Criminal Law Cases

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 80762 March 19, 1990 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FAUSTA GONZALES, AUGUSTO GONZALES, CUSTODIO GONZALES, SR., CUSTODIO GONZALES, JR., NERIO GONZALES and ROGELIO LANIDA, accused, CUSTODIO GONZALES, SR., accused-appellant.

SARMIENTO, J.: In a decision 1 dated October 31, 1984, the Regional Trial Court of Iloilo, Branch XXXVIII (38), in Criminal Case No. 13661, entitled "People of the Philippines vs. Fausta Gonzales, Augusto Gonzales, Custodia Gonzales, Custodio Gonzales, Jr., Nerio Gonzales and Rogelio Lanida," found all the accused, except Rogelio Lanida who eluded arrest and up to now has remain at large and not yet arrained, guilty beyond reasonable doubt of the crime of murder as defined under Article 248 of the Revised Penal Code. They were sentenced "to suffer the penalty of imprisonment of twelve (12) years and one (1) day to seventeen (17) years and four (4) months of reclusion temporal, to indemnify the heirs of the deceased victim in the amount of P40,000.00, plus moral damages in the sum of P14,000.00 and to pay the costs." 2 The victim was Lloyd Peñacerrada, 44, landowner, and a resident of Barangay Aspera, Sara, Iloilo. Through their counsel, all the accused, except of course Rogelio Lanida, filed a notice of appeal from the trial court's decision. During the pendency of their appeal and before judgment thereon could be rendered by the Court of Appeals, however, all the accused-appellants, except Custodio Gonzales, Sr., withdrew their appeal and chose instead to pursue their respective applications for parole before the then Ministry, now Department, of Justice, Parole Division. 3 On October 27, 1987, the Court of Appeals rendered a decision 4 on the appeal of Custodio Gonzales, Sr. It modified the appealed decision in that the lone appellant was sentenced to reclusion perpetua and to indemnify the heirs of Lloyd Peñacerrada in the amount of P30,000.00. In all other respect, the decision of the trial court was affirmed. Further, on the basis of our ruling in People vs. Ramos, 5 the appellate court certified this case to us for review. 6 The antecedent facts are as follows: At around 9:00 o'clock in the evening of February 21, 1981, Bartolome Paja, the barangay captain of Barangay Tipacla, Ajuy, Iloilo, was awakened from his sleep by the spouses Augusto and Fausta Gonzales. Augusto informed Paja that his wife had just killed their landlord, Lloyd Peñacerrada, and thus would like to surrender to the authorities. Seeing Augusto still holding the knife allegedly used in the killing and Fausta with her dress smeared with blood, Paja immediately ordered a nephew of his to take the spouses to the police authorities at the Municipal Hall in Poblacion, Ajuy. As instructed, Paja's nephew brought the Gonzales spouses, who "backrode" on his motorcycle, to the municipal building. 7 Upon reaching the Ajuy Police sub-station, the couple informed the police on duty of the incident. That same night, Patrolman Salvador Centeno of the Ajuy Police Force and the Gonzales spouses went back to Barangay Tipacla. Reaching Barangay Tipacla the group went to Paja's residence where Fausta was made to stay, while Paja, Patrolman Centeno, and Augusto proceeded to the latter's residence at Sitio Nabitasan where the killing incident allegedly occurred. 8 There they saw the lifeless body of Lloyd Peñacerrada, clad only in an underwear, sprawled face down inside the bedroom. 9 The group stayed for about an hour during which time Patrolman Centeno inspected the scene and started to make a rough sketch thereof and the immediate surroundings. 10 The next day, February 22, 1981, at around 7:00 o'clock in the morning, Patrolman Centeno, accompanied by a photographer, went back to the scene of the killing to conduct further investigations. Fausta Gonzales, on the other hand, was brought back that same day by Barangay Captain Paja to the police substation in Ajuy. When Patrolman Centeno and his companion arrived at Sitio Nabitasan, two members of the 321st P.C. Company stationed in Sara, Iloilo, who had likewise been informed of the incident, were already there conducting their own investigation. Patrolman Centeno continued with his sketch; photographs of the scene were likewise taken. The body of the victim was then brought to the Municipal Hall of Ajuy for autopsy. The autopsy of Lloyd Peñacerrada's cadaver was performed at about 11:20 a.m. on February 22, 1981; after completed, a report was made with the following findings:

PHYSICAL FINDINGS 1. Deceased is about 5 ft. and 4 inches in height, body moderately built and on cadaveric rigidity. EXTERNAL FINDINGS 1. Puncture wound, 1 cm. in width, 9 cm. in length, located at the lower 3rd anterior aspect of the arm, right, directed upward to the right axillary pit. 2. Stab wound, thru and thru, located at the proximal 3rd, forearm right, posterior aspect with an entrance of 5 cm. in width and 9 cm. in length with an exit at the middle 3rd, posterior aspect of the forearm, right, with 1 cm. wound exit. 3. Stab wound, thru and thru, located at the middle 3rd, posterior aspect of the forearm right, 1 cm. in width. 4. Incised wound, 4 cm. long, depth visualizing the right lateral border of the sternum, 6th and 7th ribs, right located 1.5 inches below the right nipple. 5. Stab wound, 2 cm. in width, 10.5 cm. in depth, directed inward to the thoracic cavity right, located at the left midclavicular line at the level of the 5th rib left. 6. Stab wound, 2 cm. in width, 9.5 cm. in depth directed toward the right thoracic cavity, located at the mid left scapular line at the level of the 8th intercostal space. 7. Puncture wound, 1 cm. in width, located at the base of the left armpit directed toward the left thoracic cavity. 8. Puncture wound, 1 cm. in width, 11 cm. in length, directed toward the left deltoid muscle, located at the upper 3rd axilla left. 9. Puncture wound, 3 cm in width, 11.5 cm in length, located at the anterior aspect, proximal 3rd arm left, directed downward. 10. Stab wound, thru and thru, 2.5 cm. in width, and 5 cm. in length, medial aspect, palm right. 11. Stabwound, 4 cm.in width, iliac area, right, directed inward with portion of large intestine and mysentery coming out. 12. Stab wound, 4 cm. in width, located at the posterior portion of the shoulder, right, directed downward to the aspex of the light thoracic cavity. 13. Incised wound, 1 cm. in width, 10 cm. in length, located at the medial portion of the medial border of the right scapula. 14. Incised wound, 1 cm. in width, 4.5 cm. in length, located at the posterior aspect of the right elbow. 15. Incised wound, 1 cm. in width, 2 cm. in length, located at the posterior portion, middle 3rd, forearm, right. 16. Lacerated wound at the anterior tantanelle with fissural fracture of the skull. INTERNAL FINDINGS: 1. Stab wound No. 5, injuring the left ventricle of the heart. 2. Stab wound No. 6, severely injuring the right lower lobe of the lungs.

3. Stab wound No. 7, injuring the right middle lobe of the lungs. 4. Stab wound No. 11, injuring the descending colon of the large intestine, thru and thru. 5. Stab wound No. 12, severely injuring the apex of the right lungs (sic). CAUSE OF DEATH: MASSIVE HEMMORRHAGE DUE TO MULTIPLE LACERATED, STABBED (sic), INCISED AND PUNCTURED WOUNDS. The autopsy report thus showed that Dr. Rojas "found sixteen (16) wounds, five (5) of which are fatal because they penetrated the internal organs, heart, lungs and intestines of the deceased." 12 On February 23, two days after the incident, Augusto Gonzales appeared before the police sub-station in the poblacion of Ajuy and voluntarily surrendered to Police Corporal Ben Sazon for detention and protective custody for "having been involved" in the killing of Lloyd Peñacerrada. He requested that he be taken to the P.C. headquarters in Sara, Iloilo where his wife, Fausta, was already detained having been indorsed thereat by the Ajuy police force. 13 Based on the foregoing and on the investigations conducted by the Ajuy police force and the 321st P.C. Company, an information for murder dated August 26, 1981, was filed by the Provincial Fiscal of Iloilo against the spouses Augusto and Fausta Gonzales. The information read as follows: The undersigned Provincial Fiscal accuses FAUSTA GONZALES and AUGUSTO GONZALES of the crime of MURDER committed as follows: That on or about the 21st day of February, 1981, in the Municipality of Ajuy, Province of Iloilo, Philippines, and within the jurisdiction of this Court, the above-named accused with four other companions whose identities are still unknown and are still at large, armed with sharp-pointed and deadly weapons, conspiring, confederating and helping each other, with treachery and evident premeditation, with deliberate intent and decided purpose to kill, and taking advantage of their superior strength and number, did then and there wilfully, unlawfully and feloniously attack, assault, stab, hack, hit and wound Lloyd D. Peñacerrada, with the weapons with which said accused were provided at the time, thereby inflicting upon said Lloyd D. Peñacerrada multiple wounds on different parts of his body as shown by autopsy report attached to the record of this case which multifarious wounds caused the immediate death of said Lloyd D. Peñacerrada. CONTRARY TO LAW. Iloilo City, August 26, 1981. 14 When arraigned on September 16, 1981, Augusto and Fausta both entered a plea of not guilty. Before trial, however, Jose Huntoria 15 who claimed to have witnessed the killing of Lloyd Peñacerrada, presented himself to Nanie Peñacerrada, the victim's widow, on October 6, 1981, and volunteered to testify for the prosecution. A reinvestigation of the case was therefore conducted by the Provincial Fiscal of Iloilo on the basis of which an Amended Information, 16 dated March 3, 1982, naming as additional accused Custodio Gonzales, Sr. (the herein appellant), Custodio Gonzales, Jr., Nerio Gonzales, and Rogelio Lanida, was filed. Again, all the accused except as earlier explained, Lanida, pleaded not guilty to the crime. At the trial, the prosecution presented Dr. Jesus Rojas, the Rural Health physician of Ajuy who conducted the autopsy on the body of the victim; Bartolome Paja, the barangay captain of Barangay Tipacla; Patrolman Salvador Centeno and Corporal Ben Sazon of the Ajuy Police Force; Sgt. (ret) Nicolas Belicanao and Sgt. Reynaldo Palomo of the 321st P.C. Company based in Sara, Iloilo; Jose Huntoria; and Nanie Peñacerrada, the widow. Dr. Jesus Rojas testified that he performed the autopsy on the body of the deceased Lloyd Penacerrada at around 11:20 a.m. on February 22, 1981 after it was taken to the municipal hall of Ajuy. 17 His findings revealed that the victim suffered from 16 wounds comprising of four (4) punctured wounds, seven (7) stab wounds, four (4) incised wounds, and one (1) lacerated wound. In his testimony, Dr. Rojas, while admitting the possibility that only one weapon might have caused all the wounds (except the lacerated wound) inflicted on the victim, nevertheless opined that due to the number and different characteristics of the wounds, the probability that at least two instruments were used is high. 18 The police authorities and the P.C.

