneously upon hearing the gunburst?
A 63811-13, herein) because "all the elements of the crime of murder,
Yes, sir. I looked sidewise from where the gun report came (p. 33, tsn,
Feb. 2, 1982).
As regards his failure to remember the shirt worn by the accused,
their distance from one another and their relative position from (sic)
each other, suffice it to say that the same is not uncommon, for
under such a situation where they were ambushed, the natural
tendency of a witness is only to focus his vision at the face of the
person firing at them in order to see recognize (sic) malefactors.
Hence, he could not have a clear vision of the shirts they were
wearing, their distance from one another and relative position from
(sic) each other. Besides, the witness testified after the lapsed (sic) of
about four (4) years. Hence, he could not have possibly remembered
all the minute details which to him are not of great significance.
The appellant further contends that the testimony of eye-witness
Ricardo Salvador that he recognized Beren Mandong as one of the
ambushers cannot also be given full credit because Salvador was
seated at the middle of the weapon (sic) carrier and that the said
vehicle has a roof which could have prevented him from seeing the
37
accused who were on top of a hill.
The contention is without merit. In the first place, it is not true that
the entire weapon (sic) carrier was covered by a roof. Only the driver's
cabin has a roof, while the portion at the rear thereof was uncovered.
Secondly, the ambushers were standing on the hill and were openly
exposed. There is nothing, therefore, to obstruct the view of eye-
of the hills firing at them. 22
The People further contends that the Appellants were correctly
convicted of Frustrated Murder in Criminal Case No. 1894 (G.R. No.
including the intent to kill with the use of deadly weapon, are
present" and "it is inconsequential whether the wound inflicted is
serious or less serious or slight." 23
Lastly, the People submits that the indemnity of P12,000.00 each, to
be paid to the heirs of the deceased Estelita Imarga and Elena
Pamoso, should be increased to P30,000.00 each, in view of the
ruling in People vs. Dioso. 24
We have meticulously examined and painstakingly scrutinized the
records of this case and the challenged decision and We are
convinced that the Appellants have been positively identified as two
(2) of those who staged the ambushcade whose guilt has been
established beyond reasonable doubt by the testimonies given by the
prosecution witnesses, particularly that of Paquito Alvarez (driver of
the weapons carrier), Felipe Noquera (the injured victim) and Luis
Esconde and Ricardo Salvador (both passengers of the weapons
carrier).
The inconsistencies in the testimonies of Alvarez and Noquera, which
Appellants capitalized on , pertain to minor details only and cannot
destroy their credibility. Inconsistencies in the testimony
prosecution witnesses with respect to minor details and collateral
matters do not affect the substance of their declaration, their veracity
or the weight of their testimony. 25 In fact, these inconsistencies, if
only in minor details, reinforce rather than weaken their credibility,
for it is usual that witnesses to a stirring event should see differently
some details of a startling occurrence. 26 Rather than discredit the
testimony of the witnesses, such discrepancies on minor details serve
to add credence and veracity to their categorical, straightforward and
spontaneous testimony. 27 Besides, as earlier stated, the People took
extra efforts to explain the alleged inconsistencies and, in the
process, demonstrate the weakness of Appellants' claim.
As to the defense of alibi, We agree with the trial court that it could
not prevail over the positive identification of the Appellants. Alibi is a
weak defense and cannot prevail over the testimony of truthful
witnesses because it is easy to fabricate. 28 Furthermore, for alibi to
prosper, it must be established by clear evidence that the accused
was in another place for such a period of time as to negate his
presence at the scene of the crime when it was committed. 29 In the
case at bar, the trial court found that "it could not be improbable for
the accused to have been at the scene of the ambush from the place
where they allegedly were on the date of December 14, 1978,
considering the distance which is approachable within few (sic)
minutes or hours." 30 We find no reason to disagree with the trial
court as the Appellants failed to show Us any basis for overturning
this findings.
The testimonies of Mayor Felipe Constantino of the Municipality of
Malungon and Barangay Captain Venancio Malayon of barangay
Bilaan do not inspire belief. Firstly, the alleged surrender and grant
of amnesty to the "ambushers" who, as claimed by Mayor
Constantino, were not the appellants, was not corroborated by "Col.
Bumanglag", the person who allegedly accepted the surrender and
of granted the amnesty. Secondly, Constantino's claim of an ambush is
based on what he allegedly heard during the meeting. There was no
specific reference to the ambush in question. Thirdly, Col.
Bumanglag, if he indeed even existed, had no authority to grant
amnesty. Under the Constitution then in force, more particularly
Section 13, Article VII of the 1973 Constitution, only the President,
with the concurrence of the Batasang Pambansa, had the power to
grant amnesty. Fourthly, there is an irreconcilable conflict between
the testimonies of the Mayor and the barangay captain as to the date
of the alleged surrender. The former claims that it took place in July
1980 31 while the latter alleges that it was in "1979". 32 Worse, while
the Mayor asserts that those who admitted to have staged the
ambush were Olding Gola-e, So Dol, Toy Maliang and Dano
Pandayong, 33 witness Malayon claims that the suspects were Toy
Golas, Olding Golas, Lagono Lagayong and So Golaing. 34 This
witness also claims that one of the victims of the ambush who died
was Lolita Agupitan. 35 Per prosecution's evidence, only Elena
Pamoso and Estelita Imarga died as a consequence of the ambush.
Finally, Appellants exerted no effort to present as witness any of the
ambushers who "surrendered." Their non-availability or hostility was
not shown. The "surrender" and "amnesty" story then is nothing but
a crude fabrication.
On the factual findings of the trial court, the Appellants urge Us not
to give weight to said findings as the judge who rendered the decision
did not hear the case himself. 36 As they correctly pointed out.
"Appellate courts will generally not disturb the findings of fact of the
trial court, 37 except where the judge who rendered the decision is
not the judge who heard the case." 38 However, the foregoing rule
and its exception do not apply in a case where the trial court's
conclusion are fully substantiated and supported by the evidence on
record and warrants the affirmance of such findings. 39
As held in the case of People vs. Bocatcat: 40
38

Finally, the Court notes that the lower court's judgment was penned
by a judge who did not hear the evidence. And so, while the rule is
settled that the findings of fact by the trial court are entitled to great
weight on appeal, as they are in better position to examine and
observe the demeanor of witnesses, this rule does not, however, apply
in the case at bar, yet, we find no cogent reason to reverse His
Honor's judgment as his conclusions are fully substantiated and
supported by the evidence on record.
In the case at bar, We find that the findings of fact of the trial court
are amply supported by the evidence on record.
We agree, however, with Appellants that they cannot be convicted for
the crime of Murder in Criminal Case No. 1894 because, as testified
to by Dr. Casimiro Mansilla, the doctor who examined the victim,
Felipe Noquera, the latter would have lived even without medical
attendance because the "wound was just a slight physical injury." 41
Per the medical certificate, 42 the following were the injuries inflicted
on Noquera:
— Wound, gunshot with avulsion of outer layer of skin 4 centimeter
(sic) long, one centimeter wide left interscapular area.
— Wound, gunshot with avulsion of outer layer of skin 6 centimeter
(sic) long, one centimeter wide right, infrascapular area.
which "require medical attendance for the period of seven (7) to nine
(9) days, unless complications set in or manifestation due to internal
injuries which are not apparent at the time of the examination appear
later."
A crime is frustrated when the offender performs all the acts of
execution which would produce the felony as a consequence but
39
which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator. 43 However, if 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 crime is only attempted. 44 It is quite
obvious that, in respect to Noquera, the crime never passed the
"attempted" stage.
The trial court, in ruling that murder was committed in the case of
Elena Pamaso and Estelita Imarga and frustrated murder in the case
of Felipe Noquera, considered the qualifying circumstances of evident
premeditation and treachery.
We disagree with the trial court on this score.
For evident premeditation to be present, the following requisites must
concur:
(1) the
time when the offender determined to commit the crime;
(2) an
act manifestly indicating that he has clung to his determination; and,
(3)
sufficient lapse of time between determination and execution to allow
him to reflect upon the consequences of his act. 45
It must be proved as clearly as the crime itself and cannot be
deduced from mere conclusions and inferences. 46 The evidence
presented against the appellants miserably failed to prove the
foregoing requisites.
Treachery is present when the offender commits any of the crimes
against persons employing means, methods or forms in the execution
thereof which tend directly and specially to insure its execution
without risk to himself arising from the defense which the offended
party might make. 47 While treachery was duly proven against
appellants because the ambush was so sudden and unexpected that
the victims were unable to defend themselves and, obviously, the
means of execution were deliberately and consciously adopted, such
circumstance is not, however, alleged in the three (3) informations.
For treachery to qualify the crime of homicide to murder, it must be
alleged in the information, otherwise it will only be considered a
generic aggravating circumstance, if proven. 48 Therefore, treachery
is only a generic aggravating circumstance in these cases. The
informations allege that the aggravating circumstance of band
attended the commission of the crimes charged. There is a band
whenever more than three (3) armed malefactors shall have acted
together in the commission of an offense. 49 The accusatory portions
of the informations elaborate this circumstance by stating that the
five (5) named accused, two (2) of whom are the Appellants, and two
(2) other John Does "armed with assorted high-powered weapons
such as Garand rifle, shotgun and surit and with evidence
premeditation and with deliberate intent to kill, did then and there
willfully, unlawfully and feloniously ambush, attack, assault and
shoot with assorted high powered weapons" the weapons carrier of
Edon Escobillo thereby causing the death and injuries described
therein. Evidently, the prosecution did not intend to make the
aggravating circumstance of aid of armed men as a qualifying
circumstance under Article 248 of the Revised Penal Code.
Otherwise, it would have expressly alleged it as such as in the case of
the qualifying circumstance of treachery and evident premeditation.
Accordingly, band absorbed aid of armed men. 50
The aggravating circumstance of disregard of the respect due the
offended party on account of sex alleged in Criminal Cases Nos. 1893
40
and 1895 cannot be appreciated against the Appellants, there being
no proof that they deliberately intended to offend the sex of the
victims or show manifest disrespect towards them. 51
Accordingly, the Appellants are guilty of homicide on two (2) counts
and of attempted homicide, with the generic aggravating
circumstances of treachery and band.
The penalty for Homicide under Article 249 of the Revised Penal Code
is reclusion temporal. In view of the generic aggravating
circumstances of treachery and band, the penalty shall be imposed in
its maximum period. They are entitled to the benefits of the
Indeterminate Sentence Law 52 which authorizes the imposition of
an indeterminate penalty the maximum of which shall be that which,
in view of the attending circumstances, could be properly imposed
under the rules of the Revised Penal Code and the minimum of which
shall be within the range of the penalty next lower to that prescribed
by the Code for the offense. The penalty for attempted homicide
(Criminal Case No. 1894) is, pursuant to Article 50 of the Revised
Penal Code, two (2) degrees lower than that provided for in Article
249, which is prision correccional. Appellants are also entitled to the
benefits of the Indeterminate Sentence Law.
In accordance with the policy of this Court, 53 the civil indemnity for
each death should be increased from P12,000.00 to P50,000.00.
WHEREFORE, in view of the foregoing, the appealed judgment is
hereby modified. As modified, Appellants Angel Pral and Beren
Mandong are hereby found and declared guilty beyond reasonable
doubt of the crime of Homicide on two (2) counts for the death of
Elena Pamoso in Criminal Case No. 1893 and for the death of Estelita
Imarga in Criminal Case No. 1895, and of the crime of Attempted
Homicide in Criminal Case No. 1894. Taking into account the
absence of any mitigating circumstances and the presence of the
aggravating circumstances of treachery and band, and applying the costs. IT IS SO ORDERED
Indeterminate Sentence Law, each of them is hereby sentenced to
suffer as follows: G.R. No. 80399-404

1) In November 13, 1997

Criminal Case No. 1893, an indeterminate penalty ranging from Ten PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
(10) years and One (1) day of Prision Mayor as minimum to Seventeen PERMONETTE JOY FORTICH and RUDY GAID, accused-
(17) years, Eight (8) months and One (1) day of Reclusion Temporal appellants.
as maximum;
ROMERO, J.:
2) In Accused-appellants Permonette Joy Fortich and Rudy Gaid were each
Criminal Case No. 1895, an indeterminate penalty ranging from Ten charged with two counts of forcible abduction with rape,1 one count
(10) years and One (1) day of Prision Mayor as minimum to Seventeen of robbery with frustrated homicide2 and one count of robbery.3
(17) years, Eight (8) months and One (1) day of Reclusion Temporal
as maximum; I. In
Criminal Case No. 3809 — Forcible Abduction with Rape
3) In
Criminal Case No. 1894, an indeterminate penalty ranging from Four That on or about March 31, 1983 in the evening, in the City of
(4) months and One (1) day of Arresto Mayor as minimum to Four (4) Cagayan de Oro, Philippines, and within the jurisdiction of this
years, Two (2) months and One (1) day of Prision Correccional as Honorable Court, the above-named accused, with violence and
maximum; intimidation, and with the use of an unlicensed firearm, conspiring,
confederating together with one Rudy Gaid alias Boy Gaid, who is
and to indemnify, jointly and severally, the heirs of the deceased presently at large, and mutually helping one another, did then and
Elena Pamoso in Criminal Case No. 1893 in the sum of P50,000.00 there wilfully, unlawfully and feloniously abduct the herein
and the heirs of the deceased Estrelita Imarga in Criminal Case No. complainant, Marilou Nobleza by then and there taking and carrying
1895 in the sum of P50,000.00, without prejudice to the seeking of her away with her sister, Maritess Nobleza, and loading said
reimbursement from their co-accused in the event the latter are complainant on board a stolen pick-up, against her will and consent
arrested, tried and convicted. and with lewd design, and brought her from Alta Tierra, Carment
Hill, this city, to Malasag, this city, and while at Malasag, did then
The prosecutory arm of the Government is enjoined to take and there wilfully, unlawfully and feloniously have carnal knowledge
immediate positive steps to bring into the custody of the law the (by accused Permonette Joy Fortich) of the herein complainant,
other accused who shall forthwith be tried by the lower court. against her will and consent, to her great damage and prejudice.

The Appellants are further ordered to pay two-sevenths(2/7) of the Contrary to Article 342 in relation to Article 335 of the Revised Penal
41
Code.
II. In
Criminal Case No. 3877 — Forcible Abduction with Rape
That on or about March 31, 1983, in the evening, in the City of
Cagayan de Oro, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with violence and
intimidation and with the use of an unlicensed firearm, conspiring,
confederating together and mutually helping one another, did then
and there wilfully, unlawfully and feloniously abduct the complainant
Maritess Nobleza, by then and there taking and carrying her away
with her sister, Marilou Nobleza, and loading in a stolen pick-up with
her sister, against her will and consent and and (sic) with lewd
designs, and brought her from Alta Tierra, Carment Hill, this City, to
Malasag, this city, and while at Malasag, this city (sic) did then and
there wilfully, unlawfully and feloniously by means of violence and
intimidation have carnal knowledge (by accused Permonette Joy
Fortich) of the complainant, against her will and consent, to her great
damage and prejudice.
Contrary to Article 342 in relation to Article 335 of the Revised Penal
Code.
III. In
Criminal Case No. 3878 — Forcible Abduction with Rape
That on or about March 31, 1983, in the evening, in the City of
Cagayan de Oro, Philippines, and within the jurisdiction of this
Honorable Court, the above-named (accused), with violence and
intimidation, and with the use of an unlicensed firearm, and a motor
vehicle, conspiring, confederating together and mutually helping one
another did then and there wilfully, unlawfully and feloniously
abduct the complainant Maritess Nobleza, by then and there taking
42
and carrying her away with her sister, Marilou Nobleza, and loading
in a stolen pick-up with her sister, against her will and consent and
with lewd designs, and brought her from Alta Tierra, Carmen Hill,
this city, to Malasag, this city, and while at Malasag, this city (sic),
did then and there wilfully, unlawfully and feloniously by means of
violence and intimidation have carnal knowledge (by accused Rudy
Gaid alias Boy) of the said complainant, against her will and consent,
to her great damage and prejudice.
Contrary to Article 342 in relation to Article 335 of the Revised Penal
Code.
IV. In
Criminal Case No. 3896 — Forcible Abduction with Rape
That on or about March 11, 1983 (sic), in the evening, in the City of
Cagayan de Oro, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with violence and
intimidation and with use of an unlicensed firearm, and motor
vehicle, conspiring, confederating together and mutually helping with
(sic) one another, did then and there wilfully, unlawfully and
feloniously abduct the complainant Marilou Nobleza, by then and
there taking and carrying her away with her sister, Maritess Nobleza,
and loading in a stolen pick-up with her sister, against her will and
consent and with lewd designs, and brought her from Alta Tierra,
Carmen Hill, this city to Malasag, this city (sic), and while at Malasag,
this city, did then and there wilfully, unlawfully and feloniously by
means by violence and intimidation have carnal knowledge (by
accused Rudy Gaid alias "Boy") of the complainant, against her will
and consent, to her great damage and prejudice.
