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Criminal Law Review Digests

Published on May 2016 | Categories: Types, Business/Law | Downloads: 12 | Comments: 0

Criminal law review digests on Atty. Angel's lectures. Ateneo de Davao College of Law.



People v Gilbert De la Pena (June 30, 1994) Case of attempted rape; rapist was unable to consummate the rape since he was unable to achieve an erection capable of full penetration upon fearing the death of the child after he inflicted blows on her On July 18, 1991, Erly Rose P. Marasigan while taking a shortcut (an alley) en route to her school, she was grabbed by the accused, Gilbert de la Peña, pulled her towards a grassy area and threatened bodily harm if she would not keep quiet. He kissed her and attempted to insert his penis into her vagina to no avail. He did not have an erection and was unable to insert his penis into her vagina. De la Pena instead fondled the victim's vagina and inserted his finger into it. He hit his victim in the stomach and on both cheeks with his fist. The victim cried then tried to play dead. De la Pena thereafter hurriedly fled the scene. She pretended to be dead for another five minutes and then ran home where she told a certain Romeo Brojas the incident. The latter told his neighbors and eventually the assailant was caught. She was subsequently examined by Dr. Lowella Nario of the NBI who found no physical evidence of penetration. There was no sign of injury on the victim's private parts. De la Pena was initially charged with attempted rape, but a new Information was filed charging him with statutory rape. The RTC found him guilty of statutory rape and was sentenced with reclusion perpetua for the felony. Was he guilty of statutory rape notwithstanding the fact that no carnal knowledge took place? No, attempted rape only. The Supreme Court’s decisions finding a case for rape even if the attacker's penis merely touched the external portions of the female genitalia were made in the context of the presence of the existence of an erectile penis capable of full penetration. The physiologic impossibility of penetration absent an erection-complete or otherwise-cannot be gainsaid. If, because of the victim's vigilant attempts at warding off her attacker's sexual advances an accused in a case of rape is unable to accomplish the act of completely penetrating his victim's vaginal orifice, a charge for rape under existing jurisprudence can be sustained anyhow, because full penetration would have been accomplished if the penis were erect, were it not for the victim's vigilance or the occurrence of other circumstances which might have frustrated the accomplishment of complete penetration. That is not the case here. Full penetration of the vaginal orifice is not an essential ingredient in the commission of the crime of rape. The mere touching of the external genitalia by a penis capable of consummating the sexual act constitutes carnal knowledge. The absence of physical findings on medical examination does not negate a finding that carnal knowledge had actually occurred. The absence of seminal, fluid, spermatozoa, abrasions, lacerations, hematoma etc., around the genital area or the presence of an intact hymen does not automatically lead to a conclusion that no act of rape had occurred or that the act was in fact consensual. In fact, the absence of a medical certificate is not indispensable in the crime of rape. In the case at bench, the victim categorically stated on the accused was unable to consummate the act of rape. The victim has been consistent in stating that no penetration had occurred because the accused (as he himself admitted) was too scared to have or sustain an erection. Testifying in his own behalf, the accused had never actually denied that the attempt had been made. A charge of rape can be had even if there is no penetration as long as male sexual organ was physiologically capable of accomplishing the act of full penetration at the time of the event. In the instant case, both the victim and the accused were in agreement in their trial court testimonies that no penetration had occurred. There is doubt as to how far the accused's penis had been outside the victim’s external genitalia and there is equal doubt as to whether or not

the accused-appellant's penis had in any way touched the external pudenda or any part of the vaginal wall. The trial judge's suggestion that the complainant's admission that there was no erection cannot be given weight because finding out whether the accused-appellant's penis were erect "would be the last thing on the mind of the victim complainant," flies in the face of the consistent admissions by the complainant on different occasions that the fact of carnal knowledge did not occur. Rape is committed by having carnal knowledge of a woman. The gravamen of the offense of statutory rape as provided for in Article 335, paragraph 3 of the Revised Penal Code is carnal knowledge of a woman below 12 years old. In the case at bench, there was an attempt, which the accused-appellant does not deny, but carnal knowledge did not actually occur. People v Primo Campuhan (March 30, 2000) Case of attempted rape; the Court elucidated on the phrase ‘touching of the external genitalia’ The felony occurred on 25 April 1996. Primo was a helper in the household of Corazon Pamintuan, Crysthel’s (the 4 year old victim) mother. That day, she heard one of her daughters cry, "Ayo'ko, ayo'ko!". She rushed upstairs and saw Primo inside her children’s room kneeling before Crysthel whose pajamas and panty were already removed, while his short pants were down to his knees. Primo was forcing his penis into Crysthel’s vagina. Horrified, she boxed him several times. She then ran out and shouted for help thus prompting several relatives to chase the accused. Primo was apprehended. The physical examination of the victim yielded negative results. No evident sign of extra-genital physical injury was noted by the medico-legal officer on Crysthel’s body as her hymen was intact and its orifice was only 0.5 cm. in diameter. The RTC found him guilty of statutory rape and was sentenced to death. In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she saw Primo with his short pants down to his knees kneeling before Crysthel whose pajamas and panty were supposedly "already removed" and that Primo was "forcing his penis into Crysthel’s vagina." But Crysthel, upon inquiry, categorically denied the penetration of Primo’s penis into her vagina. Was the lower court correct in finding the accused liable for statutory rape? No. The accused is guilty of attempted rape. We have said often enough that in concluding that carnal knowledge took place, full penetration of the vaginal orifice is not an essential ingredient, nor is the rupture of the hymen necessary; the mere touching of the external genitalia by the penis capable of consummating the sexual act is sufficient to constitute carnal knowledge. But the act of touching should be understood here as inherently part of the entry of the penis into the labias of the female organ and not mere touching alone of the mons pubis or the pudendum. In People v. De la Peña we clarified that the decisions finding a case for rape even if the attacker’s penis merely touched the external portions of the female genitalia were made in the context of the presence or existence of an erect penis capable of full penetration. Where the accused failed to achieve an erection, had a limp or flaccid penis, or an oversized penis which could not fit into the victim's vagina, the Court nonetheless held that rape was consummated on the basis of the victim's testimony that the accused repeatedly tried, but in vain, to insert his penis into her vagina and in all likelihood reached the labia of her pudendum as the victim felt his organ on the lips of her vulva, or that the penis of the accused touched the middle part of her vagina. Thus, touching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of the victim’s vagina, or the mons pubis, as in this case. There must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof, for an accused to be convicted of consummated rape. As the labias, which are required to be "touched" by the penis, are by their natural situs or location beneath the mons pubis or the vaginal surface, to touch them with the penis is to attain some degree of

penetration beneath the surface, hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes consummated rape. Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the female organ," but has also progressed into being described as "the introduction of the male organ into the labia of the pudendum," or "the bombardment of the drawbridge." But, to our mind, the case at bar merely constitutes a "shelling of the castle of orgasmic potency," or as earlier stated, a "strafing of the citadel of passion." A review of the records clearly discloses that the prosecution utterly failed to discharge its onus of proving that Primo’s penis was able to penetrate Crysthel’s vagina however slight. Even if we grant arguendo that Corazon witnessed Primo in the act of sexually molesting her daughter, we seriously doubt the veracity of her claim that she saw the inter-genital contact between Primo and Crysthel. When asked what she saw upon entering her children’s room Corazon plunged into saying that she saw Primo poking his penis on the vagina of Crysthel without explaining her relative position to them as to enable her to see clearly and sufficiently, in automotive lingo, the contact point. Primo’s kneeling position rendered an unbridled observation impossible. Not even a vantage point from the side of the accused and the victim would have provided Corazon an unobstructed view of Primo’s penis supposedly reaching Crysthel’s external genitalia since the legs and arms of Primo would have hidden his movements from Corazon’s sight, not to discount the fact that Primo’s right hand was allegedly holding his penis thereby blocking it from Corazon’s view. It is the burden of the prosecution to establish how Corazon could have seen the sexual contact and to shove her account into the permissive sphere of credibility. It is required that her claim be properly demonstrated to inspire belief. The prosecution failed in this respect, thus we cannot conclude without any taint of serious doubt that inter-genital contact was at all achieved. Crysthel made a categorical statement denying penetration. Moreover, Corazon did not say, nay, not even hint that Primo's penis was erect or that he responded with an erection. The possibility of Primo’s penis having breached Crysthel’s vagina is belied by the child's own assertion that she resisted Primo’s advances by putting her legs close together; consequently, she did not feel any intense pain but just felt "not happy" about what Primo did to her. Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases where penetration was not fully established, the Court had anchored its conclusion that rape nevertheless was consummated on the victim's testimony that she felt pain, or the medico-legal finding of discoloration in the inner lips of the vagina, or the labia minora was already gaping with redness, or the hymenal tags were no longer visible. None was shown in this case. People v Ceilito Orita (April 3, 1990) Case of consummated rape; the Court did away with frustrated rape Complainant Cristina S. Abayan was a 19-year old freshman student. On March 20, 1983, complainant arrived at her boarding house. All of a sudden, somebody held her and poked a knife to her neck. She then recognized appellant who was a frequent visitor of another boarder . She pleaded with him to release her, but he ordered her to go upstairs with him. With his left arm wrapped around her neck and his right hand poking a "balisong" to her neck, appellant dragged complainant up the stairs With the Batangas knife still poked to her neck, they entered complainant's room. He ordered her to lie down on the floor and then mounted her. He made her hold his penis and insert it in her vagina. She followed his order as he continued to poke the knife to her. At said position, however, appellant could not fully penetrate her. Only a portion of his penis entered her as she kept on moving Appellant then lay down on his back and commanded her to mount him. In this position, only a small part again of his penis was inserted into her vagina. At this stage, appellant had both his hands flat on the floor. Complainant thought of escaping.

She dashed out to the next room and locked herself in. Appellant pursued her and climbed the partition. When she saw him inside the room, she ran to another room. Appellant again chased her. She fled to another room and jumped out through a window. Still naked, she darted to the municipal building. Several policemen found her and she told them what transpired. Later, she was subjected to a PE which yielded: “Vulva — No visible abrasions or marks at the perineal area or over the vulva, errythematous (sic) areas noted surrounding vaginal orifice, tender, hymen intact; no laceration fresh and old noted; examining finger can barely enter and with difficulty; vaginal canal tight; no discharges noted.” When the assailant was apprehended, he was charged with the crime of rape. The trial court found him guilty of frustrated rape. On appeal to the CA, it held him liable for rape (consummated). Was the rape attempted, frustrated or consummated? Consummated. There is no such felony as frustrated rape. The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution which would produce the felony and (2) that the felony is not produced due to causes independent of the perpetrator's will. Difference between attempted and frustrated stages: A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by overt acts, is prevented, against his will, by some outside cause from performing all of the acts which should produce the crime. In other words, to be an attempted crime the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has performed all of the acts which should produce the crime as a consequence, which acts it is his intention to perform. If he has performed all of the acts which should result in the consummation of the crime and voluntarily desists from proceeding further, it cannot be an attempt. The essential element which distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a foreign or extraneous cause or agency between the beginning of the commission of the crime and the moment when all of the acts have been performed which should result in the consummated crime; while in the former there is such intervention and the offender does not arrive at the point of performing all of the acts which should produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance. In the crime of rape, from the moment the offender has carnal knowledge of his victim he actually attains his purpose and, from that moment also all the essential elements of the offense have been accomplished. Nothing more is left to be done by the offender, because he has performed the last act necessary to produce the crime . Thus, the felony is consummated . We have set the uniform rule that for the consummation of rape, perfect penetration is not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the female organ because not all acts of execution was performed . The offender merely commenced the commission of a felony directly by overt acts . Taking into account the nature, elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be committed. People v Erina (1927) was reversed. It was held to be a stray decision. Likewise, We are aware of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its penultimate paragraph, for the penalty of death when the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof. We are of the opinion that this particular provision on frustrated rape is a dead provision. The Eriña case, supra, might have prompted the law-making body to include the crime of frustrated rape in the amendments introduced by said laws.

The trial court relied on the testimony of Dr. Zamora when he "categorically declared that the findings in the vulva does not give a concrete disclosure of penetration. As a matter of fact, he tossed back to the offended party the answer as to whether or not there actually was penetration." HOWEVER, the victim categorically testified that there was penetration, even if only partially (She said it penetrated “ only a little”). The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of the victim's testimony if credible. Moreover, Dr. Zamora's testimony is merely corroborative and is not an indispensable element in the prosecution of this case. As regards the complainant’s testimony, the Court held: When a woman testifies that she has been raped, she says in effect all that is necessary to show that rape was committed provided her testimony is clear and free from contradiction and her sincerity and candor, free from suspicion. The Court approved the findings of the trial court: As correctly pointed out in the memorandum for the People, there is not much to be desired as to the sincerity of the offended party in her testimony before the court. Her answer to every question propounded, under all circumstances, are plain and straightforward. To the Court she was a picture of supplication hungry and thirsty for the immediate vindication of the affront to her honor. It is inculcated into the mind of the Court that the accused had wronged her; had traversed illegally her honor. People v EMELIANO TRINIDAD (January 9, 1989) The accused was charged and found guilty of two counts of murder and one count of frustrated murder by the trial court. The victims in this case are Lolito Soriano (deceased), Marcial LAROA (deceased) and Ricardo TAN (the principal witness). All are fish vendors conducting business in different regions in Mindanao. On January 20, 1983, the victims were en route from Buenavista, Agusan del Norte to Davao City. The accused asked for a ride to Bayugan, Agusan del Sur. He was in uniform and had two firearms. TAN was driving the Fiera. Seated to his right was SORIANO, LAROA and the accused TRINIDAD, in that order. When they reached the stretch between El Rio and Afga, TRINIDAD advised them to drive slowly because, according to him, the place was dangerous. All of a sudden, TAN heard two gunshots. SORIANO and LAROA slumped dead. TAN did not actually see the shooting of LAROA but he witnessed the shooting of SORIANO having been alerted by the sound of the first gunfire. Both were hit on the head. TRINIDAD had used his carbine in killing the two victims. TAN then hurriedly got off the Fiera, ran towards the direction of Butuan City and hid himself in the bushes. After about twenty (20) to thirty (30) minutes, when a passenger jeep passed by, TAN hailed it and rode on the front seat. After a short interval of time, he noticed that TRINIDAD was seated at the back. Apparently noticing TAN as well, TRINIDAD ordered him to get out and to approach him but, instead, TAN moved backward and ran around the jeep followed by TRINIDAD. When the jeep started to drive away, TAN clung to its side. TRINIDAD fired two shots, one of which hit TAN on his right thigh. As another passenger jeep passed by, TAN jumped from the first jeep and ran to the second. However, the passengers in the latter jeep told him to get out not wanting to get involved in the affray. Pushed out, TAN crawled until a member of the P.C. chanced upon him and helped him board a bus for Butuan City. TRINIDAD's defense revolved around denial and alibi. He contended that he was in Cagayan de Oro City on the date of the incident On the issue of frustrated murder, was the trial correct in ruling that the murder herein was frustrated? No. The defense is correct in contending that in the Frustrated Murder case, TRINIDAD can only be convicted of Attempted Murder. TRINIDAD had commenced the commission of the felony directly by overt acts but was unable to perform all the acts of execution which would have produced it by reason of causes other than his spontaneous desistance, such as, that the jeep to

which TAN was clinging was in motion, and there was a spare tire which shielded the other parts of his body. Moreover, the wound on his thigh was not fatal and the doctrinal rule is that where the wound inflicted on the victim is not sufficient to cause his death, the crime is only Attempted Murder, the accused not having performed all the acts of execution that would have brought about death. People v RICARDO VELASCO Y ABENOJAR (October 29, 1976) Case of consummated rape vs frustrated rape About 5:30 in the afternoon of the 2nd day of November, 1967, the offended party, Estelita Lopez (five years old), accompanied by Nenita Lopez, (four years old), were at the North Cemetery, Manila. The defendant called them, gave Nenita a five-centavo coin and asked her to buy cigarettes for him. After she left, the accused held Estelita by the hand and brought her to an alley. Once in a hidden place between the tombs placed himself on top of the girl while she was lying down on the ground face up and tried to insert his sexual organ into that of the victim. The girl shouted in pain, 'Aray, Aray.' Arsenio Perez, upon hearing the shouts of the girl and because of the shouts believed that something bad was being done to the girl, proceeded to the place where the shouts came and saw the accused on top of the girl, with his pants and drawers lowered down to his knees, and the dress of the girl raised up and the buttocks of the accused making upward and downward movements. He tried to seek for help. A certain Castro proceeded to the place pointed by Perez. Castro saw the defendant on top of the girl. The accused then stood up and raised his pants while the girl rose from the ground crying. Castro approached the defendant and the girl and asked him what happened, and he said the girl lost her way and was crying. The girl was bleeding at the time and he noticed that she even wiped off with her dress the blood on the front part of her thighs. The accused was apprehended and was delivered to the police station. A Medico Legal examination was conducted in the Medical Examiner's office by Dr. David S. Cabreira at out 8:10 P.M. of November 2, 1967 and according to the said report the findings were, '(1) Fresh laceration of the hymen at six o'clock positions (2) Vaginal opening is painful and sensitive to touch. Opinion: From the above findings on the subject Estelita Lopez, the undersigned finds that she must have had sexual intercourse recently before this examination.' " The trial court found him liable for consummated rape. Is the trial court correct? Yes. The medical examination revealed that the offended party was indeed raped. She was examined on the very night she was violated. The findings showed "fresh laceration on the hymen at six o'clock position," with "the vaginal opening painful and sensitive to touch." 7 Dr. Cabreira, then sixty-three years of age at the time he testified, after twenty-three years in the service, with more than one thousand medico-legal cases of rape, seduction, and abduction, 8 could affirm: "From the above findings on the subject ..., the undersigned opines that she could have had sexual intercourse recently before this examination." It could be, as contended by defense counsel, that the actual act of intercourse was not fully seen by the two eyewitnesses to the occurrence. It is, however, equally undisputed that the cries from the horrified onlookers resulted in the accused being mauled by third parties, who could not repress their sense of indignation and outrage, no doubt heightened by the sight of the young girl bleeding as a result of what was done to her. She, as well as the accused, were taken to the Reyes Memorial Hospital. In the police investigation conducted the same evening, he was identified as the author of the offense by the young girl. The above facts, the records clearly disclose. They have been demonstrated beyond doubt. The defense asserts that whatever culpability could be attached to what was done by the accused, it should not be that of consummated rape. To make such an assertion requires a certain degree of temerity. He could disregard completely the finding of an impartial and disinterested witness, one, moreover, who is an expert, Dr. Cabreira, that the offense of rape was indeed consummated. The lower court cited the cases of People v. Oscar and People v.

Hernandez. There are quite a number of later cases where this Court left no doubt, in the language of Justice J.B.L. Reyes in People v. Pastores, that for rape to be committed, it suffices "that there is proof of entrance of the male organ within the labia of the pudendum." People v MAMERTO NARVAEZ (April 20, 1983) Mamerto Narvaez has been convicted of murder (qualified by treachery, evident premeditation offset by voluntary surrender) of David Fleischer and Flaviano Rubia.

On August 22, 1968, Narvaez shot Fleischer and Rubia during the time the two were constructing a fence that would prevent Narvaez from getting into his house and rice mill. The defendant was taking a nap when he heard sounds of construction and found fence being made. The fencing necessitated the chiseling of the walls his house with a crowbar. Deceased Rubia was nailing the barbed wire and deceased Fleischer was commanding his laborers. The accused addressed the group and asked them to stop destroying his house and asking if they could talk things over ('Pare, if possible you stop destroying my house and if possible we will talk it over what is good.'). Fleischer responded with "No, gadamit, proceed, go ahead." Defendant lost his "equilibrium," and shot Fleisher with his shotgun. He also shot Rubia who was running towards the jeep where the deceased's gun was placed.

Prior to the shooting, Fleischer and Co. (the company of Fleischer's family) was involved in a legal battle with the defendant and other land settlers of Cotabato over certain pieces of property. At the time of the shooting, the civil case was still pending for annulment (settlers wanted granting of property to Fleisher and Co. to be annulled). At time of the shooting, defendant had leased his property from Fleisher (though case pending and ownership uncertain) to avoid trouble (but eventually the annulment case was dismissed on failure to prosecute thereby reinforcing Fleisher and Co.’s ownership over the lands). . According to him, he signed the contract although the ownership of the land was still uncertain, in order to avoid trouble, until the question of ownership could be decided. He never paid the agreed rental, although he alleges that the milling job they did for Rubia was considered payment.

On June 25, defendant received letter terminating contract because he allegedly didn't pay rent for six months. He was given 6 months to remove his house from the land. Shooting was barely 2 months after letter.

Defendant claims he killed in defense of his person and property. CFI ruled that Narvaez was guilty. Aggravating circumstances of evident premeditation offset by the mitigating circumstance of voluntary surrender. For both murders, CFI sentenced him to reclusion perpetua, to indemnify the heirs, and to pay for moral damages. ISSUES 1. WON the CFI erred in convicting defendant-appellant despite the fact that he acted in defense of his person. No, the ruling was correct insofar as it held the defendant liable for the killing. The courts concurred that the fencing and chiseling of the walls of the house of the defendant was indeed a form of aggression on the part of the victim. This aggression was not done on the person of the victim but rather on his rights to property. On the first issue, the courts did not err. However, in consideration of the violation of property rights, the courts referred to Art. 30 of the civil code recognizing the right of owners to close and fence their land. The actuation of deceased Fleischer in angrily ordering the continuance of the fencing

would have resulted in the further chiselling of the walls of appellant's house as well as the closure of the access to and from his house and rice mill-which were not only imminent but were actually in progress. There is no question, therefore, that there was aggression on the part of the victims.This was indeed aggression, not on the person of appellant, but on his property rights.

Was the aggression lawful? Unlawful. At the time of the incident on August 22, 1968, Civil Case no. 755 for annulment of the order of award to Fleischer and Company was still pending in the Court of First Instance of Cotabato. In any case, Fleischer had given him up to December 31, 1968 within which to vacate the land. He should have allowed appellant the peaceful enjoyment of his properties up to that time, instead of chiselling the walls of his house and closing appellant's entrance and exit to the highway. The deceased had no right to destroy or cause damage to appellant's house, nor to close his accessibility to the highway while he was pleading with them to stop and talk things over with him. The assault on appellant's property, therefore, amounts to unlawful aggression as contemplated by law. The victim was not in the position to subscribe to the Civil Code article on ownership because his ownership of the land being awarded by the government was still pending, therefore putting ownership into question. It is accepted that the victim was the original aggressor. Moreover, the accused was a lessee of the lands in question. He had the right to the enjoyment of the property being leased until evicted. In the case at bar, there was an actual physical invasion of appellant's property which he had the right to resist, pursuant to Art. 429 of the Civil Code of the Philippines which provides: Art. 429. The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property 2. WON the court erred in convicting defendant-appellant although he acted in defence of his rights. Yes. However, the argument of the justifying circumstance of self-defense is applicable only if the 3 requirements are fulfilled. Art. 11(1) RPC enumerates these requisites: Unlawful aggression. In the case at bar, there was unlawful aggression towards appellant's property rights. Fleisher had given Narvaez 6 months and he should have left him in peace before time was up, instead of chiseling Narvaez's house and putting up fence. Art. 536 of the Civil Code also provides that possession may not be acquired through force or intimidation; while Art. 539 provides that every possessor has the right to be respected in his possession Reasonable necessity of means employed to prevent or repel attack. In the case, killing was disproportionate to the attack. Lack of sufficient provocation on part of person defending himself. Here, there was no provocation at all since he was asleep The reasonableness of the resistance is also a requirement of the justifying circumstance of selfdefense or defense of one's rights under paragraph 1 of Article 11, Revised Penal Code. When the appellant fired his shotgun from his window, killing his two victims, his resistance was disproportionate to the attack. Therefore, the crime committed is homicide on two counts. The qualifying circumstance of treachery cannot be appreciated in this case because of the presence of provocation on the part of the deceased. As WE held earlier in People vs. Manlapaz (55 SCRA 598), the element of a sudden unprovoked attack is therefore lacking. The qualifying circumstance of evident

premeditation was also not proven. There must be a "showing" that the accused premeditated the killing; that the culprit clung to their (his) premeditated act; and that there was sufficient interval between the premeditation and the execution of the crime to allow them (him) to reflect upon the consequences of the act." Since in the case at bar, there was no direct evidence of the planning or preparation to kill the victims nor that the accused premeditated the killing, and clung to his premeditated act, the trial court's conclusion as to the presence of such circumstance may not be endorsed. The accused is also credited 2 mitigating circumstances: passion or obfuscation and voluntary surrender. He was released since he had already served his sentence. Gutierrez, dissenting. Defense of property can only be invoked when coupled with form of attack on person defending property. In the case at bar, this was not so. Appellant should then be sentenced to prision mayor. However, since he has served more than that, he should be released. While I agree with the order to release the appellant, I am constrained to dissent in part. It is true that Art. 429, Civil Code of the Philippines, provides that the owner or legal possessor of a thing may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property. It seems to me, however, that an attack on the person defending his property is an indispensable element where an accused pleads selfdefense but what is basically defended is only property. Defense of property is not of such importance as the right to life and defense of property can only be invoked when it is coupled with some form of attack on the person of one entrusted with said property. The defense of property, whether complete or incomplete, to be available in prosecutions for murder or homicide must be coupled with an attack by the one getting the property on the person defending it. In the case now before Us, there is absolutely no evidence that an attack was attempted, much less made upon the person of appellant. The mere utterance "No, gademit proceed, go ahead" is not the unlawful aggression which entitles appellant to the pela of self-defense. I agree with the majority opinion that the crime is homicide but without any privileged mitigating circumstance. People v EULOGIO IGNACIO, (February 10, 2000) On January 11, 1997, at Divisoria, Dimasalang, Masbate, at 9:00 a.m., the victim, Jessie Lacson, and Edwin Velasco were gathering shells by the seashore. This work had caused them to feel thirsty. The two decided to go to the fishpond and get young coconuts or ‘butong.’ This fishpond is owned by Cleto with appellant Eulogio Ignacio alias as the caretaker. Inside the fishpond is a house where appellant sometimes stays. At the fishpond, Jessie got one young coconut. Then, Jessie walked ahead of Edwin in going to the dike, where he would break open the young coconut. Eulogio came out [of] his house and saw Jessie as he reached the dike. However, Eulogio did not see Edwin who was standing behind some coconut trees. Edwin heard Eulogio shout at Jessie to put down the young coconut, which the latter did. Then, Edwin saw Eulogio fire his homemade shotgun at Jessie who was hit on the left portion of the breast. Edwin saw Jessie fall down on the ground. Then, Eulogio cranked his homemade shotgun, aimed it at Edwin but did not fire. Edwin immediately left said place to report the shooting incident to Jessie’s parents. Barangay Tanods came by. They asked Eulogio to surrender, which he heeded. They asked Eulogio why he fired his long gun at Jessie. Eulogio answered that Jessie stole some young coconuts. Thereafter, they brought Eulogio to the police precinct. Medical findings showed that the victim suffered from a single gunshot wound fatally injuring the heart. Arguing that he had acted in defense of property with no intention to kill the victim, appellant countered that while roaming around the fishpond, he saw Jessie Lacson and Edwin Velasco, coming out [of] his house with a basket. It so happened that in his house there were twenty-eight

(28) pieces of crabs stocked. Upon seeing herein appellant, Jessie and Edwin fled. Appellant ordered them to stop. Since the two did not stop, appellant who was then fifty (50) meters away and without any intention to kill Jessie and Edwin, fired his gun. He left and informed a about the incident. The RTC found him liable for murder because of the presence of treachery. Was there lawful defense of property in this case? No. It should be stressed that appellant’s conduct cannot be justified as a lawful defense of property rights. For this justifying circumstance to be appreciated, the accused has the burden of proving unlawful aggression on the part of the victim and reasonable necessity of the means employed to prevent or repel it. In this case, the first requisite was not proven, because he was not attacked by the victim. In fact, he did not even see the victim steal the crabs; he merely suspected him of doing so. Furthermore, assuming that unlawful aggression was proven, there was no necessity to shoot because, according to him, the victim was already running away when hit. Was treachery present? Yes. Appellant argues in the main that treachery should not be appreciated, because there was no proof that he "deliberately and consciously adopted any means to kill" Lacson, but "merely acted on impulse to stop the fleeing culprits." We disagree. Appellant carried out the attack deliberately and consciously; he did not act on mere impulse. The victim and his companion stopped after appellant shouted at them. In fact, they were already facing him when he fired the fatal shot from a distance of around forty meters. This was affirmed by Dr. Ernesto L. Tamayo, who had conducted the postmortem examination on the victim, when he testified that the entry point of the gunshot wound was at the chest, not at the back. Clearly, the evidence proves that appellant killed the victim, and that he did so without risk to himself. A killing is qualified by treachery when the accused employs means, methods or forms in the execution thereof without risk to himself arising from the defense which the offended party might make. To repeat, there was no more reason for appellant to shoot; that he did so was unexpected and surprising. Furthermore, Lacson was unarmed and a mere minor then. Because he had no weapon, there was no risk at all that appellant would be harmed. We stress that the former was only fourteen years old at the time, and that he could not have put up an effective defense. People v PIO RICOHERMOSO, SEVERO PADERNAL, JUAN PADERNAL et al (March 29, 1974) This is an appeal by Severo and Juan Padernal from the trial court’s ruling finding them guilty of Murder. The trial court rationalized its conclusion that there was conspiracy by stating that their conduct revealed unity of purpose and a concerted effort to encompass the victim’s death death. On January 30, 1965, at 9 in the morning, Geminiano de Leon (deceased) was with his wife and son Marianito de Leon. They passed by the house of Ricohermoso. R is a tenant (cultivated as kaingin) in a parcel of land owned by G. G asked that he be allowed to taste (his share in) the palay harvested by R. R acceded and said that G is welcome anytime. G quipped that he could not do so at the moment but he would later pass by to get his share. At 2 PM, G returned to R’s residence. His son M had a rifle slung on his shoulder. This time, however, R was not in a jovial mood and was actually antagonistic against G. R said that “Whatever happens, I will not give you palay." G remonstrated: "Why did you tell us to pass by your house, if you were not willing to give the palay?" At this instance R unsheathed his bolo and lunged at G from the left while Severo Padernal, R’s father-in-law had an axe and approached G from the left. G said while his hands were raised: “Mamay (Grandpa), why will you do this to us. We will not fight you." While G was still looking up to S on his right, R walked to G’s left, and stabbed him on the neck with his bolo. G fell face downward on the ground. Then he was hacked on the back with an axe by S.

At the same time this was happening, Marianito attempted to draw his rifle to save his father. Juan Padernal, the son of S, and R’s brother-in-law suddenly embraced him from behind, with his right arm locked around M’s neck and his left hand pressing M’s left forearm. They grappled and rolled downhill towards a camote patch. M passed out. When he regained consciousness, his rifle was gone. He walked uphill, saw his mortally wounded father G in his death throes. Appellants’ version of the story was different. They claimed that it was G who started the assault when the latter drew his bolo to strike R. Later, S withdrew his appeal. That withdrawal strengthened the case for the prosecution or the appellee and rendered inoperative appellants' version of the case. S in effect accepted as correct the prosecution's version of the tragic incident and the trial court's finding that he conspired with R and his son, Juan, to kill G. 1. Whether Juan Padernal conspired with Ricohermoso and Severo Padernal to kill Geminiano de Leon. Yes. It should be recalled that, in the morning, Geminiano had an understanding with Ricohermoso that he (Geminiano) would return in the afternoon to get his share of the palay harvest. Ricohermoso gave Geminiano the impression that he (Ricohermoso) was amenable to giving Geminiano his share of the harvest. However, during the interval, Ricohermoso changed his mind. Instead of remaining steadfast to his original intention to give Geminiano palay, Ricohermoso planned with his father-in-law, Severo Padernal, and his brother-in-law, appellant Juan Padernal, the manner of liquidating Geminiano as to stop him from pestering Ricohermoso with demands for a share in the harvest. So, when Geminiano reappeared at Ricohermoso's place in the afternoon, Severo Padernal, Ricohermoso Juan Padernal, like actors in a well-rehearsed play, performed their assigned roles with dramatic precision. Severo Padernal and Ricohermoso, one armed with an axe and the other with a bolo, in a pincer movement, confronted Geminiano de Leon. Simultaneously with that maneuver, the thirty-five-year old Juan Padernal embraced Marianito de Leon and prevented him from firing at Severo Padernal and Ricohermoso or from helping his father. Considering the trio's behavior and appellant Juan Padernal's close relationship to Ricohermoso and Severo Padernal, the ineluctable conclusion is that he acted in conspiracy with them. He coordinated and timed his seizure of Marianito with the assault of Ricohermoso and Severo Padernal on Geminiano. It is doubtful if the assailants could have consummated the killing of Geminiano, without their suffering any injury, if Marianito had not been rendered helpless by appellant Juan Padernal. 2. Whether J can invoke the justifying circumstance of of avoidance of a greater evil or injury in explaining his act of preventing Marianito de Leon from shooting Ricohermoso and Severo Padernal. No. His reliance on that justifying circumstance is erroneous. The act of Juan Padernal in preventing Marianito de Leon from shooting Ricohermoso and Severo Padernal, who were the aggressors, was designed to insure the killing of Geminiano de Leon without any risk to his assailants. Juan Padernal was not avoiding any evil when he sought to disable Marianito. Padernal's malicious intention was to forestall any interference in the felonious assault made by his father and brother-in-law on Geminiano. That situation is unarguably not the case envisaged in paragraph 4 of article 11. People v ANTONIO Z. OANIS and ALBERTO GALANTA (July 27, 1943) Chief of Police Oanis and his co-accused Corporal Galanta were under instructions to arrest one Balagtas, a notorious criminal and escaped convict, and if overpowered, to get hi dead or alive. Proceeding to the suspected house, they went into a room and on seeing a man sleeping with his back toward the door, simultaneously fired at him with their revolvers, without first making any reasonable inquiry as to his identity. The victim turned out to be an innocent man, Tecson, and not the wanted criminal.

It is contended that, as appellants acted in innocent mistake of fact in the honest performance of their official duties, both of them believing that Tecson was Balagtas, they incur no criminal liability. Sustaining this theory in part, the lower court held and so declared them guilty of the crime of homicide through reckless imprudence. However, the true fact of the case is that while Tecson was sleeping in his room with his back towards the door, Oanis and Galanta, on sight, fired at him simultaneously or successively, believing him to be Anselmo Balagtas but without having made previously any reasonable inquiry as to his identity. Appellants in this case proffer the justifying circumstance of fulfillment of duty? Tenable? No, but mitigating. In the instant case, appellants found no circumstances whatsoever which would press them to immediate action. The person in the room being then asleep, appellants had ample time and opportunity to ascertain his identity without hazard to themselves, and could even effect a bloodless arrest if any reasonable effort to that end had been made, as the victim was unarmed, according to Irene Requinea. This, indeed, is the only legitimate course of action for appellants to follow even if the victim was really Balagtas, as they were instructed not to kill Balagtas at sight but to arrest him, and to get him dead or alive only if resistance or aggression is offered by him. Although an officer in making a lawful arrest is justified in using such force as is reasonably necessary to secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself from bodily harm (People vs. Delima, 46 Phil, 738), yet he is never justified in using unnecessary force or in treating him with wanton violence, or in resorting to dangerous means when the arrest could be effected otherwise (6 C.J.S., par. 13, p. 612). The doctrine is restated in the new Rules of Court thus: "No unnecessary or unreasonable force shall be used in making an arrest, and the person arrested shall not be subject to any greater restraint than is necessary for his detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot claim exemption from criminal liability if he uses unnecessary force or violence in making an arrest (5 C.J., p. 753; U.S. vs. Mendoza, 2 Phil., 109). It may be true that Anselmo Balagtas was a notorious criminal, a life-termer, a fugitive from justice and a menace to the peace of the community, but these facts alone constitute no justification for killing him when in effecting his arrest, he offers no resistance or in fact no resistance can be offered, as when he is asleep. This, in effect, is the principle laid down, although upon different facts, in U.S. vs. Donoso (3 Phil., 234, 242). It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his right to life which he has by such notoriety already forfeited. We may approve of this standard of official conduct where the criminal offers resistance or does something which places his captors in danger of imminent attack. Otherwise we cannot see how, as in the present case, the mere fact of notoriety can make the life of a criminal a mere trifle in the hands of the officers of the law. Notoriety rightly supplies a basis for redoubled official alertness and vigilance; it never can justify precipitate action at the cost of human life. Where, as here, the precipitate action of the appellants has cost an innocent life and there exist no circumstances whatsoever to warrant action of such character in the mind of a reasonably prudent man, condemnation — not condonation — should be the rule; otherwise we should offer a premium to crime in the shelter of official actuation. There is, however, a mitigating circumstance of weight consisting in the incomplete justifying circumstance defined in article 11, No. 5, of the Revised Penal Code. According to such legal provision, a person incurs no criminal liability when he acts in the fulfillment of a duty or in the lawful exercise of a right or office. There are two requisites in order that the circumstance may be taken as a justifying one: (a) that the offender acted in the performance of a duty or in the lawful exercise of a right; and (b) that the injury or offense committed be the necessary consequence of the due performance of such duty or the lawful exercise of such right or office.

