PNB v. CA

83 SCRA 237 – Business Organization – Corporation Law – Corporation’s Liability for Negligence

Rita Tapnio owes PNB an amount of P2,000.00. The amount is secured by her sugar crops about to be harvested including her export quota allocation worth 1,000 piculs. The said export quota was later dealt by Tapnio to a certain Jacobo Tuazon at P2.50 per picul or a total of P2,500. Since the subject of the deal is mortgaged with PNB, the latter has to approve it. The branch manager of PNB recommended that the price should be at P2.80 per picul which was the prevailing minimum amount allowable. Tapnio and Tuazon agreed to the said amount. And so the bank manager recommended the agreement to the vice president of PNB. The vice president in turn recommended it to the board of directors of PNB.

However, the Board of Directors wanted to raise the price to P3.00 per picul. This Tuazon does not want hence he backed out from the agreement. This resulted to Tapnio not being able to realize profit and at the same time rendered her unable to pay her P2,000.00 crop loan which would have been covered by her agreement with Tuazon.

Eventually, Tapnio was sued by her other creditors and Tapnio filed a third party complaint against PNB where she alleged that her failure to pay her debts was because of PNB’s negligence and unreasonableness.

Rodriguez-Luna vs IAC

FACTS: The petitioners are the heirs of Roberto R. Luna who was killed in a vehicular collision. The collision took place on January 18, 1970, at the go-kart practice area in Greenhills, San Juan, Metro Manila. Those involved were the go-kart driven by the deceased, a business executive, and a Toyota car driven by Luis dela Rosa, a minor of 13 years who had no driver's license. In a suit for damages brought by the heirs of Roberto R. Luna against Luis dela Rosa and his father Jose dela Rosa, the Court of First Instance of Manila in Civil Case No. 81078, rendered the following judgment: Judgment was rendered sentencing the defendants Luis dela Rosa and Jose dela Rosa to pay, JOINTLY AND SEVERALLY, to the plaintiffs the sum of P1,650,000.00 as unearned net earnings of Roberto Luna, P12,000.00 as compensatory damages, and P50,000.00 for the loss of his companionship, with legal interest from the date of this decision; plus attorney's fees in the sum of P50,000.00, and the costs of suit. The private respondents failed to pay the amounts and when required to explain they said that they had no cash money. Accordingly, this Court directed the trial court to issue a writ of execution. The execution yielded only a nominal amount. In the meantime, Luis dela Rosa is now of age, married with two children, and living in Madrid, Spain with an uncle but only casually employed. It is said: "His compensation is hardly enough to support his family. He has no assets of his own as yet."

ISSUE: Whether or not Jose, the father, should be primarily or subsidiary liable with his son, Luis.

HELD: Primarily liable. The Dela Rosas invoke Elcano vs Hill for subsidiary liability only. In Elcano vs Hill, it was held that article 2180 was applied to Atty Hill despite the emancipation by marriage by his son, but as his son attained age, as a matter of equity, Atty Hill's liabilty should only be subsiadiary as to his son. However, the Supreme Court was unwilling to apply equity instead of strict law in this case because to do so will not serve the ends of justice. Luis dela Rosa is abroad and beyond the reach of Philippine courts. Moreover, he does not have any property either in the Philippines or elsewhere. In fact his earnings are insufficient to support his family.

Paleyan vs. Bangkili

Facts: Carlos Bangkili, 19 yrs. of age killed Balos Paleyan. As a result of the death of Balos Paleyan and of the wounding of another victim, Bangkili was accused of the crime of homocide with less serious physical injuries. He pleaded guilty and was sentenced accordingly, but no desicion as to the civil indemnity which should be paid to the heirs of the deceased was made. Plaintiffs filed an action for damages against Carlos Bangkili and his mother,

Victoria Bangkili. Complaint was dismissed against Victoria because his son was already 19 yrs. of age at the time he committed the offense. Hence, this petition.

Issue: WON the mother of Carlos should be liable with him for the amount which he was sentenced to pay considering that he was then a minor of 19 yrs.

Ruling: Victoria Bangkili is liable solidarily with her son.

Ratio: Art. 2180 is aplicable in this case. Considering that her son, although living with her, was already 19 yrs. of age and hence mature enough to have a mind of his own. This fact is not a legal defense, however, and does not exempt the appellent from her responsibility as parent and natural guardian. Art. 2180 does not provide for any exemption except proof that the defendant parent "observed all the diligence of a god father of a family to prevent damage."

133 Lanuzo v. Ping and Mendoza

FELIX LANUZO, plaintiff-appellee, vs.SY BON PING and SALVADOR MENDOZA, defendants-appellants.

Doctrine: Employer is solidarily liable for the fault or negligence of his employees.

Facts:

1. Salvador Mendoza was driving the truck along the national highway in the Barrio of San Ramon, Nabua, Camarines Sur, and because of his reckless negligence, it rammed into the residential house and store of plaintiff.

2. As a result, the house and store were completely razed to the ground causing damage to plaintiff in the total amount of P13,000.00.

3. Lanuzo averred that by reason thereof he became destitute as he lost his means of livelihood from the store which used to give him a monthly income of P300.00.

4. a Complaint for damages was instituted in the Court of First Instance of Camarines Sur (Civil Case No. 6847) by plaintiff Felix Lanuzo against Sy Bon Ping, the owner and operator of a freight truck bearing Plate No. T-57266, and his driver, Salvador Mendoza.

5. defendants moved to dismiss on the ground that another action, Criminal Case (No. 4250) for Damage to Property through Reckless Imprudence, was pending in the Municipal Court of Nabua, Camarines Sur between the same parties for the same cause.

6. Plaintiff opposed the dismissal stressing that he had made an express reservation in the criminal case to institute a civil action for damages separate and distinct from the criminal suit.

