G.R. No. 180016               April 29, 2014

LITO CORPUZ, Petitioner, vs.PEOPLE OF THE PHILIPPINES, Respondent.

D E C I S I O N

PERALTA, J.:

This is to resolve the Petition for Review on Certiorari, under Rule 45 of the Rules of Court, dated November 5, 2007, of petitioner Lito Corpuz (petitioner), seeking to reverse and set aside the Decision1 dated March 22, 2007 and Resolution2 dated September 5, 2007 of the Court of Appeals (CA), which affirmed with modification the Decision3 dated July 30, 2004 of the Regional Trial Court (RTC), Branch 46, San Fernando City, finding the petitioner guilty beyond reasonable doubt of the crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of the Revised Penal Code.

The antecedent facts follow.

Private complainant Danilo Tangcoy and petitioner met at the Admiral Royale Casino in Olongapo City sometime in 1990. Private complainant was then engaged in the business of lending money to casino players and, upon hearing that the former had some pieces of jewelry for sale, petitioner approached him on May 2, 1991 at the same casino and offered to sell the said pieces of jewelry on commission basis. Private complainant agreed, and as a consequence, he turned over to petitioner the following items: an 18k diamond ring for men; a woman's bracelet; one (1) men's necklace and another men's bracelet, with an aggregate value of P98,000.00, as evidenced by a receipt of even date. They both agreed that petitioner shall remit the proceeds of the sale, and/or, if unsold, to return the same items, within a period of 60 days. The period expired without petitioner remitting the proceeds of the sale or returning the pieces of jewelry. When private complainant was able to meet petitioner, the latter promised the former that he will pay the value of the said items entrusted to him, but to no avail.

Thus, an Information was filed against petitioner for the crime of estafa, which reads as follows:

That on or about the fifth (5th) day of July 1991, in the City of Olongapo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, after having received from one Danilo Tangcoy, one (1) men's diamond ring, 18k, worth P45,000.00; one (1) three-baht men's bracelet, 22k, worth P25,000.00; one (1) two-baht ladies' bracelet, 22k, worth P12,000.00, or in the total amount of Ninety-Eight Thousand Pesos (P98,000.00), Philippine currency, under expressed obligation on the part of said accused to remit the proceeds of the sale of the said items or to return the same, if not sold, said accused, once in possession of the said items, with intent to defraud, and with unfaithfulness and abuse of confidence, and far from complying with his aforestated obligation, did then and there wilfully, unlawfully and feloniously misappropriate, misapply and convert to his own personal use and benefit the aforesaid jewelries (sic) or the proceeds of the sale thereof, and despite repeated demands, the accused failed and refused to return the said items or to remit the amount of Ninety- Eight Thousand Pesos (P98,000.00), Philippine currency, to the damage and prejudice of said Danilo Tangcoy in the aforementioned amount.

CONTRARY TO LAW.

On January 28, 1992, petitioner, with the assistance of his counsel, entered a plea of not guilty. Thereafter, trial on the merits ensued.

The prosecution, to prove the above-stated facts, presented the lone testimony of Danilo Tangcoy. On the other hand, the defense presented the lone testimony of petitioner, which can be summarized, as follows:

Petitioner and private complainant were collecting agents of Antonio Balajadia, who is engaged in the financing business of extending loans to Base employees. For every collection made, they earn a commission. Petitioner denied having transacted any business with private complainant.

However, he admitted obtaining a loan from Balajadia sometime in 1989 for which he was made to sign a blank receipt. He claimed that the same receipt was then dated May 2, 1991 and used as evidence against him for the supposed agreement to sell the subject pieces of jewelry, which he did not even see.

After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime charged in the Information. The dispositive portion of the decision states:

WHEREFORE, finding accused LITO CORPUZ GUILTY beyond reasonable doubt of the felony of Estafa under Article 315, paragraph one (1), subparagraph (b) of the Revised Penal Code;

there being no offsetting generic aggravating nor ordinary mitigating circumstance/s to vary the penalty imposable;

accordingly, the accused is hereby sentenced to suffer the penalty of deprivation of liberty consisting of an imprisonment under the Indeterminate Sentence Law of FOUR (4) YEARS AND TWO (2) MONTHS of Prision Correccional in its medium period AS MINIMUM, to FOURTEEN (14) YEARS AND EIGHT (8) MONTHS of Reclusion Temporal in its minimum period AS MAXIMUM; to indemnify private complainant Danilo Tangcoy the amount of P98,000.00 as actual damages, and to pay the costs of suit.

SO ORDERED.

The case was elevated to the CA, however, the latter denied the appeal of petitioner and affirmed the decision of the RTC, thus:

WHEREFORE, the instant appeal is DENIED. The assailed Judgment dated July 30, 2004 of the RTC of San Fernando City (P), Branch 46, is hereby AFFIRMED with MODIFICATION on the imposable prison term, such that accused-appellant shall suffer the indeterminate penalty of 4 years and 2 months of prision correccional, as minimum, to 8 years of prision mayor, as maximum, plus 1 year for each additional P10,000.00, or a total of 7 years. The rest of the decision stands.

SO ORDERED.

Petitioner, after the CA denied his motion for reconsideration, filed with this Court the present petition stating the following grounds:

A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING THE ADMISSION AND APPRECIATION BY THE LOWER COURT OF PROSECUTION EVIDENCE, INCLUDING ITS

EXHIBITS, WHICH ARE MERE MACHINE COPIES, AS THIS VIOLATES THE BEST EVIDENCE RULE;

B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING THAT THE CRIMINAL INFORMATION FOR ESTAFA WAS NOT FATALLY DEFECTIVE ALTHOUGH THE SAME DID NOT CHARGE THE OFFENSE UNDER ARTICLE 315 (1) (B) OF THE REVISED PENAL CODE IN THAT -

1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH THE SUBJECT [PIECES OF] JEWELRY SHOULD BE RETURNED, IF UNSOLD, OR THE MONEY TO BE REMITTED, IF SOLD;

2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN THE INFORMATION AS OF 05 JULY 1991 WAS MATERIALLY DIFFERENT FROM THE ONE TESTIFIED TO BY THE PRIVATE COMPLAINANT WHICH WAS 02 MAY 1991;

C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING THAT DEMAND TO RETURN THE SUBJECT [PIECES OF] JEWELRY, IF UNSOLD, OR REMIT THE PROCEEDS, IF SOLD – AN ELEMENT OF THE OFFENSE – WAS PROVED;

D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING THAT THE PROSECUTION'S CASE WAS PROVEN BEYOND REASONABLE DOUBT ALTHOUGH -

1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) VERSIONS OF THE INCIDENT;

2. THE VERSION OF THE PETITIONER – ACCUSED IS MORE STRAIGHTFORWARD AND LOGICAL, CONSISTENT WITH HUMAN EXPERIENCE;

3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND APPLIED TO THIS CASE;

4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE STATE.

In its Comment dated May 5, 2008, the Office of the Solicitor General (OSG) stated the following counter-arguments:

The exhibits were properly admitted inasmuch as petitioner failed to object to their admissibility.

The information was not defective inasmuch as it sufficiently established the designation of the offense and the acts complained of.

The prosecution sufficiently established all the elements of the crime charged.

This Court finds the present petition devoid of any merit.

The factual findings of the appellate court generally are conclusive, and carry even more weight when said court affirms the findings of the trial court, absent any showing that the findings are totally devoid of support in the records, or that they are so glaringly erroneous as to constitute grave abuse of discretion.4 Petitioner is of the opinion that the CA erred in affirming the factual findings of the trial court. He now comes to this Court raising both procedural and substantive issues.

According to petitioner, the CA erred in affirming the ruling of the trial court, admitting in evidence a receipt dated May 2, 1991 marked as Exhibit "A" and its submarkings, although the same was merely a photocopy, thus, violating the best evidence rule. However, the records show that petitioner never objected to the admissibility of the said evidence at the time it was identified, marked and testified upon in court by private complainant. The CA also correctly pointed out that petitioner also failed to raise an objection in his Comment to the prosecution's formal offer of evidence and even admitted having signed the said receipt. The established doctrine is that when a party failed to interpose a timely objection to evidence at the time they were offered in evidence, such objection shall be considered as waived.5

Another procedural issue raised is, as claimed by petitioner, the formally defective Information filed against him. He contends that the Information does not contain the period when the pieces of jewelry were supposed to be returned and that the date when the crime occurred was different from the one testified to by private complainant. This argument is untenable. The CA did not err in finding that the Information was substantially complete and in reiterating that objections as to the matters of form and substance in the Information cannot be made for the first time on appeal. It is true that the gravamen of the crime of estafa under Article 315, paragraph 1, subparagraph (b) of the RPC is the appropriation or conversion of money or property received to the prejudice of the owner6 and that the time of occurrence is not a material ingredient of the crime, hence, the exclusion of the period and the wrong date of the occurrence of the crime, as reflected in the Information, do not make the latter fatally defective. The CA ruled:

x x x An information is legally viable as long as it distinctly states the statutory designation of the offense and the acts or omissions constitutive thereof. Then Section 6, Rule 110 of the Rules of Court provides that a complaint or information is sufficient if it states the name of the accused;

the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate time of the commission of the offense, and the place wherein the offense was committed. In the case at bar, a reading of the subject Information shows compliance with the foregoing rule. That the time of the commission of the offense was stated as " on or about the fifth (5th) day of July, 1991" is not likewise fatal to the prosecution's cause considering that Section 11 of the same Rule requires a statement of the precise time only when the same is a material ingredient of the offense. The gravamen of the crime of estafa under Article 315, paragraph 1 (b) of the Revised Penal Code (RPC) is the appropriation or conversion of money or property received to the prejudice of the offender. Thus, aside from the fact that the date of the commission thereof is not an essential element of the crime herein charged, the failure of the prosecution to specify the exact date does not render the Information ipso facto defective. Moreover, the said date is also near the due date within which accused-appellant should have delivered the proceeds or returned the said [pieces of jewelry] as testified upon by Tangkoy, hence, there was sufficient compliance with the rules. Accused-appellant, therefore, cannot now be allowed to claim that he was not properly apprised of the charges proferred against him.7

It must be remembered that petitioner was convicted of the crime of Estafa under Article 315, paragraph 1 (b) of the RPC, which reads:

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

1. With unfaithfulness or abuse of confidence, namely:

x x x x

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

The elements of estafa with abuse of confidence are as follows: (a) that money, goods or other personal property is received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return the same; (b) that there be misappropriation or conversion of such money or property by the offender or denial on his part of such receipt; (c) that such misappropriation or conversion or denial is to the prejudice of another; and (d) that there is a demand made by the offended party on the offender.8

Petitioner argues that the last element, which is, that there is a demand by the offended party on the offender, was not proved. This Court disagrees. In his testimony, private complainant narrated how he was able to locate petitioner after almost two (2) months from the time he gave the pieces of jewelry and asked petitioner about the same items with the latter promising to pay them. Thus:

PROS. MARTINEZ

q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction could have been finished on 5 July 1991, the question is what happens (sic) when the deadline came?

a I went looking for him, sir.

q For whom?

a Lito Corpuz, sir.

q Were you able to look (sic) for him?

a I looked for him for a week, sir.

q Did you know his residence?

a Yes, sir.

q Did you go there?

a Yes, sir.

q Did you find him?

a No, sir.

q Were you able to talk to him since 5 July 1991?

a I talked to him, sir.

q How many times?

a Two times, sir.

q What did you talk (sic) to him?

a About the items I gave to (sic) him, sir.

q Referring to Exhibit A-2?

a Yes, sir, and according to him he will take his obligation and I asked him where the items are and he promised me that he will pay these amount, sir.

q Up to this time that you were here, were you able to collect from him partially or full?

a No, sir.9

No specific type of proof is required to show that there was demand.10 Demand need not even be formal; it may be verbal.11 The specific word "demand" need not even be used to show that it has indeed been made upon the person charged, since even a mere query as to the whereabouts of the money [in this case, property], would be tantamount to a demand.12 As expounded in Asejo v. People:13

With regard to the necessity of demand, we agree with the CA that demand under this kind of estafa need not be formal or written. The appellate court observed that the law is silent with regard to the form of demand in estafa under Art. 315 1(b), thus:

When the law does not qualify, We should not qualify. Should a written demand be necessary, the law would have stated so. Otherwise, the word "demand" should be interpreted in its general meaning as to include both written and oral demand. Thus, the failure of the prosecution to present a written demand as evidence is not fatal.

In Tubb v. People, where the complainant merely verbally inquired about the money entrusted to the accused, we held that the query was tantamount to a demand, thus:

x x x [T]he law does not require a demand as a condition precedent to the existence of the crime of embezzlement. It so happens only that failure to account, upon demand for funds or property held in trust, is circumstantial evidence of misappropriation. The same way, however, be established by other proof, such as that introduced in the case at bar.14

In view of the foregoing and based on the records, the prosecution was able to prove the existence of all the elements of the crime. Private complainant gave petitioner the pieces of jewelry in trust, or on commission basis, as shown in the receipt dated May 2, 1991 with an obligation to sell or return the same within sixty (60) days, if unsold. There was misappropriation when petitioner failed to remit the proceeds of those pieces of jewelry sold, or if no sale took place, failed to return the same pieces of jewelry within or after the agreed period despite demand from the private complainant, to the prejudice of the latter.

Anent the credibility of the prosecution's sole witness, which is questioned by petitioner, the same is unmeritorious. Settled is the rule that in assessing the credibility of witnesses, this Court gives great respect to the evaluation of the trial court for it had the unique opportunity to observe the demeanor of witnesses and their deportment on the witness stand, an opportunity denied the appellate courts, which merely rely on the records of the case.15 The assessment by the trial court is even conclusive

and binding if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence, especially when such finding is affirmed by the CA.16 Truth is established not by the number of witnesses, but by the quality of their testimonies, for in determining the value and credibility of evidence, the witnesses are to be weighed not numbered.17

As regards the penalty, while this Court's Third Division was deliberating on this case, the question of the continued validity of imposing on persons convicted of crimes involving property came up. The legislature apparently pegged these penalties to the value of the money and property in 1930 when it enacted the Revised Penal Code. Since the members of the division reached no unanimity on this question and since the issues are of first impression, they decided to refer the case to the Court en banc for consideration and resolution. Thus, several amici curiae were invited at the behest of the Court to give their academic opinions on the matter. Among those that graciously complied were Dean Jose Manuel Diokno, Dean Sedfrey M. Candelaria, Professor Alfredo F. Tadiar, the Senate President, and the Speaker of the House of Representatives. The parties were later heard on oral arguments before the Court en banc, with Atty. Mario L. Bautista appearing as counsel de oficio of the petitioner.

After a thorough consideration of the arguments presented on the matter, this Court finds the following:

There seems to be a perceived injustice brought about by the range of penalties that the courts continue to impose on crimes against property committed today, based on the amount of damage measured by the value of money eighty years ago in 1932. However, this Court cannot modify the said range of penalties because that would constitute judicial legislation. What the legislature's perceived failure in amending the penalties provided for in the said crimes cannot be remedied through this Court's decisions, as that would be encroaching upon the power of another branch of the government. This, however, does not render the whole situation without any remedy. It can be appropriately presumed that the framers of the Revised Penal Code (RPC) had anticipated this matter by including Article 5, which reads:

ART. 5. Duty of the court in connection with acts which should be repressed but which are not covered by the law, and in cases of excessive penalties. - Whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law, it shall render the proper decision, and shall report to the Chief Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be made the subject of penal legislation.

In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense.18

The first paragraph of the above provision clearly states that for acts bourne out of a case which is not punishable by law and the court finds it proper to repress, the remedy is to render the proper decision and thereafter, report to the Chief Executive, through the Department of Justice, the reasons why the same act should be the subject of penal legislation. The premise here is that a deplorable act is present but is not the subject of any penal legislation, thus, the court is tasked to inform the Chief Executive of the need to make that act punishable by law through legislation. The second paragraph is similar to the first except for the situation wherein the act is already punishable by law but the corresponding penalty is deemed by the court as excessive. The remedy therefore, as in the first paragraph is not to suspend the execution of the sentence but to submit to the Chief

Executive the reasons why the court considers the said penalty to be non-commensurate with the act committed. Again, the court is tasked to inform the Chief Executive, this time, of the need for a legislation to provide the proper penalty.