operatives for their part testified on the aspect of the investigation they respectively conducted in relation to the incident. Nanie Peñacerrada testified mainly on the expenses she incurred by reason of the death of her husband while Barangay Captain Bartolome Paja related the events surrounding the surrender of the spouses Augusto and Fausta Gonzales to him, the location of the houses of the accused, as well as on other matters. By and large, the prosecution's case rested on Huntoria's alleged eyewitness account of the incident. According to Huntoria, who gave his age as 30 when he testified on July 27, 1982, 19 at 5:00 o'clock in the afternoon on February 21, 1981, he left his work at Barangay Central, in Ajuy, Iloilo where he was employed as a tractor driver by one Mr. Piccio, and walked home; 20 he took a short-cut route. 21 While passing at the vicinity of the Gonzales spouses' house at around 8:00 o'clock in the evening, he heard cries for help. 22 Curiosity prompted him to approach the place where the shouts were emanating. When he was some 15 to 20 meters away, he hid himself behind a clump of banana trees. 23 From where he stood, he allegedly saw all the accused ganging upon and takings turns in stabbing and hacking the victim Lloyd Peñacerrada, near a "linasan" or threshing platform. He said he clearly recognized all the accused as the place was then awash in moonlight. 24 Huntoria further recounted that after the accused were through in stabbing and hacking the victim, they then lifted his body and carried it into the house of the Gonzales spouses which was situated some 20 to 25 meters away from the "linasan". 25 Huntoria then proceeded on his way home. Upon reaching his house, he related what he saw to his mother and to his wife 26 before he went to sleep.27 Huntoria explained that he did not immediately report to the police authorities what he witnessed for fear of his life. 28 In October 1981 however, eight months after the extraordinary incident he allegedly witnessed, bothered by his conscience plus the fact that his father was formerly a tenant of the victim which, to his mind, made him likewise a tenant of the latter, he thought of helping the victim's widow, Nanie Peñacerrada. Hence, out of his volition, he travelled from his place at Sitio Nabitasan, in Barangay Tipacla Municipality of Ajuy, to Sara, Iloilo where Mrs. Peñacerrada lived, and related to her what he saw on February 21, 1981. 29 Except Fausta who admitted killing Lloyd Peñacerrada in defense of her honor as the deceased attempted to rape her, all the accused denied participation in the crime. The herein accused-appellant, Custodio Gonzales, Sr., claimed that he was asleep 30 in his house which was located some one kilometer away from the scene of the crime 31 when the incident happened. He asserted that he only came to know of it after his grandchildren by Augusto and Fausta Gonzales went to his house that night of February 21, 1981 to inform him. 32 The trial court disregarded the version of the defense; it believed the testimony of Huntoria. On appeal to the Court of Appeals, Custodia Gonzales, Sr., the lone appellant, contended that the trial court erred in convicting him on the basis of the testimony of Jose Huntoria, the lone alleged eyewitness, and in not appreciating his defense of alibi. The Court of Appeals found no merit in both assigned errors. In upholding Huntoria's testimony, the appellate court held that: . . . Huntoria positively identified all the accused, including the herein accused-appellant, as the assailants of Peñacerrada. (TSN, p. 43, July 27, 1982) The claim that Huntoria would have difficulty recognizing the assailant at a distance of 15 to 20 meters is without merit, considering that Huntoria knew all the accused. (Id., pp. 37-39) If Huntoria could not say who was hacking and who was stabbing the deceased, it was only because the assailant were moving around the victim. As for the delay in reporting the incident to the authorities, we think that Huntoria's explanation is satisfactory. He said he feared for his life. (Id., pp. 50-51, 65) As stated in People vs. Realon, 99 SCRA 442, 450 (1980): "The natural reticence of most people to get involved in a criminal case is of judicial notice. As held in People v. Delfin, '. . . the initial reluctance of witnesses in this country to volunteer information about a criminal case and their unwillingness to be involved in or dragged into criminal investigations is common, and has been judicially declared not to affect credibility.'" It is noteworthy that the accused-appellant self admitted that he had known Huntoria for about 10 years and that he and Huntoria were in good terms and had no misunderstanding whatsoever. (TSN, p. 33, July 18, 1984) He said that he could not think of any reason why Huntoria should implicate him. ( Id., p. 34) Thus, Huntoria's credibility. is beyond question. 33 The Court of Appeals likewise rejected the appellant's defense of alibi. 34 The appellate court, however, found the sentence imposed by the trial court on the accused-appellant erroneous. Said the appellate court: Finally, we find that the trial court erroneously sentenced the accused-appellant to 12 years and 1 day to 17 years and 4 months of reclusion temporal. The penalty for murder under Article 248 is reclusion temporal in its maximum period to death. As there was no mitigating or aggravating circumstance, the

imposible penalty should be reclusion perpetua. Consequently, the appeal should have been brought to the Supreme Court. With regard to the indemnity for death, the award of P40,000.00 should be reduced to P30,000.00, in accordance with the rulings of the Supreme Court. ( E.g., People v. De la Fuente, 126 SCRA 518 (1983); People v. Atanacio, 128 SCRA 31 (1984); People v. Rado, 128 SCRA 43 (1984); People v. Bautista, G.R. No. 68731, Feb. 27, 1987). 35 The case, as mentioned earlier, is now before us upon certification by the Court of Appeals, the penalty imposed being reclusion perpetua. After a careful review of the evidence adduced by the prosecution, we find the same insufficient to convict the appellant of the crime charged. To begin with, the investigation conducted by the police authorities leave much to be desired. Patrolman Centeno of the Ajuy police force in his sworn statements 36 even gave the date of the commission of the crime as "March 21, 1981." Moreover, the sketch 37 he made of the scene is of little help. While indicated thereon are the alleged various blood stains and their locations relative to the scene of the crime, there was however no indication as to their quantity. This is rather unfortunate for the prosecution because, considering that there are two versions proferred on where the killing was carried out, the extent of blood stains found would have provided a more definite clue as to which version is more credible. If, as the version of the defense puts it, the killing transpired inside the bedroom of the Gonzales spouses, there would have been more blood stains inside the couple's bedroom or even on the ground directly under it. And this circumstance would provide an additional mooring to the claim of attempted rape asseverated by Fausta. On the other hand, if the prosecution's version that the killing was committed in the field near the linasan is the truth, then blood stains in that place would have been more than in any other place. The same sloppiness characterizes the investigation conducted by the other authorities. Police Corporal Ben Sazon who claimed that accused Augusto Gonzales surrendered to him on February 23, 1981 failed to state clearly the reason for the "surrender." It would even appear that Augusto "surrendered" just so he could be safe from possible revenge by the victim's kins. Corporal Sazon likewise admitted that Augusto never mentioned to him the participation of other persons in the killing of the victim. Finally, without any evidence on that point, P.C. investigators of the 321st P.C. Company who likewise conducted an investigation of the killing mentioned in their criminal complaint 38 four other unnamed persons, aside from the spouses Augusto and Fausta Gonzales, to have conspired in killing Lloyd Peñacerrada. Now on the medical evidence. Dr. Rojas opined that it is possible that the sixteen wounds described in the autopsy report were caused by two or more bladed instruments. Nonetheless, he admitted the possibility that one bladed instrument might have caused all. Thus, insofar as Dr. Rojas' testimony and the autopsy report are concerned, Fausta Gonzales' admission that she alone was responsible for the killing appears not at all too impossible. And then there is the positive testimony of Dr. Rojas that there were only five wounds that could be fatal out of the sixteen described in the autopsy report. We shall discuss more the significance of these wounds later. It is thus clear from the foregoing that if the conviction of the appellant by the lower courts is to be sustained, it can only be on the basis of the testimony of Huntoria, the self-proclaimed eyewitness. Hence, a meticulous scrutiny of Huntoria's testimony is compelling. To recollect, Huntoria testified that he clearly saw all the accused, including the appellant, take turns in hacking and stabbing Lloyd Peñacerrada, at about 8:00 o'clock in the evening, on February 21, 1981, in the field near a "linasan" while he (Huntoria) stood concealed behind a clump of banana trees some 15 to 20 meters away from where the crime was being committed. According to him, he recognized the six accused as the malefactors because the scene was then illuminated by the moon. He further stated that the stabbing and hacking took about an hour. But on cross-examination, Huntoria admitted that he could not determine who among the six accused did the stabbing and/or hacking and what particular weapon was used by each of them. ATTY. GATON (defense counsel on cross-examination): Q And you said that the moon was bright, is it correct? A Yes, Sir. Q And you would like us to understand that you saw the hacking and the stabbing, at that distance by the herein accused as identified by you? A Yes, sir, because the moon was brightly shining.