7. LC dismissed and ordered SY BON PING (ER) and SALVADOR MENDOZA (EE). jointly and severally8. Defendants' "Motion for Reconsideration and/or New Trial and To Set Aside Order of Default" was denied.9. Court of Appeals defendant urged that the civil action was prematurely instituted in view of Rule 111,

section 3, providing in part that "after the criminal action has been commenced the civil action cannot be instituted until final judgment has been rendered in the criminal action." and thet LC committed an error in holding them jointly and severally liable.

10. On February 20, 1980, the Court of Appeals certified the case to this instance on pure questions of law.

Issue: WON LC was correct to hold EE and ER jointly and severally liable.

Held: YES. WHEREFORE, the appealed decision is hereby affirmed. Costs against defendants-appellants.

SO ORDERED.

Ratio: For his own negligence in recklessly driving the truck owned and operated by his employer, the driver, Salvador Mendoza, is primarily liable under Article 2176 of the Civil Code. On the other hand, the liability of his employer, Sy Bon Ping, is also primary and direct under Article 2180 of the same Code, which explicitly provides:

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry.

For failure of the appellant Sy Bon Ping to rebut the legal presumption of his negligence in the selection and supervision of this employee, 8 he is likewise responsible for the damages caused by the negligent act of his employee (driver) Salvador Mendoza, and his liability is primary and solidary.

... What needs only to be alleged under the aforequoted provision (Article 2180, Civil Code) is that the employee (driver) has, by his negligence (quasi-delict) caused damage to make the employer, likewise, responsible for the tortious act of the employee, and his liability is, as earlier observed, primary and solidary 9

But although the employer is solidarity liable with the employee for damages, the employer may demand reimbursement from his employee (driver) for whatever amount the employer will have to pay the offended party to satisfy the latter's claim.

N.B.

The civil action referred to in Sections 3(a) and (b) of Rule 111 of the Rules of Court, which should be suspended after the institution of the criminal action, is that arising from delict, and not the civil action based on quasi- delict or culpa aquiliana.

A distinction exists between the civil liability arising from a crime and the responsibility for cuasi-delitos or culpa-extracontractual. The same negligent act causing damages may produce civil liability arising from a crime under article 100 of the Revised Penal Code, or create an action for cuasi-delito or culpa extracontractual under articles 1902-1910 of the Civil Code. Plaintiffs were free to choose which remedy to enforce.

Malipol vs Tan

21 January 1974 | Zaldivar

Facts:

- At 8:35 in the evening, Pantaleon Malijan was walking with Leonardo Amante at the shoulder of the road in Barrio San Felix in Batangas when he was hit by a gasoline tanker and was thrown to the ground. While on the ground, Malijan was again run over by the tanker’s right wheel that got detached from its axle. Amante, with the help of the barrio captain, brouugh Malijan to the hospital, but was declared dead on arrival.

- The gasoline tanker was driven by Ernesto Labasan, employee of Lily Lim Tan.

-So the plaintiffs (Malipol is Malijan’s mother, and the other plaintiffs are Malijan’s brothers and sisters), filed a case for damages against Tan and the driver. The defendants failed to answer so they were declared in default, and son the plaintiffs were allowed to present evidence ex parte. After this, the trial court rendered a decision in favour of the plaintiffs. Labasan the driver was ordered to pay for the hospitalization exponses, medical treatment, vigil and burial of Malijan, as well as indemnity for death, loss of earnings, moral damages, attorney’s fees and the cost

of the suit. The trial court held that if Labasan can’t pay,Tan shouldpay as she is subsidiarily liable as owner and operator of the tanker.- And so defendants appealed and asked that the order of default be lifted, and asked for a new trial. Theysaid that the accident was due to force majeure, and that Tan exercised the diligence of a good father of afamily to prevent damage. But the trial court denied this appeal.

-Mostly procedural matters were brought up, with defendants saying that they didn’t file an answer because their lawyer only told them about the suit on the 11th day after receipt, but still the court didn’t excuse defendants from not answering especially since they still had 4 days to answer. The defendants further put blame on their lawyer Atty. Chavez who was allegedly abnormal at that time, as shown by his having committed suicide a few months after the complaint was lodged. But the court held that Atty. Chavez still exercised ordinary and reasonable care over the interests of his client when he made a long distance call to Tan asking for the specifics of the case, then endorsed the suit to Atty. De Castro.

Issue: What should be the nature of Tan’s liability? Direct.

Rationale:

-After discussing procedural matters, the SC however found a flaw in the trial court’s decision. Labasan washeld primarily liable for damages, and the owner was just subsidiarily liable. This is not correct because this is a civil case, not a criminal case! The owner, under 2180, of establishments or enterprises is directly liable! The employer, however, can demand reimbursement from his employee of the amount he paid. Therefore inthis case, Tan should be held primarily liable, without prejudice to her asking for reimbursement from Labasan.

Ruling

: The lower court’s denial of the motion to lift order of de fault and new trial is affirmed.

Fernandez, concurring and dissenting:

-The negligence of Tan and Atty. Chavez should be excused. Chavez had a troubled mind, that’s why he misinformed the parties on the date of summons. Atty de Castro was not negligent since he relied on the information Atty. Chavez gave. So, Justice Fernandez believes Tan should’ve been granted a new trial.

Chan, Jr. v. Iglesia ni Cristo

CHICO-NAZARIO, J.:

Before Us is a petition for review on certiorari[1] assailing the Decision[2] of the Court of Appeals in CA-G.R. CV No. 65976, dated 25 September 2003. Said Decision denied the petitioners appeal from the decision of the Regional Trial Court (RTC), La Union, Branch 31, in Civil Case No. A-1646.

THE FACTS

The antecedents of the instant case are quite simple.

The Aringay Shell Gasoline Station is owned by the petitioner. It is located in Sta. Rita East, Aringay, La Union, and bounded on the south by a chapel of the respondent.

The gasoline station supposedly needed additional sewerage and septic tanks for its washrooms. In view of this, the services of Dioscoro Ely Yoro (Yoro), a retired general of the Armed Forces of the Philippines, was procured by petitioner, as the former was allegedly a construction contractor in the locality.

