criminal law 3

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EN BANC

[G.R. No. 140756. April 4, 2003]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUAN GONZALES ESCOTE, JR. @ Jun Mantika of Sta. Lucia, Angat, Bulacan and VICTOR ACUYANy OCHOVILLOS @ Vic Arroyo of Sto. Niño, Poblacion, Bustos, Bulacan, accused-appellants.

D E C I S I O N

CALLEJO, SR., J .:

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.

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 ofactual 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:

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 Number769806. 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 Juanordered 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:

“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.

http://sc.judiciary.gov.ph/jurisprudence/2003/apr2003/140756.htm#_ftn1














Cause of Death:

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 pol ice 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 affiavit 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 JuanGonzales Escote, Jr. and Victor Acuyan with robbery with homicide was filed with the Regional Trial Court of Bulacan. The Information reads:

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 thecharge. 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.

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:

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:

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.

II

THE 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-examineRodolfo, 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 cro ss-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 vs. Court of Appeals, et al :

xxx

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 proceedi ngs. [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 presentationof 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 r ight 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:

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 Espressway, 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 SPO1Manio, 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:

xxx

Q So, the announcement of hold-up was ahead of the firing of the gun?

A Yes, sir.

Q And before the actual firing of the gun it was even still said bad words before saying the hold-up?

A After they fired the gun they uttered bad words, sir.

Q Mr. Witness before the announcement of the hold-up you do not have any idea that you will encounter that nature which took

place, is that correct?

A None, sir.

Q Within the two (2) year[s] period that you are plying the route of Manila to Bolinao that was your first experience of hold-up?

A Yes, sir.

Q And the speed of above 70 kilometers per hour your total attention is focus in front of the road, correct, Mr. witness?

A Once in a while the driver look at the side mirror and the rear view mirror, sir.

Q Before the announcement there was no reason for you to look at any at the rear mirror, correct, Mr. witness?

Court:

Every now and then they usually look at the side mirror and on the rear, that was his statement.

Atty. Osorio:































(to the witness)

Q I am asking him if there was no reason for him....

Fiscal:

Before the announcement of hold-up, there was no mention.

Court:

Every now and then.

Atty. Osorio:

(to the witness)

Q When you said every now and then, how often is it, Mr. witness?

A I cannot tell how often but I used to look at the mirror once in a while, sir.

Q How many mirror do you have, Mr. witness?

A Four (4), sir.

Q Where are these located?

A Two (2) on the side mirror, center mirror and rear view mirror, sir.

Q The two side mirror protruding outside the bus?

A Yes, sir, they are in the side of the bus, sir.

Q One of them is located on the left and the other on the right, correct?

A Yes, sir.

Q You only look at the side mirror when you are going to over take, Mr. witness?

A No, sir.

Q Where is this center mirror located, Mr. witness?

A In the center, sir.

Q What is the purpose of that?

A So that I can see the passengers if they are already settled so that I can start the engine, sir.

Q What about the remaining mirror?

A Rear view mirror, sir.

Q What is the purpose and where is it located?

A The rear view is located just above my head just to check the passengers, sir.

Q So that the center mirror and the rear view mirror has the same purpose?

A They are different, sir.

Q How do you differentiate of (sic) one from the other?

A The center mirror is used to check the center aisle while the rear mirror is for the whole view of the passengers, sir.

Q If you are going to look at any of your side mirrors, you will never see any passengers, correct, Mr. witness?

A None, sir.

Q If you will look at your center mirror you will only see the aisle and you will never see any portion of the body of your passengers?

A Yes, sir.

Q Seated passengers?

A It is only focus (sic) on the middle aisle sir.

Q If you look at your rear mirror, you will only see the top portion of the head of your passengers, correct?

A Only the portion of their head because they have different hight (sic), sir.

Q You will never see any head of your passengers if they were seated from the rear mirror portion, correct, Mr. witness?



A Yes, sir.

Q Before the announcement of hold-up, all of your passengers were actually sleeping?

A Some of my passengers were sleeping, some were not, sir.

Q But you will agree Mr. witness that when you said every now and then you are using your mirror? It is only a glance, correct?

A Yes, sir.

Q And by mere glancing, Mr. witness you were not able to identify any person on the basis of any of your mirror, correct?

A If only a glance but when I look at him I can recognize him, sir.

Q You agree a while ago by every now and then it is by glancing, as a driver, Mr. witness by your side mirror?

A Not all glancing, there are times when you want to recognize a person you look at him intently, sir.

Q The purposes of your mirror inside your Bus is mainly of the safety of your passengers on board, Mr. witness?

A Yes, sir.

Q And as a driver, Mr. witness, you do not used (sic) your mirror to identify the person particularly when you are crossing (sic) at a

speed of 70 kilometers per hour?

A I do that, sir.

Q How long Mr. witness can you focus your eyes on any of these mirror before getting back your eyes into the main road?

A Seconds only, sir.

Q When you said seconds, for how long the most Mr. witness that you can do to fix your eyes on any of your mirrors and the return

back of (sic) your eyes into the main road?

A Two seconds, sir.

Q At that time Mr. witness, that you were travelling at about 70 kilometers you were glancing every now and then on any of your

mirrors at about two seconds, correct?

A Yes, sir.

Q And when you heard the announcement of hold-up your natural reaction is to look either at the center mirror or rear mirror for two

seconds, correct?

A Yes, sir.

Q And you were instructed Mr. witness to even accelerate your speed upon the announcement of hold-up?

A No sir, they just told me to continue my driving, sir.

Fiscal:

May I request the vernacular “alalay ka lang, steady ka lang.

Atty. Osorio:

(to the witness)

Q Steady at what speed?

A 70 to 80, sir.

Q What is the minimum speed, Mr. witness for Buses along North Expressway?

A 60 kilometers, sir.

Q Are you sure of that 60 kilometers, minimum? Are you sure of that?

A Yes, sir.

Q That is what you know within the two (2) years that you are driving? Along the North Expressway?

A Yes, sir.

Q And while you were at the precise moment, Mr. witness, you were being instructed to continue driving, you were not looking to

anybody except focus yours eyes in front of the road?

Fiscal:

May I request the vernacular. Nakikiramdam ako.



Atty. Osorio:

(to the witness)

Q That’s what you are doing?

A During the time they were gathering the money from my passengers, that is the time when I look at them, sir.

Q For two seconds, correct?

A Yes, sir.

Q Which of the four (4) mirrors that you are looking at within two seconds, Mr. witness you said you are nakikiramdam?

A The rear view mirror, sir.

Q The Bus that you were driving is not an air con bus?

A Ordinary bus, sir.

Q And at what time your passengers, most of your passengers were already sleep (sic), Mr. witness?

A Most of my passengers, sir. Some of my passengers were still sleep (sic), sir.

Q And the lights inside the Bus are off, correct Mr. witness?

A The lights were on, sir.

Q While the passengers were sleep (sic) the light was still on, Mr. witness, at the time of the trip.?

A Yes, sir.

Q Now, Mr. witness when the hold-up was announced and then when you look for two seconds in the rear mirror you were not able to

see any one, you were only sensing what is happening inside your bus?

A I saw something, sir.

Q You saw something in front of your Bus? You can only see inside when you are going to look at the mirror?

A Yes, sir.

Q That is the only thing that you see every now and then, you said you were looking at the mirror?

A Yes, sir.

