[G.R. NO. 173479 : July 12, 2007]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JUAN CABBAB, JR., Accused-Appellant.

Before the Court on automatic review is the decision1 dated February 22, 2006 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00968 which affirmed, with modification, an earlier decision of the Regional Trial Court (RTC) of Bangued, Abra, Branch 2, in Criminal Case No. 687, finding appellant Juan Cabbab, Jr., guilty beyond reasonable doubt of the crime of Robbery with Homicide and Attempted Murder and sentencing him to suffer the penalty of reclusion perpetua.

Pursuant to our pronouncement in People v. Mateo2 which modified the provisions of the Rules of Court insofar as they provide for direct appeals from the RTC to this Court in cases where the penalty imposed by the trial court is death, reclusion perpetua or life imprisonment, this case was earlier3 referred to the CA, whereat it was docketed as CA-G.R. CR-H.C. No. 01978, for appropriate action and disposition.

The Case

In the court of origin, appellant Juan Cabbab, Jr., along with his cousin-in-law Segundino Calpito, was charged with the crimes of Double Murder and Attempted Murder with Robbery in an Information4 alleging, as follows:

That on or about April 22, 1988, in Sitio Kayawkaw, Barangay Kimmalasag, Municipality of San Isidro, Province of Abra, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with the intent to kill, treachery and evident premeditation, while armed with a firearm (not-recover), conspiring, confederating and mutually helping one another, did then and there, willfully, unlawfully and feloniously assault, attack and shot from ambush WINNER AGBULOS and EDDIE QUINDASAN, consequently inflicting thereby multiple gunshot wounds on the different parts of their bodies, killing Winner Agbulos on the spot and causing the death of Eddie Quindasan shortly thereafter, then and there willfully, unlawfully and feloniously, with intent to kill, shot William Belmes, said accused having commenced the execution of Murder by overt acts but were unable to perform all the acts of execution, which would have produced the crime of Murder as a consequence thereof, due to alertness of victim William Belmes to roll and poor marksmanship of the accused thus prevented his death, then and there willfully and unlawfully and feloniously, with the intent of gain, take, steal and carry away the money of Winner Agbulos in the amount of Twelve Thousand Pesos (P12,000.00), Philippine currency..

ALL CONTRARY TO LAW with the aggravating circumstance of: (1) uninhabited place.

On arraignment, appellant Juan Cabbab, Jr. and accused Segundino Calpito separately entered their pleas of "Not Guilty" to the crimes charged. Thereafter, trial on the merits ensued, in the course of which the prosecution presented the oral testimonies of M/Sgt. Godofredo Tubadeza, a police investigator at Camp Villamor, Bangued, Abra; PO William Belmes, a member of the Integrated National Police at the Villaviciosa Police Station; Vidal Agbulos, father of the victim Winner Agbulos; Dra. Leona Garcia-Beroña, medico-legal officer who conducted an autopsy on the body of Winner Agbulos; and Dr. Godofreco Gasa, a physician at the Abra Provincial Hospital.

For its part, the defense presented the appellant himself; accused Segundino Calpito; and George de Lara, a Forensic Chemist of the National Bureau of Investigation (NBI).

The Evidence

The People's version of the incident is succinctly summarized by the Office of the Solicitor General (OSG) in its Appellee's Brief,5 to wit:

In the morning of 22 April 1988, father and son Vidal Agbulos and Winner Agbulos, together with Eddie Quindasan, Felipe Abad and Police Officer (PO) William Belmes, went to Barangay Kimmalasag, San Isidro, Abra to attend a "fiesta" celebration.

Upon arrival in the area, they found out that the fiesta celebration was already over, thus, they decided to go home in Villaviciosa, Abra. Since it was already lunchtime, the group took their lunch at Sitio Turod, located in the same area of Barangay Kimmalasag. After taking their lunch and on their way home, they were met by accused-appellant Juan Cabbab, Jr. and Segundino Calpito who invited them to play "pepito," a local version of the game of "russian poker."

Only Winner Agbulos and Eddie Quindasan played "pepito" with the group of accused-appellant. Winner Agbulos played the dealer/banker in the game while accused-appellant and Segundino Calpito acted as players therein. Around 3:00 o'clock p.m., PO William Belmes told Winner Agbulos and Eddie Quindasan that they should be going home after three (3) more deals. About 3:30 p.m., Winner Agbulos's group wrapped-up the game and were set for home together with his group. Winner Agbulos won the game.

While walking on their way home from Sitio Turod, PO William Belmes, who was behind Winner Agbulos and Eddie Quindasan picking-up guava fruits from a tree, saw accused-appellant, accused Segundino Calpito and a companion running up a hill. Suddenly, he heard gunshots and saw Winner Agbulos and Eddie Quindasan, who were then walking ahead of the group, hit by the gunfire.

By instant, PO William Belmes dove into a canal to save himself from the continuous gunfire of accused-appellant. PO William Belmes ran towards Vidal Agbulos and Felipe Abad, who were walking behind the group, and informed the two that Winner Agbulos and Eddie Quindasan were ambushed by accused-appellant and Segundino Calpito. The three (3) proceeded to the crime scene where they saw the dead body of Winner Agbulos together with Eddie Quindasan whom they mistook for dead. The three sought help from the police authorities of Pilar, Abra and returned to the scene of the crime where they found Eddie Quindasan who was still alive and who narrated that it was Juan Cabbab, Jr. and Segundino Calpito who ambused them and took the money, estimated at P12,000.00, of Winner Agbulos which he won in the card game. Eddie Quindasan was brought to the Abra Provincial Hospital but died the following day.

Postmortem examination of Winner Agbulos showed that the cause of his death was "cardio respiratory arrest secondary to hemorrhage due to multiple gunshot wounds." On the other hand, Eddie Quindasan's cause of death was "cardio respiratory arrest secondary to hypovolemic shock due to multiple gunshot wounds."

For the defense, appellant himself took the witness stand claiming that in the morning of April 22, 1988, he went to Palao, Baddek, Bangued, Abra to visit his friends Romeo, Demetrio and Restituto, all surnamed Borreta. He stayed there almost the entire day and left only at around 5:00 p.m. He arrived home in Kimmalasag, San Isidro, Abra at around 5:30 p.m. He declared that his co-accused Calpito was not with him that day. He likewise averred that he did not know prosecution witnesses PO William Belmes and Vidal Agbulos nor did he know of any motive for them to testify against him.

Appellant's co-accused Calpito denied having committed the crimes charged. He testified that at around 8:30 a.m. of April 22, 1988, he went fishing at Kimmalasag, San Isidro, Abra until 4:00 a.m. of the following day.

George de Lara, Forensic Chemist of the NBI, testified that he conducted an examination on the paraffin cast taken from appellant to determine the presence of gunpowder residue or nitrates on appellant's hands. The results of the said examination showed that appellant was negative of nitrates. He opined that certain factors may affect the result of the test such as perspiration, wind velocity, humidity or the type of gun used. He also theorized that a paraffin test would yield a negative result if fertilizers or cosmetics are applied to the hands before the cast is taken.

The Trial Court's Decision

In a decision6 dated August 26, 1997, the trial court acquitted Segundino Calpito but found appellant Juan Cabbab, Jr. guilty of two crimes, i.e. (1) robbery with double homicide and (2) attempted murder. Dispositively, the decision reads:

WHEREFORE, the court finds accused Juan Cabbab, Jr. guilty beyond reasonable doubt of double murder with robbery or better put, robbery with double homicide and attempted murder as defined in Art. 248 of the Revised Penal Code in relation to Art. 294 of the same Code or robbery with double homicide defined and penalized under Art. 248 in relation to Art. 6 of the Same Code with aggravating circumstance of uninhabited place with no mitigating circumstances and sentences him with the penalty of reclusion perpetua for each of the killing of Winner Agbulos and for robbing the said victim after killing him and for the killing of Eddie Quindasan. The court likewise finds the accused Juan Cabbab, Jr. guilty beyond reasonable doubt of the attempted murder defined and penalized in Art. 48 in relation to Art. 6 of the Revised Penal Code. These offenses attended by the aggravating circumstance of uninhabited place with no mitigating circumstances and sentence him to suffer an indeterminate penalty of FOUR (4) MONTHS and ONE (1) DAY of arresto mayor as minimum to FOUR (4) YEARS and TWO (2) MONTHS of prision correccional as maximum.

He is hereby ordered to pay the heirs of the victims P50,000.00 for each of them plus P20,000.00 also for each of them as actual expenses and finally, the amount of P100,000.00 also for each of them as moral and exemplary damages and to pay the costs of this suit.

Accused Segundino Calpito is acquitted for insufficiency of evidence.

SO ORDERED.

The records of the case were then transmitted to this Court on automatic review. As stated at the onset hereof, the Court, in its Resolution7 of January 17, 2006 and pursuant to its ruling in People v. Mateo,8 referred the case and its records to the CA for appropriate action and disposition, whereat it was docketed as CA-G.R. CR-H.C. No. 00968.

In a decision dated February 22, 2006, the CA modified the trial court's decision and found appellant guilty of the special complex crime of Robbery with Homicide and imposed upon him the penalty of reclusion perpetua. The CA also affirmed appellant's conviction, as well as the penalty imposed, for the separate crime of attempted murder.

From the CA, the case was then elevated to this Court for automatic review. In its Resolution9 of September 20, 2006, the Court resolved to require the parties to submit their respective supplemental briefs.

In a Manifestation dated November 16, 2006, the OSG, in behalf of appellee People, informed the Court that it is no longer filing a supplemental brief and was merely adopting its appellee's brief before the CA as its supplemental brief.

Appellant, on the other hand, filed on December 18, 2006 his supplemental brief on the lone assigned error, that:

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN REJECTING THE DEFENSE OF ALIBI INTERPOSED BY THE ACCUSED-APPELLANT, DESPITE THE FACT THAT THE VERSION IS MORE CREDIBLE AND SUPPORTED BY EVIDENCE.

Insisting that the prosecution failed to prove his guilt beyond reasonable doubt, appellant pleads for acquittal. He avers that the witnesses for the prosecution failed to positively identify him as the perpetrator of the crime as they did not actually see

him shoot the victims. Appellant also relies on the results of the paraffin test showing that he was negative of gunpowder nitrates.

The appeal must fail.

Appellant's contention that the witnesses for the prosecution failed to identify him as the perpetrator of the crime is belied by the testimony of PO William Belmes, who was with the victims when the incident happened. We quote from the transcripts of the stenographic notes:

William Belmes on Re-direct Examination

FISCAL FLORES:

Q. Mr. Witness, when you gave your statement on April 30, 1988, exactly eight (8) days after the incident when the incident wherein you were investigated upon still very very fresh in your mind (sic). Now, in your statement which you gave to the investigator, Pat. Tubadeza, you stated that you saw the persons shot at Winner Agbulos and Eddie Quindasan and after the two (2) had fell down then you also likewise saw them shot at you at the time you were rolling to the ground. Do you affirm and confirm this statement of yours which you subscribed before Fiscal Ricarte Valera? cralaw library

ATTY. YANURIA:

Your Honor, it is misleading, we object, in so far as the shooting of Eddie Quindasan and Winner Agbulos was not seen. He only saw the persons who were firing at him namely: Juan Cabbab and Segundino Calpito.

COURT:

In his testimony before the court he testified before the court that he saw Juan Cabbab and Segundino Calpito shot at Eddie Quindasan and Winner Agbulos. Reform the question.

FISCAL FLORES:

Q. However, you saw these two (2) accused, Juan Cabbab and Segundino Calpito shoot at you? cralaw library

A. Yes, sir.

Q. Will you tell the court if how far were these two (2) accused when they were firing at you? cralaw library

A. Eight (8) meters, sir.

Q. And therefore what time is it when they were firing at you? cralaw library

A. If I m not mistaken it was 4:00 o'clock in the afternoon.10

William Belmes on cross-examination

ATTY. YANURIA:

Q. In other words, it was you being shot out by Segundino Calpito and Juan Cabbab but you did not see them shoot at Winner Agbulos and Eddie Quindasan? cralaw library

A. I saw Juan Cabbab and Segundino fire at Winner Agbulos and Eddie Quindasan (the witness using the word "banat") and when they already fell down, they continued firing attempt and in my case I rolled and they also fired at me.11

The above testimony adequately showed that Belmes was able to look at and see appellant at the time he perpetrated the crime. To our mind, Belmes could not have made a mistake with respect to appellant's identity, what with the fact that just a few hours before the incident, it was even appellant himself who invited Belmes and his group to play poker. For sure, Belmes had a face-to-face encounter with appellant before the assault and thus would be able to unmistakably recognize him especially because at the time of the attack, Belmes was just eight (8) meters away from appellant and conditions of visibility were very good at the time of the incident as it was only around 4:00 in the afternoon. Jurisprudence recognizes that it is the most natural reaction of victims of violence to strive to see the appearance of the perpetrators of the crime and to observe the manner in which the crime was committed.12

Belmes' testimony was corroborated by that of Vidal Agbulos who was also with the group when the robbery and shooting took place. Again, we quote from the transcripts of stenographic notes:

Vidal Agbulos on direct examination

FISCAL FLORES:

Q. What did you do next when Felipe Abad informed you again that your son was already killed and Eddie Quindasan was injured?cralaw library

A. Even if he told me about that I just went ahead.

Q. What happened next when he told you that? cralaw library

A. When I went ahead I saw Juan Cabbab took the wallet from my son.

COURT:

Q. At that time, Winner Agbulos was already prostrate on the ground? cralaw library

A. Yes, sir, my son was lying on the ground facing down.13

Clearly, then, Vidal Agbulos positively identified appellant as the person who robbed his son, Winner, of his winnings. Just like Belmes, Agbulos could also not have been mistaken as to appellant's identity considering that it was appellant who

personally approached Agbulos' group and invited them to play poker just a few hours prior to the commission of the crime. Further, Agbulos testified that he was familiar with appellant as he would often see him in a cockpit in San Isidro, Abra.

To be sure, the trial court which had the unique opportunity to observe at first hand the demeanor of witnesses Belmes and Agbulos and asses whether they are telling the truth or not, gave full faith and credence to their testimonies. Finding no facts and circumstances of weight and substance that would otherwise warrant a different conclusion, the Court accords the highest respect to the trial court's evaluation of the credibility of these witnesses.

Appellant likewise capitalizes on the results of the paraffin test showing that both his hands yielded no trace of gunpowder residue. Unfortunately for appellant, the results of the paraffin test would not exculpate him. The negative findings of said test do not conclusively show that a person did not discharge a firearm at the time the crime was committed. This Court has observed that it is quite possible for a person to discharge a firearm and yet exhibit no trace of nitrates: when, e.g., the assailant fired the weapon while wearing gloves or where the assailant thoroughly washes his hands thereafter.14 As George de Lara of the NBI stated in his testimony before the trial court, if a person applies cosmetics on his hands before the cast is taken, gunpowder residue would not be found in that person's hands. He also testified that certain factors could contribute to the negative result of a paraffin test such as perspiration, humidity or the type of firearm used. In fine, a finding that the paraffin test on the person of the appellant yielded negative results is not conclusive evidence to show that he indeed had not fired a gun.

Too, appellant has not shown any evidence of improper motive on the part of prosecution witnesses Belmes and Agbulos that would have driven them to falsely testify against him. In fact, appellant himself declared that he did not know of any reason why Belmes and Agbulos would implicate him in the crime. Where there is nothing to show that the witnesses for the prosecution were actuated by improper motive, their positive and categorical declarations on the witness stand under the solemnity of an oath deserve full faith and credence.15

Interjected as a defense is alibi, appellant claiming that he went to Palao, Baddek, Bangued, Abra to visit his friends in the morning of April 22, 1988 and returned home only at around 5:30 p.m. For alibi to prosper, however, the hornbook rule

requires a showing that the accused was at another place at the time of the perpetration of the offense and that it was physically impossible for him to be at the scene of the crime at the time of its commission.16 Where there is even the least chance for the accused to be present at the crime scene, the defense of alibi will not hold water.17

Here, the evidence shows that Palao, Baddek, Bangued, Abra where appellant allegedly visited his friends was only 30 minutes drive from Barangay Kimmalasag, San Isidro, Abra where the crime was committed. In short, appellant failed to establish by clear and convincing evidence the physical impossibility of his presence at the scene of the crime on the date and time of its commission.

The weakness of appellant's alibi is heavily underscored by the fact that appellant was positively identified by witnesses Belmes and Agbulos who were with the victims at the time of the incident. For sure, appellant's positive identification as the perpetrator of the crime renders his defense of alibi unworthy of credit.18

The crime committed by appellant was correctly characterized by the appellate court as Robbery with Homicide under Article 294, paragraph 1 of the Revised Penal Code (RPC) which reads:

Art. 294. Robbery with violence against or intimidation of persons - Penalties.' Any person guilty of robbery with the use of violence against any person shall suffer:

1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson.

To warrant conviction for the crime of Robbery with Homicide, the prosecution is burdened to prove the confluence of the following elements:

(1) the taking of personal property is committed with violence or intimidation against persons;(2) the property taken belongs to another;(3) the taking is characterized by intent to gain or animo lucrandi; and cralawlibrary

(4) by reason of the robbery or on the occasion thereof, homicide is committed.19

In Robbery with Homicide, so long as the intention of the felon is to rob, the killing may occur before, during or after the robbery. It is immaterial that death would supervene by mere accident, or that the victim of homicide is other than the victim of robbery, or that two or more persons are killed. Once a homicide is committed by reason or on the occasion of the robbery, the felony committed is the special complex crime of Robbery with Homicide.20

Here, the prosecution adduced proof beyond reasonable doubt that appellant, having lost to Winner Agbulos in the game of poker, intended to divest Agbulos of his winnings amounting to P20,000.00. In pursuit of his plan to rob Agbulos of his winnings, appellant shot and killed him as well as his companion, Eddie Quindasan.

The prescribed penalty for Robbery with Homicide under Article 294 of the RPC, as amended by R.A. No. 7659 (Death Penalty Law), is reclusion perpetua to death. In the application of a penalty composed of two indivisible penalties, like that for Robbery with Homicide, Article 63 of the RPC provides that "when in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied." In this case, the aggravating circumstance of treachery attended the commission of the crime, as appellant's attack on the victims who were then unsuspectingly walking on their way home was sudden and done without any provocation, thus giving them no real chance to defend themselves.

However, considering that the crime was committed in 1988 or prior to the effectivity of R.A. No. 7659,21 the trial court and the CA correctly imposed upon appellant the lesser penalty of reclusion perpetua.chanrobles virtual law library

The Court feels, however, that the two courts below erred in convicting appellant of the separate crime of attempted murder for the shooting of PO William Belmes. Attempted homicide or attempted murder committed during or on the occasion of the

robbery, as in this case, is absorbed in the crime of Robbery with Homicide which is a special complex crime that remains fundamentally the same regardless of the number of homicides or injuries committed in connection with the robbery.22

We now come to the award of damages.

Conformably with existing jurisprudence, the heirs of Winner Agbulos and Eddie Quindasan are each entitled to civil indemnity in the amount of P50,000.00,23 to moral damages in the amount of P50,000.00,24 and to exemplary damages in the sum of P25,000.00.25

With respect to actual damages, Winner's father, Vidal Agbulos, testified that he spent a total of P50,000.00 as burial expenses but he failed to present receipts therefor. In People v. Abrazaldo, 26 we laid down the doctrine that where the amount of actual damages for funeral expenses cannot be determined because of the absence of receipts to prove them, temperate damages may be awarded in the amount of P25,000.00. Thus, in lieu of actual damages, temperate damages in the amount of P25,000.00 must be awarded to the heirs of Winner because although the exact amount was not proved with certainty, it was reasonable to expect that they incurred expenses for the coffin and burial of the victim. We, however, cannot grant the same to the heirs of Eddie Quindasan for their failure to testify on the matter. Finally, appellant is obliged to return to the heirs of Winner Agbulos the amount of P20,000.00 he had taken from Winner.

WHEREFORE, the decision dated February 22, 2006 of the CA in CA-G.R. CR-H.C. No. 00968 is hereby AFFIRMED with the following MODIFICATIONS:

1. Appellant Juan Cabbab, Jr. is found GUILTY beyond reasonable doubt of Robbery with Homicide and sentenced to suffer the penalty of reclusion perpetua.

2. Appellant is hereby ordered to return to the heirs of Winner Agbulos the amount of P20,000.00 representing the amount stolen from him. He is likewise ordered to indemnify the heirs of Winner Agbulos the following: (a) P50,000.00 as civil indemnity; (b) P50,000.00 as moral damages, (c) P25,000.00 as exemplary damages; and (c) P25,000.00 as temperate damages.

3. Appellant is further ordered to pay the heirs of Eddie Quindasan P50,000.00 as civil indemnity, another P50,000.00 as moral damages, and P25,000.00 as exemplary damages.

4. For reasons herein stated, appellant is ACQUITTED of the separate crime of attempted murder against the person of PO William Belmes.

[G.R. No. 140756. April 4, 2003.]PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JUAN GONZALES ESCOTE, JR.

Robbery with homicide is classified as a crime against property. Nevertheless, treachery is a generic aggravating circumstance in said crime if the victim of homicide is killed treacherously. The Supreme Court of Spain so ruled. So does the Court rule in this case, as it had done for decades. chanrob1es virtua1 1aw 1ibrary

Before the Court on automatic review is the Decision 1 of Branch 11 of the Regional Trial Court of Bulacan in Criminal Case No. 443-M-97 convicting accused-appellants Juan Gonzales Escote, Jr. and Victor Acuyan of the complex crime of robbery with homicide, meting on each of them the supreme penalty of death, and ordering them to pay the heirs of the victim, SPO1 Jose C. Manio, Jr., the total amount of P300,000.00 by way of actual and moral damages and to pay to Five Star Bus, Inc., the amount of P6,000.00 by way of actual damages.

The Facts

The antecedent facts as established by the prosecution are as follows: chanrob1es virtual 1aw library

On September 28, 1996 at past midnight, Rodolfo Cacatian, the regular driver of Five Star Passenger Bus bearing Plate No. ABS-793, drove the bus from its terminal at Pasay City to its destination in Bolinao, Pangasinan. Also on board was Romulo Digap, the regular conductor of the bus, as well as some passengers. At Camachile, Balintawak, six passengers boarded the bus, including Victor Acuyan and Juan Gonzales Escote, Jr. who were wearing maong pants, rubber shoes, hats and jackets. 2 Juan seated himself on the third seat near the aisle, in the middle row of the passengers’ seats, while Victor stood by the door in the mid-portion of the bus beside Romulo. Another passenger, SPO1 Jose C. Manio, Jr., a resident of Angeles City, was seated at the rear portion of the bus on his way home to Angeles City. Tucked on his waist was his service gun bearing Serial Number 769806. Every now and then, Rodolfo looked at the side view mirror as well as the rear view and center mirrors installed atop the driver’s seat to monitor any incoming and overtaking vehicles and to observe the passengers of the bus.

The lights of the bus were on even as some of the passengers slept. When the bus was travelling along the highway in Plaridel, Bulacan, Juan and Victor suddenly stood up, whipped out their handguns and announced a holdup. Petrified, Rodolfo glanced at the center mirror towards the passengers’ seat and saw Juan and Victor armed with handguns. Juan fired his gun upward to awaken and scare off the passengers. Victor followed suit and fired his gun upward. Juan and Victor then accosted the passengers and divested them of their money and valuables. Juan divested Romulo of the fares he had collected from the passengers. The felons then went to the place Manio, Jr. was seated and demanded that he show them his identification card and wallet. Manio, Jr. brought out his identification card bearing No. 00898. 3 Juan and Victor took the identification card of the police officer as well as his service gun and told him: "Pasensya ka na Pare, papatayin ka namin, baril mo rin and papatay sa iyo." The police officer pleaded for mercy: "Pare maawa ka sa akin. May pamilya ako." However, Victor and Juan ignored the plea of the police officer and shot him on the mouth, right ear, chest and right side of his body. Manio, Jr. sustained six entrance wounds. He fell to the floor of the bus. Victor and Juan then moved towards the driver Rodolfo, seated themselves beside him and ordered the latter to maintain the speed of the bus. Rodolfo heard one of the felons saying: "Ganyan lang ang pumatay ng tao. Parang pumapatay ng manok." The other said: "Ayos na naman tayo pare. Malaki-laki ito." Victor and Juan further told Rodolfo that after they (Victor and Juan) shall have alighted from the bus, he (Rodolfo) should continue driving the bus and not report the incident along the way. The robbers assured Rodolfo that if the latter will follow their instructions, he will not be harmed. Victor and Juan ordered Rodolfo to stop the bus along the overpass in Mexico, Pampanga where they alighted from the bus. The robbery was over in 25 minutes.

When the bus reached Dau, Mabalacat, Pampanga, Rodolfo and Romulo forthwith reported the incident to the police authorities. The cadaver of SPO1 Manio, Jr. was brought to the funeral parlor where Dr. Alejandro D. Tolentino, the Municipal Health Officer of Mabalacat, Pampanga, performed an autopsy on the cadaver of the police officer. The doctor prepared and signed an autopsy report detailing the wounds sustained by the police officer and the cause of his death: jgc:chanrobles.com.ph

"Body still flaccid (not in rigor mortis) bathed with his own blood. There were 6 entrance wounds and 6 exit wounds. All the entrance were located on his right side. An entrance (0.5 cm x 0.5 cm.) located infront of the right ear exited at the left side just below the ear lobe. Another entrance through the mouth exited at the back of the head fracturing the occiput with an opening of (1.5 cm x 2 cm). Blood CSF and brain tissues came out. Another fatal bullet entered at the upper right cornea of the sternum, entered the chest cavity pierced the heart and left lung and exited at the left axillary line. Severe hemorrhage in the chest cavity came from the heart and left lung. The other 3 bullets entered the right side and exited on the same side. One entrance at the top of the right shoulder exited at the medial side of the right arm. The other entered above the right breast and exited at the right lateral abdominal wall travelling below muscles and subcutaneous tissues without entering the cavities. Lastly another bullet entered above the right iliac crest travelled superficially and exited above the right inguinal line.

Cause of Death:chanrob1es virtual 1aw library

Shock, massive internal and external hemorrhage, complete brain destruction and injury to the heart and left lung caused by multiple gunshot wounds." 4

Rodolfo and Romulo proceeded to the police station of Plaridel, Bulacan where they reported the robbery and gave their respective sworn statements. 5 SPO1 Manio, Jr. was survived by his wife Rosario Manio and their four young children. Rosario spent P20,000.00 for the coffin and P10,000.00 for the burial lot of the slain police officer. 6 Manio, Jr. was 38 years old when he died and had a gross salary of P8,085.00 a month. 7

Barely a month thereafter, or on October 25, 1996, at about midnight, SPO3 Romeo Meneses, the team leader of Alert Team No. 1 of Tarlac Police Station, and PO3 Florante S. Ferrer were at the police checkpoint along the national highway in Tarlac, Tarlac. At the time, the Bambang-Concepcion bridge was closed to traffic and the police officers were tasked to divert traffic to the Sta. Rosa road. Momentarily, a white colored taxi cab without any plate number on its front fender came to view. Meneses stopped the cab and asked the driver, who turned out to be the accused Juan Gonzales Escote, Jr., for his identification card. Juan told Meneses that he was a policeman and handed over to Meneses the identification card of SPO1 Manio, Jr. and the money which Juan and Victor took from Manio, Jr. during the heist on September 28, 1996. 8 Meneses became suspicious when he noted that the identification card had already expired on March 16, 1995. He asked Juan if the latter had a new pay slip. Juan could not produce any. He finally confessed to Meneses that he was not a policeman. Meneses brought Juan to the police station. When police officers frisked Juan for any deadly weapon, they found five live bullets of a 9 millimeter firearm in his pocket. The police officers confiscated the ammunition. In the course of the investigation, Juan admitted to the police investigators that he and Victor, alias Victor Arroyo, staged the robbery on board Five Star Bus and are responsible for the death of SPO1 Manio, Jr. in Plaridel, Bulacan. Meneses and Ferrer executed their joint affidavit of arrest of Juan. 9 Juan was subsequently turned over to the Plaridel Police Station where Romulo identified him through the latter’s picture as one of those who robbed the passengers of the Five Star Bus with Plate No. ABS-793 and killed SPO1 Manio, Jr. on September 28, 1996. In the course of their investigation, the Plaridel Police Station Investigators learned that Victor was a native of Laoang, Northern Samar. 10 On April 4, 1997, an Information charging Juan Gonzales Escote, Jr. and Victor Acuyan with robbery with homicide was filed with the Regional Trial Court of Bulacan. The Information reads: chanrob1es virtual 1aw library

That on or about the 28th day of September 1996, in the municipality of Plaridel, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping each other, armed with firearms, did then and there wilfully, unlawfully and feloniously, with intent of (sic) gain and by

means of force, violence and intimidation, take, rob and carry away with one (1) necklace and cash in [the] undetermine[d] amount of one SPO1 Jose C. Manio, Jr., to the damage and prejudice of the said owner in the said undetermine[d] amount; that simultaneously or on the occassion (sic) of said robbery, said accused by means of violence and intimidation and in furtherance of their conspiracy attack, assault and shoot with the service firearm of the said SPO1 Jose C. Manio, Jr., thereby inflicting serious physical injuries which resulted (sic) the death of the said SPO1 Jose C. Manio, Jr.

Contrary to law. 11

On the strength of a warrant of arrest, the police officers arrested Victor in Laoang, Northern Samar and had him incarcerated in the Bulacan Provincial Jail. Assisted by Atty. Ramiro Osorio, their counsel de parte, Juan and Victor were duly arraigned and entered their plea of not guilty to the charge. Trial thereafter ensued. After the prosecution had rested its case on August 26, 1998, Juan escaped from the provincial jail. 12 The trial court issued a bench warrant on September 22, 1998 for the arrest of said Accused-Appellant. 13 In the meantime, Victor adduced his evidence.

Victor denied the charge and interposed the defense of alibi. He testified that in 1996, he worked as a tire man in the vulcanizing shop located in Banga I, Plaridel, Bulacan owned by Tony Boy Negro. On one occasion, Ilarde Victorino, a customer of Tony Boy Negro, ordered Victor to sell a tire. Victor sold the tire but did not turn over the proceeds of the sale to Ilarde. The latter hated Victor for his misdeed. The shop was later demolished and after two months of employment, Victor returned to Barangay Muwal-Buwal, Laoang, Northern Samar. On September 26, 1996, at 9:30 p.m., Victor was at the town fiesta in Laoang. Victor and his friends, Joseph Iringco and Rickey Lorcio were having a drinking spree in the house of Barangay Captain Ike Baluya. At 11:30 p.m., the three left the house of the barangay captain and attended the public dance at the town auditorium. Victor and his friends left the auditorium at 5:30 a.m. of September 27, 1996. Victor likewise testified that he never met Juan until his arrest and detention at the Bulacan Provincial Jail. One of the inmates in said provincial jail was Ilarde Victorino. Victor learned that Ilarde implicated him for the robbery of the Five Star Bus and the killing of SPO1 Manio, Jr. to hit back at him for his failure to turn over to Ilarde the proceeds of the sale of the latter’s tire.