Q If you saw the stabbing and the hacking, will you please tell this Honorable Court who was hacking the victim? A Because they were surrounding Peñacerrada and were in constant movement, I could not determine who did the hacking. ATTY. GATON: The interpretation is not clear. COURT: They were doing it rapidly. A The moving around or the hacking or the "labu" or "bunu" is rapid. I only saw the rapid movement of their arms, Your Honor, and I cannot determine who was hacking and who was stabbing. But I saw the hacking and the stabbing blow. ATTY. GATON: Q You cannot positively identify before this Court who really hacked Lloyd Peñacerrada? A Yes sir, I cannot positively tell who did the hacking. Q And likewise you cannot positively tell this Honorable Court who did the stabbing? A Yes sir, and because of the rapid movements. Q I noticed in your direct testimony that you could not even identify the weapons used because according to you it was just flashing? A Yes, sir. 39 (Emphasis supplied) From his very testimony, Huntoria failed to impute a definite and specific act committed, or contributed, by the appellant in the killing of Lloyd Peñacerrada. It also bears stressing that there is nothing in the findings of the trial court and of the Court of Appeals which would categorize the criminal liability of the appellant as a principal by direct participation under Article 17, paragraph 1 of the Revised Penal Code. Likewise, there is nothing in the evidence for the prosecution that inculpates him by inducement, under paragraph 2 of the same Article 17, or by indispensable cooperation under paragraph 3 thereof. What then was the direct part in the killing did the appellant perform to support the ultimate punishment imposed by the Court of Appeals on him? Article 4 of the Revised Penal Code provides how criminal liability is incurred. Art. 4. Criminal liability — Criminal liability shall be incurred: 1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended. 2. By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means. (Emphasis supplied.)

Thus, one of the means by which criminal liability is incurred is through the commission of a felony. Article 3 of the Revised Penal Code, on the other hand, provides how felonies are committed. Art. 3. Definition — Acts and omissions punishable by law are felonies (delitos). Felonies are committed not only by means of deceit (dolo) but also by means of fault (culpa). There is deceit when the act is performed with deliberate intent ; and there is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill. (Emphasis supplied.) Thus, the elements of felonies in general are: (1) there must be an act or omission; (2) the act or omission must be punishable under the Revised Penal Code; and (3) the act is performed or the omission incurred by means of deceit or fault. Here, while the prosecution accuses, and the two lower courts both found, that the appellant has committed a felony in the killing of Lloyd Peñacerrada, forsooth there is paucity of proof as to what act was performed by the appellant. It has been said that "act," as used in Article 3 of the Revised Penal Code, must be understood as "any bodily movement tending to produce some effect in the external world." 40 In this instance, there must therefore be shown an "act" committed by the appellant which would have inflicted any harm to the body of the victim that produced his death. Yet, even Huntoria, as earlier emphasized, admitted quite candidly that he did not see who "stabbed" or who "hacked" the victim. Thus this principal witness did not say, because he could not whether the appellant "hacked or "stabbed" victim. In fact, Huntoria does not know what specific act was performed by the appellant. This lack of specificity then makes the case fall short of the test laid down by Article 3 of the Revised Penal Code previously discussed. Furthermore, the fact that the victim sustained only five fatal wounds out of the total of sixteen inflicted, as adverted to above, while there are six accused charged as principals, it follows to reason that one of the six accused could not have caused or dealt a fatal wound. And this one could as well be the appellant, granted ex gratia argumenti that he took part in the hacking and stabbing alleged by Huntoria. And why not him? Is he not after all the oldest (already sexagenarian at that time) and practically the father of the five accused? And pursuing this argument to the limits of its logic, it is possible, nay even probable, that only four, or three, or two of the accused could have inflicted all the five fatal wounds to the exclusion of two, three, or four of them. And stretching the logic further, it is possible, nay probable, that all the fatal wounds, including even all the non-fatal wounds, could have been dealt by Fausta in rage against the assault on her womanhood and honor. But more importantly, there being not an iota of evidence that the appellant caused any of the said five fatal wounds, coupled with the prosecution's failure to prove the presence of conspiracy beyond reasonable doubt, the appellant's conviction can not be sustained. Additionally, Huntoria's credibility as a witness is likewise tarnished by the fact that he only came out to testify in October 1981, or eight long months since he allegedly saw the killing on February 21, 1981. While ordinarily the failure of a witness to report at once to the police authorities the crime he had witnessed should not be taken against him and should not affect his credibility, 41 here, the unreasonable delay in Huntoria's coming out engenders doubt on his veracity. 42 If the silence of coming out an alleged eyewitness for several weeks renders his credibility doubtful, 43 the more it should be for one who was mute for eight months. Further, Huntoria's long delay in reveiling what he allegedly witnessed, has not been satisfactorily explained. His lame excuse that he feared his life would be endangered is too pat to be believed. There is no showing that he was threatened by the accused or by anybody. And if it were true that he feared a possible retaliation from the accused, 44 why did he finally volunteer to testify considering that except for the spouses Augusto and Fausta Gonzales who were already under police custody, the rest of the accused were then still free and around; they were not yet named in the original information, 45 thus the supposed danger on Huntoria's life would still be clear and present when he testified. Moreover, Huntoria is not exactly a disinterested witness as portrayed by the prosecution. He admitted that he was a tenant of the deceased. In fact, he stated that one of the principal reasons why he testified was because the victim was also his landlord. xxx xxx xxx Q Now, Mr. Huntoria, why did it take you so long from the time you saw the stabbing and hacking of Lloyd Peñacerrada when you told Mrs. Peñacerrada about what happened to her husband?

A At first I was then afraid to tell anybody else but because I was haunted by my conscience andsecondly the victim was also my landlord I revealed what I saw to the wife of the victim. 46 xxx xxx xxx (Emphasis ours.) At this juncture, it may be relevant to remind that under our socioeconomic set-up, a tenant owes the very source of his livelihood, if not existence itself, from his landlord who provides him with the land to till. In this milieu, tenants like Huntoria are naturally beholden to their landlords and seek ways and means to ingratiate themselves with the latter. In this instance, volunteering his services as a purported eyewitness and providing that material testimony which would lead to the conviction of the entire family of Augusto Gonzales whose wife, Fausta, has confessed to the killing of Lloyd Peñacerrada, would, in a perverted sense, be a way by which Huntoria sought to ingratiate himself with the surviving family of his deceased landlord. This is especially so because the need to get into the good graces of his landlord's family assumed a greater urgency considering that he ceased to be employed as early as May 1981. 47 Volunteering his services would alleviate the financial distress he was in. And Huntoria proved quite sagacious in his choice of action for shortly after he volunteered and presented himself to the victim's widow, he was taken under the protective wings of the victim's uncle, one Dr. Biclar, who gave him employment and provided lodging for his family. 48 Given all the foregoing circumstances, we can not help but dismiss Huntoria as an unreliable witness, to say the least. At any rate, there is another reason why we find the alleged participation of the appellant in the killing of Lloyd Peñacerrada doubtful — it is contrary to our customs and traditions. Under the Filipino family tradition and culture, aging parents are sheltered and insulated by their adult children from any possible physical and emotional harm. It is therefore improbable for the other accused who are much younger and at the prime of their manhood, to summon the aid or allow the participation of their 65-year old 49 father, the appellant, in the killing of their lone adversary, granting that the victim was indeed an adversary. And considering that the appellant's residence was about one kilometer from the scene of the crime, 50 we seriously doubt that the appellant went there just for the purpose of aiding his three robust male sons (Custodia Jr., Nerio, and Augusta), not to mention the brother and sister, Rogelio and Fausta, in the killing of Lloyd Peñacerrada, even if the latter were a perceived enemy. Finally, while indeed alibi is a weak defense, 51 under appropriate circumstances, like in the instant case in which the participation of the appellant is not beyond cavil it may be considered as exculpatory. Courts should not at once look with disfavor at the defense of alibi for if taken in the light of the other evidence on record, it may be sufficient to acquit the accused. 52 In fine, the guilt of the appellant has not been proven beyond reasonable doubt. WHEREFORE, the Decision of the Court of Appeals is REVERSED and SET ASIDE and the appellant is hereby ACQUITTED. Costs de oficio. SO ORDERED. Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-6641 July 28, 1955