Q How many times, Mr. witness did you look Mr. witness at the rear mirror during the entire occurance (sic) of the alleged hold-up?

A There were many times, sir.

Q The most that you can remember, please inform the Honorable Court? During the occurance (sic) of the alleged hold-up, Mr.

witness?

A I cannot estimate, sir.

Q How long did the alleged hold-up took place?

A More or less 25 minutes, sir.[39]

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:

8. T: Natatandaan mo ba kung ano ang itsura ng dalawang lalaki na nanghold-up sa minamaneho mong bus?

S: Halos magkasing taas, 5’4” o 5’5” katam-taman ang pangangatawan, parehong nakapantalon ng maong naka-suot ng

jacket na maong, parehong naka rubber shoes at pareho ring naka sumbrero.

9. T: Kung sakali bang makikita mo pa ang mga ito ay makikilala mo pa sila?

S: Makikilala ko po sila.[40]

When asked to identify the robbers during the trial, Rodolfo spontaneously pointed to and identified Juan and Victor:

QFiscal:

(to the witness)

xxx

Q Those two man (sic) who stated that it was a hold-up inside the bus and who fired the gun are they inside the Court room (sic)today?











A Yes, ma’am.

Q Point to us?

Interpreter:

Witness pointing to a man wearing red T-shirt and when asked his name answered Victor Acuyan and the man wearing green T-

shirt and when asked his name answered Juan Gonzales.[41]

For his part, Romulo likewise spontaneously pointed to and identified Juan and Victor as the culprits when asked by the prosecutor to identify

the robbers from among those in the courtroom:

xxx

Q You said that you were robbed inside the bus, how does (sic) the robbing took place?

A They announced a hold up ma’am, afterwards, they confiscated the money of the passengers including my collections.

Q You said “they” who announced the hold up, whose (sic) these “they” you are referring to?

A Those two (2), ma’am.

Interpreter:

Witness pointing to the two accused.

Public Pros.:

May we request that the accused be identified, Your Honor.

Court:

(to both accused)

What are your names?

A Juan Escote, Your Honor. Victor Acuyan, Your Honor.

Public Pros.:

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 identificationcard

[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:

xxx [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.

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:

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:

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:










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xxx (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. xxx[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:

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, coetánea 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 andJuly 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.

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:

xxx

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 timepouncing 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. xxx.[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 vs. Cando,

[59]

twodistinguished 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 vs. 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

vs. 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 vs. 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 vs. 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 RevisedPenal 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:

ART. 14. Aggravating circumstances. – The following are aggravating circumstances:

xxx

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:

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. xxx

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). xxx. [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.”
















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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.

xxx

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):

xxx que la circunstancia agravante de alevosia ni es constitutiva del delito complejo de robo y homicidio, ni de tal modo inherente que sin ella no

pueda cometerse, sin que quepa arguir que en los delitos contra la propiedad no debe aquella tener aplicacion, porque cuando estos son complejos

de los que se cometen contra las personas, no solo se ataca a la propiedad, sino que se ofende a estas . xxx[71]

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:

xxx que si aparece probado que el procesado y su co-reo convinieron en matar a un conocido suyo, compañero de viaje, para lo cual desviaron

cautelosamente los carros que guiaban, en uno de los cuales iba el interfecto, dirigiendolos por otro camino que conducia a un aljibon, y al llegar a

este, valiendose de engaño para hacer bajar a dicho interfecto, se lanzaron de improviso sobre el, tirandolo en tierra, robandole el dinero, la manta ylos talegos que llevaba, y atandole al pie una piedra de mucho peso, le arrojaron con ella a dicho aljibon, dados estos hechos, no cabe duda que

constituyen el delito complejo del art. 516, num. I, con la circunstancia agravante de alevosia, puesto que los medios, forma y modos empleados en la

ejecucion del crimen tendieron directa y especialmente a asegurarla sin riesgo para sus autores, procedente de la defensa del ofendido .[72]

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:



























In the meantime, police and military authorities had surrounded the premises of the lumber yard. Major Melquiades B. Sequio Station Commander of

the INP of Iloilo City, negotiated with the accused using a loud speaker and appealed to them to surrender with the assurance that no harm would

befall them as he would accompany them personally to the police station. The accused refused to surrender or to release the hostages.

Thereafter, OIC Mayor, Rosa Caram, of Iloilo City arrived and joined the negotiations. In her dialogue with the accused, which lasted for about four

hours, Appellant demanded P100,000.00, a coaster, and some raincoats. She offered them P50,000.00 instead, explaining the dif ficulty of raising

more as it was a Saturday. Later, the accused agreed to receive the same and to release Rodita to be accompanied by Mary Choco in going out of the

office. When they were out of the door, one of the accused whose face was covered by a handkerchief, gave a key to Mayor Caram. With this, MayorCaram unlocked the padlocked door and handed to Rodita the P50,000.00, which the latter, in turn, gave to one of the accused. Rodita was later set

free but Mary was herded back to the office.

Mayor Caram, Major Sequio and even volunteer radio newscasters continued to appeal to the accused to surrender peacefully but they refused.

UItimatums were given but the accused did not budge. Finally, the police and military authorities decided to launch an offensive and assault the

place. This resulted in injuries to the girls, Mimie and Mary Choco as well as to the accused Ronaldo and Reynaldo Canasares. Mary suffered a

"macerated right lower extremity just below the knee" so that her r ight leg had to be amputated. The medical certificate described her condition as

"in a state of hemorrhagic shock when she was brought in to the hospital and had to undergo several major operations during the course of her

confinement from April 13, 1986 to May 30, 1986."

For his part, Appellant Salvilla confirmed that at about noon time of 12 April 1986 he and his co-accused entered the lumber yard and demanded

money from the owner Severino Choco He demanded P100,000.00 but was given only P5,000.00, which he placed on the counter of the office of the

lumber yard. He admitted that he and his co-accused kept Severino, his daughters, and Rodita inside the office. He maintained, however, that he

stopped his co-accused from getting the wallet and wristwatch of Severino and, like the P5,000.00 were all left on the counter, and were nevertouched by them. He claimed further that they had never fired on the military because they intended to surrender. Appellant's version also was that

during the gunfire, Severino's daughter stood up and went outside; he wanted to stop her but he himself was hit by a bullet and could not prevent

her. Appellant also admitted the appeals directed to them to surrender but that they gave themselves up only much later.

After trial, the Court a quo meted out a judgment of conviction and sentenced each of the accused "to suffer the penalty of reclusion perpetua, with

the accessory penalties provided by law and to pay the costs."

Appellant Salvilla's present appeal is predicated on the following Assignments of Error:

1. The lower court erred in holding that the crime charged was consummated and in not holding that the same was merely

attempted.

2. The lower court erred in not appreciating the mitigating circumstance of voluntary surrender."

Upon the facts and the evidence, we affirm.

The defense contends that "The complete crime of larceny (theft/robbery) as distinguished from an attempt requires asportation or carrying away, in

addition to the taking, In other words, the crime of robbery/theft has three consecutive stages: 1) the giving 2) the taking and 3) the carrying away or

asportation And without asportation the crime committed is only attempted" (Memorandum for Appellant Salvilla, Records, p. 317).

There is no question that in robbery, it is required that there be a taking of personal property belonging to another. This is known as the element of

asportation the essence of which is the taking of a thing out of the possession of the owner without his privity and consent and without the animus

revertendi (Aquino, Revised Penal Code, p. 97, citing 5 C.J. 607). In fact, if there is no actual taking, there can be no robbery. Unlawful taking of

personal property of another is an essential part of the crime of robbery.

