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EN BANC [G.R. No. 135981. September 29, 2000] PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC GENOSA, appellant. RESOLUTION PANGANIBAN, J.: It is a hornbook rule that an appeal in criminal cases opens the entire records to review. The Court may pass upon all relevant issues, including those factual in nature and those that may not have been brought before the trial court. This is true especially in cases involving the imposition of the death penalty, in which the accused must be allowed to avail themselves of all possible avenues for their defense. Even novel theories such as the "battered woman syndrome," which is alleged to be equivalent to self-defense, should be heard, given due consideration and ruled upon on the merits, not rejected merely on technical or procedural grounds. Criminal conviction must rest on proof of guilt beyond reasonable doubt.
The Case

For resolution by the Court is an Urgent Omnibus Motion filed by Appellant Marivic Genosa y Isidro in connection with the automatic review of the September 25, 1998 "Judgment" of the Regional Trial Court (RTC) of Ormoc City in Criminal Case No. 5016-0. The RTC found her guilty of parricide aggravated by treachery and sentenced her to death. In an Information dated November 14, 1996, Provincial Prosecutor I Rosario D. Beleta charged appellant-movant with parricide allegedly committed as follows: "That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel, Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault, hit and wound one BEN GENOSA, her legitimate husband, with the use of a hard deadly weapon, which the accused had provided herself for the purpose, [causing] the following wounds, to wit: 'Cadaveric spasm. 'Body on the 2nd stage of decomposition. 'Face, black, blown[ ]up & swollen w/ evident post- mortem lividity. Eyes protruding from its sockets and tongue slightly protrudes out of the mouth. 'Fracture, open, depressed, circular located at the occipital bone of the head, resulting [in] laceration of the brain, spontaneous rupture of the blood vessels on the posterior surface of the brain, laceration of the dura and meningeal vessels producing severe intracranial hemorrhage. 'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the epidermis. 'Abdomen distended w/ gas. Trunk bloated.' which caused his death." After arraignment and trial, the court a quo promulgated its Judgment, the dispositive portion of which reads: "WHEREFORE, after all the foregoing being duly considered, the Court finds the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of parricide as provided under Article 246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659, and after finding treachery as a generic aggravating circumstance and none of mitigating circumstance, hereby sentences the accused with the penalty of DEATH. The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty thousand pesos (P50,000.00), Philippine currency as indemnity and another sum of fifty thousand pesos (P50,000.00), Philippine currency as moral damages."
The Antecedents

Prior to the filing of her Appeal Brief, appellant submitted an Urgent Omnibus Motion, to bring "to the attention of the x x x Court certain facts and circumstances which, if found valid, could warrant the setting aside of [her] conviction and the imposition of the death penalty." Appellant alleges that the trial court grievously erred in concluding that she had lied about the means she employed in killing her husband. On the contrary, she had consistently claimed that she had shot her husband. Yet the trial judge simply ruled that the cause of his death was "cardiopulmonary arrest secondary to severe intracranial hemorrhage due to a depressed fracture of the occipital bone," which resulted from her admitted act of "smashing" him with a pipe. Such conclusion was allegedly unsupported by the evidence on record, which bore no forensic autopsy report on the body of the victim. Appellant further alleges that despite the evidence on record of repeated and severe beatings she had suffered at the hands of her husband, the trial court failed to appreciate her self-defense theory. She claims that under the surrounding circumstances, her act of killing her husband was equivalent to self-defense. Furthermore, she argues that if she "did not lie about how she killed her husband, then she did not lie about the abuse she suffered at his hands." She thus prays for the following reliefs:

"1. The Honorable Court allow an exhumation of the body of the victim, Ben M. Genosa, and a re-examination of the cause of death. 2. The Honorable Court submit accused-appellant for examination by qualified psychologists and psychiatrists of the Court to determine her state of mind at the time of the killing of her spouse, Ben M. Genosa. 3. Thereafter, the Honorable Court allow the reports of the psychologists and psychiatrists to form part of the records of the case for purposes of the automatic review or, in the alternative, to allow a partial re-opening of the case before a lower court in Metro Manila to admit the testimony of said psychologists and psychiatrists." On August 22, 2000, the solicitor general, on behalf of the State, filed his Comment, which substantially objected to the Motion on the ground that appellant had not been "deprived of her right to due process, substantial or procedural."
The Issues

In brief, the issues for our resolution are (1) whether the body of the victim should be exhumed and reexamined in order to ascertain the cause of his death, and (2) whether the appellant should be examined by qualified psychologists or psychiatrists in order to determine her state of mind at the time of the killing.
The Court's Ruling

The Court grants in part the Motion of appellant. We remand the case to the RTC for the reception of evidence from qualified psychologists or psychiatrists whom the parties may present to establish her state of mind at the time of the killing.
First Issue: No Need for a Reexamination of Cause of Death

Accused-appellant seeks the exhumation of the victim's body to be able to determine his exact cause of death, assailing the court a quo's conclusion that he was "smashed or beaten at the back of his head" rather than shot, as claimed by appellant. Considering that the appellant has admitted the fact of killing her husband and the acts of hitting his nape with a metal pipe and of shooting him at the back of his head, the Court believes that exhumation is unnecessary, if not immaterial, to determine which of said acts actually caused the victim's death. There is no need to exhume the body at this time and conduct an autopsy thereon for the purpose. Moreover, the matter of proving the cause of death should have been made before the trial court. Time and again, we have said that this Court is not a trier of facts. Neither will it authorize the firsthand reception of evidence, where the opportunity to offer the same was available to the party during the trial stage. Consistent with this principle alone, the prayer sought by appellant for the exhumation of the victim's body cannot be granted.
Second Issue: The Need to Determine Appellant's State of Mind at the Time of the Killing

In seeking to be "examined and evaluated by psychologists and psychiatrists to bring into evidence the abuse inflicted upon her; [and] to determine whether such abuse will support the 'battered woman syndrome'," the appellant brings to the fore a novel defense theory. Through Counsel Katrina Legarda, she asks the Court to "re-evaluate the traditional elements" used in determining self-defense and to consider the "battered woman syndrome" as a viable plea within the concept of self-defense. Allegedly, there are four characteristics of the syndrome: (1) the woman believes that the violence was her fault; (2) she has an inability to place the responsibility for the violence elsewhere; (3) she fears for her life and/or her children's lives; and (4) she has an irrational belief that the abuser is omnipresent and omniscient. Living in constant danger of harm or death, she knows that future beatings are almost certain to occur and will escalate over time. Her intimate knowledge of the violent nature of her batterer makes her alert to when a particular attack is forthcoming, and when it will seriously threaten her survival. Trapped in a cycle of violence and constant fear, it is not unlikely that she would succumb to her helplessness and fail to perceive possible solutions to the problem other than to injure or kill her batterer. She is seized by fear of an existing or impending lethal aggression and thus would have no opportunity beforehand to deliberate on her acts and to choose a less fatal means of eliminating her sufferings. Appellant further alleges that the syndrome is already a recognized form of self-defense in the United States and in Europe. In the US particularly, it is classified as a post-traumatic stress disorder, rather than a form of mental illness. It has been held admissible in order to assess a defendant's perception of the danger posed by the abuser. In view of the foregoing, Appellant Genosa pleads that she be allowed to present evidence to prove that her relationship with her spouse-victim had afflicted her with the syndrome. Allegedly, an expert can explain how her experiences as a battered woman had affected her perception of danger and her honest belief in its imminence, and why she had resorted to force against her batterer. The records of the case already bear some evidence on domestic violence between appellant and her deceased husband. A defense witness, Dr. Dino Caing, testified that she had consulted him at least six (6) times due to injuries related to domestic violence and twenty-three (23) times for severe hypertension due to emotional stress. Even the victim's brother and mother attested to the spouses' quarrels every now and then. The court a quo, however, simplistically ruled that since violence had not immediately preceded the killing, self-defense could not be appreciated.

Indeed, there is legal and jurisprudential lacuna with respect to the so-called "battered woman syndrome" as a possible modifying circumstance that could affect the criminal liability or penalty of the accused. The discourse of appellant on the subject in her Omnibus Motion has convinced the Court that the syndrome deserves serious consideration, especially in the light of its possible effect on her very life. It could be that very thin line between death and life or even acquittal. The Court cannot, for mere technical or procedural objections, deny appellant the opportunity to offer this defense, for any criminal conviction must be based on proof of guilt beyond reasonable doubt. Accused persons facing the possibility of the death penalty must be given fair opportunities to proffer all defenses possible that could save them from capital punishment. In People v. Parazo, after final conviction of appellant therein, this Court granted his Urgent Omnibus Motion and allowed him to undergo mental, neurologic and otolaryngologic examination and evaluation to determine whether he was a deaf-mute. Based on findings that he really was deaf and mute, yet unaided during the trial by an expert witness who could professionally understand and interpret his actions and mutterings, the Court granted him re-arraignment and retrial. It justified its action on the principle that "only upon proof of guilt beyond reasonable doubt may [the accused] be consigned to the lethal injection chamber." More recently in People v. Estrada, we likewise nullified the trial proceedings and remanded the case "to the court a quo for a conduct of a proper mental examination on accused-appellant, a determination of his competency to stand trial, and for further proceedings." In that case, the defense counsel had moved to suspend the arraignment of the accused, who could not properly and intelligently enter a plea because of his mental defect, and to confine him instead in a psychiatric ward. But the trial court denied the Motion, after simply propounding questions to the accused and determining for itself that he could understand and answer them "intelligently." After trial, he was convicted of murder aggravated by cruelty and thus sentenced to death. In nullifying the trial proceedings, this Court noted: "The trial court took it solely upon itself to determine the sanity of accused-appellant. The trial judge is not a psychiatrist or psychologist or some other expert equipped with the specialized knowledge of determining the state of a person's mental health. To determine the accused-appellant's competency to stand trial, the court, in the instant case, should have at least ordered the examination of accused-appellant, especially in the light of the latter's history of mental illness." It was held that in denying appellant an examination by a competent medical expert, the trial court practically denied him a fair trial prior to conviction, in violation of his constitutional rights. Moreover, proof of insanity could have exempted appellant from criminal liability. If the accused had not performed the act voluntarily, then he could not have been criminally liable. The Court, through Mr. Justice Reynato S. Puno, emphasized: "The basic principle in our criminal law is that a person is criminally liable for a felony committed by him. Under the classical theory on which our penal code is mainly based, the basis of criminal liability is human free will. Man is essentially a moral creature with an absolutely free will to choose between good and evil. When he commits a felonious or criminal act (delito doloso), the act is presumed to have been done voluntarily, i.e., with freedom, intelligence and intent. Man, therefore, should be adjudged or held accountable for wrongful acts so long as free will appears unimpaired." In the instant case, it is equally important to determine whether Appellant Genosa had acted freely, intelligently and voluntarily when she killed her spouse. The Court, however, cannot properly evaluate her battered-woman-syndrome defense, absent expert testimony on her mental and emotional state at the time of the killing and the possible psychological cause and effect of her fatal act. Unlike in Parazo, we cannot simply refer her for proper psychological or psychiatric examination and thereafter admit the findings and evaluation as part of the records of the cases for purposes of automatic review. The prosecution has likewise the right to a fair trial, which includes the opportunity to cross-examine the defense witnesses and to refute the expert opinion given. Thus, consistent with the principle of due process, a partial reopening of the case is apropos, so as to allow the defense the opportunity to present expert evidence consistent with our foregoing disquisition, as well as the prosecution the opportunity to cross examine and refute the same. WHEREFORE, the Urgent Omnibus Motion of Appellant Marivic Genosa is PARTLY GRANTED. The case is hereby REMANDED to the trial court for the reception of expert psychological and/or psychiatric opinion on the "battered woman syndrome" plea, within ninety (90) days from notice, and, thereafter to forthwith report to this Court the proceedings taken, together with the copies of the TSN and relevant documentary evidence, if any, submitted. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena, GonzagaReyes, Ynares-Santiago, and De Leon, Jr., JJ., concur. Rollo, pp. 26-43. It was penned by Judge Fortunito L. Madrona. Branch 35. Rollo, pp. 9-10.

DISSENTING OPINION YNARES-SANTIAGO, J.: In convicting Marivic Genosa of the crime of parricide, our esteemed colleague Mr. Justice Artemio V. Panganiban found that there was no factual basis to conclude that Marivic was suffering from ³Battered Woman Syndrome´ (BWS) at the time she took the life of her husband. With due respect, I register my dissent. The novel theory of "Battered Woman Syndrome" is recognized in foreign jurisprudence as a form of self-defense. It operates upon the premise that a woman who has been cyclically abused and controlled over a period of time develops a fearful state of mind. Living in constant danger of harm or death, she knows that future beatings are almost certain to occur and will escalate over time. Her intimate knowledge of the violent nature of her batterer makes her alert to when a particular attack is forthcoming, and when it will seriously threaten her survival. Trapped in a cycle of violence and constant fear, it is not unlikely that she would succumb to her helplessness and fail to perceive possible solutions to the problem other than to injure or kill her batterer. She is seized by fear of an existing or impending lethal aggression and thus would have no opportunity beforehand to deliberate on her acts and to choose a less fatal means of eliminating her sufferings.[1] As exhaustively discussed in the ponencia, the "Battered Woman Syndrome" has three phases, to wit: (1) the tensionbuilding phase, where minor batterings in the form of verbal or slight physical abuse occurs. Here, the woman tries to pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of his way; (2) the acute battering incident phase which is characterized by brutality, destructiveness and sometimes, death. The battered woman usually realizes that she cannot reason with him and that resistance would only exacerbate her condition; and (3) the tranquil period, where the couple experience a compound relief and the batterer may show a tender and nurturing behavior towards his partner. Contrary to the findings in the ponencia, the defense was able to establish the occurrence on more than one occasion of the "tension-building phase" of the cycle. The various testimonies of appellant's witnesses clearly reveal that she knew exactly when she would once again be subjected to acute battery. Her cousin, Ecel Arano, testified that she often asked the latter to sleep in her house as she was afraid every time her husband came home drunk. Clearly, whenever appellant requested for Arano's company, she was experiencing a tension-building phase. The barangay captain, Panfilo Tero, also testified that appellant sought his help two months before she killed her husband, again demonstrating that she was in the tension-building phase and was attempting to prevent another incident of acute battery. Appellant presented evidence to prove that the tension-building phase would occur whenever her husband would go out looking for other women, would lose at cockfights or would come home drunk. She often tried to ignore her husband's attitude or, as testified to by some witnesses for the prosecution, even shouted back, fought off or even injured her husband during the tension-building phase, if only to prevent the onset of acute battery. Appellant was able to perfectly describe the tension-building phase of the cycle immediately prior to the death of her husband, i.e., when she knew or felt that she was going to be killed by the deceased. She could not possibly have testified with clarity as to prior tension-building phases in the cycle as she had never tried to kill her husband before this time. It was shown by the testimonies of appellant and even witnesses for the prosecution that appellant would seek shelter in her mother's or her father's house after an acute battering incident, after which would begin the process of begging for forgiveness, promises of change in behavior and return to the conjugal home, only for the same cycle to begin all over again. To require appellant to prove the state of mind of the deceased, as seems to be required in the ponencia, would mean that no person would ever be able to prove self-defense in a battered woman case. Appellant could not possibly prove whether the deceased felt provoked into battering by any act or omission of appellant. She cannot possibly prove that she felt herself to be the sole support of the deceased's emotional stability and well-being. Nevertheless, appellant felt trapped and helpless in the relationship as, in the end, she resorted to killing her husband as no one could or did help her, whether out of fear or insensitivity, during the violent marriage she endured. The "acute battering incident stage" was well demonstrated by the severe beatings suffered by Marivic in the hands of the deceased as well as the threats to kill her using a bolo or a cutter.[2] The physical abuses occurred at least 3 times a week in the 11 miserable years of their marriage,[3] six incidents of which were documented by the 1990-1995 medical records of Marivic. They included, among others, hematoma, contusion, and pain on the breasts; multiple contusions and trauma on the different parts of her body even during her pregnancy in 1995.[4] The tranquil period underwent by Marivic was shown by the repeated ³kiss and make-up´ episodes of their relationship. On more than 5 occasions, Marivic ran to her parents¶ house after violent fights with the deceased only to forgive the latter every time he would fetch her and promise to change.[5] All these recurring phases of cycle of violence, repentance and forgiveness developed a trauma in the mind of Marivic making her believe that a forthcoming attack from the deceased would cause her death. This state of mind of Marivic was

revealed in her testimony given way back in 1998, before she was examined by experts on BWS. Unaware of the significance of her declarations, she candidly narrated how she felt immediately before she killed the deceased, thus ATTY. TABUCANON Q So you said that he dragged you towards the drawer? A Yes, sir. Q What is there in the drawer? A I was aware that it was a gun. xxx xxx xxx Q What happened when you were brought to the drawer? A He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key. [T]hen he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I ran to the room, and on that very moment everything on my mind was pity on myself, then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit. xxx xxx xxx[6] Q What else happened? A When I was in the room, I felt the same thing like what happened before I was admitted in PHILPHOS Clinic, I was about to vomit. I know my blood pressure has raised. I was frightened I was about to die because of my blood pressure. xxx xxx xxx A Considering all the physical sufferings that I've been through him, I took pity on myself and I felt I was about to die also because of my blood pressure and the baby, so I got the gun and shot him.[7] It must be stressed that the defense of "Battered Woman Syndrome" was not raised by Marivic before the lower court but only here on automatic review. This makes the foregoing testimony more worthy of great weight and credence considering that the same could not have been cunningly given to suit or conform to the profile of a battered woman. Moreover, there was indeed basis for Marivic to fear death because of her medical history. Dr. Dino Caing testified that he treated Marivic for hypertension due to domestically related emotional stress on 23 separate occasions. The latest one was on November 6, 1995 when she suffered from severe hypertension and had a blood pressure of 180/120 on the 8th month of her pregnancy.[8] Furthermore, Dr. Natividad A. Dayan, a clinical psychologist and an expert on BWS who examined Marivic, assessed the effects of the repeated violence on the latter as follows: A What I remember ... was it was more than ten years that she was suffering from emotional anguish. There were a lot of instance of abuses, ... emotional abuse...verbal abuse and... physical abuse. The husband had very meager income, she was the one who was practically the bread earner of the family. The husband was involved in a lot of vices, going out with barkadas, drinking, even womanizing, being involved in cockfighting and in going home very angry which... triggered a lot of physical abuse. She also had the experience of taunting from the husband for the reason that the husband even accused her of infidelity, the husband was saying that the child she was carrying was not his own. So she was very angry, she was at the same time very depressed because she .. .[felt] almost like living in purgatory or even in hell when it was happening day in and day out. Xxx xxx xxx Q And what was it that triggered ... that tragedy in your opinion? A I think for several weeks, she was already having all those tensions, all those anxieties, they were not enough, that the husband was even going to cockfighting x x x A She was angry with him, he was angry with her and I think he dragged her and even spun her around. She tried to fight him so there was a lot of fight and when she was able to escape, she went to another room and she locked herself with the children. And when the husband was for a while very angry he calms down then and then (sic). But I remember before that the husband was looking for the gun and I think he was not able to open the cabinet because she had the key. So during that time, I remember, that she was very much afraid of him, so when the husband calmed down and he was asleep, all she was concerned was to end up her misery, to save her child which she was carrying and to save her two children. I believe that somehow she's not rational.[9] xxx xxx xxx PROS. TRUYA Q Mrs. Witness, being an expert witness, giving more the facts and circumstances on this case that the books you studied in the expertise in line and in the 77 hour contact with appellant Mrs. Genosa, could you say that this is not ordinary self-defense but a survival on her part? A Yes, sir.

Q To what she did to her husband (sic)? A Yes, sir this is not an ordinary self-defense, but this [is] a need to survive, a need to survive with her two sons and [the] child she's bringing. Q Had she not able to kill her husband, would she still be in the very short moment with the victim (sic)? A If she did not do that she believes that she will be the one who would be killed.[10] There is no doubt therefore that Marivic was afflicted with the "Battered Woman Syndrome" and that it was an apprehension of death and the instinct to defend her and her unborn child's life that drove her to kill her husband. The ponente further refused to sustain the self-defense proffered by Marivic because there was allegedly no aggression or danger posed on her life by the victim at the time she attacked the latter. Again, I beg to disagree. Traditionally, in order that self-defense may be appreciated, the unlawful aggression or the attack must be imminent and actually in existence. This interpretation must, however, be re-evaluated vis-a-vis the recognized inherent characteristic of the psyche of a person afflicted with the "Battered Woman Syndrome." As previously discussed, women afflicted by this syndrome live in constant fear for their life and thus respond in self-defense. Once BWS and an impending danger based on the conduct of the deceased in previous battering episodes are established, actual occurrence of an assault is no longer a condition sine qua non before self defense may be upheld. Threatening behavior or communication can satisfy the required imminence of danger. As stated in the ponencia, to require the battered person to await an obvious deadly attack before she can defend her life would amount to sentencing her to murder by installment. In the case at bar, the cycle of violence perpetrated by the deceased, which culminated in the physical assaults and an attempt to shoot Marivic when she was 8 months pregnant, took the place of unlawful aggression, thus entitling her to a complete self defense even if there was no actual employment of violence by the deceased at the time of the killing. Marivic had every reason to believe that the deceased would kill her that night not only because the latter was verbally threatening to kill her while attempting to get a gun from the drawer, but more importantly because the deceased wounded her on the wrist with a bolo, and because of the deceased's previous conduct of threatening to cut her throat with a cutter which he kept in his wallet. Quoted hereunder are the relevant testimonies of Marivic A When I arrived home, he was already in his usual behavior. xxx xxx xxx A He was drunk again, he was yelling in his usual unruly behavior. xxx xxx xxx A He was nagging ... me at that time and I just ignore[d] him because I want to avoid trouble for fear that he will beat me again. Perhaps he was disappointed because I just ignore[d] hi[s] provocation and he switch off the light and I said to him, "why did you switch off the light when the children were there." At that time I was also attending to my children who were doing their assignments. He was angry with me for not answering his challenge, so he went to the kitchen and g[o]t a bolo and cut the antenna wire to stop me from watching television. xxx xxx xxx A He switch[ed] off the light and the children were shouting because they were scared and he was already holding a bolo. Q How do you describe this bolo? A 1 1/2 feet. xxx xxx xxx Q You said the children were scared, what else happened as Ben was carrying that bolo? A He was about to attack me so I ran to the room. Q What do you mean that he was about to attack you? A When I attempted] to run he held my hands and he whirled me and I fell [on] the bedside.[11] xxx xxx xxx COURT To the witness xxx xxx xxx Q The bolo that you said which Ben was holding at that time, [was] it a bolo or a knife? A Bolo. Q Were you wounded or were there inflictions on your body when he was holding and trying to frighten you [with] that bolo? A No, only here. COURT INTERPRETER (The witness pointed to her wrist). COURT To the witness

Q You were demonstrating a motion, whirling, did your husband really whirl you? A Yes, your Honor. Q How did he whirl you? A Whirled around. Q Just like spinning. xxx xxx xxx Q Where did he whirl you, was it inside the bedroom or outside? A In our bedroom. Q Then after the whirling what happened? A He kicked my ass and then I screamed.[12] xxx xxx xxx Q You screamed for help and he left, do you know where he was going? A Outside perhaps to drink more. Q When he left what did you do...? A I packed all his clothes. Q What was your reason in packing his clothes? A I wanted him to leave us.[13] xxx xxx xxx A I was frightened that my husband would hurt me, so I packed all his things then on the following day I will leave, I was afraid and I want to make sure I would deliver my baby safely.[14] xxx xxx xxx A After a couple of hours, he went back again and got angry with me for packing his clothes, then he dragged me again outside of the bedroom holding my neck. ATTY. TABUCANON Q You said that when Ben came back to your house, he dragged you? How did he drag... you? COURT INTERPRETER (The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck) A And he dragged me towards the door backwards. ATTY. TABUCANON Q Where did he bring you? A Outside the bedroom and he wanted to get something and then he kept shouting at me that "you might as well be killed so there will be nobody to nag me. Q So you said that he dragged you towards the drawer? A Yes, sir. Q What is there in the drawer? A I was aware that it was a gun. xxx xxx xxx Q What happened when you were brought to the drawer? A He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key. [T]hen he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I ran to the room, and on that very moment everything on my mind was pity on myself, then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit. xxx xxx xxx Q You said that he dropped the blade, for the record will you please describe this blade about 3 inches long, how does it look like? A Three (3) inches long and 1/2 inch wide. Q Is it a flexible blade? A It's a cutter. Q How do you describe the blade, is it sharp both edges? A Yes, because he once used it to me. Q How did he do it? A He wanted to cut my throat. Q With the same blade? A Yes sir, that was the object used when he intimidate me.[15]

RE-DIRECT BY ATTY. TABUCANON Q In other words, there were two (2) incidents, the first incident and then he left and then two (2) hours after he came back? A Yes, sir. Q And the whirling happened in the first incident? A Yes, sir. Q And the dragging with arms flexed in her neck and on that blade happened on the second incident (sic)? A Ye, sir. xxx xxx xxx COURT To the witness Q Why, what is that blade about? A A cutter about 3 inches long. Q Who used that? A Ben. Q He used that on you? A He scared me on that (sic). xxx xxx xxx Q But he did not hit you with that? A Yes, because I managed to run every time he scared (sic).[16] There are many things which cannot be proved by direct evidence. One of this is state of mind. In the case at bar, there is more than sufficient physical evidence presented by the appellant from which her mental state can be inferred. The prosecution did not object to the presentation of these physical and testimonial pieces of evidence, namely, the medical records of 23 instances of domestic violence-related injuries and the testimonies of neighbors, cousins and even the barangay captain. Indeed, no person would endure 23 reported instances of beatings if she were planning to kill her spouse in the first place. The majority need not worry that women around the country will mastermind the killings of their husbands and then use this Decision to bolster their attempts to employ the BWS defense. Moreover, as found in the ponencia, appellant should be allowed the mitigating circumstance of passion and obfuscation. This, at the very least, supports a finding that the acts of violence and battery committed by the deceased were illegal and unlawful and were committed immediately before appellant could recover her natural equanimity. But what is the natural equanimity of a battered woman? Appellant was not a normal married woman. She can never be in a state of natural equanimity as she was in a constant state of alertness and hypersensitivity to the next phase of acute battery. The esteemed ponente also correctly found that the appellant acted with diminished will-power. However, he failed to go further. In the case of People v. Javier,[17] it was held: Since accused-appellant has already admitted to the killing, it is incumbent upon him to prove the claimed mitigating circumstance of illness. In this case, however, aside from the testimony of the accused that his mind went blank when he killed his wife due to loss of sleep, no medical finding was presented regarding his mental condition at the time of the killing. This Court can hardly rely on the bare allegations of accused-appellant, nor on mere presumptions and conjectures. No clear and convincing evidence was shown that accused-appellant was suffering an illness which diminished his exercise of will-power at the time of the killing.[18] In the case at bar, appellant was allowed and did in fact present clear and convincing evidence that she was a battered woman for 13-14 years and that she suffered from the "Battered Woman Syndrome". Expert testimony was presented and admitted to this effect, such that the ponente ably discussed the causes and effects of the syndrome. To ignore the testimony and the evidence thus presented is to make impossible the proof of mental state. Evidence as to the mental state need not be also "beyond reasonable doubt.´ Verily, the requirement of threatening behavioral pattern of the batterer in previous violent episodes was sufficiently satisfied in the present case. This, juxtaposed to Marivic's affliction with BWS justified the killing of the deceased. The danger posed or created in her mind by the latter's threats using bladed weapons, bred a state of fear, where under the circumstances, the natural response of the battered woman would be to defend herself even at the cost of taking the life of the batterer. The ponencia's acknowledgement of "Battered Woman Syndrome" as a valid form of self-defense, is a noble recognition of the plight of, and a triumph for battered women who are trapped in a culture of silence, shame, and fear. This would however be an empty victory if we deliberately close our eyes to the antecedents of this case. The facts are simple. Marivic was suffering from the "Battered Woman Syndrome" and was defending herself when she killed her husband. Her acquittal of the charge of parricide is therefore in order.IN VIEW WHEREOF, I vote to ACQUIT Marivic Genos

FIRST DIVISION
[G.R. No. 125865. January 28, 2000]

JEFFREY LIANG (HUEFENG), petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION
YNARES-SANTIAGO, J.: Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994, for allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he was charged before the Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of grave oral defamation docketed as Criminal Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of a warrant issued by the MeTC. After fixing petitioner¶s bail at P2,400.00 per criminal charge, the MeTC released him to the custody of the Security Officer of ADB. The next day, the MeTC judge received an "office of protocol" from the Department of Foreign Affairs (DFA) stating that petitioner is covered by immunity from legal process under Section 45 of the Agreement between the ADB and the Philippine Government regarding the Headquarters of the ADB (hereinafter Agreement) in the country. Based on the said protocol communication that petitioner is immune from suit, the MeTC judge without notice to the prosecution dismissed the two criminal cases. The latter filed a motion for reconsideration which was opposed by the DFA. When its motion was denied, the prosecution filed a petition for certiorari and mandamus with the Regional Trial Court (RTC) of Pasig City which set aside the MeTC rulings and ordered the latter court to enforce the warrant of arrest it earlier issued. After the motion for reconsideration was denied, petitioner elevated the case to this Court via a petition for review arguing that he is covered by immunity under the Agreement and that no preliminary investigation was held before the criminal cases were filed in court. The petition is not impressed with merit. First, courts cannot blindly adhere and take on its face the communication from the DFA that petitioner is covered by any immunity. The DFA¶s determination that a certain person is covered by immunity is only preliminary which has no binding effect in courts. In receiving ex-parte the DFA¶s advice and in motu proprio dismissing the two criminal cases without notice to the prosecution, the latter¶s right to due process was violated. It should be noted that due process is a right of the accused as much as it is of the prosecution. The needed inquiry in what capacity petitioner was acting at the time of the alleged utterances requires for its resolution evidentiary basis that has yet to be presented at the proper time. At any rate, it has been ruled that the mere invocation of the immunity clause does not ipso facto result in the dropping of the charges. Second, under Section 45 of the Agreement which provides:-NVP "Officers and staff of the Bank including for the purpose of this Article experts and consultants performing missions for the Bank shall enjoy the following privileges and immunities: a.).......immunity from legal process with respect to acts performed by them in their official capacity except when the Bank waives the immunity." the immunity mentioned therein is not absolute, but subject to the exception that the act was done in "official capacity." It is therefore necessary to determine if petitioner¶s case falls within the ambit of Section 45(a). Thus, the prosecution should have been given the chance to rebut the DFA protocol and it must be accorded the opportunity to present its controverting evidence, should it so desire. Third, slandering a person could not possibly be covered by the immunity agreement because our laws do not allow the commission of a crime, such as defamation, in the name of official duty. The imputation of theft is ultra vires and cannot be part of official functions. It is well-settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice or in bad faith or beyond the scope of his authority or jurisdiction. It appears that even the government¶s chief legal counsel, the Solicitor General, does not support the stand taken by petitioner and that of the DFA. Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming petitioner is such, enjoys immunity from criminal jurisdiction of the receiving state except in the case of an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions. As already mentioned above, the commission of a crime is not part of official duty.

Finally, on the contention that there was no preliminary investigation conducted, suffice it to say that preliminary investigation is not a matter of right in cases cognizable by the MeTC such as the one at bar. Being purely a statutory right, preliminary investigation may be invoked only when specifically granted by law. The rule on criminal procedure is clear that no preliminary investigation is required in cases falling within the jurisdiction of the MeTC. Besides, the absence of preliminary investigation does not affect the court¶s jurisdiction nor does it impair the validity of the information or otherwise render it defective. WHEREFORE, the petition is DENIED. SO ORDERED. Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.2/22/00 9:47 AM See United States v. Guinto, 182 SCRA 644 (1990) Chavez v. Sandiganbayan, 193 SCRA 282 (1991) M.H. Wylie v. Rarang, 209 SCRA 357, 368 (1992) Shauf v. CA, 191 SCRA 713 (1990); Animos v. Phil. Veterans Affairs Office, 174 SCRA 214 (1989); Dumlao v. CA, 114 SCRA 247 (1982) Section 31, 1 (c); See also Minucher v. CA, 214 SCRA 242 (1992) See Del Rosario, Jr. v. Bartolome, 270 SCRA 645 (1997) People v. Abejuela, 38 SCRA 324 (1971) Section 1, Rule 112, Rules of Criminal Procedure. People v. Gomez, 117 SCRA 72 (1982); People v. Casiano, 1 SCRA 478 (1961)

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 163267 : May 5, 2010 TEOFILO EVANGELISTA, Petitioner, vs. THE PEOPLE OF THE PHILIPPINES, Respondent. DECISION DEL CASTILLO, J.: To be guilty of the crime of illegal possession of firearms and ammunition, one does not have to be in actual physical possession thereof. The law does not punish physical possession alone but possession in general, which includes constructive possession or the subjection of the thing to the owners control.1 This Petition for Review on Certiorari2cralaw assails the October 15, 2003 Decision3cralaw of the Court of Appeals (CA) in CA-G.R. CR No. 21805 which affirmed the January 23, 1998 Decision4cralaw of the Regional Trial Court (RTC) of Pasay City, Branch 109 convicting petitioner Teofilo Evangelista for violation of Section 1, Presidential Decree (PD) No. 1866,5cralaw as amended, as well as the April 16, 2004 Resolution which denied petitioners Motion for Reconsideration. Factual Antecedents In an Information6cralaw dated January 31, 1996, petitioner was charged with violation of Section 1 of PD 1866 allegedly committed as follows: That on or about the 30th day of January 1996, at the Ninoy Aquino International Airport, Pasay City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did, then and there, wilfully, unlawfully and feloniously have in his possession, custody and control the following items: 1. One (1) Unit 9mm Jericho Pistol, Israel with SN F-36283 with one (1) magazine; 2. One (1) Unit Mini-Uzi 9mm Israel Submachine gun with SN 931864 with two (2) magazines; 3. Nineteen (19) 9mm bullets. without the corresponding permit or license from competent authority. CONTRARY TO LAW. After posting his bail, petitioner filed on February 14, 1996 an Urgent Motion for (a) Suspension of Proceedings and (b) the Holding of A Preliminary Investigation.7cralaw The RTC granted the motion and, accordingly, the State Prosecutor conducted the preliminary investigation. In a Resolution8cralaw dated March 6, 1996, the State Prosecutor found no probable cause to indict petitioner and thus recommended the reversal of the resolution finding probable cause and the dismissal of the complaint. Thereafter, a Motion to Withdraw Information9cralaw was filed but it was denied by the trial court in an Order10cralaw dated March 26, 1996, viz:

Acting on the "Motion to Withdraw Information" filed by State Prosecutor Aida Macapagal on the ground that [there exists] no probable cause to indict the accused, the Information having been already filed in Court, the matter should be left to the discretion of the Court to assess the evidence, hence, for lack of merit, the same is hereby denied. Let the arraignment of the accused proceed. When arraigned on March 26, 1996, petitioner pleaded not guilty to the charge. Thereafter, trial ensued. Version of the Prosecution In the morning of January 30, 1996, Maximo Acierto, Jr. (Acierto), a Customs Police assigned at the Ninoy Aquino International Airport (NAIA) District Command, was informed by his superior that a certain passenger of Philippine Airlines (PAL) Flight No. 657 would be arriving from Dubai bringing with him firearms and ammunitions. Shortly after lunch, Acierto, together with Agents Cuymo and Fuentabella, proceeded to the tube area where they were met by a crewmember who introduced to them herein petitioner. Acierto asked petitioner if he brought firearms with him and the latter answered in the affirmative adding that the same were bought in Angola. Thereupon, Acierto was summoned to the cockpit by the pilot, Capt. Edwin Nadurata (Capt. Nadurata), where the firearms and ammunitions were turned over to him. Petitioner was then escorted to the arrival area to get his luggage and thereafter proceeded to the examination room where the luggage was examined and petitioner was investigated. In open court, Acierto identified the firearms and ammunitions. During the investigation, petitioner admitted before Special Agent Apolonio Bustos (Bustos) that he bought the subject items in Angola but the same were confiscated by the Dubai authorities, which turned over the same to a PAL personnel in Dubai. Upon inquiry, the Firearms and Explosive Office (FEO) in Camp Crame certified that petitioner is neither registered with said office11cralaw nor licensed holder of aforesaid firearms and ammunitions. Bustos likewise verified from the Bureau of Customs, but his effort yielded no record to show that the firearms were legally purchased. Among the documents Bustos had gathered during his investigation were the Arrival Endorsement Form12cralaw and Customs Declaration Form. 13cralaw A referral letter14cralaw was prepared endorsing the matter to the Department of Justice. Bustos admitted that petitioner was not assisted by counsel when the latter admitted that he bought the firearms in Angola. SPO4 Federico Bondoc, Jr. (SPO4 Bondoc), a member of the Philippine National Police (PNP) and representative of the FEO, upon verification, found that petitioner is not a licensed/registered firearm holder. His office issued a certification15cralaw to that effect which he identified in court as Exhibit "A". After the prosecution rested its case, petitioner, with leave of court, filed his Demurrer to Evidence,16cralaw the resolution of which was deferred pending submission of petitioners evidence.17 Version of the Defense The defense presented Capt. Nadurata whose brief but candid and straightforward narration of the event was synthesized by the CA as follows: x x x On January 30, 1996, he was approached by the PAL Station Manager in Dubai, who informed him that a Filipino contract worker from Angola who is listed as a passenger of PAL flight from Dubai to Manila, was being detained as he was found in possession of firearms; that if said passenger will not be able to board the airplane, he would be imprisoned in Dubai; and that the Arabs will only release the passenger if the Captain of PAL would accept custody of the passenger [herein petitioner] and the firearms. Capt. Nadurata agreed to take custody of the firearms and the passenger, herein appellant, so that the latter could leave Dubai. The firearms were deposited by the Arabs in the cockpit of the airplane and allowed the appellant to board the airplane. Upon arrival in Manila, Capt. Nadurata surrendered the firearms to the airport authorities. Meanwhile, in view of the unavailability of the defenses intended witness, Nilo Umayaw (Umayaw), the PAL Station Manager in Dubai, the prosecution and the defense agreed and stipulated on the following points: 1. That PAL Station Manager Mr. Nilo Umayaw was told by a Dubai Police that firearms and ammunitions were found in the luggage of a Filipino passenger coming from Angola going to the Philippines;

2. That he was the one who turned over the subject firearms to Captain Edwin Nadurata, the Pilot in command of PAL Flight 657; 3. That the subject firearms [were] turned over at Dubai; 4. That the said firearms and ammunitions were confiscated from the accused Teofilo Evangelista and the same [were] given to the PAL Station Manager who in turn submitted [them] to the PAL Pilot, Capt. Edwin Nadurata who has already testified; 5. That [these are] the same firearms involved in this case.18cralaw Ruling of the Regional Trial Court On February 4, 1997, the RTC rendered its Decision, the dispositive portion of which reads: In view of all the foregoing, the Court finds accused TEOFILO E. EVANGELISTA guilty beyond reasonable doubt for violation of Sec. 1, P.D. 1866 as amended (Illegal Possession of Firearms and Ammunitions: (One (1) Unit Mini-Uzi 9mm Israel submachine gun with SN-931864 with two (2) magazines and nineteen (19) 9mm bullets) and hereby sentences him to imprisonment of Seventeen (17) Years and Four (4) Months to Twenty (20) Years. The above-mentioned firearms are hereby ordered forfeited in favor of the government and is ordered transmitted to the National Bureau of Investigation, Manila for proper disposition. SO ORDERED.19 On April 4, 1997, petitioner filed a Motion for New Trial20cralaw which the RTC granted.21cralaw Forthwith, petitioner took the witness stand narrating his own version of the incident as follows: On January 28, 1996, he was at Dubai International Airport waiting for his flight to the Philippines. He came from Luwanda, Angola where he was employed as a seaman at Oil International Limited. While at the airport in Dubai, Arab policemen suddenly accosted him and brought him to their headquarters where he saw guns on top of a table. The Arabs maltreated him and forced him to admit ownership of the guns. At this point, PAL Station Manager Umayaw came and talked to the policemen in Arabian dialect. Umayaw told him that he will only be released if he admits ownership of the guns. When he denied ownership of the same, Umayaw reiterated that he (petitioner) will be released only if he will bring the guns with him to the Philippines. He declined and insisted that the guns are not his. Upon the request of Umayaw, petitioner was brought to the Duty Free area for his flight going to the Philippines. When he was inside the plane, he saw the Arab policemen handing the guns to the pilot. Upon arrival at the NAIA, he was arrested by the Customs police and brought to the arrival area where his passport was stamped and he was made to sign a Customs Declaration Form without reading its contents. Thereafter, he was brought to a room at the ground floor of the NAIA where he was investigated. During the investigation, he was not represented by counsel and was forced to accept ownership of the guns. He denied ownership of the guns and the fact that he admitted having bought the same in Angola. Ruling of the Regional Trial Court After new trial, the RTC still found petitioner liable for the offense charged but modified the penalty of imprisonment. The dispositive portion of the Decision dated January 23, 1998 reads: In view of all the foregoing, the Court finds accused TEOFILO E. EVANGELISTA guilty beyond reasonable doubt for violation of Sec. 1, P.D. 1866 as amended (Illegal Possession of Firearms and Ammunitions: One (1) Unit 9mm Jerico Pistol, Israel with SN F-36283 with one (1) magazine; One (1) Unit Mini-Uzi 9mm Israel submachine gun with SN931864 with two (2) magazines and nineteen (19) 9mm bullets and hereby sentences him to imprisonment of Six (6) Years and One (1) Day to Eight (8) Years and a fine of P30,000.00. The above-mentioned firearms are hereby ordered forfeited in favor of the government and [are] ordered transmitted to the National Bureau of Investigation, Manila for proper disposition.