FRANCISCO QUIZON, petitioner, vs. THE HON. JUSTICE OF THE PEACE OF BACOLOR, PAMPANGA, ET AL., respondents. Moises Sevilla Ocampo and Pedro S. David for petitioner. Office of the Solicitor General Juan R. Liwag and Assistant Solicitor General Francisco Carreon for respondents. REYES, J. B. L., J.: On December 19, 1952, the respondents Chief of Police of Bacolor, Pampanga, filed a criminal complaint against the herein petitioner, Francisco Quizon, with the Justice of the Peace Court of said municipality charging Quizon with the crime of damage to property through reckless imprudence, the value of the damage amounting to P125.00. Quizon filed a motion to quash on the ground that, under Article 365 of the Revised Penal Code, the penalty which might be imposed on the accused would be a fine or from P125.00 to P375.00, which is in excess of the fine that may be imposed by the justice of the peace court. The Justice of the Peace forwarded the case to the Court of First Instance of Pampanga, but the latter returned it to him for trial on the merits, holding that the justice of the peace court had jurisdiction. The defendant appealed from this ruling of the Court of First Instance to this Court on the question of law raised. Section 44 of the Judiciary Act of 1948 (Republic Act No. 296) provides in part as follows: Original jurisdiction.—Courts of First Instance shall have original jurisdiction: (f) In all criminal cases in which the penalty provided by law is imprisonment for more than six months, or a fine of more than two hundred pesos: Section 87 of said Acts reads as follows:. Original jurisdiction to try criminal cases.—Justices of the peace and judges of municipal courts of chartered cities shall have original jurisdiction over: (c) All criminal cases arising under the laws relating to: (6) Malicious mischief;. In the cases of People vs. Palmon, 86 Phil., 350; People vs. Peñas Y Ferrer and Rey y Rochas, 86 Phil., 596; andNatividad, et al. vs. Robles, 87 Phil.,, 834, it was held that in the cases provided for in Section 87 (c) of the Judiciary Act of 1948 above quoted, the jurisdiction given to justices of the peace and judges of the municipal courts is not exclusive but concurrent with the courts of first instance, when the penalty to be imposed is more than six months imprisonment or a fine of more than P200.00. The question, therefore , is whether the justice of the peace court has concurrent jurisdiction with the court of First Instance when the crime charged is damage to property through reckless negligence or imprudence if the amount of the damage is P125. We believe that the answer should be in the negative. To hold that the Justice of the Peace Court has jurisdiction to try cases of damage to property through reckless negligence, because it has jurisdiction over cases of malicious mischief, is to assume that the former offense is but a variant of the latter. This assumption is not legally warranted. Article 327 of the Revised Penal Code is as follows:

ART. 327. Who are liable for malicious mischief.—Any person who shall deliberately cause to the property of another any damage not falling within the terms of the next preceding chapter shall be guilty of malicious mischief. It has always been regarded of the essence of this felony that the offender should have not only the general intention to carry out the felonious act (a feature common to all willful crimes) but that he should act under the impulse of a specific desire to inflict injury to another; "que en el hecho concurra animo especifico de dañar"(Cuello Calon, Der. Penal [6th Ed.] Vol. II, p. 869; Sent. of Tribunal Supreme of Spain, 21 Dec. 1909; 12 Feb. 1921). El elemento interno de este delito require, ademas de la voluntad de ejecutar el hecho dañoso y de la conciencia de su ilegitimidad, el animo de perjudicar, la intencion de dañar. Si no existe semejante animo el hecho no constituey delito. (II Cuello Calon, p.870-871). The necessity of the special malice for the crime of malicious mischief is contained in the requirement of Art. 327 of our Revised Penal Code, already quoted, that the offender "shall deliberately cause to the property of another any damage not falling within the terms of the next preceding chapter", i.e., not punishable as arson. It follows that, in the very nature of things, malicious mischief can not be committed through negligence, since culpa (negligence) and malice ( or deliberateness) are essentially incompatible. Hence, the Supreme Court of Spain in its decisions of 12 Feb. 1912, 7 Oct. 1931, 13 Nov. 1934 and 5 Oct. 1942, has expressly recognized that this crime is one of those that can not be committed by imprudence or negligence. The proposition (inferred from Art. 3 of the Revised Penal Code) that "reckless imprudence" is not a crime in itself but simply a way of committing it and merely determines a lower degree of criminal liability" is too broad to deserve unqualified assent . There are crimes that by their structure can not be committed through imprudence: murder, treason, robbery, malicious mischief, etc. In truth, criminal negligence in our Revised Penal Code is treated as a mere quasi offense, and dealt with separately from willful offenses. It is not a mere question of classification or terminology. In international 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. Much of the confusion has arisen from the common use of such descriptive phrases as "homicide through reckless imprudence," and the like; when the strict technical offense is, more accurately, "reckless imprudence resulting in homicide"; or "simple imprudence causing damages to property". Were criminal negligence but a modality in the commission of felonies, operating only to reduce the penalty therefor, then it would be absorbed in the mitigating circumstances of Art. 13, specially the lack of intent to commit so grave a wrong as the one actually committed. Furthermore, the theory would require that the corresponding penalty should be fixed in proportion to the penalty prescribed for each crime when committed willfully. For each penalty for the willful offense, there would then be a corresponding penalty for the negligent variety. But instead, our Revised Penal Code (Art. 365) fixes the penalty for reckless imprudence at arresto mayor maximum, to prision correccional minimum, if the willful act would constitute a grave felony, notwithstanding that the penalty for the latter could range all the way from prision mayor to death, according to the case. It can be seen that the actual penalty for criminal negligence bears no relation to the individual willful crime, but is set in relation to a whole class, or series, of crimes. It is difficult to believe that the Legislature, in giving Justices of the Peace jurisdiction to try cases of malicious mischief, did so in total disregard of the principles and considerations above outlined. Our conclusion is that "malicious mischief" as used in Section 87, par. 6, of the Judiciary Act, has exclusive reference to the willful and deliberate crimes described in Arts. 327 to 331 of our Revised Penal Code, and to no other offense. A further reason for this restrictive interpretation of the term "malicious mischief" used in section 87 of the Judiciary Act, is that the same constitutes an exception to the general jurisdiction of the Justice of the Peace Courts in criminal cases, which had always stood prior to the said Act at offenses punishable with not more than 6 months' imprisonment or a fine of not more than P200.00 or both. To this traditional jurisdiction, the Judiciary Act added eight (8) specific exceptions in the form of felonies triable in said courts without reference to the penalty imposable; and malicious mischief is one of these exceptions, while imprudence resulting in damage to property is not one of them. For the foregoing reasons, we declare that the jurisdiction over the offense in question lies exclusively in the Court of First Instance. Hence, the writ of certiorari is granted and the order of remand to the Justice of the Peace Court is reversed and set aside. Without pronouncement as to costs. Bengzon, Padilla, Bautista Angelo, Labrador and Concepcion, JJ., concur.

Separate Opinions MONTEMAYOR, J. concurring: There is no question that the offense of malicious mischief, that is to say, causing damage to another's property willfully and for the sake of causing injury, because of hate, revenge or other evil motive (Art. 327, Revised Penal Code), is much more serious than damage to property without intent or malice but through negligence (Art. 365, Revised Penal Code). If the Justice of the peace court has jurisdiction, as Republic Act 296, Sec. 87 gives him, to try and decide cases of malicious mischief, logically and with more reason, it should also be allowed to try and decide cases of the less serious offense of damage to property through negligence. Actually, however, under the law, this is not always so. Under Art. 365, in damage to property thru negligence, "the offender shall be punished by a fine ranging from an amount equal to the value of the damage to three times such value." In the present case, the value of the damage is P125 and three times that amount would be P375 which is beyond the P 200.00 which a justice of the peace court may impose as fine in criminal cases. For this reason, although I am not convinced of the wisdom and rationale of the law in this respect, I vote with the majority because the law is on its side.

REYES, A., J., concurring: While it may not be good law to invest municipal and justice of the peace courts with "original jurisdiction" over criminal cases involving damage to property where the damage was deliberately cause, but not where the damage was the result of mere negligence, I am constrained to concur in the majority opinion, because our duty is to apply the law as we find it and not as we think it should be. The law has extended the criminal jurisdiction of the abovementioned courts to cases of "malicious mischief," but not to cases of damage to property resulting from mere negligence. We should not legislate by arbitrarily considering the latter as comprehended in the former. The two are essentially different. Damage to property constitutes "malicious mischief" only when the object of the perpetrator is "injury of the property merely for the sake of damaging it." (U. S. vs. Generale et al., 4 Phil., 216.) It would be an incongruity to apply the term to cases of damages to property where that object is lacking, as where the damage was due to mere negligence. I therefore vote to grant the writ.