Contrary to Article 342 in relation to Article 335 of the Revised Penal
Code.
V. In
Criminal Case No. 3977 — Robbery with Frustrated Homicide
That on or about March 31, 1983, at Carmen Hill, Cagayan de Oro
City, Philippines, and within the jurisdiction on this Honorable
Court, the above-named accused, armed with firearms, with violence
and intimidation upon persons, with intent of gain and against the
will of the owner thereof, conspiring, confederating together with one
Rudy Gaid alias "Boy Gaid," and mutually helping one another, did
then and there wilfully, unlawfully and feloniously take, rob and
carry away a polo shirt, pants while being worn by Luis S. Tumang
and a cash worth P160.00, a wrist watch (Elgin) worth P500.00,
valued all in all in the total amount of P660.00, to the damage and
prejudice of the said owner in the aforesaid sum; that on the occasion
of the robbery and to enable them to facilitate the taking and robbing
(sic) the offended party, and to carry out with ease the commission of
the offense, accused Permonette Joy Fortich with intent to kill, did
then and there wilfully, unlawfully and feloniously attacked and
mauled the said Luis S. Tumang, struck and hit him with a firearm,
thereby inflicting the following injuries, to wit: fracture depressed
type left perietat (sic) bone; contussion (sic) hematoma left temporal
area; abrasion behind left ear; multiple linear abrasion both thigh
and leg, which ordinarily would cause the death of the said offended
party, thus performing all the acts of execution which would produce
the crime of Homicide, as a consequence, but nevertheless, did not
produce it by reason of some cause independent of his will, that is,
by the timely and able medical attendance rendered to the offended
party which prevented his death.
Contrary to Article 294 in relation to Article 249 and Article 6 of the
Revised Penal Code.
VI. In
Criminal Case No. 4162 — Robbery
43
That on or about March 31, 1983, more or less 10:30 in the evening
at Carmen Hill, Cagayan de Oro City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating together and mutually helping one another,
did then and there wilfully, unlawfully and feloniously with intent of
gain by means of violence and intimidation on the person take, steal
and carry away polo shirt and pants while being worn by one Rolly
(I)mperio and a wallect (sic) contained (sic) P85.00 in cash, who was
at the same time attacked and beaten up by the said accused,
inflicting upon him physical injuries, to wit: Laceration of parietal
area, 2 cm. in length, to the damage and prejudice of the said
offended party.
Contrary to Article 294 of the Revised Penal Code.
Upon arraignment, accused-appellants pleaded not guilty to all the
charges.
On November 25, 1983, the six criminal cases, upon agreement of
the prosecution and the defense, were consolidated and tried jointly.
The evidence for the prosecution elicited the following facts:
On March 31, 1983, at about 8:00 o'clock in the evening, after
attending mass at St. Augustine Church, Cagayan de Oro City,
sisters Marilou and Maritess Nobleza, together with their friends
Rolly Imperio and Luis Tumang, proceeded to Alta Tierra Hotel in
Carmen Hill using an Isuzu pick-up owned by latter's mother. After a
while the group decided to go home. Suddenly, two men armed with
handguns who were later identified as appellants emerged from the
rear end of the vehicle and fired a single shot which hit the left side of
the pick-up. They introduced themselves as members of the New
People's Army (NPA) and ordered the sisters to get inside the vehicle
while Imperio and Tumang were instructed to strip.
Gaid thumped Imperio on the head with a .38 caliber revolver
causing him to fall down, while Tumang was hit several times by
Fortich in various parts of the body and momentarily lost
consciousness. Tumang was divested of his wallet containing one
hundred sixty pesos (P160.00) in cash, five U.S. dollars (P70.00), six
Saudi Arabia Riyals P30.42), one 12K gold wristwatch worth P500.00,
pants valued at P140.00, and shoes worth P125.00. All of these items
were not recovered.4 Imperio, on the other hand, was stripped of his
pants valued at P135.00, a wallet worth P45.00 containing P85.00 in
cash, a pair of shoes, and one t-shirt.5
Appellants drove the pick-up, with Marilou and Maritess at the back
seat, towards Acuña Beach some ten kilometers away from the city,
but found it to be closed for the night. While traversing the highway
leading to Barangay Puerto, appellants spotted a military checkpoint
along the highway, made a hasty U-turn, and returned to the city. All
the time, the sisters were consistently threatened with summary
execution. Marilou pleaded for their freedom and told them to just
take the pick-up. The plea, however, fell on deaf ears. Appellants
detoured and entered a dirt road leading to Malasag where they
parked the vehicle. At his juncture, Gaid had transferred to the
backseat with Marilou while Maritess was made to sit up in front
with Fortich. Gaid poked his gun at the right side of Marilou's neck
and ordered her to remove her pants under pain of death. Aware that
she was biding her time, he himself removed her pants with the gun
still pointed at her. She implored that she be spared but Gaid, who
was obviously much stronger, forced her legs apart, positioned
himself on top of her, kissed and fondled her, and succeeded in
consummating his bestial act. Maritess, on the other hand, was
ravaged by Fortich. Appellants switched victims twice before divesting
them of their watches, a handbag containing P15.00 in cash, a shirt,
toilet tissue and toothbrush, and the pick-up's stereo and tools. They
44
then drove down the highway and left the sisters at a gasoline station
some three kilometers from the city. Unable to contact the police, the
victims proceeded to the Cagayan de Oro Medical Center (CMC) and
submitted themselves to medical examination.
Meanwhile, soon after appellants left Carmen Hill with the two
sisters, Imperio and Tumang ran to the City Hall and reported the
robbery incident. Acting on this report, the police immediately
scoured the city for the suspects but this proved unavailing. The
victims proceeded to the Northern Mindanao Regional Training
Hospital in Cagayan de Oro City where Imperio's injury was
examined and treated.
Prosecution witness Jaime Rivera testified that appellants went to his
house at about 4:00 o'clock in the morning of April 1, 1983, bringing
with them a revolver and a bag containing a car stereo, watch and
wallet. He was apparently asked to sell the revolver for not less than
P300.00, with a promise that he would receive a fifty percent
commission. In the course of selling the firearm, he was apprehended
by the police and detained at the City Hall for six days.
Police investigator Eulalio Rafesora of the Cagayan de Oro Integrated
National Police (INP) testified that upon Fortich's arrest, the latter
was apprised of his constitutional rights which he, however,
expressly waived. Accordingly, on April 4, 1983, an interrogation
conducted by the police ensued and statements elicited therein were
reduced to writing and sworn to before another prosecution witness,
Deputy City Clerk of Court Aurelio I. Zaldivar, who also reminded
him of his rights.
Dr. Socrates Sabanal of CMC declared that he examined Marilou
Nobleza and found her to be suffering from the following injuries, viz.:
superficial abrasions (R) inner aspect, labia minora, hematoma,
antero-medial aspect P/3 (R) thigh. He stated that the abrasions on
the labia minora were caused by the forceful penetration of a penis
into the vagina. As regards Maritess, Dr. Sabanal revealed the extent
of her injuries suffered as "labial skin discoloration," probably caused
by a penis or a finger.
CMC Medical Director Dr. Francisco L. Oh testified that he treated
Luis Tumang for the following injuries, to wit: (1) fracture, depressed
type left parietal bone; (2) contusion hematoma left temporal area; (3)
abrasion behind left ear; and (4) multiple linear abrasions on both
thighs and legs. A neuro-surgeon of CMC, a certain Dr. Valmores,
advised Tumang to seek further treatment in another hospital as the
head injury could have fatally affected the brain. Tumang was
admitted at the Medical City General Hospital in Mandaluyong, Metro
Manila, from April 7 to 16, 1983, under the care of Dr. Bienvenido B.
Aldanese, incurring a total expense of P22,603.85.
Contrary to the foregoing facts, the defense relied on
uncorroborated testimonies of appellants.
Appellant Fortich, a 20-year old driver residing at Buenavista Village,
Cagayan de Oro City, recounted that at about 8:30 in the evening of
March 31, 1983, he left Barangay Gusa for the city and there met
Gaid with whom he has applied for a driving job. He was invited to
dinner and a few drinks at Gaid's house. After sometime, they
allegedly got drunk and hied off to Carmen Hill to appreciate its cool
and breezy atmosphere. Thereafter, a pick-up arrived from which a
group of two men and two women alighted. They then laid a mat on
the grass behind their vehicle. Appellants were ten meters away from
them when suddenly the two men, piqued by their presence,
furiously rushed towards them. Fortich allegedly defended himself by
striking one of them with a flashlight causing the latter to fall down.
To escape the wrath of the two men, appellants drove the pick-up
with the two sisters and headed towards Acuña beach which,
however, was closed for the night. Fortich alleged that after
conversing with the sisters for some time, the latter alighted at
Marcos Bridge while Gaid drove him to his house in Patag.
Fortich denied, among other things, that he sexually violated Marilou
or that he even possessed a firearm, as alleged by Tumang and
Imperio. As regards the affidavit taken during the custodial
investigation, he admitted that the signature appearing therein was
his but the same was obtained through duress.
Appellant Gaid had a slightly different version of what transpired on
March 31, 1983. He narrated that after consuming hard liquor, both
of them proceeded to Carmen Hill. Upon reaching said place, they
noticed a pick-up with a male and female inside and another couple
at the open rear end of the vehicle. As the two pairs were allegedly
caressing and kissing, they stood watching for almost thirty minutes.
the Later, the couple inside emerged from the vehicle and joined the
other two at the back. All of them were naked and engaged in sexual
congress on a mat lying on the grassy spot. The women, later
identified as sisters Marilou and Maritess, noticed them and
immediately grabbed their clothing and scampered inside the pick-
up, while their male partners confronted the appellants. A scuffle
ensued. After throwing several punches, Gaid darted towards the
pick-up and saw Fortich already seated on the driver's seat with the
sisters at the back seat.
Fortich drove towards Acuña beach at Baloy. During the trip, Gaid
chatted with Maritess who appeared to be an old acquaintance of his.
Apparently, it was Maritess who urged them to proceed to Acuña
beach. The sisters even drank bottles of beer and smoked three sticks
of marijuana.
It was past midnight when they reached Acuña beach and after
having gone through a horrible night, they decided to park the vehicle
45
to rest. Fortich fell asleep while Maritess vomitted. When the latter
felt better, Gaid drove the sisters to somewhere in Licoan and Fortich,
to his house in Patag. While traversing the Patag-Carmen road, he
observed that a police vehicle was following him. Alarmed, he
hurriedly accelerated his speed. When he passed a military check-
point, he was fired upon. Fortunately, only the rear portion of the
vehicle was hit.
Gaid reached Kamarok, an interior barangay of Opol, at about 2:00
o'clock in the morning and repaired to the house of his mother-in-law
Beatrice Rivera. He told his brother-in-law Jaime Rivera, a witness
for the prosecution, the details of what allegedly transpired in the
night. Two days thereafter, he slipped back into the city by passing
through another town and resumed driving his passenger jeep.
In its decision dated August 15, 1984,6 the trial court convicted
appellants in the following manner:
WHEREFORE, in view of all the foregoing consideration, the court(:)
(1)FINDS, in CRIMINAL CASE NO. 3977 both accused PERMONETTE
JOY FORTICH and RUDY (Boy) GAID, guilty beyond reasonable doubt
as principals, of the crime of simple ROBBERY as defined and
penalized under Article 294, paragraph five (5) of the Revised Penal
Code, with the mitigating circumstance of drunkenness, which is not
habitual and not offset by any aggravating circumstance, and
applying the INDETERMINATE SENTENCE LAW, hereby imposes
upon each of them the indeterminate penalty of Four (4) Years and
Two (2) Months of PRISION CORRECCIONAL, as minimum, to Six (6)
Years, One (1) Month and Ten (10) Days, of PRISION MAYOR, as
maximum, and to pay the costs; and to indemnify Luis S. Tumang,
the amounts of One Thousand Twenty-Five (P1,025.42) Pesos and
Forty-two Centavos, for the cash and articles stolen; and the total
amount of Twenty Two Thousand Six Hundred Three Pesos and
46
85/100 (P22,603.85) for plane fare, hospitalization and medical
expenses; and the further sum of P5,000.00, for moral damages.
Accused shall be credited with the period of their preventive
imprisonment. The home-made revolver .22 cal., (Exh. A) is hereby
forfeited in favor of the Government;
(2)FINDS, in CRIMINAL CASE NO. 4162, both accused Permonette
Joy Fortich and Rudy (Boy) Gaid, guilty beyond reasonable doubt, as
principals of the crime of Simple ROBBERY, as defined and penalized
under Article 294, paragraph five (5) of the Revised Penal Code, with
the sole mitigating circumstance of drunkenness, which is not
habitual, and not offset by any aggravating circumstance, and
applying the Indeterminate Sentence Law, hereby imposes upon each
of them the indeterminate penalty of Four (4) Years and Two (2)
Months of PRISION CORRECCIONAL, as minimum, to Six (6) Years,
One (1) Month and Ten (10) Days of PRISION MAYOR, as maximum;
and to pay the costs; and to indemnify ROLLY IMPERIO the amount
of Two Hundred Sixty Five (P265.00), value of the cash and articles
stolen; and Two Thousand Pesos (P2,000.00) for moral damages.
Accused shall be credited with the full period of their preventive
imprisonment. The .22 caliber homemade Revolver (Exh. A) is hereby
confiscated in favor of the Government; likewise, the ammunitions,
Exhs. A-1 to A-8.
(3)FINDS, in CRIMINAL CASE NO. 3809, both accused PERMONETTE
JOY FORTICH and RUDY (Boy) GAID guilty beyond reasonable doubt
as principals of the crime of FORCIBLE ABDUCTION WITH RAPE,
with the use of a deadly weapon as defined and penalized in Article
342, in relation to Article 335 of the Revised Penal Code, with the
lone mitigating circumstance of drunkenness, which is not habitual
and with no aggravating circumstance to offset the same, hereby
imposes upon each of them the penalty of RECLUSION PERPETUA;
and to indemnify MARILOU NOBLEZA, the amount of Twenty Four
(P24,000) Thousand Pesos; and the costs. The .22 cal. Revolver (Exh.
A) is hereby forfeited in favor of the Government. Accused shall be
credited with the period of their preventive imprisonment. Likewise,
the ammunitions, Exhs. A-1 to A-8 are confiscated in favor of the
government.
(4FINDS, in CRIMINAL CASE NOS. (sic) 3896, that the crime herein
charged is already included in the aforementioned Crim. Case No.
3809, hence the same is dismissed, with costs de oficio.
(5)FINDS, in CRIMINAL CASE NO. 3877, both accused PERMONETTE
JOY FORTICH AND RUDY (Boy) GAID guilty beyond reasonable
doubt as principals of the crime of FORCIBLE ABDUCTION, as
defined and penalized under Article 342 of the Revised Penal Code,
with the sole mitigating circumstance of drunkenness, which is not
habitual, and with no aggravating circumstance to offset the same,
and applying the Indeterminate Sentence Law, hereby imposes upon
each of them the indeterminate penalty of EIGHT (8) YEARS and ONE
(1) DAY, of PRISION MAYOR, as minimum, to TWELVE (12) YEARS
and ONE (1) DAY OF RECLUSION TEMPORAL, as maximum; and to
pay the costs; and to indemnify MARITESS NOBLEZA the amount of
TWELVE THOUSAND (P12,000.00) Pesos. The Revolver (Exh. A) is
forfeited in favor of the Government; likewise the ammunitions, Exhs.
A-1 to A-8.
(6)FINDS, in CRIMINAL CASE NO. 3878, that the crime charged
herein is already included in the aforementioned Criminal Case No.
3877, hence the same is hereby DISMISSED, with costs de oficio.
SO ORDERED.7
From this judgment, appellants interposed the instant appeal, raising
the following assignment of errors:
1. The
trial court erred in admitting the extrajudicial confession of accused-
appellant Permonette Joy Fortich despite the fact that it was taken in
47
violation of his constitutional right to counsel.
2. The trial court erred in convicting herein accused-appellants
despite failure of the prosecution to prove their guilt beyond
reasonable doubt.8
We find no reversible error impelling a reversal of the trial court's
decision.
We cannot sustain the argument for the defense that the extra-
judicial confession of Fortich obtained without the assistance of
counsel is inadmissible in evidence.
The doctrine that an uncounseled waiver of the right to counsel is not
to be given legal effect was first pronounced on April 26, 1983, in
Morales v. Enrile9 reiterated in People v. Galit10 on March 20, 1985.
While the Morales-Galit doctrine eventually became part of Section
12(1) of the 1987 Constitution, it affords no relief to appellants, for
the requirements and restrictions outlined therein have no retroactive
effect and do not affect waivers made prior to April 26, 1983.