SO ORDERED.22 Ruling of the Court of Appeals On appeal, the CA affirmed the findings of the trial court in its Decision dated October 15, 2003. It ruled that the stipulations during the trial are binding on petitioner. As regards possession of subject firearms, the appellate court ruled that Capt. Naduratas custody during the flight from Dubai to Manila was for and on behalf of petitioner. Thus, there was constructive possession. Petitioner moved for reconsideration23cralaw but it was denied by the appellate court in its April 16, 2004 Resolution. Hence, this petition. Issues Petitioner assigns the following errors: a. The Court of Appeals gravely erred in not acquitting Evangelista from the charge of Presidential Decree No. 1866, Illegal Possession of Firearms. b. The Court of Appeals gravely erred in not holding that Evangelista was never in possession of any firearm or ammunition within Philippine jurisdiction and he therefore could not have committed the crime charged against him. c. The Court of Appeals gravely erred in holding that Evangelista committed a continuing crime. d. The Court of Appeals gravely erred in disregarding the results of the preliminary investigation.24 We find the appeal devoid of merit. At the outset, we emphasize that under Rule 45 of the Rules of Court, a petition for review on certiorari shall only raise questions of law considering that the findings of fact of the CA are, as a general rule, conclusive upon and binding on the Supreme Court.25cralaw In this recourse, petitioner indulges us to calibrate once again the evidence adduced by the parties and to re-evaluate the credibility of their witnesses. On this ground alone, the instant petition deserves to be denied outright. However, as the liberty of petitioner is at stake and following the principle that an appeal in a criminal case throws the whole case wide open for review, we are inclined to delve into the merits of the present petition. In his bid for acquittal, petitioner argues that he could not have committed the crime imputed against him for he was never in custody and possession of any firearm or ammunition when he arrived in the Philippines. Thus, the conclusion of the appellate court that he was in constructive possession of the subject firearms and ammunitions is erroneous. We are not persuaded. As correctly found by the CA: Appellants argument that he was never found in possession of the subject firearms and ammunitions within Philippine jurisdiction is specious. It is worthy to note that at the hearing of the case before the court a quo on October 8, 1996, the defense counsel stipulated that the subject firearms and ammunitions were confiscated from appellant and the same were given to PAL Station Manager Nilo Umayaw who, in turn, turned over the same to Capt. Edwin Nadurata. Such stipulation of fact is binding on appellant, for the acts of a lawyer in the defense of a case are the acts of his client. Granting that Nilo Umayaw was merely told by the Dubai authorities that the firearms and ammunitions were found in the luggage of appellant and that Umayaw had no personal knowledge thereof, however, appellants signature on the Customs Declaration Form, which contains the entry "2 PISTOL guns SENT SURRENDER TO PHILIPPINE AIRLINE," proves that he was the one who brought the guns to Manila. While appellant claims that he signed the Customs Declaration Form without reading it because of his excitement, however, he does not claim that he was coerced or persuaded in affixing his signature thereon. The preparation of the Customs Declaration Form is a requirement for all arriving passengers in an international flight. Moreover, it cannot be said that appellant had already been arrested when he signed the Customs

Declaration Form. He was merely escorted by Special Agent Acierto to the arrival area of the NAIA. In fact, appellant admitted that it was only after he signed the Customs Declaration Form that he was brought to the ground floor of NAIA for investigation. Consequently, appellant was in constructive possession of the subject firearms. As held in People v. Dela Rosa, the kind of possession punishable under PD 1866 is one where the accused possessed a firearm either physically or constructively with animus possidendi or intention to possess the same. Animus possidendi is a state of mind. As such, what goes on into the mind of the accused, as his real intent, could be determined solely based on his prior and coetaneous acts and the surrounding circumstances explaining how the subject firearm came to his possession. Appellants witness, Capt. Nadurata, the PAL pilot of Flight No. PR 657 from Dubai to Manila on January 30, 1996, testified that he accepted custody of the firearms and of appellant in order that the latter, who was being detained in Dubai for having been found in possession of firearms, would be released from custody. In other words, Capt. Naduratas possession of the firearm during the flight from Dubai to Manila was for and on behalf of appellant.26cralaw We find no cogent reason to deviate from the above findings, especially considering petitioners admission during the clarificatory questioning by the trial court: Court: So, it is clear now in the mind of the Court, that the firearms and ammunitions will also be with you on your flight to Manila, is that correct? A: Yes, your honor. Court: [You] made mention of that condition, that the Dubai police agreed to release you provided that you will bring the guns and ammunitions with you? Is that the condition of the Dubai Police? A: Yes, your honor. Court: The condition of his release was that he will have to bring the guns and ammunitions to the Philippines and this arrangement was made by the PAL Supervisor at Dubai and it was Mr. Umayaw the PAL Supervisor, who interceded in his behalf with the Dubai Police for his flight in the Philippines.27cralaw To us, this constitutes judicial admission of his possession of the subject firearms and ammunitions. This admission, the veracity of which requires no further proof, may be controverted only upon a clear showing that it was made through palpable mistake or that no admission was made.28cralaw No such controversion is extant on record. Moreover, we cannot ignore the Customs Declaration Form wherein it appeared that petitioner brought the firearms with him upon his arrival in the Philippines. While there was no showing that he was forced to sign the form, petitioner can only come up with the excuse that he was excited. Hardly can we accept such pretension. We are likewise not swayed by petitioners contention that the lower court erroneously relied on the Customs Declaration Form since it is not admissible in evidence because it was accomplished without the benefit of counsel while he was under police custody. The accomplishment of the Customs Declaration Form was not elicited through custodial investigation. It is a customs requirement which petitioner had a clear obligation to comply. As correctly observed by the CA, the preparation of the Customs Declaration Form is a requirement for all arriving passengers in an international flight. Petitioner was among those passengers. Compliance with the constitutional procedure on custodial investigation is, therefore, not applicable in this case. Moreover, it is improbable that the customs police were the ones who filled out the declaration form. As will be noted, it provides details that only petitioner could have possibly known or supplied. Even assuming that there was prior accomplishment of the form which contains incriminating details, petitioner could have easily taken precautionary measures by not affixing his signature thereto. Or he could have registered his objection thereto especially when no life threatening acts were being employed against him upon his arrival in the country. Obviously, it was not only the Customs Declaration Form from which the courts below based their conclusion that petitioner was in constructive possession of subject firearms and ammunitions. Emphasis was also given on the

stipulations and admissions made during the trial. These pieces of evidence are enough to show that he was the owner and possessor of these items. Petitioner contends that the trial court has no jurisdiction over the case filed against him. He claims that his alleged possession of the subject firearms transpired while he was at the Dubai Airport and his possession thereof has ceased when he left for the Philippines. He insists that since Dubai is outside the territorial jurisdiction of the Philippines and his situation is not one of the exceptions provided in Article 2 of the Revised Penal Code, our criminal laws are not applicable. In short, he had not committed a crime within the Philippines. Indeed it is fundamental that the place where the crime was committed determines not only the venue of the action but is an essential element of jurisdiction.29cralaw In order for the courts to acquire jurisdiction in criminal cases, the offense should have been committed or any one of its essential ingredients should have taken place within the territorial jurisdiction of the court. If the evidence adduced during the trial shows that the offense was committed somewhere else, the court should dismiss the action for want of jurisdiction.30cralaw Contrary to the arguments put forward by petitioner, we entertain no doubt that the crime of illegal possession of firearms and ammunition for which he was charged was committed in the Philippines. The accomplishment by petitioner of the Customs Declaration Form upon his arrival at the NAIA is very clear evidence that he was already in possession of the subject firearms in the Philippines. And more than mere possession, the prosecution was able to ascertain that he has no license or authority to possess said firearms. It bears to stress that the essence of the crime penalized under PD 1866, as amended, is primarily the accuseds lack of license to possess the firearm. The fact of lack or absence of license constitutes an essential ingredient of the offense of illegal possession of firearm. Since it has been shown that petitioner was already in the Philippines when he was found in possession of the subject firearms and determined to be without any authority to possess them, an essential ingredient of the offense, it is beyond reasonable doubt that the crime was perpetrated and completed in no other place except the Philippines. Moreover, the jurisdiction of a court over the criminal case is determined by the allegations in the complaint or information. In this case, the information specifically and categorically alleged that on or about January 30, 1996 petitioner was in possession, custody and control of the subject firearms at the Ninoy Aquino International Airport, Pasay City, Philippines, certainly a territory within the jurisdiction of the trial court. In contrast, petitioner failed to establish by sufficient and competent evidence that the present charge happened in Dubai. It may be well to recall that while in Dubai, petitioner, even in a situation between life and death, firmly denied possession and ownership of the firearms. Furthermore, there is no record of any criminal case having been filed against petitioner in Dubai in connection with the discovered firearms. Since there is no pending criminal case when he left Dubai, it stands to reason that there was no crime committed in Dubai. The age-old but familiar rule that he who alleges must prove his allegation applies.31cralaw Petitioner finally laments the trial courts denial of the Motion to Withdraw Information filed by the investigating prosecutor due to the latters finding of lack of probable cause to indict him. He argues that such denial effectively deprived him of his substantive right to a preliminary investigation. Still, petitioners argument fails to persuade. There is nothing procedurally improper on the part of the trial court in disregarding the result of the preliminary investigation it itself ordered. Judicial action on the motion rests in the sound exercise of judicial discretion. In denying the motion, the trial court just followed the jurisprudential rule laid down in Crespo v. Judge Mogul32cralaw that once a complaint or information is filed in court, any disposition of the case as to its dismissal or the conviction or acquittal of the accused rests on the sound discretion of the court. The court is not dutifully bound by such finding of the investigating prosecutor. In Solar Team Entertainment, Inc v. Judge How33cralaw we held: It bears stressing that the court is however not bound to adopt the resolution of the Secretary of Justice since the court is mandated to independently evaluate or assess the merits of the case, and may either agree or disagree with the recommendation of the Secretary of Justice. Reliance alone on the resolution of the Secretary of Justice would be an abdication of the trial courts duty and jurisdiction to determine prima facie case.

Consequently, petitioner has no valid basis to insist on the trial court to respect the result of the preliminary investigation it ordered to be conducted. In fine, we find no reason not to uphold petitioners conviction. The records substantiate the RTC and CAs finding that petitioner possessed, albeit constructively, the subject firearms and ammunition when he arrived in the Philippines on January 30, 1996. Moreover, no significant facts and circumstances were shown to have been overlooked or disregarded which if considered would have altered the outcome of the case. In the prosecution for the crime of illegal possession of firearm and ammunition, the Court has reiterated the essential elements in People v. Eling34cralaw to wit: (1) the existence of subject firearm; and, (2) the fact that the accused who possessed or owned the same does not have the corresponding license for it. In the instant case, the prosecution proved beyond reasonable doubt the elements of the crime. The existence of the subject firearms and the ammunition were established through the testimony of Acierto. Their existence was likewise admitted by petitioner when he entered into stipulation and through his subsequent judicial admission. Concerning petitioners lack of authority to possess the firearms, SPO4 Bondoc, Jr. testified that upon verification, it was ascertained that the name of petitioner does not appear in the list of registered firearm holders or a registered owner thereof. As proof, he submitted a certification to that effect and identified the same in court. The testimony of SPO4 Bondoc, Jr. or the certification from the FEO would suffice to prove beyond reasonable doubt the second element.35 A final point. Republic Act (RA) No. 829436cralaw took effect on June 6, 1997 or after the commission of the crime on January 30, 1996. However, since it is advantageous to the petitioner, it should be given retrospective application insofar as the penalty is concerned. Section 1 of PD 1866, as amended by RA 8294 provides: Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. x x x The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000.00) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. Prision mayor in its minimum period ranges from six years and one day to eight years. Hence, the penalty imposed by the RTC as affirmed by the CA is proper. WHEREFORE, the petition is DENIED. The assailed Decision of the Court of Appeals in CA-G.R. CR No. 21805 affirming the January 23, 1998 Decision of the Regional Trial Court of Pasay City, Branch 109 dated January 23, 1998, convicting petitioner Teofilo Evangelista of violation of Section 1 of Presidential Decree No. 1866, as amended, and sentencing him to suffer the penalty of imprisonment of six years and one day to eight years and to pay a fine of P30,000.00 is AFFIRMED. SO ORDERED. MARIANO C. DEL CASTILLO Associate Justice

Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, G.R. No. 181494 Present: QUISUMBING, J., Chairperson, CARPIO MORALES, TINGA, VELASCO, JR., and BRION, JJ.

- versus -

MONALYN CERVANTES y SOLAR, Promulgated: Accused-Appellant. March 17, 2009 x-----------------------------------------------------------------------------------------x

DECISION VELASCO, JR., J.:

This is an appeal from the Decision dated July 19, 2007 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00476 which affirmed the April 23, 2004 Decision in Criminal Case No. 00-181929 of the Regional Trial Court (RTC), Branch 53 in Manila. The RTC found accused-appellant Monalyn Cervantes guilty beyond reasonable doubt of violation of Section 15, Article III of Republic Act No. (RA) 6425 or the Dangerous Drugs Act of 1972, as amended. The records show the following facts: In an Information dated April 7, 2000, accused-appellant and three others were charged with violation of Sec. 15, Art. III of RA 6425 (selling or distributing a regulated drug), allegedly committed as follows: That, on or about April 5, 2000, in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, accused ISIDRO ARGUSON y ARENDELA, @ Tisoy, MONALYN [CERVANTES] y SOLAR @ Mona, WILSON DEL MONTE @ Wilson and RICHARD REQUIZ @ Richard, conspiring, confederating and mutually helping one another, acting in common accord, did then and there, willfully, unlawfully and feloniously, for the amount of FIVE HUNDRED THOUSAND (P500,000.00) PESOS, Philippine Currency, sell, deliver and give away to a poseur-buyer, FOUR HUNDRED SEVENTY THREE POINT SEVENTY SIX (473.76) GRAMS OF METHAMPHETAMINE [HYDROCHLORIDE], commonly known as shabu, a regulated drug, without authority of law or the corresponding license therefor. CONTRARY TO LAW. Accused-appellant and her co-accused pleaded not guilty to the charge. In the ensuing trial, the prosecution presented in evidence the oral testimonies of William Todavia, PO3 Reynaldo Ramos of the Philippine National Police Regional Office IV (PNP R-IV), and P/Sr. Inspector Lorna Tria, a forensic chemical officer of the same regional office.

The People¶s version of the incident, as summarized by the CA in the decision now on appeal, is as follows: On April 5, 2000, the Regional Special Operations Group IV (RSOG-IV), based at Camp Vicente Lim in Calamba, Laguna, received a tip from a deep penetration agent (DPA) about a group of drug traffickers led by Isidro Arguson operating in Cavite. Acting on this bit of information, a team led by SPO2 Geronimo Pastrana, PO3 Ramos, and PO2 Emerson Balosbalos arranged a buy-bust operation to be conducted at Arguson¶s rest house in Barangay Lambingan, Tanza, Cavite. Upon arriving at the rest house, PO3 Ramos and PO2 Balosbalos, acting as poseur-buyers, were introduced by the DPA to Arguson as the buyers of PhP 500,000 worth of shabu, simultaneously showing him a bundle of money. Since Arguson did not have enough supply of shabu in the premises, he instructed the would-be-buyers to follow him to Pasay City. For the purpose, he hired a vehicle owned by Todavia. At about three o¶clock in the afternoon of that day, in front of the McDonald¶s branch in P. Ocampo St., Pasay City, Arguson instructed the would-be-buyers to wait for someone who will come out from the nearby Estrella St. Very much later, accused-appellant emerged from Estrella St. and approached PO3 Ramos to check if he still had the money. After being shown the money bundle, accused-appellant left, only to return a few minutes later this time with Arguson, Wilson Del Monte, who was holding a black plastic bag, and Richard Requiz. Arguson then took from Del Monte the bag, later found to contain 473.76 grams of shabu packed in six small self-sealing transparent bags, and handed it to PO2 Balosbalos, who in turn gave him the bundle of boodle money. Finally, PO3 Ramos gave the pre-arranged signal to indicate the consummation of the drug deal and introduced himself as policeman. Accused-appellant and her scampering companions were later arrested and brought to and booked at Camp Vicente Lim. The black plastic bag containing the six small self-sealing bags of white crystalline substance was likewise taken to Camp Vicente Lim where PO3 Ramos prepared the booking sheets and arrest reports and the request for a qualitative analysis of the seized items. Regional Crime Laboratory Office IV Chief Inspector (C/I) Mary Jean Geronimo then conducted the standard physical and chemical examinations on the specimen referred to her. On April 6, 2000, C/I Geronimo prepared and completed Chemistry Report No. D-115800 on the crystalline substance. Per her report, the substance tested positive for methamphetamine hydrochloride or shabu. Apart from the witnesses¶ affidavits and other documents, the prosecution, in the hearing of March 4, 2002, offered in evidence the following exhibits, inclusive of its sub markings, which, as may be expected, were objected to by the defense: (a) Exhibit ³B´ ± Chemistry Report No. D-115800 prepared by C/I Geronimo; (b) Exhibit ³C´ ± Memorandum of RSOG-IV dated April 5, 2000 to the Chief, Laboratory Service, requesting for qualitative analysis of the contents of the six transparent plastic bags; (c) Exhibits ³D´ and ³D-1´ to ³D-6´ ± Black plastic bag with markings; and six (6) self-sealing transparent bags allegedly containing the confiscated shabu; and (d) Exhibit ³F´ ± Receipt of property seized signed by PO2 Balosbalos and by Todavia and PO3 Ramos as witnesses. The CA decision likewise summarized the defense¶s account of what purportedly transpired, to wit: Accused-appellant testified that after she did laundry works at her house in Estrella Street near F.B. Harrison on April 4, 2000, her youngest child asked her to go to [McDonald¶s], Vito Cruz branch, to buy ice cream. When they arrived thereat at about 4:30 in the afternoon, there was a commotion going on in front of the restaurant. She then saw a woman who alighted from a nearby van and pointed her out to her companions, one of whom [was] an old man boarded her inside the van causing her to lose hold of her child. Thereafter, two (2) younger male persons, whom she later came to know as DEL MONTE and REQUIZ, were also boarded into the same van. They were taken to a cemetery where another vehicle came and took them to Camp Vicente Lim, where she allegedly met ARGUSON for the first time. On the other hand, accused DEL MONTE testified that he was a parking boy around Vito Cruz and that on the day in question, while he was watching a vehicle near [McDonald¶s], Vito Cruz branch, a commotion happened near his post. As he moved backward from where he stood, he was suddenly approached by a policeman who arrested him and boarded him inside a vehicle together with CERVANTES and REQUIZ, whom he did not know prior to that incident. For his part, accused REQUIZ testified that on the date and time in question, he was riding a borrowed bicycle on his way to the Cultural Center, passing by F.B. Harrison St., when he bumped a parked van, wherefrom a man alighted and cursed him, saying ³pulis ako wag kang aalis dyan[!] ´ The

man left and when he returned, accused CERVANTES was with him. Thereafter, he was boarded into the van together with the other accused. While not stated in the CA decision, Del Monte testified, like accused-appellant, that he was taken to a cemetery somewhere in Cavite where the arresting officers lingered for an hour before bringing him to Camp Vicente Lim. These testimonies remained uncontroverted. Arguson died during the course of the trial resulting in the dismissal of the case against him. On April 23, 2004, the RTC rendered judgment acquitting Del Monte and Requiz but finding accused-appellant guilty as charged and meting upon her the penalty of reclusion perpetua. The fallo of the RTC Decision reads: WHEREFORE, in view of the foregoing, judgment is hereby rendered: 1. Finding accused MONALYN CERVANTES Y SOLAR GUILTY beyond reasonable doubt of violation of Sec. 15, Article III, of Republic Act No. 6425 as amended, and is sentenced to Reclusion Perpetua and to pay a fine in the amount of Php500,000.00; and Finding the prosecution¶s evidence insufficient to prove the guilt of accused WILSON DEL MONTE and RICHARD REQUIZ beyond reasonable doubt, and who are hereby ACQUITTED.

2.

SO ORDERED. On May 18, 2004, accused-appellant filed a Notice of Appeal, pursuant to which the RTC forwarded the records of the case to this Court. Conformably with People v. Mateo, the Court directed the transfer of the case to the CA where it was docketed as CA-G.R. CR-H.C. No. 00476. Before the appellate court, accused-appellant urged her acquittal on the ground of ³insufficiency of evidence,´ particularly stating that the ³forensic chemist who actually conducted the laboratory examination on the specimens allegedly recovered from the accused was not presented in court x x x [and] hence, there was no clear identification of the contents of the confiscated sachets.´ By its Decision dated July 19, 2007, the CA, finding the elements necessary for the prosecution of illegal sale of drugs to have sufficiently been satisfied and the identification of accused-appellant having been established, affirmed her conviction. The CA rejected accused-appellant¶s lament about one Inspector Tria testifying on the chemistry report she did not prepare. As the appellate court stressed, C/I Geronimo¶s forensic report ³carries the presumption of regularity in the performance of official functions [and] the entries thereon x x x are prima facie evidence of the facts therein stated.´ The CA added the observation that absent any evidence overturning the presumption of regularity in the performance of official functions, the probative value and admissibility of the forensic report prepared by C/I Geronimo, who had resigned from the service, must be upheld even if she did not personally testify in court. On August 17, 2007, accused-appellant filed a Notice of Appeal of the CA affirmatory decision. On March 24, 2008, this Court required the parties to submit supplemental briefs if they so desired. The parties manifested their willingness to submit the case on the basis of the records already submitted, thus veritably reiterating their principal arguments raised in the CA, which on the part of accused-appellant would be: THE [CA] GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE OFFENSE CHARGED DESPITE THE INSUFFICIENCY OF EVIDENCE FOR THE PROSECUTION. For its part, the People, thru the Office of the Solicitor General, counters that the prosecution has established that the buy-bust transaction took place, has identified accused-appellant and her complicity in Arguson¶s illegal trade, and has presented the corpus delicti, as evidence.

The Court¶s Ruling After a circumspect study, the Court resolves to acquit accused-appellant, considering certain circumstances engendering reasonable doubt as to her guilt. We start off with the most basic, the testimony of the prosecution¶s principal witness, PO3 Ramos, who identified accused-appellant and described her role in the conspiracy to sell shabu. In the witness box, PO3 testified that, after being told by Arguson to wait for someone who will come out from the street whence Arguson would enter, accused-appellant emerged from said street, checked on the purchase money, asked the operatives to wait, and later re-appeared. What happened next is captured by the following answers of PO3 Ramos to the prosecutor¶s questions: Q: What did you see when Cervantes already returned? A: When Monalyn return the one holding the plastic bag was Wilson, sir. Q: Wilson? A: Yes, sir, together with Richard, Wilson, Arguson, they were four (4). Atty. Cruz: Your honor, may we move to strike that out x x x. Fiscal Formoso: That¶s part of the answer x x x now, when all these accused here return with Monalyn Cervantes, what happen[ed]? A: Arguson took the plastic bag from Wilson, sir and handed it to Balosbalos, Balosbalos gave Arguson the boodle money while I flash the signal x x x then we apprehended them. As may be noted, PO3 Ramos categorically stated that Del Monte was among the four who emerged with Arguson from a street. Without hesitation, PO3 Ramos pointed to Del Monte as the one holding the plastic bag allegedly containing the prohibited substance until Arguson took it from him and handed it over to PO2 Balosbalos. There is no suggestion that accused-appellant, while at the crime scene, ever handled the merchandise or its container. Yet, the trial court acquitted Requiz and Del Monte, but convicted accused-appellant, stating: ³Clearly, accused Monalyn Cervantes¶ complicity with accused Isidro Arguson in the sale of shabu has been established by the testimony of PO3 Ramos.´ But two paragraphs later, the RTC went on to write: x x x While PO3 Ramos testified that the bag was initially held by accused Del Monte and then taken from him by accused Arguson, there is no other evidence which can support the charge of conspiracy with Arguson and Cervantes x x x. The court does not find the evidence sufficient to pass the test of moral certainty to find accused Del Monte liable as charged. Even if PO3 Ramos saw him to have held the bag for Arguson, it could have been possible that he was merely asked by Cervantes or Arguson to carry the bag.

Before us then is a situation where two persons±±accused-appellant, a laundry woman; and Del Monte, a car park boy, in the company of the ostensible pusher, Arguson, during the actual buy bust±±are being indicted, on the basis alone of the testimony of a witness, with confederating with each and several others to sell shabu. The overt acts performed by accused-appellant, as indicia of conspiracy, consisted of allegedly verifying whether the poseur-buyer still had the purchase money, disappearing from the scene and then coming back with the principal player. On the other hand, Del Monte came accompanying Arguson carrying the drug-containing plastic bag no less. As between the two acts performed, carrying the bag would relatively have the more serious implication being in itself a punishable act of possession of regulated drugs. Both offered the defenses of denial and instigation, each testifying that they just happened to be near or passing by McDonald¶s at about 4:30 in the afternoon of April 4, 2000 when they were apprehended. But the trial court, in its observation that ³it could have been possible that [Del Monte] was merely asked by x x x Arguson to carry the bag,´ extended to Del Monte the ³benefit of the doubt,´ a benevolence denied to accused-appellant without so much of an acceptable explanation. Any reasonable mind might ask: Why the contrasting treatment? Why consider PO3 Ramos as a highly credible eyewitness as against accused-appellant, but an unreliable one as against Del Monte, when both accused are complete strangers to the policeman?

To paraphrase an unyielding rule, if the inculpatory testimony is capable of two or more explanations, one consistent with the innocence of the accused persons and the other consistent with their guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. But even if we were to cast aside the foregoing equipoise rule, a reversal of the appealed decision is indicated on another but more compelling ground. We refer to the postulate that the prosecution, having failed to positively and convincingly prove the identity of the seized regulated substance, is deemed to have also failed to prove beyond reasonable doubt accused-appellant¶s guilt. We shall explain. In every prosecution for illegal sale of dangerous drug, what is crucial is the identity of the buyer and seller, the object and its consideration, the delivery of the thing sold, and the payment for it. Implicit in these cases is first and foremost the identity and existence, coupled with the presentation to the court of the traded prohibited substance, this object evidence being an integral part of the corpus delicti of the crime of possession or selling of regulated/prohibited drug. There can be no such crime when nagging doubts persist on whether the specimen submitted for examination and presented in court was what was recovered from, or sold by, the accused. Essential, therefore, in appropriate cases is that the identity of the prohibited drug be established with moral certainty. This means that on top of the key elements of possession or sale, the fact that the substance illegally possessed and sold in the first place is the same substance offered in court as exhibit must likewise be established with the same degree of certitude as that needed to sustain a guilty verdict. And as we stressed in Malillin v. People, the ³chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed.´ So it is that in a slew of cases the Court has considered the prosecution¶s failure to adequately prove that the specimen submitted for laboratory examination was the same one supposedly seized from the offending seller or possessor as ground for acquittal. Sec. 1(b) of the Dangerous Drugs Board Regulation No. 1, Series of 2002, or the ³Guidelines on the Custody and Disposition of Seized Dangerous Drugs, Controlled Precursors and Essential Chemicals, and Laboratory Equipment,´ defines ³chain of custody,´ thusly: ³Chain of Custody´ means the duly recorded authorized movements and custody of seized drugs or controlled chemicals x x x from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody [was] made in the course of safekeeping and use in court as evidence, and the final disposition.

As a mode of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. In context, this would ideally include testimony about every link in the chain, from the seizure of the prohibited drug up to the time it is offered into evidence, in such a way that everyone who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness¶ possession, the condition in which it was received, and the condition in which it was delivered to the next link in the chain. The need for the punctilious observance of the chain-of-custody process in drug-related cases is explained in Malillin in the following wise: While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not really identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination and even substitution and exchange. In other words, the exhibit¶s level of susceptibility to fungibility, alteration or tampering±±without regard to whether the same is advertent or otherwise not±±dictates the level of strictness in the application of the chain of custody rule. xxxx A unique characteristic of narcotic substances is that they are not readily identifiable as in fact they are subject to scientific analysis to determine their composition and nature. The Court cannot reluctantly close its eyes to the likelihood, or at least the possibility, that at any of the links in the chain of custody over the same there could have

been tampering, alteration or substitution of substances from other cases±±by accident or otherwise±±in which similar evidence was seized or in which similar evidence was submitted for laboratory testing. Hence, in authenticating the same, a standard more stringent than that applied to cases involving objects which are readily identifiable must be applied, a more exacting standard that entails a chain of custody of the item with sufficient completeness if only to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with. (Emphasis added.)

As the Court distinctly notes in this case, of the individuals who came into direct contact with or had physical custody of the seized regulated items, only PO3 Ramos testified for the specific purpose of identifying the evidence. In the witness box, however, he did not indicate how he and his companions, right after the buy bust, handled the seized plastic bag and its contents. He did not name the duty desk officer at Camp Vicente Lim to whom he specifically turned over the confiscated bag and sachets at least for recording. What is on record is Exhibit ³C,´ which, as earlier described, is a memorandum PO3 Ramos prepared dated April 5, 2000 from the RSOG-IV Director to the Chief, PNP R-IV Crime Laboratory Service, submitting for qualitative analysis the white crystalline substance confiscated by the buy-bust group. Needless to stress, the unnamed person who delivered the suspected shabu and the recipient of it at the laboratory were no-show in court to testify on the circumstances under which they handled the specimen or whether other persons had access to the specimen before actual testing. And C/I Geronimo, the analyzing forensic chemist, was not also presented. Then, too, no one testified on how the specimen was cared after following the chemical analysis. As the Court observed aptly in People v. Ong, ³[T]hese questions should be answered satisfactorily to determine whether the integrity of the evidence was compromised in any way. Otherwise, the prosecution cannot maintain that it was able to prove the guilt of appellants beyond reasonable doubt.´ It cannot be overemphasized that Inspector Tria was really not part of the custodial chain. And she did not as she could not, even if she wanted to, testify on whether or not the specimen turned over for analysis and eventually offered in court as exhibit was the same substance received from Arguson. Given the foregoing perspective, it is fairly evident that the police operatives trifled with the procedures in the custody of seized prohibited drugs in a buy-bust operation, as embodied in Sec. 21(1), Art. II of RA 9165, i.e., the apprehending officer/team having initial custody and control of the drug shall: immediately after seizure and confiscation, physically inventory and photograph the [drug] in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.

In this case, no physical inventory was made and no photograph taken nor markings made on the seized articles at the crime scene. PO3 Ramos admitted as much, thus: Q. Now, you were able to arrest all the accused here, after their arrest, what did you do? A. After informing their rights and the reason why we arrest them we brought them immediately to our office in Canlubang. xxxx Q. Now, what about this Shabu, who was in possession of this Shabu x x x when you left the place and proceeded to Canlubang? A. PO2 Balosbalos, sir. xxxx Q. Now, when you reach your office, what did you do there? A. I made the booking sheet and I requested for their medical/physical examination x x x.

Just as clear is the fact that the exacting chain of custody rule was not observed. Withal, there is no reasonable assurance that no tampering or substitution occurred between the time the police seized the black bag in P. Ocampo St. in Manila until its contents were tested in the laboratory of the PNP R-IV headquarters in Canlubang, Laguna. In net effect, a heavy cloud of doubt hangs over the integrity and necessarily the evidentiary value of the seized items. The prosecution cannot, thus, rightfully assert that the six sachets seized from Arguson were the very same objects tested by C/I Geronimo and offered in court in proving the corpus delicti. Adding a negative dimension to the prosecution¶s case is the non-presentation of C/I Geronimo and the presentation in her stead of Inspector Tria to testify on the chemical report C/I Geronimo prepared. While Inspector Tria can plausibly testify on the fact that C/I Geronimo prepared the chemical report in the regular course of her duties, she, Inspector Tria, was incompetent to state that the specimen her former colleague analyzed was in fact shabu and was the same specimen delivered to the laboratory for chemical analysis. To be sure, the Court, notably in People v. Bandang, has held that the non-presentation of the forensic chemist in illegal drug cases is an insufficient cause for acquittal. In it, the accused persons were convicted of illegal sale of shabu even if the forensic chemist who prepared the corresponding laboratory report was not presented. Thus, we wrote: x x x In People vs. Uy, we ruled that a forensic chemist is a public officer and as such, his report carries the presumption of regularity in the performance of his function and duties. Corollarily, under Section 44 of Rule 130, x x x entries in official records made in the performance of official duty are prima facie evidence of the facts therein stated. Omero¶s reports that the seven sachets of white crystalline substance were ³positive for methylamphetamine hydrochloride´ or shabu are, therefore, conclusive in the absence of evidence proving the contrary, as in this case. Second, it must be stressed that Atty. Enriquez raises his objection to the Initial Laboratory Report and Chemistry Report No. D-1585-00 only now. He should have objected to their admissibility at the time they were being offered. Otherwise, the objection shall be considered waived and such evidence will form part of the records of the case as competent and admissible evidence. The familiar rule in this jurisdiction is that the admissibility of certain documents x x x cannot be raised for the first time on appeal. (Emphasis added.)

It should be pointed out, however, that the Bandang ruling was cast against a different backdrop where: (1) the seized crystalline substance was the same item examined and tested positive for shabu and presented in court, implying that the identity and integrity of prohibited drug was safeguarded throughout, a circumstance not obtaining in this case; (2) there was a compelling reason for not presenting the examining forensic chemist, i.e., the parties stipulated that the confiscated seven plastic bags have been identified and examined and that the chemist stated in his report that the substance is positive for shabu. In this case, C/I Geronimo¶s resignation from the service is not, standing alone, a justifying factor for the prosecution to dispense with her testimony; and (3) accused Bandang, et al. did not raise any objection to the chemical report during trial, unlike here where accused-appellant objected to Inspector Tria¶s competency to testify on the Geronimo chemical report. At any rate, Inspector Tria¶s testimony on, and the presentation of, the chemistry report in question only established, at best, the existence, due execution, and authenticity of the results of the chemistry analysis. It does not prove compliance with the requisite chain of custody over the confiscated substance from the time of seizure of the evidence. In this regard, the Court in effect stated in Malillin that unless the state can show by records or testimony that the integrity of the evidence has not been compromised by accounting for the continuous whereabouts of the object evidence at least between the time it came into the possession of the police officers until it was tested in the laboratory, then the prosecution cannot maintain that it was able to prove the guilt of the accused beyond reasonable doubt. So it was that in People v. Kimura the Court said that in establishing the corpus delicti, proof beyond reasonable doubt demands that ³unwavering exactitude´ be observed, a demand which may be addressed by hewing to the chain-of-custody rule. Evidently, the prosecution has not proved that the substance seized in front of the McDonald¶s was the same substance adduced in evidence as an indispensable element of corpus delicti of the crime, which failure produces a serious doubt as to accused-appellant¶s guilt.

Both the trial and appellate courts made much of the presumption of regularity in the performance of official functions both with respect to the acts of PO3 Ramos and other PNP personnel at Camp Vicente Lim. To a point, the reliance on the presumptive regularity is tenable. This presumption is, however, disputable and may be overturned by affirmative evidence of irregularity or failure to perform a duty; any taint of irregularity vitiates the performance and negates the presumption. And as earlier discussed, the buy bust team committed serious lapses in the handling of the prohibited item from the very start of its operation, the error of which the PNP R-IV command later compounded. The Court need not belabor this matter anew. Lest it be overlooked, the presumption of regularity in the performance of official duty always yields to the presumption of innocence and does not constitute proof beyond reasonable doubt. We held in one case: The presumption of regularity in the performance of official duty cannot be used as basis for affirming accused-appellant¶s conviction because, ³[f]irst, the presumption is precisely just that²a mere presumption. Once challenged by evidence, as in this case, x x x [it] cannot be regarded as binding truth. Second, the presumption of regularity in the performance of official functions cannot preponderate over the presumption of innocence that prevails if not overthrown by proof beyond reasonable doubt.´

For failure then of the prosecution to establish the guilt of accused-appellant beyond reasonable doubt, she must perforce be exonerated from criminal liability. The facts and the law of the case call for this kind of disposition. But a final consideration. The Court is cognizant of the campaign of the police and other drug enforcement agencies against the growing drug menace in the country. Unfortunately, their best efforts, particularly successful honestto-goodness buy-bust operations, sometimes still end up in the acquittal of illegal drug manufacturers, distributors, pushers and/or lesser players, even when nabbed in flagrante, simply because drug enforcement operatives tend to compromise the integrity and evidentiary worth of the seized illegal items. This aberration is oftentimes in turn attributable to the unfamiliarity of police operatives of extant rules and procedures governing the custody, control, and handling of seized drugs. This is, thus, an opportune time to remind all concerned about these rules and procedures and the guiding jurisprudence. And to put things in the proper perspective, non-compliance with the legal prescriptions of the Dangerous Drugs Act, as amended, is, as we made abundantly clear in People v. Sanchez, not necessarily fatal to the prosecution of drug-related cases; that police procedures may still have some lapses. These lapses, however, must be recognized, addressed, and explained in terms of their justifiable grounds, and the integrity and evidentiary value of the evidence seized must be shown to have been preserved by the apprehending officer or team. To be forewarned is to be forearmed. WHEREFORE, the CA Decision dated July 19, 2007 in CA-G.R. CR-H.C. No. 00476, affirming that of the RTC, Branch 53 in Manila which found her guilty of violating Sec. 15, Art. III of RA 6425 and imposed upon her the penalty of reclusion perpetua and a fine of PhP 500,000, is hereby REVERSED and SET ASIDE. Accused-appellant Monalyn Cervantes y Solar is ACQUITTED on the ground of reasonable doubt and is accordingly immediately RELEASED from custody unless she is being lawfully held for some lawful cause. The Director of the Bureau of Corrections is directed to implement this Decision and to report to this Court the action taken hereon within five (5) days from receipt of this Decision. SO ORDERED. PRESBITERO J. VELASCO, JR. Associate Justice

THIRD DIVISION

LILIBETH ARICHETA, Petitioner,

G.R. No. 172500 Present: YNARES-SANTIAGO, Chairperson, AUSTRIA-MARTINEZ, AZCUNA, CHICO-NAZARIO, and REYES, JJ.

- versus -

Promulgated: PEOPLE OF THE PHILIPPINES, Respondent. September 21, 2007 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

CHICO-NAZARIO, J.: Assailed before Us is the Decision of the Court of Appeals in CA-G.R. CR No. 25540 which affirmed with modifications the Decision of the Regional Trial Court (RTC) of Manila, Branch 29, in Criminal Case No. 96-152984, convicting petitioner Lilibeth Aricheta of the crime of Estafa. I n an I nf or mat ion f iled on 7 Oct ob er 1996 , pet itioner was char ged wit h Estafa allegedly committ ed as f ollows : T hat somet ime in Apr il 1994, in t he C it y of Manila, Philipp ines, the sa id accus ed b eing t hen t he owner of a par cel of la nd locat ed at Bo. Ba gu mb ong, Nova liches, Kalooka n Cit y conta ining an ar ea of f ort y- eight (48 ) sq. met er s mor e or less, wit h impr ovements t her eon which s he acqu ir ed fr om t he Nationa l H ousin g Aut hor it y (NH A) b y vir tu e of a Deed of Sale wit h M or t gage, did t hen a nd ther e willfu lly, u nla wfu lly a nd f elonious ly def r aud MARG AR IT A VAS Q UEZ, in t h e f ollowing ma nner , t o wit : t he said accus ed well knowing t hat she ha d alr ea dy s old t h e said lot t o a thir d par ty, willfu lly, unla wf u lly and f elonious ly s old t he sa me lot t o MARG AR IT A VASQ UEZ as evidenced b y a D eed of Sale wit h assu mpt ion of Mor tga ge ex ecut ed b et ween her a nd M AR G ARIT A VAS Q UEZ on 27 t h Apr il, 1994 b ef or e N otar y Public N onilo A. Quita ngon and r ecor ded in t he latt er ¶s N otar ial Regist er as D oc. N o. 238, Page 49, Book X V, S er ies of 1994, in cons ider ation of which t he said M ARG AR IT A VASQ UEZ paid accus ed P50,000.00 and t o assu me t h e su m of P191,075.00 wit h t he N H A, without t he knowledg e and cons ent of MARG AR IT A VASQ UEZ, which a mou nt once in her p oss ess ion, wit h int ent t o defr aud, misapplied, misappr opr iat ed a nd conver t ed t o her own p er s onal us e a nd b enefit, t o the da ma ge a nd pr eju dice of MARG AR IT A VASQ UEZ in the a mou nt of P50,000.00, Philipp ine cur r ency.

When ar r aigned on 13 Januar y 1997, p etit ioner , ass ist ed b y cou ns el de oficio, p lea ded not gu ilt y t o the cr ime char ged.

On 18 Febr uar y 1997, the pr e-tr ia l conf er ence was t er minat ed. T he pr os ecution pr es ent ed pr ivat e comp laina nt Mar gar ita S evilla Vasqu ez and N or ita A. de Guzma n. Pr ivat e comp la inant t estif ied t hat p et itioner was a fa mily fr iend whom s he ha d known f or mor e t ha n t en year s. She us ed t o bu y viands fr om p et it ioner ¶s mot her , who was t he latt er ¶s sist er in- la w¶s off icemat e at the Nationa l H ousing Aut hor it y (NH A). Pet it ioner a gr eed to s ell t o pr ivat e comp laina nt her r ights over a hous e a nd lot descr ib ed a s Lot 5, Blk. 2, locat ed at Bar angay Bagu mb ong, N ova liches, Calooca n C it y. Pr ivat e comp laina nt agr eed t o pa y p et it ioner P50,000.00 and t o as su me pa yment of t he mont hly a mort izat ion t o the NH A f or twent y- f ive (25 ) year s. T he f or mer was able t o s ee t he pr op er t y t wice - - f ir st, in Apr il 199 4 b ef or e s he a gr eed t o bu y t he sa me; and s econd, in May 1 994. T he pr op er t y was wit hout wat er a nd electr icit y, not yet finis hed, and st ill u noccupied. T he gr ou nd f loor ha d no par tit ion, while t h e s econd f loor ha d no r oom a nd ceiling. On 27 Apr il 1994, pr ivat e comp la inant and p et it ioner ent er ed int o a D eed of Sale wit h Assu mpt ion of M or tga ge. It contained a pr ovis ion stating t hat ³the Vendor is t he abs olut e owner of the sa id pr op er t y and her eb y war r ants the Vendee from a ny la wf ul claim of whoms oever over t h e same. ´ T he pa yment of P50,000.00 t o p et itioner was ma de b y pr ivat e comp la inant in t he latt er ¶s off ice locat ed at 329 NDC Comp ou nd, Pur eza St., Sta. Mesa, Manila. Aft er the ex ecut ion of t he docu ment and pa yment, pr ivat e comp laina nt tr ied t o occup y t he hous e and lot, but was told b y p etit ioner t hat s he cou ld not occup y t he sa me yet, b ecaus e s he st ill ha d no gat e pass or ID issu ed b y the N H A. Pet itioner t old her she would b e able t o s ecur e t he gat e pass wit hin a mont h or in Ma y 1994. In Ma y 1994, pr ivat e comp laina nt as ked p et it ioner ab out t he gat e pass, but was told t hat its issua nce was b eing dela yed. Almost ever yday, pr ivate comp laina nt called p et it ioner , bu t she was told t he gat e pass was not yet availab le. She even went t o t he hous e of p et it ioner who t old her tha t a case b et ween t he NH A a nd the develop er was the caus e of t he dela y. In Oct ob er 199 5, pr ivate comp laina nt went t o the NH A a nd was inf or med b y a cer tain Amy Cr uz that the gat e pass had a lr eady b een obta ined b y p et it ioner . Cons equ ent ly, s he went t o Bar anga y Ba gu mb ong, Caloocan C it y, wher e she f ou nd out t hat someone was alr eady occu pying t he hous e and lot. She confr ont ed p et it ioner on the matt er , and t he latt er admitt ed t hat s he ( p etit ioner ) sold it t o anot her p er s on. P et itioner a ls o t old her t hat the p er s on who b ou ght it leas ed t he sa me t o anot her p er son. Under t he cir cu msta nces, pr ivat e complaina nt or ally as ked p et it ioner t o r etur n t he P50,000.00 she pa id her . T her eaft er , pr ivat e comp lainant s ent p et it ioner a dema nd lett er , which the latt er ignor ed. She t hen f iled b ot h civil and cr imin al cas es against p et it ioner . Pr ivate comp laina nt exp lained t hat she did not s ub mit t he deed of sale t o t he NH A b ecaus e she tr usted t he p etit ioner . H owever , she s aid that when s he tr ied t o s ecur e t he gat e pass, she pr es ent ed t he deed of sale t o a cer tain Amy C r uz who t old her t hat only p et it ioner was author ized t o get t he gat e pass, and t hat s he alr ea dy did. She a dded t hat p et it ioner did not t ell her t o sub mit t h e deed of sale t o t he N H A. Pr ivat e comp laina nt fur t her sa id t hat althou gh her s ist er -in- la w, R ex elita C or der o - p etit ioner ¶s b est fr iend, kumar e and off icemate at the NH A -- convinced her t o bu y the hous e a n d lot sub ject of this cas e, Ms. Cor der o was not an agent of p etit ioner . Mr s. Nor ita A. de Gu zma n, an off icemat e of pr ivat e compla ina nt at Kib ono Manufactur in g Company, conf ir med t he tr ansact ion b et ween pr ivate comp laina nt and p et it ioner r egar ding t he sal e of the r ight of t he p et it ioner over t he hous e and lot involved in t his cas e. She nar r ated t hat on 2 7

Apr il 1994, she was told b y pr ivat e comp lainant that someo ne wou ld b e ar r iving in their off ice wh o was s elling her r ights over s ome pr op er t y in Calooca n Cit y, a nd t hat pr ivat e comp laina nt would b e paying this p er s on. T his p er s on tur ned out t o be t he p et it ioner . Mr s. De Gu zma n t est if ied s he saw p r ivat e comp laina nt give t o p et it ioner t he a mou nt of P50,000.00 in cas h. T her eaft er , the contr act was signed and s he, t oget her wit h a not her off icemat e, was as ked b y pr ivat e compla ina nt t o act as wit ness es. Dur ing t he tr ansact ion, s he was two f eet away fr om pr ivat e comp laina nt and p et ition er . Aft er the s igning, s he sa id they app ear ed b ef or e Att y. N onilo A. Quita ngon who notar ized t he Deed of Sale wit h Assu mpt ion of M or tga ge. For the def ens e, p et itioner t ook t he wit ness stand. Pet itioner t est ified t hat t he hous e a nd lot, sub ject matt er of t his cas e, was a war ded t o her thr ou gh a r affle at the NH A. She has to pay mont hly a mor tizations f or t went y-f ive (25) year s to t h e NH A. She said t he pr op er t y ca nnot b e s old dur ing t his p er iod. Petit ioner denied p er s ona lly knowing t he pr ivat e compla ina nt. She ins ist ed t hat she did not s ell t he hous e and lot to pr ivat e comp laina nt but mer ely mor t gaged it t o her . She nar r ated t hat she fir st mor t gaged t he pr op er t y to Mar gar ita Galang who occup ied t he pr op er t y wit h t he con dit ion t hat she wou ld vacat e t he sa me when t he mon ey she loa ned is r etur ned. P et itioner t hen mor t ga ged t he same pr op er t y t o pr ivat e comp laina nt b ecau s e her ku mare was bor r owing mon ey fr om her . She, howev er , did not inf or m pr ivat e comp la inant of t he f ir st mor t ga ge. She signed a deed of sale b ut did not t ota lly r ead t he docu ment. What s he under st ood was that if s he cannot r edeem t he pr op er t y wit hin s ix mont hs, t he pr op er t y is deemed s old. Since p et it ioner has not r etur ned t he amou nt s h e bor r owed fr om Mar gar ita Gala ng, the latt er is ent it led t o occup y t he pr op er t y which, accor ding t o p etit ioner , is st ill in her na me. Pet itioner fur t her exp la ined t hat desp it e t he pr ohib it ion t o s ell or mor t ga ge t he pr op er t y wit hin t he 25- year p er iod, s he st ill mor t ga ged t he pr op er t y t o Mar gar ita Galang wit hin one year fr om t he a war d of t he pr op er t y t o her . She s aid s he has no pr oof t hat s he mor t ga ged t he p r op er ty t o Ms. Galang, but s he s igned a docu ment as evidence t hat s he r eceived mon ey. Alt hou gh she s igned the deed of sale, she claimed s he is st ill the owner p er notice of the NH A. On 25 Sept emb er 2000, the tr ia l cour t pr omu lgat ed its D ecision convict ing accus ed -p et it ioner of Estafa. T he decr etal p or tion of t he decis ion r eads : WHEREFORE, this C our t f inds t he accus ed, LIL IBET H AR ICHET A, G UILT Y b eyond r eas onable doubt of t he cr ime of EST AFA a nd s he is her eb y s ent enced t o suff er the indet er minat e p enalt y of SIX (6) YE ARS, ONE (1 ) D AY of pr is ion ma yor minimu m as minimu m t o EIG HT (8) YE ARS, EIGHT (8) MONT HS, ONE (1) D AY of the mediu m of pr is ion ma yor mediu m as maximu m wit h a ll the access or y p ena lties pr ovided b y law, and t o pay t he costs.

Via a not ice of app eal, accus ed-p et it ioner app ealed t he decis ion t o t he C our t of App eals. In its decis ion dat ed 26 Apr il 2006, t he Cour t of Ap p eals aff ir med wit h modif ications the tr ia l cour t¶s decis ion as follows : WHEREFORE, in view of t he f or egoing, t he D ecis ion dat ed S ept emb er 25, 2000 is her eb y A FFI RMED wit h MODI FICATI ONS. Accus ed is her eb y s ent enced t o suff er the indet er minat e p ena lt y of T WO (2) YE ARS, ELE VEN (1 1) MONT HS and T EN (10) D AYS of prision corr eccional mi nimum to m edium as minimu m t o EIG HT (8) YE ARS, EI GHT (8) MO NT HS and T WENT Y-ON E (21 ) D AYS of prision correccional ma ximum to prision mayor min imum as maximu m wit h all the access or y p enalt ies pr ovided b y law and t o pay t he cost s.