Appellant insists that while the "giving" has been proven, the "taking" has not. And this is because neither he nor his three co-accused touched the

P5,000.00 given by Severino nor the latter's wallet or watch during the entire incident; proof of which is that none of those items were recoveredfrom their persons.

Those factual allegations are contradicted by the evidence. Rodita, the lumberyard employee, testified that upon demand by Appellant, Severino put

P20,000.00 inside a paper bag and subsequently handed it to Appellant. In turn, accused Simplicio Canasares took the wallet and wristwatch of

Severino. In respect of the P50,000.00 from Mayor Caram, Rodita declared that the Mayor handed the amount to her after she (the Mayor) had

opened the padlocked door and that she thereafter gave the amount to one of the holduppers. The "taking" was, therefore, sufficiently proved (TSN,

July 1, 1987, pp. 12-13, 15-16, 27-31). The money demanded, and the wallet and wristwatch were within the dominion and control of the Appellant

and his co-accused and completed the taking.

The State established a "taking" sufficient to support a conviction of robbery even though the perpetrators were interrupted by

police and so did not pick up the money offered by the victim , where the defendant and an accomplice, armed with a knife and

a club respectively, had demanded the money from the female clerk of a convenience store, and the clerk had complied with

their instructions and placed money from the register in a paper bag and then placed the bag on the counter in front of the two

men; these actions brought the money within the dominion and control of defendant and completed the taking. (Johnson vs.

State, 432 So 2d 758).



"Severance of the goods from the possession of the owner and absolute control of the property by the taker, even for an

instant, constitutes asportation (Adams vs. Commonwealth, 154 SW 381; State vs. Murray, 280 SW 2d 809; Mason vs.

Commonwealth, 105 SE 2d 149) [Emphasis supplied].

It is no defense either that Appellant and his co-accused had no opportunity to dispose of the personalities taken. That fact does not affect the nature

of the crime, From the moment the offender gained possession of the thing, even if the culprit had no opportunity to dispose of the same, the

unlawful taking is complete (Reyes, Revised Penal Code Annotated, Book II, 1981 ed., p. 594).

The crime is consummated when the robber acquires possession of the property, even if for a short time, and it i s not

necessary that the property be taken into the hands of the robber, or that he should have actually carried the property away,

out of the physical presence of the lawful possessor, or that he should have made his escape with it" (People vs. Quinn, 176 P

2d 404; Woods vs. State, 220 SW 2d 644; People vs. Beal, 39 P 2d 504; People vs. Clark, 160 P 2d 553).

Contrary to Appellant's submission, therefore, a conviction for consummated and not merely attempted Robbery is in order.

It is the contention of Appellant that Rodita could not have seen the taking because the place was dark since the doors were closed and there were

no windows. It will be recalled, however, that Rodita was one of the hostages herself and could observe the unfolding of events. Her failure to

mention the taking in her sworn statement would not militate against her credibility, it being settled that an affidavit is almost always incomplete and

inaccurate and does not disclose the complete facts for want of inquiries or suggestions (People vs. Andaya, G.R. No. L-63862, 31 July 1987, 152 SCRA

570; People vs. Tan, et al., 89 Phil. 337 [1951]).

The fact, too, that Rodita was an employee of Severino would not lessen her credibility. The defense has not proven that she was actuated by any

improper motive in testifying against the accused.

In the last analysis, the basic consideration centers around the credibility of witnesses in respect of which the findings of the Trial Court are entitled

to great weight as it was in a superior position to assess the same in the course of the trial (see People vs. Ornoza G.R. No. L-56283, 30 June 1987, 151

SCRA 495; People vs. Alcantara, G.R. No. L-38042, 30 June 1987, 151 SCRA 326).

Anent the second assignment of error, the "surrender" of the Appellant and his co-accused cannot be considered in their favor to mitigate their

liability. To be mitigating, a surrender must have the following requisites: (a) that the offender had not been actually arrested; (b) that the offender

surrendered himself to a person in authority or to his agent; and (c) that the surrender was voluntary (People vs. Canamo, G.R. No. L-62043, 13

August 1985, 138 SCRA 141).

The "surrender" by the Appellant and his co-accused hardly meets these requirements. They were, indeed, asked to surrender by the police and

military authorities but they refused until only much later when they could no longer do otherwise by force of circumstances when they knew theywere completely surrounded and there was no chance of escape. The surrender of the accused was held not to be mitigating as when he gave up only

after he was surrounded by the constabulary and police forces (People vs. Sigayan et al., G.R. Nos. L-18523-26, 30 April 1966, 16 SCRA 839; People vs.

Mationg G.R. No. L-33488, 29 March 1982, 113 SCRA 167). Their surrender was not spontaneous as it was motivated more by an intent to insure their

safety. And while it is claimed that they intended to surrender, the fact is that they did not despite several opportunities to do so. There is no

voluntary surrender to speak of (People vs. Dimdiman 106 Phil. 391 [1959]).

All told, the assigned errors remain unsubstantiated and we find the guilt of the accused-appellant, Bienvenido Salvilla, established beyond

reasonable doubt.

Although unassigned as an error, we deem it necessary to turn now to the nature of the linked offenses involved and the penalty imposed by the Trial

Court.

Appellant and his co-accused were charged in the Information with "Robbery with Serious Physical Injuries and Serious Illegal Detention ("Art. 295,

par. 3, in conjunction with Art. 267, RPC )and sentenced to reclusion perpetua. We agree with the Trial Court that a complex crime under Article 48 ofthe Revised Penal Code has been committed such that the penalty for the more serious offense of Serious Illegal Detention (Art. 267, Revised Penal

Code), or "reclusion perpetua to death," is to be imposed instead of the penalty prescribed for Robbery with Serious Physical Injuries (Art. 294 (3),

which is reclusion temporal .

Under Article 48, a complex crime arises "when an offense is a necessary means for committing the other." The term "necessary means" does not

connote indispensable means for if it did then the offense as a "necessary means" to commit another would be an indispensable element of the latter

and would be an ingredient thereof. The phrase "necessary means" merely signifies that one crime is committed to facilitate and insure the

commission of the other (Aquino, Revised Penal Code, Vol. I, 1987 ed., p. 624, citing Dissent, Montemayor, J., Amado Hernandez, 99 Phil. 515). In this

case, the crime of Serious Illegal Detention was such a "necessary means" as it was selected by Appellant and his co-accused to facilitate and carry

out more effectively their evil design to stage a robbery.