In the instance case, only the first requisite is present — appellants have acted in the performance of a duty. The second requisite is wanting for the crime by them committed is not the necessary consequence of a due performance of their duty. Their duty was to arrest Balagtas or to get him dead or alive if resistance is offered by him and they are overpowered. But through impatience or over-anxiety or in their desire to take no chances, they have exceeded in the fulfillment of such duty by killing the person whom they believed to be Balagtas without any resistance from him and without making any previous inquiry as to his identity. For all the foregoing, the judgment is modified and appellants are hereby declared guilty of murder with the mitigating circumstance above mentioned. Dissent: J. Paras In accomplishing the acts with which the appellants were charged, they undoubtedly followed the order issued by the Constabulary authorities in Manila requiring the Provincial Inspector in Cabanatuan to get Balagtas dead or alive, in the honest belief that Serapio Tecson was Anselmo Balagtas. As the latter became a fugitive criminal, with revolvers in his possession and a record that made him extremely dangerous and a public terror, the Constabulary authorities were justified in ordering his arrest, whether dead or alive. In view of said order and the danger faced by the appellants in carrying it out, they cannot be said to have acted feloniously in shooting the person honestly believed by them to be the wanted man. Conscious of the fact that Balagtas would rather kill than be captured, the appellants did not want to take chances and should not be penalized for such prudence. On the contrary, they should be commended for their bravery and courage bordering on recklessness because, without knowing or ascertaining whether the wanted man was in fact asleep in his room, they proceeded thereto without hesitation and thereby exposed their lives to danger. The Solicitor-General, however, contends that the appellants were authorized to use their revolvers only after being overpowered by Balagtas. In the first place, the alleged instruction by the Provincial Inspector to that effect, was in violation of the express order given by the Constabulary authorities in Manila and which was shown to the appellants. In the second place, it would indeed be suicidal for the appellants or, for that matter, any agent of the authority to have waited until they have been overpowered before trying to put our such a character as Balagtas. In the third place, it is immaterial whether or not the instruction given by the Provincial Inspector was legitimate and proper, because the facts exist that the appellants acted in conformity with the express order of superior Constabulary authorities, the legality or propriety of which is not herein questioned. The theory of the prosecution has acquired some plausibility, though quite psychological or sentimental, in view only of the fact that it was not Balagtas who was actually killed, but an "innocent man . . . while he was deeply asleep." Anybody's heart will be profoundly grieved by the trade, but in time will be consoled by the realization that the life of Serapio Tecson was not vainly sacrificed, for the incident will always serve as a loud warning to any one desiring to follow in the footsteps of Anselmo Balagtas that in due time the duly constituted authorities will, upon proper order, enforce the summary forfeiture of his life. In my opinion, therefore, the appellants are not criminally liable if the person killed by them was in fact Anselmo Balagtas for the reason that they did so in the fulfillment of their duty and in obedience to an order issued by a superior for some lawful purpose (Revised Penal Code, art. 11, pars. 5 and 6). They also cannot be held criminally liable even if the person killed by them was not Anselmo Balagtas, but Serapio Tecson, because they did so under an honest mistake of fact not due to negligence or bad faith. People v FELIPE DELIMA (December 22, 1922) Lorenzo Napilon had escaped from the jail where he was serving sentence. Some days afterwards the policeman Felipe Delima, who was looking for him, found him in the house of Jorge Alegria, armed with a pointed piece of bamboo in the shape of a lance , and demanded his surrender. The fugitive answered with a stroke of his lance. The policeman dodged, it, and to impose his authority fired his revolver, but the bullet did not hit him. The

criminal ran away, without parting with his weapon. These peace officer went after him and fired again his revolver, this time hitting and killing him. The policeman was tried and convicted for homicide and sentenced to reclusion temporal and the accessory penalties. He appeals from that judgment which must be reversed. That killing was done in the performance of a duty. The deceased was under the obligation to surrender, and had no right, after evading service of his sentence, to commit assault and disobedience with a weapon in the hand, which compelled the policeman to resort to such an extreme means, which, although it proved to be fatal, was justified by the circumstances. Article 8, No. 11, of the Penal Code being considered, Felipe Delima committed no crime, and he is hereby acquitted with the costs de oficio. So ordered. LUIS A. TABUENA v Sandiganbayan, People; ADOLFO M. PERALTA v Sandiganbayan, People (February 17, 1997) J. Francisco In a Presidential Memorandum (the Marcos Memorandum) dated Jan. 6, 1986, President Marcos allegedly commanded petitioner Tabuena, in his capacity as General Manager of the Manila International Airport Authority (MIAA), “to pay immediately the Philippine National Construction Corporation, thru this Office (Office of the President), the sum P55M in cash as partial payment of MIAA’s account with said company mentioned in a Memorandum of (Trade and Industry) Minister Robert Ongpin to this Office dated Jan. 7,1985…” Tabuena withdrew the sum of 55M on three separate occasions (25M, 25M, 5M – with Adolfo Peralta) and delivered them to Gimenez, Marcos’s private secretary. It is without dispute that Tabuena did not follow the normal procedures in withdrawal and delivery of the money (no disbursement slips and paid in cold cash). Tabuena was only issued a receipt after the third delivery and it did not mention anything about the purpose of the receipt or the money being used to pay PNCC, but merely acknowledged that Gimenez had received the sum of 55M from Tabuena on three occasions. Furthermore, there was no receipt from the PNCC recognizing payment of debt. Prosecution: there were no standing obligations in favor of the PNCC at the time of disbursement of 55M. PNCC said themselves that they didn’t receive the P55M. Tabuena claimed that he was only complying with the direct order of Marcos (plus the Marcos memorandum which contained same order) to immediately forward to the office of the President, 55M in cash, as partial payment of MIAA’s obligations to PNCC and that he believed that MIAA indeed had those liabilities to PNCC. In short, that Tabuena acted in good faith. Sandiganbayan rejected Tabuena’s claim of good faith and found him guilty of malversation by negligence, hence this case. Issue: WON Tabuena, in following the orders of his superior, was guilty of malversation (or if because of the justifying circumstance of following the orders of his superior, in good faith, he would not be criminally liable, but merely civilly liable)? Held: Tabuena is merely civilly liable. The very fact that he was merely following the orders of his superior is a justifying circumstance. Ratio: 1. On the point raised by Tabuena that he cannot be charged with intentional malversation and be convicted by malversation by negligence, the Court ruled that the dolo and culpa of the offense is only a modality in the perpetration of the felony. The same felony is still there and conviction thereof is proper. 2. On the defense of good faith: it is a valid defense against malversation because it would negate criminal intent. To constitute a crime, the act must, except in certain crimes…be accompanied by criminal intent or such negligence or indifference to duty or to consequences as is equivalent to criminal intent The maxim actus non facit reum, nisi mens sit rea – a crime is not

commited if the mind of the person performing the act complained of is innocent (malversation cases: US v. Catolico, US v. Elvina). 3. The Court, based on the evidence presented, found that Tabuena had no other choice but to actually follow the order stated in the Marcos Memorandum, because, as president of the Philippines, indubitably the head of governmental agencies such as the MIAA and PNCC, Marcos is undeniably the superior of Tabuena. 4. Tabuena entitled to the justifying circumstance of “any person who acts in obedience to an order issued by a superior for some lawful purpose” because he is only acting in good faith, faithfully and efficiently carrying out orders from the highest official in the land. Moreover, there was nothing in the Marcos Memorandum that may invite suspicion – there was no question about the lawfulness of the order contained in such a memorandum. Tabuena had reason to believe that the 55M was indeed part of a due and demandable debt, a portion of a bigger liability to PNCC (existence of such debts determined from testimonies). So even if the order was illegal and Tabuena was not aware of the illegality, he would not be liable because there would only be a mistake of fact committed in good faith. 5. Tabuena followed the memorandum to the letter, paying immediately the PNCC, through this office (office of the president) the sum of 55M. Tabuena had reasonable ground to believe that the President was entitled to receive the money because as Chief Executive, Marcos exercised supervision and control over governmental agencies (good faith in the payment of public funds relieves a public officer from the crime of malversation). 6. While even Tabuena admitted that procedures were ignored and that the disbursement was unusual, he is found to be excused from such because the Marcos Memorandum enjoined his IMMEDIATE COMPLIANCE. On the other hand, while this allows for the negation of criminal intent, as Tabuena acted in good faith, he would still be civilly liable (but he’s not criminally liable anymore, escaping the harsher penalties) (see page 362). 7. There is no showing that Tabuena had anything to do with the creation of the Marcos Memorandum – that even if the real purpose behind the memorandum was to get 55M from public funds, it is clear that he did and would not profit from such and that he did not have anything to do with the creation of the memorandum. 8. Tabuena case is a case concerning obedience in good faith of a duly executed order. The order/memorandum came from the Office of the President and bears the signature of the president himself, in effect allowing for the presumption that such order was regularly issued and patently legal. Furthermore, the wording of the memorandum expressed a certain urgency to its execution—Obedienta est legis essential (act swiftly without question). 9. Main Ratio: Furthermore, the Court itself raises the contention that the case involves a violation of the accused’s right to due process in the sense that it was obvious that the Sandiganbayan was overzealous in its attempt to convict parties involved – as seen in the volume of questions asked, and the manner the same were posed (cross examinations characteristic of confrontation, probing and insinuation). To quote Justice Cruz, “Respect for the Constitution is more important that securing a conviction based on a violation of the rights of the accused.” Sandiganbayan was obviously biased, denying Tabuena and parties involves the requirement of the cold neutrality of an impartial judge. As a consequence of such violation of due process, the order of Sandiganbayan was found void. Note that this defense was not raised by Tabuena. Voting: ? ? ? Four concurred (Narvasa, Vitug, Kapunan, Mendoza) Six dissented (Padilla, Davide, Romero, Puno, Melo, Panganiban) Justice Hermosisima took no part as he was a signatory to the SB decision

? Regalaso, Bellosillo and Torres, Jr, Pro hac vice (meaning they join the majority opinion but they reserve their right to change their vote should a similar case with the same facts arise.)

Implication of pro hac vice: Tabuena v. Sandiganbayan is not precedent for the proposition that any public official who blindly follows orders of their superior. Thus, this case is not authoritative on Art. 11(6). Decision: Tabuena and Peralta acquitted. Davide, dissenting: Davide disagrees with majority that all the requisites of the sixth justifying circumstance in art 11 of the RPC were present The sixth circumstance of the said article implies 3 things: a) that the order was issued by a superior; b) such order must be for some lawful purpose and; c) means used by subordinate to carry out said order must be lawful. According to Davide, facts show that the debt was only 34.5M so order of Marcos had excess of 20.5M – said order then had no factual or legal basis and unlawful. Romero, dissenting: He also believes that not all requisites were present to warrant a justifying circumstance as Tabuena, by his own admission, did not follow standard operating procedures (no vouchers, no approval by Commission on Audit, non-issuance of a receipt in 1st 2 deliveries, non-issuance of receipt by PNCC, delivery to office of Gimenez [not office in Malacanang], a stranger to contract between PNCC and MIAA). The entire process, done with haste and with a total disregard of appropriate auditing requirements was not based on normal procedure. Tabuena’s rank does not excuse him from ignoring such. Puno, dissenting: He concentrates on the case involving a mistake in fact, citing the Ah CHong case among others, and discussing article 3 in some detail -saying that mistake in fact should not excuse the accused from incurring liability. It was also clear from the facts that it took one month for Tabuena to comply with order (starting from the time Marcos called him up by phone – to which the memorandum containing the same orders followed a week later), which is more than enough time to comply with procedure. He also adds that if there was not enough time, Tabuena should have asked for more time or at least communicated such problems to the president. Moreover, to acquit the petitioners imply that people believe that the president is always right, that he or she can do no wrong – that the president is above and beyond the law. Panganiban, dissenting: He is of the same view as Romero, Davide and Puno but also raises some points: the defense of obedience to a superior’s order is already obsolete, as determined by the Tribunal in Nuremberg, in its judgment against Nazi war criminals who put up the defense that they were merely following orders. The tribunal said that the true test did not lie with the existence of an order but whether a moral choice was in fact, possible. To allow this defense to hold in the Tabuena case sets a dangerous precedent in the country because it would deprive the Courts the moral authority to convict any subordinate because he or she was “merely following the orders of the his or her superior (allowing the same doctrine to be invoked in similar criminal cases before the SC and even in the inferior courts who have no choice but to follow the doctrines set by the SC). People v JOSEPH PAMBID y CORNELIO (March 15, 2000) Pambid was found guilty by the RTC of statutory rape of a 6-year old Maricon Delvie C. Grifaldia. The accused and the victim, a Grade 1 student, were neighbors. The two incidents of rape happened sometime between April and May 1993. The first rape took place when, one day, as it was almost sundown, Maricon was on her way home after having been sent on an errand. As she was nearing her house, accused-appellant pulled her and took her to his house. As soon as they were inside the house, accused-appellant got a knife from the kitchen and, at knifepoint, ordered Maricon to remove her short pants, then ordered her to lie on the bed while issuing threats that he would beat her up. At first, accused-appellant inserted his forefinger into Maricon’s vagina. He then inserted his penis and commenced the sexual act, but was interrupted by the arrival of his mother who asked why the door was closed. At that point, accused-appellant hurriedly hid the knife under the bed and asked Maricon to leave. Because of accused-appellant’s threat, Maricon never reported the incident to anyone. The second rape happened one morning in the house of Antonia Adovera, accused-appellant’s aunt, which is situated beside accused-appellant’s house. Accused-appellant saw Maricon on her way to a nearby store. As nobody was present, accused-appellant took Maricon to his aunt’s house. He ordered her to remove her clothes and to lie down on the sofa. Accused-appellant then

went on top of her and inserted his penis into her vagina. Thereafter, he licked her private parts. She was later released and allowed to go home, but not before she was warned not to tell anyone what had happened to her. On May 20, 1993, Maricon told her mother she was raped. Maricon narrated to them the two rape incidents. It was then that Delia realized why sometime on April 5, 1993, Maricon had a high fever and experienced difficulty in urinating (" pahinto-hinto ang ihi") and irritations in her private parts. The accused was later apprehended. Dr. Florante F. Baltazar, PNP Chief Inspector and MedicoLegal Officer, examined Maricon. His showed that Maricon is in a non-virgin physical condition which could have been caused by the insertion of a foreign object or by sexual intercourse. The defense evidence consists of denial, alibi and plea of insanity. Accused-appellant did not testify. The defense also presented psychological report dated July 15, 1994, of a psychologist, Rosalina V. Nuestro, which stated: Current assessment of subject’s mental capacity is gauged along the Mild Mental Retardation level. A 21-point discrepancy between the 2 major scales favoring the Verbal Scale and both intra and intertest variabilities are present to indicate mental inefficiency. Pre-morbid level is believed to be higher. Analysis shows impairment on areas which measure his social intelligence, inductive reasoning and viso-motor functions. Range of general information, judgmental capacity, deductive and ability to solve simple arithmetical problems are very poorly functioning. He is also not so keen in observing details in his surrounding and in differentiating the essential from the non-essential likeness of objects and forms. On the other hand, average score is obtained in the Digit Span, however, only his recall on recent events is adequate but he has difficulty in remembering the most remote events. Projective profile shows an immature individual who is so rigid and constricted in his emotional make-up which renders him unable to relate well with his fellow-beings. He likewise identifies with the opposite sex and with much younger age level signifying sexual difficulty and immaturity. His immaturity fits also hamper his capacity to make sound judgment that is guided more by impulse rather than by intellect. Flattening of affect is likewise discerned. Sterility of thought process is also evident. Distortion of the Gestalten and poorly synthesized drawing of human figures are noted which may indicate the presence of dissociative process in which, in a way, he loses his integrative capacity. It also reflects his inability to meet or deal effectively with reality. Ego ineffectiveness is likewise reflected. Dr. Noemi Angeline E. Jularbal of the National Center for Mental Health, Mandaluyong City, also examined accused-appellant. Her findings and recommendations were contained in a report, dated September 21, 1994, which states that: PSYCHIATRIC EXAMINATION RESULT: Evaluation shows that patient had suffered from Insanity or Psychosis classified under Schizophrenia. This mental disorder is characterized by poor self-care, perceptual aberrations in the form of hallucinations and delusions. There is marked impairment in intellectual, social and vocational functioning. Insight and judgment are impaired. He is likewise suffering from Mental Retardation. This is described as a subnormal level of intellectual functioning. At present, he is behaved and manageable. He is deemed competent to stand court trial. REMARKS AND RECOMMENDATIONS:

He is recommended to undergo regular monthly out-patient check-ups at the National Center for Mental Health. Dr. Jularbal testified that she found accused-appellant to have very poor attention, a blunt facial expression and is easily distracted. According to her, accused-appellant was often deep in thought, hypoproductive and kept on mumbling things to himself. Accused-appellant also exhibited subnormal intellectual functioning which made him experience hallucinations and delusions. Her conclusion was that it was possible that, at the time of the alleged rapes, accusedappellant was suffering from mental illness. Dr. Jularbal also said that at the time she prepared her report, accused-appellant was no longer psychotic nor actively hallucinating, and that he was aware of the case filed against him as he cooperated with his legal counsel who prepared his defense. Is the defense of insanity in this case tenable? No. It is contended that accused-appellant is exempt from criminal liability by reason of insanity. The defense claims that accused-appellant was suffering from schizophrenia and mild mental retardation. We find accused-appellant’s plea of insanity unacceptable. To begin with, his shift of theory, from denial and alibi to plea of insanity, made apparently after realizing the futility of his earlier defense, is a clear indication that his defenses are nothing but mere concoctions. While Art. 12(1) of the Revised Penal Code provides that an imbecile or insane person is exempt from criminal liability, unless he has acted during a lucid interval, the presumption, under Art. 800 of the Civil Code, is that every man is sane. Anyone who pleads the exempting circumstance of insanity bears the burden of proving it. He must show that he was completely deprived of reason when he committed the crime charged. As held in People v. Bañez, "the imbecility or insanity at the time of the commission of the act should absolutely deprive a person of intelligence or freedom of will, because mere abnormality of his mental faculties does not exclude imputability." Based on this standard, we find that accused-appellant failed to discharge this burden. A careful review of the records show the following circumstances which militate against accusedappellant’s claim of insanity: As to the first incident of rape, it is established that accused-appellant closed the door upon entering his house, apparently so that he would not be seen with Maricon. Then, he got a knife from the kitchen and pointed it at the child. When he heard his mother get into the house, he stopped having intercourse with Maricon, hid the knife under the bed and told the child not to report the incident to anyone, otherwise, he would kill her. As to the second incident of rape, accused-appellant kept threatening Maricon as he forced himself on her while they were in the house of Antonia Adovera. By the totality of his acts, accused-appellant showed that he was fully conscious of what he was doing. The bare testimony of accused-appellant’s father that accused-appellant suffered some mental illness during childhood and that both his maternal aunt and his brother had been previously confined at the National Mental Hospital is inadequate to prove that accused-appellant was completely deprived of reason when he raped Maricon. Neither do the psychological report and the result of the psychiatric examination indubitably establish that accused-appellant was insane immediately before or at the time of the commission of the crime. The psychiatric examination showed that accused-appellant was found suffering from schizophrenia. When such mental illness completely deprives the offender of the consciousness of his acts, then it shall be an exempting circumstance. It may also be considered mitigating under Art. 13(a) of the Revised Penal Code if it diminishes the exercise of his will power. In this case, however, the defense failed to conclusively establish that accused-appellant was suffering from schizophrenia or any mental illness that could diminish his will power at the time immediately preceding or during the commission of the crime. Acts penalized by law are always

presumed to be voluntary, and it is improper to conclude that a person acted unconsciously in order to relieve him of liability, unless his insanity is conclusively proved. It was, therefore, error for the trial court to appreciate the mitigating circumstance of insanity in favor of accusedappellant. Also, if a person is charged only with one count of rape, even though the victim was raped more than once, the accused can only be convicted of one count of rape. (See also People v. Alnero, G.R. No. 134536, April 5, 2000) People v ERNESTO PUNO y FILOMEN (June 29, 1981) Crime: Murder; Defense: Insanity (not appreciated) About two o'clock in the afternoon of September 8, 1970, Ernesto Puno, 28, a jeepney driver, entered a bedroom in the house of Francisca Col, the victim a 72 year old widow. Puno said: "Mangkukulam ka mambabarang mayroon kang bubuyog". Then, he repeatedly slapped her and struck her several times on the head with a hammer until she was dead. This was witnessed by Hilaria de la Cruz, and by Lina Pajes. They testified that Puno's eyes were reddish. He then said to them: "Huwag kayong magkakamaling tumawag ng pulis at sabihin ninyo na umalis kayo ng bahay at hindi ninyo alam kung sino ang pumatay sa matanda." They reported the incident to the police anyway. After the killing, Puno fled to his parents' house at Barrio Tugatog, Malabon and then went to the house of his second cousin, Teotimo Puno. Puno's father surrendered him to the police. He was then delivered to a mental hospital later. He was indicted for murder. Alleged in the information as aggravating circumstances were evident premeditation, abuse of superiority and disregard of sex. He testified that he believes in "mangkukulam," "mambabarang" and "mambubuyog. Puno believes that a person harmed by a "mambabarang" might have a headache or a swelling nose and ears and can be cured only by a quack doctor ( herbolaryo). Consequently, it is necessary to kill the "mangkukulam" and "mambabarang". On the night before the murder, his wife testified that Puno's eyes were reddish and that he complained of a headache. He also attempted to ward a non-existent bee. He also boxed their poor dog. His cousin also testified on the erratic behavior of the accused after the killing. The defense presented three psychiatrists. However, instead of proving that puno was insane when he killed Aling Kikay, the medical experts testified that Puno acted with discernment.c Thus, Doctor Araceli Maravilla of the Psychiatry Section of the Dr. Jose R. Reyes Memorial Hospital, testified that Puno was an out-patient who could very well live with society, although he was afflicted with "schizophrenic reaction"; that Puno knew what he was doing and that he had psychosis, a slight destruction of the ego. She observed that Puno on July 4, 1970 was already cured. Doctor Reynaldo Robles of the National Mental Hospital testified that Puno was first brought to that hospital on July 28, 1962. He observed that while Puno was suffering from "schizophrenic reaction", his symptoms were "not socially incapacitating" and that he could adjust himself to his environment. Doctor Carlos Vicente, a medical specialist of the National Mental Hospital, testified that from his examination of Puno, he gathered that Puno acted with discernment when he committed the killing and that Puno could distinguish between right and wrong. Doctor Vicente also concluded that Puno was not suffering from any delusion and that he was not mentally deficient; otherwise, he would not have reached third year high school On December 14, 1970 or three months after the commission of the offense, Doctors Vicente, Robles and Victorina V. Manikan of the National Mental Hospital submitted the following report on Puno:

Records show that he had undergone psychiatric treatment at the Out-Patient Service of the National Mental Hospital for schizophrenia in 1962 from which he recovered; in 1964 a relapse of the same mental illness when he improved and in 1966 when his illness remained unimproved.c REMARKS In view of the foregoing findings, Ernesto Puno, who previously was suffering from a mental illness called schizophrenia, is presently free from any social incapacitating psychotic symptoms. The seeming ignorance of very simple known facts and amnesia of several isolated accounts in his life do not fit the active pattern of a schizophrenic process. It may be found in an acutely disturbed and confused patient or a markedly, retarded individual of which he is not. However, persons who recover from an acute episode of mental illness like schizophrenia may retain some residual symptoms impairing their judgment but not necessarily their discernment of right from wrong of the offense committed. The trial court held that Puno was sane when he killed the victim. The trial court concluded that Puno was sane or knew that the killing of Francisca Col was wrong and that he would be punished for it, as shown by the threats which he made to Hilaria de la Cruz and Lina Pajes, the old woman's companions who witnessed his dastardly deed. The trial court also concluded that if Puno was a homicidal maniac who had gone berserk, he would have killed also Hilaria and Lina. The fact that he singled out Aling Kikay signified that he really disposed of her because he thought that she was a witch. The judge said he "meticulously observed the conduct and behavior of the accused inside the court, most especially when he was presented on the witness stand" and he was convinced "that the accused is sane and has full grasp of what was happening" in his environment. He was sentenced to death. Will the plea of insanity prosper in this case? No. Puno was not legally insane when he killed the hapless and helpless victim. The facts and the findings of the psychiatrists reveal that on that tragic occasion he was not completely deprived of reason and freedom of will. Insanity under article 12 of the Revised Penal Code means that the accused must be deprived completely of reason or discernment and freedom of the will at the time of committing the crime (People vs- Formigones, 87 Phil. 658, 660). Insanity exists when there is complete deprivation of intelligence in committing the act, that is, the accused is deprived of reason, he acts without the least discernment because there is complete absence of the power to discern, or that there is total deprivation of freedom of the will. Mere abnormality of the mental faculties will not exclude imputability." In People vs. Fausto y Tomas , 113 Phil. 841, the accused was confined in the National Mental Hospital for thirteen days because he was suffering from schizophrenia of the paranoid type. His confinement was recommended by Doctor Antonio Casal of the San Miguel Brewery where the accused used to work as a laborer. About one year and two months later, he killed Doctor Casal because the latter refused to certify him for re-employment. His plea of insanity was rejected. He was convicted of murder. library In the instant case, the trial court correctly characterized the killing as murder. The qualifying circumstance is abuse of superiority. In liquidating Francisco Col, Puno, who was armed with a hammer, took advantage of his superior natural strength over that of the unarmed septuagenarian female victim who was unable to offer any resistance and who could do nothing but exclaim " Diyos ko ". law library Thus, it was held that "an attack made by a man with a deadly weapon upon an unarmed and defenseless woman constitutes the circumstance of abuse of that superiority which qqqs sex and the weapon used in the act afforded him, and from which the woman was unable to defend herself" (People vs. Guzman, 107 Phil. 1122, 1127 citing U.S. vs. Consuelo, 13 Phil. 612; U.S. vs. Camiloy 36 Phil. 757 and People vs. Quesada, 62 Phil. 446). library

Evident premeditation (premeditacion conocida) cannot be appreciated because the evidence does not show (a) the time when the offender determined to commit the crime, (b) an act manifestly indicating that the culprit had clung to his determination and (c) a sufficient interval of time between the determination and the execution of the crime to allow him to reflect upon the consequences of his act (People vs. Ablates, L-33304, July 31, 1974, 58 SCRA 241, 247). Dwelling and disregard of the respect due to the victim on account of her old age should be appreciated as generic aggravating circumstances. Disregard of sex is not aggravating because there is no evidence that the accused deliberately intended to offend or insult the sex of the victim or showed manifest disrespect to her womanhood (People vs. Mangsant, 65 Phil. 548; People vs. Mori, L-23511-2, January 31, 1974, 55 SCRA 382, 404, People vs, Jaula, 90 Phil. 379; U.S. vs. De Jesus, 14 Phil. 190).chanrobles virtual law library However, those two aggravating circumstances are off-set by the mitigating circumstances of voluntary surrender to the authorities and, as contended by counsel de oficio, the offender's mental illness (mild psychosis or schizophrenic reaction) which diminished his will-power without however depriving him of consciousness of his acts. (See People vs. Francisco, 78 Phil. 694, People vs. Amit, 82 Phil. 820 and People vs. Formigones, 87 Phil. 658.) It results that the medium period of the penalty for murder should be imposed (Arts. 64[41 and 248, Revised Penal Code). The accused is sentenced to reclusion perpetua The indemnity imposed by the trial court is affirmed. Dissents: J. Makasiar Appellant was treated eighteen (18) times in the National Mental Hospital and Jose Reyes Memorial Hospital from July 28, 1962 to July 24, 1970 or for a span of 8 years, characteristic of the chronic nature of his mental disease Thus, on direct examination, Dr. Carlos Vicente confirmed: On a schizophrenic's behavior pattern: Q - Is it possible that a person suffering from chronic schizophrenia can have a violent reaction? A - Yes, it is Possible, if he was at that time. If he is schizophrenic at the time" (Testimony of Dr. Carlos Vicente, p. 10, TSN, January 20, 197 1, emphasis supplied).chanrobles virtual law library Q - By suffering from schizophrenia, would you say that his suffering has affected his power of control over his will? A - During the time that he was suffering, he could not stick to the right. He made mistakes at the time that he was mentally sick.chanrobles virtual law library Q - His power of control over his will to commit a crime is affected? A - Yes, sir.chanrobles virtual law library Q - Are you sure of that? A - Yes, somehow it is controlled by some Ideas, example, one who has that (im)pulse to kill will kill" (Testimony of Dr. Carlos Vicente, p. 17, TSN, January 11, 1971, emphasis supplied). On the mental condition of appellant when the alleged crime was committed which is and should be considered determinative of his liability: Q - Would you be able to state Doctor whether the accused when he committed the act was suffering from an onset of schizophrenic reaction from which he has been known to be suffering since 1962" A - It is possible, sir, that he was already suffering from an onset of the schizophrenic reaction at that time" (Testimony of Dr. Reynaldo Robles, p. 6, TSN, January 20,1971, emphasis supplied).

It should be stressed that between July 24, 1970 when appellant suffered from his last attack or relapse and September 8, 1970 when he committed the alleged crime, barely 1 month and 15 days had elapsed. Medically speaking, the interval was not sufficient time for appellant's full recovery nor did such time give any guaranty for his mental disease to be "cured." Appellant was stin mentally sick at the time he attacked the victim. He previously suffered from a "displacement of aggressive and hostile behavior" when he got angry with his wife and when he tied and boxed their dog. He had the mental delusion that a "mangkukulam" was inflicting harm on him. This delusion found its mark on the victim whom he believed was the "mangkukulam" and fearing that she would harm him, appellant had to kill her in self-defense. Simply stated, the victim was a mere consequence of his mental delusion. He killed the "mangkukulam" as personified by the victim; he did not kin Aling Kikay herself. And the said fatal act was made by appellant in defending himself from the "mangkukulam".chanrobles virtual law library While it has been established that appellant was "manageable" and was "presently free from any social incapacitating psychotic symptoms" during the trial, the fact remains that at the very moment of the commission of the alleged crime, he was still a mentally sick person. No evidence was produced to prove otherwise against the bulk of appellant's medical history for 8 years clearly indicative of his mental psychosis. law library As earlier stated, "social recovery" of a schizophrenic does not mean that he is "cured" (totally recovered) from the disease. library In view of the foregoing, appellant should be acquitted of the charge of murder. People v EUSTAQUIO LORENO and JIMMY MARANTAL (July 9, 1984) The two accused here were charged with Robbery with Double Rape before the trial court. Loreno was found guilty of the charges and was sentenced to LIFE IMPRISONMENT (!) by the trial court. Marantal was found guilty only of robbery and was sentenced to prision mayor. In the evening of January 7, 1978, Barangay Captain Elias Monge was at his house. He and his two young daughters, namely: Monica, then 14 years old, and Cristina Monge were preparing to attend an event. The other occupants present in the house that evening were his sons. At about 7:40 o’clock that same evening, he saw some men with flashlights. One of them (a man in a dark sweater) handed him a letter and he let them inside his house. The letter read: “Kami mga NPA.” They were all subdued by the infiltrators as they were armed. The man in dark sweater instructed Loreno to tie all their victims on the floor. Loreno tied them with rattan. Later, the flashlight used by Loreno happened to focus on the person of Jimmy Marantal. Fable (one of the occupants of the house) immediately recognized him as one of the visitors who remained on the ground as lookouts. Marantal beamed his flashlight on the face of Fable, and seeing the latter, he kicked him. The man in dark sweater robbed the place with some valuables. Not content, he raped the two daughters of Monge. Hearing their shouts for help, Loreno menacingly pointed his gun at the occupants, telling them not to rise if they wanted to live. Thereafter Loreno entered the room where one of the daughters was earlier brought by the man in dark sweater, and he found Cristina still lying on the floor. Loreno embraced her trying to kiss her and touch her private parts. When they finished their business, they left the house and warned the occupants to not tell anyone what transpired thereat. They reported the incident to the police. Eustaquio Loreno and Jimmy Marantal were eventually apprehended. Appellants Eustaquio Loreno and Jimmy Marantal claimed that they acted under the compulsion of an irresistible force and/or under the impulse of uncontrollable fear of equal or greater injury. They admitted that they were in the house of Elias Monge on the night of January 7, 1978, 4 but they were only forced by a man wearing black sweater and his five companions who claimed to be members of the New People’s Army (NPA), operating in the locality, with the threat that if they did not obey, appellants and their families would be killed.