JUGO, J., dissenting: The majority opinion seems to hold that there is no crime of damage to property through reckless negligence, for the reason that in the crime of damage to property there should be malice or deliberate intent to cause it. If that is so, then why remand the case of the court of first instance? If there is no such crime neither the court of first instance nor the justice of the peace court can punish it. The result would be that the numerous crimes committed almost daily of damage to property through reckless negligence would go unpunished. Reckless negligence alone without any damage is not penalized by the Penal Code. Article 327 of the Penal Code provides "Any person who shall deliberately cause to the property of another any damage not falling within the terms of the next preceding chapter, shall be guilty of malicious mischief. "That does not mean that a person who causes damage to property, without deliberate intent, could not commit it through reckless negligence, for the deliberate intent to commit it through reckless negligence, for the deliberate intent to commit a crime is common to all crimes. Article 3 of the Revised Penal Code defines crimes as follows: Acts and omissions punishable by law are felonies (delitos). Felonies are committed not only by means of deceit (dolo) but also by means of fault ( culpa). There is deceit when the act is performed with deliberate intent; and there is fault when the wrongful act results from imprudence, negligence, lack of foresight. or lack of skill.

In the present case damage to property was committed through culpa "imprudence, negligence, lack of foresight, or lack of skill". We should not be mislead by the word "malicious" in the phrase "malicious mischief" for that is only a translation of the word "daños" as used in the Spanish text which governs. (People vs. Abilong, 46 Off. Gaz., 1012.) The drafter of Article 327 of the Revised Penal Code in using the word "malicious" in the phrase "malicious mischief" did not add anything to the general concept of crimes as defined in Article 3, but may have used the word "mischief" simply to distinguish it from damages which may give rise only to civil liability. However that may be, it is clear that he referred to damage in general which may be committed with deliberate intent or through reckless negligence. In the case of People vs. Faller, 67 Phil., 529, it was was held by this Court through Chief Justice Avaceña that a person accused of malicious mischief may be convicted of damage to property through reckless negligence. If the latter crime is essentially different from malicious mischief, then the accused could not have been convicted of it. For the above reasons, I dissent.

epublic of the Philippines SUPREME COURT Manila EN BANC DECISION March 31, 1958 G.R. Nos. L-10364 and L-10376 RUFINO T. SAMSON, petitioner, vs. THE HONORABLE COURT OF APPEALS, ET AL., respondents. Baizas, Macadaeg and Baviera for petitioner. Solicitor General Ambrosio Padilla and Solicitor Eriberto D. Ignacio for respondents. BAUTISTA ANGELO, J.: Rufino T. Samson was jointly charged with Amado L. Cruz and Bonifacio Vergara and two others whose names are unknown in two separate informations with the complex crime of estafa through falsification of two checks of the Philippine National Bank before the Court of First Instance of Manila (Cases Nos. 12802 and 12803). On a plea of not guilty, they were tried and found guilty as charged, the court sentencing each of the three defendants to suffer in each case a penalty of not less than 6 years and 1 day and not more than 9 years, 4 months and 1 day of prision mayor, to pay a fine of P2,500 and the costs. In addition, they were sentenced to indemnify the Philip-pine Ryukyus Command, the payee of the checks, in the sum of P5,417.11 in each of the two cases. The trio appealed from the decision and the Court of Appeals affirmed the same but with a reduced penalty with regard to appellants Cruz and Vergara. Appellant Samson was only found guilty of committing the crime through gross imprudence and was accordingly sentenced to 4 months of arresto mayor in each of the two cases. Dissatisfied with his conviction, Samson sued out the present petition for review contending (1) that the acts done by him, as found by the Court of Appeals, do not constitute gross imprudence; (2) that there is no such offense as estafa through (falsification by) negligence; and (3) that the Court of Appeals erred in denying his motion for new trial. The facts as found by the Court of Appeals are: “Espiridion Lasca?o, father of the late Felipe Lasca?o, a lieutenant of the USAFFE, who died during the last World War, and his widow Rosanna Paras, through the latter filed, is Felipe Lascano’s only legitimate surviving heir, their claim papers with the Red Cross Chapter in the Province of Sorsogon in the early part of 1946. “On October 2, 1948 Amado L. Cruz asked the help of his former classmate Rufino T. Samson in getting the checks of the two claimants who were with him at Camp Murphy by approaching an officer of the Philippine Army who could identify said persons assuring Samson that he had known said claimants for a long time. Having been assured twice of the identity of the supposed claimants and after examining their residence certificates attached to the claim papers, Samson accompanied by Cruz and the supposed claimants went to talk to Lt. Manuel Valencia and requested him to act as guarantor to secure the claimants check. Believing in the representations made by Samson, Lt. Valencia accompanied them to the Deceased Check Delivery Section, Finance, AFP, and secured the release of PNB Check No-754497J, Exhibit C, in favor of Rosalina Paras for

the sum of P6,417.11 and the PNB Check No. 754498J, Exhibit D, in favor of Espiridion Lasca?o for the sum of P6,417.10. Thence, the party repaired to the Bureau of Treasury, Finance Building, where again through the help of Rufino T. Samson on, the two checks above-mentioned were cashed by the teller Rosario Mallari who knew Samson. In accordance with the regulations of the Bureau of Treasury to payee Rosalina Paras, not knowing how to write or sign her name, was required to thumbmark on the back of the check, Exhibit C, and below her thumbmark Rufino T. Samson and Francisco Ordo?ez signed as witnesses. Espiridion Lasca?o who knows how to sign his name was asked to do so on the back of the check, Exhibit D, and below his signature Samson signed not as a witness but as the last indorser. The accounts called for in said two checks were delivered to a son and Cruz, who, as will be shown hereafter, was the person who signed as Francisco Ordo?ez, counted the money and delivered it to the supposed claimants. The party then proceeded to the Aristocrat Restaurant where together with about eleven others took their lunch for which Vergara paid P60, besides giving Samson P300 sup-posed to be paid to the officers who helped them in securing the checks plus P10 for Samson’s taxi fare. Samson left the party and went to the movie to meet a friend from Camp Murphy. “On October 4, or just two days after cashing the checks, while at Camp Murphy Samson was informed by Severino Anda, one of those who were with the party which cashed the checks, thus said cheeks were delivered to the wrong parties. Worried by such news he left for Sorsogon the following day to locate the real claimants. While on the train he saw an old couple whom he suspected to be the fake claimants because they had been throwing furtive glances at him. Upon arriving at Sorsogon he reported the matter to the matter to police and caused to be taken the couples finger prints names and address. At about 10 a.m., October 6, he went to look for the house of the Lasca?o family. He found Espiridion Lasca?o, too old and weak to leave the house. He saw Rosalina at the school where she was teaching and inquired from her whether she had received a check from Camp Murphy as well as the cheek of the old man and he was answered in the negative. He returned to Manila the following day and on October 8 reported the matter to Sgt. Luis Balignasan, G-2 PC, who after taking his affidavit promised to help him and conduct the necessary investigation. He submitted a copy of the finger prints of the suspects.” Analyzing the criminal responsibility of appellant Sam-son, the court made the following comment: Coming now to appellant Rufino T. Samson, we believe that the following facts are admitted; that on the strength of the assurances given by Amado L. Cruz that the supposed claimants were the real ones he requested the help of Lt. Manuel Valencia to act as guarantor and Valencia, relying on his representations, accompanied him and the claimants to the Delivery Window and secured the checks for them; that again Rufino T. Samson helped Amado T. Cruz and the supposed claimants by signing as witness together with Cruz so that the supposed claimant Rosalina Paras could cash her check and went to the extent of signing as last indorser on the back of the check, Exhibit D, in favor of Espiridion Lasca?o and then later at the Aristocrat Restaurant accepted from Vergara and Cruz the sum of P300 to be paid to the officers who helped them and the further sum of P10 for his tax fare. There is no evidence that he was aware that the supposed claimants were not the real ones and his subsequent conduct shows it to be true; but although he did not know them personally he induced another friend of his, Lt. Manuel Valencia, to believe in the identity of said claimants thus helping his co-accused Amado L. Cruz, Bonifacio Vergara and John Doe and Maria Doe to perpetrate the crime ofestafa through falsification. It is unbelievable that he would accept as his share the meager amount of P310 if he were a co-conspirator in the commission of a fraud amounting to over P12,000. We see nothing strange in his acceptance of P310 as a token of gratitude on the part of the claimants, but he has undoubtedly acted with reckless imprudence for having taken no precaution whatsoever in assuring himself that the supposed claimants were the real ones. The mere assurances given him by Amado L. Cruz were not sufficient to justify his acting in the manner he did.