In his book, Commentaries on the Revised Penal Code,19 Guillermo B. Guevara opined that in Article 5, the duty of the court is merely to report to the Chief Executive, with a recommendation for an amendment or modification of the legal provisions which it believes to be harsh. Thus:

This provision is based under the legal maxim "nullum crimen, nulla poena sige lege," that is, that there can exist no punishable act except those previously and specifically provided for by penal statute.

No matter how reprehensible an act is, if the law-making body does not deem it necessary to prohibit its perpetration with penal sanction, the Court of justice will be entirely powerless to punish such act.

Under the provisions of this article the Court cannot suspend the execution of a sentence on the ground that the strict enforcement of the provisions of this Code would cause excessive or harsh penalty. All that the Court could do in such eventuality is to report the matter to the Chief Executive with a recommendation for an amendment or modification of the legal provisions which it believes to be harsh.20

Anent the non-suspension of the execution of the sentence, retired Chief Justice Ramon C. Aquino and retired Associate Justice Carolina C. Griño-Aquino, in their book, The Revised Penal Code,21 echoed the above-cited commentary, thus:

The second paragraph of Art. 5 is an application of the humanitarian principle that justice must be tempered with mercy. Generally, the courts have nothing to do with the wisdom or justness of the penalties fixed by law. "Whether or not the penalties prescribed by law upon conviction of violations of particular statutes are too severe or are not severe enough, are questions as to which commentators on the law may fairly differ; but it is the duty of the courts to enforce the will of the legislator in all cases unless it clearly appears that a given penalty falls within the prohibited class of excessive fines or cruel and unusual punishment." A petition for clemency should be addressed to the Chief Executive.22

There is an opinion that the penalties provided for in crimes against property be based on the current inflation rate or at the ratio of P1.00 is equal to P100.00 . However, it would be dangerous as this would result in uncertainties, as opposed to the definite imposition of the penalties. It must be remembered that the economy fluctuates and if the proposed imposition of the penalties in crimes against property be adopted, the penalties will not cease to change, thus, making the RPC, a self-amending law. Had the framers of the RPC intended that to be so, it should have provided the same, instead, it included the earlier cited Article 5 as a remedy. It is also improper to presume why the present legislature has not made any moves to amend the subject penalties in order to conform with the present times. For all we know, the legislature intends to retain the same penalties in order to deter the further commission of those punishable acts which have increased tremendously through the years. In fact, in recent moves of the legislature, it is apparent that it aims to broaden the coverage of those who violate penal laws. In the crime of Plunder, from its original minimum amount of P100,000,000.00 plundered, the legislature lowered it to P50,000,000.00. In the same way, the legislature lowered the threshold amount upon which the Anti-Money Laundering Act may apply, from P1,000,000.00 to P500,000.00.

It is also worth noting that in the crimes of Theft and Estafa, the present penalties do not seem to be excessive compared to the proposed imposition of their corresponding penalties. In Theft, the provisions state that:

Art. 309. Penalties. — Any person guilty of theft shall be punished by:

1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos, but if the value of the thing stolen exceeds the latter amount the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for each additional ten thousand pesos, but the total of the penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.

2. The penalty of prision correccional in its medium and maximum periods, if the value of the thing stolen is more than 6,000 pesos but does not exceed 12,000 pesos.

3. The penalty of prision correccional in its minimum and medium periods, if the value of the property stolen is more than 200 pesos but does not exceed 6,000 pesos.

4. Arresto mayor in its medium period to prision correccional in its minimum period, if the value of the property stolen is over 50 pesos but does not exceed 200 pesos.

5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50 pesos.

6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5 pesos.

7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the circumstances enumerated in paragraph 3 of the next preceding article and the value of the thing stolen does not exceed 5 pesos. If such value exceeds said amount, the provision of any of the five preceding subdivisions shall be made applicable.

8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value of the thing stolen is not over 5 pesos, and the offender shall have acted under the impulse of hunger, poverty, or the difficulty of earning a livelihood for the support of himself or his family.

In a case wherein the value of the thing stolen is P6,000.00, the above-provision states that the penalty is prision correccional in its minimum and medium periods (6 months and 1 day to 4 years and 2 months). Applying the proposal, if the value of the thing stolen is P6,000.00, the penalty is imprisonment of arresto mayor in its medium period to prision correccional minimum period (2 months and 1 day to 2 years and 4 months). It would seem that under the present law, the penalty imposed is almost the same as the penalty proposed. In fact, after the application of the Indeterminate Sentence Law under the existing law, the minimum penalty is still lowered by one degree; hence, the minimum penalty is arresto mayor in its medium period to maximum period (2 months and 1 day to 6 months), making the offender qualified for pardon or parole after serving the said minimum period and may even apply for probation. Moreover, under the proposal, the minimum penalty after applying the Indeterminate Sentence Law is arresto menor in its maximum period to arresto mayor in its minimum period (21 days to 2 months) is not too far from the minimum period

under the existing law. Thus, it would seem that the present penalty imposed under the law is not at all excessive. The same is also true in the crime of Estafa.23

Moreover, if we apply the ratio of 1:100, as suggested to the value of the thing stolen in the crime of Theft and the damage caused in the crime of Estafa, the gap between the minimum and the maximum amounts, which is the basis of determining the proper penalty to be imposed, would be too wide and the penalty imposable would no longer be commensurate to the act committed and the value of the thing stolen or the damage caused:

I. Article 309, or the penalties for the crime of Theft, the value would be modified but the penalties are not changed:

1. P12,000.00 to P22,000.00 will become P1,200,000.00 to P2,200,000.00, punished by prision mayor minimum to prision mayor medium (6 years and 1 day to 10 years).

2. P6,000.00 to P12,000.00 will become P600,000.00 to P1,200,000.00, punished by prision correccional medium and to prision correccional maximum (2 years, 4 months and 1 day to 6 years).24

3. P200.00 to P6,000.00 will become P20,000.00 to P600,000.00, punishable by prision correccional minimum to prision correccional medium (6 months and 1 day to 4 years and 2 months).

4. P50.00 to P200.00 will become P5,000.00 to P20,000.00, punishable by arresto mayor medium to prision correccional minimum (2 months and 1 day to 2 years and 4 months).

5. P5.00 to P50.00 will become P500.00 to P5,000.00, punishable by arresto mayor (1 month and 1 day to 6 months).

6. P5.00 will become P500.00, punishable by arresto mayor minimum to arresto mayor medium.

x x x x.

II. Article 315, or the penalties for the crime of Estafa, the value would also be modified but the penalties are not changed, as follows:

1st. P12,000.00 to P22,000.00, will become P1,200,000.00 to P2,200,000.00, punishable by prision correccional maximum to prision mayor minimum (4 years, 2 months and 1 day to 8 years).25

2nd. P6,000.00 to P12,000.00 will become P600,000.00 to P1,200,000.00, punishable by prision correccional minimum to prision correccional medium (6 months and 1 day to 4 years and 2 months).26

3rd. P200.00 to P6,000.00 will become P20,000.00 to P600,000.00, punishable by arresto mayor maximum to prision correccional minimum (4 months and 1 day to 2 years and 4 months).

4th. P200.00 will become P20,000.00, punishable by arresto mayor maximum (4 months and 1 day to 6 months).

An argument raised by Dean Jose Manuel I. Diokno, one of our esteemed amici curiae, is that the incremental penalty provided under Article 315 of the RPC violates the Equal Protection Clause.

The equal protection clause requires equality among equals, which is determined according to a valid classification. The test developed by jurisprudence here and yonder is that of reasonableness,27 which has four requisites:

(1) The classification rests on substantial distinctions;

(2) It is germane to the purposes of the law;

(3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class.28

According to Dean Diokno, the Incremental Penalty Rule (IPR) does not rest on substantial distinctions asP10,000.00 may have been substantial in the past, but it is not so today, which violates the first requisite; the IPR was devised so that those who commit estafa involving higher amounts would receive heavier penalties; however, this is no longer achieved, because a person who steals P142,000.00 would receive the same penalty as someone who steals hundreds of millions, which violates the second requisite; and, the IPR violates requisite no. 3, considering that the IPR is limited to existing conditions at the time the law was promulgated, conditions that no longer exist today.

Assuming that the Court submits to the argument of Dean Diokno and declares the incremental penalty in Article 315 unconstitutional for violating the equal protection clause, what then is the penalty that should be applied in case the amount of the thing subject matter of the crime exceeds P22,000.00? It seems that the proposition poses more questions than answers, which leads us even more to conclude that the appropriate remedy is to refer these matters to Congress for them to exercise their inherent power to legislate laws.

Even Dean Diokno was of the opinion that if the Court declares the IPR unconstitutional, the remedy is to go to Congress. Thus:

x x x x

JUSTICE PERALTA:

Now, your position is to declare that the incremental penalty should be struck down as unconstitutional because it is absurd.

DEAN DIOKNO:

Absurd, it violates equal protection, Your Honor, and cruel and unusual punishment.

JUSTICE PERALTA:

Then what will be the penalty that we are going to impose if the amount is more than Twenty-Two Thousand (P22,000.00) Pesos.

DEAN DIOKNO:

Well, that would be for Congress to ... if this Court will declare the incremental penalty rule unconstitutional, then that would ... the void should be filled by Congress.

JUSTICE PERALTA:

But in your presentation, you were fixing the amount at One Hundred Thousand (P100,000.00) Pesos ...

DEAN DIOKNO:

Well, my presen ... (interrupted)

JUSTICE PERALTA:

For every One Hundred Thousand (P100,000.00) Pesos in excess of Twenty-Two Thousand (P22,000.00) Pesos you were suggesting an additional penalty of one (1) year, did I get you right?

DEAN DIOKNO:

Yes, Your Honor, that is, if the court will take the route of statutory interpretation.

JUSTICE PERALTA:

Ah ...

DEAN DIOKNO:

If the Court will say that they can go beyond the literal wording of the law...

JUSTICE PERALTA:

But if we de ... (interrupted)

DEAN DIOKNO:

....then....

JUSTICE PERALTA:

Ah, yeah. But if we declare the incremental penalty as unsconstitutional, the court cannot fix the amount ...

DEAN DIOKNO:

No, Your Honor.

JUSTICE PERALTA:

... as the equivalent of one, as an incremental penalty in excess of Twenty-Two Thousand (P22,000.00) Pesos.

DEAN DIOKNO:

No, Your Honor.

JUSTICE PERALTA:

The Court cannot do that.

DEAN DIOKNO:

Could not be.

JUSTICE PERALTA:

The only remedy is to go to Congress...

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

... and determine the value or the amount.

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

That will be equivalent to the incremental penalty of one (1) year in excess of Twenty-Two Thousand (P22,000.00) Pesos.

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

The amount in excess of Twenty-Two Thousand (P22,000.00) Pesos.

Thank you, Dean.

DEAN DIOKNO:

Thank you.

x x x x29

Dean Diokno also contends that Article 315 of the Revised Penal Code constitutes cruel and unusual punishment. Citing Solem v. Helm,30 Dean Diokno avers that the United States Federal Supreme Court has expanded the application of a similar Constitutional provision prohibiting cruel and unusual punishment, to the duration of the penalty, and not just its form. The court therein ruled that three things must be done to decide whether a sentence is proportional to a specific crime, viz.; (1) Compare the nature and gravity of the offense, and the harshness of the penalty; (2) Compare the sentences imposed on other criminals in the same jurisdiction, i.e., whether more serious crimes are subject to the same penalty or to less serious penalties; and (3) Compare the sentences imposed for commission of the same crime in other jurisdictions.

However, the case of Solem v. Helm cannot be applied in the present case, because in Solem what respondent therein deemed cruel was the penalty imposed by the state court of South Dakota after it took into account the latter’s recidivist statute and not the original penalty for uttering a "no account" check. Normally, the maximum punishment for the crime would have been five years imprisonment and a $5,000.00 fine. Nonetheless, respondent was sentenced to life imprisonment without the possibility of parole under South Dakota’s recidivist statute because of his six prior felony convictions. Surely, the factual antecedents of Solem are different from the present controversy.

With respect to the crime of Qualified Theft, however, it is true that the imposable penalty for the offense is high. Nevertheless, the rationale for the imposition of a higher penalty against a domestic servant is the fact that in the commission of the crime, the helper will essentially gravely abuse the trust and confidence reposed upon her by her employer. After accepting and allowing the helper to be a member of the household, thus entrusting upon such person the protection and safekeeping of the employer’s loved ones and properties, a subsequent betrayal of that trust is so repulsive as to warrant the necessity of imposing a higher penalty to deter the commission of such wrongful acts.

There are other crimes where the penalty of fine and/or imprisonment are dependent on the subject matter of the crime and which, by adopting the proposal, may create serious implications. For example, in the crime of Malversation, the penalty imposed depends on the amount of the money malversed by the public official, thus:

Art. 217. Malversation of public funds or property; Presumption of malversation. — Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same or shall take or misappropriate or shall consent, through abandonment or negligence, shall permit any other person to take such public funds, or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the misappropriation or malversation does not exceed two hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than two hundred pesos but does not exceed six thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the amount involved is more than six thousand pesos but is less than twelve thousand pesos.

4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount involved is more than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use.

The above-provisions contemplate a situation wherein the Government loses money due to the unlawful acts of the offender. Thus, following the proposal, if the amount malversed is P200.00 (under the existing law), the amount now becomes P20,000.00 and the penalty is prision correccional in its medium and maximum periods (2 years 4 months and 1 day to 6 years). The penalty may not be commensurate to the act of embezzlement ofP20,000.00 compared to the acts committed by public officials punishable by a special law, i.e., Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act, specifically Section 3,31 wherein the injury caused to the government is not generally defined by any monetary amount, the penalty (6 years and 1 month to 15 years)32under the Anti-Graft Law will now become higher. This should not be the case, because in the crime of malversation, the public official takes advantage of his public position to embezzle the fund or property of the government entrusted to him.

The said inequity is also apparent in the crime of Robbery with force upon things (inhabited or uninhabited) where the value of the thing unlawfully taken and the act of unlawful entry are the bases of the penalty imposable, and also, in Malicious Mischief, where the penalty of imprisonment or fine is dependent on the cost of the damage caused.

In Robbery with force upon things (inhabited or uninhabited), if we increase the value of the thing unlawfully taken, as proposed in the ponencia, the sole basis of the penalty will now be the value of the thing unlawfully taken and no longer the element of force employed in entering the premises. It may likewise cause an inequity between the crime of Qualified Trespass to Dwelling under Article 280, and this kind of robbery because the former is punishable by prision correccional in its medium and maximum periods (2 years, 4 months and 1 day to 6 years) and a fine not exceeding P1,000.00 (P100,000.00 now if the ratio is 1:100) where entrance to the premises is with violence or intimidation, which is the main justification of the penalty. Whereas in the crime of Robbery with force upon things, it is punished with a penalty of prision mayor (6 years and 1 day to 12 years) if the intruder is unarmed without the penalty of Fine despite the fact that it is not merely the illegal entry that is the basis of the penalty but likewise the unlawful taking.

Furthermore, in the crime of Other Mischiefs under Article 329, the highest penalty that can be imposed is arresto mayor in its medium and maximum periods (2 months and 1 day to 6 months) if the value of the damage caused exceeds P1,000.00, but under the proposal, the value of the damage will now become P100,000.00 (1:100), and still punishable by arresto mayor (1 month and 1 day to 6 months). And, if the value of the damaged property does not exceed P200.00, the penalty is arresto menor or a fine of not less than the value of the damage caused and not more than P200.00, if the amount involved does not exceed P200.00 or cannot be estimated. Under the proposal, P200.00 will now become P20,000.00, which simply means that the fine of P200.00 under the existing law will now become P20,000.00. The amount of Fine under this situation will now become excessive and afflictive in nature despite the fact that the offense is categorized as a light felony penalized with a light penalty under Article 26 of the RPC.33 Unless we also amend Article 26 of the RPC, there will be grave implications on the penalty of Fine, but changing the same through Court decision, either expressly or impliedly, may not be legally and constitutionally feasible.