Petitioner and Yoro executed a Memorandum of Agreement[3] (MOA) on 28 February 1995 which is reproduced hereunder:

MEMORANDUM OF AGREEMENT

KNOW ALL MEN BY THESE PRESENTS:

This MEMORANDUM OF AGREEMENT, executed this 28th day of February, 1995, by and between:

JOHN Y. CHAN, of legal age, single, and a resident of Aringay, La Union, now and hereinafter called the FIRST PARTY;

GEN. ELY E. YORO, Jr., of legal age, married, and a resident of Damortis, Sto. Tomas, La Union, hereinafter referred to as the SECOND PARTY:

WITNESSETH that:

WHEREAS, the FIRST PARTY is the owner of a parcel of land located at Sta. Rita, Aringay, La Union.

WHEREAS, the FIRST PARTY, desires to dig a septic tank for its perusal in the property bordering Iglesia ni Cristo.

WHEREAS, the SECOND PARTY is willing to contract the intended digging of septic tank for the first party.

WHEREAS, the FIRST PARTY and SECOND PARTY has (sic) agreed verbally as to the compensation of the said digging of septic tank.

WHEREFORE, for and in consideration of the terms and covenants hereinbelow set forth, the FIRST PARTY hereby AGREES and ALLOWS the SECOND PARTY to undertake the digging of the parcel of land for the exclusive purpose of having a septic tank.

TERMS AND COVENANTS

1. The SECOND PARTY shall contract the said digging;

2. The FIRST PARTY shall have complete control over the number of personnel who will be entering the property for said contract;

3. The digging shall be allowed for a period of three (3) weeks only, commencing on March 28, 1995, unless extended by agreement of the parties;

4. Any damage within or outside the property of the FIRST PARTY incurred during the digging shall be borne by the SECOND PARTY;

5. In the event that valuable objects are found on the property, the same shall be divided among the parties as follows:

FIRST PARTY - 60%

SECOND PARTY - 40%

6. In the event that valuable objects are found outside the property line during the said digging, the same shall be divided among the parties as follows:

FIRST PARTY - 35%

SECOND PARTY - 65%

7. In case government or military interference or outside intervention is imminent, the FIRST PARTY hereby reserves the option to stop the digging at any stage thereof.

IN WITNESS WHEREOF, We have hereunto set our hands on the day and year first above-written at Aringay, La Union.[4]

Diggings thereafter commenced. After some time, petitioner was informed by the members of the respondent that the digging traversed and penetrated a portion of the land belonging to the latter. The foundation of the chapel was affected as a tunnel was dug directly under it to the damage and prejudice of the respondent.

On 18 April 1995, a Complaint[5] against petitioner and a certain Teofilo Oller, petitioners engineer, was filed by the respondent before the RTC, La Union, Branch 31, docketed therein as Civil Case No. A-1646. Petitioner and Oller filed an Answer with Third-Party Complaint[6] impleading Yoro as third-party defendant.

Yoro filed an Answer to the Third-Party Complaint[7] dated 13 July 1995. An Amended and Supplemental Complaint[8] dated 30 August 1995 was later filed by the respondent already naming Yoro as a party-defendant, to which the petitioner and Oller filed an Answer.[9] Yoro filed his own Answer.[10]

After four years of hearing the case, the trial court promulgated its Decision[11] holding that the diggings were not intended for the construction of sewerage and septic tanks but were made to construct tunnels to find hidden treasure.[12] The trial court adjudged the petitioner and Yoro solidarily liable to the respondent on a 35%-65% basis (the petitioner liable for the 35%), and absolving Oller from any liability, viz:

WHEREFORE, this Court renders judgment in favor of plaintiff IGLESIA NI CRISTO and against defendants JOHN KAMBIAK CHAN and DIOSCORO ELY YORO, JR. who are respectively solidarily liable to PLAINTIFF on a 35%-65% basis, with JOHN CHAN taking the 35% tab, Ordering the two (2) aforesaid DEFENDANTS to pay PLAINTIFF the following amounts:

1. SIX HUNDRED THIRTY-THREE THOUSAND FIVE HUNDRED NINETY-FIVE PESOS AND FIFTY CENTAVOS (P633,595.50); representing ACTUAL DAMAGES;

2. FIVE HUNDRED THOUSAND PESOS (P500,000.00) representing MORAL DAMAGES;

3. TEN MILLION PESOS (P10,000,000.00) as EXEMPLARY DAMAGES;

4. FIFTY THOUSAND PESOS (P50,000.00) as plaintiffs attorneys fees; and

5. TWENTY THOUSAND PESOS (P20,000.00) as litigation expenses.

Defendant TEOFILO OLLER is absolved of any civil liability.

Any counterclaim filed against PLAINTIFF IGLESIA NI CRISTO is dismissed.[13]

Petitioner filed a Notice of Appeal[14] dated 18 August 1999. Yoro filed his own Notice of Appeal[15] dated 20 August 1999.

In a Resolution[16] dated 19 November 1999, the trial court disallowed Yoros appeal for failure to pay the appellate court docket and other lawful fees within the reglementary period for taking an appeal.[17] In view of Yoros failure to appropriately file an appeal, an order was issued for the issuance of a Writ of Execution as against him only, the dispositive portion of which reads:

WHEREFORE, premises considered, this Court GRANTS the motion of plaintiff Iglesia ni Cristo for the issuance of a Writ of Execution as against Dioscoro Ely Yoro, Jr. only.[18]

The petitioners appeal to the Court of Appeals, on the other hand, was given due course.[19] On 25 September 2003, the Court of Appeals rendered its Decision denying the appeal. It affirmed the trial court but with modifications. The decretal portion of the decision states:

WHEREFORE, the appeal is hereby DENIED. The assailed decision in Civil Case No. A-1646 is hereby AFFIRMED with MODIFICATIONS as follows:

(a) The award of moral damages in the amount of P500,000.00 is hereby deleted.

(b) The award of exemplary damages is hereby reduced to P50,000.00.