We find no error in the conclusion reached by the Court of Appeals that the appellant herein acted with gross negligence in assuring Lt. Valencia and the Cashier of the identity of the supposed claimants, as a result of which the impersonators managed to secure possession of the checks in question and to cash the same. Appellant was, or must have been aware that the claim was for a sizeable amount, totalling over twelve thousand pesos, and ordinary prudence required that he should satisfy himself by all proper and adequate means of the identity of the persons claiming said amounts, since they we personally unknown to him. The mere assurance of a former class, mate would certainly not be a satisfactory identification to justify disbursement of such a large amount if the funds belonged to appellant; and we see no justification for him treating government fund is with less care and diligence than if they were his own. Nor does the submission to this appellant of residence certificates constitute adequate identification, since these certificates are tax receipts and not means of establishing the identity of persons; and appellant as a Lieutenant of the Army is sufficiently intelligent and educated to foresee the possibility that the certificates could be forged or stolen. There is no question that appellant cooperated in the commission of the complex offense of estafathrough falsification by reckless imprudence by acts without which it could not have been accomplished, and this being a fact, there would be no reason to exculpate him from liability. Even assuming that he had no intention to defraud the offended party if his codefendants succeeded in attaining the purpose sought by the culprits, appellant’s participation together with the participation of his co-defendant the commission of the offense completed all the necessary for the perpetration of the complex crime of estafa through falsification of commercial document (Article 17, Revised Penal Code). Anyway and for the purposes of the penalty that was actually imposed upon appellant, it is immaterial that he be considered only guilty of falsification of a commercial document through reckless negligence, because the penalty for the crime of falsification of a commercial document under Article 172, No. 1, of the Revised Penal Code, is prision correccional in its medium and maximum periods and a fine of not more than P5,000.00 which under the provisions of Articles 25 and 26 of the same Code is a correctional penalty. Consequently, if in the cases at bar the crimes of falsification were due to reckless imprudence, the corresponding penalty would be arresto mayor in its minimum and medium periods (Art. 365, opening paragraph of the Revised Penal Code), which comprehends the penalty imposed by the Court of Appeals upon appellant. Under the facts found by the Court of Appeals, the acts of appellant constitute in each case the crime of estafa through falsification of a mercantile document by reckless imprudence, because in so far as the falsification is concerned, his acts of endorsing the respective checks by way of identification of the signatures of the payees entitled to said checks and their proceeds, constituted a written representation that the true payees participated in the indorsement and cashing of the checks aforesaid, when in truth and in fact the true payees had no direct intervention in the proceedings (Art. 171, Revised Penal Code). Even if such indorsement and identification were extraneous to the official duties of appellant, he would be nevertheless liable as a private person under Article 172 of the Revised Penal Code. Decisions of this Court and of the Supreme Court of Spain assert the juridical standing of the crime of falsification by imprudence since in falsifying public or mercantile document, of intent to cause damage is not required because what the law, seeks to repress is the prejudice to the public confidence in these documents. An act executed without malice or criminal purpose, but with carelessness, negligence, or lack of precaution, which causes harm to society or to an individual, should be classified as either reckless negligence or simple imprudence; the person responsible therefor is liable for such results could have been anticipated, and for acts which no one would commit except through culpable indifference. The courts heretofore dealing with acts punishable under the Penal Code of Spain which, with slight modifications, is practically the same as the one in force in these Islands, have heard and decided cases involving falsification of documents

with reckless negligence. They therein applied the provisions of article 581 of the Spanish Code, which is identical with article 568 of the Code in force in these Islands, as may be seen among others, in judgments in cessation of July 8, 1882, December 21, 1885, November 8 1887, and December 7,1896; also in case No. 2818, United States vs. Mariano Vega, decided by this Court. (U.S. vs. Maleza, 14 Phil. 468).[[1]] It is however contended that appellant Samson cannot be convicted of the crime of estafa through falsification by imprudence for the reason that the information filed against him charges only a willful act of falsification and contains no reference to any act of imprudence on his part. Nor can it be said, counsel argues, that the alleged imprudent act includes or is necessarily included in the offense charged in the information because a deliberate intent to do an unlawful act is inconsistent with the idea of negligence. The rule regarding variance between allegation and proof in a criminal case, is: “When there is v ariance between the offense charged in the complaint or information, and that proved or established by the evidence, and the offense as charged, is included in or necessarily includes the offense proved, the defendant shall be convicted of the offense proved included in that which is charged, or of the offense charged included in that which is proved” (Section 4, Rule 116. Rules of Court). As a complement we have also the following rule: “An offense charged necessarily includes that which is proved, when so me of the essential elements or ingredients of the former, as this is alleged in the complaint or information, constitute the latter. And the offense charged is necessarily included in the offense proves, when the essential ingredients of the former constitute or form a part of those constituting the latter” (Section 5, Rule 116, Idem.). While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon vs. Justice of the Peace of Bacolor,[[*]] G.R. No. L-6641, July 28, 1955, but a distinct crime in itself, designated as a quasi offense in our Penal Code, it may however be said that conviction for the former can be had under an information exclusively charging the commission of a willful offense, upon the theory that the greater includes the lesser offense. This is the situation that obtains in the present case. Appellant was charged with willful falsification but from the evidence submitted by the parties, the Court of Appeals found that in effecting the falsification which made possible the cashing of the checks in question, appellant did not act with criminal intent but merely failed to take proper and adequate means to assure himself of the identity of the real claimants as an ordinary prudent man would do. In other words, the information alleges acts which charge willful, falsification but which turned out to be not willful but negligent. This is a case covered by the rule when there is a variance between the allegation and proof, and is similar to some of the cases decided by this Tribunal. Under a charge of forcible abduction, the defendant may be convicted of illegal detention if the evidence does not show that the kidnapping was with lewd designs. (People vs. Crisostomo, 46 Phil. 775.) The crime of theft is included necessarily in that of robbery and therefore a defendant can he convicted of the former, notwithstanding that he was charged the latter offense. (U.S. vs. Birueda, 4 Phil. 229; People vs. Rivera, 54 Phil. 578 ) The crime of robbery en cuadrilla is necessarily included in that of bandolerisimo (brigandage),and therefore the defendants can be convicted of the former on an information charging the latter. (U.S. vs. De la Cruz 4 Phil. 430.) Where the information charges brigandage, but the evidence fails to show that the crime was committed by an armed band, the defendants can be convicted of robbery. (U.S. vs. Mangubat. 3 Phil. 1.) Under a charge of malversation a public official may be found guilty of estafa. (U.S. vs. Solis, 7 Phil. 195.)

Moreover, Section 5, Rule 116, of the Rules of Court does not require that all the essential elements of the offense charged in the information be proved, it being sufficient that some of said essential elements or ingredients thereof be established to constitute the crime proved. This conclusion is strengthened by the provisions of Section 9, Ruled 113, of the Rules of Court under which appellant could no longer be prosecuted for estafa through falsification of commercial documents by reckless negligence were we to acquit him in the cases at bar on the obviously technical theory of the dissenters. The fact that the information does not allege that the falsification was committed with imprudence is of no moment for here this deficiency appears supplied by the evidence submitted by appellant himself and the result has proven beneficial to him. Certainly, having alleged that the falsification has been willful, it would be incongruous to allege at the same time that it was committed with imprudence for a charge of criminal intent is incompatible with the concept of negligence. With regard to the motion for new trial filed by appellant for the purpose of introducing an allegedly newly discovered evidence which consists of an affidavit of one Emiliano Salangsang-Salazar, it appearing that the same if admitted would only be corroborative in nature and would not have the effect of altering the result of the case, the same is denied. Wherefore, the decision appealed from is affirmed, with costs against appellant. Paras, C.J., Bengzon, Padilla, Montemayor and Endencia, JJ., concur.

Reyes, A., J., concurs in the result. FELIX, J., concurring: I concur in the majority decision for the reasons therein stated. I, however, desire to state a few words in answer to the arguments adduced in the dissenting opinion to the effect that “under the ruling of the majority, each and every charge of a willful offense will necessarily imply an alternative charge of criminal negligence” and that this, is a way of “getting around the established rule that not more than one offense should be charged” and of preventing the accused from guarding against such hidden multiplicity of charges. It is claimed that in such situation the defendant would be unable to determine whether tie is being tried for committing the crime or for not preventing its commission, when he could have done so. This argument is, in my opinion, utterly untenable. In, the first place, there is no multiplicity of accusations but, a charge that is included in another which is considered in operative and ceases to have any effect on the defendant for lack of supporting evidence. In the second place, no one better than the defendant knows what he has done in connection with the crime he is charged and he must have in mind that section 4, Rule 116, of the Rules of Court already warned him that he could be convicted of any crime included in the crime charged in the information if there were any variance between the latter and the crime establish by the evidence. So that he cannot now claim that he was caught by surprise or prejudiced in any way if the crime he was accused in the information degenerated into a case of criminal negligence. Although I do not deny that in Quizon vs. Justice of the Peace of Bacolor, (97 Phil. 342), We held that criminal negligence is a distinct crime established in our Penal Code, I cannot pass unmentioned the more juridical and more realistic point of view expressed in People vs. Faller, 7 Phil. 529, where it was held that: RECKLESS IMPRUDENCE is not a crime in itself. It is simply a way of committing it and merely determines a lower degree of criminal liability. The information alleges, that the appellant acted willfully, maliciously, unlawfully and criminally. To this information no objection was interposed. Negligence being a punishable criminal act when it results in a crime, the allegation in the information that the appellant also committed the acts charged unlawfully and criminally includes the charge that acted with negligence.