There are other crimes against property and swindling in the RPC that may also be affected by the proposal, such as those that impose imprisonment and/or Fine as a penalty based on the value of the damage caused, to wit: Article 311 (Theft of the property of the National Library and National Museum), Article 312 (Occupation of real property or usurpation of real rights in property), Article 313 (Altering boundaries or landmarks), Article 316 (Other forms of swindling), Article 317 (Swindling a minor), Article 318 (Other deceits), Article 328 (Special cases of malicious mischief) and Article 331 (Destroying or damaging statues, public monuments or paintings). Other crimes that impose Fine as a penalty will also be affected, such as: Article 213 (Frauds against the public treasury and similar offenses), Article 215 (Prohibited Transactions),

Article 216 (Possession of prohibited interest by a public officer), Article 218 (Failure of accountable officer to render accounts), Article 219 (Failure of a responsible public officer to render accounts before leaving the country).

In addition, the proposal will not only affect crimes under the RPC. It will also affect crimes which are punishable by special penal laws, such as Illegal Logging or Violation of Section 68 of Presidential Decree No. 705, as amended.34 The law treats cutting, gathering, collecting and possessing timber or other forest products without license as an offense as grave as and equivalent to the felony of qualified theft.35 Under the law, the offender shall be punished with the penalties imposed under Articles 309 and 31036 of the Revised Penal Code, which means that the penalty imposable for the offense is, again, based on the value of the timber or forest products involved in the offense. Now, if we accept the said proposal in the crime of Theft, will this particular crime of Illegal Logging be amended also in so far as the penalty is concerned because the penalty is dependent on Articles 309 and 310 of the RPC? The answer is in the negative because the soundness of this particular law is not in question.

With the numerous crimes defined and penalized under the Revised Penal Code and Special Laws, and other related provisions of these laws affected by the proposal, a thorough study is needed to determine its effectivity and necessity. There may be some provisions of the law that should be amended; nevertheless, this Court is in no position to conclude as to the intentions of the framers of the Revised Penal Code by merely making a study of the applicability of the penalties imposable in the present times. Such is not within the competence of the Court but of the Legislature which is empowered to conduct public hearings on the matter, consult legal luminaries and who, after due proceedings, can decide whether or not to amend or to revise the questioned law or other laws, or even create a new legislation which will adopt to the times.

Admittedly, Congress is aware that there is an urgent need to amend the Revised Penal Code. During the oral arguments, counsel for the Senate informed the Court that at present, fifty-six (56) bills are now pending in the Senate seeking to amend the Revised Penal Code,37 each one proposing much needed change and updates to archaic laws that were promulgated decades ago when the political, socio-economic, and cultural settings were far different from today’s conditions.

Verily, the primordial duty of the Court is merely to apply the law in such a way that it shall not usurp legislative powers by judicial legislation and that in the course of such application or construction, it should not make or supervise legislation, or under the guise of interpretation, modify, revise, amend, distort, remodel, or rewrite the law, or give the law a construction which is repugnant to its terms.38 The Court should apply the law in a manner that would give effect to their letter and spirit, especially when the law is clear as to its intent and purpose. Succinctly put, the Court should shy away from encroaching upon the primary function of a co-equal branch of the Government; otherwise, this would lead to an inexcusable breach of the doctrine of separation of powers by means of judicial legislation.

Moreover, it is to be noted that civil indemnity is, technically, not a penalty or a Fine; hence, it can be increased by the Court when appropriate. Article 2206 of the Civil Code provides:

Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos, even though there may have been mitigating circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death;

(2) If the deceased was obliged to give support according to the provisions of Article 291, the recipient who is not an heir called to the decedent's inheritance by the law of testate or intestate succession, may demand support from the person causing the death, for a period not exceeding five years, the exact duration to be fixed by the court;

(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased.

In our jurisdiction, civil indemnity is awarded to the offended party as a kind of monetary restitution or compensation to the victim for the damage or infraction that was done to the latter by the accused, which in a sense only covers the civil aspect. Precisely, it is civil indemnity. Thus, in a crime where a person dies, in addition to the penalty of imprisonment imposed to the offender, the accused is also ordered to pay the victim a sum of money as restitution. Clearly, this award of civil indemnity due to the death of the victim could not be contemplated as akin to the value of a thing that is unlawfully taken which is the basis in the imposition of the proper penalty in certain crimes. Thus, the reasoning in increasing the value of civil indemnity awarded in some offense cannot be the same reasoning that would sustain the adoption of the suggested ratio. Also, it is apparent from Article 2206 that the law only imposes a minimum amount for awards of civil indemnity, which is P3,000.00. The law did not provide for a ceiling. Thus, although the minimum amount for the award cannot be changed, increasing the amount awarded as civil indemnity can be validly modified and increased when the present circumstance warrants it. Corollarily, moral damages under Article 222039 of the Civil Code also does not fix the amount of damages that can be awarded. It is discretionary upon the court, depending on the mental anguish or the suffering of the private offended party. The amount of moral damages can, in relation to civil indemnity, be adjusted so long as it does not exceed the award of civil indemnity.

In addition, some may view the penalty provided by law for the offense committed as tantamount to cruel punishment. However, all penalties are generally harsh, being punitive in nature. Whether or not they are excessive or amount to cruel punishment is a matter that should be left to lawmakers. It is the prerogative of the courts to apply the law, especially when they are clear and not subject to any other interpretation than that which is plainly written.

Similar to the argument of Dean Diokno, one of Justice Antonio Carpio’s opinions is that the incremental penalty provision should be declared unconstitutional and that the courts should only impose the penalty corresponding to the amount of P22,000.00, regardless if the actual amount involved exceeds P22,000.00. As suggested, however, from now until the law is properly amended by Congress, all crimes of Estafa will no longer be punished by the appropriate penalty. A conundrum in the regular course of criminal justice would occur when every accused convicted of the crime of estafa will be meted penalties different from the proper penalty that should be imposed. Such drastic twist in the application of the law has no legal basis and directly runs counter to what the law provides.

It should be noted that the death penalty was reintroduced in the dispensation of criminal justice by the Ramos Administration by virtue of Republic Act No. 765940 in December 1993. The said law has been questioned before this Court. There is, arguably, no punishment more cruel than that of death. Yet still, from the time the death penalty was re-imposed until its lifting in June 2006 by Republic Act No. 9346,41 the Court did not impede the imposition of the death penalty on the ground that it is a "cruel punishment" within the purview of Section 19 (1),42Article III of the Constitution. Ultimately, it was through an act of Congress suspending the imposition of the death penalty that led to its non-imposition and not via the intervention of the Court.

Even if the imposable penalty amounts to cruel punishment, the Court cannot declare the provision of the law from which the proper penalty emanates unconstitutional in the present action. Not only is it violative of due process, considering that the State and the concerned parties were not given the opportunity to comment on the subject matter, it is settled that the constitutionality of a statute cannot be attacked collaterally because constitutionality issues must be pleaded directly and not collaterally,43 more so in the present controversy wherein the issues never touched upon the constitutionality of any of the provisions of the Revised Penal Code.

Besides, it has long been held that the prohibition of cruel and unusual punishments is generally aimed at the form or character of the punishment rather than its severity in respect of duration or amount, and applies to punishments which public sentiment has regarded as cruel or obsolete, for instance, those inflicted at the whipping post, or in the pillory, burning at the stake, breaking on the wheel, disemboweling, and the like. Fine and imprisonment would not thus be within the prohibition.44

It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution. The fact that the punishment authorized by the statute is severe does not make it cruel and unusual. Expressed in other terms, it has been held that to come under the ban, the punishment must be "flagrantly and plainly oppressive," "wholly disproportionate to the nature of the offense as to shock the moral sense of the community."45

Cruel as it may be, as discussed above, it is for the Congress to amend the law and adapt it to our modern time.

The solution to the present controversy could not be solved by merely adjusting the questioned monetary values to the present value of money based only on the current inflation rate. There are other factors and variables that need to be taken into consideration, researched, and deliberated upon before the said values could be accurately and properly adjusted. The effects on the society, the injured party, the accused, its socio-economic impact, and the likes must be painstakingly evaluated and weighed upon in order to arrive at a wholistic change that all of us believe should be made to our existing law. Dejectedly, the Court is ill-equipped, has no resources, and lacks sufficient personnel to conduct public hearings and sponsor studies and surveys to validly effect these changes in our Revised Penal Code. This function clearly and appropriately belongs to Congress. Even Professor Tadiar concedes to this conclusion, to wit:

x x x x

JUSTICE PERALTA:

Yeah, Just one question. You are suggesting that in order to determine the value of Peso you have to take into consideration several factors.

PROFESSOR TADIAR:

Yes.

JUSTICE PERALTA:

Per capita income.

PROFESSOR TADIAR:

Per capita income.

JUSTICE PERALTA:

Consumer price index.

PROFESSOR TADIAR:

Yeah.

JUSTICE PERALTA:

Inflation ...

PROFESSOR TADIAR:

Yes.

JUSTICE PERALTA:

... and so on. Is the Supreme Court equipped to determine those factors?

PROFESSOR TADIAR:

There are many ways by which the value of the Philippine Peso can be determined utilizing all of those economic terms.

JUSTICE PERALTA:

Yeah, but ...

PROFESSOR TADIAR:

And I don’t think it is within the power of the Supreme Court to pass upon and peg the value to One Hundred (P100.00) Pesos to ...

JUSTICE PERALTA:

Yeah.

PROFESSOR TADIAR:

... One (P1.00.00) Peso in 1930.

JUSTICE PERALTA:

That is legislative in nature.

PROFESSOR TADIAR:

That is my position that the Supreme Court ...

JUSTICE PERALTA:

Yeah, okay.

PROFESSOR TADIAR:

... has no power to utilize the power of judicial review to in order to adjust, to make the adjustment that is a power that belongs to the legislature.

JUSTICE PERALTA:

Thank you, Professor.

PROFESSOR TADIAR:

Thank you.46

Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno echoes the view that the role of the Court is not merely to dispense justice, but also the active duty to prevent injustice. Thus, in order to prevent injustice in the present controversy, the Court should not impose an obsolete penalty pegged eighty three years ago, but consider the proposed ratio of 1:100 as simply compensating for inflation. Furthermore, the Court has in the past taken into consideration "changed conditions" or "significant changes in circumstances" in its decisions.

Similarly, the Chief Justice is of the view that the Court is not delving into the validity of the substance of a statute. The issue is no different from the Court’s adjustment of indemnity in crimes against persons, which the Court had previously adjusted in light of current times, like in the case of People v. Pantoja.47 Besides, Article 10 of the Civil Code mandates a presumption that the lawmaking body intended right and justice to prevail.

With due respect to the opinions and proposals advanced by the Chief Justice and my Colleagues, all the proposals ultimately lead to prohibited judicial legislation. Short of being repetitious and as extensively discussed above, it is truly beyond the powers of the Court to legislate laws, such immense power belongs to Congress and the Court should refrain from crossing this clear-cut divide. With regard to civil indemnity, as elucidated before, this refers to civil liability which is awarded to the offended party as a kind of monetary restitution. It is truly based on the value of money. The same cannot be said on penalties because, as earlier stated, penalties are not only based on the value of money, but on several other factors. Further, since the law is silent as to the maximum amount that can be awarded and only pegged the minimum sum, increasing the amount granted as civil indemnity is not proscribed. Thus, it can be adjusted in light of current conditions.

Now, with regard to the penalty imposed in the present case, the CA modified the ruling of the RTC. The RTC imposed the indeterminate penalty of four (4) years and two (2) months of prision correccional in its medium period, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal in its minimum period, as maximum. However, the CA imposed the indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum, plus one (1) year for each additionalP10,000.00, or a total of seven (7) years.

In computing the penalty for this type of estafa, this Court's ruling in Cosme, Jr. v. People48 is highly instructive, thus:

With respect to the imposable penalty, Article 315 of the Revised Penal Code provides:

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

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

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

Maximum - 6 years, 8 months, 21 days to 8 years

Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days

Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days49

To compute the maximum period of the prescribed penalty, prisión correccional maximum to prisión mayor minimum should be divided into three equal portions of time each of which portion shall be deemed to form one period in accordance with Article 6550 of the RPC.51 In the present case, the amount involved is P98,000.00, which exceeds P22,000.00, thus, the maximum penalty imposable should be within the maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor. Article 315 also states that a period of one year shall be added to the penalty for every additional P10,000.00 defrauded in excess of P22,000.00, but in no case shall the total penalty which may be imposed exceed 20 years.

Considering that the amount of P98,000.00 is P76,000.00 more than the P22,000.00 ceiling set by law, then, adding one year for each additional P10,000.00, the maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor minimum would be increased by 7 years. Taking the maximum of the prescribed penalty, which is 8 years, plus an additional 7 years, the maximum of the indeterminate penalty is 15 years.

Applying the Indeterminate Sentence Law, since the penalty prescribed by law for the estafa charge against petitioner is prision correccional maximum to prision mayor minimum, the penalty next lower would then be prision correccional in its minimum and medium periods.

Thus, the minimum term of the indeterminate sentence should be anywhere from 6 months and 1 day to 4 years and 2 months.

One final note, the Court should give Congress a chance to perform its primordial duty of lawmaking. The Court should not pre-empt Congress and usurp its inherent powers of making and enacting laws. While it may be the most expeditious approach, a short cut by judicial fiat is a dangerous proposition, lest the Court dare trespass on prohibited judicial legislation.

WHEREFORE, the Petition for Review on Certiorari dated November 5, 2007 of petitioner Lito Corpuz is hereby DENIED. Consequently, the Decision dated March 22, 2007 and Resolution dated September 5, 2007 of the Court of Appeals, which affirmed with modification the Decision dated July 30, 2004 of the Regional Trial Court, Branch 46, San Fernando City, finding petitioner guilty beyond reasonable doubt of the crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of the Revised Penal Code, are hereby AFFIRMED with MODIFICATION that the penalty imposed is the indeterminate penalty of imprisonment ranging from THREE (3) YEARS, TWO (2) MONTHS and ELEVEN DAYS of prision correccional, as minimum, to FIFTEEN (15) YEARS of reclusion temporal as maximum.

Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision be furnished the President of the Republic of the Philippines, through the Department of Justice.

Also, let a copy of this Decision be furnished the President of the Senate and the Speaker of the House of Representatives.

SO ORDERED.

G.R. Nos. 138874-75               January 31, 2006

PEOPLE OF THE PHILIPPINES, Appellee, vs.FRANCISCO JUAN LARRAÑAGA alias "PACO;" JOSMAN AZNAR; ROWEN ADLAWAN alias "WESLEY;" ALBERT CAÑO alias "ALLAN PAHAK;" ARIEL BALANSAG; DAVIDSON VALIENTE RUSIA alias 'TISOY TAGALOG;" JAMES ANTHONY UY alias "WANGWANG;" and JAMES ANDREW UY alias "MM," Appellants.

R E S O L U T I O N

PER CURIAM:

Most jurisdictions recognize age as a barrier to having full responsibility over one’s action.1 Our legal system, for instance, does not punish a youth as it would an adult, and it sees youthful misconduct as evidence of unreasoned or impaired judgment. Thus, in a myriad of cases, we have applied the privileged mitigating circumstance of minority embodied in Article 68 of the Revised Penal Code -- the rationale of which is to show mercy and some extent of leniency in favor of an accused who, by

reason of his age, is presumed to have acted with less discernment. The case at bar is another instance when the privileged mitigating circumstance of minority must apply.

For our resolution is the motion for reconsideration2 filed by brothers James Anthony and James Andrew, both surnamed Uy, praying for the reduction of the penalties we imposed upon the latter on the ground that he was a minor at the time the crimes were committed.

A brief review of the pertinent facts is imperative.