In the instant case, the extra-judicial confession and waiver were
executed on April 4, 1983. The trial court correctly admitted the same
for "there was at that time no pronounced guidelines requiring that
the waiver of counsel by accused can be properly made only with the
presence and assistance of counsel."11 If indeed Fortich's confession
was extracted from him as a result of coercion by policemen at the
police station, he could have informed Deputy Clerk of Court Zaldivar
and his counsel Atty. Leo Roa of the maltreatment he suffered.
Thus, the Court has ruled that where one who has made a confession
fails to present any evidence of compulsion or duress or violence on
his person for purposes of extracting a confession; where he failed to
complain to the officers who administered the oaths, such as the
fiscal in this case; where he did not institute any criminal or
administrative action for maltreatment against his alleged Aside from being positively identified, the different versions presented
intimidators; where he did not have himself examined by a reputable by appellants are contrary to ordinary human experience.
physician to buttress his claim of maltreatment; and where the
assailed confession is replete with details which could not have been The following declaration of the trial court that the testimonies of
known to the police officers if they had merely concocted the appellants are incredulous is well taken.
confession, since the statements were inculpatory in character, the
extrajudicial confession may be admitted, with the above The claim of the accused that the departure from Alta Tierra, on the
circumstances being considered as factors indicative of pick-up to Acuña beach was the idea of Maritess Nobleza does not
voluntariness.12 Accordingly, the extra-judicial confession and inspire belief. Marilou testified that it was the idea of one of the two
waiver voluntarily and intelligently made by Fortich are admissible in accused. The sisters, Marilou and Maritess, are single, presumably
evidence. virgins, and absent contrary proof, (the accused having adduced
none) are presumed to be modest and chaste in keeping with
Appellants anchor their defense solely on the denial of the charges traditional Filipina disposition. The court cannot believe that in a
imputed to them. gunshot-filled atmosphere, almost chameleon-like (-) the girls would
transfer their promiscuous desires (if ever they were) from their
It is an established doctrine that the defense of denial cannot prevail erstwhile male companions (Tumang and Imperio) in a brief
over the positive identification of the accused.13 The court is encounter and stoically abandon the two companions and in turn
convinced that Marilou did recognize the physical features of her seek pleasure somewhere with new partners who had earlier allegedly
tormentors as she was in a supine position when appellants come upon them in the act of making love on a mat behind the pick-
successively mounted her. "The victim's recognition of appellants as up. The court cannot believe that Maritess and Marilou — sisters as
her attacker cannot be doubted for she had ample opportunity to see they are — would be so promiscuous and profiligately (sic) libidinous
the face of the man who ravaged her during the carnal that they would make love with two male companions, in the
act."14 She was as close to the appellants as was physically possible, presence, and within sight of each other. 17
for a man and a woman cannot be physically closer to each other
than during a sexual act.15 Marilou had ample opportunity to It should be noted that Maritess Nobleza, for unknown reasons, did
observe appellants while she was being terrorized and, subsequently not testify for the prosecution. Marilou's assertion that her sister was
raped. Thus, there is no reason to doubt the veracity of her statement simultaneously violated, however, supports a finding of appellants'
where she declared that she recognized appellants as her guilt. Time and again, the Court has declared that "in crimes of rape,
transgressors. Moreover, the latter failed to show any reason why conviction or acquittal virtually depends entirely on the credibility of
Marilou would impute such a serious charge against them. Needless the victim's testimony because of the act that usually only the
to state, a "straightforward, clear and positive testimony, coupled participant can testify to its occurrence." 18 The case at bar presents
with the absence of any motive to fabricate or to falsely implicate the an unlikely situation wherein two sisters were simultaneously
accused, may be enough to convict the appellant."16 ravaged in the presence of, and in plain view, of the other.
48
Accordingly, the failure of one to declare in court her ordeal may be
adequately proved by the other. In light of this factual setting, there
is, therefore, no doubt that Maritess was likewise a victim of multiple
rapes.
As regards Criminal Cases No. 3977 and 4162 for robbery with
frustrated homicide and robbery, respectively, Article 293 of the
Revised Penal Code provides:
Art.293. Who are guilty of robbery. — Any person who, with intent to
gain, shall take any personal property belonging to another, by
means of violence against or intimidation of any person or using force
upon anything shall be guilty of robbery.
The trial court, however, erred in designating the crime committed as
robbery with frustrated homicide. There is no such crime.19 There
should have been two separate informations: one for robbery and
another for frustrated homicide. Notwithstanding the erroneous
charge in the information, the Court finds no reason to overturn the
conviction of appellants for the crime of simple robbery.
The asportation by appellants of the personal properties was done by
means of violence against or intimidation upon the persons of
Imperio and Tumang. It appears further that Imperio suffered cranial
injury which allegedly required three stitches to repair. Inasmuch as
the doctor who issued the medical certificate did not testify thereon,
said certificate is hearsay evidence as to the nature of the injuries
inflicted and, therefore, inadmissible in evidence. In People v.
Pesena,20 it was ruled that when there is no evidence of actual
incapacity of the offended party for labor or of the required medical
attendance, it is only slight physical injuries.
As regards the injuries suffered by Tumang, we subscribe to the
finding of the lower court that, notwithstanding the non-presentation
49
of Dr. Aldanese of the Medical City General Hospital at the trial,
Tumang's credible testimony bolstered by documentary evidence,
such as progress payments and professional fees for neurological
management and craniatomy excision of depressed fracture, proved
that the latter suffered less serious physical injuries, as defined in
Article 26521 of the Revised Penal Code.
With respect to the charge of frustrated homicide in Criminal Case
No. 3977, the trial court correctly observed that the element of intent
to kill was not present. It must be stressed that while Fortich was
armed with a handgun, he never shot Tumang but merely hit him on
the head with it. In Mondragon v. People,22 it was held that the
intent to kill being an essential element of the offense of frustrated or
attempted homicide, said element must be proved by clear and
convincing evidence and with the same degree of certainty as is
required of the other elements of the crime. The inference of intent to
kill should not be drawn in the absence of circumstances sufficient to
prove such intent beyond reasonable doubt.
The physical injuries inflicted upon Imperio and Tumang by reason of
or on the occasion of the robbery are penalized under Article 294,
paragraph 5 of the Revised Penal Code which provides:
Art.294.Robbery with violence against or intimidation of persons. —
Penalties. — Any person guilty of robbery with the use of violence
against or intimidation of any person shall suffer.
xxxxxxxx
5. The penalty of prision correccional in its maximum period to
prision mayor in its medium period in other cases.23
The trial court correctly disregarded the aggravating circumstances of
nighttime, uninhabited place, and use of a motor vehicle. The
mitigating circumstance of intoxication, however, was erroneously
appreciated in favor of both appellants.

Nocturnity is an aggravating circumstance when it is deliberately
sought to prevent the accused from being recognized or to ensure his
unmolested
escape.24 There must be proof that this was intentionally sought to
insure the commission of the crime and that appellants took
advantage thereof. In the instant case, there is paucity of evidence
that the peculiar advantage of nighttime was purposely and
deliberately sought by the accused; "the fact that the offense was
committed at night will not suffice to sustain nocturnidad." 25
Neither can the use of a motor vehicle be appreciated as an
aggravating circumstance. In the case at bar, the offenses of robbery
and forcible abduction with rape could have been effected even
without the aid of a motor vehicle. In the case of People v. Mil,26 it
was held that use of a motor vehicle is not aggravating where it was
not used to facilitate the crime or that the crime could not have been
committed without it. In People v. Garcia,27 the use of motor vehicle
was deemed unaggravating if its use was merely incidental and was
not purposely sought to facilitate the commission of the offense or to
render the escape of the offender easier and his apprehension
difficult.
As regards the aggravating circumstance of uninhabited place, the
records do not show that appellants actually sought an isolated place
to better execute their purpose. The evidence needed to support its
application are insufficient. Accordingly, this circumstance should
not be considered against appellants.
The lower court, however, erred in appreciating intoxication as a
generic mitigating circumstance. Under the Revised Penal Code,
intoxication is mitigating when it is not habitual or delinquent, that
is, not subsequent to the plan to commit the crime. In People v.
Apduhan, Jr.,28 it was held that to be mitigating, the accused's state
50
of intoxication must be proved. Once intoxication is established by
satisfactory evidence, in the absence of proof to the contrary, it is
presumed to be non-habitual or unintentional. In the case at bar,
appellants merely alleged that when the offenses were committed,
they were already drunk. "This self-serving statement stands
uncorroborated. Obviously, it is devoid of any probative value."29
The trial court found ample evidence to support a finding of
conspiracy. Conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to
commit it.30 Direct proof is not essential to show conspiracy as its
existence could be inferred from the conduct of the accused before,
during and after the commission of the crime, showing that the
accused had acted in unison with each other, evincing a common
purpose or design.31 It is not necessary to show that two or more
persons met together and entered into an explicit agreement setting
out the details of
an unlawful scheme or the details by which an illegal objective is to
be carried out.32 Conviction is proper upon evidence showing that
appellants acted in concert, each of them doing his part in the
commission of the offense. In People v. Gundran,33 it was held that
in such a case, the act of one becomes the act of all and each of the
accused will thereby be deemed equally guilty of the crime
committed.
In the case at bar, the evidence revealed that appellants arrived
together at Carmen Hill and, at gunpoint, forcibly took Imperio and
Tumang's personal belongings and fled with the sisters on board the
stolen pick-up. After fleeing, appellants successively abused Marilou
and Maritess inside the vehicle. These acts manifestly disclose their
"joint purpose and design, concerted action and community of
interest."34
The Court is, therefore, convinced that appellants' criminal
culpability of every charge was proved beyond reasonable doubt.
In the case of People v. Julian,35 however, it was ruled that when the
first act of rape was committed by appellant, the complex crime of
forcible abduction with rape was then consummated.
subsequent acts of intercourse would be only separate acts of rape
and can no longer be considered separate complex crimes of forcible
abduction with rape. Accordingly, a modification of trial court's
decision is in order.
WHEREFORE, the decision of the trial court dated August 15, 1984
is hereby MODIFIED as follows:
In Criminal Case No. 3809: Forcible Abduction with Rape
Appellants Permonette Joy Fortich and Rudy Gaid are hereby
convicted of the crime of forcible abduction with rape and, likewise, of
three counts of rape as defined and penalized in Article 342, in
relation to Article 335, of the Revised Penal Code. Accordingly,
appellants shall each suffer four terms of reclusion perpetua. In line
with recent jurisprudence,36 appellants are further ordered to
indemnify Marilou Nobleza in the amount of P200,000.00 each as
moral damages.
In Criminal Case No. 3877: Forcible Abduction with Rape
Appellants Permonette Joy Fortich and Rudy Gaid are hereby
convicted of the crime of forcible abduction with rape and, likewise, of
three counts of rape as defined and penalized in Article 342, in
relation to Article 335, of the Revised Penal Code. Accordingly,
appellants shall each suffer four terms of reclusion perpetua. In line
with recent jurisprudence, appellants are further ordered
indemnify Maritess Nobleza in the amount of P200,000.00 each as
moral damages.
In Criminal Cases No. 3977 and 4162: Robbery
Appellants Permonette Joy Fortich and Rudy Gaid are hereby
Any convicted of the crime of simple robbery as defined and penalized
under Article 294, paragraph 5 of the Revised Penal Code. Applying
the Indeterminate Sentence Law, appellants shall each suffer twice
the penalty of four (4) years and two (2) months of prision
correccional, as minimum, to six (6) years, one (1) month and ten (10)
days, of prision mayor and shall solidarily indemnify Luis S. Tumang
in the amount of (1) P1,025.42 for the cash and articles stolen; (2) the
aggregate amount of P22,603.85 for the plane fare and medical
expenses; (3) and the further sum of P10,000.00 as moral damages.
Appellants shall likewise pay Rolly Imperio the amount of P265.00 for
the cash and articles stolen and P10,000.00 as moral damages.
The .22 caliber revolver and ammunitions are FORFEITED in favor of
the Government. Costs against appellants. SO ORDERED
G.R. No. 127962 April 14, 2004
KINGSTON(E) LI Y NUNEZ, petitioner, vs.
PEOPLE OF THE PHILIPPINES, and the HONORABLE COURT OF
APPEALS, respondents.
TINGA, J.:
On 19 April 1993, the relative early morning calm in General Luna
Street, Barangay Bangkal, Makati, was shattered when a petty
argument evolved into a street brawl. After the dust had settled,
eighteen (18) -year old Christopher Arugay ("Arugay") lay dying from
multiple stab wounds, while his neighbor, twenty-four (24)-year old
Kingstone1 Li ("Li"), staggered injured, with hack wounds on his
to head.
Li was charged before the Regional Trial Court (RTC) of Makati,
51
Branch 148,2 with the crime of Homicide.3 On 5 January 1994, after
trial, he was found guilty and sentenced to the penalty of eight (8)
years and one (1) day of prision mayor to fourteen (14) years, eight (8)
months and one (1) day of reclusion temporal. His conviction was
affirmed by the Court of Appeals Fifteenth Division in a Decision4
dated 6 September 1996.
The version presented by the prosecution as to the antecedent facts
leading to Arugay’s death differs sharply from the version offered by
Li. The accused claims that the dispute stemmed from a spurned
offer to drink, while the prosecution traces the root of the fight to an
indecorous bath in public.
The story of the prosecution was told by the witnesses Aubrey dela
Camara ("dela Camara") and Ronaldo Tan ("Tan").5
Shortly before his death, Arugay was watching television at home
with his sisters Cristy and Baby Jane, his girlfriend dela Camara and
Baby Jane’s boyfriend, Tan. At around 1:15 in the early morning,
dela Camara and Tan suddenly heard a noise outside. Peering
through the window, they saw Li and a certain Eduardo "Eddie Boy"
Sangalang taking a bath completely naked. The two were facing the
house of the Arugays.6
Enraged, Arugay yelled, "Pare bastos kayo, ba’t kayo nakahubad?"7
Li shouted back, "Putang Ina!" and threw something at the Arugays’
house. Sangalang also yelled, "Putang Ina mo, lumabas ka, papatayin
kita!"8
An incensed Arugay went out the house where he was met by Li, now
wearing briefs and carrying a baseball bat. Li struck Arugay on the
head with the bat, causing Arugay to fall. Li ran back to his house.
Tan and dela Camara assisted Arugay and were trying to drag him
52
back to his house when Li re-emerged, this time with a knife. Li then
stabbed Arugay once.9
Immediately thereafter, dela Camara was confronted by Li’s sister,
Kristine, who proceeded to pull her hair and slap her around.
Kristine also wielded a bolo, with which she hacked dela Camara in
the arm. Although preoccupied under the circumstances, dela
Camara was able to see Sangalang stab Arugay at least once, so she
claimed.10
Tan saw Arugay run towards the street after he was stabbed, with Li
and Sangalang chasing him. He saw nothing further of the incident,
according to him.11
In their respective testimonies, dela Camara and Tan are unable to
account for the fact that before the fight ended, Li also lay wounded
with multiple hack wounds on his head and body. This fact lies at the
crux of the petitioner’s defense.
On the other hand, Li presents a different version.
Li encountered Arugay out on the street on the night of 18 April
1993, a few hours before the brawl. Arugay was carrying a bayong
containing various liquors. He invited Li to a drinking session which
the latter refused as he had work the following day.12
Early the next morning, around one o’clock a.m., Li was watching
television at his home with his friend Ricky Amerol when they heard
objects being thrown at the house. Peeping through the window, they
saw Arugay and dela Camara in front of the gate throwing stones and
bottles at the direction of Li’s house. The stones broke window
jalousies and also struck Amerol. At the same time, Arugay was also
hurling invectives at Li.13
Annoyed, Li opened the door asking, "Pare, ano ba problema mo?
Wala naman kaming kasalanan sa ’yo." Arugay and his girlfriend just
kept on stoning the house and hurling invectives at petitioner.
Arugay kicked the gate but Li prevented him from opening it. Arugay
then ran towards his house across the street.14
Li tried to fix the gate, which had become misaligned and its lock
destroyed as a result of the kicking. Reacting, he saw Arugay coming
out of the house armed with two kitchen knives. In response, Li went
inside his house and got a baseball bat. When he returned to the
street, Arugay attacked him with a knife. Li managed to avoid
Arugay’s thrusts and hit Arugay with the baseball bat on the right
shoulder. Arugay ran back to his house shouting, "The long one! The
long one!" Li also dashed back to his house but before he was able to
enter the door, he saw Arugay carrying a two-foot long bolo, running
towards him. On Arugay’s heels were Ronaldo Tan and Aubrey dela
Camara.15
Arugay tried to hit Li with the bolo. Li raised his right hand to protect
himself but Arugay was able to hit him on his right temple and right
wrist. Not content, Arugay hit Li on the right shoulder. Li passed
out.16
Upon regaining consciousness, Li tried to crawl back to his house but
Ronald Tan hit him at the back of his left ear with a baseball bat.