(c) The award of attorneys fees and litigation expenses is hereby reduced to P30,000.00.[20]

Undeterred, petitioner instituted the instant case before this Court. On 15 December 2004, the instant petition was given due course.[21]

ASSIGNMENT OF ERRORS

Petitioner assigns as errors the following:

I

THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE REGIONAL TRIAL COURT (BRANCH 31, AGOO, LA UNION) PARTICULARLY IN SAYING THAT THE BASIS OF THE SOLIDARY OBLIGATION OF PETITIONER AND YORO VIS--VIS PLAINTIFF IS BASED NOT ON THE MOA BUT ON TORT

II

THE COURT OF APPEALS ERRED IN NOT GIVING EFFECT TO THE MOA WHICH SHOULD EXONERATE THE PETITIONER FROM ALL LIABILITIES TO THE PRIVATE RESPONDENT

III

THE COURT OF APPEALS ERRED IN NOT APPRECIATING THE THIRD-PARTY COMPLAINT AS CROSS-CLAIM OF THE PETITIONER AGAINST YORO.[22]

ISSUE

Drawn from the above assignment of errors, the solitary issue that needs to be resolved is:

WHETHER OR NOT THE MEMORANDUM OF AGREEMENT ENTERED INTO BY THE PETITIONER AND YORO HAS THE EFFECT OF MAKING THE LATTER SOLELY RESPONSIBLE FOR DAMAGES TO THE RESPONDENT.

THE RULINGS OF THE COURT

Petitioner avers that no liability should attach to him by laying the blame solely on Yoro. He argues that the MOA executed between him and Yoro is the law between them and must be given weight by the courts. Since nothing in the MOA goes against the law, morals, good customs and public policy, it must govern to absolve him from any liability.[23] Petitioner relies heavily in Paragraph 4 of the MOA, which is again reproduced hereunder:

4. Any damage within or outside the property of the FIRST PARTY incurred during the digging shall be borne by the SECOND PARTY.

In answer to this, the respondent asserts that the MOA should not absolve petitioner from any liability. This written contract, according to the respondent, clearly shows that the intention of the parties therein was to search for hidden treasure. The alleged digging for a septic tank was just a cover-up of their real intention.[24] The aim of the petitioner and Yoro to intrude and surreptitiously hunt for hidden treasure in the respondents premises should make both parties liable.[25]

At this juncture, it is vital to underscore the findings of the trial court and the Court of Appeals as to what was the real intention of the petitioner and Yoro in undertaking the excavations. The findings of the trial court and the Court of Appeals on this point are in complete unison. Petitioner and Yoro were in quest for hidden treasure[26] and, undoubtedly, they were partners in this endeavor.

The Court of Appeals, in its Decision, held in part:

The basis of their solidarity is not the Memorandum of Agreement but the fact that they have become joint tortfeasors. There is solidary liability only when the obligation expressly so states, or when the law or the nature of the obligation requires solidarity.[27]

We find no compelling reason to disturb this particular conclusion reached by the Court of Appeals. The issue, therefore, must be ruled in the negative.

Article 2176 of the New Civil Code provides:

ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

Based on this provision of law, the requisites of quasi-delict are the following:

(a) there must be an act or omission;

(b) such act or omission causes damage to another;

(c) such act or commission is caused by fault or negligence; and

(d) there is no pre-existing contractual relation between the parties.

All the requisites are attendant in the instant case. The tortious act was the excavation which caused damage to the respondent because it was done surreptitiously within its premises and it may have affected the foundation of the chapel. The excavation on respondents premises was caused by fault. Finally, there was no pre-existing contractual relation between the petitioner and Yoro on the one hand, and the respondent on the other.

For the damage caused to respondent, petitioner and Yoro are jointly liable as they are joint tortfeasors. Verily, the responsibility of two or more persons who are liable for a quasi-delict is solidary.[28]

The heavy reliance of petitioner in paragraph 4 of the MOA cited earlier cannot steer him clear of any liability.

As a general rule, joint tortfeasors are all the persons who command, instigate, promote, encourage, advise, countenance, cooperate in, aid or abet the commission of a tort, or who approve of it after it is done, if done for their benefit.[29]

Indubitably, petitioner and Yoro cooperated in committing the tort. They even had provisions in their MOA as to how they would divide the treasure if any is found within or outside petitioners property line. Thus, the MOA, instead of exculpating petitioner from liability, is the very noose that insures that he be so declared as liable.

Besides, petitioner cannot claim that he did not know that the excavation traversed the respondents property. In fact, he had two (2) of his employees actually observe the diggings, his security guard and his engineer Teofilo Oller.[30]

Coming now to the matter on damages, the respondent questions the drastic reduction of the exemplary damages awarded to it. It may be recalled that the trial court awarded exemplary damages in the amount of P10,000,000.00 but same was reduced by the Court of Appeals to P50,000.00.

Exemplary or corrective damages are imposed by way of example or correction for the public good.[31] In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence.[32] By gross negligence is meant such entire want of care as to raise a presumption that the person in fault is conscious of the probable consequences of carelessness, and is indifferent, or worse, to the danger of injury to person or property of others.[33]

Surreptitiously digging under the respondents chapel which may weaken the foundation thereof, thereby endangering the lives and limbs of the people in worship, unquestionably amounts to gross negligence. Not to mention the damage that may be caused to the structure itself. The respondent may indeed be awarded exemplary damages.

For such tortious act done with gross negligence, the Court feels that the amount awarded by the Court of Appeals is inadequate. The exemplary damages must correspondingly be increased to P100,000.00.

The modification made by this Court to the judgment of the Court of Appeals must operate as against Yoro, for as fittingly held by the court a quo:

While it is settled that a party who did not appeal from the decision cannot seek any relief other than what is provided in the judgment appealed from, nevertheless, when the rights and liability of the defendants are so interwoven and dependent as to be inseparable, in which case, the modification of the appealed judgment in favor of appellant operates as a modification to Gen. Yoro who did not appeal. In this case, the liabilities of Gen. Yoro and appellant being solidary, the above exception applies.[34]

WHEREFORE, the Decision of the Court of Appeals dated 25 September 2003 is AFFIRMED with MODIFICATION as to the award of exemplary damages, which is hereby increased to P100,000.00. Costs against petitioner.