On February 3, 2004, we rendered a Decision3 convicting the Uy brothers, together with Francisco Juan Larrañaga, Josman Aznar, Rowen Adlawan, Alberto Caño and Ariel Balansag of the crimes of (a) special complex crime of kidnapping and serious illegal detention with homicide and rape; and (b) simple kidnapping and serious illegal detention. The dispositive portion of the Decision reads:

WHEREFORE, the Decision of the Regional Trial Court, Branch 7, Cebu City in Criminal Cases Nos. CBU 45303 and 45304 is AFFIRMED with the following MODIFICATIONS:

(1) In Criminal Case No. CBU-45303, appellants FRANCISCO JUAN LARRAÑAGA alias ‘PACO;’ JOSMAN AZNAR; ROWEN ADLAWAN alias ‘WESLEY;’ ALBERTO CAÑO alias ‘ALLAN PAHAK;’ ARIEL BALANSAG; and JAMES ANDREW UY alias ‘MM,’ are found guilty beyond reasonable doubt of the special complex crime of kidnapping and serious illegal detention with homicide and rape and are sentenced to suffer the penalty of DEATH by lethal injection;

(2) In Criminal Case No. CBU-45304, appellants FRANCISCO JUAN LARRAÑAGA alias ‘PACO’; JOSMAN AZNAR; ROWEN ADLAWAN alias ‘WESLEY;’ ALBERTO CAÑO alias ‘ALLAN PAHAK;’ ARIEL BALANSAG; and JAMES ANDREW UY alias ‘MM,’ are found guilty beyond reasonable doubt of simple kidnapping and serious illegal detention and are sentenced to suffer the penalty of RECLUSION PERPETUA;

(3) In Criminal Case No. CBU-45303, appellant JAMES ANTHONY UY who was a minor at the time the crime was committed, is likewise found guilty beyond reasonable doubt of the special complex crime of kidnapping and serious illegal detention with homicide and rape and is hereby sentenced to suffer the penalty of RECLUSION PERPETUA; in Criminal Case No. CBU-45304, he is declared guilty of simple kidnapping and serious illegal detention and is sentenced to suffer the penalty of TWELVE (12) years ofprision mayor in its maximum period, as MINIMUM, to seventeen (17) years of reclusion temporal in its medium period, as MAXIMUM;

(4) Appellants are ordered to pay jointly and severally the heirs of Marijoy and Jacqueline, in each case, the amounts of (a) P100,000.00 as civil indemnity; (b) P25,000.00 as temperate damages; (c) P150,000.00 as moral damages; and (d) P100,000.00 as exemplary damages.

Three (3) Justices of the Court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority that the law is constitutional and the death penalty can be lawfully imposed in the case at bar.

In accordance with Article 83 of The Revised Penal Code, as amended by Section 25 of RA No. 7659, upon the finality of this Decision let the records of this case be forthwith forwarded to the Office of the President for the possible exercise of Her Excellency’s pardoning power.

SO ORDERED.

On March 23, 2004, the Uy brothers filed a motion for reconsideration anchored on the following grounds:

I

ACCUSED JAMES ANDREW S. UY WAS, LIKE HIS YOUNGER BROTHER JAMES ANTHONY S. UY, A MINOR AT THE TIME THE OFFENSES AT BAR ALLEGEDLY HAPPENED LAST JULY 16, 1997;

II

THE IDENTITY OF THE DEAD BODY OF THE WOMAN FOUND IN TAN-AWAN, CARCAR, CEBU LAST JULY 18, 1997 WAS NEVER CONCLUSIVELY ESTABLISHED THUS THE NEED FOR ITS EXHUMATION FOR DNA TESTING.4

The issues raised in the above motion being intertwined with those raised by Larrañaga, Aznar, Adlawan, Caño and Balansag in their separate motions for reconsideration, we deemed it appropriate to consolidate the motions. After a painstaking evaluation of every piece and specie of evidence presented before the trial court in response to the movants’ plea for the reversal of their conviction, still we are convinced that the movants’ guilt has been proved beyond reasonable doubt. Thus, in our Resolution dated July 21, 2005, we denied all the motions. However, left unresolved is the issue of James Andrew’s minority.

Hence, this disquisition.

In their motion, the Uy brothers claim that James Andrew was only seventeen (17) years and two hundred sixty two (262) days old at the time the crimes were committed. To substantiate such claim, he begs leave and pleads that we admit at this stage of the proceedings his (1) Certificate of Live Birth issued by the National Statistics Office, and (2) Baptismal Certificate. In the ultimate, he prays that his penalty be reduced, as in the case of his brother James Anthony.

Considering that the entry of James Andrew’s birth in the proffered Certificate of Live Birth is not legible, we required the Solicitor General (a) to secure from the City Civil Registrar of Cotobato, as well as the National Statistics Office, a clear and legible copy of James’ Certificate of Live Birth, and thereafter, (b) to file an extensive comment on the Uy brothers’ motion, solely on the issue of James Andrew’s minority.

On November 17, 2005, the Solicitor General submitted his comment. 1âwphi1 Attached therewith are clear and legible copies of James’ Certificate of Live Birth duly certified by the Office of the City Civil Registrar of Cotobato and the National Statistics Office. Both documents bear the entry October 27, 1979 as the date of his birth, thus, showing that he was indeed only 17 years and 262 days old when the crimes were committed on July 16, 1997.

Consequently, the Solicitor General recommended that the penalty imposed on James Andrew be modified as follows:

In Criminal Case No. CBU-45303 for the special complex crime of kidnapping and serious illegal detention with homicide and rape, the death penalty should be reduced to reclusion perpetua.

In Criminal Case No. CBU-45304, for the crime of simple kidnapping and serious illegal detention, the penalty of reclusion perpetua should be reduced to twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum, similar to the penalty imposed on his brother James Anthony in Criminal Case No. CBU-45303.

The motion is meritorious.

Article 68 of the Revised Penal Code provides:

ART. 68. – Penalty to be imposed upon a person under eighteen years of age. – When the offender is a minor under eighteen years and his case is one coming under the provisions of the paragraph next to the last of article 80 of this Code, the following rules shall be observed:

x x x

2. Upon a person over fifteen and under eighteen years of age the penalty next lower than that prescribed by law shall be imposed, but always in the proper period.

Thus, the imposable penalty on James Andrew, by reason of his minority, is one degree lower than the statutory penalty. The penalty for the special complex crime of kidnapping and serious illegal detention with homicide and rape, being death, one degree lower therefrom is reclusion perpetua.5 On the other hand, the penalty for simple kidnapping and serious illegal detention is reclusion perpetua to death. One degree lower therefrom is reclusion temporal.6 There being no aggravating and mitigating circumstance, the penalty to be imposed on James Andrew is reclusion temporal in its medium period. Applying the Indeterminate Sentence Law, he should be sentenced to suffer the penalty of twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum.7

Accordingly, in Criminal Case No. CBU-45303, the penalty of reclusion perpetua should be imposed upon James Andrew; while in Criminal Case No. CBU-45304, the imposable penalty upon him is twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum.

WHEREFORE, the motion for reconsideration is hereby GRANTED. Our Decision dated February 3, 2004 is AFFIRMED with the MODIFICATION that in Criminal Case No. CBU-45303, James Andrew Uy is sentenced to suffer the penalty of reclusion perpetua; while in Criminal Case No. CBU-45304, the penalty of twelve (12) years of prision mayor in its maximum period, as MINIMUM, to seventeen (17) years of reclusion temporal in its medium period, as maximum.

SO ORDERED.

G.R. No. 97471 February 17, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ISABELO PUNO y GUEVARRA, alias "Beloy," and ENRIQUE AMURAO y PUNO, alias "Enry," accused-appellants.

The Solicitor General for plaintiff-appellee.

Edward C. Castañeda for accused-appellants.

 

REGALADO, J.:

The primal issue for resolution in this case is whether accused-appellants committed the felony of kidnapping for ransom under Article 267 of the Revised Penal Code, as charged in the information; or a violation of Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974), as contended by the Solicitor General and found by the trial court; or the offense of simple robbery punished by Paragraph 5, Article 294 of the Revised Penal Code, as claimed by the defense.

In an information dated and filed on May 31, 1989 in the Regional Trial Court of Quezon City, Branch 103, as Criminal Case No. Q-57404 thereof, appellants were charged with kidnapping for ransom allegedly committed in the following manner:

That on or about the 13th day of January, 1988 in Quezon City, Philippines and within the jurisdiction of this Honorable Court, the said accused, being then private individuals, conspiring together, confederating with and mutually helping each other, did, then and there, wilfully, unlawfully and feloniously kidnap and carry away one MARIA DEL SOCORRO SARMIENTO y MUTUC * for the purpose of extorting ransom, to the damage and prejudice of the said offended party in such amount as may be awarded to her under the provisions of the Civil Code. 1

On a plea of not guilty when arraigned, 2 appellants went to trial which ultimately resulted in a judgment promulgated on September 26, 1990 finding them guilty of robbery with extortion committed on a highway, punishable under Presidential Decree No. 532, with this disposition in the fallo thereof:

ACCORDINGLY, judgment is hereby rendered finding the accused ISABELO PUNO and ENRIQUE AMURAO GUILTY as principals of robbery with extortion committed on a highway and, in accordance with P.D. 532, they are both sentenced to a jail term of reclusion perpetua.

The two accused are likewise ordered to pay jointly and severally the offended private victim Ma. Socorro M. Sarmiento the sum of P7,000.00 as actual damages and P3,000.00 as temperate damages. 3

Before us now in this appeal, appellants contend that the court a quo erred (1) in convicting them under Presidential Decree No. 532 since they were not expressly charged with a crime therein; (2) in applying Sections 4 and 5, Rule 120 of the Rules of Court since the charge under said presidential decree is not the offense proved and cannot rightly be used as the offense proved which is necessarily included in the offense charged. 4

For the material antecedents of this case, we quote with approval the following counter-statement of facts in the People's brief 5 which adopted the established findings of the court a quo, documenting the same with page references to the transcripts of the proceedings, and which we note are without any substantial divergence in the version proffered by the defense.

This is a prosecution for kidnapping for ransom allegedly done on January 13, 1988 by the two accused (tsn, Jan. 8, 1990, p. 7).

Mrs. Maria Socorro Mutuc-Sarmiento owns a bakeshop in Araneta Avenue, Quezon City called Nika Cakes and Pastries. She has a driver of her own just as her husband does (Ibid., pp. 4-6).

At around 5:00 in the afternoon of January 13, 1988, the accused Isabelo Puno, who is the personal driver of Mrs. Sarmiento's husband (who was then away in Davao purportedly on account of local election there) arrived at the bakeshop. He told Mrs. Socorro that her own driver Fred had to go to Pampanga on an emergency (something bad befell a child), so Isabelo will temporary (sic) take his place (Id., pp. 8-9).

Mrs. Socorro's time to go home to Valle Verde in Pasig came and so she got into the Mercedes Benz of her husband with Isabelo on (sic) the wheel. After the car turned right in (sic) a corner of Araneta Avenue, it stopped. A young man, accused Enrique Amurao, boarded the car beside the driver (Id., pp. 9-10).

Once inside, Enrique clambered on top of the back side of the front seat and went onto where Ma. Socorro was seated at the rear. He poke (sic) a gun at her (Id., p. 10).

Isabelo, who earlier told her that Enrique is his nephew announced, "ma'm, you know, I want to get money from you." She said she has money inside her bag and they may get it just so they will let her go. The bag contained P7,000.00 and was taken (Id., pp. 11-14).

Further on, the two told her they wanted P100,000.00 more. Ma. Socorro agreed to give them that but would they drop her at her gas station in Kamagong St., Makati where the money is? The car went about the Sta. Mesa area. Meanwhile, Ma. Socorro clutched her Rosary and prayed. Enrique's gun was menacingly storing (sic) at her soft bread (sic) brown, perfumed neck. He said he is an NPA and threatened her (Id., p.15).

The car sped off north towards the North superhighway. There Isabelo, Beloy as he is called, asked Ma. Socorro to issue a check for P100,000.00. Ma. Socorro complied. She drafted 3 checks in denominations of two for P30 thousand and one for P40 thousand. Enrique ordered her to swallow a pill but she refused (Id., pp. 17-23).

Beloy turned the car around towards Metro Manila. Later, he changed his mind and turned the car again towards Pampanga. Ma. Socorro, according to her, jumped out of the car then, crossed to the other side of the superhighway and, after some vehicles ignored her, she was finally able to flag down a fish vendors van. Her dress had blood because, according to Ma. Socorro, she fell down on the ground and was injured when she jumped out of the car. Her dress was torn too (Id., pp. 23-26).

On reaching Balintawak, Ma. Socorro reported the matter to CAPCOM (Id., p. 27).

Both accused were, day after, arrested. Enrique was arrested trying to encash Ma. Socorro's P40,000.00 check at PCI Bank, Makati. (tsn, Oct. 18, 1989, pp. 10-13) 6

As observed by the court below, the defense does not dispute said narrative of complainant, except that, according to appellant Puno, he stopped the car at North Diversion and freely allowed complainant to step out of the car. He even slowed the car down as he drove away, until he saw that his employer had gotten a ride, and he claimed that she fell down when she stubbed her toe while running across the highway. 7

Appellants further testified that they brought the Mercedez Benz car to Dolores, San Fernando, Pampanga and parked it near a barangay or police outpost. They thereafter ate at a restaurant and divided their loot. 8 Much later, when he took the stand at the trial of this case, appellant Puno tried to mitigate his liability by explaining that he was in dire need of money for the medication of his ulcers. 9

On these relatively simple facts, and as noted at the start of this opinion, three theories have been advanced as to what crime was committed by appellants. The trial court cohered with the submission of the defense that the crime could not be kidnapping for ransom as charged in the information. We likewise agree.

Prefatorily, it is worth recalling an accepted tenet in criminal law that in the determination of the crime for which the accused should be held liable in those instances where his acts partake of the nature of variant offenses, and the same holds true with regard to the modifying or qualifying circumstances thereof, his motive and specific intent in perpetrating the acts complained of are invaluable aids in arriving at a correct appreciation and accurate conclusion thereon.

Thus, to illustrate, the motive of the accused has been held to be relevant or essential to determine the specific nature of the crime as, for instance, whether a murder was committed in the furtherance of rebellion in which case the latter absorbs the former, or whether the accused had his own personal motives for committing the murder independent of his membership in the rebellious movement in which case rebellion and murder would constitute separate offenses. 10 Also, where injuries were inflicted on a person in authority who was not then in the actual performance of his official duties, the motive of the offender assumes importance because if the attack was by reason of the previous performance of official duties by the person in authority, the crime would be direct assault; otherwise, it would only be physical injuries. 11

In the case at bar, there is no showing whatsoever that appellants had any motive, nurtured prior to or at the time they committed the wrongful acts against complainant, other than the extortion of money from her under the compulsion of threats or intimidation. This much is admitted by both appellants, without any other esoteric qualification or dubious justification. Appellant Puno, as already stated, candidly laid the blame for his predicament on his need for funds for, in his own testimony, "(w)hile we were along the way Mam (sic) Corina was telling me "Beloy, I know your family very well and I know that your (sic) not (a) bad person, why are you doing this?" I told her "Mam, (sic), because I need money and I had an ulcer and that I have been getting an (sic) advances from our office but they refused to give me any bale (sic). . . ." 12

With respect to the specific intent of appellants vis-a-vis the charge that they had kidnapped the victim, we can rely on the proverbial rule of ancient respectability that for this crime to exist, there must be indubitable proof that the actual intent of the malefactors was to deprive the offended party of her liberty, 13 and not where such restraint of her freedom of action was merely an incident in the commission of another offense primarily intended by the offenders. Hence, as early as United States vs. Ancheta, 14 and consistently reiterated thereafter, 15 it has been held that the detention and/or forcible taking away of the victims by the accused, even for an appreciable period of time but for the primary and ultimate purpose of killing them, holds the offenders liable for taking their lives or such other offenses they committed in relation thereto, but the incidental deprivation of the victims' liberty does not constitute kidnapping or serious illegal detention.

That appellants in this case had no intention whatsoever to kidnap or deprive the complainant of her personal liberty is clearly demonstrated in the veritably confessional testimony of appellant Puno:

Q At what point did Mrs. Sarmiento handed (sic) the bag containing the P7,000.00 to your nephew?

A Santo Domingo Exit.

Q And how about the checks, where were you already when the checks was (sic) being handed to you?

A Also at the Sto. Domingo exit when she signed the checks.