T he Cour t of App ea ls, in up holding p et itioner ¶s convict ion, r atiocinat ed: The Deed of Sale with Assumption of Mortgage (Exh. ³A´) dated April 27, 1994 and signed by accused Lilibeth L. Aricheta in favor of Margarita Vasquez speaks only of the mortgage with the National Housing Authority (NHA). Margarita Vasquez, as vendee, agreed to assume payment of the balance on the loan with NHA. Said instrument includes the warranty by Lilibeth L. Aricheta, as vendor, that she ³is the absolute owner of said property´ and ³warrants the vendee from any lawful claim of whomsoever over the same.´ (Exhibit ³A´). xxxx At the time accused-[appellant] signed the deed of sale in favor of Margarita Vasquez she represented to the latter that she was the absolute owner of the property subject matter of the sale. Accused-[appellant] warranted to defend said transaction from the claim of anybody whomsoever. Whether the previous transaction in favor of Magdalena Galang was a sale or a mortgage, aforesaid written guaranty embodied in the sale to Margarita Vasquez was violated. The representation, therefore, that accused-[appellant] was the absolute owner of the property sold to Margarita Vasquez and it was free from the claim of anybody was fraudulent. Said false pretense was simultaneous with the commission of the fraud. Margarita Vasquez was induced to deliver the sum of P50,000.00 on account of said fraudulent misrepresentation. Margarita Vasquez suffered damage.

Petit ioner is now b ef or e us via a pet it ion f or r eview on certiorari r ais ing a sole iss u e: WHET HER T HE COURT OF APPEALS ERRED IN AFFIRMING T HE T RIAL COURT ¶S FINDINGS T HAT T HE PET IT IONER IS GUILT Y BE YOND RE ASON ABLE DO UBT OF T HE CRIME OF EST AFA.

Pet itioner cont ends t hat t he element of deceit which, in this cas e is t he ma king of fals e r epr es entat ions t hat she is t he owner of t he sub ject pr op er ty when s he tr ansact ed wit h pr ivat e comp la inant, is not pr es ent in t he cas e at bar becaus e at t he t ime s he tr ansact ed w it h pr ivat e comp la inant, s he was st ill t he owner t her eof. She cla ims t hat nowher e in t he r ecor ds of the cas e was it s hown t hat s he pr evious ly s old or mor tga ged t he sub ject pr op er t y a nd t hat t he r ecor ds of t h e NH A show t hat the pr op er t y r ema ined in her na me at the time s he dea lt wit h pr ivat e comp laina nt. Estafa under Ar t icle 315, par agr aph 2, of t he R evis ed P ena l C ode is committ ed b y any p er s on who defr auds a not her b y us ing a f ict it ious na me; or fals ely pr et ends t o p oss ess p ower , inf lu ence, qua lif icat ions, pr op er t y, cr edit, agency, bus iness or ima ginar y tr ansactions; or b y mea ns of s imilar deceits ex ecut ed pr ior to or simu ltaneous ly wit h t he commiss ion of fr aud. Under t his class of estafa, the element of deceit is indisp ensab le. T he elements of Estafa b y mea ns of deceit as def ined u nder Ar t icle 315(2 )(a) of t he R evis ed Pena l C ode ar e as f ollows : (1 ) t hat t her e must b e a fals e pr et ens e, fr audu lent act or fr audu lent mea ns; (2) t hat such fa ls e pr et ens e, fr audu lent act or fr audu lent mea ns must b e ma de or ex ecut ed pr ior t o or simu lta neous ly wit h t he commiss ion of t he fr aud; (3) t hat t he off ended par ty must ha v e r elied on t he fa ls e pr et ens e, fr audu lent act or fr audulent mea ns, that is, he was induced t o par t wit h his mon ey or pr op er t y b ecaus e of t he fals e pr et ens e, fr audu lent act or fr audu lent mea ns ; and (4 ) that as a r esult t her eof, the of f ended par ty suff er ed da ma ge. Fraud, in its general sense, is deemed to comprise anything calculated to deceive, including all acts, omissions and concealment involving a breach of legal or equitable duty, trust or confidence justly reposed, resulting in damage to another, or by which an undue and unconscientious advantage is taken of another. It is a generic term embracing all multifarious means which human ingenuity can device, and which are resorted to by one individual to secure an advantage

over another by false suggestions or by suppression of truth; and includes all forms of surprise, trick, cunning, dissembling and any other unfair way by which another is cheated. Deceit is a species of fraud. And deceit is the false representation of a matter of fact whether by words or conduct, by false or misleading allegations, or by concealment of that which should have been disclosed which deceives or is intended to deceive another so that he shall act upon it, to his legal injury. The false pretense or fraudulent act must be committed prior to or simultaneously with the commission of the fraud, it being essential that such false statement or representation constitutes the very cause or the only motive which induces the offended party to part with his money. In the absence of such requisite, any subsequent act of the accused, however fraudulent and suspicious it might appear, cannot serve as basis for prosecution for estafa under the said provision. As can be gleaned from the allegations in the information, petitioner was charged with Estafa for allegedly selling to private complainant the subject property knowing fully well that she had already sold the same to a third party. From this, it is therefore clear that the supposed false representation or false pretense made by petitioner to private complainant was that she was still the owner of the property when she sold it to private complainant. The prosecution relies heavily on the provision contained in the Deed of Sale with Assumption of Mortgage ³That the Vendor is the absolute owner of said property and hereby warrants the Vendee from any lawful claim of whomsoever over the same.´ It argues that petitioner, in executing said document in favor of private complainant, fraudulently represented that she is the absolute owner of the property and warranted that the transfer of rights over the property is free ³from any lawful claim of whomsoever over the same´ because at the time she made this representation, she had already sold/mortgaged the property to another person. The question to be resolved is whether the prosecution was able to prove beyond reasonable doubt the alleged false representation or false pretense contained in the information. As above explained, the alleged false representation or false pretense made by petitioner to private complainant was that she was still the owner of the property when she sold it to private complainant. To prove such allegation, the prosecution should first establish that the property was previously sold to a third party before it was sold to private complainant. The prosecution utterly failed to do this. The fundamental rule is that upon him who alleges rests the burden of proof. It made this allegation but it failed to support it with competent evidence. Except for private complainant¶s bare allegation that petitioner told her that she (petitioner) sold the property to another person, the records are bereft of evidence showing that the property was indeed previously sold to a third person before it was sold again to private complainant. What was shown by the prosecution and admitted by the defense is the fact that the property is being currently occupied by a person other than private complainant. This fact does not prove that the property was previously sold to another person before being sold again to private complainant. Even assuming arguendo that the property was previously mortgaged, this does not prove that petitioner is no longer its owner when she sold the same to private complainant. At most, it only shows that the property is encumbered and that there was no change in ownership which is contrary to the prosecution¶s claim that there was already a transfer of ownership before the property was sold to private complainant. The prosecution cannot rely on the warranty contained in the Deed of Sale with Assumption of Mortgage that ³the Vendor warrants the Vendee from any lawful claim of whomsoever over the same´ for the reason that the same is not alleged in the Information. This is not part of the charge against petitioner. Petitioner was indicted for making false representations to the private complainant that she is the owner of the property involved when this property was supposedly already sold to another person. The allegations were made pursuant to Section 9, Rule 110 of the Revised Rules of Criminal Procedure. She was not charged with falsely representing to private complainant that the property was not mortgaged or being occupied by a third person. The charge in the information is specific. The charge cannot be broadened to include what is not alleged to the detriment of the petitioner. If this were to be done, the petitioner¶s right to be informed of the nature and cause of the accusation against her would be violated. In Andaya v. People, this Court said: It is fundamental that every element constituting the offense must be alleged in the information. The main purpose of requiring the various elements of a crime to be set out in the information is to enable the accused to suitably prepare his defense because he is presumed to have no independent knowledge of the facts that constitute the offense. The allegations of facts constituting the offense charged are

substantial matters and an accused¶s right to question his conviction based on facts not alleged in the information cannot be waived. No matter how conclusive and convincing the evidence of guilt may be, an accused cannot be convicted of any offense unless it is charged in the information on which he is tried or is necessarily included therein. To convict him of a ground not alleged while he is concentrating his defense against the ground alleged would plainly be unfair and underhanded. The rule is that a variance between the allegation in the information and proof adduced during trial shall be fatal to the criminal case if it is material and prejudicial to the accused so much so that it affects his substantial rights.

We are not saying that petitioner did not commit any wrongdoing. There was indeed an injustice committed to private complainant when she was not able to occupy the property she bought from petitioner. The problem, however, is we cannot convict petitioner for an act not alleged in the information. To do so would be violative of the fundamental law of the land. Where the inculpatory facts and circumstances are susceptible of two or more interpretations, one of which is consistent with the innocence of the accused while the other may be compatible with the finding of guilt, the Court must acquit the accused because the evidence does not fulfill the test of moral certainty required for conviction. In the present case, the prosecution, which has the burden to prove beyond reasonable doubt all the essential elements of the felony, failed to discharge this burden. It failed to establish, as alleged in the information, the false representation or false pretense that petitioner supposedly committed; that is, the property in question was previously sold to another person before it was sold to private complainant. With this failure, the presumption of innocence in favor of petitioner prevails and we are thus constrained to render an acquittal. ALL THE FOREGOING CONSIDERED, the petition for review on certiorari is GRANTED. The decision of the Court of Appeals convicting petitioner of Estafa in CA-G.R. CR No. 25540 is REVERSED and SET ASIDE. Petitioner Lilibeth Aricheta is ACQUITTED of said charge on ground of reasonable doubt. No costs. SO ORDERED.

MINITA V. CHICO-NAZARIO Associate Justice

SECOND DIVISION

EDUARDO P. MANUEL, Petitioner,

G.R. No. 165842 Present: PUNO, J., Chairman, AUSTRIA-MARTINEZ, - versus -

CALLEJO, SR., TINGA, and CHICO-NAZARIO,* JJ. Promulgated: PEOPLE OF THE PHILIPPINES, Respondent. November 29, 2005

x-----------------------------------------------------------------------------------------x DECISION CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 26877, affirming the Decision[2] of the Regional Trial Court (RTC) of Baguio City, Branch 3, convicting Eduardo P. Manuel of bigamy in Criminal Case No. 19562-R. Eduardo was charged with bigamy in an Information filed on November 7, 2001, the accusatory portion of which reads: That on or about the 22nd day of April, 1996, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused EDUARDO P. MANUEL, being then previously and legally married to RUBYLUS [GAÑA] and without the said marriage having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage with TINA GANDALERA-MANUEL, herein complainant, who does not know the existence of the first marriage of said EDUARDO P. MANUEL to Rubylus [Gaña]. CONTRARY TO LAW. [3] The prosecution adduced evidence that on July 28, 1975, Eduardo was married to Rubylus Gaña before Msgr. Feliciano Santos in Makati, which was then still a municipality of the Province of Rizal.[4] He met the private complainant Tina B. Gandalera in Dagupan City sometime in January 1996. She stayed in Bonuan, Dagupan City for two days looking for a friend. Tina was then 21 years old, a Computer Secretarial student, while Eduardo was 39. Afterwards, Eduardo went to Baguio City to visit her. Eventually, as one thing led to another, they went to a motel where, despite Tina s resistance, Eduardo succeeded in having his way with her. Eduardo proposed marriage on several occasions, assuring her that he was single. Eduardo even brought his parents to Baguio City to meet Tina s parents, and was assured by them that their son was still single. Tina finally agreed to marry Eduardo sometime in the first week of March 1996. They were married on April 22, 1996 before Judge Antonio C. Reyes, the Presiding Judge of the RTC of Baguio City, Branch 61.[5] It appeared in their marriage contract that Eduardo was single.

The couple was happy during the first three years of their married life. Through their joint efforts, they were able to build their home in Cypress Point, Irisan, Baguio City. However, starting 1999, Manuel started making himself scarce and went to their house only twice or thrice a year. Tina was jobless, and whenever she asked money from Eduardo, he would slap her.[6] Sometime in January 2001, Eduardo took all his clothes, left, and did not return. Worse, he stopped giving financial support. Sometime in August 2001, Tina became curious and made inquiries from the National Statistics Office (NSO) in Manila where she learned that Eduardo had been previously married. She secured an NSO-certified copy of the marriage contract.[7] She was so embarrassed and humiliated when she learned that Eduardo was in fact already married when they exchanged their own vows.[8] For his part, Eduardo testified that he met Tina sometime in 1995 in a bar where she worked as a Guest Relations Officer (GRO). He fell in love with her and married her. He informed Tina of his previous marriage to Rubylus Gaña, but she nevertheless agreed to marry him. Their marital relationship was in order until this one time when he noticed that she had a love-bite on her neck. He then abandoned her. Eduardo further testified that he declared he was single in his marriage contract with Tina because he believed in good faith that his first marriage was invalid. He did not know that he had to go to court to seek for the nullification of his first marriage before marrying Tina. Eduardo further claimed that he was only forced to marry his first wife because she threatened to commit suicide unless he did so. Rubylus was charged with estafa in 1975 and thereafter imprisoned. He visited her in jail after three months and never saw her again. He insisted that he married Tina believing that his first marriage was no longer valid because he had not heard from Rubylus for more than 20 years. After trial, the court rendered judgment on July 2, 2002 finding Eduardo guilty beyond reasonable doubt of bigamy. He was sentenced to an indeterminate penalty of from six (6) years and ten (10) months, as minimum, to ten (10) years, as maximum, and directed to indemnify the private complainant Tina Gandalera the amount of P200,000.00 by way of moral damages, plus costs of suit.[9] The trial court ruled that the prosecution was able to prove beyond reasonable doubt all the elements of bigamy under Article 349 of the Revised Penal Code. It declared that Eduardo s belief, that his first marriage had been dissolved because of his first wife s 20-year absence, even if true, did not exculpate him from liability for bigamy. Citing the ruling of this Court in People v. Bitdu,[10] the trial court further ruled that even if the private complainant had known that Eduardo had been previously married, the latter would still be criminally liable for bigamy. Eduardo appealed the decision to the CA. He alleged that he was not criminally liable for bigamy because when he married the private complainant, he did so in good faith and without any malicious intent. He maintained that at the time that he married the private complainant, he was of the honest belief that his first marriage no longer subsisted. He insisted that conformably to Article 3 of the Revised Penal Code, there must be malice for one to be criminally liable for a felony. He was not motivated by malice in marrying the private complainant because he did so only out of his overwhelming desire to have a fruitful marriage. He posited that the trial court should have taken into account Article 390 of the New Civil Code. To support his view, the appellant cited the rulings of this Court in United States v. Peñalosa[11] and Manahan, Jr. v. Court of Appeals.[12] The Office of the Solicitor General (OSG) averred that Eduardo s defense of good faith and reliance on the Court s ruling in United States v. Enriquez[13] were misplaced; what is applicable is Article 41 of the Family Code, which amended Article 390 of the Civil Code. Citing the ruling of this Court in Republic v. Nolasco,[14] the OSG further posited that as provided in Article 41 of the Family Code, there is a need for a judicial declaration of presumptive death of the absent spouse to enable the present spouse to marry. Even assuming that the first marriage was void, the parties thereto should not be permitted to judge for themselves the nullity of the marriage;

the matter should be submitted to the proper court for resolution. Moreover, the OSG maintained, the private complainant s knowledge of the first marriage would not afford any relief since bigamy is an offense against the State and not just against the private complainant. However, the OSG agreed with the appellant that the penalty imposed by the trial court was erroneous and sought the affirmance of the decision appealed from with modification. On June 18, 2004, the CA rendered judgment affirming the decision of the RTC with modification as to the penalty of the accused. It ruled that the prosecution was able to prove all the elements of bigamy. Contrary to the contention of the appellant, Article 41 of the Family Code should apply. Before Manuel could lawfully marry the private complainant, there should have been a judicial declaration of Gaña s presumptive death as the absent spouse. The appellate court cited the rulings of this Court in Mercado v. Tan[15] and Domingo v. Court of Appeals[16] to support its ruling. The dispositive portion of the decision reads: WHEREFORE, in the light of the foregoing, the Decision promulgated on July 31, 2002 is hereby MODIFIED to reflect, as it hereby reflects, that accused-appellant is sentenced to an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to ten (10) years of prision mayor as maximum. Said Decision is AFFIRMED in all other respects. SO ORDERED.[17] Eduardo, now the petitioner, filed the instant petition for review on certiorari, insisting that: I THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT RULED THAT PETITIONER S FIRST WIFE CANNOT BE LEGALLY PRESUMED DEAD UNDER ARTICLE 390 OF THE CIVIL CODE AS THERE WAS NO JUDICIAL DECLARATION OF PRESUMPTIVE DEATH AS PROVIDED FOR UNDER ARTICLE 41 OF THE FAMILY CODE. II THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT AFFIRMED THE AWARD OF PHP200,000.00 AS MORAL DAMAGES AS IT HAS NO BASIS IN FACT AND IN LAW.[18] The petitioner maintains that the prosecution failed to prove the second element of the felony, i.e., that the marriage has not been legally dissolved or, in case his/her spouse is absent, the absent spouse could not yet be presumed dead under the Civil Code. He avers that when he married Gandalera in 1996, Gaña had been absent for 21 years since 1975; under Article 390 of the Civil Code, she was presumed dead as a matter of law. He points out that, under the first paragraph of Article 390 of the Civil Code, one who has been absent for seven years, whether or not he/she is still alive, shall be presumed dead for all purposes except for succession, while the second paragraph refers to the rule on legal presumption of death with respect to succession. The petitioner asserts that the presumptive death of the absent spouse arises by operation of law upon the satisfaction of two requirements: the specified period and the present spouse s reasonable belief that the absentee is dead. He insists that he was able to prove that he had not heard from his first wife since 1975 and that he had no knowledge of her whereabouts or whether she was still alive; hence, under Article 41 of the Family Code, the presumptive death of Gaña had arisen by operation of law, as the two requirements of Article 390 of the Civil Code are present. The petitioner concludes that he should thus be acquitted of the crime of bigamy. The petitioner insists that except for the period of absences provided for in Article 390 of the Civil Code, the rule therein on legal presumptions remains valid and effective. Nowhere under Article 390 of the Civil Code does it require that there must first be a judicial declaration of death before the rule on presumptive death would apply. He further asserts that contrary to the rulings of the trial and appellate courts, the requirement of a judicial declaration of presumptive death under Article 41 of the Family Code is only a requirement for the validity of the subsequent or second marriage.

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

The provision was taken from Article 486 of the Spanish Penal Code, to wit: El que contrajere Segundo o ulterior matrimonio sin hallarse legítimamente disuelto el anterior, será castigado con la pena de prision mayor. xxx The reason why bigamy is considered a felony is to preserve and ensure the juridical tie of marriage established by law.[20] The phrase or before the absent spouse had been declared presumptively dead by means of a judgment rendered in the proper proceedings was incorporated in the Revised Penal Code because the drafters of the law were of the impression that in consonance with the civil law which provides for the presumption of death after an absence of a number of years, the judicial declaration of presumed death like annulment of marriage should be a justification for bigamy. [21] For the accused to be held guilty of bigamy, the prosecution is burdened to prove the felony: (a) he/she has been legally married; and (b) he/she contracts a subsequent marriage without the former marriage having been lawfully dissolved. The felony is consummated on the celebration of the second marriage or subsequent marriage.[22] It is essential in the prosecution for bigamy that the alleged second marriage, having all the essential requirements, would be valid were it not for the subsistence of the first marriage.[23] Viada avers that a third element of the crime is that the second marriage must be entered into with fraudulent intent (intencion fraudulente) which is an essential element of a felony by dolo.[24] On the other hand, Cuello Calon is of the view that there are only two elements of bigamy: (1) the existence of a marriage that has not been lawfully dissolved; and (2) the celebration of a second marriage. It does not matter whether the first marriage is void or voidable because such marriages have juridical effects until lawfully dissolved by a court of competent jurisdiction.[25] As the Court ruled in Domingo v. Court of Appeals[26] and Mercado v. Tan,[27] under the Family Code of the Philippines, the judicial declaration of nullity of a previous marriage is a defense. In his commentary on the Revised Penal Code, Albert is of the same view as Viada and declared that there are three (3) elements of bigamy: (1) an undissolved marriage; (2) a new marriage; and (3) fraudulent intention constituting the felony of the act.[28] He explained that: This last element is not stated in Article 349, because it is undoubtedly incorporated in the principle antedating all codes, and, constituting one of the landmarks of our Penal Code, that, where there is no willfulness there is no crime. There is no willfulness if the subject believes that the former marriage has been dissolved; and this must be supported by very strong

evidence, and if this be produced, the act shall be deemed not to constitute a crime. Thus, a person who contracts a second marriage in the reasonable and well-founded belief that his first wife is dead, because of the many years that have elapsed since he has had any news of her whereabouts, in spite of his endeavors to find her, cannot be deemed guilty of the crime of bigamy, because there is no fraudulent intent which is one of the essential elements of the crime.[29] As gleaned from the Information in the RTC, the petitioner is charged with bigamy, a felony by dolo (deceit). Article 3, paragraph 2 of the Revised Penal Code provides that there is deceit when the act is performed with deliberate intent. Indeed, a felony cannot exist without intent. Since a felony by dolo is classified as an intentional felony, it is deemed voluntary.[30] Although the words with malice do not appear in Article 3 of the Revised Penal Code, such phrase is included in the word voluntary. [31] Malice is a mental state or condition prompting the doing of an overt act without legal excuse or justification from which another suffers injury.[32] When the act or omission defined by law as a felony is proved to have been done or committed by the accused, the law presumes it to have been intentional.[33] Indeed, it is a legal presumption of law that every man intends the natural or probable consequence of his voluntary act in the absence of proof to the contrary, and such presumption must prevail unless a reasonable doubt exists from a consideration of the whole evidence.[34] For one to be criminally liable for a felony by dolo, there must be a confluence of both an evil act and an evil intent. Actus non facit reum, nisi mens sit rea.[35] In the present case, the prosecution proved that the petitioner was married to Gaña in 1975, and such marriage was not judicially declared a nullity; hence, the marriage is presumed to subsist.[36] The prosecution also proved that the petitioner married the private complainant in 1996, long after the effectivity of the Family Code. The petitioner is presumed to have acted with malice or evil intent when he married the private complainant. As a general rule, mistake of fact or good faith of the accused is a valid defense in a prosecution for a felony by dolo; such defense negates malice or criminal intent. However, ignorance of the law is not an excuse because everyone is presumed to know the law. Ignorantia legis neminem excusat. It was the burden of the petitioner to prove his defense that when he married the private complainant in 1996, he was of the well-grounded belief that his first wife was already dead, as he had not heard from her for more than 20 years since 1975. He should have adduced in evidence a decision of a competent court declaring the presumptive death of his first wife as required by Article 349 of the Revised Penal Code, in relation to Article 41 of the Family Code. Such judicial declaration also constitutes proof that the petitioner acted in good faith, and would negate criminal intent on his part when he married the private complainant and, as a consequence, he could not be held guilty of bigamy in such case. The petitioner, however, failed to discharge his burden. The phrase or before the absent spouse has been declared presumptively dead by means of a judgment rendered on the proceedings in Article 349 of the Revised Penal Code was not an aggroupment of empty or useless words. The requirement for a judgment of the presumptive death of the absent spouse is for the benefit of the spouse present, as protection from the pains and the consequences of a second marriage, precisely because he/she could be charged and convicted of bigamy if the defense of good faith based on mere testimony is found incredible. The requirement of judicial declaration is also for the benefit of the State. Under Article II, Section 12 of the Constitution, the State shall protect and strengthen the family as a basic autonomous social institution. Marriage is a social institution of the highest importance. Public policy, good morals and the interest of society require that the marital relation should be surrounded with every safeguard and its severance only in the manner prescribed and the causes specified by law.[37] The laws regulating civil marriages are necessary to serve the interest, safety, good order, comfort or general welfare of the community and the parties can waive nothing essential to the validity of the proceedings. A civil marriage anchors an ordered society by encouraging stable relationships over transient ones; it enhances the welfare of the community.

In a real sense, there are three parties to every civil marriage; two willing spouses and an approving State. On marriage, the parties assume new relations to each other and the State touching nearly on every aspect of life and death. The consequences of an invalid marriage to the parties, to innocent parties and to society, are so serious that the law may well take means calculated to ensure the procurement of the most positive evidence of death of the first spouse or of the presumptive death of the absent spouse[38] after the lapse of the period provided for under the law. One such means is the requirement of the declaration by a competent court of the presumptive death of an absent spouse as proof that the present spouse contracts a subsequent marriage on a well-grounded belief of the death of the first spouse. Indeed, men readily believe what they wish to be true, is a maxim of the old jurists. To sustain a second marriage and to vacate a first because one of the parties believed the other to be dead would make the existence of the marital relation determinable, not by certain extrinsic facts, easily capable of forensic ascertainment and proof, but by the subjective condition of individuals.[39] Only with such proof can marriage be treated as so dissolved as to permit second marriages.[40] Thus, Article 349 of the Revised Penal Code has made the dissolution of marriage dependent not only upon the personal belief of parties, but upon certain objective facts easily capable of accurate judicial cognizance,[41] namely, a judgment of the presumptive death of the absent spouse. The petitioner s sole reliance on Article 390 of the Civil Code as basis for his acquittal for bigamy is misplaced. Articles 390 and 391 of the Civil Code provide Art. 390. After an absence of seven years, it being unknown whether or not, the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (1) (2) (3) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; A person in the armed forces who has taken part in war, and has been missing for four years; A person who has been in danger of death under other circumstances and his existence has not been known for four years.

The presumption of death of the spouse who had been absent for seven years, it being unknown whether or not the absentee still lives, is created by law and arises without any necessity of judicial declaration.[42] However, Article 41 of the Family Code, which amended the foregoing rules on presumptive death, reads: Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Court for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.[43]

With the effectivity of the Family Code,[44] the period of seven years under the first paragraph of Article 390 of the Civil Code was reduced to four consecutive years. Thus, before the spouse present may contract a subsequent marriage, he or she must institute summary proceedings for the declaration of the presumptive death of the absentee spouse,[45] without prejudice to the effect of the reappearance of the absentee spouse. As explained by this Court in Armas v. Calisterio:[46] In contrast, under the 1988 Family Code, in order that a subsequent bigamous marriage may exceptionally be considered valid, the following conditions must concur, viz.: (a) The prior spouse of the contracting party must have been absent for four consecutive years, or two years where there is danger of death under the circumstances stated in Article 391 of the Civil Code at the time of disappearance; (b) the spouse present has a well-founded belief that the absent spouse is already dead; and (c) there is, unlike the old rule, a judicial declaration of presumptive death of the absentee for which purpose the spouse present can institute a summary proceeding in court to ask for that declaration. The last condition is consistent and in consonance with the requirement of judicial intervention in subsequent marriages as so provided in Article 41, in relation to Article 40, of the Family Code. The Court rejects petitioner s contention that the requirement of instituting a petition for declaration of presumptive death under Article 41 of the Family Code is designed merely to enable the spouse present to contract a valid second marriage and not for the acquittal of one charged with bigamy. Such provision was designed to harmonize civil law and Article 349 of the Revised Penal Code, and put to rest the confusion spawned by the rulings of this Court and comments of eminent authorities on Criminal Law. As early as March 6, 1937, this Court ruled in Jones v. Hortiguela[47] that, for purposes of the marriage law, it is not necessary to have the former spouse judicially declared an absentee before the spouse present may contract a subsequent marriage. It held that the declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse had been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage.[48] In In Re Szatraw,[49] the Court declared that a judicial declaration that a person is presumptively dead, because he or she had been unheard from in seven years, being a presumption juris tantum only, subject to contrary proof, cannot reach the stage of finality or become final; and that proof of actual death of the person presumed dead being unheard from in seven years, would have to be made in another proceeding to have such particular fact finally determined. The Court ruled that if a judicial decree declaring a person presumptively dead because he or she had not been heard from in seven years cannot become final and executory even after the lapse of the reglementary period within which an appeal may be taken, for such presumption is still disputable and remains subject to contrary proof, then a petition for such a declaration is useless, unnecessary, superfluous and of no benefit to the petitioner. The Court stated that it should not waste its valuable time and be made to perform a superfluous and meaningless act.[50] The Court also took note that a petition for a declaration of the presumptive death of an absent spouse may even be made in collusion with the other spouse. In Lukban v. Republic of the Philippines,[51] the Court declared that the words proper proceedings in Article 349 of the Revised Penal Code can only refer to those authorized by law such as Articles 390 and 391 of the Civil Code which refer to the administration or settlement of the estate of a deceased person. In Gue v. Republic of the Philippines,[52] the Court rejected the contention of the petitioner therein that, under Article 390 of the Civil Code, the courts are authorized to declare the presumptive death of a person after an absence of seven years. The Court reiterated its rulings in Szatraw, Lukban and Jones. Former Chief Justice Ramon C. Aquino was of the view that the provision of Article 349 or before the absent spouse has been declared presumptively dead by means of a judgment reached in the proper proceedings is erroneous and should be considered as not written. He opined that such provision presupposes that, if the prior marriage has not been legally dissolved and the absent first spouse has not been declared presumptively dead in a proper court proceedings, the subsequent marriage is bigamous. He maintains that the supposition is not true.[53] A second

marriage is bigamous only when the circumstances in paragraphs 1 and 2 of Article 83 of the Civil Code are not present.[54] Former Senator Ambrosio Padilla was, likewise, of the view that Article 349 seems to require judicial decree of dissolution or judicial declaration of absence but even with such decree, a second marriage in good faith will not constitute bigamy. He posits that a second marriage, if not illegal, even if it be annullable, should not give rise to bigamy.[55] Former Justice Luis B. Reyes, on the other hand, was of the view that in the case of an absent spouse who could not yet be presumed dead according to the Civil Code, the spouse present cannot be charged and convicted of bigamy in case he/she contracts a second marriage.[56] The Committee tasked to prepare the Family Code proposed the amendments of Articles 390 and 391 of the Civil Code to conform to Article 349 of the Revised Penal Code, in that, in a case where a spouse is absent for the requisite period, the present spouse may contract a subsequent marriage only after securing a judgment declaring the presumptive death of the absent spouse to avoid being charged and convicted of bigamy; the present spouse will have to adduce evidence that he had a well-founded belief that the absent spouse was already dead.[57] Such judgment is proof of the good faith of the present spouse who contracted a subsequent marriage; thus, even if the present spouse is later charged with bigamy if the absentee spouse reappears, he cannot be convicted of the crime. As explained by former Justice Alicia Sempio-Diy: Such rulings, however, conflict with Art. 349 of the Revised Penal Code providing that the present spouse must first ask for a declaration of presumptive death of the absent spouse in order not to be guilty of bigamy in case he or she marries again. The above Article of the Family Code now clearly provides that for the purpose of the present spouse contracting a second marriage, he or she must file a summary proceeding as provided in the Code for the declaration of the presumptive death of the absentee, without prejudice to the latter s reappearance. This provision is intended to protect the present spouse from a criminal prosecution for bigamy under Art. 349 of the Revised Penal Code because with the judicial declaration that the missing spouses presumptively dead, the good faith of the present spouse in contracting a second marriage is already established.[58]

Of the same view is former Dean Ernesto L. Pineda (now Undersecretary of Justice) who wrote that things are now clarified. He says judicial declaration of presumptive death is now authorized for purposes of remarriage. The present spouse must institute a summary proceeding for declaration of presumptive death of the absentee, where the ordinary rules of procedure in trial will not be followed. Affidavits will suffice, with possible clarificatory examinations of affiants if the Judge finds it necessary for a full grasp of the facts. The judgment declaring an absentee as presumptively dead is without prejudice to the effect of reappearance of the said absentee. Dean Pineda further states that before, the weight of authority is that the clause before the absent spouse has been declared presumptively dead x x x should be disregarded because of Article 83, paragraph 3 of the Civil Code. With the new law, there is a need to institute a summary proceeding for the declaration of the presumptive death of the absentee, otherwise, there is bigamy.[59] According to Retired Supreme Court Justice Florenz D. Regalado, an eminent authority on Criminal Law, in some cases where an absentee spouse is believed to be dead, there must be a judicial declaration of presumptive death, which could then be made only in the proceedings for the settlement of his estate.[60] Before such declaration, it was held that the remarriage of the other spouse is bigamous even if done in good faith.[61] Justice Regalado opined that there were contrary views because of the ruling in Jones and the provisions of Article 83(2) of the Civil Code, which, however, appears to have been set to rest by Article 41 of the Family Code, which requires a summary hearing for the declaration of presumptive death of the absent spouse before the other spouse can remarry. Under Article 238 of the Family Code, a petition for a declaration of the presumptive death of an absent spouse under Article 41 of the Family Code may be filed under Articles 239 to 247 of the same Code.[62]

On the second issue, the petitioner, likewise, faults the trial court and the CA for awarding moral damages in favor of the private complainant. The petitioner maintains that moral damages may be awarded only in any of the cases provided in Article 2219 of the Civil Code, and bigamy is not one of them. The petitioner asserts that the appellate court failed to apply its ruling in People v. Bondoc,[63] where an award of moral damages for bigamy was disallowed. In any case, the petitioner maintains, the private complainant failed to adduce evidence to prove moral damages. The appellate court awarded moral damages to the private complainant on its finding that she adduced evidence to prove the same. The appellate court ruled that while bigamy is not included in those cases enumerated in Article 2219 of the Civil Code, it is not proscribed from awarding moral damages against the petitioner. The appellate court ruled that it is not bound by the following ruling in People v. Bondoc: ... Pero si en dichos asuntos se adjudicaron daños, ello se debió indedublamente porque el articulo 2219 del Código Civil de Filipinas autoriza la adjudicación de daños morales en los delitos de estupro, rapto, violación, adulterio o concubinato, y otros actos lascivos, sin incluir en esta enumeración el delito de bigamia. No existe, por consiguiente, base legal para adjudicar aquí los daños de P5,000.00 arriba mencionados.[64] The OSG posits that the findings and ruling of the CA are based on the evidence and the law. The OSG, likewise, avers that the CA was not bound by its ruling in People v. Rodeo. The Court rules against the petitioner. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant s wrongful act or omission.[65] An award for moral damages requires the confluence of the following conditions: first, there must be an injury, whether physical, mental or psychological, clearly sustained by the claimant; second, there must be culpable act or omission factually established; third, the wrongful act or omission of the defendant is the proximate cause of the injury sustained by the claimant; and fourth, the award of damages is predicated on any of the cases stated in Article 2219 or Article 2220 of the Civil Code.[66] Moral damages may be awarded in favor of the offended party only in criminal cases enumerated in Article 2219, paragraphs 1, 3, 4, 5 and 7 of the Civil Code and analogous cases, viz.: Art. 2219. Moral damages may be recovered in the following and analogous cases. (1) A criminal offense resulting in physical injuries; (2) Quasi-delicts causing physical injuries; (3) Seduction, abduction, rape, or other lascivious acts; (4) Adultery or concubinage; (5) Illegal or arbitrary detention or arrest; (6) Illegal search; (7) Libel, slander or any other form of defamation; (8) Malicious prosecution; (9) Acts mentioned in article 309; (10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30,

32, 34 and 35.

The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article, may also recover moral damages. The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in No. 9 of this article in the order named.

Thus, the law does not intend that moral damages should be awarded in all cases where the aggrieved party has suffered mental anguish, fright, moral anxieties, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury arising out of an act or omission of another, otherwise, there would not have been any reason for the inclusion of specific acts in Article 2219[67] and analogous cases (which refer to those cases bearing analogy or resemblance, corresponds to some others or resembling, in other respects, as in form, proportion, relation, etc.)[68] Indeed, bigamy is not one of those specifically mentioned in Article 2219 of the Civil Code in which the offender may be ordered to pay moral damages to the private complainant/offended party. Nevertheless, the petitioner is liable to the private complainant for moral damages under Article 2219 in relation to Articles 19, 20 and 21 of the Civil Code. According to Article 19, every person must, in the exercise of his rights and in the performance of his act with justice, give everyone his due, and observe honesty and good faith. This provision contains what is commonly referred to as the principle of abuse of rights, and sets certain standards which must be observed not only in the exercise of one s rights but also in the performance of one s duties. The standards are the following: act with justice; give everyone his due; and observe honesty and good faith. The elements for abuse of rights are: (a) there is a legal right or duty; (b) exercised in bad faith; and (c) for the sole intent of prejudicing or injuring another.[69] Article 20 speaks of the general sanctions of all other provisions of law which do not especially provide for its own sanction. When a right is exercised in a manner which does not conform to the standards set forth in the said provision and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be responsible.[70] If the provision does not provide a remedy for its violation, an action for damages under either Article 20 or Article 21 of the Civil Code would be proper. Article 20 provides that every person who, contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same. On the other hand, Article 21 provides that any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for damages. The latter provision is adopted to remedy the countless gaps in the statutes which leave so many victims of moral wrongs helpless, even though they have actually suffered material and moral injury should vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for human foresight to prove for specifically in the statutes. Whether or not the principle of abuse of rights has been violated resulting in damages under Article 20 or Article 21 of the Civil Code or other applicable provisions of law depends upon the circumstances of each case.[71] In the present case, the petitioner courted the private complainant and proposed to marry her. He assured her that he was single. He even brought his parents to the house of the private complainant where he and his parents made the same assurance that he was single. Thus, the private complainant agreed to marry the petitioner, who even stated in the certificate of marriage that he was single. She lived with the petitioner and dutifully performed her duties as his wife, believing all the while that he was her lawful husband. For two years or so until the petitioner heartlessly abandoned her, the private complainant had no inkling that he was already married to another before they were married. Thus, the private complainant was an innocent victim of the petitioner s chicanery and heartless deception, the fraud consisting not of a single act alone, but a continuous series of acts. Day by day, he maintained the appearance of being a lawful husband to the private complainant, who changed her status from a single woman to a married woman, lost the consortium, attributes and support of a single man she could have married lawfully and endured mental pain and humiliation, being bound to a man who it turned out was not her lawful husband.[72] The Court rules that the petitioner s collective acts of fraud and deceit before, during and after his marriage with the private complainant were willful, deliberate and with malice and caused injury to the latter. That she did not sustain any physical injuries is not a bar to an award for moral damages. Indeed, in Morris v. Macnab,[73] the New Jersey Supreme Court ruled: xxx The defendant cites authorities which indicate that, absent physical injuries, damages for shame, humiliation, and mental anguish are not recoverable where the actor is simply negligent. See

Prosser, supra, at p. 180; 2 Harper & James, Torts, 1031 (1956). But the authorities all recognize that where the wrong is willful rather than negligent, recovery may be had for the ordinary, natural, and proximate consequences though they consist of shame, humiliation, and mental anguish. See Spiegel v. Evergreen Cemetery Co., 117 NJL 90, 94, 186 A 585 (Sup. Ct. 1936); Kuzma v. Millinery Workers, etc., Local 24, 27 N.J. Super, 579, 591, 99 A.2d 833 (App. Div. 1953); Prosser, supra, at p. 38. Here the defendant s conduct was not merely negligent, but was willfully and maliciously wrongful. It was bound to result in shame, humiliation, and mental anguish for the plaintiff, and when such result did ensue the plaintiff became entitled not only to compensatory but also to punitive damages. See Spiegel v. Evergreen Cemetery Co., supra; Kuzma v Millinery Workers, etc., Local 24, supra. CF. Note, Exemplary Damages in the Law of Torts, 70 Harv. L. Rev. 517 (1957). The plaintiff testified that because of the defendant s bigamous marriage to her and the attendant publicity she not only was embarrassed and ashamed to go out but couldn t sleep but couldn t eat, had terrific headaches and lost quite a lot of weight. No just basis appears for judicial interference with the jury s reasonable allowance of $1,000 punitive damages on the first count. See Cabakov v. Thatcher, 37 N.J. Super 249, 117 A.2d 298 (App. Div.[74] 1955). The Court thus declares that the petitioner s acts are against public policy as they undermine and subvert the family as a social institution, good morals and the interest and general welfare of society. Because the private complainant was an innocent victim of the petitioner s perfidy, she is not barred from claiming moral damages. Besides, even considerations of public policy would not prevent her from recovery. As held in Jekshewitz v. Groswald:[75] Where a person is induced by the fraudulent representation of another to do an act which, in consequence of such misrepresentation, he believes to be neither illegal nor immoral, but which is in fact a criminal offense, he has a right of action against the person so inducing him for damages sustained by him in consequence of his having done such act. Burrows v. Rhodes, [1899] 1 Q.B. 816. In Cooper v. Cooper, 147 Mass. 370, 17 N.E. 892, 9 Am. St. Rep. 721, the court said that a false representation by the defendant that he was divorced from his former wife, whereby the plaintiff was induced to marry him, gave her a remedy in tort for deceit. It seems to have been assumed that the fact that she had unintentionally violated the law or innocently committed a crime by cohabiting with him would be no bar to the action, but rather that it might be a ground for enhancing her damages. The injury to the plaintiff was said to be in her being led by the promise to give the fellowship and assistance of a wife to one who was not her husband and to assume and act in a relation and condition that proved to be false and ignominious. Damages for such an injury were held to be recoverable in Sherman v. Rawson, 102 Mass. 395 and Kelley v. Riley, 106 Mass. 339, 343, 8 Am. Rep. 336. Furthermore, in the case at bar the plaintiff does not base her cause of action upon any transgression of the law by herself but upon the defendant s misrepresentation. The criminal relations which followed, innocently on her part, were but one of the incidental results of the defendant s fraud for which damages may be assessed. [7] Actions for deceit for fraudulently inducing a woman to enter into the marriage relation have been maintained in other jurisdictions. Sears v. Wegner, 150 Mich. 388, 114 N.W. 224, 17 L.R. A. (N.S.) 819; Larson v. McMillan, 99 Wash. 626, 170 P. 324; Blossom v. Barrett, 37 N.Y. 434, 97 Am. Dec. 747; Morril v. Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411. Considerations of public policy would not prevent recovery where the circumstances are such that the plaintiff was conscious of no moral turpitude, that her illegal action was induced solely by the defendant s misrepresentation, and that she does not base her cause of action upon any transgression of the law by herself. Such considerations

distinguish this case from cases in which the court has refused to lend its aid to the enforcement of a contract illegal on its face or to one who has consciously and voluntarily become a party to an illegal act upon which the cause of action is founded. Szadiwicz v. Cantor, 257 Mass. 518, 520, 154 N.E. 251, 49 A. L. R. 958.[76]

Considering the attendant circumstances of the case, the Court finds the award of P200,000.00 for moral damages to be just and reasonable. IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed decision of the Court of Appeals is AFFIRMED. Costs against the petitioner. SO ORDERED. ROMEO J. CALLEJO, SR. Associate Justice

NORMA A. ABDULLA, Petitioner,

G.R. NO. 150129 Present:

- versus PANGANIBAN, J., Chairman SANDOVAL-GUTIERREZ, CORONA, CARPIO MORALES, and GARCIA, JJ. Promulgated:

PEOPLE OF THE PHILIPPINES, Respondent.

April 6, 2005 x--------------------------------------------------------------------------------------DECISION GARCIA, J.:

Convicted by the Sandiganbayan[1] in its Crim. Case No. 23261 of the crime of illegal use of public funds defined and penalized under Article 220 of the Revised Penal Code, or more commonly known as technical malversation, appellant Norma A. Abdulla is now before this Court on petition for review under Rule 45. Along with Nenita Aguil and Mahmud Darkis, appellant was charged under an Information which pertinently reads: That on or about November, 1989 or sometime prior or subsequent thereto, in Jolo, Sulu, Philippines and within the jurisdiction of this Honorable Court, the above-named accused: NORMA A. ABDULLA and NENITA P. AGUIL, both public officers, being then the President and cashier, respectively, of the Sulu State College, and as such by reason of their positions and duties are accountable for public funds under their administration, while in the performance of their functions, conspiring and confederating with MAHMUD I. DARKIS, also a public officer, being then the Administrative Officer V of the said school, did then and there willfully, unlawfully and feloniously, without lawful authority, apply for the payment of wages of casuals, the amount of FORTY THOUSAND PESOS (P40,000.00), Philippine Currency, which amount was appropriated for the payment of the salary differentials of secondary school teachers of the said school, to the damage and prejudice of public service. CONTRARY TO LAW.

Appellant¶s co-accused, Nenita Aguil and Mahmud Darkis, were both acquitted. Only appellant was found guilty and sentenced by the Sandiganbayan in its decision[2] dated August 25, 2000 (promulgated on September 27,2000), as follows: WHEREFORE, premises considered, accused Mahmud Darkis and Nenita P. Aguil are hereby acquitted of the crime charged. The cash bond posted by each of the said accused for their provisional liberty are hereby ordered returned to each of them subject to the usual auditing and accounting procedures. Accused Norma Abdulla is hereby convicted of the crime charged and is hereby meted a fine of three thousand pesos, pursuant to the second paragraph of Article 220 of the Revised Penal Code. She

is further imposed the penalty of temporary special disqualification for a period of six (6) years. She shall also pay the costs of the suit. SO ORDERED.