Elcano v. Hill

77 SCRA 100 – May 26, 1977Torts and Damages – Civil Liability from Quasi Delicts vs Civil Liability from CrimesReginald Hill, a minor, caused the death of Agapito (son of Elcano). Elcano filed a criminal case against Reginald but Reginald was acquitted for “lack of intent coupled with mistake.” Elcano then filed a civil action against Reginald and his dad (Marvin Hill) for damages based on Article 2180 of the Civil Code. Hill argued that the civil action is barred by his son’s acquittal in the criminal case; and that if ever, his civil liability as a parent has been extinguished by the fact that his son is already an emancipated minor by reason of his marriage.

ISSUE: Whether or not Marvin Hill may be held civilly liable under Article 2180.

HELD: Yes. The acquittal of Reginald in the criminal case does not bar the filing of a separate civil action. A separate civil action lies against the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if accused is actually charged also criminally, to recover damages on both scores, and would be entitled in such eventuality only to the bigger award

of the two, assuming the awards made in the two cases vary. In other words, the extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same act considered as a quasi-delict only and not as a crime is not extinguished even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed by the accused. Briefly stated, culpa aquiliana includes voluntary and negligent acts which may be punishable by law.

While it is true that parental authority is terminated upon emancipation of the child (Article 327, Civil Code), and under Article 397, emancipation takes place “by the marriage of the minor child”, it is, however, also clear that pursuant to Article 399, emancipation by marriage of the minor is not really full or absolute. Thus “Emancipation by marriage or by voluntary concession shall terminate parental authority over the child’s person. It shall enable the minor to administer his property as though he were of age, but he cannot borrow money or alienate or encumber real property without the consent of his father or mother, or guardian. He can sue and be sued in court only with the assistance of his father, mother or guardian.” Therefore, Article 2180 is applicable to Marvin Hill – the SC however ruled since at the time of the decision, Reginald is already of age, Marvin’s liability should be subsidiary only – as a matter of equity.

FUELLAS V. CADANO, 3 SCRA 361 (1961)

Facts: Pepito Cadano and Rico Fuellas, son of defendant-appellant Agapito Fuellas, were both 13 years old, on September 16, 1954. They were classmates at St. Mary's High School, Dansalan City. They had a quarrel that lead to Pepito’s injury, his right arm was broken after Rico pushed him on the ground. It is contended that in the decision of the Court of Appeals, the petitioner-appellant was ordered to pay damages for the deliberate injury caused by his son; that the said court held the petitioner liable pursuant to par. 2 of Art. 2180 of the Civil Code, in connection with Art. 2176 of the same Code; that according to the last article, the act of the minor must be one wherein "fault or negligence" is present; and that there being no fault or negligence on the part of petitioner-appellant's minor son, but deliberate intent, the above mentioned articles are not applicable, for the existence of deliberate intent in the commission of an act negatives the presence of fault or negligence in its commission. Appellant, therefore, submits that the appellate Court erred in holding him liable for damages for the deliberate criminal act of his minor son.

Issue: WON the father is liable civilly for the criminal act of his son?

Held: Yes. In an earlier case (Exconde vs. Capuno, et al., G.R. No. L-10132, prom. June 29, 1957), holding the defendants jointly and severally liable with his minor son Dante for damages, arising from the criminal act committed by the latter, this tribunal gave the following reasons for the rule: —

The civil liability which the law imposes upon the father and, in case of his deathor incapacity, the mother, for any damages that may be caused by theminor children who live with them, is obvious. This is a necessary consequenceof the parental authority they exerciseover them which imposes upon the parents the "duty of supporting them, keeping them in their company, educating them in proportion to their means", while on the other hand, gives them the "right to correct and punish them in moderation" (Arts. 134 and 135, Spanish Civil Code). The only way by which they can relieve themselves of this liability is if they prove that they exercised all the diligence of a good father of a family to prevent the damage (Art. 1903, last paragraph, Spanish Civil Code). This, defendants failed to prove.

In another case, Salen and Salbanera vs. Jose Balce, the defendant Balce was the father of a minor Gumersindo Balce, below 18 years of age who was living with him. Gumersindo was found guilty of homicide for having killed Carlos Salen, minor son of plaintiffs. The trial court rendered judgment dismissing the case, stating that the civil liability of the minor son of defendant arising from his criminal liability must be determined under the provisions of the Revised Penal Code and not under Art. 2180 of the new Civil Code. In reversing the decision, this tribunal held: — It is true that under Art. 101 of the Revised Penal Code, a father is made civilly liable for the acts committed by his son only if the latter is an imbecile, an insane, under 9 years of age, or over 9 but under 15 years of age, who acts without discernment, unless it appears that there is no fault or negligence on his part. This is because a son who commits the act under any of those conditions is by law exempt from criminal liability (Article

12, subdivisions 1, 2 and 3, Revised Penal Code). The idea is not to leave the act entirely unpunished but to attach certain civil liability to the person who has the delinquent minor under his legal authority or control. But a minor over 15 who acts with discernment is not exempt from criminal liability, for which reason the Code is silent as to the subsidiary liability of his parents should he stand convicted. In that case, resort should be had to the general law which is our Civil Code. The particular law that governs this case is Article 2180, the pertinent portion of which provides: "The father and, in case of his death or incapacity, the mother, are responsible for damages caused by the minor children who live in their company." To hold that this provision does not apply to the instant case because it only covers obligations which arise from quasi-delicts and not obligations which arise from criminal offenses, would result in the absurdity that while for an act where mere negligence intervenes the father or mother may stand subsidiarily liable for the damage caused by his or her son, no liability would attach if the damage is caused with criminal intent. Verily, the void apparently exists in the Revised Penal Code is subserved by this particular provision of our Civil Code, as may be gleaned from some recent decisions of this Court which cover equal or identical cases. Moreover, the case at bar was decided by the Court of Appeals on the basis of the evidence submitted therein by both parties, independently of the criminal case. And responsibility for fault or negligence under Article 2176 upon which the action in the present case was instituted, is entirely separate and distinct from the civil liability arising from fault of negligence under the Penal Code (Art. 2177), and having in mind the reasons behind the law as heretofore stated, any discussion as to the minor's criminal responsibility is of no moment. IN VIEW HEREOF, the petition is dismissed, the decision appealed from is affirmed

