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[G.R. No. 13785. October 8, 1918. ]

June 13, 1882.)

THE UNITED STATES, Plaintiff-Appellee, v. TOMAS ADIAO, Defendant-Appellant.

There exists the aggravating circumstance that advantage was taken by the offender of his public position. Wherefore, in view of the provisions of articles 517 and 518, No. 5, of the Penal Code, and there being present one aggravating circumstance compensated by no mitigating circumstance, the penalty must be imposed in the maximum degree.

Victoriano Yamzon, for Appellant. Attorney-General Paredes, for Appellee. SYLLABUS 1. THEFT; WHEN CONSUMMATED OR FRUSTRATED. — One A., a Customs’ inspector, abstracted a leather belt valued at eighty centavos from the baggage of a Japanese and secreted the belt in his desk in the Custom House, where it was found by other Customs employees. Held: That since the offender had performed all of the acts of execution necessary for the accomplishment of the felony, he is guilty of the consummated crime of theft.

Judgment is reversed and the defendant and appellant is sentenced to three months and one day of arresto mayor, with the costs of all instances against him. The merchandise in question, attached to the record as Exhibit A, shall be returned to the lawful owner, T. Murakami. So ordered. Torres, Johnson, Street, Avanceña and Fisher, JJ., concur. EN BANC

2. ID.; ID. — The decisions of the supreme court of Spain of October 14, 1898, December 1, 1897, and June 13,1882, cited and approved.

ARISTOTEL VALENZUELA y G. R. No. 160188 NATIVIDAD, Petitioner, Present:

DECISION

PUNO, C.J., QUISUMBING, SANTIAGO, versus - GUTIERREZ, CARPIO, MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, GARCIA, VELASCO, and PEOPLE OF THE PHILIPPINES NACHURA, JJ. and HON. COURT OF APPEALS, Respondents. Promulgated:

MALCOLM, J. : The defendant was charged in the Municipal Court of the city of Manila with the crime of theft. He was found guilty of the lesser crime of frustrated theft. He appealed to the Court of First Instance of the city of Manila and again he was found guilty of the crime of frustrated theft, and was sentenced to pay a fine of P100, with subsidiary imprisonment in case of insolvency, and to pay the costs. The sole error assigned on appeal is that the lower court erred in holding that the defendant was guilty of the crime of theft as disclosed by the facts appearing of record. We have examined the evidence carefully and from our study are unable to say that the proof is contrary to the findings of the lower court. Stated in one sentence, the defendant, Tomas Adiao, a customs inspector, abstracted a leather belt valued at P0.80, from the baggage of a Japanese named T. Murakami, and secreted the belt in his desk in the Custom House, where it was found by other customs employees.

June 21, 2007

Based on these facts, the Court is of the opinion that the crime can not properly be classified as frustrated, as this word is defined in article 3 of the Penal Code, but that since the offender performed all of the acts of execution necessary for the accomplishment of the felony, he is guilty of the consummated crime of theft. The fact that the defendant was under observation during the entire transaction and that he was unable to get the merchandise out of the Custom House, is not decisive; all the elements of the completed crime of theft are present. The following decisions of the supreme court of Spain are in point:jgc:chanrobles.com.ph

x---------------------------------------------------------------------------- x DECISION TINGA, J.: This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner effectively concedes having performed the felonious acts imputed against him, but instead insists that as a result, he should be adjudged guilty of frustrated theft only, not the felony in its consummated stage of which he was convicted. The proposition rests on a common theory expounded in two wellknown decisions [1] rendered decades ago by the Court of Appeals, upholding the existence of frustrated theft of which the accused in both cases were found guilty. However, the rationale behind the rulings has never been affirmed by this Court.

"The defendant was charged with the theft of some fruit from the land of another. As he was in the act of taking the fruit he was seen by a policeman, yet it did not appear that he was at that moment caught by the policeman but sometime later. The court said: ". . . The trial court did not err . . . in considering the crime as that of consummated theft instead of frustrated theft inasmuch as nothing appears in the record showing that the policemen who saw the accused take the fruit from the adjoining land arrested him in the act and thus prevented him from taking full possession of the thing stolen and even its utilization by him for an interval of time." (Decision of the supreme court of Spain, October 14, 1898.)

As far as can be told, [2] the last time this Court extensively considered whether an accused was guilty of frustrated or consummated theft was in 1918, in People v. Adiao. [3] A more cursory

Defendant picked the pocket of the offended party while the latter was hearing mass in a church. The latter on account of the solemnity of the act, although noticing the theft, did not do anything to prevent it. Subsequently, however, while the defendant was still inside the church, the offended party got back the money from the defendant. The court said that the defendant had performed all the acts of execution and considered the theft as consummated. (Decision of the supreme court of Spain, December 1, 1897.)

treatment of the question was followed in 1929, in People v. Sobrevilla, [4] and in 1984, in Empelis v. IAC. [5] This petition now gives occasion for us to finally and fully measure if or how frustrated theft is susceptible to commission under the Revised Penal Code. I. The basic facts are no longer disputed before us. The case stems from an Information [6] charging petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m., petitioner and Calderon were sighted outside the Super Sale Club, a supermarket within the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago), a security guard who was then manning his post at the open parking area of the supermarket. Lago saw petitioner, who was wearing an identification card with the mark Receiving Dispatching Unit (RDU), hauling a push cart with cases of detergent of the wellknown Tide brand. Petitioner unloaded these cases in an open parking space, where Calderon was waiting. Petitioner then returned inside the supermarket, and after five (5) minutes, emerged with more cartons of Tide Ultramaticand again unloaded these boxes to the same area in the open parking space. [7]

The defendant penetrated into a room of a certain house and by means of a key opened up a case, and from the case took a small box, which was also opened with a key, from which in turn he took a purse containing 461 reales and 20 centimos, and then he placed the money over the cover of the case; just at this moment he was caught by two guards who were stationed in another room near-by. The court considered this as consummated robbery, and said: ". . . The accused . . . having materially taken possession of the money from the moment he took it from the place where it had been, and having taken it with his hands with intent to appropriate the same, he executed all the acts necessary to constitute the crime which was thereby produced; only the act of making use of the thing having been frustrated, which, however, does not go to make the elements of the consummated crime." (Decision of the supreme court of Spain,

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II. Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it towards the parking space where Calderon was waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi, then boarded the vehicle. All these acts were eyed by Lago, who proceeded to stop the taxi as it was leaving the open parking area. When Lago asked petitioner for a receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot, but Lago fired a warning shot to alert his fellow security guards of the incident. Petitioner and Calderon were apprehended at the scene, and the stolen merchandise recovered. [8] The filched items seized from the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional cases of detergent, the goods with an aggregate value of P12,090.00. [9]

In arguing that he should only be convicted of frustrated theft, petitioner cites [26] two decisions rendered many years ago by the Court of Appeals: People v. Dio [27] and People v. Flores. [28] Both decisions elicit the interest of this Court, as they modified trial court convictions from consummated to frustrated theft and involve a factual milieu that bears similarity to the present case. Petitioner invoked the same rulings in his appeal to the Court of Appeals, yet the appellate court did not expressly consider the import of the rulings when it affirmed the conviction. It is not necessary to fault the Court of Appeals for giving short shrift to the Dio and Flores rulings since they have not yet been expressly adopted as precedents by this Court. For whatever reasons,

Petitioner and Calderon were first brought to the SM security office before they were transferred on the same day to the Baler Station II of the Philippine National Police, Quezon City, for investigation. It appears from the police investigation records that apart from petitioner and Calderon, four (4) other persons were apprehended by the security guards at the scene and delivered to police custody at the Baler PNP Station in connection with the incident. However, after the matter was referred to the Office of the Quezon City Prosecutor, only petitioner and Calderon were charged with theft by the Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day after the incident. [10]

the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet despite the silence on our part, Dio and Flores have attained a level of renown reached by very few other appellate court rulings. They are comprehensively discussed in the most popular of our criminal law annotations, [29] and studied in criminal law classes as textbook examples of frustrated crimes or even as definitive of frustrated theft.

After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having been innocent bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May 1994 when they were haled by Lago and his fellow security guards after a commotion and brought to the Baler PNP Station. Calderon alleged that on the afternoon of the incident, he was at the Super Sale Club to withdraw from his ATM account, accompanied by his neighbor, Leoncio Rosulada. [11] As the queue for the ATM was long, Calderon and Rosulada decided to buy snacks inside the supermarket. It was while they were eating that they heard the gunshot fired by Lago, leading them to head out of the building to check what was

More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that populate criminal law exams more than they actually occur in real life. Indeed, if we finally say that Dio and Flores are doctrinal, such conclusion could profoundly influence a multitude of routine theft prosecutions, including commonplace shoplifting. Any scenario that involves the thief having to exit with the stolen property through a supervised egress, such as a supermarket checkout counter or a parking area pay booth, may easily call for the application of Dio and Flores. The fact that lower courts have not hesitated to lay down convictions for frustrated theft further validates that Dio and Flores and the theories offered therein on frustrated theft have borne some weight in our jurisprudential system. The time is thus ripe for us to examine whether those theories are correct and should continue to influence prosecutors and judges in the future.

transpiring. As they were outside, they were suddenly grabbed by a security guard, thus commencing their detention. [12] Meanwhile, petitioner testified during trial that he and his cousin, a Gregorio Valenzuela, [13] had been at the parking lot, walking beside the nearby BLISS complex and headed to ride a tricycle going to Pag-asa, when they saw the security guard Lago fire a shot. The gunshot caused him and the other people at the scene to start running, at which point he was apprehended by Lago and brought to the security office. Petitioner claimed he was detained at the security office until around 9:00 p.m., at which time he and the others were brought to the Baler Police Station. At the station, petitioner denied having stolen the cartons of detergent, but he was detained overnight, and eventually brought to the prosecutors office where he was charged with theft. [14] During petitioners cross-examination, he admitted that he had been employed as a bundler of GMS Marketing, assigned at the supermarket though not at SM. [15]

III. To delve into any extended analysis of Dio and Flores, as well as the specific issues relative to frustrated theft, it is necessary to first refer to the basic rules on the three stages of crimes under our Revised Penal Code. [30] Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A felony is consummated when all the elements necessary for its execution and accomplishment are present. It is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. Finally, it is attempt ed when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance.

In a Decision [16] promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City, Branch 90, convicted both petitioner and Calderon of the crime of consummated theft. They were sentenced to an indeterminate prison term of two (2) years of prision correccional as minimum to seven (7) years of prision mayor as maximum. [17] The RTC found credible the testimonies of the prosecution witnesses and established the convictions on the positive identification of the accused as perpetrators of the crime.

Each felony under the Revised Penal Code has a subjective phase, or that portion of the acts constituting the crime included between the act which begins the commission of the crime and the last act performed by the offender which, with prior acts, should result in the consummated crime. [31] After that point has been breached, the subjective phase ends and the objective phase begins. [32] It has been held that if the offender never passes the subjective phase of the offense, the crime is merely attempted. [33] On the other hand, the subjective phase is completely passed in case of frustrated crimes, for in such instances, [s]ubjectively the crime is complete. [34]

Both accused filed their respective Notices of Appeal, [18] but only petitioner filed a brief [19] with the Court of Appeals, causing the appellate court to deem Calderons appeal as abandoned and consequently dismissed. Before the Court of Appeals, petitioner argued that he should only be convicted of frustrated theft since at the time he was apprehended, he was never placed in a position to freely dispose of the articles stolen. [20] However, in its Decision dated 19 June 2003, [21] the Court of Appeals rejected this contention and affirmed petitioners conviction. [22] Hence the present Petition for Review, [23] which expressly seeks that petitioners conviction be modified to only of Frustrated Theft. [24]

Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and attempted felonies on the other. So long as the offender fails to complete all the acts of execution despite commencing the commission of a felony, the crime is undoubtedly in the attempted stage. Since the specific acts of execution that define each crime under the Revised Penal Code are generally enumerated in the code itself, the task of ascertaining whether a crime is attempted only would need to compare the acts actually performed by the accused as against the acts that constitute the felony under the Revised Penal Code.

Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious intent and his actual participation in the theft of several cases of detergent with a total value of P12,090.00 of which he was charged. [25] As such, there is no cause for the Court to consider a factual scenario other than that presented by the prosecution, as affirmed by the RTC and the Court of Appeals. The only question to consider is whether under the given facts, the theft should be deemed as consummated or merely frustrated.

In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial concession that all of the acts of

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execution have been performed by the offender. The critical distinction instead is whether the felony itself was actually produced by the acts of execution. The determination of whether the felony was produced after all the acts of execution had been performed hinges on the particular statutory definition of the felony. It is the statutory definition that generally furnishes the elements of each crime under the Revised Penal Code, while the elements in turn unravel the particular requisite acts of execution and accompanying criminal intent.

Justinian, the idea had taken hold that more than mere physical handling, there must further be an intent of acquiring gain from the object, thus: [f]urtum est contrectatio rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve.[45] This requirement of animo lucrandi, or intent to gain, was maintained in both the Spanish and Filipino penal laws, even as it has since been abandoned in Great Britain. [46]

The long-standing Latin maxim actus non facit reum, nisi mens sit rea supplies an important characteristic of a crime, that ordinarily, evil intent must unite with an unlawful act for there to be a crime, and accordingly, there can be no crime when the criminal mind is wanting. [35] Accepted in this jurisdiction as material in crimes mala in se,[36] mens reahas been defined before as a guilty mind, a guilty or wrongful purpose or criminal intent, [37] and essential for criminal liability. [38] It follows that the statutory definition of our mala in se crimes must be able to supply what the mens rea of the crime is, and indeed the U.S. Supreme Court has comfortably held that a criminal law that contains no mens rea requirement infringes on constitutionally protected rights. [39] The criminal statute must also provide for the overt acts that constitute the crime. For a crime to exist in our legal law, it is not enough that mens rea be shown; there must also be an actus reus.[40]

In Spanish law, animo lucrandi was compounded with apoderamiento, or unlawful taking, to characterize theft. Justice Regalado notes that the concept of apoderamientoonce had a controversial interpretation and application. Spanish law had already discounted the belief that mere physical taking was constitutive of apoderamiento, finding that it had to be coupled with the intent to appropriate the object in order to constitute apoderamiento; and to appropriate means to deprive the lawful owner of the thing. [47] However, a conflicting line of cases decided by the Court of Appeals ruled, alternatively, that there must be permanency in the taking [48] or an intent to permanently deprive the owner of the stolen property; [49] or that there was no need for permanency in the taking or in its intent, as the mere temporary possession by the offender or disturbance of the proprietary rights of the owner already constituted apoderamiento.[50] Ultimately, as Justice Regalado notes, the Court adopted the latter thought that there was no need of an intent to permanently deprive the owner of his property to constitute an unlawful taking. [51]

It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the felony is produced. As a postulate in the craftsmanship of constitutionally sound laws, it is extremely preferable that the language of the law expressly provide when the felony is produced. Without such provision, disputes would inevitably ensue on the elemental question whether or not a crime was committed, thereby presaging the undesirable and legally dubious set-up under which the judiciary is assigned the legislative role of defining crimes. Fortunately, our Revised Penal Code does not suffer from such infirmity. From the statutory definition of any felony, a decisive passage or term is embeddedwhich attests when the felony is produced by the acts of execution. For example, the statutory definition of murder or homicide expressly uses the phrase shall kill another, thus making it clear that the felony is produced by the death of the victim, and conversely, it is not produced if the victim survives.

So long as the descriptive circumstances that qualify the taking are present, including animo lucrandi and apoderamiento, the completion of the operative act that is the taking of personal property of another establishes, at least, that the transgression went beyond the attempted stage. As applied to the present case, the moment petitioner obtained physical possession of the cases of detergent and loaded them in the pushcart, such seizure motivated by intent to gain, completed without need to inflict violence or intimidation against persons nor force upon things, and accomplished without the consent of the SM Super Sales Club, petitioner forfeited the extenuating benefit a conviction for only attempted theft would have afforded him.

We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its elements are spelled out as fo llows:

On the critical question of whether it was consummated or frustrated theft, we are obliged to apply Article 6 of the Revised Penal Code to ascertain the answer. Following that provision, the theft would have been frustrated only, once the acts committed by petitioner, if ordinarily sufficient to produce theft as a consequence, do not produce [such theft] by reason of causes independent of the will of the perpetrator. There are clearly two determinative factors to consider: that the felony is not produced, and that such failure is due to causes independent of the will of the perpetrator. The second factor ultimately depends on the evidence at hand in each particular case. The first, however, relies primarily on a doctrinal definition attaching to the individual felonies in the Revised Penal Code [52] as to when a particular felony is not produced, despite the commission of all the acts of execution.

Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latters consent. Theft is likewise committed by: 1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner; 2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or object of the damage caused by him; and 3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall gather cereals, or other forest or farm products.

So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as to how exactly is the felony of theft produced. Parsing through the statutory definition of theft under Article 308, there is one apparent answer provided in the language of the law that theft is already produced upon the tak[ing of] personal property of another without the latters consent.

Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic means by which theft may be committed. [41] In the present discussion, we need to concern ourselves only with the general definition since it was under it that the prosecution of the accused was undertaken and sustained. On the face of the definition, there is only one operative act of execution by the actor involved in theft ─ the taking of personal property of another. It is also clear from the provision that in order that such taking may be qualified as theft, there must further be present the descriptive circumstances that the taking was with intent to gain; without force upon things or violence against or intimidation of persons; and it was without the consent of the owner of the property.

U.S. v. Adiao [53] apparently supports that notion. Therein, a customs inspector was charged with theft after he abstracted a leather belt from the baggage of a foreign national and secreted the item in his desk at the Custom House. At no time was the accused able to get the merchandise out of the Custom House, and it appears that he was under observation during the entire transaction. [54] Based apparently on those two circumstances, the trial court had found him guilty, instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive, and holding instead that the accused was guilty of consummated theft, finding that all the elements of the completed crime of theft are present. [55] In support of its conclusion that the theft was consummated, the Court cited three (3) decisions of the Supreme Court of Spain, the discussion of which we replicate below:

Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the Revised Penal Code, namely: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things. [42]

The defendant was charged with the theft of some fruit from the land of another. As he was in the act of taking the fruit[,] he was seen by a policeman, yet it did not appear that he was at that moment caught by the policeman but sometime later. The court said: "[x x x] The trial court did not err [x x x ] in considering the crime as that of consummated theft instead of frustrated theft inasmuch as nothing appears in the record showing that the policemen who saw the accused take the fruit from the adjoining land arrested him in the act

In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early Roman law as defined by Gaius, was so broad enough as to encompass any kind of physical handling of property belonging to another against the will of the owner, [43] a definition similar to that by Paulus that a thief handles (touches, moves) the property of another. [44] However, with the Institutes of

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and thus prevented him from taking full possession of the thing stolen and even its utilization by him for an interval of time." (Decision of the Supreme Court of Spain, October 14, 1898.)

through the check point without further investigation or checking. [60] This point was deemed material and indicative that the theft had not been fully produced, for the Court of Appeals pronounced that the fact determinative of consummation is the ability of the thief to dispose freely of the articles stolen, even if it were more or less momentary. [61] Support for this proposition was drawn from a decision of the Supreme Court of Spain dated 24 January 1888 (1888 decision), which was quoted as follows:

Defendant picked the pocket of the offended party while the latter was hearing mass in a church. The latter on account of the solemnity of the act, although noticing the theft, did not do anything to prevent it. Subsequently, however, while the defendant was still inside the church, the offended party got back the money from the defendant. The court said that the defendant had performed all the acts of execution and considered the theft as consummated. (Decision of the Supreme Court of Spain, December 1, 1897.)

Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la consumacion del delito de hurto es preciso que so haga en circunstancias tales que permitan al sustractor la libre disposicion de aquella, siquiera sea mas o menos momentaneamente, pues de otra suerte, dado el concepto del delito de hurto, no puede decirse en realidad que se haya producido en toda su extension, sin materializar demasiado el acto de tomar la cosa ajena. [62]

The defendant penetrated into a room of a certain house and by means of a key opened up a case, and from the case took a small box, which was also opened with a key, from which in turn he took a purse containing 461 reales and 20 centimos, and then he placed the money over the cover of the case; just at this moment he was caught by two guards who were stationed in another room near-by. The court considered this as consummated robbery, and said: "[x x x] The accused [x x x] having materially taken possession of the money from the moment he took it from the place where it had been, and having taken it with his hands with intent to appropriate the same, he executed all the acts necessary to constitute the crime which was thereby produced; only the act of making use of the thing having been frustrated, which, however, does not go to make the elements of the consummated crime." (Decision of the Supreme Court of Spain, June 13, 1882.) [56]

Integrating these considerations, the Court of Appeals then concluded:

This court is of the opinion that in the case at bar, in order to make the booty subject to the control and disposal of the culprits, the articles stolen must first be passed through the M.P. check point, but since the offense was opportunely discovered and the articles sei zed after all the acts of execution had been performed, but before the loot came under the final control and disposal of the looters, the offense can not be said to have been fully consummated, as it was frustrated by the timely intervention of the guard. The offense committed, therefore, is that of frustrated theft. [63]

It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the criminal actors in all these cases had been able to obtain full possession of the personal property prior to their apprehension. The interval between the commission of the acts of theft and the apprehension of the thieves did vary, from sometime later in the 1898 decision; to the very moment the thief had just extracted the money in a purse which had been stored as it was in the 1882 decision; and before the thief had been able to spirit the item stolen from the building where the theft took place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of no consequence in those cases, as it was ruled that the thefts in each of those cases was consummated by the actual possession of the property belonging to another.

Dio thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the time of apprehension is determinative as to whether the theft is consummated or frustrated. This theory was applied again by the Court of Appeals some 15 years later, in Flores, a case which according to the division of the court that decided it, bore no substantial variance between the circumstances [herein] and in [Dio]. [64] Such conclusion is borne out by the facts in Flores. The accused therein, a checker employed by the Luzon Stevedoring Company, issued a delivery receipt for one empty sea van to the truck driver who had loaded the purportedly empty sea van onto his truck at the terminal of the stevedoring company. The truck driver proceeded to show the delivery receipt to the guard on duty at the gate of the terminal. However, the guards insisted on inspecting the van, and discovered that the empty sea van had actually contained other merchandise as well. [65] The accused was prosecuted for theft qualified by abuse of confidence, and found himself convicted of the consummated crime. Before the Court of Appeals, accused argued in the alternative that he was guilty only of attempted theft, but the appellate court pointed out that there was no intervening act of spontaneous desistance on the part of the accused that literally frustrated the theft. However, the Court of Appeals, explicitly relying on Dio, did find that the accused was guilty only of frustrated, and not consummated, theft.

In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated rather than consummated theft. The case is People v. Sobrevilla, [57] where the accused, while in the midst of a crowd in a public market, was already able to abstract a pocketbook from the trousers of the victim when the latter, perceiving the theft, caught hold of the [accused]s shirt -front, at the same time shouting for a policeman; after a struggle, he recovered his pocket-book and let go of the defendant, who was afterwards caught by a policeman. [58] In rejecting the contention that only frustrated theft was established, the Court simply said, wi thout further comment or elaboration: We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-book, and that determines the crime of theft. If the pocket-book was afterwards recovered, such recovery does not affect the [accuseds] criminal liability, which arose from the [accused] having succeeded in taking the pocket-book. [59] If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the latter, in that the fact that the offender was able to succeed in obtaining physical possession of the stolen item, no matter how momentary, was able to consummate the theft.

As noted earlier, the appellate court admitted it found no substantial variance between Dio and Flores then before it. The prosecution in Flores had sought to distinguish that case from Dio, citing a traditional ruling which unfortunately was not identified in the decision itself. However, the Court of Appeals pointed out that the said traditional ruling was qualified by the words is placed in a situation where [the actor] could dispose of its contents at once.[66] Pouncing on this qualification, the appellate court noted that [o]bviously, while the truck and the van were still within the compound, the petitioner could not have disposed of the goods at once. At the same time, the Court of Appeals conceded that [t]his is entirely different from the case where a much less bulk and more common thing as money was the object of the crime, where freedom to dispose of or make use of it is palpably less restricted, [67] though no further qualification was offered what the effect would have been had that alternative circumstance been present instead.

Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of petitioner in this case. Yet to simply affirm without further comment would be disingenuous, as there is another school of thought on when theft is consummated, as reflected in the Dio and Flores decisions. Dio was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before Flores. The accused therein, a driver employed by the United States Army, had driven his truck into the port area of the South Harbor, to unload a truckload of materials to waiting U.S. Army personnel. After he had finished unloading, accused drove away his truck from the Port, but as he was approaching a checkpoint of the Military Police, he was stopped by an M.P. who inspected the truck and found therein three boxes of army rifles. The accused later contended that he had been stopped by four men who had loaded the boxes with the agreement that they were to meet him and retrieve the rifles after he had passed the checkpoint. The trial court convicted accused of consummated theft, but the Court of Appeals modified the conviction, holding instead that only frustrated theft had been committed.

Synthesis of the Dio and Flores rulings is in order. The determinative characteristic as to whether the crime of theft was produced is the ability of the actor to freely dispose of the articles stolen, even if it were only momentary. Such conclusion was drawn from an 1888 decision of the Supreme Court of Spain which had pronounced that in determining whether theft had been consummated, es preciso que so haga en circunstancias tales que permitan al sustractor de aquella, siquiera sea mas o menos momentaneamente. The qualifier siquiera sea mas o menos momentaneamente proves another important consideration, as it implies that if the actor was in a capacity to freely dispose of the stolen items before apprehension, then the theft could be deemed consummated. Such circumstance was not present in either Dio or Flores, as the stolen items in both cases were retrieved from the actor before they could be physically extracted

In doing so, the appellate court pointed out that the evident intent of the accused was to let the boxes of rifles pass through the checkpoint, perhaps in the belief that as the truck had already unloaded its cargo inside the depot, it would be allowed to pass

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from the guarded compounds from which the items were filched. However, as implied in Flores, the character of the item stolen could lead to a different conclusion as to whether there could have been free disposition, as in the case where the chattel involved was of much less bulk and more common x x x, [such] as money x x x. [68]

They were not able to carry the coconuts away from the plantation due to the timely arrival of the owner. [80] No legal reference or citation was offered for this averment, whether Dio, Flores or the Spanish authorities who may have bolstered the conclusion. There are indeed evident problems with this formulation in Empelis.

In his commentaries, Chief Justice Aquino makes the following pointed observation on the import of the Dio ruling:

Empelis held that the crime was only frustrated because the actors were not able to perform all the acts of execution which should have produced the felon as a consequence. [81] However, per Article 6 of the Revised Penal Code, the crime is frustrated when the offender performs all the acts of execution, though not producing the felony as a result. If the offender was not able to perform all the acts of execution, the crime is attempted, provided that the nonperformance was by reason of some cause or accident other than spontaneous desistance. Empelis concludes that the crime was

There is a ruling of the Court of Appeals that theft is consummated when the thief is able to freely dispose of the stolen articles even if it were more or less momentary. Or as stated in another case[ [69] ], theft is consummated upon the voluntary and malicious taking of property belonging to another which is realized by the material occupation of the thing whereby the thief places it under his control and in such a situation that he could dispose of it at once. This ruling seems to have been based on Viadas opinion that in order the theft may be consummated, es preciso que se haga en circumstancias x x x [[70] ][71]

frustrated because not all of the acts of execution were performed due to the timely arrival of the owner. However, following Article 6 of the Revised Penal Code, these facts should elicit the conclusion that the crime was only attempted, especially given that the acts were not performed because of the timely arrival of the owner, and not because of spontaneous desistance by the offenders.

In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also states that [i]n theft or robbery the crime is consummated after the accused had material possession of the thing with intent to appropriate the same, although his act of making use of the thing was frustrated. [72]

For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if the two sentences we had cited actually aligned with the definitions provided in Article 6 of the Revised Penal Code, such passage bears no reflection that it is the product of the considered evaluation of the relevant legal or jurisprudential thought. Instead, the passage is offered as if it were sourced from an indubitable legal premise so settled it required no further explication.

There are at least two other Court of Appeals rulings that are at seeming variance with the Dio and Flores rulings. People v. Batoon [73] involved an accused who filled a container with gasoline from a petrol pump within view of a police detective, who followed the accused onto a passenger truck where the arrest was made. While the trial court found the accused guilty of frustrated qualified theft, the Court of Appeals held that the accused was guilty of consummated qualified theft, finding that [t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that actual taking with intent to gain is enough to consummate the crime of theft.[74]

Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft. Indeed, we cannot see how Empelis can contribute to our present debate, except for the bare fact that it proves that the Court had once deliberately found an accused guilty of frustrated theft. Even if Empelis were considered as a precedent for frustrated theft, its doctrinal value is extremely compromised by the erroneous legal premises that inform it, and also by the fact that it has not been entrenched by subsequent reliance.

In People v. Espiritu, [75] the accused had removed nine pieces of hospital linen from a supply depot and loaded them onto a truck. However, as the truck passed through the checkpoint, the stolen items were discovered by the Military Police running the checkpoint. Even though those facts clearly admit to similarity with those in Dio, the Court of Appeals held that the accused were guilty of consummated theft, as the accused were able to take or get hold of the hospital linen and that the only thing that was frustrated, which does not constitute any element of theft, is the use or benefit that the thieves expected from the commission of the offense. [76]

Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in this jurisdiction. Considering the flawed reasoning behind its conclusion of frustrated theft, it cannot present any efficacious argument to persuade us in this case. Insofar as Empelis may imply that convictions for frustrated theft are beyond cavil in this jurisdiction, that decision is subject to reassessment.

In pointing out the distinction between Dio and Espiritu, Reyes wryly observes that [w]hen the meaning of an element of a felony is controversial, there is bound to arise different rulings as to the stage of execution of that felony. [77] Indeed, we can discern from this survey of jurisprudence that the state of the law insofar as frustrated theft is concerned is muddled. It fact, given the disputed foundational basis of the concept of frustrated theft itself, the question can even be asked whether there is really such a crime in the first place.

V. At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de Espaa was then in place. The definition of the crime of theft, as provided then, read as follows:

IV.

Son reos de hurto:

The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not consummated, theft. As we undertake this inquiry, we have to reckon with the import of this Courts 1984 decision in Empelis v. IAC. [78]

1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la voluntad de su dueo. 2. Los que encontrndose una cosa perdida y sabiendo quin es su dueo se la apropriaren co intencin de lucro.