On January 14, 1999, Juan was rearrested in Daet, Camarines Norte. 14 However, he no longer adduced any evidence in his behalf.chanrob1es virtua1 1aw 1ibrary

The Verdict of the Trial Court

On March 11, 1999, the trial court rendered its Decision judgment finding Juan and Victor guilty beyond reasonable doubt of the crime charged, meted on each of them the penalty of death and ordered them to pay P300,000.00 as actual and moral damages to the heirs of the victim and to pay the Five Star Bus Company the amount of P6,000.00 as actual damages. The decretal portion of the decision reads: chanrob1es virtual 1aw library

WHEREFORE, this Court finds both accused, Juan Gonzales Escote, Jr. and Victor Acuyan GUILTY beyond reasonable doubt of Robbery with Homicide as penalized under Art. 294 of the Revised Penal Code as amended and hereby sentences both to suffer the supreme penalty of Death and to indemnify the heirs of the late SPO1 Jose C. Manio, Jr., the amount of P300,000.00 as actual and moral damages and to pay the Five Star Bus P6,000.00 as actual damage.

SO ORDERED. 15

Assignment of Errors

Juan and Victor assail the Decision of the trial court and contend that: chanrob1es virtual 1aw library

I

THE TRIAL COURT ERRED IN HOLDING THAT RODOLFO CACATIAN AND ROMULO DIGAP, DRIVER AND CONDUCTOR OF THE FIVE STAR BUS, RESPECTIVELY, WERE ABLE TO POSITIVELY IDENTIFY THE TWO (2) MEN WHO HELD-UP THEIR BUS AND KILLED ONE PASSENGER THEREOF AT AROUND 3:00 O’CLOCK IN THE EARLY MORNING OF SEPTEMBER 28, 1996.

IITHE TRIAL COURT ERRED IN FINDING THE TWO (2) ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF

ROBBERY WITH HOMICIDE. 16

The Court’s Verdict

Anent the first assignment of error, Juan and Victor contend that the trial court committed a reversible error in relying on the testimony of Rodolfo, the bus conductor, for convicting them of the crime charged. They aver that although their counsel was able to initially cross-examine Rodolfo, the former failed to continue with and terminate his cross-examination of the said witness through no fault of his as the witness failed to appear in subsequent proceedings. They assert that even if the testimonies of Rodolfo and Romulo were to be considered, the two witnesses were so petrified during the robbery that they were not able to look at the felons and hence could not positively identify accused-appellants as the perpetrators of the crime. They argue that the police investigators never conducted a police line-up for the identification of the authors of the crime.

The contentions of Juan and Victor are not meritorious. There is no factual and legal basis for their claim that they were illegally deprived of their constitutional and statutory right to fully cross-examine Rodolfo. The Court agrees that the right to cross-examine is a constitutional right anchored on due process. 17 It is a statutory right found in Section 1(f), Rule 115 of the Revised Rules of Criminal Procedure which provides that the accused has the right to confront and cross-examine the witnesses against him at the trial. However, the right has always been understood as requiring not necessarily an actual cross-examination but merely an opportunity to exercise the right to cross-examine if desired. 18 What is proscribed by statutory norm and jurisprudential precept is the absence of the opportunity to cross-examine. 19 The right is a personal one and may be waived expressly or impliedly. There is an implied waiver when the party was given the opportunity to confront and cross-examine an opposing witness but failed to take advantage of it for reasons attributable to himself alone. 20 If by his actuations, the accused lost his opportunity to cross-examine wholly or in part the witnesses against him, his right to cross-examine is impliedly waived. 21 The testimony given on direct examination of the witness will be received or allowed to remain in the record. 22

In this case, the original records show that after several resettings, the initial trial for the presentation by the prosecution of its evidence-in-chief was set on November 18, 1997 and December 5, 1997, both at 9:00 a.m. 23 Rodolfo testified on direct examination on November 18, 1997. The counsel of Juan and Victor forthwith commenced his cross-examination of the witness but because of the manifestation of said counsel that he cannot finish his cross-examination, the court ordered the continuation thereof to December 5, 1997. 24 On December 5, 1997, Rodolfo did not appear before the court for the continuation of his cross-examination but Rosemarie Manio, the widow of the victim did. The prosecution presented her as witness. Her testimony was terminated. The court ordered the continuation of the trial for the cross-examination of Rodolfo on January 20, 1998 at 8:30 a.m. 25 During the trial on January 20, 1998, Rodolfo was present but accused-appellants’ counsel was absent. The court issued an order declaring that for failure of said counsel to appear before the court for his cross-examination of Rodolfo, Victor and Juan waived their right to continue with the cross-examination of said witness. 26 During the trial set for February 3, 1998, the counsel of Juan and Victor appeared but did not move for a reconsideration of the court’s order dated January 20, 1998 and for the recall of Rodolfo Cacatian for further cross-examination. It behooved counsel for Juan and Victor to file said motion and pray that the trial court order the recall of Rodolfo on the witness stand. Juan and Victor cannot just fold their arms and supinely wait for the prosecution or for the trial court to initiate the recall of

said witness. Indeed, the Court held in Fulgado v. Court of Appeals, et al: chanrob1es virtual 1aw library

The task of recalling a witness for cross examination is, in law, imposed on the party who wishes to exercise said right. This is so because the right, being personal and waivable, the intention to utilize it must be expressed. Silence or failure to assert it on time amounts to a renunciation thereof. Thus, it should be the counsel for the opposing party who should move to cross-examine plaintiff’s witnesses. It is absurd for the plaintiff himself to ask the court to schedule the cross-examination of his own witnesses because it is not his obligation to ensure that his deponents are cross-examined. Having presented his witnesses, the burden shifts to his opponent who must now make the appropriate move. Indeed, the rule of placing the burden of the case on plaintiff’s shoulders can be construed to extremes as what happened in the instant proceedings. 27

The trial was reset to March 31, April 17 and 24, 1998, all at 8:30 a.m. because of the non-availability of the other witnesses of the prosecution. 28 On March 31, 1998, the prosecution presented Dr. Alejandro Tolentino, PO2 Rene de la Cruz and Romulo Digap. During the trial on April 17, 1998, the counsel of Juan and Victor failed to appear. The trial was reset to June 3, 19 and 26, 1998. 29 The trial scheduled on June 3, 1998 was cancelled due to the absence of the counsel of Juan and Victor. The court issued an order appointing Atty. Roberto Ramirez as counsel for Accused-Appellants. 30

During the trial on August 26, 1998, Atty. Ramirez appeared in behalf of Juan and Victor. The prosecution rested its case after the presentation of SPO2 Romeo Meneses and formally offered its documentary evidence. The next trial was set on September 23, 1998 at 8:30 a.m. 31 On November 11, 1998, Juan and Victor commenced the presentation of their evidence with the testimony of Victor. 32 They rested their case on January 27, 1999 without any evidence adduced by Juan.

Juan and Victor did not even file any motion to reopen the case before the trial court rendered its decision to allow them to cross-examine Rodolfo. They remained mute after judgment was rendered against them by the trial court. Neither did they file any petition for certiorari with the Court of Appeals for the nullification of the Order of the trial court dated January 20, 1998 declaring that they had waived their right to cross-examine Rodolfo. It was only on appeal to this Court that Juan and Victor averred for the first time that they were deprived of their right to cross-examine Rodolfo. It is now too late in the day for Juan and Victor to do so. The doctrine of estoppel states that if one maintains silence when in conscience he ought to speak, equity will debar him from speaking when in conscience he ought to remain silent. He who remains silent when he ought to speak cannot be heard to speak when he should be silent. 33

The contention of accused-appellants Juan and Victor that Rodolfo and Romulo failed to identify them as the perpetrators of the crime charged is disbelieved by the trial court, thus: chanrob1es virtual 1aw library

As can be gathered from the testimonies of the witnesses for the prosecution, on September 28, 1996, the accused boarded at around 3:00 a.m. a Five Star Bus driven by Rodolfo Cacatian, bound to Pangasinan, in Camachile, Balintawak, Quezon City. Twenty (20) minutes or so later, when the bus reached the vicinity of Nabuag, Plaridel, Bulacan, along the North Expressway, the accused with guns in hand suddenly stood up and announced a hold-up. Simultaneously with the announcement of a hold-up, Escote fired his gun upwards. Acuyan, meanwhile, took the gun of a man seated at the back. Both then went on to take the money and valuables of the passengers, including the bus conductor’s collections in the amount of P6,000.00. Thereafter, the duo approached the man at the back telling him in the vernacular "Pasensiya ka na pare, papatayin ka namin. Baril mo rin ang papatay sa iyo." They pointed their guns at him and fired several shots oblivious of the plea for mercy of their victim. After the shooting, the latter collapsed on the floor. The two (2) then went back at the front portion of the bus behind the driver’s seat and were overheard by the bus driver, Cacatian, talking how easy it was to kill a man. The robbery and the killing were over in 25 minutes. Upon reaching the Mexico overpass of the Expressway in Pampanga, the two (2) got off the bus. The driver drove the bus to the Mabalacat Police Station and reported the incident. During the investigation conducted by the police, it was found out that the slain passenger was a policeman, SPO1 Jose C. Manio, Jr. of the Caloocan City Police Department.

The above version came from Rodolfo Cacatian and Romulo Digap, bus driver and conductor, respectively, of the ill-fated Five Star Bus. 34

The Court agrees with the trial court. It may be true that Romulo was frightened when Juan and Victor suddenly announced a holdup and fired their guns upward, but it does not follow that he and Rodolfo failed to have a good look at Juan and Victor during the entire time the robbery was taking place. The Court has held in a catena of cases that it is the most natural reaction of victims of violence to strive to see the appearance of the perpetrators of the crime and to observe the manner in which the crime was committed. 35 Rodolfo and Romulo had a good look at both Juan and Victor before, during and after they staged the robbery and before they alighted from the bus. The evidence on record shows that when Juan and Victor boarded the bus and while the said vehicle was on its way to its destination, Romulo stationed himself by the door of the bus located in the mid-section of the vehicle. The lights inside the bus were on. Juan seated himself in the middle row of the passengers’ seat near the center aisle while Victor stood near the door of the bus about a meter or so from Romulo. 36 Romulo, Juan and Victor were near each other. Moreover, Juan divested Romulo of his collection of the fares from the passengers. 37 Romulo thus had a face-to-face encounter with Juan. After shooting SPO1 Manio, Jr. at the rear portion of the bus, Juan and Victor passed by where Romulo was standing and gave their instructions to him. Considering all the facts and circumstances, there is no iota of doubt that Romulo saw and recognized Juan and Victor before, during and after the heist. 38 Rodolfo looked many times on the rear, side and center view mirrors to observe the center and rear portions of the bus before and during the robbery. Rodolfo thus saw Juan and Victor stage the robbery and kill SPO1 Manio, Jr. with impunity: chanrob1es virtual 1aw library

When Rodolfo gave his sworn statement to the police investigators in Plaridel, Bulacan after the robbery, he described the felons. When asked by the police investigators if he could identify the robbers if he see them again, Rodolfo declared that he would be able to identify them: chanrob1es virtual 1aw library

May we know from the accused if his name is Juan Escote Gonzales because he just said Juan Escote. In the Information, it is one Juan Gonzales, Jr., so, we can change, Your Honor. 42

Moreover, when he was accosted by SPO3 Romeo Meneses on October 25, 1997 in Tarlac, Tarlac, Juan was in possession of the identification card 43 of the slain police officer. Juan failed to explain to the trial court how and under what circumstances he came into possession of said identification card. Juan must necessarily be considered the author of the robbery and the killing of SPO1 Manio, Jr. In People v. Mantung, 44 we held: chanrob1es virtual 1aw library

. . . [T]he recovery of part of the loot from Mantung or the time of his arrest gave rise to a legal presumption of his guilt. As this Court has held, ‘[I]n the absence of an explanation of how one has come into possession of stolen effects belonging to a person wounded and treacherously killed, he must necessarily be considered the author of the aggression and death of the said person and of the robbery committed on him.’

While police investigators did not place Juan and Victor in a police line-up for proper identification by Rodolfo and Romulo, it cannot thereby be concluded that absent such line-up, their identification by Romulo and Rodolfo as the authors of the robbery with homicide was unreliable. There is no law or police regulation requiring a police line-up for proper identification in every case. Even if there was no police line-up, there could still be proper and reliable identification as long as such identification was not suggested or instigated to the witness by the police. 45 In this case, there is no evidence that the police officers had supplied or even suggested to Rodolfo and Romulo the identities of Juan and Victor as the perpetrators of the robbery and the killing of SPO1 Manio, Jr. chanrob1es virtua1 1aw 1ibrary

The Felony Committed by Juan and Victor

The Court finds that the trial court committed no error in convicting Juan and Victor of robbery with homicide. Article 294, paragraph 1 of the Revised Penal Code, as amended by Republic Act 7659, reads: chanrob1es virtual 1aw library

Art. 294. Robbery with violence against or intimidation of persons. — Penalties. — Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer: chanrob1es virtual 1aw library

1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson.

To warrant the conviction of Juan and Victor for the said charge, the prosecution was burdened to prove the confluence of the following essential elements: chanrob1es virtual 1aw library

. . . (a) the taking of personal property with the use of violence or intimidation against a person; (b) the property thus taken belongs to another; (c) the taking is characterized by intent to gain or animus lucrandi and (d) on the occasion of the robbery or by reason thereof, the crime of homicide, which is therein used in a generic sense, was committed. . . . 46

The intent to rob must precede the taking of human life. 47 In robbery with homicide, so long as the intention of the felons was to rob, the killing may occur before, during or after the robbery. In People v. Barut, 48 the Court held that: chanrob1es virtual 1aw library

In the controlling Spanish version of article 294, it is provided that there is robbery with homicide "cuando con motivo o con ocasión del robo resultare homicidio." "Basta que entre aquel este exista una relación, meramente ocasional. No se requiere que el homicidio se cometa como medio de ejecución del robo, ni que el culpable tenga intención de matar, el delito existe según constanta jurisprudencia, aun cuando no concurra animo homicida. Incluso si la muerte sobreviniere por mero accidente, siempre que el homicidio se produzca con motivo con ocasión del robo, siendo indiferente que la muerte sea anterior, coetanea o posterior a éste" (2 Cuello Calon, Derecho Penal, 1975 14th Ed. P. 872).

Even if the victim of robbery is other than the victim of the homicide committed on the occasion of or by reason of the robbery, nevertheless, there is only one single and indivisible felony of robbery with homicide. All the crimes committed on the occasion or by reason of the robbery are merged and integrated into a single and indivisible felony of robbery with homicide. This was the ruling of the Supreme Court of Spain on September 9, 1886, et sequitur cited by this Court in People v. Mangulabnan, Et. Al. 49

We see, therefore, that in order to determine the existence of the crime of robbery with homicide it is enough that a homicide would result by reason or on the occasion of the robbery (Decision of the Supreme Court of Spain of November 26, 1892, and January 7, 1878, quoted in 2 Hidalgo’s Penal Code, p. 267 and 259–260, respectively). This High Tribunal speaking of the accessory character of the circumstances leading to the homicide, has also held that it is immaterial that the death would supervene by mere accident (Decision of September 9, 1886; October 22, 1907; April 30, 1910 and July 14, 1917), provided that the homicide be produced by reason or on occasion of the robbery, inasmuch as it is only the result obtained, without reference or distinction as to the circumstances, causes, modes or persons intervening in the commission of the crime, that has to be taken into consideration (Decision of January 12, 1889 — see Cuello Calon’s Codigo Penal, p. 501–502).

Case law has it that whenever homicide has been committed by reason of or on the occasion of the robbery, all those who took part as principals in the robbery will also be held guilty as principals of robbery with homicide although they did not take part in the homicide, unless it appears that they endeavored to prevent the homicide. 50

In this case, the prosecution proved beyond reasonable doubt that Juan and Victor conspired and confabulated together in robbing the passengers of the Five Star Bus of their money and valuables and Romulo of his collections of the fares of the passengers and in killing SPO1 Manio, Jr. with impunity on the occasion of the robbery. Hence, both Juan and Victor are guilty as principals by direct participation of the felony of robbery with homicide under paragraph 1, Article 294 of the Revised Penal Code, as amended by R.A. 7659, punishable by reclusion perpetua to death. chanrob1es virtua1 1aw 1ibrary

The Proper Penalty

The trial court imposed the supreme penalty of death on Juan and Victor for robbery with homicide, defined in Article 294, paragraph 1 of the Revised Penal Code, punishable with reclusion perpetua. Under Article 63, paragraph 1 of the Revised Penal Code, the felons should be meted the supreme penalty of death when the crime is committed with an aggravating circumstance attendant in the commission of the crime absent any mitigating circumstance. The trial court did not specify in the decretal portion of its decision the aggravating circumstances attendant in the commission of the crime mandating the imposition of the death penalty. However, it is evident from the findings of facts contained in the body of the decision of the trial court that it imposed the death penalty on Juan and Victor on its finding that they shot SPO1 Manio, Jr. treacherously on the occasion of or by reason of the robbery: chanrob1es virtual 1aw library

The two (2) accused are incomparable in their ruthlessness and base regard for human life. After stripping the passengers of their money and valuables, including the firearm of the victim, they came to decide to execute the latter seemingly because he was a police officer. They lost no time pouncing him at the rear section of the bus, aimed their firearms at him and, in a derisive and humiliating tone, told him, before pulling the trigger, that they were rather sorry but they are going to kill him with his own gun; and thereafter, they simultaneously fired point blank at the hapless policeman who was practically on his knees begging for his life. Afterwhich, they calmly positioned themselves at the front boasting for all to hear, that killing a man is like killing a chicken ("Parang pumapatay ng manok"). Escote, in particular, is a class by himself in callousness. . . .. 51

The Court agrees with the trial court that treachery was attendant in the commission of the crime. There is treachery when the following essential elements are present, viz: (a) at the time of the attack, the victim was not in a position to defend himself; and (b) the accused consciously and deliberately adopted the particular means, methods or forms of attack employed by him. 52 The essence of treachery is the sudden and unexpected attack by an aggressor on the unsuspecting victim, depriving the latter of any chance to defend himself and thereby ensuring its commission without risk of himself. Treachery may also be appreciated even if the victim was warned of the danger to his life where he was defenseless and unable to flee at the time of the infliction of the coup de grace. 53 In the case at bar, the victim suffered six wounds, one on the mouth, another on the right ear, one on the shoulder, another on the right breast, one on the upper right cornea of the sternum and one above the right iliac crest. Juan and Victor were armed with handguns. They first disarmed SPO1 Manio, Jr. and then shot him even as he pleaded for dear life. When the victim was shot, he was defenseless. He was shot at close range, thus insuring his death. The victim was on his way to rejoin his family after a hard day’s work. Instead, he was mercilessly shot to death, leaving his family in grief for his untimely demise. The killing is a grim example of the utter inhumanity of man to his fellowmen.

The issues that now come to fore are (1) whether or not treachery is a generic aggravating circumstance in robbery with homicide; and if in the affirmative, (b) whether treachery may be appreciated against Juan and Victor. On the first issue, we rule in the affirmative. This Court has ruled over the years 54 that treachery is a generic aggravating circumstance in the felony of robbery with homicide, a special complex crime (un delito especial complejo) and at the same time a single and indivisible offense (uno solo indivisible). 55 However, this Court in two cases has held that robbery with homicide is a crime against property and hence treachery which is appreciated only to crimes against persons should not be appreciated as a generic aggravating circumstance. 56 It held in another case that treachery is not appreciated in robbery with rape precisely because robbery with rape is a crime against property. 57 These rulings of the Court find support in case law that in robbery with homicide or robbery with rape, homicide or rape are merely incidents of the robbery, with robbery being the main purpose and object of the criminal. 58 Indeed, in People v. Cando, 59 two distinguished members of this Court advocated a review of the doctrine that treachery is a generic aggravating circumstance in robbery with homicide. They opined that treachery is applicable only to crimes against persons. After all, in People v. Bariquit, 60 this Court in a per curiam decision promulgated in year 2000 declared that treachery is applicable only to crimes against persons. However, this Court held in People v. Cando that treachery is a generic aggravating circumstance in robbery with homicide, citing its prior rulings that in robbery with homicide, treachery is a generic aggravating circumstance when the victim of homicide is killed with treachery. This Court opted not to apply its ruling earlier that year in People v. Bariquit.

Legal Luminaries in criminal law and eminent commentators of the Revised Penal Code are not in full accord either. Chief Justice Ramon C. Aquino (Retired) says that treachery is appreciated only in crimes against persons as defined in Title 10, Book Two of the Code. 61 Chief Justice Luis B. Reyes (Retired) also is of the opinion that treachery is applicable only to crimes against persons. 62 However, Justice Florenz D. Regalado (Retired) is of a different view. 63 He says that treachery cannot be considered in robbery but can be appreciated insofar as the killing is concerned, citing the decisions of this Court in People v. Balagtas 64 for the purpose of determining the penalty to be meted on the felon when the victim of homicide is killed with treachery.

It must be recalled that by Royal Order of December 17, 1886 the 1850 Penal Code in force in Spain, as amended by the Codigo Penal Reformado de 1870 was applied in the Philippines. The Penal Code of 1887 in the Philippines was amended by Act 3815, now known as the Revised Penal Code, which was enacted and published in Spanish. In construing the Old Penal Code and the Revised Penal Code, this Court had accorded respect and persuasive, if not conclusive effect to the decisions of the Supreme Court of Spain interpreting and construing the 1850 Penal Code of Spain, as amended by Codigo Penal

Reformado de 1870. 65

Article 14, paragraph 16 of the Revised Penal Code reads: chanrob1es virtual 1aw library

ART. 14. Aggravating circumstances. — The following are aggravating circumstances: chanrob1es virtual 1aw library

16. That the act be committed with treachery (alevosia). There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.

The law was taken from Chapter IV, Article 10, paragraph 2 of the 1860 Penal Code and the Codigo Penal Reformado de 1870 of Spain which reads: chanrob1es virtual 1aw library

Art. 10 . . . 2. Ejecutar el hecho con alevosia. Hay alevosia cuando el culpable comete cualquiera de los delitos contra las personas empleando medios, modos o for mas en la ejecucion que tiendan directa y especialmente a asegurarla sin riesgo para su persona, que proceda de la defensa que pudiera hacer el ofendido. . . .

Article 14, paragraph 16 of the Revised Penal Code is a reproduction of the 1850 Penal Code of Spain and the Codigo Penal Reformado de 1870 with a slight difference. In the latter law, the words "las personas" (the persons) are used, whereas in Article 14, paragraph 6, of the Revised Penal Code, the words "the person" are used.

Going by the letter of the law, treachery is applicable only to crimes against persons as enumerated in Title Eight, Chapters One and Two, Book II of the Revised Penal Code. However, the Supreme Court of Spain has consistently applied treachery to robbery with homicide, classified as a crime against property. Citing decisions of the Supreme Court of Spain, Cuello Calon, a noted commentator of the Spanish Penal Code says that despite the strict and express reference of the penal code to treachery being applicable to persons, treachery also applies to other crimes such as robbery with homicide: 66

Aun cuando el Codigo solo se refiere a los delitos contra las personas, cabe estimarla en los que no perteneciendo a este titulo se determinan por muerte o lesiones, como, en el robo con homicidio, y en el homicidio del Jefe del Estado que es un delito contra la seguridad interior del Estado, y no obstante la referencia estricta del texto legal a los delitos contra las personas no es la alevosia aplicable a la mayoria de ellos, no lo es en el homicidio, pues como su concurrencia lo cualifica lo transforma en delito distinto, en asesinato, ni en el homicidio consentido (art. 409), ni en la riña tumultuaria (art. 408) ni en el infanticidio (art. 410). . . . . 67

Viada also says that treachery is appreciated in crimes against persons (delitos contra personas) and also in robbery with homicide (robo con homicidio). 68

"Contra las personas. — Luego la circunstancia de alevosia solo puede apreciarse en los delitos provistos desde el art. 417 al 447, y en algun otro, como el de robo con homicidio, atentario, a la vez que contra la propriedad, contra la persona." cralaw virtua1aw library

Thus, treachery is a generic aggravating circumstance to robbery with homicide although said crime is classified as a crime against property and a single and indivisible crime. Treachery is not a qualifying circumstance because as ruled by the Supreme Court of Spain in its decision dated September 11, 1878, the word "homicide" is used in its broadest and most generic sense. 69

Article 62, paragraph 1 of the Revised Penal Code provides that in diminishing or increasing the penalty for a crime, aggravating circumstances shall be taken into account. However, aggravating circumstances which in themselves constitute a crime specially punishable by law or which are included by the law in defining a crime and prescribing a penalty therefor shall not be taken into account for the purpose of increasing the penalty. 70 Under paragraph 2 of the law, the same rule shall apply with respect to any aggravating circumstances inherent in the crime to such a degree that it must of necessity accompany the commission thereof.

1. Aggravating circumstances which in themselves constitute a crime specially punishable by law or which are included by the law in defining a crime and prescribing the penalty therefor shall not be taken into account for the purpose of increasing the penalty.2. The same rule shall apply with respect to any aggravating circumstances inherent in the crime to such a degree that it must be of necessity accompany the commission thereof.

Treachery is not an element of robbery with homicide. Neither does it constitute a crime specially punishable by law nor is it included by the law in defining the crime of robbery with homicide and prescribing the penalty therefor. Treachery is likewise not inherent in the crime of robbery with homicide. Hence, treachery should be considered as a generic aggravating circumstance in robbery with homicide for the imposition of the proper penalty for the crime.In its Sentencia dated March 14, 1877, the Supreme Court of Spain declared that treachery is a generic aggravating circumstance not only in crimes against persons but also in robbery with homicide. The high court of Spain applied Article 79 of the Spanish Penal Code (Article 62 of the Revised Penal Code) and ruled that since treachery is not a constitutive element

of the crime of robbery with homicide nor is it inherent in said crime, without which it cannot be committed, treachery is an aggravating circumstance to said crime. The high court of Spain was not impervious of the fact that robbery with homicide is classified as a crime against property. Indeed, it specifically declared that the classification of robbery with homicide as a crime against property is irrelevant and inconsequential in the application of treachery. It further declared that it would be futile to argue that in crimes against property such as robbery with homicide, treachery would have no application. This is so, the high tribunal ruled, because when robbery is coupled with crimes committed against persons, the crime is not only an assault (ataca) on the property of the victims but also of the victims themselves (ofende): chanrob1es virtual 1aw library

In fine, in the application of treachery as a generic aggravating circumstance to robbery with homicide, the law looks at the constituent crime of homicide which is a crime against persons and not at the constituent crime of robbery which is a crime against property. Treachery is applied to the constituent crime of "homicide" and not to the constituent crime of "robbery" of the special complex crime of robbery with homicide.

The crime of robbery with homicide does not lose its classification as a crime against property or as a special complex and single and indivisible crime simply because treachery is appreciated as a generic aggravating circumstance. Treachery merely increases the penalty for the crime conformably with Article 63 of the Revised Penal Code absent any generic mitigating circumstance.

In its Sentencia, dated July 9, 1877, the high tribunal of Spain also ruled that when the victim of robbery is killed with treachery, the said circumstance should be appreciated as a generic aggravating circumstance in robbery with homicide: chanrob1es virtual 1aw library

In sum then, treachery is a generic aggravating circumstance in robbery with homicide when the victim of homicide is killed by treachery.

On the second issue, we also rule in the affirmative. Article 62, paragraph 4 of the Revised Penal Code which was taken from Article 80 of the Codigo Penal Reformado de 1870, 73 provides that circumstances which consist in the material execution of the act, or in the means employed to accomplish it, shall serve to aggravate or mitigate the liability of those persons only who had knowledge of them at the time of the execution of the act or their cooperation therein. The circumstances attending the commission of a crime either relate to the persons participating in the crime or into its manner of execution or to the means employed. The latter has a direct bearing upon the criminal liability of all the accused who have knowledge thereof at the time of the commission of the crime or of their cooperation thereon. 74 Accordingly, the Spanish Supreme Court held in its Sentencia dated December 17, 1875 that where two or more persons perpetrate the crime of robbery with homicide, the generic aggravating circumstance of treachery shall be appreciated against all of the felons who had knowledge of the manner of the killing of victims of homicide, with the ratiocination that: chanrob1es virtual 1aw library

Be that as it may, treachery cannot be appreciated against Juan and Victor in the case at bar because the same was not alleged in the Information as mandated by Section 8, Rule 110 of the Revised Rules on Criminal Procedures which reads: chanrob1es virtual 1aw library

Sec. 8. Designation of the offense. — The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.

Although at the time the crime was committed, generic aggravating circumstance need not be alleged in the Information, however, the general rule had been applied retroactively because if it is more favorable to the accused. 76 Even if treachery is proven but it is not alleged in the information, treachery cannot aggravate the penalty for the crime.

There being no modifying circumstances in the commission of the felony of robbery with homicide, Juan and Victor should each be meted the penalty of reclusion perpetua conformably with Article 63 of the Revised Penal Code. chanrob1es virtua1 1aw 1ibrary

Civil Liability of Juan and Victor

The trial court awarded the total amount of P300,000.00 to the heirs of SPO1 Manio, Jr. The court did not specify whether the said amounts included civil indemnity for the death of the victim, moral damages and the lost earnings of the victim as a police officer of the PNP. The Court shall thus modify the awards granted by the trial court.