The facts of this case differ from those in People vs. Astor, et al. (G.R. Nos. L-71765-66, 29 April 1987, 149 SCRA 325) where the accused were

convicted of Robbery but acquitted in the case for Serious Illegal Detention and where it was held that "the detention is absorbed in the crime of

robbery." For one, in Astor , there were two (2) separate Informations filed, one for Robbery and another for Serious Illegal Detention. In the present

case, only one Information was filed charging the complex offense. For another, in Astor , the robbery had already been consummated and the

detention was merely to forestall the capture of the robbers by the police. Not so in this case, where the detention was availed of as a means of



insuring the consummation of the robbery. Further, in Astor, the detention was only incidental to the main crime of robbery so that it was held

therein:

. . . were appellants themselves not trapped by the early arrival of the police at the scene of the crime, they would have not

anymore detained the people inside since they have already completed their job. Obviously, appellants were left with no

choice but to resort to detention of these people as security, until arrangements for their safe passage were made. This is not

the crime of illegal detention punishable under the penal laws but an act of restraint in order to delay the pursuit of the

criminals by peace officers (People v. Sol, 9 Phil. 265; People v. Uday 55 Phil. 167, cited in the Revised Penal Code, Aquino, Vol.3, 1976 ed., p. 1337). Where the victims in a robbery case were detained in the course of robbery, the detention is absorbed by

the crime of robbery (P. v. Baysa, 92 Phil. 1008, id .). In the case at bar, the detention was only incidental to the main crime of

robbery, and although in the course thereof women and children were also held, that threats to kill were made, the act should

not be considered as a separate offense. Appellants should only be held guilty of robbery.

In contract, the detention in the case at bar was not only incidental to the robbery but was a necessary means to commit the same. After the amount

of P20,000.00 was handed to Appellant, the latter and his co-accused still refused to leave. The victims were then taken as hostages and the demand

to produce an additional P100,000.00 was made as a prerequisite for their release. The detention was not because the accused were trapped by the

police nor were the victims held as security against the latter. The detention was not merely a matter of restraint to enable the malefactors to

escape, but deliberate as a means of extortion for an additional amount. The police and other authorities arrived only much later after several hours

of detention had already passed. And, despite appeals to appellant and his co-accused to surrender, they adamantly refused until the amount of

P100,000.00 they demanded could be turned over to them. They even considered P50,000.00, the amount being handed to them, as inadequate.

The foregoing features also distinguish this case from those of U.S. v. Sol, 9 Phil. 265 [1907] where the restraint was for no other purpose than toprevent the victims from reporting the crime to the authorities; from People v. Gamboa, 92 Phil. 1085 [1953] where the victims were taken to a place

one kilometer away and shot in order to liquidate the witnesses to the robbery; from People v. Baysa, 92 Phil. 1008 [1953]; People v. Manzanilla, 43

Phil. 167 [1922], all of which cases were cited in Astor and where the victims were only incidentally detained so that the detention was deemed

absorbed in robbery.

In other words, unlike in the above cases, the elements of the offense of Serious Illegal Detention are present in this case. The victims were illegally

deprived of their liberty. Two females (Mary and Minnie) and a minor (Minnie), a specified circumstance in Article 267 (3), were among those

detained. The continuing detention was also for the purpose of extorting ransom, another listed circumstance in Article 267 (last parag.) not only

from the detained persons themselves but even from the authorities who arrived to rescue them.

It follows then that as the detention in this case was not merely incidental to the robbery but a necessary means employed to facilitate it, the penalty

imposed by the Trial Court is proper.

WHEREFORE, the judgment appealed from is hereby AFFIRMED. Proportionate costs.

SO ORDERED.



Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. L-14887 January 31, 1961

AVELINO NATIVIDAD, petitioner,

vs.

COURT OF APPEALS, ET AL., respondents.

Eustacio C. Cuevas and Nicetas A. Suanes for petitioner.

Office of the Solicitor General for respondent.

BENGZON, J .:

Avelino Natividad and Fermin Villanueva were charged with theft of electric current, in the Manila Court of First Instance. They were convicted. On

appeal, the Court of Appeals affirmed the conviction of the first, but acquitted Villanueva.

Hence this petition for review, which is mainly based on the proposition that as both accused had been prosecuted for having conspired to steal

electric current, the exoneration of one should entail the acquittal of the other.

According to the Court of Appeals, "in 1949, appellant Villanueva established a laundry business at 159-A Padilla St., San Miguel, Manila, under the

title of Majestic Steam Laundry and Dry Cleaners. The electric energy needed for its operation was supplied by the Manila Electric Company which, on

December 5, 1949, installed in Villanueva's establishment the new electric meter Exhibit A. . . . Appellant Villanueva regularly paid for his electric

current consumption upon presentation of the corresponding bills, which steadily increased in amount from P112.00 and P116.00 for the first and

second months (January 10 to February 8 and thence to March 9, 1950), until the 17th month (May 10 to June 9, 1951) when the amount paid was

P248.00 (Exhs. H-1 and 3-Villanueva). Spurred by reports that "electric current all over Manila were being tampered by a person named Manuel

Arboleda" and that Majestic Steam Laundry and Dry Cleaners was one of the places visited by him, and because the value of the electric current

consumed by this laundry establishment in June and July, 1951, dropped abruptly to P176.00 and P186.00, respectively (Exhs. H-1 and 3-Villanueva),

Manila Electric Company ordered the removal of meter Exhibit A from appellant Villanueva's establishment and its substitution with another meter.

Exhibit A was removed on August 3,0, 1951. x x x. And after the removal of the meter's glass cover, Tanyag, Mayor and Cayco (employees of Meralco)

noticed that the amounting screws of the register showed scratches, and they readily presumed and concluded "that the register had been detached

from the meter which I (Cayco) believe turning back the reading of the meter."

"The electric current consumption registered by Exhibit A from August 9 to August 30, 1951 when it was removed, was 6980; and that as shown by

the substitute meter, from the latter date up to September 8, was 1660, or a total of 8,640 KWH the value of which-P478.00 x x x."

"When he was investigated by the Manila Police, Natividad denied having tampered with the electric meter in question; but on November 9, 1951, he

appeared before Attorney C. S. Van Hoven of complainant's legal department, who took Natividad's affidavit which was signed and sworn to before

Attorney Pastor S. del Rosario of the same department on February 26, 1952 (Exh. G) . . . wherein he admitted that for the consideration of P150.00

which his co-appellant Villanueva promised to pay him and his companions, he (Natividad) agreed to tamper with Exhibit A in order to reduce

Villanueva's electric bill, and that on July 10, 1951, instead of actually reading the meter he merely recorded 130 as the reading, which is very much

lower than the previous reading of 202 . . ."

"The evidence is clear and convincing that he has not recorded the true and correct reading of Villanueva's meter but instead made a false reading to

reduce the amount to be paid by Villanueva to Meralco for his current, and in addition he (Natividad) also personally tampered with the meter." .

It will be observed that the gist of the crime was that in accordance with a previous understanding with consumer Villanueva, this appellant

Natividad1 meter-reader of the Meralco -misread the electric meter so as to decrease the amount which such consumer had to pay, and paid, to the

owner of the electric current, the Meralco.

According to the appellate court, Natividad knowingly "under-read" the electric meter in Villanueva's premises and falsely reported the readings

during the period from June 9 to July 10, 1951, and from July 10 to August 9, 1951, thereby enabling Villanueva to appropriate, for nothing, about

11,880 electric kilowatt hours valued at P594.00. Meralco was thus pro tanto deprived of its property through the connivance of this employee. As to

such connivance and deprivation there can be no doubt, because the petitioner himself so confessed in an affidavit.

The resulting situation does not materially differ from the case of U.S. v. Carlos, 21 Phil. 553 wherein the consumer of electric current having

managed to evade payment of part of his accounts by using the so-called "jumper" to deflect the current from the house electric meter, was held by

this Court to be guilty of theft.

Contrary to petitioner's contention, the acquittal of Villanueva did not necessarily mean that no electric current had been taken away gratis. There

was a factual finding of such larceny by the Court of Appeals, which we are not at liberty to disturb. Anyway, the acquittal rested on the lack of proof



that Villanueva had tampered with the electric meter to conceal the crime. The offense was already committed when Villanueva paid his bills

(reduced) for July and August.2 And herein petitioner admitted such bills and payment accorded with his "under-reading."