As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the premises of his plantation, in the act of gathering and tying some coconuts. The accused were surprised by the owner within the plantation as they were carrying with them the coconuts they had gathered. The accused fled the scene, dropping the coconuts they had seized, and were subsequently arrested after the owner reported the incident to the police. After trial, the accuse d were convicted of qualified theft, and the issue they raised on appeal was that they were guilty only of simple theft. The Court affirmed that the theft was qualified, following Article 310 of the Revised Penal Code, [79] but further held that the accused were guilty only of frustrated qualified theft. It does not appear from the Empelis decision that the issue of whether the theft was consummated or frustrated was raised by any of the parties. What does appear, though, is that the disposition of that issue was contained in only two sentences, which we reproduce in full:

3. Los daadores que sustrajeren o utilizaren los frutos u objeto del dao causado, salvo los casos previstos en los artίculos 606, nm. 1.0; 607, nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613; Segundo prrafo del 617 y 618. It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court decisions were handed down. However, the said code would be revised again in 1932, and several times thereafter. In fact, under the Codigo Penal Espaol de 1995, the crime of theft is now simply defined as [e]l que, con nimo de lucro,

tomare las cosas muebles ajenas sin la voluntad de su dueo ser castigado [82]

However, the crime committed is only frustrated qualified theft because petitioners were not able to perform all the acts of execution which should have produced the felony as a consequence.

Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, la libre disposicion of the property is not an element or a statutory characteristic of the crime. It does appear that the

5

principle originated and perhaps was fostered in the realm of Spanish jurisprudence.

define what constitutes a particular crime in this jurisdiction. It is the legislature, as representatives of the sovereign people, which determines which acts or combination of acts are criminal in nature. Judicial interpretation of penal laws should be aligned with what was the evident legislative intent, as expressed primarily in the language of the law as it defines the crime. It is Congress, not the courts, which is to define a crime, and ordain its punishment. [88] The courts cannot arrogate the power to introduce a new element of a crime which was unintended by the legislature, or redefine a crime in a manner that does not hew to the statutory language. Due respect for the prerogative of Congress in defining crimes/felonies constrains the Court to refrain from a broad interpretation of penal laws where a narrow interpretation is appropriate. The Court must take heed of language, legislative history and purpose, in order to strictly determine the wrath and breath of the conduct the law forbids. [89]

The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the 1870 Codigo Penal de Espaa. Therein, he raised at least three questions for the reader whether the crime of frustrated or consummated theft had occurred. The passage cited in Dio was actually utilized by Viada to answer the question whether frustrated or consummated theft was committed [e]l que en el momento mismo de apoderarse de la cosa ajena, vindose sorprendido, la arroja al suelo. [83] Even as the answer was as stated in Dio, and was indeed derived from the 1888 decision of the Supreme Court of Spain, that decisions factual predicate occasioning the statement was apparently very different from Dio, for it appears that the 1888 decision involved an accused who was surprised by the employees of a haberdashery as he was abstracting a layer of clothing off a mannequin, and who then proceeded to throw away the garment as he fled. [84]

With that in mind, a problem clearly emerges with the Dio/Flores dictum. The ability of the offender to freely dispose of the property stolen is not a constitutive element of the crime of theft. It finds no support or extension in Article 308, whether as a descriptive or operative element of theft or as the mens rea or actus reus of the felony. To restate what this Court has repeatedly held: the elements of the crime of theft as provided for in Article 308 of the Revised Penal Code are: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things. [90]

Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of the Supreme Court of Spain that have held to that effect. [85] A few decades later, the esteemed Eugenio Cuello Caln pointed out the inconsistent application by the Spanish Supreme Court with respect to frustrated theft. Hay frustracin cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de harino del carro que los conducia a otro que tenan preparado, 22 febrero 1913; cuando el resultado no tuvo efecto por la intervencin de la policia situada en el local donde se realiz la sustraccin que impidi pudieran los reos disponer de lo sustrado, 30 de octubre 1950. Hay "por lo menos" frustracin, si existe apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril 1930; hay frustracin "muy prxima" cuando el culpable es detenido por el perjudicado acto seguido de cometer la sustraccin, 28 febrero 1931. Algunos fallos han considerado la existencia de frustracin cuando, perseguido el culpable o sorprendido en el momento de llevar los efectos hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, stos, conforme a lo antes expuesto, son hurtos consumados. [86]

Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain, of personal property of another without the latters consent. While the Dio/Flores dictum is considerate to the mindset of the offender, the statutory definition of theft considers only the perspective of intent to gain on the part of the offender, compounded by the deprivation of property on the part of the victim. For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage, the question is again, when is the crime of theft produced? There would be all but certain unanimity in the position that theft is produced when there is deprivation of personal property due to its taking by one with intent to gain. Viewed from that perspective, it is immaterial to the product of the felony that the offender, once having committed all the acts of execution for theft, is able or unable to freely dispose of the property stolen since the deprivation from the owner alone has already ensued from such acts of execution. This conclusion is reflected in Chief Justice Aquinos commentaries, as earlier cited, that [i]n theft or robbery the crime is consummated after the accused had material possession of the thing with intent to appropriate the same, although his act of making use of the thing was frustrated. [91]

Ultimately, Cuello Caln attacked the very idea that frustrated theft is actually possible: La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa queda de hecho a la disposicin del agente. Con este criterio coincide la doctrina sentada ltimamente porla jurisprudencia espaola que generalmente considera consumado el hurto cuando el culpable coge o aprehende la cosa y sta quede por tiempo ms o menos duradero bajo su poder. El hecho de que ste pueda aprovecharse o no de lo hurtado es indiferente. El delito no pierde su carcter de consumado aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada. No se concibe la frustracin, pues es muy dificil que el que hace cuanto es necesario para la consumacin del hurto no lo consume efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante, declara hurtos frustrados son verdaderos delitos consumados. [87] (Emphasis supplied)

It might be argued, that the ability of the offender to freely dispose of the property stolen delves into the concept of taking itself, in that there could be no true taking until the actor obtains such degree of control over the stolen item. But even if this were correct, the effect would be to downgrade the crime to its attempted, and not frustrated stage, for it would mean that not all the acts of execution have not been completed, the taking not having been accomplished. Perhaps this point could serve as fertile ground for future discussion, but our concern now is whether there is indeed a crime of frustrated theft, and such consideration proves ultimately immaterial to that question. Moreover, such issue will not apply to the facts of this particular case. We are satisfied beyond reasonable doubt that the taking by the petitioner was completed in this case. With intent to gain, he acquired physical possession of the stolen cases of detergent for a considerable period of time that he was able to drop these off at a spot in the parking lot, and long enough to load these onto a taxicab.

Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who was content with replicating the Spanish Supreme Court decisions on the matter, Cuello Caln actually set forth his own thought that questioned whether theft could truly be frustrated, since pues es muy dificil que el que hace cuanto es necesario para la consumacin delhurto no lo consume efectivamente. Otherwise put, it would be difficult to foresee how the execution of all the acts necessary for the completion of the crime would not produce the effect of theft. This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought that obliges us to accept frustrated theft, as proposed in Dio and Flores. A final ruling by the Court that there is no crime of frustrated theft in this jurisdiction will not lead to scholastic pariah, for such a submission is hardly heretical in light of Cuello Calns position.

Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same. [92] And long ago, we asserted in People v. Avila: [93]

Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a fresh perspective, as we are not bound by the opinions of the respected Spanish commentators, conflicting as they are, to accept that theft is capable of commission in its frustrated stage. Further, if we ask the question whether there is a mandate of statute or precedent that must compel us to adopt the Dio and Flores doctrines, the answer has to be in the negative. If we did so, it would arise not out of obeisance to an inexorably higher command, but from the exercise of the function of statutory interpretation that comes as part and parcel of judicial review, and a function that allows breathing room for a variety of theorems in competition until one is ultimately adopted by this Court. V.

x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated into the physical power of the thief, which idea is qualified by other conditions, such as that the taking must be effected animo lucrandi and without the consent of the owner; and it will be here noted that the definition does not require that the taking should be effected against the will of the owner but merely that it should be without his consent, a distinction of no slight importance. [94] Insofar as we consider the present question, unlawful taking is most material in this respect. Unlawful taking, which is the deprivation of ones personal property, is the element which produces the felony in its consummated stage. At the same time, without unlawful taking as

The foremost predicate that guides us as we explore the matter is that it lies in the province of the legislature, through statute, to

6

an act of execution, the offense could only be attempted theft, if at all.

The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First Instance of Iloilo, finding him guilty of attempted robbery and sentencing him to suffer two years and four months of prision correccional and to an additional penalty of ten years and one day of prision mayor for being an habitual delinquent, with the accessory penalties of the law, and to pay the costs of the proceeding. At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on Delgado and C.R. Fuentes streets of the City of Iloilo, caught the accused in the act of making an opening with an iron bar on the wall of a store of cheap goods located on the last named street. At that time the owner of the store, Tan Yu, was sleeping inside with another Chinaman. The accused had only succeeded in breaking one board and in unfastening another from the wall, when the policeman showed up, who instantly arrested him and placed him under custody. The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the trial judge and the SolicitorGeneral, as constituting attempted robbery, which we think is erroneous. It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which has a logical relation to a particular, concrete offense; that, which is the beginning of the execution of the offense by overt acts of the perpetrator, leading directly to its realization and consummation. The attempt to commit an indeterminate offense, inasmuch as its nature in relation to its objective is ambiguous, is not a juridical fact from the standpoint of the Penal Code. There is no doubt that in the case at bar it was the intention of the accused to enter Tan Yu's store by means of violence, passing through the opening which he had started to make on the wall, in order to commit an offense which, due to the timely arrival of policeman Tomambing, did not develop beyond the first steps of its execution. But it is not sufficient, for the purpose of imposing penal sanction, that an act objectively performed constitute a mere beginning of execution; it is necessary to establish its unavoidable connection, like the logical and natural relation of the cause and its effect, with the deed which, upon its consummation, will develop into one of the offenses defined and punished by the Code; it is necessary to prove that said beginning of execution, if carried to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. Thus, in case of robbery, in order that the simple act of entering by means of force or violence another person's dwelling may be considered an attempt to commit this offense, it must be shown that the offender clearly intended to take possession, for the purpose of gain, of some personal property belonging to another. In the instant case, there is nothing in the record from which such purpose of the accused may reasonably be inferred. From the fact established and stated in the decision, that the accused on the day in question was making an opening by means of an iron bar on the wall of Tan Yu's store, it may only be inferred as a logical conclusion that his evident intention was to enter by means of force said store against the will of its owner. That his final objective, once he succeeded in entering the store, was to rob, to cause physical injury to the inmates, or to commit any other offense, there is nothing in the record to justify a concrete finding.1avvphil.ñet It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material damage is wanting, the nature of the action intended (accion fin) cannot exactly be ascertained, but the same must be inferred from the nature of the acts executed (accion medio). Hence, the necessity that these acts be such that by their very nature, by the facts to which they are related, by the circumstances of the persons performing the same, and by the things connected therewith, they must show without any doubt, that they are aimed at the consummation of a crime. Acts susceptible of double interpretation , that is, in favor as well as against the culprit, and which show an innocent as well as a punishable act, must not and can not furnish grounds by themselves for attempted nor frustrated crimes. The relation existing between the facts submitted for appreciation and the offense which said facts are supposed to produce must be direct; the intention must be ascertained from the facts and therefore it is necessary, in order to avoid regrettable instances of injustice, that the mind be able to directly infer from them the intention of the perpetrator to cause a particular injury. This must have been the intention of the legislator in requiring that in order for an attempt to exist, the offender must commence the commission of the felony directly by overt acts, that is to say, that the acts performed must be such that, without the intent to commit an offense, they would be meaningless. Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the commission of the offense, are not punished except when they are aimed directly to its execution, and therefore they must have an immediate and necessary relation to the offense." Considering — says the Supreme Court of Spain in its decision of March 21, 1892 — that in order to declare that such and such overt acts constitute an attempted offense it is necessary that their objective be known and established, or that said acts be of such nature that they themselves should obviously disclose the criminal

With these considerations, we can only conclude that under Article 308 of the Revised Penal Code, theft cannot have a frustrated stage. Theft can only be attempted or consummated. Neither Dio nor Flores can convince us otherwise. Both fail to consider that once the offenders therein obtained possession over the stolen items, the effect of the felony has been produced as there has been deprivation of property. The presumed inability of the offenders to freely dispose of the stolen property does not negate the fact that the owners have already been deprived of their right to possession upon the completion of the taking. Moreover, as is evident in this case, the adoption of the rule that the inability of the offender to freely dispose of the stolen property frustrates the theft would introduce a convenient defense for the accused which does not reflect any legislated intent, [95] since the Court would have carved a viable means for offenders to seek a mitigated penalty under applied circumstances that do not admit of easy classification. It is difficult to formulate definite standards as to when a stolen item is susceptible to free disposal by the thief. Would this depend on the psychological belief of the offender at the time of the commission of the crime, as implied in Dio? Or, more likely, the appreciation of several classes of factual circumstances such as the size and weight of the property, the location of the property, the number and identity of people present at the scene of the crime, the number and identity of people whom the offender is expected to encounter upon fleeing with the stolen property, the manner in which the stolen item had been housed or stored; and quite frankly, a whole lot more. Even the fungibility or edibility of the stolen item would come into account, relevant as that would be on whether such property is capable of free disposal at any stage, even after the taking has been consummated. All these complications will make us lose sight of the fact that beneath all the colorful detail, the owner was indeed deprived of property by one who intended to produce such deprivation for reasons of gain. For such will remain the presumed fact if frustrated theft were recognized, for therein, all of the acts of execution, including the taking, have been completed. If the facts establish the non-completion of the taking due to these peculiar circumstances, the effect could be to downgrade the crime to the attempted stage, as not all of the acts of execution have been performed. But once all these acts have been executed, the taking has been completed, causing the unlawful deprivation of property, and ultimately the consummation of the theft. Maybe the Dio/Flores rulings are, in some degree, grounded in common sense. Yet they do not align with the legislated framework of the crime of theft. The Revised Penal Code provisions on theft have not been designed in such fashion as to accommodate said rulings. Again, there is no language in Article 308 that expressly or impliedly allows that the free disposition of the items stolen is in any way determinative of whether the crime of theft has been produced. Dio itself did not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was ultimately content in relying on Dio alone for legal support. These cases do not enjoy the weight of stare decisis, and even if they did, their erroneous appreciation of our law on theft leave them susceptible to reversal. The same holds true of Empilis, a regrettably stray decision which has not since found favor from this Court. We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As petitioner has latched the success of his appeal on our acceptance of the Dio and Flores rulings, his petition must be denied, for we decline to adopt said rulings in our jurisdiction. That it has taken all these years for us to recognize that there can be no frustrated theft under the Revised Penal Code does not detract from the correctness of this conclusion. It will take considerable amendments to our Revised Penal Code in order that frustrated theft may be recognized. Our deference to Viada yields to the higher reverence for legislative intent. WHEREFORE, the petition is DENIED. Costs against petitioner. SO ORDERED.

G.R. No. L-43530 August 3, 1935 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. AURELIO LAMAHANG, defendant-appellant. Honesto K. Bausa for appellant. Office of the Solicitor-General Hilado for appellee. RECTO, J.:

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objective necessarily intended, said objective and finality to serve as ground for the designation of the offense: . . . . In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does not constitute attempted robbery but attempted trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and decisions of the Supreme Court of Spain therein cited). Under article 280 of the Revised Penal Code, this offense is committed when a private person shall enter the dwelling of another against the latter's will. The accused may be convicted and sentenced for an attempt to commit this offense in accordance with the evidence and the following allegation contained in the information: "... the accused armed with an iron bar forced the wall of said store by breaking a board and unfastening another for the purpose of entering said store ... and that the accused did not succeed in entering the store due to the presence of the policeman on beat Jose Tomambing, who upon hearing the noise produced by the breaking of the wall, promptly approached the accused ... ." Under the circumstances of this case the prohibition of the owner or inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21 Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against the accused must be taken into consideration the aggravating circumstances of nighttime and former convictions, — inasmuch as the record shows that several final judgments for robbery and theft have been rendered against him — and in his favor, the mitigating circumstance of lack of instruction. The breaking of the wall should not be taken into consideration as an aggravating circumstance inasmuch as this is the very fact which in this case constitutes the offense of attempted trespass to dwelling. The penalty provided by the Revised Penal Code for the consummated offense of trespass to dwelling, if committed with force, is prision correccional in its medium and maximum periods and a fine not exceeding P1,000 (art. 280, par. 2); therefore the penalty corresponding to attempted trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its minimum and medium periods. Because of the presence of two aggravating circumstances and one mitigating circumstance the penalty must be imposed in its maximum period. Pursuant to article 29 of the same Code, the accused is not entitled to credit for one-half of his preventive imprisonment. Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of attempted trespass to dwelling, committed by means of force, with the aforesaid aggravating and mitigating circumstances and sentenced to three months and one day of arresto mayor, with the accessory penalties thereof and to pay the costs. Avanceña, C.J., Abad Santos, Hull, and Vickers, JJ., concur. G.R. No. 86163 April 26, 1990 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO CANASARES, and SIMPLICIO CANASARES, BIENVENIDO SALVILLA, defendant-appellant. The Solicitor General for plaintiff-appellee. Resurreccion S. Salvilla for defendant-appellant.

the robbery, the accused also asked and were given a ransom money of P50,000.00; that the said crime was attended by aggravating circumstances of band, and illegal possession of firearms and explosives; that the amount of P20,000.00, the ransom money of P50,000.00, two (2) Men's wrist watches, two (2) lady's wrist watches, one (1) .38 caliber revolver and one (1) live grenade were recovered from the accused; to the damage and prejudice of the New Iloilo Lumber Company in the amount of P120,000.00. The evidence for the prosecution may be re-stated as follows: On 12 April 1986, a robbery was staged by the four accused at the New Iloilo Lumber Yard at about noon time. The plan was hatched about two days before. The accused were armed with homemade guns and a hand grenade. When they entered the establishment, they met Rodita Hablero an employee thereat who was on her way out for her meal break and announced to her that it was a hold-up. She was made to go back to the office and there Appellant Salvilla pointed his gun at the owner, Severino Choco, and his two daughters, Mary and Mimie the latter being a minor 15 years of age, and told the for mer that all they needed was money. Hearing this, Severino told his daughter, Mary, to get a paper bag wherein he placed P20,000.00 cash (P5,000.00, according to the defense) and handed it to Appellant. Thereafter, Severino pleaded with the four accused to leave the premises as they already had the money but they paid no heed. Instead, accused Simplicio Canasares took the wallet and wristwatch of Severino after which the latter, his two daughters, and Rodita, were herded to the office and kept there as hostages. At about 2:00 o'clock of the same day, the hostages were allowed to eat. The four accused also took turns eating while the others stood guard. Then, Appellant told Severino to produce P100,000.00 so he and the other hostages could be released. Severino answered that he could not do so because it was a Saturday and the banks were closed. In the meantime, police and military authorities had surrounded the premises of the lumber yard. Major Melquiades B. Sequio Station Commander of the INP of Iloilo City, negotiated with the accused using a loud speaker and appealed to them to surrender with the assurance that no harm would befall them as he would accompany them personally to the police station. The accused refused to surrender or to release the hostages. Thereafter, OIC Mayor, Rosa Caram, of Iloilo City arrived and joined the negotiations. In her dialogue with the accused, which lasted for about four hours, Appellant demanded P100,000.00, a coaster, and some raincoats. She offered them P50,000.00 instead, explaining the difficulty of raising more as it was a Saturday. Later, the accused agreed to receive the same and to release Rodita to be accompanied by Mary Choco in going out of the office. When they were out of the door, one of the accused whose face was covered by a handkerchief, gave a key to Mayor Caram. With this, Mayor Caram unlocked the padlocked door and handed to Rodita the P50,000.00, which the latter, in turn, gave to one of the accused. Rodita was later set free but Mary was herded back to the office. Mayor Caram, Major Sequio and even volunteer radio newscasters continued to appeal to the accused to surrender peacefully but they refused.1âwphi1 UItimatums were given but the accused did not budge. Finally, the police and military authorities decided to launch an offensive and assault the place. This resulted in injuries to the girls, Mimie and Mary Choco as well as to the accused Ronaldo and Reynaldo Canasares. Mary suffered a "macerated right lower extremity just below the knee" so that her right leg had to be amputated. The medical certificate described her condition as "in a state of hemorrhagic shock when she was brought in to the hospital and had to undergo several major operations during the course of her confinement from April 13, 1986 to May 30, 1986." For his part, Appellant Salvilla confirmed that at about noon time of 12 April 1986 he and his co-accused entered the lumber yard and demanded money from the owner Severino Choco He demanded P100,000.00 but was given only P5,000.00, which he placed on the counter of the office of the lumber yard. He admitted that he and his co-accused kept Severino, his daughters, and Rodita inside the office. He maintained, however, that he stopped his co-accused from getting the wallet and wristwatch of Severino and, like the P5,000.00 were all left on the counter, and were never touched by them. He claimed further that they had never fired on the military because they intended to surrender. Appellant's version also was that during the gunfire, Severino's daughter stood up and went outside; he wanted to stop her but he himself was hit by a bullet and could not prevent her. Appellant also admitted the appeals directed to them to surrender but that they gave themselves up only much later. After trial, the Court a quo meted out a judgment of conviction and sentenced each of the accused "to suffer the penalty of reclusion perpetua, with the accessory penalties provided by law and to pay the costs." Appellant Salvilla's present appeal is predicated on the following Assignments of Error: 1. The lower court erred in holding that the crime charged was consummated and in not holding that the same was merely attempted. 2. The lower court erred in not appreciating the mitigating circumstance of voluntary surrender." Upon the facts and the evidence, we affirm. The defense contends that "The complete crime of larceny (theft/robbery) as distinguished from an attempt requires

MELENCIO-HERRERA, J.: Accused Bienvenido Salvilla alone appeals from the Decision of the Regional Trial Court, Branch 28, Iloilo City, *dated 29 August 1988, in Criminal Case No. 20092, finding him and his co-accused Reynaldo, Ronaldo and Simplicio, all surnamed Canasares, guilty beyond reasonable doubt of the crime of "Robbery with Serious Physical Injuries and Serious Illegal Detention" and sentencing them to suffer the penalty of reclusion perpetua. The Information filed against them reads: The undersigned City Fiscal accuses BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO CANASARES, and SIMPLICIO CANASARES, whose maternal surnames, dated and places of birth cannot be ascertained of the crime of ROBBERY WITH SERIOUS PHYSICAL INJURIES AND SERIOUS ILLEGAL DETENTION (Art, 294, paragraph 3, in conjunction with Article 267 of the Revised Penal Code), committed as follows: That on or about the 12th day of April, 1986, in the City of Iloilo, Philippines and within the jurisdiction of this Court, said accused, conspiring and confederating among themselves, working together and helping one another, armed with guns and handgrenade and with the use of violence or intimidation employed on the person of Severino Choco, Mary Choco, Mimie Choco and Rodita Hablero did then and there wilfully, unlawfully and criminally take and carry away, with intent of gain, cash in the amount of P20,000.00, two (2) Men's wrist watches, one (1) Lady's Seiko quartz wrist watch and one (1) Lady's Citizen wrist watch and assorted jewelries, all valued at P50,000.00; that on the occasion and by reason of said robbery, Mary Choco suffered serious physical injuries under paragraph 2 of Article 263, Bienvenido Salvilla likewise suffered serious physical injuries and Reynaldo Canasares also suffered physical injuries; that the said accused also illegally detained, at the compound of the New Iloilo Lumber Company, Iznart Street, Iloilo City, Severino Choco, owner/proprietor of said Lumber Company, Mary Choco, Mimie Choco, who is a minor, being 15 years of age, and Rodita Hablero, who is a salesgirl at said Company; that likewise on the occasion of

8

asportation or carrying away, in addition to the taking, In other words, the crime of robbery/theft has three consecutive stages: 1) the giving 2) the taking and 3) the carrying away or asportation And without asportation the crime committed is only attempted" (Memorandum for Appellant Salvilla, Records, p. 317). There is no question that in robbery, it is required that there be a taking of personal property belonging to another. This is known as the element of asportation the essence of which is the taking of a thing out of the possession of the owner without his privity and consent and without the animus revertendi (Aquino, Revised Penal Code, p. 97, citing5 C.J. 607). In fact, if there is no actual taking, there can be no robbery. Unlawful taking of personal property of another is an essential part of the crime of robbery. Appellant insists that while the "giving" has been proven, the "taking" has not. And this is because neither he nor his three co accused touched the P5,000.00 given by Severino nor the latter's wallet or watch during the entire incident; proof of which is that none of those items were recovered from their persons. Those factual allegations are contradicted by the evidence. Rodita, the lumberyard employee, testified that upon demand by Appellant, Severino put P20,000.00 inside a paper bag and subsequently handed it to Appellant. In turn, accused Simplicio Canasares took the wallet and wristwatch of Severino. In respect of the P50,000.00 from Mayor Caram, Rodita declared that the Mayor handed the amount to her after she (the Mayor) had opened the padlocked door and that she thereafter gave the amount to one of the holduppers. The "taking" was, therefore, sufficiently proved (TSN, July 1, 1987, pp. 12-13, 15-16, 27-31). The money demanded, and the wallet and wristwatch were within the dominion and control of the Appellant and his co-accused and completed the taking. The State established a "taking" sufficient to support a conviction of robbery even though the perpetrators were interrupted by police and so did not pick up the money offered by the victim, where the defendant and an accomplice, armed with a knife and a club respectively, had demanded the money from the female clerk of a convenience store, and the clerk had complied with their instructions and placed money from the register in a paper bag and then placed the bag on the counter in front of the two men; these actions brought the money within the dominion and control of defendant and completed the taking. (Johnson vs. State, 432 So 2d 758). "Severance of the goods from the possession of the owner and absolute control of the property by the taker,even for an instant, constitutes asportation (Adams vs. Commonwealth, 154 SW 381; State vs. Murray, 280 SW 2d 809; Mason vs. Commonwealth, 105 SE 2d 149) [Emphasis supplied]. It is no defense either that Appellant and his co-accused had no opportunity to dispose of the personalities taken. That fact does not affect the nature of the crime, From the moment the offender gained possession of the thing, even if the culprit had no opportunity to dispose of the same, the unlawful taking is complete (Reyes, Revised Penal Code Annotated, Book II, 1981 ed., p. 594). The crime is consummated when the robber acquires possession of the property, even if for a short time, and it is not necessary that the property be taken into the hands of the robber, or that he should have actually carried the property away, out of the physical presence of the lawful possessor, or that he should have made his escape with it" (People vs. Quinn, 176 P 2d 404; Woods vs. State, 220 SW 2d 644; People vs. Beal, 39 P 2d 504; People vs. Clark, 160 P 2d 553). Contrary to Appellant's submission, therefore, a conviction for consummated and not merely attempted Robbery is in order. It is the contention of Appellant that Rodita could not have seen the taking because the place was dark since the doors were closed and there were no windows. It will be recalled, however, that Rodita was one of the hostages herself and could observe the unfolding of events. Her failure to mention the taking in her sworn statement would not militate against her credibility, it being settled that an affidavit is almost always incomplete and inaccurate and does not disclose the complete facts for want of inquiries or suggestions (People vs. Andaya, G.R. No. L-63862, 31 July 1987, 152 SCRA 570; People vs. Tan, et al., 89 Phil. 337 [1951]). The fact, too, that Rodita was an employee of Severino would not lessen her credibility. The defense has not proven that she was actuated by any improper motive in testifying against the accused. In the last analysis, the basic consideration centers around the credibility of witnesses in respect of which the findings of the Trial Court are entitled to great weight as it was in a superior position to assess the same in the course of the trial (see People vs. Ornoza G.R. No. L-56283, 30 June 1987, 151 SCRA 495; People vs. Alcantara, G.R. No. L-38042, 30 June 1987, 151 SCRA 326). Anent the second assignment of error, the "surrender" of the Appellant and his co-accused cannot be considered in their favor to mitigate their liability. To be mitigating, a surrender must have the following requisites: (a) that the offender had not been actually arrested; (b) that the offender surrendered himself to a person in authority or to his agent; and (c) that the surrender was voluntary (People vs. Canamo, G.R. No. L-62043, 13 August 1985, 138 SCRA 141). The "surrender" by the Appellant and his co-accused hardly meets these requirements. They were, indeed, asked to surrender by the police and military authorities but they refused until only much later

when they could no longer do otherwise by force of circumstances when they knew they were completely surrounded and there was no chance of escape. The surrender of the accused was held not to be mitigating as when he gave up only after he was surrounded by the constabulary and police forces (People vs. Sigayan et al., G.R. Nos. L 18523-26, 30 April 1966, 16 SCRA 839; People vs. Mationg G.R. No. L-33488, 29 March 1982, 113 SCRA 167). Their surrender was not spontaneous as it was motivated more by an intent to insure their safety. And while it is claimed that they intended to surrender, the fact is that they did not despite several opportunities to do so. There is no voluntary surrender to speak of (People vs. Dimdiman 106 Phil. 391 [1959]). All told, the assigned errors remain unsubstantiated and we find the guilt of the accused-appellant, Bienvenido Salvilla, established beyond reasonable doubt. Although unassigned as an error, we deem it necessary to turn now to the nature of the linked offenses involved and the penalty imposed by the Trial Court. Appellant and his co-accused were charged in the Information with "Robbery with Serious Physical Injuries and Serious Illegal Detention ("Art. 295, par. 3, in conjunction with Art. 267, RPC )and sentenced to reclusion perpetua. We agree with the Trial Court that a complex crime under Article 48 of the Revised Penal Code has been committed such that the penalty for the more serious offense of Serious Illegal Detention (Art. 267, Revised Penal Code), or "reclusion perpetua to death," is to be imposed instead of the penalty prescribed for Robbery with Serious Physical Injuries (Art. 294 (3), which is reclusion temporal. Under Article 48, a complex crime arises "when an offense is a necessary means for committing the other." The term "necessary means" does not connote indispensable means for if it did then the offense as a "necessary means" to commit another would be an indispensable element of the latter and would be an ingredient thereof. The phrase "necessary means" merely signifies that one crime is committed to facilitate and insure the commission of the other (Aquino, Revised Penal Code, Vol. I, 1987 ed., p. 624, citing Dissent, Montemayor, J., Amado Hernandez, 99 Phil. 515). In this case, the crime of Serious Illegal Detention was such a "necessary means" as it was selected by Appellant and his coaccused to facilitate and carry out more effectively their evil design to stage a robbery. The facts of this case differ from those in People vs. Astor, et al. (G.R. Nos. L-71765-66, 29 April 1987, 149 SCRA 325) where the accused were convicted of Robbery but acquitted in the case for Serious Illegal Detention and where it was held that "the detention is absorbed in the crime of robbery." For one, in Astor, there were two (2) separate Informations filed, one for Robbery and another for Serious Illegal Detention. In the present case, only one Information was filed charging the complex offense. For another, in Astor, the robbery had already been consummated and the detention was merely to forestall the capture of the robbers by the police. Not so in this case, where the detention was availed of as a means of insuring the consummation of the robbery. Further, in Astor, the detention was only incidental to the main crime of robbery so that it was held therein: . . . were appellants themselves not trapped by the early arrival of the police at the scene of the crime, they would have not anymore detained the people inside since they have already completed their job. Obviously, appellants were left with no choice but to resort to detention of these people as security, until arrangements for their safe passage were made. This is not the crime of illegal detention punishable under the penal laws but an act of restraint in order to delay the pursuit of the criminals by peace officers (People v. Sol, 9 Phil. 265; People v. Uday 55 Phil. 167, cited in the Revised Penal Code, Aquino, Vol. 3, 1976 ed., p. 1337). Where the victims in a robbery case were detained in the course of robbery, the detention is absorbed by the crime of robbery (P. v. Baysa, 92 Phil. 1008, id.). In the case at bar, the detention was only incidental to the main crime of robbery, and although in the course thereof women and children were also held, that threats to kill were made, the act should not be considered as a separate offense. Appellants should only be held guilty of robbery. In contract, the detention in the case at bar was not only incidental to the robbery but was a necessary means to commit the same.1âwphi1 After the amount of P20,000.00 was handed to Appellant, the latter and his co-accused still refused to leave. The victims were then taken as hostages and the demand to produce an additional P100,000.00 was made as a prerequisite for their release. The detention was not because the accused were trapped by the police nor were the victims held as security against the latter. The detention was not merely a matter of restraint to enable the malefactors to escape, but deliberate as a means of extortion for an additional amount. The police and other authorities arrived only much later after several hours of detention had already passed. And, despite appeals to appellant and his co-accused to surrender, they adamantly refused until the amount of P100,000.00 they demanded could be turned over to them. They even considered P50,000.00, the amount being handed to them, as inadequate. The foregoing features also distinguish this case from those of U.S. v. Sol, 9 Phil. 265 [1907] where the restraint was for no other purpo se than to prevent the victims from reporting the crime to the

9

authorities; from People v. Gamboa, 92 Phil. 1085 [1953] where the victims were taken to a place one kilometer away and shot in order to liquidate the witnesses to the robbery; from People v. Baysa, 92 Phil. 1008 [1953]; People v. Manzanilla, 43 Phil. 167 [1922], all of which cases were cited in Astor and where the victims were only incidentally detained so that the detention was deemed absorbed in robbery. In other words, unlike in the above cases, the elements of the offense of Serious Illegal Detention are present in this case. The victims were illegally deprived of their liberty. Two females (Mary and Minnie) and a minor (Minnie), a specified circumstance in Article 267 (3), were among those detained. The continuing detention was also for the purpose of extorting ransom, another listed circumstance in Article 267 (last parag.) not only from the detained persons themselves but even from the authorities who arrived to rescue them. It follows then that as the detention in this case was not merely incidental to the robbery but a necessary means employed to facilitate it, the penalty imposed by the Trial Court is proper. WHEREFORE, the judgment appealed from is hereby AFFIRMED. Proportionate costs. SO ORDERED. Paras, Padilla Sarmiento and Regalado JJ., concur. G.R. No. 33463 December 18, 1930 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. BASILIO BORINAGA, defendant-appellant. Paulo Jaro for appellant. Attorney-General Jaranilla for appellee.