LIBI v. IAC

Civil Law – Torts and Damages – Vicarious Liability of Parents – Murder-Suicide of Minor LoversSince about 1976, minors Julie Ann Gotiong and Wendell Libi were lovers. In December 1978, Julie Ann decided to break up with Wendell because the latter has violent tendencies. Julie Ann refused to give Wendell his second chance. On January 14, 1979, both minors were found dead inside Julie Ann’s house. Both were only 18 years of age (age of majority that time was 21).Apparently, Wendell used his father’s gun to kill Julie Ann and then later he committed suicide.The parents of Julie Ann (Felipe and Shirley Gotiong) then filed a civil case for recovery of damages based on Article 2180 of the Civil Code against the parents of Wendell (Cresencio and Amelia Libi).ISSUE: Whether or not the parents of Wendell are civilly liable?HELD: Yes. It was determined from the evidence adduced that the Libis had been negligent in safekeeping their gun. Wendell gained access to the gun in 1978 and the Libis did not know that their son had possession of said gun. They only found out about it when the shooting happened. Further, they were not even aware that their son is a drug informant of the local Constabulary (police force at that time). Clearly, the parents were negligent and were not acting with the diligence required by law (that of a good father of a family) in making sure that their minor children shall not cause damages against other persons.What is the nature of their liability?

In this case, the Supreme Court also clarified that the nature of the liability of parents in cases like this is not merely subsidiary. Their liability is primary. This is whether or not what the damage caused by their minor child arose from quasi-delict or from a criminal act. This is also the reason why parents can avoid liability if they will be able to show that they have acted with the diligence required by law because if their liability is merely subsidiary, they can never pose the defense of diligence of a good father of a family.

TAMARGO vs. CA et alG.R. No. 85044June 3, 1992FELICIANO, J.:FACTS: Adelberto Bundoc, then a minor of 10 years of age, shot Jennifer Tamargo with an air rifle which resulted in her death. Accordingly, a civil complaint for damages was filed with the RTC of Vigan, Ilocos Sur by petitioners, parents of Jennifer, against respondent spouses, Adelberto’s natural parents with whom he was living at the time of the tragic incident. In addition to this case for damages, a criminal information or Homicide through Reckless

Imprudence was filed against Adelberto, who was acquitted and exempted from criminal liability on the ground that he bad acted without discernment.Prior to the incident the spouses Rapisura had filed a petition to adopt the minor Adelberto before the then CFI of Ilocos Sur. This petition for adoption was granted after Adelberto had shot and killed JenniferIn their Answer, respondent spouses, Adelberto’s natural parents, claimed that not they, but rather the adopting parents were indispensable parties to the action since parental authority had shifted to the adopting parents from the moment the successful petition for adoption was filed.The trial court ruled against the adopting parents, who filed an MR which was later denied for being filed beyond the reglementary period. Petitioners went to the CA on a petition for mandamus and certiorari questioning the trial court’s decision. The CA dismissed the petition, ruling that petitioners had lost their right to appeal. Hence this petition for reviewISSUE: Who should be responsible for the tortuous act of the minor Adelberto, his natural parents or adopting parents?HELD: Petition for Review is hereby GRANTED DUE COURSE and the Decision of the CA is hereby REVERSED and SET ASIDE. Petitioners’ complaint filed before the trial court is hereby REINSTATED and this case is REMANDED to that court for further proceedingsNatural parents.It is not disputed that Adelberto’s voluntary act of shooting Jennifer with an air rifle gave rise to a cause of action on quasi-delict against him. As Article 2176 of the Civil Code provides:Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict . . .Upon the other hand, the law imposes civil liability upon the father and, in case of his death or incapacity, the mother, for any damages that may be caused by a minor child who lives with them. Article 2180 of the Civil Code reads:The obligation imposed by article 2176 is demandable not only for one’s own acts or omissions, but also for those of persons for whom one is responsible.The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company.xxx xxx xxxThe responsibility treated of in this Article shall cease when the person herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. (Emphasis supplied)The natural parent spouses rely on Article 36 of the Child and Youth Welfare Code 8 which reads as follows:Art. 36. Decree of Adoption. — If, after considering the report of the Department of Social Welfare or duly licensed child placement agency and the evidence submitted before it, the court is satisfied that the petitioner is qualified to maintain, care for, and educate the child, that the trial custody period has been completed, and that the best interests of the child will be promoted by the adoption, a decree of adoption shall be entered, which shall be effective he date the original petition was filed. The decree shall state the name by which the child is thenceforth to be known.The Bundoc spouses further argue that the above Article 36 should be read in relation to Article 39 of the same Code:Art. 39. Effect of Adoption. — The adoption shall:xxx xxx xxx(2) Dissolve the authority vested in the natural parents, except where the adopter is the spouse of the surviving natural parent;xxx xxx xxxand urge that their Parental authority must be deemed to have been dissolved as of the time the Petition for adoption was filed.The Court is not persuaded. As earlier noted, under the Civil Code, the basis of parental liability for the torts of a minor child is the relationship existing between the parents and the minor child living with them and over whom, the law presumes, the parents exercise supervision and control.Article 221 of the Family Code of the Philippines insisted upon the requisite that the child, doer of the tortious act, shall have been in the actual custody of the parents sought to be held liable for the ensuing damage:Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental

authority subject to the appropriate defenses provided by law.In the instant case, however, to hold that parental authority had been retroactively lodged in the Rapisura spouses so as to burden them with liability for a tortious act that they could not have foreseen and which they could not have prevented (since they were at the time in the United States and had no physical custody over the child Adelberto) would be unfair and unconscionable. Such a result, moreover, would be inconsistent with the philosophical and policy basis underlying the doctrine of vicarious liability. Put a little differently, no presumption of parental dereliction on the part of the adopting parents, the Rapisura spouses, could have arisen since Adelberto was not in fact subject to their control at the time the tort was committed.NOTES:(On why this petition was accepted by the SC) In view, however, of the nature of the issue raised in the instant petition, and in order that substantial justice may be served, the Court, invoking its right to suspend the application of technical rules to prevent manifest injustice, elects to treat the notice of appeal as having been seasonably filed before the trial court, and the motion (and supplemental motion) for reconsideration filed by petitioner in the trial court as having interrupted the reglementary period for appeal.