Since the penalty imposed on Juan and Victor is reclusion perpetua, the heirs of the victim are entitled to civil indemnity in the amount of P50,000.00. The heirs are also entitled to moral damages in the amount of P50,000.00, Rosemarie Manio having testified on the factual basis thereof. 77 Considering that treachery aggravated the crime, the heirs are also entitled to exemplary damages in the amount of P25,000.00. This Court held in People v. Catubig 78 that the retroactive application of Section 8, Rule 110 of the Revised Rules of Criminal Procedure should not impair the right of the heirs to exemplary damages which had already accrued when the crime was committed prior to the effectivity of the said rule. Juan and Victor are also jointly and severally liable to the said heirs in the total amount of P30,000.00 as actual damages, the prosecution having adduced evidence receipts for said amounts. The heirs are not entitled to expenses allegedly incurred by them during the wake as such expenses are not supported by receipts. 79 However, in lieu thereof, the heirs are entitled to temperate damages in the amount of P20,000.00. 80 The service firearm of the victim was turned over to the Evidence Custodian of the Caloocan City Police Station per order of the trial court on October 22, 1997. 81 The prosecution failed to adduce documentary evidence to prove the claim of Five Star Bus, Inc. in the amount of P6,000.00. Hence, the award should be deleted. However, in lieu of actual damages, the bus company is entitled to temperate damages in the amount of P3,000.00. 82

The heirs are likewise entitled to damages for the lost earnings of the victim. The evidence on record shows that SPO1 Manio, Jr. was born on August 25, 1958. He was killed on September 28, 1996 at the age of 38. He had a gross monthly salary as a member of the Philippine National Police of P8,065.00 or a gross annual salary of P96,780.00. Hence, the heirs are entitled to the amount of P1,354,920.00 by way of lost earnings of the victim computed, thus: chanrob1es virtual 1aw library

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Bulacan is hereby AFFIRMED with MODIFICATIONS. Accused-appellants Juan Gonzales Escote, Jr. and Victor Acuyan are hereby found guilty beyond reasonable doubt of the felony of robbery with homicide defined in Article 294, paragraph 1 of the Revised Penal Code and, there being no modifying circumstances in the commission of the felony, hereby metes on each of them the penalty of RECLUSION PERPETUA. Said accused-appellants are hereby ordered to pay jointly and severally the heirs of the victim SPO1 Jose C. Manio, Jr. the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, P1,349,920.00 for lost earnings, P30,000.00 as actual damages and P25,000.00 as exemplary damages. The award of P6,000.00 to the Five Star Bus, Inc. is deleted. However, the said corporation is awarded the amount of P3,000.00 as temperate damages. chanrob1es virtua1 1aw 1ibrary

Costs de oficio.

SO ORDERED.

[G.R. No. 118334. February 20, 2001.]PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. LARRY CONSEJERO y PASCUA and ROMMEL MALAPIT

This is an appeal from the February 2, 1994 Decision 1 of the Regional Trial Court of Aparri, Cagayan, Branch 6, in Criminal Case No. VI-619, convicting accused-appellant Larry Consejero y Pascua of the crime of robbery with homicide. chanrob1es virtua1 1aw 1ibrary

The information against accused-appellant alleges: chanrob1es virtual 1aw library

That on or about May 25, 1989, in the municipality of Lal-lo, province of Cagayab (sic), and within the jurisdiction of this Honorable Court, the said accused LARRY CONSAJERO (sic) and ROMMEL MALAPIT, armed with an M-14, conspiring together and helping one another, with evident premeditation, with intent to gain, and by use of violence against and intimidation of persons, did then and there willfully, unlawfully and feloniously take, steal and carry away against the will of the owner, Jaime Israel, one motor engine, Briggs and Straton, worth THREE THOUSAND SEVEN HUNDRED EIGHTY SIX (P3,786.00) PESOS, Philippine Currency; and that on the same occasion (sic) of the Robbery, and in furtherance of their criminal design, the said accused, LARRY CONSAJERO (sic) and ROMMEL MALAPIT, armed with an M-14 and a deadly weapon, conspiring together and helping one another with intent to kill and with treachery, did then and there willfully, unlawfully and feloniously attack, assault and stabbed one DESTO CASTILLO and one DIONISIO USIGAN inflicting upon them several injuries in the different parts of their bodies which caused their death.

That the crime was committed in an inhabited place.

CONTRARY TO LAW. 2

Upon arraignment on April 30, 1991, 3 accused-appellant Larry Consejero entered a plea of not guilty. His co-accused, Rommel Malapit was not arraigned, being still at large. At the trial, the prosecution presented the following witnesses: Jaime Israel, Melchor Pulido, Romana Castillo, Zenaida Usigan and Dr. Cesar R. Real.

The facts are as follows: chanrob1es virtual 1aw library

In the morning of May 26, 1989, two dead bodies were discovered not far from the river bank of Barangay Jurisdiccion, Lal-lo, Cagayan. Found Lying on the ground, face down, drenched in his own blood with hands tied at the back, was the lifeless body of Modesto Castillo. Twenty meters away lay the dead body of Dionisio Usigan, who sustained thirty-one stab and hack wounds on the different parts of his body. 4

According to prosecution witness Jaime Israel, the victims were last seen alive in the afternoon of May 25, 1989, when the two went out to fish at the Cagayan River using his motorized banca with Briggs and Straton engine. 5

Another prosecution witness, Melchor Pulido, 6 a resident of Maxingal, Lal-lo, Cagayan, testified that in the afternoon of May 25, 1989, his neighbor, Accused-appellant Larry Consejero, a CAFGU member, invited him to gather fish caught in the Cagayan River. Melchor Pulido agreed, and, together with accused-appellant, who was then carrying an M-14 armalite rifle, he rode a banca towards Barangay Jurisdiccion, Lal-lo, Cagayan. That was between the hours of 8:00 o’clock and 9:00 o’clock in the evening of May 25, 1989. With them was accused Rommel Malapit, who was also armed with an M-14 armalite rifle.

After emptying the contents of the fishnets, they noticed at a distance a motorized banca carrying two persons. They paddled towards the motorized banca. When they got nearer, Accused-appellant asked the two persons in the boat, "Were you not the ones who usually demand quota from Barangay Captain Bacuyan?" The two replied, "No." Then, Accused-appellant asked the two if there was a nearby store. They answered in the affirmative, whereupon accused-appellant told them to accompany him and his companions to the said store. The two bancas then proceeded to the river bank. Upon reaching the bank, however, Accused-appellant said that only one should accompany them. Thus, one of them, who turned out to be Dionisio Usigan, went with accused-appellant Larry Consejero and accused Rommel Malapit towards the northeast direction. Left behind were Melchor Pulido and Modesto Castillo. After ten (10) minutes, Accused-appellant and accused

Rommel Malapit returned holding an armalite rifle and a ten-inch bolo, respectively. Dionisio Usigan was not with them anymore.

Upon orders of accused-appellant, Rommel Malapit tied the hands of Modesto Castillo at his back using a portion of a fishnet and, thereafter, they brought him to the same northeast direction where Usigan was taken. Again, only Larry Consejero and Rommel Malapit came back; Modesto Castillo was no longer with them.

Accused-appellant then detached the engine of the motorized banca ridden by Usigan and Castillo, while Melchor Pulido was told to stand as look-out. After they loaded the engine in their banca, the three of them headed home. On the way, the two accused told Melchor Pulido that the persons they met were already dead. Accused-appellant threatened to kill Melchor Pulido and his family if Pulido reveals what he knew. After they alighted from the banca, Pulido went straight home while accused-appellant and Rommel Malapit brought the engine of the motorized banca to a cogonal area. chanrob1es virtua1 1aw 1ibrary

The following morning, May 26, 1989, the lifeless body of Modesto Castillo and Dionisio Usigan were found not far from the river bank of Barangay Jurisdiccion, Lal-lo, Cagayan. The motorized banca ridden by the two deceased was nowhere to be found. 7

The postmortem examination of the two deceased, conducted at around 12:00 noon of May 26, 1989 by Dr. Cesar R. Real, Municipal Health Officer of Lal-lo, Cagayan, disclosed that Modesto Castillo and Dionisio Usigan died approximately between 7:00 o’clock p.m. to 12:00 o’clock midnight of May 25, 1989. Modesto Castillo sustained eight (8) incised and stab wounds; while Dionisio Usigan sustained a total of thirty-one (31) hack, stab, and incised wounds on the different parts of his body. 8

Melchor Pulido explained that he executed a sworn statement only on September 12, 1990, because he was afraid that accused-appellant would make good his threat to kill him and his family if he would reveal what he knew. In fact, they had to move to the house of his parents-in-law in order to avoid accused-appellant, who happened to be their neighbor. It was only when accused-appellant was no longer a member of the CAFGU that he gathered enough courage to report to the authorities. 9

The defense relied mainly on denial and alibi. Accused-appellant testified that he became a CAFGU member sometime before May 25, 1989, and was accordingly issued an M-14 armalite rifle. He recounted that in the afternoon of May 25, 1989, on his own initiative, he went to the Office of SPO3 Rogelio Constantino, PNP, Lal-lo, Police Station to ask permission to go to the then 117th Philippine Constabulary Company at Barangay Punta, Aparri, Cagayan, to report the presence of some New People’s Army members along the other side of the Cagayan River at Sitio Sianig, Barangay Fabrica, Lal-lo, Cagayan. Accused-appellant left his M-14 armalite rifle with one Rey Conseja, another CAFGU member, before going to Aparri, Cagayan. He arrived there at around 3:00 o’clock in the afternoon of May 25, 1989, and immediately reported to SPO3 Edgardo Daniel. 10

Accused-appellant further testified that on his way to get a ride home, he met two police officers in the person of SPO1 Porfirio Divina and SPO3 Amante Gorospe, who invited him to have a drinking spree inside the headquarters of the PNP of Aparri. They later transferred to the house of SPO1 Porfirio Divina where they resumed drinking. Accused-appellant spent the night in said house. The following morning, May 26, 1989, at around 6:00 o’clock, he left the house of SPO1 Divina, rode a passenger jeepney and went straight home. 11 Accused-appellant claimed that he ceased to be a member of the CAFGU and surrendered his M-14 armalite rifle on March 16, 1990. From then on, he stayed most of the time in Aparri, Cagayan, for fear of the NPAs who were allegedly after him. 12

The version of accused-appellant was corroborated by the testimony of SPO1 Porfirio Divina, SPO3 Edgardo Daniel, SPO3 Rogelio Constantino and Patrolman Virgilio Camacam.

On February 2, 1994, the trial court rendered the judgment of conviction under review. The dispositive portion thereof reads: jgc:chanrobles.com.ph

"WHEREFORE, premises considered, this Court, in the interest of justice, after trial on the merits of this case, finds LARRY CONSEJERO y Pascua, one of the two (2) accused herein, Rommel Malapit, the other of the two (2) accused herein, being still at-large, GUILTY beyond reasonable doubt, as principal, of the crime of Robbery With Homicide, as defined and penalized under Article 293 and 294, No. 1 of the Revised Penal Code, and hereby sentences him to suffer the penalty of RECLUSION PERPETUA and to indemnify the Heirs of DIONISIO USIGAN, one of the two (2) deceased victims herein, in the amount of FIFTY THOUSAND PESOS (P50,000.00), Philippine Currency, as well as the Heirs of MODESTO OR DESTO CASTILLO, the other of the two (2) deceased victims herein, in the amount of FIFTY THOUSAND PESOS (P50,000.00), Philippine Currency, and to pay the costs of suit.

The bail bond set for the provisional liberty of Larry Consejero, one of the two accused herein, is hereby cancelled and, immediately after the promulgation of this Decision, the Officer-in-Charge of the Provincial Jail of Cagayan at Aparri, Cagayan or his duly authorized representative, is hereby ordered to immediately transmit his person for confinement at the Provincial Jail of Cagayan at Tuguegarao, Cagayan, and, immediately thereafter, the Provincial Warden of Cagayan at Tuguegarao, Cagayan shall transmit his person to the National Penitentiary at Muntinlupa, Rizal.

SO ORDERED. 13

Hence, Accused-appellant is before this Court, contending that: chanrob1es virtual 1aw library

ITHE REGIONAL TRIAL COURT ERRED IN CONSIDERING THE EVENTS TESTIFIED TO BY MELCHOR PULIDO AS CONSTITUTING

FACTS AND CIRCUMSTANCES FROM WHICH GUILT COULD BE INFERRED; AND, IN CONSIDERING SAID FACTS AND CIRCUMSTANCES TO HAVE BEEN CORROBORATED BY OTHER PROSECUTION EVIDENCE;

IIASSUMING THAT THE REGIONAL TRIAL COURT DID NOT COMMIT THE FIRST ERROR, IT ERRED IN GIVING CREDENCE TO THE

TESTIMONY OF MELCHOR PULIDO AS SAID TESTIMONY IS FILLED WITH IMPROBABILITIES; AND, HE REVEALED TO THE AUTHORITIES HIS KNOWLEDGE OF THE ALLEGED CRIME ONLY AFTER MORE THAN A YEAR AND THREE MONTHS FROM THE

TIME OF THE ALLEGED COMMISSION OF THE CRIME.

IIITHE REGIONAL TRIAL COURT ERRED IN REJECTING ACCUSED-APPELLANT’S DEFENSE OF ALIBI. 14

The appeal is without merit. chanrob1es virtua1 1aw 1ibrary

Like a tapestry made up of strands which create a pattern when interwoven, the circumstances proved should constitute an unbroken chain which leads to one fair and reasonable conclusion, that the appellant is guilty beyond reasonable doubt. In other words, the circumstances or a combination thereof, should point to overt acts of the appellant that would logically usher to the conclusion and no other that he is guilty of the crime charged. 15 Thus, Rule 133, Section 4 of the Rules of Court, provides:chanrob1es virtual 1aw library

SECTION 4. Circumstantial evidence, when sufficient. — Circumstantial evidence is sufficient for conviction if: chanrob1es virtual 1aw library

a) There is more than one circumstance;b) The facts from which the inferences are derived are proven; andc) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.

In the case at bar, the evidence presented by the prosecution established the following circumstances pointing to the fact that accused- appellant was the author of the killing of the two deceased and the unlawful taking of the engine of the motorized banca:chanrob1es virtual 1aw library

1) In the afternoon of May 25, 1989, the two deceased went out fishing at the Cagayan River using Jaime Israel’s motorized banca with Briggs and Straton engine.

2) Between the hours of 8:00 and 9:00 o’clock in the evening of May 25, 1989, prosecution witness Melchor Pulido together with accused-appellant and accused Rommel Malapit, who were both armed with M-14 armalite rifles, also went fishing at the Cagayan River, particularly in Barangay Jurisdiccion, Lal-lo, Cagayan.

3) When the three were emptying the fish nets, they noticed a motorized banca carrying two persons who turned out to be the two deceased. Accused-appellant asked the two persons on board the motorized banca if they were the ones exacting quota from Barangay Captain Bacuyan, to which they replied, "No." cralaw virtua1aw library

4) Accused-appellant requested the two deceased to accompany them to a nearby store. When they reached the river bank the two accused took along with them Dionisio Usigan and proceeded towards the northeast direction; while Modesto Castillo was left on the river bank.

5) After ten minutes, Accused-appellant, who was holding his armalite rifle, and Rommel Malapit, who was clasping a 10-inch bolo in his hand, went back, but the deceased Dionisio Usigan was no longer with them.

6) Accused-appellant ordered Rommel Malapit to tie the hands of Modesto Castillo, which he obeyed using a portion of a fishnet. Thereafter, the two accused brought Modesto Castillo towards the same northeast direction. That was the last time Castillo was seen alive.

7) The two accused detached the engine of the motorized banca and loaded it in their own banca while Melchor Pulido was asked by accused-appellant to stand as look-out.

8) On their way home, the two accused told Melchor Pulido that the two persons they met were already dead. Accused-appellant also threatened to kill Melchor Pulido and his family if Melchor would reveal what he knew.

9) When they alighted from the banca, Melchor Pulido saw the two accused bring the engine to a cogonal area.

10) In the morning of May 26, 1989, the dead body of Modesto Castillo, which sustained several stab wounds and whose hands were tied at his back with a portion of a fishnet, was discovered not far from the river bank of Barangay Jurisdiccion, Lal-lo, Cagayan. Twenty meters away was located the dead body of Dionisio Usigan with 31 stab wounds. The motorized banca of Jaime Israel was no longer recovered.

11) The result of the postmortem examination of the two deceased shows that the approximate time of death was between 7:00 o’clock p.m. to 12:00 midnight of May 25, 1989.

From the foregoing, it can be gleaned unerringly that an unbroken chain of circumstances proven by the prosecution clearly shows the guilt of Accused-Appellant. Unequivocally established is the fact that the two deceased were last seen alive in the company of accused-appellant Larry Consejero and accused Rommel Malapit. A combination of their concerted and complementary acts vividly manifest a common criminal intent to kill the victims and to take the engine of the motorized banca. Thus, their hostile approach towards the two deceased in inquiring if they were the ones exacting quota from the barangay captain, their treacherous and intimidating scheme in cajoling the two deceased to moor their banca, their strategic taking of the two deceased one after the other and the violent act of tying the hands of Modesto Castillo, not to mention the ten-inch bolo clasped in the hands of Rommel Malapit, all taken together with the circumstances that the dead bodies of the two deceased were found the next morning in the same place where they were last seen alive, usher to the inevitable conclusion of accused-appellant’s liability for the death of the two deceased. Likewise, the fact that the motorized banca and the engine thereof were no longer found at the river bank where they were last seen, points the liability for the loss of the engine to accused-appellant who was seen to have loaded said engine in their banca on the night of May 25, 1989.

Similarly, in People v. Bionat, 16 the Court, based on circumstantial evidence, meted a judgment of conviction on accused-appellant who, armed with a gun and together with others, tied the victim and took him away from his house. The victim was last seen alive under such circumstances and found dead the following day with stab wounds.

In the case at bar, the gamut of evidence upon which the trial court based its judgment of conviction is anchored mainly on the testimony of prosecution witness Melchor Pulido. Expectedly, attack on his credibility is proffered by the Accused-Appellant. The constant rule in our jurisdiction, however, is that the Court will accord great respect to the factual conclusions drawn by the trial court, particularly on the matter of credibility of witnesses since the trial judge had the opportunity — which is denied to appellate courts — to observe the behavior and demeanor of witnesses while testifying. The trial judge is thus able to form at first hand a judgment as to whether particular witnesses are telling the truth or not. 17 chanrob1es virtua1 law library

Thus, the observation made by the trial court on the demeanor of Marcelo Pulido while testifying, comes to the fore, to wit —This Court, after observing the demeanor of . . . Melchor Pulido . . . has come to the belief that the same was marked with spontaneity, clarity and candor, all of which were perceptible in the emphasis, gesture and inflection of their voices, frankness of their countenances, simplicity of their languages and total absence of artificiality in their whole manner. It has also come to the belief that, in conformity with day-to-day common knowledge, observation and experience of ordinary man, both . . . [his] person[s] and . . . [his] testimonies can undoubtedly pass the test of solidly and firmly set touchstones of

credibility, for the reason that, aside from demonstrating characters of truthfulness, both in . . . [his] person[s] and in . . . [his] testimonies, . . . Melchor Pulido . . . [has] not been positively, clearly and convincingly proven by the defense beyond reasonable doubt, or in any manner whatsoever, to have been or to be nursing any bias or prejudice against the cause of the defense, particularly against that of each of the two accused herein, Larry Consejero and Rommel Malapit, who is still at-large, and, more particularly, against the former, and/or to have uttered prior or subsequent statements, which are inconsistent with . . . [his] testimonies in open court during the trial on the merits of this case, and/or to have failed to perceive the facts testified to by . . . [him]. Indeed, the credibility of . . . [his] person[s] and that of . . . [his] testimonies . . . [has] been greatly enhanced, inasmuch as the same . . . [has] neither been competently impeached nor sufficiently rebutted, in any manner whatsoever, by the defense! 18

As the trial court gave full faith and credit to the testimony of Melchor Pulido which this Court, after a careful scrutiny thereof, found to be credible and worthy of belief, the affirmance of the decision under review is in order.

The delay of almost sixteen months before Melchor Pulido executed a sworn statement does not in any way diminish the value of his testimony. As adequately explained by him, the threat on his life and that of his family’s cowed him to silence. It was only when accused-appellant was no longer a CAFGU member, and hence, no longer armed, that he gained the courage to reveal what he knew. Verily, delay or vacillation in reporting a crime does not negate the credibility of a witness, especially when the delay is satisfactorily explained. 19 The alleged improbabilities pointed out by accused-appellant are too inconsequential to merit attention. As correctly argued by the Solicitor General, they refer merely to trivial matters which do not alter the substance of Melchor Pulido’s testimony positively identifying accused-appellant as one of the culprits. Moreover, Accused-appellant cannot successfully make an issue on the two deceased’s alleged improbable obedience to the orders of accused-appellant as well as their failure to put up resistance. The same is true with respect to the failure of Melchor Pulido to help the two deceased. Suffice it to say, Melchor Pulido as well as the two deceased were understandably afraid to antagonize the accused-appellant who was then a CAFGU member and armed with an M-14 armalite rifle. Besides, no standard form of behavior may be expected of Melchor Pulido and the victims. Persons do not necessarily react uniformly to a given situation, given that what may be natural to one may be strange to another. 20

Anent the defense of alibi theorized by accused-appellant, the Court is of the opinion, and so holds, that the same cannot prevail over the positive identification of accused-appellant by Melchor Pulido as one of the culprits. According to accused-appellant, he was in Aparri, Cagayan at around 3:00 o’clock in the afternoon of May 25, 1989, until the following morning. As testified, however, by Jaime Israel, he in fact met accused-appellant at around 4:30 in the afternoon of May 25, 1989, on his way home from the Bureau of Posts of Lal-lo, Cagayan. 21 What is more, Accused-appellant failed to prove the physical impossibility of his presence at the scene of the crime at the time of the commission thereof. Settled is the rule that for alibi to prosper it is not enough to prove that the accused was somewhere else when the crime was committed, but he must also demonstrate that it was physically impossible for him to have been at the scene of the crime at the time of its commission.

The trial court found that the geographical distance between Barangay Minanga, Aparri, Cagayan, and Barangay Jurisdiccion, Lal-lo, Cagayan is only twenty (20) kilometers, more or less, which could be reached by traveling along the national highway by a motor vehicle for twenty-five (25) to thirty (30) minutes more or less, or by motorized banca for one and a half (1 1/2) hours. 23 Thus, even assuming that accused-appellant was indeed in Aparri, Cagayan, at around 3:00 o’clock in the afternoon of May 25, 1989, the probability of his traveling back to Lal-lo, Cagayan, and his presence at the locus criminis at the time of the commission of the crime, is not at all precluded. Hence, his defense of alibi must fail.

The crime committed by accused-appellant, however, could not be "robbery with homicide." The elements of said crime are as follows: a) the taking of personal property with the use of violence or intimidation against a person; b) the property thus taken belongs to another; c) the taking is characterized by intent to gain or animus lucrandi; and d) on the occasion of the robbery or by reason thereof, the crime of homicide, which is therein used in a generic sense, was committed. 24

In People v. Amania, 25 the Court had occasion to rule that in robbery with homicide, the killing must have been directly connected with the robbery. It is necessary that there must have been an intent on the part of the offenders to commit robbery from the outset and, on occasion or by reason thereof a killing takes place. The original design must have been robbery, and the homicide, even if it precedes or is subsequent to the robbery, must have a direct relation to, or must be perpetrated with a view to consummate the robbery. The taking of the property should not be merely an afterthought which arose subsequent to the killing.

In the present case, it does not appear that the primary purpose of accused-appellant in accosting the two deceased was to rob the engine of the motorized banca. From all indications, Accused-appellant, a CAFGU member, was primarily interested in taking the life of the two deceased whom he suspected of exacting quota from the Barangay captain, and the taking of the subject engine was merely an afterthought that arouse subsequent to the killing of the victims. chanrob1es virtua1 1aw 1ibrary

Clearly therefore, the criminal acts of accused-appellant constitute not a complex crime of robbery with homicide, but three separate offenses: two crimes for the killing of the two deceased, and one for the taking of the Briggs and Straton engine of Jaime Israel.

With respect to Dionisio Usigan, the crime committed is homicide because the qualifying circumstance of treachery alleged in the information cannot affect the liability of Accused-Appellant. There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. 26 Considering

that no evidence on record showed that accused-appellant consciously and purposely adopted means and methods that would make sure that the killing of Dionisio Usigan would not cause any risk to himself, the crime committed is only homicide.

In the case of Modesto Castillo, the taking of his life was undoubtedly attended by the qualifying circumstance of treachery. In tying Modesto Castillo’s hand at his back, Accused-appellant obviously adopted a method that would insure the absence of any risk to himself which might arise from the defense that may possibly be put up by Modesto Castillo. Hence, the crime committed by accused-appellant is murder.

In taking the Briggs and Straton engine of the motorized banca, the crime perpetrated was theft. In People v. Basao, 27 the Court ruled that where the taking of the personal property was merely an afterthought and was done after the culprit has successfully carried out his primary criminal intent to kill the victim, and hence, the use of violence or force is no longer necessary, the crime committed is theft. Conformably, since the taking of the engine in the present case was merely an afterthought, and was perpetrated after accused-appellant had already accomplished his original criminal purpose of killing the two deceased, the felony committed is theft.

Then too, the aggravating circumstance of evident premeditation in the unlawful taking of the engine cannot be considered here. Though alleged in the information, the prosecution failed to substantiate the attendance of the elements 28 thereof in the unlawful taking of the engine.

The penalty for homicide is reclusion temporal. There being neither mitigating nor aggravating circumstances, the appropriate penalty is reclusion temporal in its medium period. 29 Applying the Indeterminate Sentence Law, Accused-appellant is entitled to an indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum.

At the time accused-appellant perpetrated the crime of murder, the same was punishable by reclusion temporal in its maximum period to death. Since there was neither aggravating nor mitigating circumstance attendant in its commission, the proper penalty is reclusion perpetua. 30

As shown by the receipt presented by Jaime Israel, he purchased the Briggs and Straton engine for P3,786.00. 31 Under Article 309, paragraph 3, of the Revised Penal Code, theft is punishable by prision correccional in its minimum and medium periods if the value of the property stolen is more than P200.00 but does not exceed P6,000.00. Absent aggravating and mitigating circumstances in the unlawful taking of the engine, the penalty for theft must be imposed in its medium period. 32 With the application of the Indeterminate Sentence Law, the proper penalty, as reparation for the unrecovered Briggs and Straton engine, is four (4) months and twenty-one (21) days of arresto mayor, as minimum, to one (1) year, eight (8) months and twenty-one (21) days of prision correccional, as maximum. chanrob1es virtua1 1aw 1ibrary

WHEREFORE, the decision of the Regional Trial Court of Aparri, Cagayan, Branch 86, in Criminal Case No. VI-619, is SET ASIDE and another one is rendered,. finding accused-appellant Larry Consejero y Pascua, GUILTY beyond reasonable doubt of the following crimes —

1) Murder, for the killing of Modesto Castillo, for which he is sentenced to suffer the penalty of reclusion perpetua;

2) Homicide, for the death of Dionisio Usigan, for which he is sentenced to suffer an indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum.

3) Theft, for the unlawful taking of the Briggs and Straton engine of the motorized banca owned by Jaime Israel, for which he is sentenced to suffer an indeterminate penalty of four (4) months and twenty-one (21) days of arresto mayor, as minimum, to one (1) year, eight (8) months and twenty-one (21) days of prision correccional, as maximum. chanrob1es virtua1 1aw 1ibrary

Accused-appellant is further ordered to indemnify the heirs of Modesto Castillo and Dionisio Usigan the amount of Fifty Thousand Pesos (P50,000.00) each as indemnity ex delicto.

[G.R. No. 120548. October 26, 2001.]PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JOSELITO ESCARDA

On appeal is the decision dated September 21, 1994, of the Regional Trial Court of Cadiz City, Branch 60, in Criminal Case No. 586-S, finding accused Joselito Escarda and Jose Villacastin Jr., guilty beyond reasonable doubt of violation of the Anti-Cattle Rustling Law. In its decision, the trial court decreed: chanrob1es virtual 1aw library

WHEREFORE, in view of the foregoing circumstances, this Court finds both accused JOSELITO ESCARDA and JOSE

VILLACASTIN, JR., guilty beyond reasonable doubt of the crime of "Viol. of P.D. 533" (Anti-Cattle Rustling Law), and there being the presence of three generic aggravating circumstances of [r]ecidivism, nighttime and unlawful entry, with no mitigating circumstances to offset the same, as such, the accused are each sentenced to suffer, considering the Indeterminate Sentence Law, the imprisonment of EIGHTEEN (18) YEARS, EIGHT (8) MONTHS and ONE (I) DAY as the minimum to RECLUSION PERPETUA as the maximum, together with all the accessory penalties imposed by law and to indemnify the offended party, Joel Barrieses, in the amount of P5,000.00 without subsidiary imprisonment in case of insolvency.chanrob1es virtua1 1aw 1ibrary

The accused being detained, are hereby entitled to the full credit of their preventive imprisonment as provided for under R.A. 6127. Costs against both accused. SO ORDERED.

In an information dated April 18, 1988, Provincial Fiscal Othello Villanueva charged accused with violation of Presidential Decree No. 533, otherwise known as Anti-Cattle Rustling Law of 1974, as follows: chanrob1es virtual 1aw library

The undersigned Provincial Fiscal accuses JOSELITO ESCARDA, JOSE VILLACASTIN, JR., HERNANI ALEGRE (at-large) and RODOLFO CAÑEDO (at-large) of the crime of Violation of Presidential Decree No. 533, (Anti-Cattle Rustling Law of 1974), committed as follows: chanrob1es virtual 1aw library

That on or about the 29th day of July, 1987, in the Municipality of Sagay, Province of Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the first two (2) above-named accused, in company of their two (2) other co-accused, namely: Hernani Alegre and Rodolfo Cañedo, who are both still-at-large, conspiring, confederating and mutually help[ing] one another, with intent of gain, did then and there, wilfully, unlawfully and feloniously take, steal and carry away two (2) female carabaos, valued in the total amount of FIVE THOUSAND PESOS (P5,000.00), Philippine Currency, belonging to JOEL BARIESES, without the consent of the latter, to the damage and prejudice of the said owner in the aforestated amount. chanrob1es

virtua1 law library

CONTRARY TO LAW. 2

Upon arraignment, Accused Escarda and Villacastin, assisted by counsel, entered a plea of not guilty. Thereafter, trial on the merits ensued.

The facts as presented by the prosecution and summarized by the trial court are as follows: chanrob1es virtual 1aw library

[Dionesio Himaya] testified that on July 29, 1987 at about 2:00 o’clock in the morning in [Hacienda] Ricky, Jose Villacastin, Jr. and his group passed by his house. [He] was still awake at that time because he was watching over his cornfield and while doing so, he saw the two accused remove the cyclone wire which was used as the corral for the two (2) carabaos of Rosalina Plaza. He was able to see Jose Villacastin, Jr. cut the cyclone wire because he was just four (4) arms length away from them and after Jose Villacastin cut the wire, they swept it aside and untied the two (2) carabaos. After untying the carabaos, they rode on it and proceeded to the canefields. [He] saw two (2) persons riding on the carabao whom he identified as Jose Villacastin, Jr. together with Joselito Escarda. He awakened Rosalina Plaza who thereafter went to Joel Barrieses, owner of the carabaos, to inform the latter that his carabaos were stolen.