The essential condition of a frustrated crime, that the author perform all the acts of execution, attended the attack. Nothing remained to be done to accomplish the work of the assailant completely. The cause resulting in the failure of the attack arose by reason of forces independent of the will of the perpetrator. The assailant voluntarily desisted from further acts. What is known as the subjective phase of the criminal act was passed. (U. S. vs. Eduave [1917], 36 Phil., 209; People vs. Mabugat [1926], 51 Phil., 967.) No superfine distinctions need be drawn in favor of that accused to establish a lesser crime than that of frustrated murder, for the facts disclose a wanton disregard of the sanctity of human life fully meriting the penalty imposed in the trial court. Based on foregoing considerations, the judgment appealed from will be affirmed, with the costs of this instance against the appellant. Avanceña, C.J., Villamor, Ostrand, Johns and Romualdez, JJ., concur.lawphi1>net G.R. No. L-22 December 20, 1945 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. BENEDICTO JOSE Y SANTOS, defendant-appellee. Office of the Solicitor General Tañada and Solicitor Hernandez, Jr. for appellant. Jovito R. Salonga for appellee. FERIA, J.: On May 24, 1945, Benedicto Jose y Santos was accused of a violation of article 159 of the Revised Penal Code in an information filed by the City Fiscal of Manila, as follows: That on or about some time prior to April 19, 1944, the said accused was prosecuted and convicted in Criminal Case No. 3 of the Court of Special and Exclusive Criminal Jurisdiction of the City of Greater Manila, for a violation of section 3(b) and 2(b) of Act No. 65 of the National Assembly of the Republic of the Philippines in connection with section 11 of Ordinance No. 1 of the President of said Republic, and sentenced to ten years of imprisonment, which sentence he commenced to serve on the aforesaid date, April 19, 1944. That after serving about six months of his sentence aforesaid, the said accused was, on October 15, 1944, granted a pardon by the President of the Republic of the Philippines, on condition that the accused should not again violate any of the Penal Laws of the Philippines, a condition which was duly accepted by him, for which reason he was immediately released from confinement. That some time prior to April 5, 1945, the said accused, while enjoying the conditional pardon granted him as aforesaid, did willfully, unlawfully and feloniously violate the condition of said pardon, by then committing, in the City of Manila, Philippines, the crime of qualified theft, for which he was prosecuted, convicted and sentenced in Criminal Case No. A-605 of the Municipal Court of said city, the said accused having been received on the said date, April 5, 1945, at the new Bilibid Prison to serve the said sentence imposed upon him. Contrary to law. Defendant filed a motion to quash the information upon the ground that the facts charged do not constitute an offense, because both the judgment rendered by the Court of Special and Exclusive Criminal Jurisdiction and the conditional pardon granted by the President of the so-called Republic of the Philippines, are void and without legal effect in accordance with the proclamation of General Douglas MacArthur of October 23, 1944; because, even without such proclamation, the proceedings of said court would be null and void inasmuch as it was exclusively a creature and an agency of the Imperial Japanese Army in the Philippines and the motives behind its creation are diametrically opposite to the political policies of the present regime; and because the fundamental constitutional rights guaranteed by the Constitution of the Commonwealth were denied an accused under the procedure adopted by said court. Defendant alleged as a further ground for his motion to quash that the court has no jurisdiction to try the case because it has no authority to take cognizance of and continue to final judgment proceedings commenced and pending in the courts under the so-called Republic of the Philippines. The City Fiscal opposed this motion to quash on the ground that "there should be no question as to the legality of the sentence imposed upon him (defendant) by the said Court of Special and Exclusive Criminal Jurisdiction and the pardon granted him after serving six months of his sentence by the then President of the defunct Republic because, as said before, the defunct Republic being a de facto government, the courts created by it as well as the laws and ordinances under it should be upheld as being legal in conformity with the principles of International Law as elicited in the case of Williams vs. Bruffy (26 U.S. 176, 185; 25 Law. ed., 716), which, among other things, says (referring to de facto government, the courts created by it as well as the laws and ordinances under it should be upheld as being legal in conformity with the principles of International Law as elicited in the case of Williams vs. Bruffy (26 U.S. 176, 185; 25 Law. ed., 716), which among other things, says (referring to de facto government) 'its legislation is in general recognized and the rights acquired under it are with few exceptions respected after the restoration of the authorities which were expelled.' "

MALCOM, J.: Sometime prior to March 4, 1929, an American by the name of Harry H. Mooney, a resident of the municipality of Calubian, Leyte, contracted with one Juan Lawaan for the construction of a fish corral. Basilio Borinaga was associated with Lawaan in the construction of the corral. On the morning of March 4, 1929, Lawaan, with some of his men, went to Mooney's shop and tried to collect from him the whole amount fixed by the contract, notwithstanding that only about two-thirds of the fish corral had been finished. As was to be expected, Mooney refused to pay the price agreed upon at that time. On hearing this reply of Mooney, Lawaan warned him that if he did not pay, something would happen to him, to which Mooney answered that if they wanted to do something to him they should wait until after breakfast, Lawaan then left with his men, and Mooney, after partaking of his morning meal, returned to his shop. On the evening of the same day, Mooney was in the store of a neighbor by the name of Perpetua Najarro. He had taken a seat on a chair in front of the Perpetua, his back being to the window. Mooney had not been there long when Perpetua saw Basilio Borinaga from the window strike with a knife at Mooney, but fortunately for the latter, the knife lodged in the back of the chair on which Mooney was seated. Mooney fell from the chair as a result of the force of the blow, but was not injured. Borinaga ran away towards the market place. Before this occurred, it should be stated that Borinaga had been heard to tell a companion: "I will stab this Mooney, who is an American brute." After the attack, Borinaga was also heard to say that he did not hit the back of Mooney but only the back of the chair. But Borinaga was persistent in his endeavor, and hardly ten minutes after the first attack, he returned, knife in hand, to renew it, but was unable to do so because Mooney and Perpetua were then on their guard and turned a flashlight on Borinaga, frightening him away. Again the same night, Borinaga was overheard stating that he had missed his mark and was unable to give another blow because of the flashlight. The point of the knife was subsequently, on examination of the chair, found embedded in it. The foregoing occurrences gave rise to the prosecution of Basilio Borinaga in the Court of First Instance of Leyte for the crime of frustrated murder. The defense was alibi, which was not given credence. The accused was convicted as charged, by Judge Ortiz, who sentenced him to fourteen years, eight months, and one day of imprisonment, reclusion temporal, with the accessory penalties and the costs. The homicidal intent of the accused was plainly evidenced. The attendant circumstances conclusively establish that murder was in the heart and mind of the accused. More than mere menaces took place. The aggressor stated his purpose, which was to kill, and apologized to his friends for not accomplishing that purpose. A deadly weapon was used. The blow was directed treacherously toward vital organs of the victim. The means used were entirely suitable for accomplishment. The crime should, therefore, be qualified as murder because of the presence of the circumstance of treachery. The only debatable question, not referred to in the briefs, but which must be decided in order to dispose of the appeal, is: Do the facts constitute frustrated murder or attempted murder within the meaning of article 3 of the Penal Code? Although no exact counterpart to the facts at bar has been found either in Spanish or Philippine jurisprudence, a majority of the court answer the question propounded by stating that the crime committed was that of frustrated murder. This is true notwithstanding the admitted fact that Mooney was not injured in the least.

10

The court, after considering both the motion to quash and the opposition thereto, rendered a resolution dismissing the case with costs de oficio. In said resolution the court held: first, that the facts alleged in the information constitute no offense, because article 159 of the Revised Penal Code punishes one convicted by a court of the legitimate or the Commonwealth Government, who violates a conditional pardon granted him by the Chief Executive, that is, the Governor General or his legitimate successor, the President of the Commonwealth, and not one convicted by a summary criminal court created by the National Assembly of the so-called Republic of the Philippines, who violates a conditional pardon granted him by the President of the said Republic; and besides, the proceedings provided for the trial of the offenses punishable under Act No. 65 and ordinance No. 7 are repugnant to and derogatory of the constitutional rights of every accused under the Constitution of the Commonwealth; secondly, that the proceedings had in said criminal case No. 3 of the said Court of Special and Exclusive Criminal Jurisdiction are now void and without legal effect in accordance with the proclamation of General Douglas MacArthur; and thirdly, that granting that the so-called Republic of the Philippines was a de facto government, the validity of its acts against the lawful government and its citizens depended entirely upon its ultimate success, and having been overthrown by the forces of liberation, all such acts necessarily perished with it. The City Fiscal duly appealed from said resolution to this Court. The Solicitor General, in his brief for the appellant, upheld the resolution of the lower court on the ground that, although the so called Republic of the Philippines was a de facto government and consequently its legislative and judicial acts are valid as a general rule, as exception to that rule , such acts as are hostile in their purpose and mode of enforcement to the authority of the national government, or impair the rights of the citizen under the constitution, are null and of no effect. Therefore, the judicial act or punitive sentence imposed upon the appellee Benedicto Jose by the Court of Special and Exclusive Criminal Jurisdiction, under a summary procedure which denies an accused a fair hearing and deprives him of his right to appeal, is null and void because s aid act impaired the rights of the citizen under the Commonwealth Constitution, and was in excess of the powers of the said de facto government. As a logical corollary, the conditional pardon granted to the appellee, which was a mere sequence of said proceedings, should also be deemed null and ineffective. The questions involved in this appeal are: (1) whether or not the sentence of ten years' imprisonment imposed upon the defendant by the Court of Special and Exclusive Criminal Jurisdiction should be denied validity after the reoccupation of the Philippines and restoration of the Commonwealth Government, and (2) whether the defendant can now be prosecuted for having allegedly violated the conditional pardon granted by the President of the so-called Republic of the Philippines. 1. As to the first question, the alleged crime of which the defendant was prosecuted and convicted in criminal case No. 3 of the Court of Special and Exclusive Criminal Jurisdiction, according to the information above copied, was for a violation of sections 3 (b) and 2 (b) of Act No. 65 of the National Assembly of the so-called Republic of the Philippines, in connection with section 11 of Ordinance No. 1 of the President of the said Republic. Said section 11 of Ordinance No. 1 reads as follows: No one except the control organization or the persons designated by said organization shall engage in the purchase, importation, sale or transfer of rice and corn, or act as agent, broker, or intermediary in the purchase, sale or transfer of such commodities for the purpose of their sale or transfer of such commodities for the purpose of their sale or transfer unless authorized by the Minister of Agriculture and Commerce. Section 3(b) and 2(b) of Act No. 65 provide for the imposition in its maximum period of the penalty imposed by section 14 of said Ordinance No. 1 for the violation of the above-quoted provisions by private individuals. In accordance with our decision in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon (G.R. No. L-5, promulgated on September 17, 1945, p. 113, ante), judicial acts of the government de facto established by the Japanese forces of occupation in these Islands remained good and valid, except those which were of a political complexion, upon the restoration of the Commonwealth Government; and in the case of Peralta vs. Director of Prisons (G.R. No. L-49, promulgated on November 12, 1945, p. 285, ante), we have expounded our opinion as well as the opinion of writers on International Law on the nature and description of a punitive sentence of a political complexion. Applying to the present case what we have stated in the said decisions relating to penal sentences of a political complexion, it is evident that the punitive sentence which convicted the appellee to ten years' imprisonment, was of a political complexion and, therefore, it became of no effect upon the reoccupation of the Philippines and restoration of the Commonwealth Government, because it penalized as a crime an act "not criminal by the municipal law." As Hall says, upon the restoration of the legitimate government in a territory which has been occupied by an enemy, by virtue of the right of postliminium, " judicial acts done under his control, when they are not of a political

complexion, . . . remain good . . . Political Acts on the other hand fall through as of course . . . the execution also of punitive sentences ceases as of course when they have had reference to the acts not criminal by the municipal law of the state . . . ." (International Law, seventh ed., p. 518.) 2. As to the second question, we hold that the appellee cannot now be prosecuted criminally for a violation of the conditional pardon granted by the President of the so-called Republic of the Philippines, for the following reasons: Because, without necessity of discussing and determining the intrinsic validity of the conditional pardon, as an act done by the President of the so-called Republic of the Philippines, after the restoration of the Commonwealth Government, no elaborate argument is required to show that the effectivity of a conditional pardon depends on that of the sentence which inflicts upon a defendant the punishment from which the latter was exempted by the pardon. If a punitive sentence is or becomes null and void, the conditional pardon which remits the punishment inflicted by that sentence ceases to be of any effect in so far as the individual upon whom it is bestowed is concerned, for the latter cannot be required to serve a void sentence of penalty imposed on him, even without such pardon. Besides, under the provisions of Acts Nos. 1524 and 1561, which were the sources of article 159 of the Revised Penal Code, a violator of a conditional pardon was liable to suffer or serve the unexpired portion of the original sentence, irrespective of the length of time of said unexpired portion; and article 159 of the Revised Penal Code provides that if the penalty remitted by the granting of a pardon be higher than six years, the convict shall suffer the unexpired portion of his sentence. As the unexpired portion of the original punitive sentence imposed upon the appellee is higher than six years (inasmuch as he had served only about six months of the ten years' imprisonment imposed upon him), if the appellee be now prosecuted and convicted, he shall have to be sentenced to serve the unexpired portion of his original sentence; but as the said sentence is now invalid and no effect, it is obvious that the appellee Benedicto Jose can no longer be prosecuted, for no penalty can be imposed upon him for violation of said conditional pardon.lawphi1.net In order to avoid confusion and error, it may not be amiss to say that a conditional pardon remits the punishment to be served by virtue of a sentence, and does not remit, terminate or set aside the sentence itself. Pardon is prospective, that is, remits only the penalty not yet suffered, and not retrospective or does not affect that which has already been served and much less the sentence. (Robert vs. State, 51 N. Y. Supp., 691, 692; 30 App. Div., 106; In re Spencer [U. S.], 22 Fed. Cas., 921, 923.) The validity of a sentence is one thing, and the enforceability thereof another. A conditional pardon has the effect of suspending the enforcement of a sentence, or exempting the culprit from serving the unexpired portion of the penalty, if he does not violate the conditions under which pardon was granted. But the sentence is still valid. This is confirmed by the second paragraph of article 36 of the Revised Penal Code which provides that "a pardon shall in no case exempt the culprit from the payment of civil indemnities imposed upon him by the sentence." The punitive sentence had not therefore, become null and void before the restoration of the Commonwealth Government by the pardon, but only upon the restoration of the said government by virtue of the right of postliminium, as above stated. Violation of a conditional pardon is not substantive offense or independent of the crime for the commission of which the punishment inflicted in the sentence was remitted by the pardon. In the case of United States vs. Ignacio (35 Phil., 202, 204), it was held that "the defendant accepted the conditional pardon and thereby secured his release from imprisonment. Having accepted the conditional pardon, he is bound by its terms. The record shows that he has been guilty of misconduct after his conditional pardon. By such misconduct, he forfeited his pardon and his right to liberty thereunder. When a pardoned person violates the conditions of his pardon, he is left in the exact situation in which he was when the pardon was granted, and the original sentence may be enforced against him. (Ex parteWells, 18 Howard [U. S.], 307; Ex parte Hawkins, 61 Ark., 321; 30 L.R.A., 736; 54 Am. St. Rep. 209; Kennedy's Case 135 Mass., 48; Ex parte Marks, 64 Cal., 29.)" Our holding that violation of a conditional pardon is not a substantive or independent offenses, is in support of our conclusion that the invalidity of the original sentence upon the restoration of the Commonwealth Government carried with it the ineffectiveness of the conditional pardon, because "a conditional pardon delivered and accepted has been said to constitute a contract between the sovereign power or the executive and the criminal that the former will release the latter upon the compliance with the conditions." (State vs. Eby, 170 Mo., 497; 71 S.W., 52; Peo. vs.Potter, 1 Edm. Sel. Cas. [N. Y.] 235; 1 Park Cr., 47; State vs. Smith, 17 S. C. L., 283; 19 Am. D., 679; Lee vs.Murphy, 22 Gratt. [63 Va.] 789; 12 Am. R., 563; 46 C.J., 1202.) Consequently, if a culprit violates the conditions of the contract of conditional pardon, this is resolved or set aside, and the original punitive sentence, which has not been nullified but only suspended in its force and effect by such pardon, shall have to be enforced against him. But if the said sentence is no longer good and valid and cannot be enforced, the defendant cannot be criminally prosecuted for the violation of the conditional pardon.

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For the foregoing reasons, the resolution appealed from is a ffirmed, without costs. So ordered. Moran, C.J., Jaranilla, De Joya, Pablo, and Bengzon, JJ., concur.

In the Frustrated Murder, there being no mitigating circumstance, and taking into account the provisions of the Indeterminate Sentence Law, accused Trinidad is meted out a penalty of: 1) 8 years and 1 day to 12 years of prision mayor medium; 2) to indemnify the complainant the amount of P 5,000.00; and 3) to pay the costs. Likewise, in the two murder cases, Trinidad is accordingly sentenced: 1) to a penalty of Reclusion Perpetua in each case; 2) to indemnify the heirs of Marcial Laroa and Lolito Soriano the amount of P30,000.00 each; and 3) to pay the cost. (p. 14, RTC Decision, p. 28, Rollo). Before us now, TRINIDAD claims that the Trial Court erred in giving full faith and credit to TAN's testimony who, TRINIDAD alleges, was an unreliable witness. That is not so. We find no variance in the statement made by TAN before the NAPOLCOM Hearing Officer that when TRINIDAD boarded the Fiera in Buenavista, he (TAN) was not in the vehicle, and that made in open Court when he said that he was with TRINIDAD going to Butuan City on board the Fiera. For the facts disclose that when TRINIDAD boarded the Fiera in Buenavista, TAN was still in Langihan distributing fish. The Fiera left for Buenavista, driven by SORIANO between 6:00 to 7:00 A.M., while TAN followed only at 11:00, A.M. in another vehicle. So that when TRINIDAD boarded the Fiera in Buenavista, TAN was not yet in that vehicle although on the return trip from Butuan City to Davao City, TAN was already on board. In fact, TAN was the one driving. TAN's testimony clarifying this point reads: Q Did you not say in your direct examination that you went to Buenavista, Agusan del Norte? A We were in Langihan and since our fishes were not consumed there, we went to Buenavista. Q Now, what time did you leave for Buenavista from Langihan? A It was more or less at 6:00 to 7:00 o'clock. Q You were riding the fish car which you said? A I was not able to take the fish car in going to Buenavista because they left me fishes to be dispatched yet. Q In other words, you did not go to Buenavista on January 20, 1983? A I was able to go to Buenavista after the fishes were consumed. Q What time did you go to Buenavista? A It was more or less from 11:00 o'clock noon. Q What transportation did you take? A I just took a ride with another fish car because they were also going to dispatch fishes in Buenavista. Q Now, who then went to Buenavista with the fish car at about 7:00 o'clock in the morning of January 20, 1983? A Lolito Soriano and Marcia Laroa with his helper. xxxxxx Q Now, when this fish car returned to Butuan City who drove it? A Lolito Soriano. Q Were you with the fish car in going back to Langihan? A Yes, sir. (T.S.N., December 6, 1985, pp. 53-54). Felimon Comendador, also a fish vendor, and a resident of Butuan City, testified that he saw TRINIDAD riding in the Fiera on the front seat in the company of TAN, SORIANO and LAROA, when the Fiera stopped by his house at Butuan City (TSN, November 5, 1985, pp. 3233). The other inconsistencies TRINIDAD makes much of, such as, that TAN was unsure before the NAPOLCOM Hearing Officer whether TRINIDAD was wearing khaki or fatigue uniform but, in open Court, he testified positively that TRINIDAD was in khaki uniform; and that while TAN declared that TRINIDAD was wearing a cap, prosecution witness Felimon Comendador said that he was not but was in complete fatigue uniform, are actually trivial details that do not affect the positive identification of TRINIDAD that TAN has made nor detract from the latter's overall credibility. Nor is there basis for TRINIDAD to contend that the absence of gunpowder burns on the deceased victims negates TAN's claim that they were shot "point-blank." Actually, this term refers merely to the "aim directed straight toward a target" (Webster's Third New International Dictionary) and has no reference to the distance between the gun and the target. And in point of fact, it matters not how far the assailant was at the time he shot the victims, the crucial factor being whether he did shoot the victim or not. TRINIDAD's defense of alibi is inherently weak and cannot prevail over the straightforward and detailed descriptive narration of TAN, thus: Q Now, from Butuan City, where did you proceed? A We proceeded to Davao. Q Did you in fact reach Davao on that date? A No, sir. Q Could you tell the Court why you failed to reach Davao? A Because we were held-up. Q Who held-up you? A Emeliano Trinidad, sir. Q Are you referring to accused Emeliano Trinidad whom you pointed to the court awhile ago? A Yes, sir. Q Will you tell the Court how did Emeliano Trinidad holdup you?

G.R. No. 79123-25 January 9, 1989 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EMELIANO TRINIDAD, accused-appellant. The Solicitor General for plaintiff-appellee. Citizens Legal Assistance Office for accused-appellant. MELENCIO-HERRERA, J.: On the sole issue that the adduced evidence is insufficient to prove his guilt beyond reasonable doubt of two crimes of Murder and one of Frustrated Murder with which he has been charged, accused Emeliano Trinidad appeals from the judgment of the Regional Trial Court, Branch 7, Bayugan, Agusan del Sur. From the testimony of the principal witness, Ricardo TAN, the prosecution presents the following factual version: The deceased victim, Lolito Soriano, was a fish dealer based in Davao City. His helpers were TAN, a driver, and the other deceased victim Marcial LAROA. On 19 January 1983, using a Ford Fiera, they arrived at Butuan City to sell fish. In the morning of 20 January 1983 SORIANO drove the Fiera to Buenavista, Agusan del Norte, together with LAROA and a helper of one Samuel Comendador. TAN was left behind in Butuan City to dispose of the fish left at the Langihan market. He followed SORIANO and LAROA, however, to Buenavista later in the morning. While at Buenavista, accused Emeliano TRINIDAD, a member of the Integrated National Police, assigned at Nasipit Police Station, and residing at Baan, Butuan City, asked for a ride to Bayugan, Agusan del Sur, which is on the way to Davao City. TRINIDAD was in uniform and had two firearms, a carbine, and the other, a side-arm .38 caliber revolver. SORIANO, LAROA, TAN, and TRINIDAD then left Butuan on 20 January 1983 at about 5:20 P.M. bound for Davao City. 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. The Fiera was still running slowly then but after about seven (7) to ten (10) meters it came to a halt after hitting the muddy side of the road. TAN heard a shot emanating from the Fiera while he was hiding 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 (TRINIDAD) 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, 20 January 1983. At that time, he was assigned as a policeman at Nasipit Police Station, Agusan del Norte. He reported to his post on 19 January 1983 but asked permission from his Station Commander to be relieved from work the next day, 20 January, as it was his birthday. He left Baan, his Butuan City residence, at about 3:00 P.M. on 20 January 1983 and took a bus bound for Cagayan de Oro City. He arrived at Cagayan de Oro at around 8:00 P.M. and proceeded to his sister's house at Camp Alagar to get his subsistence allowance, as his sister was working thereat in the Finance Section. At his sister's house he saw Sgt. Caalim, Mrs. Andoy, one Paelmo, in addition to his sister. Sgt. Caalim corroborated having seen TRINIDAD then. Continuing, TRINIDAD claimed that he left Cagayan de Oro for Butuan at lunch time on 21 January 1983 arriving at the latter place around 6:00 P.M., and went to his house directly to get his service carbine. He was on his way to Nasipit to report for duty o n 21 January 1983 when he was arrested at around 6:00 P.M. at Buenavista, Agusan del Norte. After joint trial on the merits and unimpressed by the defense by the Trial Court** sentenced the accused in an "Omnibus Decision", thus: WHEREFORE PREMISES CONSIDERED, this Court finds Emeliano Trinidad GUILTY beyond reasonable doubt of the crimes of Murder and Frustrated Murder.