For the foregoing considerations, I vote with the majority in affirming the decision appealed from, with costs against appellant. REYES, J.B.L., dissenting: If I regret my inability to agree that under a charge of intentionally committing a crime, an accused may be convicted of committing such crime through negligence or imprudence. We have shown in Quizon vs. Justice of the Peace of Bacolor (97 Phil. 342), July 28, 1955, that criminal negligence is not a mere variant of the intentional misdeed; that it is a distinct and separate in itself. We also pointed out in that case that while willful crimes are punished according to their result in crimes of negligence, what the law punishes is the carelessness itself, the failure to take the precautions that society has a right to expect will be taken under the circumstances of each case. So that, while the intentional crime of lesiones is substantially different from that of falsification, lesionesby imprudence and falsification by imprudence are in themselves substantially identical offenses, being but two instances of criminal negligence punishable under one and the same article (365) of the Revised Penal Code. It is argued that negligence is not a crime but a way of committing it. That view may be true from the philosophical standpoint, but not from that of the Penal Code, withstanding People vs. Faller, 67 Phil. 529, which was questioned in the Quizon case. The stubborn fact is “Que la culpa es un delito propio como el homicidio, las lesiones, etc. lo cual tambien es absurdo; on obstante ello en nuestra sistema legislativo hay que partir de esa base, que por otra parte el Tribunal Supreme acentua” (Puig Peña Der Penal, Tomo 1, pag. 316). And this is emphasi zed by the designation of quasi-offenses by our Penal Code, that the Spanish Penal Code does not even use. As a consequence, it must be admitted that intentional falsification and falsification by negligence not only differ in seriousness, but in essence; they are, by their nature, two different offenses altogether. Wherefore, an offender who is accused of intentional falsification cannot be held to answer for falsification by negligence, because the essential element of the latter offense, the ingredient that characterizes it and separates it from all other offenses, to wit, the criminal negligence or carelessness, is not involved in the elements of the crime charged. Not only is it not included: it is excluded by incompatibility, because malice or intent cannot co-exist with negligence. Intent presupposes that the offender actually visualized or contemplated the act of falsification and determined to realize it; negligence implies that the offender should have foreseen or anticipated, but did not actually anticipate or foresee, the consequences of his act. In the former, the law punishes the culprit for his decision to breach the law, in the latter, for his failure to foresee that his action would result in such a breach. The difference being so radical, I can not see how the appellant can be held as a co-principal of the crime of estafa with falsification through his reckless imprudence considering that the negligence negates the appellant’s knowledge of, or participation in, the intent to commit the fraud. It is urged that appellant’s imprudent act was indispensable and that without it, the estafa could not be successfully accomplished, hence, he should be deemed a principal by cooperation under par. 9 of Art. 17, R.P.C. I consider the argument fallacious. Art. 17 says: ART. 17. Principals. – The following are considered principals: 1. Those who take a direct part in the execution of the act; 2. Those who directly force or induce others to commit it; 3. Those who cooperate in the commission of the offense by another act without which it would not have been accomplished.

Now, to cooperate is to help, to aid; and necessarily presupposes, knowledge of the ultimate purpose in view. This very Court, in People vs. Aplegido, 76 Phil. 571, has ruled that to cooperate means to desire or wish in common a thing. But that common will or purpose does not necessarily mean a previous understanding. What common will or purpose can exist between one acts maliciously and another who acts negligently? If the appellant deliberately omitted to take precautions in order to facilitate the estafa, he would not be guilty of estafa with falsification through imprudence, but of intentional estafa with falsification. Such deliberate intent, however, was expressly declared not to exist by the Court of Appeals, and that finding is conclusive. In U.S. vs. Magcomot, 13 Phil. 386, 389, this Court, through Mr. Justice Mapa, decided that In view of all the circumstances of the case we are satisfied that the assault was committed, without the concurrence of the will of Isidro and Clemente Magcomot, and in the absence of that volition, which is the fundamental source of criminal liability, these co-defendants can not lawfully be held liable for the aggression and its consequences. On the other hand, it can not be pleaded that the acts committed on the body of the body of the deceased by said co-defendants and by Epifanio were perpetrated at the same time, because this simultaneousness does not of itself demonstratethe concurrence of wills nor the unity of action and purpose which are the bases of the responsibility of two or more individuals, and in the absence of which, it is strictly just, in accordance with the sound principles of law, that each one should only be held liable for the acts perpetrated by him. (Emphasis supplied) Other cases to the same effect are collated in People vs. Tamayo, 44 Phil. 38. Let me note also that if it is unquestioned doctrine that it is an essential condition of complicity that the accomplice, “With knowledge of the criminal intent, should cooperate with the intention of supplying material or moral aid in the execution of the crime” (People vs. Tamayo, 44 Phil. 49, cit. Dec. May 23, 1905; Viada, 5 Sup. 169; Dec. June 28, 1901; Viada, 4 Sup. 196). If to cooperate as an accomplice demands knowledge of the criminal intent, how may one cooperate as principal without it? It seems to me that such ruling would violate the basic principles of the Revised Penal Code on joint criminal responsibility. On the procedural side, the objections to appellant’s conviction of estafa by falsification through negligence are much more serious. Section 5, Rule 116, upon which the majority relies as justifying the conviction, expresses the following rule: An offense charged necessarily includes that which is proved, when some of the essential elements or ingredients of the former, as this alleged in the complaint or information, constitute the latter. (Italic mine) It is not enough, therefore, that the elements of the crime for which an accused is convicted should be proved, but then must also be charged or alleged. This means, if it means anything at all, that the crime proved may be constituted by, some, i.e., a lesser number, of integrating elements or requisites than the offense charged, provided all such constituent elements are alleged. Thus, in the cases cited by the majority opinion, a charge of robbery includes that of theft, because to constitute theft, we merely eliminate or subtract the element of violence from the alleged components of robbery. One accused of forcible abduction can be convicted of illegal detention, because the elements are common except for the lewd designs; robbery is included in brigandage (bandolerismo) because their elements are identical except for the organization of the band for the purpose of committing highway robbery. And malversation a public official and estafa only differ in that the former must be committed by taking advantage of public office; by discarding the latter constituent element, the remainder alleges a crime of estafa. All these cases, therefore, proceed on the theory that by striking out some of the averments in the

information the remainder charges the crime of which the accused is convicted. But it has never been held that a crime is included in the offense charged when not only must one element alleged be discarded but another one, not alleged, must be supplied. Illustrative of this case is People vs. Oso, 62 Phil. 271, it where we quashed a conviction for abduction with rape, because the charge was plain abduction, carnal knowledge through violence did not appear in the original accusation. It is very common to say that an accused may he convicted of any lesser crime than the one charged, without realizing that by lesser crime is meant one that is constituted by a number of elements smaller than those alleged; not a crime that carries a lighter penalty. Now, let us apply, the rule to the present case. What are the ingredients of the crime of falsification in the information? (1) That the accused made a false statement in a narration of facts (certifying that the impostor’s signature was the genuine signature of the true payee); (2) That he made the, false statement in a commercial paper (check); (3) That he knew that the signature certified to by him was not that of the payee; (4) That he acted wilfully, unlawfully, and feloniously. Clearly these allegations cannot constitute the crime of falsification by negligence by merely striking out any number of them. And for a plain reason: the averment of imprudence, which is the distinctive characteristic of the latter crime, is lacking; it must be supplied from outside the information. Consequently, criminal negligence is not included in the offense charged. That falsification through imprudence does not include intentional falsification is self-evident. Negligence can not include wilfulness or vice-versa. As pointed out previously, one excludes the other. It is thus unavoidable to conclude that a charge of wilful falsification does not charge falsification by negligence; neither does the latter include the former. Therefore, regardless of the evidence, a conviction for falsification by imprudence can not be had on a charge of wilful forgery, the two being incompatible offenses. But there is more, and worse. Under the ruling of the majority, each and every charge of a wilful offense (except those where malice is indispensable) will necessarily imply an alternative charge of criminal negligence, since the accused may be convicted thereof. Is this not getting around the established rule that not more than one offense should be charged? And how can the accused guard against such hidden multiplicity? If the information should expressly allege that the accused “wilfully, intentionally and/or negligently, by failing to take the requisite precautions” committed an offense, unquestionably the accused could object on the ground that the information on its face charges two offenses, criminal negligence and the wilful crime; and he could demand that the prosecution should elect to stand on one charge alone, and strike out the other. But under the majority ruling, without any specific charge, the accused must stand trial and risk conviction of either the intentional offense or criminal negligence. Is such a procedure at all compatible with the right of the accused to fair play? The accused can not determine whether he is being tried for committing the crime or for not preventing its commission, when he could have done so. The unfairness to the accused becomes compounded when it is recalled that negligence under our Penal Code admits two varieties: reckless imprudence and simple imprudence, the latter involving a lesser penalty. Under the majority ruling,