[Rosalina Plaza] testified that on July 29, 1987 at about 2:00 o’clock in the morning, in the residence of Joel Barrieses, Dionesio Himaya called her and informed her that the carabaos were stolen and when asked who stole the carabaos, Dionesio Himaya only mentioned Jose Villacastin, Jr. Before the incident of July 29, 1987, she already knew the person of Jose Villacastin, Jr., because the latter always passed by their house. After she was informed of the stealing of the carabaos, she went to the corral to check whether the carabaos were there but discovered that the beasts were no longer there and the cyclone wire was destroyed. She informed Joel Barrieses, that Jose Villacastin, Jr., stole the carabaos and she went to the

334th PC Company and reported the incident. 3

In their defense, Escarda and Villacastin denied the charges. Escarda claimed that he was sleeping in the house of Gilda Labrador during the incident while Villacastin declared that he too was sleeping in his house at that time. 4 The defense version of the incident was summarized by the trial court as follows: chanrob1es virtual 1aw library

. . . Joselito Escarda testified that he did not know his co-accused in this case, specifically, Jose Villacastin, Hernani Alegre and Rodolfo Cahedo. Neither did he know of somebody by the name of Dionesio Himaya although he knew somebody by the name of Gilda Labrador. In the early morning of July 29, 1987, he was working as cane cutter and hauler in the hacienda of Javelosa located in Barrio Malubon, Sagay, Negros Occidental which is fifteen (15) kilometers away from the house of his mother where he was residing. On July 29, 1987, he started working at 8:00 o’clock in the morning and ended at 11:00. After he finished working in the field, he went to the house of his mother where he ate lunch and rested until 3:00 o’clock in the afternoon. In the evening of July 29, 1987, he slept at the house of Gilda Labrador starting at 7:00 o’clock in the evening and woke up at 6:00 o’clock in the morning of July 30, 1987. Sometime on August 29, 1987, he left alone for the dance hall located at Hda. Ricky to attend a dance held there because there was a fiesta at that time. While he was at the dance hall, he was arrested by the PC elements and brought to the 334th PC Company where he was maltreated. He was asked whether or not he stole the carabaos at Hda. Ricky but he denied the commission of the crime and again, he was maltreated. He suffered injuries when they maltreated him so he made a confession before them but did not sign the same. His injuries were not treated by a physician because the PC would not let him go out of the jail, so, his injuries healed while he was in jail. He did not know the names of the PC who maltreated him and forced him to admit the loss of the carabaos at Hda. Ricky because the maltreatment happened in the evening. Furthermore, he did not know the complainant in this case, i.e. Joel Barrieses.chanrob1es virtua1 1aw 1ibrary

[Jose Villacastin, Jr. testified] that on or before July 29, 1987, he did not know the accused Joselito Escarda, Hernani Alegre and Rodolfo Cañedo because in the early morning of July 29, 1987, at more or less 2:00 o’clock to 3:00 o’clock, he had not gone with Joselito Escarda, Hernani Alegre and Rodolfo Cañedo because he was sleeping in his house which is located in Sitio Candiis. He started sleeping at 8:00 o’clock in the evening of July 28, 1987 and woke up the next day, July 29, 1987 at 7:00 in the morning. On August 29, 1987 at 10:00 o’clock in the evening, he was attending a dance at Hda. Ricky and while watching the dance, he was arrested and brought to the 334th PC Headquarters in Tan-ao, Sagay, Negros Occidental. When they arrived at the PC Headquarters, they were investigated about the stealing of the carabaos and the PC elements wanted them to admit it. He denied what they were accusing him of because he has not committed the crime. He does not know of anybody by the name of Joel Barrieses. When he denied the commission of the crime, he was maltreated and was forced to admit it and to make a confession. They were detained for about a month at the 334th PC Headquarters and they were transferred to the Municipal Jail of Sagay, Negros Occidental and there was no lawyer present during his refusal to admit the stealing of the carabaos. 5

The trial court found the testimonies of the prosecution witnesses credible, while it disbelieved the defense of denial and alibi of accused Escarda and Villacastin. They were found guilty as charged. However, the charge against accused Rodolfo Cañedo was dismissed for insufficiency of evidence. Earlier, the charge against co-accused Hernani Alegre was dismissed on motion by the prosecution, for lack of evidence.

Insisting on their innocence, Escarda and Villacastin filed their notice of appeal. In their assignment of error, they alleged that the trial court erred in convicting them of the crime charged. 6

On November 27, 1995, we required the trial court to order the commitment of Escarda and Villacastin to the Bureau of Corrections or the nearest national penal institution. However, Executive Judge Renato Munez requested that their commitment to the Bureau of Corrections be deferred until the termination of the other criminal case 7 against them pending before the said trial court. Further, Captain Eduardo Legaspi, Acting Provincial Warden of Negros Occidental, also requested to hold in abeyance the commitment of Escarda and Villacastin in view of their pending criminal cases before the Regional Trial Court of Cadiz City. 8 Accordingly, we granted the aforesaid request for deferment. 9 On August 12, 1998, they were eventually committed to the New Bilibid Prison, Muntinlupa City. 10

On October 12, 1998, Escarda sought the approval of this Court to withdraw his appeal. 11 We required the Director of the New Bilibid Prison to confirm the voluntariness of said withdrawal. 12 In his certification dated July 15, 1999, Atty. Roberto Sangalang, who personally examined Escarda, attested that Escarda executed his urgent motion to withdraw appeal on his own free will and fully understood the consequences of the same. On August 9, 1 999, we granted Escarda’s motion to withdraw appeal. 13

Accordingly, we are now concerned only with the appeal of the remaining appellant, Jose Villacastin, Jr. In his brief, he assigns only one error: chanrob1es virtual 1aw library

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED OF THE CRIME CHARGED BEYOND REASONABLE DOUBT.

Appellant contends that the element of "taking away of carabaos by any means, method or scheme without the consent of the owner" was not proven by the prosecution. He also alleges that his identity was not established beyond reasonable doubt, thus, he should be acquitted. He adds that the prosecution failed to prove ownership of the stolen carabaos by presenting the certificate of ownership, 14 as required by the Anti-Cattle Rustling Law. chanrob1es virtua1 1aw 1ibrary

Cattle rustling is the taking away by any means, method or scheme, without the consent of the owner or raiser of cow, carabao, horse, mule, ass, or other domesticated member of the bovine family, whether or not for profit or gain, or whether committed with or without violence against or intimidation of any person or force upon things. Cattle rustling includes the killing of large cattle, or taking its meat or hide without the consent of the owner or raiser. 15

In this case, the overt act which gives rise to the crime of cattle rustling is the taking away of the carabaos by the accused without the consent of the caretaker. Dionisio Himaya testified that he saw appellant cut the cyclone wire used as corral for the carabaos. Afterwards, appellant untied the two carabaos. Then, appellant rode on one carabao while co-accused Escarda rode on the other and immediately proceeded to the canefield. 16 The taking was confirmed by Rosalina Plaza, the caretaker of the carabaos, who declared that after she was informed by Himaya about the incident, she went right away to the corral and discovered that indeed the two carabaos were missing.

Appellant’s assertion that his identity was not positively established deserves no serious consideration. Prosecution witness Dionisio Himaya identified appellant and Escarda as the rustlers. In his testimony, Himaya said he was awake at that time as he was watching over his cornfield nearby, and there was enough illumination from the moon. 17 He was just four arm’s length away. He saw appellant and Escarda unleash the two carabaos. He stated that appellant rode on one carabao while Escarda rode on the other, and both immediately went away. He said he easily recognized appellant as he knew him long before the incident. According to the witness, appellant was the nephew of his wife and used to visit them before. During the trial, the witness positively identified appellant as the same person who stole the carabaos. Appellant’s contention concerning lack of proper identification is, in our view, baseless and unmeritorious. chanrob1es virtua1 1aw 1ibrary

Similarly, appellant’s assertion, that the prosecution should have first presented the certificate of ownership of the stolen carabaos to warrant his conviction, is untenable. It is to be noted that the gravamen in the crime of cattle-rustling is the "taking" or "killing" of large cattle or "taking" its meat or hide without the consent of the owner. The "owner" includes the herdsman, caretaker, employee or tenant of any firm or entity engaged in the raising of large cattle or other persons in lawful possession of such large cattle. In this case Rosalina Plaza, the caretaker of the carabaos, did not consent to the taking away of the carabaos. She immediately informed Joel Barrieses, the owner, that the carabaos were stolen and reported the incident to the police. Note that the ownership was never put in issue during the trial in the lower court and is now raised belatedly. It is settled that, generally, questions not raised in the trial court will not be considered on appeal. 18

Appellant’s alibi must likewise fail. He insists that he was sleeping in his house at the time the crime occurred. He slept at 8:00 P.M., July 28, 1987 and woke up the next day, July 29, 1987 at 7:00 A.M. As the trial court noted, it is difficult to believe appellant’s claim that he slept for eleven hours straight just like Escarda. Besides, the rule is settled that alibi cannot prosper unless it is proven that during the commission of the crime, the accused was in another place and that it was physically impossible for him to be at the place where the crime was committed. 19 In this case, appellant failed to demonstrate satisfactorily that it was physically impossible for him to be in the crime scene at the time of the incident. Admittedly, the scene of the crime was only a fifteen-minute walk from appellant’s house. chanrob1es virtua1 1aw 1ibrary

We note that the trial court appreciated the aggravating circumstances of nighttime, unlawful entry and recidivism, without any mitigating circumstance. The prosecution, however, failed to specify these circumstances in the charge filed before the trial court, as now required expressly by the Code of Criminal Procedure effective December 1, 2000 but applicable retroactively for being procedural and pro reo. 20

Moreover, we find that the trial court also erred in appreciating the aggravating circumstance of recidivism. A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of the Code. In its decision, the trial court merely mentioned that appellant was convicted for cattle rustling under Criminal Case No. 627-S on February 8, 1993, at the time when the case at bar was being tried. It did not state that said conviction was already final. Even the records did not show that appellant admitted his previous conviction. As we had held before, there can be no recidivism without final judgment. 21 The best evidence of a prior conviction is a certified copy of the original judgment of conviction, and such evidence is always admissible and conclusive unless the accused himself denies his identity with the person convicted at the former trial. 22 chanrob1es virtua1 1aw 1ibrary

P.D. 533 does not supersede the crime of qualified theft of large cattle under Articles 309 23 and 310 24 under the Revised Penal Code. It merely modified the penalties provided for qualified theft of large cattle under Article 310 by imposing stiffer penalties thereon under special circumstances. 25 Under Section 8 26 of P.D. 533, any person convicted of cattle rustling shall, irrespective of the value of the large cattle involved, be punished by prision mayor in its maximum period to reclusion temporal in its medium period if the offense is committed without violence against or intimidation of persons or force upon things. If the offense is committed with violence against or intimidation of persons or force upon things, the penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed.

In the instant case, the offense was committed with force upon things as the perpetrators had to cut through the cyclone

wire fence to gain entrance into the corral and take away the two carabaos therefrom. Accordingly, the penalty to be imposed shall be reclusion temporal in its maximum period to reclusion perpetua. Applying the Indeterminate Sentence Law, the penalty imposable on appellant is only prision mayor in its maximum period as minimum, to reclusion temporal in its medium period as maximum. Thus, it is proper to impose on appellant only the indefinite prison term of ten (10) years and one (1) day of prision mayor as minimum; to fourteen (14) years, ten (10) months and twenty-one (21) days of reclusion temporal as maximum.chanrob1es virtua1 1aw 1ibrary

WHEREFORE, the assailed decision dated September 21, 1994, of the Regional Trial Court of Cadiz City, Branch 60, in Criminal Case No. 586-S, is AFFIRMED with MODIFICATION. Appellant Jose Villacastin, Jr., is declared guilty of violating the Anti-Cattle Rustling Law (P.D. 533) and sentenced to suffer the indeterminate penalty of ten (10) years and one (1) day of prision mayor as minimum; to fourteen (14) years, ten (10) months and twenty-one (21) days of reclusion temporal as maximum; and to indemnify offended party Joel Barrieses the amount of P5,000, and to pay the costs.

[G.R. NO. 139857 : September 15, 2006]

LEONILA BATULANON, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

This petition assails the October 30, 1998 Decision1 of the Court of Appeals in CA-G.R. CR No. 15221, affirming with modification the April 15, 1993 Decision2 of the Regional Trial Court of General Santos City, Branch 22 in Criminal Case Nos. 3453, 3625, 3626 and 3627, convicting Leonila Batulanon of estafa through falsification of commercial documents, and the July 29, 1999 Resolution3 denying the motion for reconsideration.

Complainant Polomolok Credit Cooperative Incorporated (PCCI) employed Batulanon as its Cashier/Manager from May 1980 up to December 22, 1982. She was in charge of receiving deposits from and releasing loans to the member of the cooperative.

During an audit conducted in December 1982, certain irregularities concerning the release of loans were discovered.4

Thereafter, four informations for estafa thru falsification of commercial documents were filed against Batulanon, to wit:

Criminal Case No. 3625

That on or about the 2nd day of June, 1982 at Poblacion Municipality of Polomolok, Province of South Cotabato, Philippines, and within the jurisdiction of the Honorable Court said accused being then the manager-cashier of Polomolok Credit Cooperative, Inc., (PCCI), entrusted with the duty of managing the aff[a]irs of the cooperative, receiving payments to, and collections of, the same, and paying out loans to members, taking advantage of her position and with intent to prejudice and defraud the cooperative, did then and there willfully, unlawfully and feloniously falsify a commercial document, namely: Cash/Check Voucher No. 30-A of PCCI in the name of Erlinda Omadlao by then and there making an entry therein that the said Erlinda Omadlao was granted a loan of P4,160, Philippine Currency, and by signing on the appropriate line thereon the signature of Erlinda Omadlao showing that she received the loan, thus making it appear that the said Erlinda Omadlao was granted a loan and received the amount of P4,160 when in truth and in fact the said person was never granted a loan, never received the same, and never signed the cash/check voucher issued in her name, and in furtherance of her criminal intent and fraudulent design to defraud PCCI said accused did then and there release to herself the same and received the loan of P4,160 and thereafter misappropriate and convert to her own use and benefit the said amount, and despite demands, refused and still refuses to restitute the same, to the damage and prejudice of PCCI, in the aforementioned amount of P4,160, Philippine Currency.5

Criminal Case No. 3626

That on or about the 24th day of September, 1982 at Poblacion, Municipality of Polomolok, Province of South Cotabato, Philippines, and within the jurisdiction of the Honorable Court, said accused being then the manager-cashier of Polomolok Credit Cooperative, Inc. (PCCI), entrusted with the duty of managing the affairs of the cooperative, receiving payments to, and collections of, the same, and paying out loans to members taking advantage of her position and with intent to prejudice and defraud the cooperative, did then and there willfully, unlawfully and feloniously falsify a commercial document, namely: Cash/Check Voucher No. 237 A of PCCI in the name of Gonafreda Oracion by then and there making an entry therein that the said Gonafreda Oracion was granted a loan of P4,000.00 and by signals on the appropriate line thereon the signature of Gonafreda Oracion showing that she received the loan, thus making it appear that the said Gonafreda Oracion was granted a loan, received the loan of P4,000.00 when in truth and in fact said person was never granted a loan, never received the same, and never signed the Cash/Check voucher issued in her name, and in furtherance of her criminal intent and fraudulent design to defraud PCCI said accused did then and there release to herself the same and received the amount of P4,000.00 and thereafter misappropriate and convert to her own use and benefit the said amount, and despite demands, refused and still refuses to restitute the same, to the damage and prejudice of PCCI, in the aforementioned amount of P4,000, Philippine Currency.

CONTRARY TO LAW.6

Criminal Case No. 3453

That on or about the 10th day of October 1982 at Poblacion, Municipality of Polomolok, Province of South Cotabato, Philippines, and within the jurisdiction of the Honorable Court, the said accused being then the manager-cashier of Polomolok Credit Cooperative, Inc., (PCCI), entrusted with the duty of managing the affairs of the cooperative, receiving payments to, and collection of the same and paying out loans to members, taking advantage of her position and with intent to prejudice and defraud the cooperative, did then and there willfully, unlawfully and feloniously falsify a commercial document, namely: an Individual Deposits and Loan Ledger of one Ferlyn Arroyo with the PCCI by then and there entering on the appropriate column of the ledger the entry that the said Ferlyn Arroyo had a fixed deposit of P1,000.00 with the PCCI and was granted a loan in the amount of P3,500.00, thus making it appear that the said person made a fixed deposit on the aforesaid date with, and was granted a loan by the PCCI when in truth and in fact Ferlyn Arroyo never made such a deposit and was never granted loan and after the document was so falsified in the manner set forth, said accused did then and there again falsify the Cash/Check Voucher of the PCCI in the name of Ferlyn Arroyo by signing therein the signature of Ferlyn Arroyo, thus making it appear that the said Ferlyn Arroyo received the loan of P3,500, Philippine Currency, when in truth and in fact said Ferlyn Arroyo never received the loan, and in furtherance of her criminal intent and fraudulent design to defraud PCCI said accused did then and there release to herself the same, and received the amount of P3,500, and thereafter, did then and there, wilfully, unlawfully and feloniously misappropriate and convert to her own personal use and benefit the said amount, and despite demands, refused and still refuses to restitute the same, to the damage and prejudice of the PCCI in the aforementioned amount of P3,500, Philippine Currency.

CONTRARY TO LAW.7

Criminal Case No. 3627

That on or about the 7th day of December, 1982 at Poblacion, Municipality of Polomolok, Province of South Cotabato, Philippines, and within the jurisdiction of the Honorable Court, the said accused being then the manager-cashier of Polomolok Credit Cooperative, Inc., (PCCI) entrusted with the duty of managing the affairs of the cooperative, receiving payments to, and collection of, the same and paying out loans to members, taking advantage of her position and with intent to prejudice and defraud the cooperative, did then and there willfully, unlawfully and feloniously falsify a commercial document, namely: an Individual Deposits and Loan Ledger of one Dennis Batulanon with the PCCI by then and there entering on the appropriate column of the ledger the entry that the said Dennis Batulanon had a fixed deposit of P2,000.00 with the PCCI and was granted a loan in the amount of P5,000.00 thus making it appear that the said person made fixed deposit on the aforesaid date with, and was granted a loan by the PCCI when in truth and in fact Dennis Batulanon never made such a deposit and was never granted loan and offer the document was so falsified in the manner set forth, said accused did then and there again falsify the Cash/Check Voucher No. 374 A of PCCI in the name of Dennis Batulanon by signing therein the signature of Dennis Batulanon, thus making it appear that the said Dennis Batulanon received the loan of P5,000.00 when in truth and in fact said Dennis Batulanon never received the loan and in furtherance of her criminal intent and fraudulent design to defraud PCCI said accused did then and there release to herself the same and receive the loan of P5,000, and thereafter, did then and there willfully, unlawfully and feloniously misappropriate and convert to her own personal use and benefit the said amount, and [despite] demands, refused and still refuses to restitute the same to the damage and prejudice of the PCCI in the aforementioned amount of P5,000, Philippine Currency.

CONTRARY TO LAW.8

The cases were raffled to Branch 22 of the Regional Trial Court of General Santos City and docketed as Criminal Case Nos. 3453, 3625, 3626 and 3627.

Batulanon pleaded not guilty to the charges, afterwhich a joint trial on the merits ensued.

The prosecution presented Maria Theresa Medallo, Benedicto Gopio, Jr., and Bonifacio Jayoma as witnesses.

Medallo, the posting clerk whose job was to assist Batulanon in the preparation of cash vouchers9 testified that on certain dates in 1982, Batulanon released four Cash Vouchers representing varying amounts to four different individuals as follows: On June 2, 1982, Cash Voucher No. 30A10 for P4,160.00 was released to Erlinda Omadlao; on September 24, 1982, Cash Voucher No. 237A11 for P4,000.00 was released to Gonafreda12 Oracion; P3, 500.00 thru Cash Voucher No. 276A13 was released to Ferlyn Arroyo on October 16, 1982 and on December 7, 1982, P5,000.00 was released to Dennis Batulanon thru Cash Voucher No. 374A.14

Medallo testified that Omadlao, Oracion, and Dennis Batulanon were not eligible to apply for loan because they were not bona fide members of the cooperative.15 Ferlyn Arroyo on the other hand, was a member of the cooperative but there was no proof that she applied for a loan with PCCI in 1982. She subsequently withdrew her membership in 1983.16 Medallo stated that pursuant to the cooperative's by-laws, only bona fide members who must have a fixed deposit are eligible for loans.17

Medallo categorically stated that she saw Batulanon sign the names of Oracion and Arroyo in their respective cash vouchers and made it appear in the records that they were payees and recipients of the amount stated therein.18 As to the signature of Omadlao in Cash Voucher No. 30A, she declared that the same was actually the handwriting of appellant.19

Gopio, Jr. was a member of PCCI since 1975 and a member of its board of directors since 1979. He corroborated Medallo's testimony that Omadlao, Arroyo, Oracion and Dennis Batulanon are not members of PCCI. He stated that Oracion is Batulanon's sister-in-law while Dennis Batulanon is her son who was only 3 years old in 1982. He averred that membership in the cooperative is not open to minors.20

Jayoma was the Vice-Chairman of the PCCI Board of Directors in 1980 before becoming its Chairman in 1982 until 1983. He testified that the loans made to Oracion, Omadlao, Arroyo and Dennis Batulanon did not pass through the cooperative's Credit Committee and PCCI's Board of Directors for screening purposes. He claimed that Oracion's signature on Cash Voucher No. 237A is Batulanon's handwriting.21 Jayoma also testified that among the four loans taken, only that in Arroyo's name was settled.22

The defense presented two witnesses, namely, Maria Theresa Medallo who was presented as a hostile witness and Batulanon.

Medallo was subpoenaed by the trial court on behalf of the defense and was asked to bring with her the PCCI General Journal for the year 1982. After certifying that the said document reflected all the financial transactions of the cooperative for that year, she was asked to identify the entries in the Journal with respect to the vouchers in question. Medallo was able to identify only Cash Voucher No. 237A in the name of Gonafreda Oracion. She failed to identify the other vouchers because the Journal had missing pages and she was not the one who prepared the entries.23

Batulanon denied all the charges against her. She claimed that she did not sign the vouchers in the names of Omadlao, Oracion and Arroyo; that the same were signed by the loan applicants in her presence at the PCCI office after she personally released the money to them;24 that the three were members of the cooperative as shown by their individual deposits and the ledger; that the board of directors passed a resolution in August 1982 authorizing her to certify to the correctness of the entries in the vouchers; that it has become an accepted practice in the cooperative for her to release loans and dispense

with the approval of Gopio Jr., in case of his absence;25 that she signed the loan application and voucher of her son Dennis Batulanon because he was a minor but she clarified that she asked Gopio, Jr., to add his signature on the documents to avoid suspicion of irregularity;26 that contrary to the testimony of Gopio, Jr., minors are eligible for membership in the cooperative provided they are children of regular members.

Batulanon admitted that she took out a loan in her son's name because she is no longer qualified for another loan as she still has to pay off an existing loan; that she had started paying off her son's loan but the cooperative refused to accept her payments after the cases were filed in court.27 She also declared that one automatically becomes a member when he deposits money with the cooperative.28 When she was Cashier/Manager of PCCI from 1980 to 1982, the cooperative did not have by-laws yet.29

On rebuttal, Jayoma belied that PCCI had no by-laws from 1980-1982, because the cooperative had been registered since 1967.30

On April 15, 1993, the trial court rendered a Decision convicting Batulanon as follows:

WHEREFORE, premises considered, finding the accused Leonila Batulanon guilty beyond reasonable doubt in all the above-entitled case, she is sentenced in each of the four cases to 4 months of ARRESTO MAYOR to 1 year and 2 months of PRISION CORRECTIONAL, to indemnify the PCCI in the total sum of P16,660.00 with legal interest from the institution of the complaints until fully paid, plus costs.

SO ORDERED.31

The Court of Appeals affirmed with modification the decision of the trial court, thus:

WHEREFORE, the decision appealed from is MODIFIED. Appellant LEONILA BATULANON is found guilty beyond reasonable doubt of Falsification of Private Documents under Par. 2, Article 172 of the Revised Penal Code; and is hereby sentenced to suffer the indeterminate penalty of six (6) months of arresto mayor maximum, AS MINIMUM, to four (4) years and two (2) months of prision correccional medium, AS MAXIMUM; to pay a fine of five thousand (P5,000.00) pesos; and to indemnify the Polomolok Cooperative Credit, Inc. the sum of thirteen thousand one hundred sixty (P13,160.00), plus legal interests from the filing of the complaints until fully paid, plus costs.

SO ORDERED.32

The motion for reconsideration was denied, hence this petition.

Batulanon argues that in any falsification case, the best witness is the person whose signature was allegedly forged, thus the prosecution should have presented Erlinda Omadlao, Gonafreda Oracion and Ferlyn Arroyo instead of relying on the testimony of an unreliable and biased witness such as Medallo.33 She avers that the crime of falsification of private document requires as an element prejudice to a third person. She insists that PCCI has not been prejudiced by these loan transactions because these loans are accounts receivable by the cooperative.34

The petition lacks merit.

Although the offense charged in the information is estafa through falsification of commercial document, appellant could be convicted of falsification of private document under the well-settled rule that it is the allegations in the information that determines the nature of the offense and not the technical name given in the preamble of the information. In Andaya v. People,35 we held:

From a legal point of view, and in a very real sense, it is of no concern to the accused what is the technical name of the crime of which he stands charged. It in no way aids him in a defense on the merits. x x x That to which his attention should be directed, and in which he, above all things else, should be most interested, are the facts alleged. The real question is not did he commit a crime given in the law some technical and specific name, but did he perform the acts alleged in the body of the information in the manner therein set forth. x x x The real and important question to him is, "Did you perform the acts alleged in the manner alleged?" not, "Did you commit a crime named murder?" If he performed the acts alleged, in the manner stated, the law determines what the name of the crime is and fixes the penalty therefor. x x x If the accused performed the acts alleged in the manner alleged, then he ought to be punished and punished adequately, whatever may be the name of the crime which those acts constitute.

The elements of falsification of private document under Article 172, paragraph 236 of the Revised Penal Code are: (1) that the offender committed any of the acts of falsification, except those in paragraph 7, Article 171; (2) that the falsification was committed in any private document; and (3) that the falsification caused damage to a third party or at least the falsification was committed with intent to cause such damage.37

In Criminal Case Nos. 3625, 3626, and 3453, Batulanon's act38 of falsification falls under paragraph 2 of Article 171, i.e., causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate. This is because by signing the name of Omadlao, Oracion, and Arroyo in Cash Voucher Nos. 30A, 237A, and 267A, respectively, as payee of the amounts appearing in the corresponding cash vouchers, Batulanon made it appear that they obtained a loan and received its proceeds when they did not in fact secure said loan nor receive the amounts reflected in the cash vouchers.

The prosecution established that Batulanon caused the preparation of the Cash Vouchers in the name of Omadlao and Oracion knowing that they are not PCCI members and not qualified for a loan from the cooperative. In the case of Arroyo, Batulanon was aware that while the former is a member, she did not apply for a loan with the cooperative.

Medallo categorically declared that she saw Batulanon forge the signatures of Oracion and Arroyo in the vouchers and made it appear that the amounts stated therein were actually received by these persons. As to the signature of Arroyo, Medallo's credible testimony and her familiarity with the handwriting of Batulanon proved that it was indeed the latter who signed the name of Arroyo. Contrary to Batulanon's contention, the prosecution is not duty-bound to present the persons whose signatures were forged as Medallo's eyewitness account of the incident was sufficient. Moreover, under Section 22, Rule 132 of the Rules of Court, the handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person.

Her insistence that Medallo is a biased witness is without basis. There is no evidence showing that Medallo was prompted by any ill motive.

The claim that Batulanon's letter to the cooperative asking for a compromise was not an admission of guilt is untenable. Section 27, Rule 130 of the Rules of Court provides that in criminal cases, except those involving quasi-offenses or criminal negligence or those allowed by law to be compromised, an offer of compromise by the accused may be received in evidence as an implied admission of guilt.

There is no merit in Batulanon's assertion that PCCI has not been prejudiced because the loan transactions are reflected in its books as accounts receivable. It has been established that PCCI only grants loans to its bona fide members with no subsisting loan. These alleged borrowers are not members of PCCI and neither are they eligible for a loan. Of the four accounts, only that in Ferlyn Arroyo's name was settled because her mother, Erlinda, agreed to settle the loan to avoid legal prosecution with the understanding however, that she will be reimbursed once the money is collected from Batulanon.39

The Court of Appeals40 correctly ruled that the subject vouchers are private documents and not commercial documents because they are not documents used by merchants or businessmen to promote or facilitate trade or credit transactions41 nor are they defined and regulated by the Code of Commerce or other commercial law.42 Rather, they are private documents, which have been defined as deeds or instruments executed by a private person without the intervention of a public notary or of other person legally authorized, by which some disposition or agreement is proved, evidenced or set forth.43

In all criminal prosecutions, the burden of proof is on the prosecution to establish the guilt of the accused beyond reasonable doubt. It has the duty to prove each and every element of the crime charged in the information to warrant a finding of guilt for the said crime or for any other crime necessarily included therein.44 The prosecution in this case was able to discharge its burden completely.

As there is no complex crime of estafa through falsification of private document,45 it is important to ascertain whether the offender is to be charged with falsification of a private document or with estafa. If the falsification of a private document is committed as a means to commit estafa, the proper crime to be charged is falsification. If the estafa can be committed without the necessity of falsifying a document, the proper crime to be charged is estafa. Thus, in People v. Reyes,46 the accused made it appear in the time book of the Calamba Sugar Estate that a laborer, Ciriaco Sario, worked 21 days during the month of July, 1929, when in reality he had worked only 11 days, and then charged the offended party, the Calamba Sugar Estate, the wages of the laborer for 21 days. The accused misappropriated the wages during which the laborer did not work for which he was convicted of falsification of private document.

In U.S. v. Infante,47 the accused changed the description of the pawned article on the face of the pawn ticket and made it appear that the article is of greatly superior value, and thereafter pawned the falsified ticket in another pawnshop for an amount largely in excess of the true value of the article pawned. He was found guilty of falsification of a private document. In U.S. v. Chan Tiao,48 the accused presented a document of guaranty purportedly signed by Ortigas Hermanos for the payment of P2,055.00 as the value of 150 sacks of sugar, and by means of said falsified documents, succeeded in obtaining the sacks of sugar, was held guilty of falsification of a private document.