Dismissal of appeal; purely on technical grounds is frowned upon where the policy of the courts is to encourage hearings of appeal on their merits.

SECOND DIVISION[G.R. Nos. 139751-52. January 26, 2004]PEOPLE OF THE PHILIPPINES, appellee, vs. NOEL DARILAY, appellant.D E C I S I O NCALLEJO, SR., J.:The Spouses Pascual and Gemma Arganda were the parents of five children, the eldest of whom was Marilyn who was born on October 24, 1988.[if !supportFootnotes][1][endif] The second child, Ailyn, was born on September 14, 1990.[if !

supportFootnotes][2][endif] The couple and their children resided in Sitio Magrimpong, Sta. Cruz, Tinambac, Camarines Sur.[if !

supportFootnotes][3][endif] The couple knew the appellant, Noel Darilay, their 15-year-old barriomate because he and his friends frequented their house.At 7:30 a.m. on April 19, 1997, Hercules Bon was in the house of his uncle at Magrimpong, Sta. Cruz, Tinambac, Camarines Sur. At about 8:00 a.m., his cousin, the appellant, arrived. Their friend, Jose Delfino, also arrived. They had a drinking spree and consumed two bottles of gin. After about thirty minutes, the appellant left because his father had arrived and was looking for him.[if !supportFootnotes][4][endif]

At about 9:00 a.m., Marilyn and Ailyn were asked by their parents to buy tinapa (dried fish) from a store about half a kilometer away from their residence. They used a foot path to get to the store. After buying the dried fish, they walked back home. Momentarily, they saw the appellant emerge from a catmon tree.[if !supportFootnotes][5][endif] He struck Ailyn twice with a piece of wood on her back and boxed her on the left side of her face. She felt excruciating pain on her back and face, and all over her body. She fell unconscious.[if !supportFootnotes][6][endif] The appellant then struck Marilyn twice on the back with the piece of wood. He then carried Ailyn to a grassy area and left her there. When Ailyn regained her bearings, she looked for Marilyn but the appellant and her sister were nowhere to be found.[if !

supportFootnotes][7][endif]

Ailyn then rushed back home and told her mother what happened to her and Marilyn. [if !supportFootnotes][8][endif]

Their neighbor, Allan Candelaria, then rushed to the farm where Pascual worked as a laborer and informed him of what happened to his daughters.[if !supportFootnotes][9][endif] Pascual hurried home and looked for Marilyn in Sitio Magrimpong and within the vicinity of the river, to no avail. He rushed back home and after a while left again to resume his search for Marilyn. Again, he failed to find her.[if !supportFootnotes][10][endif] He searched anew for his daughter with the help of neighbors at around 1:00 p.m., again to no avail.

At 11:00 a.m. earlier that day, Andres Arganda, the victims uncle reported the incident to the police station. SPO1 Teresito Porteza, SPO1 Ernesto Ablaza and PO3 Antonio Pacardo rushed to the scene. [if !supportFootnotes][11][endif]

With the help of tanods, they searched for Marilyn in the place where the appellant attacked the girls. About 15 meters away, they found a yellow-and-white-colored dress,[if !supportFootnotes][12][endif] white panties,[if !supportFootnotes][13][endif]

and a slipper bearing the name of Marilyn. The dress was torn.[if !supportFootnotes][14][endif] In the meantime, Bon went back home and was informed that the appellant was wanted for the injuries of Ailyn and Marilyn. He looked for the appellant and found him in the house of Jose Delfino.[if !supportFootnotes][15][endif]

While the policemen were conducting their investigation, the appellant arrived accompanied by PO3 Antonio Pacardo. When asked where Marilyn was, he told the police that she was about 30 meters away. Upon the policemens failure to find the girl, the appellant finally told them where Marilyn was and volunteered to accompany them to the place. The policemen, the appellant and Pascual Arganda then left and proceeded to Palinao River, at Sitio Palinao, Binalay, Tinambac. They found Marilyns body in a grassy area near bushes and trees along the Palinao River.[if !supportFootnotes][16][endif] She was lying face down, her legs spread apart and was completely naked. There was blood on her nose, her mouth, and her vagina. Her hair was disheveled. Photographer John Francis Madrigal took pictures of Marilyn at the place where she was found.[if !supportFootnotes][17][endif] The policemen arrested the appellant and had him detained in jail.

Municipal Health Officer Dr. Salvador V. Betito, Jr., performed an autopsy of the cadaver and prepared a report thereon which contained the following findings:Post-mortem examination findings:1. Abrasions, multiple, face.2. Avulsion, 1 cm. x 3 cms., chin.3. Abrasions, multiple, left and right shoulder and anterior chest wall.4. Depressed fractures, occipital bone of the head.5. Abrasions, multiple, posterior chest wall.Vaginal Examination:a. Labia majora blood-stained, slightly prominent and distinctly gaping.b. Lacerations big, at six oclock position.c. Vaginal canal reddened, presence of oozing blood.Conclusions: She had sexual intercourse with a man.Cause of Death: Internal hemorrhage secondary to depressed fractures of the skull.[if !supportFootnotes][18][endif]

The doctor testified that the most fatal wound inflicted on Marilyn was wound no. 4. He also examined Ailyn and signed a report stating that the victim sustained the following injuries:Medical Certificate of Ailyn ArgandaPertinent Physical Examination Findings:1. Contusion, occipital aspect of the head.2. Abrasions, multiple, posterior aspect of the chest.3. Contusion, left zygomatic aspect of the face.[if !supportFootnotes][19][endif]