If it be argued that, without such tampering, the the could not have been "consummated" because sooner or lat the true consumption will be

discovered and the consume will be made to pay accordingly, the answer is, there are other ways of concealing the swindle or of evading payment of

the unreported fluid consumption.

We must, therefore, affirm the conviction; and as there is no question raised concerning the penalty,3 the judgment of the appellate court is hereby

affirmed, with cost.

Paras, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera and Paredes, JJ., concur.

Dizon, J., took no part.




SUPREME COURT

Manila

SECOND DIVISION

G.R. No. L-40037 April 30, 1976

THE PEOPLE OF THE PHILIPPINES (in substitution for Municipal Judge Julian B. Pogoy of Cordova, Cebu), petitioner,

vs.

HON. RAMON E. NAZARENO, Judge of the Court of First Instance of Cebu, Lapulapu City, Branch XVI, MANUEL R. TIRO, CARLOS INOC @ DodongInoc, respondents.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Santiago M. Kapunan and Solicitor Celso P. Ylagan for petitioner.

Flora S. Caritan for private respondents.

AQUINO, J.:

The legal issue in this case is whether the theft of two goats valued at one hundred fifty pesos is qualified theft failing within the concurrent

jurisdiction diction of the municipal court and the Court of First Instance.

On June 22, 1974 Manuel R. Tiro, Carlos Potot and Rogelio Inoc, with three other persons, were charged with qualified theft by the chief of police in

the municipal court of Cordova, Cebu for having allegedly stolen two female goats valued at one hundred fifty pesos belonging to Hilario Anoza

(Criminal Case No. R-424).

Four of the accused assailed the municipal court's jurisdiction on the ground that under articles 309[4] and 310 of the Revised Penal Code qualified

theft involving one hundred fifty pesos is punishable with prision mayor medium to reclusion temporal minimum (eight years and one day to fourteen

years and eight months) and that under section 87[c] of the Judiciary Law the jurisdiction of the municipal court "tends only to offenses Punishable

with imprisonment for not more than three years or a fine of not more than three thousand pesos, or both such fine and imprisonment.

The municipal court ruled that it had jurisdiction over the case. It relied on Cruz vs. Martin and Cabrera, 75 Phil. 11; People vs. Penas, 86 Phil.596; People vs. Colicio, 88 Phil. 196, and Brecinio vs. Papica, L-20347, October 31, 1964, 12 SCRA 349.

The said four accused filed in the Court of First Instance of Cebu at Lapulapu City a petition for certiorari, mandamus and prohibition against the

municipal court. They contended that the qualified theft imputed to them was within the exclusive original jurisdiction of the Court of First Instance.

The Court of First Instance sustained that contention. It held that, following the ruling in Esperat vs. Avila, L-25922, June 30, 1967, 20 SCRA 596, "the

prior ruling that municipal courts and city courts have concurrent jurisdiction with the Court of First Instance to try a case of qualified theft is no

longer applicable" because "in the case of qualified theft it is not the amount involved that confers jurisdiction but the penalty prescribed by law".

Municipal Judge Julian B. Pogoy moved for the reconsideration of the ruling of the Court of First Instance that it had jurisdiction over the case. Judge

Pogoy relied on the ruling in People vs. Dimana, L-26668, April 27, 1972, 44 SCRA 457 "that Courts of First Instance and municipal courts have

concurrent jurisdiction over all criminal cases specifically mentioned in section 87[b] of the Judiciary Act of 1948, as amended, when the penalty

provided by law is imprisonment for more than six months or a fine of more than two hundred pesos, taking into consideration section 44[f] of the

same Act".

The lower court denied Judge Pogoy's motion. He filed the instant certiorari action against the Court of First Instance to annul its order that it has

jurisdiction over the supposed qualified theft case. We ordered the substitution of the People of the Philippines for Judge Pogoy.

The Solicitor General agrees with the Court of First Instance that the municipal court has no jurisdiction over the theft of two goats valued at P150. He

assumes that the theft is qualified theft. He relies on the dictum in theEsperat case, a grave coercion case, that offenses punishable with

imprisonment of more than three years or a fine of more than three thousand pesos, are outside the zone of concurrent jurisdiction assigned to the

ordinary municipal court and the Court of First Instance.

We hold that the Court of First Instance and the Solicitor General are in error because the theft of two goats is not qualified theft. It is simple theft.

Goats do not belong to the category of "large cattle" as contemplated in article 310 of the Revised Penal Code.

The term "cattle" refers to domesticated quadrupeds such as sheep, horses and swine, or to bovine animals such as cows, bulls and steers (Merriam-Webster's 3rd New Int. Dictionary. The term "large cattle" in article 310 refers to ganado mayor such as mules, distinguished from ganado menor like



sheep. Small cattle are known as ganado lanar y cabrio. The terms lanar and cabrio refer to sheep and goats, respectively. (Velasquez, Spanish and

English Dictionary, 1967 Edition, pages 124, 354, 421 and 115).

Act No. 2030, which amended articles 503, 508, 512 and 520 of the old Penal Code regarding theft of large cattle, provides that for purposes of that

law the term "large cattle" includes "carabaos, horses, mules, asses, and all members of the bovine family". (Art. 367 of the Revised Penal Code

repealed Act No. 2030).1

According to the dictionary, the word "bovine family" refers to animals related to or resembling oxen or cows. They belong to the

genus Bos (Bovidae). While goats may be included in the term "cattle" (Hall vs. Marshall, 27 Pac. 2nd 193, 145 Ore. 221; Black's Law Dictionary, 4th

Edition, p. 277), or belong to the bovine family, (genus Capra), they cannot be included in the term "large cattle". To include goats in the term "large

cattle" would render meaning less the adjective "large". The law evidently, has made a distinction between large cattle and small cattle.

As goats cannot be categorized as large cattle, the larceny of two goats valued at P150 is simple theft punishable under article 309[4] of the Revised

Penal Code by imprisonment for two months and one day of arresto mayor medium to two years and four months of prision correccional minimum.

Therefore, if the criterion used is the imposable penalty, the theft of two goats valued at P150 is within the zone of concurrent jurisdiction of the

municipal court and the Court of First Instance as provided for in paragraph (c) of section 87 and as underscored in the Esperat case.

If the criterion used is the value of the property stolen, which is less than two hundred pesos, the case still falls within the concurrent jurisdiction of

the municipal court and the Court of First Instance as provided for in paragraph (b) of section 87 (Davis vs. Director of Prisons, 17 Phil. 168; Brecinio

vs. Papica, L-20347, October 31, 1964, 12 SCRA 349, regarding qualified theft of a carabao valued at P150).

The foregoing ruling is sufficient to dispose of the case or grant the petition for certiorari and set aside the lower court's order.