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A When we reach between El Rio and Afga, Trinidad advised us to run slowly because this place is dangerous. Then suddenly there were two gun bursts. Q Now, you heard two gun bursts. What happened? What did you see if there was any? A I have found out that Lolito Soriano and Marcial Laroa already fall. Q Fall dead? A They were dead because they were hit at the head. Q You mean to inform the Court that these two died because of that gun shot bursts? A Yes, sir. Q Did you actually see Trinidad shooting the two? A I did not see that it was really Trinidad who shot Laroa but since I was already alerted by the first burst, I have seen that it was Trinidad who shot Soriano. Q What was the firearm used? A Carbine, sir. xxxxxx Q Now, after you saw that the two fell dead, what did you do? A I got out from the Ford Fiera while it was running. xxxxxx Q From the place where you were because you said you ran, what transpired next? A I hid myself at the side of the jeep, at the bushes. Q While hiding yourself at the bushes, what transpired? A I heard one gun burst. Q From what direction was that gun bursts you heard? A From the Ford Fiera, sir. Q After that, what happened? A At around 20 to 30 minutes, I moved out from the place where I hid myself because I wanted to go back to Butuan, Then, I boarded the jeep and sat at the front seat but I found out that Emeliano Trinidad was at the back seat. Q When you found out that Trinidad was at the back, what happened? A He ordered me to get out. Q Now, when you got down, what happened? A When I got out from the jeep, Trinidad also got out. Q Tell the Court, what happened after you and Trinidad got out from the jeep? A He called me because he wanted me to get near him. Q What did you do? A I moved backward. 'Q Now, what did Trinidad do? A He followed me. Q While Trinidad followed you, what happened? A I ran away around the jeep. Q Now, while you were running around the jeep, what happened? A The driver drove the jeep. Q Now, after that, what did you do? A I ran after the jeep and then I was able to take the jeep at the side of it. Q How about Trinidad, where was he at that time? A He also ran, sir. Q Now, when Trinidad ran after you what happened? A Trinidad was able to catchup with the jeep and fired his gun. Q Were you hit? A At that time I did not know that I was hit because it was sudden. Q When for the first time did you notice that you were hit? A At the second jeep. Q You mean to inform the Court that the jeep you first rode is not the very same jeep that you took for the second time? A No, sir. Q Now, when you have notice that you were hit, what did you do? A At the first jeep that I took I was hit, so I got out from it and stood up at the middle of the road so that I can catch up the other jeep.' (TSN, December 6, 1985, pp. 44-49) TAN's testimony remained unshaken even during crossexamination. No ill motive has been attributed to him to prevaricate the truth. He was in the vehicle where the killing transpired was a witness to the actual happening, and was a victim himself who managed narrowly to escape death despite the weaponry with which TRINIDAD was equipped. The defense is correct, however, 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 vs. Phones, L-32754-5, July 21, 1978, 84 SCRA 167; People vs. Garcia, L-40106, March 13, 1980, 96 SCRA 497). But while the circumstances do spell out the two crimes of Murder, the penalty will have to be modified. For, with the abolition of capital punishment in the 1987 Constitution, the penalty for Murder is now reclusion temporal in its maximum period to reclusion

perpetua (People vs. Lopez, et al. G.R. No. 71876-76, January 25, 1988 citing People vs. Gavarra, No. L-37673, October 30, 1987; People vs. Masangkay, G.R. No. 73461, October 27, 1987). With no attending mitigating or aggravating circumstance, said penalty is imposable in its medium period or from eighteen (18) years, eight (8) months and one (1) day to twenty (20) years. The penalty next lower in degree for purposes of the Indeterminate Sentence Law is prision mayor, maximum, to reclusion temporal, medium, or from ten (10) years and one (1) day to seventeen (17) years and four (4) months (Article 61, parag. 3, Revised Penal Code). WHEREFORE, the guilt of the accused Emeliano Trinidad for the crimes of Murder (on two counts) and Attempted Murder, having been proven beyond reasonable doubt, his conviction is hereby AFFIRMED and he is hereby sentenced as follows: 1) In each of Criminal Cases Nos. 79123-24 (Nos. 96 and 99 below) for Murder, he shall suffer the indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal, as maximum; to indemnify the heirs of Marcial Laroa and Lolito Soriano, respectively, in the amount of P30,000.00 each; and to pay the costs. 2) In Criminal Case No. 79125 (No. 100 below) for Frustrated Murder, he is hereby found guilty only of Attempted Murder and sentenced to an indeterminate penalty of six (6) months and one (1) day of prision correccional, as minimum, to six (6) years and one (1) day of prision mayor, as maximum; to indemnify Ricardo Tan in the sum of P5,000,00; and to pay the costs. SO ORDERED. Paras, Padilla, Sarmiento and Regalado, JJ., concur. G.R. No. 78781-82 October 15, 1991 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRO RAVELO, JERRY RAVELO, BONIFACIO "PATYONG" PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE AND HERMIE PAHIT, accused-appellants. The Solicitor General for plaintiff-appellee. Robert J. Landas for acussed-appellants. GUTIERREZ, JR., J.:p The accused Pedro Ravelo, Bonifacio "Patyong" Padilla, Romeo Aspirin, Nicolas Guadalupe and Hermie Pahit appeal the two (2) judgments of the Regional Trial Court of Tandag, Surigao del Sur, Branch 27, which convicted them of murder of one Reynaldo Cabrera Gaurano and of frustrated murder of Joey Lugatiman. In the murder case (Criminal Case No. 1187), each of the accused was sentenced to serve the penalty of reclusion perpetua and to severally pay an indemnity of P25,000.00 to the mother of the victim. In the frustrated murder case (Criminal Case No. 1194), each of them was sentenced to serve the penalty of imprisonment ranging from eight (8) years and one (1) day of prision mayor as minimum to ten (10) years of prision mayor as maximum. The accused were all charged with kidnapping with murder and kidnapping with frustrated murder. However, the trial court found accused-appellants guilty only of murder and frustrated murder as convicted. The accused Josen Ravelo and Jerry Ravelo are still at large. The present petition was originally one that sought the issuance of a writ of habeas corpus. The Court instead resolved to treat it as an appeal in view of the near capital nature of the crimes for which the appellants were convicted. The accused-appellants are all membersof the Civilian Home Defense Force (CHDF) stationed at a checkpoint near the airport at Awasian in Mabua, Tandag,Surigao del Sur. The prosecution alleged that they stopped the two (2) victims for questioning on the suspicion that the latter were insurgents or members of the New People's Army. (NPA). In Criminal Case No. 1187, the accused-appellants were charged with having committed kidnapping with murder in the following manner: That at approximately 6:30 o'clock in the evening, May 21, 1984, in Barangay Dawis, San Agustin Sur, municipality of Tandag, province of Surigao del Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, PEDRO RAVELO, JERRY RAVELO, BONIFACIO `Patyong' PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE, HERMIE PAHIT and JOSEN RAVELO, conspiring, confederating, and mutually helping each other did, then and there, wilfully, unlawfully and feloniously take, pick-up, kidnap by meansof force, one REYNALDO CABRERA GAURANO, a minor, while the latter was walking along Tandag Bridge at barangay Dawis, San Agustin Sur, then the above-named accused carried away the said, Reynaldo Cabrera Gaurano to barangay Awasian and detained, kept and locked him in a room at the house of Pedro Ravelo, one of the accused herein, from 7:00 o'clock in the evening, May 21, 1984 to 4:00 o'clock dawn, May 22, 1984, or a period of 10 hours under restraint and against the will of said minor, Reynaldo Cabrera Gaurano and that the above named accused during the said period of kidnapping, maltreated and refused to release said Reynaldo Cabrera Gaurano, and while on the same period of time at about 4:00 o'clock dawn, May 22, 1984, at barangay Awasian, Tandag, Surigao del Sur and within the jurisdiction of this Honorable Court, the above-named accused, Pedro Ravelo, Jerry Ravelo, Bonifacio `Patyong' Padilla, Romeo Aspirin, Nicolas Guadalupe, Hermie Pahit, and Josen Ravelo,

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conspiring, confederating, and mutually helping each other, armed with a pistol, armalites, and carbines, with intent to kill, with treachery and evident premeditation did, then and there wilfully, unlawfully and feloniously, assault, attack, cut, slash, and burn, the said Reynaldo Cabrera Guarano, hitting and inflicting upon the latter, the following wounds or injuries: 1. Blisters formation noted all over the body reddish in color, which easily peel off on pressure; containing clear fluids; with hemorrhagic reaction beneath blisters; 2. Swollen face with contusion and hematoma formation; loosening of hair notes; right ear missing with circular incised wound around; 3. Incised wound 24 cm. length around the neck cutting the esophagus, pharynx, arteries and veins; up to the 2nd cervical bone in depth; 4. Contusions and hematomas noted anterior chest wall, abdomen and at the back; upper and lower extremeties of different sizes and forms. (Rollo, pp. 8-9) In Criminal Case No. 1194, they werecharged with kidnapping with frustrated murder committed as follows: That on or about 1:00 o'clock in the morning on May 22, 1984 in barangay Awasian, municipality of Tandag, province of Surigao del Sur, Philippines and within the jurisdiction of this Honorable Court, the above named accused PEDRO RAVELO, HERMIE PAHIT, BONIFACIO PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE, JERRY RAVELO AND JOSEN RAVELO, conspiring, confederating and mutually aiding one another armed with the deadly weapons such as pistols, armalite and carbine, did then and there wilfully, unlawfully and feloniously by means of force and at gun point stop the hauler truck of the South Sea Merchant Company which was on the way to Tandag, Surigao del Sur from sitio Lumbayagan, Barangay Maticdom, municipality of Tandag, Surigao del Sur and kidnap one JOEY LUGATIMAN, who is on board the said hauler truck by forcibly taking said Joey Lugatiman and carry him to the house of accused Pedro Ravelo then to the Airborne Headquarters at Mabua, Tandag, Surigao del Sur, and while thereat and in pursuance of their conspiracy, with intent to kill, with evident premeditation and treachery and by taking advantage of their superior strength being armed with deadly weapon did then and there wilfully, unlawfully and feloniously assault, by hitting and inflicting upon the latter the following wounds or injuries: 1. Small abrasion and hematoma, both wrist and left ankle; 2. Multiple small abrasions, chest and right neck and right ankle; 3. Multiple small abrasions and small hematoma, back; 4. Abrasion, upper left lips. (Rollo, pp.18-19) The trial court based its findings on evidence presented by the prosecution at the trial proper which commenced several months after the informations were filed. The prosecution evidence in Criminal Case No. 1187 are quoted from the judgment, thus: Witness Edilberto Salazar, 17 years old, student and resident of Tandag, testified that he knew all the accused Pedro Ravelo, Bonifacio Padilla, Romeo Aspirin, Nicolas Guadalupe and Hermie Pahit. On May 21, 1984 at 5:30 in the afternoon, he was with a certain Diego Gallardo and Reynaldo Cabrera Gaurano walking from Dawis to Dagocdoc to attend a dance. The dance not having began being too early yet, they decided to go back to Dawis. On their way back while crossing the Tandag bridge across the Tandag river, the accused Pedro Ravelo, Jerry Ravelo, Josen Ravelo, Bonifacio Padilla, Romeo Aspirin, Hermie Pahit and Nicolas Guadalupe stopped them by pointing their guns. He and Diego Gallardo ran away towards a group of old junk tractors and hid there. He saw Reynaldo Gaurano chased by all the accused. He saw Reynaldo Gaurano ran up to the house of a certain Fernando Cortes which was just opposite the tractors they were hiding, and which was just across the road in front of the house of Fernando Cortes. Reynaldo Gaurano was caught up in the house by Jerry Ravelo, Bonifacio Padilla and Nicolas Guadalupe. He saw Reynaldo Gaurano forced and dragged down to a waiting pick-up on the road by Jerry Ravelo, Bonifacio Padilla and Nicolas Guadalupe. Reynaldo Gaurano was loaded on the pick-up owned and driven by the accused Pedro Ravelo. All the accused, together with Reynaldo Gaurano rode on the pick-up towards the Tandag airport at Awasian. After Reynaldo Gaurano disappeared, he and Diego Gallardo went to the police and reported the matter that Reynaldo Gaurano was brought by the accused to the airport. On May 23, 1984, he was with the group who exhumed the body of Reynaldo Gaurano under a mango tree near the Tandag airport and pointed to the investigator that that was the body of Reynaldo Gaurano with blisters, without ear and a big wound on the neck. Placed on the mat the cadaver was brought to the Mata Funeral Parlor at Tandag, Surigao del Sur in that morning of May 23, 1984. Witness Francisco Villasis, 48 years old, farmer and resident of Awasian, testified that he knew very well all the accused and that he personally saw them in the early dawn of May 22, 1984. He declared that he was at the Awasian creek near a mango tree catching crabs with the use of a "panggal", a bamboo knitted trap. From a distance of around twenty meters away, he saw a man hanging from the mango tree over a fire. He saw the accused Jerry Ravelo placed fire on the hanging person and the accused Romeo Aspirin placed a burning torch made of dried coconut leaves at the back of the hanging person. The man hanging was not known to him. The man hanged was also surrounded by Pedro Ravelo, Josen Ravelo, Nicolas Guadalupe, Hermie Pahit and Bonifacio Padilla. For five minutes

watching, he saw the clothing and body burned, he heard the moanings of the person and heard the laughters of the accused. After witnessing that horrible incident he went home hurriedly. On cross examination he further stated that he saw for the first time the man already hanging under a fire (sic). Witness Joey Lugatiman, 22 years old and resident of Dawis, Tandag, testifies that all the accused are known to him for a long time. On May 21, 1984, with ten companions they went to a place in the interior called Maticdum, Tandag, Surigao del Sur. After five hours stay, he, together with his companions left Maticdum past midnight for Tandag on a loggingtruck. As soon as they passed by the airport, they were stopped by the accused and were told to go down from the truck for questioning. He was brought to the house of the accused Pedro Ravelo near the checkpoint. He was asked if he was Joey Lugatiman and if he knew Reynaldo Gaurano. There at the headquarters, he was asked if he was an NPA. For almost an hour stay at the headquarters he was boxed, kicked and manhandled by Pedro Ravelo and by the other accused with the use of their guns until he became almost unconscious. Then, from the headquarters at Mabua on that early dawn he was brought again back in the same pick-up to Awasian airport, to the house of Pedro Ravelo and then to the house of Bonifacio Padilla. Before proceeding to the house of Bonifacio Padilla, he saw his friend Reynaldo Gaurano, one meter away, already weak with bruises on his face, hands tied at the back and with a gag around the mouth, moving as if in the act of trying to free himself, with a bleeding mouth. When he reached the house of Bonifacio Padilla, he was chained and tied to the wall near the window of the house. Alone, he peeped through the window and saw Reynaldo Gaurano hanging up the mango tree with fire below him. He heard the moanings of Reynaldo Gaurano while hanging from the mango tree thirty meters away from the window of the house of Bonifacio Padilla. He saw Pedro Ravelo and Josen Ravelo set fire on the body of Reynaldo Gaurano. At 5:00 o'clock a.m. May 22, 1984, when alone, after being told that he would be killed at 9:00 o'clock in the evening at the Awasian bridge, he escaped by being able to untie himself at 10:00 o'clock in the morning of May 22, 1984. He reported what happened to him and to Reynaldo Gaurano, to his parents and then to the police authorities and later submitted for physical examination on that day, May 22, 1984 and finally was investigated on May 23, 1984 in connection with this case. On cross examination he said that he knew all the accused. He knew that all the accused are members of the CHDF. Witness Zosima Gaurano, 46 years old, market vendor, a native of Tandag, testified that she is the mother of Reynaldo Gaurano. Her son Reynaldo Gaurano left Cebu City on April 12, 1984 for Tandag. On May 22, 1984 she received a telegram from her sister Remedios Fernandez that her son Reynaldo is dead. She left for Tandag upon receipt of the telegram and arrived at Tandag on May 24, 1984. Upon her arrival she went to the Mata Funeral Parlor and then she found the dead body of her son Reynaldo Gaurano inside the coffin and she saw many parts of the body of her son with burns. She suffered moral damages and other expenses to the tune of P64,350.00. Witness Remedios Cabrera Fernandez, widow, meat vendor and resident of Tandag testified that Reynaldo Gaurano is her nephew because his mother Zosima is her younger sister. Her nephew Reynaldo Gaurano was here in Tandag on vacation. On May 20, 1984, with two companions, Diego Gallardo and Edilberto Salazar, he failed to go home to the house of her sister. After the second day, May 22, 1984 at around 5:00 o'clock in the afternoon Edilberto Salazar and Diego Gallardo informed her that Reynaldo Gaurano was kidnapped by Pedro Ravelo and his men. The message was relayed to her to Atty. Buenaflor and to Col. Jesus Hermosa. On the following day, May 23, 1984, Col. Hermosa, with other officers inspected the house of Pedro Ravelo and the nearby surroundings at Awasian. She was made to Identify an exhumed body at the back of the house of Pedro Ravelo near the Mango tree. She saw the dead body of her nephew Reynaldo Gaurano without an ear, the neck was almost cut, entire body with blisters, and naked. His body was pictured and later on brought to the Mata Funeral Parlor at Tandag. She requested Dr. Romeo delos Reyes of the Tandag Provincial Hospital to conduct an autopsy and after which the dead body of Reynaldo Gaurano was embalmed to await the arrival of the mother from Cebu City. Witness Dr. Romeo delos Reyes, a senior Resident physician of the Tandag Provincial Hospital testified that he conducted an autopsy on the dead body of a certain Reynaldo Gaurano, Exhibit "A", at the Mata Funeral Parlor. He found blisters formation caused by fire burns throughout; the body was reddish and skin peels off easily; swollen face, hematoma, contusion, losing of hair, wound around the neck; and these injuries could have been inflicted 36 to 48 hours before the autopsy. Death certificate, Exhibit "B" was issued. The burns and the injuries above stated were suffered before Reynaldo Gaurano died. Witness Roberto Awa, a photographer of the Similar Studio who, for fifteen years, is a photographer at Tandag, testified that he took the pictures of a dead man inside a hole upon orders of Col. Hermosa at Awasian near the airport. He took pictures as shown in Exhibit "C", "C-1"; he took 8 positions of the dead body. While yet inside the holeexhibit "D" and as shown in Exhibit "E" and "F", that was the dead body of Reynaldo Gaurano near the mango tree; Exhibit "G", while the cadaver was inside the hole and Exhibit "H" is the picture while the body was lying on the mat.

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Witness Cresenciano Rulona, Police Investigator of the Tandag Police Force, testified that at around 8:00 o'clock in the morning of May 23, 1984, he was the assistant team leader of the group that proceeded to Tambacan, Awasian, Tandag to look for and inspect the place where a certain Reynaldo Gaurano was kidnapped. Under a mango tree and about 25 meters near the house of Bonifacio Padilla the group recovered a P.25 coin, a small comb, two zippers and burned pieces ofcloth and burned coconut leaves, together with new excavated soil. Further search under the mango tree led to the very place where the body of Reynaldo Gaurano was buried. At around 10:00 o'clock a.m., May 23, 1984, they exhumed the dead body which was buried under a depth of around one meter under the mango tree which was around 25 meters from the house of Bonifacio Padilla and around 150 meters from the house of Pedro Ravelo. The cadaver was first Identified to be that of Reynaldo Gaurano by Edilberto Salazar. A photographer was called and pictures were taken of the dead body of Reynaldo Gaurano from the hole and then the body was brought to the surface and placed on the mat. Not one of the accused was present during the period while the group was searching and exhuming the body of Reynaldo Gaurano. The body of Reynaldo Gaurano shows signs of burns and several injuries, and was finally brought to the funeral parlor at Tandag. As shown by the evidence, Reynaldo Cabrera Gaurano died on May 22, 1984 at Awasian, Tandag, Surigao del Sur. His death was the result of the shock secondary to the wound around the neck, Exhibit "A", and occurred while he was hanged by the accused with hands tied to a branch of a mango tree. Sufferings of pains, through his moanings, were augmented and aggravated by the tortures inflicted as vividly seen through the removal of the right ear, the wound around the neck and placing of fires on his body, and the fire below his feet. Not only were these acts brutal and cruel but also heartless and savage acts of the accused, devoid of an iota of sympathy, who, instead, were happy and delighted to see the miseries suffered by their victim. Further, it was shown that they helped one another or conspired with one another in torturing with the use of their firearms, and in killing Reynaldo Gaurano. (Rollo, pp. 10-16) Meanwhile, the prosecution evidence in Criminal Case No. 1194 are as follows: The evidence of the prosecution consisted of the testimonies of the witnesses and the Medical Certificate. Witness Joey Lugatiman, 22 years old, resident of Dawis, Tandag, Surigao del Sur testi fied that he personally knew all the accused for quite a long time. On May 21, 1984 with ten companions he went to a place called Maticdom, Tandag, Surigao del Sur. After staying at Maticdum for five hours he went home on board on a cargo truck. On the way near the Tandag Airport they were stopped by all the accused. They, including himself, were ordered by the accused Pedro Ravelo to come down from the truck. Then he was brought to the nearby house of Pedro Ravelo and there he was asked if he was Joey Lugatiman and if he knows Reynaldo Gaurano. His companions were ordered to proceed to Tandag while he was loaded on a service pick up driven by the accused Pedro Ravelo. He was brought by all the accused to the Headquarters of the Airborne Company at Mabua, Tandag, Surigao del Sur. In the Headquarters of the Airborne, he was interrogated if he was an NPA. After hearing his denial of being an NPA he was boxed, kicked and pistol whipped by the accused Pedro Ravelo and his co-accused. He was manhandled by the accused with the use of the firearms for almost an hour. Later he was brought back again to Awasian Airport to the house of Pedro Ravell (should be Ravelo) then to the house of Bonifacio Padilla. But before proceeding to the house of Bonifacio Padilla, he saw his friend Reynaldo Gaurano one meter away, already weak with bruises on the face, hands, tied at the back and gagged around the mouth. Reynaldo Gaurano could not talk and he was moving in the act to free himself and with a bleeding mouth. Upon arriving in the house of Bonifacio Padilla he was chained and hogtied near the open window by the companions of Pedro Ravelo. Not long after, through the window, he saw Reynaldo Gaurano hanging up the mango tree and a big fire was set on the ground. He heard the groaning and moaning of Reynaldo Gaurano. He saw Pedro Ravelo and Jerry Ravelo setting fire on the right and left side of Reynaldo Gaurano with the use of dried coconut leaves. He saw all the accused surrounding and watching the hanging and burning of Reynaldo Gaurano. It was Pedro Ravelo who cut the right ear and who also slashed the neck of Reynaldo Gaurano. He could not shout because he was afraid. While lying down after he saw the horrible incident he fell asleep. At around 5:00 o'clock in the morning of May 22, 1984 he awoke and saw Bonifacio Padilla bringing nylon line with which he was tied to a piece of wood; while Nicolas Gaudalupe gagged him, and he was blind folded by Hermie Pahit. While the three were about to leave him behind, he heard them saying that they will kill him at the Awasian bridge at 9:00 o'clock in the evening of May 22, 1984. When he was left alone in that house he successfully freed himself. He jumped out of the window and escaped via the nipa palm grove. As consequences of the manhandling of the accused, he suffered several bruises on the breast, at the back and his mouth. He was physically examined by a doctor in the Provincial Hospital on that day, Exhibit "A", "A-1" and "A-2" which is Exhibit "1" and "2", "1-A", and "1-B" for the defense. On cross examination, he testified that he escaped at around 10:00 o'clock in the morning from the house of Bonifacio Padilla, and that he knew all the accused to be members of

the Civilian Home Defense Force (CHDF). He testified that the house of Pedro Ravelo and the house of Bonifacio Padilla is around one hundred (100) meters away from each other. Witness Dr. Petronila Montero testified that she is a resident physician of the Provincial Hospital, and on May 22, 1984 she examined Joey Lugatiman and she issued a medical certificate, Exhibit "A". All her findings were placed down in Exhibit "A". Upon being cross-examined, she testified that the hematomas, small abrasions will not cause death. When she examined Joey Lugatiman, she found that he was weak and haggard caused by the injuries mentioned in Exhibit "A". Witness Emilio Espinoza, 68 years old, farmer, resident of Awasian, Tandag testified that while he was tendering his carabao near the house of Bonifacio Padilla he was surprised to see Joey Lugatiman, wearing blue t-shirt and a jogging pants jumped out of the window of the house of Bonifacio Padilla, twelve meters away from him. He saw Joey Lugatiman ran towards the nipa palm then ran towards the airport. He knew Joey Lugatiman because during the barrio fiesta Joey used to stay in his house at Awasian. Witness Bernardo Frias, 21 years old, farmer and resident of Awasian, testified that on May 22, 1984 he was in Maticdom together with Joey Lugatiman, Miguel, Gregorio Urbiztondo, Leonildo Naragas, Jesus Espinoza, Mauricio Estoya, the driver and a helper from 5:00 o'clock in the afternoon and started to go home at around 11:00 o'clock p.m. for Tandag. On the way, near the airport, he, together with his companions on a logging truck was stopped by the accused Pedro Ravelo, Jerry Ravelo, Josen Ravelo, Hermie Pahit, Bonifacio Padilla, Romeo Aspirin and Nicolas Guadalupe. They were ordered to come down and were made to identify each other. He saw Bonifacio Padilla dragged Joey Lugatiman to the house of Pe dro Ravelo. It was Pedro Ravelo who later brought Joey Lugatiman to the pick-up. They were ordered to board on the truck except Joey Lugatiman who loaded in the pick-up driven by Pedro Ravelo. Then, the accused Bonifacio Padilla ordered the group to proceed to Tandag while Joey Lugatiman was left behind. He reported to the police authorities that his companion Joey Lugatiman was being held under arrest at Awasian and that he knows all the accused before this incident. (Rollo, pp. 21-24) The accused-appellants were not able to or did not present evidence on their behalf, nor were they themselves able to confront the prosecution witnesses who testified against them except through a counsel de oficio appointed by the trial judge to represent them namely, Atty. Pretextato Montenegro and Atty. Florito Cuartero, in place of their defense counsel, Atty. Eliseo Cruz. The continued absence of Atty. Cruz, a Quezon City-based lawyer who perennially made requests for postponements by telegrams stating his inability to appear for health reasons, led to the refusal by the accused-appellants to be present at the trial. The accusedappellants alleged that Atty. Cruz left an instruction that they will not submit themselves to trial without him. The accused-appellants now maintain that they did not "waive" their right to be present during the trial because their refusal was not done by their own free will but only in accordance with their lawyer's instructions. The Court notes that Atty. Cruz resorted to several other delaying tactics aside from sending telegraphic notes requesting for postponements. He filed a petition for change of place of detention and venue for trial before this Court, which denied it; a first petition for habeas corpus on the ground that they should be tried by a military tribunal, which petition was denied; and a motion for new trial on the ground of lack of due process due to improper waiver of presence at the trial. This motion for new trial was granted to give the accused-appellants a last chance to be heard and be present. Still, the defense counsel failed to appear and so did the appellants. In their second petition for habeas corpus which we now treat as an appeal, Atty. Cruz failed to file the required brief. The Court then appointed a new counsel de oficio for the accused-appellants. Accused-appellants raised the following alleged errors of the trial court: I THE LOWER COURT'S FINDING THAT ACCUSED-APPELLANTS ARE GUILTY OF FRUSTRATED MURDER HAS NO BASIS IN FACT AND IN LAW. II THE LOWER COURT ERRED IN CONCLUDING THAT ACCUSEDAPPELLANTS WAIVED THEIR RIGHTS TO BE PRESENT DURING THE TRIALS AND TO PRESENT EVIDENCE TO PROVE THEIR INNOCENCE (Brief for Appellants, pp. 10-11; Rollo, p. 144) It is contended that there can be no frustrated murder committed in Criminal Case No. 1194 absent any proof of intent to kill, which is an essential element of the offense of frustrated murder. Appellants aver that the trial court erroneously based its conclusion on the fact that when Lugatiman was tied and gagged, the latter heard one of the accused-appellants utter that they would kill him at Awasianbridge. The trial court made the following inference which we find to be erroneous: To this Court the real intention to kill Joey Lugatiman was made manifest at 5:00 in the morning of May 22, 1984 when the accused Bonifacio Padilla together with Hermie Pahit and Nicolas Guadalupe tied his hands to the wall with a nylon line and gagged him; and

15

when the accused said they will kill him (Joey Lugatiman) at 9:00 o'clock p.m. at Awasian bridge. These final and parting words uttered to Joey Lugatiman eloquently expressed intent to kill. Killing, however, was not consummated because Joey Lugatiman was able to escape at around 10:00 o'clock in the morning of May 22, 1984. (Rollo, p. 25) The facts and evidence on record do not show anything from which intent to kill could be deduced to warrant a conviction for frustrated murder. A mere statement by the accused stating that Lugatiman would be killed is not sufficient proof of intent to kill to convict a person of frustrated murder. In a crime of murder or an attempt or frustration thereof, the offender must have the intent or the actual design to kill (US v. Burns, 41 Phil. 418 [1921]) which must be manifested by external acts. For there to be frustrated murder, the offender must perform all the acts of execution that would produce the felony as a consequence, but the felony is not thereby produced by reason of causes independent of the will of the perpetrator. A verbal expression that Lugatiman would be killed sixteen (16) hours after such statement was made is not sufficient to show an actual design to perpetrate the act. Intent must be shown not only by a statement by the aggressor of the purpose to kill, but also by the execution of all acts and the use of means necessary to deliver a fatal blow while the victim is not placed in a position to defend himself. However, after the performance of the last act necessary, or after the subjective phase of the criminal act was passed, the crime is not produced by reason of forces outside of the will of the aggressor. (People v. Borinaga, 55 Phil., 433 [1930]). Tying the victim's left leg with a chain on a 2" by 3" piece of wood and leaving him inside the house of accused-appellant, Bonifacio Padilla are not acts that would result in death. These were done only to restrain his liberty of movement for the period of time the accused-appellants were busy hanging and burning the body of Reynaldo Gaurano some thirty (30) meters away from where Lugatiman was left. Also, tying Lugatiman's hands behind his back and his whole body to the wall, and blindfolding him were for the purpose of restraining his liberty until the evening of May 22, 1984 came. Accused-appellants also maintain that the injuries sustained by Lugatiman from the manhandling at the Headquarters of the Airborne Company were not fatal as stated by the prosecution's expert witness, Dr. Petronila Montero; hence, there can be no frustrated murder. This is supported by the records (Exhibit "A -2", Records of Criminal Case No. 1194, p. 21; TSN, June 4, 1985, pp. 2426) Lugatiman did not lose consciousness as a result of the blows he sustained (TSN, May 31, 1985, p. 49, Record, p. 115) It is worthy to note that the trial court, in concluding the existence o f frustrated murder, did not even use as its basis, the manhandling of Lugatiman. The trial court in fact concedes that the real purpose of the manhandling or torture was to have Lugatiman admit and confess his being a member of the New People's Army (NPA) and the activities of the NPA's. It was the statement made by the accused appellant NicolasGuadalupe that Lugatiman would later be killed, that was the basis of the court for inferring the commission of frustrated murder. According to the trial court, murder was not committed because of the timely escape. Escape from the aggressors cannot establish frustrated murder without first showing that the aggressors intended to kill and that they really attacked the victim. Under the circumstances, accused-appellants could not even be convicted of an attempt to commit murder. There was no commencement of the criminal act by over acts which have a direct connection with the crime of murder intended to be committed. As stated earlier the manhandling, express statement of purpose, and the restraint of liberty were not such as to put the victim in danger of an imminent death. The small abrasions and hematomas of the victim resulting from the torture by the accused were not mortal. After the victim was restrained of his liberty immediately before Gaurano was killed, he was able to watch how Gaurano was burned hanging upside down from a mango tree near the Awasian bridge. Due to his fatigue and extreme weakness, he was even able to lie down and sleep after looking at the horrible incident. (TSN, May 31, 1985, pp. 22-23) During the long period of time Lugatiman was informed that "he would be killed" and was left behind (5:00 in the morning) until he was able to escape at 10:00 in the morning, it was not certain whether or not appellants would really kill him as they did to Gaurano. Anything could have happened in between. There was no distinct evidence to prove that the accused appellants were really decided on killing him at the time specified. The records show that Lugatiman himself was not sure that the accused-appellants would pursue it. The uncertainty can be seen from Lugatiman's testimony on cross examination, thus: xxx xxx xxx Q. Why did you say a while ago that "I will be the next one to be hung and to be killed by Ravelo and his group"? A. I was just afraid that I will be the next. Q. Now, when you saw these persons burning the body of Reynaldo, did you hear also what the people around Reynaldo were talking of? A. What I heard was their laughing and the moaning. Q. And you heard their laughing?