therefore, a person accused of a wilful offense is actually compelled to face three ways and defend himself against three different offenses: the wilful act, reckless negligence, and simple imprudence. He can not object to any prosecution evidence tending to establish any or all of these multifarious charges; he must also see that his own evidence protects him against all three charges, altho I the information recites only one, the intentional offense. I submit that to force an accused to guard against all three possibilities at once is against all fairness, justice and equity. Pitted against the resources of the state, an accused is already at a disadvantage; I see no need to make his position worse. To cap it all, the accused-appellant in the present case was convicted of criminal negligence on appeal, when he no longer could ask for a reopening of the trial to introduce evidence against such a charge. The least that he is entitled to, it seems to me, is a new trial. It has been the practice hitherto that where the evidence shows the accused to be guilty of a crime different from the one charged, to acquit him of the charge and, without release from custody, remand him to answer for the proper offense, see no reason why that rule should not be followed in the present case. Concepcion, J., concurs.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-51183 December 21, 1983 CARMEN L. MADEJA, petitioner, vs. HON. FELIX T. CARO and EVA ARELLANO-JAPZON, respondents. Ernesto P. Miel for petitioner. Gorgonio T. Alvarez for respondents.

ABAD SANTOS, J.:ñé+.£ªwph!1 In Criminal Case No. 75-88 of the defunct Court of First Instance of Eastern Samar, DR. EVA A. JAPZON is accused of homicide through reckless imprudence for the death of Cleto Madeja after an appendectomy. The complaining witness is the widow of the deceased, Carmen L. Madeja. The information states that: "The offended party Carmen L. Madeja reserving her right to file a separate civil action for damages." (Rollo, p. 36.) The criminal case still pending, Carmen L. Madeja sued Dr. Eva A. Japzon for damages in Civil Case No. 141 of the same court. She alleged that her husband died because of the gross negligence of Dr. Japzon. The respondent judge granted the defendant's motion to dismiss which motion invoked Section 3(a) of Rule 111 of the Rules of Court which reads:têñ.£îhqw⣠Sec. 3. Other civil actions arising from offenses. — In all cases not included in the preceding section the following rules shall be observed: (a) Criminal and civil actions arising from the same offense may be instituted separately, but after the criminal action has been commenced the civil action can not be instituted until final judgment has been rendered in the criminal action. ... According to the respondent judge, "under the foregoing Sec. 3 (a), Rule 111, New Rules of Court, the instant civil action may be instituted only after final judgment has been rendered in the criminal action." (Rollo, p. 33.) The instant petition which seeks to set aside the order of the respondent judge granting the defendant's motion to dismiss Civil Case No. 141 is highly impressed with merit. Section 2, Rule 111 of the Rules of Court in relation to Article 33 of the Civil Code is the applicable provision. The two enactments are quoted hereinbelow:têñ.£îhqw⣠Sec. 2. Independent civil action. — In the cases provided for in Articles 31,32, 33, 34 and 2177 of the Civil Code of the Philippines, an independent civil action entirely separate and distinct from the criminal action, may be brought by the injured party during the pendency of the criminal case, provided the right is reserved as required in the preceding section. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence." (Rule 111, Rules of Court.) Art. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. (Civil Code,) There are at least two things about Art. 33 of the Civil Code which are worth noting, namely:

1. The civil action for damages which it allows to be instituted is ex-delicto. This is manifest from the provision which uses the expressions "criminal action" and "criminal prosecution." This conclusion is supported by the comment of the Code Commission, thus:têñ.£îhqw⣠The underlying purpose of the principle under consideration is to allow the citizen to enforce his rights in a private action brought by him, regardless of the action of the State attorney. It is not conducive to civic spirit and to individual self-reliance and initiative to habituate the citizens to depend upon the government for the vindication of their own private rights. It is true that in many of the cases referred to in the provision cited, a criminal prosecution is proper, but it should be remembered that while the State is the complainant in the criminal case, the injured individual is the one most concerned because it is he who has suffered directly. He should be permitted to demand reparation for the wrong which peculiarly affects him. (Report, p. 46.) And Tolentino says:têñ.£îhqw⣠The general rule is that when a criminal action is instituted, the civil action for recovery of civil liability arising from the offense charged is impliedly instituted with the criminal action, unless the offended party reserves his right to institute it separately; and after a criminal action has been commenced, no civil action arising from the same offense can be prosecuted. The present articles creates an exception to this rule when the offense is defamation, fraud, or physical injuries, In these cases, a civil action may be filed independently of the criminal action, even if there has been no reservation made by the injured party; the law itself in this article makes such reservation; but the claimant is not given the right to determine whether the civil action should be scheduled or suspended until the criminal action has been terminated. The result of the civil action is thus independent of the result of the civil action." (I Civil Code, p. 144 [1974.]) 2. The term "physical injuries" is used in a generic sense. It is not the crime of physical injuries defined in the Revised Penal Code. It includes not only physical injuries but consummated, frustrated and attempted homicide.têñ.£îhqw⣠The Article in question uses the words 'defamation', 'fraud' and 'physical injuries.' Defamation and fraud are used in their ordinary sense because there are no specific provisions in the Revised Penal Code using these terms as means of offenses defined therein, so that these two terms defamation and fraud must have been used not to impart to them any technical meaning in the laws of the Philippines, but in their generic sense. With this apparent circumstance in mind, it is evident that the terms 'physical injuries' could not have been used in its specific sense as a crime defined in the Revised Penal Code, for it is difficult to believe that the Code Commission would have used terms in the same article-some in their general and another in its technical sense. In other words, the term 'physical injuries' should be understood to mean bodily injury, not the crime of physical injuries, bacause the terms used with the latter are general terms. In any case the Code Commission recommended that the civil action for physical injuries be similar to the civil action for assault and battery in American Law, and this recommendation must hove been accepted by the Legislature when it approved the article intact as recommended. If the intent has been to establish a civil action for the bodily harm received by the complainant similar to the civil action for assault and battery, as the Code Commission states, the civil action should lie whether the offense committed is that of physical injuries, or frustrated homicide, or attempted homicide, or even death," (Carandang vs. Santiago, 97 Phil. 94, 96-97 [1955].) Corpus vs. Paje, L-26737, July 31, 1969, 28 SCRA 1062, which states that reckless imprudence or criminal negligence is not included in Article 33 of the Civil Code is not authoritative. Of eleven justices only nine took part in the decision and four of them merely concurred in the result. In the light of the foregoing, it is apparent that the civil action against Dr. Japzon may proceed independently of the criminal action against her. WHEREFORE, the petition is hereby granted; the order dismissing Civil Case No. 141 is hereby set aside; no special pronouncement as to costs. SO ORDERED.1äwphï1.ñët Makasiar (Chairman), Concepcion, Jr., Guerrero, De Castro and Escolin, JJ., concur.

Separate Opinions

AQUINO, J., concurring: I concur. Death due to a negligent act may be a delict or quasi-delict. It may create a civil action based on article 100 of the Penal Code or an action based on culpa aquiliana under article 2176 of the Civil Code. These alternatives are assumed in article 2177 of the Civil Code "but the plaintiff cannot recover twice for the same act or omission of the defendant" (Barredo vs. Garcia, 73 Phil. 607 and Sudario vs. Acro Taxi and Yuson, 86 Phil. 1. See Formento vs. CA, L-26442, August 29,1969,29 SCRA 437). The term "physical injuries" in article 33 of the Civil Code includes death and may give rise to an independent civil action (Dyogi vs. Yatco, 100 Phil. 1095). The rule in Corpus vs. Paje, L-26737, July 31, 1969, 28 SCRA 1062, that reckless imprudence is not included in article 33 of the Civil Code, is not authoritative doctrine because it was concurred in by only five Justices. Four Justices concurred in the result.

Separate Opinions AQUINO, J., concurring: I concur. Death due to a negligent act may be a delict or quasi-delict. It may create a civil action based on article 100 of the Penal Code or an action based on culpa aquiliana under article 2176 of the Civil Code. These alternatives are assumed in article 2177 of the Civil Code "but the plaintiff cannot recover twice for the same act or omission of the defendant" (Barredo vs. Garcia, 73 Phil. 607 and Sudario vs. Acro Taxi and Yuson, 86 Phil. 1. See Formento vs. CA, L-26442, August 29,1969,29 SCRA 437). The term "physical injuries" in article 33 of the Civil Code includes death and may give rise to an independent civil action (Dyogi vs. Yatco, 100 Phil. 1095). The rule in Corpus vs. Paje, L-26737, July 31, 1969, 28 SCRA 1062, that reckless imprudence is not included in article 33 of the Civil Code, is not authoritative doctrine because it was concurred in by only five Justices. Four Justices concurred in the result.