Upon motion for reconsideration, the Sandiganbayan amended appellant¶s sentence by deleting the temporary special disqualification imposed upon her, thus: Premises considered, the decision of this Court dated August 25, 2000, is hereby amended to the effect that the penalty of temporary special disqualification for six (6) years is hereby cancelled and set aside. Hence, the last paragraph of said decision shall read as follows: Accused Abdulla is hereby convicted of the crime charged and is hereby meted a fine of three thousand pesos, pursuant to the second paragraph of Article 220 of the Revised Penal Code. She shall also pay the costs of the suit. SO ORDERED.[3]

Still dissatisfied, appellant, now before this Court, persistently pleas innocence of the crime charged. The record shows that the prosecution dispensed with the presentation of testimonial evidence and instead opted to mark in evidence the following exhibits: EXHIBITS A DESCRIPTION Audit Report which is denominated as Memorandum of Commission on Audit, Region IX, Zamboanga City, from the Office of the Special Audit Team, COA, dated May 8, 1992, consisting of nine (9) pages; Certified Xerox copy of a letter from the Department of Budget and Management through Secretary Guillermo N. Carague to the President of the Sulu State College dated October 30, 1989; Certified copy of the DBM Advice of Allotment for the Year 1989; The entry appearing in Exhibit C which reads: Purpose release partial funding for the conversion of 34 Secondary School Teacher positions to Instructor I items; Fund Source lump-sum appropriation authorized on page 370 of RA 6688 and the current savings under personal services; Manifestation filed by accused Norma Abdulla herself dated November 24, 1997 consisting of two (2) pages appearing on pages 225 to 226 of the record; Motion filed by the accused through Atty. Sandra Gopez dated February 9, 1998 found on pages 382-a and 382-b of the records of this case; and

B

C

C-1

D

E

F

Prosecution s Opposition to the motion marked as Exhibit E dated February 11, 1998, consisting of three (3) pages, appearing in pages 383 to 385 of the record.[4]

Thereafter, the prosecution immediately made its Formal Offer of Evidence, and, with the admission thereof by the court, rested its case. The defense proceeded to adduce its evidence by presenting four (4) witnesses, namely, accused Mahmud Darkis, who was the Administrative Officer of Sulu State College, Jolo, Sulu; accused Nenita Aguil, the Cashier of the same College; appellant Norma Abdulla herself, who was the College President; and Gerardo Concepcion, Jr., Director IV and Head of the Department of Budget and Management, Regional Office No. 9, Zamboanga City. The undisputed facts, as found by the Sandiganbayan itself: The evidence on record xxx show that the request for the conversion of thirty-four (34) secondary school teachers to Instructor I items of the Sulu State College, through its former president, accused Abdulla, was approved by the Department of Budget and Management (DBM); that consequent to the approval of the said request, was the allotment by the DBM of the partial funding for the purpose of paying the salary differentials of the said thirty-four (34) secondary school teachers in the amount of forty thousand pesos (P40,000.00) sourced from the lump sum appropriation authorized on page 370 of R.A. 6688 [should be page 396 of RA 6688 (General Appropriations Act January 1 December 31, 1989)] and the current savings under personal services of said school (Exhibits `B, `C and `C-1; Exhibit `18, pp. 32-35; tsn, hearing of September 22, 1998, pp. 6 to 25 and 26); that out of the thirty-four (34) secondary school teachers, only the six (6) teachers were entitled and paid salary differentials amounting to P8,370.00, as the twenty-eight (28) teachers, who were occupying Teacher III positions, were no longer entitled to salary differentials as they were already receiving the same salary rate as Instructor I (Exhibit `A, p. 4, par. 1; Exhibits `1 to `6, inclusive; Exhibit `14-A; tsn, hearing of September 22, 1998, pp. 6 to 8; tsn, hearing of September 23, 1998, pp. 10-11); and that the amount of P31,516.16, taken from the remaining balance of the P40,000.00 allotment, was used to pay the terminal leave benefits of the six (6) casuals (Exhibits `D and `E; Exhibits `7 to `12, inclusive; tsn, hearing of September 22, 1998, pp. 13 and 34; tsn, hearing of September 23, 1998, p. 13). Accused Abdulla was able to sufficiently justify the payment of the salary differentials of only six (6), out of the thirty-four (34) teachers, when she testified that out of the thirty-four (34) teachers, twenty-eight (28) were already holding the position of Secondary School Teacher III receiving the salary of Instructor I; and that the remaining six (6) were still holding Secondary Teacher II positions and therefore receiving a salary lower than that of Instructor I so they were paid salary differentials (tsn, hearing of September 23, 1998, pp. 8, 10 and 11). In fact, the notarized audit investigation report (Exhibit `A, p. 4, 1st par.) and the Joint Resolution of the Office of the Ombudsman, Mindanao (Exhibit `14-a ), also point that said act of the accused is justified.

In this recourse, appellant questions the judgment of conviction rendered against her, claiming that the Sandiganbayan erred: I XXX ON A QUESTION OF LAW IN INVOKING THE PRESUMPTION OF UNLAWFUL INTENT DESPITE EVIDENCE TO THE CONTRARY. II

XXX ON A QUESTION OF LAW IN HOLDING THAT THE PROSECUTION WAS ABLE TO PROVE THAT PETITIONER COMMITTED TECHNICAL MALVERSATION UNDER ARTICLE 220 OF THE REVISED PENAL CODE .

The Court grants the appeal. So precious to her is the constitutional right of presumption of innocence unless proven otherwise that appellant came all the way to this Court despite the fact that the sentence imposed upon her by the Sandiganbayan was merely a fine of three thousand pesos, with no imprisonment at all. And recognizing the primacy of the right, this Court, where doubt exists, has invariably resolved it in favor of an accused. In a judgment of acquittal in favor of two (2) accused charged of murder in People vs. Abujan,[5] the Court wrote: We are enraged by the shocking death suffered by the victim and we commiserate with her family. But with seeds of doubt planted in our minds by unexplained circumstances in this case, we are unable to accept the lower court s conclusion to convict appellants. We cannot in conscience accept the prosecution s evidence here as sufficient proof required to convict appellants of murder. Hence, here we must reckon with a dictum of the law, in dubilis reus est absolvendus. All doubts must be resolved in favor of the accused. Nowhere is this rule more compelling than in a case involving the death penalty for a truly humanitarian Court would rather set ten guilty men free than send one innocent man to the death row. Perforce, we must declare both appellants not guilty and set them free. Similarly, the Court had to acquit an accused charged of rape in People vs. De Jesus[6] on ground of reasonable doubt, to wit: With seeds of doubt planted in our minds by the conduct of proceedings on record, we are unable to accept the lower court s conclusion to convict appellant. His conviction is founded on the sole testimony of Agnes, but though a credible witness despite her mental retardation, she showed unnecessary dependence on her mother when identifying the father of her child. Maternal coaching taints her testimony. That her mother had to be ordered by the judge to go outside the courtroom impresses us as significant. We are unable to accept as sufficient the quantum of proof required to convict appellant of rape based on the alleged victim s sole testimony. Hence, here we must fall back on a truism of the law, in dubilis reus est absolvendus. All doubts must be resolved in favor of the accused. WHEREFORE, the assailed decision dated May 26, 2000, of the Regional Trial Court of Camiling, Tarlac, Branch 68, is REVERSED and SET ASIDE. Appellant RUBEN LUMIBAO is ACQUITTED of the charge of rape on reasonable doubt.

The Court¶s faithful adherence to the constitutional directive imposes upon it the imperative of closely scrutinizing the prosecution¶s evidence to assure itself that no innocent person is condemned and that conviction flows only from a moral certainty that guilt has been established by proof beyond reasonable doubt. In the words of People vs. Pascua[7]: Our findings in the case at bar should not create the mistaken impression that the testimonies of the prosecution witnesses should always be looked at with askance. What we are driving at is that every accused is presumed innocent at the onset of an indictment. But, it has often happened that at the commencement of a trial, people s minds, sometimes judges too, would have already passed sentence against the accused. An allegation, or even any testimony, that an act was done should never be hastily accepted as proof that it was really done. Proof must be closely examined under the lens of a judicial microscope and only proof beyond reasonable doubt must be allowed to convict. Here, that quantum of proof has not been satisfied.

We shall now assay appellant¶s guilt or innocence in the light of the foregoing crucibles. In her first assigned error, appellant contends that the prosecution failed to adduce evidence to prove criminal intent on her part. When she raised this issue in her Motion for Reconsideration before the Sandiganbayan, that court, invoking Section 5 (b), Rule 131 of the Rules of Court, ruled in a Resolution[8] promulgated on September 17, 2001, as follows: Anent the allegation of the movant/accused that good faith is a valid defense in a prosecution for malversation as it would negate criminal intent on the part of the accused which the prosecution failed to prove, attention is invited to pertinent law and rulings of the Supreme Court on the matter. Sec. 5(b) of the Rule 131, Rules of Court, provides, `That an unlawful act was done with an unlawful intent. Hence, dolo may be inferred from the unlawful act. In several cases (Tria, 17 Phil. 303; Ballesteros, 25 Phil. 634; Sia Tioan, 54 Phil. 52; Cueto, 38 Phil. 935; Cubelo, 106 Phil. 496), the Supreme Court ruled that `When it has been proven that the appellants committed the unlawful acts alleged, it is properly presumed that they were committed with full knowledge and with criminal intent, `and it is incumbent upon them to rebut such presumption. Further, the same court also ruled that when the law plainly forbids an act to be done, and it is done by a person, the law implies the guilty intent, although the offender was honestly mistaken as to the meaning of the law which he had violated (State vs. McBrayer, 98 NIC 619; Sing Cong Bieng and Co Kong, 30 Phil. 577, 580; Hermenigildo Bautista, CA 40 O.G. 5th Supp. 139). If the act is criminal, then criminal intent is presumed (Francisco y Martin, CA 53 O.G. 1450). In the case at bar, inasmuch as the prosecution had proved that a criminal act was committed by the accused under Article 220 of the Revised Penal Code, criminal intent was presumed. The accused did not present any evidence to prove that no such criminal intent was present when she committed the unlawful act of technical malversation. Hence, the presumption that the unlawful act of the accused was done with criminal intent had been satisfactorily proven by the prosecution (Sec. 5[b], Rule 131).

The Court must have to part ways with the Sandiganbayan in its reliance on Section 5 (b) of Rule 131 as basis for its imputation of criminal intent upon appellant. For sure, the procedural rule relied upon does not apply at all to this case. Indeed, clear it is from its very language that the disputable presumption of the existence of unlawful or criminal intent presupposes the commission of an unlawful act. Thus, intent to kill is presumed when the victim dies because the act of killing clearly constitutes an unlawful act. In People vs. Gemoya,[9] the Court held: The intent to kill is likewise presumed from the fact of death, unless the accused proves by convincing evidence that any of the justifying circumstances in Article 11 or any of the exempting circumstances in Article 12, both of the Revised Penal Code, is present.

In fact, in a Resolution penned by Justice Romeo Callejo, Sr. in People vs. Delim, [10] the Court en banc categorically stated: If the victim dies because of a deliberate act of the malefactor, intent to kill is conclusively presumed. (Emphasis supplied).

Similarly, intent to gain or animus lucrandi is presumed when one is found in possession of stolen goods precisely because the taking of another¶s property is an unlawful act. So it is that in People vs. Reyes,[11] the Court held:

Accused-appellant s contention that the animus lucrandi was not sufficiently established by the prosecution is devoid of merit. Animus lucrandi or intent to gain is an internal act which can be established through the overt acts of the offender. Although proof of motive for the crime is essential when the evidence of the robbery is circumstantial, intent to gain or animus lucrandi may be presumed from the furtive taking of useful property pertaining to another, unless special circumstances reveal a different intent on the part of the perpetrator. The intent to gain may be presumed from the proven unlawful taking. In the case at bar, the act of taking the victim s wristwatch by one of the accused Cergontes while accused-appellant Reyes poked a knife behind him sufficiently gave rise to the presumption.

The presumption of criminal intent will not, however, automatically apply to all charges of technical malversation because disbursement of public funds for public use is per se not an unlawful act. Here, appellant cannot be said to have committed an unlawful act when she paid the obligation of the Sulu State College to its employees in the form of terminal leave benefits such employees were entitled to under existing civil service laws. Thus, in a similar case,[12] the Court reversed a conviction for technical malversation of one who paid out the wages of laborers: There is no dispute that the money was spent for a public purpose payment of the wages of laborers working on various projects in the municipality. It is pertinent to note the high priority which laborers wages enjoy as claims against the employers funds and resources.

In the absence of any presumption of unlawful intent, the burden of proving by competent evidence that appellant¶s act of paying the terminal leave benefits of employees of the Sulu State College was done with criminal intent rests upon the prosecution. The Court notes the odd procedure which the prosecution took in discharging its undertaking to prove the guilt of appellant beyond reasonable doubt. As it is, the prosecution did not present any single witness at all, not even for the purpose of identifying and proving the authenticity of the documentary evidence on which it rested its case. The prosecution definitely failed to prove unlawful intent on the part of appellant. Settled is the rule that conviction should rest on the strength of evidence of the prosecution and not on the weakness of the defense. The weakness of the defense does not relieve it of this responsibility. And when the prosecution fails to discharge its burden of establishing the guilt of an accused, an accused need not even offer evidence in his behalf. A judgment of conviction must rest on nothing less than moral certainty. It is thus required that every circumstance favoring his innocence must be duly taken into account. The proof against him must survive the test of reason and the strongest suspicion must not be permitted to sway judgment. There must be moral certainty in an unprejudiced mind that it was accused-appellant who committed the crime. Absent this required quantum of evidence would mean exoneration for accused-appellant.[13]

The Sandiganbayan¶s improper reliance on Sec. 5(b) of Rule 131 does not save the day for the prosecution¶s deficiency in proving the existence of criminal intent nor could it ever tilt the scale from the constitutional presumption of innocence to that of guilt. In the absence of criminal intent, this Court has no basis to affirm appellant¶s conviction. x x x. This calls to mind the oft-repeated maxim `Actus non facit reum, nisi mens sit rea, which expounds a basic principle in criminal law that a crime is not committed if the mind of the person performing the act complained of be innocent. Thus, to constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a criminal intent. It is true that a presumption of criminal intent may arise from proof of the commission of a criminal act; and the general rule is that if it is proved that the accused committed the criminal act charged, it will be presumed that the act was

done with criminal intention and that it is for the accused to rebut this presumption. But it must be borne in mind that the act from which such presumption springs must be a criminal act In the case at bar, the act is not criminal. Neither can it be categorized as malum prohibitum, the mere commission of which makes the doer criminally liable even if he acted without evil intent.[14]

The second assigned error refers to the failure of the prosecution to prove the existence of all the essential elements of the crime of technical malversation defined in Article 220 of the Revised Penal Code, which are: 1. 2. 3. 4. That the offender is a public officer; That there is public fund or property under his administration; That such public fund or property has been appropriated by law or ordinance; That he applies the same to a public use other than that for which such fund or property has been appropriated by law or ordinance. [15]

Appellant contends that the prosecution was unable to prove the second and third elements of the crime charged. [16] She argued that the public funds in question, having been established to form part of savings, had therefore ceased to be appropriated by law or ordinance for any specific purpose. The Court finds merit in appellant¶s submission. As found by the Sandiganbayan no less, the amount of forty thousand pesos (P40,000.00) originally intended to cover the salary differentials of thirty four (34) secondary school teachers whose employment status were converted to Instructor I, were sourced from the ³lump sum appropriation´ authorized on page 370 (should be page 396) of R.A. 6688 and the current savings under personal services of said school.[17] The pertinent portions of RA 6688 are reproduced hereunder: K.2 Sulu State College For general administration, administration of personnel benefits, salary standardization, higher education and secondary education services, including locally-funded project as indicated hereunder .. P 17,994,000 New Appropriations, by Function/Project

Current Operating Expenditures ----------------------------------Maintenance and Other

Personal Services --------------------

Operating Expenses -------------------

Capital Outlays -------------------

Total -------------------

A. Functions 1. General Administrati on and Support Services 2. Administrati on of Personnel Benefits 3. Salary Standardizat ion 4. Higher Education Services 5. Secondary Education Services Total, Functions 608,000 608,000

P 1,605,000

P 1,196,000

P

P 2,801,000

57,000

57,000

1,967,000

577,000

2,544,000

2,636,000 -----------------6,873,000 ------------------

736,000 ----------------2,509,000 -----------------

3,372,000 ----------------9,382,000 -----------------

B. LocallyFunded Project 1. Acquisition and Improvemen ts of Lands, Construction , Rehabilitatio n or Renovation of Buildings and Structures, and Acquisition of

------------------

-----------------

8,612,000 ------------------

8,612,000 -----------------

Equipment Total New Appropriatio ns, Sulu State College

P 6,873,000 ==========

P 2,509,000 ==========

P 8,612,000 ==========

P17,994.000 ==========

xxx New Appropriations, by Object of Expenditures (In Thousand Pesos) A. Functions/Locally-Funded Project Current Operating Expenditures Personal Services

xxx

xxx

Total Salaries of Permanent Personnel Total Salaries and Wages of Contractual and Emergency Personnel Total Salaries and Wages

4,148 146

4,294

Other Compensation Honoraria and Commutable Allowances Cost of Living Allowances Employees Compensation Insurance Premiums Pag-I.B.I.G. Contributions Medicare Premiums Merit Increases Salary Standardization Bonuses and Incentives Others Total Other Compensation O1 Total Personal Services 185 1,292 44 35 18 20 37 511 437 2,579 6,873

The Court notes that there is no particular appropriation for salary differentials of secondary school teachers of the Sulu State College in RA 6688. The third element of the crime of technical malversation which requires that the public fund used should have been appropriated by law, is therefore absent. The authorization given by the Department of Budget and Management for the use of the forty thousand pesos (P40,000.00) allotment for payment of salary differentials of 34 secondary school teachers is not an ordinance or law contemplated in Article 220 of the Revised Penal Code. The Court has unequivocably ruled in Parungao vs. Sandiganbayan[18] that in the absence of a law or ordinance appropriating the public fund allegedly technically malversed (in that case, the absence of any law or ordinance appropriating the CRBI fund for the concreting of Barangay Jalung Road), the use thereof for another public purpose (there, for the payment of wages of laborers working on projects other than the Barangay Jalung Road) will not make the accused guilty of violation of Article 220 of the Revised Penal Code.

Appellant herein, who used the remainder of the forty thousand pesos (P40,000.00) released by the DBM for salary differentials, for the payment of the terminal leave benefits of other school teachers of the Sulu State College, cannot be held guilty of technical malversation in the absence, as here, of any provision in RA 6688 specifically appropriating said amount for payment of salary differentials only. In fine, the third and fourth elements of the crime defined in Article 220 of the Revised Penal Code are lacking in this case. Acquittal is thus in order. WHEREFORE, the petition is hereby GRANTED. Accordingly, the appealed decision and resolution of the Sandiganbayan in Criminal Case No. 23261 are REVERSED and SET ASIDE and appellant ACQUITTED of the crime charged against her. The cash bond posted by appellant for her provisional liberty, if any, is ordered returned to her subject to the usual auditing and accounting procedures. SO ORDERED.

CANCIO C. GARCIA Associate Justice

THIRD DIVISION [G.R. No. 180425, July 31, 2008]

FELIX RAIT, PETITIONER, VS. THE PEOPLE OF THE PHILIPPINES RESPONDENT. RESOLUTION NACHURA, J.: Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking the reversal of the Court of Appeals (CA) Decision[1] in CA-G.R. CR No. 23276 dated January 26, 2006 and its Resolution[2] dated October 10, 2007. The Court of Appeals upheld the Decision[3] of the Regional Trial Court (RTC) of Cagayan de Oro City, Branch 20, wherein petitioner Felix Rait was convicted of attempted rape. On November 18, 2003, AAA [4] asked permission from her parents to go to her brother's house in Nazareth Street to get her athletic pants. When she was there, her brother requested her to buy cigarettes from a nearby store. While in the store, petitioner Rait and one Janiter Pitago arrived. The two ordered beer and invited AAA to join them. She initially refused. However, when Aurora Raez, another neighbor, joined them, AAA was forced to drink beer. After drinking a glass of beer, she became drunk. When she was feeling weak, petitioner and his co-accused brought her out to 20th and 21 st Streets where the petitioner and his co-accused brought her to the side of the street and forcibly removed her pants and underwear. Petitioner then forcibly inserted his finger into her vagina. AAA tried to shout for help but petitioner covered her mouth while Pitago held her feet. Petitioner was on top of her and about to insert his penis into her vagina but she was able to kick both men and run away.[5] AAA then went to her brother's house and related the incident to him. Her brother went out to find petitioner. When AAA's brother did find petitioner, he tried to beat petitioner with a stick but the latter ran away. AAA and her brother then went home to their parents' house in Tambo, Macasandig, Cagayan de Oro City and told them what happened. At about 3:00 a.m. of November 19, AAA was accompanied by her brother and stepmother to Operation Kahusay ug Kalinaw to report the incident. They also went to Bombo Radyo to appeal for help in apprehending petitioner. From there, they went to the Provincial Hospital for AAA to undergo medical examination.[6] They then proceeded to the police station where the incident was recorded on the police blotter under Entry No. 8085.[7] On May 26, 1994, Rait and Pitago were charged in an Information, which reads: That on or about November 19, 1993, at 2:00 o'clock in the morning, more or less (sic) at Nazareth, 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 (sic), unlawfully and feloniously commence the commission of the crime of Rape, directly by overt acts, on the person of a [17-year-old] minor, [AAA], by then and there (sic), with force and against the latter's will while she was in a state of intoxication, touching her breasts, removing her panty, holding her feet (by Janiter Pitago) and lying on top of her (by Felix Rait), but did not perform all the acts of execution which would produce the crime of Rape, by reason of some cause other than his own spontaneous desistance, that in when (sic) offended party was able to kick them and the two ran away. Contrary to and in violation of Article 335 in relation to Article 6, of the Revised Penal Code. After trial, the RTC rendered a Decision, the dispositive portion of which reads: WHEREFORE, premises considered, this court hereby finds the accused Felix Rait guilty beyond reasonable doubt of the crime of Attempted Rape. The basic penalty for Attempted Rape under Article 335 is two degrees lower than Reclusion Perpetua or Prision Mayor in its full extent. Applying the Indeterminate Sentence Law, the accused is entitled to a penalty lower to (sic) Prision Mayor or that of Prision Correccional in its full extent, (sic) hence, accused FELIX RAIT is sentenced to an Indeterminate Sentence of PRISION CORRECCIONAL in its medium period as the minimum to PRISION MAYOR in its medium period as the maximum under the same law. The accused is entitled to his credit in full (sic) in his favor the period during which he was under preventive imprisonment pending litigation. Accused herein is further ordered to pay the complainant the sum of P20,000.00 pesos (sic) as indemnity for Attempted rape to the complainant (sic); P5,000.00 pesos (sic) for actual damages and expenses and to pay the costs.

SO ORDERED.[8] Petitioner appealed the judgment to the CA-Cagayan de Oro. Petitioner alleged that the RTC erred in: (1) giving credence to the prosecution witnesses despite their inconsistent, contradictory and incredible testimonies; (2) in not finding that petitioner was implicated in the case by reason of spite and vengeance; and (3) in finding petitioner guilty beyond reasonable doubt of the crime of attempted rape despite the failure of the prosecution to prove his guilt.[9] The CA denied the appeal and affirmed the trial court's ruling in all respects. [10] Petitioner's motion for reconsideration was likewise denied. Petitioner now comes before this Court on the following grounds: THE HONORABLE COURT OF APPEALS IN AFFIRMING THE DECISION OF THE TRIAL COURT CONVICTING THE PETITIONER FOR THE CRIME OF ATTEMPTED RAPE, DECIDED A QUESTION OF SUBSTANCE NOT IN ACCORD WITH THE LAW ON RAPE AND JURISPRUDENCE ON THE MATTER. THAT THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERROR IN [NOT DOWNGRADING] THE CRIME OF ATTEMPTED RAPE TO ACTS OF LASCIVIOUSNESS IF NOT THAT OF UNJUST VEXATION.[11] Petitioner argues that he should be acquitted of the crime of attempted rape. If he is to be found guilty of any offense, he puts forward the theory that based on this Court's ruling in Baleros, Jr. v. People,[12] he should be convicted only of unjust vexation. The petition is bereft of merit. We deny the Petition for Review. First, the findings of fact of the trial court, especially when affirmed by the CA, are conclusive upon this Court. In this case, the trial court found the acts imputed to petitioner to have been duly proven by the evidence beyond reasonable doubt. We are bound by such finding. On the strength of those proven facts, the next question is: what was the offense committed? Petitioner argues that this Court's ruling in Baleros is applicable to his case. In Baleros, accused was convicted of attempted rape. The CA sustained the conviction. Upon review, this Court reversed the conviction and found accused guilty of light coercion. The Court declared: Expounding on the nature of an attemptedfelony, the Court, speaking thru Justice Claro M. Recto in People vs. Lamahang, stated that " the attempt which the Penal Code punishes is that which has a logical connection to a particular, concrete offense; that which is the beginning of the execution of the offense by overt acts of the perpetrator, leading directly to its realization and consummation." Absent the unavoidable connection, like the logical and natural relation of the cause and its effect, as where the purpose of the offender in performing an act is not certain, meaning the nature of the act in relation to its objective is ambiguous, then what obtains is an attempt to commit an indeterminate offense, whichis not a juridical fact from the standpoint of the Penal Code. There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the present case. The next question that thus comes to the fore is whether or not the act of the petitioner, i.e., the pressing of a chemical-soaked cloth while on top of Malou, constitutes an overt act of rape. Overt or external act has been defined as some physical activity or deed , indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. Harmonizing the above definition to the facts of this case, it would be too strained to construe petitioner's act of pressing a chemical-soaked cloth in the mouth of Malou which would induce her to sleep as an overt act that will logically and necessarily ripen into rape. As it were, petitioner did not commence at all the performance of any act indicative of an intent or attempt to rape Malou. It cannot be overemphasized that petitioner was fully clothed and that there was no attempt on his part to undress Malou, let alone touch her private part. For what reason petitioner wanted the complainant unconscious, if that was really his immediate intention,is anybody's guess. The CA maintained that if the petitioner had no

intention to rape, he would not have lain on top of the complainant. Plodding on, the appellate court even anticipated the next step that the petitioner would have taken if the victim had been rendered unconscious. Wrote the CA: The shedding of the clothes, both of the attacker and his victim, will have to come later. His sexual organ is not yet exposed because his intended victim is still struggling. Where the intended victim is an educated woman already mature in age, it is very unlikely that a rapist would be in his naked glory before even starting his attack on her. He has to make her lose her guard first, or as in this case, her unconsciousness. At bottom then, the appellate court indulges in plain speculation, a practice disfavored under the rule on evidence in criminal cases. For, mere speculations and probabilities cannot substitute for proof required to establish the guilt of an accused beyond reasonable doubt. xxxx Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the premises, of any wrongdoing whatsoever. The information filed against petitioner contained an allegation that he forcefully covered the face of Malou with a piece of cloth soaked in chemical. And during the trial, Malou testified about the pressing against her face of the chemical-soaked cloth and having struggled after petitioner held her tightly and pinned her down. Verily, while the series of acts committed by the petitioner do not determine attempted rape, as earlier discussed, they constitute unjust vexation punishable as light coercion under the second paragraph of Article 287 of the Revised Penal Code. In the context of the constitutional provision assuring an accused of a crime the right to be informed of the nature and cause of the accusation, it cannot be said that petitioner was kept in the dark of the inculpatory acts for which he was proceeded against. To be sure, the information against petitioner contains sufficient details to enable him to make his defense. As aptly observedby then Justice Ramon C. Aquino, there is no need to allege malice, restraint or compulsion in information for unjust vexation. As it were, unjust vexation exists even without the element of restraint or compulsion for the reason that this term is broad enough to include any human conduct which, although not productive of some physical or material harm, would unjustly annoy or irritate an innocent person. The paramount question is whether the offender's act causes annoyance, irritation, torment, distress or disturbance to the mind of the person to whom it is directed. That Malou, after the incident in question, cried while relating to her classmates what she perceived to be a sexual attack and the fact that she filed a case for attempted rape proved beyond cavil that she was disturbed, if not distressed by the acts of petitioner.[13] We are not persuaded by petitioner's argument. Several facts attendant to this case distinguish it from Baleros, enough to convince us to arrive at a different conclusion. Unlike in Baleros, the acts of petitioner clearly establish his intention to commence the act of rape. Petitioner had already successfully removed the victim's clothing and had inserted his finger into her vagina. It is not empty speculation to conclude that these acts were preparatory to the act of raping her. Had it not been for the victim's strong physical resistance, petitioner's next step would, logically, be having carnal knowledge of the victim. The acts are clearly "the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made."[14] Under Article 6, in relation to Article 335, of the Revised Penal Code, rape is attempted when the offender commences the commission of rape directly by overt acts, and does not perform all the acts of execution which should produce the crime of rape by reason of some cause or accident other than his own spontaneous desistance. [15] This Court has held that an overt or external act is defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles nor by the spontaneous desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. The raison d'etre for the law requiring a direct overt act is that, in a majority of cases, the conduct of the accused consisting merely of acts of preparation has never ceased to be equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that must be lacking before the act becomes one which may be said to be a commencement of the commission of the crime, or an overt act or before any fragment of the crime itself has been committed, and this is so for the reason that so long as the equivocal quality remains, no one can say with certainty what the intent of the accused is. It is necessary that the overt act should have been the ultimate step towards the consummation of the design. It is sufficient if it was the "first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made." The act done need not constitute the last proximate one for completion. It is necessary, however, that the attempt must have a causal relation to the intended crime. In the words of Viada, the overt acts must have an immediate and necessary relation to the offense.[16] Thus, we find that petitioner was correctly convicted of attempted rape.

A final observation. We note that the trial court's Decision sentenced petitioner to a prison term without specifying the period this sentence covers. We will rectify this error even as we affirm petitioner's conviction. The penalty for attempted rape is prision mayor, or two degrees lower than reclusion perpetua, the penalty for consummated rape. Petitioner should be sentenced to an indeterminate sentence the minimum of which is in the range of prision correccional, or within six months and one day to six years, and the maximum of which is prision mayor medium, or within eight years and one day to ten years. In this case, the trial court sentenced petitioner to "an Indeterminate Sentence of PRISION CORRECCIONAL in its medium period, as the minimum, to PRISION MAYOR in its medium period, as the maximum." WHEREFORE, the foregoing premises considered, the Court of Appeals Decision in CA-G.R. CR No. 23276 dated January 26, 2006 and its Resolution dated October 10, 2007 affirming petitioner's conviction for ATTEMPTED RAPE are AFFIRMED WITH MODIFICATION . The petitioner is sentenced to an indeterminate sentence of two (2) years, four (4) months, and one (1) day of prision correccional medium, as minimum, to ten (10) years of prision mayor medium, as its maximum. In all other respects, the trial court's Decision is AFFIRMED. SO ORDERED. Ynares-Santiago, (Chairperson), Austria-Marinez, Chico-Nazario and Reyes,. JJ., concur.

G.R. No. 166326

January 25, 2006

ESMERALDO RIVERA, ISMAEL RIVERA, EDGARDO RIVERA, Petitioners, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION CALLEJO, SR., J.: This is a petition for review of the Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 27215 affirming, with modification, the Decision2 of the Regional Trial Court (RTC) of Cavite, Branch 90, in Criminal Case No. 6962-99, entitled People of the Philippines. v. Esmeraldo Rivera, et al. On April 12, 1999, an Information was filed in the RTC of Imus, Cavite, charging Esmeraldo, Ismael and Edgardo, all surnamed Rivera, of attempted murder. The accusatory portion of the Information reads: That on or about the 3rd day of May 1998, in the Municipality of Dasmariñas, Province of Cavite, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill, with treachery and evident premeditation, did then and there, wilfully, unlawfully, and feloniously attack, assault and hit with a piece of hollow block, one RUBEN RODIL who thereby sustained a non-mortal injury on his head and on the different parts of his body, the accused thus commenced the commission of the felony directly by overt acts, but failed to perform all the acts of execution which would produce the crime of Murder by reason of some causes other than their own spontaneous desistance, that is, the said Ruben Rodil was able to ran (sic) away and the timely response of the policemen, to his damage and prejudice. CONTRARY TO LAW.3 Ruben Rodil testified that he used to work as a taxi driver. He stopped driving in April 1998 after a would-be rapist threatened his life. He was even given a citation as a Bayaning Pilipino by the television network ABSCBN for saving the would-be victim. His wife eked out a living as a manicurist. They and their three children resided in Barangay San Isidro Labrador II, Dasmariñas, Cavite, near the house of Esmeraldo Rivera and his brothers Ismael and Edgardo. At noon of May 2, 1998, Ruben went to a nearby store to buy food. Edgardo mocked him for being jobless and dependent on his wife for support. Ruben resented the rebuke and hurled invectives at Edgardo. A heated exchange of words ensued. At about 7:30 p.m. the next day, a Sunday, Ruben went to the store to buy food and to look for his wife. His three-year-old daughter was with him. Momentarily, Esmeraldo and his two brothers, Ismael and Edgardo, emerged from their house and ganged up on Ruben. Esmeraldo and Ismael mauled Ruben with fist blows and he fell to the ground. In that helpless position, Edgardo hit Ruben three times with a hollow block on the parietal area. Esmeraldo and Ismael continued mauling Ruben. People who saw the incident shouted: "Awatin sila! Awatin sila!" Ruben felt dizzy but managed to stand up. Ismael threw a stone at him, hitting him at the back. When policemen on board a mobile car arrived, Esmeraldo, Ismael and Edgardo fled to their house. Ruben was brought to the hospital. His attending physician, Dr. Lamberto Cagingin, Jr., signed a medical certificate in which he declared that Ruben sustained lacerated wounds on the parietal area, cerebral concussion or contusion, hematoma on the left upper buttocks, multiple abrasions on the left shoulder and hematoma periorbital left.4 The doctor declared that the lacerated wound in the parietal area was slight and superficial and

would heal from one to seven days.5 The doctor prescribed medicine for Ruben¶s back pain, which he had to take for one month.6 Esmeraldo testified that at around 1:00 p.m. on May 3, 1998, Ruben arrived at his house and banged the gate. Ruben challenged him and his brothers to come out and fight. When he went out of the house and talked to Ruben, the latter punched him. They wrestled with each other. He fell to the ground. Edgardo arrived and pushed Ruben aside. His wife arrived, and he was pulled away and brought to their house. For his part, Ismael testified that he tried to pacify Ruben and his brother Esmeraldo, but Ruben grabbed him by the hair. He managed to free himself from Ruben and the latter fled. He went home afterwards. He did not see his brother Edgardo at the scene. Edgardo declared that at about 1:00 p.m. on May 3, 1998, he was throwing garbage in front of their house. Ruben arrived and he went inside the house to avoid a confrontation. Ruben banged the gate and ordered him to get out of their house and even threatened to shoot him. His brother Esmeraldo went out of their house and asked Ruben what the problem was. A fist fight ensued. Edgardo rushed out of the house and pushed Ruben aside. Ruben fell to the ground. When he stood up, he pulled at Edgardo¶s shirt and hair, and, in the process, Ruben¶s head hit the lamp post.7 On August 30, 2002, the trial court rendered judgment finding all the accused guilty beyond reasonable doubt of frustrated murder. The dispositive portion of the decision reads: WHEREFORE, premises considered, all the accused are found GUILTY beyond reasonable doubt and are sentenced to an imprisonment of six (6) years and one (1) day to eight (8) years of prision mayor as the prosecution has proved beyond reasonable doubt the culpability of the accused. Likewise, the accused are to pay, jointly and severally, civil indemnity to the private complainant in the amount of P30,000.00. SO ORDERED.8 The trial court gave no credence to the collective testimonies of the accused and their witnesses. The accused appealed to the CA, which rendered judgment on June 8, 2004 affirming, with modification, the appealed decision. The dispositive portion of the CA decision reads: WHEREFORE, the Decision of the Regional Trial Court of Imus, Cavite, Branch 90, is MODIFIED in that the appellants are convicted of ATTEMPTED MURDER and sentenced to an indeterminate penalty of 2 years of prision correccional as minimum to 6 years and 1 day of prision mayor as maximum. In all other respects, the decision appealed from is AFFIRMED. SO ORDERED.9 The accused, now petitioners, filed the instant petition for review on certiorari, alleging that the CA erred in affirming the RTC decision. They insist that the prosecution failed to prove that they had the intention to kill Ruben when they mauled and hit him with a hollow block. Petitioners aver that, based on the testimony of Dr. Cagingin, Ruben sustained only a superficial wound in the parietal area; hence, they should be held criminally liable for physical injuries only. Even if petitioners had the intent to kill Ruben, the prosecution failed to prove treachery; hence, they should be held guilty only of attempted homicide. On the other hand, the CA held that the prosecution was able to prove petitioners¶ intent to kill Ruben: On the first assigned error, intent to kill may be deduced from the nature of the wound inflicted and the kind of weapon used. Intent to kill was established by victim Ruben Rodil in his testimony as follows:

Q: And while you were being boxed by Esmeraldo and Bong, what happened next? A: When I was already lying [down] xxx, Dagol Rivera showed up with a piece of hollow block xxx and hit me thrice on the head, Sir. Q: And what about the two (2), what were they doing when you were hit with a hollow block by Dagol? A: I was already lying on the ground and they kept on boxing me while Dagol was hitting, Sir. As earlier stated by Dr. Cagingin, appellants could have killed the victim had the hollow block directly hit his head, and had the police not promptly intervened so that the brothers scampered away. When a wound is not sufficient to cause death, but intent to kill is evident, the crime is attempted. Intent to kill was shown by the fact that the (3) brothers helped each other maul the defenseless victim, and even after he had already fallen to the ground; that one of them even picked up a cement hollow block and proceeded to hit the victim on the head with it three times; and that it was only the arrival of the policemen that made the appellants desist from their concerted act of trying to kill Ruben Rodil.10 The Office of the Solicitor General (OSG), for its part, asserts that the decision of the CA is correct, thus: The evidence and testimonies of the prosecution witnesses defeat the presumption of innocence raised by petitioners. The crime has been clearly established with petitioners as the perpetrators. Their intent to kill is very evident and was established beyond reasonable doubt. Eyewitnesses to the crime, Alicia Vera Cruz and Lucita Villejo clearly and categorically declared that the victim Ruben Rodil was walking along St. Peter Avenue when he was suddenly boxed by Esmeraldo "Baby" Rivera. They further narrated that, soon thereafter, his two brothers Ismael and Edgardo "Dagul" Rivera, coming from St. Peter II, ganged up on the victim. Both Alicia Vera Cruz and Lucita Villejo recounted that they saw Edgardo "Dagul" Rivera pick up a hollow block and hit Ruben Rodil with it three (3) times. A careful review of their testimonies revealed the suddenness and unexpectedness of the attack of petitioners. In this case, the victim did not even have the slightest warning of the danger that lay ahead as he was carrying his three-year old daughter. He was caught off-guard by the assault of Esmeraldo "Baby" Rivera and the simultaneous attack of the two other petitioners. It was also established that the victim was hit by Edgardo "Dagul" Rivera, while he was lying on the ground and being mauled by the other petitioners. Petitioners could have killed the victim had he not managed to escape and had the police not promptly intervened. Petitioners also draw attention to the fact that the injury sustained by the victim was superficial and, thus, not life threatening. The nature of the injury does not negate the intent to kill. The Court of Appeals held: As earlier stated by Dr. Cagingin, appellants could have killed the victim had the hollow block directly hit his head, and had the police not promptly intervened so that the brothers scampered away. When a wound is not sufficient to cause death, but intent to kill is evident, the crime is attempted. Intent to kill was shown by the fact that the three (3) brothers helped each other maul the defenseless victim, and even after he had already fallen to the ground; that one of them picked up a cement hollow block and proceeded to hit the victim on the head with it three times; and that it was only the arrival of the policemen that made the appellants desist from their concerted act of trying to kill Ruben Rodil.11 The petition is denied for lack of merit. An essential element of murder and homicide, whether in their consummated, frustrated or attempted stage, is intent of the offenders to kill the victim immediately before or simultaneously with the infliction of injuries. Intent to kill is a specific intent which the prosecution must prove by direct or circumstantial evidence, while general criminal intent is presumed from the commission of a felony by dolo.