Q If your intention was just to robbed (sic) her, why is it that you still did not allow her to stay at Sto. Domingo, after all you already received the money and the checks?

A Because we had an agreement with her that when she signed the checks we will take her to her house at Villa (sic) Verde.

Q And why did you not bring her back to her house at Valle Verde when she is (sic) already given you the checks?

A Because while we were on the way back I (sic) came to my mind that if we reach Balintawak or some other place along the way we might be apprehended by the police. So when we reached Santa Rita exit I told her "Mam (sic) we will already stop and allow you to get out of the car." 16

Neither can we consider the amounts given to appellants as equivalent to or in the nature of ransom, considering the immediacy of their obtention thereof from the complainant personally. Ransom, in municipal criminal law, is the money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases from captivity. 17 It can hardly be assumed that when complainant readily gave the cash and checks demanded from her at gun point, what she gave under the circumstances of this case can be equated with or was in the concept of ransom in the law of kidnapping. These were merely amounts involuntarily surrendered by the victim upon the occasion of a robbery or of which she was summarily divested by appellants. Accordingly, while we hold that the crime committed is robbery as defined in Article 293 of the Code, we, however, reject the theory of the trial court that the same constitutes the highway robbery contemplated in and punished by Presidential Decree No. 532.

The lower court, in support of its theory, offers this ratiocination:

The court agrees that the crime is robbery. But it is also clear from the allegation in the information that the victim was carried away and extorted for more money. The accused admitted that the robbery was carried on from Araneta Avenue up to the North Superhighway. They likewise admitted that along the way they intimidated Ma. Socorro to produce more money that she had with her at the time for which reason Ma. Socorro, not having more cash, drew out three checks. . . .

In view of the foregoing the court is of the opinion that the crimes committed is that punishable under P.D. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974)

under which where robbery on the highway is accompanied by extortion the penalty is reclusion perpetua. 18

The Solicitor General concurs, with the observation that pursuant to the repealing clause in Section 5 of said decree, "P.D. No- 532 is a modification of the provisions of the Revised Penal Code, particularly Article 267 which are inconsistent with it." 19 Such opinion and complementary submission consequently necessitate an evaluation of the correct interplay between and the legal effects of Presidential Decree No. 532 on the pertinent Provisions of the Revised Penal Code, on which matter we are not aware that any definitive pronouncement has as yet been made.

Contrary to the postulation of the Solicitor General, Presidential Decree No. 532 is not a modification of Article 267 of the Revised Penal Code on kidnapping and serious illegal detention, but of Articles 306 and 307 on brigandage. This is evident from the fact that the relevant portion thereof which treats of "highway robbery" invariably uses this term in the alternative and synonymously with brigandage, that is, as "highway robbery/brigandage." This is but in line with our previous ruling, and which still holds sway in criminal law, that highway robbers (ladrones) and brigands are synonymous. 20

Harking back to the origin of our law on brigandage (bandolerismo) in order to put our discussion thereon in the proper context and perspective, we find that a band of brigands, also known as highwaymen or freebooters, is more than a gang of ordinary robbers. Jurisprudence on the matter reveals that during the early part of the American occupation of our country, roving bands were organized for robbery and pillage and since the then existing law against robbery was inadequate to cope with such moving bands of outlaws, the Brigandage Law was passed. 21

The following salient distinctions between brigandage and robbery are succinctly explained in a treatise on the subject and are of continuing validity:

The main object of the Brigandage Law is to prevent the formation of bands of robbers. The heart of the offense consists in the formation of a band by more than three armed persons for the purpose indicated in art. 306. Such formation is sufficient to constitute a violation of art. 306. It would not be necessary to show, in a prosecution under it, that a member or members of the band actually committed robbery or kidnapping or any other purpose attainable by violent means. The crime is proven when the organization and purpose of the band are shown to be such as are contemplated by art 306. On the other hand, if robbery is committed by a band, whose members were not primarily organized for the purpose of committing robbery or kidnapping, etc., the crime would not be brigandage, but only robbery. Simply because robbery was committed by a band of more than three armed persons, it would not follow that it was committed by a band of brigands. In the Spanish text of art. 306, it is required that the band "sala a los campos para dedicarse a robar." 22 (Emphasis supplied).

In fine, the purpose of brigandage is, inter alia, indiscriminate highway robbery. If the purpose is only a particular robbery, the crime is only robbery, or robbery in band if there are at least four armed participants. 23 The martial law legislator, in creating and promulgating Presidential Decree No. 532 for the objectives announced therein, could not have been unaware of that distinction and is presumed to have adopted the same, there being no indication to the contrary. This conclusion is buttressed by the rule on contemporaneous construction, since it is one drawn from the time when and the circumstances under which the decree to be construed originated. Contemporaneous exposition or construction is the best and strongest in the law. 24

Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of robbery perpetrated by outlaws indiscriminately against any person or persons on Philippine highways as defined therein, and not acts of robbery committed against only a predetermined or particular victim, is evident from the preambular clauses thereof, to wit:

WHEREAS, reports from law-enforcement agencies reveal that lawless elements are still committing acts of depredation upon the persons and properties of innocent and defenseless inhabitants who travel from one place to another, thereby disturbing the peace, order and tranquility of the nation andstunting the economic and social progress of the people:

WHEREAS, such acts of depredations constitute . . . highway robbery/brigandage which are among the highest forms of lawlessness condemned by the penal statutes of all countries;

WHEREAS, it is imperative that said lawless elements be discouraged from perpetrating such acts of depredaions by imposing heavy penalty on the offenders, with the end in view of eliminating all obstacles to the economic, social, educational and community progress of the people. (Emphasis supplied).

Indeed, it is hard to conceive of how a single act of robbery against a particular person chosen by the accused as their specific victim could be considered as committed on the "innocent and defenseless inhabitants who travel from one place to another," and which single act of depredation would be capable of "stunting the economic and social progress of the people" as to be considered "among the highest forms of lawlessness condemned by the penal statutes of all countries," and would accordingly constitute an obstacle "to the economic, social, educational and community progress of the people, " such that said isolated act would constitute the highway robbery or brigandage contemplated and punished in said decree. This would be an exaggeration bordering on the ridiculous.

True, Presidential Decree No. 532 did introduce amendments to Articles 306 and 307 of the Revised Penal Code by increasing the penalties, albeit limiting its applicability to the offenses stated therein when committed on the highways and without prejudice to the liability for such acts if committed. Furthermore, the decree does not require that there be at least four armed persons forming a band of robbers; and the presumption in the Code that said accused are brigands if they use unlicensed firearms no longer obtains under the decree. But, and this we broadly underline, the essence of brigandage under the Code as a crime of depredation wherein the unlawful acts are directed not only against specific, intended or preconceived victims, but against any and all prospective victims anywhere on the highway and whosoever they may potentially be, is the same as the concept of brigandage which is maintained in Presidential Decree No. 532, in the same manner as it was under its aforementioned precursor in the Code and, for that matter, under the old Brigandage Law. 25

Erroneous advertence is nevertheless made by the court below to the fact that the crime of robbery committed by appellants should be covered by the said amendatory decree just because it was committed on a highway. Aside from what has already been stressed regarding the absence of the requisite elements which thereby necessarily puts the offense charged outside the purview and intendment of that presidential issuance, it would be absurd to adopt a literal interpretation that any unlawful taking of property committed on our highways would be covered thereby. It is an elementary rule of statutory construction that the spirit or intent of the law should not be subordinated to the letter thereof. Trite as it may appear, we have perforce to stress the elementary caveat that he who considers merely the letter of an instrument goes but skin deep into its

meaning, 26 and the fundamental rule that criminal justice inclines in favor of the milder form of liability in case of doubt.

If the mere fact that the offense charged was committed on a highway would be the determinant for the application of Presidential Decree No. 532, it would not be farfetched to expect mischievous, if not absurd, effects on the corpus of our substantive criminal law. While we eschew resort to a reductio ad absurdum line of reasoning, we apprehend that the aforestated theory adopted by the trial court falls far short of the desideratum in the interpretation of laws, that is, to avoid absurdities and conflicts. For, if a motor vehicle, either stationary or moving on a highway, is forcibly taken at gun point by the accused who happened to take a fancy thereto, would the location of the vehicle at the time of the unlawful taking necessarily put the offense within the ambit of Presidential Decree No. 532, thus rendering nugatory the categorical provisions of the Anti-Carnapping Act of 1972? 27 And, if the scenario is one where the subject matter of the unlawful asportation is large cattle which are incidentally being herded along and traversing the same highway and are impulsively set upon by the accused, should we apply Presidential Decree No. 532 and completely disregard the explicit prescriptions in the Anti-Cattle Rustling Law of 1974? 28

We do not entertain any doubt, therefore, that the coincidental fact that the robbery in the present case was committed inside a car which, in the natural course of things, was casually operating on a highway, is not within the situation envisaged by Section 2(e) of the decree in its definition of terms. Besides, that particular provision precisely defines "highway robbery/brigandage" and, as we have amply demonstrated, the single act of robbery conceived and committed by appellants in this case does not constitute highway robbery or brigandage.

Accordingly, we hold that the offense committed by appellants is simple robbery defined in Article 293 and punished under Paragraph 5 of Article 294 of the Revised Penal Code with prision correccional in its maximum period to prision mayor in its medium period. Appellants have indisputably acted in conspiracy as shown by their concerted acts evidentiary of a unity of thought and community of purpose. In the determination of their respective liabilities, the aggravating circumstances of craft 29 shall be appreciated against both appellants and that of abuse of confidence shall be further applied against appellant Puno, with no mitigating circumstance in favor of either of them. At any rate, the intimidation having been made with the use of a firearm, the penalty shall be imposed in the maximum period as decreed by Article 295 of the Code.

We further hold that there is no procedural obstacle to the conviction of appellants of the crime of simple robbery upon an information charging them with kidnapping for ransom, since the former offense which has been proved is necessarily included in the latter offense with which they are charged. 30 For the former offense, it is sufficient that the elements of unlawful taking, with intent to gain, of personal property through intimidation of the owner or possessor thereof shall be, as it has been, proved in the case at bar. Intent to gain (animus lucrandi) is presumed to be alleged in an information where it is charged that there was unlawful taking (apoderamiento) and appropriation by the offender of the things subject of the robbery. 31

These foregoing elements are necessarily included in the information filed against appellants which, as formulated, allege that they wilfully, unlawfully and feloniously kidnapped and extorted ransom from the complainant. Such allegations, if not expressly but at the very least by necessary implication, clearly convey that the taking of complainant's money and checks (inaccurately termed as ransom) was unlawful, with intent to gain, and through intimidation. It cannot be logically argued that such a charge of kidnapping for ransom does not include but could negate the presence of any of the elements of robbery through intimidation of persons. 32

WHEREFORE, the assailed judgment of the trial court is hereby SET ASIDE and another one is rendered CONVICTING accused-appellants Isabelo Puno y Guevarra and Enrique Amurao y Puno

of robbery as Punished in Paragraph 5 of Article 294, in relation to Article 295, of the Revised Penal Code and IMPOSING on each of them an indeterminate sentence of four (4) years and two (2) months of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum, and jointly and severally pay the offended party, Maria del Socorro M. Sarmiento, the amounts of P7,000.00 as actual damages and P20,000.00 as moral damages, with costs.

SO ORDERED.

Narvasa, C.J., Feliciano, Nocon and Campos, Jr., JJ., concur.

[G.R. No. 13352728. December 13, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JEANETTE (GINETTE) YANSON-DUMANCAS, POL. COL. NICOLAS TORRES, POL. INSP. ADONIS ABETO, POL. OFFICER MARIO LAMIS Y FERNANDEZ, DOMINADOR GEROCHE Y MAHUSAY, JAIME GARGALLANO, ROLANDO R. FERNANDEZ, EDWIN DIVINAGRACIA, TEODY DELGADO, CESAR PECHA, CHARLES DUMANCAS (Acquitted), POL. OFFICER JOSE PAHAYUPAN (Acquitted), VICENTE CANUDAY, JR. (Acquitted), accused.

JEANETTE (GINETTE) YANSON-DUMANCAS, POL. COL. NICOLAS TORRES, POL. INSP. ADONIS ABETO, POL. OFFICER MARIO LAMIS Y FERNANDEZ, DOMINADOR GEROCHE Y MAHUSAY, JAIME GARGALLANO, ROLANDO R. FERNANDEZ, EDWIN DIVINAGRACIA, TEODY DELGADO, CESAR PECHA, accused-appellants.

D E C I S I O N

MELO, J.:

Accused-appellants were charged with Kidnapping for Ransom with Murder under two Informations which pertinently read:

CRIMINAL CASE NO. 94-15562

The undersigned hereby accuses JEANETTE YANSON-DUMANCAS, CHARLES DUMANCAS, (BOTH AS PRINCIPALS BY INDUCTION), POLICE COL.

NICOLAS M. TORRES (AS PRINCIPAL BY INDUCTION AND BY DIRECT AND/OR INDISPENSABLE COOPERATION), POLICE INSPECTOR ADONIS C. ABETO, POLICE OFFICERS MARIO LAMIS Y FERNANDEZ, JOSE PAHAYUPAN, VICENTE CANUDAY, JR. DOMINADOR GEROCHE Y MAHUSAY, JAIME GARGALLANO, ROLANDO R. FERNANDEZ, EDWIN DIVINAGRACIA, TEODY DELGADO, ALL AS PRINCIPALS BY PARTICIPATION, CESAR PECHA, and EDGAR HILADO, BOTH AS ACCESSORIES, of the crime of KIDNAPPING FOR RANSOM WITH MURDER, committed as follows:

That during the period beginning in the late morning of August 6, 1992 and ending the late evening of the following day in Sitio Pedrosa, Barangay Alijes, Bacolod City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and concurring in a common criminal intent and execution thereof with one another, save for the accessories, for the purpose of extracting or extorting the sum of P353,000.00, did, then and there willfully, unlawfully, and feloniously, to wit:

Acting upon the inducement of spouses Jeanette Yanson-Dumancas and Charles Dumancas, under the direction cooperation and undue influence, exerted by P/Col. Nicolas M. Torres, taking advantage of his position as the Station Commander of the Philippine National Police, Bacolod City Station, with the direct participation and cooperation of Police Inspector Adonis C. Abeto, other police officers Vicente Canuday, Jr., Jose Pahayupan, Mario Lamis, civilian (police) agents Rolando R. Fernandez, Edwin Divinagracia, Teody Delgado, Jaime Gargallano, also taking advantage of their respective positions, and Dominador Geroche, concurring and affirming in the said criminal design, with the use of motor vehicle abduct, kidnap and detain one RUFINO GARGAR, JR. and shortly thereafter at around 11 oclock in the evening of August 7, 1993 (1992), failing in their aforesaid common purpose to extort money and in furtherance of said conspiracy, with evident premeditation and treachery nocturnity and the use of motor vehicle, did then and there shot and kill the said victim, while being handcuffed and blindfolded; that accused Cesar Pecha and Edgar Hilado, with knowledge that said Gargar was victim of violence, did then and there secretly bury the corpse in a makeshift shallow grave or the purpose of concealing the crime of murder in order to prevent its discovery for a fee of P500.00 each; aforesaid act or acts has caused damage and prejudice to the heirs of said victim, to wit:

P50,000.00 as indemnity for death;50,000.00 actual damages;300,000.00 compensatory damages (lost income);

100,000.00 moral damages;50,000.00 exemplary damages.

CONTRARY TO LAW.