In view of the foregoing, we find that the Court of Appeals correctly held Batulanon guilty beyond reasonable doubt of Falsification of Private Documents in Criminal Case Nos. 3625, 3626 and 3453.

Article 172 punishes the crime of Falsification of a Private Document with the penalty of prision correccional in its medium and maximum periods with a duration of two (2) years, four (4) months and one (1) day to six (6) years. There being no aggravating or mitigating circumstances, the penalty should be imposed in its medium period, which is three (3) years, six (6) months and twenty-one (21) days to four (4) years, nine (9) months and ten (10) days. Taking into consideration the Indeterminate Sentence Law, Batulanon is entitled to an indeterminate penalty the minimum of which must be within the range of arresto mayor in its maximum period to prision correccional in its minimum period, or four (4) months and one (1) day to two (2) years and four (4) months.49 Thus, in Criminal Case Nos. 3625, 3626 and 3453, the Court of Appeals correctly imposed the penalty of six (6) months of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum, which is within the range of the allowed imposable penalty.

Since Batulanon's conviction was for 3 counts of falsification of private documents, she shall suffer the aforementioned penalties for each count of the offense charged. She is also ordered to indemnify PCCI the amount of P11,660.00 representing the aggregate amount of the 3 loans without deducting the amount of P3,500.00 paid by Ferlyn Arroyo's mother as the same was settled with the understanding that PCCI will reimburse the former once the money is recovered. The amount shall earn interest at the rate of 6% per annum from the filing of the complaints on November 28, 1994 until the finality of this judgment. From the time the decision becomes final and executory, the interest rate shall be 12% per annum until its satisfaction.

However, in Criminal Case No. 3627, the crime committed by Batulanon is estafa and not falsification. Under Article 171 of the Revised Penal Code, the acts that may constitute falsification are the following:

1. Counterfeiting or imitating any handwriting, signature, or rubric;2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate;3. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them;4. Making untruthful statements in a narration of facts;5. Altering true dates;6. Making any alteration or intercalation in a genuine document which changes its meaning;7. Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such copy a statement contrary to, or different from, that of the genuine original; or;8. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book.

In Criminal Case No. 3627, the trial court convicted petitioner Batulanon for falsifying Dennis Batulanon's signature in the cash voucher based on the Information charging her of signing the name of her 3 year old son, Dennis. The records, however, reveal that in Cash Voucher No. 374A, petitioner Batulanon did not falsify the signature of Dennis. What she did was to sign: "by: lbatulanon" to indicate that she received the proceeds of the loan in behalf of Dennis. Said act does not fall under any of the modes of falsification under Article 171 because there in nothing untruthful about the fact that she used the name of Dennis and that as representative of the latter, obtained the proceeds of the loan from PCCI. The essence of falsification is the act of making untruthful or false statements, which is not attendant in this case. As to whether, such representation involves fraud which caused damage to PCCI is a different matter which will make her liable for estafa, but not for falsification. Hence, it was an error for the courts below to hold that petitioner Batulanon is also guilty of falsification of private document with respect to Criminal Case No. 3627 involving the cash voucher of Dennis.50

The elements of estafa through conversion or misappropriation under Art. 315 (1) (b) of the Revised Penal Code are:

(1) that money, goods or other personal property is received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same;(2) that there be misappropriation or conversion of such money or property by the offender or denial on his part of such receipt;(3) that such misappropriation or conversion or denial is to the prejudice of another;(4) that there is a demand made by the offended party on the offender. (Note: The 4th element is not necessary when there is evidence of misappropriation of the goods by the defendant)51

Thus in the case of U.S. v. Sevilla,52 the Court convicted the appellant of estafa by misappropriation. The latter, a treasurer of the Manila Rail Road Company, took the sum of P8,330.00 out of the funds of the company and used it for personal purposes. He replaced said cash with his personal check of the same amount drawn on the Philippine National Bank (PNB), with instruction to his cashier not to deposit the same in the current account of the Manila Rail Road Company until the end of the month. When an audit was conducted, the check of appellant was discovered to have been carried in the accounts as part of the cash on hand. An inquiry with the PNB disclosed that he had only P125.66 in his account, although in the afternoon of the same day, he deposited in his account with the PNB sufficient sum to cover the check. In handing down a judgment of conviction, the Court explained that:

Fraudulent intent in committing the conversion or diversion is very evidently not a necessary element of the form of estafa here discussed; the breach of confidence involved in the conversion or diversion of trust funds takes the place of fraudulent intent and is in itself sufficient. The reason for this is obvious: Grave as the offense is, comparatively few men misappropriate trust funds with the intention of defrauding the owner; in most cases the offender hopes to be able to restore the funds before the defalcation is discovered. x x x

Applying the legal principles here stated to the facts of the case, we find all of the necessary elements of estafa x x x. That the money for which the appellant's checks were substituted was received by him for safe-keeping or administration, or both, can hardly be disputed. He was the responsible financial officer of the corporation and as such had immediate control of the current funds for the purposes of safe-keeping and was charged with the custody of the same. That he, in the exercise of such control and custody, was aided by subordinates cannot alter the case nor can the fact that one of the subordinates, the

cashier, was a bonded employee who, if he had acted on his own responsibility, might also have misappropriated the same funds and thus have become guilty of estafa.

Neither can there be any doubt that, in taking money for his personal use, from the funds entrusted to him for safekeeping and substituting his personal checks therefor with instructions that the checks were to be retained by the cashier for a certain period, the appellant misappropriated and diverted the funds for that period. The checks did not constitute cash and as long as they were retained by the appellant or remained under his personal control they were of no value to the corporation; he might as well have kept them in his pocket as to deliver them to his subordinate with instructions to retain them.

But it is argued in the present case that it was not the intention of the accused to permanently misappropriate the funds to himself. As we have already stated, such intention rarely exists in cases of this nature and, as we have seen, it is not a necessary element of the crime. Though authorities have been cited who, at first sight, appear to hold that misappropriation of trust funds for short periods does not always amount to estafa, we are not disposed to extend this interpretation of the law to cases where officers of corporations convert corporate funds to their own use, especially where, as in this case, the corporation is of a quasi-public character. The statute is clear and makes no distinction between permanent misappropriations and temporary ones. We can see no reason in the present case why it should not be applied in its literal sense.

The third element of the crime with which the appellant is charged is injury to another. The appellant's counsel argues that the only injury in this case is the loss of interest suffered by the Railroad Company during the period the funds were withheld by the appellant. It is, however, well settled by former adjudications of this court that the disturbance in property rights caused by the misappropriation, though only temporary, is in itself sufficient to constitute injury within the meaning of paragraph 5, supra. (U.S. v. Goyenechea, 8 Phil., 117 U.S. v. Malong, 36 Phil., 821.)53

In the instant case, there is no doubt that as Cashier/Manager, Batulanon holds the money for administration and in trust for PCCI. Knowing that she is no longer qualified to obtain a loan, she fraudulently used the name of her son who is likewise disqualified to secure a loan from PCCI. Her misappropriation of the amount she obtained from the loan is also not disputed as she even admitted receiving the same for personal use. Although the amount received by Batulanon is reflected in the records as part of the receivables of PCCI, damage was still caused to the latter because the sum misappropriated by her could have been loaned by PCCI to qualified members, or used in other productive undertakings. At any rate, the disturbance in property rights caused by Batulaono's misappropriation is in itself sufficient to constitute injury within the meaning of Article 315.

Considering that the amount misappropriated by Batulanon was P5,000.00, the applicable provision is paragraph (3) of Article 315 of the Revised Penal Code, which imposes the penalty of arresto mayor in its maximum period to prision correccional in its minimum period, where the amount defrauded is over P200.00 but does not exceed P6,000.00. There being no modifying circumstances, the penalty shall be imposed in its medium period. With the application of the Indeterminate Sentence Law, Batulaon is entitled to an indeterminate penalty of three (3) months of arresto mayor, as minimum, to one (1) year and eight (8) months of prision correccional, as maximum.

WHEREFORE, the Decision appealed from is AFFIRMED with the following MODIFICATIONS:

(1) In Criminal Case Nos. 3625, 3626 and 3453, Leonila Batulanon is found GUILTY of three counts of falsification of private documents and is sentenced to suffer the penalty of six (6) months of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum, for each count, and to indemnify complainant Polomolok Credit Cooperative Incorporated the amount of P11,660.00 with interest at the rate of 6% per annum from November 28, 1994 until finality of this judgment. The interest rate of 12% per annum shall be imposed from finality of this judgment until its satisfaction; and cralawlibrary

(2) In Criminal Case No. 3627, Leonila Batulanon is found GUILTY of estafa and is sentenced to suffer the penalty of three (3) months of arresto mayor, as minimum, to one (1) year and eight (8) months of prision correccional, as maximum. She is likewise ordered to indemnify Polomolok Credit Cooperative Incorporated the sum of P5,000.00 with interest at the rate of 6% per annum from November 28, 1994 until finality of this judgment. The interest rate of 12% per annum shall be imposed from finality of this judgment until its satisfaction.

[G.R. NO. 156248 : August 28, 2007]

MARISSA CENIZA-MANANTAN, Petitioner, v. THE PEOPLE OF THE PHILIPPINES, Respondent.

In this Petition for Review on Certiorari1 under Rule 45 of the Revised Rules of Court, petitioner Marissa Ceniza-Manantan prays for the reversal of the Decision,2 dated 29 August 2001, and Resolution,3 dated 26 November 2002, of the Court of Appeals in CA-G.R. CR No. 23676, affirming with modification the Decision,4 dated 30 July 1999, of the Quezon City Regional Trial Court (RTC), Branch 78, in Criminal Case No. Q-97-72787, finding petitioner guilty of the crime of Estafa as defined and penalized under paragraph 1(b), Article 315 of the Revised Penal Code.

On 1 August 1997, petitioner Marissa Ceniza-Manantan (Manantan) and her sister-in-law, Regina Manantan-Vizconde (Vizconde), were indicted in an Information5 for estafa under paragraph 1(b), Article 315 of the Revised Penal Code allegedly committed as follows:

That on or about the period comprised from July 15, 1994 to September 3, 1994, in Quezon City, Philippines, the said accused, conspiring together, confederating with and mutually helping each other, did, then and there, willfully, unlawfully and feloniously defraud one ALBERTO CARILLA, in the following manner to wit: the said accused, pursuant to their conspiracy, received in trust from said complainant several pieces of jewelry worth P1,079,000.00, Philippine Currency, for the purpose of selling the same on commission basis under the express obligation on the part of the said accused of turning over the proceeds of the sale to said Alberto Carilla, if sold, or of returning the same if unsold to said complainant, but the said accused, once in possession of the said items, far from complying with their obligations as aforesaid, with intent to defraud, unfaithfulness and grave abuse of confidence, failed and refused and still fails and refuses to fulfill their aforesaid obligation despite repeated demands made upon them to do so, and instead misapplied, misappropriated and converted the same or the value thereof, to their own personal use and benefit, to the damage and prejudice of said Alberto Carilla, in the aforesaid amount of P1,079,000.00, Philippine Currency.

On 2 December 1998, Manantan was arrested whereas Vizconde remained at large. When arraigned on 5 March 1999, Manantan pleaded "Not Guilty" to the charge.6 Thereafter, trial on the merits ensued.

The facts, according to the prosecution, are summarized in the Comment dated 4 July 2003 of the Office of the Solicitor General (OSG), to wit:

Herein private complainant, Alberto Carilla, is a jeweler whose office is located at Aurora Blvd., Cubao, Quezon City. Sisters-in-law Regina Manantan-Vizconde and Marissa Ceniza-Manantan entered into an agreement with Carilla that they would act as the latter's agent in selling the pieces of jewelry worth P1,079,000.00. They received the jewelry in trust with the obligation to sell them within two (2) weeks and remit the proceeds to private complainant within another two (2) weeks or to return them within the same period if they were unable to sell. The sisters-in-law would earn any amount that they would add to the selling price.

After the lapse of the above-mentioned period, accused sisters-in-law failed to remit the purchase price or return the pieces of jewelry. As such, Carilla made verbal demands for their return or the proceeds of the sale. After several verbal demands, the sisters-in-law issued several checks. Regina Manantan-Vizconde issued thirteen (13) postdated checks, while Marissa Ceniza-Manantan issued four (4) postdated checks.

Upon maturity of the checks, Carilla deposited the checks to his bank account. But to his dismay, the checks were dishonored for the reason that the account from which the checks were drawn had been closed. The checks that were still to fall due were stamped on their face "account closed."

Carilla thus sought the help of a lawyer who made out a written demand upon the accused through their counsel. But despite this, the two accused still refused to pay. Hence, Carilla was constrained to file a criminal complaint.7

Manantan denied the foregoing accusations. In her Counter-Affidavit with Motion to Dismiss dated July 1996,8 Manantan alleged that Carilla's filing of estafa case against her was a mere harassment suit as Carilla desperately tried but failed to recover from her the jewelries allegedly entrusted to her and to Vizconde; that Vizconde borrowed several checks from her after Vizconde ran out of her own checks; that Vizconde told her that the borrowed checks will only be shown to the former's customers or other persons from whom she received jewelries so as to convince them that she had collections; and that Vizconde promised to return the checks. During her direct examination before the RTC,9 Manantan denied that she had any business transaction with Carilla. Manantan also disclaimed any knowledge as to how the four dishonored checks in her name came into the possession of Carilla.

On 30 July 1999, the RTC rendered a Decision convicting Manantan of estafa under paragraph 1(b), Article 315 of the Revised Penal Code. Thus:

WHEREFORE, this Court finds accused MARISSA CENIZA-MANANTAN, GUILTY of the crime of Estafa, defined and penalized under par.1 (b) of Article 315 of the Revised Penal Code, and is hereby sentenced to suffer imprisonment of, there being no mitigating and aggravating circumstances, and applying the Indeterminate Sentence Law, TWELVE (12) YEARS, and one (1) DAY, as minimum, to FOURTEEN (14) YEARS, and EIGHT (8) MONTHS, as maximum, of Reclusion Temporal in its minimum period.

Further, the award of civil liability is appropriate as the preponderance of evidence sanctioned by the Rules has been satisfied, the accused Marissa Ceniza-Manantan is ordered to pay P1,079,000.00 as actual damages.10

Aggrieved, Manantan filed an appeal with the Court of Appeals. On 29 August 2001, the appellate court promulgated its Decision affirming with modification the assailed RTC Decision. The modification pertains to Manantan's period of imprisonment as provided under the Indeterminate Sentence Law. The decretal portion of the appellate court's decision reads:

WHEREFORE, in view of the foregoing, the instant appeal is DENIED and the assailed decision of the court a quo in Criminal Case No. Q-97-72787 is hereby AFFIRMED with modification that accused is hereby sentenced to suffer an indeterminate penalty of Four (4) years and two (2) months of prision correccional as minimum to Twenty (20) years of reclusion temporal as maximum.11

Manantan filed a motion for reconsideration but this was denied for lack of merit by the appellate court in its Resolution dated 26 November 2002.

Hence, Manantan filed the instant Petition. In our Resolution dated 10 March 2003,12 we denied the Petition due to Manantan's (a) failure to state the material dates showing when the notice of the assailed decision and resolution were received and when the motion for reconsideration was filed thereby violating Sections 4(b) and 5 of Rule 45, in relation to Sec. 5(d) of Rule 56; and (b) failure to indicate in the Petition the counsel's roll number as required in Bar Matter 1132. Manantan filed a Motion for Reconsideration which we subsequently granted in our Resolution dated 7 May 2003.13 The petition was then reinstated.

Manantan proffered the following issues14 for our consideration:

I.

CONTRARY TO THE FINDINGS OF THE TRIAL COURT, WHICH FINDINGS THE COURT OF APPEALS AFFIRMED, THE PROSECUTION FAILED TO PROVE THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT, CONSIDERING INTER ALIA THAT NOT ALL THE ELEMENTS CONSTITUTING THE OFFENSE CHARGED, SPECIFICALLY CONSPIRACY AND THE ALLEGED CONTRACTUAL RELATION (i.e., THE RECEIPT IN TRUST BY PETITIONER OF CERTAIN PIECES OF JEWELRY FROM PRIVATE COMPLAINANT), WERE ESTABLISHED.

II.

MORE IMPORTANTLY, THE COUNSEL FOR PETITIONER IN THE TRIAL COURT MISERABLY FAILED AND/OR REFUSED TO DISCHARGE HIS BOUNDEN DUTY TO HIS CLIENT. STATED DIFFERENTLY, SAID COUNSEL'S INCOMPETENCE WAS SO GREAT AND SO EXECRABLE THAT, IN THE INTEREST OF SUBSTANTIAL JUSTICE, AT LEAST A NEW TRIAL SHOULD BE ORDERED BY THIS HONORABLE COURT IF ONLY TO AFFORD PETITIONER THE CONSTITUTIONALLY MANDATED OPPORTUNITY TO DEFEND HERSELF WITH THE ASSISTANCE OF AN EFFECTIVE AND VIGILANT COUNSEL OF HER OWN CHOICE. THE AFORESAID FAILURE

AND/OR REFUSAL OF HER COUNSEL WERE A VIRTUAL GIVEAWAY TO THE PROSECUTION TO SEND HER TO THE GALLOWS. THE CONSEQUENCE WAS A MISCARRIAGE OF JUSTICE.

Anent the first issue, Manantan alleged that the RTC conducted only one hearing where the prosecution presented only one witness, which was Carilla himself, and thereafter rested its case; that the said lone hearing was abbreviated at the expense of the rights and liberty of Manantan; that the direct testimony of Carilla, upon which the RTC based its conviction of Manantan, consisted only of five double-spaced pages as shown in the transcript of stenographic notes (TSN); and that Manantan's guilt cannot be proven on the basis of the few questions propounded by the private prosecutor on Carilla and Manantan.15

EVIDENCE FOR THE PROSECUTION

The prosecution presented the lone court testimony of Carilla as its testimonial evidence. Carilla testified that Manantan and Vizconde agreed to be his agents in selling jewelries; that Manantan and Vizconde received from him in trust jewelries with the obligation to sell them within two weeks from receipt thereof, and to remit the proceeds to him within two weeks after the sale or to return the jewelries in case they were not sold; that Manantan and Vizconde would earn from any amount that they would add to the original sale price of the jewelries fixed by him; that after the expiration of the stipulated period, Manantan and Vizconde failed to remit to him the proceeds of the sale of the jewelries or return the unsold jewelries themselves; that he made several verbal demands on Manantan and Vizconde to remit the proceeds of the sale of the jewelries or return the unsold jewelries; that Manantan and Vizconde issued to him postdated checks as supposed payment of the sales proceeds of the jewelries; that these checks were dishonored by reason of "Account Closed"; that Manantan and Vizconde failed to make good the value of the dishonored checks despite his repeated demands for them to do so; and that by reason of the foregoing, he instituted the instant case against Manantan and Vizconde.

The prosecution also offered documentary evidence to buttress Carilla's court testimony. It introduced Carilla's Complaint-Affidavit dated 11 March 1996 which recounts how Manantan and Vizconde had swindled Carilla of the jewelries.16 This Complaint-Affidavit was admitted as part of Carilla's direct testimony.17 It also submitted the dishonored checks issued by Manantan18 to prove that the jewelries were still unpaid for, and the demand-letters19 sent by Carilla to Manantan, to substantiate the latter's persistent failure to comply therewith.

EVIDENCE FOR THE DEFENSE

On the other hand, the defense presented Manantan as its sole witness. No documentary evidence was utilized.20

Manantan conjured denials and alibi in support of her contentions. Manantan denied having any transaction with Carilla. She claims that she lent the dishonored checks to Vizconde as the latter was running out of checks; that she had no idea as to how the dishonored checks came into the possession of Carilla; and that Carilla had an ill motive to accuse her of a crime since Carilla failed to recover from her the alleged entrusted jewelries.

The threshold issue is, whose evidence is credible? cralaw library

It is axiomatic that truth is established not by the number of witnesses but by the quality of their testimonies.21 In the determination of the sufficiency of evidence, what matters is not the number of witnesses but their credibility and the nature and quality of their testimonies.22 The testimony of a lone witness, if found positive and credible by the trial court, is sufficient to support a conviction especially when the testimony bears the earmarks of truth and sincerity. While the number of witnesses may be considered a factor in the appreciation of evidence, proof beyond reasonable doubt is not necessarily with the greatest number.23

Witnesses are to be weighed, not numbered; hence, it is not at all uncommon to reach a conclusion of guilt on the basis of the testimony of a single witness. Conviction of the accused may still be had on the basis of the positive and credible testimony of a single witness.24

Verily, the prosecution presented only one witness, who was Carilla himself as the complainant. However, we find the latter's testimony consistent with his Complaint-Affidavit dated 11 March 1996, which was positive and categorical. The RTC and the Court of Appeals both found Carilla's testimony credible and truthful.25

More telling are the documentary evidences consisting of various checks issued by Manantan which later bounced and the demand letters of Carilla addressed to Manantan. Although the admissibility of these checks was objected to by Manantan during the trial, the RTC, nevertheless, admitted them as part of the testimony of Carilla.

The rule is that the findings of fact of the trial court, its calibration of the testimonies of the witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings are accorded high respect if not conclusive effect.26 This is more true if such findings were affirmed by the appellate court. When the trial court's findings have been affirmed by the appellate court, said findings are generally binding upon this Court.27

In stark contrast, the evidence for the defense consists mainly of denials. Manantan denied having transacted with Carilla. Beyond her bare denials, however, she has not presented any plausible proof to successfully rebut the evidence for the prosecution.

It is jurisprudentially settled that as between bare denials and positive testimony on affirmative matters, the latter is accorded greater evidentiary weight.28

The next question now crops up - were the elements of estafa for which Manantan is charged proven beyond reasonable doubt?cralaw library

Article 315, paragraph 1(b) of the Revised Penal Code, provides:

ART. 315. Swindling (estafa). - Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:

1. With unfaithfulness or abuse of confidence, namely:

(b) By misappropriating or converting, to the prejudice of another, money, goods or any other personal property received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property.

The elements29 of estafa in the above provision are as follows:

a) That money, goods or other personal property is received by the offender in trust or on commission, or for administration or under any other obligation involving the duty to make delivery of or to return the same;

b) That there be misappropriation or conversion of such money or property by the offender or denial on his part of such receipt; and

c) That such misappropriation or conversion or denial is to the prejudice of another.

The essence of estafa under this paragraph is the appropriation or conversion of money or property received, to the prejudice of the owner thereof. It takes place when a person actually appropriates the property of another for his own benefit, use and enjoyment.30 In a prosecution for estafa, demand is not necessary where there is evidence of misappropriation or conversion; and failure to account, upon demand for funds or property held in trust, is circumstantial evidence of misappropriation.31

All of the foregoing enumerated elements of estafa under paragraph 1(b), Article 315 of the Revised Penal Code, are duly established herein.

First, Manantan received in trust the jewelries from Carilla for the purpose of selling them within two weeks from receipt thereof; and to remit the proceeds to Carilla within two weeks after the sale or to return the jewelries in case they were not sold. It was also agreed that Manantan will earn from any amount that she would add to the original sale price of the jewelries fixed by Carilla. This, in effect, created a fiduciary relationship between Carilla and Manantan.

The absence of a written document showing receipt of jewelries or other property in trust does not necessarily mean that no such contract exists between the parties. Contracts can be made verbally for as long as there is a meeting of the minds of the parties thereto.32 Carilla positively and categorically testified on the transaction that transpired between him and Manantan.

Second, there is misappropriation or conversion by Manantan of the jewelries or the proceeds of the sale thereof, as well as a denial on her part of receipt of the jewelries.

The words "misappropriate" and "convert" as used in the said provision of law connote an act of using or disposing of another's property as if it were one's own or of devoting it to a purpose or use different from that agreed upon. Misappropriation or conversion may be proved by the prosecution by direct evidence or by circumstantial evidence.33

In an agency for the sale of jewelries, as in the present case, it is the agent's duty to return the jewelry upon demand of the owner and failure to do so is evidence of conversion of the property by the agent. In other words, the demand for the return of the thing delivered in trust and the failure of the accused to account for it are circumstantial evidence of misappropriation. However, this presumption is rebuttable. If the accused is able to satisfactorily explain his failure to produce the thing delivered in trust or to account for the money, he may not be held liable for estafa.34

Manantan misappropriated Carilla's properties, which she held in trust, by failing to remit the sale price of the jewelries or return the same to Carilla upon the expiration of the stipulated period, despite repeated demands by the latter. Manantan issued checks to Carilla as supposed payment of the sales proceeds of the jewelries but these checks were dishonored. Carilla hired a lawyer and sent a demand-letter to Manantan but the latter still failed to turn over the jewelries or the sale prices thereof.35

As already heretofore pointed out, failure to account upon demand for the return of the thing delivered in trust raises a presumption of misappropriation. Manantan's bare denials are not sufficient to overcome such presumption.

Estafa may also be committed by denying untruthfully that the thing was received.36 Manantan denied having received jewelries from Carilla. However, as we have already determined, such denial is unsubstantiated and therefore cannot prevail over the categorical declarations of Carilla that the jewelries were turned over in trust to Manantan. Hence, Manantan's denial of the receipt of jewelries also constitutes estafa. chanrobles virtual law library

Finally, Manantan's failure or refusal to account for or return the jewelries to Carilla had evidently prejudiced the rights and interests of the latter. Not only did Carilla fail to recover his investment, but he also lost the opportunity to realize profits from the sales of the jewelries. Carilla further incurred expenses in hiring a lawyer and in litigating the present case.37

Apropos the second assignment of error, Manantan seeks a new trial because her former counsel, Atty. Donato A. Mallabo (Atty. Mallabo) of the Public Attorneys Office (PAO), was incompetent and had failed to discharge his duty as her defense

counsel resulting in a denial of due process to her. She claims that Atty. Mallabo asked Carilla only a few questions during the latter's cross-examination and did not conduct a re-cross examination; that after the prosecution had rested its case, the RTC Presiding Judge inquired from Atty. Mallabo if he would file a motion to dismiss on demurrer to evidence, which was already a hint of the weakness of the prosecution's evidence, but Atty. Mallabo ignored the question and presented, instead, Manantan as sole witness for the defense; and after a few perfunctory questions to Manantan, already rested the case for the defense.38

Settled is the rule that mistake and negligence of a counsel bind his client. The basis is the tenet that an act performed by a counsel within the scope of his general or implied authority is regarded as an act of his client. Consequently, the mistake or negligence of a counsel may result in the rendition of an unfavorable judgment against his client.39

A contrary view would be inimical to the greater interest of dispensing justice. For all that a losing party will do is to invoke the mistake or negligence of his counsel as a ground for reversing or setting aside a judgment adverse to him, thereby putting no end to litigation.40 To allow this obnoxious practice would be to put a premium on the willful and intentional commission of errors by accused persons and their counsel, with a view to securing new trials in the event of conviction.41

Mistakes of attorneys as to the competency of a witness; the sufficiency, relevancy or irrelevancy of certain evidence, the proper defense, or the burden of proof; and failure to introduce certain evidence, to summon witness and to argue the case are not proper grounds for a new trial.42 Error of the defense counsel in the conduct of the trial is neither an error of law nor an irregularity upon which a motion for new trial may be presented.43

Concededly, the foregoing rule admits of exceptions. Hence, in cases where (1) the counsel's mistake is so great and serious that the client is prejudiced and denied his day in court, or (2) the counsel is guilty of gross negligence resulting in the client's deprivation of liberty or property without due process of law, the client is not bound by his counsel's mistakes, and a new trial may be conducted.44

Tested against these guidelines, we find that Manantan's case falls within the general rule rather than the exceptions.

It is true that Atty. Mallabo asked only few questions during the cross-examination of Carilla. Quoted hereunder is Atty. Mallabo's cross-examination of Carilla:

It appears from the foregoing that Atty. Mallabo's questions were aimed at proving that Carilla was not the owner of the subject jewelries. It can be reasonably deduced from the questions that Atty. Mallabo's strategy in securing petitioner's acquittal was to display the absence of the element of prejudice or damage on the part of Carilla. Notably, however, the questions were confined to the issue of the ownership of jewelries.

Despite the preceding, Atty. Mallabo cross-examined Carilla and conducted a direct examination of Manantan. Atty. Mallabo also interposed several objections during the re-direct examination of Carilla and challenged the admissibility of the dishonored checks as evidence for the prosecution.46 Atty. Mallabo even moved for the dismissal of the charge against Manantan.47

Admittedly, Atty. Mallabo committed mistakes and shortcomings in conducting examinations on Carilla and Manantan and in assessing the proper and sufficient evidence for the defense. Nonetheless, such cannot be considered as recklessness or gross negligence on his part, because there was neither a total abandonment nor a disregard of Manantan's cause or a showing of conscious indifference to or disregard of consequences.48 If at all, the mistakes and omissions of Atty. Mallabo may only be considered as simple negligence or a slight want of care that circumstances reasonably impose.

As regards the prison term of Manantan, a perusal of the pertinent provision of Article 315 of the Revised Penal Code is in order:

ART. 315. Swindling (estafa). - Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos; and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.

The penalty prescribed by Article 315 is composed of two, not three, periods, in which case, Article 65 of the same Code requires the division of the time included in the penalty into three equal portions of time included in the penalty imposed forming one period of each of the three portions.49 Applying the latter provisions, the maximum, medium and minimum periods of the penalty given are:

Maximum - 6 years, 8 months, 21 days to 8 yearsMedium - 5 years, 5 months, 11 days, to 6 years, 8 months, 20 days

Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days

In the present case, since the amount involved is P1,079,000.00, which exceeds P22,000.00, the penalty imposable should be the maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor. Article 315 further states that a period of one year shall be added to the penalty for every additional P10,000.00 defrauded in excess of P22,000.00, but in no case shall the total penalty which may be imposed exceed 20 years. The amount swindled from Carilla greatly exceeds the amount of P22,000.00 which, when translated to the additional penalty of one year for every P10,000.00 defrauded, goes beyond 20 years. Under the law, the maximum penalty to be imposed in the present case should be 20 years of reclusion temporal.50

We now apply the Indeterminate Sentence Law in computing the proper penalty. Since the penalty prescribed by law for the estafa charge against Manantan is prision correcional maximum to prision mayor minimum, the penalty next lower would then be prision correccional in its minimum to medium periods. Thus, the minimum term of the indeterminate sentence should be anywhere from 6 months and 1 day to 4 years and 2 months, while the maximum term of the indeterminate sentence should be 20 years.51

Thus, the Court of Appeals was correct in imposing a prison term of 4 years and 2 months of prision correccional as minimum to 20 years of reclusion temporal as maximum.

We also sustain the indemnification of actual damages in favor of Carilla in the sum of P1,079,000.00 made by the RTC and affirmed by the Court of Appeals as this is supported by the records52 of the instant case.