Tenable? No. Both of them were found guilty of the charges and were sentenced to RP. A person who acts under the compulsion of an irresistible force, like one who acts under the impulse of uncontrollable fear of equal or greater injury is exempt from criminal liability because he does not act with freedom. The force must be irresistible to reduce him to a mere instrument who acts not only without will but against his will. The duress, force, fear or intimidation must be present, imminent and impending and of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. A threat of future injury is not enough. The compulsion must be of such a character as to leave no opportunity to the accused for escape or self-defense in equal combat. A perusal of the appellants’ statement of the robbery-rape incident as summarized in their joint briefshowed that they admitted their participation in the commission of the crimes of robbery and rape against Elias Monge and his family on January 7, 1978. Further established were facts inconsistent with appellant’s claim of having acted under the compulsion of an irresistible force and/or under the impulse of an uncontrollable fear of equal or greater injury, to wit: 1. Appellant Eustaquio Loreno was armed with a short firearm when he and the man in dark sweater went up the house of Elias Monge. While inside the house, Loreno pointed the gun to the victims which enabled the malefactors to ransack the house. 2. When Eustaquio Loreno and the man in dark sweater reached the balcony, Loreno positioned himself next to the post in the balcony, while the man in dark sweater delivered the letter to Elias Monge. Loreno admitted that, without prior instructions, he immediately positioned himself near the post of the balcony, an act which showed his voluntary participation in the criminal acts. 3. Eustaquio Loreno himself tied the victim with rattan and thereafter, with ropes of the hammock. Loreno in fact admitted that he was the one who furnished the rattan which he got from inside the house. 4. When Monica Monge was struggling and shouting for help from inside the room where she was earlier dragged by the man in dark sweater, Loreno’s immediate reaction was to point his gun to the victims who were then lying on the floor, telling them not to rise if they wanted to live. The records likewise revealed that on the two occasions Eustaquio Loreno brought Beata Monge to the master’s room and the teacher’s room where he made her open the trunk and the “aparador” with her keys and got the contents which he brought and poured on the floor of the sala, appellant Loreno acted alone, without the threat and assistance of the man in dark sweater. And after the man in dark sweater consummated his lust on Cristina Monge in the teacher’s room and seeing Cristina Monge still lying on the floor, Loreno embraced her and tried to kiss and touch her private parts. When Eustaquio Loreno and Francisco Fable went downstairs to drive the barking dog away, the flashlight of Loreno happened to be focused on the face of Jimmy Marantal who in turn beamed his flashlight on the approaching Fable. Upon seeing Fable, Jimmy Marantal kicked the former twice causing him (Fabie) to fall to the ground. Marantal’s reaction towards Fable was due to the fact that Fable had recognized him and the blows which he gave to Fable who was still tied at the moment was to serve as a warning to Fable not to report his presence and participation in the robbery-rape incident to the authorities. Jimmy Marantal, who was standing at the gate of the house below, must have heard the shouts of Monica Monge for help and must have known by then that Monica Monge was being abused by his two companions who earlier went up the house. As a “lookout” or guard, Jimmy Marantal gave his companions effective means and encouragement to commit the crimes of robbery and rape. There was no showing that Jimmy Marantal raised a voice of protest or did an act to prevent the commission of the crimes. All these demonstrated the voluntary participation and the conspiracy of the appellants. The foregoing acts, though separately performed from those of their unidentified companions, clearly showed their community of interest and concert of criminal design with their unidentified

companions which constituted conspiracy without the need of direct proof of the conspiracy itself. Conspiracy may be inferred and proven by the acts of the accused themselves and when said acts point to joint purpose and concert of action and community of interest, which unity of purpose and concert of action serve to establish the existence of conspiracy, and the degree of actual participation petition by each of the conspirators is immaterial. Conspiracy having been establish, all the conspirators are liable as co-penpals regardless of the extent and character of their participation because in contemplation of law, the act of one is the act of all. The foregoing crime of robbery with double rape was combat muted on January 7, 1978, by more than three persons, all armed, 10 in conspiracy with each other, attended by the aggravating circumstances of band, nighttime and dwelling and is, under P.D. 767, promulgated on August 15, 1975, punishable by death. But, for lack of the required number of votes, the accused should suffer the penalty of reclusion perpetua. People v RUDY FRONDA (May 14, 1993) Rudy Fronda, together with Reynaldo Agcaoili were charged with murder alleged to have been committed in conspiracy with several John Does. Appellant and his co-accused were accused of killing the brothers Esminio and Edwin Balaan on or about June 11, 1968.The trial court convicted appellant and acquitting Reynaldo Agcaoili of the crime charged. He was sentenced with RP plus damages (totaling 325T.) At about 6:00 o'clock in the morning of June 11, 1986, the deceased Eduardo (Edwin) Balaan And Esminio Balaan who are brothers, were take by seven (7) armed men in fatigue uniform with long firearms, suspected to be NPA members, accompanied by accused Rudy Fronda and Roderick Padua. The armed men tied the hands of the deceased at their back lying down face downward, in front of the house of Ferminio Balaan. Rudy Fronda testified that on the night of June 10, 1986, he was taken by the NPA's from his house, accompanied by Robert Peralta, alias Ka Jun and Roderick Padua, to look for the Balaan brothers. They found Edwin Balaan and Esmineo Balaan. They tied their wrists/hands and brought them to the mountain Robert Peralta, alias Ka Jun, sent Elmer Martinez, Orlando Gonzales, George Peralta and Librado Duran to get him and further he was ordered to get a spade and a crowbar. They were ordered to dig a hole in the mountain, one (1) kilometer away from his house. On March 21, 1989, the bodies or remains of the Balaan brothers were examined. In holding that appellant is a principal by indispensable cooperation, it found: 1) Appellant and Roderick Padua, and NPA member were the ones who pointed the house where the brothers Balaan were to be found, 2) appellant and Roderick Padua accompanied the members of the armed group to said house, and tied the victims' hands, 3) appellant was handed a hunting knife by one of the armed men when they left the house, 4) appellant joined the members of the armed group in bringing the victims to a forested area in the mountains, 5) it was appellant who provided the spade and crowbar used in digging the hole where the Balaan brothers were buried, 6) appellant was the one who pointed the location where the victims' bodies buried, 7) appellant, for a period of more than three (3) years, failed to report the incident to the authorities, and 8) appellant did not in any way object, when he was ordered to tie the hands of the victims. The defense submits that appellant was merely taken by the armed men as a "pointer". Furthermore, appellant interposes the exempting circumstance of uncontrollable fear (Art. 12 [6] RPC) claiming that all his acts were performed under the impulse of uncontrollable fear and to save his life. Held He is merely an accomplice but his defense of uncontrollable fear is untenable. Records show that appellant's participation in the commission of the crime consisted of: (1) leading the members of the armed group to the house where the victims were found; (2) tying the victims' hands and (3) digging the grave where the victims were buried. However, it has been established through the testimony of Alex Utrera, a former member of the NPA, that

appellant was only picked-up by the armed men for the purpose of pointing the residence of the victims. The armed men never disclosed their purpose in looking for the brothers Balaan who were former members of the Armed Forces of the Philippines nor did the armed men inform appellant of their plan to abduct and kill the two brothers. Save for the open admission of appellant that he was an NPA "supporter", no incontrovertible proof was adduced by the prosecution supporting the conclusion that appellant agreed with the members of the armed group to kill the brothers Balaan. Even without appellant's participation, the assailants could have easily located the Balaan brothers thru the assistance of Roderick Padua. Taking account of the number of the assailants alone, it is apparent that the armed men could have nevertheless committed the crime easily without the appellant abetting the commission thereof. The acts performed by appellant are not, by themselves, indispensable to the killing of the brothers Balaan. As aforesaid to be considered as a principal by indispensable cooperation, there must be direct participation in the criminal design by another act without which the crime could not have been committed. We note that the prosecution failed to present any evidence tending to establish appellant's conspiracy with the evil designs of the members of the NPA armed group. Neither was it established that appellant's acts were of such importance that the crime would not have been committed without him or that he participated in the actual killing. Under the circumstances, appellant cannot therefore be considered as a principal by indispensable cooperation. However, appellant's act of joining the armed men in going to the mountains, and his failure to object to their unlawful orders, or show any reluctance in obeying the same, may be considered as circumstances evincing his concurrence with the objectives of the malefactors and had effectively supplied them with material and moral aid, thereby making him as an accomplice. He cannot with candor, claim that he was unaware of the evil intentions of the armed men which may have been the case had appellant merely guided the group to locate the victims' abodes. On the contrary, appellant himself tied the victims' hands and even joined the armed men in taking the victims to the hills. Appellant's complicity is made more manifest by the fact that without any justifiable reason he failed to report the incident to the authorities for a period of more than three (3) years. Article 18 of the Revised Penal Code provides that an accomplice is one who, not being a principal, "cooperates in the execution of the offense by previous or simultaneous acts". Under this provision, a person is considered as an accomplice if his role in the perpetration of the crime is of a minor character. To be convicted as such, it is necessary that he be aware to the criminal intent of the principal and thereby cooperates knowingly or intentionally by supplying material or moral aid for the efficacious execution of the crime. It is well settled that if there is ample of criminal participation but a doubt exist as to the nature of liability, courts should resolve to favor the milder form of responsibility, that of an accomplice. Appellant cannot claim the exempting circumstance of uncontrollable fear (Art. 12, par. 6, RPC). Fear in order to be valid should be based on a real, imminent or reasonable fear for one's life or limb. In the case at bar, records indicate that appellant was seen being handed by and receiving from one of the armed men a hunting knife. Also, as aforesaid, appellant was not able to explain his failure to report the incident to the authorities for more than three (3) years. These circumstances, among others, establish the fact that appellant consciously concurred with the acts of the assailants. In order that the circumstance of uncontrollable fear may apply, it is necessary that the compulsion be of such a character as to leave no opportunity to escape or self-defense in equal combat. Appellant had the opportunity to escape when he was ordered by the armed men to go home after bringing the victims the mountains. He did not. Instead he joined the armed men when required to bring a spade with which he was ordered to dig the grave. Appellant also chose to remain silent for more than three (3) years before reporting the killing to the authorities.

Appellant also argues that the trial court erred when it convicted him of the crime charged, alleging that no evidence was presented to prove any circumstance that would qualify the crime committed to murder. Appellant's argument is devoid of merit. Paragraph 1, Article 248 of the Revised Penal Code provides that any person who kills another, taking advantage of superior strength shall be guilty of murder. It is manifest that the group of assailants composed of seven (7) armed men, and two (2) civilians including appellant Fronda. It had been repeatedly held that the number of assailants, if armed, may be considered as a qualifying circumstance of abuse of superior strength. It is indubitable that assailants deliberately used superior force of such nature as to be clearly out of proportion to the means or defense available to the victims. The assailants took advantage of their numbers in order to ensure that the brothers Balaan who are said to be former members of the Armed Forces of the Philippines would not be able to put up any defense. The crime thus committed is murder. There being no mitigating nor aggravating circumstances which attended the commission of the crime (murder), the penalty imposable under the law should be applied in its medium period. The penalty for murder is reclusion temporal in its maximum period to death (Art. 248, RPC). One degree lower is prision mayor in its maximum period to reclusion temporal medium. People v JOSEFINA BANDIAN (September 30, 1936) The appellant herein was charged of infanticide. At about 7 o'clock in the morning of January 31, 1936, Valentin Aguilar, the appellant's neighbor, saw the appellant go to a thicket to respond to a call of nature. A few minutes later, he again saw her emerge from the thicket with her clothes stained with blood both in the front and back, staggering and visibly showing signs of not being able to support herself. He ran to her aid and, having noted that she was very weak and dizzy, he supported and helped her go up to her house and placed her in her own bed. Upon being asked before Aguilar brought her to her house, what happened to her, the appellant merely answered that she was very dizzy. He called Adriano Comcom, who lived nearby, to help them. Comcom then saw the body of a newborn babe near a path adjoining the thicket where the appellant had gone a few moments before. Comcom informed Aguilar of it and latter told him to bring the body to the appellant's house. Upon being asked whether the baby which had just been shown to her was hers or not, the appellant answered in the affirmative. Upon being notified of the incident Dr. Emilio Nepomuceno went to the appellant's house and found her lying in bed still bleeding. He declared that the appellant gave birth in her house and in her own bed; that after giving birth she threw her child into the thicket to kill it for the purpose of concealing her dishonor from the man, Luis Kirol, with whom she had theretofore been living maritally, because the child was not his but of another man with whom she had previously had amorous relations. To give force to his conclusions, he testified that the appellant had admitted to him that she had killed her child. But his testimony was contradicted by the witnesses for the prosecution. She was found guilty of infanticide. The Solicitor-General, however, does not agree. On the contrary, he maintains that the appellant may be guilty only of abandoning a minor under subsection 2 of article 276 of the Revised Penal Code, the abandonment having resulted in the death of the minor allegedly abandoned. Held Acquitted. Infanticide and abandonment of a minor, to be punishable, must be committed wilfully or consciously, or at least it must be result of a voluntary, conscious and free act or omission. Even in cases where said crimes are committed through mere imprudence, the person who commits them, under said circumstances, must be in the full enjoyment of his mental faculties, or must be conscious of his acts, in order that he may be held liable. The evidence certainly does not show that the appellant, in causing her child's death in one way or another, or in abandoning it in the thicket, did so wilfully, consciously or imprudently. She had no cause to kill or abandon it, to expose it to death, because her affair with a former lover, which was not unknown to her second lover, Luis Kirol, took place three years before the incident; her married life with Kirol — she considers him her husband as he considers her his wife — began a year ago; as he so testified at the trial, he knew that the appellant was pregnant and he believed

from the beginning, affirming such belief when he testified at the trial, that the child carried by the appellant in her womb was his, and he testified that he and she had been eagerly waiting for the birth of the child. The appellant, therefore, had no cause to be ashamed of her pregnancy to Kirol. If to the foregoing facts is added the testimony of the witnesses Valentin Aguilar and Adriano Comcom that the child was taken from the thicket and carried already dead to the appellant's house after the appellant had left the place, staggering, without strength to remain on her feet and very dizzy, to the extent of having to be as in fact she was helped to go up to her house and to lie in bed, it will clearly appear how far from the truth were Dr. Nepomuceno's affirmation and conclusions. Also add to all these the fact that the appellant denied having made any admission to said physician and that from the time she became pregnant she continuously had fever. This illness and her extreme debility undoubtedly caused by her long illness as well as the hemorrhage which she had upon giving birth, coupled with the circumstances that she is a primipara, being then only 23 years of age, and therefore inexperienced as to childbirth and as to the inconvenience or difficulties usually attending such event; and the fact that she, like her lover Luis Kirol — a mere laborer earning only twenty-five centavos a day — is uneducated and could supplant with what she had read or learned from books what experience itself could teach her, undoubtedly were the reasons why she was not aware of her childbirth, or if she was, it did not occur to her or she was unable, due to her debility or dizziness, which causes may be considered lawful or insuperable to constitute the seventh exempting circumstance (art. 12, Revised Penal Code), to take her child from the thicket where she had given it birth, so as not to leave it abandoned and exposed to the danger of losing its life. The act performed by the appellant in the morning in question, by going into the thicket, according to her, to respond to call of nature, notwithstanding the fact that she had fever for a long time, was perfectly lawful. If by doing so she caused a wrong as that of giving birth to her child in that same place and later abandoning it, not because of imprudence or any other reason than that she was overcome by strong dizziness and extreme debility, she should not be blamed therefor because it all happened by mere accident, from liability any person who so acts and behaves under such circumstances. In conclusion, taking into account the foregoing facts and considerations, and granting that the appellant was aware of her involuntary childbirth in the thicket and that she later failed to take her child therefrom, having been so prevented by reason of causes entirely independent of her will, it should be held that the alleged errors attributed to the lower court by the appellant are true; and it appearing that under such circumstances said appellant has the fourth and seventh exempting circumstances in her favor, is hereby acquitted of the crime of which she had bee accused and convicted, with costs de oficio, and she is actually confined in jail in connection with this case, it is ordered that she be released immediately. AQUILINA R. ARANETA vs. COURT OF APPEALS (July 9, 1986) Atty. Araneta was charged and found guilty of bribery of RA 3019. Complainant Gertrudes M. Yoyongco is the widow of Antonio Yoyongco, an employee of the National Irrigation Administration. Upon the death of her husband on April 27, 1971, she approached the appellant, a hearing officer of the Workmen's Compensation Uni t to inquire about the procedure for filing a claim for death compensation. Learning the requirements, she prepared the application forms and attachments and filed them with the Workmen's Compensation Unit. The complainant was told that she had to pay P 100.00 so that her claim would be acted upon. The complainant told the appellant that she had no money then, but if the appellant would process her claim she would give her the P100.00 upon its approval. The appellant was adamant. She would not agree to the complainant's proposal. The complainant went to her brother-in-law, Col. Yoyongco, chief of the Criminal Investigation Service, Philippine Constabulary, to inform him of the demand of the appellant. Col. Yoyongco gave the complainant two 50-peso bills and instructed her to go to Col. David Laureaga, Provincial Commander of Nueva Ecija, for help.

After listening to the complainant, Col. Laureaga instructed Lt. Carlito Carlos to entrap the appellant. The two 50-peso bills were marked with the notations 'CC-NE-l' and 'CC-NE-2', photographed and dusted with ultra-violet powder. Lt. Carlos, Sgt. Beleno, CIC Balcos and the complainant proceeded to the office of the appellant. CIC Balcos who pretended to be the complainant's nephew approached the appellant. Lt. Carlos and Sgt. Beleno stationed themselves outside the room and observed events through a glass window. The complainant again requested the appellant to process her claim. The appellant countered by asking her if she already had the P100.00. In answer, the complainant brought out the two 50peso bills from her bag and handed them to the appellant. As the appellant took hold of the money, CIC Balcos grabbed her hand and told her she was under arrest. The appellant was brought to the PC headquarters where her hands were examined with a special light for the presence of ultra-violet powder. Issues/Held Petitioner submits that the criminal intent originated in the mind of the entrapping person and for which reason, no conviction can be had against her. Untenable. The petitioner confuses entrapment with instigation There is entrapment when law officers employ ruses and schemes to ensure the apprehension of the criminal while in the actual commission of the crime. There is instigation when the accused was induced to commit the crime (People vs. Galicia, [CA], 40 OG 4476). The difference in the nature of the two lies in the origin of the criminal intent. In entrapment, the mens rea originates from the mind of the criminal. The Idea and the resolve to commit the crime comes from him. In instigation, the law officer conceives the commission of the crime and suggests to the accused who adopts the Idea and carries it into execution. The legal effects of entrapment and instigation are also different. As already stated, entrapment does not exempt the criminal from liability. Instigation does. ENTRAPMENT AND INSTIGATION.- While it has been said that the practice of entrapping persons into crime for the purpose of instituting criminal prosecutions is to be deplored, and while instigation, as distinguished from mere entrapment, has often been condemned and has sometimes been held to prevent the act from being criminal or punishable, the general rule is that it is no defense to the perpetrator of a crime that facilities for its commission were purposely placed in his way, or that the criminal act was done at the 'decoy solicitation of persons seeking to expose the criminal, or that detectives feigning complicity in the act were present and apparently assisting in its commission. Especially is this true in that class of cases where the offense is one of a kind habitually committed, and the solicitation merely furnishes evidence of a course of conduct. Mere deception by the detective will not shield defendant, if the offense was committed by him free from the influence of the instigation of the detective. Petitioner argues that she was denied due process of law because she was not charged with bribery in the information but for a crime falling under the Anti-Graft and Corrupt Practices Act. This argument is erroneous. The contention of the petitioner was squarely answered in United States vs. Panlilio (28 Phil. 608) where this Court held that the fact that the information in its preamble charged a violation of Act No. 1760 does not prevent us from finding the accused guilty of a violation of an article of the Penal Code. To the same effect is our ruling in United States vs. Guzman (25 Phil. 22) where the appellant was convicted of the crime of estafa in the lower court, but on appeal, he was instead convicted of the crime of embezzlement of public funds as defined and penalized by Act No. 1740. As long as the information clearly recites all the elements of the crime of bribery and the facts proved during the trial show its having been committed beyond reasonable doubt, an error in the designation of the crime's name is not a denial of due process. Judgment affirmed.

PEOPLE v PEDRO PAGAL y MARCELINO and JOSE TORCELINO y TORAZO (October 25, 1977) The appellants in this case were charged and found guilty of robbery with homicide for having robbed and killed one Gau Guan with the aggravating circumstances of nighttime, evident premeditation and disregard of respect due the offended party offset only by the mitigating circumstance of their plea of guilty. They were sentenced to death. They pleaded guilty but were given the opportunity to prove the mitigating circumstances of sufficient provocation or threat on the part of the offended party immediately preceding the act, and that of having acted upon an impulse so powerful as to produce passion and obfuscation. Pedro Pagal contends that the trial court erred in convicting him of the crime of robbery with homicide instead of declaring him liable only for his individual acts, claiming that the record is bereft of any proof or evidence that he and his co-appellant Jose Torcelino conspired to commit the crime of robbery with homicide. Issue Pedro Pagal contends that the trial court erred in convicting him of the crime of robbery with homicide instead of declaring him liable only for his individual acts, claiming that the record is bereft of any proof or evidence that he and his co-appellant Jose Torcelino conspired to commit the crime of robbery with homicide. Held Not tenable. His denial of conspiracy with his co-appellant Jose Torcelino cannot be given credence in view of the clear and convincing confession of his guilt in his statement signed by him before the police investigators several hours after the commission of the crime. Besides, when he pleaded guilty to the charge, he is deemed to have admitted all the material facts alleged in the information. By his plea, the appellant admitted not only the commission of the crime but also the circumstances surrounding its commission, including the allegations of conspiracy. A plea of guilty when formally entered on arraignment, is sufficient to sustain a conviction even for a capital offense without the introduction of further evidence, the requisite proofs having been supplied by the accused himself. We find, therefore, that the trial court did not commit any error in convicting the appellant Pedro pagal of the crime of robbery with homicide. Issue Should the mitigating circumstances of sufficient provocation, and passion or obfuscation be credited in their favor? Held No. Firstly, since the alleged provocation which caused the obfuscation of the appellants arose from the same incident, that is, the alleged maltreatment and/or ill-treatment of the appellants by the deceased, these two mitigating circumstances cannot be considered as two distinct and separate circumstances but should be treated as one. Secondly, the circumstance of passion and obfuscation cannot be mitigating in a crime which — as in the case at bar — is planned and calmly meditated before its execution. Thus, in People vs. Daos, a case of robbery with homicide, this Court rejected the claim of the appellants therein that passion and obfuscation should have been estimated in their favor, because the death of the victim therein took place on the occasion of a robbery, which, before its execution, had been planned and calmly meditated by the appellants. Thirdly, the maltreatment that appellants claim the victim to have committed against them occurred much earlier than the date of the commission of the crime. Provocation in order to be a mitigating circumstance must be sufficient and immediately preceding the act. We hold that the trial court did not commit any error in not appreciating the said mitigating circumstances in favor of the appellants.

Finally, the appellants claim that the trial court erred in considering the aggravating circumstances of nighttime, evident premeditation, and disregard of the respect due the offended party on account of his rank and age. Although the trial court correctly considered the aggravating circumstance of nocturnity because the same was purposely and deliberately sought by the appellants to facilitate the commission of the crime, nevertheless, We disagree with its conclusion that evident premeditation and disregard of the respect due the offended party were present in the commission of the crime. Evident premeditation is inherent in the crime of robbery. However, in the crime of robbery with homicide, if there is evident premeditation to kill besides stealing, it is considered as an aggravating circumstance. In other words, evident premeditation will only be aggravating in a complex crime of robbery with homicide if it is proved that the plan is not only to rob, but also to kill. In the case at bar, a perusal of the written statements of the appellants before the police investigators show that their original plan was only to rob, and that, they killed the deceased only when the latter refused to open the "kaha de yero", and fought with them. The trial court, therefore, erred in taking into consideration the aggravating circumstance of evident premeditation. The aggravating circumstance that the crime was committed with insult or in disregard of the respect due the offended party on account of his rank, age or sex may be taken into account only in crimes against persons or honor, when in the commission of the crime there is some insult or disrespect shown to rank, age, or sex. lt is not proper to consider this aggravating circumstance in crimes against property. Robbery with homicide is primarily a crime against property and not against persons. Homicide is a mere incident of the robbery, the latter being the main purpose and object of the criminal. The trial court erred in taking into account this aggravating circumstance. It results that in the commission of the crime, there is only generic aggravating circumstance, i.e., nighttime or nocturnity. Robbery with homicide is punished by reclusion perpetua to death. Since the aggravating circumstance of nighttime is offset by the mitigating circumstance of plea of guilty, the lesser penalty, which is reclusion perpetua, should be imposed upon the appellants. PEOPLE vs. PRIMO PARANA (March 31, 1937) Parana was convicted of murder for having killed Manuel Montinola qualified by treachery. He was penalized with reclusion perpetua. Prior to the killing, at 11 PM of May 18, M took part in a game of monte where P was designated to attend to the players. One Lamay, also a player, gave P the sum of P2 to buy beer. When P belatedly did the task, he and Lamay argued and they were admonished by M. As P disregarded said admonition, M slapped him and ordered him to leave the house. At about 7 o'clock in the morning of the crime, P purchased from the store of the Japanese Matzu Akisama a hunting knife, which is the same knife used by him in attacking M. On that same morning, at about seven thirty, P went to the house of Crispin Espacio for whom he used to work, to ask to wreak vengeance on somebody. On May 19, 1936, M was called out of the house of one Lapuos where he played a game as he was informed that his vehicle had arrived. Five minutes later M came downstairs and upon reaching the street, he turned towards the car which was waiting for him. At that moment the chauffeur Poblacion, who saw P behind M in the attitude of stabbing him with a dagger, shouted to warn him of the danger. M looked behind and saw P about to stab him. M defending himself, retreated until he fell on his back into a ditch. P mounted M and continued to stab him with the dagger. As the chauffeur had been making an alarm from the beginning, Liboro Montelibano, who was in a nearby drug store, about fifty meters away, went to said place and found P astride of M who was defending himself with his hands and feet from the appellant. Montelibano wrested the dagger from the hands of P who, finding himself disarmed, seized the revolver which M carried in his belt and tried to fire at the latter without succeeding in his attempt because Montelibano likewise wrested said weapon from him. After P and M had been separated, the

former still asked Montelibano for the weapon taken from him, but at that moment a policeman arrived and P was placed under arrest. M died later from his wounds. Issue Was murder qualified by treachery the proper charge? Held Yes. The appellant, in spite of having seen the deceased in the upper story of Lapuos' house, did not wish to attack the latter there undoubtedly to avoid his being defended by the many players who were with him. Instead, he waited for the deceased at a nearby store until the latter came down, and attack him while he had his back turned and could not see the appellant. All these, which were the beginning of the execution of the appellant's design to kill the deceased, constitute treachery inasmuch as they tended to avoid every risk to himself arising from the defense which the deceased might make. It matters not that the deceased accidentally turned around upon hearing Poblacion's warning and was able to defend himself from the blow which, at that moment, the appellant was about to give him with a dagger, because the treacherous character of a means employed in the aggression does not depend upon the result thereof but upon the means itself, in connection with the aggressor's purpose in employing it. Otherwise the crime of attempted or frustrated murder would not be punishable. For this reason the law does not require that the treacherous means insure the execution of the aggression, without risk to the person of the aggressor arising from the defense which the offended party might make, it being sufficient that it tend to this end. However, even considering the incident at the moment the deceased turned around and saw the appellant in the attitude of stabbing him, this court also finds therein the elements of treachery inasmuch as the aggression, under the circumstances, was so sudden that the deceased, who carried a revolver in his belt, had no chance to defend himself with it. Considering the incident at the moment the appellant mounted astride of the deceased, who defended himself only with his feet and hands without having been able to use the revolver carried by him in his belt, when said appellant, in such situation, inflicted the wound which caused the death of the deceased, he likewise acted with treachery on the ground that, under the circumstances, he was not running, as in fact he did not run, any risk arising from the defense which the deceased might make. And so, whether the beginning and the end of the aggression be considered singly, or the development thereof be considered as a whole, it is evident that the aggravating circumstance of treachery was present. The aggravating circumstance that the appellant is a recidivist must be taken into consideration. The mitigating circumstance that he had acted in the immediate vindication of a grave offense committed against him a few hours before, when he was slapped by the deceased in the presence of many persons, must likewise be taken into consideration. Although this offense, which engenders perturbation of mind, was not so immediate, this court is of the opinion that the influence thereof, by reason of its gravity and the circumstances under which it was inflicted, lasted until the moment the crime was committed. Lastly, the other mitigating circumstance that the appellant had voluntarily surrendered himself to the agents of the authorities must be considered. Dissent Villa-Real No treachery. P’s testimony: The accused-appellant, testifying on the aggression, said: "And when I went home, it was the precise moment when Manuel Montinola was coming down and we met on the way. I then called him saying: Please, I have to tell you something. I approached him and said: Maning, last night you slapped me and you still continue to talk against me; you do not pity me. It was you who took me to serve in that gambling house; if you take revenge upon me I

shall lose the job and there is no other person to whom I can apply for help. I would die of hunger. Have compassion on me because I have not offended you. I have done nothing please forgive me. You used to give me something whey you won in the game. By way of an answer he said to me: Go away, you are a fool, and immediately drew his revolver from his pocket, I held him by the wrist and he persisted in his efforts. I then jerked his hand and in the struggle he retreated until he fell into the ditch. I released him because he slipped from my grasp. He then pulled his revolver out of his pocket and I jumped into the ditch and seized his hand holding the revolver, pressing it against his breast. With my left hand I took the revolver and with my right I unsheathed the hunting knife, which I carried in my belt. I warned him saying: Do not fire your revolver seizing the barrel of the revolver with my left hand, twisting it with my right hand which carried the hunting knife. We struggled for the possession of the revolver and I succeeded in taking it away. I then left him and withdrew to a distance of about one braza from him while he got up and ran towards the car. Then Benito Abellar arrived and said to me: Give me your hunting knife and the revolver. Liboro Montelibano later arrived and said to me: Primo, do you know me? I answered: Yes, I know you. You are one of my friends. He told me: Turn over to me the revolver and the hunting knife." If, as the defense claims, before the fight a conversation was had between the deceased and the accused, during which the deceased called the accused a "fool" and drew his revolver, it cannot be stated that the accused employed means, methods and forms in the fight which tended directly and specially to insure the infliction of the wound, without risk to himself arising from the defense which the offended party might have made, on the ground that the deceased was not only the provoker but also the aggressor. But even granting, for the sake of argument that the accused was about to stab Manuel Montinola, while the latter's back was turned, but he did not succeed in his attempt due to Valentin Poblacion's shouts of warning, it can not be said that he acted with treachery in wounding the deceased while the latter lay upon his back in the ditch, inasmuch as he had been defending himself with his feet and hands and his defense was so effective that the accused succeeded in wounding him only slightly. The attempted treachery disappeared from the moment Manuel Montinola became aware of the danger from the knife of the accused, to which his person was exposed, and was able to evade it by retreating until he fell into a ditch from which, as a cat upon its back, he defended himself with his feet and hands. In order that treachery may exist, it is necessary that the means, methods, or forms employed in the commission of any of the crimes against persons be made use of simultaneously or in such a combination as to afford the offended party no defense that may endanger the person of the aggressor. If in the development of a fight commenced treacherously by the aggressor, the offended party comes upon a chance to defend himself and is wounded, it cannot be juridically stated that he was wounded treacherously. Dissent: J Concepcion Whatever may be the rule as to the continuity of an attack, whether treachery must precede it or may be considered if present at any time thereafter in the interval before its termination, I express the opinion that upon the facts of this case there was no treachery. Although the defendant was in the attitude of stabbing the deceased from behind, that was at most a mere attempt, ineffectual, and the wound was actually inflicted while the appellant and the deceased were struggling in the ditch and in the course of which the deceased made quite an effective defense. He should be guilty of simple homicide aggravated by recidivism. People v DELFIN MUIT (October 21, 1982) Muit was convicted with murder qualified by treachery and aggravated by evident premeditation for having killed Rodolfo Torrero on February 26, 1976, at around 3:00 o'clock. The victim and Muit’s wife Rosario were the leading characters in a barrio play. Moreover, Mrs. Muit was the Barangay Zone President while Torrero was the Zone Auditor. They were rumored to have an affair and this became known to Muit.

On the day of the killing, while T and his wife were passing by the house of M, the accused invited them to his house to take a rest. M was alone in his house then. M then confronted T why the latter always visits his wife even during nighttime and why he often invites her out. T replied that being the barangay zone auditor, he had to confer with the accused's wife on barangay matters as the latter was the barangay zone president. M then asked why T even gave food and money to M’s children if he had no bad intention at all on his wife. T’s wife answered that they did it out of pity because there were times when they would see M’s children in need of food and money. M angrily stood up and countered, "Why should you give when your husband had also a family to support?" To avoid any trouble, T likewise stood up and said, 'If that is the way we talked about this will end to nothing, so it is better that I should leave' and he proceeded to move out of the house. When T was already outside and while walking along the pathway, M followed him and on reaching the door the accused shouted, "Wait because we have not yet finished". At that instant, M raised his left hand towards T and with his right hand, he pulled out his .45 caliber pistol and aimed it at T. Angrily, he fired his gun at T who was just 3½ meters away, hitting the latter at the lower left side below the nape. Upon hearing the gunshot, witness Gubatan immediately grabbed and held M from behind with an embrace, and said, "Manoy Delfin, why are you like that?" But as soon as Gubatan embraced M from behind, a second shot was fired, this time hitting the elevated left hand of T, with the bullet penetrating through the breast. The wife of T, who was shocked by the first shot thereupon rushed towards her fallen husband. But M on seeing Mrs. T rushed towards the deceased, aimed his gun at her. Fortunately, witness Gubatan quickly grabbed the right forearm of the accused that held the gun and jerked it upward so that the third shot was fired towards the sky. Shortly thereafter, Torrero died. Held The accused's plea of self-defense and accident is unavailing for being inconsistent with the environmental milieu of the case. Having invoked self-defense, he has the burden of proving it, and must establish the same by clear, satisfactory and convincing evidence. The defense submission is that the accused had no intent to kill and that he drew his gun in selfdefense and to disarm the victim of his bolo; that the first short, which he had deliberately fired, hit the victim on his left arm; that the fatal second shot which hit the victim on his chest, was fired accidentally as a direct consequence of Gubatan's embracing the accused from behind; while the third shot hit the victim at the nape of the neck when the victim was already prostrate on the ground. That was not the sequence of the occurrence as established by the evidence. The victim did not try to hack the accused with his (victim's) bolo that hung from his right shoulder. There was no reason for him to physically harm the accused having already decided to leave the accused's house in order to avoid trouble. He was already out of the front yard of the accused's house, about four meters more or less from its "lean to," when he was shot at. The fact that the bolo was found lying on the victim's side out of its scabbard is no proof that the victim had used it. It must have dropped as the accuse(. fell to the ground after having been hit. What is established by the evidence is that the victim was hit by a bullet at the nape or back portion of the neck at the first shot. The victim spinned around from left to right involuntarily, at which point he was hit by the second shot on the left arm and on his chest. The third shot did not hit its mark as it was deflected upward by Gubatan who jerked the accused's hand skyward. Clearly, therefore, the accused had treacherously shot the victim at the back thereby disproving the element of unlawful aggression on the victim's part, which the defense seeks to establish as an essential element of self-defense. Appellant's submission that the fatal second shot was unintentional and was the direct consequence of the act of Gubatan in embracing him from behind is also untenable. As demonstrated by Gubatan during the trial, Gubatan had embraced appellant around the chest in such a way that appellant was still free to use his right hand which was holding the gun. Treachery has been undeniably proven. The accused was armed with a 45Treachery has been undeniably proven. The accused was armed with a .45 caliber pistol and made full use of it. The

victim was first hit at the nape or back portion of the neck He was fired at suddenly and unexpectedly, devoid of any opportunity to defend himself or to retaliate. COURT Q When he was shot at, was the back of your husband towards Mr. Muit or Mr. Muit was facing your husband or your husband facing Mr. Muit? A His back was towards Mr. Muit. Q In other words, he was shot at the back? A Yes, sir. There should be no question then that the crime committed is Murder with the qualifying aggravating circumstance of treachery. We agree with the defense, however, that evident premeditation as a generic aggravating circumstance, has not been adequately shown. To properly appreciate that circumstance, it is necessary to establish: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the culprit has clung to this determination; and (3) a sufficient lapse of time between the determination and the execution to allow him to reflect. 19 As there is dearth of evidence as to when appellant first conceived of killing the deceased and that he was afforded sufficient time to reflect on the consequences of his contemplated crime before its final execution, the circumstance of evident premeditation cannot be appreciated. On the other side of the coin, to be appreciated in favor of the accused are the mitigating circumstances of voluntary surrender, and passion and obfuscation. There can be no question that the accused was driven strongly by jealousy because of the rumors regarding the amorous relationship between his wife and the victim. The feeling of resentment resulting from rivalry in amorous relations with a woman is a powerful stimulant to jealousy and is sufficient to produce loss of reason and self-control. In other words, it is a powerful instigator of jealousy and prone to produce anger and obfuscation. Considering the two mitigating circumstances present, without any aggravating circumstances to offset them, the penalty next lower to that prescribed is imposable, or, prision mayor in its maximum period to reclusion temporal in its medium period. People v EDGARDO AQUINO (January 20, 2000) Aquino was convicted of the murder of Esmeralda Lampera. In the morning of January 19, 1996, Roselyn's mother, Esmeralda, was in their house taking care of Roselyn's younger sister who was sick at the time. Her younger brother, on the other hand, was playing on the ground near their house. Aquino arrived, looking for their father. Both Roselyn and her mother informed Edgardo that Valerio, Roselyn's father, was in Olongapo. Unsatisfied with their answer, Edgardo peeped in their house and when he did not see Valerio, pulled out his knife. Initially, he tried to stab Roselyn's younger brother. When Roselyn and her mother saw this, they rushed towards the younger boy in an attempt to protect him. When Edgardo saw their reaction, Edgardo stepped inside their house, eager to vent his ire on Roselyn, intending to stab her. Roselyn's mother pulled her aside, shouting. Edgardo went for her mother who tried valiantly to evade his thrust as she was then carrying Roselyn's sick younger sister. Roselyn saw Edgardo repeatedly stab her mother in the latter's stomach and chest areas. Out of fear, Roselyn managed to destroy their nipa wall and jumped out of their house. At about the same time also, Benjamin Costimiano, a purok leader, was in his house when he heard some kind of shouting or commotion. Being a purok leader, he went to the place of incident and saw the victim. He heard the people there say that the culprit was Edgardo Aquino. He went after Edgardo and was able to catch up with him in the house of one Francisco Franco. Benjamin asked Edgardo (who was still armed with a knife at that time) to put down the knife and the latter gave him the knife. Benjamin described the knife used as a double-bladed one, and when it was handed to him, the handle still had some blood on it. The RTC convicted him of the offense.