However, in view of the misleading impression created by the dictum in the Esperat case, supra, with respect to the concurrent jurisdiction of the

inferior courts and the Court of First Instance in criminal cases under sections 44[f] and 87 of the Judiciary Law, a clarification of that dictum appears

to be imperative and unavoidable. The Judiciary Law, as amended by Republic Acts Nos. 2613 and 3828, provides:

SEC. 44. Original jurisdiction. — Courts of First Instance shall have original jurisdiction:

xxx xxx xxx

(f) In all criminal cases in which the penalty provided by law is imprisonment for more than six months, or a fine of more than

two hundred pesos;

xxx xxx xxx

SEC. 87. Original jurisdiction to try criminal cases. — Municipal judges and judges of city courts of chartered cities shall have

original jurisdiction over:

(a) All violations of municipal or city ordinances committed within their respective territorial jurisdictions;

(b) All criminal cases arising under the laws relating to:

(1) Gambling and management or operation of lotteries;

(2) Assaults where the intent to kill is not charged or evident upon the trial;

(3) Larceny, embezzlement and estafa where the amount of money or property stolen, embezzled or

otherwise involved, does not exceed the sum or value of two hundred pesos;

(4) Sale of intoxicating liquors;

(5) Falsely impersonating an officer;

(6) Malicious mischief;

(7) Trespass on Government or private property;

(8) Threatening to take human life;



(9) Illegal possession of firearms, explosives and ammunition;

(10) Illegal use of aliases; and

(11) Concealment of deadly weapons.

(c) Except violations of election laws all other offenses in which the penalty provided by law is imprisonment for not more thanthree years, or a fine of not more than three thousand pesos, or both such fine and imprisonment.

Said municipal judges and judges of city courts may also conduct preliminary investigation for any offense alleged to have been

committed within their respective municipalities and cities which are cognizable by Courts of First Instance and the information

filed with their courts without regard to the limits of punishment, and may release, or commit and bind over any person

charged with such offense to secure his appearance before the proper court.

No warrant of arrest shall be issued by any municipal judge in any criminal case filed with him unless he first examines the

witness or witnesses personally, and the examination shall be made under oath and reduced to writing in the form of searching

questions and answers.

Municipal judges in the capitals of provinces and sub-provinces and judges of city courts shall have like jurisdiction as the Court

of First Instance to try parties charged with an offense committed within their respective jurisdictions, in which the penalty

provided by law does not exceed prision correccional or imprisonment for not more than six years or fine not exceeding sixthousand pesos or both, and in the absence of the district judge, shall have like jurisdiction within the province as the Court of

First Instance to hear applications for bail.

All cases filed under the next preceding paragraph with municipal judges of capitals and city court judges shall be tried and

decided on the merits by the respective municipal judges or city judges. Proceedings had shall be recorded and decisions

therein shall be appealabe direct to the Court of Appeals or the Supreme Court, as the case may be.

With respect to city courts, Republic Act No. 5967, which took effect on June 21, 1969, provides that aside from their original and concurrent

jurisdiction as provided in section 87, they shall likewise have concurrent jurisdiction with the Court of First Instance "over offenses involving damage

to property through reckless imprudence regardless of amount involved or the penalty to be imposed".

Section 44[f] and paragraphs (b) and (c) and the penultimate paragraph of section 87 in effect provide for three kinds of concurrent jurisdiction of the

Court of First Instance and the municipal and city courts.

(1) There is the concurrent jurisdiction over the eleven offenses (gambling, assaults, larceny, etc.) enumerated in paragraph (b) (formerly (c) of

section 87 as long as the penalty exceeds six months' imprisonment or a fine of PM (People vs. Palmon, infra; People vs. Laba, infra; People vs.

Valencia, L-29396, August 29, 1969, 29 SCRA 252; People vs. Tapayan, L-26885, November 28, 1969, 30 SCRA 529).

There is no maximum limit as to the penalty to which the concurrent jurisdiction extends in those eleven crimes. The inferior court's jurisdiction over

those offenses is independent of the penalty (Natividad vs. Robles, 87 Phil. 834).2

As to the first eight offenses, the concurrent jurisdiction is expressly provided for in the charters of Manila and Baguio (Secs. 2468 and 2562-A,

Revised Administrative Code; Sec. 41, Republic Act No. 409. See charters of Cebu, Iloilo, Cavite and San Pablo Cities. See People vs. Laba, L-28022, July

30, 1969, 28 SCRA 988; Dimagiba vs. Geraldez, 102 Phil. 1016).

The existence of such concurrent jurisdiction has been recognized in several decided cases such as the leading case of People vs. Palmon, 86 Phil. 350,

involving lesiones graves under article 263(2) of the Revised Penal Code punishable by prision correccional medium and maximum or two years, fourmonths and one day to six years.3

Other cases involving the concurrent jurisdiction of the Court of First Instance and the inferior courts over the eleven classes of offenses enumerated

in section 87(b) are collated in the footnote.4

(2) By virtue of paragraph (c) of section 87, the Court of First Instance and municipal and city courts have concurrent jurisdiction over

offenses, other than violations of election laws and the eleven offenses enumerated in paragraph (b) of the same section 87, where the imposable

penalty exceeds six months' imprisonment or a fine of two hundred pesos and does not exceed three years' imprisonment or a fine of three thousand

pesos or both such fine and imprisonment. Such concurrent jurisdiction is provided for in Republic Act No. 3828 which took effect on June 22, 1963.

(3) Under the penultimate paragraph of section 87 the Court of First Instance and city courts and the municipal courts of capitals of Provinces and

Sub-provinces have concurrent jurisdiction over offenses where the penalty exceeds six months' imprisonment or a fine of two hundred pesos but

does not exceed six Years' imprisonment or a fine of six thousand pesos or both. That concurrent jurisdiction overlaps with the concurrent jurisdiction

over offenses mentioned in paragraphs (b) and (c) of section 87 .



In the Esperat case it was noted that the exclusive original jurisdiction of the city and municipal courts is confined only to offenses where the

prescribed penalty is six months' imprisonment or less or a fine of P200 or less, whereas the exclusive original jurisdiction of the Court of First

Instance covers crimes where the penalty is imprisonment for more than three years (or six years in case of city courts and municipal courts of

provincial capitals), or a fine of more than P3,000 (or P6,000 in proper cases), or both such imprisonment and fine.

There is an obiter dictum in the Esperat decision that "between these exclusive jurisdictions lies a zone where the jurisdiction is concurrent.

It is evident that that dictum refers not to all offenses but generally to the crimes covered by paragraph (c) of section 87, meaning offenses other than

the eleven offenses enumerated in paragraph (b) where the concurrent jurisdiction arises as long as the penalty exceeds six months' imprisonment or

a fine of P200 and has no maximum limit as to the penalty. That is a settled ruling which could not have been abrogated by Republic Act No. 3828

since that law in amending paragraph (c) of section 87 retained the phrase "all other offenses" found in that paragraph.

The phrase "all other offenses" would be inutile if the maximum limit of three years' imprisonment (six years in case of city courts and municipal

courts of provincial capitals) or a fine of P3,000 (P6,000 in proper cases) should invariably include the eleven offenses enumerated in paragraph (b) of

section 87 where the zone of concurrent jurisdiction has no maximum limit as to the penalty (People vs. Valencia, supra).

Illustrative rulings on the zone of concurrent jurisdiction for offenses not enumerated in paragraph (b) but embraced in paragraph (c) and the

penultimate paragraph of section 87 are digested below.5

Two cases not falling under paragraph (b)(3) of section 87 may be noted: Thus, estafa involving the sum of P5,100 does not fall under paragraph (b)(3)

of section 87 because that paragraph speaks of estafa involving an amount which does not exceed P200. But since the penalty for estafa involving thesum of P5,100 is imprisonment up to two years and four months, the Court of First Instance and the city and municipal courts have concurrent

jurisdiction over that particular offense by virtue of paragraph (c) and the penultimate paragraph of section 87 and not because of paragraph (b)(3)

(People vs Cook, L-25305), Jan scary 31, 1969, 26 SCRA 698).