(pp. 1-3, Record Vol. I)

CRIMINAL CASE NO. 94-15563

The undersigned hereby accused JEANETTE YANSON-DUMANCAS, CHARLES DUMANCAS (BOTH AS PRINCIPALS BY INDUCTION), POLICE COL. NICOLAS M. TORRES (AS PRINCIPAL BY INDUCTION AND BY DIRECTION AND/OR INDISPENSABLE COOPERATION), POLICE INSPECTOR ADONIS C. ABETO, POLICE OFFICERS MARIO LAMIS Y FERNANDEZ, JOSE PAHAYUPAN, VICENTE CANUDAY, JR., DOMINADOR GEROCHE Y MAHUSAY, JAIME GARGALLANO, ROLANDO B. FERNANDEZ, EDWIN DIVINAGRACIA, TEODY DELGADO, ALL AS PRINCIPALS BY PARTICIPATION, CESAR PECHA and EDGAR HILADO, BOTH AS ACCESSORIES, of the crime of KIDNAPPING FOR RANSOM WITH MURDER, committed as follows:

That during the period beginning in the late morning of August 6, 1992 and ending the late evening of the following day in Sitio Pedrosa, Barangay Alijes, Bacolod City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and concurring in a common criminal intent and execution thereof with one another, save for the accessories, for the purpose of extracting or extorting the sum of P353,000.00, did, then and there willfully, unlawfully, and feloniously, to wit:

Acting upon the inducement of spouse Jeanette Yanson-Dumancas and Charles Dumancas, under the direction, cooperation and undue influence, exerted by P/Col. Nicolas M. Torres, taking advantage of his position as the Station Commander of the Philippine National Police, Bacolod City Station, with the direct participation and cooperation of Police Inspector Adonis C. Abeto, other police officers Vicente Canuday, Jr., Jose Pahayupan, Mario Lamis, civilian (police) agents Rolando R. Fernandez, Edwin Divinagracia, Teody Delgado, Jaime Gargallano, also taking advantage of their respective positions, and Dominador Geroche, concurring and affirming in the said criminal design, with the use of motor vehicle abduct, kidnap and detain one DANILO LUMANGYAO and shortly thereafter at around 11 oclock in the evening of August 7, 1993 (1992), failing in their aforesaid common purpose to extort

money and in furtherance of said conspiracy, with evident premeditation and treachery nocturnity and the use of motor vehicle, did then and there shot and kill the said victim, while being handcuffed and blindfolded, that accused CESAR PECHA and EDGAR HILADO, with knowledge that said Lumangyao was victim of violence, did then and there secretly bury the corpse in a makeshift shallow grave for the purpose of concealing the crime of murder in order to prevent its discovery for a fee of P500.00 each; aforesaid act or acts has caused damage and prejudice to the heirs of said victim, to wit:

P50,000.00 as indemnity for death;50,000.00 actual damages;300,000.00 compensatory damages (lost income);100,000.00 moral damages;P50,000.00 exemplary damages.

CONTRARY TO LAW.

(pp. 1-3, Record Vol. I-A)

All thirteen accused (excluding Edgar Hilado, who was then still at large) entered pleas of NOT GUILTY upon arraignment conducted on February 14, 1994 (per Certificates of Arraignment, Record Vol. I-A, pp. 372-384). After a joint trial (excluding accused Edgar Hilado, who upon arraignment on April 11, 1994, pleaded NOT GUILTY [Record, Vol. II, p. 866], was tried separately), judgment was rendered acquitting Charles Dumancas, Police Officers Jose Pahayupan and Vicente Canuday, Jr., but convicting the rest of the accused for the crime charged, to wit:

Wherefore, finding the first nine (9) Accused herein

1. JEANNETTE (GINNETTE) YANSON DUMANCAS2. POL. COL. NICOLAS TORRES3. POL. INSP. ADONIS ABETO4. POL. OFFICER MARIO LAMIS Y FERNANDEZ5. DOMINADOR GEROCHE Y MAHUSAY6. JAIME GARGALLANO7. ROLANDO R. FERNANDEZ8. EDWIN DIVINAGRACIA9. TEODY DELGADO and10.CESAR PECHA

GUILTY BEYOND REASONABLE DOUBT AS PRINCIPALS and CESAR PECHA as accessory in the two (2) informations filed in these cases, JUDGMENT is hereby rendered against them, as follows:

1. In CRIMINAL CASE NO. 94-15562, each of the Accused charged as principal is hereby sentenced to suffer the penalty of RECLUSION PERPETUA, with all the accessories of the law; to indemnify, jointly and severally, the Heirs of Rufino Gargar Jr. in the amount of P50,000.00 as indemnity for death; P25,000.00 as actual damages; P300,000.00 for compensatory damages (lost income); P100,000.00 in moral damages and P50,000.00 as exemplary damages; and to pay the cost. Accused CESAR PECHA who is charged as an accessory is hereby sentenced to suffer the penalty of imprisonment of two (2) years four (4) months and one (1) day of Prision Correccional as minimum to eight years and one day of Prision Mayor as maximum and to pay one-tenth of the cost;

2. In CRIMINAL CASE NO. 94-15563, each of the Accused charged as principal is hereby sentenced to suffer the penalty of Reclusion Perpetua, with all the accessories of the law, indemnify jointly and severally, the Heirs of DANILO LUMANGYAO in the amount of P50,000.00 as indemnity for death; P25,000.00 as actual damages; P100,000.00 as compensatory damages (lost income); P100,000.00 as moral damages; P50,000.00 as exemplary damages; and to pay the cost. Accused CESAR PECHA who is charged as an accessory is hereby sentenced to suffer the penalty of imprisonment of two (2) years four (4) months and one (1) day of prision correccional as minimum to eight (8) years and one (1) day of Prision Mayor as maximum and to pay one-tenth of the cost.

Accused CHARLES DUMANCAS, Police Officers JOSE PAHAYUPAN and VICENTE CANUDAY JR. are hereby Acquitted of the crime charged for failure of the prosecution to prove their guilt beyond reasonable doubt, with cost de officio.

SO ORDERED.

(pp. 272-273, Rollo.)

All ten accused filed their respective notices of appeal, and are now before us on review. After going through the voluminous record of the case, the Court adopts the following summary of facts by the court a quo, to wit:

February 20, 1992

Jeanette Yanson Dumancas was swindled in a fake gold bar transaction losing P352,000 to Danilo Lumangyao and his cohort.

10:30 A.M. August 5, 1992 present in the house of Rolando Fernandez were:

a) Dominador Geroche

b) Rolando Fernandezc) Jaime Gargallanod) Edwin Divinagraciae) Teody Delgadof) Mario Lamis andg) Moises Grandeza

On this occasion Mario Lamis brought out the plan to abduct Danilo Lumangyao and Rufino Gargar, Jr. because they swindled the Dumancas family.

4:30 P.M. August 5, 1992

The group of:

a) Dominador Gerocheb) Mario Lamisc) Rolando Fernandezd) Jaime Gargallanoe) Edwin Divinagraciaf) Teody Delgadog) Moises Grandeza

went to the office of Col. Nicolas Torres at PNP Headquarters where they met the colonel who told them that if you find these two people (referring to Lumangyao and Gargar) to bring and hide them at Dragon Lodge Motel.

8:30 A.M., August 6, 1992

State witness Moises Grandeza went to the house of Helen Tortocion to invite Danilo Lumangyao and Rufino Gargar Jr. to Tinolahan Eatery at Shopping Center Terminal but found only Gargar Jr. as Lumangyao went to the house of a certain Bardot at BBB Avenue, this City.

Moises Grandeza together with Gargar Jr. proceeded to the house of Bardot where they found Lumangyao and thereafter the three of them went to Tinolahan Eatery.

9:00 10:00 A.M. August 6, 1992

The three arrived at Tinulahan Eatery. Waiting for them were:

a) Dominador Gerocheb) Jaime Gargallanoc) Edwin Divinagraciad) Rolando Fernandeze) Teody Delgado; andf) Mario Lamis

Then a) Fernandez b) Geroche and c) Lamis entered Tinulahan and handcuffed Lumangyao and Gargar.

Waiting in the red Toyota Land Cruiser (Plate No. 689) were:

a) Gargallanob) Divinagracia; andc) Delgado

10:30 A.M. August 6, 1992

Lumangyao and Gargar were brought to the Office of Jeanette at Ceres Compound on board red toyota land cruiser by:

a) Moises Grandezab) Gargallanoc) Lamisd) Gerochee) Divinagraciaf) Delgado, andg) Fernandez

It was there that a) Divinagracia and b) Fernandez manhandled Lumangyao and Gargar. Jeanette then investigated the two victims on the whereabouts of the money that they swindled from her and the two answered that it was already spent.

It was then that Jeanette ordered Doming (Geroche) to take care of the two (Lumangyao and Gargar).

3:00 P.M. August 6, 1992

From Ceres Compound and while the group, together with the two victims, were already at Dragon Lodge Motel, thereafter,

a) Abetob) Pahayupan, andc) Canuday

arrived and investigated the two victims regarding the whereabouts of the gold bar and the two replied that it was with Helen Tortocion.

4:00 P.M. August 6, 1992

a) Moises Grandeza

b) Fernandez, andc) Geroche

went to the office of Col. Torres to inform him that Lumangyao and Gargar were already captured. So Col. Torres ordered them to keep the two victims so that nobody would see them. After receiving this instructions they went back to Dragon Lodge. Meanwhile, Geroche again interrogated the victims on where the money was if there was still any let and Geroche received the same negative reply.

Past 6:00 p.m. August 6, 1992

The group, with the two captives transferred to DHacienda Motel.

9:00 P.M. August 6, 1992

At DHacienda Motel, Jeanette and Charles Dumancas, together with Rose Ines arrived. Jeanette and Rose Ines investigated the victims where they kept the money that they swindled and the two gave the same reply that it was already gone. Jeanette then reiterated her order to Geroche to take care of the two.

9:30 P.M. August 6, 1992

The group transferred to Moonlight Inn Motel.

3:00 A.M. August 7, 1992

The group transferred again to Casamel Lodge Motel.

10:00 A.M. August 7, 1992

The group returned to DHacienda Motel and it was there that the plan was pursued to liquidate the two victims at 12:00 midnight.

The persons who conceived of this plan were:

a) Geroche, andb) Fernandez4:30 P.M. August 7, 19921) Canuday2) Abeto3) Dudero4) Lesaca, and5) Arollado

searched the residence of Helen Tortocion for the gold dust and simulated gold bar per search warrant 014-92 (Exh. D) but the search was fruitless.

7:30 P.M. August 7, 1992

The group, including the victims, partook of supper which was charged to Roy Yanson.

Then a) Abetob) Canuday, andc) Pahayupan

entered the room and asked Fernandez what they are going to do with the two victims to which Fernandez, replied that he will be responsible for the two.

11:00 P.M. August 7, 1992

a) Gerocheb) Lamisc) Fernandez, andd) Moises Grandeza

rode on the red Toyota Land Cruiser to conduct Geroche to his house. The victims were left behind.

From his house Geroche took an armalite rifle and the group then went back to DHacienda Motel.

12:00 P.M. August 7, 1992

a) Fernandez, andb) Lamisblindfolded and handcuffed Lumangyao and Gargar (Exh. A and A-1) and have them

board a vehicle, witha) Gargallano the driverb) Geroche sitting in front, and withc) Moises Grandeza also seated inside.

From DHacienda Motel, the group rode on the red toyota land cruiser. They proceeded to Hda. Pedrosa in Brgy. Alijis. When they arrived there the two victims were ordered to alight and sit by the side of the road. Geroche then asked Moises Grandeza to hold the hands of Lumangyao and then Gargar behind their backs. After that

a) Gargallano was the first to shoot. He shot Gargar at the back of his head (Exh. K) using a baby armalite. Then

b) Geroche followed suit by shooting Lumangyao with a .45 cal. Pistol at his right lower jaw (Exh. L).

Thereafter, the two dead bodies were loaded on board the land cruiser and brought to Hda. Siason where Pecha and Hilado buried them in the shallow grave they dug.

August 8, 1992

In Sitio Cabalagnan were recovered

a) Three (3) empty shells of armalite rifle and one .45 cal. Empty shell (Exh. G, G-2)

In Hda. Siason were recovered

a) the dead bodies of Rufino Gargar, Jr. and Danilo Lumangyao

b) Both of the two victims hands were handcuffed (Exh. A and A-1).

August 9, 1992

The same group again went to see Col. Torres in his office and reported the extermination of the two and Col. Torres promptly gave the instruction that you who are here inside, nobody knows what you have done but you have to hide because the NBI are after you.

August 10, 1992

a) Lamisb) Gerochec) Fernandezd) Divinagraciae) Gargallanof) Delgado, andg) Moises Grandeza

went back to the office of Col. Torres and this time he told the group to hide because the NBI are now investigating.

4:00 P.M. August 12, 1992

The same group that liquidated Lumangyao and Gargar again went back to the office of Col. Torres where they were asked by Col. Torres to escort him to Ceres Compound because he would like to borrow money from Ricardo Yanson as Col. Torres said that he has huge debts to pay. Col. Torres was able on this occasion, to meet Ricardo Yanson.

On this same day,

a) Moises Grandezab) Lamis, andc) Geroche

were picked up in a land cruiser by the driver of the Yansons to go to the house of Fernandez where Geroche will give the money to the group. Each member of the group, after the check, which was drawn by Yanson, was encashed were given the amount of P1,700.00 each.

August 13, 1992

Nenita Bello went to the office of Col. Torres to plead for his help in regard to the death of her relatives Lumangyao and Gargar but was promptly turned down by Colonel Torres with the curt remark that her case was very difficult because it involves the military and some big times.

The Sangguniang Panlungsod of Bacolod City also passed, on this day, Resolution No. 328, series of 1992 urging the National Bureau of Investigation (NBI) to conduct an investigation on the death of salvage victims Danilo Lumangyao and Rufino Gargar, Jr. as soon as possible (Exh. I).

September 24, 1992

The bodies of Rufino Gargar Jr. and Danilo Lumangyao were exhumed at Brgy. Buenavista Cemetery, Balintawak, Escalante, Negros Occidental and autopsies were conducted (Exhs. M and N) by Dr. Ricardo Jaboneta, Medico Legal Officer of the NBI.

a) Found on the body of Rufino Gargar, Jr. (per examination report, Exh. M) among others, were ligature marks, wrist joint, right side (Exh. M-2, and

b) Gunshot wound (Exh. M-1)

As to Danilo Lumangyao, the exhumation report (Exh. N disclose

a) Ligature marks, right wrist (Exh. N-2) and among others, and

b) Gunshot wound (Exh. N-1)

After the National Bureau of Investigation, Bacolod Office, conducted its investigation, the State Prosecutors of the Department of Justice took over and the result were the filing of these two criminal cases of Kidnapping with Murder against the above-named accused.

(pp. 73-85, Decision; pp. 202-214, Rollo.)

After a thorough review of the factual findings of the trial court vis--vis the evidence on record, we find ourselves unable to agree with the conclusions arrived at by the trial court convicting all 10 accused-appellants; rather, we concur in the suggestion of the Solicitor General, that accused-appellants Jeanette Yanson-Dumancas and Police Inspector Adonis Abeto should be acquitted. Too, by reason of his supervening death, accused-appellant Police Col. Nicolas Torres is acquitted. The judgment of conviction of the rest of the accused-appellants is to be affirmed.

A. Jeanette (Ginette) Yanson-Dumancas

On the case of accused-appellant Jeanette Yanson-Dumancas (Jeanette, for short), the information charged her of the crime of kidnapping for ransom with murder as principal by induction together with her husband, Charles, who was found by the trial court not guilty of the crime.

Article 17, Revised Penal Code, provides:

Art. 17. Principals. The following are considered principals:

1. Those who take a direct part in the execution of the act;

2. Those who directly force or induce others to commit it.

3. Those who cooperate in the commission of the offense by another act without which it would not have been accomplished.

What the Court now has to examine is whether or not sufficient evidence was adduced by the prosecution to prove beyond reasonable doubt that Jeanette indeed performed any of the following acts: (a) directly forcing the killers to commit the crime, or (b) directly inducing them to commit the crime.

There are 2 ways of directly forcing another to commit a crime, namely: (i) by using irresistible force, or (ii) by causing uncontrollable fear. Upon review of the testimony of all the witnesses of the prosecution, we find nothing to conclude that Jeanette used irresistible force or caused uncontrollable fear upon the other accused-appellants. From the factual findings of the trial court, it is patent that the plan to abduct and liquidate the victims was hatched on August 5, 1992 (10:30 A.M.) without Jeanettes involvement or participation whatsoever (p. 202, Rollo). The record is entirely bereft of any evidence to show that Jeanette directly forced the participants of the said meeting to come up with such plan, by either using irresistible force or causing uncontrollable fear. The only basis relied upon by the trial court in arriving at its conclusion that Jeanette is guilty of the crime as principal by inducement, is the supposed commands or order given by her to accused-appellant Dominador Geroche on two occasions (one inside the Ceres Compound: p. 205, Rollo, and the other in DHacienda Motel: p. 207, Rollo). By no stretch of the imagination may these so-called commands, standing alone, be considered as constituting irresistible force or causing uncontrollable fear.