Eventually, Li managed to get back to the house and was brought to
the Makati Medical Center by Amerol and Barangay Tanod Eduardo
Reyes.17
On cross-examination, Li admitted that Eduardo Sangalang was also
in his house at the time the incident started. Sangalang was the
boyfriend of Li’s half-sister, Cristy.18
Dr. Alberto Reyes of the Medico Legal Section of the National Bureau
53
of Investigation conducted the post-mortem examination on the body
of Arugay. He noted the following injuries:
Pallor, lips and nailbeds.
Contusion, arm, right, poster-lateral, 5.0 x 3.0 cm.
Wounds, incised, scalp, parieto-occipital, right, 6.0 cm.; anterior
sheet, left side, suprammary 6.0 cm., inframmary 4.0 cm.
Wounds stab:
1. 3.0 cm., long, spindle[-]shaped edges, irregular, oriented,
horizontally, with a sharp, medial and a blunt lateral extremeties,
located at the anterior chest wall, left side, 15.0 cm. from the anterior
median line, directed upwards, backwards and medially, involving
the skin and soft tissues only with an approximate depth of 4.0 cm.
2. 4.0 cm., long, spindle shaped edges irregular, with a sharp
inferolateral and blunt supero-medial extremeties, located at the
anterior abdominal wall, right side, 0.5 cm. from the anterior median
line, directed upwards , backwards and medially involving the skin
and soft tissues, laceration of the diaphragm and the right lobe of the
liver, with an approximate depth of 10.0 cm.
3. 1.5 cm. long, spindle shape[d] edges irregular oriented almost
horizontally with a sharp lateral and blunt medial extremeties,
located at the anterior abdominal wall, left side, 9.0 cm. from the
anterior median line, directed backwards, upwards and medially
involving the skin and soft tissues, penetrating the transverse colon
with an approximate depth of 12.0 cm.
4. 1.5 cm. long, spindle, edges irregular oriented almost horizontally
with a sharp poster-lateral a blunt antero medial extremities located
at the anterior chest wall right side, 21.0 cm. from the anterior
median line, directed backward, upwards and medially involving the
skin and soft tissues penetrating the 8th intercostals space, into the
diaphragm and right lobe of the liver, with an approximate depth of
12.0 cm.
Hemoperitoneum – 1,500 c.c.
Brain and other visceral organs, pale.
Stomach, half-full with rice and brownish fluid.
Cause of death – stab wounds of the chest and abdomen.19
After trial on the merits, the RTC rendered its Decision, finding Li
guilty as charged. The dispositive portion reads:
WHEREFORE, premises considered, and finding accused
KINGSTONE LI guilty beyond reasonable doubt of the crime of
Homicide defined and penalized under Article 249 of the Revised
Penal Code, said accused is hereby sentenced to suffer the penalty of
from EIGHT (8) YEARS and ONE (1) day of prision mayor as
minimum to FOURTEEN (14) years, EIGHT (8) MONTHS and ONE (1)
DAY of reclusion temporal as maximum with all the accessories of
the law.
The accused is further ordered to pay to the heirs of the late
Christopher Arugay the sum of ₱50,000.00 for and as indemnity for
causing the death of said victim.
With costs against the accused.
SO ORDERED.20
Li appealed to the Court of Appeals but it affirmed with modification
the RTC Decision. He filed a Motion for Reconsideration which the
Court of Appeals denied.21
Li filed the present Petition for Review, seeking the reversal of his
conviction for the crime of homicide.
54
Li denies killing Arugay. He contends that the RTC erred in holding
that he was the instigator of the events leading to Arugay’s death; in
not basing its Decision on the evidence on record; in holding that he
was guilty of homicide by reason of conspiracy; and in not ruling that
the evidence of the prosecution does not prove his guilt beyond
reasonable doubt.22
There is a difference in the factual findings of the RTC and those of
the Court of Appeals. The variance warrants the close review of the
findings of the two courts. While both courts argue that Li was guilty
of homicide, their respective rationales are different.
Neither court disputes that the proximate cause of the death of
Arugay was the stab wounds he received. The RTC concluded though
that it was Sangalang, and not Li, who stabbed Arugay:
From all these conflicting versions, this court after piecing out the
evidence presented and from what can be deduced in the
circumstances obtaining finds that because of the altercation
between Christopher Arugay and Kingstone Li, Christopher Arugay
armed himself with a bolo and Kingstone Li armed himself with a
baseball bat.
From the evidence presented, it became clear to the court that it was
Kingstone Li who hit first with a baseball bat Christopher Arugay
hitting the latter not on the head but at the right arm which is near
the shoulder. 23
xxx
Now, after Kingstone Li has hit the deceased with a baseball bat, the
deceased who is armed with a bolo, retaliated by hacking Kingstone
Li on the head and indeed he was hit on the head and right wrist
causing Kingstone Li to lose his hold on the baseball bat and fell (sic)
semi-unconscious or unconscious.
At this point in time, Eduardo Sangalang, who was then also present
stabbed the deceased several times at least six times.
This is explained by the findings of Dr. Alberto Reyes that
Christopher Arugay sustained an incise[d] wound on scalp, on the
left chest, and four stab wounds that are fatal.
When Christopher Arugay sustained the fatal wounds, two (2) of
them piercing his liver xxx24
While the RTC concluded that Li had not stabbed Arugay, it
nevertheless held him guilty, predicated on a finding of conspiracy
with Sangalang. This issue shall be explored in greater detail later.
In contrast, the Court of Appeals did not rule out the possibility that
Li had stabbed Arugay, and rendered unnecessary a finding of
conspiracy to attach guilt to the accused. It held:
The deceased suffered four fatal wounds, then (sic) the accused might
have inflicted at least one fatal stab wound and so with his friend
Eddie Boy, who remains at large. Since it has not been established
which wound was inflicted by either one of them, they should both be
held liable and each one is guilty of homicide, whether or not a
conspiracy exists.25 (Emphasis supplied)
The appellate court’s formulation is wrong as the converse is the
correct rule: with the existence of conspiracy, it is no longer
necessary to determine who among the malefactors rendered the fatal
blow;26 whereas in the absence of conspiracy, each of the accused is
responsible only for the consequences of his own acts.27 Thus, it is
necessary to determine whether a conspiracy existed between Li and
Sangalang, and if there was none, to ascertain the particular acts
performed by Li.
55
The Court of Appeals also cited the testimonies of the prosecution
witnesses, Tan and dela Camara, to the effect that they saw Li stab
Arugay at the left portion of the body.28 These testimonies are vital
as they constitute the only evidence that Li actually stabbed Arugay.
A careful examination of the case however cautions us from giving
full faith and credence to the supposed eyewitnesses for the
prosecution. The RTC itself cast doubt on the veracity of all the
eyewitness testimony, whether for the prosecution or for the accused.
The RTC noted, thus:
At the outset, the court has to state that it has noted that the
witnesses for the prosecution and that of the defense either held back
on material facts or have deliberately withheld some facts or added
some matters to the real facts for these are not only gaps but holes in
the versions of the witnesses for the prosecution and the defense.
What this court can do is to cull from the evidence presented what
could be the approximate or near the truth. The prosecution did not
help this court any to have a good view of the facts and neither the
defense.29
The relationships of the witnesses dela Camara and Tan to Arugay or
the latter’s family cannot be easily discounted. Dela Camara was the
boyfriend of Arugay, while Tan was the boyfriend of Arugay’s sister,
Baby Jane. As such, they are not wholly neutral or disinterested
witnesses. Both of them actually asserted in open court that they
were not willing to say anything derogatory against Arugay. Tan
testified as follows:
Q: Since Jane Arugay is your girlfriend, and Christopher Arugay was
your friend, you did not like to say anything derogatory against
Christopher Arugay, did you?
A: Yes, maam.
Q: Neither did you want to say anything also derogatory against the
family of Christopher Arugay, did you?
A: Yes, maam.30
Similarly, dela Camara testified as follows:
Q: As the girlfriend of Christopher Arugay, you did not say anything
derogatory [about] the said Christopher Arugay, am I correct?
A: Yes, maam.
Q: You do not like to besmirch his memory, am I correct?
A: Yes, maam.
Q: So that if Christopher Arugay assaulted Kingstone Li on April 19,
1993, you did not like this, do you know that, did you Ms. Dela
Camara.
A: Yes, maam.31
The revelations serve caution against accepting the testimonies of
Tan and dela Camara as gospel truth. They cast doubt as to whether
these witnesses would be capable to attest to an unbiased narration
of facts, especially if by doing so, they would be forced to impute
culpability on Arugay, thereby staining the sainted memory of their
deceased friend.
Moreover, the respective testimonies of dela Camara and Tan are
inconsistent with each other with respect to material points. Dela
Camara claimed that she and Tan together assisted Arugay after the
latter had been struck down with the baseball bat.32 Yet while Tan
admitted that he had pulled Arugay away from the scene of the
melee, he made no mention of the assistance of dela Camara.33 In
fact, Tan stated that dela Camara remained inside the house.34 This
assertion contradicts dela Camara’s claim that she was outside the
house during the whole time the incident transpired.35 Nor did Tan
advert to the scene painted by dela Camara of Kristine Li wielding a
bolo while pulling on the hair of Arugay’s girlfriend. That is an
unusual enough occurrence that would stick to the mind of anybody
who would witness such.
Indeed, the tale weaved by Tan arouses more curiousity upon
56
examination of his sworn statement, executed the night after the
incident. Therein, Tan referred to some existing bad blood between
Arugay and Li over a borrowed tape, a fact which subsequently none
of the parties would call attention to.36 Curioser, Tan never
mentioned any baseball bat having been used by Li during the
incident. Nor did he mention any participation of Sangalang in the
actual brawl. On the other hand, dela Camara in her own sworn
statement, asserted that both Li and Sangalang had stabbed Arugay
and that she herself was hacked on the arm by Kristine Li.37
Both Tan and dela Camara testified that Li stabbed Arugay on the left
side of the body as the latter was being pulled towards his house
after having been struck with the baseball bat.38 However, Tan
testified that Li came from behind Arugay to inflict the stab wound,39
while dela Camara stated that Arugay was facing Li when he was
stabbed.40
Most importantly, the testimonies of dela Camara and Tan both
contradict the physical evidence. As consistently held:
Time and again, we have upheld the primacy of physical evidence
over biased and uncorroborated testimony of witnesses. We have
held:
…Physical evidence is a mute but eloquent manifestation of truth,
and it ranks high in our hierarchy of trustworthy evidence. In
criminal cases such as murder or rape where the accused stands to
lose his liberty if found guilty, this Court has, in many occasions,
relied principally upon physical evidence in ascertaining the truth…
[W]here the physical evidence on record ran counter to the
testimonial evidence of the prosecution witnesses, we ruled that the
physical evidence should prevail.41
It is undisputed that Li had armed himself with a baseball bat as he
prepared to face Arugay. It also appears that the baseball bat
remained at the scene of the fight, as the same weapon was used to
strike Li on the head after he lay injured.42 In order to sustain the
claim of Tan and dela Camara that Li had stabbed Arugay, we would
have to postulate that Li was armed with both a knife and a baseball
bat. This scenario is severely flawed.
First. Tan and dela Camara would have us believe that Li faced off
Arugay with a baseball bat, then after having struck Arugay, he ran
off to his home to get a knife, returned to the melee, then stabbed
Arugay.43 This projected sequence is simply incredulous. Li was
already armed with a weapon that could incapacitate or kill. He had
already struck a blow that apparently forced the victim down. There
is no logical reason for Li to suddenly run off to get a knife,
considering he already had a weapon capable of inflicting damage
and was at an advantageous position vis-à-vis the prostrate Arugay.
There is of course the possibility that Li was already carrying the
knife when he emerged with the baseball bat, but that was not
established by the prosecution. Moreover, the scenario of Li
brandishing a knife with one hand and wielding a bat with the other
is highly improbable. It would require unusual physical dexterity for
a person to wield both weapons simultaneously and still utilize them
with adequate proficiency. Nor is it likely that Li concealed the knife
in his clothing. According to Tan, Li was only wearing briefs when he
attacked Arugay with the baseball bat.44
Second. The pathological findings likewise cast severe doubt on the
possibility that Li had stabbed Arugay. The trial court concluded that
only one knife was used in killing Arugay, and probably only one
wielder thereof. The RTC decision said:
The court noted also with particular interest the description of the
four wounds as found by Dr. Reyes. The first wound has been
57
described by Dr. Reyes as 3.0 cm. long, spindle[-]shaped edges,
irregular, etc; the No. 2 wound has also been described as 4.0 cm.
long, spindle[-] shaped, edges irregular, etc.; No. 3 wound is 1.5 cm.
long, spindle-shaped, edges, irregular, etc.; and the fourth wound is
1.5 cm. long, spindle shaped edges irregular;
Thus there are two (2) outstanding characteristics of the four (4) stab
wounds sustained by Christopher Arugay. All of them are
spindle[-]shaped and irregular in their edges. This is significant
because it would appear to the court that only one weapon was used
because all the characteristics of the four wounds were the same.
Thus, to the mind of the court there is only one person who inflicted
these wounds, not two (2) or three (3). It could be possible that there
were two who inflicted the stab wound[s] if the weapon used was
given to another after using the same and the other one to whom it
was transferred used it also. But in this case there is no showing that
such incident did happen.45
It must be qualified that Dr. Reyes, the NBI Medico-Legal, refused to
definitively conclude that only one knife was used in stabbing Arugay
though he conceded that such was possible.46 Nevertheless, the fact
that Arugay sustained the same kind of stab wounds tends to
support the conclusion that only one knife was used on him.
Third. Dela Camara testified that she saw both Li and Sangalang stab
Arugay. Considering that there was only one knife used, her version
would hold water only if we were to assume that the same knife
passed from the hands of Li to Sangalang or that they held identical
or similar knives. As the RTC ruled, nothing of the sort was
established. The more logical assumption would be that there was
only one stabber using one knife. The question now arises, was it Li
or Sangalang who stabbed Arugay?
There is the dubious claim of Tan and dela Camara that they did see
Li stab Arugay once. Assuming this were true, this blow would not
have been the fatal stab wound, as it did not prevent Arugay from
further participating in the rumble and, as subsequently established,
inflicting damaging blows on Li. However, the physical evidence belies
any conclusion that Li inflicted any of the several fatal wounds on
Arugay.
Dr. Pedro P. Solis, the medico-legal consultant of Makati Medical
Center who also happens to be one of the country’s leading experts in
Legal Medicine47, examined Li’s injuries on the same day of the
incident, and subsequently testified on his findings. He concluded
that Li suffered three types of wounds on his body. The first type
consisted of abrasions, consistent with forcible contact accompanied
by a hard object. The two other types of injuries were considerably
more serious: incised wounds and a contusion. As found by the RTC:
According to (sic) Dr. Pedro Solis, who examined the accused at the
Makati Medical Center on the very night after the incident and (sic)
found the following injuries on Kingstone Li, to wit:
1. xxx
2. Wound, incised, 12 cm., scalp, fronto-parietal area, right, 9 cm.,
right; 9 cm. posterior aspect, shoulder, right; 1.5 cm., postero-medial
aspect, distal third, forearm, right.
3. Contusion, 4 x 5 cm., scalp, parieto-occipital area (post suricular)
left.
From the expert testimony and opinion of Dr. Pedro Solis, the injuries
suffered by Kingstone Li were defense wounds, and that there were
two (2) weapons used in inflicting injuries on Kingstone Li. One is a
sharp edge[d] instrument such as a bolo and the other one is [a]
blunt instrument.48
The physical evidence of Li’s injuries are consistent with his version
that Arugay had hacked him, and as he struggled to recover from the
58
blow, he was struck with his own baseball bat by Tan, thus
explaining the contusion on his head. More importantly though, the
injuries were serious enough to incapacitate Li at the scene, calling
into question his ability to inflict the fatal blows on Arugay. As Dr.
Solis testified:
A: [I] noticed in this particular case that there are incise[d] wound[s]
on the right hand and right shoulder. These are injuries brought
about, as I said, brought about by [a] sharp edged instrument. This I
presumed to have been brought about by the inherent self defensive
(sic) mechanism of the victim. In so far as the injury on the head is
concerned, it must be a hit, now, I am referring to the incise wound
on the head, incise[d] wound on the head will also cause pressure on
the skull thereby producing some effect on the brain, this has been
aggravated by a blunt instrument applied on the left side of his neck
and joining as together the two injuries the incise[d] wounds and that
of contusion which is brought about by blunt instrument it might
have cause[d] him some degree of loss of consciousness.
Q: Would that person have been able to stab somebody one time, two
times, three times or four times after sustaining those injuries?
A: In that condition he has no complete power to perform volitional
acts because he must have lost partially or totally his consciousness
primarily the hit on the left side of the head because the brain is a
vital organ and slight jarring will cause los[s] of consciousness and
what we call in ordinary parlance, you saw shooting stars as a
consequence.