Again, paragraph (b)(3) of section 87 mentions theft involving an amount not exceeding P200. In case of theft involving the sum of P2,131, punishable

with a maximum imprisonment of four years and two months, the city court and the Court of First Instance have concurrent jurisdiction over the age

by virtue of the penultimate paragraph of section 87 (People vs. Laba, L-28022, July 30, 1969, 28 SCRA 988).

Since in the instant case the theft of the two goats valued at P150 is punishable with imprisonment up to two years and four months, the Court of

First Instance of Cebu and the municipal court of Cordova have concurrent jurisdiction by virtue of paragraph (b)(3) of section 87.

And since the municipal court of Cordova has jurisdiction over the offense, the Court of First Instance of Cebu has no jurisdiction to entertain the

petition for certiorari, mandamus and prohibition which the accused had filed for the purpose of assailing the municipal court's order of August 21,

1974 holding that it has jurisdiction over the crime.

The Court of First Instance of Cebu has no supervisory jurisdiction over the municipal court in connection with its actuations in a case where it has

concurrent jurisdiction with the Court of First Instance. The petition for certiorari should have been filed in the Court of Appeals or in this Court

(Bermejo vs. Barrios, L-23614 and Carmorin vs. Barrios, L-23615, February 27, 1970, 31 SCRA 764 and cases cited therein).

As the municipal court has already acquired jurisdiction over the theft case, it can continue exercising such jurisdiction (Laquian vs. Baltazar, L-27514,

February 18, 1970, 31 SCRA 552).

WHEREFORE, the lower court's orders of November 8 and 28, 1974, holding that it has original and exclusive jurisdiction over the theft case, are set

aside. No costs.

SO ORDERED.




SUPREME COURT

Manila

EN BANC

G.R. No. L-17663 May 30, 1962

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.

ISAURO SANTIAGO, defendant-appellee.

Office of the Solicitor General for plaintiff-appellant.

Roces, Alidio and Ceguera for defendant-appellee.

CONCEPCION, J.:

The information herein alleges that defendant Isauro Santiago has committed the crime of "libel" as follows:

That on or about the 5th day of October 1959, in the City of Manila, Philippines, the said accused, for the evident purpose of injuring the

name and reputation of Arsenio H. Lacson, and of impeaching and besmirching the latter's virtue, honesty, honor and reputation, and with

the malicious intent of exposing him to public hatred, contempt and ridicule, did then and there wilfully, feloniously, maliciously and

publicly call said Mayor Arsenio H. Lacson, in the course of a political speech delivered at 392 Fraternal, Quiapo, in said city, thru the

medium of an amplifier system and before a crowd of around a hundred persons, the following, to wit: "Arsenio Hayop Lacson,

pinakawalang hiyang Alkalde, Mayor Lacson raped a woman at the Aroma Cafe and another City Hall employee in Shellborne Hotel", which

are false, malicious and highly defamatory statements against Mayor Arsenio H. Lacson, delivered with no good intentions or justifiable

motive, but solely for the purpose of injuring the name and reputation of said Mayor Arsenio H. Lacson and to expose him to public

hatred, contempt and ridicule.

Defendant moved to quash this information upon the ground that the crime charged therein is, not libel, but oral defamation, which has already

prescribed, it having been allegedly committed on October 5, 1959, or more than six (6) months prior to the filing of the information on August 11,

1960. The Court of First Instance of Manila granted this motion and, accordingly, quashed the information, with costs de oficio. Hence, this appeal by

the prosecution.

The only issue in this case is whether the crime charged in the information is oral defamation, under Article 358 of the Revised Penal Code, or libel,under Article 355, in relation to Article 353, of the same Code. Said provisions read:

ART. 358. Slander . — Oral defamation shall be punished by arresto mayor in its maximum period to prision correccional in its minimum

period if it is of a serious and insulting nature; otherwise the penalty shall bearresto menor or a fine not exceeding 200 pesos".

ART. 355. Libel by means of writings or similar means. — A libel committed by means of writing, printing, lithography, engraving, radio,

phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in

its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought

by the offended party.

ART. 353. Definition of libel . — A libel is a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act,

omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to

blacken the memory of one who is dead.

The prosecution maintains that "the medium of an amplifier system", thru which the defamatory statements imputed to the accused were allegedly

made, falls within the purview of the terms "writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition,

cinematographic exhibition, or any similar means", appearing in said Article 355, in the sense, at least, that in "amplifier system" is a means "similar"

to "radio".

This pretense is untenable. To begin with, as correctly stated in defendant's brief, "radio as a means of publication is "the transmission and reception

of electromagnetic waves without conducting wires intervening between transmitter and receiver" (Library of Universal Knowledge)" (see, also, 18

Encyclopedia Britanica, p. 285), "while transmission of words by means of an amplifier system", such as the one mentioned in the information, "is not

thru "electromagnetic waves" and is with the use of "conducting wires" intervening between the transmitter . . . and the receiver . . . .

Secondly, even the word "radio" used in said Article 355, should be considered in relation to the terms with which it is associated — "writing,

printing, lithography, engraving . . . phonograph, painting, theatrical exhibition or cinematographical exhibition" — all of which have a common

characteristic, namely, their permanent nature as a means of publication, and this explains the graver penalty for libel than that prescribed for oral

defamation. Thus, it has been held that slanderous statements forming part of a manuscript read by a speaker over the radio constitute libel

(Sorensen vs. Wood, 243 N.W. 82, 82 A.L.R. 1109; Nules vs. Wasner, 20 P. [2d] 487, 104 A.L.R. 877), whereas the rules governing such offense were




SUPREME COURT

Manila

FIRST DIVISION

G.R. No. L-37633 January 31, 1975

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

FELICISIMO MEDROSO, JR., accused-appellant.

Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor General Eduardo C. Abaya and Trial Attorney Josefina C. Castillo for plaintiff-

appellee.

Crispo B. Borja for accused-appellant.

MUÑOZ PALMA, J.:

The only question or issue involved in this appeal is the correctness of the judgment rendered by the Court of First Instance of Camarines Sur in

Criminal Case No. 403 wherein accused-appellant, Felicisimo Medroso Jr., on a plea of guilty, was convicted of "Homicide through reckless

imprudence" and sentenced

to suffer the penalty of, from TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY, as minimum, to SIX (6) YEARS, as maximum,

of prision correccional and ordered to pay the heirs of the deceased in the sum of P12,000.00 as actual damages, P4,000.00 as

moral damages and P4,000.00 as exemplary damages, Philippine currency, and to pay the cost of this proceeding. (p. 11, Rollo)

Sometime on August 6, 1971, the Provincial Fiscal of Camarines Sur filed with the local Court of First Instance an Information accusing the herein

appellant, Felicisimo Medroso Jr., of "Homicide through reckless imprudence" alleged to have been committed as follows:

That on or about the 16th of May, 1971, in the barrio of San Roque, municipality of Bombon, province of Camarines Sur,

Philippines, and within the jurisdiction of this Honorable Court, the said accused without any license to drive motor vehicles

issued by competent authority, did then and there wilfully and unlawfully manage and operate a BHP dump truck bearing Plate

No. 7329, S. 1969 and with BHP truck No. 14-H3-12P and while passing along the said barrio in a negligent, careless and

imprudent manner, without due regard to traffic laws, rules and regulations to prevent accident to persons and damage to

property, caused by such negligence and imprudence, said truck driven and operated by him to bump and hit one Iñigo Andes

thereby causing his death. (p. 4, Rollo)

The case was called for trial on July 18, 1972, on which date appellant with the assistance of his counsel pleaded guilty to the charge with two

mitigating circumstances in his favor, viz: plea of guilty and voluntary surrender, to which the prosecuting fiscal offered no objection.