Likewise, there are 2 ways of directly inducing another to commit a crime, namely: (i) by giving a price, or offering reward or promise, and (ii) by using words of command. The Court finds no evidence, as did the trial court, to show that Jeanette offered any price, reward, or promise to the rest of accused-appellants should they abduct and later kill the victims in this case. If at all, the prosecution witness mentioned the name of Ricardo Yanson as having lent money to accused-appellant Col. Torres to be used for paying the latters debts or obligations. But definitely, no money ever came from Jeanette herself.The trial courts surmise that the money delivered by Ricardo Yanson to the group was with the knowledge and approval of Jeanette in completely baseless.

The only matter left for consideration is whether the order supposedly given by Jeanette to accused-appellant Geroche to take care of the two constitutes words of command which may be considered sufficient basis to convict Jeanette as principal by inducement.

In order that a person may be convicted as principal by inducement, the following must be present: (1) the inducement be made with the intention of procuring the commission of the crime, and (2) such inducement be the determining cause of the commission by the material executor (U.S. vs. Indanan, 24 Phil. 203 [1913]). To constitute inducement, there must exist on the part of the inducer the most positiveresolution and the most persistent effort to secure the commission of the crime, together with the presentation to the person induced of the very strongest kind of temptation to commit the crime.

By the foregoing standards, the remark of Jeanette to take care of the two does not constitute the command required by law to justify a finding that she is guilty as a principal by inducement. As we held in U.S. vs. Indanan, supra, a chance word spoken without reflection, a wrong appreciation of a situation, an ironical phrase, a thoughtless act, may give birth to a thought of, or even a resolution to crime in the mind of one for some independent reason predisposed thereto without the one who spoke the word or performed the act having any expectation that his suggestion would be followed or any real intention that it produce the result. In such case, while the expression was imprudent and the results of it grave in the extreme, he (the one who spoke the word or performed the act) would not be guilty of the crime committed (p. 219).

Furthermore, the utterance which was supposedly the act of inducement, should precede the commission of the crime itself (People vs. Castillo, July 26, [1966]). In the case at bar, the abduction, which is an essential element of the crime charged (kidnapping for ransom with murder) has already taken place when Jeanette allegedly told accused-appellant Geroche to take care of the two. Said utterance could, therefore, not have been the inducement to commit the crime charged in this case.

Most importantly, it was duly proven by no less than the prosecution witness himself, Moises Grandeza, that the intention of Jeanette was but to allow the law to its course, when in his cross-examination, the following transpired:

ATTY. PARREO:

Q. And according to your testimony this morning, Jeanette Dumancas said, what more can we do that swindling transpired four months ago, definitely that money could nowhere be around. Would you confirm that you testified that this morning before this Court? Is that correct?

A. Yes, sir.

Q. Mr. Witness, this is very important. Please make a vivid recall. When Danilo Lumangyao made that answer that the money was not around and Jeanette Dumancas said whats the use, the money is now nowhere to be found as four months have already transpired, did not Jeanette Dumancas tell Doming: Doming, bring these two to the PC or police and I will call Atty. Geocadin so that proper cases could be filed against them? Kindly make a recall on that.

A. Yes, sir.

(pp. 54-55, tsn Feb. 14, 1994)

Thus, even the veracity of the allegation that Jeanette uttered the words: take care of the two is put to some reasonable doubt by the prosecution witness himself.  The remark, if made at all, cannot by any stretch of the imagination, be basis for the conviction of Jeanette.

People vs. Manambit (271 SCRA 344 [1997]) finds apt application, to wit:

In criminal law, the quantum of evidence for conviction is that which produces moral certainty in an unprejudiced mind that the accused is guilty beyond reasonable doubt. But, if the evidence is susceptible of two interpretations, one consistent with the innocence of the accused and the other consistent with his guilt, the accused must be acquitted.

(p. 385)

B. Police Inspector Adonis Abeto

With respect to accused-appellant Abeto, we quote with approval the observations of the Solicitor General as follows:

Police Inspector Adonis C. Abetos appeal is meritorious. Be it remembered that Abetos only participation was to serve the search warrant on Helen Tortocions residence and the subsequent interrogation of the two victims at the Hacienda Motel. He was never part of the conspiracy to abduct and liquidate the two victims. He is similarly situated as that of Canuday and Pahayupan.

The trial court, in acquitting Canuday and Pahayupan had this to say:

The evidence against Officer CANUDAY, JR. shows that in the afternoon of August 6, 1992, together with Officers ABETO and PAHAYUPAN, they went to Dragon Lodge Motel to investigate LUMANGYAO and GARGAR, JR. as to the whereabouts of the gold (fake) bar used in swindling JEANETTE. The two captives answered that it is with HELEN TORTOCION. A subsequent search of Tortocions house led by Officer ABETO yielded no fake gold bar. Meanwhile, in the evening of August 7, 1992, Officers ABETO, CANUDAY, JR., and PAHAYUPAN showed up at DHacienda Motel to inquire from FERNANDEZ what he is going to do with the two.

Like Officer Pahayupan, his being in the company of Officers Abeto, on the two occasions can not give rise, to without proof of previous agreement, a conspiracy. Thus, being present at the scene of the crime is not by itself sufficient to establish conspiracy, as already averted to previously. So does mere companionship.

(p. 1720-1721, Rollo.)

After due consideration of accused-appellant Abetos constitutional right to the presumption of innocence, coupled with the presumption of regularity in the performance of his official functions having simply followed the order of his superior officers, much is left to be desired before the Court can sustain the trial courts conviction of accused-appellant Abeto. The two presumptions negate the inadequate proof adduced against accused-appellant Abeto, who must perforce be acquitted, in

much the same manner that accused Canuday, Jr. and Pahayupan, who being similarly situated, were cleared and absolved.

C. Police Col. Nicolas M. Torres

As for accused-appellant Col. Torres, who passed away during the pendency of this appeal, the following rule laid down by this Court in People vs. Bayotas (236 SCRA 239 [1994]) applies:

1. Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability based solely thereon. As opined by Justice Regalado, in this regard, the death of the accused prior to final judgment terminates his criminal liability and only the civil liability directly arising from and based solely on the offense committed, i.e., civil liability ex delicto in senso strictiore.

2. Corollarily, the claim for civil liability survives notwithstanding the death of accused, if the same may also be predicated on a source of obligation other than delict. Article 1157 of the Civil Code enumerates these other sources of obligation from which the civil liability may arise as a result of the same act or omission:

a) Lawb) Contractsc) Quasi-contractsd) xxx xxx xxxe) Quasi-delicts

3. Where the civil liability survives, as explained in Number 2 above, an action for recovery therefor may be pursued but only by way of filing a separate civil action and subject to Section 1, Rule 111 of the 1985 Rules on Criminal Procedure as amended. This separate civil action may be enforced either against the executor/administrator of the estate of the accused, depending on the source of obligation upon which the same is based as explained above.

4. Finally, the private offended party need not fear a forfeiture of his right to file a separate civil action by prescription, in cases where during the prosecution of the criminal action and prior to its extinction, the private-offended party instituted together therewith the civil action. In such case, the statute of limitations on the civil liability is deemed interrupted during the pendency of the criminal case, conformably with provisions of Article 1155 of the Civil Code, that should thereby avoid any apprehension on possible privation of right by prescription.

(pp. 255-256)

With the application of the above set of rules to accused-appellant Torres, we hold that his death extinguished his criminal liability and the civil liability solely based thereon. Accordingly, the appeal of accused-appellant Torres is forthwith dismissed, such dismissal having the force and effect of an acquittal.

D. Pol. Officer Mario Lamis y Fernandez, Dominador Geroche y Mahusay, Jaime Gargallano, Rolando R. Fernandez, Edwin Divinagracia, Teody Delgado, and Cesar Pecha

Now, in regard to the other accused-appellants, after a careful review of the evidence, we find the same sufficient to affirm their conviction.

These accused-appellants assail the credence given by the trial court to the eyewitness account of Moises Grandeza. Even after a thorough perusal of their main appellants brief (pp. 327-498, Rollo), plus the separate briefs of accused-appellants Geroche (pp. 1453-1627) and Pecha (pp. 828-1009, Rollo), we find no cogent reason to depart from the well settled rule that when it comes to the issue of credibility of witnesses, the factual findings of the trial court is generally accorded great weight. In People vs. Taedo (266 SCRA 34 [1997]) the Court had occasion to reiterate the ruling that findings of fact of the trial court pertaining to the credibility of witnesses command great respect since it had the opportunity to observe their demeanor while they testified in court. The briefs of accused-appellants Lamis, et al. are replete with generalities and legal principles relating to the issue, but are utterly wanting in relevant particulars which may be the basis to rule that indeed, the trial court erred in lending full credence to the testimony of witness Grandeza on the matter. As held in People vs. Ramirez 266 SCRA 335 [1997]), unless the trial judge plainly overlooked certain facts of substance and value which, if considered, might affect the result of the case, his assessment on credibility must be respected.

In an attempt to buttress the contention that witness Grandezas testimony should not have been given credence by the court a quo, accused-appellants referred to supposed inconsistencies between Grandezas sworn statements before investigators vis--vis his testimony in court (pp. 349-359, Rollo; and 1465-1468, Rollo). The Court, however, is not impressed. This will not be the first occasion for us to hold that discrepancies between the statements of the affiant in his affidavit and those made by him on the witness stand do not necessarily discredit him since ex-parte affidavits are generally incomplete affidavits are generally subordinated in importance to open court declarations (People vs. Padao, 267 SCRA 64 [1997]). A contradiction between a witness affidavit and his testimony in open court may almost be explained by the fact that, being taken ex parte, an affidavit is often incomplete and inaccurate, sometimes from partial suggestions, and sometimes from the want of suggestions and inquiries (Sumalpong vs. Court of Appeals, 268 SCRA 764 [1997]). Grandezas perceived failure to mention anything in his 3 affidavits pertaining to the supposed meetings where the criminal plot was hatched, does not necessarily render his testimony in court unworthy of credit.

In his brief, accused-appellant Geroche cites Grandezas failure to identify one of their co-accused, Charles Dumancas, in open court, and the variance on the alleged instructions given by Jeanette, and the failure by Grandeza to mention the supposed meetings in his previous affidavits, as grounds to totally disregard Grandezas entire testimony for being unworthy of credence (pp. 1461-1469, Rollo). Indirectly, accused-appellant Geroche wants this Court to apply the maxim falsus in uno, falsus in omnibus. In this regard, we held in People vs. Pacis (130 SCRA 540 [1984]):

The maxim of falsus in uno falsus in omnibus, however, is not a positive rule of law. Neither is it an inflexible one of universal application. If a part of a witness testimony is found true, it cannot be disregarded entirely. The testimony of a witness may be believed in part and disbelieved in part.

(p. 546)

Also in People vs. Li Bun Juan (17 SCRA 934 [1966]) we ruled:

. . . In this connection it must be borne in mind that the principle falsus in uno falsus in omnibus is not an absolute one, and that it is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve it with respect to other facts. In People vs. Keller, 46 O.G. No. 7, pp. 3222-3223, the following was quoted with approval by the Court of Appeals from 1 Moore on Facts, p. 23:

18. Testimony may be partly credited and partly rejected. Trier of facts are not bound to believe all that any witness has said; they may accept some portions of his testimony and reject other portions, according to what seems to them, upon other facts and circumstances to be the truth . . . Even when witnesses are found to have deliberately falsified in some material particulars, the jury are not required to reject the whole of their uncorroborated testimony, but may credit such portions as they deem worthy of belief.

(p. 945)

The grounds relied upon by accused-appellant Geroche do not, therefore, constitute cogent reasons to discredit the testimony of eyewitness Grandeza in its entirety.

As regards accused-appellant Geroches defense of alibi, it is settled that alibi cannot prevail over positive identification (People vs. Garma, 271 SCRA 517 [1997]). Being easy to fabricate and difficult to disprove, alibi cannot prevail over and is worthless in the face of the positive identification of the accused-appellant (People vs. Datun, 272 SCRA 380 [1997]). Besides, the record is bereft of strong and

convincing evidence that accused-appellant could not have been at the scene of the crime because the certification proffered in support thereof stated that he was in Mt. Calandog only after the commission of the crime. And, as aptly stated by the Solicitor General in the Peoples brief, the trial court expressed puzzlement why this supposed fact was not mentioned in his July 3, 1993 affidavit . . . The first impulse of an innocent man when accused of a wrongdoing is to express his innocence at the first opportune time. The People can only conclude that Geroches defense of alibi is but an afterthought (p. 1723, Rollo).

As to accused-appellant Cesar Pechas case, the Court finds it difficult to believe that he had no knowledge that the 2 victims he was burying were victims of violence. The deceased were surely bloodied from their gunshot wounds and were in fact still handcuffed when exhumed from their shallow grave. It becomes almost impossible for accused-appellant Pecha not to at least, entertain doubts as to the absence of foul play in this case. He is thus guilty as an accessory to the crime committed under Paragraph 2, Article 19, of the Revised Penal Code, to wit:

ART. 19. Accessories. Accessories are those who, having knowledge of the commission of the crime, and without having participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manners:

1. By profiting themselves or assisting the offender to profit by the effects of the crime;

2. By concealing or destroying the body of the crime or the effects or instruments thereof, in order to prevent its discovery;

3. By harboring, concealing, or assisting in the escape of the principal of the crime, provided the accessory acts with abuse of his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to habitually guilty of some other crime.

All told, there are only reasons to affirm, and none to reverse, the trial courts conviction of accused-appellants Pol. Officer Mario Lamis y Fernandez, Dominador Geroche y Mahusay, Jaime Gargallano, Rolando R. Fernandez, Edwin Divinagracia, and Teody Delgado as principals by direct participation of the crime of kidnapping for ransom with murder, and that of Cesar Pecha as accessory thereto.

Under Article 267 of the Revised Penal Code, when the crime of kidnapping is committed for the purpose of extorting ransom from the victims, the penalty is death. However, since the crime was committed before the re-imposition of the death penalty, only reclusion perpetua is imposable upon all the accused-appellant found

guilty of the crime as principals. Accused-appellant Pechas penalty, as accessory is 2 degrees lower, which is prision mayor. Applying the indeterminate sentence law, the penalty to be imposed is 6 months and 1 day (the minimum of prision correccional), as minimum, up to 8 years (within the minimum period of prision mayor), as the maximum.

On the civil liabilities, accused-appellants who are herein convicted of the crime as principals are held solidarily liable for the amount of P50,000.00 to the heirs of each of the victims, as indemnity for their death. The amount of P50,000.00, each, by way moral damages and P25,000.00, each, as exemplary damages are already deemed sufficient. Accused-appellant Cesar Pecha is held liable for one-tenth of the above amounts. The appealed judgment is silent as to any justification for the other damages awarded and can therefore not be sustained on appeal.

WHEREFORE, accused-appellants JEANETTE YANSON-DUMANCAS and ADONIS ABETO are hereby ACQUITTED and forthwith ordered released from detention unless there may be reason for their further detention on other criminal cases. The case and appeal of NICOLAS TORRES is DISMISSED by reason of his death. The convictions of all the other accused-appellants for each case filed are AFFIRMED except for the modification that accused-appellant CESAR PECHA is sentenced for each case to an indeterminate prison term of six (6) months and one (1) day of prision correccional, as minimum up to eight (8) years of prision mayor, as maximum. Joint and several civil liability for the accused-appellants found guilty as principals, is reduced to P50,000.00 for each case, as indemnity for the death of each victim, P50,000.00 for each case, by way moral damages, and P25,000.00 for each case, by way of exemplary damages. The civil liability of accused-appellant Cesar Pecha is maintained at one-tenth of the above amount.

No special pronouncement is made as to costs.

SO ORDERED.

Vitug, Panganiban, Purisima, and Gonzaga-Reyes, JJ., concur.