A. Yes. Q. Why did you know that they were laughing? A. Because I heard it. Q. Their appearance you can see? A. Their appearance is clear because there is a big light. Q. And your name was never mentioned that you will be the next to be hung? A. I did not hear them saying. Q. There were also no other people like you who were apprehended or being detained by Pedro Ravelo and his group? A. I did not see. Q. You only saw Reynaldo Gaurano, including yourself detained by Ravelo and his group on May 21, in the early morning rather, on May 22, 1984 dawn? A. Yes. (TSN, May 31, 1985, pp. 54-55) After a review of the allegations of the information in Criminal Case No. 1194 and the evidence received and admitted by the court a quo, the Court is of the view that accused-appellants are not guilty of frustrated murder but only the crime of slight physical injuries. There is evidence to show that the several small abrasions on the chest, right neck and right ankle of Lugatiman as well as the hematoma at his back was due to the hitting by a rough, hard object like a butt of a gun. The prosecution witness, Dr. Montero testified that the injuries were inflicted by some other persons aside from the victim, and needed medical treatment of four (4) to five (5) days to avoid infection. (TSN, June 4, 1985, pp. 21-26) Accused-appellants aver that there was no deliberate waiver on their part of their right to be present at the scheduled hearing dates because they "did not appear to know the import of their decision not to appear in the trials." According to them, the judge should have explained to them the meaning and the consequences of their decision not to appear. The issue of due process had been fully considered by this Court when we acted on the habeas corpus petition. In our May 8, 1988 resolution, we outlined in detail the reasons for our finding of dilatory tactics on the part of the petitioners and their counsel and why the lower court correctly proceeded with trial. After stating the various incidents characterizing the initial proceedings and the trial of the case, we stated: xxx xxx xxx The petitioners are members of the Civilian Home Defense Force (CHDF) who have been convicted of murder and frustrated murder committed under particularly brutal circumstances. A notice of appeal was filed thirty-nine (39) days from the promulgation of judgment and was clearly out of time. A motion for new trial was also characterized by plainly dilatory tactics in its handling. Were it not for the effectivity of the present Constitution, there is a likelihood that the petitioners would have been sentenced to capital punishment. The near-capital nature of the crimes for which the petitioners were convicted and the rather unusual circumstances surrounding the trial of the two cases and the failure to appeal, however, call for a closer look at the judgments of conviction. This can best be done by calling for all the records of the case including the transcripts of stenographic notes. If, after the consideration of the cases as appealed cases, there appears to have been a miscarriage of justice or a need for further evidence, the case can always be remanded for further proceedings as instructed. Otherwise, the judgment will have to be affirmed or reversed on the basis of all the present records. (Rollo, p. 73) For purposes of this decision, we emphasize that in the morning of May 30, 1985, the date of the first day of the trial proper, or after five (5) postponements, the accused-appellants came to court without their counsel of record, Atty. Eliseo Cruz. Atty. Cruz allegedly sent a telegram through one Mrs. Delfina Cruz indicating that he met a vehicular accident and requesting a resetting of the hearing date. The several instances in which the Court received similar telegrams including one where he claimed a "very sick heart ailment" led the trial court to doubt and disregard the last request of the defense. The court had earlier categorically stated that it wouldentertain no further requests for postponement. The court, in deciding to push through with the trial at 2:00 in the afternoon of May 30, 1988 and in appointing two (2) counsels de oficio for the accused-appellants did not only consider the right of the accused to speedy trial which should not be abused by the defense by willful delays, but more so, the rights of public justice. (Mercado v. Santos, 66 Phil. 215 [1938]). Despite their new counsels who appeared to be doing their best, the accused-appellants insisted on absenting themselves stating that they cannot and would not appear without Atty. Cruz and allegedly for fear that they would be harassed by members of the New People's Army. At this point, the Court informed them of (1) the importance of the appointment of competent counsels de oficio considering the gravity of the offense and the difficulty of the questions that may arise during the trial; and (2) the fact that there is no legal obstacle to proceeding with the reception of prosecution evidence in their absence. Absence at the trial did not deprive the accused-appellants of crossexamination except the right to personally confront the prosecution witnesses face to face. Notwithstanding their absence, they were represented by the counsels de oficio who took turns in crossexamining each of the prosecution witnesses.

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Accused-appellants also maintain that they did not actually refuse to present evidence on their behalf. They argued that the counsels de oficio misapprehended a telegram of Atty. Cruz which stated that he (Atty. Cruz) cannot attend the June 20 and 21, 1985 trial because he had a prior engagement in another court in Ilocos Sur on those dates. They also contend that their failure to appear and present evidence was "simply because of their misplaced trust and obedience to the instructions of their counsel, Atty. Eliseo Cruz, whose negligence and lack of vigilance in the handling of the cases, despite the seriousness of the crimes charged, had caused injustice to the accused-appellants." They ask this Court to take their case as an exception to the rule that a client shall suffer the consequences of negligence or incompetence of his counsel. The actual desire of the accused-appellants to testify and present other evidence is not manifest from a thorough review of the records of the case. If it were true that they wanted to present evidence, they should have taken advantage of the opportunity to be present, to be heard and to testify in open court with the assistance of their appointed lawyers. As a matter of fact, they were able to convince the lower court to grant them a chance to have a new trial. However, they still failed to make use of their last opportunity. They cannot now claim that they were denied their right to be present and to present evidence. This Court upholds the lower court's position t hat the accused-appellants were given more than generous time and opportunity to exercise their constitutional rights which should not be overemphasized at the expense of public policy. The circumstances of the case do not preclude the application of the rule that a client is bound by the acts of his counsel who represents him. Nevertheless, at the time when the lower court appointed the de oficio counsels, the court already had ample notice of the futility of waiting for Atty. Cruz to come and appear for the defense. From the time the accused-appellants were represented by Atty. Montenegro and Atty. Cuartero, their decision not to attend the trial nor to present evidence is clearly a product of their own free will. WHEREFORE, the appealed judgments in Criminal Cases Nos. 1187 and 1194 are hereby, respectively, affirmed and modified as to the crime proven. The accused-appellants PEDRO RAVELO, BONIFACIO "PATYONG" PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE and HERMIE PAHIT are hereby sentenced: (1) To serve the penalty of reclusion perpetua and to pay the increased indemnity of FIFTY THOUSAND PESOS (P50,000.00) in Criminal Case No. 1187 solidarily; and (2) To serve the penalty of arresto menor in Criminal Case No. 1194. SO ORDERED. Fernan, C.J., (Chairman), Feliciano, Bidin and Davide, Jr., JJ., concur. G.R. Nos. L-39303-39305 March 17, 1934 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiffs-appellee, vs. FELIPE KALALO, ET AL., defendants. FELIPE KALALO, MARCELO KALALO, JUAN KALALO, and GREGORIO RAMOS, appellants. Meynardo M. Farol and Feliciano Gomez for appellants. Acting Solicitor-General Peña for appellee. DIAZ, J.: On November 10, 1932, the herein appellants Felipe Kalalo, Marcelo Kalalo, Juan Kalalo, and Gregorio Ramos, were tried in the Court of First Instance of Batangas jointly with Alejandro Garcia, Fausta Abrenica and Alipia Abrenica in criminal cases Nos. 6858, 6859 and 6860, the first two for murder, and the last for frustrated murder. Upon agreement of the parties said three cases were tried together and after the presentation of their respective evidence, the said court acquitted Alejandro Garcia, Fausta Abrenica and Alipia Abrenica, and sentenced the appellants as follows: In case No. 6858, for the alleged murder of Marcelino Panaligan, to seventeen years, four months and one day of reclusion temporal, with the corresponding accessory penalties, and to indemnify the heirs of the said deceased Marcelino Panaligan in the sum of P1,000, with the costs. In case No. 6859, for the alleged murder of Arcadio Holgado, to seventeen years, four months and one day of reclusion temporal, with the corresponding accessory penalties, and to indemnify the heirs of the aforesaid victim, the deceased Arcadio Holgado, in the sum of P1,000, with the costs. In the third case, that is, No. 6860, wherein the court a quo held that the crime committed was simply that of discharge of firearm, not frustrated murder, the appellant Marcelo Kalalo was sentenced to one year, eight months and twenty-one days of prision correccional and to pay the proportionate part of the costs of the proceedings. Felipe Kalalo and Juan Kalalo, as well as their co accused Fausta and Alipia Abrenica, Gregorio Ramos and Alejandro Garcia, were acquitted of the charges therein. The accused in the aforesaid three cases appealed from their respective sentences assigning six alleged errors as committed by the trial court, all of which may be discussed jointly in view of the fact that they raise only one question, to wit: whether or not said sentences are in accordance with law. A careful study and examination of the evidence presented disclose the following facts: Prior to October 1, 1932, the date of the commission of the three crimes alleged in the three informations which gave rise to the aforesaid three cases Nos. 6858, 6859 and 6860, the appellant Marcelo Kalalo or Calalo and Isabela Holgado or

Olgado, the latter being the sister of the deceased Arcadio Holgado and a cousin of the other deceased Marcelino Panaligan, had a litigation over a parcel of land situated in the barrio of Calumpang of the municipality of San Luis, Province of Batangas. On September 28, 1931, and again on December 8th of the same year, Marcelo Kalalo filed a complaint against the said woman in the Court of First Instance of Batangas. By virtue of a motion filed by his opponent Isabela Holgado, his first complaint was dismissed on December 7, 1931, and his second complaint was likewise dismissed on February 5, 1932. Marcelo Kalalo cultivated the land in question during the agricultural years 1931 and 1932, but when harvest time came Isabela Holgado reaped all that had been planted thereon. On October 1, 1932, Isabela Holgado and her brother Arcadio Holgado, one of the deceased, decided to order the aforesaid land plowed, and employed several laborers for that purpose. These men, together with Arcadio Holgado, went to the said land early that day, but Marcelo Kalalo, who had been informed thereof, proceeded to the place accompanied by his brothers Felipe and Juan Kalalo, his brother-in-law Gregorio Ramos and by Alejandro Garcia, who were later followed by Fausta Abrenica and Alipia Abrenica, mother and aunt, respectively, of the first three. The first five were all armed with bolos. Upon their arrival at the said land, they ordered those who were plowing it by request of Isabela and Arcadio Holgado, to stop, which they did in view of the threatening attitude of those who gave them said order.1ªvvphi1.ne+ Shortly after nine o'clock on the morning of the same day, Isabela Holgado, Maria Gutierrez and Hilarion Holgado arrived at the place with food for the laborers. Before the men resumed their work, they were given their food and not long after they had finished eating, Marcelino Panaligan, cousin of said Isabela and Arcadio, likewise arrived. Having been informed of the cause of the suspension of the work, Marcelino Panaligan ordered said Arcadio and the other laborers to again hitch their respective carabaos to continue the work already began. At this juncture, the appellant Marcelo Kalalo approached Arcadio, while the appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos, in turn, approached Marcelino Panaligan. At a remark from Fausta Abrenica, mother of the Kalalos, about as follows, "what is detaining you?" they all simultaneously struck with their bolos, the appellant Marcelo Kalalo slashing Arcadio Holgado, while the appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos slashed Marcelino Panaligan, inflicting upon them the wounds enumerated and described in the medical certificates Exhibits I and H. Arcadio Holgado and Marcelino Panaligan died instantly from the wounds received by them in the presence of Isabela Holgado and Maria Gutierrez, not to mention the accused. The plowmen hired by Arcadio and Isabela all ran away. Arcadio Holgado's body bore the following six wounds, to wit: 1. A cut wound on the ulnar side of right arm near the wrist, cutting the ulnar bone completely and, the radius partially. 2. A cut wound on the anterior upper portion of the left arm measuring about 7 cm. long and 5 cm. wide extending to the bone and cutting the deltoid muscle across. 3. A penetrating wound on the left chest just below the clavicle going thru the first intercostal space measuring about 8 cm. long and 2 cm wide. 4. A wound on the left side of the back about 20 cm. long following the 10th intercostal space and injuring the lung, diaphragm, stomach and large intestine. 5. A small superficial cut wound about 2 cm. long and ½ cm. wide situated on the inner side of the right scapula. 6. A superficial wound barely cutting the skin, about 4 cm. long in the lumbar region just to the right of the spinal column. (Exhibit I.) Marcelino Panaligan's body, in turn, bore the following fourteen wounds, to wit: 1. A penetrating cut wound in the epigastric region of the abdomen measuring about 7 cm. long and 3 cm. wide cutting the omentum and injuring the lower portion of the stomach and a portion of the transverse colon, but no actual perforation of either one of the two organs. 2. A cut wound on the head just above the forehead about 6 cm. long and 4 cm. wide lifting a portion of scalp as a flap. 3. A cut wound on the left side of the head measuring about 7 cm. long and 2 cm. wide. 4. A cut wound about 12 cm. long across the face just below the eyes extending from one cheek bone to the other, perforating the left antrum and cutting the nasal bone. 5. A cut wound on the anterior portion of the left forearm extending to the bone with a flap of skin and muscle which measures about 12 cm long and 6 cm. wide. 6. A cut wound across the dorsal side of the right hand about 5 cm. long and 2 cm. wide cutting the bones of the hand. 7. A superficial wound about 6 cm. long and 4 cm. wide and 2 cm. deep situated in the left axilla. 8. A cut wound about 6 cm. long and 2 cm. wide situated over the left scapula. 9. A cut wound on the right shoulder about 6 cm. long passing near the inner angle of the scapula cutting the muscles of the shoulder. 10. A cut wound about 7 cm. long and 3 cm. wide situated near and almost parallel to the inner border of the right scapula.

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11. A wound on the back of the head, oval in shape, about 10 cm. long and 5 cm. wide from which a flap of scalp was removed. 12. A wound across the back and left side of the neck about 12 cm. long and 7 cm. deep cutting the vertebral column together with the great arteries and veins on the left side of the neck. 13. A wound about 15 cm. long and 4 cm. wide on the left side of the back. 14. A small wound on the left thumb from which a portion of the bone and other tissues were removed. (Exhibit H.) The above detailed description of the wounds just enumerated discloses — and there is nothing of record to contradict it all of them were caused by a sharp instrument or instruments. After Arcadio Holgado and Marcelino Panaligan had fallen to the ground dead, the appellant Marcelo Kalalo took from its holster on the belt of Panaligans' body, the revolver which the deceased carried, and fired four shots at Hilarion Holgado who was then fleeing from the scene inorder to save his own life. The appellants attempted to prove that the fight, which resulted in the death of the two deceased, was provoked by Marcelino Panaligan who fired a shot at Marcelo Kalalo upon seeing the latter's determination to prevent Arcadio Holgado and his men from plowing the land in question. No such firing, however, can be taken into consideration, in the first place, because of the existence of competent evidence such as the testimony of Maria Gutierrez, who is a disinterested witness, which corroborates that of Isabela Holgado in all its details, showing that the said deceased was already lying prostrate and lifeless on the ground when the appellant Marcelo Kalalo approached him to take his revolver for the purpose of using it, as he in fact did, against Hilarion Holgado; in the second place, because the assault and aggression of the said appellant were not directed against said Marcelino Panaligan but exclusively against Arcadio Holgado, the evidence of record on this point being overwhelming, and if his claim were true, he naturally should have directed his attack at the person who openly made an attempt against his life; in the third place, because the evidence shows without question that Panaligan was an expert shot with a revolver, and among the eight wounds that the appellant Marcelo Kalalo received (Exhibit 3), not one appears to have been caused by bullet, and similarly, none of the other appellants received any wound that might, in any way, suggest the possibility of having been caused by bullet; and finally, because the fact that he and his co-appellants, together with those who had been charged jointly with them, had gone to the place of the crime armed with bolos, determined at any cost to prevent the Holgados from plowing the land in dispute, cannot but disclose not only their determination to resort to violence or something worse, but that they did not need any provocation in order to carry out their intent. They likewise attempted to prove that the appellant Marcelo Kalalo alone fought against the deceased Marcelino Panaligan and Arcadio Holgado and inflicted upon them the wounds which resulted in their death, said appellant testifying that he was compelled to do so in defense of his own life because both of the deceased attacked him first, the former with a revolver, firing three shots at him, and the latter with a bolo. For the same reasons hereinbefore stated, such defense of the appellants cannot be given credit. One man alone could not have inflicted on the two deceased their multiple wounds, particularly when it is borne in mind that one of them was better armed, because he carried a revolver, and that he was furthermore an expert shot and scarcely two arm-lengths from Kalalo, according to the latter's own testimony. The two witnesses for the defense, who witnessed the crime very closely, refuted such allegation saying that Marcelo Kalalo alone fought the deceased Arcadio Holgado and that the other three appellants went after the other deceased. It is true that Arcadio Holgado also used his bolo to defend himself from Marcelo Kalalo's aggression but it is no less true that five of the principal wounds of the other deceased Marcelino Panaligan were inflicted on him from behind, inasmuch as according to Exhibit H they were all found at the back of the head, on the neck and on his back. Neither is it less true that all the wounds of the appellant Marcelo Kalalo were inflicted on him from the front, which fact shows that it was not he alone who inflicted the wounds on the two deceased because had he been alone Panaligan would not have exposed his back to be thus attacked from behind, inasmuch as he was armed with a revolver, which circumstance undoubtedly allowed him to keep at a distance from Kalalo; and in connection with the testimony of Isabela Holgado and Maria Gutierrez, said circumstance shows furthermore that the three appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos attacked said Panaligan with their respective bolos at the same time that Marcelo Kalalo attacked Arcadio Holgado, in order that all might act simultaneously in conformity with the common intent of the four and of their coaccused to eliminate through violence and at any cost, without much risk to them, all those who wanted to plow the land which was the cause of the dispute between the two parties. And it is not strange that the three appellants, who inflicted the wounds upon Marcelino Panaligan, should act as they did, because they knew that the latter carried a revolver in a holster on his belt. Although it may seem a repetition or redundancy, it should be stated that Marcelo Kalalo's allegation that he acted in self-defense is absolutely unfounded on the ground that, were it true that the deceased Marcelino Panaligan succeeded in using his revolver, he

would have wounded if not the said appellant, at least the other appellants. The trial court has acted correctly in not giving credit to the testimony of the appellants Juan and Felipe Kalalo and Gregorio Ramos that they proceeded to the scene of the crime completely unarmed, with the exception that one of them had a brush in his hand and the other a plane, after Marcelino Panaligan and Arcadio Holgado had already expired, which is incredible and improbable under the circumstances, knowing, as in fact they then knew, t hat their brother Marcelo Kalalo had been attacked by armed men. This court cannot help but agree with the decision of the lower court where it states: It is improbable that after having been informed that their brother was engaged in a fight, they went to the scene of the crime, one merely armed with a plane and the other with a brush. It is improbable that Felipe Kalalo also went to that place simply to follow Juan Kalalo and Gregorio Ramos upon seeing them run unarmed in that direction. These improbabilities of the defenses of the accused, in the face of the positive and clear testimony of the eyewitnesses pointing to the said accused as the aggressors of the deceased Marcelino Panaligan and Arcadio Holgado, cannot, of course, prevail against nor detract from the weight of the evidence of the prosecution, particularly taking into consideration the numerous wounds of each of the deceased and the positions thereof, which show that the said deceased were attacked by several persons and that those several persons were the defendants. Furthermore, the established fact that after the commission of the crime the said defendants had been in hiding in order to avoid arrest, is corroborative evidence of their guilt. It certainly is a fact of record that the said three appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos were not arrested until after several days, because they had been hiding or, at least, absenting themselves from their homes. That the four appellants should all be held liable for the death of the two deceased leaves no room for doubt. All of them, in going to the land where the killing took place, were actuated by the same motive which was to get rid of all those who might insist on plowing the land which they believed belonged to one of them, that is, to Marcelo Kalalo, a fact naturally inferable from the circumstance that all of them went there fully armed and that they simultaneously acted after they had been instigated by their mother with the words hereinbefore stated, to wit: "What is detaining you?" The question now to be decided is whether the appellants are guilty of murder or of simple homicide in each of cases G.R. No. L-39303 and G.R. No. L-39304. The Attorney-General maintains that they are guilty of murder in view of the presence of the qualifying circumstance of abuse of superior strength in the commission of the acts to which the said two cases particularly refer. The trial court was of the opinion that they are guilty of simple homicide but with the aggravating circumstance of abuse of superior strength. It is true that under article 248 of the Revised Penal Code, which defines murder, the circumstance of "abuse of superior strength", if proven to have been presented, raises homicide to the category of murder; but this court is of the opinion that said circumstance may not properly be taken into consideration in the two cases at bar, either as a qualifying or as a generic circumstance, if it is borne in mind that the deceased were also armed, one of them with a bolo, and the other with a revolver. The risk was even for the contending parties and their strength was almost balanced because there is no doubt but that, under circumstances similar to those of the present case, a revolver is as effective as, if not more than three bolos. For this reason, this court is of the opinion that the acts established in cases Nos. 6858 and 6859 (G.R. Nos. L-39303 and 39304, respectively), merely constitute two homicides, with no modifying circumstance to be taken into consideration because none has bee n proved. As to case No. 6860 (G.R. No. 39305), the evidence shows that Marcelo Kalalo fired four successive shots at Hilarion Holgado while the latter was fleeing from the scene of the crime in order to be out of reach of the appellants and their companions and save his own life. The fact that the said appellant, not having contended himself with firing only once, fired said successive shots at Hilarion Holgado, added to the circumstance that immediately before doing so he and his co-appellants had already killed Arcadio Holgado and Marcelino Panaligan, cousin and brother-in-law, respectively, of the former, shows that he was then bent on killing said Hilarion Holgado. He performed everything necessary on his pat to commit the crime that he determined to commit but he failed by reason of causes independent of his will, either because of his poor aim or because his intended victim succeeded in dodging the shots, none of which found its mark. The acts thus committed by the said appellant Marcelo Kalalo constitute attempted homicide with no modifying circumstance to be taken into consideration, because none has been established. Wherefore, the three appealed sentences are hereby modified as follows: In case No. 6858, or G.R. No. 39303, the court finds that the c rime committed by the appellants is homicide and they hereby sentenced to fourteen years, eight months and one day of reclusion temporal each, to jointly and severally indemnify the heirs of Marcelino Panaligan in the sum of P1,000 and to pay the

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proportionate part of the costs of the proceedings of both instances; and by virtue of the provisions of Act No. 4103, the minimum of the said penalty of reclusion temporal is hereby fixed at nine years; In case No. 6859, or G.R. No. 39304, the court likewise finds that the crime committed by the appellants is homicide, and they are hereby sentenced to fourteen years, eight months and one day of reclusion temporal each, to jointly and severally indemnify the heirs of Arcadio Holgado in the sum of P1,000 and to pay the proportionate part of the costs of both instances; and in conformity with the provisions of Act No. 4103, the minimum of the penalty of reclusion temporal herein imposed upon them is hereby fixed at nine years; In case No. 6860, or G.R. No. 39305, the court finds that the crime committed by the appellant Marcelo Kalalo is attempted homicide, and he is hereby sentenced to two years, four months and one day of prision correccional, it being understood that by virtue of the provisions of said Act No. 4103, the minimum of this penalty is six months, and he is furthermore sentenced to pay the costs of the appeal in this case. In all other respects, the appealed sentences in the said three cases are hereby affirmed without prejudice to crediting the appellants therein with one-half of the time during which they have undergone preventive imprisonment, in accordance with article 29 of the Revised Penal Code. So ordered. Street, Abad Santos, Hull, and Butte, JJ., concur. G.R. No. L-19069 October 29, 1968 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AMADEO PERALTA, ET AL., defendants, ANDRES FACTORA, LEONARDO DOSAL, ANGEL PARUMOG, AMADEO PERALTA, FLORENCIO LUNA and GERVASIO LARITA, defendantsreview. Assistant Solicitors General Vicente A. Torres and Antonio Ibarra for plaintiff-appellee. J. R. Nuguid for defendants-review. PER CURIAM: In the decision in criminal case 7705 of the Court of First Instance of Rizal,subject of the present automatic review, Amadeo Peralta, Andres Factora, Leonardo Dosal, Angel Parumog, Gervasio Larita and Florencio Luna (six among the twenty-two defendants 1 charged therein with multiple murder) were pronounced guilty, and all sentenced to death, to indemnify jointly and severally the heirs of each of the victims, namely, Jose Carriego, Eugenio Barbosaand Santos Cruz, in the sum of P6,000, and each to pay his corresponding share of the costs. The information recites: That on or about the 16th day of February, 1958, in the municipality of Muntinglupa, province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, who are convicts confined in the New Bilibid Prisons by virtue of final judgments, conspiring, confederating and mutually helping and aiding one another, with evident premeditation and treachery, all armed with deadly weapons, did, then and there, willfully, unlawfully and feloniously kill Jose Carriego, Eugenio Barbosa and Santos Cruz, also convicts confined in the same institution, by hitting, stabbing and striking them with ice picks, clubs and other improvised weapons, pointed and/or sharpened, thereby inflicting upon the victims multiple serious injuries which directly caused their deaths. That the aggravating circumstance of quasi-recidivism is present in the commission of the crime in that the crime was committed after the accused have been convicted by final judgments and while they are serving the said judgments in the New Bilibid Prisons. Contrary to law with the following aggravating circumstances: 1. That the crime was committed with insult to public authorities; 2. That the crime was committed by a band; 3. That the crime was committed by armed men or persons who insure or afford impunity; 4. That use of superior strength or means was employed to weaken the defense; 5. That as a means to the commission of the crime doors and windows have been broken; 6. That means was employed which add ignominy to the natural effects of the act; 7. That the crime was committed where public authorities were engaged in the discharge of their duties. Upon motion of the provincial fiscal before trial, the lower court dismissed the charge against one of the accused 2for lack of evidence. After the prosecution had rested its case, the charges against six of the accused 3 were dismissed for failure of the prosecution to establish a prima facie case against them. One of the defendants died 4during the pendency of the case. After trial, the court a quo acquitted eight 5 of the remaining defendants. As early as in 1956, a great number of inmates confined in the national penitentiary at Muntinglupa arrayed themselves into two warring gangs, the "Sigue-Sigue" and the "OXO", the former composed predominantly of Tagalog inmates, the latter comprised mainly of prisoners from the Visayas and Mindanao. Since then the prison compound has been rocked time and time again by bloody riots resulting in the death of many of their members and suspected sympathizers. In an effort to avert violent clashes between the contending groups, prison officials segrerated known members of

the "Sigue-Sigue" from those of the "OXO". Building 1 housed "SigueSigue" members, while a majority of the prisoners confined in Bldg. 4 belonged to the "OXO". Even in Bldg. 4, which is composed of four brigades, namely, 4-A and 4-B (upper floor) and 4-C and 4-D (first floor), inmates from Visayas and Mindanao, from whom the "OXO" drew most of its members, were confined in 4-A. It was at about 7:00 a.m. on February 16, 1958, while the inmates of the penitentiary were preparing to attend Sunday mass, that a fight between two rival members of the "Sigue-Sigue" and "OXO" gangs occurred in the plaza where the prisoners were assembled, causing a big commotion. The fight was, however, quelled, and those involved were led away for investigation, while the rest of the prisoners were ordered to return to their respective quarters. Hardly had conditions returned to normal when a riot broke out in Bldg. 1, a known lair of the "Sigue-Sigue". The inmates thereof tried to invade Bldg. 4, where many members and sympathizers of the "OXO" gang were confined. The timely arrival of the guards forced the invading inmates to retreat and return to Bldg. 1. Moments later, another riot erupted in Bldg. 4, as the inmates of brigade 4-A destroyed the lock of their door and then rampaged from one brigade to another. The invading prisoners from 4-A, mostly "OXO" members and sympathizers, clubbed and stabbed to death Jose Carriego, an inmate of 4-B. Afterwards, they forcibly opened the door of 4-C and killed two more inmates, namely, Eugenio Barbosa and Santos Cruz. The three victims sustained injuries which swiftly resulted in their death — before they could be brought to the hospital. Jose Carriego: (a) lacerated wound on the lower lip, 5 cm. in length and 3 cm.in depth; (b) contusion and hematoma of the back of the neck, about 2 inches in diameter; and (c) five punctured wounds in the chest, penetrating the lungs. Cause of death: internal hemorrhage from multiple fatal wounds in the chest. Eugenio Barbosa: (a) lacerated wound in the occipital region, 3 inches in length and 1 cm. in depth; (b) two penetrating wounds in the abdomen, puncturing the intestines; (c) lacerated wounds on the right oxilla, 3 cm. in length and 2 cm. in depth; and (d) several bruises at the right and left lower extremities. Cause of death: shock, secondary to internal hermorrhage in the abdomen. Santos Cruz: (a) lacerated wound on the head, 2 inches in length; (b) fractured skull; (c) wound on the upper lip cutting the lip in two; (d) seven punctured wounds in the chest, two of which were penetrating; (e) hematoma on the right hand; and (f) three punctured wounds on the left hand. Cause of death: fractured skull. Romeo Pineda, an inmate and first quarter-in-charge of brigade 4-B, testified that while he was taking his breakfast with Jose Carriego, who was at the time the representative of the prisoners confined in 4-B to the inmate carcel, he "suddenly heard commotion" near the door of their brigade; that his fellow prisoners started shouting "pinapasok na tayo," as the invading inmates from brigade 4-A stampeded into 4-B; that he and Carriego took hold of their clubs and stood at the end of the passageway; that he saw Carriego surrender his club to Andres Factora, an "OXO" member from 4-A; that as Carriego started to walk away, Factora clubbed Carriego on the nape causing the latter to fall; that Factora turned up the face of his fallen victim and struck him again in the face; that while Carriego was in this prostrate position, Amadeo Peralta and Leonardo Dosal, companions of Factora, repeatedly stabbed him. The testimony of Pineda was corroborated in all its material points by Juanito Marayoc and Avelino Sauza, both inmates of 4-B. These two prosecution witnesses identified Factora, Peralta and Dosal as the assailants of Carriego. From 4-B, the invading inmates of 4-A went down and forcibly entered 4-C. According to Oscar Fontillas, an inmate of 4-C, he saw the prisoners from 4-A rushing toward their brigade; that among the invading inmates who forced open the door of 4-C, with help from the inside provided by Visayan prisoners confined in 4-C, were Factora, Dosal, Angel Parumog, Gervacio Larita, Ernesto Fernandez and Jose Tariman; that he saw Factora, Larita and Fernandez kill Barbosa, while the rest of their companies instructed the Visayans to leave their cell and ordered the "Manila boys" (Tagalogs) to remain. Antonio Pabarlan, another inmate of 4-C, declared that he saw Peralta stab Barbosa, as Dosal, Larita, Florencio Luna, Parumog and Factora clubbed the hapless victim. Another inmate of 4-C, Jose Halili, not only corroborated the testimony of Fontillas and Pabarlan but as well added grim details. He declared that while Barbosa was trying to hide under a cot, he was beaten and stabbed to dea th by Dosal, Parumog, Factora and Fernandez, with Luna, Larita, Pedro Cogol and Eilel Tugaya standing guard, armed with clubs and sharp instruments, in readiness to repel any intervention from the Tagalog inmates. Carlos Espino, also confined in 4-C, declared that he saw Parumog, Peralta Factora and Larita assault and kill Barbosa. The same witnesses for the prosecution testifies that after killing Barbosa, the invading "OXO" members and sympathizers proceeded to hunt for Santos Cruz, another Tagalog like Carriego and Barbosa. Halili testified, that he saw Peralta, Larita, Cogol and Tugaya take Santos Cruz to 4-A from 4-C; that Santos Cruz knelt down and pleaded for his life, saying, "Maawa kayo sa akin. Marami akong anak;" that Luna and Peralta were unmoved as they stabbed Santos Cruz to death. Pabarlan declared that after the death of Barbosa, Santos Cruz was brought to 4-A by the invading inmates but Cruz was able to slip back to his cell only to be recaptured by Factora, Dosal and Luna and brought to near the fire escape where he was