Issues Was there treachery? No. For treachery to qualify the killing to murder, the following requisites must concur: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (2) the deliberate and conscious adoption of the means of execution. In this case, the victim, Esmeralda, was forewarned of the impending attack on her, since it was preceded by EDGARDO's attempts to attack her son and daughter. It cannot be said that she was in no position to defend herself; for, in fact, she succeeded in repelling appellant's aggression against her children. When EDGARDO turned to her, she "tried to evade the thrust" causing her 6-year-old child whom she was carrying to be thrown away. Furthermore, there is no sufficient evidence that the appellant deliberately and consciously adopted the means of execution employed by him. What is apparent is that the killing was done impulsively or on the spur of the moment. Is the mitigating circumstance of passion or obfuscation extant in this case? No. Anent EDGARDO's claim of the mitigating circumstance of passion or obfuscation, the same is bereft of merit because his acts did not result from an impulse arising from lawful sentiments but from a spirit of lawlessness. Was he temporarily insane when he committed the crime? No. As the OSG aptly stated, "temporary insanity" is not recognized in this jurisdiction. Insanity, under Article 12 of the Revised Penal Code, connotes that the accused must have been deprived completely of reason and freedom of the will at the time of the commission of the crime, or that he must have acted without the least discernment. Mere abnormality of the accused' mental faculties does not exclude imputability. Moreover, EDGARDO was unable to substantiate his claim. The law presumes every man to be sane. If the accused interposes the defense of mental incapacity, the burden of establishing such fact rests upon him. Insanity must be proved by clear and positive evidence. Finally, EDGARDO did not raise this argument below, but only now, obviously as a delayed afterthought. Was intoxication mitigating in this case? No. We disagree with the trial court in appreciating in appellant's favor the mitigating circumstance of intoxication. EDGARDO declared that he drank liquor on the day of the incident in question, and the trial court held that his intoxication was corroborated by Roselyn's testimony that EDGARDO's eyes were "red" when she saw him. For intoxication to be mitigating, the following conditions must be present: (1) the same is not habitual or is not subsequent to the plan of the commission of a felony; otherwise, it is aggravating if it is habitual and intentional; and (2) the consumption of alcoholic drinks was in such quantity as to blur the accused's reason and deprive him of a certain degree of control. In this case, EDGARDO was unable to prove both requisites. He is credited, however, with the mitigating circumstance of voluntary surrender. EDGARDO should be held guilty of homicide only, which is punishable by reclusion temporal under Article 249 of the Revised Penal Code. The generic aggravating circumstance of dwelling having been offset by the mitigating circumstance of voluntary surrender and there being no other modifying circumstance, the imposable penalty is reclusion temporal in its medium period. People vs. JAIME JOSE Y GOMEZ, BASILIO PINEDA, JR., alias "BOY," EDGARDO AQUINO Y PAYUMO and ROGELIO CAÑAL Y SEVILLA (February 6, 1971) The appellants herein were all charged of the crime of Forcible Abduction with rape. They were all found guilty and were sentenced to death. June 26, 1967 4:30 o'clock – Magdalena de la Riva whilst en route home was intercepted by the group of appellants. She was abducted by them: Jaime Jose, Edgardo Aquino, Basilio Pineda and

Rogelio Canal. They brought Maggie to Swanky Hotel. They threatened to shoot her with a Thomson or pour acid on her face. Jose, Aquino, Pineda and Canal took turns raping Maggie. They decided to leave her on a spot in front of the Free Press Building not far from Epifanio de los Santos Avenue near Channel 5 to make it appear, according to them, that the complainant had just come from the studio. They threatened that she would be doused with acid if she would inform anyone of the incident. When she was inside the cab and alone with the driver, Miguel F. Campos, she broke down and cried. She kept asking the driver if a car was following them; and each time the driver answered her in the negative When she reached home she informed her mother of the incident. Appellant Canal and Pineda executed swore to separate statements on the day of their arrest. Cañal confirmed the information previously given by Jose that the four of them waited for Miss De la Riva to come down from the ABS Studio, and that they had planned to abduct and rape her. Cañal admitted that all four of them participated in the commission of the crime, but he would make it appear that insofar as he was concerned the complainant yielded her body to him on condition that he would release her. Pineda executed a statement stating that he and his other three companions wept to the ABS Studio, and that, on learning that Miss De la Riva was there, they made plans to wait for her and to follow her. He admitted that his group followed her car and snatched her and took her to the Swanky Hotel. He would make it appear, however, that the complainant voluntarily acceded to having sexual intercourse with him. Upon arraignment, Jose, Aquino, Canal pleaded not guilty while Basilio Pineda, Jr. pleaded guilty to the charge imputed. Issues 1. WON the accused were motivated by lewd designs. YES

YES. Jose, Aquino and Cañal deny having had anything to do with the abduction of Miss De la Riva. They point to Pineda (who entered a plea of guilty) as the sole author thereof, but they generously contend that even as to him the act was purged at any taint of criminality by the complainant’s subsequent consent to perform a striptease show for a fee, a circumstance which, it is claimed, negated the existence of the element of lewd design. This testimony of Ms. De la Riva, whose evidentiary weight has not in the least been overthrown by the defense, more than suffices to establish the crimes charged in the amended complaint. The claims of the accused that they were not motivated by lewd designs must be rejected as absolutely without factual basis. 2. WON the accused rape Ms. de la Riva.

YES. Jose, Aquino and Canal contend that the absence of semen in the complainant’s vagina disproves the fact of rape. Dr. Brion stated that semen is not usually found in the vagina after three days from the last intercourse, especially if the subject has douched herself within that period The absence of spermatozoa does not disprove the consummation of rape, the important consideration being, not the emission of semen, but penetration. When the victim got home she immediately told her mother that the four raped her. The statement was made by the complainant to her mother who, in cases of this nature was the most logical person in whom a daughter would confide the truth. 3. WON the extrajudicial statements is admissible.

YES. The accused contends that secured from them by force and intimidation, and that the incriminating details therein were supplied by the police investigators.

The statements were given in the presence of several people & subscribed & sworn to before the City Fiscal of QC, to whom neither of the aforesaid appellants intimated the use of inordinate methods by the police. They are replete w/ details which could hardly be known to the police; & although it is suggested that the authorities could have secured such details from their various informers, no evidence at all was presented to establish the truth of such allegation. Even disregarding the in-custody statements of Jose and Canal, We find that the mass of evidence for the prosecution on record will suffice to secure the conviction of the two. 4. WON there was a mistrial for Pineda.

NO. Pineda contends that there was a mistrial resulting in gross miscarriage of justice. He contends that because the charge against him and his co-appellants is a capital offense & the amended complaint cited aggravating circumstances, which, if proved, would raise the penalty to death, it was the duty of the court to insist on his presence during all stages of the trial. The court held that plea of guilty is mitigating, at the same time it constitutes an admission of all the material facts alleged in the information, including the aggravating circumstances, and it matters not that the offense is capital, for the admission (plea of guilty) covers both the crime and its attendant circumstances qualifying and/or aggravating the crime. Because of the aforesaid legal effect of Pineda's plea of guilty, it was not incumbent upon the trial court to receive his evidence, much less to require his presence in court. It would be different had appellant Pineda requested the court to allow him to prove mitigating circumstances, for then it would be the better part of discretion on the part of the trial court to grant his request. As regards, therefore, the complex crime of forcible abduction with rape, the first of the crimes committed, the latter is definitely the more serious; hence, pursuant the provision of Art. 48 of the Revised Penal Code, the penalty prescribed shall be imposed in its maximum period. Consequently, the appellants should suffer the extreme penalty of death. In this regard, there is hardly any necessity to consider the attendance of aggravating circumstances, for the same would not alter the nature of the penalty to be imposed. 5. WON the enormous publicity of the case affected the decision of the trial court.

NO. The appellants took notice of the enormous publicity that attended the case from the start of investigation to the trial. Jose himself admits in his brief that the Trial Judge “had not been influenced by adverse and unfair comments of the press, unmindful of the rights of the accused to a presumption of innocence and to fair trial.” 6. WON aggravating circumstances were present.

YES. Nighttime, appellants having purposely sought such circumstance to facilitate the commission of these crimes Abuse of superior strength, the crime having been committed by the four appellants in conspiracy with one another. Ignominy, since the appellants in ordering the complainant to exhibit to them her complete nakedness for about ten minutes, before raping her, brought about a circumstance which tended to make the effects of the crime more humiliating use of a motor vehicle. 7. WON the imposition of four death penalty is valid.

YES. The Supreme Court held that in view of the existence of conspiracy among the accused and of its finding regards the nature and number of crimes committed, as well as the presence of aggravating circumstances, four death penalties can be imposed. People v EFREN DULOS (September 26, 1994) Dulos was charged and convicted with the murder of Apolinario Tamse on about March 15, 1987.

Susan Almazar and Alice Tipudan are both professional entertainers. Some person approached and informed them that Efren Dulos, had some male guests that wanted entertainment. Both parties agreed to a charge of P100.00 each as fee for their services. Susan decided to check in with one of Dulos’ guests for an additional fee of P500.00 When she received the money, she changed her mind, thus, spawning a fight with her customer. When Alice learned of the disagreement, she requested MP Gara to intervene and buy peace. Susan came down to the lobby of the Imperial Hotel to meet her boyfriend, Apolinario "Paul" Tamse who was waiting for her. Upon hearing about the reneged deal, the irate Dulos confronted Susan and Paul. Paul apologized to Dulos saying that his girlfriend does not accept intimate dates. Then, they, together with Alice proceeded to go home. Dulos, angered by the aforesaid incident, quickly followed the group. Upon noticing Dulos who then drew his .45 caliber pistol, Alice shouted a warning of the threat to Susan and Paul, who were walking ahead. They tried to run but they were overtaken by the Dulos. He demanded the return of his money. Susan handed the P100.00 to him, at the same time shielding Paul with her body. She denied having received P500.00 from Dulos’ guest lest her boyfriend would find out that she agreed to check in with a customer. Susan pleaded with the latter's gun still pointed towards them, she tried to grapple with him for possession of the same but she was violently pushed. At this juncture, Paul pleaded for mercy by kneeling down and raising both his hands up. His plea fell on deaf ears as Dulos fired his gun hitting Paul on the left breast. Paul fell face down to the ground. Dulos then fired another shot at Paul's back, killing him on the spot. Issues/Ruling 1. Dulos contends that the trial court did not acquired jurisdiction to try him. He claims that as a member of the 12th MSSU AFP (Military Southern Support Command, Armed Forces of the Philippines), he should be tried by the military courts pursuant to Presidential Decree No. 1850, and not by civil courts. While it is true that the foregoing provision vests exclusively upon courts-martial trial of criminal offenses committed by members of the Armed Forces of the Philippines, whether or not done in the actual performance of their official duties, accused-appellant’s case falls under the exception contained in the proviso of the section which allows civil courts to assume jurisdiction over criminal offenses and over the person of the accused where the latter was discharged from active military service without military jurisdiction having duly attached on him before his separation. In the case at bench, accused-appellant himself concedes that he was readily discharged from active military service as soon as he was made to answer for the criminal offense without any initiative on the part of the military to try and prosecute him for the offense charged. Verily, it was the civil court which first acquired jurisdiction over his person. 2. Accused-appellant disputes the trial court finding that the killing was committed in a treacherous manner. He maintains that the horizontal trajectory of the bullet wound and the fact the victim was facing him when the gun was discharged, negate the existence of treachery. There is treachery when the victim is shot, albeit frontally, with his hands raised to show that he would not fight, or because of fright, or to try to ward off the shots that were to come. This circumstance constitutes treachery because the victim was clearly in a defenseless position. In the case at bench, the prosecution eyewitnesses Susan Almazar and Alice Tipudan, categorically testified that when the accused-appellant fired his first shot, Paul Tamse was on his knees with his hands up pleading for mercy. Evidently, the victim was in a defenseless position when accused-appellant shot him. While the victim was already lying prostrate on the ground in prone position, accused-appellant pumped one more bullet on his back. This constituted teachery and qualified the offense to murder. 3. Is voluntary surrender mitigating in this case? No. The generic mitigating circumstance of voluntary surrender cannot be appreciated in accused-appellant's favor. In order that voluntary surrender may be appreciated, it is necessary

that "it must be spontaneous and made in such manner that it shows the intent of the accused to surrender unconditionally to the authorities, either because he acknowledges his guilt or because he wishes to save them the trouble and expenses necessarily incurred in his search and capture." Here, there was no conscious effort on the part of accused-appellant to voluntarily surrender to the military authorities when he went to Camp Siongco, Dinaig, Maguindanao after the fate incident. As he himself admitted in his testimony, he was not placed under custody by the military authorities as he was free to roam around as he pleased. He declared: Q. And no one was guarding you? In other words you can get in and out at the BOQ (Bachelor's Officers Quarters) at your will? A. Yes, sir. Q. You could even leave Camp Siongco at your will? A. Yes, sir. Verily, he went to the said camp to take up residence, not to voluntarily surrender to the authorities. Likewise, his claim that he surrendered his 0.45 caliber pistol to a certain Major Bermones, one of his guests at the Old Imperial Hotel, is not substantiated by evidence. Assuming that the gun was surrendered, that fact cannot be appreciated in his favor. This Court in the case of People v. Palo held that where an accused merely surrendering his person to the authorities, there is no voluntary surrender. PEOPLE vs.CIC LORETO GAPASIN et al (April 25, 1994) Gapasin was found guilty of murder for having killed one Jerry Calpito, qualified by treachery, with the attendance of the mitigating circumstance of voluntary surrender, and the aggravating circumstances of taking advantage of public position and evident premeditation. According to prosecution witness Alberto Carrido, he and Rodrigo Ballad left the house of Enteng Teppang at about 2 PM of Oct 6 ’79 after a “pamisa” for Teppang’s deceased father. Jerry Calpito followed them. When they reached the point of the road facing the house of Nick Saludares, Calpito was shot by appellant C1C Loreto Gapasin with an armalite rifle. When Calpito fell on the ground, appellant fired more shots at him. Thereafter, accused Amor Saludares planted a .22 caliber revolver on the left hand of Calpito. Faustina Calpito ran to help her fallen husband. Calpito died due to 4 bullet wounds. The body of Calpito was autopsied by Dr. Bernardo Layugan, who found that the victim sustained four bullet wounds: (1) on the right lateral side of the arm fracturing the humerus; (2) on the right lateral side of the thorax between the 7th and 8th ribs with exit wound at the sternum; (3) on the left side of the thorax, anterior, between the 5th and 6th ribs; and (4) on the right fronto-parietal portion of the head "severing the skull and brain tissues." Dr. Layugan opined that the victim was in a standing position when he was shot by someone positioned at his right. Appellant invoked self-defense saying that he was issued a mission order to investigate a report re the presence of unidentified armed men in Barrio San Jose, Isabela. He was informed that Jerry Calpito had an unlicensed firearm. He positioned himself in the yard of Nicanor Saludares at the night of the “pamisa” only to see Calpito. However, when Calpito was about 3 meters away from him, Gapasin asked what was bulging in his waist. Calpito took a step backward, drew his firearm from the waist and fired twice at appellant. He missed because appellant dropped to the ground simultaneously firing his armalite. Issues/Held 1. Is self-defense tenable? No. Appellant's claim of self-defense is belied by the finding of the trial court that the victim was shot by someone who was standing on his right side. Appellant's version that he was in front of

the victim when the latter fired a shot at him and that he retaliated while dropping on the ground, crumbles in the face of the physical evidence that the victim sustained two gunshot wounds which entered the right side of his body and a gunshot wound on the right side of his head. The nature and number of wounds inflicted by the appellant disprove the plea of selfdefense Had appellant and Nicanor Saludares, Sr. not intended to harm the victim, they could have simply apprehended him. Or, having verified that Calpito possessed an unlicensed firearm, appellant could have reported the matter to his superiors so that warrants for Calpito's arrest and the seizure of his unlicensed firearm could have been obtained. 2. Is treachery extant in this case? Yes. Appellant contended that the crime committed is homicide. The trial court correctly ruled that the crime of murder under Article 248 of the Revised Penal Code was indeed committed. Treachery attended the commission of the crime. The two conditions to constitute treachery were present in the case at bench, to wit: (a) the employment of means of execution that gives the person who is attacked no opportunity to defend himself or to retaliate; and (b) the means of execution were deliberately or consciously adopted Appellant deliberately executed the act in such a way that his quarry was unaware and helpless. This can be gleaned from his act of waiting for the victim behind the hollow-block fence of Nicanor Saludares and shooting the victim from his right side. What are the other circumstances availing in this case? a. Evident premeditation was indubitably proven by the evidence showing that the execution of the criminal case was preceded by cool thought and reflection. Appellant's resolution to carry out the criminal intent during the space of time sufficient to arrive at a clear judgment was shown. In view of the presence of treachery which qualified the killing as murder, the evident premeditation should be considered only as a generic aggravating circumstance.

b. The trial court correctly ruled out ignominy on the strength of the autopsy conducted by the doctor who failed to find any other injuries such as bruises and contusions which may indicate that the victim was kicked by his assailants. It also correctly held that treachery absorbed abuse of superior strength.

c. The trial court properly appreciated taking advantage of public position as an aggravating circumstance. Appellant, a member of the Philippine Constabulary, committed the crime with an armalite which was issued to him when he received the mission order. d. Voluntary surrender may be considered in appellant's favor but this is offset by the aggravating circumstance of taking advantage of public position. Therefore, only the generic aggravating circumstance of evident premeditation may be appreciated against appellant. As such, the correct penalty would have been death in accordance with Articles 248 and 64(3) of the Revised Penal Code Were it not for the fact that such penalty is constitutionally abhorrent. Hence, the proper penalty is reclusion perpetua. People vs RODOLFO VILLA April 27, 2000 Villa, a CAFGU member, was charged and convicted of 4 counts of murder and was sentenced to RP for each count. 22 June 1991; while Dionito Fernandez was cutting grass, Villa suddenly shot him from behind with his M-1 Garand rifle. D’s children Ronald Fernandez and Sheila Fernandez came to their father’s aid and were also shot. Samuel Eclevia, a neighbor, wrestled with Villa for the gun but

was also shot. He pleaded not guilty but he later changed his plea to guilty to prove self defense. His lawyer moved to have him confined in a mental institution. 6 months later, he was released. He now raised insanity as a defense. This was disregarded by the trial court. Issues.

1. WON accused was insane when he killed the victims 2. WON the aggravating circumstance of "taking advantage of his public position" is present.
Held 1. Not insane. The following circumstances clearly and unmistakably negate a complete absence of intelligence on his part: (a) Immediately after he killed the victims he thought of surrendering to the PC Detachment in Olongapo City; (b) He showed remorse during his confinement at the Mental Hospital; and, (c) He was able to give a Sworn Statement before the Prosecutor’s Office in Olongapo City immediately after the commission of the crimes narrating his version of the incident. These are hardly the acts of a person with a sick mind. In People v. Ambalwe held: "The fact that immediately after the incident (accused) thought of surrendering to the law-enforcement authorities is incontestable proof that he knew that what he had done was wrong and that he was going to be punished for it." Similarly, a feeling of remorse is inconsistent with insanity, as it is a clear indication that he was conscious of his acts, he acknowledged his guilt and was sorry for them. He said in his statement:

Na humigit kumulang ng ika-pito ng umaga, nagbibihis pa ako ng uniform para mag-duty ng marinig ko si Mr. Dionito Fernandez na nagsabi ng ‘ninakaw ng gagong CAFGU ang mga manok ko kagabi. Pagkarinig ko noon, ako ay lumabas para tanungin kung sinong CAFGU ang nagnakaw ng kanyang manok, at sumagot siya ng ‘anong pakialam mo,’ tinanong ko siyang muli na bakit nakarinig ako ng CAFGU, sinong CAFGU iyon, ako lang naman ang CAFGU rito sa atin ah.’ Sumagot siya ng ‘ Hoy putang ina mo, hindi ako natatakot sa baril mo, walang baril-baril sa akin gago ," sabay dampot niya sa itak at paharap sa akin, nabigla ako at nag-alangan na baka ibato o itaga niya sa akin ang hawak niyang itak at nakalabit ko ang gatilyo ng aking baril at siya ay tinamaan

We find it incredible for a supposedly deranged person to remember vividly and give such a lucid and detailed account of the carnage, from the moment he shot his first victim up to the time he surrendered to the authorities. Quite noticeable also, attempts to justify his criminal acts pervade the Sworn Statement which only a perfectly sane and intelligent person, not a demented one, would be capable of making.

Moreover, if we were to follow accused-appellant’s narration of the incident in his Sworn Statement, it will appear that he slaughtered his victims in a fit of rage after Dionito Fernandez, his first victim, allegedly accused him of stealing chickens and cursed him saying, "p - t - g ina mo ," and, "gago." These negate insanity. There is a vast difference between a genuinely insane person and one who has worked himself up into such a frenzy of anger that he fails to use reason or good judgment in what he does. A man sometimes does crazy things when enraged but it does not necessarily and conclusively prove that he is insane.

2. We do not agree that the aggravating circumstance of "taking advantage of his public position" as a CAFGU member should be considered against accused-appellant. The mere fact that he was a member of the CAFGU and was issued an M-1 Garand rifle is not sufficient to establish that he misused his public position in the commission of the crimes.

On the other hand, the trial court properly credited in favor of accused-appellant the mitigating circumstance of "plea of guilty." People v FLORO RODIL (November 20, 1981) Floro Rodil was found guilty of murdering Lt. Guillermo Masana of the Philippine Constabulary. Version of the prosecutor April 24, 1971 around 1:00 pm – PC Lt. Masana together with PC soldier Fidel, Philippine Coast Guard servicem Ligsa and Patrolman Mojica was having lunch inside a restaurant in front of the Indang Market. While they were eating, their attention was called by Rodil who was outside blowing his whistle. Masana, in civilian clothing, accompanied by Fidel went outside and asked Rodil, after identifying himself as a PC officer, whether the gun that was tucked under his shirt had a license Instead if answering Rodil attempted to draw his gun but Fidel grabbed the gun and gave it to Masana. The three went inside the restaurant and Masana wrote a receipt for the gun and he asked Rodil to sign it but the appellant refused to do so. Masana refused to return the gun to Rodil and as Masana was about to stand up Rodil pulled out his dagger and stabbed Masana several times on the chest and stomach causing his death after several hours. Masana’s companions sought to aid the former but Chief of Police Primo Panaligan of Indang, Cavite, who happened to be taking his lunch in the same restaurant, was quicker than all of them, immediately embraced and/or grabbed the accused from behind, and thereafter wrested the dagger from him. Immediately thereafter, the Chief of Police brought the accused to the municipal building of Indang, Cavite. The companions of Masana took the accused into custody. Version of the defense Rodil is claiming self-defense Rodil together with his wife were eating inside the restaurant and while they were waiting for their food Masana approached and inquired whether he was a member of the Anti-smuggling Unit. Rodil answered in the affirmative and Masana invited him to join him in his table. Rodil accepted the invitation. During their conversation Masana asked for identification of Rodil and the latter showed his ID. Masana told Rodil that his ID was fake and Rodil insisted that it was genuine. Masana was demanding that Rodil surrender his ID to him but Rodil refused. When Rodil refused Masana pulled out his gun and hit the accused on the head with its handle for 2 times and as a result blood gushed out from his head and face. Rodil pulled out his dagger and stabbed Masana and then ran out of the restaurant. Rodil went to the direction of the Municipal building where he intended to surrender. On his was he met the Chief of Police and he was accompanied to the municipal building and was given first aid treatment. Issues 1. WON self defense is tenable. Accused contends that it was Masana who committed unlawful aggression when the latter hit him on his head with the handle of his gun. No. WE cannot perceive how this refusal of the accused could have provoked or enraged the deceased to the extent of initiating the aggression by drawing his pistol and hitting the accused with its butt, knowing that the accused was no longer armed after the latter’s gun had earlier been taken away from him. Besides, an agent of authority, like the deceased, ordinarily is not authorized to use force, except in an extreme case when he is attacked, or subject to active resistance, and finds no other way to comply with his duty or cause himself to be obeyed by the offender. Furthermore, the records reveal an unrebutted fact to the effect that the deceased was unarmed when the incident happened, he being then on leave.

It was the accused who had every reason to be resentful of the deceased and to be enraged after the deceased refused to heed his plea that his gun be returned him; because he might be prosecuted for illegal possession of firearms. The accused further claims that he was hit twice by the deceased before he parried the third blow. This claim is belied by the record. The record reveals that the deceased was a righthanded person. The deceased and the accused were facing each other. Indeed, if the protagonists were facing each other, and it appearing that they were both right- handed the blow given by one, if not parried by the other, would perforce land on the left, and not on the right, side of the body of the recipient of the blow. The fact of the matter is that the victim parried with both hands the thrust of the appellant with such force that appellant bumped his head on the edge of the table causing blood to ooze from the resulting injury on his head. 2. WON the crime was murder. (No.) The Sol Gen argues that the crime committed was murder because “it was established by the prosecution that during the stabbing incident, appellant suddenly and without giving the victim a chance to defend himself, stabbed the latter several times with a dagger, inflicting upon mortal wounds on the chest and stomach. Such a sudden and unexpected attack with a deadly weapon on an unarmed and unsuspecting victim, which made it impossible for the latter to flee or defend himself before the fatal blow is delivered, is alevosia or treachery The assailant and the victim were indeed face to face when the stabbing took place. As such the attack was not treacherous because the victim was able to ward off the same with his hand. As a matter of fact, the force he used in warding off the attack was so strong that the accused bumped his head on a table nearby, causing injuries to him which necessitated medical treatment. In short, the attack on the victim was made on the spur of the moment. The suddenness of the attack does not by itself suffice to support a finding of treachery The record failed to show that the accused made any preparation to kill his victim so as to insure the commission of the crime, making it at the same time possible or hard for the victim to defend himself or retaliate Neither does it show that the accused employed means directly and specially tending to insure the killing without risk to himself. On the contrary, it shows that the accused was easily within striking distance of his three companions, two of whom were police officers. Furthermore, there was an altercation between the accused and the victim about the confiscation by the latter of the gun belonging to the former, and at the moment when the victim was about to stand up, the accused drew a knife from his pocket and with it stabbed the victim in the chest. Clearly, therefore, the impelling motive for the attack by appellant on his victim was the latter’s performance of official duty, which the former resented. This kind of evidence does not clearly show the presence of treachery in the commission of the crime. 3. Should the crime be “Complex crime of homicide with assault upon an agent of a person in authority”? No. He cannot be convicted of that for the simple reason that the information does not allege the fact that the accused then knew that, before or at the time of the assault, the victim was an agent of a person in authority. The information simply alleges that appellant did attack and stab PC Lt. Guillermo Masana while the latter was in the performance of his official duties, …” Such an allegation cannot be an adequate substitute for the essential averment to justify a conviction of the complex crime, which necessarily requires the imposition of the maximum period of the penalty prescribed for the graver offense. Like a qualifying circumstance, such knowledge must be expressly and specifically averred in the information. Applying this principle, the attack on the victim, who was known to the appellant as a peace officer, could be considered only as aggravating, being “in contempt or with insult to the public authorities”

4. Should the aggravating circumstance of disregard of rank should be appreciated? Yes, because it is obvious that the victim identified himself as a PC officer to the accused who is merely a member of the Anti-Smuggling Unit and therefore inferior both in rank and social status to the victim. The term “rank” should be given its plain, ordinary meaning, and as such, refers to a high social position or standing as a grade in the armed; or to a graded official standing or social position or station; or to the order or place in which said officers are placed in the army and navy in relation to others; or to the designation or title of distinction conferred upon an officer in order to fix his relative position in reference to other officers in matters of privileges, precedence, and sometimes of command or by which to determine his pay and emoluments as in the case of army staff officers or to a grade or official standing, relative position in civil or social life, or in any scale of comparison, status, grade, including its grade, status or scale of comparison within a position. As explained by Mr. Justice Mariano Albert, then of the Court of Appeals, those “generally considered of high station in life, on account of their rank (as well as age or sex), deserve to be respected. Therefore, whenever there is a difference in social condition between the offender and the offended party, this aggravating circumstance sometimes is present.” As explained by Mr. Justice Mariano Albert, then of the Court of Appeals, those “generally considered of high station in life, on account of their rank (as well as age or sex), deserve to be respected. Therefore, whenever there is a difference in social condition between the offender and the offended party, this aggravating circumstance sometimes is present” 5. The aggravating circumstance of contempt of, or insult to, public authority under paragraph 2 of Article 14 of the Revised Penal Code can likewise be appreciated in the case at bar. The evidence of the prosecution clearly established that Chief of Police Primo Panaligan of Indang was present as he was taking his lunch in the same restaurant when the incident occurred. As a matter of fact, the said chief of police was the one who embraced or grabbed the accused from behind, wrested the dagger from him and thereafter brought him to the municipal building of Indang. And appellant admittedly knew him even then as the town chief of police, although he now claims that he went to the municipal building to surrender to the chief of police who was not allegedly in the restaurant during the incident. Under the decided cases, a municipal mayor, barrio captain, barrio lieutenant or barangay captain is a person in authority or a public authority. Even a public school teacher is now considered a person in authority Ruling HOMICIDE AGGRAVATED BY CONTEMPT FOR OR INSULT TO A PUBLIC AUTHORITY OR DISREGARD OF THE RESPECT DUE THE OFFENDED PARTY ON ACCOUNT OF HIS RANK MELENCIO-HERRERA, J., dissenting: I believe that neither the aggravating circumstance of contempt of, or insult to the public authorities under Article 14, par. 2 of the Revised Penal Code, nor that of insult or disregard of the respect due to the offended party on account of his rank under Article 14, par. 3 of the same Code, is applicable to the present case. 1. For the circumstance of contempt of, or with insult to, public authorities to be considered aggravating, it is essential (a) that the crime is committed in the presence of a public authority, not a mere agent of the authorities and (b) that the public authority is engaged in the exercise of his functions and is not the person against whom the crime is committed nor the one injured by the commission of the offense. In this case, Lt. Guillermo Masana of the Philippine Constabulary is not a public authority nor a person in authority as these terms are defined by Article 152, par. 1 of the Revised Penal Code

for he is not directly vested with jurisdiction, that is, power or authority to govern and execute the laws or to hear and decide a cause; he is a mere agent of a person in authority as defined by Article 152, par. 2 of the Revised Penal Code, he being a member of the Philippine Constabulary which is a government military agency in charge of the maintenance of public order and the protection and security of fife and property. In fact, the Decision itself calls him an agent of a person in authority And even if Lt. Masana were a person in authority, this aggravating circumstance cannot be taken into account because it is he himself who is the offended party Neither can the second circumstance, that of disregard of the respect due to rank, be made to apply. It is not the existence alone of rank of the offended party that determines the presence of this aggravating circumstance. There must be a difference in the social condition of the offender and the offended party. Where the offender and the offended party are of the same rank, this aggravating circumstance does not apply. The provision contemplates such a different in rank as that of a teacher where the offender is a pupil, etc. In the case at bar, the difference in the social condition and rank of the victim, a Lieutenant in the Philippine Constabulary, and that of the accused, who is a member of an anti-smuggling unit and an officer of the Anti-Communist League of the Philippines, is not of such a degree as to justify consideration of disrespect of rank due to the offended party as an aggravating circumstance. People v AMADO DANIEL alias “AMADO ATO” (November 20, 1978) 13-yr old Margarita Paleng filed complaint against Amado Daniel alias “Amado Ato” for the crime of rape. On Sept 20, 1965, Margarita, a native of Mt Province, arrived in Baguio City from Tublay in a Dangwa bus. She was then en route to her boarding house in Guisad as she was a high school student at the Baguio Eastern High School. While she was waiting inside the bus, the accused Daniel came and started molesting her by inquiring her name and getting hold of her bag. She did not allow the latter and instead called the attention of the bus driver and the conductor but was merely shrugged by them. It seemed that they were also afraid of the accused. Despite the rain, she left the bus and went to ride in a jeep parked some 100meters away. The accused followed her and rode and sat beside her. When Margarita alighted in Guisad, she was again followed by the accused. Reaching her boarding house, she opened the door and was about to close it when the accused dashed in and closed the door behind him. He pulled a dagger 8 inches long and threatened her saying, “If you will talk, I will kill you.” Because of her fear, Margarita fell silent. She was then forced to lie down w/ the accused placing a handkerchief in her mouth and holding a dagger to her neck. Her attempts to flee were to no avail as she was only 4 ft 8 inches tall & 95 lbs while Daniel was 5 ft 7 inches tall and weighed 126 lbs. The accused was successful in having carnal knowledge of Margarita. Thereafter she lost consciousness. When she recovered, Daniel had already gone. For his defense, Daniel asserts that he and Margarita have known each other since 1963 and this was in fact the 2nd time he had carnal knowledge of her. Also, he alleges that he promised to marry Margarita and was actually surprised the she filed the complaint against him. MedicoLegal report indicated that Margarita was a virgin before the incident complained of. HELD: The crime committed by Daniel is rape w/ the use of a deadly weapon w/ the aggravating circumstance of having been committed in the dwelling of the offended party. Although Margarita was merely renting a bedspace in a boarding house, her room constituted for all intents and purposes a “dwelling” as the term is used in Art 14 (3) RPC. It is not necessary, under the law, that the victim owns the place where he lives or dwells. Be he a lessee, a boarder, or a bed-spacer, the place is his home the sanctity of w/c the law seeks to protect and uphold.

The correct penalty is death pursuant to Aft 335 RPC. However, for lack of the necessary number of votes, the penalty next lower in degree is to be applied. Daniel is sentenced to suffer the penalty of reclusion perpetua and ordered to indemnify Margarita Paleng by way or moral damages of PhP12K. People v MARTIN MANDOLADO and JULIAN ORTILLANO (June 28, 1983) Mandolado was charged and convicted of two counts of murder for having killed Herminigildo Tenorio and his driver Nolasco Mendoza. He was meted out the penalty of two counts of death. Ortillano was charged and convicted as an accessory. The trial court found the aggravating circumstances of [1] "advantage was taken of his being a draftee in the Philippine Army," and [2] "abuse of confidence or obvious ungratefulness" against them Julian Ortillano and Martin Mandolado, appellants, as well as Conrado Erinada and Anacleto Simon, were on a bus bound for Midsayap, North Cotabato. All 4 were trainees/draftees of AFP. They alighted at the bus terminal in Midsayap. Being all in uniform, armed & belonging to the same military outfit, they got acquainted & decided to drink ESQ rum, at the said bus terminal. After drinking for about an hour, Mandolado got drunk and went inside the public market. Subsequently, he returned, grabbed his .30 caliber machine gun and started firing. His companions tried to dissuade him but he nonetheless continued firing his gun. Sensing trouble, Conrado and Anacleto ran away, hailed and boarded a passing Ford Fiera with some passengers on board. Appellants followed and boarded also the vehicle and forced the driver of the Ford Fiera to bring them to the Midsayap crossing. All the while, Mandolado was harassing the driver and firing his gun. They for off at the Midsayap crossing and waited for a ride. When Herminigildo Tenorio, driving a privately owned jeep where Nolasco Mendoza was on board, passed by, the 4 boarded the jeep. The whole time, Mandolado was still causing trouble and firing his gun. Upon learning that the jeep was bound for Cotabato City and not Pikit, North Cotabato, appellant Mandolado got angry, “cocked” his gun and ordered the driver to stop. While the jeep was coming to a full stop, Conrado and Anacleto immediately jumped off the jeep and ran towards their detachment camp. Appellants also got off the jeep but then Mandolado fired his . 30 caliber machine gun at and hit the occupants of the jeep. Appellant Ortillano likewise, fired his armalite, not at the occupants of said jeep but downwards hitting the ground. Then they ran away from the scene and boarded another vehicle and went in so many places until they were apprehended. They were again investigated. In said investigation, after appellants were duly apprised of their constitutional rights, they executed and signed their respective sworn statements. Mandolado admitted the killing of Tenorio and Mendoza; whereas appellant Ortillano admitted his presence at said killings and of his having fired his armalite downwards after appellant Mandolado fired upon and killed the afore-named victims Mandolado was found guilty beyond reasonable doubt of murder qualified by treachery, evident premeditation and abuse of superior strength while Ortillano was penalized by imprisonment for being an accessory. Held Conviction affirmed but Ortillano is not a mere accessory but an accomplice. Also, the (alternative) mitigating circumstance of intoxication is appreciated in Mandolado’s favor. The crime committed by Mandolado is murder, qualified by treachery. There being no aggravating circumstance but having found and appreciated drunkenness which is not habitual as a mitigating circumstance, the penalty prescribed under Article 248 of the Revised Penal Code which is reclusion temporal in its maximum period to death shall be imposed in its minimum period.