Q: Aside from los[s] of consciousness, would that person who
sustained that injury have been able to walk without the assistance
of anybody?
A: In all [likelihood], he might have lost I said of his volitional
movement, he [may be] able to walk but as I have observe[d] it must
be with assistance more particularly in this case whereby the incise
wound on the head is measured 12 cm., the head is a bloody organ in
a way that if a person is erect, blood will flow on that area and it
might cause even modification of his visual perception.49
Li was slashed on the head with a bolo, causing a twelve centimeter
(12 cm.)-wound, among other wounds. In such a condition, it is
highly improbable that he was capable of inflicting the fatal stab
wounds on Arugay. Moreover, it could not be established that Li was
ever armed with a knife. Difficult as it is already to believe that the
wounded Li could have stabbed Arugay several times, the incredulity
is compounded by imagining that Li would have also groped around
for a knife, dazed and severely wounded as he was. Simply put, Li
could not have stabbed Arugay. The assertions to the contrary of Tan
and dela Camara are inherently flawed.
Fourth. In all, the factual determination made by the RTC is wholly
believable up to a point. There were four participants in the brawl,
namely Li, Sangalang, Arugay and Tan. The first blow was struck by
Li, who had armed himself with a baseball bat and used the same to
hit Arugay on the left upper arm. This unprovoked assault by Li
establishes at least some degree of criminal culpability on his part.
Arugay then armed himself with a bolo which he used to inflict an
incised wound on the head of Li. After Li had fallen, Sangalang,
himself armed with a knife, fatally stabbed Arugay at least four times.
Tan had picked up the baseball bat dropped by the wounded Li and
struck Li on the head with the bat. These findings are consistent with
the physical evidence, reliance on which should be given greater
primacy over the unreliable eyewitness testimony of Tan and dela
Camara.
Thus, Sangalang alone had stabbed Christopher Arugay. Yet the RTC
still found Li guilty on the tenuous determination that a conspiracy
59
between Li and Sangalang existed. The RTC held:
From the evidence presented, the court believes and it so holds that
there was conspiracy.
It must be pointed out that Kingstone Li and Eduardo Sangalang
were then in the same house at the same time. Eduardo Sangalang is
the boyfriend of the half-sister of Kingtone Li.
The act of Kingstone Li [in] getting a baseball bat and using it as a
weapon and the act of Eduardo Sangalang alias Eddie Boy in arming
himself with a sharp pointed weapon and both going out to meet
Christopher Arugay whose only sin is to point to the accused his
scandalous and indecent act in bathing nude not in the bathroom
but in a place which is crowded by people who can see him especially
the ladies and is provocative to others are patent and conclusive
presumption of conspiracy for their acts were concerted and so close
to each other that there is no way but to conclude a conspiracy.50
(Emphasis not ours)
Proving conspiracy is a dicey matter, especially difficult in cases such
as the present wherein the criminal acts arose spontaneously, as
opposed to instances wherein the participants would have the
opportunity to orchestrate a more deliberate plan. Spontaneity alone
does not preclude the establishment of conspiracy, which after all,
can be consummated in a moment’s notice – through a single word of
assent to a proposal or an unambiguous handshake. Yet it is more
difficult to presume conspiracy in extemporaneous outbursts of
violence; hence, the demand that it be established by positive
evidence. A conviction premised on a finding of conspiracy must be
founded on facts, not on mere inferences and presumption.51
It is worth noting that while conspiracy was alleged in the
Information against Li, the prosecution devoted its efforts to prove
that Li had actually inflicted the stab wounds on Sangalang, tagging
him as a direct participant in the crime. Thus, there seems to be no
evidence that would directly establish the fact that Li and Sangalang
had come into an agreement to commit a common felony. Any
conclusion that there was a conspiracy will have to be drawn
inferentially, as the RTC did.
It is not necessary to prove a previous agreement to commit a crime if
there is proof that the malefactors have acted in concert and in
pursuance of the common objectives. Direct proof is not essential to
show conspiracy since it is by its nature often planned in utmost
secrecy and it can seldom be proved by direct evidence.52 Conspiracy
may be inferred from the acts of the accused themselves when such
point to a joint purpose and design.53 Complicity may be determined
by concert of action at the moment of consummating the crime and
the form and manner in which assistance is rendered to the person
inflicting the fatal wound.54
However, caution dictates a careful examination of the established
facts before concluding, as the RTC did, that an implied conspiracy
had been established. An implied conspiracy must still be based on
facts established by positive and conclusive evidence.55 Even if
conspiracy per se is not criminal, as it rarely is in this jurisdiction,56
the weight of factual evidence necessary to prove conspiracy is the
same as required to establish criminal liability – proof beyond
reasonable doubt.57 Suppositions based on mere presumptions and
not on solid facts do not constitute proof beyond reasonable doubt.58
The RTC’s conclusion that there was a conspiracy was drawn from
these circumstances, namely: that Li and Sangalang were in the
same house at the same time; and that they both armed themselves
before going out to meet Arugay. The fact that they were in the same
house at the same time is not in itself sufficient to establish
conspiracy. Conspiracy transcends companionship,59 and mere
60
presence at the scene of the crime does not in itself amount to
conspiracy.60
The other circumstance that Li and Sangalang had emerged from Li’s
house, both armed, to face Arugay has to be weighed against other
facts also relied upon by the RTC. As the RTC held, Sangalang
stabbed Arugay only after petitioner had become unconscious. Before
that point, even as Li struck Arugay with a baseball bat, it was not
proven that Li had asked for, or received, any assistance from
Sangalang. Based on these circumstances, the Court is hard put to
conclude that Sangalang and Li had acted in concert to commit the
offense. In fact, the stabbing of Arugay could very well be construed
as a spur-of-the-moment reaction by Sangalang upon seeing that his
friend Li was struck on the head by Arugay. From such a
spontaneous reaction, a finding of conspiracy cannot arise.61
Moreover, it appears that the fight involved two distinct phases. The
first phase commenced when Li, without sufficient provocation,
assaulted Arugay with the baseball bat. Li’s participation in this
phase, albeit as a solitary actor, was indubitably established.
Sangalang’s participation, much less his physical presence during
this phase, was not established at all. In the second phase,
Sangalang was the main actor. Li was incapacitated by then. Clearly,
the existence of conspiracy should be ruled out.
After Arugay had been struck down, it appears that there would have
been a lapse of at least a few minutes, affording him time to procure
the bolo. The second phase in the brawl then commenced. No further
blows appear to have been inflicted by Li. On the other hand, Li
himself became the victim of the hack wounds on the head inflicted
by Arugay. As Li lay incapacitated, possibly unconscious, it remained
highly doubtful whether he had any further participation in the
brawl. At that point, Sangalang, whose previous participation was not
conclusively established, emerged into the fray. Sangalang stabbed
Arugay to death. Verily, it cannot be assumed that Sangalang did
what he did with the knowledge or assent of Li, much more in
coordination with each other.
The scenario as established by the RTC still leaves many open-ended
questions and admits to a myriad of possibilities. This very
uncertainty indicates that Li’s liability as a conspirator was not
established beyond reasonable doubt. The general principle in
criminal law is that all doubts should be resolved in favor of the
accused. Consequently, when confronted with variant though equally
plausible versions of events, the version that is in accord with the
acquittal or the least liability of the accused should be favored.
The only injury attributable to Li is the contusion on the victim’s
right arm that resulted from Li striking Arugay with a baseball bat. In
view of the victim’s supervening death from injuries which cannot be
attributed to Li beyond reasonable doubt, the effects of the contusion
caused by Li are not mortal or at least lie entirely in the realm of
speculation. When there is no evidence of actual incapacity of the
offended party for labor or of the required medical attendance, the
offense is only slight physical injuries, penalized as follows:
Art. 266. Slight physical injuries and maltreatment. – The crime of
slight physical injuries shall be punished:
….
2. By aresto menor or a fine not exceeding 200 pesos and censure
when the offender has caused physical injuries which do not prevent
the offended party from engaging in his habitual work nor require
medical attendance;62
The duration of the penalty of arresto menor is from one day to thirty
days.63 The felony of slight physical injuries is necessarily included
in the homicide charge. Since the Information against Li states that
61
among the means employed to commit the felonious act was the use
of the baseball bat, conviction on the lesser offense of slight physical
injuries is proper. There being no aggravating or mitigating
circumstances established, the imposition of the penalty in its
medium period is warranted.64 Li was convicted by the RTC on
January 5, 1994. Having long served more than the imposable
penalty, Li is entitled to immediate release unless, of course, he is
being lawfully detained for another cause.
What transpired during the dawn hours of 19 April 1993 was an
artless, spontaneous street fight devoid of any methodical plan for
consummation. It arose not because of any long-standing grudge or
an appreciable vindication of honor, but because the actors were too
quick to offense and impervious to reason. Yet, however senseless
this lethal imbroglio is, a judicious examination of the circumstances
must be made to avoid leaps into hyperbole. Careful scrutiny of the
evidence reveals that the criminal culpability of Kingstone Li in the
death of Christopher Arugay was not established beyond reasonable
doubt. Unfortunately, the person who is responsible for the death
apparently remains at large. Yet absent any clear showing of
conspiracy, as in this case, Kingstone Li cannot answer for the crime
of Eduardo Sangalang.
WHEREFORE, the Decision of the Court of Appeals is MODIFIED.
Petitioner Kingstone Li is ACQUITTED of the charge of Homicide for
lack of evidence beyond reasonable doubt. However, he is found
GUILTY of the crime of SLIGHT PHYSICAL INJURIES, as defined and
punished by Article 266 of the Revised Penal Code, and accordingly
sentenced to suffer the penalty of arresto menor in the medium
period of ten (10) to twenty (20) days. Considering that petitioner has
been incarcerated well-beyond the period of the penalty herein
imposed, the Director of the Bureau of Prisons is ordered to cause
petitioner’s IMMEDIATE RELEASE, unless petitioner is being lawfully
held for another cause, and to INFORM this Court, within five (5)
days from receipt of this Decision, of the compliance with such order.
SO ORDERED
G.R. No. 151258 December 1, 2014
ARTEMIO VILLAREAL, Petitioner, vs.
PEOPLE OF THE PHILIPPINES, Respondent.
G.R. No. 154954
G.R. No. 155101
G.R. Nos. 178057 & 178080
SERENO, CJ:
We are asked to revisit our Decision in the case involving the death of
Leonardo "Lenny" Villa due to fraternity hazing. While there is
nothing new in the arguments raised by the parties in their respective
Motions for Clarification or Reconsideration, we find a few remaining
matters needing to be clarified and resobed. Sorne oJ' these matters
include the effect of our Decision on the finality of the Court of
Appeals judgments insofar as respondents Antonio Mariano A!meda
(Almeda), June] Anthony D. Arna (Arna), Renato Bantug, Jr.
(Bantug), and Vincent Tecson (Tecson) are concerned; the question of
who are eligible to seek probation; and the issue of the validity of the
probation proceedings and the concomitant orders of a court that
allegedly had no jurisdiction over the case.
Before the Court are the respective Motions for Reconsideration or
Clarification filed by petitioners People of the Philippines, through the
Office of the Solicitor General (OSG), and Gerarda H. Villa (Villa); and
by respondents Almeda, Ama, Bantug, and Tecson (collectively,
Tecson et al.) concerning the Decision of this Court dated 1 February
2012.1 The Court modified the assailed judgments2 of the Court of
Appeals (CA) in CA-G.R. CR No. 15520 and found respondents
Fidelito Dizon (Dizon), Almeda, Ama, Bantug, and Tecson guilty
beyond reasonable doubt of the crime of reckless imprudence
resulting in homicide. The modification had the effect of lowering the
criminal liability of Dizon from the crime of homicide, while
62
aggravating the verdict against Tecson et al. from slight physical
injuries. The CA Decision itself had modified the Decision of the
Caloocan City Regional Trial Court (RTC) Branch 121 finding all of
the accused therein guilty of the crime of homicide.3
Also, we upheld another CA Decision4 in a separate but related case
docketed as CA-G.R. S.P. Nos. 89060 & 90153 and ruled that the CA
did not commit grave abuse of discretion when it dismissed the
criminal case against Manuel Escalona II (Escalona), Marcus Joel
Ramos (Ramos), Crisanto Saruca, Jr. (Saruca), and Anselmo Adriano
(Adriano) on the ground that their right to speedy trial was violated.
Reproduced below is the dispositive portion of our Decision:5
WHEREFORE, the appealed Judgmentin G.R. No. 155101 finding
petitioner Fidelito Dizon guilty of homicide is hereby MODIFIED and
SET ASIDE IN PART. The appealed Judgment in G.R. No. 154954 –
finding Antonio Mariano Almeda, Junel Anthony Ama, Renato
Bantug, Jr., and Vincent Tecson guilty of the crime of slight physical
injuries – is also MODIFIED and SET ASIDE IN PART. Instead,
Fidelito Dizon, Antonio Mariano Almeda, Junel Anthony Ama, Renato
Bantug, Jr., and Vincent Tecson are found GUILTY beyond
reasonable doubt of reckless imprudence resulting in homicide
defined and penalized under Article 365 in relation to Article 249 of
the Revised Penal Code. They are hereby sentenced to suffer an
indeterminate prison term of four (4) months and one (1) day of
arresto mayor, as minimum, to four (4) years and two (2) months of
prision correccional, as maximum. In addition, accused are
ORDERED jointly and severally to pay the heirs of Lenny Villa civil
indemnity ex delicto in the amount of 50,000, and moral damages in
the amount of 1,000,000, plus legal interest on all damages awarded
at the rate of 12% from the date of the finality of this Decision until
satisfaction. Costs de oficio.
The appealed Judgment in G.R. No. 154954, acquitting Victorino et
al., is hereby AFFIRMED. The appealed Judgments in G.R. Nos.
178057 & 178080, dismissing the criminal case filed against
Escalona, Ramos, Saruca, and Adriano, are likewise AFFIRMED.
Finally, pursuant to Article 89(1) of the Revised Penal Code, the
Petition in G.R. No. 151258 is hereby dismissed, and the criminal
case against Artemio Villareal deemed CLOSED and TERMINATED.
Let copies of this Decision be furnished to the Senate President and
the Speaker of the House of Representatives for possible
consideration of the amendment of the Anti-Hazing Law to include
the fact of intoxication and the presence of non-resident or alumni
fraternity members during hazing as aggravating circumstances that
would increase the applicable penalties.
SO ORDERED.
To refresh our memories, we quote the factual antecedents
surrounding the present case:6
In February 1991, seven freshmen law students of the Ateneo de
Manila University School of Law signified their intention to join the
Aquila Legis Juris Fraternity (Aquila Fraternity). They were Caesar
"Bogs" Asuncion, Samuel "Sam" Belleza, Bienvenido "Bien" Marquez
III, Roberto Francis "Bert" Navera, Geronimo "Randy" Recinto, Felix
Sy, Jr., and Leonardo "Lenny" Villa (neophytes).
On the night of 8 February 1991, the neophytes were met by some
members of the Aquila Fraternity (Aquilans) at the lobby of the
Ateneo Law School. They all proceeded to Rufo’s Restaurant to have
dinner. Afterwards, they went to the house of Michael Musngi, also
an Aquilan, who briefed the neophytes on what to expect during the
initiation rites. The latter were informed that there would be physical
beatings, and that they could quit at any time. Their initiation rites
were scheduled to last for three days. After their "briefing," they were
brought to the Almeda Compound in Caloocan City for the
63
commencement of their initiation.
Even before the neophytes got off the van, they had already received
threats and insults from the Aquilans. As soon as the neophytes
alighted from the van and walked towards the pelota court of the
Almeda compound, some of the Aquilans delivered physical blows to
them. The neophytes were then subjected to traditional forms of
Aquilan "initiation rites." These rites included the "Indian Run,"
which required the neophytes to run a gauntlet of two parallel rows of
Aquilans, each row delivering blows to the neophytes; the "Bicol
Express," which obliged the neophytes to sit on the floor with their
backs against the wall and their legs outstretched while the Aquilans
walked, jumped, or ran over their legs; the "Rounds," in which the
neophytes were held at the back of their pants by the "auxiliaries"
(the Aquilans charged with the duty of lending assistance to
neophytes during initiation rites), while the latter were being hit with
fist blows on their arms or withknee blows on their thighs by two
Aquilans; and the "Auxies’ Privilege Round," in which the auxiliaries
were given the opportunity to inflict physical pain on the neophytes.
During this time, the neophytes were also indoctrinated with the
fraternity principles. They survived their first day of initiation.
On the morning of their second day – 9 February 1991 – the
neophytes were made to present comic plays and to play rough
basketball. They were also required to memorize and recite the Aquila
Fraternity’s principles. Whenever they would give a wrong answer,
they would be hit on their arms or legs. Late in the afternoon, the
Aquilans revived the initiation rites proper and proceeded to torment
them physically and psychologically. The neophytes were subjected to
the same manner of hazing that they endured on the first day of
initiation. After a few hours, the initiation for the day officially ended.