In People v. Delim,12 the Court declared that evidence to prove intent to kill in crimes against persons may consist, inter alia, in the means used by the malefactors, the nature, location and number of wounds sustained by the victim, the conduct of the malefactors before, at the time, or immediately after the killing of the victim, the circumstances under which the crime was committed and the motives of the accused. If the victim dies as a result of a deliberate act of the malefactors, intent to kill is presumed. In the present case, the prosecution mustered the requisite quantum of evidence to prove the intent of petitioners to kill Ruben. Esmeraldo and Ismael pummeled the victim with fist blows. Even as Ruben fell to the ground, unable to defend himself against the sudden and sustained assault of petitioners, Edgardo hit him three times with a hollow block. Edgardo tried to hit Ruben on the head, missed, but still managed to hit the victim only in the parietal area, resulting in a lacerated wound and cerebral contusions. That the head wounds sustained by the victim were merely superficial and could not have produced his death does not negate petitioners¶ criminal liability for attempted murder. Even if Edgardo did not hit the victim squarely on the head, petitioners are still criminally liable for attempted murder. The last paragraph of Article 6 of the Revised Penal Code defines an attempt to commit a felony, thus: There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. The essential elements of an attempted felony are as follows: 1. The offender commences the commission of the felony directly by overt acts; 2. He does not perform all the acts of execution which should produce the felony; 3. The offender¶s act be not stopped by his own spontaneous desistance; 4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous desistance.13 The first requisite of an attempted felony consists of two elements, namely: (1) That there be external acts; (2) Such external acts have direct connection with the crime intended to be committed.14 The Court in People v. Lizada15 elaborated on the concept of an overt or external act, thus: An overt or external act is defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles nor by the spontaneous desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. The raison d¶etre for the law requiring a direct overt act is that, in a majority of cases, the conduct of the accused consisting merely of acts of preparation has never ceased to be equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that must be lacking before the act becomes one which may be said to be a commencement of the commission of the crime, or an overt act or before any fragment of the crime itself has been committed, and this is so for the reason that so long as the equivocal quality remains, no one can say with certainty what the intent of the accused is. It is necessary that the overt act should have been the ultimate step

towards the consummation of the design. It is sufficient if it was the "first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made." The act done need not constitute the last proximate one for completion. It is necessary, however, that the attempt must have a causal relation to the intended crime. In the words of Viada, the overt acts must have an immediate and necessary relation to the offense.16 In the case at bar, petitioners, who acted in concert, commenced the felony of murder by mauling the victim and hitting him three times with a hollow block; they narrowly missed hitting the middle portion of his head. If Edgardo had done so, Ruben would surely have died. We reject petitioners¶ contention that the prosecution failed to prove treachery in the commission of the felony. Petitioners attacked the victim in a sudden and unexpected manner as Ruben was walking with his three-yearold daughter, impervious of the imminent peril to his life. He had no chance to defend himself and retaliate. He was overwhelmed by the synchronized assault of the three siblings. The essence of treachery is the sudden and unexpected attack on the victim.17 Even if the attack is frontal but is sudden and unexpected, giving no opportunity for the victim to repel it or defend himself, there would be treachery.18 Obviously, petitioners assaulted the victim because of the altercation between him and petitioner Edgardo Rivera a day before. There being conspiracy by and among petitioners, treachery is considered against all of them.19 The appellate court sentenced petitioners to suffer an indeterminate penalty of two (2) years of prision correccional in its minimum period, as minimum, to six years and one day of prision mayor in its maximum period, as maximum. This is erroneous. Under Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, the penalty for murder is reclusion perpetua to death. Since petitioners are guilty only of attempted murder, the penalty should be reduced by two degrees, conformably to Article 51 of the Revised Penal Code. Under paragraph 2 of Article 61, in relation to Article 71 of the Revised Penal Code, such a penalty is prision mayor. In the absence of any modifying circumstance in the commission of the felony (other than the qualifying circumstance of treachery), the maximum of the indeterminate penalty shall be taken from the medium period of prision mayor which has a range of from eight (8) years and one (1) day to ten (10) years. To determine the minimum of the indeterminate penalty, the penalty of prision mayor should be reduced by one degree, prision correccional, which has a range of six (6) months and one (1) day to six (6) years. Hence, petitioners should be sentenced to suffer an indeterminate penalty of from two (2) years of prision correccional in its minimum period, as minimum, to nine (9) years and four (4) months of prision mayor in its medium period, as maximum. IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The Decision of the Court of Appeals is AFFIRMED WITH THE MODIFICATION that petitioners are sentenced to suffer an indeterminate penalty of from two (2) years of prision correccional in its minimum period, as minimum, to nine (9) years and four (4) months of prision mayor in its medium period, as maximum. No costs. SO ORDERED. ROMEO J. CALLEJO, SR. Associate Justice

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 138033 February 22, 2006

RENATO BALEROS, JR., Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION GARCIA, J.: In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks the reversal of the January 13, 1999 decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 17271 as reiterated in its March 31, 1999 resolution2 denying petitioner¶s motion for reconsideration. The assailed decision affirmed an earlier decision of the Regional Trial Court (RTC) of Manila, Branch 2, in Criminal Case No. 91-101642 finding petitioner Renato Baleros, Jr. y David (CHITO) guilty of attempted rape.3 The accusatory portion of the information4 dated December 17, 1991 charging petitioner with attempted rape reads as follow: That about 1:50 in the morning or sometime thereafter of 13 December 1991 in Manila and within the jurisdiction of this Honorable Court, the above-named accused, by forcefully covering the face of Martina Lourdes T. Albano with a piece of cloth soaked in chemical with dizzying effects, did then and there willfully, unlawfully and feloniously commenced the commission of rape by lying on top of her with the intention to have carnal knowledge with her but was unable to perform all the acts of execution by reason of some cause or accident other than his own spontaneous desistance, said acts being committed against her will and consent to her damage and prejudice. Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded "Not Guilty."5 Thereafter, trial on the merits ensued. To prove its case, the prosecution presented thirteen (13) witnesses. Among them were private complainant Martina Lourdes Albano (Malou), and her classmates, Joseph Bernard Africa, Rommel Montes, Renato Alagadan and Christian Alcala. Their testimonies, as narrated in some detail in the decision of the CA, established the following facts: Like most of the tenants of the Celestial Marie Building (hereafter "Building", «) along A.H. Lacson Street, Sampaloc, Manila, MALOU, occupying Room 307 with her maid, Marvilou Bebania (Marvilou), was a medical student of the University of Sto. Tomas [UST] in 1991. In the evening of December 12, inside Unit 307, MALOU retired at around 10:30. Outside, right in front of her bedroom door, her maid, Marvilou, slept on a folding bed. Early morning of the following day, MALOU was awakened by the smell of chemical on a piece of cloth pressed on her face. She struggled but could not move. Somebody was pinning her down on the bed, holding

her tightly. She wanted to scream for help but the hands covering her mouth with cloth wet with chemicals were very tight (TSN, July 5, 1993, p. 33). Still, MALOU continued fighting off her attacker by kicking him until at last her right hand got free. With this «the opportunity presented itself when she was able to grab hold of his sex organ which she then squeezed. The man let her go and MALOU went straight to the bedroom door and roused Marvilou. xxx. Over the intercom, MALOU told S/G Ferolin that: "may pumasok sa kuarto ko pinagtangkaan ako" (Ibid., p. 8). Who it was she did not, however, know. The only thing she had made out during their struggle was the feel of her attacker¶s clothes and weight. His upper garment was of cotton material while that at the lower portion felt smooth and satin-like (Ibid, p. 17). He « was wearing a t-shirt and shorts « Original Records, p. 355). To Room 310 of the Building where her classmates Christian Alcala, Bernard Baptista, Lutgardo Acosta and Rommel Montes were staying, MALOU then proceeded to seek help. xxx. It was then when MALOU saw her bed « topsy-turvy. Her nightdress was stained with blue « (TSN, July 5, 1993, pp. 13-14). Aside from the window with grills which she had originally left opened, another window inside her bedroom was now open. Her attacker had fled from her room going through the left bedroom window (Ibid, Answers to Question number 5; Id), the one without iron grills which leads to Room 306 of the Building (TSN, July 5, 1993, p.6). xxx xxx xxx Further, MALOU testified that her relation with CHITO, who was her classmate «, was friendly until a week prior to the attack. CHITO confided his feelings for her, telling her: "Gusto kita, mahal kita" (TSN, July 5, 1993, p. 22) and she rejected him. «. (TSN, July 5, 1993, p. 22). Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the Building at 1:30 in the early morning of December 13, 1991, wearing a white t-shirt with ³µ«a marking on the front of the T-shirt T M and a Greek letter (sic) ¶ and below the quoted letters the word µ1946¶ µUST Medicine and Surgery¶´ (TSN, October 9, 1992, p. 9) and black shorts with the brand name ³Adidas´ (TSN, October 16, 1992, p.7) and requested permission to go up to Room 306. This Unit was being leased by Ansbert Co and at that time when CHITO was asking permission to enter, only Joseph Bernard Africa was in the room. He asked CHITO to produce the required written authorization and when CHITO could not, S/G Ferolin initially refused [but later, relented] «. S/G Ferolin made the following entry in the security guard¶s logbook «: "0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have (sic) a Request letter from our tenant of Unit #-306 Ansbert, but still I let him inter (sic) for the reason that he will be our tenant this coming summer break as he said so I let him sign it here (Sgd.) Baleros Renato Jr." (Exhibit "A-2") That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was corroborated by Joseph Bernard Africa (Joseph), «. xxx xxx xxx

Joseph was already inside Room 306 at 9 o¶clock in the evening of December 12, 1991. xxx by the time CHITO¶s knocking on the door woke him up, «. He was able to fix the time of CHITO¶s arrival at 1:30 A.M. because he glanced at the alarm clock beside the bed when he was awakened by the knock at the door «. Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt (Ibid., p. 23) when he let the latter in. «. It was at around 3 o¶clock in the morning of December 13, 1991 when he woke up again later to the sound of knocking at the door, this time, by Bernard Baptista (Bernard), «. xxx. With Bernard, Joseph then went to MALOU¶s room and thereat was shown by Bernard the open window through which the intruder supposedly passed. xxx xxx xxx Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was finally able to talk to CHITO «. He mentioned to the latter that something had happened and that they were not being allowed to get out of the building. Joseph also told CHITO to follow him to Room 310. CHITO did just that. He followed after Joseph to Unit 310, carrying his gray bag. xxx. None was in Room 310 so Joseph went to their yet another classmate, Renato Alagadan at Room 401 to see if the others were there. xxx. People from the CIS came by before 8 o¶clock that same morning «. They likewise invited CHITO and Joseph to go with them to Camp Crame where the two (2) were questioned «. An occupant of Room 310 « Christian Alcala (Christian) recalled in Court that in the afternoon of December 13, 1991, after their 3:30 class, he and his roommates, Bernard Baptista and Lutgardo Acosta (Gary) were called to the Building and were asked by the CIS people to look for anything not belonging to them in their Unit. While they were outside Room 310 talking with the authorities, Rommel Montes (Loyloy), another roommate of his, went inside to search the Unit. Loyloy found (TSN, January 12, 1993, p. 6) a gray "Khumbella" bag cloth type (Ibid, pp. 44-45) from inside their unit which they did not know was there and surrender the same to the investigators. When he saw the gray bag, Christian knew right away that it belonged to CHITO (Ibid, p. 55) as he had seen the latter usually bringing it to school inside the classroom (Ibid, p. 45). In their presence, the CIS opened the bag and pulled out its contents, among others, a white t-shirt with a Taunu (sic) Sigma Phi sign (Ibid, p. 7), a Black Adidas short pants, a handkerchief , three (3) white T-shirts, an underwear, and socks (Ibid). Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit "D-5"), and the handkerchief (Exhibit "D-3) to be CHITO¶s because CHITO had lent the very same one to him «. The t-shirt with CHITO¶s fraternity symbol, CHITO used to wear on weekends, and the handkerchief he saw CHITO used at least once in December. That CHITO left his bag inside Room 310 in the morning of December 13, 1991, was what consisted mainly of Renato R. Alagadan¶s testimony. xxx xxx xxx. The colored gray bag had a handle and a strap, was elongated to about 11/4 feet and appeared to be full but was closed with a zipper when Renato saw it then (Ibid, pp. 19-20). At that time Christian, Gary, Bernard, and Renato went back to Room 310 at around 3 to 4 o¶clock that afternoon along with some CIS agents, they saw the bag at the same place inside the bedroom where Renato had seen CHITO leave it. Not until later that night at past 9 o¶clock in Camp Crame, however, did Renato know what the contents of the bag were.

xxx xxx xxx. The forensic Chemist, Leslie Chambers, of the Philippine National Police Crime Laboratory in Camp Crame, having acted in response to the written request of PNP Superintendent Lucas M. Managuelod dated December 13, 1991, (Exhibit "C"; Original Records, p. 109.) conducted laboratory examination on the specimen collated and submitted«. Her Chemistry Report No. C-487-91 (Exhibit "E"; Ibid., p. 112) reads in part, thus: "SPECIMEN SUBMITTED: xxx xxx xxx: 1) One (1) small white plastic bag marked µUNIMART¶ with the following: xxx xxx xxx Exh µC¶ ± One (1) night dress colored salmon pink. 2) One (1) small white pl astic bag marked µJONAS¶ with the following: Exh. µD¶ ± One (1) printed handkerchief. Exh. µE¶ ± One (1) white T-shirt marked µTMZI¶. Exh. µF¶ ± One (1) black short (sic) marked µADIDAS¶. PURPOSE OF LABORATORY EXAMINATION: To determine the presence of volatime (sic), non-volatile and/or metallic poison on the above stated specimens. FINDINGS: Toxicological examination conducted on the above stated specimens gave the following results: Exhs. µC¶ and µD¶ ± POSITIVE to the test for chloroform, a volatile poison. Exhs. µA¶, µB¶, µE¶ and µF¶ are insufficient for further analysis. CONCLUSION: Exhs. µC¶ and µD¶ contain chloroform, a volatile poison."6 (Words in bracket added) For its part, the defense presented, as its main witness, the petitioner himself. He denied committing the crime imputed to him or making at any time amorous advances on Malou. Unfolding a different version of the incident, the defense sought to establish the following, as culled from the same decision of the appellate court: In December of 1991, CHITO was a medical student of « (UST). With Robert Chan and Alberto Leonardo, he was likewise a member of the Tau Sigma Phi Fraternity «. MALOU, «, was known to him being also a medical student at the UST at the time. From Room 306 of the Celestial Marie Building «, CHITO, wearing the prescribed barong tagalog over dark pants and leather shoes, arrived at their Fraternity house located at « Dos Castillas, Sampaloc, Manila at about

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

When they arrived at Camp Crame «, Col. Managuelod asked Joseph inside his room and talked to him for 30 minutes. xxx. No one interviewed CHITO to ask his side. xxx xxx xxx Both CHITO and Joseph were taken to Prosecutor Abesamis who later instructed them to undergo physical examination at the Camp Crame Hospital «.. At the hospital, « CHITO and Joseph were physically examined by a certain Dr. de Guzman who told them to strip «. xxx xxx xxx CHITO had left his gray bag containing, among others, the black striped short pants lent to him by Perla Duran (Exhibit "8-A", Original Records, p. 345), inside Room 310 at more/less 6:30 to 7 o¶clock in the morning of December 13, 1991. The next time that he saw it was between 8 to 9 P.M. when he and Joseph were brought before Fiscal Abesamis for inquest. One of the CIS agents had taken it there and it was not opened up in his presence but the contents of the bag were already laid out on the table of Fiscal Abesamis who, however, made no effort to ask CHITO if the items thereat were his. The black Adidas short pants purportedly found in the bag, CHITO denied putting in his gray bag which he had left at Room 306 in the early evening of December 12, 1991 before going to the fraternity house. He likewise disavowed placing said black Adidas short pants in his gray bag when he returned to the apartment at past 1:00 o¶clock in the early morning of December 13, 1991 (TSN, June 16, 1994, p. 24), nor when he dressed up at about 6 o¶clock in the morning to go to school and brought his gray bag to Room 310 (Ibid. 25). In fact, at any time on December 13, 1991, he was not aware that his gray bag ever contained any black short Adidas pants (Ibid). He only found out for the first time that the black Adidas short pants was alluded to be among the items inside his gray bag late in the afternoon, when he was in Camp Crame. Also taking the witness stand for the defense were petitioner¶s fraternity brothers, Alberto Leonardo and Robert Chan, who both testified being with CHITO in the December 12, 1991 party held in Dr. Duran¶s place at Greenhills, riding on the same car going to and coming from the party and dropping the petitioner off the Celestial Marie building after the party. Both were one in saying that CHITO was wearing a barong tagalog, with t-shirt inside, with short pants and leather shoes at the time they parted after the party.7 Rommel Montes, a tenant of Room 310 of the said building, also testified seeing CHITO between the hours of 1:30 and 2:00 A.M. of December 13, 1991 trying to open the door of Room 306 while clad in dark short pants and white barong tagalog. On the other hand, Perla Duran confirmed lending the petitioner the pair of short pants with stripes after the dunking party held in her father¶s house.8 Presented as defense expert witness was Carmelita Vargas, a forensic chemistry instructor whose actual demonstration in open court showed that chloroform, being volatile, evaporates in thirty (30) seconds without tearing nor staining the cloth on which it is applied.9 On December 14, 1994, the trial court rendered its decision10 convicting petitioner of attempted rape and accordingly sentencing him, thus: WHEREFORE, under cool reflection and prescinding from the foregoing, the Court finds the accused Renato D. Baleros, Jr., alias "Chito", guilty beyond reasonable doubt of the crime of attempted rape as principal and as charged in the information and hereby sentences him to suffer an imprisonment ranging from FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1) DAY of Prision Correctional, as Minimum to TEN (10) YEARS of Prision Mayor as Maximum, with all the accessory penalties provided by law, and for the accused to pay the offended party Martina Lourdes T. Albano, the sum of P50,000.00 by way of Moral and exemplary damages, plus reasonable Attorney¶s fees of P30,000.00, without subsidiary imprisonment in case of insolvency, and to pay the costs.

SO ORDERED. Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed as CA-G.R. CR No. 17271. As stated at the threshold hereof, the CA, in its assailed Decision dated January 13, 1999, affirmed the trial court¶s judgment of conviction, to wit: WHEREFORE, finding no basis in fact and in law to deviate from the findings of the court a quo, the decision appealed from is hereby AFFIRMED in toto. Costs against appellant. SO ORDERED.11 Petitioner moved for reconsideration, but his motion was denied by the CA in its equally assailed resolution of March 31, 1999.12 Petitioner is now with this Court, on the contention that the CA erred 1. In not finding that it is improbable for petitioner to have committed the attempted rape imputed to him, absent sufficient, competent and convincing evidence to prove the offense charged. 2. In convicting petitioner of attempted rape on the basis merely of circumstantial evidence since the prosecution failed to satisfy all the requisites for conviction based thereon. 3. In not finding that the circumstances it relied on to convict the petitioner are unreliable, inconclusive and contradictory. 4. In not finding that proof of motive is miserably wanting in his case. 5. In awarding damages in favor of the complainant despite the fact that the award was improper and unjustified absent any evidence to prove the same. 6. In failing to appreciate in his favor the constitutional presumption of innocence and that moral certainty has not been met, hence, he should be acquitted on the ground that the offense charged against him has not been proved beyond reasonable doubt. Otherwise stated, the basic issue in this case turns on the question on whether or not the CA erred in affirming the ruling of the RTC finding petitioner guilty beyond reasonable doubt of the crime of attempted rape. After a careful review of the facts and evidence on record in the light of applicable jurisprudence, the Court is disposed to rule for petitioner¶s acquittal, but not necessarily because there is no direct evidence pointing to him as the intruder holding a chemical-soaked cloth who pinned Malou down on the bed in the early morning of December 13, 1991. Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness to the very act of commission of the crime. There are two types of positive identification. A witness may identify a suspect or accused as the offender as an eyewitness to the very act of the commission of the crime. This constitutes direct evidence. There may, however, be instances where, although a witness may not have actually witnessed the very act of commission of a crime, he may still be able to positively identify a suspect or accused as the perpetrator of a crime as when, for instance, the latter is the person or one of the persons last seen with the victim immediately before and right after the commission of the crime. This is the second type of positive identification, which forms part of circumstantial evidence.13 In the absence of direct evidence, the prosecution

may resort to adducing circumstantial evidence to discharge its burden. Crimes are usually committed in secret and under condition where concealment is highly probable. If direct evidence is insisted under all circumstances, the prosecution of vicious felons who committed heinous crimes in secret or secluded places will be hard, if not well-nigh impossible, to prove.14 Section 4 of Rule 133 of the Rules of Court provides the conditions when circumstantial evidence may be sufficient for conviction. The provision reads: Sec. 4. Circumstantial evidence, when sufficient ± Circumstantial evidence is sufficient for conviction if ± a) There is more than one circumstance; b) The facts from which the inferences are derived are proven; and c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. In the present case, the positive identification of the petitioner forms part of circumstantial evidence, which, when taken together with the other pieces of evidence constituting an unbroken chain, leads to only fair and reasonable conclusion, which is that petitioner was the intruder in question. We quote with approval the CA¶s finding of the circumstantial evidence that led to the identity of the petitioner as such intruder: Chito was in the Building when the attack on MALOU took place. He had access to the room of MALOU as Room 307 where he slept the night over had a window which allowed ingress and egress to Room 306 where MALOU stayed. Not only the Building security guard, S/G Ferolin, but Joseph Bernard Africa as well confirmed that CHITO was wearing a black "Adidas" shorts and fraternity T-shirt when he arrived at the Building/Unit 307 at 1:30 in the morning of December 13, 1991. Though it was dark during their struggle, MALOU had made out the feel of her intruder¶s apparel to be something made of cotton material on top and shorts that felt satin-smooth on the bottom. From CHITO¶s bag which was found inside Room 310 at the very spot where witness Renato Alagadan saw CHITO leave it, were discovered the most incriminating evidence: the handkerchief stained with blue and wet with some kind of chemicals; a black "Adidas" satin short pants; and a white fraternity T-shirt, also stained with blue. A different witness, this time, Christian Alcala, identified these garments as belonging to CHITO. As it turned out, laboratory examination on these items and on the beddings and clothes worn by MALOU during the incident revealed that the handkerchief and MALOU¶s night dress both contained chloroform, a volatile poison which causes first degree burn exactly like what MALOU sustained on that part of her face where the chemicalsoaked cloth had been pressed. This brings the Court to the issue on whether the evidence adduced by the prosecution has established beyond reasonable doubt the guilt of the petitioner for the crime of attempted rape. The Solicitor General maintained that petitioner, by pressing on Malou¶s face the piece of cloth soaked in chemical while holding her body tightly under the weight of his own, had commenced the performance of an act indicative of an intent or attempt to rape the victim. It is argued that petitioner¶s actuation thus described is an overt act contemplated under the law, for there can not be any other logical conclusion other than that the petitioner intended to ravish Malou after he attempted to put her to an induced sleep. The Solicitor General, echoing what the CA said, adds that if petitioner¶s intention was otherwise, he would not have lain on top of the victim.15

Under Article 335 of the Revised Penal Code, rape is committed by a man who has carnal knowledge or intercourse with a woman under any of the following circumstances: (1) By using force or intimidation; (2) When the woman is deprived of reason or otherwise unconscious; and (3) When the woman is under twelve years of age or is demented. Under Article 6, in relation to the aforementioned article of the same code, rape is attempted when the offender commences the commission of rape directly by overt acts and does not perform all the acts of execution which should produce the crime of rape by reason of some cause or accident other than his own spontaneous desistance.16 Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro M. Recto in People vs. Lamahang,17 stated that "the attempt which the Penal Code punishes is that which has a logical connection to a particular, concrete offense; that which is the beginning of the execution of the offense by overt acts of the perpetrator, leading directly to its realization and consummation." Absent the unavoidable connection, like the logical and natural relation of the cause and its effect, as where the purpose of the offender in performing an act is not certain, meaning the nature of the act in relation to its objective is ambiguous, then what obtains is an attempt to commit an indeterminate offense, which is not a juridical fact from the standpoint of the Penal Code.18 There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the present case. The next question that thus comes to the fore is whether or not the act of the petitioner, i.e., the pressing of a chemical-soaked cloth while on top of Malou, constitutes an overt act of rape.1avvphil.net Overt or external act has been defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense.19 Harmonizing the above definition to the facts of this case, it would be too strained to construe petitioner's act of pressing a chemical-soaked cloth in the mouth of Malou which would induce her to sleep as an overt act that will logically and necessarily ripen into rape. As it were, petitioner did not commence at all the performance of any act indicative of an intent or attempt to rape Malou. It cannot be overemphasized that petitioner was fully clothed and that there was no attempt on his part to undress Malou, let alone touch her private part. For what reason petitioner wanted the complainant unconscious, if that was really his immediate intention, is anybody¶s guess. The CA maintained that if the petitioner had no intention to rape, he would not have lain on top of the complainant. Plodding on, the appellate court even anticipated the next step that the petitioner would have taken if the victim had been rendered unconscious. Wrote the CA: The shedding of the clothes, both of the attacker and his victim, will have to come later. His sexual organ is not yet exposed because his intended victim is still struggling. Where the intended victim is an educated woman already mature in age, it is very unlikely that a rapist would be in his naked glory before even starting his attack on her. He has to make her lose her guard first, or as in this case, her unconsciousness.20 At bottom then, the appellate court indulges in plain speculation, a practice disfavored under the rule on evidence in criminal cases. For, mere speculations and probabilities cannot substitute for proof required to establish the guilt of an accused beyond reasonable doubt.21 In Perez vs. Court of Appeals,22 the Court acquitted therein petitioner of the crime of attempted rape, pointing out that: xxx. In the crime of rape, penetration is an essential act of execution to produce the felony. Thus, for there to be an attempted rape, the accused must have commenced the act of penetrating his sexual organ to the vagina of the victim but for some cause or accident other than his own spontaneous desistance, the penetration, however, slight, is not completed.

xxx xxx xxx Petitioner¶s act of lying on top of the complainant, embracing and kissing her, mashing her breasts, inserting his hand inside her panty and touching her sexual organ, while admittedly obscene and detestable acts, do not constitute attempted rape absent any showing that petitioner actually commenced to force his penis into the complainant¶s sexual organ. xxx. Likewise in People vs. Pancho,23 the Court held: xxx, appellant was merely holding complainant¶s feet when his Tito Onio arrived at the alleged locus criminis. Thus, it would be stretching to the extreme our credulity if we were to conclude that mere holding of the feet is attempted rape. Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the premises, of any wrongdoing whatsoever. The information filed against petitioner contained an allegation that he forcefully covered the face of Malou with a piece of cloth soaked in chemical. And during the trial, Malou testified about the pressing against her face of the chemical-soaked cloth and having struggled after petitioner held her tightly and pinned her down. Verily, while the series of acts committed by the petitioner do not determine attempted rape, as earlier discussed, they constitute unjust vexation punishable as light coercion under the second paragraph of Article 287 of the Revised Penal Code. In the context of the constitutional provision assuring an accused of a crime the right to be informed of the nature and cause of the accusation,24 it cannot be said that petitioner was kept in the dark of the inculpatory acts for which he was proceeded against. To be sure, the information against petitioner contains sufficient details to enable him to make his defense. As aptly observed by then Justice Ramon C. Aquino, there is no need to allege malice, restraint or compulsion in an information for unjust vexation. As it were, unjust vexation exists even without the element of restraint or compulsion for the reason that this term is broad enough to include any human conduct which, although not productive of some physical or material harm, would unjustly annoy or irritate an innocent person.25 The paramount question is whether the offender¶s act causes annoyance, irritation, torment, distress or disturbance to the mind of the person to whom it is directed.26 That Malou, after the incident in question, cried while relating to her classmates what she perceived to be a sexual attack and the fact that she filed a case for attempted rape proved beyond cavil that she was disturbed, if not distressed by the acts of petitioner. The penalty for coercion falling under the second paragraph of Article 287 of the Revised Penal Code is arresto menor or a fine ranging from P5.00 to P200.00 or both. WHEREFORE, the assailed Decision of the Court of Appeals affirming that of the Regional Trial Court of Manila, is hereby REVERSED and SET ASIDE and a new one entered ACQUITTING petitioner Renato D. Baleros, Jr. of the charge for attempted rape. Petitioner, however, is adjudged GUILTY of light coercion and is accordingly sentenced to 30 days of arresto menor and to pay a fine of P200.00, with the accessory penalties thereof and to pay the costs. SO ORDERED. CANCIO C. GARCIA Associate Justice

G.R. No. 128508 February 1, 1999 DANIEL G. FAJARDO, petitioner, vs. COURT OF APPEALS, HON. FLORENTINO P. PEDRONIO, in his capacity as Presiding Judge, Regional Trial Court, Branch 31, Iloilo City; PEOPLE OF THE PHILIPPINES and STATION COMMANDER OF ILOILO CITY, respondent.

PARDO, J.: The case is an appeal via certiorari taken by petitioner from a decision of the Court of Appeals that denied due course to his motion for probation in Criminal Case No. 14196 of the Regional Trial Court, Branch 31, Iloilo City, arising from his conviction of violation of Batas Pambansa Bilang 22, for which he was sentenced to imprisonment of eight (8) months. We deny the petition. On May 26, 1988, the Regional Trial Court, Branch 33, Iloilo City, convicted petitioner of violation of Batas Pambansa Bilang 22, and sentenced him to suffer the penalty of eight (8) months imprisonment and to pay the costs, in Criminal Case No. 14196. He appealed to the Court of Appeals. 1 By decision promulgated on February 27, 1990, the Court of Appeals affirmed the conviction. On August 20, 1990, the Supreme Court denied a petition for review on certiorari of the conviction. 2 Upon the remand of the record to the lower court, on June 2, 1995, petitioner filed a motion for probation contending that he was eligible for probation because at the time he committed the offense in 1981, an accused who had appealed his conviction was still qualified to apply for probation and that the law that barred an application for probation of an accused who had interposed an appeal was ex post facto in its application, and, hence, not applicable to him. On January 5, 1996, the trial court denied petitioner's motion for probation. On July 29, 1996, petitioner filed with the Court of Appeals a petition for certiorari to annul the lower court's denial of his application for probation. 3 On November 12, 1996, the Court of Appeals denied due course to the petition. 4 Hence, this appeal. 5 At issue in this case is whether petitioner could qualify to apply for probation under Presidential Decree No. 968 since he had appealed from his conviction in 1988, after Presidential Decree No. 1990 amending Presidential Decree No. 968, became effective in 1986, providing that "no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction." 6 Petitioner maintains the view that Presidential Decree No. 1990, issued on October 5, 1985, is null and void on the ground that at that time President Ferdinand E. Marcos could no longer exercise legislative powers as the Batasan Pambansa was functioning and exercising sole legislative powers. The contention is without merit. At that time, President Marcos was vested with legislative powers concurrently with the Batasan Pambansa. 7 Consequently, Presidential Decree No. 1990, is valid. Presidential Decree No. 1990, enacted on October 5, 1985, "was printed in Volume 81 of the Official Gazette dated December 30, 1985 but said issue was released for circulation only on July 1, 1986; hence, P D 1990 became effective after fifteen (15) days from July 1, 1986, in accordance with Article 2 of the Civil Code, or on July 16, 1986." 8 It is not ex post facto in its application.

The law applies only to accused convicted after its effectivity. 9 An ex post facto law is one that punishes an act as a crime which was innocent at the time of its commission. 10 Presidential Decree No. 1990, like the Probation Law that it amends, is not penal in character. 11 It may not be considered as an ex post facto law. 12 At the time of the commission of the offense charged²violation of Batas Pambansa Bilang 22²in 1981, petitioner could have appealed if convicted and still availed himself of probation. However, petitioner was convicted on May 26, 1988, and he appealed. At that time, petitioner no longer had the option to appeal and still apply for probation if unsuccessful in the appeal. 13 Presidential Decree No. 1990 was then in full effect. Hence, he could no longer apply for probation since he had appealed. On October 13, 1997, the Solicitor General 14 submitted a manifestation positing the view that petitioner's application for probation may still be considered because when petitioner committed the offense in 1981, he could avail himself of probation since the law as it stood at that time provided that an accused convicted of a crime may apply for probation even if he had appealed the conviction. 15 We do not share his view. The case he cited is a Court of Appeals decision, and, hence, not a precedent. What is more, it is inapplicable because there, the accused's conviction became final on October 14, 1985. Presidential Decree No. 1990 although enacted on October 5, 1985, was published in the Official Gazette on December 30, 1985, 16 and, hence, was not yet applicable at the time the accused was finally convicted. Regrettably, the Solicitor General has cited a Court of Appeals decision that is inapplicable to this case because the facts were not similar. We find it unnecessary to resolve the other issues that petitioner has raised questioning the constitutionality and wisdom of Presidential Decree No. 1990, amending the probation law. WHEREFORE, the Court DENIES the petition for review on certiorari of the decision of the Court of Appeals in CA-G.R. SP No. 41447. Costs against petitioner. SO ORDERED. Davide, Jr., C.J., Melo and Martinez, JJ., concur.

MICHAEL PADUA, Petitioner,

G.R. No. 168546

Present QUISUMBING, J., Chairperson, CARPIO MORALES, - versus TINGA, VELASCO, JR., and BRION, JJ.

PEOPLE OF THE PHILIPPINES, Respondent.

Promulgated: July 23, 2008

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION QUISUMBING, J.:

This petition for review assails the Decision dated April 19, 2005 and Resolution dated June 14, 2005, of the Court of Appeals in CA-G.R. SP No. 86977 which had respectively dismissed Michael Padua¶s petition for certiorari and denied his motion for reconsideration. Padua¶s petition for certiorari before the Court of Appeals assailed the Orders dated May 11, 2004 and July 28, 2004 of the Regional Trial Court (RTC), Branch 168, Pasig City, which had denied his petition for probation. The facts, culled from the records, are as follows: On June 16, 2003, petitioner Michael Padua and Edgar Allan Ubalde were charged before the RTC, Branch 168, Pasig City of violating Section 5, Article II of Republic Act No. 9165, otherwise known as the ³Comprehensive Dangerous Drugs Act of 2002,´ for selling dangerous drugs. The Information reads: The Prosecution, through the undersigned Public Prosecutor, charges Edgar Allan Ubalde y Velchez a.k.a. ³Allan´ and Michael Padua y Tordel a.k.a. ³Mike´, with the crime of violation of Sec.

5, Art. II, Republic Act No. 9165 in relation to R.A. [No.] 8369, Sec. 5 par. (a) and (i), committed as follows: On or about June 6, 2003, in Pasig City, and within the jurisdiction of this Honorable Court, the accused, Edgar Allan Ubalde y Velchez and Michael Padua y Tordel, a minor, seventeen (17) years old, conspiring and confederating together and both of them mutually helping and aiding one another, not being lawfully authorized to sell any dangerous drug, did then and there willfully, unlawfully and feloniously sell, deliver and give away to PO1 Roland A. Panis, a police poseur-buyer, one (1) folded newsprint containing 4.86 grams of dried marijuana fruiting tops, which was found positive to the tests for marijuana, a dangerous drug, in violation of the said law. Contrary to law. When arraigned on October 13, 2003, Padua, assisted by his counsel de oficio, entered a plea of not guilty. During the pre-trial conference on February 2, 2004, however, Padua¶s counsel manifested that his client was willing to withdraw his plea of not guilty and enter a plea of guilty to avail of the benefits granted to first-time offenders under Section 70 of Rep. Act No. 9165. The prosecutor interposed no objection. Thus, the RTC on the same date issued an Order stating that the former plea of Padua of not guilty was considered withdrawn. Padua was re-arraigned and pleaded guilty. Hence, in a Decision dated February 6, 2004, the RTC found Padua guilty of the crime charged: In view of the foregoing, the Court finds accused Michael Padua y Tordel guilty of [v]iolation of Sec. 5 Art. II of R.A. No. 9165 in relation to R.A. No. 8369 Sec. 5 par. (a) and (i) thereof, and therefore, sentences him to suffer an indeterminate sentence of six (6) years and one (1) day of Prision Mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum and a fine of Five Hundred Thousand Pesos (P500,000.00). No subsidiary imprisonment, however, shall be imposed should [the] accused fail to pay the fine pursuant to Art. 39 par. 3 of the Revised Penal Code. SO ORDERED. Padua subsequently filed a Petition for Probation dated February 10, 2004 alleging that he is a minor and a firsttime offender who desires to avail of the benefits of probation under Presidential Decree No. 968 (P.D. No. 968), otherwise known as ³The Probation Law of 1976´ and Section 70 of Rep. Act No. 9165. He further alleged that he possesses all the qualifications and none of the disqualifications under the said laws. The RTC in an Order dated February 10, 2004 directed the Probation Officer of Pasig City to conduct a PostSentence Investigation and submit a report and recommendation within 60 days from receipt of the order. The City Prosecutor was also directed to submit his comment on the said petition within five days from receipt of the order. On April 6, 2004, Chief Probation and Parole Officer Josefina J. Pasana submitted a Post-Sentence Investigation Report to the RTC recommending that Padua be placed on probation.

However, on May 11, 2004, public respondent Pairing Judge Agnes Reyes-Carpio issued an Order denying the Petition for Probation on the ground that under Section 24 of Rep. Act No. 9165, any person convicted of drug trafficking cannot avail of the privilege granted by the Probation Law. The court ruled thus: Before this Court now is the Post-Sentence Investigation Report (PSIR) on minor Michael Padua y Tordel prepared by Senior Parole and Probation Officer Teodoro Villaverde and submitted by the Chief of the Pasig City Parole and Probation Office, Josefina J. Pasana. In the aforesaid PSIR, Senior PPO Teodoro Villaverde recommended that minor Michael Padua y Tordel be placed on probation, anchoring his recommendation on Articles 189 and 192 of P.D. 603, otherwise known as the Child and Welfare Code, as amended, which deal with the suspension of sentence and commitment of youthful offender. Such articles, therefore, do not find application in this case, the matter before the Court being an application for probation by minor Michael Padua y Tordel and not the suspension of his sentence. On the other hand, Section 70 is under Article VIII of R.A. 9165 which deals with the Program for Treatment and Rehabilitation of Drug Dependents. Sections 54 to 76, all under Article VIII of R.A. 9165 specifically refer to violations of either Section 15 or Section 11. Nowhere in Article VIII was [v]iolation of Section 5 ever mentioned. More importantly, while the provisions of R.A. 9165, particularly Section 70 thereof deals with Probation or Community Service for First- Time Minor Offender in Lieu of Imprisonment, the Court is of the view and so holds that minor Michael Padua y Tordel who was charged and convicted of violating Section 5, Article II, R.A. 9165, cannot avail of probation under said section in view of the provision of Section 24 which is hereunder quoted: ³Sec. 24. Non-Applicability of the Probation Law for Drug Traffickers and Pushers. ± Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, cannot avail of the privilege granted by the Probation Law or Presidential Decree No. 968, as amended.´ (underlining supplied) WHEREFORE, premises considered, the Petition for Probation filed by Michael Padua y Tord[e]l should be, as it is hereby DENIED. SO ORDERED. Padua filed a motion for reconsideration of the order but the same was denied on July 28, 2004. He filed a petition for certiorari under Rule 65 with the Court of Appeals assailing the order, but the Court of Appeals, in a Decision dated April 19, 2005, dismissed his petition. The dispositive portion of the decision reads: WHEREFORE, in view of the foregoing, the petition is hereby DENIED for lack of merit and ordered DISMISSED. SO ORDERED. Padua filed a motion for reconsideration of the Court of Appeals decision but it was denied. Hence, this petition where he raises the following issues: I. WHETHER OR NOT THE COURT OF APPEALS ERRED IN AFFIRMING THE DENIAL OF THE PETITION FOR PROBATION WHICH DEPRIVED PETITIONER¶S RIGHT AS A MINOR UNDER

ADMINISTRATIVE ORDER NO. [02-1-18-SC] OTHERWISE KNOWN AS [THE] RULE ON JUVENILES IN CONFLICT WITH THE LAW. II. WHETHER OR NOT [THE] ACCUSED[¶S] RIGHT [TO BE RELEASED UNDER RECOGNIZANCE] HAS BEEN VIOLATED OR DEPRIVED IN THE LIGHT OF R.A. 9344 OTHERWISE KNOWN AS AN ACT ESTABLISHING A COMPREHENSIVE JUVENILE JUSTICE AND WELFARE SYSTEM, CREATING THE JUVENILE JUSTICE AND WELFARE COUNCIL UNDER DEPARTMENT OF JUSTICE APPROPRIATING FUNDS THEREFOR AND OTHER PURPOSES. The Office of the Solicitor General (OSG), representing public respondent, opted to adopt its Comment as its Memorandum. In its Comment, the OSG countered that I. THE TRIAL COURT AND THE COURT OF APPEALS HAVE LEGAL BASIS IN APPLYING SECTION 24, ARTICLE II OF R.A. 9165 INSTEAD OF SECTION 70, ARTICLE VIII OF THE SAME LAW. II. SECTION 32 OF A.M. NO. 02-1-18-SC OTHERWISE KNOWN AS THE ³RULE ON JUVENILES IN CONFLICT WITH THE LAW´ HAS NO APPLICATION TO THE INSTANT CASE. Simply, the issues are: (1) Did the Court of Appeals err in dismissing Padua¶s petition for certiorari assailing the trial court¶s order denying his petition for probation? (2) Was Padua¶s right under Rep. Act No. 9344, the ³Juvenile Justice and Welfare Act of 2006,´ violated? and (3) Does Section 32 of A.M. No. 02-1-18-SC otherwise known as the ³Rule on Juveniles in Conflict with the Law´ have application in this case? As to the first issue, we rule that the Court of Appeals did not err in dismissing Padua¶s petition for certiorari. For certiorari to prosper, the following requisites must concur: (1) the writ is directed against a tribunal, a board or any officer exercising judicial or quasi-judicial functions; (2) such tribunal, board or officer has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. ³Without jurisdiction´ means that the court acted with absolute lack of authority. There is ³excess of jurisdiction´ when the court transcends its power or acts without any statutory authority. ³Grave abuse of discretion´ implies such capricious and whimsical exercise of judgment as to be equivalent to lack or excess of jurisdiction. In other words, power is exercised in an arbitrary or despotic manner by reason of passion, prejudice, or personal hostility, and such exercise is so patent or so gross as to amount to an evasion of a positive duty or to a virtual refusal either to perform the duty enjoined or to act at all in contemplation of law.

A review of the orders of the RTC denying Padua¶s petition for probation shows that the RTC neither acted without jurisdiction nor with grave abuse of discretion because it merely applied the law and adhered to principles of statutory construction in denying Padua¶s petition for probation. Padua was charged and convicted for violation of Section 5, Article II of Rep. Act No. 9165 for selling dangerous drugs. It is clear under Section 24 of Rep. Act No. 9165 that any person convicted of drug trafficking cannot avail of the privilege of probation, to wit: SEC. 24. Non-Applicability of the Probation Law for Drug Traffickers and Pushers. ± Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, cannot avail of the privilege granted by the Probation Law or Presidential Decree No. 968, as amended. (Emphasis supplied.) The law is clear and leaves no room for interpretation. Any person convicted for drug trafficking or pushing, regardless of the penalty imposed, cannot avail of the privilege granted by the Probation Law or P.D. No. 968. The elementary rule in statutory construction is that when the words and phrases of the statute are clear and unequivocal, their meaning must be determined from the language employed and the statute must be taken to mean exactly what it says. If a statute is clear, plain and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. This is what is known as the plain-meaning rule or verba legis. It is expressed in the maxim, index animi sermo, or speech is the index of intention. Furthermore, there is the maxim verba legis non est recedendum, or from the words of a statute there should be no departure. Moreover, the Court of Appeals correctly pointed out that the intention of the legislators in Section 24 of Rep. Act No. 9165 is to provide stiffer and harsher punishment for those persons convicted of drug trafficking or pushing while extending a sympathetic and magnanimous hand in Section 70 to drug dependents who are found guilty of violation of Sections 11 and 15 of the Act. The law considers the users and possessors of illegal drugs as victims while the drug traffickers and pushers as predators. Hence, while drug traffickers and pushers, like Padua, are categorically disqualified from availing the law on probation, youthful drug dependents, users and possessors alike, are given the chance to mend their ways. The Court of Appeals also correctly stated that had it been the intention of the legislators to exempt from the application of Section 24 the drug traffickers and pushers who are minors and first time offenders, the law could have easily declared so. The law indeed appears strict and harsh against drug traffickers and drug pushers while protective of drug users. To illustrate, a person arrested for using illegal or dangerous drugs is meted only a penalty of six months rehabilitation in a government center, as minimum, for the first offense under Section 15 of Rep. Act No. 9165, while a person charged and convicted of selling dangerous drugs shall suffer life imprisonment to death and a fine ranging from Five Hundred Thousand Pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00) under Section 5, Rep. Act No. 9165.

As for the second and third issues, Padua cannot argue that his right under Rep. Act No. 9344, the ³Juvenile Justice and Welfare Act of 2006´ was violated. Nor can he argue that Section 32 of A.M. No. 02-1-18-SC otherwise known as the ³Rule on Juveniles in Conflict with the Law´ has application in this case. Section 68 of Rep. Act No. 9344 and Section 32 of A.M. No. 02-1-18-SC both pertain to suspension of sentence and not probation. Furthermore, suspension of sentence under Section 38 of Rep. Act No. 9344 could no longer be retroactively applied for petitioner¶s benefit. Section 38 of Rep. Act No. 9344 provides that once a child under 18 years of age is found guilty of the offense charged, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence. Section 40 of Rep. Act No. 9344, however, provides that once the child reaches 18 years of age, the court shall determine whether to discharge the child, order execution of sentence, or extend the suspended sentence for a certain specified period or until the child reaches the maximum age of 21 years. Petitioner has already reached 21 years of age or over and thus, could no longer be considered a child for purposes of applying Rep. Act 9344. Thus, the application of Sections 38 and 40 appears moot and academic as far as his case is concerned. WHEREFORE, the petition is DENIED. The assailed Decision dated April 19, 2005 and the Resolution dated June 14, 2005 of the Court of Appeals are AFFIRMED. SO ORDERED

LEONARDO A. QUISUMBING Associate Justice

G.R. No. 177961

April 7, 2009

LOURDES A. SABLE, Petitioner, vs. PEOPLE OF THE PHILIPPINES and HON. ENRIQUETA LOQUILLANO-BELARMINO, Presiding Judge, Branch 57, RTC, Cebu City, Respondents. DECISION CHICO-NAZARIO, J.: Before Us is a Petition for Certiorari1 under Rule 65 of the Revised Rules of Court filed by petitioner Lourdes A. Sable seeking the reversal and the setting aside of the Decision2 dated 14 December 2006 and Resolution3 dated 21 February 2007 of the Court of Appeals in CA-G.R. CEB-CR No. 81981. In its assailed Decision, the Court of Appeals affirmed the Order4 dated 22 July 2003 of the Regional Trial Court (RTC) of Cebu, Branch 57, disallowing petitioner¶s application for probation in Criminal Case No. CBU-35455, and denied petitioner¶s Motion for Reconsideration thereof. The undisputed facts are as follows: Petitioner, together with Concepcion Abangan (Concepcion), Ildefonsa Anoba (Ildefonsa) and Valentine Abellanosa (Valentine), is accused in Criminal Case No. CBU-35455 of Falsification of Public Documents under Article 172(1) in relation to Article 171 of the Revised Penal Code. Petitioner and co-accused Ildefonsa were arraigned on 20 July 1994 while co-accused Concepcion was never arrested. During the initial trial, Atty. Gines Abellana, counsel for all the accused, manifested that co-accused Valentine was already dead and requested that his name be dropped from the information. Petitioner and co-accused Ildefonsa are the grand-daughters of Eleuteria Abangan, who is one of the registered owners of Lot No. 3608, which is registered under Original Certificate of Title (OCT) No. RO-2740 in the names of Andrea Abangan, Fabian Abangan, Sergio Abangan, Antonino Abangan, Perfecta Abangan and Eleuteria Abangan. Private complainant Gaspar Abangan (Gaspar) is the grandson of Lamberto Abangan, who is a brother of the registered owners of the lot. Petitioner, together with her co-accused Ildefonsa, allegedly falsified an Extrajudicial Declaration of Heirs with Waiver of Rights and Partition Agreement, as the signatures contained therein were not the signatures of the true owners of the land. Petitioner and Ildefonsa also allegedly caused it to appear that a certain Remedios Abangan, who was already dead, signed the document. By virtue of the Extrajudicial Declaration of Heirs, Lot No. 3608 was subdivided into two lots, namely, 3608-A and 3608-B; and OCT No. RO-2740 was cancelled. Lot No. 3608-A was transferred to the name of co-accused Concepcion and was registered under Transfer Certificate of Title (TCT) No. 113266. With respect to Lot No. 3608-B, petitioner was able to execute a Deed of Absolute Sale in favor of one Perpetua Sombilon, and accordingly, the title to the lot was transferred to the name of the latter under TCT No. 113267. On 28 November 2000, the RTC convicted petitioner of the crime of Falsification of Public Documents under Article 172(1) in relation to Article 171 of the Revised Penal Code, but acquitted Ildefonsa. The dispositive portion of the Decision reads: WHEREFORE, in view of the foregoing, the court finds accused Ildefonsa Anoba not guilty. However, the court finds Lourdes Abellanosa Sable guilty beyond reasonable doubt of the crime charged and hereby sentences her to suffer an indeterminate penalty of FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY to SIX (6) YEARS.5

Thereafter, petitioner filed a Motion for Reconsideration6 of said RTC Decision on 20 January 2001. After several postponements due to the vacancy in the court a quo, the motion was submitted for resolution only on 29 June 2001. The same was denied by respondent Judge Enriqueta Loquillano-Belarmino in an Order7 dated 20 November 2003. On 13 December 2002, a copy of the Order denying reconsideration of the judgment was received by petitioner¶s counsel. Due to petitioner¶s failure to interpose a timely appeal, an entry of judgment was issued on 5 June 2003. Petitioner, through counsel, filed Motions to Recall Warrant of Arrest and to Vacate Entry of Judgment with Reconsideration and Explanation8 on 12 June 2003 alleging, among other things, that petitioner¶s counsel did not receive the Order because it was received by a certain Che who was undergoing practicum in her counsel¶s law office. On the day of receipt thereof, it was Che¶s last day at the office. Petitioner¶s counsel further alleged that he was of the belief that his Motion for Reconsideration of the judgment of conviction would be rescheduled for hearing after the same had been postponed due to the vacancy in the court a quo. Pending resolution of the Motions to Recall Warrant of Arrest and to Vacate Entry of Judgment with Reconsideration, petitioner filed a Notice of Appeal on 17 June 2003.9 Subsequently, in an Order10 dated 22 July 2003, respondent Judge denied the Motions to Recall Warrant of Arrest and to Vacate Entry of Judgment. Petitioner¶s Notice of Appeal was also denied for having been filed out of time. On 25 August 2003, petitioner moved for the reconsideration of the 22 July 2003 Order and intimated her desire to apply for probation instead of appealing the judgment of conviction.11 In a Motion12 dated 15 October 2003, petitioner again prayed for the Recall of the Warrant of Arrest against her, while her Motion for Reconsideration and her application for probation were pending resolution before the RTC. Finally, on 20 November 2003, the RTC issued the assailed Order, the dispositive portion of which reads as follows: WHEREFORE, accused¶s motion for reconsideration of the Order dated July 22, 2003, motion to recall warrant of arrest and motion to allow accused to avail of the benefits of the Probation Law, all are hereby denied.13 Petitioner filed a Petition for Certiorari under Rule 65 before the Court of Appeals docketed as CA-G.R. CEBCR No. 81981, raising the sole issue of whether or not the respondent court acted with grave abuse of discretion in denying the application for probation. In its Decision14 dated 14 December 2006, the Court of Appeals denied the petition for lack of merit, stating that the alleged failure of petitioner¶s counsel to timely appeal the judgment of conviction following the denial of the reconsideration thereof could not amount to excusable negligence. It further enunciated that a notice of appeal of judgment filed six months after the denial of the motion for reconsideration was denied is filed out of time and, as a result, the application for probation must necessarily fail because the remedies of appeal and probation are alternative and mutually exclusive of each other. The Court of Appeals refused to reconsider its earlier Decision in a Resolution dated 21 February 2007. Hence, this Petition for Certiorari under Rule 65 of the Rules of Court raising the sole issue: WHETHER OR NOT THE HONORABLE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN AFFIRMING THE TRIAL COURT¶S ORDER DENYING PETITIONER¶S APPLICATION FOR PROBATION.15