The conviction of appellant Mandolado for double murder appears to be based not only on his extra-judicial confession but also upon the following circumstances which proved that he did shot and kill the victims, Tenorio and Mendoza, beyond reasonable doubt. And these are listed in the People's Brief, to wit: "(1) he repeatedly fired his .30 caliber machine gun while intoxicated at the bus terminal in Midsayap; (2) that he fired at the Ford Fierra which took them in the Midsayap junction hitting one of its passengers; (3) that Anacleto Simon while running away from the jeep driven by the deceased, heard a burst of machine gun fire coming from the direction of the jeep; (4) the result of the Ballistic examination showing that the shells recovered from the scene of the crime were fired from the gun issued to appellant Mandolado; (5) the attempted flight of both appellants from justice and which act clearly indicates guilt for the "wicked tread where no man pursueth but the righteous are as bold as the lion," and lastly (6) appellant's own admission before the lower court that he killed Tenorio and Mendoza although he claims the same to be accidental. The killing of the two victims in the case at bar is correctly qualified as murder, there being present the qualifying circumstance of treachery which is alleged in the informations. There is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. [Art. 14, paragraph 16, Revised Penal Code]. The prosecution evidence is quite clear and explicit that when appellants alighted from the jeep, the accused Mandolado immediately fired his .30 caliber machine gun at the occupants of the jeep, the victims Nolasco Mendoza and Herminigildo Tenorio, and both of them died instantaneously on the spot, and from this sudden means or manner of attack, it can reasonably be concluded that it tended directly to insure its execution without risk to the appellant-assailant and also deprive the victims of any chance or opportunity to defend themselves. We also rule that the particular means or manner employed by the appellant-assailant was consciously or deliberately sought and not a mere accidental circumstance resorted to on the spur of the moment on the basis of the evidence that the appellant had previously and repeatedly fired his .30 caliber machine gun at the bus terminal in Midsayap and had also fired the machine gun at the Ford Fiera which took them to Midsayap junction and that appellants waited for sometime riding on board the jeep driven by Tenorio before they ordered the jeep to stop, alight therefrom and then shoot the occupants therein. Are the aggravating circumstances of (1) advantage was taken of his being a Draftee in the Philippine Army, and (2) abuse of confidence or obvious ungratefulness were present in the commission of the crime appreciable? No. 1. While it may be true that a soldier in the Armed Forces of the Philippines is deemed as one who holds public position [U.S. vs. Gimenea, 24 Phil. 464, where a constabulary soldier was held to be a public officer], there is no persuasive showing that herein appellants being draftees of the Army, in full military uniform and carrying their high-powered firearms, facilitated the commission of the crimes they were charged. It may be conceded that as draftees, the accused could easily hitch hike with private vehicles, as in the case of the deceased Tenorio's owner-type jeep, but there is no evidence that when they stopped the jeep the accused already intended to shoot the occupants of the vehicle "There is nothing to show that the appellant took advantage of his being a sergeant in the Philippine Army in order to commit the crimes. The mere fact that he was in fatigue uniform and had an army rifle at the time is not sufficient to establish that he misused his public position in the commission of the crimes." 2. There could be no abuse of confidence as the evidence on record showed the lack of confidence by the victims to the appellants, that this confidence was abused, and that the abuse of the confidence facilitated the commission of the crimes. In order that abuse of confidence be deemed as aggravating, it is necessary that "there exists a relation of trust and confidence between the accused and one against whom the crime was committed and the accused made use of such a relationship to commit the crime." It is also essential that the confidence between the parties must be immediate and personal such as would give that accused some advantage or make it easier for him to commit the crime; that

such confidence was a means of facilitating the commission of the crime, the culprit taking advantage of the offended party's belief that the former would not abuse said confidence [People vs. Hanasan, 29 SCRA 534]. In the instant case, there is absolutely no showing of any personal or immediate relationship upon which confidence might rest between the victims and the assailants who had just met each other then. Consequently, no confidence and abuse thereof could have facilitated the crimes. 3. There could have been no obvious ungratefulness in the commission of the crime for the simple reason that the requisite trust of the victims upon the accused prior to the criminal act and the breach thereof as contemplated under Article 14, par. 4 of the Revised Penal Code are manifestly lacking or non-existent. In all likelihood, the accused Army men in their uniforms and holding their high-powered firearms cowed the victims into boarding their jeep for a ride at machine gun point which certainly is no source of gratefulness or appreciation. People v SAMUEL MARRA et al. September 20, 1994 Marra was charged and convicted of murder for the fatal shooting of one Nelson Tandoc on March 7, 1992. The killing was attended by the aggravating circumstance of nighttime according to the trial court. Jimmy Din, an eye witness, recalled that at around 2:00 A.M. on March 7, 1992, he and his friend, Nelson Tandoc, were conversing with each other in front of Lucky Hotel located at Dagupan City. He noticed a man pass by on the opposite side of the street. The man made a dirty sign with his finger. The man repeated his offensive act. Infuriated, they followed the man until the latter stopped in front of the Dunkin' Donuts store. They demanded an explanation from the man but they were not given any. At that instant, two men arrived and one of them inquired what was going on. Tandoc informed him that they were just demanding an explanation from the man. Din was surprised when Tandoc unexpectedly slapped one of the two men. A brawl ensued, with Tandoc clashing with the two men while Din exchanged blows with the man who made the dirty finger sign. After the fisticuffs, their three opponents ran away. Tandoc and Din then decided to walk back to the hotel. They noticed that the men with whom they just had a fight were running towards them. Sensing danger, they ran inside the annex building of the hotel. They entered a room and waited until they felt that the situation had normalized. After ten to fifteen minutes, thinking that the men were no longer in the vicinity, they left the room. Having decided to go home, Tandoc opened the sliding door. All of a sudden, Din saw Appellant, who at that time was wearing a security guard's uniform, shoot Tandoc with a revolver. There was a fluorescent bulb installed at the front of the hotel which enabled Din to identify the assailant. Tandoc was shot in the middle of the chest and he fell down. Then, Din saw four to five men scamper away from the scene. Tandoc died thereafter. The accused was later identified as having worn a security guard uniform at the time of the killing. He was apprehended. A .38 caliber revolver was taken from him and the police found five live bullets and one spent shell. Held Guilty. While we agree that the crime committed by appellant was murder qualified by treachery, we reject the finding that the same was aggravated by nighttime. No evidence was presented by the prosecution to show that nocturnity was specially sought by appellant or taken advantage of by him to facilitate the commission of the crime or to ensure his immunity from capture. At any rate, whether or not such aggravating circumstance should be appreciated, the penalty to be imposed on appellant would not be affected considering the proscription against the imposition of the death penalty at the time when the offense in the instant case was committed. People v EMMANUEL DESALISA (January 4, 1994) Emmanuel Desalisa was charged with the complex crime of parricide (of Norma Deslisa, his wife) with unintentional abortion. He was found guilty and was punished with life imprisonment.

Emmanuel Desalisa, a 22-yr old farmer, lived w/ his 18-yr old legal wife, Norma, who was then 5 mos pregnant and their 2-yr old daughter in a small nipa hse on a hill at Pinaductan, Sorsogon. The whole neighborhood consists of 3 houses. The other 2 houses are about 150 meters away: the house of his parents-in-law and the house of Carlito Dichoso. The view of the houses is obstructed by the many fruit trees and shrubs prevalent in the area. On the morning of Oct 9, 1983, Paulina Dioneda recounted that her daughter informed her that she had an altercation with her husband and she was boxed in the stomach. In the evening, Vicente Dioneda, the father-in-law of the accused, testified that the latter went to their house and left his 2 yr-old. On Oct 10, 1983, at about 6 or 7AM, Vicente went to the house of the accused only to find plates scattered on the floor, the kettle w/ cooked rice untouched, and the other rope holding the hammock missing. He went out of the house and noticed the couple’s pig to be hungry. He thought of feeding it w/ coconut meat from the tree w/c was nearby. He saw the back of the body of his daughter. He called her and touched her back. However, her body swayed. It was only then that he realized that she was hanging from a branch of the jackfruit tree. Her neck was suspended about 4 inches above the ground. Her neck was tied w/ the missing rope of the hammock. There were no eyewitnesses to the incident. Carlito Dichoso, neighbor of accused-appellant, testified that at about 6:00 or 7:00 o'clock in the evening of October 9, 1983, accused-appellant went to his house. It was raining during that time. Accused-appellant borrowed a flashlight because he will be looking for his wife. After two and a half hours, accused-appellant returned to Carlito's house. He sat on a bench. Carlito asked him whether or not he found his wife but he did not answer. Accused-appellant remained sitting on the bench, leaning on the post. He uttered the following words: "My wife is continuously possessed by devils." Carlito's wife then advised accusedappellant: "You must be patient with your wife because she is pregnant." Accused-appellant did not answer her. Accused-appellant often manhandled his daughter because he suspected her of having a paramour and that the baby in her womb was not his. He believed that one Ariate was courting his wife. Desalisa invokes the defense of denial. He speculates that it was his wife who was jealous. She suspected him of having an affair w/ the daughter of Manoy Charito and that she hanged herself. HELD: The accused has the opportunity to commit the crime. The house where they lived is up a hill and isolated. The whole neighborhood consists only of 3 houses. No one can go up the hill to visit w/o being known to the neighbor. Moreover, the motive of jealousy is evident for what can be more humiliating to a man aside from a wife being unfaithful to be refused entry to one’s very home? Although the accused did not flee after the crime, there is no case law holding that nonflight is conclusive of proof of innocence. The uncorroborated assertions of accused-appellant that it was the victim who was jealous of him and that she has tried to commit suicide previously are nothing but self-serving statements which cannot outweigh the prosecution's overwhelming evidence to the contrary. There is ample evidence to support the finding that the hanging of the victim was homicidal and not suicidal, as claimed by accused-appellant. A day after the incident, Vicente Dioneda found scattered plates and kettle with untouched rice on the floor of the house of accused-appellant while Cpl. Gillego found that some things in the house were not in proper places. These are indicia or previous struggle. There were blood stains on the victim's dress, panty, and feet. On her genitalia, the doctor found a punctured wound, 1 cm. long and 2 cm. deep, with slight blood clot which could have been caused by any pointed object, sharp bolo or sharp pointed instrument. Accused-appellant admitted during the cross-examination that he was armed with a sharp bladed instrument while he was looking for his wife. The doctor also found hematoma with contusion on both labia of her genitalia, which could have been caused by a fist blow. According to the doctor, these injuries could not have been self-inflicted. Although accused-appellant spent the night in the house of Carlito Dichoso and did not flee, this circumstance standing alone is no brief on his innocence. There is no case law holding that nonflight is conclusive proof of innocence.

What strikes the attention of this Court further is the testimony of accused-appellant that when he saw his wife hanging from a branch of the jackfruit tree, he went to the house of his parents and informed them about the incident, instead of bringing her down and determining if she was still alive, and if so, to rush her to any doctor, clinic or hospital. He didn't even bother to let his parents-in-law know of what happened to their daughter because according to him, he was confused. We find it hard to believe in his excuse, considering that the house of his parents-in-law, is only 150 meters away from his house. Furthermore, it goes without saying that his parents-in-law are the more concerned persons than his parents with respect to the misfortune that befell their daughter. Or, he could have proceeded to the house of Carlito Dichoso, which is likewise only 150 meters away from his house. We view the course of action that he took as akin to seeking sanctuary in the protective arms of his parents.

The aggravating circumstance of evident premeditation cannot be appreciated against accusedappellant absent any proof as to how and when the plan to kill was hatched or what time elapsed before it was carried out. Neither may the aggravating circumstance of nighttime be appreciated against him because there is no proof that it was purposely sought or taken advantage of or that it facilitated the commission of the crime. However, the aggravating circumstance of uninhabited place is present. The uninhabitedness of a place is determined not by the distance of the nearest house to the scene of the crime but WON there was reasonable possibility of the victim receiving some help in the place of commission. Considering that the killing was done during nighttime and many fruit trees and shrubs obstructed the view of the neighbors and passersby, there was no reasonable possibility for the victim to receive any assistance. Accused-appellant is found guilty beyond reasonable doubt of the complex crime of parricide w/ unintentional abortion and sentenced to suffer the penalty of reclusion perpetua. People v ROLAND MOLINA (July 24, 2000) Molina was charged and convicted of Murder for having killed one Joseph Bon-ao and frustrated murder for having mortally wounded one Angelito Bon-ao. The aggravating circumstance of recidivism was also found against him. He was meted the penalty of death. Between the hours of 12 and 1 in the morning of March 4 and 5, 1996, brothers Joseph and Angelito Bon-ao, along with their cousin, Danny Vidal, were on their way home from a fiesta. Then somebody shouted “kuba” referring to Jospeh who was a hunchback. Looking back, they asked a group of persons, with accused-appellant Roland Molina among them, who shouted "Kuba." None of them answered back, though accused-appellant said in the local dialect "I am Roland Molina of Pagpagatpat, Tayum, across the river." Joseph then said: "If no one among you said that, we will be on our way." Accused-appellant even told Joseph and his companions "Do not fool Sleepy Molina of Pagpagatpat." As the three were about to turn around to go on their way, with Joseph the only one having made a full turn, Roland Molina rushed him and delivered a strong stabbing blow at the back of Joseph. Angelito saw this happened since he has not yet made a full turn when accused-appellant stabbed his brother Joseph. Angelito swiftly went to aid his brother but accused-appellant likewise stabbed him at the back. 18 Then, accused-appellant and his companions, among them Lorenzo Tejero, fled the scene. Danny carried Joseph and then Angelito to the hospital. Joseph died. Molina denied the allegations and claimed that another person, a “taller” man did the deed. This was not bought by the trial court. In the course of the trial, it was discovered that accusedappellant was previously charged and convicted of attempted homicide in Criminal Case No. 1133 by the same Regional Trial Court in a decision dated October 9, 1996. Held

Affirmed. The testimony of Angelito and Danny were credible. Angelito Bon-ao categorically and consistently pointed out accused-appellant as the person who inflicted the fatal wound on his brother Joseph and likewise administered the fatal injuries on Angelito himself. Danny Vidal was unwavering in his positive identification of accused-appellant as the malefactor of the crimes for which he was charged. Thus, Danny further buttressed Angelito Bon-ao's testimony. As weighed against the positive identification of accused-appellant by one of his victims, Angelito Bon-ao, which was further corroborated by an eyewitness to the scene, Danny Vidal, and the absence of any showing of ill-motive on their part other than their quest for justice, accusedappellant's denial of commission of the crime and imputation of the same to another person is demolished to obscurity. Besides, accused-appellant's imputation of the crime to another malefactor was heard of only during his testimony and was never raised before the police authorities during the investigation. Clearly, his bare denial amounts to nothing more than negative and self-serving evidence undeserving of weight in law. With respect to treachery, it is our view that the prosecution has convincingly established the same. Jurisprudence has required that treachery must be proved by clear and convincing evidence, or as conclusively as the killing itself. 51 For treachery to be appreciated as a qualifying circumstance, two (2) conditions must concur, to wit: (a) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (b) that said means of execution be deliberately and consciously adopted TREACHERY. The concurrence of the said conditions is firmly anchored on the declarations of the prosecution eyewitnesses', Danny Vidal and Angelito Bon-ao. Both Vidal and Bon-ao witnessed that, for no apparent reason, after they started to leave the presence of Molina's group, the latter stabbed Joseph Bon-ao at his back. The sudden and unanticipated killing of Joseph Bon-ao reinforced the trial court's finding of treachery, bolstered by the fact that the striking blow was at the back of the victims. The same holds true to Angelito who was completely caught off guard as he was stabbed three (3) times when he chose to aid his brother Joseph. The Bon-aos had no inkling that Joseph's inquiry on who shouted "kuba" would foreshadow the untimely demise of Joseph and the near death of Angelito. As consistently held by this Court, an unexpected and sudden attack under circumstances which render the victim unable and unprepared to defend himself by reason of the suddenness and severity of the attack constitutes alevosia or treachery. Its essence lies in the adoption of ways that minimize or neutralize any resistance which may be put up by the unsuspecting victim. RECIDIVISM. the trial court properly appreciated the same though not alleged in the information. Article 14(9) of the Revised Penal Code defines a recidivist as "one who, at the time of his trial for one crime shall have been previously convicted by final judgment of another crime embraced in the same title of this Code." To prove recidivism, it is necessary to allege the same in the information and to attach thereto certified copies of the sentences rendered against the accused. Nonetheless, the trial court may still give such aggravating circumstance credence if the accused does not object to the presentation of evidence on the fact of recidivism. In the case at bar, the accused-appellant never voiced out any objection when confronted with the fact of his previous conviction for attempted homicide in a decision dated October 9, 1996 in Criminal Case No. 1133. Neither does it appear that accused-appellant appealed from the said decision of conviction for attempted homicide, claiming he became aware of the promulgation of the decision in that case only at the provincial jail during the pendency of his case for murder and frustrated murder. Thus, at the time of his trial for murder and frustrated murder, the decision in Criminal Case No. 1133 for attempted homicide has long been final. People v TEOFILO DIOSO and JACINTO ABARCA (October 23, 1984) Dioso and Abarca were charged and found guilty of murder for having killed Angelito Reyno and Fernando Gomez respectively. They were meted the penalty of death. D and A are prisoners and are members of the Batang Mindanao gang in the New Bilibid Prisons while the victims are members of the Happy Go Lucky gang. D and A claimed to have committed the offense as vengeance on the killing of their gang mate, Balerio.

Reyno and Gomez were sick and confined in the prison hospital. At 6:15 in the morning of September 12, 1972, Abarca, feigning illness, went to the hospital to seek admission as a patient. He was accompanied by his co-accused Dioso. Inside Ward 6 of the hospital they saw their intended victims: Reyno was taking breakfast while Gomez was lying down on a "tarima" [wooden bed] under a mosquito net. Dioso approached Reyno and spoke briefly to him, while Abarca headed towards the "tarima". Then, both accused suddenly drew out their improvised knives [matalas]. Abarca raised the mosquito net over the "tarima" and stabbed Gomez, as Dioso, almost simultaneously, attacked Reyno with his knife. And after the latter had fallen, Dioso strode to the "tarima" to help his co-accused finish off Gomez. When the accused rushed out of Ward 6, they were met at the corridor by Prison Guard Enriquito Aguilar. Both gave themselves up and handed their weapons to him. They confessed to the crime and pleaded guilty but banked on the mitigating circumstances of voluntary surrender and plea of guilt. Held We find no necessity to discuss at length the effects of such mitigating circumstances on the penalty imposed. Suffice it to say that the accused are quasi-recidivist, having committed the crime charged while serving sentence for a prior offense. As such, the maximum penalty prescribed by law for the new felony [murder] is death, regardless of the presence or absence of mitigating or aggravating circumstance or the complete absence thereof. But for lack of the requisite votes, the Court is constrained to commute the death sentence imposed on each of the accused to reclusion perpetua. People v JULIO LUG-AW and ROGELIO BANNAY (January 18, 1994) The accused were charged and found guilty of the murder if Carlos Pal-loy. Carlos Pal-loy was shot to death as he was fencing the boundary limits of the land he was farming by persons identified with the owner of the land adjacent to his own and with whom Palloy had a boundary dispute. Pal-loy was farming part of the communal forest land located in Sitio Kalipkip, Sto. Niño, Maddela, Quirino. Despite the boundary dispute between him and his neighbor, Conchita Tipon, Pal-loy straightened out the boundary line by putting up a fence allegedly upon the instruction of the public forester. As Pal-loy went about the task, his 13-year old-daughter, Sonia, and another daughter named Carina, followed him around. Pal-loy was proceeding towards the house when Sonia heard a gun shot. Immediately, she went uphill and just as a second gun report resounded, she saw Rogelio Bannay and Julio Lug-aw from a distance of around four meters. She saw, too, that as her father was about to draw his bolo, Lug-aw shot him. According to Sonia, Lug-aw was behind a tree stump when he shot her father. Bannay, who was with Lug-aw, was hiding and he did not do anything. She was around ten meters from the two but she could not have seen them had she and her sister Carina not climbed a tree after the first shot. After shooting Pal-loy, Lug-aw ran towards the left side of Pal-loy with Bannay following him. Sonia saw the gun used in shooting hr father but could not tell its caliber. Carmen, Pal-loy's wife rushed to where she thought she heard the shots and found her daughters hiding behind the stump of a tree near their father. Her daughters informed her that their father's assailants were Julio Lug-aw and Junior Bannay, the nephew of Conchita Tipon. Her husband himself corroborated this For their defense, the interposed their respective alibis. Lug-aw claimed that he was plowing his field and was 16 to 17 kilometers away from Sitio Kalipkip, Sto. Niño, Maddela, Quirino when the shooting occurred. Sitio Kalipkip can be reached on foot from Nalungtutan for five (5) hours. Rogelio Bannay whose house in Nalungtutan was around fifty meters away from that of Lug-aw, testified that when the crime occurred, he was at home "peeling peanuts" with his wife.

Held Their alibis cannot withstand the positive identification made by Sonia. During the trial, she clung tenaciously to her story and testified that it was during the second gun report that he saw Lugaw shot her father. In their attempt to discredit Sonia, the appellants pointed out that the normal reaction of a person to such a traumatic happening would be to flee. However, no hard and fast rule can be laid down with respect to the reaction of persons to the same situation. Running to one's father who has been shot to give him succor is equally a normal reaction of any daughter. The failure of the defense to attribute any ill motive on the part of Sonia in order to pin responsibility on the appellant adds more credence to her testimony. In fact, both appellants admitted before the court that there was no reason for Sonia to testify against them. Indeed, it is inconceivable for a 13-year-old who barely finished third grade to impute a very serious offense on anyone unless it were true. If she were merely fabricating her testimony, she would have broken down during the intensive cross-examination at the stand. Al contrario, as observed by the trial court, Sonia was "natural in her manners" and testified "straight forwardly." Her positive identification of the accused as the perpetrators of the crime demolished their alibi and denial. Even standing alone, such positive sole testimony is enough basis for conviction. Thus, even if we lend credence to defense's claim that the victim's widow, Carmen, prevaricated as shown by the fact that she allegedly tried to recant after the termination of the trial, Sonia's testimony suffices as a basis for a finding of guilt. Noteworthy is the fact that, unlike her daughters Sonia and Carina, Carmen was not an eyewitness. However, it is principally from Sonia's testimony that we conclude that the crime committed was not murder but homicide. The qualifying circumstances of treachery and evident premeditation had not been proven beyond reasonable doubt. The trial court drew the conclusion of the presence of treachery because the attack was sudden as Pal-loy was simply going about his task of fencing his kaingin. We find however, that no one witnessed the initial attack. As Sonia herself testified, she heard the first shot, went up a hill, climbed a tree and from there, saw Lug-aw shooting her father with the shot reverberating as the second gun report. Nowhere do we find in the records any evidence that she witnessed the first shot nor how her father reacted to it. What she did see was her father trying to repel the assault with a bolo but he failed because a second shot hit him. As this Court held in People v. Castor, where the lone eyewitness was not able to observe the commencement of the assault, he could not, therefore, testify on how it all began and developed. Citing United States v. Perdon and United States v. Pangilion, the Court held in the Castor case that absent any particulars as to the manner in which the aggression commenced or how the act resulted in the death of the victim unfolded, treachery cannot be appreciated to qualify the killing to murder. Similarly, the records are bereft of evidence that the crime was committed with evident premeditation. The three requisites of this aggravating circumstance, namely, the time when the offender determined to commit the crime, an act manifestly indicating that the culprit has clung to his determination and a sufficient lapse of time between the determination and execution to allow the accused opportunity to reflect upon the consequences of his act, are wanting in the case at bar. Evident premeditation was, therefore, incorrectly appreciated by the trial court. There is no evidence that Bannay shared Lug-aw's criminal intent. Thus, although he did not do anything in contravention of the supposed conspiracy, his mere passive presence at the scene of the crime did not make him liable therefor. Moreover, the prosecution failed to show other facts and circumstances, aside form Bannay's presence near Lug-aw as the latter committed the dastardly act and following Lug-aw as he ran away, from which a community of interest and design between the two may be construed. The prosecution's weakness in this respect cannot be taken against Bannay. We should take into account the doctrine that, in case of doubt as to the culpability of an accused, it should be resolved in accordance with the presumption of innocence. Bannay is acquitted. People v RUBEN E. ILAOA and ROGELIO E. ILAOA (June 16, 1994) Five persons, Ruben E. Ilaoa, Rogelio E. Ilaoa, Rodel E. Ilaoa, Julius Eliginio and Edwin Tapang, were charged for the gruesome murder of Nestor de Loyola. However, only the brothers Ruben and Rogelio stood trial since the other accused escaped and were never apprehended.

The decapitated body of a man, later identified through his voter’s identification card as Nestor de Loyola, was found in a grassy portion thereof. Apart from the decapitation, the deceased bore forty-three (43) stab wounds in the chest as well as slight burns all over the body. The head was found some two (2) feet away from the corpse. The RTC found the appellants herein guilty of murder with the attendant circumstances of evident premeditation, abuse of superior strength and cruelty, and imposed upon them the penalty of "life imprisonment." The deceased Nestor de Loyola was seen at about eleven o’clock in the evening of 4 November 1987, in a drinking session with his compadre Ruben Ilaoa together with Julius Eliginio, Edwin Tapang and a certain "Nang Kwang" outside Ruben’s apartment. The drunken voices of Ruben and Nestor engaged in an apparent argument were later on heard. Nestor was then seen being kicked and mauled by Ruben and his brother Rodel, Julius Eliginio and Edwin Tapang. Nestor was crying all the while, "Pare, aray, aray!" Afterwards, Nestor, who appeared drunk, was seen being "dragged" into Ruben Ilaoa’s apartment. Nestor was heard saying, "Pare, bakit ninyo ako ginaganito, hirap na hirap na ako!" Ruben Ilaoa and Julius Eliginio borrowed Alex Villamil’s tricycle at about two o’clock the following morning allegedly for the purpose of bringing to the hospital a neighbor who was about to give birth. Ruben was seen driving the tricycle alone, with a sack which looked as though it contained a human body, placed in the sidecar. The tricycle was returned an hour later to Alex who noticed bloodstains on the floor. The latter thought that they were those of the pregnant woman. Blood was found on Ruben’s shirt when he was asked to lift it during the investigation by the police. Moreover, Ruben’s hair near his right forehead was found partly burned and his shoes were splattered with blood. Susan Ocampo, Ruben’s live-in partner, was likewise seen in the early morning of 5 November 1987 sweeping what appeared to be blood at the entrance of their apartment. Held Rogelio is acquitted but Ruben is convicted. As found by the trial court, in the late evening of 4 November 1987, appellant Ruben Ilaoa was engaged in a drinking session with the deceased Nestor de Loyola together with several others. Ruben was heard arguing with Nestor. A few moments later, Ruben mauled and kicked the deceased with the help of their drinking companions just outside Ruben’s apartment. As the deceased cried "Aray! Aray!" and "Pare, bakit n’yo ako ginaganito? Hirap na hirap na ako!" appellant dragged the deceased with the help of Julius Eliginio to the apartment from where a man’s cries were continued to be heard later. To further seal the case against him, Ruben borrowed Alex Villamil’s tricycle at two o’clock in the morning of 5 November 1987 on the pretext that a neighbor was about to give birth and had to be rushed to the hospital. However, he was seen driving the tricycle alone with a sack placed in the sidecar. The sack looked as if it contained a human body. Then, an hour later, or at three o’clock in the morning, the tricycle was returned with bloodstains on the floor. For his defense, appellant Ruben Ilaoa does not dispute the testimony of an eyewitness that he was driving the tricycle at past two o’clock in the morning with the sack in the sidecar. However, he claims that the sack contained buntot ng pusa, a local term for marijuana, not a human body, which he delivered to a designated place in Fields Avenue as a favor to his compadre Nestor de Loyola whom he could not refuse. Moreover, it was the vomit discharged by his drinking companions that was being swept clean by his girlfriend at the entrance of their apartment in the early morning of 5 November 1987, not blood as the witnesses asseverated. We find the version of the prosecution more persuasive than the defense. The fact that appellant quarreled with the deceased, then mauled and pulled him to the apartment where the latter was last seen alive, in addition to borrowing a tricycle which was found with bloodstains when returned, sufficiently point to Ruben as the culprit responsible for the crime. The fact that the deceased was his compadre, hence, presumably would have no motive to kill the latter, is not enough to exculpate appellant. It is a matter of judicial knowledge that persons have been killed or assaulted for no apparent reason at all, and that friendship or even relationship is no deterrent to the commission of a crime.

If we are to believe appellant Ruben, we will not be able to account for the blood found on the floor of the tricycle after it was brought back to the owner. Ruben himself could not explain away such testimony for he belied the excuse that the tricycle was needed to rush a pregnant woman to the hospital, which was the explanation he gave to Alex Villamil when he borrowed it. We cannot even consider that the story about the blood on the tricycle was simply concocted by Alex Villamil to incriminate Ruben because the latter was his friend, as Ruben himself has admitted. In fact he could think of no reason for Alex Villamil to testify falsely against him. Despite the foregoing, however, we hold appellant liable only for homicide, not murder, on the ground that the qualifying circumstances alleged in the information, namely, abuse of superior strength, cruelty and evident premeditation, were not sufficiently proved to be appreciated against appellant. Abuse of superior strength cannot be considered because there was no evidence whatsoever that appellant was physically superior to the deceased and that the former took advantage of such superior physical strength to overcome the latter’s resistance to consummate the offense. The fact that Nestor de Loyola’s decapitated body bearing forty-three (43) stab wounds, twenty-four (24) of which were fatal, was found dumped in the street is not sufficient for a finding of cruelty where there is no showing that appellant Ruben Ilaoa, for his pleasure and satisfaction, caused Nestor de Loyola to suffer slowly and painfully and inflicted on him unnecessary physical and moral pain. Number of wounds alone is not the criterion for the appreciation of cruelty as an aggravating circumstance. Neither can it be inferred from the mere fact that the victim’s dead body was dismembered. Evident premeditation cannot likewise be considered. There is nothing in the records to show that appellant, prior to the night in question, resolved to kill Nestor de Loyola, nor is there proof to show that such killing was the result of meditation, calculation or resolution on his part. On the contrary, the evidence tends to show that the series of circumstances which culminated in the killing constitutes an unbroken chain of events with no interval of time separating them for calculation and meditation. Absent any qualifying circumstance, Ruben Ilaoa should only be held liable for homicide. The penalty prescribed for homicide in Art. 249 of the Revised Penal Code is reclusion temporal. People vs. ALEJANDRO ATOP @ "ALI" (February 10, 1998.) Accused, the live-in partner of the victim’s grandmother, was charged with 3 counts of rape of 11-year old Regina Guafin and was sentenced to 2 RPs for the 1 st 2 and 1 death for the last count as it was already covered by RA 7659. The trial court found all 3 counts to be aggravated by nighttime and relationship. 1st rape: On October 9, 1992, she was called by the accused Alejandro Atop to do something for him. When she approached him the accused rushed towards her, removed her panty and inserted his male organ into her vagina. She was not able to do anything to resist him because the accused gagged her mouth and was carrying a knife with him. She was then 12 years old. 2nd rape: It was in the year 1993 but she could not recall the month when it was committed. Only she and the accused were then at their house at Barangay Santa Rosa, Matag-ob, Leyte as her grandmother, a hilot, was at San Vicente attending to a delivery. 3rd rape: On December 26, 1994, the accused again raped her. She could not ask for help because her mouth was gagged by the accused. Aside from gagging her, the accused also carried a knife which he placed at his side. It took her so long to report the said incidents because she was afraid. The accused threatened to kill her should she tell anybody about the incidents. The medico legal examination revealed that the victim’s vagina had a healed laceration. Issue Should nighttime and the modifying circumstance of relationship be considered aggravating? Held

No. The time-settled rule is that nocturnity, as an aggravating circumstance, must have been deliberately sought by the offender to facilitate the crime or prevent its discovery or evade his capture or facilitate his escape. The culprit must have purposely taken advantage of the cover of night as an indispensable factor to attain his criminal purpose. The prosecution failed to prove that nighttime was deliberately sought by appellant to facilitate his dastardly acts. In fact, the prosecution failed to show that appellant consummated his carnal designs at night, except only for the December 26, 1994 incident which the victim said occurred at 11:00 p.m. Much less is there any evidence substantiating the trial court's conclusion that appellant intentionally sought the darkness to advance his criminal exploits. Neither can we appreciate relationship as an aggravating circumstance. The scope of relationship as defined by law encompasses (1) the spouse; (2) an ascendant; (3) a descendant; (4) a legitimate, natural or adopted brother or sister; or (5) a relative by affinity in the same degree. Relationship by affinity refers to a relation by virtue of a legal bond such as marriage. Relatives by affinity therefore are those commonly referred to as "in-laws," or stepfather, stepmother, stepchild and the like; in contrast to relatives by consanguinity or blood relatives encompassed under the second, third and fourth enumeration above. The law cannot be stretched to include persons attached by common-law relations. Here, there is no blood relationship or legal bond that links the appellant to his victim. Thus, the modifying circumstance of relationship cannot be considered against him. Neither is the following provision of Sec. 11, RA 7659 applicable: "Sec. 11. Article 335 of the [Revised Penal] Code is hereby amended to read as follows: The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common law spouse of the parent of the victim. Undisputed is the fact that appellant is not the common-law spouse of the parent of the victim. He is the common-law husband of the girl's grandmother. Needless to state, neither is appellant the victim's "parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree." Hence, he is not encompassed in any of the relationships expressly enumerated in the aforecited provision. It is a basic rule of statutory construction that penal statutes are to be liberally construed in favor of the accused. 18 Courts must not bring cases within the provision of a law which are not clearly embraced by it. No act can be pronounced criminal which is not clearly made so by statute; so, too, no person who is not clearly within the terms of a statute can be brought within them. 19 Any reasonable doubt must be resolved in favor of the accused. Ruling: Affirmed but 3 reclusion perpetuas. People v BENIANO RENEJANE et al (February 26, 1988) Accused herein was charged and found guilty of the crime of Double Murder for having killed Mario de Jesus and Regino Mara-asin. He was sentenced to 2 RPs. The information alleged that the accused: armed with hunting knives, Japanese bayonet, ice-pick and long bladed bolo, with deliberate intent to kill and employing a means to weaken the victims' defenses by making them drunk, taking advantage of superior strength and by deliberately and inhumanly augmenting the victims' suffering by inflicting several unnecessary wounds despite the defenseless victims were already dead, assaulted, attacked and stabbed Mario de Jesus and Regino Mara-asin, which caused their instantaneous death.

It was found that Paulino Laborte stabbed policeman Mario de Jesus. It was followed by another stabbing done by Beniano Renejane. Likewise, the police officer’s companion, Regino Maraasin was also stabbed by Rodolfo Ripdos. The killing happened in 1st day of November, 1981, at 11:00 o'clock in the evening, in Barangay Lamesa, Municipality of Balamban, Province of Cebu. Patrolman Mario de Jesus, his wife Violets and a companion, Michael Madrigal, and the two witnesses (Pablo Sumandig and Reynoso Mara-asin), were already in the house of Artemio Ripdos as invited guests. At around five o'clock in the afternoon of the same day, Beniano Renejane, Nick Laborte and Benjamin Purisima arrived at the store. Beniano invited the policeman and his companion, Reynoso and Regino Mara-asin and Pablo Sumandig to his house to partake of some food and drinks. All eight of them proceeded to Beniano Renejane's house. From Beniano Renejane's house, the group proceeded to the house of Nick Laborte and then to the house of Nick Laborte's. From the house of Nick Laborte's mother, the group then proceeded to Pauline Laborte's house. Reynoso Mara-asin, however, did not proceed to Paulino Laborte's house. He returned to his parents' house because he wanted them to know his whereabouts. Pablo Sumandig firmly establishes Beniano Renejane's presence by telling the Court of an altercation that even broke out between Renejane and Patrolman Mario de Jesus. That there was indeed an altercation between Renejane and the policeman is very credibly narrated by Reynoso Mara-asin who stated that some time on October 2, 1981, Renejane was apprehended by Patrolman Mario de Jesus for illegal possession of marijuana and that Regino Mara-asin was suspected of having been the informer. Thus, we now see the motive for the slaying. Beniano Renejane surely must have harbored a grudge against Patrolman Mario de Jesus and Regino Mara-asin. Fueled as it was by the amount of alcoholic beverage that had been imbibed by the group, it is no wonder that violence resulted." Moreover, the evidence shows that appellant had a motive in killing Patrolman Mario de Jesus. The latter apprehended appellant Renejane for illegal possession of marijuana and the other victim, Regino Mara-asin was suspected by the appellant as the informer. Issue Should drunkenness be appreciated as aggravating or mitigating in this case? Held Neither. In the case at bar, the aggravating circumstances that attended the commission of the crime are: (1) abuse of superior strength; (2) outraging the victims' corpses; (3) disregard of the respect due the offended party on account of his rank; and (4) drunkenness. Only the aggravating circumstance of the act being in disregard of rank is appreciable in the case at bar. The circumstance of abuse of superior strength is inherent in treachery. The lower court erred in considering the infliction of wounds even after the victims were already dead as a qualifying circumstance. Under the facts of the case, it is clear that such action cannot be deemed as an aggravating circumstance either as to the means employed or circumstances brought about to add ignominy to the natural effect of the crime, or that the wrong done in the commission of the crime is deliberately augmented by another wrong not necessary for its commission. There is no showing that any wounds inflicted after the death of the victims were intended to outrage or scoff at them. The assailants were carried away by the intensity of their attack as attested by the nature of the wounds inflicted but no desire to add ignominy to the offense is apparent from the evidence.