After a while, accused non-resident or alumni fraternity members
Fidelito Dizon (Dizon) and Artemio Villareal (Villareal) demanded that
the rites be reopened. The head of initiation rites, Nelson Victorino 10. Joseph Lledo (Lledo)
(Victorino), initially refused. Upon the insistence of Dizon and 11. Etienne Guerrero (Guerrero)
Villareal, however, he reopened the initiation rites. The fraternity 12. Michael Musngi (Musngi)
members, including Dizon and Villareal, then subjected the 13. Jonas Karl Perez (Perez)
neophytes to "paddling" and to additional rounds of physical pain. 14. Paul Angelo Santos (Santos)
Lenny received several paddle blows, one of which was so strong it 15. Ronan de Guzman (De Guzman)
sent him sprawling to the ground. The neophytes heard him 16. Antonio General (General)
complaining of intense pain and difficulty in breathing. After their 17. Jaime Maria Flores II (Flores)
last session of physical beatings, Lenny could no longer walk. He had 18. Dalmacio Lim, Jr. (Lim)
to be carried by the auxiliaries to the carport. Again, the initiation for 19. Ernesto Jose Montecillo (Montecillo)
the day was officially ended, and the neophytes started eating dinner. 20. Santiago Ranada III (Ranada)
They then slept at the carport. 21. Zosimo Mendoza (Mendoza)
22. Vicente Verdadero (Verdadero)
After an hour of sleep, the neophytes were suddenly roused by 23. Amante Purisima II (Purisima)
Lenny’s shivering and incoherent mumblings.1avvphi1 Initially, 24. Jude Fernandez (J. Fernandez)
Villareal and Dizon dismissed these rumblings, as they thought he 25. Adel Abas (Abas)
was just overacting. When they realized, though, that Lenny was 26. Percival Brigola (Brigola)
really feeling cold, some of the Aquilans started helping him. They In Criminal Case No. C-38340
removed his clothes and helped him through a sleeping bag to keep 1. Manuel Escalona II (Escalona)
him warm. When his condition worsened, the Aquilans rushed him to 2. Crisanto Saruca, Jr. (Saruca)
the hospital. Lenny was pronounced dead on arrival. 3. Anselmo Adriano (Adriano)
4. Marcus Joel Ramos (Ramos)
Consequently, a criminal case for homicide was filed against the 5. Reynaldo Concepcion (Concepcion)
following 35 Aquilans: 6. Florentino Ampil (Ampil)
In Criminal Case No. C-38340(91) 7. Enrico de Vera III (De Vera)
1. Fidelito Dizon (Dizon) 8. Stanley Fernandez (S. Fernandez)
2. Artemio Villareal (Villareal) 9. Noel Cabangon (Cabangon)
3. Efren de Leon (De Leon) Twenty-six of the accused Aquilans in Criminal Case No. C-38340(91)
4. Vincent Tecson (Tecson) were jointly tried. On the other hand, the trial against the remaining
5. Junel Anthony Ama (Ama) nine accused in Criminal Case No. C-38340 was held in abeyance
6. Antonio Mariano Almeda (Almeda) due to certain matters that had to be resolved first.
7. Renato Bantug, Jr. (Bantug)
8. Nelson Victorino (Victorino) On 8 November 1993, the trial court rendered judgment in Criminal
9. Eulogio Sabban (Sabban) Case No. C-38340(91), holding the 26 accused guilty beyond
64
reasonable doubt of the crime of homicide, penalized with reclusion
temporal under Article 249 of the Revised Penal Code. A few weeks
after the trial court rendered its judgment, or on 29 November 1993,
Criminal Case No. C-38340 against the remaining nine accused
commenced anew.
On 10 January 2002, the CAin (CA-G.R. No. 15520) set aside the
finding of conspiracy by the trial court in Criminal Case No. C-
38340(91) and modified the criminal liability of each of the accused
according to individual participation. Accused De Leon had by then
passed away, so the following Decision applied only to the remaining
25 accused, viz:
1. Nineteen of the accused-appellants– Victorino, Sabban, Lledo,
Guerrero, Musngi, Perez, De Guzman, Santos, General, Flores, Lim,
Montecillo, Ranada, Mendoza, Verdadero, Purisima, Fernandez, Abas,
and Brigola (Victorino et al.) – were acquitted,as their individual guilt
was not established by proof beyond reasonable doubt.
2. Four of the accused-appellants– Vincent Tecson, Junel Anthony
Ama, Antonio Mariano Almeda, and Renato Bantug, Jr. (Tecson et al.)
– were found guilty of the crime of slight physical injuriesand
sentenced to 20 days of arresto menor. They were also ordered to
jointly pay the heirs of the victim the sum of ₱30,000 as indemnity.
3. Two of the accused-appellants– Fidelito Dizonand Artemio
Villareal– were found guilty beyond reasonable doubt of the crime of
homicide under Article 249 of the Revised Penal Code. Having found
no mitigating or aggravating circumstance, the CA sentenced them to
an indeterminate sentence of 10 years of prision mayor to 17 years of
reclusion temporal. They were also ordered to indemnify, jointly and
severally, the heirs of Lenny Villa in the sum of ₱50,000 and to pay
the additional amount of ₱1,000,000 by way of moral damages.
65
On 5 August 2002, the trial court in Criminal Case No. 38340
dismissed the charge against accused Concepcion on the ground of
violation of his right to speedy trial. Meanwhile, on different dates
between the years 2003 and 2005, the trial court denied the
respective Motions to Dismiss of accused Escalona, Ramos, Saruca,
and Adriano. On 25 October 2006, the CA in CA-G.R. SP Nos. 89060
& 90153 reversed the trial court’s Orders and dismissed the criminal
case against Escalona, Ramos, Saruca, and Adriano on the basis of
violation of their right to speedy trial.
From the aforementioned Decisions, the five (5) consolidated Petitions
were individually brought before this Court. (Citations omitted)
Motion for Partial Reconsideration
filed by Petitioner Gerarda H. Villa
Petitioner Villa filed the present Motion for Partial Reconsideration7
in connection with G.R. Nos. 178057 & 178080 (Villa v. Escalona)
asserting that the CA committed grave abuse of discretion when it
dismissed the criminal case against Escalona, Ramos,Saruca, and
Adriano (collectively, Escalona et al.) in its assailed Decision and
Resolution.8 Villa reiterates her previous arguments that the right to
speedy trial of the accused was not violated, since they had failed to
assert that right within a reasonable period of time. She stresses
that, unlike their co-accused Reynaldo Concepcion, respondents
Escalona et al.did not timely invoke their right to speedy trial during
the time that the original records and pieces of evidence were
unavailable. She again emphasizes that the prosecution cannot be
faulted entirely for the lapse of 12 years from the arraignment until
the initial trial, as there were a number of incidents attributable to
the accused themselves that caused the delay of the proceedings. She
then insists that we apply the balancing test in determining whether
the right to speedy trial of the accused was violated.
Motion for Reconsideration filed by the OSG
The OSG, in its Motion for Reconsideration9 of G.R. Nos. 155101
(Dizon v. People) and 154954 (People v. Court of Appeals), agrees with
the findings of this Court that accused Dizon and Tecson et al. had
neither the felonious intent to kill (animus interficendi) nor the
felonious intent to injure (animus iniuriandi) Lenny Villa. In fact, it
concedes that the mode in which the accused committed the crime
was through fault (culpa). However, it contends that the penalty
imposed should have been equivalent to that for deceit (dolo)
pursuant to Article 249 (Homicide) of the Revised Penal Code. It
argues that the nature and gravity of the imprudence or negligence
attributable to the accused was so gross that it shattered the fine
distinction between dolo and culpaby considering the act as one
committed with malicious intent. It maintains that the accused
conducted the initiation rites in such a malevolent and merciless
manner that it clearly endangered the lives of the initiates and was
thus equivalent to malice aforethought.
With respect to the 19 other accused, or Victorino et al., the OSG
asserts that their acquittal may also be reversed despite the rule on
double jeopardy, as the CA also committed grave abuse of discretion
in issuing its assailed Decision (CA-G.R. No. 15520). The OSG insists
that Victorino et al. should have been similarly convicted like their
other co-accused Dizon, Almeda, Ama, Bantug, and Tecson, since the
former also participated in the hazing of Lenny Villa, and their
actions contributed to his death.
Motions for Clarification or Reconsideration of Tecson et al.
Respondents Tecson et al.,10 filed their respective motions pertaining
to G.R. No. 154954 (People v. Court of Appeals). They essentially seek
a clarification as to the effect of our Decision insofar as their criminal
liability and service of sentence are concerned. According to
respondents, they immediately applied for probation after the CA
66
rendered its Decision (CAG.R. No. 15520) lowering their criminal
liability from the crime of homicide, which carries a non-
probationable sentence, to slight physical injuries, which carries a
probationable sentence. Tecson et al.contend that, as a result, they
have already been discharged from their criminal liability and the
cases against them closed and terminated. This outcome was
supposedly by virtue of their Applications for Probation on various
dates in January 200211 pursuant to Presidential Decree No. 968, as
amended, otherwise known as the Probation Law. They argue that
Branch 130 of Caloocan City Regional Trial Court (RTC) had already
granted their respective Applications for Probation on 11 October
200212 and, upon their completion of the terms and conditions
thereof, discharged them from probation and declared the criminal
case against them terminated on various dates in April 2003.13
To support their claims, respondents attached14 certified true copies
of their respective Applications for Probation and the RTC Orders
granting these applications, discharging them from probation, and
declaring the criminal case against them terminated. Thus, they
maintain that the Decision in CA-G.R. No. 15520 had already lapsed
into finality, insofar as they were concerned, whenthey waived their
right to appeal and applied for probation.
ISSUES
I. Whether the CA committed grave abuse of discretion amounting to
lack or excess of jurisdiction when it dismissed the case against
Escalona, Ramos, Saruca, and Adriano for violation of their right to
speedy trial
II. Whether the penalty imposed on Tecson et al. should have
corresponded to that for intentional felonies
III. Whether the completion by Tecson et al. of the terms and
conditions of their probation discharged them from their criminal
liability, and closed and terminated the cases against them
DISCUSSION
Findings on the Motion for Partial Reconsideration of
Petitioner Gerarda H. Villa
As regards the first issue, we take note that the factual
circumstances and legal assertions raised by petitioner Villa in her
Motion for Partial Reconsideration concerning G.R. Nos. 178057 &
178080 have already been thoroughly considered and passed upon in
our deliberations, which led to our Decision dated 1 February 2012.
We emphasize that in light of the finding of violation of the right of
Escalona et al. to speedy trial, the CA’s dismissal of the criminal case
against them amounted to an acquittal,15 and that any appeal or
reconsideration thereof would result in a violation of their right
against double jeopardy.16 Though we have recognized that the
acquittal of the accused may be challenged where there has been a
grave abuse of discretion,17 certiorari would lie if it is convincingly
established that the CA’s Decision dismissing the case was attended
by a whimsical or capricious exercise of judgment equivalent to lack
of jurisdiction. It must be shown that the assailed judgment
constitutes "a patent and gross abuse of discretion amounting to an
evasion of a positive duty or to a virtual refusal to perform a duty
imposed by law or toact in contemplation of law; an exercise of power
in an arbitrary and despotic manner by reason of passion and
hostility; or a blatant abuse of authority to a point so grave and so
severe as to deprive the court of its very power to dispense justice."18
Thus, grave abuse of discretion cannot be attributed to a court
simply because it allegedly misappreciated the facts and the
evidence.19
We have taken a second look at the court records, the CA Decision,
and petitioner’s arguments and found no basis to rule that the CA
gravely abused its discretion in concluding that the right to speedy
trial of the accused was violated. Its findings were sufficiently
supported by the records of the case and grounded in law. Thus, we
deny the motion of petitioner Villa with finality.
67
Ruling on the Motion for Reconsideration filed by the OSG
We likewise deny with finality the Motion for Reconsideration filed by
the OSG with respect to G.R. Nos. 155101 (Dizon v. People) and
154954 (People v. Court of Appeals). Many of the arguments raised
therein are essentially a mere rehash of the earlier grounds alleged in
its original Petition for Certiorari.
Furthermore, we cannot subscribe to the OSG’s theory that even if
the act complained of was born of imprudence or negligence,
malicious intent can still be appreciated on account of the gravity of
the actions of the accused. We emphasize that the finding of a felony
committed by means of culpa is legally inconsistent with that
committed by means of dolo. Culpable felonies involve those wrongs
done as a result of an act performed without malice or criminal
design. The Revised Penal Code expresses thusly:
ARTICLE 365. Imprudence and Negligence. — Any person who, by
reckless imprudence, shall commit any act which, had it been
intentional, would constitute a grave felony, shall suffer the penalty
of arresto mayorin its maximum period toprisión correccional in its
medium period; if it would have constituted a less grave felony, the
penalty of arresto mayor in its minimum and medium periods shall
be imposed.
Any person who, by simple imprudence or negligence, shall commit
an act which would otherwise constitute a grave felony, shall suffer
the penalty of arresto mayorin its medium and maximum periods; if
it would have constituted a less serious felony, the penalty of arresto
mayor in its minimum period shall be imposed.
xxxx
Reckless imprudence consists in voluntary, but without malice, doing
or falling to do an act from which material damage results by reason
of inexcusable lack of precaution on the part of the person
performing or failing to perform suchact, taking into consideration
his employment or occupation, degree of intelligence, physical
condition and other circumstances regarding persons, time and
place.
Simple imprudence consists in the lack of precaution displayed in
those cases in which the damage impending to be caused is not
immediate nor the danger clearly manifest. (Emphases supplied)
On the other hand, intentional felonies concern those wrongs in
which a deliberate malicious intent to do an unlawful act is present.
Below is our exhaustive discussion on the matter:20 Our Revised
Penal Code belongs tothe classical school of thought. x x x The
identity of mens rea– defined as a guilty mind, a guilty or wrongful
purpose or criminal intent – is the predominant consideration. Thus,
it is not enough to do what the law prohibits. In order for an
intentional felony to exist, it is necessary that the act be committed
by means of doloor "malice."
The term "dolo" or "malice" is a complex idea involving the elements
of freedom, intelligence, and intent. x x x x The element of intent – on
which this Court shall focus – is described as the state of mind
accompanying an act, especially a forbidden act. It refers to the
purpose of the mind and the resolve with which a person proceeds.It
does not refer to mere will, for the latter pertains to the act, while
intentconcerns the result of the act. While motive is the "moving
power" that impels one to action for a definite result, intent is the
"purpose" of using a particular means to produce the result. On the
other hand, the term "felonious"means, inter alia, malicious,
villainous, and/or proceeding from an evil heart or purpose.With
these elements taken together, the requirement of intent in
intentional felony must refer to malicious intent, which is a vicious
and malevolent state of mind accompanying a forbidden act. Stated
68
otherwise, intentional felony requires the existence of dolus malus–
that the act or omission be done "willfully," "maliciously," "with
deliberate evil intent," and "with malice aforethought." The maxim is
actus non facit reum, nisi mens sit rea– a crime is not committed if
the mind of the person performing the act complained of is innocent.
As is required of the other elements of a felony, the existence of
malicious intent must be proven beyond reasonable doubt.
xxxx
The presence of an initial malicious intent to commit a felony is thus
a vital ingredient in establishing the commission of the intentional
felony of homicide. Being mala in se, the felony of homicide requires
the existence of malice or dolo immediately before or simultaneously
with the infliction of injuries. Intent to kill – or animus interficendi–
cannot and should not be inferred, unless there is proof beyond
reasonable doubt of such intent. Furthermore, the victim’s death
must not have been the product of accident, natural cause, or
suicide. If death resulted from an act executed without malice or
criminal intent – but with lack of foresight, carelessness, or
negligence – the act must be qualified as reckless or simple
negligence or imprudence resulting in homicide.
xxxx
In order to be found guilty ofany of the felonious acts under Articles
262 to 266 of the Revised Penal Code, the employment of physical
injuries must be coupled with dolus malus. As an act that is mala in
se, the existence of malicious intent is fundamental, since injury
arises from the mental state of the wrongdoer – iniuria ex affectu
facientis consistat. If there is no criminal intent, the accused cannot
be found guilty of an intentional felony. Thus, incase of physical
injuries under the Revised Penal Code, there must be a specific
animus iniuriandi or malicious intention to do wrong against the
physical integrity or wellbeing of a person, so as to incapacitate and
deprive the victim of certain bodily functions. Without proof beyond
reasonable doubt of the required animus iniuriandi, the overt act of
inflicting physical injuries per semerely satisfies the elements of
freedom and intelligence in an intentional felony. The commission of
the act does not, in itself, make a man guilty unless his intentions
are.