The petitioner prays that the instant petition be granted by allowing her to apply for probation and ordering the RTC through respondent Judge to act on the application for probation by the petitioner, based upon the recommendation of the probationer who may be assigned to conduct the investigation of said application. For the State, the Solicitor General argues that the Court of Appeals properly denied the petition before it because, first, it is procedurally flawed for being an improper recourse; and secondly, for non-compliance with the mandatory requirement of the law that an application for probation must be filed within the period for perfecting an appeal. We find the Petition devoid of merit. Probation is a special privilege granted by the state to a penitent qualified offender. It essentially rejects appeals and encourages an otherwise eligible convict to immediately admit his liability and save the state the time, effort and expenses to jettison an appeal.16 The pertinent provision of the Probation Law, as amended, reads: Sec. 4. Grant of Probation.²Subject 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 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.17 (Emphasis supplied.) It is quite clear from the afore-quoted provision that an application for probation must be made within the period for perfecting an appeal, and the filing of the application after the time of appeal has lapsed is injurious to the recourse of the applicant. In the present petition before Us, petitioner filed the application for probation on 25 August 2003, almost eight months from the time the assailed judgment of the RTC became final. Clearly, the application for probation was filed out of time pursuant to Rule 122, Sec. 6 of the Rules of Court, which states that an "appeal must be taken within fifteen (15) days from promulgation of the judgment or from notice of the final order appealed from." In Palo v. Militante,18 this Court held that what the law requires is that the application for probation must be filed within the period for perfecting an appeal. The need to file it within such period is intended to encourage offenders, who are willing to be reformed and rehabilitated, to avail themselves of probation at the first opportunity. Furthermore, the application for probation must necessarily fail, because before the application was instituted, petitioner already filed a Notice of Appeal before the RTC on 17 June 2003. The Probation Law is patently clear that "no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction." The law expressly requires that an accused must not have appealed his conviction before he can avail himself of probation. This outlaws the element of speculation on the part of the accused -- to wager on the result of his appeal -- that when his conviction is finally affirmed on appeal, the moment of truth well nigh at hand and the service of his sentence inevitable, he now applies for probation as an "escape hatch," thus rendering nugatory the appellate court¶s affirmance of his conviction. Consequently, probation should be availed of at the first opportunity by convicts who are willing to be reformed and rehabilitated; who manifest spontaneity, contrition and remorse.19

This was the reason why the Probation Law was amended, precisely to put a stop to the practice of appealing from judgments of conviction even if the sentence is probationable, for the purpose of securing an acquittal and applying for the probation only if the accused fails in his bid.20 We also note that the petitioner is unable to make up her mind as to what recourse she will pursue, since in her petition for Certiorari she questioned the denial of her probation,21 while in her Memorandum she questioned the denial of her appeal.22 This just obviously manifests the intention of petitioner to benefit from the remedy of probation just in case the remedy of appeal is not given due course. Prevailing jurisprudence treats appeal and probation as mutually exclusive remedies because the law is unmistakable about it and, therefore, petitioner cannot avail herself of both.23 The explanation given by petitioner as to the cause of the failure to appeal the judgment of conviction is flimsy. Petitioner¶s counsel claims that the Order of the RTC denying the Motion for Reconsideration dated 20 January 2001 was received by a certain Che, who was a student doing practicum in his law office, and he attributed the non-receipt of the Order to her and claimed that the mistake was excusable.1avvphi1.zw+ We agree with the Court of Appeals that to constitute excusable negligence, such must be due to some unexpected or unavoidable event, and not due to petitioner counsel¶s self- admitted mistake or negligence in not giving proper instruction to his staff. Time and again, the Court has admonished law firms to adopt a system of distributing pleadings and notices, whereby lawyers working therein promptly receive notices and pleadings intended for cases. The Court has also often repeated that clerk¶s negligence that adversely affects the cases handled by lawyers is binding upon the latter.24 Finally, we find that there is an error in the mode of appeal used by petitioner. Under Rule 122, Section 3(e) of the Rules of Court, "[e]xcept as provided in the last paragraph of Section 13, Rule 124, all other appeals to the Supreme Court shall be by petition for review on certiorari under Rule 45." Here, petitioner elevated this petition via a Petition for Certiorari under Rule 65. Under the Rules, subject to the exceptions,25 appeal to the Supreme Court must be via a petition for Review under Rule 45. Since, this appeal is not within the exceptions, the proper mode of appeal should be a Petition for Review under Rule 45, not under Rule 65. It has been held that the proper remedy of the party aggrieved by a decision of the Court of Appeals is a petition for review under Rule 45, which is not identical with a petition for review under Rule 65. Under Rule 45, decisions, final orders or resolutions of the Court of Appeals in any case, i.e., regardless of the nature of the action or proceedings involved, may be appealed to us by filing a petition for review, which would be but a continuation of the appellate process over the original case. On the other hand, a special civil action under Rule 65 is an independent action based on the specific ground therein provided and, as a general rule, cannot be availed of as a substitute for the lost remedy of an ordinary appeal, including that to be taken under Rule 45.26 One of the requisites of certiorari is that there be no available appeal or any plain, speedy and adequate remedy. Where an appeal is available, certiorari will not prosper even if the ground therefor is grave abuse of discretion.27 Accordingly, when a party adopts an improper remedy, as in this case, his petition may be dismissed outright.28 Therefore, there is no abuse of discretion amounting to lack or excess of jurisdiction in the Court of Appeals¶ Decision and Resolution affirming the trial court¶s Orders denying petitioner¶s Notice of Appeal, Motions to Recall Warrant of Arrest and to Vacate Entry of Judgment, and the application for probation. There is nothing capricious in not granting an appeal after the time to file the same has lapsed, nor is there anything arbitrary in denying an application for probation after a notice of appeal has been filed.lawphil.net

WHEREFORE, premises considered, the instant Petition for Certiorari under Rule 65 is hereby DISMISSED. The Decision dated 14 December 2006 and Resolution dated 21 February 2007 of the Court of Appeals are AFFIRMED. No costs. SO ORDERED. MINITA V. CHICO-NAZARIO Associate Justice

G.R. No. 164815

February 22, 2008

SR. INSP. JERRY C. VALEROSO, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, respondent. DECISION REYES, R.T., J.: THE law looks forward, never backward. Lex prospicit, non respicit. A new law has a prospective, not retroactive, effect.1 However, penal laws that favor a guilty person, who is not a habitual criminal, shall be given retroactive effect.1-a These are the rule, the exception and exception to the exception on effectivity of laws. Ang batas ay tumitingin sa hinaharap, hindi sa nakaraan. Gayunpaman, ang parusa ng bagong batas ay iiral kung ito ay pabor sa taong nagkasala na hindi pusakal na kriminal. We apply the exception rather than the rule in this petition for review on certiorari of the decision of the Court of Appeals (CA), affirming with modification that of the Regional Trial Court (RTC) in Quezon City, finding petitioner liable for illegal possession of a firearm. The Facts On July 10, 1996, at around 9:30 a.m., SPO2 Antonio M. Disuanco of the Criminal Investigation Division, Central Police District Command, received a dispatch order2 from the desk officer.3 The order directed him and three (3) other policemen to serve a warrant of arrest4 issued by Judge Ignacio Salvador against petitioner Sr. Insp. Jerry C. Valeroso in a case for kidnapping with ransom.5 After a briefing, the team conducted the necessary surveillance on petitioner, checking his hideouts in Cavite, Caloocan, and Bulacan.6 Eventually, the team proceeded to the Integrated National Police (INP) Central Station at Culiat, Quezon City, where they saw petitioner as he was about to board a tricycle.7 SPO2 Disuanco and his team approached petitioner.8 They put him under arrest, informed him of his constitutional rights, and bodily searched him.9 Found tucked in his waist10 was a Charter Arms, bearing Serial Number 5231511 with five (5) live ammunition.12 Petitioner was then brought to the police station for questioning.13 A verification of the subject firearm at the Firearms and Explosives Division at Camp Crame revealed that it was not issued to petitioner but to a certain Raul Palencia Salvatierra of Sampaloc, Manila.14 Epifanio Deriquito, the records verifier, presented a certification15 to that effect signed by Edwin C. Roque, chief records officer of the Firearms and Explosive Division.16 Petitioner was then charged with illegal possession of firearm and ammunition under Presidential Decree (P.D.) No. 1866,17 as amended. The Information read: That on or about the 10th day of July, 1996, in Quezon City, Philippines, the said accused without any authority of law, did then and there willfully, unlawfully and knowingly have in his/her possession and under his/her custody and control

One (1) cal. 38 "Charter Arms" revolver bearing Serial No. 52315 with five (5) live ammo. without first having secured the necessary license/permit issued by the proper authorities. CONTRARY TO LAW. Quezon City, Philippines, July 15, 1996. (Sgd.) GLORIA VICTORIA C. YAP Assistant City Prosecutor18 With the assistance of his counsel de parte, Atty. Oscar Pagulayan, petitioner pleaded not guilty when arraigned on October 9, 1996.19 Trial on the merits ensued. SPO2 Disuanco and Deriquito testified for the prosecution in the manner stated above. Upon the other hand, the defense version was supplied by the combined testimonies of petitioner Sr. Insp. Jerry C. Valeroso, SPO3 Agustin R. Timbol, Jr. and Adrian Yuson. Petitioner recounted that on July 10, 1996, he was fast asleep in the boarding house of his children located at Sagana Homes, Barangay New Era, Quezon City.20 He was roused from his slumber when four (4) heavily armed men in civilian clothes bolted the room.21 They trained their guns at him22 and pulled him out of the room. They then tied his hands and placed him near the faucet.23 The raiding team went back inside and searched and ransacked the room.24 SPO2 Disuanco stood guard outside with him.25 Moments later, an operative came out of the room and exclaimed, "Hoy, may nakuha akong baril sa loob!"26 Petitioner was told by SPO2 Disuanco that "we are authorized to shoot you because there¶s a shoot to kill order against you, so if you are planning do so something, do it right now."27 He was also told that there was a standing warrant for his arrest.28 However, he was not shown any proof when he asked for it.29 Neither was the raiding group armed with a valid search warrant.30 According to petitioner, the search done in the boarding house was illegal. The gun seized from him was duly licensed and covered by necessary permits. He was, however, unable to present the documentation relative to the firearm because it was confiscated by the police. Petitioner further lamented that when he was incarcerated, he was not allowed to engage the services of a counsel. Neither was he allowed to see or talk to his family.31 Petitioner contended that the police had an axe to grind against him. While still with the Narcotics Command, he turned down a request of Col. Romulo Sales to white-wash a drug-related investigation involving friends of the said police officer. Col. Sales was likewise subject of a complaint filed with the Ombudsman by his wife. Col. Sales was later on appointed as the head of the unit that conducted the search in his boarding house.32 SPO3 Timbol, Jr. of the Narcotics Command testified that he issued to petitioner a Memorandum Receipt dated July 1, 199333 covering the subject firearm and its ammunition. This was upon the verbal instruction of Col. Angelito Moreno. SPO3 Timbol identified his signature34 on the said receipt.35 Adrian Yuson, an occupant of the room adjacent to where petitioner was arrested, testified that on July 10, 1996, two (2) policemen suddenly entered his room as he was preparing for school.36 They grabbed his shoulder and led him out.37 During all those times, a gun was poked at him.38 He was asked where petitioner was staying. Fearing for his life, he pointed to petitioner¶s room.39

Four (4) policemen then entered the room.40 He witnessed how they pointed a gun at petitioner, who was clad only in his underwear.41 He also witnessed how they forcibly brought petitioner out of his room.42 While a policeman remained near the faucet to guard petitioner, three (3) others went back inside the room.43 They began searching the whole place. They forcibly opened his locker,44 which yielded the subject firearm.45 RTC and CA Dispositions On May 6, 1998, the trial court found petitioner guilty as charged, disposing as follows: WHEREFORE, the Court hereby finds the accused guilty beyond reasonable doubt of Violation of Section 1 of Presidential Decree No. 1866 as amended by Republic Act No. 8294 and hereby sentences him to suffer the penalty of prision correccional in its maximum period or from 4 years, 2 months and 1 day as minimum to 6 years as maximum and to pay the fine in the amount of Fifteen Thousand Pesos (P15,000.00). The gun subject of this case is hereby ordered confiscated in favor of the government. Let the same be put in trust in the hands of the Chief of the PNP. SO ORDERED.46 Petitioner moved to reconsider47 but his motion was denied on August 27, 1998.48 He appealed to the CA. On May 4, 2004, the appellate court affirmed with modification the RTC disposition. The fallo of the CA decision reads: Verily, the penalty imposed by the trial court upon the accused-appellant is modified to 4 years and 2 months as minimum up to 6 years as maximum. WHEREFORE, with the foregoing MODIFICATION as to the penalty, the decision appealed from is hereby AFFIRMED in all other respects. SO ORDERED.49 His motion for reconsideration50 having been denied through a Resolution dated August 3, 2004,51 petitioner resorted to the present petition under Rule 45. Issues Petitioner raises the following issues for Our consideration: I. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF LAW IN AFFIRMING THE CONVICTION OF PETITIONER DESPITE THE ABSENCE OF PROOF BEYOND REASONABLE DOUBT. II. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF FACT AND LAW IN SUSTAINING THE LEGALITY OF THE SEARCH AND THE VALIDITY AND ADMISSIBILITY OF THE EVIDENCE OBTAINED THEREFROM DESPITE THE OVERWHELMING PROOF THAT THE SAME IS THE FRUIT OF THE POISONOUS TREE. III. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF LAW IN NOT UPHOLDING THE REGULARITY AND VALIDITY SURROUNDING THE ISSUANCE OF

THE MEMORANDUM RECEIPTS (SIC) IN FAVOR OF PETITIONER WHICH PROVES HIS INNOCENCE OF THE CRIME CHARGE (SIC).52 (Underscoring supplied) Our Ruling In illegal possession of firearm and ammunition, the prosecution has the burden of proving the twin elements of (1) the existence of the subject firearm and ammunition, and (2) the fact that the accused who possessed or owned the same does not have the corresponding license for it.53 The prosecution was able to discharge its burden. The existence of the subject firearm and its ammunition was established through the testimony of SPO2 Disuanco.54 Defense witness Yuson also identified the firearm.55 Its existence was likewise admitted by no less than petitioner himself.56 As for petitioner¶s lack of authority to possess the firearm, Deriquito testified that a verification of the Charter Arms Caliber .38 bearing Serial No. 52315 with the Firearms and Explosives Division at Camp Crame revealed that the seized pistol was not issued to petitioner. It was registered in the name of a certain Raul Palencia Salvatierra of Sampaloc, Manila.57 As proof, Deriquito presented a certification signed by Roque, the chief records officer of the same office.58 The Court on several occasions ruled that either the testimony of a representative of, or a certification from, the Philippine National Police (PNP) Firearms and Explosive Office attesting that a person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the second element of possession of illegal firearms.59 The prosecution more than complied when it presented both. The certification is outside the scope of the hearsay rule. The general rule is that a witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception.60 Otherwise, the testimony is objectionable for being hearsay.61 On this score, the certification from the Firearms and Explosives Division is an exception to the hearsay rule by virtue of Rule 130, Section 44 of the Rules of Court which provides: Sec. 44. Entries in official records. ± Entries in official records made in the performance of his official duty by a public officer of the Philippines, or by a person in the performance of a duty specifically enjoined by law, are prima facie evidence of the facts therein stated. It may be true that the contents of said certification are only prima facie evidence of the facts stated there. However, the failure of petitioner to present controverting evidence makes the presumption unrebutted. Thus, the presumption stands. Petitioner, however, raises several points which he says entitles him to no less than an acquittal. The assessment of credibility of witnesses lies with the trial court. First, petitioner says that the seizure of the subject firearm was invalid. The search was conducted after his arrest and after he was taken out of the room he was occupying.62 This contention deserves scant consideration.

Petitioner¶s version of the manner and place of his arrest goes into the factual findings made by the trial court and its calibration of the credibility of witnesses. However, as aptly put by Justice Ynares-Santiago in People v. Rivera:63 x x x the manner of assigning values to declarations of witnesses on the witness stand is best and most competently performed by the trial judge who had the unmatched opportunity to observe the witnesses and assess their credibility by the various indicia available but not reflected on record. The demeanor of the person on the stand can draw the line between fact and fancy or evince if the witness is telling the truth or lying through his teeth. We have consistently ruled that when the question arises as to which of the conflicting versions of the prosecution and the defense is worthy of belief, the assessment of the trial courts are generally viewed as correct and entitled to great weight. Furthermore, in an appeal, where the culpability or innocence of the accused depends on the issue of credibility of witnesses and the veracity of their testimonies, findings of the trial court are given the highest degree of respect if not finality.64 (Underscoring supplied) The trial court found the prosecution version worthy of credence and belief. We find no compelling reason not to accept its observation on this score. Worth noting is the fact that petitioner is a ranking police officer who not only claims to be highly decorated,65 but have effected a number of successful arrests66 as well. Common sense would dictate that he must necessarily be authorized to carry a gun. We thus agree with the Office of the Solicitor General that framing up petitioner would have been a very risky proposition. Had the arresting officers really intended to cause the damnation of petitioner by framing him up, they could have easily "planted" a more incriminating evidence rather than a gun. That would have made their nefarious scheme easier, assuming that there indeed was one. The pieces of evidence show that petitioner is not legally authorized to possess the subject firearm and its five (5) ammunition. Second, petitioner insists that he is legally authorized to possess the subject firearm and its ammunition on the basis of the Memorandum Receipt issued to him by the PNP Narcotics Command.67 Although petitioner is correct in his submission that public officers like policemen are accorded presumption of regularity in the performance of their official duties,68 it is only a presumption; it may be overthrown by evidence to the contrary. The prosecution was able to rebut the presumption when it proved that the issuance to petitioner of the Memorandum Receipt was anything but regular. SPO3 Timbol, Jr. testified that he issued the Memorandum Receipt to petitioner based on the verbal instruction of his immediate superior, Col. Moreno.69 However, a reading of Timbol¶s testimony on cross-examination70 would reveal that there was an unusual facility by which said receipt was issued to petitioner. Its issuance utterly lacked the usual necessary bureaucratic constraints. Clearly, it was issued to petitioner under questionable circumstances. Failure to offer an unlicensed firearm as evidence is not fatal provided there is competent testimony as to its existence. Third, petitioner claims that the subject firearm and ammunition should have been excluded as evidence because they were not formally offered by the prosecution71 in violation of Section 34, Rule 132 of the Rules of Court.72 We note that petitioner contradicted himself when he argued for the validity of the Memorandum Receipt and, at the same time, for the exclusion in evidence of the subject firearm and its ammunition. Petitioner¶s act may result to an absurd situation where the Memorandum Receipt is declared valid, while the subject firearm and its

ammunition which are supposedly covered by the Memorandum Receipt are excluded as evidence. That would have made the Memorandum Receipt useless. In any case, petitioner¶s contention has no leg to stand on. Contrary to petitioner¶s claim, the subject firearm73 and its five (5) live ammunition74 were offered in evidence by the prosecution.75 Even assuming arguendo that they were not offered, petitioner¶s stance must still fail. The existence of an unlicensed firearm may be established by testimony, even without its presentation at trial. In People v. Orehuela,76 the non-presentation of the pistol did not prevent the conviction of the accused. The doctrine was affirmed in the recent case of People v. Malinao.77 As previously stated, the existence of the subject firearm and its five (5) live ammunition were established through the testimony of SPO2 Disuanco.78 Yuson also identified said firearm.79 Petitioner even admitted its existence.80 We hasten to add that there may also be conviction where an unlicensed firearm is presented during trial but through inadvertence, negligence, or fortuitous event (for example, if it is lost), it is not offered in evidence, as long as there is competent testimony as to its existence. Penal and civil liabilities Petitioner was charged with the crime of illegal possession of firearms and ammunition under the first paragraph of Section 1 of P.D. No. 1866, as amended. It provides that "[t]he penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition." P.D. No. 1866, as amended, was the governing law at the time petitioner committed the offense on July 10, 1996. However, R.A. No. 8294 amended P.D. No. 1866 on July 6, 1997,81 during the pendency of the case with the trial court. The present law now states: SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. ± The penalty of prision correccional in its maximum period and a fine of not less than Fifteen Thousand Pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low-powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. (Underscoring supplied) As a general rule, penal laws should not have retroactive application, lest they acquire the character of an ex post facto law.82 An exception to this rule, however, is when the law is advantageous to the accused. According to Mr. Chief Justice Araullo, this is "not as a right" of the offender, "but founded on the very principles on which the right of the State to punish and the commination of the penalty are based, and regards it not as an exception based on political considerations, but as a rule founded on principles of strict justice."83 Although an additional fine of P15,000.00 is imposed by R.A. No. 8294, the same is still advantageous to the accused, considering that the imprisonment is lowered to prision correccional in its maximum period84 from reclusion temporal in its maximum period to reclusion perpetua85 under P.D. No. 1866.

Applying the Indeterminate Sentence Law, prision correccional maximum which ranges from four (4) years, two (2) months and one (1) day to six (6) years, is the prescribed penalty and will form the maximum term of the indeterminate sentence. The minimum term shall be one degree lower, which is prision correccional in its medium period (two [2] years, four [4] months and one [1] day to four [4] years and two [2] months).86 Hence, the penalty imposed by the CA is correct. The penalty of four (4) years and two (2) months of prision correccional medium, as minimum term, to six (6) years of prision correccional maximum, as maximum term, is in consonance with the Court¶s ruling in Gonzales v. Court of Appeals87 and Barredo v. Vinarao.88 As to the subject firearm and its five (5) live ammunition, their proper disposition should be made under Article 45 of the Revised Penal Code89 which provides, among others, that the proceeds and instruments or tools of the crime shall be confiscated and forfeited in favor of the government. WHEREFORE, the Decision of the Court of Appeals dated May 4, 2004 is AFFIRMED in full. SO ORDERED. RUBEN T. REYES Associate Justice

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 182239 Present:

CORONA,C.J., Chairperson, VELASCO, JR., LEONARDO-DE CASTRO, -versusDEL CASTILLO, and PEREZ, JJ.

Promulgated:

March 16, 2011 HERMIE M. JACINTO, Accused-Appellant.

DECISION PEREZ, J.: Once again, we recite the time-honored principle that the defense of alibi cannot prevail over the victim¶s positive identification of the accused as the perpetrator of the crime. For it to prosper, the court must be convinced that there was physical impossibility on the part of the accused to have been at the locus criminis at the time of the commission of the crime. Nevertheless, a child in conflict with the law, whose judgment of conviction has become final and executory only after his disqualification from availing of the benefits of suspended sentence on the ground that he/she has exceeded the age limit of twenty-one (21) years, shall still be entitled to the right to restoration, rehabilitation, and reintegration in accordance with Republic Act No. 9344, otherwise known as ³An Act Establishing a Comprehensive Juvenile Justice and Welfare System, Creating the Juvenile Justice and Welfare Council under the Department of Justice, Appropriating Funds Therefor and for Other Purposes.´ Convicted for the rape of five-year-old AAA, appellant Hermie M. Jacinto seeks before this Court the reversal of the judgment of his conviction. The Facts In an Information dated 20 March 2003 filed with the Regional Trial Court and docketed as Criminal Case No. 1679-13-141[1], appellant was accused of the crime of RAPE allegedly committed as follows: That on or about the 28th day of January, 2003 at about 7:00 o¶clock in the evening more or less, at barangay xxx, municipality of xxx, province of xxx and within the jurisdiction of this Honorable Court, [Hermie M. Jacinto], with lewd design did then and there willfully, unlawfully and feloniously had carnal knowledge with one AAA, a five-year old minor child. CONTRARY TO LAW, with the qualifying/aggravating circumstance of minority, the victim being only five years old.

On 15 July 2003, appellant entered a plea of not guilty. During pre-trial, the defense admitted the existence of the following documents: (1) birth certificate of AAA, showing that she was born on 3 December 1997; (2) police blotter entry on the rape incident; and (3) medical certificate, upon presentation of the original or upon identification thereof by the physician. Trial ensued with the prosecution and the defense presenting witnesses to prove their respective versions of the story. Evidence for the Prosecution The testimonies of AAA, her father FFF, and rebuttal witness Julito Apiki [Julito] may be summarized in the following manner: FFF and appellant have been neighbors since they were born. FFF¶s house is along the road. That of appellant lies at the back approximately 80 meters from FFF. To access the road, appellant has to pass by FFF¶s house, the frequency of which the latter describes to be ³every minute [and] every hour.´ Also, appellant often visits FFF because they were close friends. He bore no grudge against appellant prior to the incident. AAA likewise knows appellant well. She usually calls him kuya. She sees him all the time ± playing at the basketball court near her house, fetching water, and passing by her house on his way to the road. She and appellant used to be friends until the incident. At about past 6 o¶clock in the evening of 28 January 2003, FFF sent his eight-year-old daughter CCC to the store of Rudy Hatague to buy cigarettes. AAA followed CCC. When CCC returned without AAA, FFF was not alarmed. He thought she was watching television at the house of her aunt Rita Lingcay [Rita]. Julito went to the same store at around 6:20 in the evening to buy a bottle of Tanduay Rum. At the store, he saw appellant place AAA on his lap. He was wearing sleeveless shirt and a pair of short pants. All of them left the store at the same time. Julito proceeded to the house of Rita to watch television, while appellant, who held the hand of AAA, went towards the direction of the ³lower area or place.´ AAA recalled that appellant was wearing a chaleko (sando) and a pair of short pants when he held her hand while on the road near the store. They walked towards the rice field near the house of spouses Alejandro and Gloria Perocho [the Perochos]. There he made her lie down on harrowed ground, removed her panty and boxed her on the chest. Already half-naked from waist down, he mounted her, and, while her legs were pushed apart, pushed his penis into her vagina and made a push and pull movement. She felt pain and cried. Afterwards, appellant left and proceeded to the Perochos. She, in turn, went straight home crying. FFF heard AAA crying and calling his name from downstairs. She was without slippers. He found her face greasy. There was mud on her head and blood was oozing from the back of her head. He checked for any injury and found on her neck a contusion that was already turning black. She had no underwear on and he saw white substance and mud on her vagina. AAA told him that appellant brought her from the store to the grassy area at the back of the house of the Perochos; that he threw away her pair of slippers, removed her panty, choked her and boxed her breast; and that he proceeded thereafter to the Perochos. True enough, FFF found appellant at the house of the Perochos. He asked the appellant what he did to AAA. Appellant replied that he was asked to buy rum at the store and that AAA followed him. FFF went home to check on his daughter, afterwhich, he went back to appellant, asked again, and boxed him. Meanwhile, at around 7:45 in the evening of even date, Julito was still watching television at the house of Rita. AAA and her mother MMM arrived. AAA was crying. Julito pitied her, embraced her, and asked what happened to her, to which she replied that appellant raped her. Julito left and found appellant at the Perochos. Julito asked appellant, ³Bads, did you really rape the child, the daughter of [MMM]?´ but the latter ignored his question. Appellant¶s aunt, Gloria, told appellant that the policemen were coming to which the appellant responded, ³Wait a minute because I will wash the dirt of my elbow (sic) and my knees.´ Julito did found the elbows and knees of appellant with dirt. On that same evening, FFF and AAA proceeded to the police station to have the incident blottered. FFF also had AAA undergo a physical check up at the municipal health center. Dr. Bernardita M. Gaspar, M.D., Rural Health Physician, issued a medical certificate dated 29 January 2003. It reads: Injuries seen are as follows: 1. Multiple abrasions with erythema along the neck area. 2. Petechial hemorrhages on both per-orbital areas. 3. Hematoma over the left upper arm, lateral area 4. Hematoma over the upper anterior chest wall, midclavicular line 5. Abrasion over the posterior trunk, paravertebral area 6. Genital and peri-anal area soiled with debris and whitish mucoid-like material 7. Introitus is erythematous with minimal bleeding

8.

Hymenal lacerations at the 5 o¶clock and 9 o¶clock position

Impression MULTIPLE SOFT TISSUE INJURIES HYMENAL LACERATIONS Upon the recommendation of Dr. Gaspar, AAA submitted herself to another examination at the provincial hospital on the following day. Dr. Christine Ruth B. Micabalo, Medical Officer III of the provincial hospital, attended to her and issued a medico-legal certificate dated 29 January 2003, the pertinent portion of which reads: P.E. = Findings is consistent with Dr. Bernardita M. Gaspar findings except No. 6 and 7 there is no bleeding in this time of examination. (sic) Evidence for the Defense Interposing the defense of alibi, appellant gave a different version of the story. To corroborate his testimony, Luzvilla Balucan [Luzvilla] and his aunt Gloria took the witness stand to affirm that he was at the Perochos at the time of the commission of the crime. Luzvilla even went further to state that she actually saw Julito, not appellant, pick up AAA on the road. In addition, Antonia Perocho [Antonia], sister-in-law of appellant¶s aunt, Gloria, testified on the behavior of Julito after the rape incident was revealed. Appellant claimed that he lives with his aunt, not with his parents whose house stands at the back of FFF¶s house. He denied that there was a need to pass by the house of FFF in order to access the road or to fetch water. He, however, admitted that he occasionally worked for FFF, and whenever he was asked to buy something from the store, AAA always approached him. At about 8 o¶clock in the morning of 28 January 2003, appellant went to the Perochos to attend a birthday party. At 6:08 in the evening, while the visitors, including appellant and his uncle Alejandro Perocho [Alejandro], were gathered together in a drinking session, appellant¶s uncle sent him to the store to buy Tanduay Rum. Since the store is only about 20 meters from the house, he was able to return after three (3) minutes. He was certain of the time because he had a watch . Appellant¶s aunt, Gloria, the lady of the house, confirmed that he was in her house attending the birthday party; and that appellant went out between 6 and 7 in the evening to buy a bottle of Tanduay from the store. She recalled that appellant was back around five (5) minutes later. She also observed that appellant¶s white shorts and white sleeveless shirt were clean. At 6:30 in the evening, Luzvilla, who was also at the party, saw appellant at the kitchen having a drink with his uncle Alejandro and the rest of the visitors. She went out to relieve herself at the side of the tree beside the road next to the house of the Perochos. From where she was, she saw Julito, who was wearing black short pants and black T-shirt, carry AAA. AAA¶s face was covered and she was wiggling. This did not alarm her because she thought it was just a game. Meanwhile, appellant was still in the kitchen when she returned. Around three (3) minutes later, Luzvilla saw Julito, now in a white T-shirt, running towards the house of Rita. AAA was slowly following behind. Luzvilla followed them. Just outside the house, Julito embraced AAA and asked what the appellant did to her. The child did not answer. Luzvilla also followed FFF to the Perochos. She witnessed the punching incident and testified that appellant was twice boxed by FFF. According to her, FFF tapped the left shoulder of the appellant, boxed him, and left. FFF came in the second time and again boxed appellant. This time, he had a bolo pointed at appellant. Appellant¶s uncle Alejandro, a barangay councilor, and another Civilian Voluntary Organization (CVO) member admonished FFF. On sur-rebuttal, Antonia testified that, at 7 o¶clock in the evening, she was watching the television along with other people at the house of Rita. Around 7:10, Julito, who was wearing only a pair of black short pants without a shirt on, entered the house drunk. He paced back and forth. After 10 minutes, AAA came in crying. Julito tightly embraced AAA and asked her what happened. AAA did not answer. Upon Antonia¶s advice, Julito released her and went out of the house. Appellant further testified that at past 7 o¶clock in the evening, FFF arrived, pointed a finger at him, brandished a bolo, and accused him of molesting AAA. FFF left but returned at around 8 o¶clock in the evening. This time, he boxed appellant and asked again why he molested his daughter. On 26 March 2004, the Regional Trial Court rendered its decision, the dispositive portion of which reads: WHEREFORE, finding accused Hermie M. Jacinto guilty beyond reasonable doubt of rape committed upon a 5-year old girl, the court sentences him to death and orders him to pay [AAA] P75,000.000 as rape indemnity and P50,000.00 as moral damages. With costs The defense moved to reopen trial for reception of newly discovered evidence stating that appellant was apparently born on 1 March 1985 and that he was only seventeen (17) years old when the crime was committed on 28 January 2003. The trial court appreciated the evidence and reduced the penalty from death to reclusion perpetua. Thus: WHEREFORE, the judgment of the court imposing the death penalty upon the accused is amended in order to consider the privileged mitigating circumstance of minority. The penalty impos[a]ble upon the accused, therefore[,] is reduced to

reclusion perpetua. xxxAppealed to this Court, the case was transferred to the Court of Appeals for its disposition in view of the ruling in People v. Mateo and the Internal Rules of the Supreme Court allowing an intermediate review by the Court of Appeals of cases where the penalty imposed is death, reclusion perpetua, or life imprisonment. On 29 August 2007, the Court of Appeals AFFIRMED the decision of the trial court with the following MODIFICATIONS: xxx that Hermie M. Jacinto should suffer the Indeterminate penalty of from six (6) years and one (1) day to twelve (12) years of prision mayor, as minimum, to seventeen (17) and four (4) months of reclusion temporal, as maximum. Appellant Hermie M. Jacinto is ordered to indemnify the victim in the sum of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P25,000.00 as exemplary damages and to pay the costs. On 19 November 2007, the Court of Appeals gave due course to the appellant¶s Notice of Appeal. This Court required the parties to simultaneously file their respective supplemental briefs. Both parties manifested that they have exhaustively discussed their positions in their respective briefs and would no longer file any supplement. Before the Court of Appeals, appellant argued that ³THE COURT A QUO GRAVELY ERRED IN CONVICTING HEREIN ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF RAPE´ by invoking the principle that ³if the inculpatory facts and circumstances are capable of two or more reasonable explanations, one of which is consistent with the innocence of the accused and the other with his guilt, then the evidence does not pass the test of moral certainty and will not suffice to support a conviction.´ Our Ruling We sustain the judgment of conviction. In the determination of the innocence or guilt of a person accused of rape, we consider the three well-entrenched principles: (1) an accusation for rape can be made with facility; it is difficult to prove but more difficult for the accused, though innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape in which only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from the weakness of the evidence for the defense. Necessarily, the credible, natural, and convincing testimony of the victim may be sufficient to convict the accused. More so, when the testimony is supported by the medico-legal findings of the examining physician. Further, the defense of alibi cannot prevail over the victim¶s positive identification of the perpetrator of the crime, except when it is established that it was physically impossible for the accused to have been at the locus criminis at the time of the commission of the crime. I A man commits rape by having carnal knowledge of a child under twelve (12) years of age even in the absence of any of the following circumstances: (a) through force, threat or intimidation; (b) when the offended party is deprived of reason or otherwise unconscious; or (c) by means of fraudulent machination or grave abuse of authority. That the crime of rape has been committed is certain. The vivid narration of the acts culminating in the insertion of appellant¶s organ into the vagina of five-year-old AAA and the medical findings of the physicians sufficiently proved such fact. AAA testified PROS. OMANDAM: xxxx Q You said Hermie laid you on the ground, removed your panty and boxed you, what else did he do to you? A He mounted me. Q When Hermie mounted you, was he facing you? A Yes. Q When he mounted you what did he do, did he move? A He moved his ass, he made a push and pull movement. Q When he made a push and pull movement, how were your legs positioned? A They were apart. Q Who pushed them apart? A Hermie. Q Did Hermie push anything at you? A Yes. Q What was that?

A His penis. Q Where did he push his penis? A To my vagina. Q Was it painful? A Yes. Q What was painful? A My vagina. Q Did you cry? A Yes. The straightforward and consistent answers to the questions, which were phrased and re-phrased in order to test that AAA well understood the information elicited from her, said it all ± she had been raped. When a woman, more so a minor, says so, she says in effect all that is essential to show that rape was committed. Significantly, youth and immaturity are normally badges of truth and honesty. Further, the medical findings and the testimony of Dr. Micabalo revealed that the hymenal lacerations at 5 o¶clock and 9 o¶clock positions could have been caused by the penetration of an object; that the redness of the introitus could have been ³the result of the repeated battering of the object;´ and that such object could have been an erect male organ. The credible testimony of AAA corroborated by the physician¶s finding of penetration conclusively established the essential requisite of carnal knowledge. II The real identity of the assailant and the whereabouts of the appellant at the time of the commission of the crime are now in dispute. The defense would want us to believe that it was Julito who defiled AAA, and that appellant was elsewhere when the crime was committed. We should not, however, overlook the fact that a victim of rape could readily identify her assailant, especially when he is not a stranger to her, considering that she could have a good look at him during the commission of the crime. AAA had known appellant all her life. Moreover, appellant and AAA even walked together from the road near the store to the situs criminus that it would be impossible for the child not to recognize the man who held her hand and led her all the way to the rice field. We see no reason to disturb the findings of the trial court on the unwavering testimony of AAA. The certainty of the child, unusually intelligent for one so young, that it was accused, whom she called ³kuya´ and who used to play basketball and fetch water near their house, and who was wearing a sleeveless shirt and shorts at the time he raped her, was convincing and persuasive. The defense attempted to impute the crime to someone else ± one Julito Apiki, but the child, on rebuttal, was steadfast and did not equivocate, asserting that it was accused who is younger, and not Julito, who is older, who molested her. In a long line of cases, this Court has consistently ruled that the determination by the trial court of the credibility of the witnesses deserves full weight and respect considering that it has ³the opportunity to observe the witnesses¶ manner of testifying, their furtive glances, calmness, sighs and the scant or full realization of their oath,´ unless it is shown that material facts and circumstances have been ³ignored, overlooked, misconstrued, or misinterpreted.´ Further, as correctly observed by the trial court: xxx His and his witness¶ attempt to throw the court off the track by imputing the crime to someone else is xxx a vain exercise in view of the private complainant¶s positive identification of accused and other corroborative circumstances. Accused also admitted that on the same evening, Julito Apiki, the supposed real culprit, asked him ³What is this incident, Pare?´, thus corroborating the latter¶s testimony that he confronted accused after hearing of the incident from the child.´ On the other hand, we cannot agree with the appellant that the trial court erred in finding his denial and alibi weak despite the presentation of witnesses to corroborate his testimony. Glaring inconsistencies were all over their respective testimonies that even destroyed the credibility of the appellant¶s very testimony.

Appellant testified that it was his uncle Alejandro Perocho who sent him to store to buy Tanduay; that he gave the bottle to his uncle; and that they had already been drinking long before he bought Tanduay at the store. This was contradicted by the testimony of his aunt Gloria, wife of his uncle Alejandro. On cross-examination, she revealed that her husband was not around before, during, and after the rape incident because he was then at work. He arrived from work only after FFF came to their house for the second time and boxed appellant. It was actually the fish vendor, not her husband, who asked appellant to buy Tanduay. Further, the drinking session started only after the appellant¶s errand to the store. Neither was the testimony of Luzvilla credible enough to deserve consideration. Just like appellant, Luzvilla testified that Alejandro joined the drinking session. This is contrary to Gloria¶s statement that her husband was at work. Luzvilla¶s testimony is likewise inconsistent with that of sur-rebuttal witness Antonia Perocho. Antonia recalled that Julito arrived without a shirt on. This belied Luzvilla¶s claim that Julito wore a white shirt on his way to the house of Rita. In addition, while both the prosecution, as testified to by AAA and Julito, and the defense, as testified to by Gloria, were consistent in saying that appellant wore a sleeveless shirt, Luzvilla¶s recollection differ in that Julito wore a T-shirt (colored black and later changed to white), and, thus, a short-sleeved shirt. Also, contrary to Luzvilla¶s story that she saw AAA walking towards Rita¶s house three (3) minutes after she returned to the Perochos at 6:38 in the evening, Antonia recalled that AAA arrived at the house of Rita at 7:30. In this respect, we find the trial court¶s appreciation in order. Thus: xxx. The child declared that after being raped, she went straight home, crying, to tell her father that Hermie had raped her. She did not first drop into the house of Lita Lingkay to cry among strangers who were watching TV, as Luzvilla Balucan would have the court believe. When the child was seen at the house of Lita Lingkay by Julito Apiki and Luzvilla Balucan, it was only later, after she had been brought there by her mother Brenda so that Lita Lingkay could take a look at her just as Julito Apiki said. Above all, for alibi to prosper, it is necessary that the corroboration is credible, the same having been offered preferably by disinterested witnesses. The defense failed thuswise. Its witnesses cannot qualify as such, ³they being related or were one way or another linked to each other.´ Even assuming for the sake of argument that we consider the corroborations on his whereabouts, still, the defense of alibi cannot prosper. We reiterate, time and again, that the court must be convinced that it would be physically impossible for the accused to have been at the locus criminis at the time of the commission of the crime. Physical impossibility refers to distance and the facility of access between the situs criminis and the location of the accused when the crime was committed. He must demonstrate that he was so far away and could not have been physically present at the scene of the crime and its immediate vicinity when the crime was committed. In People v. Paraiso, the distance of two thousand meters from the place of the commission of the crime was considered not physically impossible to reach in less than an hour even by foot. Inasmuch as it would take the accused not more than five minutes to rape the victim, this Court disregarded the testimony of the defense witness attesting that the accused was fast asleep when she left to gather bamboo trees and returned several hours after. She could have merely presumed that the accused slept all throughout. In People v. Antivola, the testimonies of relatives and friends corroborating that of the appellant that he was in their company at the time of the commission of the crime were likewise disregarded by this Court in the following manner:

Ruben Nicolas, the appellant¶s part-time employer, and Marites Capalad, the appellant¶s sister-inlaw and co-worker, in unison, vouched for the appellant¶s physical presence in the fishpond at the time Rachel was raped. It is, however, an established fact that the appellant¶s house where the rape occurred, was a stone¶s throw away from the fishpond. Their claim that the appellant never left their sight the entire afternoon of December 4, 1997 is unacceptable. It was impossible for Marites to have kept an eye on the appellant for almost four hours, since she testified that she, too, was very much occupied with her task of counting and recording the fishes being harvested. Likewise, Mr. Nicolas, who, admittedly was 50 meters away from the fishpond, could not have focused his entire attention solely on the appellant. It is, therefore, not farfetched that the appellant easily sneaked out unnoticed, and along the way inveigled the victim, brought her inside his house and ravished her, then returned to the fishpond as if he never left. (Emphasis supplied.) As in the cases above cited, the claim of the defense witnesses that appellant never left their sight, save from the 5-minute errand to the store, is contrary to ordinary human experience. Moreover, considering that the farmland where the crime was committed is just behind the house of the Perochos, it would take appellant only a few minutes to bring AAA from the road near the store next to the Perochos down the farmland and consummate the crime. As correctly pointed out by the Court of Appeals, appellant could have committed the rape after buying the bottle of Tanduay and immediately returned to his uncle¶s house. Unfortunately, the testimonies of his corroborating witnesses even bolstered the fact that he was within the immediate vicinity of the scene of the crime. Clearly, the defense failed to prove that it was physically impossible for appellant to have been at the time and place of the commission of the crime. All considered, we find that the prosecution has sufficiently established the guilt of the appellant beyond reasonable doubt. III In the determination of the imposable penalty, the Court of Appeals correctly considered Republic Act No. 9344 (Juvenile Justice and Welfare Act of 2006) despite the commission of the crime three (3) years before it was enacted on 28 April 2006. We recognize its retroactive application following the rationale elucidated in People v. Sarcia: [Sec. 68 of Republic Act No. 9344] allows the retroactive application of the Act to those who have been convicted and are serving sentence at the time of the effectivity of this said Act, and who were below the age of 18 years at the time of the commission of the offense. With more reason, the Act should apply to this case wherein the conviction by the lower court is still under review. (Emphasis supplied.) Criminal Liability; Imposable Penalty Sec. 6 of Republic Act No. 9344 exempts a child above fifteen (15) years but below eighteen (18) years of age from criminal liability, unless the child is found to have acted with discernment, in which case, ³the appropriate proceedings´ in accordance with the Act shall be observed. We determine discernment in this wise: Discernment is that mental capacity of a minor to fully appreciate the consequences of his unlawful act. Such capacity may be known and should be determined by taking into consideration all the facts and circumstances afforded by the records in each case. xxx The surrounding circumstances must demonstrate that the minor knew what he was doing and that it was wrong. Such circumstance includes the gruesome nature of the crime and the minor¶s cunning and shrewdness.

In the present case, we agree with the Court of Appeals that: ³(1) choosing an isolated and dark place to perpetrate the crime, to prevent detection[;] and (2) boxing the victim xxx, to weaken her defense´ are indicative of then seventeen (17) year-old appellant¶s mental capacity to fully understand the consequences of his unlawful action. Nonetheless, the corresponding imposable penalty should be modified. The birth certificate of AAA shows that she was born on 3 December 1997. Considering that she was only five (5) years old when appellant defiled her on 28 January 2003, the law prescribing the death penalty when rape is committed against a child below seven (7) years old applies. The following, however, calls for the reduction of the penalty: (1) the prohibition against the imposition of the penalty of death in accordance with Republic Act No. 9346; and (2) the privileged mitigating circumstance of minority of the appellant, which has the effect of reducing the penalty one degree lower than that prescribed by law, pursuant to Article 68 of the Revised Penal Code. Relying on People v. Bon, the Court of Appeals excluded death from the graduation of penalties provided in Article 71 of the Revised Penal Code. Consequently, in its appreciation of the privileged mitigating circumstance of minority of appellant, it lowered the penalty one degree from reclusion perpetua and sentenced appellant to suffer the indeterminate penalty of six (6) years and one (1) day to twelve (12) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, in its medium period, as maximum. We differ. In a more recent case, the Court En Banc, through the Honorable Justice Teresita J. Leonardo-de Castro, clarified: Under Article 68 of the Revised Penal Code, when the offender is a minor under 18 years, the penalty next lower than that prescribed by law shall be imposed, but always in the proper period. However, for purposes of determining the proper penalty because of the privileged mitigating circumstance of minority, the penalty of death is still the penalty to be reckoned with. Thus, the proper imposable penalty for the accused-appellant is reclusion perpetua. (Emphasis supplied.) Accordingly, appellant should be meted the penalty of reclusion perpetua.