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clubbed and stabbed to death by Parumog, Dosal, Factora and Peralta. Fontillas and Espino corroborated the declarations of Halili and Pabarlan with respect to the killing of Santos Cruz, and both mentioned Larita as one of the assailants of Cruz. The trial judge summarized the evidence for the prosecution, thus: "... it clearly appears that the three killings in question were an offshoot of the rivalry between the two organizations. All those who were killed, namely, Barbosa, Carriego and Santos Cruz, were Tagalogs and well known as members if not sympathizers of the Sigue Sigue, while the accused so charged with their killing were mostly members if not sympathizers of the Oxo organization. These three killings were sparked by the commotion that happened in the plaza between 8:00 and 9:00 in the morning, while the prisoners were preparing to go the mass ... It was evident that the clash that occurred in the plaza produced a chain reaction among the members and followers of the two organizations. The inmates of Building No. 1, known lair of the Sigue Sigues bolted the door of their cells and tried to invade Building No. 4 where a big number of the Oxo members and their sympathizers were confined, but, however, were forced to retreat by the timely arrival of the guards who sent them back to their building. When the members of the Oxo in Building No. 4 learned about this, they went on a rampage looking for members of the Sigue Sigue or their sympathizers who were confined with them in the same building. As the evidence of the prosecution shows, the accused who were confined in Brigade 4-A of Building No. 4 led the attack. They destroyed the lock of their dormitories and with the help of their companions succeeded in bolting the door of the different brigades, and once they succeeded in bolting the doors of the different brigades, they went inside and tried to segregate the Tagalogs from their group; that as soon as they discovered their enemies they clubbed and stabbed them to death ... Admitting that he was one among several who killed Jose Carriego, Peralta nevertheless claims self-defense. He testified that on the morning of the riot he was attacked by Carriego and Juan Estrella near the door of 4-A while he was returning to his brigade from the chapel with some companions; that Carriego clubbed him on the head; that he was able to parry the second blow of Carriego and then succeeded in squeezing Carriego's head with his hands; that forthwith he whipped out an improvised ice pick and stabbed Carriego several times; that when he (Peralta) was already dizzy due to the head wound he sustained from the clubbing, Carriego managed to slip away; that he then became unconscious, and when he regained consciousness he found himself on a tarima with his head bandaged. Peralta's declarations do not inspire belief. The impressive array of prosecution witnesses who saw him actively participate in the killing of the three victims pointed to him as the aggressor, not the aggrieved. Pineda, Marayoc and Sauza positively identified him as one of the assailants of Carriego. Contrary to the pretensions of Peralta, Carriego an alleged "Sigue-Sigue" member, would not have attacked him, knowing fully well that Building No. 4 was an "OXO" lair where the "Sigue-Sigue" members were outnumbered. Anent the killing of Barbosa and Santos Cruz, Peralta failed to offer any explicit defense to rebut the inculpatory declarations of prosecution witnesses Pabarlan and Espino who saw him participate in the killing of Barbosa and those of Halili, Fontillas and Espino who identified him as one of the murderers of Santos Cruz. For his part, Leonardo Dosal stated that he killed Santos Cruz, but also claims self-defense in exculpation. He declared that Santos Cruz, Jose Carriego, Juanita Espino, Carlos Espino and Oscar Fontillas invaded 4-A where he was confined; that a free-for-all forthwith ensued; that he then heard Santos Cruz call Carlos Espino, and advise the latter to go away as "I will be the one to kill that person (Dosal);" that with a sharp instrument, Cruz hit him on the head and then on the nose; that as Cruz was about to hit him again, he got hold of his ice pick and stabbed Cruz repeatedly until the latter fell. Dosal's avowal is clearly belied by the positive testimonies of Pabarlan, Halili and Espino who saw him participate in the killing of Santos Cruz. If it is true that Dosal killed Santos Cruz in self-defense when the latter together with his companions supposedly invaded Dosal's brigade (4-A), why is it that the body of Santos Cruz was found at the fire escape near the pasillo between 4-C and 4-D of the first floor of Bldg. 1 instead of in 4-A which is located in the upper floor? Moreover, Dosal failed to explain why he was seen in 4-C, which he does not deny, since he was an inmate of 4-A where he was allegedly attacked. With respect to the murder of Carriego and Barbosa with which Dosal was also charged, he did not offer any evidence in his behalf. Hence, the testimonies of Pineda, Marayoc and Sauza identifying him as one of the killers of Carriego and those of Pabarlan, Halili and Espino implicating him in the death of Santos Cruz, stand unrebutted. Andres Factora declared that he clubbed Carriego and Santos Cruz under compulsion of his co-accused who threatened to kill him if he disobeyed their order; that he did not hit Barbosa anymore because the latter was already dead; that it was his co-accused who actually killed the three victims. Again, the declarations of the prosecution witnesses, which were accorded full credence by the trial court, expose the guilt of Factora beyond reasonable doubt. In fact, according to Pineda, whose testimony was corroborated by Marayoc, it was Factora who started the mass assault by clubbing Carriego treacherously. Fontillas, Halili, Pabarlan and Espino pointed to

Factora as one of the killers of Barbosa, while at least three prosecution witnesses, namely, Pabarlan, Fontillas and Espino, saw Factora participate in the slaying of Santos Cruz. The active participation of Factora in the killing, which is clear index of voluntariness, thus negates his claim of compulsion and fear allegedly engendered by his co-accused. Angel Parumog, Gervasio Larita and Florencio Luna take refuge in the exculpatory device of alibi. Parumog testified that he did not participate in the killing of the three inmates because he stayed during that entire hapless day in the office of the trustees for investigation after the fight in the plaza; that he was implicated in the killing by the prosecution witnesses because of his refusal to accede to their request to testify against his co-accused; that he is not a Visayan but a Tagalog from Nueva Ecija. Larita claims that he did not know about the killing until he was informed that three inmates had died; that on the day in question he was brought to the police trustee brigade for investigation after the incident in the plaza; that he was escorted back to his brigade only in the afternoon. Luna likewise disclaims any knowledge of the killing and asserts that for the entire duration of the riot he remained in his cell (brigade 4-A). The alibis of Parumog, Larita and Luna merit no credence when set against the positive testimonies of prosecution witness identifying them as participants in the killing of Barbosa and Santos Cruz. Pabarlan, Espino and Fontillas declared that Larita was one of the killers of Barbosa; Espino and Fontillas declared that they saw Larita kill Santos Cruz; Pabarlan, Halili and Espino testified that they saw Parumog participate in the murder of Barbosa; Espino, Fontillas and Pabarlan stated that Parumog took part in the killing of Santos Cruz. Pabarlan and Halili declared that Luna participated in the fatal assault on Barbosa and Santos Cruz. The alibis of the accused are thus sufficiently overcome by strong evidence to the contrary. The defense of alibi is generally weak since it is easy to concoct. For this reason, courts view it with no small amount of caution, and accept it only when proved by positive, clear and satisfactory evidence. 6 In the case at bar, if Parumog and Larita were really confined in the police trustee brigade for investigation on the day of the incident, there should have been a record of the alleged investigation. But none was presented. The testimony of Luna that throughout the riot he stayed in his cell is quite unnatural. He claims that he did not even help his cellmates barricade their brigade with tarimas in order to delay if not prevent the entry of the invading inmates. According to him, he "just waited in one corner." The rule is settled that the defense of alibi is worthless in the face of positive identification by prosecution witnesses pointing to the accused as particeps criminis. 7 Moreover, the defense of alibi is an issue of fact the resolution of which depends almost entirely on the credibility of witnesses who seek to establish it. In this respect the relative weight which the trial judge accords to the testimony of the witnesses must, unless patently inconsistent without evidence on record, be accepted. 8 In the case at bar, the trial court, in dismissing the alibis of Parumog, Larita and Luna, said that "their mere denial cannot prevail over the positive testimony of the witnesses who saw them participate directly in the execution of the conspiracyto kill Barbosa, Carriego and Santos Cruz." The killing of Carriego constitutes the offense of murder because of the presence of treachery as a qualifying circumstance: Carriego was clubbed by Factora from behind, and as he lay prostrate and defenseless, Peralta and Dosal stabbed him repeatedly on the chest. The blow on the nape and the penetrating chest wounds were all fatal, according to Dr. Bartolome Miraflor. Abuse of superior strength qualified the killing of Barbosa and Santos Cruz to the category of murder. The victims, who were attacked individually were completely overwhelmed by their assailants' superiority in number and weapons and had absolutely no chance at all to repel or elude the attack. All the attackers were armed with clubs or sharp instruments while the victims were unarmed, as so found by the trial court. In fact, Halili testified that Barbosa was clubbed and stabbed to death while he was trying to hide under a cot, and Santos Cruz was killed while he was on his knees pleading for his life. The essential issue that next confronts us is whether conspiracy attended the commission of the murders. The resolution of this issue is of marked importance because upon it depends the quantity and quality of the penalties that must be imposed upon each of the appellants. For this purpose, it is not amiss to briefly restate the doctrine on conspiracy, with particular emphasis on the facets relating to its nature, the quantum of proof required, the scope and extent of the criminal liability of the conspirators, and the penalties imposable by mandate of applicable law. Doctrine. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. 9 Generally, conspiracy is not a crime except when the law specifically provides a penalty therefor as in treason, 10 rebellion 11 and sedition. 12 The crime of conspiracy known to the common law is not an indictable offense in the Philippines. 13 An agreement to commit a crime is a reprehensible act from the view-point of morality, but as long as the conspirators do not perform overt acts in furtherance of their malevolent design, the sovereignty of the State is not outraged and the tranquility of the public remains undisturbed. However, when in resolute execution of

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a common scheme, a felony is committed by two or more malefactors, the existence of a conspiracy assumes pivotal importance in the determination of the liability of the perpetrators. In stressing the significance of conspiracy in criminal law, this Court in U.S. vs. Infante and Barreto 14 opined that While it is true that the penalties cannot be imposed for the mere act of conspiring to commit a crime unless the statute specifically prescribes a penalty therefor, nevertheless the existence of a conspiracy to commit a crime is in many cases a fact of vital importance, when considered together with the other evidence of record, in establishing the existence, of the consummated crime and its commission by the conspirators. Once an express or implied conspiracy is proved, all of the conspirators are liable as co-principals regardless of the extent and character of their respective active participation in the commission of the crime or crimes perpetrated in furtherance of the conspiracy because in contemplation of law the act of one is the act of all. 15 The foregoing rule is anchored on the sound principle that "when two or more persons unite to accomplish a criminal object, whether through the physical volition of one, or all, proceeding severally or collectively, each individual whose evil will actively contributes to the wrong-doing is in law responsible for the whole, the same as though performed by himself alone." 16 Although it is axiomatic that no one is liable for acts other than his own, "when two or more persons agree or conspire to commit a crime, each is responsible for all the acts of the others, done in furtherance of the agreement or conspiracy." 17 The imposition of collective liability upon the conspirators is clearly explained in one case 18 where this Court held that ... it is impossible to graduate the separate liability of each (conspirator) without taking into consideration the close and inseparable relation of each of them with the criminal act, for the commission of which they all acted by common agreement ... The crime must therefore in view of the solidarity of the act and intent which existed between the ... accused, be regarded as the act of the band or party created by them, and they are all equally responsible ... Verily, the moment it is established that the malefactors conspired and confederated in the commission of the felony proved, collective liability of the accused conspirators attaches by reason of the conspiracy, and the court shall not speculate nor even investigate as to the actual degree of participation of each of the perpetrators present at the scene of the crime. Of course, as to any conspirator who was remote from the situs of aggression, he could be drawn within the enveloping ambit of the conspiracy if it be proved that through his moral ascendancy over the rest of the conspirators the latter were moved or impelled to carry out the conspiracy. In fine, the convergence of the wills of the conspirators in the scheming and execution of the crime amply justifies the imputation to all of them the act of any one of them. It is in this light that conspiracy is generally viewed not as a separate indictable offense, but a rule for collectivizing criminal liability. The ensnaring nature of conspiracy is projected in bold relief in the cases of malversation and rape committed in furtherance of a common design. The crime of malversation is generally committed by an accountable public officer who misappropriates public funds or public property under his trust. 19 However, in the classic case of People vs. Ponte 20 this Court unequivocally held that a janitor and five municipal policemen, all of whom were not accountable public officers, who conspired and aided a municipal treasurer in the malversation of public funds under the latter's custody, were principally liable with the said municipal treasurer for the crime of malversation. By reason of conspiracy, the felonious act of the accountable public officer was imputable to his co-conspirators, although the latter were not similarly situated with the former in relation to the object of the crime committed. Furthermore, in the words of Groizard, "the private party does not act independently from the public officer; rather, he knows that the funds of which he wishes to get possession are in the latter's charge, and instead of trying to abstract them by circumventing the other's vigilance he resorts to corruption, and in the officer's unfaithfulness seeks and finds the most reprehensible means of accomplishing a deed which by having a public officer as its moral instrument assumes the character of a social crime." 21 In an earlier case 22 a non-accountable officer of the Philippine Constabulary who conspired with his superior, a military supply officer, in the malversation of public funds was adjudged guilty as co-principal in the crime of malversation, although it was not alleged, and in fact it clearly appeared, that the funds misappropriated were not in his custody but were under the trust of his superior, an accountable public officer. In rape, a conspirator is guilty not only of the sexual assault he personally commits but also of the separate and distinct crimes of rape perpetrated by his co-conspirators. He may have had carnal knowledge of the offended woman only once but his liability includes that pertaining to all the rapes committed in furtherance of the conspiracy. Thus, in People vs. Villa, 23 this Court held that ... from the acts performed by the defendants front the time they arrived at Consolacion's house to the consummation of the offense of rape on her person by each and everyone of them, it clearly appears

that they conspired together to rape their victim, and therefore each one is responsible not only for the rape committed personally by him, but also that committed by the others, because each sexual intercourse had, through force, by each one of the defendants with the offended was consummated separately and independently from that had by the others, for which each and every one is also responsible because of the conspiracy. The rule enunciated in People vs. Villa was reiterated in People vs. Quitain 24 where the appellant Teofilo Anchita was convicted of forcible abduction with double rape for having conspired and cooperated in the sexual assault of the aggrieved woman, although he himself did not actually rape the victim. This Court observed: We have no doubt all in all that Teofilo Anchita took part in the sexual assault ... the accused inserted his fingers in the woman's organ, and widened it. Whether he acted out of lewdness or to help his brother-in-law consummate the act, is immaterial; it was both maybe. Yet, surely, by his conduct, this prisoner conspired and cooperated, and is guilty. With respect to robbery in band, the law presumes the attendance of conspiracy so much so that "any member of a band who is present at the commission of a robbery by the band, shall be punished as principal of any of the assaults committed by the band, unless it be shown that he attempted to prevent the same." 25 In this instance, conspiracy need not be proved, as long as the existence of a band is clearly established. Nevertheless, the liability of a member of the band for the assaults committed by his group is likewise anchored on the rule that the act of one is the act of all. Proof of conspiracy. While conspiracy to commit a crime must be established by positive evidence, 26 direct proof is not essential to show conspiracy. 27 Since by it nature, conspiracy is planned in utmost secrecy, it can seldom be proved by direct evidence. 28 Consequently, competent and convincing circumstantial evidence will suffice to establish conspiracy. According to People vs. Cabrera, 29 conspiracies are generally proved by a number of indefinite acts, conditions, and circumstances which vary according to the purposes to be accomplished. If it be proved that the defendants pursued by their acts the same object, one performing one part and another another part of the same, so as to complete it, with a view to the attainment of the same object, one will be justified in the conclusion that they were engaged in a conspiracy to effect the object." Or as elucidated in People vs. Carbonel 30the presence of the concurrence of minds which is involved in conspiracy may be inferred from "proofs of facts and circumstances which, taken together, apparently indicate that they are merely parts of some complete whole. If it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment, a conspiracy may be inferred though no actual meeting among to concert means is proved ..." In two recent cases, 31 this Court ruled that where the acts of the accused, collectively and individually, clearly demonstrate the existence of a common design toward the accomplishment of the same unlawful purpose, conspiracy is evident. Conspiracy presupposes the existence of a preconceived plan or agreement; however, to establish conspiracy, "it is not essential that there be proof as to previous agreement to commit a crime, it being sufficient that the malefactors committed shall have acted in concert pursuant to the same objective." 32 Hence, conspiracy is proved if there is convincing evidence to sustain a finding that the malefactors committed an offense in furtherance of a common objective pursued in concert. Liability of conspirators. A time-honored rule in the corpus of our jurisprudence is that once conspiracy is proved, all of the conspirators who acted in furtherance of the common design are liable as co-principals. 33 This rule of collective criminal liability emanates from the ensnaring nature of conspiracy. The concerted action of the conspirators in consummating their common purpose is a patent display of their evil partnership, and for the consequences of such criminal enterprise they must be held solidarity liable. However, in order to hold an accused guilty as co-principal by reason of conspiracy, it must be established that he performed an overt act in furtherance of the conspiracy, either by actively participating in the actual commission of the crime, or by lending moral assistance to his co-conspirators by being present at the scene of the crime, or by exerting moral ascendancy over the rest of the conspirators as to move them to executing the conspiracy. The difference between an accused who is a principal under any of the three categories enumerated in Art. 17 of the Revised Penal Code and a co-conspirator who is also a principal is that while the former's criminal liability is limited to his own acts, as a general rule, the latter's responsibility includes the acts of his fellow conspirators. In People vs. Izon, et al., 34 this Court acquitted appellant Francisco Robles, Jr., who was convicted by the trial court of robbery with homicide as a conspirator, on the ground that although he may have been present when the conspiracy to rob was proposed and made, "Robles uttered not a word either of approval or disapproval. There are authorities to the effect that mere presence at the discussion of a conspiracy, even approval of it, without any active participation in

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the same, is not enough for purposes of conviction." In a more recent case, 35this Court, in exonerating one of the appellants, said: There is ample and positive evidence on record that appellant Jose Guico was absent not only from the second meeting but likewise from the robbery itself. To be sure, not even the decision under appeal determined otherwise. Consequently, even if Guico's participation in the first meeting sufficiently involved him with the conspiracy (as he was the one who explained the location of the house to be robbed in relation to the surrounding streets and the points thereof through which entrance and exit should be effected), such participation and involvement, however, would be inadequate to render him criminally liable as a conspirator. Conspiracy alone, without the execution of its purpose, is not a crime punishable by law, except in special instances (Article 8, Revised Penal Code) which, however, do not include robbery. Imposition of multiple penalties where conspirators commit more than one offense. Since in conspiracy, the act of one is the act of all, then, perforce, each of the conspirators is liable for all of the crimes committed in furtherance of the conspiracy. Consequently, if the conspirators commit three separate and distinct crimes of murder in effecting their common design and purpose, each of them is guilty of three murders and shall suffer the corresponding penalty for each offense. Thus in People vs. Masin, 36 this Court held: ... it being alleged in the information that three crimes were committed not simultaneously indeed but successively, inasmuch as there was, at least, solution of continuity between each other, the accused (seven in all) should be held responsible for said crimes. This court holds that the crimes are murder ... In view of all these circumstances and of the frequently reiterated doctrine that once conspiracy is proven each and every one of the conspirators must answer for the acts of the others, provided said acts are the result of the common plan or purpose ... it would seem evident that the penalty that should be imposed upon each of the appellants for each of their crimes should be the same, and this is the death penalty ... (emphasis supplied). In the aforesaid case, however, the projected imposition of three death penalties upon each of the conspirators for the three murders committed was not carried out due to the lack of the then requisite unanimity in the imposition of the capital penalty. In another case, 37 this Court, after finding that conspiracy attended the commission of eleven murders, said through Mr. Justice Tuas on: Some members of this Court opine that the proper penalty is death, under the circumstances of the case, but they fall short of the required number for the imposition of this punishment. The sentence consequently is reclusion perpetua; but each appellant is guilty of as many crimes of murder as there were deaths (eleven) and should be sentenced to life imprisonment for each crime, although this may be a useless formality for in no case can imprisonment exceed forty years. (Emphasis supplied.) In People vs. Masani, 38 the decision of the trial court imposing only one life imprisonment for each of the accused was modified by this Court on appeal on the ground that "inasmuch as their (the conspirators') combined attack resulted in the killing of three persons, they should be sentenced to suffer said penalty (reclusion perpetua) for each of the three victims (crimes)." (Emphasis supplied.) It is significant to note that in the abovementioned cases, this Court consistently stressed that once conspiracy is ascertained, the culpability of the conspirators is not only solidary (all co-principals) but also multiple in relation to the number of felonies committed in furtherance of the conspiracy. It can also be said that had there been a unanimous Court in the Masin and Macaso cases, multiple death penalties would have been imposed upon all the conspirators. Legality and practicality of imposing multiple death penalties upon conspirators. An accused who was charged with three distinct crimes of murder in a single information was sentenced to two death penalties for two murders, 39 and another accused to thirteen (13) separate death penalties for the 13 killings he perpetrated. 40 Therefore there appears to be no legal reason why conspirators may not be sentenced to multiple death penalties corresponding to the nature and number of crimes they commit in furtherance of a conspiracy. Since it is the settled rule that once conspiracy is established, the act of one conspirator is attributable to all, then each conspirator must be held liable for each of the felonious acts committed as a result of the conspiracy, regardless of the nature and severity of the appropriate penalties prescribed by law. The rule on the imposition of multiple penalties where the accused is found guilty of two or more separate and distinct crimes charged in one information, the accused not having interposed any objection to the multiplicity of the charges, was enunciated in the leading case of U.S. vs. Balaba, 41 thus: Upon conviction of two or more offenses charged in the complaint or information, the prescribed penalties for each and all of such offenses may be imposed, to be executed in conformity with the provisions of article 87 of the Penal Code [now article 70 of the Revised Penal Code]. In other words, all the penalties corresponding to the several violations of law should be imposed. Conviction for multiple felonies demands the imposition of multiple penalties. The two conceptual exceptions to the foregoing rule, are the complex crime under article 48 of the Revised Penal Code and the special

complex crime (like robbery with homicide). Anent an ordinary complex crime falling under article 48, regardless of the multiplicity of offenses committed, there is only one imposable penalty — the penalty for the most serious offense applied in its maximum period. Similarly, in special complex crimes, there is but a single penalty prescribed by law notwithstanding the number of separate felonies committed. For instance, in the special complex crime of robbery with hommicide the imposible penalty is reclusion perpetua to death 42 irrespective of the number of homicides perpetrated by reason or on occasion of the robbery. In Balaba, the information charged the accused with triple murder. The accused went to trial without objection to the said information which charged him with more than one offense. The trial court found the accused guilty of two murders and one homicide but it imposed only one death penalty. In its review en consulta, this Court modified the judgment by imposing separate penalties for each of the three offenses committed. The Court, thru Mr. Justice Carson (with Mr. Justice Malcolm dissenting with respect to the imposition of two death penalties), held: The trial judge was erroneously of the opinion that the prescribed penalties for the offenses of which the accused was convicted should be imposed in accord with the provisions of article 89 of the Penal Code. That article is only applicable to cases wherein a single act constitutes two or more crimes, or when one offense is a necessary means for committing the other. (U.S. vs. Ferrer, 1 Phil. Rep., 56) It becomes our duty, therefore, to determine what penalty or penalties should have been imposed upon the accused upon conviction of the accused of three separate felonies charged in the information. There can be no reasonable doubt as to the guilt of the convict of two separate crimes of asesinato (murder) marked with the generic aggravating circumstances mentioned in the decision of the trial judge ... It follows that the death penalty must and should be imposed for each of these offenses ... Unless the accused should be acquitted hereafter on appeal of one or both the asesinatos with which he is charged in the information, it would seem to be a useless formality to impose separate penalties for each of the offenses of which he was convicted, in view of the nature of the principal penalty; but having in mind the possibility that the Chief Executive may deem it proper to grant a pardon for one or more of the offenses without taking action on the others; and having in mind also the express provisions of the above cited article 87 of the Penal Code, we deem it proper to modify the judgment entered in the court below by substituting for the penalty imposed by the trial judge under the provisions of article 89 of the Code, the death penalty prescribed by law for each of the two separate asesinatos of which he stands convicted, and the penalty of 14 years, 8 months and 1 day of reclusion temporal (for the separate crime of homicide) ... these separate penalties to be executed in accord with the provisions of article 87 of the Penal Code. (Emphasis supplied.) The doctrine in Balaba was reiterated in U.S. vs. Jamad 43 where a unanimous Court, speaking again thru Mr. Justice Carson (with Mr. Justice Malcolm concurring in the result in view of the Balaba ruling), opined: For all the offenses of which the accused were convicted in the court below, the trial judge imposed the death penalty, that is to say the penalty prescribed for the most serious crime committed, in its maximum degree, and for this purpose made use of the provisions of article 89 of the Penal Code [now article 48 of the Revised Penal Code]. But as indicated in the case of the United States vs. Balaba, recently decided wherein the controlling facts were substantially similar to those in the case at bar, "all of the penalties corresponding to the several violations of law" should have been imposed under the express provisions of article 87 [now engrafted in article 70 of the Revised Penal Code] and under the ruling in that case, the trial court erred in applying the provision of article 89 of the code. We conclude that the judgment entered in the court below should be reversed, ... and that the following separate penalties should be imposed upon him [the accused Jamad], to be executed in accordance with article 87 of the Penal Code: (1) The penalty of death for the parricide of his wife Aring; (2) the penalty of life imprisonment for the murder of Labonete; (3) the penalty of life imprisonment for the murder of Torres; (4) the penalty of 12 years and one day of cadena temporal for the frustrated murder of Taclind ... The doctrine in Balaba was reechoed in People vs. Guzman, 44 which applied the pertinent provisions of the Revised Penal Code, where this Court, after finding the accused liable as co-principals because they acted in conspiracy, proceeded to stress that where an "information charges the defendants with the commission of several crimes of murder and frustrated murder, as they failed to object to the multiplicity of the charges made in the information, they can be found guilty thereof and sentenced accordingly for as many crimes the information charges them, provided that they are duly established and proved by the evidence on record." (Emphasis supplied.) The legal and statutory justification advanced by the majority in Balaba for imposing all the penalties (two deaths and one life imprisonment) corresponding to the offense charged and proved was article 87 of the old Penal Code which provided: When a person is found guilty of two or more felonies or misdemeanors, all the penalties corresponding to the several