Thus, we have ruled in a number of instances that the mere infliction
of physical injuries, absentmalicious intent, does not make a person
automatically liable for an intentional felony.x x x.
xxxx
The absence of malicious intent does not automatically mean,
however, that the accused fraternity members are ultimately devoid
of criminal liability. The Revised Penal Code also punishes felonies
that are committed by means of fault (culpa). According to Article 3
thereof, there is fault when the wrongful act results
imprudence, negligence, lack of foresight, or lack of skill.
Reckless imprudence or negligence consists of a voluntary act done
without malice, from which an immediate personal harm, injury or
material damage results by reason of an inexcusable lack of
precaution or advertence on the part of the person committing it. In
this case, the danger is visible and consciously appreciated by the
actor. In contrast, simple imprudence or negligence comprises an act
done without grave fault, from which an injury or material damage
ensues by reason of a mere lack of foresight or skill. Here, the
threatened harm is not immediate, and the danger is not openly
visible.
The test for determining whether or not a person is negligent in doing
an act is as follows: Would a prudent man in the position of the
person to whom negligence is attributed foresee harm to the person
injured as a reasonable consequence of the course about to be
pursued? If so, the law imposes on the doer the duty to take
precaution against the mischievous resultsof the act. Failure to do so
constitutes negligence.
As we held in Gaid v. People, for a person to avoid being charged with
recklessness, the degree of precaution and diligence required varies
with the degree of the danger involved. If, on account of a certain line
of conduct, the danger of causing harm to another person is great,
the individual who chooses to follow that particular course of conduct
is bound to be very careful, inorder to prevent or avoid damage or
injury. In contrast, if the danger is minor, not much care is required.
It is thus possible that there are countless degrees of precaution or
diligence that may be required of an individual, "from a transitory
glance of care to the most vigilant effort." The duty of the person to
employ more or less degree of care will depend upon the
circumstances of each particular case. (Emphases supplied, citations
from omitted)
We thus reiterate that the law requires proof beyond reasonable
doubt of the existence of malicious intent or dolus malus before an
accused can be adjudged liable for committing an intentional felony.
Since the accused were found to have committed a felony by means
of culpa, we cannot agree with the argument of the OSG. It contends
that the imposable penalty for intentional felony can also be applied
to the present case on the ground that the nature of the imprudence
or negligence of the accused was so gross that the felony already
amounted to malice. The Revised Penal Code has carefully delineated
the imposable penalties as regards felonies committed by means of
culpaon the one hand and felonies committed by means of doloon the
other in the context of the distinctions it has drawn between them.
The penalties provided in Article 365 (Imprudence and Negligence)
are mandatorily applied if the death of a person occurs as a result of
the imprudence or negligence of another. Alternatively, the penalties
outlined in Articles 246 to 261 (Destruction of Life) are automatically
invoked if the death was a result of the commission of a forbidden act
accompanied by a malicious intent. These imposable penalties are
statutory, mandatory, and not subjectto the discretion of the court.
69
We have already resolved – and the OSG agrees – that the accused
Dizon and Tecson et al. had neither animus interficendi nor animus
iniuriandi in inflicting physical pain on Lenny Villa. Hence, we rule
that the imposable penalty is what is applicable to the crime of
reckless imprudence resulting in homicide as defined and penalized
under Article 365 of the Revised Penal Code.
Ruling on the Motions for Clarification or Reconsideration
filed by Tecson et al.
We clarify, however, the effect of our Decision in light of the motions
of respondents Tecson et al. vis-à-vis G.R. No. 154954 (People v.
Court of Appeals).
The finality of a CA decision will not
bar the state from seeking the
annulment of the judgment via a
Rule 65 petition.
In their separate motions,21 respondents insist that the previous
verdict of the CA finding them guilty of slight physical injuries has
already lapsed into finality as a result of their respective availments
of the probation program and their ultimate discharge therefrom.
Hence, they argue that they can no longer be convicted of the heavier
offense of reckless imprudence resulting in homicide.22 Respondents
allude to our Decision in Tan v. People23 to support their contention
that the CA judgment can no longer be reversed or annulled even by
this Court.
The OSG counters24 that the CA judgment could not have attained
finality, as the former had timely filed with this Court a petition for
certiorari. It argues that a Rule 65 petition is analogous to an appeal,
or a motion for new trial or reconsideration, in that a petition for
70
certiorarialso prevents the case from becoming final and executory
until after the matter is ultimately resolved.
Indeed, Rule 120 of the Rules of Court speaks of the finality of a
criminal judgment once the accused applies for probation, viz:
SECTION 7. Modification of judgment. — A judgment of
convictionmay, upon motion of the accused, be modified or set aside
before it becomes final or before appeal is perfected. Except where the
death penalty is imposed, a judgment becomes finalafter the lapse of
the period for perfecting an appeal, or whenthe sentence has been
partially or totally satisfied or served, or when the accusedhas waived
in writing his right to appeal, or has applied for probation. (7a)
(Emphases supplied)
Coupled with Section 7 of Rule 11725 and Section 1 of Rule 122,26 it
can be culled from the foregoing provisions that only the accused
may appeal the criminal aspect of a criminal case, especially if the
relief being sought is the correction or review of the judgment therein.
This rule was instituted in order to give life to the constitutional
edict27 against putting a person twice in jeopardy of punishment for
the same offense. It is beyond contention that the accused would be
exposed to double jeopardy if the state appeals the criminal judgment
in order to reverse an acquittal or even to increase criminal liability.
Thus, the accused’s waiver of the right to appeal – as when applying
for probation – makes the criminal judgment immediately final and
executory. Our explanation in People v. Nazareno is worth
reiterating:28
Further prosecution via an appeal from a judgment of acquittal is
likewise barred because the government has already been afforded a
complete opportunity to prove the criminal defendant’s culpability;
after failing to persuade the court to enter a final judgment of
conviction, the underlying reasons supporting the constitutional ban
on multiple trials applies and becomes compelling. The reason is not
only the defendant’s already established innocence at the first trial
where he had been placed in peril of conviction, but also the same
untoward and prejudicial consequences of a second trial initiated by
a government who has at its disposal all the powers and resources of
the State.
Unfairness and prejudice would necessarily result, as the government
would then be allowed another opportunity to persuade a second trier
of the defendant’s guilt while strengthening any weaknesses that had
attended the first trial, all in a process where the government’s power
and resources are once again employed against the defendant’s
individual means. That the second opportunity comesvia an appeal
does not make the effects any less prejudicial by the standards of
reason, justice and conscience. (Emphases supplied, citations
omitted)
It must be clarified, however, that the finality of judgment evinced in
Section 7 of Rule 120 does not confer blanket invincibility on criminal
judgments. We have already explained in our Decision that the rule
on double jeopardy is not absolute, and that this rule is inapplicable
to cases in which the state assails the very jurisdiction of the court
that issued the criminal judgment.29 The reasoning behind the
exception is articulated in Nazareno, from which we quote:30
In such instance, however, no review of facts and law on the merits,
in the manner done in an appeal, actually takes place; the focus of
the review is on whether the judgment is per sevoid on jurisdictional
grounds, i.e., whether the verdict was rendered by a court that had
no jurisdiction; or where the court has appropriate jurisdiction,
whether it acted with grave abuse of discretion amounting to lack or
excess of jurisdiction. In other words, the review is on the question of
whether there has been a validly rendered decision, not on the
question of the decision’s error or correctness. Under the exceptional
71
nature of a Rule 65 petition, the burden — a very heavy one — is on
the shoulders of the party asking for the review to show the presence
of a whimsical or capricious exercise of judgment equivalent to lack
of jurisdiction; or of a patent and gross abuse of discretion
amounting to an evasion of a positive duty or a virtual refusal to
perform a duty imposed by law or to act in contemplation of law; or to
an exercise of power in an arbitrary and despotic manner by reason
of passion and hostility. (Emphases supplied, citations omitted) While
this Court’s Decision in Tan may have created an impression of the
unassailability of a criminal judgment as soon as the accused applies
for probation, we point out that what the state filed therein was a
mere motion for the modification of the penalty, and not a Rule 65
petition. A petition for certiorari is a special civil action that is
distinct and separate from the main case. While in the main case, the
core issue is whether the accused is innocent or guilty of the crime
charged, the crux of a Rule 65 petition is whether the court acted (a)
without or in excess of its jurisdiction; or (b) with grave abuse of
discretion amounting to lack or excess of jurisdiction. Hence, strictly
speaking, there is nomodification of judgment in a petition for
certiorari, whose resolution does not call for a re-evaluation of the
merits of the case in order to determine the ultimate criminal
responsibility of the accused. In a Rule 65 petition, any resulting
annulment of a criminal judgment is but a consequence of the
finding of lack of jurisdiction.
In view thereof, we find that the proper interpretation of Section 7 of
Rule 120 must be that it is inapplicable and irrelevant where the
court’s jurisdiction is being assailed through a Rule 65 petition.
Section 7 of Rule 120 bars the modification of a criminal judgment
only if the appeal brought before the court is in the nature of a
regular appeal under Rule 41, or an appeal by certiorari under Rule
45, and if that appeal would put the accused in double jeopardy. As it
is, we find no irregularity in the partial annulment of the CA Decision
in CA-G.R. No. 15520 in spite of its finality, as the judgment therein
was issued with grave abuse of discretion amounting to lack or
excess of jurisdiction.
The orders of Caloocan City RTC
Branch 130 have no legal effect, as
they were issued without jurisdiction.
First, Tecson et al. filed their Applications for Probation with the
wrong court. Part and parcel of our criminal justice system is the
authority or jurisdiction of the court to adjudicate and decide the
case before it. Jurisdiction refers to the power and capacity of the
tribunal to hear, try, and decide a particular case or matter before
it.31 That power and capacity includes the competence to pronounce
a judgment, impose a punishment,32 and enforce or suspend33 the
execution of a sentencein accordance with law.
The OSG questions34 the entire proceedings involving the probation
applications of Tecson et al. before Caloocan City RTC Branch 130.
Allegedly, the trial court did not have competence to take cognizance
of the applications, considering that it was not the court of origin of
the criminal case. The OSG points out that the trial court that
originally rendered the Decision in Criminal Case No. C-38340(91)
was Branch 121 of the Caloocan City RTC.
The pertinent provision of the Probation Law is hereby quoted for
reference:
SEC. 4. Grant of Probation. — Subject to the provisions of this
Decree, the trial court may, after it shall have convicted and
sentenced a defendant, and upon application by said defendant
within the period for perfecting an appeal, suspend the execution of
the sentence and place the defendant on probation for such period
and upon such terms and conditions as it may deem best; Provided,
That no application for probation shall be entertained or granted if
72
the defendant has perfected the appeal from the judgment of
conviction. x x x x (Emphases supplied)
It is obvious from the foregoing provision that the law requires that
an application for probation be filed withthe trial court that convicted
and sentenced the defendant, meaning the court of origin. Here, the
trial court that originally convicted and sentenced Tecson et al.of the
crime of homicide was Branch 121 – not Branch 130 – of the
Caloocan City RTC.35 Neither the judge of Branch 130 in his Orders
nor Tecson et al.in their pleadings have presented any explanation or
shown any special authority that would clarify why the Applications
for Probation had not been filed with or taken cognizance of by
Caloocan City RTC Branch 121. While we take note that in a previous
case, the CA issued a Decision ordering the inhibition of Branch 121
Judge Adoracion G. Angeles from hearing and deciding Criminal Case
No. C-38340(91), the ruling was made specifically applicable to the
trial of petitioners therein, i.e. accused Concepcion, Ampil, Adriano,
and S. Fernandez.36
Tecson et al. thus committed a fatal error when they filed their
probation applications with Caloocan City RTC Branch 130, and not
with Branch 121. We stress that applicants are not at liberty to
choose the forum in which they may seek probation, as the
requirement under Section 4 of the Probation law is substantive and
not merely procedural. Considering, therefore, that the probation
proceedings were premised on an unwarranted exercise of authority,
we find that Caloocan City RTC Branch 130 never acquired
jurisdiction over the case.
Second, the records of the casewere still with the CA when Caloocan
City RTC Branch 130 granted the probation applications.
Jurisdiction over a case is lodged with the court in which the criminal
action has been properly instituted.37 If a party appeals the trial
court’s judgment or final order,38 jurisdiction is transferred to the
appellate court. The execution of the decision is thus stayed insofar
as the appealing party is concerned.39 The court of origin then loses
jurisdiction over the entire case the moment the other party’s time to
appeal has expired.40 Any residual jurisdiction of the court of origin
shall cease – including the authority to order execution pending
appeal – the moment the complete records of the case are transmitted
to the appellate court.41 Consequently, it is the appellate court that
shall have the authority to wield the power to hear, try, and decide
the case before it, as well as to enforce its decisions and resolutions
appurtenant thereto. That power and authority shall remain with the
appellate court until it finally disposes of the case. Jurisdiction
cannot be ousted by any subsequent event, even if the nature of the
incident would have prevented jurisdiction from attaching in the first
place.
According to Article 78 of the Revised Penal Code, "[n]o penalty shall
be executed except by virtue of a final judgment." A judgment of a
court convicting or acquitting the accused of the offense charged
becomes final under any of the following conditions among others:42
after the lapse of the period for perfecting an appeal; when the
accused waives the right to appeal; upon the grant of a withdrawal
ofan appeal; when the sentence has already been partially or totally
satisfied or served; or when the accused applies for probation. When
the decision attains finality, the judgment or final order is entered in
the book of entries of judgments.43 If the case was previously
appealed to the CA, a certified true copy of the judgment or final
order must be attached to the original record, which shall then be
remanded to the clerk of the court from which the appeal was
taken.44 The court of origin then reacquires jurisdiction over the
case for appropriate action. It is during this time that the court of
origin may settle the matter of the execution of penalty or the
suspension of the execution thereof,45 including the convicts’
applications for probation.46
73
A perusal of the case records reveals that the CA had not yet
relinquished its jurisdiction over the case when Caloocan City RTC
Branch 130 took cognizance of the Applications for Probation of
Tecson et al. It shows that the accused filed their respective
applications47 while a motion for reconsideration was still pending
before the CA48 and the records were still with that court.49 The CA
settled the motion only upon issuing the Resolution dated 30 August
2002 denying it, or about seven months after Tecson et al. had filed
their applications with the trial court.50 In September 2002, or
almost a month before the promulgation of the RTC Order dated 11
October 2002 granting the probation applications,51 the OSG had
filed Manifestations of Intent to File Petition for Certiorari with the
CA52 and this Court.53 Ultimately, the OSG assailed the CA
judgments by filing before this Court a Petition for Certiorari on 25
November 2002.54 We noted the petition and then required
respondents to file a comment thereon.55 After their submission of
further pleadings and motions, we eventually required all parties to
file their consolidated memoranda.56 The records of the case
remained with the CA until they were elevated to this Court in
2008.57
For the foregoing reasons, we find that RTC Branch 130 had no
jurisdiction to act on the probation applications of Tecson et al. It
had neither the power nor the authority to suspend their sentence,
place them on probation, order their final discharge, and eventually
declare the case against them terminated. This glaring jurisdictional
faux pasis a clear evidence of either gross ignorance of the law oran
underhanded one-upmanship on the part of RTC Branch 130 or
Tecson et al., or both – to which this Court cannot give a judicial
imprimatur.
In any event, Tecson et al. were ineligible to seek probation at the
time they applied for it. Probation58 is a special privilege granted by
the state to penitent qualified offenders who immediately admit their
liability and thus renounce their right to appeal. In view of their
acceptance of their fate and willingness to be reformed, the state
affords them a chance to avoid the stigma of an incarceration
recordby making them undergo rehabilitation outside of prison. Some
of the major purposes of the law are to help offenders to eventually
develop themselves into law-abiding and self respecting individuals,
as well as to assist them in their reintegration with the community.
It must be reiterated that probation is not a right enjoyed by the
accused. Rather, it is an act of grace orclemency conferred by the
state. In Francisco v. Court of Appeals,59 this Court explained thus:
It is a special prerogative granted by law to a person or group of
persons not enjoyed by others or by all. Accordingly, the grant of
probation rests solely upon the discretion of the court which is to be
exercised primarily for the benefit of organized society, and only
incidentally for the benefit of the accused. The Probation Law should
not therefore be permitted to divest the state or its government of any
of the latter’s prerogatives, rights or remedies, unless the intention of
the legislature to this end is clearly expressed, and no person should
benefit from the terms of the law who is not clearly within them.
(Emphases supplied)
The OSG questions the validity of the grant of the probation
applications of Tecson et al.60 It points out that when they appealed
to the CA their homicide conviction by the RTC, they thereby made
themselves ineligible to seek probation pursuant to Section 4 of
Presidential Decree No. 968 (the Probation Law).