WHEREFORE, the petition is hereby DENIED. The Decision dated 29 August 2001 and Resolution dated 26 November 2002 of the Court of Appeals in CA-G.R. CR No. 23676 are hereby AFFIRMED in toto. No costs.

[G.R. NO. 168217 : June 27, 2006]

JOY LEE RECUERDO, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

Before the Court is a Petition for Review on Certiorari of the Joint Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 25983, affirming with modification the decision of the Regional Trial Court (RTC) of Malolos, Bulacan in Criminal Cases Nos. 2750-M-94, 2751-M-94 and 2807-M-94 for estafa.

As synthesized by the appellate court, the antecedents are as follows:

In September 1994, three separate Criminal Informations charging Joy Lee Recuerdo of Estafa under Article 315, paragraph 2(d) of the Revised Penal Code involving 18 worthless bank checks were simultaneously filed by the Office of the Provincial Prosecutor of Bulacan, the accusatory portions of which read, thus:

A. Six (6) Unitrust Checks

Crim. Case No. 2750-M-94

"That sometime in the second week of December, 1993, in the municipality of Meycauayan, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Joy Lee Recuerdo, with intent to gain and by means of deceit, false pretenses and fraudulent manifestations, and pretending to have sufficient funds with the Unitrust, Makati Commercial Center Branch, did then and there willfully, unlawfully and feloniously prepare, draw, make and issue the following postdated checks, to wit:

Check No Date Amount

014355 April 5, 1994 P22,000.00

014356 May 5, 1994 22,000.00

014357 June 5, 1994 22,000.00

014358 July 5, 1994 22,000.00

014359 August 5, 1994 22,000.00

014360 September 5, 1994 22,000.00

with the total amount of P132,000.00 drawn against the said bank, and deliver the said checks to the complaining witness Yolanda G. Floro as payment for pieces of jewelry she obtained from the said complainant, knowing fully well at the time the checks were issued that her representations were false for she had no sufficient funds in the said bank, so much that upon presentment of the said checks with the said bank for encashment, the same were dishonored and refused payment for having been drawn against an "Account Closed", and inspite of repeated demands to deposit with the said bank the amount of P132,000.00, the said accused failed and refused to do so, to the damage and prejudice of the said Yolanda G. Floro in the said amount of P132,000.00.

Contrary to law."

B. Six (6) PCI Bank Checks

Crim. Case No. 2807-M-94

"That sometime in the second week of December 1993, in the municipality of Meycauayan, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Joy Lee Recuerdo, with intent of gain and by means of deceit, false pretenses and fraudulent manifestations, and pretending to have sufficient funds with the PCI Bank, Makati-De La Rosa Branch, did then and there willfully, unlawfully and feloniously prepare, draw, make and issue the following postdated checks, to wit:

Check No. Date Amount

053051982A March 28, 1994 P13,000.00

053051983A April 28, 1994 13,000.00

053051984A May 28, 1994 13,000.00

053051985A June 28, 1994 13,000.00

053051986A July 28, 1994 13,000.00

053051987A August 28, 1994 13,000.00

with the total amount of P78,000.00 drawn against the said bank, and deliver the said checks to the complaining witness Yolanda G. Floro as payment for pieces of jewelry she obtained from the said complainant, knowing fully well at the time the checks were issued that her representations were false for she had no sufficient funds in the said bank, so much that upon presentment of the said checks with the said bank for encashment, the same were dishonored and refused payment for having been drawn against an "Account Closed", and inspite of repeated demands to deposit with the said bank the amount of P78,000.00, the said accused failed and refused to do so, to the damage and prejudice of the said Yolanda G. Floro in the said amount of P78,000.00.

Contrary to law.

C. Six (6) Prudential Bank Checks

Criminal Case No. 2751-M-94

That on or about the 7th day of February, 1994, in the municipality of Meycauayan, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Joy Lee Recuerdo, with intent of gain and by means of deceit, false pretenses and fraudulent manifestations, and pretending to have sufficient funds with the Prudential Bank, Legaspi Village Branch, did then and there willfully, unlawfully and feloniously prepare, draw, make and issue the following postdated checks, to wit:

Check No. Date Amount

0011783 March 13, 1994 P100,000.00

0011784 April 13, 1994 100,000.00

0011785 May 13, 1994 100,000.00

0011786 June 13, 1994 100,000.00

0011787 July 13, 1994 100,000.00

0011788 August 13, 1994 100,000.00

with the total amount of P600,000.00 drawn against the said bank, and deliver the said checks to the complainant witness Yolanda G. Floro as payment for pieces of jewelry she obtained from the said complainant, knowing fully well at the time the checks were issued that her representations were false for she had no sufficient funds in the said bank, so much that upon presentment of the said checks with the said bank for encashment, the same were dishonored and refused payment for having been drawn against an "Account Closed", and inspite of repeated demands to deposit with the said bank the amount of P600,000.00, the said accused failed and refused to do so, to the damage and prejudice of the said Yolanda G. Floro in the said amount of P600,000.00

Contrary to law."

Evidence adduced by the Prosecution tend to establish that herein private respondent Yolanda G. Floro is engaged in the business of buying and selling of jewelry since 1985. She regularly conducts business at her residence located at No. 51 Interior, Poblacion, Meycauayan, Bulacan. Sometimes, though, it was Floro who would personally visit her customers to show and offer them the pieces of jewelry. Herein accused-appellant/petitioner Joy Lee Recuerdo, on the other hand, a dentist by profession, who was introduced to Floro by the latter's cousin Aimee Aoro in the first week of December 1993, became her customer. Sometime in the second week of December 1993, at around 7:30 in the evening, Recuerdo went to the house of Floro in Meycauayan, Bulacan and purchased from her two pieces of jewelry, to wit: a 2.19 carat diamond round stone in white gold setting worth P220,000.00 pesos, and one piece of loose 1.55 karat marquez diamond with a value of P130,000.00 pesos.

For the 2.19 carat diamond stone, accused issued and delivered to the complainant then and there ten post-dated checks each in the amount of P22,000.00 drawn against Unitrust Development Bank, Makati Commercial Center Branch. Only six (6) postdated checks, to wit: Checks Nos. 014356, 014357, 014358, 014359 and 014360 are subject of Criminal Case No. 2750-M-94. For the 1.55 carat marquez loose diamond, accused issued and delivered to complainant then and there ten (10) postdated checks, each in the amount of P13,000.00 drawn against PCI Bank, Makati, Dela Rosa Branch. Six of those checks are subject of Criminal Case No. 2807-M-94, to wit: Checks Nos. 053051983A, 053051984A, 053051985A, 053051986A and 053051987A, subject matter of Crim. Case No. 2751-M-94.

In yet another transaction that transpired in the early evening of February 7, 1994, Recuerdo once again proceeded at Floro's house in Meycauayan, Bulacan and bought another set of jewelry, this time a pair of diamond earrings worth P768,000.00 pesos. She was given seven (7) postdated checks one for P168,000.00 as downpayment and another six (6) postdated checks drawn against Prudential Bank, Legaspi Village, Makati Branch, each for P100,000.00 representing the balance in the aggregate amount of P600,000.00 pesos (Checks Nos. 100783, 01184, 01185, 011786, 011787 and 011788, Record, Criminal Case No. 2750-M-94, pp. 138-150) subject matter of Crim. Case No. 2751-M-94.

Floro deposited the aforementioned checks at Liberty Savings & Loan Association, Meyc[a]uayan, Bulacan. Upon presentment for encashment by said depositary bank with the different drawee banks on their respective maturity dates, the six (6) Prudential Bank checks were all dishonored for having been drawn against closed accounts. With her pieces of jewelry still unpaid, Floro, through counsel, made formal demands requiring Requerdo to pay the amounts represented by the dishonored checks (Record, supra, pp. 123, 138, and 151). Floro's efforts to obtain payment, though, only proved futile as Requerdo continuously refused to pay the value of the purchased pieces of jewelry.

Upon her arraignment on March 1, 1995 in Criminal Case No. 2807-M-94, and on April 4, 1995 in Criminal Case Nos. 2750-M-94 and 2751-M-94, Recuerdo, with the assistance of counsel, pleaded not guilty. (Record, Criminal Case No. 2807-M-94, p. 40; Criminal Case No. 2750-M-94, p. 58). Considering the identity of the parties concerned, and the nature of the transactions from which the charges of Estafa trace its roots, the three criminal cases were consolidated. Joint trial then ensured. Recuerdo, on separate dates, posted three Personal Bail Bonds to obtain provisional liberty (Record, Criminal Case No. 2750-M-94, p. 21; 2807-M-94, p. 27; 2751-M-94, p. 17).

By way of defense, Recuerdo posited the theory that the trial court of Malolos, Bulacan is devoid of jurisdiction to take cognizance of the criminal cases against her, insisting that all the essential elements of the crime of Estafa involving the bad checks occurred at the City of Makati, in that, all her business transactions with Floro, to wit; the purchase of the pieces of jewelry and the subsequent issuance of and delivery of the subject bank checks in payment thereof which eventually bounced, all took place and were executed at her Dental Clinic located at the Medical Towers at Suite 306, Herrera corner Ormaza Streets Legaspi Village Makati City. Furthermore, Recuerdo argued that her act of issuing the dishonored checks does not constitute the offense of Estafa considering that the subject checks were not issued and delivered to Floro simultaneous to the purchase of the pieces of jewelry, but only several days thereafter, when she had already thoroughly examined the jewelry and is fully satisfied of its fine quality (TSN, Joy Lee Recuerdo, January 16, 1996, pp. 3-18).2

On July 28, 1997, the trial court rendered a Joint Decision convicting petitioner Joy Lee Recuerdo of two counts of estafa under Article 315, paragraph 2(d) of the Revised Penal Code. The fallo of the decision reads:

WHEREFORE, this Court finds the accused JOY LEE RECUERDO GUILTY beyond reasonable doubt of two (2) counts of estafa, defined and penalized under Article 315, par. 2[b] (sic) of the Revised Penal Code and hereby sentences her as follows:

1. In Criminal Case Nos. 2750-M-94 and 2807-M-94, to suffer an indeterminate penalty of imprisonment ranging from six (6) years and one (1) day of prison correccional as minimum to twelve (12) years and one (1) day reclusion temporal as maximum and to pay Yolanda Floro by way of civil indemnity the amount of P210,000.00 pesos plus interest from the filing of the information until fully paid; and cralawlibrary

2. In Criminal Case No. 2751-M-94, to suffer an indeterminate penalty of imprisonment ranging from six (6) minimum to twelve (12) years and one (1) day of reclusion temporal as maximum and to pay Yolanda Floro by way of civil indemnity the amount of P600,000.00 pesos plus interest from the filing of the information until fully paid.

In both cases, accused shall pay the costs of the suit.

SO ORDERED.3

Petitioner appealed the decision to the CA on the following assignment of errors:

I.The Regional Trial Court erred in finding that the Municipal Trial Court, Meycauayan, Bulacan, Branch I did not pass upon the merits of the criminal cases filed against the petitioner by confining and limiting itself merely to the dispositive portion of the Joint Decision dated 28 January 1998 rendered by the latter court, instead of reading the Joint Decision as a whole to get its true meaning and intent.

II.The Regional Trial Court erred in affirming the judgment of conviction rendered by the Municipal Trial Court, Meycauayan, Bulacan, Branch II which is in derogation of the petitioner's right against double jeopardy considering that the latter was previously acquitted of the same criminal cases by the Municipal Trial Court of Meycauayan, Bulacan, Branch I.

III.The Regional Trial Court erred in finding that all proceedings in the court a quo have been made in the presence and with the authority of the public prosecutor, in the face of the undisputed fact that the appeal initiated by the private respondent is fatally defective because it was filed without the concurrence, permission and authority of the public prosecutor, in this case, the provincial prosecutor of Bulacan.4

Petitioner averred that the trial court had no jurisdiction over the offenses charged because the crimes were committed in Makati City and not in Malolos, Bulacan where the Informations were filed. The prosecution failed to prove the essential element of deceit because she drew and delivered the postdated checks to the private complainant after the jewelries had been delivered. Moreover, she was denied the right to due process.

On August 23, 2004, the CA rendered judgment affirming with modification the decision of the RTC as to the penalty meted on the appellant. Petitioner filed a motion for reconsideration insisting that based on the evidence on record, out of the 17 subject checks, nine were honored by the drawee banks. Moreover, she made partial payments of the amounts of the subject checks while the case was pending in the CA. Contrary to the finding of the trial court and the appellate courts that she acted with deceit when she drew and delivered the checks in payment of the pieces of jewelry she purchased from the private complainant, she in fact acted in good faith; hence, should be acquitted based on the decision of this Court in People v. Ojeda.5 The CA denied the motion on May 20, 2005.

Petitioner filed the instant petition contending that:

THE COURT OF APPEALS HAS DECIDED THE CASE CONVICTING THE PETITIONER IN A WAY PROBABLY NOT IN ACCORD WITH '

A. THE BENEFICENT RULING OF THE SUPREME COURT ENUNCIATED IN PEOPLE OF THE PHILIPPINES V. CORA ABELLA OJEDA (G.R. NOS. 104238-58, JUNE 3, 2004) WHERE IT HELD THAT A DEBTOR'S OFFER TO ARRANGE A PAYMENT SCHEME WITH HIS CREDITOR AND PAYMENT OF THE OBLIGATION INDICATE GOOD FAITH THAT SUCCESSFULLY REBUTS THE PRESUMPTION OF DECEIT.

B. WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT ENUNCIATED IN BORROMEO V. COURT OF APPEALS, PEOPLE V. CLORES, ET AL., PEOPLE V. BAUTISTA AND PEOPLE V. BENITO GO BIONG, JR. DIRECTING THAT IN CRIMINAL CASES, ALL CIRCUMSTANCES AGAINST GUILT AND IN FAVOR OF INNOCENCE MUST BE TAKEN INTO ACCOUNT.

C. THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE IN CONJUNCTION WITH THE ESTABLISHED JURISPRUDENCE WHICH HOLDS THAT WHEN FACED WITH TWO PROBABILITIES, ONE CONSISTENT WITH GUILT AND THE OTHER WITH INNOCENCE, THE SCALES OF JUSTICE SHOULD TILT IN FAVOR OF INNOCENCE.

D. THE APPLICABLE DECISION OF THE SUPREME COURT WHICH DIRECTS THAT IN ESTAFA CASES, IT IS OF PRIMORDIAL SIGNIFICANCE FOR THE PROSECUTION TO PROVE THE EXACT DATE OF THE TRANSACTION AND THE EXACT DATE OF THE ISSUANCE OF THE CHECKS.6

Petitioner avers that she acted in good faith and exerted her utmost efforts to confer with the private complainant to settle her obligations. She points out that she made monthly cash payments to lessen her civil liability and later on, for convenience, deposited the monthly payments at the private complainant's bank account with the Bank of the Philippine Islands. She continued to make payments even during the pendency of the case in the CA, and continues to make deposits to private complainant's bank account.

Petitioner asserts that her efforts to settle her civil obligations to the private complainant indicate that she has no intention of duping the latter, as well as the absence of deceit on her part. That she failed to comply with her obligations by failing to make good the checks as they fell due does not suggest deceit, but at best only financial hardship in fulfilling her civil obligations. Thus, there is no factual and legal basis to convict her of estafa. Petitioner insists that criminal intent in embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly entered into, and there can be no embezzlement if the mind of the person doing the act is innocent or if there is no wrongful purpose.

Petitioner further avers that she should be benefited by the Court's ruling in People v. Ojeda,7 considering that the facts therein are parallel if not almost identical to this case, the only difference being that, in the Ojeda case, the accused-appellant was able to fully settle her civil obligations. Petitioner points out that she is still paying her obligations to the private complainant and further argues that:

[i]n Criminal Case No. 2750-M-94, the petitioner issued ten (10) postdated Unitrust Development Bank checks to the private complainant for the purchase of a 2.19 carat diamond stone in white gold setting. Out of the ten (10) checks, four checks were duly funded when presented for acceptance and payment. In Criminal Case No. 2807-M-94, the petitioner issued ten (10) post-dated PCI Bank checks to the private complaint for the purchase of a 1.55 carat marquez loose diamond. The first four (4) checks were duly funded when presented for acceptance and payment. In Criminal Case No. 2751-M-94, the petitioner issued seven (7) post-dated Prudential Bank checks to the private complainant for the purchase of a pair of diamond earrings. The amount covered by the first check was paid and settled. The rest bounced.

The petitioner respectfully submits that the act of the petitioner - - - OF DULY FUNDING SOME OF THE POST-DATED CHECKS WHICH SHE ISSUED, SPECIFICALLY THOSE WHICH BECAME DUE FIRST OR EARLIER - is and should be considered in law as, a CIRCUMSTANCE INDICATING GOOD FAITH AND ABSENCE OF DECEIT.8

For its part, the Office of the Solicitor General asserts:

In the case of Ojeda, the prosecution failed to prove deceit. Ojeda never assured Chua the checks were funded. Chua knew that the checks were issued to guarantee future payments. Furthermore, Ojeda did not only make arrangements for payment but she fully paid the entire amount of the dishonored checks.

In the instant case, the elements of deceit and damage were established by convincing evidence. Petitioner Recuerdo issued the subject bank checks as payment for the pieces of jewelry simultaneous to the transactions, that is, on the very same occasion when the pieces of jewelry were bought. The issuance of the check by Recuerdo was the principal inducement to private complainant to part with the subject jewelries (CA Decision, pp. 12-13). In addition, petitioner only promised to replace the dishonored checks but she did not settle her obligations with private complainant. Assuming that there was an offer to settle her obligations, this will not overturn the findings of the trial court and the Court of Appeals as to the presence of deceit.

The guilt of petitioner was proven beyond reasonable doubt.

The crime of Estafa under Article 315, paragraph 2(d) of the Revised Penal Code has the following basic elements:

Postdating or issuance of a check in payment of an obligation contracted simultaneously at the time the check was issued;

The postdating or issuance was done when the offender had no funds in the bank, or that his funds deposited therein were not sufficient to cover the amount of the check; and cralawlibrary

Damage to the payee thereof (Justice Luis B. Reyes, The Revised Penal Code, Thirteenth Edition 1993, Book Two, p. 693; People v. Panganiban, 335 SCRA 354).

The existence of the foregoing elements of the crime was concretely established by the prosecution through convincing evidence, warranting petitioner's conviction of the offense of Estafa.

The trial court found private complainant Floro's testimony that petitioner issued the subject checks as payment for the purchase of pieces of jewelry simultaneous to their transactions to be categorical and credible. There was sufficient evidence established by the prosecution that the checks were issued by the accused to the complainant in exchange of the pieces of jewelry given to her on two separate occasions.

The issue of deceit raised by petitioner is a factual issue and must be proved by evidence. The finding of the trial court and the Court of Appeals that the issuance of petitioner was tainted with fraud or deceit is a factual finding that binds this Honorable Court (Jose R. Guevarra v. The Hon. Court of Appeals, et al., G.R. No. 100894, prom. January 26, 1993).9

In reply, petitioner avers that she is a dentist/orthodontist with a fairly established practice at the Medical Towers, Ibarra St., Legaspi Village, Makati City. She did not move out of her office because she had no intention to renege on her obligations to the private complainant.

The petition is denied for lack of merit.

Estafa through false pretense or fraudulent act under Paragraph 2(d) of Article 315 of the Revised Penal Code, as amended by Republic Act No. 4885, is committed as follows:

By postdating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. The failure of the drawer of the check to deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack or insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act.

The essential elements of the felony are: (1) a check is postdated or issued in payment of an obligation contracted at the time it is issued; (2) lack or insufficiency of funds to cover the check; and (3) damage to the payee thereof.10 It is criminal fraud or deceit in the issuance of a check which is made punishable under the Revised Penal Code, and not the non-payment of a debt.11 Deceit is the false representation of a matter of fact whether by words or conduct by false or misleading allegations or by concealment of that which should have been disclosed which deceives or is intended to deceive another so that he shall act upon it to his legal injury.12 Concealment which the law denotes as fraudulent implies a purpose or design to hide facts which the other party ought to have.13 The postdating or issuing of a check in payment of an obligation when the offender had no funds in the bank or his funds deposited therein are not sufficient to cover the amount of the check is a false pretense or a fraudulent act.14

There is no false pretense or fraudulent act if a postdated check is issued in payment of a pre-existing obligation.15 As the Court emphasized in Timbal v. Court of Appeals:16

x x x In order to constitute Estafa under the statutory provisions, the act of postdating or of issuing a check in payment of an obligation must be the efficient cause of the defraudation; accordingly, it should be either prior to or simultaneous with the act of fraud. In fine, the offender must be able to obtain money or property from the offended party by reason of the issuance, whether postdated or not, of the check. It must be shown that the person to whom the check is delivered would not have parted with his money or property were it not for the issuance of the check by the other party.

Estafa is a felony committed by dolo (with malice). For one to be criminally liable for estafa under paragraph (2)(d) of Article 315 of the Revised Penal Code, malice and specific intent to defraud are required.

General criminal intent is an element of all crimes but malice is properly applied only to deliberate acts done on purpose and with design. Evil intent must unite with an unlawful act for there to be a felony. A deliberate and unlawful act gives rise to a presumption of malice by intent. On the other hand, specific intent is a definite and actual purpose to accomplish some particular thing.

The general criminal intent is presumed from the criminal act and in the absence of any general intent is relied upon as a defense, such absence must be proved by the accused. Generally, a specific intent is not presumed. Its existence, as a matter of fact, must be proved by the State just as any other essential element. This may be shown, however, by the nature of the act, the circumstances under which it was committed, the means employed and the motive of the accused.17

The law provides that, in estafa, prima facie evidence of deceit is established upon proof that the drawer of the check failed to deposit the amount necessary to cover his check within three (3) days from receipt of the notice of dishonor for lack or insufficiency of funds. A prima facie evidence need not be rebutted by a preponderance of evidence, nor by evidence of greater weight. The evidence of the accused which equalizes the weight of the People's evidence or puts the case in equipoise is sufficient. As a result, the People will have to go forward with the proof. Should it happen that, at the trial the weight of evidence is equally balanced or at equilibrium and the presumption operates against the People who has the burden of proof, it cannot prevail.18

There can be no estafa if the accused acted in good faith because good faith negates malice and deceit.19 Good faith is an intangible and abstract quality with no technical meaning or statutory definition, and it encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage. An individual's personal good faith is a concept of his own mind, therefore, may not conclusively be determined by his

protestations alone. It implies honesty of intention and freedom from knowledge of circumstances which ought to put the holder upon inquiry. The essence of good faith lies in an honest belief in the validity of one's right, ignorance of a superior claim, and absence of intention to overreach another.20 In People v. Gulion,21 the Court held that:

Good faith is a defense to a charge of Estafa by postdating a check. This may be manifested by the accused's offering to make arrangements with his creditor as to the manner of payment or, as in the present case, averring that his placing his signature on the questioned checks was purely a result of his gullibility and inadvertence, with the unfortunate result that he himself became a victim of the trickery and manipulations of accused-at-large.22

In the present case, the prosecution adduced proof beyond reasonable doubt of the guilt of the petitioner of the crime charged. The trial court gave credence and probative weight to the evidence of the People and disbelieved that proferred by the petitioner.

Petitioner's insistence of her good faith and her reliance on the ruling of this Court in the Ojeda case were raised as a mere afterthought in a last ditch effort to secure her acquittal, as these arguments were invoked only in her motion for reconsideration of the CA decision. In Pascual v. Ramos,23 this Court held that if an issue is raised only in the motion for reconsideration of the appellate court's decision, it is as if it was never raised in that court at all.

Petitioner's defense of good faith is even belied by the evidence of the prosecution and her own evidence. When the postdated checks issued by petitioner were dishonored by the drawee banks and the private complainant made demands for her to pay the amounts of the checks, she intransigently refused to pay; she insisted that she issued and delivered the postdated checks to the private complainant after the subject pieces of jewelry had been delivered to her. Petitioner never offered to pay the amounts of the checks after she was informed by the private complainant that they had been dishonored by the drawee banks, the private complainant thus charged her with estafa before the RTC. It was only during the period of January 4, 2005 to June 27, 2005, after the CA promulgated its decision affirming the decision of the trial court, that petitioner made several payments to the private complainant. While petitioner appended the deposit slips24 to her motion for reconsideration in the CA and her petition in this Court, there is no showing as to which checks they were made in payment for. In fine, it was the spectre of a long prison term which jolted petitioner into making remittances to the private complainant, after the CA affirmed the decision of the trial court and increased the penalty meted on her, and not because she had acted in good faith in her transactions with the private complainant. To reiterate, petitioner rejected the demands of the private complainant to pay the amounts of the dishonored checks.

While it is true that nine of the 17 postdated checks petitioner issued and delivered to the private complainant were honored by the drawee banks, such a circumstance is not a justification for her acquittal of the charges relative to the dishonored checks. The reimbursement or restitution to the offended party of the sums swindled by the petitioner does not extinguish the criminal liability of the latter. It only extinguishes pro tanto the civil liability.25 Moreover, estafa is a public offense which must be prosecuted and punished by the State on its own motion even though complete reparation had been made for the loss or damage suffered by the offended party.26 The consent of the private complainant to petitioner's payment of her civil liability pendente lite does not entitle the latter to an acquittal. Subsequent payments does not obliterate the criminal liability already incurred.27 Criminal liability for estafa is not affected by a compromise between petitioner and the private complainant on the former's civil liability.28

Petitioner cannot find solace in the Court's ruling in the Ojeda case. The CA correctly refuted the submission of the petitioner in its decision, thus:

This Court is in full agreement with the position advanced by the Office of the Solicitor General that on account of the glaring dissimilarities between the factual backdrop of the case of Ojeda, on one hand, and the material facts obtaining in the case at bench, on the other, the doctrine in the former case may not be applied to benefit accused-appellant. Indeed, even accused-appellant herself was quick to admit that the facts of her case are not entirely on all fours with those that obtained in the case of Ojeda. At the outset, emphasis must be made of the fact that the acquittal of the accused in the Ojeda case

was brought about by a combination of reasons not obtaining in the present case. First, the Supreme Court ruled out the existence of deceit and intent to defraud in the case of Ojeda in view of the fact that the accused therein performed extraordinary efforts to gradually pay and settle her monetary obligations with the private complainant, and this convinced the High Court that the acts of the accused were not tainted with malice, bad faith and criminal intent. Verily, the accused in the Ojeda case not only made determined and honest arrangements to pay the private complainant, but was likewise able to actually satisfy with completeness the sums she owed the latter, and this was evidenced by an affidavit of desistance where the private complainant categorically declared that the accused already paid in full her monetary obligations. The facts in the instant case, however, are totally different. Contrary to the contention of accused-appellant, she never made a determined and earnest effort to arrange and settle with Floro with the end in view of paying her monetary obligations. In truth, accused-appellant simply promised to pay Floro the value of the dishonored checks that were issued in payment for the pieces of jewelry. However, that was all there was to it, and lamentably said promise turned out to be an empty one as accused-appellant never made good her commitment to pay for the value of the dishonored checks. Accused-appellant never arranged a payment scheme with Floro, and as the facts of the case would disclose she never made any gradual payment to Floro as shown by the fact that the value of the dishonored checks remained unpaid, in direct contrast with the facts of the Ojeda case where the accused was able to pay in full. Suffice it to say that accused-appellant failed to perform any concrete act to show that she had the intention of paying Floro for the value of the purchased pieces of jewelry, in order to somehow rebut the fact duly established by the prosecution that deceit attended her business dealings with Floro. It must be reiterated that We have found that accused-appellant issued the subject bank checks as payment for the pieces of jewelry simultaneous with her transactions with Floro, and that was, on the very same occasion when the pieces of jewelry were purchased, first, on the second week of December 1993, and subsequently, on February 7, 1994. It being clear that the subject bank checks were issued simultaneous with said transactions, it likewise became evident that deceit attended accused-appellants' dealings with Floro for the same only goes to show that the bum checks were issued to Floro in order to induce her to part with the pieces of jewelry in favor of accused-appellant.

In addition to the foregoing, the High Court likewise found in the Ojeda case that the prosecution miserably failed to adduce evidence to establish that the indispensable element of notice of dishonor was sent to and was received by the accused therein. In the case at bench, however, it is undisputed that after the dishonor of the subject bank checks Floro, through counsel, made repeated formal demands requiring accused-appellant to pay for the value of the bum checks, perforce the notice of dishonor which is required to properly prosecute and eventually convict an accused of the crime of Estafa under Article 315, paragraph 2(d) of the Revised Penal Code has been sufficiently met.29

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The Decision and Resolution of the Court of Appeals are AFFIRMED. No costs.

[G.R. NO. 142641 : July 17, 2006]

PACIFICO B. ARCEO, JR., Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

This Petition for Review on Certiorari assails the April 28, 1999 decision1 and March 27, 2000 resolution2 of the Court of Appeals in CA-G.R. CR No. 19601 affirming the trial court's judgment finding petitioner Pacifico B. Arceo, Jr. liable for violation of Batas Pambansa Blg. (BP) 22, otherwise known as the "Bouncing Checks Law."

The facts of the case as found by the trial court and adopted by the Court of Appeals follow.

On March 14, 1991, [petitioner], obtained a loan from private complainant Josefino Cenizal [] in the amount of P100,000.00. Several weeks thereafter, [petitioner] obtained an additional loan of P50,000.00 from [Cenizal]. [Petitioner] then issued in favor of Cenizal, Bank of the Philippine Islands [(BPI)] Check No. 163255, postdated August 4, 1991, for P150,000.00, at Cenizal's house located at 70 Panay Avenue, Quezon City. When August 4, 1991 came, [Cenizal] did not deposit the check immediately because [petitioner] promised [] that he would replace the check with cash. Such promise was made verbally seven (7) times. When his patience ran out, [Cenizal] brought the check to the bank for encashment. The head office of the Bank of the Philippine Islands through a letter dated December 5, 1991, informed [Cenizal] that the check bounced because of insufficient funds.

Thereafter, [Cenizal] went to the house of [petitioner] to inform him of the dishonor of the check but [Cenizal] found out that [petitioner] had left the place. So, [Cenizal] referred the matter to a lawyer who wrote a letter giving [petitioner] three days from receipt thereof to pay the amount of the check. [Petitioner] still failed to make good the amount of the check. As a consequence, [Cenizal] executed on January 20, 1992 before the office of the City Prosecutor of Quezon City his affidavit and submitted documents in support of his complaint for [e]stafa and [v]iolation of [BP 22] against [petitioner]. After due investigation, this case for [v]iolation of [BP 22] was filed against [petitioner] on March 27, 1992. The check in question and the return slip were however lost by [Cenizal] as a result of a fire that occurred near his residence on September 16, 1992. [Cenizal] executed an Affidavit of Loss regarding the loss of the check in question and the return slip.3

After trial, petitioner was found guilty as charged. Aggrieved, he appealed to the Court of Appeals. However, on April 28, 1999, the appellate court affirmed the trial court's decision in toto. Petitioner sought reconsideration but it was denied. Hence, this petition.