In its decision, the trial court, presided by Hon. Delfin Vir Sunga, after appreciating the above-mentioned mitigating circumstances and considering as

an aggravating circumstance the fact that appellant drove the vehicle in question without a license, sentenced the accused as indicated above.

Not content with the penalty imposed, accused appealed to the Court of Appeals.

On September 19, 1973, the Appellate Court, through its Second Division at the time, certified the case to this Court on the ground that the appeal

covers pure questions of law.

Appellant is charged with homicide thru reckless imprudence for which the penalty provided for in Paragraph 6, sub-section 2 of Article 365 of the

Revised Penal Code is prision correccional in its medium and maximum periods or from two years, four months and one day to six years.

Appellant now contends that inasmuch as he has two mitigating circumstances in his favor without any aggravating circumstance, as driving without a

license is not to be considered such, he is entitled to a penalty one degree lower than that prescribed by law pursuant to Article 64 of the Revised

Penal Code 1

or, arresto mayor in its maximum period to correct in its minimum period, that is, from "four months and one day to two years, four

months and one day," and that applying the Indeterminate Sentence Law, the trial court should have imposed a minimum within the penalty still one

degree lower, which is arresto mayor minimum and medium periods (1 month and 1 day to 4 months) and to a maximum of not more than two years,four months, and one day of prision correccional .



Appellant's proposition would indeed be correct if he were charged with any of the offenses penalized in the Revised Penal Code other than Article

365 thereof, But because appellant is accused under Article 365, he is not entitled as a matter of right to the provisions of Article 64 of the Code.

Paragraph 5 of Article 365 expressly states that in the imposition of the penalties provided for in the Article, the courts shall exercise their sound

discretion without regard to the rules prescribed in Article 64 . 2 The rationale of the law can be found in the fact that in quasi-offenses penalized under

Article 365, the carelessness, imprudence or negligence which characterizes the wrongful act may vary from one situation to another, in nature,

extent, and resulting consequences, and in order that there may be a fair and just application of the penalty, the courts must have ample discretion in

its imposition, without being bound by what We may call the mathematical formula provided for in Article 64 of the Revised Penal Code. On the basisof this particular provision, the trial court was not bound to apply paragraph 5 of Article 64 in the instant case even if appellant had two mitigating

circumstances in his favor with no aggravating circumstance to offset them.

In People vs. Agito, 1958, 103 Phil. 526, the accused, Simplicio Agito, was charged with triple homicide and serious physical injuries thru reckless

imprudence before the Court of First Instance of Negros Occidental of Mindoro. He pleaded guilty and the trial court, applying Article 365, paragraph

6, sub-section 2 of the Revised Penal Code, sentenced him to suffer an indeterminate penalty from one year and one day to three years, six months

and twenty one days of prison correccional . The accused appealed questioning the propriety of the penalty imposed and appellant contended inter

alia that the trial court erred in not considering the mitigating circumstance of plea of guilty so as to reduce the penalty to a minimum period. This

contention was held by this Court to be untenablefor to uphold it would be contrary to Article 365, paragraph 5, of the Revised Penal Code as

amended by R.A. 384 which provides that "(I)n the imposition of these penalties (referring to the penalties defined in Article 365), the courts shall

exercise their sound discretion without regard to the rules prescribed in Article 64 ." (Portion in parenthesis supplied)

In the case now before Us, the penalty for homicide thru reckless imprudence with violation of the Automobile Law is prision correccional in its

medium and maximum periods with a duration from two years, four months, and one day to six years. Applying the Indeterminate Sentence Law towhich appellant is entitled 3 the imposable penalty covers a minimum to be taken from the penalty one degree lower than that prescribed by law

or arresto mayor in its maximum period to prision correccional in its minimum period, i.e. four months and one day to two years and four

months, and a maximum to be taken in turn from the penalty prescribed for the offense the duration of which is from two years, four months and

one day to six years. The determination of the minimum and maximum terms is left entirely to the discretion of the trial court, the exercise of which

will not be disturbed on appeal unless there is a clear abuse. 4

The penalty imposed by the trial court is well within the periods we have given above except for the one day excess in the minimum thereof. The

minimum of the indeterminate sentence given by His Honor the trial Judge should have been "two years and four months of prision correccional "

instead of "two years, four months and one day", because with the addition of one day the minimum term fell within the range of the penalty

prescribed for the offense in contravention of the provisions of the Indeterminate Sentence Law. On this score, there is need to correct the minimum

of the indeterminate penalty imposed by the court a quo.

As regards the second issue raised by appellant, We do not find any reversible error in the judgment awarding to the heirs of the deceased P4,000.00

as moral damages and another P4,000.00 as exemplary damages in addition to P12,000.00 byway of actual damages.

Moral damages compensate for mental anguish, serious anxiety and moral shock suffered by the victim or his family as the proximate result of the

wrongful act, 5

and they are expressly recoverable where a criminal offense result in physical injuries as in the instant case before Us which in fact

culminated in the death of the victim. 6

In People vs. Pantoja, L-18793, Oct. 11, 1968, 25 SCRA 468, this Court fixed the sum of P12,000.00 as compensatory damages for a death caused by a

crime (Art. 2206 of the Civil Code) and it was there stated that, in proper cases, the courts may adjudge additional sums by way of moral damages

and exemplary damages.

The determination of the amount which would adequately compensate the victim or his family in a criminal case of this nature is left to the discretion

of the trial judge whose assessment will not be disturbed on appeal unless there is a manifest showing that the same is arbitrary or excessive, for it

has been said that "(T)here can be no exact or uniform rule for measuring the value of a human life and the measure of damages cannot be arrived at

by precise mathematical calculation, but the amount recoverable depends on the particular facts and circumstances of each case." (25 C.J.S., 1241,

cited in Alcantara vs. Surro, et al., 93 Phil. 472, 477)

With respect to the exemplary damages awarded by the trial court, the same are justified by the fact that the herein appellant without having been

issued by competent authority a license to drive a motor vehicle, wilfully operated a BHP dump truck and drove it in a negligent and careless manner

as a result of which he hit a pedestrian who died from the injuries sustained by him. Exemplary damages are corrective in nature and are imposed by

way of example or correction for the public good (Art. 2229, Civil Code), and the situation before Us calls for the imposition of this kind of damages to

deter others from taking into their hands a motor vehicle without being qualified to operate it on the highways thereby converting the vehicle into an

instrument of death.

WHEREFORE, the appealed decision is hereby MODIFIED in that the minimum term is reduced by one day . The herein appellant is sentenced

therefore to an indeterminate penalty ranging from TWO (2) YEARS and FOUR (4) MONTHS of prision correccional as minimum to SIX (6) YEARS also

of prision correccional as maximum. In all other respects, the decision stands. Without pronouncement as to costs.

criminal law 3

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