The fact that the accused drank liquor prior to the commission of the crime did not necessarily qualify such action as an aggravating circumstance . Intoxication is aggravating if it is habitual or intentional. There is no finding of either by the lower court. The affair was an ordinary drinking party. Neither can this be considered as a mitigating circumstanc e in the absence of proof that the intake of alcoholic drinks was of such quantity as to blur the appellant's reason and deprive him of a certain degree of control. This finding is strengthened by the fact that treachery has been established. Therefore, the means of execution employed were deliberately or consciously adopted. Ruling: Still murder but the penalty was modified. PEOPLE vs. AGAPITO DE LA CRUZ (April 30, 1980.) AGAPITO was found guilty as principal by inducement of the crime in Kidnapping and Serious Illegal Detention, and was sentenced to death. Mohamad Sagap Salip testified that sometime in October, 1967, the accused AGAPITO met with him, Alih Itum and a certain Asmad, at which he proposed to them the killing of Antonio Yu and the kidnapping of the younger brother, Yu Chi Chong, for a ransom. The discharged state witnesses testified that On March 5, 1968, with the other accused, they sailed for Basilan City on board an outboard watercraft. The watercraft landed on the beach of Look Sapi, Basilan City, where they met Mohamad Sagap Salip and Alih Itum. They arrived at Bangcao Sapa at about 7:30 in the evening, and from there walked towards Lantawan. Two of the members of the group stayed in Bangcao Sapa to guard the motorboat. From Lantawan, they proceeded to AGAPITO's house. AGAPITO met them when they arrived. AGAPITO informed them that the two Chinese brothers would go to Lantawan on March 6, 1968 and that they were to kill Antonio Yu and kidnap Yu Chi Chong and demand ransom of P50,000.00. They agreed that P20,000.00 would go to AGAPITO, and P30,000.00 would be divided equally among the members of the group. At 5:00 o'clock in the morning AGAPITO led them towards Lantawan to the place of ambush. AGAPITO proceeded to the camp of Antonio Yu. Baddish, a member of the group, was instructed to go to the copra kiln of Antonio Yu, and hitch a ride in the truck of Yu Chi Chong. The rest of the group waited in the ambush spot. In the meantime, Antonio Yu and his brother Yu Chi Chong were preparing to leave Isabela to go to their Lantawan plantation to take delivery of newly made copra. Upon arrival of the truck at Lantawan, 40 to 50 sacks of copra were loaded to be taken back to Isabela. Antonio Yu had to go to Tairan on some other business and instructed his brother to go back to Isabela and take care of the copra cargo. Isabelo Mancenido accompanied Yu Chi Chong in the truck. At around 1:00 o'clock p.m. as the truck neared the ambush spot, Baddish, as instructed, dropped his towel and requested Yu Chi Chong, who was driving, to stop the truck. When the truck came to a halt, the ambushers approached it and dragged Yu Chi Chong and Isabelo Mancenido therefrom. They shot at all of the tires with their assorted firearms, mostly carbine and garand rifles, and left with their quarry. Shortly thereafter, the group released Mancenido upon the latter's pleas for mercy. They led Yu Chi Chong, with hands tied in front of him, through the forest towards Bangcao Sapa, passing through a house where they asked for water. Upon reaching Bangcao Sapa, they found that the tide was low, rendering it impossible for them to reach their boat. While waiting, Yu Chi Chong, in an attempt to escape, struck Angih with a piece of wood and tried to grab the gun of the latter but failed. Angih, in anger, fired at Yu Chi Chong several times, killing him. The gunshots which killed Yu Chi Chong were heard by two Muslim villagers. The duo walked in the direction of the source of the shots and saw the dead body. The malefactors, in the meanwhile, hid in the mangrove swamp. The two Muslims left and then came back with a group

of villagers who viewed the body. Thereafter, the villagers left, leaving the body where they saw it with the intention of returning the next day. When the villagers had gone, the armed group immediately took the body of Yu Chi Chong and left for Jolo. They dumped the body in the middle of the sea. The body of Yu Chi Chong was never recovered. Yu testified that the probable motive of AGAPITO in having committed the crime was because the latter was demoted from an overseer to a mere supervisor in the former’s farm. Issue AGAPITO assails the conclusion of the trial Court finding him guilty as a principal by inducement reasoning that "since he did not take part in the commission of the crime, conspiracy does not exist," and consequently he incurs no criminal liability. Is the accused herein a principal by inducement? Held Yes. The requisites necessary in order that a person may be convicted as a principal by inducement are: "1. That the inducement be made directly with the intention of procuring the commission of the crime; and "2. That such inducement be the determining cause of the commission of the crime by the material executor." The foregoing requisites are indubitably present in this case. The two discharged witnesses testified that Asmad and Amil contacted them to go to Basilan to do a job for AGAPITO. When the group was brought face to face with him, he lost no time in laying down the strategy for the killing of Antonio Yu and the kidnapping of Yu Chi Chong for ransom. It was he who knew when the truck of the intended victims would go to Lantawan to load the copra to be delivered to Isabela. He knew the route that the truck would take and the approximate time that it was to pass by. He even selected the ambush place. Clearly, he had the positive resolution to procure the commission of the crime. He, too, presented the strongest kind of temptation, a pecuniary gain in the form of ransom, which was the determining factor of the commission of the crime by his co-accused. Without him the crime would not have been conceived, much less committed. Clearly, he was a principal by induction, with collective criminal responsibility with the material executors, his co-accused. "One is induced to commit a crime either by a command (precepto) or for a consideration (pacto), or by any other similar act which constitutes the real and moving cause of the crime and which was done for the purpose of inducing such criminal act and was sufficient for that purpose. The person who gives promises, or offers the consideration and the one who actually commits the crime by reason of such promise, remuneration or reward are both principals." 15 "The inducer need not take part in the commission of the offense. One who induces another to commit a crime is guilty as principal even though he might have taken no part in its material execution." The final point for consideration is the nature of the crime or crimes that AGAPITO should be held guilty of. While the Information filed against all the accused charged them with the crime of Kidnapping with Robbery in Band and Murder, the trial Court convicted AGAPITO only of the crime of Kidnapping and Serious Illegal Detention as defined in Article 267 of the Revised Penal Code, stating that: "We find that the original plan of the accused was to kidnap, not to rob or commit murder. There is in fact no evidence as to the charge of robbery. The evidence does not show that there was any intention to commit murder and the killing of the victim, Yu Chi Chong, happened unexpectedly, that is, only in consequence of the outlaw band's effort to prevent Yu Chi Chong's

escape. Murder here may be said to have been absorbed to the crime of kidnapping, for in kidnapping, it is immaterial whether or not the victim was killed." In this, we find reversible error. In the Suarez case cited by the trial Court, the Supreme Court considered the killing of the victim of kidnapping as "immaterial" because the appellants were prosecuted for the crime of Kidnapping only. This Court held in said case: "Counsel for the appellants contends that these should be convicted only as accomplices. He claims that, there being no evidence to show that they had taken part in a conspiracy to kill Esteban Mungcal, — because, according to the evidence for the defense, after De Hora, his companion and Fermin Suarez had hogtied Esteban Mungcal, the appellants were left in a house and had nothing to do with the killing of Esteban, — they cannot be held guilty as co-principals of the crime of kidnapping. This contention is, however, based on the erroneous assumption that the fact of the killing of Esteban Mungcal constituted the principal element of the offense for which the appellants were prosecuted before and found guilty by, the trial Court. But the appellants were not accused of the murder or the killing of Esteban they were accused of kidnapping, as defined and punished under article 267, paragraph 1, of the Revised Penal Code. The essential element or act which makes the offense of kidnapping is the deprivation of an offended party's liberty under any of the four instances enumerated in said article, the illegal detention of the victim for more than five days being one of such instances. The fact that an accused person has directly participated in the kidnapping or illegal detention of another is sufficient to make him guilty as co-principal in the crime of kidnapping; it is immaterial whether or not the victim was subsequently killed by any or all of them. In the present case there is no doubt that the appellants had taken active part in the kidnapping of Esteban Mungcal and that the acts committed by them have made them guilty as co-principals. The fact that they may have not taken part in the subsequent killing of Esteban Mungcal has only the effect of making them less guilty than those who actually took part in the killing — but they are guilty just the same. As above stated, the appellants should therefore be held liable as co-principals in the crime of kidnapping penalized under article 267, paragraph 1, as amended, of the Revised Penal Code." The situation, however, is different in the case at bar where AGAPITO was charged in the Information with the crime of Kidnapping with Robbery in Band and Murder. The evidence is clear that the victim Yu Chi Chong was kidnapped, as planned, primarily for the purpose of ransom in the amount of P50,000.00, and was murdered because he attempted to escape his captors. Having found that AGAPITO is a principal by inducement and conspiracy being evident, he should, therefore, be held guilty of the same crime committed by the material executors furtherance of the offense which he induced them to commit. "The general rule is well settled that, where several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine. In contemplation of law the act of one is the act of all. . . . It is immaterial, as affecting the question of co-equal responsibility, that one or more were not actually present at the consummation of the preconceived design." And although the nefarious scheme was to kill Antonio Yu and to kidnap for ransom his brother Yu Chi Chong, considering the presence of conspiracy among the accused, the actuality that it was the latter instead who was murdered makes AGAPITO liable as well for all the consequences resulting from the carrying of the crime into effect. "If there was an understanding to commit an offense, all who participated in the preconcerted crime are liable for the means which each of them employed to carry such crime into effect and for the consequence thereof." The crime committed is the complex crime of Kidnapping for ransom with Murder. Pursuant to Article 48 of the Revised Penal Code, the penalty for the more serious crime, or Kidnapping for ransom, which under Article 267 of the same Code, as amended, is death, should be imposed. The penalty, being single and indivisible, consideration of the aggravating circumstances

discussed by the trial Court need no longer be undertaken as that penalty will have to be applied regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed (Article 63, Revised Penal Code). However, for lack of the required number of votes for the imposition of the capital punishment, the penalty to be imposed is the next lower in degree or reclusion perpetua. WHEREFORE, the accused-appellant, Agapito de la Cruz, is hereby sentenced to suffer the penalty of reclusion perpetua AQUINO, J., dissenting: I dissent. In my opinion, the crime committed by Agapito de la Cruz, the disgruntled and dismissed overseer of Antonio Yu, who induced and mastermind the kidnapping for ransom of his brother, Yu Chi Chong, is either attempted serious illegal detention or kidnapping for ransom or consummated slight illegal detention, both of which are punished by reclusion temporal. It is true that the plan was to commit kidnapping for ransom and that the kidnapping was accomplished but since the evidence does not show that ransom was actually demanded, an important element of kidnapping for ransom (qualified serious illegal detention) is missing. LLjur To consummate the kidnapping for ransom, there should be an overt act of demanding ransom from the victim or any other person (People vs. Ong, L-34497, January 30, 1975, 62 SCRA 174). I believe that for a person to be guilty of kidnapping for ransom, a capital case par excellence, it is not sufficient that the kidnapping for ransom was planned and that the kidnapping was implemented. It is necessary that there should be a demand for ransom. There is no complex crime of kidnapping with murder in this case because the kidnapping was not deliberately resorted to as a means for the perpetration of the murder. The killing was made on the spur of the moment when the victim assaulted his guard and tried to escape. This case is different or distinguishable from the typical cases of consummated kidnapping for ransom with murder such as People vs. Sta. Maria, L-19929, October 30, 1965, 15 SCRA 222; People vs. Paras, L-23111, March 29, 1974, 56 SCRA 248; People vs. Ging Sam, 94 Phil. 139 and Parulan vs. Rodas and Reyes, 78 Phil. 855 and People vs. Parulan, 88 Phil. 615. The fact that the kidnapping was accomplished and that the circumstances mentioned in article 267 of the Revised Penal Code were not present means that the crime committed may also be categorized as consummated slight illegal detention under article 268 of the Revised Penal Code. The killing of the kidnapped victim by Angih alias Ayub Alian (at large) was homicide only. For the killing, which was not contemplated in the conspiracy or which was not planned by the conspirators, only Angih, the actual killer, is responsible. De la Cruz, as a principal by inducement, cannot be held responsible for it. He was not present at the scene of the killing. He did not induce it and he could not have prevented it. LLjur The rule in article 4 of the Revised Penal Code that a person is criminally liable although the wrongful act done be different from that which he had intended or that an offender is liable for all the natural consequences of his felonious acts cannot be invoked to hold. De la Cruz liable for the homicide. Being a principal by inducement, he is answerable only for the crime which he induced which was kidnapping or illegal detention. Considering the aggravating circumstances attending the attempted kidnapping for ransom or the consummated crime of slight illegal detention, he should be sentenced to twelve years of prision mayor as minimum to eighteen years of reclusion temporal as maximum. PEOPLE vs MARIO NUNAG, ARNEL MANDAP, alias "Bubot", EFREN SALANGSANG, DANILO CARPIO and DIOSDADO MANALILI (May 12, 1989) Mario Nunag, Arnel Mandap alias "Bubot", Efren Salangsang, Danilo Carpio, and Diosdado Manalili were charged and found guilty with the crime of Rape. The complainant, Lorenza Lopez

then about fifteen and a half years old, declared that in the second week of May 1978, at about 7:30 o'clock in the evening, she was watching a television program outside the house of her neighbor. . As she was standing there, she saw the accused Mario Nunag, one of her neighbors, coming towards her. Mario Nunag was staggering and appeared to be drunk. Nunag came to her and asked her to go with him. But she refused, so that Nunag held her by the hand and poked a knife at her stomach and threatened to kill her. Nunag then placed something in her mouth and led her to a nearby ricefield, about 15 meters behind the house of Carmen Laxamana. 1 Very soon thereafter, they were joined by the other accused Arnel Mandap, Efren Salangsang, Danio Carpio and Diosdado Manalili, who were also very well known to her. After conferring in whispers, Arnel Mandap and Efren Salangsang held her hands, while Danilo Carpio and Diosdado Manalili held her feet, and forced her to he on the ground. Mario Nunag then undressed her and had sexual intercourse with her, at the same time fondling her breasts. She felt pain in her vagina. After Mario Nunag had finished, Arnel Mandap followed. After Arnel Mandap had finished, she lost consciousness and regained it while Diosdado Manalili was abusing her. The complainant felt pains and aches all over her body, especially in her breasts and vagina. She did not report the incident to anybody for fear of what the accused might do to her and her family. After the incident, the complainant missed her menstruation when it became due and noticed that her stomach was getting bigger. On 4 August 1978, her mother noticed her condition and asked her about it. She did not tell her mother at first, but, when her mother and brothers got angry, she told them that she had been raped by the five accused. On 10 October 1978, she gave birth prematurely to female twins who both died after a few hours. Mario Nunag admitted having sexual intercourse with the complainant. However, he denied the charge of rape. He claimed that it was consensual. He claimed to have been awakened by the complainant who touched his penis and embraced and kissed him. He felt lascivious and got the motorcycle of his cousin and brought the complainant to a ricefield. Thereafter, he gave her P4.00. Efren Salangsang also admitted having sexual intercourse with the complainant. He denied the charge of rape. He claimed that the victim came on to him. He also stated that after the intercourse, the complainant asked for some money and he gave her the amount of P2.50. The accused-appellant Diosdado Manalili also admitted that he had sexual intercourse with the complainant, but not during the first or the second week of May 1978. She led him to the backyard of Carmen Laxamana and asked him to have sexual intercourse with her. But, he refused. However, the complainant took hold of his penis and he had to capitulate. The accused-appellant, Danilo Carpio, upon the other hand, denied having sexual intercourse with the complainant at any time, although sometime in October 1976, complainant came to him and placed her hands inside the pocket of his pants and extracted therefrom some coins amounting to P1.00. After getting the money, the complainant asked him to fondle her breast, which he did. The accused-appellant Arnel Mandap also claimed that he did not have sexual intercourse with the complainant at any time. However, in the evening of 20 June 1978 the complainant who was standing beside him, suddenly took hold of his penis and invited him to the backyard of Carmen Laxamana. He agreed and when he rejoined the complainant, he found the complainant already lying down on the ground. He lifted her skirt and inserted his finger inside her vagina. He also fondled her breast. But, when he saw that her stomach was already quite big, he became afraid and left. Held

The Solicitor General recommends that each accused be found guilty of five (5) distinct and separate crimes of rape, because each accused is responsible, not only for the act of rape committed personally or individually by him, but also for the act of rape committed by the others, all five (5) accused having conspired, confederated together and mutually helped one another. It would appear, however, that there is no conclusive evidence that the accused-appellants Danilo Carpio and Efren Salangsang had sexual intercourse with the complainant, since the complainant said that she lost consciousness after the second man (Arnel Mandap) — the first being Mario Nunag — had sexually abused her and she regained consciousness while Diosdado Manalili was abusing her sexually, and that she merely asumed that Danilo Carpio and Efren Salangsang had also sexually abused her. Consequently, each of the five (5) accused-appellants must be found guilty of three (3) distinct and separate crimes of rape, the first three, namely, Mario Nunag, Arnel Mandap and Diosdado Manalili, by direct act and participation and the other two, namely Danilo Carpio and Efren Salangsang, by indispensible cooperation Accused-appellants Mario Nunag, Arnel Mandap and Efren Salangsang are each sentenced to suffer three (3) penalties of reclusion perpetua while accused-appellants Diosdado Manalili and Danilo Carpio, both being above sixteen (16) years and below eighteen (18) years at the time of the commission of the offenses, are each sentenced to suffer three (3) indeterminate penalties of ten (10) years of prision mayor, as minimum, and seventeen (17) years and four (4) months of reclusion temporal, as maximum. PEOPLE v SULPICIO DE LA CERNA, ET AL. (October 30, 1967) Sixteen persons, among them herein appellantsfor double murder for the fatal shooting of Rafael and Casiano Cabizares, father and son. Convicted for the murder of Rafael Cabizares were Sulpicio de la Cerna and Serapio Maquiling, as principals, and Godofredo Rotor, Antonio Bautista, Severino Matchoca and Teodoro Libumfacil, as accomplices. For the murder of Casiano Cabizares, the court convicted Sulpicio de la Cerna and Serapio Maquiling as principals, and Ramon Alquizar as accessory. Early in the morning of February 3, 1958, Rafael Cabizares, accompanied by his wife, his brothers and his sons Gumercindo, Marcelo, Casiano, Juan and Lamberto, left Barrio Cebuano headed for the poblacion of Tupi, Cotabato, bringing five sacks of corn loaded on a bull cart to be milled in Tupi. Juan, Marcelo and Lamberto, who were all minors, were then going to school. Upon approaching a hilly part, they had to stop since the carabao could not pull the bull cart uphill. Rafael then requested his two brothers and his son Gumercindo to accompany him up the hill and carry on their backs the sacks of corn. With Rafael leading, the four proceeded uphill. As the four approached Sulpicio de la Cerna's house on top of the hill and were about to put down the sacks of corn, appellant Sulpicio, who was in the house, fired at and hit Rafael, who fell down. Sulpicio then ordered his companions to burn his house so that they would have an excuse. Meanwhile, Casiano, Gumercindo, Marcelo and Romualdo brought the wounded Rafael Cabizares to the house of the latter's father, Demetrio, 100 meters away. Felisa Bastismo, Rafael's mother, Ursula Cabizares and Segundino Cabizares were there at the time. After the group reached the house, Rafael's wounds were washed with hot water and then he was brought inside the third room of the house. Subsequently, appellant Sulpicio and the other accused arrived at the premises, armed with firearms, bolos and canes. They stoned the house and trust their bolos thru the bamboo walls and flooring. Finding that there were women inside the house, the accused ordered them to get out or else they would be killed also. As Felisa Bastismo and Ursula Cabizares alighted from the besieged house, Marcelo Cabizares followed

them, and although held by accused Conrado Pardillo and boxed by Serapio Maquiling, he was able to escape to the nearby forest. Serapio Maquiling then climbed up the window of the kitchen, and with the carbine which he got from appellant Sulpicio de la Cerna, shot at Rafael Cabizares who was sitting in the third room. At this moment, Casiano Cabizares jumped down from the house thru the kitchen door and ran away. Serapio Maquiling followed him and shot the latter at the back, killing him a few meters away from Demetrio's house. Appellant Sulpicio de la Cerna then got back the carbine, climbed up the house and fired once more at Rafael, who was now lying down on the floor, killing him finally. Thereafter, the cadaver of Casiano Cabizares was tied to a bamboo pole, carried by accused Ramon Alquizar and one Wilfredo Malias (at large) and placed near the burned house of Sulpicio de la Cerna, as some of the accused followed while the rest proceeded to Rafael's house. The prosecution also presented proof that prior to the incident, a land dispute arose between Rafael and some of the accused, and that he had filed complaints with the Agrarian Court against the latter, the trial of which cases was scheduled on February 10, 1958. Held The killing of Rafael Cabizares was attended by treachery. Appellant Sulpicio contends that the first shot, fired by him, was not attended with treachery since there is evidence that Rafael was warned by his son Gumercindo just before he was hit in the lower abdomen. 41 However, even assuming the argument to be tenable, the second shot, by Serapio Maquiling, was definitely treacherously fired since Rafael was then in the third room of Demetrio's house, wounded and defenseless. The treachery here has to be independently considered due to the sufficient lapse of time42 from the first shot, in which the following events intervened: (1) the bringing of Rafael to Demetrio's house 100 meters away after being hit; (2) the washing of his wounds and his being brought to the third room to rest; (3) the arrival of the accused and their ordering the two women to get out. It was only after the women left that Serapio climbed up the kitchen and fired the second shot at Rafael. Appellant Sulpicio is chargeable for the treacherous shooting of Rafael by Serapio Maquiling since both were acting as co-conspirators pursuant to their understanding in the meeting held the day before in Andres Abapo's house, as will be shown presently. Anyway, the third shot, fired by Sulpicio, was treacherously done. Rafael was then flat on the floor and although still alive, was completely defenseless, having been shot twice already. Evident premeditation was also present in this case. The previous plan to kill Rafael Cabizares was testified to by witness Maximo Caña who was present in the meeting of February 2, 1958, in the house of Andres Abapo. Of the many persons present, he recognized only appellants Sulpicio de la Cerna, Antonio Bautista, Severino Matchoca and Serapio Maquiling. Bautista told the group that the purpose of the meeting was to plan the killing of Rafael Cabizares. Then both he and Serapio Maquiling signified their willingness to execute it. Appellant Sulpicio also offered to do it provided his family would be taken care of. To this offer, Bautista and Maquiling replied that they would take care of Sulpicio's family. Caña testified further that none of those attending voiced out any objection but all agreed to the plan. Caña was also present in the early morning of February 3, 1958, when Matchoca, accompanied by Bautista, gave the magazine of bullets to Godofredo Rotor. He was likewise with the accused when Rafael was shot at the hill top, and when he (Rafael) and Casiano were killed in Demetrio's place. There being a previous direct conspiracy one day before the killing, evident premeditation is duly established.51 This qualifying circumstance is further buttressed by the following actuations of appellant on February 3, 1958: (1) Upon seeing Rafael near his house, Sulpicio told his companions to get ready since the one they were awaiting was there already. And then he shot at Rafael. (2) As Rafael was being brought to Demetrio's house, Sulpicio ordered his companions to burn his house so they would have an excuse already. (3) With the other appellants, he pursued the wounded Rafael to Demetrio's house where after they had stoned the same and thrust their bolos thru its wallings, they ordered the women folk to leave lest they be killed also; and (4) after Serapio had already shot at Rafael, Sulpicio still fired a third shot, finally killing

Rafael. All these still overtly show appellant's determination to end Rafael's life. The killing, therefore, was properly qualify as murder. However, appellant Sulpicio cannot be held liable for the killing of Casiano Cabizares notwithstanding a conspiracy between him and Serapio Maquiling. The conspiracy was to kill Rafael only and no one else. Nothing was said or agreed upon about the members of Rafael's family. In fact, in executing their plan appellants let the two women inside Demetrio's house leave unhurt and they did no harm to the remaining companions of Rafael in the house. Their target was solely Rafael Cabizares. And the rule has always been that co-conspirators are liable only for acts done pursuant to the conspiracy. For other acts done outside the contemplation of the co-conspirators or which are not the necessary and logical consequence of the intended crime, only the actual perpetrators are liable. 52 Here, only Serapio killed Casiano Cabizares. The latter not even going to the aid of his father Rafael but was fleeing away when shot. Although Serapio got the carbine from Sulpicio, the latter cannot be considered a principal by indispensable cooperation or an accomplice. There is no evidence at all that Sulpicio was aware Serapio would use the rifle to kill Casiano. Presumably, he gave the carbine to Serapio for him to shoot Rafael only as per their agreement. Neither is there concrete proof that Sulpicio abetted the shooting of Casiano. Sulpicio might have been liable if after the shooting of Rafael, Serapio returned the carbine to him but upon seeing Casiano fleeing, immediately asked again for the carbine and Sulpicio voluntarily gave it to him. Serapio's criminal intention then would be reasonably apparent to Sulpicio and the latter's giving back of the rifle would constitute his assent thereto. But such was not the case. Sulpicio, therefore, must be acquitted for the killing of Casiano Cabizares. The prosecution proved that in the early morning of February 3, 1958, Rotor was with Maximo Caña fetching water in the spring. On their way home, they met appellants Bautista and Matchoca. The latter gave Rotor a carbine magazine with bullets, saying: "Here is the magazine of the bullets and give it to Sulpicio de la Cerna." And appellant Bautista said: "Please hurry. Give it to Sulpicio de la Cerna because we will follow later on." Shortly afterwards, Caña went with him to Sulpicio's house where he gave the magazine to Sulpicio, saying: "Here are some bullets supposed to be given to you."53 Rotor was seen outside — downstairs of — Sulpicio's house later that morning by Margarito and Gumercindo Cabizares. After Sulpicio had fired at Rafael, Rotor got the pistol from appellant Libumfacil and fired also at Rafael.54 This appellant was also seen by Romualdo, Ursula and Segundino Cabizares as among those who arrived at Demetrio's house. 55 When Ursula Cabizares alighted from the house, she saw Rotor outside holding a pistol which he gave to Libumfacil commenting that it was stuck.56 After the killing of the decedents, Romualdo Cabizares saw him with the group following the cadaver of Casiano Cabizares which was being brought near Sulpicio's burned house.57 In the face of the overwhelming positive identification of six prosecution witnesses, Rotors uncorroborated alibi must fail. Although he was not present or did not participate in the meeting of February 2, 1968, his presence in the situs of the shootings on February 3, 1958 was not merely passive. His active participation — shooting at Rafael and carrying a pistol — which has a direct connection with the criminal design against Rafael Cabizares makes him a principal by indirect conspiracy, not an accomplice only. Motive is not wanting. Rotor admitted that his wife is the sister of Sulpicio's wife58 and the evidence shows that his father had a land dispute with Rafael Cabizares and was a respondent in the case before the Agrarian Court. 59 The prosecution has also established that these two appellants Bautista and Matchoca. were in the meeting held in Abapo's house on February 2, 1958. They openly participated therein. Their meeting with appellant Rotor early the following morning has also been established thru the testimony of Maximo Caña. These two were also seen outside Sulpicio's house. Bautista was carrying a bolo and a cane and was heard shouting at Rafael thus: "Rafael, you cannot reach the trial because we will kill you." 60

Gumercindo Cabizares also heard Matchoca shouting: "Go ahead, shoot. We will kill him so that he will not reach the day of the hearing." 61 Bautista and Matchoca were among those who went to Demetrio's house. 62 The former thrust his bolo thru the bamboo wallings hitting Segundino Cabizares. 63 When Ursula Cabizares came down from the house, she saw Bautista holding a bolo. 64 Romualdo, on the other hand, claimed having seen him holding a firearm.65 After the killings had taken place, Bautista went with the group that proceeded back to Sulpicio's burned house whereas Matchoca marched with the other group headed for Rafael's house.66 Maximo Caña saw appellant Libumfacil outside Sulpicio's house when the former arrived there with appellant Rotor in the morning of February 3, 1958. Libumfacil had a pistol which he also fired at Rafael.67 Gumercindo Cabizares also saw him holding a pistol which he gave to Rotor who then took a shot at Rafael.68 Appellant Libumfacil was seen by Caña again among those who went with the other accused downhill from Sulpicio's house to Demetrio's house. 69 The other prosecution witnesses saw him also around Demetrio's house, armed with a pistol. 70 He was among those who stoned the house.71 When Ursula Cabizares alighted therefrom, she saw appellant Libumfacil outside, conversing with Rotor and receiving from the latter a pistol which had gotten stuck. After the incidents in Demetrio's house, Libumfacil went with appellants Rotor and Bautista to Sulpicio's burned house.72 We find therefore all five appellants guilty as co-principals in the murder of Rafael Cabizares. The aggravating circumstance of treachery, applicable against appellant Sulpicio de la Cerna only, is offset by his voluntary surrender after the incident. This mitigating circumstance however can not benefit the remaining appellants who did not voluntarily surrender. For all the appellants, therefore, the penalty for Rafael Cabizares' murder must be imposed in the medium period. For the killing of Casiano Cabizares, appellant Sulpicio de la Cerna must be acquitted. PEOPLE vs. NAPOLEON MONTEALEGRE (May 31, 1988) At about 11:30 in the evening of March 11, 1983, while Edmundo Abadilia was eating at the Meding's Restaurant in Cavite City, he detected the smell of marijuana smoke coming from a nearby table. Intending to call a policeman, he quietly went outside and saw Pfc. Renato Camantigue in his car whom he hailed to report the matter. After parking his vehicle, Camantigue joined Abadilla in the restaurant and soon thereafter the two smelled marijuana smoke from the table occupied by Vicente Capalad and the accused-appellant. Camantigue then approached the two and collared both of them, saying "Nagmamarijuana kayo, ano?' While Camantigue was holding the two, Montealegre with this right hand and Capalad with his left hand, Capalad suddenly and surreptitiously pulled out a knife from a scabbard tucked in the right side of his waist and started stabbed Camantigue in the back. Camantigue let loose Montealegre to draw the gun from his holster but Montealegre, thus released, restrained Camantigue's hand to prevent the latter from defending himself Montealegre used both his hands for his purpose 3 as Capalad continued stabbing the Victim. 4 While they were thus grappling, the three fen to the floor and Capalad, freed from Camantigue's grip, rose and scampered toward the door. Camantigue fired and, continuing the pursuit outside, fired again. 5 Capalad fled into a dark alley. Camantigue abandoned the chase and asked to be brought to a hospital. Capalad was later found slumped in the alley with a bullet wound in Ms chest. Neither Camantigue nor Capalad survived, both expiring the following day. 6 The accused-appellant, for his part, escaped during the confusion On direct examination, Abadilla testified that Montealegre prevented Camantigue from drawing his pistol while he was being stabbed by Capalad, demonstrating with the aid of court personnel the relative positions of the three during the incident.

The accused-appellant, testifying on his behalf, only succeeded in confinning his own guilt. He claimed he ran away before the stabbing but his testimony, consisting of denials, evasions, contradictions, claims of ignorance and forgetfulness and protestations of innocence, does not have the ring of truth. The Court accepts the evidence established by the prosecution that at the time of the stabbing, the victim was in uniform and, therefore, could easily be recognized as a person in authority. Several witnesses testified as to his attire when he was killed. 26 And even assuming that the victim was in civilian clothes on that tragic night, the record shows that no less than the accusedappellant himself, replying to questions put to him by the prosecution, declared twice that he knew the victim to be a policeman. 27 The accused-appellant was correctly considered a co-principal for having collaborated with Capalad in the killing of the police officer. The two acted in concert, with Capalad actually stabbing Camantigue seven times and the accused-appellant holding on to the victim's hands to prevent him from drawing his pistol and defending himself. While it is true that the accusedappellant did not himself commit the act of stabbing, he was nonetheless equally guilty thereof for having prevented Camantigue from resisting the attack against him. The accused-appellant was a principal by indispensable cooperation under Article 17, par. 3, of the Revised Penal Code. As correctly interpreted, the requisites of this provision are: "(1) participating in the criminal resolution, that is, there is either anterior conspiracy or unity of criminal purpose and intention immediately before the commission of the crime charged; and (2) cooperation in the commission of the offense by performing another act without which it would not have been accomplished. The prosecution contends that although there was no evidence correspondence of a prior agreement between Capalad and Montealegre, their subsequent acts should prove the presence of such conspiracy. Conspiracy need not be established by direct proof as it can be inferred from the acts of the appellants. It is enough that, at the time the offense was committed, participants had the same purpose and were united in its execution; as may be inferred from the attendant circiumstances.

We agree that there is no evidence to show a previous plan to kill Regino Bautista. The whole incident happened because the accused came upon Bautista and Mallabo fishing within or near the fishpond enclosure of Carlo Aquino which was under the care of Vicente Cercano. But for a collective responsibility among the herein accused to be established, it is not necessary or essential that there be a previous plan or agreement to commit the assault; it is sufficient that at the time of the aggression all the accused by their acts manifested a common intent or desire to attack Bautista and Mallabo, so that the act of one accused became the act of all. 30 As for the second requirement, the Court has held that: There can be no question that appellant's act in holding the victim from behind when the latter was stabbed by his collaborated Victor Buduan, was a positive act towards the realization of a common criminal intent, although the intent can be classified as instantaneous. It can be safely assumed that had not appellant held both arms of the victim from behind, the latter could have partied the thrust or even run away from his assailant. By immobilizing the two hands of the victim from behind, and although there was no anterior conspiracy , the two cousins showed unity of criminal purpose and intent immediately before the actual stabbing. 32 It has been sufficiently established that appellant Cabiles seized the running decedent in such a manner that the latter could not even move or tum around. This enabled the pursuing Labis, who was armed with a drawn bolo and was barely five meters away from the decedent, to finally overtake him and stab him at the back with hardly any risk at all. Cabiles therefore performed another act-holding the decedent—without which the crime would not have been accomplished. This makes him a principal by indispensable cooperation. 33

The above requisites having been established, the accused-appellant was correctly convicted of the complex crime of murder, as qualified by treachery, with assault upon a person in authority. Accordingly, he must suffer the penalty imposed upon him, to wit, reclusion perpetua, there being no aggravating and mitigating circumstances, plus the civil indemnity, which is hereby increased to P30,000.00, and the actual, mectical and fimeral expenses in the sum of P37,380.00 as proved at the trial. PEOPLE OF THE PHILIPPINES, petitioner, vs. Judge SIMEON N. FERRER (December 27, 1972) On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-Subversion Act was filed against the respondent Feliciano Co. Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court, charging the respondent Nilo Tayag and five others with subversion. Co and Tayag moved to quash, impugning the validity of the statute on the grounds that (1) it is a bill of attainder; (2) it is vague; (3) it embraces more than one subject not expressed in the title thereof; and (4) it denies them the equal protection of the laws. The Anti-Subversion Act Was condemned by the court a quo as a bill of attainder because it "tars and feathers" the Communist Party of the Philippines as a "continuing menace to the freedom and security of the country; its existence, a 'clear, present and grave danger to the security of the Philippines.' "By means of the Act, the trial court said, Congress usurped "the powers of the judge," and assumed "judicial magistracy by pronouncing the guilt of the CPP without any of the forms or safeguards of judicial trial." Finally, according to the trial court, "if the only issue [to be determined] is whether or not the accused is a knowing and voluntary member, the law is still a bill of attainder because it has expressly created a presumption of organizational guilt which the accused can never hope to overthrow." Is the Anti-Subversion Act unconstitutional? No. Not a Bill of Attainder When the Act is viewed in its actual operation, it will be seen that it does not specify the Communist Party of the Philippines or the members thereof for the purpose of punishment. What it does is simply to declare the Party to be an organized conspiracy for the overthrow of the Government for the purposes of the prohibition, stated in section 4, against membership in the outlawed organization. The term "Communist Party of the Philippines" is used solely for definitional purposes. In fact the Act applies not only to the Communist Party of the Philippines but also to "any other organization having the same purpose and their successors." Its focus is not on individuals but on conduct. Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge Communists in court, as the law alone, without more, would suffice to secure their punishment. But the undeniable fact is that their guilt still has to be judicially established. The Government has yet to prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that they joined the Party, knowing its subversive character and with specific intent to further its basic objective, i.e., to overthrow the existing Government by force, deceit, and other illegal means and place the country under the control and domination of a foreign power. No Imputation of Organizational Guilty outside the concept of Conspiracy As to the claim that under the statute organizational guilt is nonetheless imputed despite the requirement of proof of knowing membership in the Party, suffice it to say that that is precisely the nature of conspiracy, which has been referred to as a "dragnet device" whereby all who participate in the criminal covenant are liable. The contention would be correct if the statute were construed as punishing mere membership devoid of any specific intent to further the unlawful goals of the Party. But the statute specifically requires that membership must be knowing or active, with specific intent to further the illegal objectives of the

Party. That is what section 4 means when it requires that membership, to be unlawful, must be shown to have been acquired "knowingly, willfully and by overt acts." The ingredient of specific intent to pursue the unlawful goals of the Party must be shown by "overt acts." This constitutes an element of "membership" distinct from the ingredient of guilty knowledge. The former requires proof of direct participation in the organization's unlawful activities, while the latter requires proof of mere adherence to the organization's illegal objectives. Even assuming, however, that the Act specifies individuals and not activities, this feature is not enough to render it a bill of attainder. Indeed, it is only when a statute applies either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial does it become a bill of attainder. It is upon this ground that statutes which disqualified those who had taken part in the rebellion against the Government of the United States during the Civil War from holding office, or from exercising their profession, or which prohibited the payment of further compensation to individuals named in the Act on the basis of a finding that they had engaged in subversive activities, or which made it a crime for a member of the Communist Party to serve as an officer or employee of a labor union, have been invalidated as bills of attainder. Moreover, the activities of the Communist Party of the Philippines have been known to be inimical to the country. In the Philippines the character of the Communist Party has been the object of continuing scrutiny by this Court. In 1932 we found the Communist Party of the Philippines to be an illegal association. 28 In 1969 we again found that the objective of the Party was the "overthrow of the Philippine Government by armed struggle and to establish in the Philippines a communist form of government similar to that of Soviet Russia and Red China." More recently, in Lansang vs. Garcia, we noted the growth of the Communist Party of the Philippines and the organization of Communist fronts among youth organizations such as the Kabataang Makabayan (KM) and the emergence of the New People's Army. After meticulously reviewing the evidence, we said: "We entertain, therefore, no doubts about the existence of a sizeable group of men who have publicly risen in arms to overthrow the government and have thus been and still are engaged in rebellion against the Government of the Philippines." Nor is it enough that the statute specify persons or groups in order that it may fall within the ambit of the prohibition against bills of attainder. It is also necessary that it must apply retroactively and reach past conduct. This requirement follows from the nature of a bill of attainder as a legislative adjudication of guilt. As Justice Frankfurter observed, "frequently a bill of attainder was.. doubly objectionable because of its ex post facto features. This is the historic explanation for uniting the two mischiefs in one clause — 'No Bill of Attainder or ex post facto law shall be passed.' . . . Therefore, if [a statute] is a bill of attainder it is also an ex post facto law. But if it is not an ex post facto law, the reasons that establish that it is not are persuasive that it cannot be a bill of attainder." Indeed, if one objection to the bill of attainder is that Congress thereby assumes judicial magistracy, then it must be demonstrated that the statute claimed to be a bill of attainder reaches past conduct and that the penalties it imposes are inescapable. As already stated, the legislative declaration in section 2 of the Act that the Communist Party of the Philippines is an organized conspiracy for the overthrow of the Government is intended not to provide the basis for a legislative finding of guilt of the members of the Party but rather to justify the proscription spelled out in section 4. Freedom of expression and freedom of association are so fundamental that they are thought by some to occupy a "preferred position" in the hierarchy of constitutional values. Accordingly, any limitation on their exercise must be justified by the existence of a substantive evil. This is the reason why before enacting the statute in question Congress conducted careful investigations and then stated its findings in the preamble, thus: ". . . [T]he Communist Party of the Philippines although purportedly a political party, is in fact an organized conspiracy to overthrow the Government of the Republic of the Philippines not only by force and violence but also by deceit, subversion and other illegal means, for the purpose of establishing in the Philippines a totalitarian regime subject to alien domination and control;

". . . [T]he continued existence and activities of the Communist Party of the Philippines constitutes a clear, present and grave danger to the security of the Philippines; . . . [I]n the face of the organized, systematic and persistent subversion, national in scope but international in direction, posed by the Communist Party of the Philippines and its activities, there is urgent need for special legislation to cope with this continuing menace to the freedom and security of the country." In truth, the constitutionality of the Act would be open to question if, instead of making these findings in enacting the statute, Congress omitted to do so. The test formulated in Nebbia vs. New York, and adopted by this Court in Lansang vs. Garcia, is that "if laws are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio." The recital of legislative findings implements this test. The argument that the Act is unconstitutionally overbroad because section 2 merely speaks of "overthrow" of the Government and overthrow may be achieved by peaceful means, misconceives the function of the phrase "knowingly, willfully and by overt acts" in section 4. Section 2 is merely a legislative declaration; the definitions of and the penalties prescribed for the different acts prescribed are stated in section 4 which requires that membership in the Communist Party of the Philippines, to be unlawful, must be acquired "knowingly, willfully and by overt acts." As already pointed out, the Act is aimed against conspiracies to overthrow the Government by force, violence or other illegal means. Whatever interest in freedom of speech and freedom of association is infringed by the prohibition against knowing membership in the Communist Party of the Philippines, is so indirect and so insubstantial as to be clearly and heavily outweighed by the overriding considerations of national security and the preservation of democratic institutions in this country. MARIO GUMABON et al vs. THE DIRECTOR OF THE BUREAU OF PRISONS (January 30, 1971) The petitioners herein were meted out life terms for the complex crime of rebellion with murder and other crimes. They invoke the People v. Hernandez doctrine, negating the existence of such an offense, a ruling that unfortunately for them was not handed down until after their convictions had become final. They invoke the codal provision that judicial decisions shall form part of the legal system of the Philippines, thus the Hernandez decision once promulgated calls for a retroactive effect under the explicit mandate of the Revised Penal Code as to penal laws having such character even if at the time of their application a final sentence has been rendered "and the convict is serving the same." Mario Gumabon, after pleading guilty, was sentenced on May 5, 1953 to suffer reclusion perpetua for the complex crime of rebellion with multiple murder, robbery, arson and kidnapping. Petitioners Gaudencio Agapito, Paterno Palmares and Epifanio Padua, likewise pleaded guilty to the complex crime of rebellion with multiple murder and other offenses, and were similarly made to suffer the same penalty. Blas Bagolbagol, stood trial also for the complex crime of rebellion with multiple murder and other offenses and on January 12, 1954 penalized with reclusion perpetua. Each of the petitioners has been since then imprisoned by virtue of the above convictions. Each of them has served more than 13 years. Subsequently, in People v. Hernandez, this Court ruled that the information against the accused in that case for rebellion complexed with murder, arson and robbery was not warranted under Article 134 of the Revised Penal Code, there being no such complex offense. Issues/Held Is the writ of Habeas Corpus the proper remedy?