Civil Liability We have consistently ruled that: The litmus test xxx in the determination of the civil indemnity is the heinous character of the crime committed, which would have warranted the imposition of the death penalty, regardless of whether the penalty actually imposed is reduced to reclusion perpetua. Likewise, the fact that the offender was still a minor at the time he committed the crime has no bearing on the gravity and extent of injury suffered by the victim and her family. The respective awards of civil indemnity and moral damages in the amount of P75,000.00 each are, therefore, proper. Accordingly, despite the presence of the privileged mitigating circumstance of minority which effectively lowered the penalty by one degree, we affirm the damages awarded by the Court of Appeals in the amount of P75,000.00 as civil indemnity and P75,000.00 as moral damages. And, consistent with prevailing jurisprudence, the amount of exemplary damages should be increased from P25,000.00 to P30,000.00. Automatic Suspension of Sentence; Duration; Appropriate Disposition after the Lapse of the Period of Suspension of Sentence Republic Act No. 9344 warrants the suspension of sentence of a child in conflict with the law notwithstanding that he/she has reached the age of majority at the time the judgment of conviction is pronounced. Thus:

SEC. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, That suspension of sentence shall still be applied even if the juvenile is already eighteen (18) years of age or more at the time of the pronouncement of his/her guilt. (Emphasis supplied.) xxxx Applying Declarador v. Gubaton, which was promulgated on 18 August 2006, the Court of Appeals held that, consistent with Article 192 of Presidential Decree No. 603, as amended, the aforestated provision does not apply to one who has been convicted of an offense punishable by death, reclusion perpetua or life imprisonment. Meanwhile, on 10 September 2009, this Court promulgated the decision in Sarcia, overturning the ruling in Gubaton. Thus: The xxx provision makes no distinction as to the nature of the offense committed by the child in conflict with the law, unlike P.D. No. 603 and A.M. No. 02-1-18-SC. The said P.D. and Supreme Court (SC) Rule provide that the benefit of suspended sentence would not apply to a child in conflict with the law if, among others, he/she has been convicted of an offense punishable by death, reclusion perpetua or life imprisonment. In construing Sec. 38 of R.A. No. 9344, the Court is guided by the basic principle of statutory construction that when the law does not distinguish, we should not distinguish. Since R.A. No. 9344 does not distinguish between a minor who has been convicted of a capital offense and another who has been convicted of a lesser offense, the Court should also not distinguish and should apply the automatic suspension of sentence to a child in conflict with the law who has been found guilty of a heinous crime.

The legislative intent reflected in the Senate deliberations on Senate Bill No. 1402 (Juvenile Justice and Delinquency Prevention Act of 2005) further strengthened the new position of this Court to cover heinous crimes in the application of the provision on the automatic suspension of sentence of a child in conflict with the law. The pertinent portion of the deliberation reads: If a mature minor, maybe 16 years old to below 18 years old is charged, accused with, or may have committed a serious offense, and may have acted with discernment, then the child could be recommended by the Department of Social Welfare and Development (DSWD), by the Local Council for the Protection of Children (LCPC), or by [Senator Miriam Defensor-Santiago¶s] proposed Office of Juvenile Welfare and Restoration to go through a judicial proceeding; but the welfare, best interests, and restoration of the child should still be a primordial or primary consideration. Even in heinous crimes, the intention should still be the child¶s restoration, rehabilitation and reintegration. xxx (Italics supplied in Sarcia.) On 24 November 2009, the Court En Banc promulgated the Revised Rule on Children in Conflict with the Law, which reflected the same position. These developments notwithstanding, we find that the benefits of a suspended sentence can no longer apply to appellant. The suspension of sentence lasts only until the child in conflict with the law reaches the maximum age of twenty-one (21) years. Section 40 of the law and Section 48 of the Rule are clear on the matter. Unfortunately, appellant is now twenty-five (25) years old. Be that as it may, to give meaning to the legislative intent of the Act, the promotion of the welfare of a child in conflict with the law should extend even to one who has exceeded the age limit of twenty-one (21) years, so long as he/she committed the crime when he/she was still a child. The offender shall be entitled to the right to restoration, rehabilitation and reintegration in accordance with the Act in order that he/she is given the chance to live a normal life and become a productive member of the community. The age of the child in conflict with the law at the time of the promulgation of the judgment of conviction is not material. What matters is that the offender committed the offense when he/she was still of tender age.

Thus, appellant may be confined in an agricultural camp or any other training facility in accordance with Sec. 51 of Republic Act No. 9344. Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training Facilities. ± A child in conflict with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities that may be established, maintained, supervised and controlled by the BUCOR, in coordination with the DSWD. Following the pronouncement in Sarcia, the case shall be remanded to the court of origin to effect appellant¶s confinement in an agricultrual camp or other training facility. WHEREFORE, the Decision dated 29 August 2007 of the Court of Appeals in CA-G.R. CR HC No. 00213 finding appellant Hermie M. Jacinto guilty beyond reasonable doubt of qualified rape is AFFIRMED with the following MODIFICATIONS: (1) the death penalty imposed on the appellant is reduced to reclusion perpetua; and (2) appellant is ordered to pay the victim P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P30,000.00 as exemplary damages. The case is hereby REMANDED to the court of origin for its appropriate action in accordance with Section 51 of Republic Act No. 9344.

SO ORDERED. JOSE PORTUGAL PEREZ Associate Justice

[G.R. No. 153591. February 23, 2004] PEOPLE OF THE PHILIPPINES, appellee, vs. RENATO GARCIA y ROMANO, appellant. DECISION YNARES-SANTIAGO, J.: Appellant Renato Garcia y Romano was charged with Murder before the Regional Trial Court of Quezon City, Branch 87, in Criminal Case No. Q-98-79961 in an Information which reads: That on or about the 22nd day of May, 1998, in Quezon City, Philippines, the said accused, being then the driver and/or person in charge of an Isuzu Jitney bearing Plate No. NPJ-948 did then and there unlawfully and feloniously drive, manage and operate the same along Zabarte Road in said City, in a careless, reckless, negligent and impudent manner, by then and there making the said vehicle run at a speed greater than was reasonable and proper without taking the necessary precaution to avoid accident to person/s of the traffic at said place at the time, causing as consequence of his said carelessness, negligence, impudence and lack of precaution, the said vehicle so driven, managed and operated by him to hit and bump, as in fact it hit and bumped Sanily Billon y Trinidad, a pedestrian, thereafter, with intent to kill, qualified by evident premeditation and use of motor vehicle, did then and there willfully, unlawfully and feloniously ran said vehicle over the victim thereby causing her serious and mortal wounds which were the direct and immediate cause of her untimely death, to the damage and prejudice of the heirs of the said Sanily Billon y Trinidad. CONTRARY TO LAW. On arraignment, appellant pleaded ³not guilty´. Thereafter, trial on the merits followed. The prosecution alleged that at around 12:00 noon of May 22, 1998, Bentley Billon and his younger sister, Sanily, boarded a passenger jeepney on their way to Sacred Heart School in Barangay Kaligayahan, Novaliches, Quezon City to attend remedial classes. They alighted on Zabarte Road in front of the school. Bentley crossed the street and waited on the center island for Sanily to cross. While Sanily was crossing the street, a passenger jeepney driven by appellant, coming from Camarin and heading towards Quirino Highway, hit her on the left side of the body. Sanily fell and was thrown to the ground a meter away from the vehicle. The jeepney stopped. But as Bentley was running towards his sister, the vehicle suddenly accelerated with its front tire running over Sanily¶s stomach. Bentley and appellant pulled Sanily, who was writhing in excruciating pain, from underneath the vehicle and brought her to the Sta. Lucia Hospital but due to lack of medical facilities, she was transferred to the Quezon City General Hospital (QCGH) where she was operated. However, she died four days later. Dr. Emmanuel Reyes, Medico-legal of the Southern Police District, Fort Bonifacio, testified that the attending physician, Dr. Santiago C. Sagad, noted lacerations in Sanily¶s liver and spleen which was caused by a blunt/strong force on the victim¶s body, resulting to her death due to internal bleeding. He opined that the blunt force may have also caused lacerations in the victim¶s intestine and the abrasions on the arm, from the elbow to the shoulder could be the result of the skin¶s contact with a rough surface. Appellant admitted having ran over the victim, but claimed that it was an accident. He narrated that at around noon on May 22, 1998, while driving his passenger jeepney along Zabarte Road, he saw a boy crossing the street followed by the victim. While the vehicle was running, he heard a thud. He immediately applied his breaks and alighted to check what it was. He saw to his horror a girl sprawled underneath his vehicle between the front and the rear tires. He and the victim¶s brother rushed the girl to the Sta. Lucia Hospital, but they transferred her to the Quezon City General Hospital which has better facilities. A week later, he learned that the victim died.

On May 2, 2002, the trial court rendered judgment, finding appellant guilty beyond reasonable doubt of Murder and sentenced him to suffer the penalty of reclusion perpetua, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered finding accused guilty beyond reasonable doubt of the crime of Murder, for which, said RENATO GARCIA y ROMANO is hereby sentenced to suffer the penalty of reclusion perpetua and to indemnify the heirs of Sanily Billon the sum of One Hundred and Twenty Three Thousand and Five Hundred Pesos (P123,500.00) as actual damages including attorney¶s fees; Fifty Thousand Pesos (P50,000.00) as civil indemnity for the death of Sanily and Five Hundred Thousand Pesos (P500,000.00) as moral damages. Cost against the accused. SO ORDERED. The trial court held that appellant is guilty of murder qualified by evident premeditation because he deliberately ran over the slumped body of the victim. Hence this appeal, raising the following errors, to wit: I THE TRIAL COURT GRAVELY ERRED IN APPRECIATING AGAINST ACCUSEDAPPELLANT THE QUALIFYING CIRCUMSTANCE OF EVIDENT PREMEDITAION II THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED GUILTY BEYOND REASONABLE BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER AS CHARGED. The issue to be resolved is whether or not appellant is guilty of murder or reckless imprudence resulting in homicide. Appellant argues that the trial court gravely erred in finding that the qualifying circumstance of evident premeditation attended the commission of the offense. He contends that the mere allegation by the prosecution that he bumped the victim and intentionally ran over her body is not sufficient to establish evident premeditation. He claims that he did not intentionally run over the victim when his vehicle bumped her because he was rattled and was no longer aware of what he was doing. We find from a careful review of the facts on record that the unfortunate incident was more the result of reckless imprudence than of malicious intent. Therefore, the trial court erred in convicting appellant of the crime of murder qualified by evident premeditation. The elements of evident premeditation are: (1) a previous decision by the appellant to commit the crime; (2) an overt act/acts manifestly indicating that the appellant clung to his determination; and (3) a lapse of time between the decision to commit the crime and its actual execution sufficient to allow appellant to reflect upon the consequences of his acts. The victim¶s brother, Bentley, testified that the vehicle stopped after it bumped the victim, but it moved forward and ran over the prostrate body of her sister. From his narration, we find that no sufficient time elapsed for appellant to decide to commit the crime and reflect on its consequences. Moreover, there was no showing that appellant performed other overt acts to show that he was determined to commit murder. The essence of evident premeditation is that the execution of the criminal act must be preceded by cool thought and reflection upon the resolution to carry out the criminal intent, during the space of time sufficient to arrive at a calm judgment. These circumstances do not obtain in the case at bar. Appellant could have reacted on instinct and relied on sheer impulse to respond to the situation at hand. While it is possible that appellant deliberately ran over the victim, it is equally possible, if not more probable, that the vehicle moved forward because appellant failed to control its momentum. Indeed, this is more consistent with the unrebutted evidence that the jeepney, which had no handbrake, was moving fast and that appellant became confused when the accident occurred. Furthermore, appellant¶s act of bringing the victim to the hospital despite numerous opportunities to flee from the scene is more compatible with a state of mind devoid of criminal intent. In view of the gravity of the offense involved, the trial court should have been more circumspect in weighing the evidence of both parties. Our own evaluation of the evidence reveals that appellant had no intention to kill the victim. As such, he cannot be held liable for an intentional felony. All reasonable doubt intended to demonstrate negligence, and not criminal intent, must be resolved in favor of appellant.

Thus, appellant is guilty of reckless imprudence resulting in homicide defined in Article 365 of the Revised Penal Code, as amended. In U.S. v. Maleza, we explained the rationale behind this crime as follows: A man must use common sense, and exercise due reflection in all his acts; it is his duty to be cautious, careful, and prudent, if not from instinct, then through fear of incurring punishment. He is responsible for such results as anyone might foresee and for acts which no one would have performed except through culpable abandon. Otherwise his own person, rights and property, all those of his fellow-beings, would ever be exposed to all manner of danger and injury. In intentional crimes, the act itself is punished; in negligence or imprudence, what is principally penalized is the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible. Article 365 of the Revised Penal Code, as amended, states that reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing such act. Compared to intentional felonies, such as homicide or murder, what takes the place of the element of malice or intention to commit a wrong or evil is the failure of the offender to take precautions due to lack of skill taking into account his employment, or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time, and place. Appellant showed an inexcusable lack of precaution when he disregarded a traffic sign cautioning motorists to slow down and drove his vehicle in full speed despite being aware that he was traversing a school zone and pedestrians were crossing the street. He should have observed due diligence of a reasonably prudent man by slackening his speed and proceeding cautiously while passing the area. The imposable penalty, under Art. 365 (2) of the Revised Penal Code, homicide resulting from reckless imprudence in the use of motor vehicle is prision correccional in its medium and maximum periods, which ranges from two (2) years, four (4) months and one (1) day to six (6) years. Under Article 65 of the Revised Penal Code, the penalty shall be divided into three equal portions of time, each of which shall form one period. There being no aggravating or mitigating circumstance, the proper penalty shall be within the medium period, which is three (3) years, six (6) months and twenty-one (21) days to four (4) years, nine (9) months and ten (10) days. Applying the provisions of the Indeterminate Sentence Law, appellant is entitled to a minimum term to be taken from the penalty next lower in degree, which is arresto mayor, maximum to prision correccional, minimum. Accordingly, appellant should be sentenced to an indeterminate penalty of four (4) months and one (1) day of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. The trial court correctly awarded P50,000.00 as civil indemnity. However, the award of moral damages in the amount of P500,000.00 should be reduced to P50,000.00. The award of P30,000.00 as actual damages must likewise be modified. The mother of the victim presented receipts that they, in fact, spent P58,257.90 for hospital bills and funeral expenses. The fact that she received P40,000.00 from insurance will not affect the award of actual damages. The award of exemplary damages is deleted for lack of factual basis. WHEREFORE, in view of the foregoing, the Decision of the Regional Trial Court of Quezon City, Branch 87, in Civil Case No. Q-98-79961, convicting appellant of the crime of murder is REVERSED and SET ASIDE. Appellant Renato Garcia y Romano is found guilty beyond reasonable doubt of the crime reckless imprudence resulting in homicide, and he is sentenced to suffer an indeterminate prison term of four (4) months and one (1) day of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. Appellant is ordered to pay the heirs of the victim, P50,000.00 as civil indemnity, P58,257.90 as actual damages and P50,000.00 as moral damages. Costs de oficio. SO ORDERED. Davide, Jr., C.J. (Chairman), Panganiban, Carpio and Azcuna, JJ., concur.

G.R. No. 152133

February 9, 2006

ROLLIE CALIMUTAN, Petitioner, vs. PEOPLE OF THE PHILIPPINES, ET AL., Respondents. DECISION CHICO-NAZARIO, J.: In this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court, petitioner Rollie Calimutan prays for the reversal of the Decision of the Court of Appeals in CA-G.R. CR No. 23306, dated 29 August 2001,1 affirming the Decision of the Regional Trial Court (RTC), Branch 46, of Masbate, Masbate, in Criminal Case No. 8184, dated 19 November 1998,2 finding petitioner Calimutan guilty beyond reasonable doubt of the crime of homicide under Article 249 of the Revised Penal Code. The Information3 filed with the RTC charged petitioner Calimutan with the crime of homicide, allegedly committed as follows ± That on or about February 4, 1996, in the morning thereof, at sitio Capsay, Barangay Panique, Municipality of Aroroy, Province of Masbate, Philippines within the jurisdiction of this Honorable Court, the above-named accused with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and throw a stone at PHILIP CANTRE, hitting him at the back left portion of his body, resulting in laceration of spleen due to impact which caused his death a day after. CONTRARY TO LAW. Masbate, Masbate, September 11, 1996. Accordingly, the RTC issued, on 02 December 1996, a warrant4 for the arrest of petitioner Calimutan. On 09 January 1997, however, he was provisionally released5 after posting sufficient bailbond.6 During the arraignment on 21 May 1997, petitioner Calimutan pleaded not guilty to the crime of homicide charged against him.7 In the course of the trial, the prosecution presented three witnesses, namely: (1) Dr. Ronaldo B. Mendez, a Senior Medico-Legal Officer of the National Bureau of Investigation (NBI); (2) Belen B. Cantre, mother of the victim, Philip Cantre; and (3) Rene L. Sañano, companion of the victim Cantre when the alleged crime took place. Their testimonies are collectively summarized below. On 04 February 1996, at around 10:00 a.m., the victim Cantre and witness Sañano, together with two other companions, had a drinking spree at a videoke bar in Crossing Capsay, Panique, Aroroy, Masbate. From the videoke bar, the victim Cantre and witness Sañano proceeded to go home to their respective houses, but along the way, they crossed paths with petitioner Calimutan and a certain Michael Bulalacao. Victim Cantre was harboring a grudge against Bulalacao, suspecting the latter as the culprit responsible for throwing stones at the Cantre¶s house on a previous night. Thus, upon seeing Bulalacao, victim Cantre suddenly punched him. While Bulalacao ran away, petitioner Calimutan dashed towards the backs of victim Cantre and witness Sañano. Petitioner Calimutan then picked up a stone, as big as a man¶s fist, which he threw at victim Cantre, hitting him at the left side of his back. When hit by the stone, victim Cantre stopped for a moment and held his back. Witness Sañano put himself between the victim Cantre and petitioner Calimutan, and attempted to pacify the two, even convincing petitioner Calimutan to put down another stone he was already holding. He also urged victim Cantre and petitioner Calimutan to just go home. Witness Sañano accompanied victim Cantre to the latter¶s house, and on the way, victim Cantre complained of the pain in the left side of his back hit by the stone.

They arrived at the Cantre¶s house at around 12:00 noon, and witness Sañano left victim Cantre to the care of the latter¶s mother, Belen.8 Victim Cantre immediately told his mother, Belen, of the stoning incident involving petitioner Calimutan. He again complained of backache and also of stomachache, and was unable to eat. By nighttime, victim Cantre was alternately feeling cold and then warm. He was sweating profusely and his entire body felt numb. His family would have wanted to bring him to a doctor but they had no vehicle. At around 3:00 a.m. of the following day, 05 February 1996, Belen was wiping his son with a piece of cloth, when victim Cantre asked for some food. He was able to eat a little, but he also later vomited whatever he ate. For the last time, he complained of backache and stomachache, and shortly thereafter, he died.9 Right after his death, victim Cantre was examined by Dr. Conchita S. Ulanday, the Municipal Health Officer of Aroroy, Masbate. The Post-Mortem Examination Report10 and Certification of Death,11 issued and signed by Dr. Ulanday, stated that the cause of death of victim Cantre was cardio-respiratory arrest due to suspected food poisoning. The body of victim Cantre was subsequently embalmed and buried on 13 February 1996. Unsatisfied with the findings of Dr. Ulanday, the Cantre family, with the help of the Lingkod Bayan-Circulo de Abogadas of the ABS-CBN Foundation, requested for an exhumation and autopsy of the body of the victim Cantre by the NBI. The exhumation and autopsy of the body of the victim Cantre was conducted by Dr. Ronaldo B. Mendez on 15 April 1996,12 after which, he reported the following findings ± Body; fairly well-preserved with sign of partial autopsy; clad in white Barong Tagalog and blue pants placed inside a wooden golden-brown coffin and buried in a concrete niche. Contused-abrasion, 2.3 x 1.0 cms., posterior chest wall, left side. Hematoma, 16.0 x 8.0 cms., abdomen, along mid-line. Hemoperitoneum, massive, clotte [sic]. Laceration, spleen. Other visceral organ, pale and embalmed. Stomach contains small amount of whitish fluid and other partially digested food particles. xxxx CAUSE OF DEATH: TRAUMATIC INJURY OF THE ABDOMEN. In his testimony before the RTC, Dr. Mendez affirmed the contents of his exhumation and autopsy report. He explained that the victim Cantre suffered from an internal hemorrhage and there was massive accumulation of blood in his abdominal cavity due to his lacerated spleen. The laceration of the spleen can be caused by any blunt instrument, such as a stone. Hence, Dr. Mendez confirmed the possibility that the victim Cantre was stoned to death by petitioner Calimutan.13 To counter the evidence of the prosecution, the defense presented the sole testimony of the accused, herein petitioner, Calimutan. According to petitioner Calimutan, at about 1:00 p.m. on 04 February 1996, he was walking with his house helper, Michael Bulalacao, on their way to Crossing Capsay, Panique, Aroroy, Masbate, when they met with the

victim Cantre and witness Sañano. The victim Cantre took hold of Bulalacao and punched him several times. Petitioner Calimutan attempted to pacify the victim Cantre but the latter refused to calm down, pulling out from his waist an eight-inch Batangas knife and uttering that he was looking for trouble, either "to kill or be killed." At this point, petitioner Calimutan was about ten meters away from the victim Cantre and was too frightened to move any closer for fear that the enraged man would turn on him; he still had a family to take care of. When he saw that the victim Cantre was about to stab Bulalacao, petitioner Calimutan picked up a stone, which he described as approximately one-inch in diameter, and threw it at the victim Cantre. He was able to hit the victim Cantre on his right buttock. Petitioner Calimutan and Bulalacao then started to run away, and victim Cantre chased after them, but witness Sañano was able to pacify the victim Cantre. Petitioner Calimutan allegedly reported the incident to a kagawad of Barangay Panique and to the police authorities and sought their help in settling the dispute between Bulalacao and the victim Cantre. Bulalacao, meanwhile, refused to seek medical help despite the advice of petitioner Calimutan and, instead, chose to go back to his hometown.14 Petitioner Calimutan was totally unaware of what had happened to the victim Cantre after the stoning incident on 04 February 1996. Some of his friends told him that they still saw the victim Cantre drinking at a videoke bar on the night of 04 February 1996. As far as he knew, the victim Cantre died the following day, on 05 February 1996, because of food poisoning. Petitioner Calimutan maintained that he had no personal grudge against the victim Cantre previous to the stoning incident.15 On 19 November 1998, the RTC rendered its Decision,16 essentially adopting the prosecution¶s account of the incident on 04 February 1996, and pronouncing that ± It cannot be legally contended that the throwing of the stone by the accused was in defense of his companion, a stranger, because after the boxing Michael was able to run. While it appears that the victim was the unlawful aggressor at the beginning, but the aggression already ceased after Michael was able to run and there was no more need for throwing a stone. The throwing of the stone to the victim which was a retaliatory act can be considered unlawful, hence the accused can be held criminally liable under paragraph 1 of Art. 4 of the Revised Penal Code. The act of throwing a stone from behind which hit the victim at his back on the left side was a treacherous one and the accused committed a felony causing physical injuries to the victim. The physical injury of hematoma as a result of the impact of the stone resulted in the laceration of the spleen causing the death of the victim. The accused is criminally liable for all the direct and natural consequences of this unlawful act even if the ultimate result had not been intended. (Art. 4, Par. 1, Revised Penal Code; People vs. Narciso, CA-G.R. No. 03532-CR, Jan. 13, 1964) One is not relieved from criminal liability for the natural consequences of one¶s illegal acts merely because one does not intend to produce such consequences (U.S. vs. Brobst, 14 Phil. 310). The crime committed is Homicide as defined and penalized under Art. 249 of the Revised Penal Code. WHEREFORE, the Court finds and so holds that accused ROLLIE CALIMUTAN is GUILTY beyond reasonable doubt of the crime of Homicide defined and penalized under Art. 249 of the Revised Penal Code with no mitigating or aggravating circumstance and applying the Indeterminate Sentence Law hereby imposes the penalty of imprisonment from EIGHT (8) YEARS of Prision Mayor as minimum, to TWELVE (12) YEARS and ONE (1) DAY of Reclusion Temporal as maximum, and to indemnify the heirs of Philip Cantre the sum of Fifty Thousand (P50,000.00) Pesos as compensatory damages and the sum of Fifty Thousand (P50,000.00) Pesos as moral damages, without subsidiary imprisonment in case of insolvency. Petitioner Calimutan appealed the Decision of the RTC to the Court of Appeals. The Court of Appeals, in its Decision, dated 29 August 2001,17 sustained the conviction of homicide rendered by the RTC against petitioner Calimutan, ratiocinating thus ±

The prosecution has sufficiently established that the serious internal injury sustained by the victim was caused by the stone thrown at the victim by the accused which, the accused-appellant does not deny. It was likewise shown that the internal injury sustained by the victim was the result of the impact of the stone that hit the victim. It resulted to a traumatic injury of the abdomen causing the laceration of the victim¶s spleen. This is clearly shown by the autopsy report prepared by Dr. Ronaldo Mendez, a Senior Medico Legal Officer of the NBI after the exhumation of the victim¶s cadaver« The Court cannot give credence to the post mortem report prepared by Municipal Health Officer Dr. Conchita Ulanday stating that the cause of the victim¶s death was food poisoning. Dr. Ulanday was not even presented to testify in court hence she was not even able to identify and/or affirm the contents of her report. She was not made available for cross-examination on the accuracy and correctness of her findings. Dr. Conchita Ulanday¶s post mortem report cannot prevail over the autopsy report (Exh. "C") of the MedicoLegal Officer of the NBI who testified and was cross-examined by the defense. Besides, if accused-appellant was convinced that the victim indeed died of food poisoning, as reported by Dr. Conchita Ulanday, why did they not present her as their witness to belie the report of the Medico-Legal Officer of the NBI. The trial court¶s evaluation of the testimony of Dr. Mendez is accorded the highest respect because it had the opportunity to observe the conduct and demeanor of said witness. WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Masbate, Branch 46, finding accused-appellant guilty beyond reasonable doubt of the crime of homicide is hereby AFFIRMED. The Court of Appeals, in its Resolution, dated 15 January 2002,18 denied the Motion for Reconsideration filed by petitioner Calimutan for lack of merit since the issues raised therein had already been passed and ruled upon in its Decision, dated 29 August 2001. Comes now petitioner Calimutan, by way of the present Petition for Review on Certiorari, seeking (1) the reversal of the Decisions of the RTC, dated 19 November 1998, and of the Court of Appeals, dated 29 August 2001, convicting him of the crime of homicide; and, (2) consequently, his acquittal of the said crime based on reasonable doubt. Petitioner Calimutan contended that the existence of the two autopsy reports, with dissimilar findings on the cause of death of the victim Cantre, constituted reasonable doubt as to the liability of petitioner Calimutan for the said death, arguing that ± x x x [I]t was Dra. Conchita Ulanday, Municipal Health Officer of Aroroy, Masbate was the first physician of the government who conducted an examination on the cadaver of the victim Philip Cantre whose findings was that the cause of his death was due to food poisoning while the second government physician NBI Medico Legal Officer Dr. Ronaldo Mendez whose findings was that the cause of the death was due to a traumatic injury of the abdomen caused by a lacerated spleen and with these findings of two (2) government physicians whose findings are at variance with each other materially, it is humbly contended that the same issue raised a reasonable doubt on the culpability of the petitioner. As there are improbabilities and uncertainties of the evidence for the prosecution in the case at bar, it suffices to reaise [sic] reasonable doubt as to the petitioner¶s guilt and therefore, he is entitled to acquittal (People vs. Delmendo, G.R. No. 32146, November 23, 1981).19

In this jurisdiction, an accused in a criminal case may only be convicted if his or her guilt is established by proof beyond reasonable doubt. Proof beyond reasonable doubt requires only a moral certainty or that degree of proof which produces conviction in an unprejudiced mind; it does not demand absolute certainty and the exclusion of all possibility of error.20 In the Petition at bar, this Court finds that there is proof beyond reasonable doubt to hold petitioner Calimutan liable for the death of the victim Cantre. Undoubtedly, the exhumation and autopsy report and the personal testimony before the RTC of prosecution witness, NBI Senior Medico-Legal Officer Dr. Mendez, are vital pieces of evidence against petitioner Calimutan. Dr. Mendez determined that the victim Cantre died of internal hemorrhage or bleeding due to the laceration of his spleen. In his testimony, Dr. Mendez clearly and consistently explained that the spleen could be lacerated or ruptured when the abdominal area was hit with a blunt object, such as the stone thrown by petitioner Calimutan at the victim Cantre. It bears to emphasize that Dr. Mendez was presented by the prosecution as an expert witness, whose "competency and academic qualification and background" was admitted by the defense itself.21 As a Senior Medico-Legal Officer of the NBI, Dr. Mendez is presumed to possess sufficient knowledge of pathology, surgery, gynecology, toxicology, and such other branches of medicine germane to the issues involved in a case.22 Dr. Mendez¶s testimony as an expert witness is evidence,23 and although it does not necessarily bind the courts, both the RTC and the Court of Appeals had properly accorded it great weight and probative value. Having testified as to matters undeniably within his area of expertise, and having performed a thorough autopsy on the body of the victim Cantre, his findings as to the cause of death of the victim Cantre are more than just the mere speculations of an ordinary person. They may sufficiently establish the causal relationship between the stone thrown by the petitioner Calimutan and the lacerated spleen of the victim Cantre which, subsequently, resulted in the latter¶s death. With no apparent mistake or irregularity, whether in the manner by which Dr. Mendez performed the autopsy on the body of the victim Cantre or in his findings, then his report and testimony must be seriously considered by this Court. Moreover, reference to other resource materials on abdominal injuries would also support the conclusion of Dr. Mendez that the stone thrown by petitioner Calimutan caused the death of the victim Cantre. One source explains the nature of abdominal injuries24 in the following manner ± The skin may remain unmarked inspite of extensive internal injuries with bleeding and disruption of the internal organs. The areas most vulnerable are the point of attachment of internal organs, especially at the source of its blood supply and at the point where blood vessels change direction. The area in the middle superior half of the abdomen, forming a triangle bounded by the ribs on the two sides and a line drawn horizontally through the umbilicus forming its base is vulnerable to trauma applied from any direction. In this triangle are found several blood vessels changing direction, particularly the celiac trunk, its branches (the hepatic, splenic and gastric arteries) as well as the accompanying veins. The loop of the duodenum, the ligament of Treitz and the pancreas are in the retroperitoneal space, and the stomach and transverse colon are in the triangle, located in the peritoneal cavity. Compression or blow on the area may cause detachment, laceration, stretch-stress, contusion of the organs (Legal Medicine 1980, Cyril H. Wecht et., p. 41). As to injuries to the spleen, in particular,25 the same source expounds that ± The spleen usually suffers traumatic rupture resulting from the impact of a fall or blow from the crushing and grinding effects of wheels of motor vehicles. Although the organ is protected at its upper portion by the ribs and

also by the air-containing visceral organs, yet on account of its superficiality and fragility, it is usually affected by trauma. x x x. Certainly, there are some terms in the above-quoted paragraphs difficult to comprehend for people without medical backgrounds. Nevertheless, there are some points that can be plainly derived therefrom: (1) Contrary to common perception, the abdominal area is more than just the waist area. The entire abdominal area is divided into different triangles, and the spleen is located in the upper triangle, bounded by the rib cage; (2) The spleen and all internal organs in the same triangle are vulnerable to trauma from all directions. Therefore, the stone need not hit the victim Cantre from the front. Even impact from a stone hitting the back of the victim Cantre, in the area of the afore-mentioned triangle, could rupture the spleen; and (3) Although the spleen had already been ruptured or lacerated, there may not always be a perceptible external injury to the victim. Injury to the spleen cannot, at all times, be attributed to an obvious, external injury such as a cut or bruise. The laceration of the victim Cantre¶s spleen can be caused by a stone thrown hard enough, which qualifies as a nonpenetrating trauma26 ± Nonpenetrating Trauma. The spleen, alone or in combination with other viscera, is the most frequently injured organ following blunt trauma to the abdomen or the lower thoracic cage. Automobile accidents provide the predominating cause, while falls, sledding and bicycle injuries, and blows incurred during contact sports are frequently implicated in children. x x x The sheer impact of the stone thrown by petitioner Calimutan at the back of the victim Cantre could rupture or lacerate the spleen ± an organ described as vulnerable, superficial, and fragile ± even without causing any other external physical injury. Accordingly, the findings of Dr. Mendez that the victim Cantre died of internal hemorrhage from his lacerated spleen, and the cause of the laceration of the spleen was the stone thrown by petitioner Calimutan at the back of the victim Cantre, does not necessarily contradict his testimony before the RTC that none of the external injuries of the victim Cantre were fatal. Based on the foregoing discussion, the prosecution was able to establish that the proximate cause of the death of the victim Cantre was the stone thrown at him by petitioner Calimutan. Proximate cause has been defined as "that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred."27 The two other witnesses presented by the prosecution, namely Sañano and Belen Cantre, had adequately recounted the events that transpired on 04 February 1996 to 05 February 1996. Between the two of them, the said witnesses accounted for the whereabouts, actions, and physical condition of the victim Cantre during the said period. Before the encounter with petitioner Calimutan and Bulalacao, the victim Cantre seemed to be physically fine. However, after being hit at the back by the stone thrown at him by petitioner Calimutan, the victim Cantre had continuously complained of backache. Subsequently, his physical condition rapidly deteriorated, until finally, he died. Other than being stoned by petitioner Calimutan, there was no other instance when the victim Cantre may have been hit by another blunt instrument which could have caused the laceration of his spleen. Hence, this Court is morally persuaded that the victim Cantre died from a lacerated spleen, an injury sustained after being hit by a stone thrown at him by petitioner Calimutan. Not even the post-mortem report of Dr. Ulanday, the Municipal Health Officer who first examined the body of the victim Cantre, can raise reasonable doubt as to the cause of death of the victim Cantre. Invoking Dr. Ulanday¶s post-mortem report, the defense insisted on the possibility that the victim Cantre died of food poisoning. The post-mortem report, though, cannot be given much weight and probative value for the following reasons ± First, a closer scrutiny of the words used by Dr. Ulanday in her post-mortem report, as well as in the death certificate of the victim Cantre, reveals that although she suspected food poisoning as the cause of death, she held back from making a categorical statement that it was so. In the post-mortem report, 28 she found that "x x x

the provable (sic) cause of death was due to cardio-respiratory arrest. Food poisoning must be confirm (sic) by laboratory e(x)am." In the death certificate of the victim Cantre, 29 she wrote that the immediate cause of death was "Cardio-Respiratory Arrest" and the antecedent cause was "Food Poisoning Suspect." There was no showing that further laboratory tests were indeed conducted to confirm Dr. Ulanday¶s suspicion that the victim Cantre suffered from food poisoning, and without such confirmation, her suspicion as to the cause of death remains just that ± a suspicion. Second, Dr. Ulanday executed before the NBI a sworn statement30 in which she had explained her findings in the post-mortem report, to wit ± 05. Q: Did you conduct an autopsy on his cadaver? A: I did sir, but not as exhaustive as that done by the NBI Medico-legal. 06. Q: Now, what do you want to state regarding your certification on the death of PHILIP B. CANTRE? A: I stated in the certification and even in the Death Certificate about "Food Poisoning". What I stated in the Death Certificate was that CANTRE was a SUSPECTED victim of food poisoning. I didn¶t state that he was a case of food poisoning. And in the Certification, I even recommended that an examination be done to confirm that suspicion. 07. Q: What gave you that suspicion of poisoning? A: As there were no external signs of fatal injuries except that of the contusion or abrasion, measuring as that size of a 25 centavo coin, I based my suspicion from the history of the victim and from the police investigation. 08. Q: You also mentioned in your Certification that there was no internal hemorrhage in the cadaver. Did you open the body of the cadaver? A: As I have already stated sir, I did not conduct an exhaustive autopsy. I made an incision on the abdomen and I explored the internal organs of the cadaver with my hand in search for any clotting inside. But I found none. I did not open the body of the cadaver. 09. Q: You mentioned about a contusion you have observed on the cadaver. Where was it located? A: On the left portion of his back, sir. 10. Q: Now, is it possible that if somebody be hit by a hard object on that part of his body, his SPLEEN could be injured? A: Yes, sir. But that would depend on how strong or forceful the impact was. In contrast, Dr. Mendez described in his testimony before the RTC31 how he conducted the autopsy of the body of the victim Cantre, as follows ± Q What specific procedure did you do in connection with the exhumation of the body of the victim in this case? A We opened the head, chest and the abdomen. Q That was part of the autopsy you have conducted?

A Yes, sir. Q Aside from opening the head as well as the body of the victim Philip Cantre, what other matters did you do in connection therewith? A We examined the internal organs. Q What in particular internal organs you have examined? A The brain, the heart, the lungs, the liver, the kidneys, the pancreas plus the intestines. xxxx Q The cause of death as you have listed here in your findings is listed as traumatic injury of the abdomen, will you kindly tell us Doctor what is the significance of this medical term traumatic injury of the abdomen? A We, medico-legal officers of the NBI don¶t do what other doctors do as they make causes of death as internal hemorrhage we particularly point to the injury of the body like this particular case the injury was at the abdomen of the victim. Q Will you tell as Doctor what particular portion of the abdomen of the victim this traumatic injury is located? A Along the midline but the damaged organ was at the left. Q What particular organ are you referring to? A The spleen, sir. The difference in the extent of the examinations conducted by the two doctors of the body of the victim Cantre provides an adequate explanation for their apparent inconsistent findings as to the cause of death. Comparing the limited autopsy conducted by Dr. Ulanday and her unconfirmed suspicion of food poisoning of the victim Cantre, as opposed to the exhaustive autopsy performed by Dr. Mendez and his definitive finding of a ruptured spleen as the cause of death of the victim Cantre, then the latter, without doubt, deserves to be given credence by the courts. Third, that the prosecution no longer presented Dr. Ulanday before the RTC despite being included in its list of witnesses did not amount to a willful suppression of evidence that would give rise to the presumption that her testimony would be adverse to the prosecution if produced.32 As this Court already expounded in the case of People v. Jumamoy33 ± The prosecution's failure to present the other witnesses listed in the information did not constitute, contrary to the contention of the accused, suppression of evidence. The prosecutor has the exclusive prerogative to determine the witnesses to be presented for the prosecution. If the prosecution has several eyewitnesses, as in the instant case, the prosecutor need not present all of them but only as many as may be needed to meet the quantum of proof necessary to establish the guilt of the accused beyond reasonable doubt. The testimonies of the other witnesses may, therefore, be dispensed with for being merely corroborative in nature. This Court has ruled that the non-presentation of corroborative witnesses would not constitute suppression of evidence and would not be fatal to the prosecution's case. Besides, there is no showing that the eyewitnesses who were not presented in court as witnesses were not available to the accused. We reiterate the rule that the adverse presumption from a suppression of evidence is not applicable when (1) the suppression is not willful; (2) the evidence suppressed or withheld is merely corroborative or cumulative; (3) the evidence is at the disposal of

both parties; and (4) the suppression is an exercise of a privilege. Moreover, if the accused believed that the failure to present the other witnesses was because their testimonies would be unfavorable to the prosecution, he should have compelled their appearance, by compulsory process, to testify as his own witnesses or even as hostile witnesses. It was a judgment call for the prosecution to no longer present Dr. Ulanday before the RTC, perhaps believing that it had already presented sufficient evidence to merit the conviction of petitioner Calimutan even without her testimony. There was nothing, however, preventing the defense from calling on, or even compelling, with the appropriate court processes, Dr. Ulanday to testify in court as its witness if it truly believed that her testimony would be adverse to the case presented by the prosecution. While this Court is in accord with the factual findings of the RTC and the Court of Appeals and affirms that there is ample evidence proving that the death of the victim Cantre was caused by his lacerated spleen, an injury which resulted from being hit by the stone thrown at him by petitioner Calimutan, this Court, nonetheless, is at variance with the RTC and the Court of Appeals as to the determination of the appropriate crime or offense for which the petitioner should have been convicted for. Article 3 of the Revised Penal Code classifies felonies according to the means by which they are committed, in particular: (1) intentional felonies, and (2) culpable felonies. These two types of felonies are distinguished from each other by the existence or absence of malicious intent of the offender ± In intentional felonies, the act or omission of the offender is malicious. In the language of Art. 3, the act is performed with deliberate intent (with malice). The offender, in performing the act or in incurring the omission, has the intention to cause an injury to another. In culpable felonies, the act or omission of the offender is not malicious. The injury caused by the offender to another person is "unintentional, it being simply the incident of another act performed without malice." (People vs. Sara, 55 Phil. 939). As stated in Art. 3, the wrongful act results from imprudence, negligence, lack of foresight or lack of skill.34 In the Petition at bar, this Court cannot, in good conscience, attribute to petitioner Calimutan any malicious intent to injure, much less to kill, the victim Cantre; and in the absence of such intent, this Court cannot sustain the conviction of petitioner Calimutan for the intentional crime of homicide, as rendered by the RTC and affirmed by the Court of Appeals. Instead, this Court finds petitioner Calimutan guilty beyond reasonable doubt of the culpable felony of reckless imprudence resulting in homicide under Article 365 of the Revised Penal Code. Article 365 of the Revised Penal Code expressly provides for the definition of reckless imprudence ± Reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place. There are several circumstances, discussed in the succeeding paragraphs, that demonstrate petitioner Calimutan¶s lack of intent to kill the victim Cantre, and conversely, that substantiate the view of this Court that the death of victim Cantre was a result of petitioner Calimutan¶s reckless imprudence. The RTC and the Court of Appeals may have failed to appreciate, or had completely overlooked, the significance of such circumstances. It should be remembered that the meeting of the victim Cantre and witness Sañano, on the one hand, and petitioner Calimutan and his helper Bulalacao, on the other, was a chance encounter as the two parties were on their way to different destinations. The victim Cantre and witness Sañano were on their way home from a drinking spree in Crossing Capsay, while petitioner Calimutan and his helper Bulalacao were walking from the market to Crossing Capsay. While the evidence on record suggests that a running grudge existed between the

victim Cantre and Bulalacao, it did not establish that there was likewise an existing animosity between the victim Cantre and petitioner Calimutan.1avvphil.net In both versions of the events of 04 February 1996 submitted by the prosecution and the defense, it was the victim Cantre who was the initial aggressor. He suddenly punched Bulalacao, the helper and companion of petitioner Calimutan, when they met on the road. The attack of the victim Cantre was swift and unprovoked, which spurred petitioner Calimutan into responsive action. Given that this Court dismisses the claim of petitioner Calimutan that the victim Cantre was holding a knife, it does take into account that the victim Cantre was considerably older and bigger, at 26 years of age and with a height of five feet and nine inches, compared to Bulalacao, the boy he attacked, who was only 15 years old and stood at about five feet. Even with his bare hands, the victim Cantre could have hurt Bulalacao. Petitioner Calimutan sought only to protect Bulalacao and to stop the assault of the victim Cantre against the latter when he picked up a stone and threw it at the victim Cantre. The stone was readily available as a weapon to petitioner Calimutan since the incident took place on a road. That he threw the stone at the back of the victim Cantre does not automatically imply treachery on the part of petitioner Calimutan as it is highly probable that in the midst of the fray, he threw the stone rashly and impulsively, with no regard as to the position of the victim Cantre. When the victim Cantre stopped his aggression after being hit by the stone thrown by petitioner Calimutan, the latter also desisted from any other act of violence against the victim Cantre. The above-described incident could not have taken more than just a few minutes. It was a very brief scuffle, in which the parties involved would hardly have the time to ponder upon the most appropriate course of action to take. With this in mind, this Court cannot concur in the declaration made by the Court of Appeals that petitioner Calimutan threw the stone at the victim Cantre as a retaliatory act. It was evidently a swift and spontaneous reaction to an unexpected and unprovoked attack by the victim Cantre on Bulalacao. That Bulalacao was already able to run away from the victim Cantre may have escaped the notice of the petitioner Calimutan who, under the pressure of the circumstances, was forced to act as quickly as possible. The prosecution did not establish that petitioner Calimutan threw the stone at the victim Cantre with the specific intent of killing, or at the very least, of harming the victim Cantre. What is obvious to this Court was petitioner Calimutan¶s intention to drive away the attacker who was, at that point, the victim Cantre, and to protect his helper Bulalacao who was, as earlier described, much younger and smaller in built than the victim Cantre.35 Granting that petitioner Calimutan was impelled by a lawful objective when he threw the stone at the victim Cantre, his act was committed with inexcusable lack of precaution. He failed to consider that a stone the size of a man¶s fist could inflict substantial injury on someone. He also miscalculated his own strength, perhaps unaware, or even completely disbelieving, that he could throw a stone with such force as to seriously injure, or worse, kill someone, at a quite lengthy distance of ten meters. Since it is irrefragable that the stone thrown by petitioner Calimutan at the victim Cantre was the proximate cause of the latter¶s death, despite being done with reckless imprudence rather than with malicious intent, petitioner Calimutan remains civilly liable for such death. This Court, therefore, retains the reward made by the RTC and the Court of Appeals to the heirs of the victim Cantre of the amount of P50,000.00 as civil indemnity for his death and another P50,000.00 as moral damages. WHEREFORE, the assailed Decision of the Court of Appeals in CA-G.R. CR No. 23306, dated 29 August 2001, affirming the Decision of the RTC in Criminal Case No. 8184, dated 19 November 1998, is hereby MODIFIED. Petitioner Calimutan is found GUILTY beyond reasonable doubt of reckless imprudence resulting in homicide, under Article 365 of the Revised Penal Code, and is accordingly sentenced to imprisonment for a minimum period of 4 months of arresto mayor to a maximum period of two years and one day of prision correccional. Petitioner Calimutan is further ORDERED to pay the heirs of the victim Cantre the amount of P50,000.00 as civil indemnity for the latter¶s death and P50,000.00 as moral damages. SO ORDERED. MINITA V. CHICO-NAZARIO Associate Justice