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violations of law shall be imposed, the same to be simultaneously served, if possible, according to the nature and effects of such penalties. in relation to article 88 of the old Code which read: When all or any of the penalties corresponding to the several violations of the law can not be simultaneously executed, the following rules shall be observed with regard thereto: 1. In the imposition of the penalties, the order of their respective severity shall be followed so that they may be executed successively or as nearly as may be possible, should a pardon have been granted as to the penalty or penalties first imposed, or should they have been served out. The essence and language, with some alterations in form and in the words used by reason of style, of the above-cited provisions have been preserved in article 70 of the Revised Penal Code which is the product of the merger of articles 87 and 88 of the old Penal Code. Article 70 provides: When the culprit has to serve two or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit; otherwise, the following rules shall be observed: In the imposition of the penalties, the order of their respective severity shall be followed so that they may be executed successively or as nearly as may be possible, should a pardon have been granted as to the penalty or penalties first imposed, or should they have been served out. Although article 70 does not specifically command, as the former article 87 clearly did, that "all the penalties corresponding to the several violations of law shall be imposed," it is unmistakable, however, that article 70 presupposes that courts have the power to impose multiple penalties, which multiple penal sanctions should be served either simultaneously or successively. This presumption of the existence of judicial power to impose all the penalties corresponding to the number and nature of the offenses charged and proved is manifest in the opening sentence of article 70: "When the culprit has to serve two or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit ..." (Emphasis supplied.) Obviously, the two or more penalties which the culprit has to serve are those legally imposed by the proper court. Another reference to the said judicial prerogative is found in the second paragraph of article 70 which provides that "in the imposition of the penalties, the order of their respective severity shall be followed ..." 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 ofjustice, has the power to impose the appropriate penal sanctions. With respect to the imposition of multiple death penalties, there is no statutory prohibition or jurisprudential injunction against it. On the contrary, article 70 of the Revised Penal Code presumes that courts have the power to mete out multiple penalties without distinction as to the nature and severity of the penalties. Moreover, our jurisprudence supports the imposition of multiple death penalties as initially advocated in Balaba and thunderously reechoed in Salazar where the accused was sentenced on appeal to thirteen (13) death penalties. Significantly, the Court in Balaba imposed upon the single accused mixed multiple penalties of two deaths and one life imprisonment. The imposition of multiple death penalties is decried by some as a useless formality, an exercise in futility. It is contended, undeniably enough, that a death convict like all mortals, has only one life to forfeit. And because of this physiological and biological attribute of man, it is reasoned that the imposition of multiple death penalties is impractical and futile because after the service of one capital penalty, the execution of the rest of the death penalties will naturally be rendered impossible. The foregoing opposition to the multiple imposition of death penalties suffers from four basic flaws: (1) it fails to consider the legality of imposing multiple capital penalties; (2) it fails to distinguish between imposition of penalty and service of sentence; (3) it ignores the fact that multiple death sentences could be served simultaneously; and (4) it overlooks the practical merits of imposing multiple death penalties. The imposition of a penalty and the service of sentence are two distinct, though related, concepts. The imposition of the proper penalty or penalties is determined by the nature, gravity and number of offenses charged and, proved, whereas service of sentence is determined by the severity and character of the penalty or penalties imposed. In the imposition of the proper penalty or penalties, the court does not concern itself with the possibility or practicality of the service of the sentence, since actual service is a contingency subject to varied factors like successful escape of the convict, grant of executive clemency or natural death of the prisoner. All that go into the imposition of the proper penalty or penalties, to reiterate, are the nature, gravity and number of the offenses charged and proved and the corresponding penalties prescribed by law. Multiple death penalties are not impossible to serve because they will have to be executed simultaneously. A cursory reading of article 70 will show that there are only two modes of serving two or more (multiple) penalties: simultaneously or successively. The first rule is that two or more penalties shall be served simultaneously if the

nature of the penalties will so permit. In the case of multiple capital penalties, the nature of said penal sanctions does not only permit but actually necessitates simultaneous service. The imposition of multiple death penalties, far from being a useless formality, has practical importance. The sentencing of an accused to several capital penalties is an indelible badge of his extreme criminal perversity, which may not be accurately projected by the imposition of only one death sentence irrespective of the number of capital felonies for which he is liable. Showing thus the reprehensible character of the convict in its real dimensions, the possibility of a grant of executive clemency is justifiably reduced in no small measure. Hence, the imposition of multiple death penalties could effectively serve as a deterrent to an improvident grant of pardon or commutation. Faced with the utter delinquency of such a convict, the proper penitentiary authorities would exercise judicious restraint in recommending clemency or leniency in his behalf. Granting, however, that the Chief Executive, in the exercise of his constitutional power to pardon (one of the presidential prerogatives which is almost absolute) deems it proper to commute the multiple death penalties to multiple life imprisonments, then the practical effect is that the convict has to serve the maximum of forty (40) years of multiple life sentences. If only one death penalty is imposed, and then is commuted to life imprisonment, the convict will have to serve a maximum of only thirty years corresponding to a single life sentence. Reverting now to the case at bar, it is our considered view that the trial court correctly ruled that conspiracy attended the commission of the murders. We quote with approval the following incisive observations of the court a quo in this respect: Although, there is no direct evidence of conspiracy, the Court can safely say that there are several circumstances to show that the crime committed by the accused was planned. The following circumstances show beyond any doubt the acts of conspiracy: First, all those who were killed, Barbosa, Santos Cruz and Carriego, were Tagalogs. Although there were many Tagalogs like them confined in Building 4, these three were singled out and killed thereby showing that their killing has been planned. Second, the accused were all armed with improvised weapons showing that they really prepared for the occasion. Third, the accused accomplished the killing with team work precision going from one brigade to another and attacking the same men whom they have previously marked for liquidation and lastly, almost the same people took part in the killing of Carriego, Barbosa and Santos Cruz. It is also important to note that all the accused were inmates of brigade 4-A; that all were from either the Visayas or Mindanao except Peralta who is from Masbate and Parumog who hails from Nueva Ecija; that all were either "OXO" members or sympathizers; and that all the victims were members of the "Sigue-Sigue" gang. The evidence on record proves beyond peradventure that the accused acted in concert from the moment they bolted their common brigade, up until the time they killed their last victim, Santos Cruz. While it is true that Parumog, Larita and Luna did not participate in the actual killing of Carriego, nonetheless, as co-conspirators they are equally guilty and collectively liable for in conspiracy the act of one is the act of all. It is not indispensable that a co-conspirator should take a direct part in every act and should know the part which the others have to perform. Conspiracy is the common design to commit a felony; it is not participation in all the details of the execution of the crime. All those who in one way or another help and cooperate in the consummation of a felony previously planned are co-principals. 45 Hence, all of the six accused are guilty of the slaughter of Carriego, Barbosa and Santos Cruz — each is guilty of three separate and distinct crimes of murder. We cannot agree, however, with the trial court that evident premeditation was also present. The facts on record and the established jurisprudence on the matter do not support the conclusion of the court a quo that evident premeditation "is always present and inherent in every conspiracy." Evident premeditat ion is not inherent in conspiracy as the absence of the former does not necessarily negate the existence of the latter. 46 Unlike in evident premeditation where a sufficient period of time must elapse to afford full opportunity for meditation and reflection for the perpetrator to deliberate on the consequences of his intended deed, conspiracy arises at the very instant the plotters agree, expressly or impliedly, to commit the felony and forthwith decide to commit it. 47 This view finds added support in People vs. Custodia, 48 wherein this Court stated: Under normal conditions, where the act of conspiracy is directly established, with proof of the attendant deliberation and selection of the method, time and means of executing the crime, the existence of evident premeditation can be taken for granted. In the case before us, however, no such evidence exists; the conspiracy is merely inferred from the acts of the accused in the perpetration of the crime. There is no proof how and when the plan to kill Melanio Balancio was hatched, or what time elapsed before it was carried out; we are, therefore, unable to determine if the appellants enjoyed "sufficient time between its inception and its fulfillment dispassionately to consider and accept the consequences." (cf. People vs. Bangug, 52 Phil. 91.) In other words, there is no showing of the opportunity of reflection and the persistence in the criminal intent that characterize the aggravating circumstance of

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evident premeditation (People vs. Mendoza, 91 Phil. 58; People vs. Iturriaga, 47 Off. Gaz., [Supp to No. 12] 166; People vs. Lesada 70 Phil., 525.) Not a single extenuating circumstance could be appreciated in favor of any of the six accused, as they did neither allege nor prove any. In view of the attendance of the special aggravating circumstance of quasi-recidivism, as all of the six accused at the time of the commission of the offenses were serving sentences 49 in the New Bilibid Prison at Muntinlupa by virtue of convictions by final judgments the penalty for each offense must be imposed in its maximum period, which is the mandate of the first paragraph of article 160 of the Revised Penal Code. Viada observes, in apposition, that the severe penalty imposed on a quasi-recidivist is justified because of his perversity and incorrigibility. 50 ACCORDINGLY, the judgment a quo is hereby modified as follows: Amadeo Peralta, Andres Factora, Leonardo Dosal, Angel Parumog, Gervasio Larita and Florencio Luna are each pronounced guilty of three separate and distinct crimes of murder, and are each sentenced to three death penalties; all of them shall, jointly and severally, indemnify the heirs of each of the three deceased victims in the sum of P12,000; 51 each will pay one-sixth of the costs. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Sanchez, Castro, Angeles, Fernando and Capistrano, JJ.,concur. Zaldivar, J., is on leave. THE UNITED STATES,Plaintiff-Appellee, vs. FRANCISCO BAUTISTA, ET AL.,Defendants-Appellants. Aguedo Velarde and Pineda and Escueta, for appellants. Office of the Solicitor-General Araneta, for appellee. CARSON, J.: The appellants in this case was convicted in the Court of First Instance of Manila of the crime of conspiracy to overthrow, put down, and destroy by force the Government of the United States in the Philippine Islands and the Government of the Philippine Islands, as defined and penalized in section 4 of Act No. 292 of the Philippine Commission.chanroblesvirtualawlibrary chanrobles virtual law library The appellant Francisco Bautista was sentenced to four years' imprisonment, with hard labor, and $3,000 fine, and Aniceto de Guzman and Tomas Puzon, and each of them, to three years' imprisonment, with hard labor, and a fine of $2,000, and all and each of the said appellants to pay their proportionate share of the costs of the trial and to undergo subsidiary imprisonment in the event of insolvency and failure to pay their respective fines.chanroblesvirtualawlibrary chanrobles virtual law library The evidence of record conclusively establishes that during th e latter part of the year 1903 a junta was organized and a conspiracy entered into by a number of Filipinos, resident in the city of Hongkong, for the purpose of overthrowing the Government of the United States in the Philippine Islands by force of arms and establishing in its stead a government to be known as the Republica Universal Democratica Filipina; that one Prim Ruiz was recognized as the titular head of this conspiracy and one Artemio Ricarte as chief of the military forces to the organized in the Philippines in the furtherance of the plans of the conspirators; that toward the end of December, 1903 the said Ricarte came to Manila from Hongkong in hidding on board the steamship Yuensang; that after his arrival in the Philippines he held a number of meetings in the city of Manila and the adjoining provinces whereat was perfected the above mentioned conspiracy hatched in Hongkong that at these meetings new members were taken into the conspiracy and plans made for the enlistment of an army of revolution and the raising of money by national and private loans to carry on the campaign; that to this end bonds were issued and commissions as officers in the revolutionary army were granted to a number of conspirators, empowering the officers thus appointed to raise troops and take command thereof; and that the conspirators did in fact take the field and offered armed resistance to the constituted authorities in the Philippines, only failing in their design of overthrowing the Government because of their failure to combat successfully with the officers of the law who were sent against them and of the failure of the people to rise en masse in response to their propaganda.chanroblesvirtualawlibrary chanrobles virtual law library It further appears from the evidence that the appellant Francisco Bautista, a resident of the city of Manila, was an intimate friend of the said Ricarte; that Ricarte wrote and notified Bautista of his coming to Manila and that, to aid him in his journey, Bautista forwarded to him secretly 200 pesos; that after the arrival of Ricarte, Bautista was present, taking part in several of the above mentioned meetings whereat the plans of the conspirators were discussed and perfected, and that at one of these meetings Bautista, in answer to a question of Ricarte, assured him that the necessary preparations had been made and that he "held the people in readiness." chanrobles virtual law library It further appears that the appellant, Tomas Puzon, united with the conspirators through the agency of one Jose R. Muñoz, who was proven to have been a prime leader of the movement, in the intimate confidence of Ricarte, and by him authorized to distribute bonds and nominate and appoint certain officials, including a brigadier -general of the signal corps of the proposed revolutionary forces; that at the time when the conspiracy was being brought to a head in the city of

Manila, Puzon held several conferences with the said Muñoz whereat plans were made for the coming insurrection; that at one of these conferences Muñoz offered Puzon a commission as brigadier-general of the signal corps and undertook to do his part in organizing the troops; and that at a later conference he assured the said Muñoz that he had things in readiness, meaning thereby that he had duly organized in accordance with the terms of his commission.chanroblesvirtualawlibrary chanrobles virtual law library Puzon at the trial declared that he had never united himself with the conspirators; that he had accepted the appointment as brigadier general of the signal corps of the revolutionary forces with no intention of ever taking any further action in the matter, and merely because he did not wish to vex his friend Muñoz by refusing to do so, and that when Muñoz offered him the appointment as brigadier general he did so in "a joking tone," and that he, Puzon, did not know that Ricarte was in Manila organizing the conspiracy at that time.chanroblesvirtualawlibrary chanrobles virtual law library These statements, however (except in so far as they corroborate the testimony of Muñoz as to the fact that he had several interviews with Puzon at which plans were entered into for the advancement of the cause of the conspirators), can not be accepted as true in the light of a written statement signed by Puzon himself at the time when he was first arrested, part of which is as follows: Q. What is your name and what is your age, residence, and occupation? - A. My name is Tomas Puzon; born in Binondo in the Province of Manila; 37 years of age; married; by profession a teache r of primary and secondary schools, and residing in Calle Concepcion, No. 195, district of Quiapo.chanroblesvirtualawlibrary chanrobles virtual law library Q. Do you know Artemio Ricarte? - A. Personally I do not know him, but by name, yes.chanroblesvirtualawlibrary chanrobles virtual law library Q. Did you have any information that Ricarte was in these Islands and with what object he came here? And if you know it to be true, through whom did you get such information? - A. In the first place I had notice of his coming to the Islands as well as his object by reading the newspapers of Manila, and secondly because J. R. Muñoz told me the same on one occasion when I was in his house to visit him.chanroblesvirtualawlibrary chanrobles virtual law library Q. Did you acquire this information through any other person? - A. No, sir; I have no more information than that which I have mentioned.chanroblesvirtualawlibrary chanrobles virtual law library Q. Are you a part of his new revolution presided over by Ricarte? - A. Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library Q. What is the employment ( empleo) which you have in this organization, and who is it who invited you to join it? - A. J. R. Muñoz, who is general of division of this new organization, spoke to me with much instance, asking me to accept employment as brigadier-general, chief of signal corps, to which I, on account of his request and in view of the fact that the said Muñoz is a friend of mine from my youth, acceded; nevertheless I have organized absolutely nothing in respect to this matter.chanroblesvirtualawlibrary chanrobles virtual law library Q. Did you accept the employment and did they give you any commission for it? - A. Yes, sir; I accepted said employment and although they gave me an order to organize in my brigade I did not do it, because I had neither the confidence nor the will.chanroblesvirtualawlibrary chanrobles virtual law library Q. If you didn't have faith in the said authorization nor the will to carry out what was intrusted to you, why did you accept employment as general of the brigade? - A. I accepted it on account of friendship and not to vex a friend, but I never have the intention of fulfilling the obligations. Puzon, when on the stand in his own behalf, did not deny that he made this statement, but he attempted to explain it away by saying that when he made it he was so exited that he did not know just what he was saying. He does not allege that improper means were taken to procure the confession, and it was proven at the trial that it was freely and voluntarily made and not the result of violence, intimidation, threat, menace, or promise of reward or leniency. The accused appears to be an intelligent man and was for eighteen years a school-teacher and later a telegraph operator under the Spanish Government, and during the insurrection he held a commission as an officer in the signal corps of the revolutionary army. His confession is clear and intelligible and in no way supports his pretense that he was so excited as not to know what he was saying when he made it, and its truth and accuracy in so far it inculpates him is sustained by other evidence of record in this case.chanroblesvirtualawlibrarychanrobles virtual law library It is contended that the acceptance or possession of an appointment as an officer of the military forces of the conspiracy should not be considered as evidence against him in the light of the decisions of this court in the cases of the United States vs. Antonio de los Reyes 1 (2 Off. Gaz., 364), United States vs. Silverio Nuñez et al. 2 (3 Off. Gaz., 408), the United States vs. Eusebio de la Serna et al. 3 (3 Off. Gaz., 528), and United States vs.Bernardo Manalo et al. 4 (4 Off. Gaz., 570). But the case at bar is to be distinguished from these and like cases by the fact that the record clearly disclose that the accused actually and voluntarily accepted the apppointment in question and

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in doing so assumed all the obligations implied by such acceptance, and that the charge in this case is that of conspiracy, and the fact that the accused accepted the appointment is taken into consideration merely as evidence of his criminal relations with the conspirators. In the first of these cases - the United States vs. De los Reyes - the accused was charged with treason, and the court found that the mere acceptance of a commission by the defendant, nothing else being done either by himself or by his companions, was not an "overt act" of treason within the meaning of the law, but the court further expressly held that That state of affairs disclosed body of evidence, . . . the playing of the game of government like children, the secretaries, colonels, and captains, the pictures of flags and seals and commission, all on proper, for the purpose of duping and misleading the ignorant and the visionary . . . should not be dignified by the name of treason. In the second case - the United States vs. Nuñez et al. -- wherein the accused were charged with brigandage, the court held that, aside from the possession of commissions in an insurgent band, there was no evidence to show that it they had committed the crime and, "moreover, that it appeared that they had never united with any party of brigands and never had been in any way connected with such parties unless the physical possession of these appointments proved such relation," and that it appeared that each one of the defendants "were separately approached at different times by armed men while working in the field and were virtually compelled to accept the commissions." chanrobles virtual law library In the case of the United States vs. de la Serna et al. it was contended that de la Serna had confessed that "he was one of the members of the pulajanes, with a commission as colonel," but the court was of opinion that the evidence did not sustain a finding that such confession had in fact been made, hence the doctrine laid down in that decision, "that the mere possession of such an appointment, when it is not shown that the possessor executed some external act by the virtue of the same, does not constitute sufficient proof of the guilt of the defendant," applies only the case of Enrique Camonas, against whom the only evidence of record was "the fact that a socalled appointment of sergeant was found at his house."chanrobles virtual law library In the case of the United States vs. Bernardo Manalo et al. there was testimony that four appointments of officials in a revolutionary army were found in a trunk in the house of one Valentin Colorado, and the court in said case reaffirmed the doctrine that "the mere possession of the documents of this kind is not sufficient to convict," and held, furthermore, that there was "evidence in the case that at the time these papers were received by the appellant, Valentin Colorado, he went to one of the assistant councilmen of the barrio in which lived, a witness for the Government, showed him the envelope, and stated to him he had received these papers; that he didn't kno w what they were and requested this councilman to open them. The coucilman did not wish to do that but took the envelope and sent it to the councilman Jose Millora. We are satisfied that this envelope contained the appointments in question and that the appellant did not act under the appointment but immediately reported the receipt of them to the authorities." chanrobles virtual law library It is quite conceivable that a group of conspirators might appoint a person in no wise connected with them to some high office in the conspiracy, in the hope that such person would afterwards accept the commission and thus unite himself with them, and it is even possible that such an appointment might be forwarded in the mail or otherwise, and thus come into the possession of the person thus nominated, and that such appointment might be found in his possession, and, notwithstanding all this, the person in whose possession the appointment was found might be entirely innocent of all intention to join the conspiracy, never having authorized the conspirators to use his name in this manner nor to send such a commission to him. Indeed, cases are not unknown in the annals of criminal prosecutions wherein it has been proven that such appointments have been concealed in the baggage or among the papers of the accused persons, so that when later discovered by the officers of the law they might be used as evidence against the accused. But where a genuine conspiracy is shown to have existed as in this case, and it is proven that the accused voluntarily accepted an appointment as an officer in that conspiracy, we think that this fact may properly be taken into consideration as evidence of his relations with the conspirators.chanroblesvirtualawlibrary chanrobles virtual law library Counsel for appellants contend that the constitutional provision requiring the testimony of at least two witnesses to the same overt act, or confession in open court, to support a conviction for the crime of treason should be applied in this case, but this court has always held, in conformance with the decisions of the Federal courts of the United States, that the crime of conspiring to commit treason is a separate and distinct offense from the crime of treason, and that this constitutional provision is not applicable in such cases. ( In re Bollman, 4 Cranch, 74; U. S. vs. Mitchell, 2 Dall., 348.)chanrobles virtual law library The evidence of record does not sustain the conviction of Aniceto de Guzman. The finding of his guilt rest substantially upon his acceptance of a number of bonds from one of the conspirators, such bonds having been prepared by the conspirators for the purpose of

raising funds for carrying out the plans of the conspiracy, but it does not affirmatively appear that he knew anything of the existence of the conspiracy or that, when he received the bonds wrapped in a bundle, he knew what the contents of the bundle was, nor that ever, on any occasion, assumed any obligation with respect to these bonds. He, himself, states that when he opened the bundle and discovered the nature of the contents he destroyed them with fire, and that he never had any dealings with the conspirators in relation to the conspiracy or the object for which it was organized.chanroblesvirtualawlibrary chanrobles virtual law library We are of opinion, therefore, that the judgment and sentence before us, in so far as it affects the said Aniceto de Guzman, should be reversed, with his proportionate share of the costs of both instances de oficio, and that the said Anecito de Guzman should be acquitted of the crime with which he is charged and set a liberty forthwith, and that the judgment and sentence of the trial court, in so far as it applies to Francisco Bautista and Tomas Puzon, should be, and is hereby, affirmed, except so far as it imposes subsidiary imprisonment in the event of insolvency and failure to pay their respective fines, and, there being no authority in law of such provision, so much of the sentence as undertakes to impose subsidiary imprisonment is hereby reversed.chanroblesvirtualawlibrary chanrobles virtual law library After ten days let judgment be entered in accordance herewith, when the record will be returned to the trial court for execution. So ordered.chanroblesvirtualawlibrary chanrobles virtual law library Arellano, C.J., Torres, Johnson and Tracey, JJ., concur. Mapa, and Willard, JJ., concur as to the penalty imposed upon Bautista and dissent as to that imposed upon Puzon.

.R. No. L-23249 November 25, 1974 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CUNIGUNDA BOHOLST-CABALLERO, accused-appellant. Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Florencio Villamor and Attorney Concepcion F. Torrijos for plaintiff-appellee. Accused-appellant in her own behalf. MUÑOZ PALMA, J.:p Convicted for having killed her husband, Cunigunda BoholstCaballero seeks a reversal of the judgment of the Court of First Instance of Ormoc City finding her guilty of PARRICIDE and sentencing her "to suffer an indeterminate imprisonment of from EIGHT (8) YEARS and ONE (1) DAY of prision mayor in its medium period, as the minimum, to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of reclusion temporal in its medium period as the maximum; to indemnify the heirs of Francisco Caballero in the sum of SIX THOUSAND PESOS (P6,000.00) without subsidiary imprisonment in case of insolvency, and to pay the costs", and prays for an acquittal based on her plea of self-defense. 1 The Solicitor General however asks for the affirmance of the appealed decision predicated on the following testimonial and documentary evidence presented by the prosecution before the trial court: Cunigunda Boholst and Francisco Caballero, both at the age of twenty, were married on June 7, 1956, at a ceremony solemnized by the parish priest of the Roman Catholic Church in Ormoc City. 2 The marriage was not a happy one and before the end of the year 1957 the couple separated. Late in the evening of January 2, 1958, Francisco Caballero and two companions, namely, Ignacio Barabad and Kakong Sacay, drank "tuba" in a certain house in barrio Ipil, Ormoc City. At about midnight, Francisco Caballero and his companions proceeded home. On the way, they saw Francisco's wife, Cunigunda, standing at the corner of the yard of Igmedio Barabad Cunigunda called Francisco and when the latter approached her, Cunigunda suddenly stabbed Francisco with a knife marked by the prosecution as its Exhibit C. Francisco called for help to his two companions who upon seeing that Francisco was wounded, brought him to the St. Jude Hospital. 3 Dr. Cesar Samson, owner of the hospital, personally attended to the victim and found a "punctured wound on the left lumbar region measuring 1 inch externally" (Exhibit B). First aid was given, but because there was a need for blood transfusion and the facilities of the hospital were inadequate to provide the necessary treatment, Dr. Samson suggested that the patient be transported to Cebu City. 4 In the meantime, Cunigunda Caballero had gone to the Police Department of Ormoc City, surrendered to desk sergeant Restituto Mariveles and informed the latter that she stabbed her husband. 5 While Francisco Caballero was confined at the hospital, he was interrogated by Patrolman Francisco Covero concerning the identity of his assailant and he pointed to his wife Cunigunda. The questions propounded by Pat. Covero and the answers given by the victim were written down in a piece of paper on which the victim affixed his thumbmark (Exhibit D) in the presence of his brother, Cresencio Caballero, and another policeman, Francisco Tomada. 6 On January 4, 1958, Francisco Caballero was brought to Cebu City on board the "MV Ormoc" but the trip proved futile because the victim died at noontime of the same day from the stab wound sustained by him. 7

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Appellant, on the other hand, pleads that We discard the proof adduced by the prosecution and believe instead what she declared before the trial judge briefly summarized as follows: After her marriage to Francisco Caballero on June 7, 1956, appellant lived with her husband in the house of her parents in barrio Ipil, Ormoc City, and their marriage, although not a harmonious one, was blessed with a daughter; her married life was marked by frequent quarrels caused by her husband's "gambling, drinking, and serenading", and there were times when he maltreated and beat her; after more than a year she and her husband transferred to a house of their own, but a month had hardly passed when Francisco left her and her child, and she had to go back to live with her parents who bore the burden of supporting her and her child; in the month of November, 1957, her daughter became sick and she went to her husband and asked for some help for her sick child but he drove her away and said "I don't care if you all would die"; in the evening of January 2, 1958, she went out carolling with her friend, Crispina Barabad, and several men who played the musical instruments; at about 12:00 o'clock midnight they divided the proceeds of the carolling in the house of Crispina Barabad after which she went home, but before she could leave the vicinity of the house of Crispina, she met her husband Francisco, who upon seeing her, held her by the collar of her dress and asked her: "Where have you been prostituting? You are a son of a bitch."; she replied: "What is your business. Anyway you have already left us. You have nothing to do with us"; upon hearing these words Francisco retorted: "What do you mean by saying I have nothing to do with you. I will kill you all, I will kill you all"; Francisco then held her by the hair, slapped her face until her nose bled, and pushed her towards the ground, to keep herself from falling she held on to his waist and as she did so her right hand grasped the knife tucked inside the belt line on the left side of his body; because her husband continued to push her down she fell on her back to the ground; her husband then knelt over her, held her neck, and choked her saying. "Now is the time I can do whatever I want. I will kill you"; because she had "no other recourse" as she was being choked she pulled out the knife of her husband and thrust it at him hitting the left side of his body near the "belt line" just above his left thigh; when she finally released herself from the hold of her husband she ran home and on the way she threw the knife; in the morning of January 3, she went to town, surrendered to the police, and presented the torn and blood-stained dress worn by her on the night of the incident (see Exhibit I); Pat. Cabral then accompanied her to look for the weapon but because they could not find it the policeman advised her to get any knife, and she did, and she gave a knife to the desk sergeant which is the knife now marked as Exhibit C for the prosecution. 8 The sole question thus presented in this appeal is: did appellant stab her husband in the legitimate defense of her person? The law on self-defense embodied in any penal system in the civilized world finds justification in man's natural instinct to protect, repel, and save his person or rights from impending danger or peril; it is based on that impulse of self-preservation born to man and part of his nature as a human being. Thus, in the words of the Romans of ancient history: Quod quisque ob tutelam sui fecerit, jure suo ficisse existimetur. 9 To the Classicists in penal law, lawful defense is grounded on the impossibility on the part of the State to avoid a present unjust aggression and protect a person unlawfully attacked, and therefore it is inconceivable for the State to require that the innocent succumb to an unlawful aggression without resistance; while to the Positivists, lawful defense is an exercise of a right, an act of social justice done to repel the attack of an aggressor. 10 Our law on self-defense is found in Art. 11 of the Revised Penal Code which provides: ART. 11. Justifying circumstances. — The following do not incur any criminal liability: 1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur: First. Unlawful aggression; Second. Reasonable necessity of the means employed to prevent or repel it; Third. Lack of sufficient provocation on the part of the person defending himself. xxx xxx xxx As part of this law is the settled jurisprudence that he who seeks justification for his act must prove by clear and convincing evidence the presence of the aforecited circumstances, the rationale being that having admitted the wounding or killing of his adversary which is a felony, he is to be held criminally liable for the crime unless he establishes to the satisfaction of the court the fact of legitimate selfdefense. 11 In this case of Cunigunda Caballero, the trial court did not find her evidence clear and convincing, and gave these reasons for its conclusion: a) appellant's testimony is inherently improbable as brought out by her demonstration of the incident in question during the trial of the case; b) there was no wound or injury on appellant's body treated by any physician: c) appellant's insistence that the weapon used by her was Moro hunting knife and not Exh. C is incredible; d) she gave contradictory statements concerning the report made by her to the police authorities that she was choked by her husband; and e) her husband's abandonment of her and her

child afforded the motive behind appellant's attack. 12 We are constrained, however, to disagree with the court a quo and depart from the rule that appellate court will generally not disturb the findings of the trial court on facts testified to by the witnesses. An examination of the record discloses that the trial judge overlooked and did not give due importance to one piece of evidence which more than the testimony of any witness eloquently confirms the narration of appellant on how she happened to stab her husband on that unfortunate night. We refer to the location of the wound inflicted on the victim. Appellant's account of that fatal occurrence as given in her direct testimony follows: Q At that precise time when you were going home to the place of your parents, did any unusual incident occur? A Yes, sir. Q What was it? A At the time when I went down from the house of Crispina Barabad, when I reached near the banana hill, my husband held me. Q What happened when your husband, Francisco Caballero, held you? A He asked me from where did I prostitute myself. Q What did you answer? A I answered that I did not go (on) prostituting. I told him that I was only forced to accompany with the carolling in order to earn money for our child. Q What part of your body did your husband, Francisco Caballero, hold you? A He held me at the collar of my dress. (Witness holding the right portion of the collar of her dress.) Q After you answered Francisco, what did he do? A He said "Where have you been prostituting? You are a son of a bitch." Then I told him "What is your business. Anyway you have already left us. You have nothing to do with us." Q When Francisco heard these words, what did he do? A Francisco said "What do you mean by saying l have nothing to do with you. I will kill you all. I will kill you all." Q And then, what happened? A He held my hair and slapped my face twice. Then I staggered and my nose was bleeding. Q Do you mean to say that blood flowed out of your nose? A Yes, sir. Q After you were slapped twice and your nose begun to bleed, what happened next? A He held the front part of my dress just below the collar and pushed me towards the ground. . Q While your husband was holding your dress below the neck and tried to push you down, what did you do? A I held a part of his body in order that I would not fall to the ground. Q And then what happened? A Because I struggled hard in order that I would not fall to the ground I held his belt and that was the time I got hold of a weapon along his belt line. Q After that what happened? A He shoved my hands upward and pushed me to the ground and that was the time my hands were released. He was choking me. Q When you said your hands were released, was that before or after you were choked by Francisco Caballero? A At that time when I was about to fall to the ground that was the time I released my hands. Q When you were almost fallen to the ground, where were the hands of Francisco Caballero? A On my hair. Q You mean to say the two hands of Francisco Caballero? A One of his hands was holding my hair. The other hand pushed me. COURT: Q What hand was holding your hair? A His right hand was holding my hair while his left hand pushed me. ATTORNEY GARCIA: Q When you were fallen to the ground what happened? A While I lay prostrate on the ground and believing that I have no other recourse, while his left hand was holding my neck, I was able to take hold of the weapon from his belt line and I thrust it to him. Q What was this weapon which you were able to get from his belt line? A It was a hunting knife." (tsn. pp. 53-55, witness Cunigunda Caballero) On cross-examination, appellant was asked by the private prosecutor to show her position when she stabbed her husband and she did, and although the stenographic notes on that demonstration are very sketchy which We quote: Q Please demonstrate to this Court when you made the thrust to your husband? A When I took hold of the hunting knife I made the thrust in this manner. (Witness held the ruler with her right hand kneeled on the floor)" (tsn. p. 67, ibid) still We can get a clear picture of what appellant must have done, from the questions and answers immediately following the above quoted portion of the transcript, viz:

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Q You want to make us understand that when you thrust the weapon to the body of your husband you were lying down flat to the ground? A I was lying flat on the ground face upward. I was a little bit inclined because tried to struggle trying to get away from the hold of my husband. Q You want to make us understand that your back was touching the ground when you made the thrust to your husband? A Yes, sir. COURT: Q Where were you kneeled by your, husband? A On my right thigh. (ibid; emphasis supplied) Thus, with her husband kneeling over her as she lay on her back on the ground and his hand choking her neck, appellant, as she said, had no other recourse but to pull out the knife inserted at the left side of her husband's belt and plunge it at his body hitting the left back portion just below the waist, described by the attending physician, Dr. Cesar Samson, as the left lumbar region. The fact that the blow landed in the vicinity from where the knife was drawn is a strong indication of the truth of appellant's testimony, for as she lay on the ground with her husband bent over her it was quite natural for her right hand to get hold of the knife tucked in the left side of the man's belt and thrust it at that section of the body nearest to her hand at the moment. We do not agree with the trial judge's observation that as demonstrated by the accused it was physically impossible for her to get hold of the weapon because the two knees of her husband were on her right thigh "which would have forced her to put her right elbow towards the ground"(see p. 9 of Decision), for even if it were true that the two knees of Francisco were on his wife's right thigh, however, there is nothing in the record to show that the right arm of the accused was held, pinned down or rendered immobile, or that she pressed her elbow to the ground, as conjectured by the trial judge, in such a manner that she could not reach for the knife. On the contrary, as indicated earlier, accused testified and so demonstrated that she was lying flat on her back, her husband kneeling over her and her right arm free to pull out the knife and strike with it. The trial judge also referred the a demonstration made by appellant of that portion of her testimony when she was held by the hair and pushed down to the ground, and His Honor commented that "(S)he could not be falling to the ground, as shown to the Court by her, considering the fact that the pushing was to and fro as shown in her demonstration." (p. 8, Decision) The trial judge, however, failed to consider that it is humanly impossible to have an exact and accurate reproduction or reenactment of an occurrence especially if it involves the participation of persons other than the very protagonists of the incident being re-enacted. In this particular instance appellant was asked by the private prosecutor to show how she was pushed down by her husband, and her demonstration is described in the stenographic transcript as follows: Q Please demonstrate to this Court the position of your husband and you while your husband held your hair. A He did this way. (Witness held the hair of the Court Interpreter with his left hand and his right hand held the right shoulder of the Interpreter and pulled the Interpreter to and fro. The Interpreter represented as the accused and the accused as the deceased.) Q Where were your two hands? A My two hands held his waist line. (tsn. 66, witness Cunigunda Caballero; emphasis supplied) In that demonstration, accused represented the victim while she in turn was impersonated by the court interpreter, and so it was difficult if not impossible for the two to give an accurate reenactment considering that the accused assumed a role not hers during the actual incident and the court interpreter played a part which was not truly his. At any rate, the accused showed how one hand of her husband held her hair while the other pushed her down by the shoulder, and to portray how she in turn struggled and tried to push back her husband to keep herself from falling, she "pulled the interpreter (representing the accused) to and fro." The fact is that Francisco succeeded in forcing appellant down to the ground as portrayed by the latter when, following the foregoing demonstration, she was asked by the private prosecutor to show how she stabbed her husband — a matter which is discussed in pages 8 and 9 of this Decision. It is this particular location of the wound sustained by the victim which strongly militates against the credibility of the lone prosecution witness, Ignacio Barabad. This witness declared that on that night when husband and wife met on the road, Cunigunda called Francisco and when the latter was near, she immediately stabbed him. If that were true, that is, husband and wife were standing face to face at a distance of one-half meter when the stabbing occurred (tsn. p. 11, witness Ignacio Barabad), it would have been more natural and probable for the weapon to have been directed towards the front part of the body of the victim such as his abdomen or chest, rather than at his back, left side, just above the left thigh. In cases such as the one now before Us where there are directly conflicting versions of the incident object of the accusation, the Court in its search for the truth perforce has to look for some facts or circumstances which can be used as valuable aids in evaluating the probability or improbability of a testimony, for after all the element of probability is always involved in weighing testimonial evidence 13, so much so that when a court as a judicial fact-finder

pronounces judgment that a set of facts constitute the true happening it does so not of its own personal knowledge but as the result of an evaluating process of the probability or improbability of a fact sought to be proved. Thus, in People vs. Aquino, L-32390, December 28, 1973, a decision of the First Division of this Court penned by Chief Justice Querube C. Makalintal, the plea of self-defense of the accused-appellant was sustained on the basis of certain "physical and objective circumstances" which proved to be of "decisive importance" in ascertaining the veracity of the plea of self-defense, to wit: the location of the wound on the right side of the throat and right arm of the deceased, the direction of the trajectories of the bullets fired by the accused, the discovery of bloodstains at the driver's seat, the finding of the dagger and scabbard of the deceased, and so on. 14 In the case of appellant Cunigunda Caballero, We find the location of the fatal wound as a valuable circumstance which confirms the plea of self-defense. Another, is the lack of motive of appellant in attacking and killing her husband on that particular night of January 2. Although it is the general rule that the presence of motive in the killing of a person is not indispensable to a conviction especially where the identity of the assailant is duly established by other competent evidence or is not disputed, as in this case, nonetheless, the absence of such motive is important in ascertaining the truth as between two antagonistic theories or versions of the killings. 15 We disagree with the statement of the court a quo that appellant's motive for killing her husband was his abandonment of her and his failure to support her and her child. While appellant admitted in the course of her testimony that her marriage was not a happy one, that she and her husband separated in the month of October, 1957, and since then she and her child lived with her parents who supported them, nevertheless she declared that notwithstanding their separation she still loved her husband (tsn. p. 59, cross-examination of appellant). As a matter of fact, appellant had been living with her parents for several months prior to the incident in question and appeared resigned to her fate. Furthermore, there is no record of any event which occurred immediately prior to January 2 which could have aroused her feelings to such a degree as to drive her to plan and carry out the killing of her husband. On the other hand, it was Francisco Caballero who had a reaso n for attacking his wife, Cunigunda. Meeting his wife unexpectedly at past midnight on the road, Francisco reacted angrily, and suspecting that she was out for some bad purpose he held her by the collar of her dress and said: "Where have you been prostituting? You are a son of a bitch." This was followed by a slapping on the face until Cunigunda's nose bled, pulling of her hair, pushing her down to the ground, and strangling her — all of which constituted the unlawful aggression against which appellant had to defend herself. Next to appellant's lack of motive for killing her husband, is her conduct shortly after the occurrence. As soon as the sun was up that morning of January 3 (the stabbing occurred past midnight of January 2), Cunigunda went to the city and presented herself at the police headquarters where she reported that she stabbed her husband and surrendered the blood-stained dress she wore that night. On this point, the trial judge stated that appellant made contradictory statements in her testimony concerning the report made by her to the police authorities, for while at the start she declared that she did not report the "choking by her husband", she later changed her testimony and stated that she did relate that fact. (p. 10, Decision) We have gone over the stenographic transcript of the testimony of appellant on direct examination and nowhere is there a positive and direct statement of hers that she did not report that she was choked by her husband. What the trial judge asked of appellant was wheth er or not she told the police about the fist mark on her face and her answer was "No, sir, I forgot." (tsn. p. 55, supra) And on appellant's cross-examination, there was no question propounded and therefore there was no answer given on the subject-matter of appellant's report to the police concerning the incident except for the following: COURT: Q Did you show that dress to the police authorities the following day? A I was not able to wear that, Your Honor, because it was torn out. Q You did not bring that to the police authorities? A I showed it to the police authorities, and they told me to keep it, not to touch it. (Tsn. p. 65, ibid) We do not see, therefore, the alleged contradiction in appellant's testimony which was singled out by His Honor as one of his reasons for discrediting her plea of self-defense. That appellant made it clear to the police that she stabbed her husband because he attacked her is confirmed by no less than the prosecution witness, Patrolman Restituto Mariveles, who was on duty at the desk when appellant arrived at the police headquarters. This witness on cross-examination declared: Q And she also told you that on that night previous to the incident her husband Francisco Caballero beat her up, is that right? A She told me that she was met on the way by her husband immediately after carolling and she was manhandled by her husband and when she was struggling to get loose from her husband she happened to take hold of a knife that was placed under the belt of her husband and because she was already half conscious she did not

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know that she was able to thrust said knife to the stomach of her husband. (tsn. p. 23, witness R. Mariveles) It is indeed regrettable that the statements made by appellant to the police upon her surrender were not taken down in writing to serve as a faithful and reliable account of her report, nevertheless, We are satisfied by the fact, which is not disputed, that of her own accord appellant went to the police authorities early in the morning o f January 3, informed Policeman Mariveles that she stabbed her husband because he manhandled her which rendered her "halfconscious", and brought and showed the dress she wore during the incident which was torn by the collar and with blood stains due to the bleeding of her nose. Another policeman, Joventino de Leon, who at the time was property custodian of the Ormoc City police, corroborated appellant's testimony concerning the dress marked Exhibit 1 for the defense. (tsn. p. 70 witness J. de Leon) If ther e was no clear and positive statement in appellant's testimony either on direct or cross examination that she informed the police that she was choked by her husband, it was because, as We noted, no question was propounded to her on that point. While We are on this subject of appellant's surrender, mention is to be made of the knife marked as Exhibit C for the prosecution. In her testimony, appellant stated that Exhibit C was not the knife actually used by her in stabbing her husband because the true weapon was her husband's Moro hunting knife with a blade of around six inches which she threw away immediately after the incident; that when she was asked by Pat. Mariveles to look for the weapon and she could not find it, she was advised by policeman Cabral who helped her in the search to get any knife and surrender it to the desk officer and so she took the knife Exhibit C and presented it to Pat. Mariveles. (tsn. appellant pp. 56-57, 60) This testimony of appellant was taken against her by the court a quo which held that her declaration could not have been true. We find however no strong reason for disbelieving the accused on this point. Appellant does not deny that she turned over Exhibit C to Pat. Mariveles as the knife with which she stabbed her husband but she claims that she did so upon advise of another policeman, Pat. Cabral, and it is quite significant that the latter was not called upon by the prosecution to refute such declaration. There is sincerity in appellant's attempt to rectify a misstatement made by her to Pat. Mariveles and We are inclined to believe and in fact We do believe that the fatal weapon must have had indeed a blade of around six inches as stated by appellant for it to penetrate through the left lumbar region to the victim's large intestine and cause the discharge of fecal matter (tsn. Dr. C. Samson, p. 6) All the elements of self-defense are indeed present in the instant case. The element of unlawful aggression has been clearly established as pointed out above. The second element, that is, reasonable necessity for the means employed is likewise present. Here we have a woman who being strangled and choked by a furious aggressor and rendered almost unconscious by the strong pressure on her throat had no other recourse but to get hold of any weapon within her reach to save herself from impending death. Early jurisprudence of this Court has followed the principle that the reasonable necessity of the means employed in self-defense does not depend upon the harm done but rests upon the imminent danger of such injury. (U.S. vs. Paras, 1907, 9 Phil. 367, citing Decision of Dec. 22, 1887) And so the fact that there was no visible injury caused on the body of the appellant which necessitated medical attention, a circumstance noted by the trial court, is no ground for discrediting self-defense; what is vital is that there was imminent peril to appellant's life caused by the unlawful aggression of her husband. The knife tucked in her husband's belt afforded appellant the only reasonable means with which she could free and save herself from being strangled and choked to death. What this Court expressed in the case of People vs. Lara, 1925, 48 Phil. 153, 160, is very true and applicable to the situation now before Us, and We quote: It should be borne in mind that in emergencies of this kind human nature does not act upon processes of formal reason but in obedience to the instinct of self-preservation; and when it is apparent, as in this case, that a person has reasonably acted upon this instinct, it is the duty of the courts to sanction the act and to hold the actor irresponsible in law for the consequences. 16 Equally relevant is the time-honored principle: Necessitas Non habet legem. Necessity knows no law. The third element of self-defense is lack of sufficient provocation on the part of the person defending himself.Provocation is sufficient when it is proportionate to the aggression, that is, adequate enough to impel one to attack the person claiming selfdefense. 17 Undoubtedly appellant herein did not give sufficient provocation to warrant the aggression or attack on her person by her husband, Francisco. While it was understandable for Francisco to be angry at his wife for finding her on the road in the middle of the night, however, he was not justified in inflicting bodily punishment with an intent to kill by choking his wife's throat. All that appellant did was to provoke an imaginary commission of a wrong in the mind of her husband, which is not a sufficient provocation under the law of self-defense. Upon being confronted by her husband for being out late at night, accused gave a valid excuse that she went carolling with some friends to earn some money for

their child. January 2 was indeed within the Christmas season during which by tradition people carol from house to house and receive monetary gifts in a Christian spirit of goodwill. The deceased therefore should have given some consideration to his wife's excuse before jumping to conclusions and taking the extreme measure of attempting to kill his wife. IN VIEW OF THE ABOVE CONSIDERATIONS, We find that accusedappellant acted in the legitimate defense of her person, and We accordingly set aside the judgment of conviction and ACQUIT her with costs de oficio. So Ordered. Makalintal, C.J, Teehankee, Makasiar and Esguerra, JJ., concur. Castro, J, is on leave. G.R. No. L-162 April 30, 1947 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DIOSCORO ALCONGA and ADOLFO BRACAMONTE, defendants. DIOSCORO ALCONGA, appellant. Jose Avanceña for appellant. Assistant Solicitor General Kapunan, Jr. and Solicitor Barcelona for appellee. HILADO, J.: On the night of May 27, 1943, in the house of one Mauricio Jepes in the Municipality of San Dionisio, Province of Iloilo several persons were playing prohibited games (t.s.n., pp. 95, 125). The deceased Silverio Barion was the banker in the game of black jack, and Maria de Raposo, a witness for the prosecution, was one of those playing the game (t.s.n., p. 95). Upon invitation of the said Maria de Raposo, the accused Dioscoro Alconga joined her as a partner, each of them contributing the sum of P5 to a common fund (t.s.n., pp. 95, 125). Maria de Raposo played the game while the said accused posted himself behind the deceased, acting as a spotter of the cards of the latter and communicating by signs to his partner (t.s.n., pp. 95-96, 126). The deceased appears to have suffered losses in the game because of the team work between Maria de Raposo and the accused Alconga (t.s.n., pp. 96, 126). Upon discovering what the said accused had been doing, the deceased became indignant and expressed his anger at the former (t.s.n., pp. 96, 126). An exchange of words followed, and the two would have come to blows but for the intervention of the maintainer of the games (t.s.n., p. 96). In a fit of anger, the deceased left the house but not before telling the accused Alconga, "tomorrow morning I will give you a breakfast" (t.s.n., p. 96), which expression would seem to signify an intent to inflict bodily harm when uttered under such circumstances. The deceased and the accused Alconga did not meet thereafter until the morning of May 29, 1943, when the latter was in the guardhouse located in the barrio of Santol, performing his duties as "home guard" (t.s.n., pp. 98-100). While the said accused was seated on a bench in the guardhouse, the deceased came along and, addressing the former, said, "Coroy, this is your breakfast," followed forthwith by a swing of his "pingahan" (t.s.n., p. 100). The accused avoided the blow by falling to the ground under the bench with the intention to crawl out of the guardhouse (t.s.n., pp. 100-101). A second blow was given but failed to hit the accused, hitting the bench instead (t.s.n., p. 101). The accused manage to go out of the guardhouse by crawling on his abdomen (t.s.n., p. 101). While the deceased was in the act of delivering the third blow, the accused, while still in a crawling position (t.s.n., p. 119), fired at him with his revolver, causing him to stagger and to fall to the ground (t.s.n., p. 101). Rising to his feet, the deceased drew forth his dagger and directed a blow at the accused who, however, was able to parry the same with his bolo (t.s.n., pp. 101-102). A hand-to-hand fight ensued (t.s.n., p. 102). Having sustained several wounds, the deceased ran away but was followed by the accused (t.s.n., p. 6). After running a distance of about 200 meters (t.s.n., pp. 21, 108), the deceased was overtaken, and another fight took place, during which the mortal bolo blow — the one which slashed the cranium — was delivered, causing the deceased to fall to the ground, face downward, besides many other blows deliver right and left (t.s.n., pp. 6, 28). At this instant, the other accused, Adolfo Bracamonte, arrived and, being the leader of the "home guards" of San Dionisio, placed under his custody the accused Alconga with a view to turning him over to the proper authorities (t.s.n., pp. 102 105). On their way to San Dionisio, the two accused were stopped by Juan Collado, a guerrilla soldier (t.s.n., pp. 80, 104). Adolfo Bracamonte turned over Alconga to Collado who in turn took him to the headquarters (t.s.n., pp. 81, 104). In the afternoon of the same day, Collado delivered Alconga to Gregorio Barredo, a municipal policeman of San Dionisio, together with the weapons used in the fight: a revolver, a bolo, and a dagger (t.s.n., pp. 81, 104). The injuries sustained by the deceased were described by police sergeant Gil G. Estaniel as follows: P. ¿Y que hicieron ustedes cuando ustedes vieron a Silverio Barion? — R. Examine sus heridas. P. ¿Donde ha encontrado usted las heridas, en que parte del cuerpo? — R. En la cabeza, en sus brazos, en sus manos, en la mandibula inferior, en la parte frente de su cuello, en su pecho derecho, y tambien en el pecho izquierdo, y su dedo meñique habia volado, se habia cortado, y otras perqueñas heridas mas. P. ¿En la cabeza, vio usted heridas? — R. Si, señor.

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P. ¿Cuantas heridas? — R. Una herida en la region parietal derecha y una contusion en la corona de la cabeza. P. ¿Vio usted el craneo? — R. En la craneo llevaba una herida, en quel el craneo se ha roto. P. ¿En el pecho, herida ha encontrado usted? — R. Debajo de la tetilla derecha, una herida causada por una bala. P. ¿Y otras heridas en el pecho, puede usted decir que clase de heridas? — R. Heridas causadas por bolo. P. ¿Como de grande acquellas heridas en el pecho? — R. No recuerdo la dimension de las heridas en el pecho. P. ¿Pero en la cabeza? — R. La cabeza se rajo por aquella herida causada por el bolo. (T.s.n., p. 25.) It will be observed that there were two stages in the fight betw een appellant and the deceased. The initial stage commenced when the deceased assaulted appellant without sufficient provocation on the part of the latter. Resisting the aggression, appellant managed to have the upper hand in the fight, inflicting several wounds upon the deceased, on account of which the latter fled in retreat. From that moment there was no longer any danger to the life of appellant who, being virtually unscathed, could have chosen to remain where he was. Resolving all doubts in his flavor, and considering that in the first stage the deceased was the unlawful aggressor and defendant had not given sufficient provocation, and considering further that when the deceased was about to deliver the third blow, appellant was still in a crawling position and, on that account, could not have effectively wielded his bolo and therefore had to use his "paltik" revolver — his only remaining weapon — ; we hold that said appellant was then acting in self-defense. But when he pursued the deceased, he was no longer acting in selfdefense, there being then no more aggression to defend against, the same having ceased from the moment the deceased took to his heels. During the second stage of the fight appellant inflicted many additional wounds upon the deceased. That the deceased was not fatally wounded in the first encounter is amply shown by the fact that he was still able to run a distance of some 200 meters before being overtaken by appellant. Under such circumstances, appellant's plea of self-defense in the second stage of the fight cannot be sustained. There can be no defense where there is no aggression. Although the defendant was not the aggressor, he is not exempt from criminal liability for the reason that it is shown that he struck several blows, among them the fatal one, after the necessity for defending himself had ceased, his assailant being then in retreat. Therefore one of the essential ingredients of self-defense specified in No. 4, article 8 of the Penal Code is wanting (now article 11, case No. 1, Revised Penal Code). (United States vs. Dimitillo, 7 Phil., 475, 476; words in parenthesis supplied.) . . . Even if it be conceded for the moment that the defendants were assaulted by the four (offended parties), the right to kill in self defense ceased when the aggression ceased; and when Toledo and his brothers turned and ran, without having inflicted so much as a scratch upon a single one of the defendants, the right of the defendants to inflict injury upon them ceased absolutely. They had no right to pursue, no right to kill or injure. A fleeing man is not dangerous to the one from whom he flees. When danger ceases, the right to injure ceases. When the aggressor turns and flees, the one assaulted must stay his hand. (United States vs. Vitug, 17 Phil., 1, 19; emphasis supplied.) Upon the foregoing facts, we hold that appellant's guilt of the crime of homicide has been established beyond reasonable doubt. The learned trial court appreciated in his favor of two mitigating circumstances: voluntary surrender and provocation on the part of the deceased. The first was properly appreciated; the second was not, since it is very clear that from the moment he fled after the first stage of the fight to the moment he died, the deceased did not give any provocation for appellant to pursue much less further to attack him. The only provocation given by him was imbibed in, and inseparable from, the aggression with which he started the first stage of the fight. The evidence, as weighed and appreciated by the learned trial judge, who had heard, seen and observed the witnesses testify, clearly shows that said stage ended with the flight of the deceased after receiving a bullet wound in his right breast, which caused him to stagger and fall to the ground, and several bolo wounds inflicted by appellant during their hand-to-hand fight after both had gotten up. The learned trial judge said: The evidence adduced by the prosecution and the defense in support of their respective theories of the case vary materially on certain points. Some of these facts have to be admitted and some have to be rejected with the end in view of arriving at the truth. To the mind of the Court, what really happened in the case at bar, as can de disclosed by the records, which lead to the killing of the deceas ed on that fatal morning of May 29, 1945 (should be 1943), is as follows: xxx xxx xxx In the morning of May 29, 1943, while Dioscoro Alconga was alone in the guardhouse performing his duties as guard or "ronda" in Barrio Santol, the deceased Silverio Barion passed by with a "pingahan". That was the first time the deceased and the accused Alconga had met since that eventful night of May 27th in the gambling house of Gepes. Upon seeing the accused Alconga, who was then seated in the guardhouse, the deceased cried: "Coroy, this is now the breakfast!" These words of warning were immediately followed by two

formidable swings of the "pingahan" directed at the accused Alconga which failed to hit him. Alconga was able to avoid the blows by falling to the ground and crawling on his abdomen until he was outside the guardhouse. The deceased followed him and while in the act of delivering the third blow, Dioscoro Alconga fired at him with his revolver thereby stopping the blow in mid-air. The deceased fell to the ground momentarily and upon rising to his feet, he drew forth a dagger. The accused Alconga resorted to his bolo and both persons being armed, a hand-to-hand fight followed. The deceased having sustained several wounds from the hands of Alconga, ran away with the latter close to his heels. The foregoing statement of the pertinent facts by the learned trial judge is in substantial agreement with those found by us and narrated in the first paragraphs of this decision. Upon those facts the question arises whether when the deceased started to run and flee, or thereafter until he died, there was any provocation given by him from appellant to pursue and further to attack him. It will be recalled, to be given with, that the first stage of the fight was provoked when the deceased said to appellant "Cory, this is now the breakfast," or "This is your breakfast," followed forthwith by a swing or two of his "pingahan." These words without the immediately following attack with the "pingahan" would not have been uttered, we can safely assume, since such an utterance alone would have been entirely meaningless. It was the attack, therefore, that effectively constituted the provocation, the utterance being, at best, merely a preclude to the attack. At any rate, the quoted words by themselves, without the deceased's act immediately following them, would certainly not have been considered a sufficient provocation to mitigate appellant's liability in killing or injuring the deceased. For provocation in order to be a mitigating circumstance must be sufficient and immediately preceding the act. (Revised Penal Code, article 13, No. 4.) Under the doctrine in United States vs. Vitug, supra, when the deceased ran and fled without having inflicted so much as a scratch upon appellant, but after, upon the other hand, having been wounded with one revolver shot and several bolo slashes, as aforesaid, the right of appellant to inflict injury upon him, ceased absolutely — appellant "had no right to pursue, no right to kill or injure" said deceased — for the reason that "a fleeing man is not dangerous to the one from whom he flees." If the law, as interpreted and applied by this Court in the Vitug case, enjoins the victorious contender from pursuing his opponent on the score of self-defense, it is because this Court considered that the requisites of self-defense had ceased to exist, principal and indispensable among these being the unlawful aggression of the opponent (Rev. Penal Code, article 11, No. 1; 1 Viada, 5th ed., 173). Can we find under the evidence of record that after the cessation of said aggression the provocation thus involved therein still persisted, and to a degree sufficient to extenuate appellant's criminal responsibility for his acts during the second stage of the fight? Appellant did not testify nor offer other evidence to show that when he pursued the deceased he was still acting under the impulse of the effects of what provocation, be it anger, obfuscation or the like. The Revised Penal Code provides: ART. 13. Mitigating circumstances: xxx xxx xxx 4. That sufficient provocation or threat on the part of the offended party immediately preceded the act. It is therefore apparent that the Code requires for provocation to be such a mitigating circumstance that it not only immediately precede the act but that it also be sufficient. In the Spanish Penal Code, the adjective modifying said noun is "adecuada" and the Supreme Court of Spain in its judgment of June 27, 2883, interpreted the equivalen t provision of the Penal Code of that country, which was the source of our own existing Revised Penal Code, that "adecuada" means proportionate to the damage caused by the act. Viada (Vol. 11, 5th ed., p. 51) gives the ruling of that Supreme Court as follows: El Tribunal Supremo ha declarado que la provocacion o amenaza que de parte del ofendido ha de preceder para la disminucion de la responsabilidad criminal debe ser proporcionada al daño que se cause, lo cual no concurre a favor del reo si resulta que la unica cuestion que hubo fue si en un monton de yeso habia mas omenos cantidad, y como perdiera la apuesta y bromeando dijera el que la gano que beberia vino de balde, esa pequeña cuestion de amor propio no justificaba en modo alguno la ira que le impelio a herir y matar a su contrario. (S. de 27 de junio de 1883, Gaceta de 27 de septiembre.) Justice Albert, in his commentaries on the Revised Penal Code, 1946 edition, page 94, says: "The provocation or threat must be sufficient, which means that it should be proportionate to the act committed and adequate to stir one to its commission" (emphasis supplied). Sufficient provocation, being a matter of defense, should, like any other, be affirmatively proven by the accused. This the instant appellant has utterly failed to do. Any way, it would seem selfevident that appellant could never have succeeded in showing that whatever remained of the effects of the deceased's aggression, by way of provocation after the latter was already in fight, was proportionate to his killing his already defeated adversary. That provocation gave rise to a fight between the two men, and may be said, not without reason, to have spent itself after appellant had shot the deceased in his right breast and caused the latter to fall to

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the ground; or — making a concession in appellant's favor — after the latter had inflicted several bolo wounds upon the deceased, without the deceased so much as having scratched his body, in their hand-to-hand fight when both were on their feet again. But if we are to grant appellant a further concession, under the view most favorable to him, that aggression must be deemed to have ceased upon the flight of the deceased — upon the end of the first stage of the fight. In so affirming, we had to strain the concept i n no small degree. But to further strain it so as to find that said aggression or provocation persisted even when the deceased was already in flight, clearly accepting defeat and no less clearly running for his life rather than evincing an intention of returning to the fight, is more than we can sanction. It should always be remembered that "illegal aggression is equivalent to assault or at least threatened assault of an immediate and imminent kind. Agresion ilegitima. — Agresion vale tanto como acometimiento. Para que exista el derecho de defensa es preciso que se nos acometa, que se nos ataque, o cuando menos, que se nos amenace de atacarnos de un modo inmediato e inminente; v. gr., desenvainando el puñal para herirnos con el o apuntando la pistola para dispararla contra nosotros. (Viada, 5. a edicion, 173.) After the flight of the deceased there was clearly neither an assault nor a threatened assault of the remotest kind. It has been suggested that when pursuing his fleeing opponent, appellant might have thought or believed that said opponent was going to his house to fetch some other weapon. But whether we consider this as a part or continuation of the self-defense alleged by appellant, or as a separate circumstance, the burden of proof to establish such a defense was, of course, upon appellant, and he has not so much as attempted to introduce evidence for this purpose. If he really thought so, or believed so, he should have positively proven it, as any other defense. We can not now gratuitously assume it in his behalf. It is true that in the case of United States vs. Rivera (41 Phil., 472, 474), this Court held that one defending himself or his property from a felony violently or by surprise threatened by another is not obliged to retreat but may pursue his adversary until he has secured himself from danger. But that is not this case. Here from the very start appellant was the holder of the stronger and more deadly weapons — a revolver and a bolo, as against a piece of bamboo called "pingahan" and a dagger in the possession of the deceased. In actual performance appellant, from the very beginning, demonstrated his superior fighting ability; and he confirmed it when after the deceased was first felled down by the revolver shot in right breast, and after both combatants had gotten up and engaged in a hand-tohand fight, the deceased using his dagger and appellant his bolo , the former received several bolo wounds while the latter got through completely unscathed. And when the deceased thereupon turned and fled, the circumstances were such that it would be unduly stretching the imagination to consider that appellant was still in danger from his defeated and fleeing opponent. Appellant preserved his revolver and his bolo, and if he could theretofore so easily overpower the deceased, when the latter had not yet received any injury, it would need, indeed, an unusually strong positive showing — which is completely absent from the record — to persuade us that he had not yet "secured himself from danger" after shooting his weakly armed adversary in the right breast and giving him several bolo slashes in different other parts of his body. To so hold would, we believe, be unjustifiably extending the doctrine of the Rivera case to an extreme not therein contemplated. Under article 249, in relation with article 64, No. 2, of the Revised Penal Code, the crime committed by appellant is punishable by reclusion temporal in its minimum period, which would be from 12 years and 1 day to 14 years and 8 months. However, in imposing the penalty, we take into consideration the provisions of section 1 of the Indeterminate Sentence Law (Act No. 4103), as amended by Act No. 4225. Accordingly, we find appellant guilty of the aforesaid crime of homicide and sentence him to an indeterminate penalty of from 6 years and 1 day of prision mayor to 14 years and 8 months of reclusion temporal, to indemnify the heirs of the deceased in the sum of P2,000, and to pay the costs. As thus modified, the judgment appealed from is hereby affirmed. So ordered. Pablo, Bengzon, Briones, Hontiveros, Padilla, and Tuason, JJ., concur. MORAN, C.J.: I certify that Mr. Justice Feria concurs in this decision.

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