Yes. It is not known as the writ of liberty for nothing. The writ imposes on judges the grave responsibility of ascertaining whether there is any legal justification for a deprivation of physical freedom. Unless there be such a showing, the confinement must thereby cease. If there be a valid sentence it cannot, even for a moment, be extended beyond the period provided for by law. The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action . . . The scope and flexibility of the writ — its capacity to reach all manner of illegal detention — its ability to cut through barriers of form and procedural mazes — have always been emphasized and jealously guarded by courts and lawmakers. The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected. Even if the judgment of imprisonment was issued by a competent court? Yes. The validity of the ruling may be impugned by the writ if the court had no jurisdiction on the matter in the first place. Where, however, the detention complained of finds its origin in what has been judicially ordained, the range of inquiry in a habeas corpus proceeding is considerably narrowed. For if "the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order," the writ does not lie. One such principle is the requirement that there be a finding of jurisdictional defect. As summarized by Justice Bradley in Ex parte Siebold, an 1880 decision: "The only ground on which this court, or any court, without some special statute authorizing it, will give relief on habeas corpus to a prisoner under conviction and sentence of another court is the want of jurisdiction in such court over the person or the cause, or some other matter rendering its proceedings void." There is the fundamental exception though, that must ever be kept in mind. Once a deprivation of a constitutional right is shown to exist, the court that rendered the judgment is deemed ousted of jurisdiction and habeas corpus is the appropriate remedy to assail the legality of the detention. Petitioners precisely assert a deprivation of a constitutional right, namely, the denial of equal protection. According to their petition: "In the case at bar, the petitioners were convicted by Courts of First Instance for the very same rebellion for which Hernandez, Geronimo, and others were convicted. The law under which they were convicted is the very same law under which the latter were convicted. It had not and has not been changed. They would thus stress that, contrary to the mandate of equal protection, people similarly situated were not similarly dealt with. What is required under this constitutional guarantee is the uniform operation of legal norms so that all persons under similar circumstances would be accorded the same treatment both in the privileges conferred and the liabilities imposed. Retroactivity of Penal Laws Petitioners rely on Article 22 of the Revised Penal Code which requires that penal judgment be given a retroactive effect. While reference in the above provision is made not to judicial decisions but to legislative acts, petitioners entertain the view that it would be merely an exaltation of the literal to deny its application to a case like the present. Such a belief has a firmer foundation. As was previously noted, the Civil Code provides that judicial decisions applying or interpreting the Constitution, as well as legislation, form part of our legal system. Petitioners would even find support in the well-known dictum of Bishop Hoadley: "Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the law-giver to all intents and purposes, and not the person who first thought or spoke them." We do not have to go that far though. Enough for present purposes that both the Civil Code and the Revised Penal Code allow, if they do not call for, a retroactive application.

Conclusion It being undeniable that if the Hernandez ruling were to be given a retroactive effect petitioners had served the full term for which they could have been legally committed, is habeas corpus the appropriate remedy? The answer cannot be in doubt. The courts uniformly hold that where a sentence imposes a punishment in excess of the power of the court to impose, such sentence is void as to the excess, and some of the courts hold that the sentence is void in toto; but the weight of authority sustains the proposition that such a sentence is void only as to the excess imposed in case the parts are separable, the rule being that the petitioner is not entitled to his discharge on a writ of habeas corpus unless he has served out so much of the sentence as was valid. The only means of giving retroactive effect to a penal provision favorable to the accused . . . is the writ of habeas corpus. PEOPLE OF THE PHILIPPINES vs. NIGEL RICHARD GATWARD, and U AUNG WIN (February 7, 1997) This case involves Republic Act No. 7659, which authorized the re-imposition of the death penalty and amended certain provisions of the Revised Penal Code and the Dangerous Drugs Act of 1972 dwelling mainly on the issue of whether the penalty of reclusion perpetua is divisible or indivisible in nature. (Indivisible.) Facts The accused is charged with violating Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of 1972 (transporting heroin) while Win was charged for violating Section 3 (importing heroin). At about 3:30 in the afternoon of August 30, 1994, accused U Aung Win, a Passenger of TG Flight No. 620 of the Thai Airways which had just arrived from Bangkok, Thailand, presented his luggage for examination to Customs Examiner at the Arrival Area of the Ninoy Aquino International Airport (NAIA). When Tawano was about to inspect his luggage, the accused suddenly left, proceeding towards the direction of Carousel No. 1, the conveyor for the pieces of luggage of the passengers of Flight No. 620, as if to retrieve another baggage from it. After having inspected the luggages of the other incoming passengers, Tawano became alarmed by the failure of U Aung Win to return and suspected that the bag of the accused contained illegal articles. The bag was turned over to the office of the Customs Police in the NAIA for x-ray examination where it was detected that it contained some powdery substance. When opened, the bag revealed two packages containing the substance neatly hidden in between its partitions. The two chemists concluded that the entire substance, with a total weight of 5,579.80 grams, contained in the two packages found in the bag of U Aung Win, is heroin. During the investigation of U Aung Win, the agents of the Customs Police and the Narcotics Command (NARCOM) gathered the information that the accused had a contact in Bangkok and that there were other drug couriers in the Philippines. An entrapment plan was made to apprehend Gatward. On August 31, 1994, operatives of the NAIA Customs Police mounted a surveillance operation at the Departure Area for Gatward and Zaw Win Naing who might be leaving the country. (KLM Royal Dutch Airlines Flight No. 806, bound for Amsterdam via Bangkok) Customs Police Captain Juanito Algenio requested Victorio Erece, manager of the KLM airline at the NAIA, to let passenger Gatward disembark from the aircraft and to have his checked-in luggage, if any, unloaded. Upon his disembarkment. Gatward was invited by the police officers for investigation. At about 3:00 o'clock in the afternoon of September 1, 1994, Gatward's luggage, was brought back to the NAIA from Bangkok through the Thai airways. Upon its. retrieval, the law enforcers subjected the bag to x-ray examinations in the presence of accused Gatward and some Customs officials. It was observed to contain some powdery substance. Ruling of the Trial Court

Since the heroin subject of each of these two cases exceeds 40 grams, it follows that the penalty which may be imposed on each accused shall range from reclusion perpetua to death. The voluntary plea of guilty of the said accused (Win), which was made upon his arraignment and therefore before the presentation of the evidence of the prosecution, should be appreciated as a mitigating circumstance. Under Article 63 of the Revised Penal Code, which prescribes the rules for the application of indivisible penalties, in all cases in which the law prescribes a penalty composed of two indivisible penalties, the lesser penalty shall be applied if neither mitigating nor aggravating circumstances are present in the commission of the crime, or if the act is attended by a mitigating circumstance and there is no aggravating circumstance. However, this rule may no longer be followed in these cases, although the penalty prescribed by law is reclusion perpetua to death, since reclusion perpetua, which was an indivisible penalty before, is now a divisible penalty with a duration from 20 years and one (1) day to 40 years, in accordance with Article 27 of the Revised Penal Code, as amended by Republic Act No. 7659. Pursuant to this principle, the penalty of "reclusion perpetua to death" shall have the following periods: Death, as the maximum; thirty (30) years and one (1) day to forty (40) years, as the medium; and twenty (20) years and one (1) day to thirty (30) years, as the minimum. As there is no mitigating or aggravating circumstance shown to have attended the commission of the offense charged against Gatward, the penalty to be imposed on him shall be within the range of the medium period. On the other hand, since U Aung Win is favored by one mitigating circumstance without any aggravating circumstance to be taken against him, the penalty which may be imposed on him shall be within the range of the minimum period. Nigel Richard Gatward = he is sentenced to suffer the penalty of imprisonment for thirty-five (35) years of reclusion perpetua U Aung Win = he is sentenced to suffer the penalty of imprisonment for twenty-five (25) years of reclusion perpetua Issue Is RP a divisible penalty? Held No. In the cases at bar, the same legal obstacle constrained the Court to deny appellant's motion to withdraw his appeal. The trial court had, by considering reclusion perpetua as a divisible penalty, imposed an unauthorized penalty on both accused which would remain uncorrected if the appeal had been allowed to be withdrawn. In fact, it would stamp a nihil obstantium on a penalty that in law does not exist and which error, initially committed by this Court in another case on which the trial court relied, had already been set aright by this Court. As amended by Republic Act No. 7569, the respective penalties imposable under Sections 3 and 4 of the Dangerous Drugs Act, in relation to Section 20 thereof, would range from reclusion perpetua to death and a fine of P500,000.00 to P10,000,000.00 if the quantity of the illegal drug involved, which is heroin in this case, should be 40 grams or more. In the same amendatory law, the penalty of reclusion perpetua is now accorded a "defined duration" ranging from twenty (20) years and one (1) day to forty (40) years, through the amendment introduced by it to Article 27 of the Revised Penal Code. This led the trial court to conclude that said penalty is now divisible in nature, and that "(c)onsequently, the penalty of "reclusion perpetua to death" should at present be deemed to fall within the purview of the "penalty prescribed" which "does not have one of the forms specially provided for" in the Revised Penal Code, and the periods of which "shall be distributed" by an analogous application of the rules in Article 77 of the Code. Pursuant to its hypothesis, the penalty of "reclusion perpetua to death shall have the following periods: death, as the maximum;

thirty (30) years and one (1) day to forty (40) years, as the medium; and twenty (20) years and one (1) day to thirty (30) years, as the minimum." We cannot altogether blame the lower court for this impasse since this Court itself inceptively made an identical misinterpretation concerning the question on the indivisibility of reclusion perpetua as a penalty. In People vs. Lucas, the Court was originally of the view that by reason of the amendment of Article 27 of the Code by Section 21 of Republic Act No. 7569, there was conferred upon said penalty a defined duration of 20 years and 1 day to 40 years; but that since there was no express intent to convert said penalty into a divisible one, there having been no corresponding amendment to Article 76, the provisions of Article 65 could be applied by analogy. The Court then declared that reclusion perpetua could be divided into three equal portions, each portion composing a period. In effect, reclusion perpetua was then to be considered as a divisible penalty. In a subsequent re-examination of and a resolution in said case on January 9, 1995, occasioned by a motion for clarification thereof, the Court en banc realized the misconception, reversed its earlier pronouncement, and has since reiterated its amended ruling in three succeeding appellate litigations. The Court, this time, held that in spite of the amendment putting the duration of reclusion perpetua at 20 years and 1 day to 40 years, it should remain as an indivisible penalty since there was never any intent on the part of Congress to reclassify it into a divisible penalty. This is evident from the undisputed fact that neither Article 63 nor Article 76 of the Code had been correspondingly altered, to wit: Verily, if reclusion perpetua was reclassified as a divisible penalty, then Article 63 of the Revised Penal Code would lose its reason and basis for existence. To illustrate, the first paragraph of Section 20 of the amended R.A. No. 6425 provides for the penalty of reclusion perpetua to death whenever the dangerous drugs involved are of any of the quantities stated therein. If Article 63 of the Code were no longer applicable because reclusion perpetua is supposed to be a divisible penalty, then there would be no statutory rules for determining when either reclusion perpetua or death should be the imposable penalty. In fine, there would be no occasion for imposing reclusion perpetua as the penalty in drug cases, regardless of the attendant modifying circumstances. This problem revolving around the non-applicability of the rules in Article 63 assumes serious proportions since it does not involve only drug cases, as aforesaid. Under the amendatory sections of R.A. No. 7659, the penalty of reclusion perpetua to death is also imposed on treason by a Filipino (Section 2), qualified piracy (Section 3), parricide (Section 5), murder (Section 6), kidnapping and serious illegal detention (Section 8), robbery with homicide (Section 9), destructive arson (Section 10), rape committed under certain circumstances (Section 11), and plunder ( Section 12). In the same resolution, the Court adverted to its holding in People vs. Reyes, that while the original Article 27 of the Revised Penal Code provided for the minimum and the maximum ranges of all the penalties therein, from arresto menor to reclusion temporal but with the exceptions of bond to keep the peace, there was no parallel specification of either the minimum or the maximum range of reclusion perpetua. Said article had only provided that a person sentenced to suffer any of the perpetual penalties shall, as a general rule, be extended pardon after service thereof for 30 years. Likewise, in laying down the procedure on successive service of sentence and the application of the three-fold rule, the duration of perpetual penalties is computed at 30 years under Article 70 of the Code. Furthermore, since in the scales of penalties provided in the Code, specifically those in Articles 25, 70 and 71, reclusion perpetua is the penalty immediately higher than reclusion temporal, then its minimum range should by necessary implication start at 20 years and 1 day while the maximum thereunder could be co-extensive with the rest of the natural life of the offender. However, Article 70 provides that the maximum period in regard to service of the sentence shall not exceed 40 years. Thus, the maximum duration of reclusion perpetua is not and has never been 30 years which is merely the number of years which the convict must serve in order to be eligible for pardon or for

the application of the three-fold rule. Under these accepted propositions, the Court ruled in the motion for clarification in the Lucas case that Republic Act No. 7659 had simply restated existing jurisprudence when it specified the duration of reclusion perpetua at 20 years and 1 day to 40 years. The error of the trial court was in imposing the penalties in these cases based on the original doctrine in Lucas which was not yet final and executory, hence open to reconsideration and reversal. The same having been timeously rectified, appellant should necessarily suffer, the entire extent of 40 years of reclusion perpetua, in line with that reconsidered dictum subsequently handed down by this Court. In passing, it may be worth asking whether or not appellant subsequently learned of the amendatory resolution of the Court under which he stood to serve up to 40 years, and that was what prompted him to move posthaste for the withdrawal of his appeal from a sentence of 35 years. This was not a case of a court rendering an erroneous judgment by inflicting a penalty higher or lower than the one imposable under the law but with both penalties being legally recognized and authorized as valid punishments. An erroneous judgment, as thus understood, is a valid judgment. But a judgment which ordains a penalty which does not exist in the catalogue of penalties or which is an impossible version of that in the roster of lawful penalties is necessarily void, since the error goes into the very essence of the penalty and does not merely arise from the misapplication thereof. Corollarily, such a judgment can never become final and executory. THE PEOPLE OF THE PHILIPPINES vs. ABELARDO FORMIGONES (November 29, 1950) In November, 1946, Formigones was living on his farm in Bahao, Libmanan, municipality of Sipocot, Camarines Sur, with his wife, Julia Agricola, and his five children. From there they went to live in the house of his half-brother, Zacarias Formigones, in the barrio of Binahian of the same municipality of Sipocot. After about a month's stay or rather on December 28, 1946, late in the afternoon, Julia Agricola was sitting at the head of the stairs of the house. The accused, without any previous quarrel or provocation whatsoever, took his bolo from the wall of the house and stabbed his wife, Julia, in the back, the blade penetrating the right lung and causing a severe hemorrhage resulting in her death not long thereafter. The blow sent Julia toppling down the stairs to the ground, immediately followed by her husband Abelardo who, taking her up in his arms, carried her up the house, laid her on the floor of the living room and then lay down beside her. In this position he was found by the people who came in response to the shouts for help made by his eldest daughter, Irene Formigones, who witnessed and testified to the stabbing of her mother by her father. Investigated by the Constabulary, defendant Abelardo signed a written statement wherein he admitted that he killed his wife. The motive was admittedly that of jealousy because according to his statement he used to have quarrels with his wife for the reason that he often saw her in the company of his brother Zacarias; that he suspected that the two were maintaining illicit relations because he noticed that his wife had become indifferent to him (defendant). During trial His counsel presented the testimony of two guards of the provincial jail to the effect that his conduct there was rather strange and that he behaved like an insane person; that sometimes he would remove his clothes and go stark naked in the presence of his fellow prisoners; that at times he would remain silent and indifferent to his surroundings; that he would refuse to take a bath and wash his clothes until forced by the prison authorities; and that sometimes he would sing in chorus with his fellow prisoners, or even alone by himself without being asked; and that once when the door of his cell was opened, he suddenly darted from inside into the prison compound apparently in an attempt to regain his liberty. He was sentenced to RP. Issue Is the accused’s imbecility exempting? Held No. Abelardo was suffering only from feeblemindedness and not imbecility and that he could distinguish right from wrong.

In order that a person could be regarded as an imbecile within the meaning of article 12 of the Revised Penal Code so as to be exempt from criminal liability, he must be deprived completely of reason or discernment and freedom of the will at the time of committing the crime. As to the strange behaviour of the accused during his confinement, assuming that it was not feigned to stimulate insanity, it may be attributed either to his being feebleminded or eccentric, or to a morbid mental condition produced by remorse at having killed his wife. After a careful study of the record, we are convinced that the appellant is not an imbecile. According to the evidence, during his marriage of about 16 years, he has not done anything or conducted himself in anyway so as to warrant an opinion that he was or is an imbecile. He regularly and dutifully cultivated his farm, raised five children, and supported his family and even maintained in school his children of school age, with the fruits of his work. Occasionally, as a side line he made copra. And a man who could feel the pangs of jealousy and take violent measures to the extent of killing his wife whom he suspected of being unfaithful to him, in the belief that in doing so he was vindicating his honor, could hardly be regarded as an imbecile. Whether or not his suspicions were justified, is of little or no import. The fact is that he believed her faithless. But to show that his feeling of jealousy had some color of justification and was not a mere product of hallucination and aberrations of a disordered mind as that an imbecile or a lunatic, there is evidence to the following effect. In addition to the observations made by appellant in his written statement Exhibit D, it is said that when he and his wife first went to live in the house of his half brother, Zacarias Formigones, the latter was living with his grandmother, and his house was vacant. However, after the family of Abelardo was settled in the house, Zacarias not only frequented said house but also used to sleep there nights. All this may have aroused and even partly confirmed the suspicions of Abelardo, at least to his way of thinking. Although the deceased was struck in the back, we are not prepared to find that the aggravating circumstance of treachery attended the commission of the crime. It seems that the prosecution was not intent on proving it. At least said aggravating circumstance was not alleged in the complaint either in the justice of the peace court or in the Court of First Instance. We are inclined to give him the benefit of the doubt and we therefore decline to find the existence of this aggravating circumstance. On the other hand, the fact that the accused is feebleminded warrants the finding in his favor of the mitigating circumstance provided for in either paragraph 8 or paragraph 9 of article 13 of the Revised Penal Code, namely, that the accused is "suffering some physical defect which thus restricts his means of action, defense or communication with his fellow beings," or such illness "as would diminish the exercise of his will power." To this we may add the mitigating circumstance in paragraph 6 of the same article, — that of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation. The accused evidently killed his wife in a fit of jealousy. Proper Penalty With the presence of two mitigating circumstances without any aggravating circumstance to offset them, at first we thought of the possible applicability of the provisions of article 64, paragraph 5 of the Revised Penal Code for the purpose of imposing the penalty next lower to that prescribed by article 246 for parricide, which is reclusion perpetua to death. It will be observed however, that article 64 refers to the application of penalties which contain three periods whether it be a single divisible penalty or composed of three different penalties, each one of which forms a period in accordance with the provisions of articles 76 and 77, which is not true in the present case where the penalty applicable for parricide is composed only of two indivisible penalties. On the other hand, article 63 of the same Code refers to the application of indivisible penalties whether it be a single divisible penalty, or two indivisible penalties like that of reclusion perpetua to death. It is therefore clear that article 63 is the one applicable in the present case. Paragraph 2, rule 3 of said article 63 provides that when the commission of the act is attended by some mitigating circumstance and there is no aggravating circumstance, the lesser penalty shall be applied.

in the case of People vs. Castañeda (60 Phil. 604), another parricide case, the Supreme Court in affirming the judgment of conviction sentencing defendant to reclusion perpetua, said that notwithstanding the numerous mitigating circumstances found to exist, inasmuch as the penalty for parricide as fixed by article 246 of the Revised Penal Code is composed of two indivisible penalties, namely, reclusion perpetua to death, paragraph 3 of article 63 of the said Code must be applied. In conclusion, we find the appellant guilty of parricide and we hereby affirm the judgment of the lower court with the modification that the appellant will be credited with one-half of any preventive imprisonment he has undergone. Appellant will pay costs. Following the attitude adopted and the action taken by this same court in the two cases above cited, and believing that the appellant is entitled to a lighter penalty, this case should be brought to the attention of the Chief Executive who, in his discretion may reduce the penalty to that next lower to reclusion perpetua to death or otherwise apply executive clemency in the manner he sees fit. BERNARDO LACANILAO vs. HON. COURT OF APPEALS (June 27, 1988) The CFI found the petitioner, a policeman, guilty of homicide for the death of one Ceferino Erese, and was sentenced to an indeterminate penalty of six years and one day of prision mayor, as the minimum, to fourteen years, eight months, and one day of reclusion temporal, as the maximum. The CA found that the accused, the petitioner herein, acted in the performance of a duty but that the shooting of the victim was not the necessary consequence of the due performance thereof, therefore, crediting to him the mitigating circumstance consisting of the incomplete justifying circumstance of fulfillment of duty: “While appellant is to be commended for responding to the call of duty when he tried to stop the victim and the latter's companions from their drunken and disorderly conduct, nevertheless he cannot be exonerated from overdoing his fulfillment of duty to the extent of admittedly shooting and thereby killing said victim. The CA reduced the penalty yo the minimum of reclusion temporal.” It treated the mitigating circumstance as a mere generic or specific mitigating circumstance lowering the penalty to the minimum period. Issue When the decision finds in favor of the accused the circumstance of incomplete fulfillment of duty or lawful exercise of a right, would Article 69 of the Revised Penal Code apply, thereby resulting in the lowering of the penalty by one or two degrees? Held Yes. The CA erred. Incomplete justification is a special or privileged mitigating circumstance, which, not only cannot be offset by aggravating circumstances but also reduces the penalty by one or two degrees than that prescribed by law. We agree with the petitioner that the governing provision is Article 69 of the Revised Penal Code. The provision, articulating the basis of the special or privileged mitigating circumstances of incomplete justification, expressly provides for its applicability to the instances enumerated in Article 12, on Exempting Circumstances, of the Revised Penal Code, when not all of the conditions required to justify the act or to exempt from criminal liability are present. Unquestionably, the present case would have fallen under No. 5 of Article 11 5 if the two conditions therefor, viz.: (1) that the accused acted in the performance of a duty or in the lawful exercise of a right or office and (2) that the injury or offense committed be the necessary consequence of the due performance of such duty or the lawful exercise of such right or office, concurred. But here only the first condition is fulfilled; the second is wanting. Consequently, Article 69 is applicable, for the requirement "That the majority of such conditions be present" is immaterial since there are only two conditions in order that the circumstance in No. 5 of Article 11 may be taken into account. Basic is the rule that penal laws in favor of the accused should be given

liberal construction without, of course, going beyond the obvious intention of the legislature. Article 69 is, obviously, in favor of the accused as it provides for a penalty lower than that prescribed by law when the crime committed is not wholly justifiable, the intention of the legislature being to mitigate the penalty by reason of the diminution of either freedom of action, intelligence, or intent, or of the lesser perversity of the offender. Indeed, there appears to be no reason why we should not reiterate here our ruling in People vs. Oanis: According to Article 69 of the Revised Penal Code, the penalty lower by one or two degrees than that prescribed by law shall, in such case, be imposed. Thus, the petitioner is hereby SENTENCED to an indeterminate penalty of from two years, four months, and one day of prision correccional, to eight years and one day of prision mayor. Pp v Geronimo Federico Geronimo et al were charged with the complex crime of rebellion with murders, robberies, and kidnapping as the above-named accused being then ranking officers and/or members of, or otherwise affiliated with the Communist Party of the Philippines (CPP) and the Hukbong Mapagpalaya Ng Bayan (HMB) or otherwise known as the Hukbalahaps (HUKS) the latter being the armed force of said Communist Party of the Philippines (CCP) having come to an agreement and decide to commit the crime of Rebellion. On or about April 28, 1949 at Kilometer 62 at Barrio Salubsob, they did ambush, assault, attack and fired upon the party of Mrs. Aurora A. Quezon and her PC escort whom they considered as their enemies resulting in the killing of Mrs. Aurora A. Quezon, Baby Quezon, Mayor Bernardo of Quezon City, Major P. San Agustin, Lieutenant Lasam, Philip Buencamino III, and several soldiers On or about August 26, 1950 in Santa Cruz, Laguna, about one hundred armed HUKS with intent to gain and for the purpose of securing supplies and other materials for the support and maintenance of the Hukbong Mapagpalaya Ng Bayan bringing the Cashier of the Provincial Treasury, Mr. Vicente Reventar from his house to the Provincial Capitol and at the point of guns forced him to open the Treasury Vault and took therefrom Eighty Thousand Pesos (P80,000) Said HUKS were able to capture said Nemesio Palo and once captured, with evident premeditation, treachery and intent to kill, stab, shot and cut the neck of said Nemesio Palo, among other acts. Geronimo's counsel argued that the penalty imposable upon the accused was only prision mayor, for the reason that in his opinion, there is no such complex crime as rebellion with murders, robberies, and kidnapping, because the crimes of murders robberies, and kidnapping being the natural consequences of the crime of rebellion, the crime charged against the accused should be considered only as simple rebellion. On October 18, 1954, the trial court rendered judgment finding the accused guilty of the complex crime of rebellion with murders, robberies, and kidnappings; and giving him the benefit of the mitigating circumstance of voluntary plea of guilty, sentenced him to suffer the penalty of reclusion perpetua. Issue Is there such a crime of “complex crime of rebellion with murders, robberies, and kidnappings”? Held No. (a majority of seven justices 1 of this Court agreed) As in treason, where both intent and overt act are necessary, the crime of rebellion is integrated by the coexistence of both the armed uprising for the purposes expressed in article 134 of the Revised Penal Code, and the overt acts of violence described in the first paragraph of article 135. That both purpose and overt acts are essential components of one crime, and that without either of them the crime of rebellion legally does not exist, is shown by the absence of any penalty attached to article 134. 2 It follows, therefore that any or all of the acts described in article 135, when committed as a means to or in furtherance of the subversive ends described in article 134, become absorbed in the crime of rebellion, and can not be regarded or penalized as distinct crimes in themselves. In law they are

part and parcel of the rebellion itself, and can not be considered as giving rise to a separate crime that, under article 48 of the Code, would constitute a complex one with that of rebellion. The terms employed in the first paragraph of article 135 of the Revised Penal Code to describe the component of violence in the crime of rebellion are broad and general. If all the overt acts charged in the information against herein appellant were committed for political ends or in furtherance of the rebellion, they come within the preceding description. Thus, count 4 (ambushing and firing upon army patrol) constitutes engaging in combat with the loyal troops; count 2 (taking funds and equipment from the Provincial Treasury of Laguna) is diverting public funds from their legitimate purpose; while the killings outlined in the other counts (1, 3 and 5) are instances of committing serious violence. The prosecution insists that the "more serious" crime of murder can not be justifiably regarded as absorbed by the lesser crime of rebellion. In the first place, it is not demonstrated that the killing of an individual is intrinsically less serious or less dangerous to society than the violent subversion of established government, which emperils the lives of many citizens, at least during the period of the struggle for superiority between rebels and loyalists. If, on the other hand, murder is punished by reclusion perpetua to death, and rebellion only by prision mayor, this leniency is due to the political purpose that impels every rebellious act. And our history of three centuries of uninterrupted rebellions against sovereign Spain, until she was finally driven from our shores, suffices to explain why the penalty against rebellion, which stood at reclusion temporal maximum to death in the Spanish Penal Code of 1870, was reduced only prision mayor in our revised Penal Code of 1932. In addition, the government counsel's theory that an act punished by more serious penalty can not be absorbed by an act for which a lesser penalty is provided, is not correct. The theory is emphatically refuted by the treatment accorded by the Penal Code to the crime of forcible abduction, for which the law imposes only reclusion temporal (article 342), notwithstanding that such crime necessarily involves illegal detention of the abducted woman for which article 267 of the same Penal Code fixes the penalty of reclusion temporal, in its maximum period, to death. The same situation obtains in the crime of slavery defined in article 272, whereby the kidnapping of a human being for the purpose of enslaving him is punished with prision mayor and a fine of not more than P10,000.00, when kidnapping itself is penalized by article 267 with a much higher penalty. And we have already pointed out in the Hernandez resolution that to admit the complexing of the crime of rebellion with the felonies committed in furtherance thereof, would lead to these undesirable results: (1) to make the punishment for rebellion heavier than that of treason, since it has been repeatedly held that the latter admits no complexing with the overt acts committed in furtherance of the treasonous intent, and, in addition, requires two witnesses to every overt act which is not true in the case of rebellion; (2) to nullify the policy expressed in article 135 (R.P.C.) of imposing lesser penalty upon the rebel followers as compared to their leaders, because under the complexing theory every rebel, leader or follower, must suffer the heavier penalty in its maximum degree; and (3) to violate the fundamental rule of criminal law that all doubts should be resolved in favor of the accused: "in dubiis reus est absolvendus"; "nullum crimen, nulla poena, sine lege." Of course, not every act of violence is to be deemed absorbed in the crime of rebellion solely because it happens to be committed simultaneously with or in the course of the rebellion. If the killing, robbing, etc. were done for private purposes or profit, without any political motivation, the crime would be separately punishable and would not be absorbed by the rebellion. But ever then, the individual misdeed could not be taken with the rebellion to constitute a complex crime, for the constitutive acts and intent would be unrelated to each other; and the individual crime would not be a means necessary for committing the rebellion as it would not be done in preparation or in furtherance of the latter. This appears with utmost clarity in the case where an individual rebel should commit rape; certainly the latter felony could not be said to have been done in furtherance of the rebellion or facilitated its commission in any way. The ravisher would then be

liable for two separate crimes, rebellion and rape, and the two could not be merged into a juridical whole. Five justices, 6 on the other hand, hold that by his plea of guilty, the accused avowed having committed the overt acts charged in all five counts; but that he only admitted committing them in fact "as a necessary means", "in connection and in furtherance of the rebellion", as expressly alleged by the prosecution. This is not only because the information expressly alleged the necessary connection between the overt acts and the political ends pursued by the accused, but in addition, it failed to charge that the appellant was impelled by private motives. Wherefore, such overt acts must be taken as essential ingredients of the single crime of rebellion, and the accused pleaded guilty to this crime alone. Hence, there being no complex crime, the appellant can only be sentenced for the lone crime of rebellion. Even more, the minority contends that under the very theory of the majority, the circumstances surrounding the plea are such as to at least cast doubt on whether the accused clearly understood that he was pleading guilty to two different crimes or to only one; so that in fairness and justice, the case should be sent back for a rehearing by the Court of origin, to ascertain whether or not the accused fully realized the import of his plea In view of the foregoing, the decision appealed from is modified and the accused convicted for the simple (non-complex) crime of rebellion under article 135 of the Revised Penal Code, and also for the crime of murder; and considering the mitigating effect of his plea of guilty, the accused-appellant Federico Geronimo is hereby sentenced to suffer 8 years of prision mayor Enrile v Salazar In February 1990, Sen Enrile was arrested. He was charged together with Mr. & Mrs. Panlilio, and Honasan for the crime of rebellion with murder and multiple frustrated murder which allegedly occurred during their failed coup attempt. Enrile was then brought to Camp Karingal. Enrile later filed for the habeas corpus alleging that the crime being charged against him is nonexistent. That he was charged with a criminal offense in an information for which no complaint was initially filed or preliminary investigation was conducted, hence was denied due process; denied his right to bail; and arrested and detained on the strength of a warrant issued without the judge who issued it first having personally determined the existence of probable cause. ISSUE: Whether or not the court should affirm the Hernandez ruling. HELD: Enrile filed for habeas corpus because he was denied bail although ordinarily a charge of rebellion would entitle one for bail. The crime of rebellion charged against him however is complexed with murder and multiple frustrated murders – the intention of the prosecution was to make rebellion in its most serious form so as to make the penalty thereof in the maximum. The SC ruled that there is no such crime as Rebellion with murder and multiple frustrated murder. What Enrile et al can be charged of would be Simple Rebellion because other crimes such as murder or all those that may be necessary to the commission of rebellion is absorbed hence he should be entitiled for bail. The SC however noted that a petition for habeas corpus was not the proper remedy so as to avail of bail. The proper step that should have been taken was for Enrile to file a petition to be admitted for bail. He should have exhausted all other efforts before petitioning for habeas corpus. The Hernandez ruling is still valid. All other crimes committed in carrying out rebellion are deemed absorbed. The SC noted, however, that there may be a need to modify the rebellion law. Considering that the essence of rebellion has been lost and that it is being used by a lo t of opportunists to attempt to grab power. Enrile vs Salazar G.R. No. 92163June 5, 1990 Facts: In the afternoon of February 27, 1990, Senate Minority Floor Leader Juan Ponce Enrile wasarrested by law enforcement officers led by Director Alfredo Lim of the National Bureau of Investigation on the strength of a warrant issued by Hon. Jaime Salazar of the Regional TrialCourt of Quezon City Branch 103, in Criminal Case No. 9010941.The warrant had issued on an

information signed and earlier that day filed by a panel of prosecutors composed of Senior State Prosecutor Aurelio C. Trampe, State Prosecutor FerdinandR. Abesamis and Assistant City Prosecutor Eulogio Mananquil, Jr., charging Senator Enrile, thespouses Rebecco and Erlinda Panlilio, and Gregorio Honasan with the crime of rebellion withmurder and multiple frustrated murder allegedly committed during the period of the failed coupattempt from November 29 to December 10, 1990.Senator Enrile was taken to and held overnight at the NBI headquarters on Taft Avenue, Manila,without bail, none having been recommended in the information and none fixed in the arrestwarrant. The following morning, February 28, 1990, he was brought to Camp Tomas Karingal inQuezon City where he was given over to the custody of the Superintendent of the NorthernPolice District, Brig. Gen. Edgardo Dula Torres.On the same date of February 28, 1990, Senator Enrile, through counsel, filed the petition forhabeas corpus herein (which was followed by a supplemental petition filed on March 2, 1990),alleging that he was deprived of his constitutional rights. Issue:(a) Whether the petitioner has committed complex crimes (delito compleio) arising from anoffense being a necessary means for committing another, which is referred to in the secondclause of Article 48 of the Revised Penal Code? Held:There is one other reason and a fundamental one at that why Article 48 of the Penal Code cannotbe applied in the case at bar. If murder were not complexed with rebellion, and the two crimeswere punished separately (assuming that this could be done), the following penalties would beimposable upon the movant, namely: (1) for the crime of rebellion, a fine not exceeding P20,000and prision mayor, in the corresponding period, depending upon the modifying circumstancespresent, but never exceeding 12 years of prision mayor, and (2) for the crime of murder,reclusion temporal in its maximum period to death, depending upon the modifying circumstancespresent. In other words, in the absence of aggravating circumstances, the extreme penalty couldnot be imposed upon him. However, under Article 48 said penalty would have to be meted out tohim, even in the absence of a single aggravating circumstance. Thus, said provision, if construedin conformity with the theory of the prosecution, would be unfavorable to the movant.The plaint of petitioner's counsel that he is charged with a crime that does not exist in the statute books, while technically correct so far as the Court has ruled that rebellion may not becomplexed with other offenses committed on the occasion thereof, must therefore be dismissedas a mere flight of rhetoric. Read in the context of Hernandez, the information does indeedcharge the petitioner with a crime defined and punished by the Revised Penal Code: simplerebellion.Petitioner finally claims that he was denied the right to bail. In the light of the Court'sreaffirmation of Hernandez as applicable to petitioner's case, and of the logical and necessarycorollary that the information against him should be considered as charging only the crime of simple rebellion, which is bailable before conviction, that must now be accepted as a correctproposition. But the question remains: Given the facts from which this case arose, was a petitionfor habeas corpus in this Court the appropriate vehicle for asserting a right to bail or vindicatingits denial? The criminal case before the respondent Judge was the normal venue for invoking thepetitioner's right to have provisional liberty pending trial and judgment. The original jurisdictionto grant or deny bail rested with said respondent. The correct course was for petitioner to invokethat jurisdiction by filing a petition to be admitted to bail, claiming a right to bail per se byreason of the weakness of the evidence against him. Only after that remedy was denied by thetrial court should the review jurisdiction of this Court have been invoked, and even then, notwithout first applying to the Court of Appeals if appropriate relief was also available there.The Court reiterates that based on the doctrine enunciated in People vs. Hernandez, thequestioned information filed against petitioners Juan Ponce Enrile and the spouses Rebecco andErlinda Panlilio must be read as charging simple rebellion only, hence said petitioners are entitledto bail, before final conviction, as a matter of right. The Court's earlier grant of bail to petitionersbeing merely provisional in character, the proceedings in both cases are ordered remanded tothe respondent Judge to fix the amount of bail to be posted by the petitioners. Once bail is fixedby said respondent for any of the petitioners, the corresponding bail bond flied with this Courtshall become functus oficio. No pronouncement as to costs. People v Escober Facts: Escober, Punzalan and 3 others were accused of committing robbery with homicide in Balintawak, QC on Dec. 3, 82. Mr. Vicenta Chua’s office was robbed of P5K and his children were

stabbed to death. Escober was company guard & alleged mastermind. Abuyen was former guard relieved due to absence & found sleeping on duty. Issues: 1. WON RTC conformed with Art. 9, Sec 9 of the Constitution