G.R. No. 147437

May 8, 2009

LARRY V. CAMINOS, JR., Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION TINGA, J.: The right of a person using public streets and highways for travel in relation to other motorists is mutual, coordinate and reciprocal.1 He is bound to anticipate the presence of other persons whose rights on the street or highway are equal to his own.2 Although he is not an insurer against injury to persons or property,3 it is nevertheless his duty to operate his motor vehicle with due and reasonable care and caution under the circumstances for the safety of others4 as well as for his own.5 This Petition for Review6 seeks the reversal of the Decision7 of the Court of Appeals in CA-G.R. CR No. 14819 dated 28 February 1995. The assailed decision affirmed the judgment of conviction8 rendered by the Regional Trial Court of Pasig City, Branch 163 in Criminal Case No. 76653²one for reckless imprudence resulting in damage to property²against petitioner Larry V. Caminos, Jr. but reduced the latter¶s civil liability on account of the finding that the negligence of Arnold Litonjua, the private offended party, had contributed to the vehicular collision subject of the instant case. The case is rooted on a vehicular collision that happened on the night of 21 June 1988 at the intersection of Ortigas Avenue and Columbia Street in Mandaluyong City, right in front of Gate 6 of East Greenhills Subdivision. The vehicles involved were a Mitsubishi Super Saloon9 driven by petitioner and a Volkswagen Karmann Ghia10 driven by Arnold Litonjua (Arnold). The mishap occurred at approximately 7:45 in the evening.11 That night, the road was wet.12 Arnold, who had earlier passed by Wack Wack Subdivision, was traversing Ortigas Avenue toward the direction of Epifanio Delos Santos Avenue. He prepared to make a left turn as he reached the intersection of Ortigas Avenue and Columbia Street, and as soon as he had maneuvered the turn through the break in the traffic island the Mitsubishi car driven by petitioner suddenly came ramming into his car from his right-hand side. Petitioner, who was also traversing Ortigas Avenue, was headed towards the direction of San Juan and he approached the same intersection from the opposite direction.13 The force exerted by petitioner¶s car heaved Arnold¶s car several feet away from the break in the island, sent it turning 180 degrees until it finally settled on the outer lane of Ortigas Avenue.14 It appears that it was the fender on the left-hand side of petitioner¶s car that made contact with Arnold¶s car, and that the impact²which entered from the right-hand side of Arnold¶s car to the left²was established on the frontal center of the latter vehicle which thus caused the left-hand side of its hood to curl upward.15 Arnold immediately summoned to the scene of the collision Patrolman Ernesto Santos (Patrolman Santos),16 a traffic investigator of the Mandaluyong Police Force who at the time was manning the police outpost in front of the Philippine Overseas Employment Administration Building.17 Patrolman Santos interrogated both petitioner and Arnold and made a sketch depicting the relative positions of the two colliding vehicles after the impact.18 The sketch, signed by both petitioner and Arnold and countersigned by Patrolman Santos, shows petitioner¶s car² which, it seems, was able to keep its momentum and general direction even upon impact²was stalled along Ortigas Avenue a few feet away from the intersection and facing the direction of San Juan whereas Arnold¶s car

had settled on the outer lane of Ortigas Avenue with its rear facing the meeting point of the median lines of the intersecting streets at a 45-degree angle.19 At the close of the investigation, a traffic accident investigation report (TAIR)20 was forthwith issued by P/Cpl. Antonio N. Nato of the Eastern Police District. The report revealed that at the time of the collision, Arnold¶s car, which had "no right of way,"21 was "turning left" whereas petitioner¶s car was "going straight" and was "exceeding lawful speed."22 It also indicated that the vision of the drivers was obstructed by the "center island flower bed."23 Petitioner was subsequently charged before the Regional Trial Court of Pasig City with reckless imprudence resulting in damage to property.24 He entered a negative plea on arraignment.25 At the ensuing trial, Patrolman Santos admitted having executed the sketch which depicts the post-collision positions of the two vehicles.26 Arnold¶s testimony established that his vehicle was at a full stop at the intersection when the incident happened.27 Told by the trial court to demonstrate how the incident transpired, he executed a sketch which showed that his car had not yet invaded the portion of the road beyond the median line of the island and that the path taken by petitioner¶s car, depicted by broken lines, came swerving from the outer lane of the road to the left and rushing toward the island where Arnold¶s car was executing a turn.28 On crossexamination, he admitted the correctness of the entry in the TAIR to the effect that he was turning left when hit by petitioner¶s car,29 but he claimed on re-direct examination that he had stopped at the intersection in order to keep the traffic open to other vehicles and that it was then that petitioner bumped his car. On re-cross examination, however, he stated that he had brought his car to a full stop before turning left but that the front portion thereof was already two (2) feet into the other lane of Ortigas Avenue and well beyond the median line of the traffic island.30 Antonio Litonjua (Antonio), the father of Arnold in whose name the Volkswagen car was registered, testified that the estimation of the cost of repairs to be made on the car was initially made by SKB Motors Philippines, Inc. The estimation report dated 30 June 1988 showed the total cost of repairs to be P73,962.00. The necessary works on the car, according to Antonio, had not been performed by SKB Motors because the needed materials had not been delivered.31 Meanwhile, SKB Motors allegedly ceased in its operation, so Antonio procured another repair estimation this time from Fewkes Corporation.32 The estimation report was dated 13 December 1991, and it bloated the total cost of repairs to P139,294.00.33 Ricardo Abrencia, resident manager of Fewkes Corporation, admitted that he personally made and signed the said estimation report and that Antonio had already delivered a check representing the payment for half of the total assessment.34 Petitioner, the lone defense witness, was a company driver in the employ of Fortune Tobacco, Inc. assigned to drive for the company secretary, Mariano Tanigan, who was with him at the time of the incident. In an effort to exonerate himself from liability, he imputed negligence to Arnold as the cause of the mishap, claiming that that he, moments before the collision, was actually carefully traversing Ortigas Avenue on second gear. He lamented that it was Arnold¶s car which bumped his car and not the other way around and that he had not seen Arnold¶s car coming from the left side of the intersection²which seems to suggest that Arnold¶s car was in fact in motion or in the process of making the turn when the collision occurred. His speed at the time, according to his own estimate, was between 25 and 30 kph because he had just passed by the stoplight located approximately 100 meters away at the junction of Ortigas Avenue and EDSA, and that he even slowed down as he approached the intersection.35 In its 18 September 1992 Decision,36 the trial court found petitioner guilty as charged. The trial court relied principally on the sketch made by Patrolman Santos depicting the post-collision positions of the two vehicles² that piece of evidence which neither of the parties assailed at the trial²and found that of the two conflicting accounts of how the collision happened it was Arnold¶s version that is consistent with the evidence. It pointed

out that just because Arnold had no right of way, as shown in the TAIR, does not account for fault on his part since it was in fact petitioner¶s car that came colliding with Arnold¶s car. It concluded that petitioner, by reason of his own admission that he did not notice Arnold¶s car at the intersection, is solely to be blamed for the incident especially absent any showing that there was any obstruction to his line of sight. Petitioner, according to the trial court, would have in fact noticed on-coming vehicles coming across his path had he employed proper precaution. Accordingly, the trial court ordered petitioner to pay civil indemnity in the amount of P139,294.00 as well as a fine in the same amount. The Court of Appeals agreed with the factual findings of the trial court. In its Decision dated 28 February 1995, the appellate court affirmed the judgment of conviction rendered by the trial court against petitioner. However, it mitigated the award of civil indemnity on its finding that Arnold himself was likewise reckless in maneuvering a left turn inasmuch as he had neglected to look out, before entering the other lane of the road, for vehicles that could likewise be possibly entering the intersection from his right side.37 This notwithstanding, petitioner was still unsatisfied with the ruling of the appellate court. Seeking an acquittal, he filed the present petition for review in which he maintains Arnold¶s own negligence was the principal determining factor that caused the mishap and which should thus defeat any claim for damages. In declaring him liable to the charge despite the existence of negligence attributable to Arnold, petitioner believes that the Court of Appeals had misapplied the principle of last clear chance in this case. The Office of the Solicitor General (OSG), in its Comment,38 argues that petitioner¶s negligence is the proximate cause of the collision and that Arnold Litonjua¶s negligence was contributory to the accident which, however, does not bar recovery of damages. Additionally, it recommends the reduction of both the fine and the civil indemnity as the same are beyond what the prosecution was able to prove at the trial. The Court denies the petition. Reckless imprudence generally defined by our penal law consists in voluntarily but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place.39 Imprudence connotes a deficiency of action. It implies a failure in precaution or a failure to take the necessary precaution once the danger or peril becomes foreseen.40 Thus, something more than mere negligence in the operation of a motor vehicle is necessary to constitute the offense of reckless driving, and a willful and wanton disregard of the consequences is required.41 Willful, wanton or reckless disregard for the safety of others within the meaning of reckless driving statutes has been held to involve a conscious choice of a course of action which injures another, either with knowledge of serious danger to others involved, or with knowledge of facts which would disclose the danger to any reasonable person.42 Hence, in prosecutions for reckless imprudence resulting in damage to property, whether or not one of the drivers of the colliding automobiles is guilty of the offense is a question that lies in the manner and circumstances of the operation of the motor vehicle,43 and a finding of guilt beyond reasonable doubt requires the concurrence of the following elements, namely, (a) that the offender has done or failed to do an act; (b) that the act is voluntary; (c) that the same is without malice; (d) that material damage results; and (e) that there has been inexcusable lack of precaution on the part of the offender.44 Among the elements constitutive of the offense, what perhaps is most central to a finding of guilt is the conclusive determination that the accused has exhibited, by his voluntary act without malice, an inexcusable lack of precaution because it is that which supplies the criminal intent so indispensable as to bring an act of

mere negligence and imprudence under the operation of the penal law.45 This, because a conscious indifference to the consequences of the conduct is all that that is required from the standpoint of the frame of mind of the accused,46 that is, without regard to whether the private offended party may himself be considered likewise at fault. Inasmuch as the Revised Penal Code, however, does not detail what particular act or acts causing damage to property may be characterized as reckless imprudence, certainly, as with all criminal prosecutions, the inquiry as to whether the accused could be held liable for the offense is a question that must be addressed by the facts and circumstances unique to a given case. Thus, if we must determine whether petitioner in this case has shown a conscious indifference to the consequences of his conduct, our attention must necessarily drift to the most fundamental factual predicate. And we proceed from petitioner¶s contention that at the time the collision took place, he was carefully driving the car as he in fact approached the intersection on second gear and that his speed allegedly was somewhere between 25 and 30 kph which under normal conditions could be considered so safe and manageable as to enable him to bring the car to a full stop when necessary. Aside from the entry in the TAIR, however, which noted petitioner¶s speed to be beyond what is lawful, the physical evidence on record likewise seems to negate petitioner¶s contention. The photographs taken of Arnold¶s car clearly show that the extent of the damage to it could not have been caused by petitioner¶s car running on second gear at the speed of 25-30 kph. The fact that the hood of Arnold¶s car was violently wrenched as well as the fact that on impact the car even turned around 180 degrees and was hurled several feet away from the junction to the outer lane of Ortigas Avenue²when in fact Arnold had already established his turn to the left on the inner lane and into the opposite lane²clearly demonstrate that the force of the collision had been created by a speed way beyond what petitioner¶s estimation. Rate of speed, in connection with other circumstances, is one of the principal considerations in determining whether a motorist has been reckless in driving an automobile,47 and evidence of the extent of the damage caused may show the force of the impact from which the rate of speed of the vehicle may be modestly inferred.48 While an adverse inference may be gathered with respect to reckless driving49 from proof of excessive speed under the circumstances50 ²as in this case where the TAIR itself shows that petitioner approached the intersection in excess of lawful speed²such proof raises the presumption of imprudent driving which may be overcome by evidence,51 or, as otherwise stated, shifts the burden of proof so as to require the accused to show that under the circumstances he was not driving in a careless or imprudent manner.52 We find, however, that petitioner has not been able to discharge that burden inasmuch as the physical evidence on record is heavy with conviction way more than his bare assertion that his speed at the time of the incident was well within what is controllable. Indeed, the facts of this case do warrant a finding that petitioner, on approach to the junction, was traveling at a speed far greater than that conveniently fixed in his testimony. Insofar as such facts are consistent with that finding, their truth must reasonably be admitted.53 Speeding, moreover, is indicative of imprudent behavior because a motorist is bound to exercise such ordinary care and drive at a reasonable rate of speed commensurate with the conditions encountered on the road. What is reasonable speed, of course, is necessarily subjective as it must conform to the peculiarities of a given case but in all cases, it is that which will enable the driver to keep the vehicle under control and avoid injury to others using the highway.54 This standard of reasonableness is actually contained in Section 35 of R.A. No. 4136. It states: SEC. 35. Restriction as to speed.²(a) Any person driving a motor vehicle on a highway shall drive the same at a careful and prudent speed, not greater nor less than is reasonable and proper, having due regard for the traffic, the width of the highway, and of any other condition then and there existing; and no person shall drive any motor vehicle upon a highway at such speed as to endanger the life, limb and property of any person, nor at a speed greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead.

Even apart from statutory regulations as to speed, a motorist is nevertheless expected to exercise ordinary care and drive at a reasonable rate of speed commensurate with all the conditions encountered 55 which will enable him to keep the vehicle under control and, whenever necessary, to put the vehicle to a full stop to avoid injury to others using the highway. 56 It is must be stressed that this restriction on speed assumes more importance where the motorist is approaching an intersection. Ordinary or reasonable care in the operation of a motor vehicle at an intersection would naturally require more precaution than is necessary when driving elsewhere in a street or highway.57 A driver approaching an intersection is generally under duty, among others, to be vigilant and to have the vehicle under control as to be able to stop at the shortest possible notice,58 that is, he must look for vehicles that might be approaching from within the radius that denotes the limit of danger.59 Since compliance with this duty is measured by whether an approaching motorist has exercised the level of precaution required under the circumstances, then with more reason that he exhibit a relatively higher level of care when the intersection is blind at the point where the roads meet. In other words, where the view at an intersection is obstructed and an approaching motorist cannot get a good view to the right or left until he is close to the intersection, prudence would dictate that he take particular care to observe the traffic before entering the intersection or otherwise use reasonable care to avoid a collision,60 which means that he is bound is to move with the utmost caution until it is determinable that he can proceed safely and at the slowest speed possible61 so that the vehicle could be stopped within the distance the driver can see ahead.62 On this score, what brings certain failure in petitioner¶s case is his own admission that he had not seen Arnold¶s car making a left turn at the intersection. Of course, there had been an arduous debate at the trial as to whether Arnold¶s car was in motion or at a full stop at the intersection moments before the collision; nevertheless, inasmuch as he (Arnold), as shown by the evidence, had been able to establish himself at the intersection significantly ahead of petitioner, it defies logic to accord even a semblance of truth to petitioner¶s assertion that he had not seen Arnold¶s car entering the intersection laterally from his left especially when the said car admittedly had already taken two feet of the other lane of the road²the lane on which petitioner was proceeding to cross²and well beyond the median line of the intersecting road on which Arnold proceeded after making the turn. Indeed, not even the fact that the view at the intersection was blocked by the flower bed on the traffic island could provide an excuse for petitioner as it has likewise been established that he approached the intersection at such a speed that could not, as in fact it did not, enable him to arrest his momentum and forestall the certainty of the collision. It can only be surmised at this point that petitioner had inexcusably fallen short of the standard of care in a situation which called for more precaution on the highway in failing to make an observation in the interest at least of his own safety whether or not it was safe to enter the crossing. Since he is chargeable with what he should have observed only had he exercised the commensurate care required under the circumstances of the case, the inescapable conclusion is that he had inexcusably breached the elementary duties of a responsible, prudent and reasonable motorist. In general, the degree of care and attention required of a driver in a particular case in exercising reasonable care will vary with and must be measured in the light of all the surrounding circumstances, such that it must be commensurate with the dangers which are to be anticipated and the injuries which are likely to result from the use of the vehicle.63 In other words, he must observe a sense of proportionality between precaution and the peculiar risks attendant or even inherent in the condition of the road64 which are open to ordinary observation.65 The ultimate test, in other words, is to be found in the reasonable foreseeability that harm might result if commensurate care is not exercised. It is not necessary, however, that a motorist actually foresee the probability of harm or that the particular injury which resulted was foreseeable; it would suffice that he, in the position of an ordinary prudent man, knowing what he knew or should have known, anticipate that harm of a general nature as that suffered was to materialize.66 The evidence in this case is teeming with suggestion that petitioner had failed to foresee the certainty of the collision that was about to happen as he entered the junction in question

especially considering that his lateral vision at the intersection was blocked by the structures on the road. In the same way, he failed to solidly establish that such failure to foresee the danger lurking on the road could be deemed excusable as indeed his contention that he was running at a safe speed is totally negated by the evidence derived from the physical facts of the case. Yet, petitioner clings to a chance of acquittal. In his petition, he theorizes that the negligence of Arnold, which according to the Court of Appeals was incipient in character, was actually the principal determining factor which caused the mishap and the fact that the TAIR indicated that Arnold had no right of way, it is he himself who had the status of a favored driver. The contention is utterly without merit. In traffic law parlance, the term "right of way" is understood as the right of one vehicle to proceed in a lawful manner in preference to another approaching vehicle under such circumstances of direction, speed and proximity as to give rise to a danger of collision unless one of the vehicles grants precedence to the other.67 Although there is authority to the effect that the right of way is merely of statutory creation and exists only according to express statutory provision,68 it is generally recognized, where no statute or ordinance governs the matter, that the vehicle first entering an intersection is entitled to the right of way, and it becomes the duty of the other vehicle likewise approaching the intersection to proceed with sufficient care to permit the exercise of such right without danger of collisions.69 In our setting, the right of way rule is governed by Section 42 of Republic Act (R.A.) No. 4136,70 which materially provides: Section 42. Right of Way. (a) When two vehicles approach or enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right, except as otherwise hereinafter provided. The driver of any vehicle traveling at an unlawful speed shall forfeit any right which he might otherwise have hereunder. (b) The driver of a vehicle approaching but not having entered an intersection shall yield the right of a way to a vehicle within such intersection or turning therein to the left across the line of travel of such first-mentioned vehicle, provided the driver of the vehicle turning left has given a plainly visible signal of intention to turn as required in this Act. x x x. The provision governs the situation when two vehicles approach the intersection from the same direction and one of them intends make a turn on either side of the road. But the rule embodied in the said provision, also prevalent in traffic statutes in the United States, has also been liberally applied to a situation in which two vehicles approach an intersection from directly opposite directions at approximately the same time on the same street and one of them attempts to make a left-hand turn into the intersecting street, so as to put the other upon his right, the vehicle making the turn being under the duty of yielding to the other.71 Nevertheless, the right of way accorded to vehicles approaching an intersection is not absolute in terms. It is actually subject to and is affected by the relative distances of the vehicles from the point of intersection.72 Thus, whether one of the drivers has the right of way or, as sometimes stated, has the status of a favored driver on the highway, is a question that permeates a situation where the vehicles approach the crossing so nearly at the same time and at such distances and speed that if either of them proceeds without regard to the other a collision is likely to occur.73 Otherwise stated, the statutory right of way rule under Section 42 of our traffic law applies only where the vehicles are approaching the intersection at approximately the same time and not where one of the vehicles enter the junction substantially in advance of the other. Whether two vehicles are approaching the intersection at the same time does not necessarily depend on which of the vehicles enters the intersection first. Rather, it is determined by the imminence of collision when the

relative distances and speeds of the two vehicles are considered.74 It is said that two vehicles are approaching the intersection at approximately the same time where it would appear to a reasonable person of ordinary prudence in the position of the driver approaching from the left of another vehicle that if the two vehicles continued on their courses at their speed, a collision would likely occur, hence, the driver of the vehicle approaching from the left must give the right of precedence to the driver of the vehicle on his right.751avvphi1 Nevertheless, the rule requiring the driver on the left to yield the right of way to the driver on the right on approach to the intersection, no duty is imposed on the driver on the left to come to a dead stop, but he is merely required to approach the intersection with his vehicle under control so that he may yield the right of way to a vehicle within the danger zone on his right.76 He is not bound to wait until there is no other vehicle on his right in sight before proceeding to the intersection but only until it is reasonably safe to proceed.77 Thus, in Adzuara v. Court of Appeals,78 it was established that a motorist crossing a thru-stop street has the right of way over the one making a turn; but if the person making the turn has already negotiated half of the turn and is almost on the other side so that he is already visible to the person on the thru-street, he is bound to give way to the former. Moreover, in a prosecution for reckless or dangerous driving, the negligence of the person who was injured or who was the driver of the motor vehicle with which the accused¶s vehicle collided does not constitute a defense.79 In fact, even where such driver is said to be guilty of a like offense, proof thereof may never work favors to the case of the accused.80 In other words, proof that the offended party was also negligent or imprudent in the operation of his automobile bears little weight, if at all, at least for purposes of establishing the accused¶s culpability beyond reasonable doubt. Hence, even if we are to hypothesize that Arnold was likewise negligent in neglecting to keep a proper lookout as he took a left turn at the intersection, such negligence, contrary to petitioner¶s contention, will nevertheless not support an acquittal. At best, it will only determine the applicability of several other rules governing situations where concurring negligence exists and only for the purpose of arriving at a proper assessment of the award of damages in favor of the private offended party. But it must be asked: do the facts of the case support a finding that Arnold was likewise negligent in executing the left turn? The answer is in the negative. It is as much unsafe as it is unjust to assume that Arnold, just because the TAIR so indicated that he at the time had no right of way, that Arnold had performed a risky maneuver at the intersection in failing to keep a proper lookout for oncoming vehicles. In fact, aside from petitioner¶s bare and self-serving assertion that Arnold¶s fault was the principal determining cause of the mishap as well as his allegation that it was actually Arnold¶s car that came colliding with his car, there is no slightest suggestion in the records that could tend to negate what the physical evidence in this case has established. Clearly, it was petitioner¶s negligence, as pointed out by the OSG, that proximately caused the accident.1avvphi1 Finally, on the issue of damages, inasmuch as petitioner had not extended efforts to present countervailing evidence disproving the extent and cost of the damage sustained by Arnold¶s car, the award assessed and ordered by the trial court must stand. All told, it must be needlessly emphasized that the measure of a motorist¶s duty is such care as is, under the facts and circumstances of the particular case, commensurate with the dangers which are to be anticipated and the injuries which are likely to result from the use of the vehicle, and in proportion to or commensurate with the peculiar risk attendant on the circumstances and conditions in the particular case,81 the driver being under the duty to know and to take into consideration those circumstances and factors affecting the safe operation of the vehicle which would be open to ordinary observation.82 WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CR No. 14819 dated 28 February 1995 is REVERSED and SET ASIDE. The Decision of the Regional Trial Court of Pasig, Branch 163 in Criminal Case No. 76653 dated 18 September 1992 is REINSTATED. SO ORDERED. DANTE O. TINGA Associate Justice

ELVIRA YU OH, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. DECISION AUSTRIA-MARTINEZ, J.: Before this Court is a petition for review on certiorari of the decision of the Court of Appeals in CA-G.R. No. CR No. 16390, promulgated on January 30, 1996, affirming the conviction of petitioner Elvira Yu Oh by the Regional Trial Court (RTC), Branch 99, Quezon City and the resolution dated May 30, 1996 which denied her motion for reconsideration. The facts as borne by the records are as follows: Petitioner purchased pieces of jewelry from Solid Gold International Traders, Inc., a company engaged in jewelry trading. Due to her failure to pay the purchase price, Solid Gold filed civil cases against her for specific performance before the Regional Trial Court of Pasig. On September 17, 1990, petitioner and Solid Gold, through its general manager Joaquin Novales III, entered into a compromise agreement to settle said civil cases. The compromise agreement, as approved by the trial court, provided that petitioner shall issue a total of ninetynine post-dated checks in the amount of P50,000.00 each, dated every 15th and 30th of the month starting October 1, 1990 and the balance of over P1 million to be paid in lump sum on November 16, 1994 which is also the due date of the 99th and last postdated check. Petitioner issued ten checks at P50,000.00 each, for a total of P500,000.00, drawn against her account at the Equitable Banking Corporation (EBC), Grace Park, Caloocan City Branch. Novales then deposited each of the ten checks on their respective due dates with the Far East Bank and Trust Company (FEBTC). However, said checks were dishonored by EBC for the reason ³Account Closed.´ Dishonor slips were issued for each check that was returned to Novales. On October 5, 1992, Novales filed ten separate Informations, docketed as Criminal Cases Nos. 92-26243 to 9236252 before the RTC of Quezon City charging petitioner with violation of Batas Pambansa Bilang 22, otherwise known as the Bouncing Checks Law. Except for the dates and the check numbers, the Informations uniformly allege: That on or about the « in Quezon City, Philippines, the said accused did then and there willfully, unlawfully and feloniously make or draw and issue to JOAQUIN P. LOVALES III to apply on account or for value Equitable Banking Corp. Grace Park Caloocan Branch Check No. « dated « payable to SOLID GOLD INTERNATIONAL TRADERS, INC. in the amount of P50,000.00, Philippine Currency, said accused well knowing that at the time of issue she/he/they did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment, which check when presented for payment was subsequently dishonored by the drawee bank for insufficiency of funds/Account Closed and despite receipt of notice of such dishonor, said accused failed to pay said SOLID GOLD INTERNATIONAL TRADERS, INC. the amount of said check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice. CONTRARY TO LAW. The cases were consolidated and subsequently raffled to Branch 99 of the said RTC. Upon arraignment, accused pleaded not guilty. Trial then ensued. On December 22, 1993, the RTC rendered its decision, the dispositive portion of which reads: WHEREFORE, this Court finds the accused GUILTY of ten counts of violation of BP 22 and hereby sentences her to a penalty of one year imprisonment for each count, or a total of ten years, to be served in accordance with the limitation prescribed in par. 4, Article 70 of the Revised Penal Code and to indemnify complainant the amount of the checks in their totality, or in the amount of P500,000.00.

SO ORDERED. Petitioner appealed to the Court of Appeals alleging that: the RTC has no jurisdiction over the offense charged in the ten informations; it overlooked the fact that no notice of dishonor had been given to the appellant as drawer of the dishonored checks; it failed to consider that the reason of ³closed account´ for the dishonor of the ten checks in these cases is not the statutory cause to warrant prosecution, much more a conviction, under B.P. Blg. 22; it failed to consider that there is only one act which caused the offense, if any, and not ten separate cases; and it disregarded the definition of what a µcheck¶ is under Sec. 185 of the Negotiable Instruments Law. Finding the appeal to be without merit, the Court of Appeals affirmed the decision of the trial court with costs against appellant. Hence, herein petition raising the following errors: I THAT THE COURT OF APPEALS ERRED IN NOT RESOLVING THE JURISDICTIONAL ISSUE IN FAVOR OF THE ACCUSED-APPELLANT BY UNJUSTLY DEPRIVING HER OF THE LEGAL BENEFITS OF GIVING RETROACTIVE EFFECT TO THE PROVISIONS OF R.A. NO. 7691 EXPANDING THE JURISDICTION OF THE INFERIOR COURTS TO COVER THE OFFENSES INVOLVED IN THESE CASES PURSUANT TO ART. 22 OF THE REVISED PENAL CODE, THUS IN EFFECT RENDERING THE JUDGMENT OF CONVICTION PROMULGATED BY THE TRIAL COURT BELOW AND AFFIRMED BY THE COURT OF APPEALS PATENTLY NULL AND VOID FOR HAVING BEEN RENDERED WITHOUT OR IN EXCESS OF JURISDICTION. II THAT THE COURT OF APPEALS ERRED IN NOT RESOLVING IN FAVOR OF ACCUSEDAPPELLANT THE FACT THAT NO NOTICE OF DISHONOR HAD BEEN GIVEN HER AS DRAWER OF THE DISHONORED ³CHECKS´ PURSUANT TO THE REQUIREMENT EXPRESSLY PROVIDED UNDER BATAS PAMBANSA BILANG 22. III THAT THE COURT OF APPEALS ERRED IN CONSTRUING THE PROVISIONS OF BATAS PAMBANSA BILANG 22 CONTRARY TO THE WELL-ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT ³PENAL STATUTES, SUBSTANTIVE AND REMEDIAL OR PROCEDURAL, ARE, BY THE CONSECRATED RULE, CONSTRUED STRICTLY AGAINST THE STATE, OR LIBERALLY IN FAVOR OF THE ACCUSED´ AND THAT ³IT IS ALWAYS THE DUTY OF THE COURT TO RESOLVE THE CIRCUMSTANCES OF EVIDENCE UPON A THEORY OF INNOCENCE RATHER THAN UPON A THEORY OF GUILT WHERE IT IS POSSIBLE TO DO SO´, AND IN SO DOING THE DECISION APPEALED FROM INDULGED ITSELF IN ³JUDICIAL LEGISLATION´ TO FAVOR THE PROSECUTION AND TO WORK GRAVE INJUSTICE TO THE ACCUSED. Simply worded, the issues of this case may be stated as follows: (1) whether or not the appellate court erred in not granting retroactive effect to Republic Act No. 7691 in view of Art. 22 of the Revised Penal Code (RPC); (2) whether or not notice of dishonor is dispensable in this case; and (3) whether or not the appellate court erred in construing B.P. Blg. 22. We will resolve the first and third issues before considering the second issue.

First issue ± Whether or not the Court of Appeals erred in not giving retroactive effect to R.A. 7690 in view of Article 22 of the RPC. Petitioner argues that: the failure of the appellate court to give retroactive application to R.A. 7691 is a violation of Art. 22 of the Revised Penal Code which provides that penal laws shall have retroactive effect insofar as they favor the person guilty of the felony; R.A. 7691 is a penal law in the sense that it affects the jurisdiction of the court to take cognizance of criminal cases; taken separately, the offense covered by each of the ten Informations in this case falls within the exclusive original jurisdiction of the Municipal Trial Court under Sec. 2 of R.A. 7691; and the Court of Appeals is guilty of judicial legislation in stating that after the arraignment of petitioner, said cases could no longer be transferred to the MTC without violating the rules on double jeopardy, because that is not so provided in R.A. 7691. The Solicitor General, in its Comment, counters that the arguments of petitioner are baseless contending that: penal laws are those which define crimes and provides for their punishment; laws defining the jurisdiction of courts are substantive in nature and not procedural for they do not refer to the manner of trying cases but to the authority of the courts to hear and decide certain and definite cases in the various instances of which they are susceptible; R.A. No. 7691 is a substantive law and not a penal law as nowhere in its provisions does it define a crime neither does it provide a penalty of any kind; the purpose of enacting R.A. No. 7691 is laid down in the opening sentence thereof as ³An Act Expanding the Jurisdiction of the Municipal Trial Courts, Municipal Circuit Trial Courts and the Metropolitan Trial Court´ whereby it reapportions the jurisdiction of said courts to cover certain civil and criminal case, erstwhile tried exclusively by the Regional Trial Courts; consequently, Art. 22 of the RPC finds no application to the case at bar; jurisdiction is determined by the law in force at the time of the filing of the complaint, and once acquired, jurisdiction is not affected by subsequent legislative enactments placing jurisdiction in another tribunal; in this case, the RTC was vested with jurisdiction to try petitioner¶s cases when the same were filed in October 1992; at that time, R.A. No. 7691 was not yet effective; in so far as the retroactive effect of R.A. No. 7691 is concerned, that same is limited only to pending civil cases that have not reached pre-trial stage as provided for in Section 7 thereof and as clarified by this Court in People vs. Yolanda Velasco, where it was held: ³[a] perusal of R.A. No. 7691 will show that its retroactive provisions apply only to civil cases that have not yet reached the pre-trial stage. Neither from an express proviso nor by implication can it be understood as having retroactive application to criminal cases pending or decided by the RTC prior to its effectivity.´ On this point, the Court fully agrees with the Solicitor General and holds that Article 22 of the Revised Penal Code finds no application to the case at bar. Said provision reads: ART. 22. Retroactive effect of penal laws. ± Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving sentence. A penal law, as defined by this Court, is an act of the legislature that prohibits certain acts and establishes penalties for its violations. It also defines crime, treats of its nature and provides for its punishment. R.A. No. 7691 does not prohibit certain acts or provides penalties for its violation; neither does it treat of the nature of crimes and its punishment. Consequently, R.A. No. 7691 is not a penal law, and therefore, Art. 22 of the RPC does not apply in the present case. B. P. Blg. 22, which took effect on April 24, 1979, provides the penalty of imprisonment of not less than thirty days but not more than one year or by a fine of not less than but not more then double the amount of the check which fine shall in no case exceed P200,000.00, or both such fine and imprisonment at the discretion of the court.

R.A. No. 7691 which took effect on June 15, 1994, amended B.P. Blg. 129, and vested on the Metropolitan, Municipal and Municipal Circuit Trial Courts jurisdiction to try cases punishable by imprisonment of not more than six (6) years. Since R.A. No. 7691 vests jurisdiction on courts, it is apparent that said law is substantive. In the case of Cang vs. Court of Appeals, this Court held that ³jurisdiction being a matter of substantive law, the established rule is that the statute in force at the time of the commencement of the action determines the jurisdiction of the court.´ R.A. No. 7691 was not yet in force at the time of the commencement of the cases in the trial court. It took effect only during the pendency of the appeal before the Court of Appeals. There is therefore no merit in the claim of petitioner that R.A. No. 7691 should be retroactively applied to this case and the same be remanded to the MTC. The Court has held that a ³law vesting additional jurisdiction in the court cannot be given retroactive effect.´ Third issue ± Whether or not the Court of Appeals erroneously construed B.P. Blg. 22. Petitioner insists that: penal statutes must be strictly construed and where there is any reasonable doubt, it must always be resolved in favor of the accused; the Court of Appeals, in construing that B.P. Blg. 22 embraces cases of ³no funds´ or ³closed accounts´ when the express language of B.P. Blg. 22 penalizes only the issuance of checks that are subsequently dishonored by the drawee bank for ³insufficiency´ of funds or credit, has enlarged by implication the meaning of the statute which amounts to judicial legislation; a postdated check, not being drawn payable on demand, is technically not a special kind of a bill of exchange, called check, but an ordinary bill of exchange payable at a fixed date, which is the date indicated on the face of the postdated check, hence, the instrument is still valid and the obligation covered thereby, but only civilly and not criminally; the trial court also erroneously cited a portion in the case of Lozano vs. Martinez that the ³language of B.P. Blg. 22 is broad enough to cover all kinds of checks, whether present dated or postdated, or whether issued in payment of preexisting obligations or given in mutual or simultaneous exchange for something of value,´ since the same is mere obiter dictum; in the interpretation of the meaning of a ³check´, where the law is clear and unambiguous, the law must be taken as it is, devoid of judicial addition or subtraction. The Solicitor General counters that a postdated check is still a check and its being a postdated instrument does not necessarily make it a bill of exchange ³payable at a fixed or determinable future time´ since it is still paid on demand on the date indicated therein or thereafter just like an ordinary check. It also points out that the doctrine laid down in Lozano vs. Martinez was reiterated in People vs. Nitafan, hence, it can no longer be argued that the statement in the case of Lozano regarding the scope of ³checks´ is mere obiter dictum. Again, we agree with the Solicitor General and find petitioner¶s claim to be without merit. The rationale behind B.P. Blg. 22 was initially explained by the Court in the landmark case of Lozano vs. Martinez where we held that: The gravamen of the offense punished by B.P. Blg. 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment « The thrust of the law is to prohibit, under pain of penal sanctions, the making or worthless checks and putting them in circulation. Because of its deleterious effects on the public interest, the practice is proscribed by law. The law punished the act not as an offense against property, but an offense against public order. ... The effects of the issuance of a worthless check transcend the private interests of the parties directly involved in the transaction and touches the interests of the community at large. The mischief it creates is not only a wrong to the payee or holder but also an injury to the public. The harmful practice of putting valueless commercial papers in circulation, multiplied a thousandfold, can very well pollute the channels of trade and commerce, injure the banking system and eventually hurt the welfare of society and the public interest.

The same is reiterated in Cueme vs. People where we pronounced that: . . . B.P. Blg. 22 was purposely enacted to prevent the proliferation of worthless checks in the mainstream of daily business and to avert not only the undermining of the banking system of the country but also the infliction of damage and injury upon trade and commerce occasioned by the indiscriminate issuances of such checks. By its very nature, the offenses defined under B.P. Blg. 22 are against public interest. In Recuerdo vs. People, this Court also held that the terms and conditions surrounding the issuance of the checks are irrelevant since its primordial intention is to ensure the stability and commercial value of checks as being virtual substitutes for currency. Petitioner¶s claim that cases of ³closed accounts´ are not included in the coverage of B.P. Blg. 22 has no merit considering the clear intent of the law, which is to discourage the issuance of worthless checks due to its harmful effect to the public. This Court, in Lozano vs. Martinez, was explicit in ruling that the language of B.P. Blg. 22 is broad enough to cover all kinds of checks, whether present dated or postdated, or whether issued in payment of pre-existing obligations or given in mutual or simultaneous exchange for something of value. In People vs. Nitafan, the Supreme Court reiterated this point and held that: B.P. Blg. 22 « does not distinguish but merely provides that ³[a]ny person who makes or draws and issues any check knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank « which check is subsequently dishonored « shall be punished by imprisonment « Ubi lex non distinguit nec nos distinguere debemus. But even if We retrace the enactment of the ³Bouncing Check Law´ to determine the parameters of the concept of ³check´, we can easily glean that the members of the then Batasang Pambansa intended it to be comprehensive as to include all checks drawn against banks. In this light, it is easy to see that the claim of petitioner that B.P. Blg. 22 does not include µpostdated checks¶ and cases of µclosed accounts¶ has no leg to stand on. The term ³closed accounts´ is within the meaning of the phrase ³does not have sufficient funds in or credit with the drawee bank´. Anent the second issue: whether or not notice of dishonor is dispensable in the case at bar. Petitioner failed to show any cogent reason for us to disturb the findings of the RTC and the Court of Appeals. B.P. Blg. 22 or the Bouncing Check¶s Law seeks to prevent the act of making and issuing checks with the knowledge that at the time of issue, the drawer does not have sufficient funds in or credit with the bank for payment and the checks were subsequently dishonored upon presentment. To be convicted thereunder, the following elements must be proved: 1. 2. The accused makes, draws or issues any check to apply to account or for value; The accused knows at the time of the issuance that he or she does not have sufficient funds in, or credit with, the drawee bank for the payment of the check in full upon its presentment; and The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or it would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment.

3.

For liability to attach under B.P. Blg. 22, it is not enough that the prosecution establishes that checks were issued and that the same were subsequently dishonored. The prosecution must also prove that the issuer, at the

time of the check¶s issuance, had knowledge that he did not have enough funds or credit in the bank of payment thereof upon its presentment. Since the second element involves a state of mind which is difficult to establish, Section 2 of B.P. Blg. 22 created a prima facie presumption of such knowledge, as follows: SEC. 2. Evidence of knowledge of insufficient funds. ± The making, drawing and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee. Based on this section, the presumption that the issuer had knowledge of the insufficiency of funds is brought into existence only after it is proved that the issuer had received a notice of dishonor and that within five days from receipt thereof, he failed to pay the amount of the check or to make arrangement for its payment. The presumption or prima facie evidence as provided in this section cannot arise, if such notice of non-payment by the drawee bank is not sent to the maker or drawer, or if there is no proof as to when such notice was received by the drawer, since there would simply be no way of reckoning the crucial 5-day period. In this case, it is not disputed that checks were issued by petitioner and said checks were subsequently dishonored. The question however is, was petitioner furnished a notice of dishonor? If not, is it sufficient justification to exonerate petitioner from her criminal and civil liabilities for issuing the bouncing checks? The trial court ruled that the second element is present because: « the accused knew at the time of issuance of the checks that she did not have sufficient funds in or credit with her drawee bank for the payment of the checks in full upon their presentment [as] admitted by her in the Counter-Affidavit she executed during the preliminary investigation of these criminal cases (itals. ours), to wit: 4. That the time of the issuance of the said checks, due notice and information had been so given to Solid Gold anent the actual status of the checks that the same might not be able to cover the amount of the said checks so stated therein « (Exhibit ³N´, ³1´, underscoring supplied). This fact became evident again during the cross-examination by the accused¶s counsel of the prosecution¶s witness, Joaquin Novales III: ATTY. TAGANAS: Q: And the reason you agreed to the terms and conditions for the issuance of post-dated checks because you are also aware the particular time the accused Mrs. Elvira Yu Oh did not also have enough funds or money in the bank within which to cover the amount of the checks? A: ... Q: To your knowledge when the accused had already admitted to you that she had not enough money to pay you? A: That is the terms and promise and agreed upon, sir. I am not aware, sir.

Q: But inspite of the fact that she already told you about that, that you never suspected that she did not have enough money to cover the checks agreed upon and issued to you? A: Yes, sir.

Q: And inspite of the fact she told you you never suspected that she did not have enough money to cover you . .. Q: You still believe that although she does not have enough money she still issued checks to you? A: Yes, sir. (TSN, April 6, 1993, pp. 24-26)

At any rate, there is already prima facie evidence of knowledge of insufficiency of funds on the part of the accused from her failure to pay the amount due on the checks or to make arrangements for payment in full by the drawee bank within five banking days after she received notice of their dishonor, each of the checks having been presented within ninety days from their respective dated (B.P. Blg. 22, Sec. 2). The defense did not controvert this evidence. (itals. ours) Although the trial court in its decision, mentioned that herein petitioner received notices of dishonor, nowhere in the records is there proof that the prosecution ever presented evidence that petitioner received or was furnished a notice of dishonor. The notices of dishonor that were presented in court and marked as Exhibits ³D2´, ³E-2´, ³F-2´, ³G-2´, ³H-2´, ³I-2´, ³J-2´, ³K-2´, ³L-2´, ³C-2´ were all sent to the private complainant, Solid Gold, and not to petitioner. In convicting petitioner, the trial court, gave probative weight on the admission of petitioner in her Counter-Affidavit which she submitted during the preliminary investigation that at the time of issuance of the subject checks, she was aware and even told private complainant that the checks might not be able to cover the amount stated therein. The Court of Appeals sustained the RTC, to wit: . . . Neither can We agree that accused-appellant was still entitled to notice of dishonor of the bouncing checks as she had no more checking account with the drawee bank at the time of the dishonor of the ten checks in question. Accused-appellant must have realized that by closing her checking account after issuing the ten postdated checks, all of said checks would bounce. Knowing that she had already closed her checking account with the drawee bank, certainly accused-appellant would not have expected, even in her wildest imagination, that her postdated checks would be honored by the drawee bank. Thus, accused-appellant need not be notified anymore of the obvious dishonor of her rubber checks. (itals. ours) Based on the law and existing jurisprudence, we find that the appellate court erred in convicting petitioner. In cases for violation of B.P. Blg. 22, it is necessary that the prosecution prove that the issuer had received a notice of dishonor. Since service of notice is an issue, the person alleging that the notice was served must prove the fact of service. Basic also is the doctrine that in criminal cases, the quantum of proof required is proof beyond reasonable doubt. Hence, for cases of B.P. Blg. 22 there should be clear proof of notice. Indeed, this requirement cannot be taken lightly because Section 2 provides for an opportunity for the drawer to effect full payment of the amount appearing on the check, within five banking days from notice of dishonor. The absence of said notice therefore deprives an accused of an opportunity to preclude criminal prosecution. In other words, procedural due process demands that a notice of dishonor be actually served on petitioner. In the case at bar, appellant has a right to demand ± and the basic postulate of fairness requires ± that the notice of dishonor be actually sent to and received by her to afford her to opportunity to aver prosecution under B.P. Blg. 22.

The Solicitor General contends that notice of dishonor is dispensable in this case considering that the cause of the dishonor of the checks was ³Account Closed´ and therefore, petitioner already knew that the checks will bounce anyway. This argument has no merit. The Court has decided numerous cases where checks were dishonored for the reason, ³Account Closed´ and we have explicitly held in said cases that ³it is essential for the maker or drawer to be notified of the dishonor of her check, so she could pay the value thereof or make arrangements for its payment within the period prescribed by law´ and omission or neglect on the part of the prosecution to prove that the accused received such notice of dishonor is fatal to its cause. A perusal of the testimony of the prosecution witness Joaquin Novales III, General Manager of complainant Solid Gold, discloses that no personal demands were made on appellant before the filing of the complaints against her. Thus, absent a clear showing that petitioner actually knew of the dishonor of her checks and was given the opportunity to make arrangements for payment as provided for under the law, we cannot with moral certainty convict her of violation of B.P. Blg. 22. The failure of the prosecution to prove that petitioner was given the requisite notice of dishonor is a clear ground for her acquittal. Moreover, as understood by the trial court itself in the herein aforequoted portion of its decision, General Manager Novales knew of the non-availability of sufficient funds when appellant issued the subject checks to him. This Court has held that there is no violation of B.P. 22 if complainant was told by the drawer that he has no sufficient funds in the bank. For these reasons, we reverse the ruling of the Court of Appeals affirming the trial court¶s conviction of petitioner for violation of B.P. Blg. 22. This is without prejudice, however, to her civil liability towards private complainant Solid Gold in the amount of P500,000.00 plus interest thereon at the rate of 12% per annum from date of finality of herein judgment. WHEREFORE, the assailed Decision and Resolution of the Court of Appeals are hereby REVERSED and SET ASIDE. Petitioner Elvira Yu Oh is ACQUITTED of the offense of violation of B.P. Blg. 22 on ten counts for insufficiency of evidence. However, she is ordered to pay complainant Solid Gold International Traders, Inc. the total amount of Five Hundred Thousand Pesos (P500,000.00) with 12% interest per annum from date of finality of herein judgment. SO ORDERED. Bellosillo, (Chairman), Quisumbing, and Callejo, Sr., JJ., concur.

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