Petitioner claims that the trial and appellate courts erred in convicting him despite the failure of the prosecution to present the dishonored check during the trial. He also contends that he should not be held liable for the dishonor of the check because it was presented beyond the 90-day period provided under the law. Petitioner further questions his conviction since the notice requirement was not complied with and he was given only three days to pay, not five banking days as required by law. Finally, petitioner asserts that he had already paid his obligation to Cenizal.

Petitioner's contentions have no merit.

Significance of the 90-day PeriodFor Presentment of the Check

Petitioner asserts that there was no violation of BP 22 because the check was presented to the drawee bank only on December 5, 1991 or 120 days from the date thereof (August 4, 1991). He argues that this was beyond the 90-day period provided under the law in connection with the presentment of the check. We disagree.

Section 1 of BP 22 provides:

SECTION 1. Checks without sufficient funds Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered

the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the court.

The same penalty shall be imposed upon any person who, having sufficient funds in or credit with the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank.

Where the check is drawn by a corporation, company or entity, the person or persons who actually signed the check in behalf of such drawer shall be liable under this Act.

In Wong v. Court of Appeals,4 the Court ruled that the 90-day period provided in the law is not an element of the offense. Neither does it discharge petitioner from his duty to maintain sufficient funds in the account within a reasonable time from the date indicated in the check. According to current banking practice, the reasonable period within which to present a check to the drawee bank is six months. Thereafter, the check becomes stale and the drawer is discharged from liability thereon to the extent of the loss caused by the delay.

Thus, Cenizal's presentment of the check to the drawee bank 120 days (four months) after its issue was still within the allowable period. Petitioner was freed neither from the obligation to keep sufficient funds in his account nor from liability resulting from the dishonor of the check.

Applicability of theBest Evidence Rule

Petitioner's insistence on the presentation of the check in evidence as a condition sine qua non for conviction under BP 22 is wrong. Petitioner anchors his argument on Rule 130, Section 3, of the Rules of Court, otherwise known as the best evidence rule. However, the rule applies only where the content of the document is the subject of the inquiry. Where the issue is the execution or existence of the document or the circumstances surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible.5

The gravamen of the offense is the act of drawing and issuing a worthless check.6 Hence, the subject of the inquiry is the fact of issuance or execution of the check, not its content.

Here, the due execution and existence of the check were sufficiently established. Cenizal testified that he presented the originals of the check, the return slip and other pertinent documents before the Office of the City Prosecutor of Quezon City when he executed his complaint-affidavit during the preliminary investigation. The City Prosecutor found a prima facie case against petitioner for violation of BP 22 and filed the corresponding information based on the documents. Although the check and the return slip were among the documents lost by Cenizal in a fire that occurred near his residence on September 16, 1992, he was nevertheless able to adequately establish the due execution, existence and loss of the check and the return slip in an affidavit of loss as well as in his testimony during the trial of the case.

Moreover, petitioner himself admited that he issued the check. He never denied that the check was presented for payment to the drawee bank and was dishonored for having been drawn against insufficient funds.

Presence of the Elements of the Offense

Based on the allegations in the information,7 petitioner was charged for violating the first paragraph of BP 22. The elements of the offense are:

1. the making, drawing and issuance of any check to apply to account or for value;

2. knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and cralawlibrary

3. subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit, or dishonor of the check for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.8

All these elements are present in this case.

Both the trial and appellate courts found that petitioner issued BPI check no. 163255 postdated August 4, 1991 in the amount of P150,000 in consideration of a loan which he obtained from Cenizal. When the check was deposited, it was dishonored by the drawee bank for having been drawn against insufficient funds. There was sufficient evidence on record that petitioner knew of the insufficiency of his funds in the drawee bank at the time of the issuance of the check. In fact, this was why, on maturity date, he requested the payee not to encash it with the promise that he would replace it with cash. He made this request and assurance seven times but repeatedly failed to make good on his promises despite the repeated accommodation granted him by the payee, Cenizal.

Notice of Dishonor to Petitioner And Payment of the Obligation

The trial court found that, contrary to petitioner's claim, Cenizal's counsel had informed petitioner in writing of the check's dishonor and demanded payment of the value of the check. Despite receipt of the notice of dishonor and demand for payment, petitioner still failed to pay the amount of the check.

Petitioner cannot claim that he was deprived of the period of five banking days from receipt of notice of dishonor within which to pay the amount of the check.9 While petitioner may have been given only three days to pay the value of the check, the trial court found that the amount due thereon remained unpaid even after five banking days from his receipt of the notice of dishonor. This negated his claim that he had already paid Cenizal and should therefore be relieved of any liability.

Moreover, petitioner's claim of payment was nothing more than a mere allegation. He presented no proof to support it. If indeed there was payment, petitioner should have redeemed or taken the check back in the ordinary course of business.10 Instead, the check remained in the possession of the payee who demanded the satisfaction of petitioner's obligation when the check became due as well as when the check was dishonored by the drawee bank.

These findings (due notice to petitioner and nonpayment of the obligation) were confirmed by the appellate court. This Court has no reason to rule otherwise. Well-settled is the rule that the factual findings of the trial court, when affirmed by the appellate court, are not to be disturbed.11

WHEREFORE, the petition is hereby DENIED. The April 28, 1999 decision and March 27, 2000 resolution of the Court of Appeals in CA-G.R. CR No. 19601 are AFFIRMED.

Costs against petitioner.

[G.R. No. 129764. March 12, 2002.]GEOFFREY F. GRIFFITH, Petitioner, v. HON. COURT OF APPEALS, RTC JUDGE EDWIN A. VILLASOR

Assailed in this petition is the decision 1 dated March 14, 1997 of the Court of Appeals in CA-G.R. SP No. 19621, affirming the Regional Trial Court’s decision 2 finding petitioner Geoffrey F. Griffith guilty on two counts for violation of Batas Pambansa Blg. 22 (the Bouncing Checks Law), and sentencing him to suffer imprisonment for a period of six months on each count, to be served consecutively. Also assailed is the Court of Appeals’ resolution 3 dated July 8, 1997 denying petitioner’s motion for reconsideration.

The facts are as follows: chanrob1es virtual 1aw library

In 1985, Phelps Dodge Philippines, Inc. leased its lot and factory building to Lincoln Gerard, Inc. for a term of two years at a monthly rental of P75,000. When Lincoln Gerard, Inc., incurred rental arrearages, Geoffrey F. Griffith, in his capacity as president of Lincoln Gerard, Inc., issued the following checks: chanrob1es virtual 1aw library

Far East Bank and Trust Co. Check No. 06B-C-075065, dated April 15, 1986 for P100,000.00, payable to Phelps Dodge Phils. Inc.; and

Far East Bank and Trust Co. Check No. 06B-C-075066, dated May 1, 1986 for P115,442.65, payable to Phelps Dodge Phils. Inc. 4

The voucher for these checks contained the following instruction: chanrob1es virtual 1aw library

These checks are not to be presented without prior approval from this Corporation to be given not later than May 30, 1986.

Also written on the face of the voucher was the following note: chanrob1es virtual 1aw library

However, if written approval of Lincoln Gerard, Inc. is not given before May 30, 1986, Phelps Dodge, Phils. shall present the cheques for payment. This is final and irrevocable. 5

On May 29, 1986, Griffith wrote Phelps Dodge not to present the said checks for payment on May 30, 1986 because they could not be funded due to a four-week labor strike that had earlier paralyzed the business operations of Lincoln Gerard. 6

Previously, in a letter dated May 20, 1986, Phelps Dodge, through its treasurer Ricardo R. Manarang, advised Lincoln Gerard that it was transferring the contents of the Lincoln Gerard warehouse in the leased premises since a new tenant was moving in. Phelps Dodge told Lincoln Gerard that its properties would be placed "in our compound and under our custody." 7

On June 2, 1986, 8 when no further communication was received from Lincoln Gerard, Phelps Dodge presented the two checks for payment but these were dishonored by the bank for having been drawn against insufficient funds. Three days later, Phelps Dodge sent a demand letter to Lincoln Gerard, apprising Griffith of the dishonor of the checks and asking him to fund them within the time prescribed by law. 9 Lincoln Gerard still failed to fund the checks but Griffith sent a letter to Phelps Dodge, explaining Lincoln’s inability to fund said checks due to the strike. 10 Subsequently, on June 19, 1986, Phelps Dodge notified Lincoln Gerard that its properties would be foreclosed. Phelps Dodge went ahead with the foreclosure and auction sale on June 20, 1986, 11 despite Lincoln Gerard’s protest. 12

On May 10, 1988, two informations for violation of B.P. 22 docketed as Criminal Cases Nos. 73260 and 73261 were filed against petitioner before the Regional Trial Court. The motion for reconsideration filed by Griffith was dismissed, and so were his petition for review filed before the Department of Justice and later on his motion to quash filed before the RTC. Griffith then filed a petition for certiorari before the Court of Appeals that was likewise denied. chanrob1es virtua1 1aw 1ibrary

Meanwhile, on November 6, 1987, Lincoln Gerard lodged a complaint for damages docketed as Civil Case No. 55276 before

the Regional Trial Court of Pasig, Branch 69, against Phelps Dodge and the notary public who conducted the auction sale. 13 On July 19, 1991, the trial court ruled that the foreclosure and auction sale were invalid, but applied the proceeds thereof to Lincoln Gerard’s arrearages. It also ordered Phelps Dodge to return to Lincoln Gerard the P1,072,586.88 as excess. 14 The court stated:chanrob1es virtual 1aw library

The evidence shows that defendant corporation had already received the amount of P254,600 as a result of the invalid auction sale. The latter amount should be applied to the rental in arrears owed by the plaintiff corporation to the defendant corporation (P301,953.12). Thus, the plaintiff corporation still owes the defendant corporation the amount of P47,953.12 as rental arrears. In order to get the true and real damages that defendant corporation should pay the plaintiff corporation, the balance of the rental arrears should be deducted from the amount of P1,120,540.00, the total value of the items belonging to the plaintiff corporation and sold by the defendant corporation at a public auction. The net result is P1,072,586.88. 15

On appeal, the Court of Appeals affirmed the RTC decision, and this became final and executory. 16

On August 25, 1994, the criminal cases against Griffith pending before the RTC were remanded to the Metropolitan Trial Court (MeTC), in view of Republic Act No. 7691 that expanded the jurisdiction of the MeTC.

On July 25, 1995, the MeTC, in Criminal Cases Nos. 41678 and 41679, found Griffith guilty on both counts for violation of B.P. 22, 17 and sentenced him to suffer imprisonment for six months on each count, to be served consecutively. Thus: chanrob1es virtual 1aw library

WHEREFORE, premises considered, this court finds the accused GEOFFREY F. GRIFFITH, GUILTY OF VIOLATION of Section 1 of Batas Pambansa Blg. 22, otherwise known as the Bouncing Checks Law on two counts.

The accused is therefore hereby sentence (sic) to suffer imprisonment for a period of SIX (6) MONTHS in Criminal Case No. 41678 and another SIX (6) MONTHS in Criminal Case No. 41679, both of which shall be served consecutively. chanrob1es virtua1 1aw 1ibrary

Considering that the civil aspect of these cases has already been decided by the Regional Trial Court Branch 69, Pasig, regardless of its finality, of which this court has no record, this Court shall not resolve the same because they are either "Res Judicata" or "Pendente Litis" .

SO ORDERED. 18

On appeal, the RTC affirmed in toto the lower court’s decision.

Petitioner then appealed his conviction to the Court of Appeals. In a consolidated decision dated March 14, 1997, the appellate court ruled:chanrob1es virtual 1aw library

WHEREFORE, absent any prima facie merit in it, the Petition for Review under consideration is hereby DENIED DUE COURSE. Costs against petitioner. SO ORDERED. 19

Petitioner moved for a reconsideration of said decision but this was denied by the appellate court in a resolution dated July 8, 1997. 20 Hence, this petition seeking reversal of the CA decision and resolution on the criminal cases, anchored on the following grounds:chanrob1es virtual 1aw library

I. THE COURT OF APPEALS’ DECISION DATED 14 MARCH 1997 AND ITS RESOLUTION DATED 8 JULY 1997 ARE CONTRARY TO THE RULING IN MAGNO V. COURT OF APPEALS, WHERE THIS HONORABLE COURT LAID DOWN THE DOCTRINE THAT A CONVICTION UNDER B.P. 22 CANNOT BE BASED ON AN INVERSE APPLICATION OF THE ELEMENT OF KNOWLEDGE. chanrob1es virtua1 1aw 1ibrary

II. THE COURT OF APPEALS’ DECISION DATED 14 MARCH 1997 AND ITS RESOLUTION DATED 8 JULY 1997 RESULT IN AN UNCONSTITUTIONAL APPLICATION OF THE PROVISIONS OF B.P. 22.

III. THE COURT OF APPEALS’ DECISION DATED 14 MARCH 1997 AND ITS RESOLUTION DATED 8 JULY 1997 STATING THAT PAYMENT THROUGH NOTARIAL FORECLOSURE BEFORE THE FILING OF THE CRIMINAL INFORMATIONS UNDER B.P. 22 DOES NOT ABATE CRIMINAL LIABILITY, ARE ERRONEOUS AND RESULT IN THE INIQUITOUS INTERPRETATION OF THE LAW.

IV. THE COURT OF APPEALS’ DECISION DATED 14 MARCH 1997 AND ITS RESOLUTION DATED 8 JULY 1997 ARE INCONSISTENT WITH ITS OWN FINDINGS AND CONCLUSIONS IN A RELATED CASE (CA-G.R. NO. 20980) INVOLVING THE SAME PETITIONER AND RESPONDENT AND THE SAME TRANSACTION SUBJECT OF THIS CASE.

V. THE COURT OF APPEALS’ DECISION DATED 14 MARCH 1997 AND ITS RESOLUTION DATED 8 JULY 1997 WHICH RELIED ON THE RULING IN THE CASE OF LIM V. COURT OF APPEALS ON VENUE TO JUSTIFY ITS FINDING THAT PETITIONER HAS COMMITTED TWO COUNTS OF VIOLATION OF B.P. 22, ARE CONTRARY TO LAW AND JURISPRUDENCE. 21

Petitioner points out that he communicated to Phelps Dodge through a note on the voucher attached to the checks, the fact that said checks were unfunded at the time of their issuance. Petitioner contends that this good faith on his part negates any intent to put worthless checks in circulation, which is what B.P. 22 seeks to penalize. Moreover, as regards the second check that was postdated, petitioner contends that there could not be any violation of B.P. 22 with said check since the element of knowledge of insufficiency of funds is absent. Petitioner could not have known at the time of its issuance that the postdated check would be dishonored when presented for payment later on. chanrob1es virtual law library

Petitioner argues that his conviction in this case would be violative of the constitutional proscription against imprisonment for failure to pay a debt, since petitioner would be punished not for knowingly issuing an unfunded check but for failing to pay an obligation when it fell due.

Petitioner also asserts that the payment made by Lincoln Gerard through the proceeds of the notarial foreclosure and auction sale extinguished his criminal liability.

On the other hand, private respondent contends that all the elements that comprise violation of B.P. 22 are present in this case. Moreover, the payment in this case was made beyond the five-day period, counted from notice of dishonor, provided by the law and thus did not extinguish petitioner’s criminal liability.

For the State, the Solicitor General contends that Lincoln Gerard assured Phelps Dodge, through the note on the voucher attached to the checks, that said checks would be covered with sufficient funds by May 30, 1996, which assurance was "final and irrevocable," .22 The OSG also argues that B.P. 22 does not distinguish between a check that is postdated and one that is not, for as long as the drawer issued the checks with knowledge of his insufficient funds and the check is dishonored upon presentment.chanrob1es virtua1 1aw 1ibrary

There is no unconstitutional punishment for failure to pay a debt in this case, since according to the OSG, what B.P. 22 penalizes is the act of making and issuing a worthless check that is dishonored upon presentation for payment, not the failure to pay a debt. 23

The OSG asserts that the supposed payment that resulted from Phelps Dodge’s notarial foreclosure of Lincoln Gerard’s properties could not bar prosecution under B.P. 22, since damage or prejudice to the payee is immaterial. Moreover, said payment was made only after the violation of the law had already been committed. It was made beyond the five-day period, from notice of dishonor of the checks, provided under B.P. 22.

The principal issue in this case is whether petitioner Geoffrey F. Griffith, president of Lincoln Gerard, Inc., has been erroneously convicted and sentenced for violation of the Bouncing Checks Law (Batas Pambansa Blg. 22). His conviction on two counts and sentence of six months imprisonment for each count by the respondent MTC Judge Manuel Villamayor was upheld by respondent RTC Judge Edwin Villasor and affirmed by the respondent Court of Appeals. But private respondent appears to have collected more than the value of the two checks in question before the filing in the trial court of the case for violation of B.P. 22. Hence, petitioner insists he has been wrongfully convicted and sentenced. To resolve this issue, we must determine whether the alleged payment of the amount of the checks two years prior to the filing of the information for violation of B.P. 22 justifies his acquittal.

Whether there is an unconstitutional application of the provisions of B.P. 22 in this case, however, does not appear to us an appropriate issue for consideration now. A purported constitutional issue raised by petitioner may only be resolved if essential to the decision of a case and controversy. But here we find that this case can be resolved on other grounds. Well to remember, courts do not pass upon constitutional questions that are not the very lis mota of a case. 24

In the present case, the checks were conditionally issued for arrearages on rental payments incurred by Lincoln Gerard, Inc. The checks were signed by petitioner, the president of Lincoln Gerard. It was a condition written on the voucher for each check that the check was not to be presented for payment without clearance from Lincoln Gerard, to be given at a specific date. However, Lincoln Gerard was unable to give such clearance owing to a labor strike that paralyzed its business and resulted to the company’s inability to fund its checks. Still, Phelps Dodge deposited the checks, per a note on the voucher attached thereto that if written approval was not received from Lincoln Gerard before May 30, 1986, the checks would be presented for payment. "This is final and irrevocable", according to the note that was written actually by an officer of Phelps Dodge, not by petitioner. The checks were dishonored and Phelps Dodge filed criminal cases for violation of B.P. 22 against petitioner. But this filing took place only after Phelps Dodge had collected the amount of the checks, with more than one million pesos to spare, through notarial foreclosure and auction sale of Lincoln Gerard’s properties earlier impounded by Phelps Dodge.

In our view, considering the circumstances of the case, the instant petition is meritorious.

The Bouncing Checks Law "was devised to safeguard the interest of the banking system and the legitimate public checking account user." 25 It was not designed to favor or encourage those who seek to enrich themselves through manipulation and circumvention of the purpose of the law. 26 Noteworthy, in Administrative Circular No. 12-2000, this Court has expressed a policy preference for fine as penalty in cases of B.P. 22 violations rather than imprisonment to "best serve the ends of criminal justice."cralaw virtua1aw library

Moreover, while the philosophy underlying our penal system leans toward the classical school that imposes penalties for retribution, 27 such retribution should be aimed at "actual and potential wrongdoers." 28 Note that in the two criminal cases filed by Phelps Dodge against petitioner, the checks issued were corporate checks that Lincoln Gerard allegedly failed to fund for a valid reason duly communicated to the payee. Further, it bears repeating that Phelps Dodge, through a notarial foreclosure and auction that were later on judicially declared invalid, sold Lincoln Gerard’s property for cash amounting to P1,120,540 29 to satisfy Phelps Dodge claim for unpaid rentals. Said property was already in Phelps Dodge’s custody earlier, purportedly because a new tenant was moving into the leased premises. The obligation of Lincoln Gerard to Phelps Dodge for said rentals was only P301,953.12. 30 Thus, by resorting to the remedy of foreclosure and auction sale, Phelps Dodge was able to collect the face value of the two checks, totalling P215,442.65. In fact, it impounded items owned by Lincoln Gerard valued far in excess of the debt or the checks. This was the situation when, almost two years after the auction sale, petitioner was charged with two counts of violation of B.P. 22. By that time, the civil obligation of Lincoln Gerard, Inc. to Phelps Dodge Phils. Inc. was no longer subsisting, though respondent Court of Appeals calls the payment thereof as involuntary. 31 That the money value of the two checks signed by petitioner was already collected, however, could not be ignored in appreciating the antecedents of the two criminal charges against petitioner. Because of the invalid foreclosure and

sale, Phelps Dodge was ordered to pay or return P1,072,586.88 to Lincoln Gerard, per decision of the Regional Trial Court of Pasig, Branch 69, which became final after it was affirmed by the appellate court. We cannot, under these circumstances, see how petitioner’s conviction and sentence could be upheld without running afoul of basic principles of fairness and justice. For Phelps Dodge has, in our view, already exacted its proverbial pound of flesh through foreclosure and auction sale as its chosen remedy.

That is why we find quite instructive the reasoning of the Court of Appeals earlier rendered in deciding the petition for Certiorari and Injunction, Griffith v. Judge Milagros Caguioa, CA-G.R. SP No. 20980, in connection with the petitioner’s motion to quash the charges herein before they were tried on the merits. 32

Said Justice C. Francisco with the concurrence of Justices Reynato S. Puno and Asaali S. Isnani: jgc:chanrobles.com.ph

". . . We are persuaded that the defense has good and solid defenses against both charges in Criminal Cases Nos. 73260-61. We can even say that the decision rendered in Branch 69 in Civil Case No. 55276, well-written as it is, had put up a formidable obstacle to any conviction in the criminal cases with the findings therein made that the sale by public auction of the properties of Lincoln was illegal and had no justification under the facts; that also the proceeds realized in the said sale should be deducted from the account of Lincoln with Phelps, so that only P47,953.12 may only be the rentals in arrears which Lincoln should pay, computed at P301,953.12 less P254,600.00; that out of what had happened in the case as the trial court had resolved in its decision, Phelps is duty bound to pay Lincoln in damages P1,072,586.88 from which had been deducted the amount of P47,953.12 representing the balance of the rental in arrearages; and that consequently, there is absolutely no consideration remaining in support of the two (2) subject checks." 33

Petitioner’s efforts to quash in the Court of Appeals the charges against him was frustrated on procedural grounds because, according to Justice Francisco, appeal and not certiorari was the proper remedy. 34 In a petition for certiorari, only issues of jurisdiction including grave abuse of discretion are considered, but an appeal in a criminal case opens the entire case for review.

While we agree with the private respondent that the gravamen of violation of B.P. 22 is the issuance of worthless checks that are dishonored upon their presentment for payment, we should not apply penal laws mechanically. 35 We must find if the application of the law is consistent with the purpose of and reason for the law. Ratione cessat lex, et cessat lex. (When the reason for the law ceases, the law ceases.) It is not the letter alone but the spirit of the law also that gives it life. This is especially so in this case where a debtor’s criminalization would not serve the ends of justice but in fact subvert it. The creditor having collected already more than a sufficient amount to cover the value of the checks for payment of rentals, via auction sale, we find that holding the debtor’s president to answer for a criminal offense under B.P. 22 two years after said collection, is no longer tenable nor justified by law or equitable considerations.

In sum, considering that the money value of the two checks issued by petitioner has already been effectively paid two years before the informations against him were filed, we find merit in this petition. We hold that petitioner herein could not be validly and justly convicted or sentenced for violation of B.P. 22. Whether the number of checks issued determines the number of violations of B.P. 22, or whether there should be a distinction between postdated and other kinds of checks need no longer detain us for being immaterial now to the determination of the issue of guilt or innocence of petitioner.

WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals in CA-G.R. No. 19621 dated March 14, 1997, and its resolution dated July 8, 1997, are REVERSED and SET ASIDE. Petitioner Geoffrey F. Griffith is ACQUITTED of the charges of violation of B.P. 22 in Criminal Cases Nos. 41678 and 41679.

People vs Malngan

The Case

For review is the Decision 1 of the Court of Appeals in CA-G.R. CR HC No. 01139 promulgated on 2 September 2005, affirming with modification the Judgment 2 of the Regional Trial Court (RTC) of Manila, Branch 41, in Criminal Case No. 01-188424 promulgated on 13 October 2003, finding appellant Edna Malngan y Mayo (Edna) guilty beyond reasonable doubt of the crime of “Arson with Multiple Homicide or Arson resulting to the death of six (6) people,” and sentencing her to suffer the penalty of death.

The Facts

As summarized3 by the Court of Appeals, the antecedent facts are as follows:

From the personal account of Remigio Bernardo, the Barangay Chairman in the area, as well as the personal account of the pedicab driver named Rolando Gruta, it was at around 4:45 a.m. on January 2, 2001 when Remigio Bernardo and his tanods saw the accused-appellant EDNA, one hired as a housemaid by Roberto Separa, Sr., with her head turning in different directions, hurriedly leaving the house of her employer at No. 172 Moderna Street, Balut, Tondo, Manila. She was seen to have boarded a pedicab which was driven by a person later identified as Rolando Gruta. She was heard by the pedicab driver to have instructed that she be brought to Nipa Street, but upon her arrival there, she changed her mind and asked that she be brought instead to Balasan Street where she finally alighted, after paying for her fare.

Thirty minutes later, at around 5:15 a.m. Barangay Chairman Bernardo’s group later discovered that a fire gutted the house of the employer of the housemaid. Barangay Chairman Bernardo and his tanods responded to the fire upon hearing shouts from the residents and thereafter, firemen from the Fire District 1-NCR arrived at the fire scene to contain the fire.

When Barangay Chairman Bernardo returned to the Barangay Hall, he received a report from pedicab driver Rolando Gruta, who was also a tanod, that shortly before the occurrence of the fire, he saw a woman (the housemaid) coming out of the house at No. 172 Moderna Street, Balut, Tondo, Manila and he received a call from his wife telling him of a woman (the same housemaid) who was acting strangely and suspiciously on Balasan Street. Barangay Chairman Bernardo, Rolando Gruta and the other tanods proceeded to Balasan Street and found the woman who was later identified as the accused-appellant. After Rolando Gruta positively identified the woman as the same person who left No. 172 Moderna Street, Balut, Tondo, Manila, Barangay Chairman Bernardo and his tanods apprehended her and brought her to the Barangay Hall for investigation. At the Barangay Hall, Mercedita Mendoza, neighbor of Roberto Separa, Sr. and whose house was also burned, identified the woman as accused-appellant EDNA who was the housemaid of Roberto Separa, Sr. Upon inspection, a disposable lighter was found inside accused-appellant EDNA’s bag. Thereafter, accused-appellant EDNA confessed to Barangay Chairman Bernardo in the presence of multitudes of angry residents outside the Barangay Hall that she set her employer’s house on fire because she had not been paid her salary for about a year and that she wanted to go home to her province but her employer told her to just ride a broomstick in going home.

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Accused-appellant EDNA was then turned over to arson investigators headed by S[F]O4 Danilo Talusan, who brought her to the San Lazaro Fire Station in Sta. Cruz, Manila where she was further investigated and then detained.

When Mercedita Mendoza went to the San Lazaro Fire Station to give her sworn statement, she had the opportunity to ask accused-appellant EDNA at the latter’s detention cell why she did the burning of her employer’s house and accused-appellant EDNA replied that she set the house on fire because when she asked permission to go home to her province, the wife of her employer Roberto Separa, Sr., named Virginia Separa (sic) shouted at her: “Sige umuwi ka, pagdating mo maputi ka na. Sumakay ka sa walis, pagdating mo maputi ka na” (TSN, January 22, 2002, p.6) (“Go ahead, when you arrive your color would be fair already. Ride a broomstick, when you arrive your color would be fair already.”) And when Mercedita Mendoza asked accused-appellant EDNA how she burned the house, accused-appellant EDNA told her: “Naglukot ako ng maraming diyaryo, sinindihan ko ng disposable lighter at hinagis ko sa ibabaw ng lamesa sa loob ng bahay” (TSN, January 22, 2002, p. 7.) (“I crumpled newspapers, lighted them with a disposable lighter and threw them on top of the table inside the house.”)

When interviewed by Carmelita Valdez, a reporter of ABS-CBN Network, accused-appellant EDNA while under detention (sic) was heard by SFO4 (sic) Danilo Talusan as having admitted the crime and even narrated the manner how she accomplished it. SFO4 (sic) Danilo Talusan was able to hear the same confession, this time at his home, while watching the television program “True Crime” hosted by Gus Abelgas also of ABS-CBN Network.

The fire resulted in [the] destruction of the house of Roberto Separa, Sr. and other adjoining houses and the death of Roberto Separa, Sr. and Virginia Separa together with their four (4) children, namely: Michael, Daphne, Priscilla and Roberto, Jr.

On 9 January 2001, an Information4 was filed before the RTC of Manila, Branch 41, charging accused-

appellant with the crime of Arson with Multiple Homicide. The case was docketed as Criminal Case No. 01-188424.

The accusatory portion of said Information provides:

That on or about January 2, 2001, in the City of Manila, Philippines, the said accused, with intent to cause damage, did then and there willfully, unlawfully, feloniously and deliberately set fire upon the two-storey residential house of ROBERTO SEPARA and family mostly made of wooden materials located at No. 172 Moderna St., Balut, Tondo, this city, by lighting crumpled newspaper with the use of disposable lighter inside said house knowing the same to be an inhabited house and situated in a thickly populated place and as a consequence thereof a conflagration ensued and the said building, together with some seven (7) adjoining residential houses, were razed by fire; that by reason and on the occasion of the said fire, the following, namely,

1.            Roberto Separa, Sr., 45 years of age2.            Virginia Separa y Mendoza, 40 years of age3.            Michael Separa, 24 years of age4.            Daphne Separa, 18 years of age5.            Priscilla Separa, 14 years of age6.            Roberto Separa, Jr., 11 years of age sustained burn injuries which were the

direct cause of their death immediately thereafter.5

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When arraigned, accused-appellant with assistance of counsel de oficio, pleaded6 “Not Guilty” to the crime

charged. Thereafter, trial ensued.7

The prosecution presented five (5) witnesses, namely, SPO48 Danilo Talusan, Rolando Gruta, Remigio Bernardo, Mercedita Mendoza and Rodolfo Movilla to establish its charge that accused-appellant Edna committed the crime of arson with multiple homicide.