G.R. No. 93485 June 27, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

PEDRO CEDENIO Y RASONABLE, FELIPE ANTIPOLO Y MISA, and JURITO AMARGA Y BAHI-AN, accused-appellants.

The Solicitor General for plaintiff-appellee.

Bartolome P. Leus and Lilian Doris S. Alejo for accused-appellants.

 

BELLOSILLO, J.:

The silence of the slumbering night was suddenly shattered by wailing cries for help. A sheet of fire raged, its crimson brightness overwhelming the velvet darkness enshrouding the sleepy barangay as it enveloped the lair of a mandadaut, 1 the flames only fading away with the first blush of dawn. As the smoke thinned and the ashes settled, the debris yielded five (5) fatalities among them a 22-day old female infant. Unlike the other victims, she did not sustain any stab or hack wound. She could have died of suffocation if not of burning.

Bonifacio Palomas recounts that on 26 November 1986, at about ten-thirty in the evening, he was roused from his sleep by bangs and slams and what sounded like women’s desperate cries for help coming from the direction of a neighbor’s house some thirty (30) meters away. It was Hilario Dorio’s house on fire. Peeping through his window, Palomas saw around seven (7) persons, among them appellants Pedro Cedenio, Jurito Amarga and Felipe Antipolo, emerge from the house of Dorio that was afire. The blaze was so bright he was able to recognize them. They were wielding unsheathed bolos. Afraid, Palomas remained home. The following morning, he narrated to Romeo, son of Hilario Dorio, what he witnessed the night before. Then he went with the younger Dorio to the rubble and saw the charred bodies of his father, Hilario Dorio, his mother Flora, his sister Maria, his niece Dioscora, and his maternal grandmother Nicanora Tabanao, said to be a family of sorcerers in the village. 2

Policarpio Apostadero was resting at around ten-thirty that fateful evening when he heard dogs barking. Thinking that a carabao may have gone astray, he went out of his house and headed for the cornfield. On his way, he noticed some thirty (30) meters away that the house of Hilario Dorio was on fire. From where he stood, he also saw people running out of the burning house. As the fierce fire illumed the surroundings, he recognized three (3) of them as his neighbors Pedro Cedenio, Jurito Amarga and Felipe Antipolo. When they drew nearer, he saw them holding bolos stained with blood so he retreated home. The next morning, he went to the burned house, joined the people already milling around, and saw the seared bodies of the five (5) members of the Dorio household. 3

Albino Calunod, Sr., Barangay Captain of Gandingan, Pangantucan, Bukidnon, also narrated that on 27 November 1986, at around seven o’clock in the morning, he was informed by Cristituto Gajo that the Dorio residence was gutted by fire the night before and that five (5) members of the Dorio family then occupying the house were burned to death. He thus proceeded to the scene and found the house razed to the ground. The five (5) bodies retrieved from the site were those of Hilario Dorio with wounds on the head and chest, Flora Dorio with a wound on the leg and head almost severed; Maria Dorio with wounds in the neck and left nipple; Nicanora Tabanao with a wound in the stomach; and, infant Dioscora Dorio with no wounds at all but charred to the bone. 4

Perfecto Antifuesto implicated Pedro Cedenio to the heinous crime. Antifuesto said that on 26 November 1986, at around seven o’clock in the evening, he was awakened by Cedenio who borrowed his bolo. At around three o’clock the following morning, Pito Panla-an woke him up to return the bolo earlier borrowed by Cedenio. It was placed in its scabbard and left leaning against the wall below the window. When Panla-an left, Antifuesto got his bolo and found bloodstains on its handle. Upon unsheathing it, he discovered fresh blood on its blade. Thirty (30) minutes later, Cedenio arrived and appeased him, ". . . do not worry, if this incident reaches the court I will answer (for) everything." 5

Although it appears that around nine (9) persons were involved in the commission of the felony, 6 only three (3) were convicted by the trial court. 7 Thus on 16 March 1990, it found Pedro Cedenio, Felipe Antipolo and Jurito Amarga guilty of "Arson with Multiple Murder as defined and penalized under Section 5 of Presidential Decree No. 1613 (amending the law on Arson)" 8 and sentenced them to reclusion perpetua. On 4 April 1990, they filed their notice of appeal.

Appellants now argue that there is no direct and positive evidence showing that they killed the victims and burned their house. The fact that prosecution witnesses saw them coming out of the burning house cannot by itself sustain the conviction as this lone circumstance is capable of several interpretations. If witnesses indeed saw them there, that must be the time when they (appellants) were trying to save the burning house and its occupants. They likewise contend that the testimonies of the prosecution witnesses are contrary to human experience and should not inspire credence. Thus the claim of witness Antifuesto that his bolo was borrowed and later returned with bloodstains is highly improbable for it is unnatural for criminals to openly bare the instruments used in perpetrating a crime.

Finally, appellants maintain that their denial and alibi should prevail over the insufficient evidence of the prosecution. In asserting their innocence, they allege that they were in the area because of their moral obligation to save life and property. Hence, appellant Cedenio claimed that he cut up banana trunks and hurled them into the fire while appellant Antipolo gathered soil and threw it into the blaze. While witnesses might have indeed seen them (appellants) coming out of the burning house, that was probably after they (appellants) checked on and tried to save the occupants of the house.

We are far from persuaded. While we cannot affirm the findings of the trial court that accused-appellants are guilty of "Arson with Multiple Murder as defined and penalized under Section 5 of Presidential Decree No. 1613" as there is no such offense, we nevertheless find them guilty of as many crimes as are alleged in the Information and proven by the evidence.

It is settled that there is no complex crime of arson with homicide. The late Mr. Chief Justice Ramon C. Aquino cites Groizard —

. . . when fire is used with the intent to kill a particular person who may be in a house and that objective is attained by burning the house, the crime is murder only. When the Penal Code declares that killing committed by means of fire is murder, it intends that fire should be purposely adopted as a means to that end. There can be no murder without a design to take life. In other words, if the main object of the offender is to kill by means of fire, the offense is murder. But if the main objective is the burning of the building, the resulting homicide may be absorbed by the crime of arson. 9

. . . in the classification of crimes committed by fire, attention must be given to the intention of the author. When fire is used with intent to kill a . . . person who may be in shelter, and that objective is secured, the crime is . . . murder. Murder or homicide in a juridical sense would exist if the killing were the objective of the malefactor and the burning of the building was resorted only as the means of accomplishing his purpose. The rule is otherwise when arson is itself the end and death is a mere consequence. The crime in such a case would be arson only, absorbing the homicide. 10

Except for the imposable penalty, the rule has not changed. Accordingly, if death results by reason or on the occasion of arson, the crime is simply arson although the imposable penalty as provided in Sec. 5 of P.D. No. 1613, which expressly repealed Arts. 320 to 326-B of The Revised Penal Code, is

now reclusion perpetua to death. If the objective of the offender is to kill and arson is resorted to as the means to accomplish the crime, the offender can be charged with murder only. But if the objective is to kill—and in fact the offender has already done so—and arson is resorted to as a means to cover up the killing, the offender may be convicted of two separate crimes of either homicide or murder, and arson.

Consequently, in (People v. Paterno) 11 where the defendants killed a Japanese spy and his wife, and thereafter set the victims’ house afire with their lifeless bodies inside and their three-day old infant who perished in the fire, we found the accused guilty of murder for the killing and of arson for burning the house with the resulting death to the infant. In (People v. Basay) 12 we said that where the house was burned to conceal the stabbing and hacking, separate crimes of murder and arson were committed.

The Information in this case however, although erroneously charging the crime of "Arson with Multiple Murder," clearly charges appellants with six (6) distinct criminal acts. It accuses them of "wilfully, unlawfully and criminally attack(ing), assault(ing) and stab(bing) Hilario G. Dorio, Nicanora G. Tabanao, Maria T. Dorio, Dioscora T. Dorio and Flora T. Dorio, inflicting on their persons multiple mortal wounds . . . (and) set(ting) on fire and burn(ing) the house of the victims . . ." 13 Since appellants failed to move to quash the information on the ground of multiplicity of charges or object thereto at any other time, the defect has been waived, and thus the trial court may validly render judgment against them for as many crimes as were alleged. 14 In order to sustain a conviction for as many offenses as are alleged, it is elementary that all the allegations must be proven with moral certainty. Hence, considering that the Information alleges that appellants burned the house of the victims and killed them with treachery and (evident) premeditation, both the arson and the multiple murder must be proven beyond reasonable doubt.

We accord credence to the testimonies of the prosecution witnesses. We see no reason to depart from the conclusion of the trial court that it was "morally convinced that the three accused are all guilty . . . . 15 The court a quo had the opportunity to observe the witnesses thus its findings are given great weight and respect.

Palomas, Apostadero and Antifuesto are disinterested witnesses and there is not a shiver of evidence to indicate that they are suborned witnesses. In fact, the records show that witness Antifuesto even lent his bolo to appellant Cedenio so that the former could not have had a grudge against the latter, otherwise, he would not have lent his bolo. 16 Absent the most compelling reason or motive, it is inconceivable why the prosecution witnesses would openly and publicly lie or concoct a story which would send three innocent men to jail. 17 Where the defense failed to show any evil or improper motive on the part of prosecution witnesses, the presumption is that their testimonies are true and thus entitled to full faith and credence. 18

While the prosecution witnesses did not see the actual killing of the victims and the burning of the house, we have repeatedly ruled that guilt may be established through circumstantial evidence provided that (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and, (3) the combination of all the circumstances is such as to produce conviction beyond reasonable doubt. 19 Thus in (People v. Adriano)20 and (People v. Galendez) 21 we ruled that there can be a conviction based on circumstantial evidence when the circumstances proven form an unbroken chain which leads to a fair and reasonable conclusion pinpointing the accused as the perpetrator of the crime.

This is another lucid illustration of a case where a conviction can be sustained on the basis of circumstantial evidence. First, appellant Cedenio borrowed the bolo of witness Antifuesto at around seven o’clock in the evening. Second, Cedenio together with appellants Antipolo and Amarga were positively identified as brandishing their bloodstained bolos while rushing out of the victims’ burning house around ten-thirty that same evening. Third, Antifuesto’s bolo was returned to him at around

three o’clock the following morning after appellants were seen outside the victims’ burning house. Fourth, the bolo had bloodstains when it was returned. Fifth, Cedenio called on Antifuesto at three-thirty that same morning to appease the latter and assure him not to worry because " . . . if this incident reaches the court, I will answer (for)everything." 22 Sixth, when retrieved from the burned house, the bodies of the victims bore stab and hack wounds. For sure, these circumstances "form an unbroken chain which leads to a fair and reasonable conclusion pinpointing the accused as the perpetrators of the crime." 23

We disagree with appellants’ submission that the testimony of prosecution witness Antifuesto is not in accord with human nature. On the contrary, his testimony that the bolo was returned to him with bloodstains is worthy of belief. Appellants never thought that Antifuesto would testify against them. Thus, appellant Cedenio borrowed Antifuesto’s bolo and after its return even mollified him.

In fine, we believe that when appellants were seen in the vicinity of the burning house, they were not there to save lives and property but rather to escape from the locus criminis and avoid being made to answer for the consequences of their wicked act. In other words, they were not there to save the lives and valuables of the victims but to save their own. We are convinced that appellants conspired to inflict fatal blows on the victims which cost their lives and thereafter set their house on fire to conceal the dastardly deed. 24 Conspiracy, as we said, may be inferred from the acts of the accused when such acts point to a joint purpose or design. 25

From the evidence adduced, it is evident that after the victims were hacked and stabbed to death, appellants set the house afire to hide their gruesome act. This is the only logical conclusion for the burning of the house. For, appellants and some six (6) others, all bolo-wielding, have already inflicted fatal wounds on the victims, save for the 22-day old infant. If their objective was merely to kill the victims then there would be no reason for them to burn the victims’ abode. On the other hand, if their objective was merely arson, they would not have attacked the victims with their bolos.

We however cannot consider the qualifying circumstance of treachery. For treachery to be appreciated, there must be proof that at the time of the attack, the victims were not in a position to defend themselves and that the offenders consciously and deliberately adopted particular means, method or form of attack which they employed to ensure the accomplishment of their purpose with impunity. 26 There is no proof of such fact in the instant case; neither is there any testimony on how the attack was actually carried out. Where no particulars are known as to the manner in which the aggression was made or how the act which resulted in the death of the victims began and developed, it can in no way be established from mere suppositions that the killing was perpetrated by treachery. 27 For, the rule is settled that treachery cannot be presumed; it must be proved by clear and convincing evidence as conclusively as the killing itself. 28Hence, when the manner of the attack is not proven, the accused should be given the benefit of the doubt and the crime should be considered homicide only, 29 absent any other circumstance which would qualify the killing.

Nevertheless, we qualify the killing to murder on account of evident premeditation. For evident premeditation to be considered, it must affirmatively appear from the overt acts of the accused that they definitely resolved to commit the offense; that they coolly and dispassionately reflected on the means of carrying their resolution into execution and on the consequences of their criminal design; and, that an appreciable length of time elapsed as to expect an aroused conscience to otherwise relent and desist from the accomplishment of the intended crime. 30These, the prosecution established.

The fact alone that appellants burned the victims’ house after inflicting fatal wounds on them already suggests that they clung to their determination to commit the crime. The circumstance that appellant Cedenio borrowed the bolo of witness Antifuesto and later placated the latter when his bolo was returned to him already bloodstained strongly indicates that appellants pondered on the means of executing the crime and on the consequences of their criminal design. Since appellant Cedenio

borrowed the bolo at around seven o’clock in the evening and the crime was committed around ten o’clock that same evening, certainly, there was sufficient interval of time within which to reflect upon the consequences of the crime they planned to commit.

The death certificates of victims Hilario Dorio, Flora Dorio, Maria Dorio and Nicanora Tabanao state as cause of death "incised wounds" which could definitely be caused by a bolo, while the infant’s death was due to "burns." Hence, appellants should be held responsible only for the murder of the four (4) victims who sustained fatal hack and stab wounds. They cannot be convicted of homicide for the death of the infant who died presumably of suffocation or incineration but of arson resulting in death, as defined in Sec. 5 of P.D. No. 1613.

Considering that the prosecution was able to show with moral certainty that the killing of the four (4) victims was attended with evident premeditation and the burning was done to disguise the murder, appellants are guilty of arson and four (4) counts of murder, each count aggravated by dwelling which, while not alleged in the Information, was sufficiently proven during the trial.

The penalty prescribed by law for murder if committed with evident premeditation is reclusion temporal in its maximum period to death, 31 while for arson where death results, it is reclusion perpetua to death. 32 Since the murder was attended by the aggravating circumstance of dwelling, with no mitigating circumstance, the imposable penalty against appellants is death for each of the four (4) counts of murder they committed. However, considering that the death penalty was prescribed at the time appellants committed the crime, their sentence should be reduced to four (4) terms of reclusion perpetua. For the arson where death resulted, appellants should be sentenced to a separate term of reclusion perpetua.

Furthermore, it appearing from the records that the heirs of the deceased did not waive nor reserve their right to institute a civil action, nor did they institute a civil action prior to the criminal action, the civil action prior to the criminal action, the civil action for recovery of civil liability is impliedly instituted with the instant criminal action. 33Consistently therefore with prevailing jurisprudence, appellants are jointly and severally liable to the heirs of the victims in the amount of P50,000.00 for every death even without proof of pecuniary loss.

WHEREFORE, the Decision of the trial court is MODIFIED. Appellants PEDRO CEDENIO, FELIPE ANTIPOLO and JURITO AMARGA are found guilty beyond reasonable doubt of four (4) counts of murder and another crime of arson. Consequently, appellants are sentenced each to four (4) terms of reclusion perpetua for the murder of Hilario Dorio, Flora Dorio, Maria Dorio and Nicanora Tabanao, and another reclusion perpetua for arson for the burning of the house which resulted in the death of infant Dioscora Dorio, to be served successively in accordance with Art. 70 of The Revised Penal Code. In addition, appellants are jointly and severally held liable to the heirs in the amount of P50,000.00 for the death of each victim.

SO ORDERED.

Cruz, Davide, Jr., Quiason and Kapunan, JJ., concur.