We refer again to the full text ofSection 4 of the Probation Law as
follows:
SEC. 4. Grant of Probation. — Subject to the provisions of this
Decree, the trial court may, after it shall have convicted and
sentenced a defendant, and upon application by said defendant
74
within the period for perfecting an appeal, suspend the execution of
the sentence and place the defendant on probation for such period
and upon such terms and conditions as it may deem best; Provided,
That no application for probation shall be entertained or granted if
the defendant has perfected the appeal from the judgment of
conviction.
Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. An application for probation shall be
filed with the trial court. The filing of the application shall be deemed
a waiver of the right to appeal.
An order granting or denying probation shall not be appealable.
(Emphases supplied)
Indeed, one of the legal prerequisites of probation is that the offender
must not have appealed the conviction.61 In the 2003 case Lagrosa
v. Court of Appeals,62 this Court was faced with the issue of whether
a convict may still apply for probation even after the trial court has
imposed a non probationable verdict, provided that the CA later on
lowers the original penalty to a sentence within the probationable
limit. In that case, the trial court sentenced the accused to a
maximum term of eight years of prisión mayor, which was beyond the
coverage of the Probation Law. They only became eligible for
probation after the CA reduced the maximum term of the penalty
imposed to 1 year, 8 months and 21 days of prisión correccional.
In deciding the case, this Court invoked the reasoning in Francisco
and ruled that the accused was ineligiblefor probation, since they
had filed an appeal with the CA. In Francisco, we emphasized that
Section 4 of the Probation Law offers no ambiguity and does not
provide for any distinction, qualification, or exception. What is clearis
that all offenders who previously appealed their cases, regardless of
their reason for appealing, are disqualified by the law from seeking
probation. Accordingly, this Court enunciated in Lagrosathat the
accused are disallowed from availing themselves of the benefits of
probation if they obtain a genuine opportunity to apply for probation
only on appeal as a result of the downgrading of their sentence from
non-probationable to probationable.
While Lagrosa was promulgated three months after Caloocan City
RTC Branch 130 issued its various Orders discharging Tecson et al.
from probation, the ruling in Lagrosa, however, was a mere
reiteration of the reasoning of this Court since the 1989 case
Llamado v. Court of Appeals63 and Francisco. The Applications for
Probation of Tecson et al., therefore, should not have been granted by
RTC Branch 130, as they had appealed their conviction to the CA. We
recall that respondents were originally found guilty of homicide and
sentenced to suffer 14 years, 8 months, and 1 day of reclusion
temporal as maximum. Accordingly, even if the CA later downgraded
their conviction to slight physical injuries and sentenced them to 20
days of arresto menor, which made the sentence fall within
probationable limits for the first time, the RTC should have
nonetheless found them ineligible for probation at the time.
The actions of the trial court must thus be adjudged as an arbitrary
and despotic use of authority, so gross that it divested the court of its
very power to dispense justice. As a consequence, the RTC Orders
granting the Applications for Probation of Tecson et al. and thereafter
discharging them from their criminal liability must be deemed to
have been issued with grave abuse of discretion amounting to lack or
excess of jurisdiction.
Whether for lack of jurisdiction orfor grave abuse of discretion,
amounting to lack or excess of jurisdiction, we declare all orders,
resolutions, and judgments of Caloocan City RTC Branch 130 in
relation to the probation applications of Tecson et al. null and void
for having been issued without jurisdiction. We find our
75
pronouncement in Galman v. Sandiganbayan64 applicable, viz:
A void judgment is, in legal effect, no judgment at all. By it no rights
are divested. Through it, no rights can be attained. Being worthless,
all proceedings founded upon it are equally worthless. It neither
binds nor bars anyone. All acts performed under it and all claims
flowing out of it are void. (Emphasis supplied)
The ultimate discharge of Tecson et
al. from probation did not totally
extinguish their criminal liability.
Accused Bantug asserts65 that, in any event, their criminal liability
has already been extinguished as a result of their discharge from
probation and the eventual termination of the criminal case against
them by Caloocan City RTC Branch 130. To support his argument,
he cites the following provision of the Revised Penal Code:
ARTICLE 89. How Criminal Liability is Totally Extinguished. —
Criminal liability is totally extinguished:
1. By the death of the convict, as to the personal penalties; and as to
pecuniary penalties, liability therefor is extinguished only when the
death of the offender occurs before final judgment.
2. By service of the sentence.
3. By amnesty, which completely extinguishes the penalty and all its
effects.
4. By absolute pardon.
5. By prescription of the crime.
6. By prescription of the penalty.
7. By the marriage of the offended woman, as provided in article 344
of this Code. (Emphasis supplied)
As previously discussed, a void judgment cannot be the source of
legal rights; legally speaking, it is as if no judgment had been
rendered at all. Considering our annulment of the Orders of Caloocan
City RTC Branch 130 in relation to the probation proceedings,
respondents cannot claim benefits that technically do not exist.
In any event, Tecson et al.cannot invoke Article89 of the Revised
Penal Code, as we find it inapplicable to this case. One of the
hallmarks of the Probation Law is precisely to "suspend the execution
of the sentence,"66 and not to replace the original sentence with
another, as we pointed out in our discussion in Baclayon v. Mutia:67
An order placing defendant on "probation" is not a "sentence" but is
rather in effect a suspension of the imposition of sentence. It is not a
final judgment but is rather an "interlocutory judgment"in the nature
of a conditional order placing the convicted defendant under the
supervision of the court for his reformation, to be followed by a final
judgment of discharge, if the conditions of the probation are complied
with, or by a final judgment of sentence if the conditions are violated.
(Emphases supplied)
Correspondingly, the criminal liability of Tecson et al.remains.
In light of our recent Decision in
Colinares v. People, Tecson et al.
may now reapply for probation.
Very recently, in Colinares v. People,68 we revisited our ruling in
Franciscoand modified our pronouncements insofar as the eligibility
for probation of those who appeal their conviction is concerned.
Through a majority vote of 9-6, the Court En Bancin effect
abandoned Lagrosaand settled the following once and for all:69
Secondly, it is true that under the probation law the accused who
appeals "from the judgment of conviction" is disqualified from availing
himself of the benefits of probation. But, as it happens, two
judgments of conviction have been meted out to Arnel: one, a
conviction for frustrated homicide by the regional trial court,now set
76
aside; and, two, a conviction for attempted homicide by the Supreme
Court.
If the Court chooses to go by the dissenting opinion’s hard position, it
will apply the probation law on Arnel based on the trial court’s
annulled judgment against him. He will not be entitled to probation
because of the severe penalty that such judgment imposed on him.
More, the Supreme Court’s judgment of conviction for a lesser offense
and a lighter penalty will also have to bend over to the trial court’s
judgment — even if this has been found in error. And, worse, Arnel
will now also be made to pay for the trial court’s erroneous judgment
with the forfeiture of his right to apply for probation. Ang kabayo ang
nagkasala, ang hagupit ay sa kalabaw(the horse errs, the carabao
gets the whip). Where is justice there?
The dissenting opinion also expresses apprehension that allowing
Arnel to apply for probation would dilute the ruling of this Court in
Francisco v. Court of Appealsthat the probation law requires that an
accused must not have appealed his conviction before he can avail
himself of probation. But there is a huge difference between
Franciscoand this case.
xxxx
Here, however, Arnel did not appeal from a judgment that would have
allowed him to apply for probation. He did not have a choice between
appeal and probation. Hewas not in a position to say, "By taking this
appeal, I choose not to apply for probation." The stiff penalty that the
trial court imposed on him denied him that choice. Thus, a ruling
that would allow Arnel to now seek probation under this Court’s
greatly diminished penalty will not dilute the sound ruling in
Francisco. It remains that those who will appeal from judgments of
conviction, when they have the option to try for probation, forfeit
their right to apply for that privilege.
xxxx
In a real sense, the Court’s finding that Arnel was guilty, not of
frustrated homicide, but only of attempted homicide, is an original
conviction that for the first time imposes on him a probationable
penalty. Had the RTC done him right from the start, it would have
found him guilty of the correct offense and imposed on him the right
penalty of two years and four months maximum. This would have
afforded Arnel the right to apply for probation.
The Probation Law never intended to deny an accused his right to
probation through no fault of his. The underlying philosophy of
probation is one of liberality towards the accused. Such philosophy is
not served by a harsh and stringent interpretation of the statutory
provisions. As Justice Vicente V. Mendoza said in his dissent in
Francisco, the Probation Law must not be regarded as a mere
privilege to be given to the accused only where it clearly appears he
comes within its letter; to do so would be to disregard the teaching in
many cases that the Probation Law should be applied in favor of the
accused not because it is a criminal law but to achieve its beneficent
purpose.
xxxx
At any rate, what is clear is that, had the RTC done what was right
and imposed on Arnel the correct penalty of two years and four
months maximum, he would havehad the right to apply for
probation. No one could say with certainty that he would have availed
himself of the right had the RTC doneright by him. The idea may not
even have crossed his mind precisely since the penalty he got was not
probationable.
The question in this case is ultimately one of fairness.1âwphi1 Is it
fair to deny Arnel the right to apply for probation when the new
penalty that the Court imposes on him is, unlike the one erroneously
imposed by the trial court, subject to probation? (Emphases supplied)
In our Decision, we set aside the RTC and the CA judgments and
found Tecson et al.ultimately liable for the crime of reckless
77
imprudence resulting in homicide. Pursuant to Article 365 of the
Revised Penal Code, the offense is punishable by arresto mayor in its
maximum period (from 4 months and 1 day to 6 months) to prisión
correccional in its medium period (from 2 years, 4 months, and 1 day
to 4 years and 2 months). Considering that the new ruling in
Colinares is more favorable to Tecson et al., we rule that they are now
eligible to apply for probation. Since Fidelito Dizon (Dizon) was
convicted of the same crime, we hereby clarify that Dizon is also
eligible for probation.
While we cannot recognize the validityof the Orders of RTC Branch
130, which granted the Applications for Probation, we cannot
disregard the fact that Tecson et al. have fulfilled the terms and
conditions of their previous probation program and have eventually
been discharged therefrom. Thus, should they reapply for probation,
the trial court may, at its discretion, consider their antecedent
probation service in resolving whether to place them under probation
at this time and in determining the terms, conditions, and period
thereof.
Final clarificatory matters
We now take this opportunity to correct an unintentional
typographical error in the minimum term of the penalty imposed on
the accused Dizon and Tecson et al. While this issue was not raised
by any of the parties before us, this Court deems it proper to discuss
the matter ex proprio motuin the interest of justice. In the first
paragraph of the dispositive portion of our Decision dated 1 February
2012, the fourth sentence reads as follows:
They are hereby sentenced to suffer anindeterminate prison term of
four (4) months and one (1) day of arresto mayor, as minimum, to
four (4) years and two (2) months of prisión correccional, as
maximum.

As we had intended to impose on the accused the maximum term of
the "penalty next lower" than that prescribed by the Revised Penal
Code for the offense of reckless imprudence resulting in homicide, in
accordance with the Indeterminate Sentence Law (ISL),70 the phrase
"and one (1) day," which had been inadvertently added, must be
removed. Consequently, in the first paragraph of the dispositive
portion, the fourth sentence should now read as follows:
They are hereby sentenced to suffer anindeterminate prison term of
four (4) months of arresto mayor, as minimum, to four (4) years and
two (2) months of prisión correccional, as maximum. In this instance,
we further find it important to clarify the accessory penalties inherent
to the principal penalty imposed on Dizon and Tecson et al.
By operation of Articles 40 to 45 and 73 of the Revised Penal Code, a
corresponding accessory penalty automatically attaches every time a
court lays down a principal penalty outlined in Articles 25 and 27
thereof.71 The applicable accessory penalty is determined by using
as reference the principal penaltyimposed by the court before the
prison sentence is computed in accordance with the ISL.72 This
determination is made in spite of the two classes ofpenalties
mentioned in an indeterminate sentence. It must be emphasized that
the provisions on the inclusion of accessory penalties specifically
allude to the actual "penalty"73 imposed, not to the "prison
sentence"74 set by a court. We believe that the ISL did not intend to
have the effect of imposing on the convict two distinct sets of
accessory penalties for the same offense.75 The two penalties are
only relevant insofar as setting the minimum imprisonment period is
concerned, after which the convict may apply for parole and
eventually seek the shortening of the prison term.76
Under Article 365 of the Revised Penal Code, the prescribed penalty
for the crime of reckless imprudence resulting in homicide is arresto
78
mayor in its maximum period to prisión correccionalin its medium
period. As this provision grants courts the discretion tolay down a
penalty without regard to the presence of mitigating and aggravating
circumstances, the imposable penaltymust also be within the
aforementioned range.77 Hence, before applying the ISL, we
ultimately imposed on Dizon and Tecson et al. the actual (straight)
penalty78 of four years and two months of prisión correccional.79
Pursuant to Article 43 of the Revised Penal Code, the penalty of
prisión correccional automatically carries with it80 the following
accessory penalties: ARTICLE 43. Prisión Correccional— Its accessory
penalties. — The penalty of prisión correccional shall carry with it
that of suspension from public office, from the right tofollow a
profession or calling, and that of perpetual special disqualification
from the right of suffrage, if the duration of said imprisonment shall
exceed eighteen months. The offender shall suffer the disqualification
provided in this article although pardoned as to the principal penalty,
unless the same shall have been expressly remitted in the pardon.
The duration of their suspension shall be the same as that of their
principal penalty sans the ISL; that is, for four years and two
months81 or until they have served their sentence in accordance with
law. Their suspension takes effect immediately, once the judgment of
conviction becomes final.82
We further point out that if the length of their imprisonment exceeds
18 months, they shall furthermore suffer a perpetual special
disqualification from the right of suffrage. Under Article 32 of the
RevisedPenal Code, if this accessory penalty attaches, it shall forever
deprive them of the exercise of their right (a) to vote in any popular
election for any public office; (b) to be elected to that office; and (c) to
hold any public office.83 Any public office that they may be holding
becomes vacant upon finality of the judgment.84 The aforementioned
accessory penalties can only be wiped out if expressly remitted in a
pardon.85

Of course, the aforementioned accessory penalties are without
prejudice to a grant of probation, shouldthe trial court find them
eligible therefor. As we explained in Baclayon,86 the grant of
probation suspends the execution of the principal penalty of
imprisonment, as well as that of the accessory penalties. We have
reiterated this point in Moreno v. Commission on Elections:87
In Baclayon v. Mutia, the Court declared that an order placing
defendant on probation is not a sentence but is rather, in effect, a
suspension of the imposition of sentence. We held that the grant of
probation to petitioner suspended the imposition of the principal
penalty of imprisonment, as well as the accessory penalties of
suspension from public office and from the right to follow a
profession or calling, and that of perpetual special disqualification
from the right of suffrage. We thus deleted from the order granting
probation the paragraph which required that petitioner refrain from
continuing with her teaching profession.
Applying this doctrine to the instant case, the accessory penalties of
suspension from public office, from the right to follow a profession or
calling, and that of perpetual special disqualification from the right of
suffrage, attendant to the penalty of arresto mayor in its maximum
period to prision correccional in its minimum period imposed upon
Moreno were similarly suspended upon the grant of probation.
It appears then that during the period of probation, the probationer is
not even disqualified from running for a public office because the
accessory penalty of suspension from public office is put on hold for
the duration of the probation. x x x x. During the period of probation,
the probationer does not serve the penalty imposed upon him by the
court but is merely required to comply with all the conditions
prescribed in the probation order.
79
WHEREFORE, premises considered, the Motion for Partial
Reconsideration of petitioner Gerarda H. Villa in connection with G.R.
Nos. 178057 & 178080 is hereby DENIED. The Motion for
Reconsideration filed by the Office of the Solicitor General concerning
G.R. Nos. 155101 and 154954 is also DENIED.
The respective Motions for Clarification or Reconsideration of Antonio
Mariano Almeda, Junel Anthony D. Arna, Renato Bantug, Jr., and
Vincent Tecson are likewise DENIED. In light of the finding that
Caloocan City Regional Trial Court Branch 130 acted without or in
excess of its jurisdiction in taking cognizance of the aforementioned
Applications for Probation, we hereby ANNUL the entire probation
proceedings and SET ASIDE all orders, resolutions, or judgments
issued in connection thereto. We, however, CLARIFY that Antonio
Mariano Almeda, Junel Anthony D. Arna, Renato Bantug, Jr.,
Vincent Tecson, and Fidelito Dizon are eligible to apply or reapply for
probation in view of our recent ruling in Colinares v. People of the
Philippines,88 without prejudice to their remaining civil liability, if
any.
Furthermore, we issue a CORRECTION of the dispositive portion of
our Decision dated 1 February 2012 and hereby delete the phrase
"and one (1) day" located in the fourth sentence of the first paragraph
thereof. The sentence shall now read as follows: "They are hereby
sentenced to suffer an indeterminate prison term of four (4) months
of arresto mayor, as minimum, to four (4) years and two (2) months of
prisi6n correccional, as maximum." SO ORDERED