No. Art 9. Sec 9 states that decision should have facts, not present in decision. Generalizations and conclusions without detailed facts as basis. Appellate court can’t check if findings were sufficient and logical. Justice and fairness over speed. People v. Banayo: decision should show evidence, facts based on evidence and supporting jurisprudence and authority 2. WON Escober is guilty

No. Opening of gate is normal when someone knocks especially if you know him. He might have lacked better judgment or laxity in performance of duties though. The firing of the gun as a ritual to avoid suspicion is too risky a ritual. It can kill. 5-10 minutes too short a time to plan a conspiracy. Abuyen even asked Punzalan to kill Escobar. Then Abuyen pointed the gun at Escobar and asked Punzalan to tie him; he also tries to shoot him. Offering the information that he was not hit was also just to assure employer who seemed concerned. Mrs Chua’s statement may have been confused cause it was taken last. Perhaps she forgot details due to agitation. 3. WON Punzalan is guilty

Yes. Extrajudicial confession is inadmissible because it was not properly performed and was without counsel. Conspiracy was proven. He was fetched and he fled with suspects. He should’ve gone to the police if innocent. People vs. Rogel: Homicide through robbery, all principals in robbery are liable for homicide unless they tried preventing it. Facts Accused-appellants Juan Escober y Geralde and Macario Punzalan, Jr. y Guevarra guilty beyond reasonable doubt of the crime of Robbery with Homicide, sentencing them to suffer the supreme penalty of DEATH. One of the alleged co-conspirator (sic), Amadeo Abuyen alias Roberto Alorte, was formerly a cosecurity guard of appellant Juan Escober at the Bee Seng Electrical Supply, Inc., a family corporation owned by the couple Vicente Chua and Lina Chua. It is located inside a walled compound about 50 meters away from the residence of its owner. About 4 months prior to the incident, Abuyen was relieved by Domingo Rocero for being always absent and found sleeping while on duty. After Rocero had left his point, (sic) Vicente Chua went to his office at the Bee Seng Electrical Supply as he usually does after office hours, accompanied by his 13-year old son Irvin and 6-year old daughter Tiffany. On their way, he saw appellant Escober at his post. At the office, the two children watched a television program, as their father proceeded to the bathroom to take a bath Meanwhile, Abuyen and his three companions rode a tricycle and proceeded to the Bee Seng Electrical Supply. Upon alighting thereat, Abuyen knocked at the little door of the gate. Appellant Escober, peeped thru the hole and opened the door. Then after Abuyen had talked with Escober, the former asked Punzalan to wait outside, while he (Abuyen) and his two other companions went inside At this juncture, the victims' mother, Mrs. Lina B. Chua, left their residence to join her husband and two children. On her way, she noticed that the pedestrian gate was wide open with the appellant Punzalan standing there. She shouted why the gate was opened, but nobody answered. Suddenly, she heard a shot coming from the direction of the garage; and when she looked thereat, she saw Abuyen and the appellant Escober walking towards the gate. So, she rushed back inside the house to contact her husband through the intercom. But since the intercom was out of order, she hurriedly went outside and met appellant Escober who volunteered the information 'that he was not hit.'

Upon the other hand, Vicente Chua was inside the bathroom, when he heard the gunshot. He hurriedly went out and saw his son Irvin lying on the sofa while her (sic) daughter Tiffany was lying on the floor, both mortally wounded. Beside her (sic) daughter, he saw a scissor blade [Exhibit 'E'] full of blood. He also observed that everything was scattered in his office, with all his drawers opened. Later, he found out that the P5,000.00 cash he kept in one of the drawers was lost Immediately, he went out and shouted for help from his wife to bring out the car as their children were stabbed and bleeding. Forthwith, she got one car, while her eldest son drove a second one. After Vicente Chua had brought the two wounded children inside the two cars, they were brought to the Chinese General Hospital where they were pronounced dead upon arrival. Punzalan was a lookout. Macario Punzalan admitted being fetched by, going with and talking to, immediately prior to taking a tricycle to the said compound, and later acting as lookout for, his co-conspirators. The Court finds further that the group took some drinks, not to get drunk admittedly, and therefore to strengthen their resolve better to commit the crime planned. Held The prosecution's theory is that Juan Escober is a principal by indispensable cooperation in the crime of robbery with homicide. In support thereof, it tried to prove that Escober's actuations during the incident in question were done with the knowledge of and pursuant to said nefarious plan. These acts consist of: [1] his alleged act of opening the gate of the compound to his coconspirators; [2] his having been seen by Mrs. Lina Chua behind Alorte/Abuyen, the alleged mastermind, after the gunshot; and [3] his having volunteered the information to Mrs. Chua that he was not hit. The prosecution further attempted to show that the gun-firing was a mere ritual in avoidance of suspicion and that Escober's version of the incident is too replete with contradictions to merit belief. After a thorough review of the evidence, We find that the guilt of Juan Escober has not been proved beyond reasonable doubt. cdphil The act of opening a gate upon hearing a knock is by itself an innocent gesture. One who imputes an evil motive or purpose thereto must prove his allegations convincingly. In the case at bar, even if the version of Macario Punzalan, Jr. that Escober opened the gate at the knock of the alleged mastermind Amadeo Abuyen/Roberto Alorte were to be believed, the same would not constitute sufficient and convincing proof that Escober had knowledge of the nefarious plan. The worse that could be attributed to him is lack of better judgment or laxity in the performance of his duties as a security guard in having failed to exercise the minimum precaution dictated by his occupation to exclude from the premises being guarded persons who have not demonstrated any legitimate reason for getting in. For it must be remembered that having been co-employees, Escober knew Abuyen/Alorte. It was therefore not surprising that he should open the gate for him. In fact, even Domingo Rocero, the security guard who replaced Abuyen/Alorte and who was not as familiar with Abuyen/Alorte admitted on his Sworn Statement having allowed Abuyen/Alorte into the compound The facts of the case likewise do not support the prosecution's theory that the gun-firing incident was a mere ritual in avoidance of suspicion. We share the keen observation of counsel for Escober that ". . . it is not a 'common experience' that a person allows himself to be shot by a gun. He would be the stupidest person on earth if he allows that . . . to avoid suspicion that he was in cohoots [sic] with 'malefactors'. The least or perhaps the safest way for that evil purpose is to allow himself to be rendered ineffective, i.e., by tieing [sic] him up, mauling him or wounding him so he would live if he were a conspirator. To allow him to be shot by a gun is too risky a 'ritual' for he might get killed." 10 Besides, the robbery and homicide were perpetrated within a span of 5-10 minutes, not half an hour as found by the trial court, a time too short to enable Abuyen/Alorte and Escober to contrive such a ritual or scenario, or if it were a pre-conceived plan, for Abuyen/Alorte to have remembered it considering the unexpected appearance of Lina Chua at the scene and the need for immediate escape.

Even assuming arguendo that the gun was fired in the air and not at Escober, the same could have been done to scare Lina Chua away from the scene of the crime rather than to divert suspicion from Escober. That the gun-firing was not a ritual and that Escober was not a part of the criminal plan are further bolstered by the statement made by Macario Punzalan during the preliminary investigation, and the extra-judicial statement of the alleged mastermind Abuyen/Alorte dated April 16, 1986, submitted by the prosecution as Exhibit B during the separate trial of said Abuyen/Alorte. These exculpatory statements, although emanating from alleged co-conspirators and therefore may ordinarily be considered "polluted," deserve credence. Punzalan's statement, it must be observed, is not even responsive to the question being asked. The spontaneous and candid manner by which it was given lends credence to his statement, that Abuyen/Alorte wanted Escober killed. This statement, together with the statement of Abuyen/ Alorte that he himself fired at Escober although the latter was not hit, unwittingly corroborates Escober's version that the gun was aimed at him. That Escober was not thereby hit should not be taken as conclusive proof that the gun-firing was a mere ritual because the same could be easily occasioned by a poor aim and/or the hurried manner of its execution. On the other hand, We see no reason why Abuyen/Alorte should absolve Escober of any complicity in the crime if this were not the truth. The usual practice is for a conspirator to exculpate himself and pass on the blame to a co-conspirator, particularly in a case such as this where the crime charged is indeed very grave and serious. However undesirable a person may seem, there may be left in him a sense of justice and fairness. Without passing judgment on Abuyen/Alorte, We believe that it was this sense of justice and fairness that moved him to disclose the truth in his extrajudicial confession. Escober's unilateral offer of the information that he was not hit does not prove either that he was a co-conspirator. It was but natural that he would want to inform and assure his superior who is presumed to be concerned with his safety and well-being. The motivation attached to said act by the prosecution is therefore too conjectural and far-fetched to pass the test of logic and reason. The only evidence of the prosecution which may lead to a conclusion of Escober's complicity is the testimony of Mrs. Lina Chua that upon hearing a shot, she looked at the garage where the shot sounded to have come from and saw Abuyen/Alorte walking towards the gate with Escober about a meter behind. prcd We have reasons to doubt the veracity and/or accuracy of this statement. We observe that Mrs. Lina Chua was the last among the prosecution witnesses to give her statement to the police. She gave her statement on December 8, 1983 when none of the accused had been apprehended. So, soon after the violent incident her appreciation of what she saw may have been faulty when she attributed the blame on Escober whose lack of better judgment and laxity in the performance of his job resulted in the tragic event. The prosecution evidence is glaringly wanting in this regard. It failed to prove beyond reasonable doubt that [1] Escober had knowledge of the criminal design and [2] that his acts during the commission of the crime, such as the opening of the gate and having been behind Abuyen after the gunshot, were performed pursuant to said nefarious plot. This being the case, the prosecution's reliance on the alleged inconsistencies in Escober's testimony regarding his actuations during the incident at bar cannot improve its case. To convict on this basis is repugnant to the constitutional right of the accused to be presumed innocent until the contrary is proved 15 and its corollary rule that the prosecution must rely on the strength of its own evidence and not on the weakness of the defense. 16 Indeed, the accidents of Escober being on duty during the commission of the crime and his having opened the gate to persons who turned out to be robbers and killers make him an easy suspect. A less discerning mind could have been blinded by these suspicions and compassion for the two hapless victims. But convictions can never rest on mere suspicions, however, grave and serious.

While it has been established that Punzalan's participation in the crime was to act as a look-out, and as such, he did not participate in the killing of the two helpless victims, he cannot evade responsibility therefor. Well-established is the rule in this jurisdiction that whenever a homicide has been committed as a consequence of or on the occasion of a robbery, all those who took part as principals in the commission of the robbery are also guilty as principals in the special complex crime of robbery with homicide although they did not actually take part in the homicide unless it clearly appeared that they endeavored to prevent the homicide. WHEREFORE, the decision dated January 10, 1984 in Criminal Case No. Q-22896 of the Regional Trial Court of Quezon City is hereby SET ASIDE. Accused-appellant Juan Escober y Geralde is hereby ACQUITTED of the crime of Robbery with Homicide and his immediate release from confinement is ordered, unless detained for some other crimes. Accused-appellant Macario Punzalan, Jr. y Guevarra is hereby found guilty beyond reasonable doubt as principal in the complex crime of Robbery with Homicide and is accordingly sentenced to suffer the penalty of reclusion perpetua and to indemnify the heirs of the victims in the amount of P60,000.00.

CRIMINAL LAW; COMMISSION OF HOMICIDE ON THE OCCASION OF A ROBBERY; CRIMINAL LIABILITY OF PRINCIPALS IN THE COMMISSION OF ROBBERY. — Well-established is the rule in this jurisdiction that whenever a homicide has been committed as a consequence of or on the occasion of a robbery, all those who took part as principals in the commission of the robbery are also guilty as principals in the special complex crime of robbery with homicide although they did not actually take part in the homicide unless it clearly appeared that they endeavored to prevent the homicide. CRIMINAL LAW; PRINCIPALS IN THE COMMISSION OF ROBBERY EQUALLY LIABLE AS PRINCIPALS IN THE SPECIAL COMPLEX CRIME OF ROBBERY WITH HOMICIDE. — The rule correctly applied by the Court was unanimously reaffirmed by the Court en banc most recently in People v. Pecato (G.R. No. L-41008, 18 June 1987) in the following terms: (A)s long as homicide resulted during or because of , the robbery, even if the killing is by mere accident, robbery with homicide is committed; Whenever a homicide has been committed as a consequence of or on the occasion of a robbery, all those who took part as principals in the commission of the crime are also guilty as principals in the special complex of robbery with homicide although they did not actually take part in the homicide unless it clearly appeared that they endeavored to prevent the homicide. The rule so reiterated in Pecato was first elaborated upon as long ago as 8 October 1907 in U.S. v. Macalalad, 9 Phil. 1. U .S. v. Basisten, a case whose rule was overturned the very next year after it was promulgated, was in fact an aberration. That the Court has today affirmed once more the Macalalad-Pecato doctrine evidences its discriminating regard for settled rules. J. Guttierez ID.; ID.; JUDGES CAUTIONED TO LOOK BEYOND THE UNQUALIFIED RULE IN THE MACALALAD CASE. — The precedents from Macalalad are impressively cited but all judges should still be cautioned to look beyond the unqualified rule and ascertain carefully whether the lookout or anybody else similarly situated should be automatically convicted for something about which he was completely ignorant. The consequences of sending an innocent person to jail for a crime where he had no participation are too horrible to be left simply to the operation of an unqualified rule. ARTURO A. MEJORADA vs. THE HONORABLE SANDIGANBAYAN (June 30, 1987) Petitioner was charged and convicted of having violating Section 3(e) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act: Arturo A. Mejorada was a public officer who was first employed as a temporary skilled laborer in the Bureau of Public Works on March 16, 1947, and then as right-of-way agent in the Office of the Highway District Engineer, Pasig, Metro Manila, from February, 1974 up to December 31, 1978. As a right-of-way agent, his main duty was to negotiate with property owners affected by

highway constructions or improvements for the purpose of compensating them for the damages incurred by said owners. Among those whose lots and improvements were affected by the widening of the proposed Pasig-Sta. Cruz-Calamba Road. 2nd IBRD Project, at Binangonan, Rizal were Isagani de Leon, Isaac Carlos, Napoleon Maybituin, Dominga Villaroza, Florentino de la Cruz, Cipriano Aran, Celestina S. Mallari and Rodolfo Rivera, all residents of Mambog, Binangonan, Rizal. Sometime in October or November 1977, petitioner contacted the aforenamed persons and informed them that he could work out their claims for payment of the values of their lots and/or improvements affected by the widening of said highway. In the process, Mejorada required the claimants to sign blank copies of the "Sworn Statement on the Correct and Fair Market Value of Real Properties and "Agreement to Demolish, Remove and Reconstruct improvements" pertinent to their claims. The claimants complied without bothering to find out what the documents were all about as they were only interested in the payment of damages. In said "Sworn Statements" and "Agreements to Demolish", the value of the respective properties of the claimants were made to appear very much higher than the actual value claimed by them. Likewise, the said "Agreements to Demolish" reflected the value of the improvements "as per assessor" which on the average was only P2,000.00 lower than the value declared by the owners in their sworn statements. The value as per assessor was, in turn, supported by the Declarations of Real Property in the names of the claimants containing an assessed value exactly the same as that stated in the Agreements to Demolish "as per assessor", except the claims of De la Cruz and Aran where there is only a difference of P400.00 and P200.00, respectively. It turned out, however, that said Declarations of Property are not really intended for the claimants as they were registered in the names of other persons, thus showing that they were all falsified. A few months after processing the claims, accused accompanied the claimants to the Office of the Highway District Engineer at the provincial capitol of Pasig, Metro Manila, to receive payments and personally assisted the claimants in signing the vouchers and encashing the checks by certifying as to their identities and guaranteeing payment. Right after the claimants had received the proceeds of their checks, accused accompanied them to his car which was parked nearby where they were divested of the amounts paid to them leaving only the sum of P1,000.00 to each, except Isaac Carlos to whom P5,000.00 was left, explaining to them that there were many who would share in said amounts. All the claimants were helpless to complain because they were afraid of the accused and his armed companion. Issue/Held The third issue raised by the petitioner concerns the penalty imposed by the Sandiganbayan which totals fifty-six (56) years and eight (8) days of imprisonment. Petitioner impugns this as contrary to the three-fold rule and insists that the duration of the aggregate penalties should not exceed forty (40) years. Petitioner is mistaken in his application of the three-fold rule as set forth in Article 70 of the Revised Penal Code. This article is to be taken into account not in the imposition of the penalty but in connection with the service of the sentence imposed [People v. Escares, 102 Phil. 677 (1957)]. Article 70 speaks of "service" of sentence, "duration" of penalty and penalty "to be inflicted". Nowhere in the article is anything mentioned about the "imposition of penalty". It merely provides that the prisoner cannot be made to serve more than three times the most severe of these penalties the maximum of which is forty years. The Sandiganbayan, therefore, did not commit any error in imposing eight penalties for the eight informations filed against the accused-petitioner. As We pointed out in the case of People v. Peralta: . . . Even without the authority provided by Article 70, courts can still impose as many penalties as there are separate and distinct offenses committed, since for every individual crime committed, a corresponding penalty is prescribed by law. Each single crime is an outrage against

the State for which the latter, thru the courts of justice, has the power to impose the appropriate penal sanctions. In the light of the above reasons, petitioner cannot assail the penalty imposed upon him as harsh, cruel and unusual. Additional issue: Petitioner enumerated three elements which, in his opinion, constitute a violation of Section 3(e). First, that the accused must be a public officer charged with the duty of granting licenses or permits or other concessions. Petitioner contends that inasmuch as he is not charged with the duty of granting licenses, permits or other concessions, then he is not the officer contemplated by Section 3 (e). Section 3 cited above enumerates in eleven subsections the corrupt practices of any public officers declared unlawful. Its reference to "any public officer" is without distinction or qualification and it specifies the acts declared unlawful. We agree with the view adopted by the Solicitor General that the last sentence of paragraph (e) is intended to make clear the inclusion of officers and employees of officers or government corporations which, under the ordinary concept of "public officers" may not come within the term. It is a strained construction of the provision to read it as applying exclusively to public officers charged with the duty of granting licenses or permits or other concessions. The first element, therefore, of Section 3 (e) is that the accused must be a public officer. This, the informations did not fail to allege. Second, that such public officer caused undue injury to any party, including the Government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions. Petitioner denies that there was injury or damage caused the Government because the payments were allegedly made on the basis of a document solely made by the Highway District Engineer to which petitioner had no hand in preparing. The fact, however, is that the government suffered undue injury as a result of the petitioner's having inflated the true claims of complainants which became the basis of the report submitted by the Highway District Engineer to the Regional Director of the Department of Highways and which eventually became the basis of payment. His contention that he had no participation is belied by the fact that as a right-ofway-agent, his duty was precisely to negotiate with property owners who are affected by highway constructions for the purpose of compensating them. On the part of the complainants, the injury caused to them consists in their being divested of a large proportion of their claims and receiving payment in an amount even lower than the actual damage they incurred. They were deprived of the just compensation to which they are entitled. Third, the injury to any party, or giving any private party any unwarranted benefits, advantage or preference was done through manifest, partiality, evident bad faith or gross inexcusable negligence. Petitioner argues that for the third element to be present, the alleged injury or damage to the complainants and the government must have been caused by the public officer in the discharge of his official, administrative or judicial functions and inasmuch as when the damage was caused to the complainants, he was no longer discharging his official administrative functions, therefore, he is not liable for the offense charged. The argument is devoid of merit. The Sandiganbayan established the fact that the petitioner took advantage of his position as a right-of-way-agent by making the claimants sign the aforementioned agreements to demolish and sworn statements which contained falsified declarations of the value of the improvements and lots. There was evident bad faith on the part of the petitioner when he inflated the values of the true claims and when he divested the claimants of a large share of the amounts due them. MANUEL V. BALA vs. THE HON. JUDGE ANTONIO M. MARTINEZ (January 29, 1990)

The petitioner had been indicted for removing and substituting the picture of Maria Eloisa Criss Diazen which had been attached to her United States of America passport, with that of Florencia Notarte, in effect falsifying a genuine public or official document. On January 3, 1978, the trial court adjudged petitioner Manuel Bala guilty of the crime of falsification of a public document. He was sentenced to an indeterminate penalty of not less than ONE (1) YEAR AND ONE (1) DAY and not exceeding THREE (3) YEARS, SIX (6) MONTHS & TWENTY-ONE (21) DAYS of prision correccional to pay a fine of P1,800.00 with subsidiary imprisonment in case of insolvency at the rate of P8.00 for each day, and to pay the cost. After the case had been remanded to the court of origin for execution of judgment, 2 the petitioner applied for and was granted probation by the respondent judge in his order dated August 11, 1982. The petitioner was then placed under probation for a period of one (1) year, subject to the terms and conditions enumerated therein. On September 23, 1982, the probationer (petitioner) asked his supervising probation officer for permission to transfer his residence from BF Homes to Phil-Am Life Subdivision in Las Piñas, specifically 33 Jingco Street. The probation officer verbally granted the probationer's request as he found nothing objectionable to it. By the terms of the petitioner's probation, it should have expired on August 10, 1983, one year after the order granting the same was issued. But, the order of final discharge could not be issued because the respondent probation officer had not yet submitted his final report on the conduct of his charge. On December 8, 1983, the respondent People of the Philippines filed a motion to revoke the probation of the petitioner presided over by the respondent judge. The motion alleged that the petitioner had violated the terms and conditions of his probation. On January 4, 1984, the petitioner filed his opposition to the motion on the ground that he was no longer under probation, his probation period having terminated on August 10, 1983, as previously adverted to. As such, no valid reason existed to revoke the same, he contended. As if to confirm the Manila Assistant City Fiscal's motion to revoke the petitioner's probation, the respondent probation officer filed on January 6, 1984, a motion to terminate Manuel Bala's probation, at the same time attaching his progress report on supervision dated January 5, 1984. 6 The same motion, however, became the subject of a 'Manifestation,' dated January 30, 1984, which stated that the probation officer was not pursuing the motion to terminate dated January 6, 1984; instead, he was submitting a supplemental report 7 which recommended the revocation of probation "in the light of new facts, information, and evidences." Thereafter, the petitioner filed a motion to dismiss and/or strike out the motion to revoke probation, questioning the jurisdiction of the court over his case inasmuch as his probation period had already expired. Moreover, his change of residence automatically transferred the venue of the case from the RTC of Manila to the Executive Judge of the RTC of Makati which latter court includes under its jurisdiction the Municipality of Las Piñas, the probationer's place of residence, invoking Section 13, P.D. No. 968, which provides: Sec. 13. Control and Supervision of Probationer. . . . .

Whenever a probationer is permitted to reside in a place under the jurisdiction of another court, control over him shall be transferred to the Executive Judge of the Court of First Instance of that place, and in such a case, a copy of the probation order, the investigation report and other pertinent records shall be furnished to said Executive Judge. Thereafter, the Executive Judge to whom jurisdiction over the probationer is transferred shall have the power with respect to him that was previously possessed by the court which granted the probation. As stated at the outset, the respondent judge denied the motion to dismiss for lack of merit. Held The present law on probation, Presidential Decree (P.D.) 1990, which amends section 4 of P.D. 968, clearly states that "no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction."

However, in the case at bar, P.D. 1990 is inapplicable. P.D. 1990 which went in force on January 15, 1985 can not be given retroactive effect because it would be prejudicial to the accused. It is worthy to note, that what was actually resolved and denied was the motion to dismiss and/or strike out the motion to revoke probation which disposed of only the issue of the petitioner's transfer of residence. The motion did not touch on the issue of the timeliness to revoke probation. The respondent judge has not yet heard and received evidence, much less acted on the matter. Accordingly, the Solicitor General submits that the present petition is premature. The Court finds no merit in the petition. Probation is revocable before the final discharge of the probationer by the court, contrary to the petitioner's submission. Section 16 of PD 968 8 is clear on this score: Sec. 16. Termination of Probation. — After the period of probation and upon consideration of the report and recommendation of the probation officer, the court may order the final discharge of the probationer upon finding that he has fulfilled the terms and conditions of his probation and thereupon the case is deemed terminated. Thus, the expiration of the probation period alone does not automatically terminate probation. Nowhere is the ipso facto termination of probation found in the provisions of the probation law. Probation is not co-terminous with its period. There must first be issued by the court of an order of final discharge based on the report and recommendation of the probation officer. Only from such can the case of the probationer be deemed terminated. The period of probation may either be shortened or made longer, but not to exceed the period set in the law. This is so because the period of probation, like the period of incarceration, is deemed the appropriate period for the rehabilitation of the probationer. In the instant case, a review of the records compels a revocation of the probation without the need of further proceedings in the trial court which, after all, would only be an exercise in futility. If we render justice now, why should we allow the petitioner to further delay it. Probationer Manuel Bala failed to reunite with responsible society. Precisely he was granted probation in order to give him a chance to return to the main stream, to give him hope — hope for self-respect and a better life. Unfortunately, he has continued to shun the straight and narrow path. He thus wrecked his chance. He has not reformed. cdphil A major role is played by the probation officer in the release of the probationer because he (probation officer) is in the best position to report all information relative to the conduct and mental and physical condition of the probationer in his environment, and the existing institutional and community resources that he may avail himself of when necessary. Indeed, it is the probation officer who primarily undertakes the supervision and reform of the probationer through a personalized, individualized, and community-based rehabilitation program for a specific period of time. On the basis of his final report, the court can determine whether or not the probationer may be released from probation. We find it reprehensible that the respondent probation officer had neglected to submit his report and recommendation. For, as earlier discussed, without this report, the trial court could not issue the order of final discharge of the probationer. And it is this order of final discharge which would restore the probationer's suspended civil rights. In the absence of the order of final discharge, the probation would still subsists, unless otherwise revoked for cause and that is precisely what we are going to do. We are revoking his probation for cause. The petitioner, by applying for probation and getting it, consented to be emancipated from the yoke if not stigma of a prison sentence, pledging to faithfully comply with the conditions of his probation, among which are: "xxx 4. xxx xxx xxx

To be gainfully employed and be a productive member of society; xxx xxx

6. To cooperate fully with his program of supervision and rehabilitation that will be prescribed by the Probation Officer." 9 These conditions, as the records show, were not complied with. This non-compliance has defeated the very purposes of the probation law, to wit: (a) promote the correction and rehabilitation of an offender by providing him with individualized treatment; (b) provide an opportunity for the reformation of a penitent offender which might be less probable if he were to serve a prison sentence; and (c) prevent the commission of offenses. 10

By his actuations, probationer-petitioner Manuel V. Bala has ridiculed the probation program. Instead of utilizing his temporary liberty to rehabilitate and reintegrate himself as a productive, law abiding, and socially responsible member of society, he continued in his wayward ways — falsifying public or official documents. Cdpr Specifically, on April 30, 1984, the Regional Trial Court of Manila, National Capital Judicial Region, Branch XXX, convicted the petitioner, along with two other persons, Lorenzo Rolo y Punzalan and Efren Faderanga y Fesalbon, for falsification of public and/or official documents (U.S. Passports), under Article 172, in relation to Article 171, of the Revised Penal Code, in five separate informations, in Criminal Cases Nos. 29100, 29101, 29102, 29103, and 29107. The trial court imposed upon each of them in all five (5) cases a prison term of "two (2) years of prision correccional, as minimum, to four (4) years also of prision correccional, as maximum, to pay a fine of P2,000, the accessory penalties thereof, and to pay the costs." On appeal, the Court of Appeals affirmed the judgment of the RTC with modification by granting restitution of the amounts they collected from the offended private parties. The judgment has since become final. As a matter of fact, for failure of the petitioner to appear for execution of judgment despite notice, the trial court ordered the arrest of Manuel Bala on July 10, 1989. A warrant of arrest against Bala was issued on July 12, 1989 and this warrant has not yet been implemented because Bala absconded. These facts are evident and constitute violations of the conditions of his probation. Thus, the revocation of his probation is compelling. At any time during the probation, the court may issue a warrant for the arrest of a probationer for violation of any of the conditions of probation. The probationer, once arrested and detained, shall immediately be brought before the court for a hearing which may be informal and summary, of the violation charged. . . . If the violation is established, the court may revoke or continue his probation and modify the conditions thereof. If revoked, the court shall order the probationer to serve the sentence originally imposed. An order revoking the grant of probation or modifying the terms and conditions thereof shall not be appealable. 11 (Emphasis supplied.) The probation having been revoked, it is imperative that the probationer be arrested so that he can serve the sentence originally imposed. The expiration of the probation period of one year is of no moment, there being no order of final discharge as yet, as we stressed earlier. Neither can there be a deduction of the one year probation period from the penalty of one year and one day to three years, six months, and twenty-one days of imprisonment because an order placing the defendant on "probation" is not a "sentence," but is in effect a suspension of the imposition of the sentence. 12 It is not a final judgment but an "interlocutory judgment" in the nature of a conditional order placing the convicted defendant under the supervision of the court for his reformation, to be followed by a final judgment of discharge, if the conditions of the probation are complied with, or by a final judgment if the conditions are violated." 13 Lastly, probation is a mere privilege. Privilege is a peculiar benefit or immunity conferred by law on a person or group of persons, not enjoyed by others or by all; special enjoyment of a good or exemption from an evil; it is a special prerogative granted by law to some persons. 14 Accordingly, the grant of probation rests solely upon the discretion of the court. This discretion is to be exercised primarily for the benefit of organized society, and only incidentally for the benefit of the accused. 15 If the probationer has proven to be unrepentant, as in the case of the

petitioner, the State is not barred from revoking such a privilege. Otherwise, the seriousness of the offense is lessened if probation is not revoked. Cdpr On the second assigned error, the petitioner argues that his transfer of residence automatically transferred jurisdiction over his probation from the Manila Regional Trial Court to the same court in his new address. We disagree. In criminal cases, venue is an element of jurisdiction. 16 Such being the case, the Manila RTC would not be deprived of its jurisdiction over the probation case. To uphold the petitioner's contention would mean a depreciation of the Manila court's power to grant probation in the first place. It is to be remembered that when the petitioner-accused applied for probation in the then CFI of Manila, he was a resident of Las Piñas, as he is up to now, although in a different subdivision. As pointed out earlier, he merely moved from BF Homes to Philam Life Subdivision, 33 Jingco Street, also in Las Piñas. 17 On the other hand, pursuing the petitioner's argument on this score to the limits of its logic would mean that his probation was null and void in the first place, because then the Manila CFI was without jurisdiction to grant him probation as he was a resident of Las Piñas. It is therefore incorrect to assume that the petitioner's change of abode compels change of venue, and necessarily, control over the petitioner, to the Executive Judge of the RTC of his new residence. Thus, in the apportionment of the regional trial courts under Batas Pambansa Blg. 129, otherwise known as the Judiciary Reorganization Act of 1980, Las Piñas is one among the municipalities included in the National Capital Judicial Region (Metro Manila) with a seat at Makati. 18 Needless to say, the Regional Trial Court in Makati, like the Manila Regional Trial Court, forms part of the Regional Trial Court of the National Capital Region. 19 Accordingly, the various branches of the regional trial courts of Makati or Manila under the National Capital Region, are coordinate and co-equal courts, the totality of which is only one Regional Trial Court. Jurisdiction is vested in the court, not in the judges. In other words, the case does not attach to the branch or judge. 20 Therefore, in this case, RTC Branch XX of Manila, which granted the probation, has not lost control and supervision over the probation of the petitioner. The petitioner also claims that he had verbally obtained permission to transfer residence from his probation officer. This would not suffice; the law is very explicit in its requirement of a prior court approval in writing. Section 10 of PD 968 categorically decrees that the probationer must. Cdpr xxx xxx xxx

(j) reside at premises approved by it (court) and not to change his residence without its prior written approval; xxx xxx xxx

Further, such written approval is required by the 21 probation order of August 11, 1982 as one of the conditions of probation, to wit: (3) To reside in BF Homes, Las Piñas and not to change said address nor leave the territorial jurisdiction of Metro Manila for more than twenty-four (24) hours without first securing prior written approval of his Probation Officer. In the light of all the foregoing and in the interest of the expeditious administration of justice, we revoke the probation of the petitioner for violations of the conditions of his probation, instead of remanding the case to the trial court and having the parties start all over again in needless protracted proceedings. 22 WHEREFORE, the Petition is DISMISSED and the probation of the petitioner is hereby REVOKED. Further, the trial court is ORDERED to issue a warrant for the arrest of the petitioner and for him to serve the sentence originally imposed without any deduction. Costs against the petitioner. AGUSTIN SALGADO vs. THE HON. COURT OF APPEALS August 30, 1990.

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