SPO4 Danilo Talusan, arson investigator, testified that he was one of those who responded to the fire that occurred on 2 January 2001 and which started at No. 172 Moderna St., Balut, Tondo, Manila. He stated that the fire killed Roberto Separa, Sr. and all the other members of his family, namely his wife, Virginia, and his children, Michael, Daphne, Priscilla and Roberto, Jr.; the fire also destroyed their abode as well as six neighboring houses. He likewise testified that he twice heard accused-appellant – once while the latter was being interviewed by Carmelita Valdez, a reporter of ABS-CBN, and the other time when it was shown on channel 2 on television during the airing of the television program entitled “True Crime” hosted by Gus Abelgas – confess to having committed the crime charged, to wit:

Lastly, the prosecution presented Rodolfo Movilla, owner of the house situated beside that of the Separa family. He testified that his house was also gutted by the fire that killed the Separa family and that he tried to help said victims but to no avail .

The prosecution presented other documentary evidence 9 and thereafter rested i ts case.

When it came time for the defense to present exculpatory evidence, instead of doing so, accused-appellant filed a Motion to Admit Demurrer to Evidence 1 0 and the corresponding Demurrer to Evidence 1 1 with the former expressly stating that said Demurrer to Evidence was being fi led “x x x without express leave of court x x x.” 1 2

In her Demurrer to Evidence , accused-appellant asserts that the prosecution’s evidence was insufficient to prove her guilt beyond reasonable doubt for the following reasons: 1 3 (a) that she is charged with crime not defined and penalized by law; (b) that circumstantial evidence was insufficient to prove her guilt beyond reasonable doubt; and (c) that the testimonies given by the witnesses of the prosecution were hearsay, thus, inadmissible in evidence against her.

The prosecution fi led its Comment/Opposition to accused-appellant’s Demurrer to Evidence .

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On 13 October 2003, acting on the Demurrer to Evidence, the RTC promulgated its Judgment14 wherein it proceeded to resolve the subject case based on the evidence of the prosecution. The RTC considered accused-appellant to have waived her right to present evidence, having filed the Demurrer to Evidence without leave of court.

In finding accused-appellant Edna guilty beyond reasonable doubt of the crime of Arson with Multiple Homicide, the RTC ruled that:

The first argument of the accused that she is charged with an act not defined and penalized by law is without merit. x x x the caption which charges the accused with the crime of Arson with Multiple Homicide is merely descriptive of the charge of Arson that resulted to Multiple Homicide. The fact is that the accused is charged with Arson which resulted to Multiple Homicide (death of victims) and that charge is embodied and stated in the body of the information. What is controlling is the allegation in the body of the Information and not the title or caption thereof. x x x.

The second and third arguments will be discussed jointly as they are interrelated with each other. x x x.

[W]hile there is no direct evidence that points to the accused in the act of burning the house or actually starting the subject fire, the following circumstances that show that the accused intentionally caused or was responsible for the subject fire have been duly established:

1. that immediately before the burning of the house, the accused hurriedly and with head turning in different directions (palinga-linga) went out of the said house and rode a pedicab apparently not knowing where to go x x x;

2. that immediately after the fire, upon a report that there was a woman in Balasan St. who appears confused and apprehensive (balisa), the Barangay Chairman and his tanods went there, found the accused and apprehended her and brought her to the barangay hall as shown by the testimony of Barangay Chairman Remigio Bernardo; and

3. that when she was apprehended and investigated by the barangay officials and when her bag was opened, the same contained a disposable lighter as likewise shown by the testimony of the Barangay Chairman.

[T]he timing of her hurried departure and nervous demeanor immediately before the fire when she left the house and rode a pedicab and her same demeanor, physical and mental condition when found and apprehended at the same place where she alighted from the pedicab and the discovery of the lighter in her bag thereafter when investigated indisputably show her guilt as charged.

If there is any doubt of her guilt that remains with the circumstantial evidence against her, the same is removed or obliterated with the confessions/admissions of the commission of the offense and the manner thereof that she made to the prosecution witnesses Barangay Chairman Remigio Bernardo, Mercedita Mendoza and to the media, respectively.

[H]er confessions/admissions are positive acknowledgment of guilt of the crime and appear to have been voluntarily and intelligently given. These confessions/admissions, especially the one given to her neighbor Mercedita Mendoza

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and the media, albeit uncounselled and made while she was already under the custody of authorities, i t is believed, are not violative of her right under the Constitution.

The decretal part of the RTC’s Judgment reads:

WHEREFORE, the Demurrer to Evidence is hereby denied and judgment is hereby rendered finding the accused EDNA MALNGAN Y MAYO guilty beyond reasonable doubt of the crime of Arson with Multiple Homicide or Arson resulting to the death of six (6) people and sentencing her to suffer the mandatory penalty of death, and ordering her to pay the heirs of the victims Roberto Separa, Sr. and Virginia Separa and children Michael, Daphne, Priscil la and Roberto, Jr. , the amount of Fifty Thousand (P50,000.00) Pesos for each victim and the amount of One Hundred Thousand (P100,000.00) Pesos as temperate damages for their burned house or a total of Four Hundred Thousand (P400,000.00) Pesos and to Rodolfo Movilla the amount of One Hundred [Thousand] (P100,000.00) Pesos.

Due to the death penalty imposed by the RTC, the case was directly elevated to this Court for automatic review. Conformably with our d ecision in People v. Efren Mateo y Garcia, 1 5 however, we referred the case and its records to the CA for appropriate action and disposition.

On 2 September 2005, the Court of Appeals affirmed with modification the decision of the RTC, the fallo of which reads:

WHEREFORE, premises considered, the assailed October 13, 2003 Judgment of the Regional Trial Court of Manila, Branch 41, finding accused-appellant Edna Malngan y Mayo guilty beyond reasonable doubt of Arson with multiple homicide and sentencing her to suffer the DEATH PENALTY is hereby AFFIRMED with MODIFICATION in that she is further ordered to pay P50,000.00 as moral damages and another P50,000.00 as exemplary damages for each of the victims who perished in the fire, to be paid to their heirs. She is ordered to pay Rodolfo Movilla, one whose house was also burned, the sum of P50,000.00 as exemplary damage.

Pursuant to Section 13 (a), Rule 124 of the 2000 Rules of Criminal Procedure as amended by A.M. No. 00-5-03-SC dated September 28, 2004, which became effective on October 15, 2004, the Court of Appeals, after rendering judgment, hereby refrains from making an entry of judgment and forthwith certifies the case and elevates the entire record of this case to the Supreme Court for review. 1 6

It is the contention of accused-appellant that the evidence presented by the prosecution is not sufficient to establish her guilt beyond reasonable doubt as the perpetrator of the crime charged. In support of said exculpatory proposition, she assigns the following errors 1 7 :

I.

THE HONORABLE COURT ERRED IN RULING THAT THE CIRCUMSTANTIAL EVIDENCE PRESENTED BY THE PROSECUTION IS SUFFICIENT TO CONVICT THE ACCUSED; and

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II.

THE HONORABLE COURT ERRED IN ALLOWING AND GIVING CREDENCE TO THE HEARSAY EVIDENCE AND UNCOUNSELLED ADMISSIONS ALLEGEDLY GIVEN BY THE ACCUSED TO THE WITNESSES BARANGAY CHAIRMAN REMIGIO BERNARDO, MERCEDITA MENDOZA AND THE MEDIA.

THERE IS NO COMPLEX CRIME OF ARSON WITH (MULTIPLE) HOMICIDE .

The Information in this case erroneously charged accused-appellant with a complex crime , i .e. , Arson with Multiple Homicide . Presently, there are two (2) laws that govern the crime of arson where death results therefrom – Article 320 of the Revised Penal Code (RPC), as amended by Republic Act (RA) No. 7659, 1 8 and Section 5 of Presidential Decree (PD) No. 1613 1 9 , quoted hereunder, to wit:

Revised Penal Code:

ART. 320. Destructive Arson. – x x x xIf as a consequence of the commission of any of the acts penalized under this

Article, death results , the mandatory penalty of death shall be imposed. [Emphasis supplied.]

Presidential Decree No. 1613:

SEC. 5. Where Death Results from Arson. – If by reason of or on the occasion of the arson death results , the penalty of reclusion perpetua to death shall be imposed . [Emphasis supplied.]

Art. 320 of the RPC, as amended , with respect to destructive arson, and the provisions of PD No. 1613 respecting other cases of arson provide only one penalty for the commission of arson, whether considered destructive or otherwise, where death results therefrom . The raison d'être is that arson is itself the end and death is simply the consequence. 2 0

Whether the crime of arson will absorb the resultant death or will have to be a separate crime altogether, the joint discussion 2 1 of the late Mr. Chief Justice Ramon C. Aquino and Mme. Justice Carolina C. Griño-Aquino, on the subject of the crimes of arson and murder/homicide, is highly instructive:

Groizard says that when fire is used with the intent to kill a particular person who may be in a house and that objective is attained by burning the house, the crime is murder only. When the Penal Code declares that kill ing committed by means of fire is murder, i t intends that fire should be purposely adopted as a means to that end. There can be no murder without a design to take l ife. 2 2 In other words, if the main

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object of the offender is to kill by means of fire, the offense is murder. But if the main objective is the burning of the building, the resulting homicide may be absorbed by the crime of arson. 2 3

If the house was set on fire after the victims therein were killed, fire would not be a qualifying circumstance. The accused would be l iable for the separate offenses of murder or homicide, as the case may be, and arson. 2 4

Accordingly, in cases where both burning and death occur, in order to determine what crime/crimes was/were perpetrated – whether arson, murder or arson and homicide/murder, i t is de rigueur to ascertain the main objective of the malefactor: (a) if the main objective is the burning of the building or edifice, but death results by reason or on the occasion of arson, the crime is simply arson, and the resulting homicide is absorbed; (b) if, on the other hand, the main objective is to kill a particular person who may be in a building or edifice, when fire is resorted to as the means to accomplish such goal the crime committed is murder only; lastly, (c) if the objective is, likewise, to kill a particular person, and in fact the offender has already done so, but fire is resorted to as a means to cover up the killing, then there are two separate and distinct crimes committed – homicide/murder and arson .

Where then does this case fall under?

From a reading of the body of the Information:

That on or about January 2, 2001, in the City of Manila, Philippines, the said accused, with intent to cause damage, did then and there willfully, unlawfully, feloniously and deliberately set fire upon the two-storey residential house of ROBERTO SEPARA and family mostly made of wooden materials located at No. 172 Moderna St., Balut, Tondo, this city, by lighting crumpled newspaper with the use of disposable lighter inside said house knowing the same to be an inhabited house and situated in a thickly populated place and as a consequence thereof a conflagration ensued and the said building, together with some seven (7) adjoining residential houses, were razed by fire; that by reason and on the occasion of the said fire, the following, namely,

1.    Roberto Separa, Sr., 45 years of age2.    Virginia Separa y Mendoza, 40 years of age3.    Michael Separa, 24 years of age4.    Daphne Separa, 18 years of age5.    Priscilla Separa, 14 years of age6.    Roberto Separa, Jr., 11 years of age

sustained burn injuries which were the direct cause of their death immediately thereafter.25 [Emphasis supplied.]

accused-appellant is being charged with the crime of arson. It it is clear from the foregoing that her intent was merely to destroy her employer’s house through the use of fire.

We now go to the issues raised. Under the first assignment of error, in asserting the insufficiency of the prosecution’s evidence to establish her guilt beyond reasonable doubt, accused-appellant argues that the prosecution was only able to adduce circumstantial evidence –

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hardly enough to prove her guilt beyond reasonable doubt. She ratiocinates that the following circumstances:

1.                      That immediately before the burning of the house , the accused hurriedly and with head turning in different directions (palinga-linga) went out of the said house and rode a pedicab apparently not knowing where to go for she first requested to be brought to Nipa St. but upon reaching there requested again to be brought to Balasan St. as shown by the testimony of prosecution witness Rolando Gruta;

2.                      That immediately after the fire, upon a report that there was a woman in Balasan St. who appears confused and apprehensive ( balisa), the Barangay Chairman and his tanods went there, found the accused and apprehended her and brought her to the barangay hall as shown by the testimony of Barangay Chairman Remigio Bernardo; and

3. That when she was apprehended and investigated by the barangay officials and when her bag was opened, the same contained a disposable lighter as likewise shown by the testimony of the Barangay Chairman. 2 6

fall short of proving that she had any involvement in setting her employer’s house on fire, much less show guilt beyond reasonable doubt, given that “it is a fact that housemaids are the first persons in the house to wake up early to perform routine chores for their employers,” 2 7 one of which is preparing and cooking the morning meal for the members of the household; and necessity requires her to go out early to look for open stores or even nearby marketplaces to buy things that will complete the early meal for the day. 2 8 She then concludes that it was normal for her to have been seen going out of her employer’s house in a hurry at that time of the day and “to look at all directions to insure that the house is secure and that there are no other persons in the vicinity.” 2 9

We are far from persuaded.

True, by the nature of their jobs, housemaids are required to start the day early; however, contrary to said assertion, the actuations and the demeanor of accused-appellant on that fateful early morning as observed firsthand by Rolando Gruta, one of the witnesses of the prosecution, belie her claim of normalcy, to wit:

We quote with approval the pronouncement of the RTC in discrediting accused-appellant’s aforementioned rationale:

[O]bviously it is never normal, common or ordinary to leave the house in such a disturbed, nervous and agitated manner, demeanor and condition. The t iming of her hurried departure and nervous demeanor immediately before the fire when she left the house and rode a pedicab and her same demeanor, physical and mental condition when found and apprehended at the same place where she alighted from the pedicab

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and the discovery of the lighter in her bag thereafter when investigated indisputably show her guilt as charged. 3 0

All the witnesses are in accord that accused-appellant’s agitated appearance was out of the ordinary. Remarkably, she has never denied this observation.

We give great weight to the findings of the RTC and so accord credence to the testimonies of the prosecution witnesses as it had the opportunity to observe them directly. The credibility given by trial courts to prosecution witnesses is an important aspect of evidence which appellate courts can rely on because of its unique opportunity to observe them, particularly their demeanor, conduct, and attitude, during the direct and cross-examination by counsels. Here, Remigio Bernardo, Rolando Gruta and Mercedita Mendoza are disinterested witnesses and there is not an iota of evidence in the records to indicate that they are suborned witnesses. The records of the RTC even show that Remigio Bernardo, the Barangay Chairman, kept accused-appellant from being mauled by the angry crowd outside of the barangay hall:

Pros. Rebagay:Now, who were present when the accused are (sic) tell ing you this?

A: “Iyon nga iyong mga tanod ko, mamamayan doon nakapaligid, siyempre may sunog nagkakagulo, gusto nga siyang kunin ng mga mamamayan para saktan hindi ko maibigay papatayin siya gawa ng may namatay eh anim na tao and namatay, kaya iyong mga tao kinokontrol siya madidisgrasya siya dahil pin-pointed po siya, Your Honor, iyong dami na iyon libo iyong nakapaligid doon sa barangay hall napakahirap awatin. Gusting-gusto siyang kunin ng mga taong-bayan, nagalit dahil ang daming bahay hong nasunog .” 3 1

Accused-appellant has not shown any compelling reason why the witnesses presented would openly, publicly and deliberately lie or concoct a story, to send an innocent person to jail all the while knowing that the real malefactor remains at large. Such proposition defies logic. And where the defense failed to show any evil or improper motive on the part of the prosecution witnesses, the presumption is that their testimonies are true and thus entitled to full faith and credence.32

While the prosecution witnesses did not see accused-appellant actually starting the fire that burned several houses and killed the Separa family, her guilt may stil l be established through circumstantial evidence provided that: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and, (3) the combination of all the circumstances is such as to produce conviction beyond reasonable doubt. 3 3

Circumstantial evidence is that evidence which proves a fact or series of facts from which the facts in issue may be established by inference. 3 4 It is founded on experience and observed facts and coincidences establishing a connection between the known and proven facts and the facts sought to be proved. 3 5 In order to bring about a conviction, the circumstantial evidence

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presented must constitute an unbroken chain, which leads to one fair and reasonable conclusion pointing to the accused, to the exclusion of others, as the guilty person. 3 6

In this case, the interlocking testimonies of the prosecution witnesses, taken together, exemplify a case where conviction can be upheld on the basis of circumstantial evidence. First, prosecution witness Rolando Gruta, the driver of the pedicab that accused-appellant rode on, testified that he knew for a fact that she worked as a housemaid of the victims, and that he positively identified her as the person hurriedly leaving the house of the victims on 2 January 2001 at 4:45 a.m., and acting in a nervous manner. That while riding on the pedicab, accused-appellant was unsure of her intended destination. Upon reaching the place where he originally picked up accused-appellant only a few minutes after dropping her off, Rolando Gruta saw the Separas’ house being gutted by a blazing fire. Second, Remigio Bernardo testified that he and his tanods , including Rolando Gruta, were the ones who picked up accused-appellant Edna at Balasan Street (where Rolando Gruta dropped her off) after receiving a call that there was a woman acting strangely at said street and who appeared to have nowhere to go. Third, SPO4 Danilo Talusan overheard accused-appellant admit to Carmelita Valdez, a reporter of Channel 2 (ABS-CBN) that said accused-appellant started the fire, plus the fact that he was able see the telecast of Gus Abelgas’ show where accused-appellant, while being interviewed, confessed to the crime as well. The foregoing testimonies juxtaposed with the testimony of Mercedita Mendoza validating the fact that accused-appellant confessed to having started the fire which killed the Separa family as well as burned seven houses including that of the victims, convincingly form an unbroken chain, which leads to the unassailable conclusion pinpointing accused-appellant as the person behind the crime of simple arson.

In her second assigned error, accused-appellant questions the admissibility of her uncounselled extrajudicial confession given to prosecution witnesses, namely Remigio Bernardo, Mercedita Mendoza, and to the media. Accused-appellant Edna contends that being uncounselled extrajudicial confession, her admissions to having committed the crime charged should have been excluded in evidence against her for being violative of Article III, Section 12(1) of the Constitution.

Particularly, she takes exception to the testimony of prosecution witnesses Remigio Bernardo and Mercedita Mendoza for being hearsay and in the nature of an uncounselled admission.

With the above vital pieces of evidence excluded, accused-appellant is of the posit ion that the remaining proof of her alleged guilt , consisting in the main of circumstantial evidence, is inadequate to establish her guilt beyond reasonable doubt.

We partly disagree.

Article III, Section 12 of the Constitution in part provides:

(1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writ ing and in the presence of counsel.

(3) Any confession or admission obtained in violation of this Section or Section 17 hereof shall be inadmissible in evidence.

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We have held that the abovequoted provision applies to the stage of custodial investigation – when the investigation is no longer a general inquiry into an unsolved crime but starts to focus on a particular person as a suspect. 3 7 Said consti tutional guarantee has also been extended to situations in which an individual has not been formally arrested but has merely been “invited” for questioning. 3 8

To be admissible in evidence against an accused, the extrajudicial confessions made must satisfy the following requirements:

(1)               it must be voluntary;(2)               it must be made with the assistance of competent and independent counsel;(3)               it must be express; and (4) it must be in writ ing. 3 9

Arguably , the barangay tanods, including the Barangay Chairman, in this particular instance, may be deemed as law enforcement officer for purposes of applying Article III, Section 12(1) and (3), of the Constitution. When accused-appellant was brought to the barangay hall in the morning of 2 January 2001, she was already a suspect, actually the only one, in the fire that destroyed several houses as well as kil led the whole family of Roberto Separa, Sr. She was, therefore, already under custodial investigation and the rights guaranteed by Article III, Section 12(1), of the Constitution should have already been observed or applied to her. Accused-appellant’s confession to Barangay Chairman Remigio Bernardo was made in response to the “interrogation” made by the latter – admittedly conducted without first informing accused-appellant of her rights under the Constitution or done in the presence of counsel. For this reason, the confession of accused-appellant, given to Barangay Chairman Remigio Bernardo, as well as the lighter found by the latter in her bag are inadmissible in evidence against her as such were obtained in violation of her consti tutional rights.

Be that as i t may, the inadmissibili ty of accused-appellant’s confession to Barangay Chairman Remigio Bernardo and the lighter as evidence do not automatically lead to her acquittal. It should well be recalled that the consti tutional safeguards during custodial investigations do not apply to those not elicited through questioning by the police or their agents but given in an ordinary manner whereby the accused verbally admits to having committed the offense as what happened in the case at bar when accused-appellant admitted to Mercedita Mendoza, one of the neighbors of Roberto Separa, Sr., to having started the fire in the Separas’ house. The testimony of Mercedita Mendoza recounting said admission is, unfortunately for accused-appellant, admissible in evidence against her and is not covered by the aforesaid constitutional guarantee. Article III of the Constitution, or the Bill of Rights, solely governs the relationship between the individual on one hand and the State (and its agents) on the other; it does not concern itself with the relation between a private individual and another private individual – as both accused-appellant and prosecution witness Mercedita Mendoza undoubtedly are. 4 0 Here, there is no evidence on record to show that said witness was acting under police authority, so appropriately, accused-appellant’s uncounselled extrajudicial confession to said witness was properly admitted by the RTC.

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Accused-appellant likewise assails the admission of the testimony of SPO4 Danilo Talusan. Contending that “[w]hen SPO4 Danilo Talusan testified in court, his story is more of events, which are not within his personal knowledge but based from accounts of witnesses who derived information allegedly from the accused or some other persons x x x”. In other words, she objects to the testimony for being merely hearsay. With this imputation of inadmissibility, we agree with what the Court of Appeals had to say:

Although this testimony of SFO4 Danilo Talusan is hearsay because he was not present when Gus Abelgas interviewed accused-appellant EDNA, it may nevertheless be admitted in evidence as an independently relevant statement to establish not the truth but the tenor of the statement or the fact that the statement was made [People v. Mallari, G.R. No. 103547, July 20, 1999, 310 SCRA 621 citing People v. Cusi, Jr., G.R. No. L-20986, August 14, 1965, 14 SCRA 944.]. In People vs. Velasquez, G.R. Nos. 132635 & 143872-75, February 21, 2001, 352 SCRA 455, the Supreme Court ruled that:

“Under the doctrine of independently relevant statements, regardless of their truth or falsity, the fact that such statements have been made is relevant. The hearsay rule does not apply, and the statements are admissible as evidence. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of such a fact.”41

As regards the confession given by accused-appellant to the media, we need not discuss i t further for the reporters were never presented to testify in court.

As a final attempt at exculpation, accused-appellant asserts that since the identit ies of the burned bodies were never conclusively established, she cannot be responsible for their deaths.

Such assertion is bereft of merit.

In the crime of arson, the identit ies of the victims are immaterial in that intent to kill them particularly is not one of the elements of the crime. As we have clarified earlier, the kill ing of a person is absorbed in the charge of arson, simple or destructive. The prosecution need only prove, that the burning was intentional and that what was intentionally burned is an inhabited house or dwelling. Again, in the case of People v. Soriano, 4 2 we explained that:

Although intent may be an ingredient of the crime of Arson , it may be inferred from the acts of the accused. There is a presumption that one intends the natural consequences of his act; and when it is shown that one has deliberately set fire to a building, the prosecution is not bound to produce further evidence of his wrongful intent. 4 3

The ultimate query now is which kind of arson is accused-appellant guilty of?

As previously discussed, there are two (2) categories of the crime of arson: 1) destructive arson, under Art. 320 of the Revised Penal Code, as amended by Republic Act No. 7659; and 2) simple arson, under Presidential Decree No. 1613. Said classification is based on the kind, character and location of the property burned, regardless of the value of the damage caused,44 to wit:

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Article 320 of The Revised Penal Code , as amended by RA 7659, contemplates the malicious burning of structures, both public and private, hotels, buildings, edifices, trains, vessels, aircraft, factories and other military, government or commercial establishments by any person or group of persons .[4 5] The classification of this type of crime is known as D estructive Arson , which is punishable by reclusion perpetua to death. The reason for the law is self-evident: to effectively discourage and deter the commission of this dastardly crime, to prevent the destruction of properties and protect the l ives of innocent people. Exposure to a brewing conflagration leaves only destruction and despair in its wake; hence, the State mandates greater retribution to authors of this heinous crime . The exceptionally severe punishment imposed for this crime takes into consideration the extreme danger to human lives exposed by the malicious burning of these structures; the danger to property resulting from the conflagration; the fact that it is normally difficult to adopt precautions against i ts commission, and the difficulty in pinpointing the perpetrators; and, the greater impact on the social, economic, security and polit ical fabric of the nation. [Emphasis supplied.]

If as a consequence of the commission of any of the acts penalized under Art. 320, death should result, the mandatory penalty of death shall be imposed.

On the other hand, PD 1613 which repealed Arts. 321 to 326-B of The Revised Penal Code remains the governing law for S imple Arson . This decree contemplates the malicious burning of public and private structures, regardless of size, not included in Art. 320, as amended by RA 7659, and classified as o ther cases of arson.

These include houses , dwellings , government buildings, farms, mills, plantations, railways, bus stations, airports, wharves and other industrial establishments .[4 6] Although the purpose of the law on S imple Arson is to prevent the high incidence of fires and other crimes involving destruction, protect the national economy and preserve the social, economic and political stability of the nation, PD 1613 tempers the penalty to be meted to offenders. This separate classification of Simple Arson recognizes the need to lessen the severity of punishment commensurate to the act or acts committed, depending on the particular facts and circumstances of each case. [Emphasis supplied.]

To emphasize:

The nature of Destructive Arson is distinguished from Simple Arson by the degree of perversity or viciousness of the criminal offender. The acts committed under Art. 320 of the Revised Penal Code (as amended) constituting Destructive Arson are characterized as heinous crimes for being grievous, odious and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society.47 On the other hand, acts committed under PD 1613 constituting Simple Arson are crimes with a lesser degree of perversity and viciousness that the law punishes with a lesser penalty. In other words, Simple Arson contemplates crimes with less significant social, economic, political and national security implications than Destructive Arson.

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However, acts falling under Simple Arson may nevertheless be converted into Destructive Arson depending on the qualifying circumstances present. [Emphasis supplied.]48

Prescinding from the above clarification vis-à-vis the description of the crime as stated in the accusatory portion of the Information, it is quite evident that accused-appellant was charged with the crime of Simple Arson – for having “deliberately set fire upon the two-storey residential house of ROBERTO SEPARA and family x x x knowing the same to be an inhabited house and situated in a thickly populated place and as a consequence thereof a conflagration ensued and the said building, together with some seven (7) adjoining residential houses, were razed by fire.” [Emphasis supplied.]

The facts of the case at bar is somewhat similar to the facts of the case of People v. Soriano.49 The accused in the latter case caused the burning of a particular house. Unfortunately, the blaze spread and gutted down five (5) neighboring houses. The RTC therein found the accused guilty of destructive arson under paragraph 150 of Art. 320 of the Revised Penal Code, as amended by Republic Act No. 7659. This Court, through Mr. Justice Bellosillo, however, declared that:

x x x [T]he applicable provision of law should be Sec. 3, par. 2, of PD 1613, which imposes a penalty of reclusion temporal to reclusion perpetua for other cases of arson as the properties burned by accused-appellant are specifically described as houses, contemplating inhabited houses or dwellings under the aforesaid law. The descriptions as alleged in the second Amended Information particularly refer to the structures as houses rather than as buildings or edifices. The applicable law should therefore be Sec. 3, Par. 2, of PD 1613, and not Art. 320, par. 1 of the Penal Code. In case of ambiguity in construction of penal laws, it is well-settled that such laws shall be construed strictly against the government, and liberally in favor of the accused.

The elements of arson under Sec. 3, par. 2, of PD 1613 are: (a) there is intentional burning; and (b) what is intentionally burned is an inhabited house or dwelling. Incidentally, these elements concur in the case at bar.51

As stated in the body of the Information, accused-appellant was charged with having intentionally burned the two-storey residential house of Robert Separa. Said conflagration likewise spread and destroyed seven (7) adjoining houses . Consequently, if proved, as it was proved, at the trial, she may be convicted, and sentenced accordingly, of the crime of simple arson . Such is the case “notwithstanding the error in the designation of the offense in the information, the information remains effective insofar as i t states the facts constituting the crime alleged therein.” 5 2 “What is controlling is not the t itle of the complaint, nor the designation of the offense charged or the particular law or part thereof allegedly violate, x x x, but the description of the crime charged and the particular facts therein recited.” 5 3

There is, thus, a need to modify the penalty imposed by the RTC as Sec. 5 of PD No. 1613 categorically provides that the penalty to be imposed for simple arson is:

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SEC. 5. Where Death Results from Arson. - If by reason of or on the occasion of arson death results, the penalty of reclusion perpetua to death shall be imposed. [Emphasis supplied.]

Accordingly, there being no aggravating circumstance alleged in the Information, the imposable penalty on accused-appellant is reclusion perpetua .

Apropos the civil liabili ties of accused-appellant, current jurisprudence 5 4 dictate that the civil indemnity due from accused-appellant is P 50,000.00 for the death of each of the victims. 5 5 However, the monetary awards for moral and exemplary damages given by the Court of Appeals, both in the amount of P 50,000.00, due the heirs of the victims, have to be deleted for lack of material basis. Similarly, the Court of Appeals award of exemplary damages to Rodolfo Movilla in the amount of P 50,000.00 for the destruction of his house, also has to be deleted, but in this instance for being improper. Moral damages cannot be award by this Court in the absence of proof of mental or physical suffering on the part of the heirs of the victims. 5 6 Concerning the award of exemplary damages, the reason for the deletion being that no aggravating circumstance had been alleged and proved by the prosecution in the case at bar. 5 7

To summarize, accused-appellant’s alternative plea that she be acquitted of the crime must be rejected. With the evidence on record, we find no cogent reason to disturb the findings of the RTC and the Court of Appeals.   I t is indubitable that accused-appellant is the author of the crime of simple arson. All the circumstantial evidence presented before the RTC, v iewed in its entirety, is as convincing as direct evidence and, as such, negates accused-appellant’s innocence, and when considered concurrently with her admission given to Mercedita Mendoza, the former’s guilt beyond reasonable doubt is twice as evident. Hence, her conviction is effectively justified. More so, as i t is propitious to note that in stark contrast to the factual circumstances presented by the prosecution, accused-appellant neither mustered a denial nor an alibi except for the proposition that her guilt had not been established beyond reasonable doubt.

 IN VIEW WHEREOF, the Decision of the Court of Appeals dated 2 September 2005, in CA G.R. CR HC No. 01139, is hereby AFFIRMED insofar as the conviction of accused-appellant EDNA MALNGAN Y MAYO is concerned. The sentence to be imposed and the amount of damages to be awarded, however, are MODIFIED. In accordance with Sec. 5 of Presidential Decree No. 1613, accused-appellant is hereby sentenced to RECLUSION PERPETUA . Accused-appellant is hereby ordered to pay the heirs of each of the victims P 50,000.00 as civil indemnity.

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