The appellant was charged of attempted murder under an Amended Information filed with the Regional Trial Court of Camarines Sur, Branch 63, docketed as Criminal Case No. RTC97-202, the accusatory portion of which reads:That on or about the 19th day of April 1997, at Sitio Magrimpong, Barangay Sta. Cruz, Municipality of Tinambac, Province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, did then and there, willfully, unlawfully and feloniously commences the commission of a felony directly by overt acts by then and there with treachery and abuse of superior strength assaulting and hitting with a piece of wood one AILYN ARGANDA, a seven (7) year old child, who as a consequence thereof, lost consciousness but the accused was not able to perform all the acts of execution which should have produced the felony intended by reason of some cause or accident other than his own spontaneous desistance, that is, due to her tenacity to live and the fact that she was not fatally hit when she was struck with the said piece of wood, to the damage and prejudice of said offended party.ACTS CONTRARY TO LAW.[if !supportFootnotes][20][endif]

The appellant was, likewise, charged with rape with homicide in an Amended Information filed in the same court, docketed as Criminal Case No. RTC97-201, the accusatory portion of which reads:That on or about the 19th day of April 1997, at Sitio Magrimpong, Barangay Sta. Cruz, Municipality of Tinambac, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design did then and there willfully, unlawfully and feloniously strike with a piece of wood one Marilyn Arganda, an eight (8) year old child as a consequence thereof she lost consciousness and when said child victim was thus unconscious or while hovering between life and death, accused Noel Darilay did then and there willfully, unlawfully and feloniously in order to satisfy his lust, had carnal knowledge with said child victim by means of force as a result of which Marilyn Arganda suffered an untimely and cruel death, to the damage and prejudice of the private offended party.ACTS CONTRARY TO LAW.[if !supportFootnotes][21][endif]

A joint trial of the two cases thereafter ensued.On September 5, 1997, the appellant was arraigned, assisted by counsel, and entered a plea of not guilty to the

crimes charged.The Case for the AppellantThe appellant denied killing and raping Marilyn and attempting to kill Ailyn. He claimed that Hercules Bon and Jose Delfino hit Ailyn and Marilyn and that it was also them who raped and killed Marilyn. Although he was present when Bon and Delfino committed the crimes, he could do nothing to prevent them.The appellant testified that he was 15 years old. He was inveigled by Hercules Bon to indulge and use rugby in the evening of April 18, 1997. At 7:30 a.m. the next day, April 19, 1997, he was in their house at Tinambac, Sta. Cruz, Camarines Sur, with his family: his parents, the Spouses Manuel and Julieta Darilay; and his siblings Christopher, Zarina, Midel, Francia and Shirley. When Bon fetched him, they proceeded to the house of Jose Delfino, also in Sitio Tinambac, Sta. Cruz, Magrimpong, where they had a drinking spree. Not content, they went to the riverbank and continued drinking. They were already inebriated.[if !supportFootnotes][22][endif] They saw Marilyn and Ailyn pass by on their way to the store of Salvacion San Andres. Bon ordered him and Delfino to follow the girls. They did as they were told. Ailyn, who was walking ahead of her sister, was grabbed by Delfino and the appellant, while Bon overtook Marilyn. Delfino then hit Ailyn. The latter fell to the ground, face down. Delfino and the appellant left Ailyn and went back to where Bon was. The latter proposed that they bring Marilyn to the other side of the riverbank. The appellant and Delfino agreed. Bon and Delfino carried Marilyn, while the appellant followed. When they reached their destination, Bon and Delfino took turns in raping Marilyn.The appellant testified that he wanted to prevent his companions from assaulting the victim but he was afraid because Bon and Delfino were armed with bladed weapons.[if !supportFootnotes][23][endif] Besides, he was already drunk and much weaker than his companions who had taken illicit drugs.[if !supportFootnotes][24][endif] He then left the place and went home, leaving Bon, Delfino and Marilyn behind. Policemen later arrived at their house and arrested and handcuffed him. He was told that Ailyn had pointed to him as the one who abducted Marilyn. The appellant insisted that Bon and Delfino were the culprits.[if !supportFootnotes][25][endif] He was brought to the municipal hall where policemen forced him to admit raping and killing Marilyn. He denied raping and killing the girl and told the policemen that Bon and Delfino were the ones who raped and killed her.[if !supportFootnotes][26][endif] It was he who pointed to the policemen and also accompanied them to where Marilyns body was found.[if !supportFootnotes][27][endif]

After trial, the court rendered judgment convicting the appellant of rape with homicide in Criminal Case No. RTC97-201, and attempted murder in Criminal Case No. RTC97-202. The court appreciated in favor of the appellant the privileged mitigating circumstance of minority, but sentenced him to reclusion perpetua for rape with homicide. The decretal portion of the decision reads:WHEREFORE, the prosecution having proved the guilt of the accused beyond reasonable doubt, accused Noel Darilay is found guilty of the offense of Rape with Homicide in Crim. Case No. RTC97-201 and guilty of the offense of Attempted Murder in Crim. Case No. RTC97-202. He is ordered to suffer the following penalties:1. In Crim. Case No. RTC97-201, Rape with Homicide, he is sentenced to suffer the penalty of Reclusion Perpetua;2. To pay the heirs of Marilyn Arganda the following:a. P75,000.00 for her death;b. P30,000.00 for moral damages;c. P10,000.00 for exemplary damages;d. P20,000.00 for actual damages;3. In Crim. Case No. RTC97-202, accused is hereby sentenced to suffer the following penalties:a. To suffer the penalty of imprisonment of TWO (2) MONTHS and ONE (1) DAY to FOUR (4) MONTHS of arresto mayor in its medium period;b. To pay the heirs of Ailyn Arganda the amount of P20,000.00 as moral damages and to pay the costs.The accused being a minor, his father Manuel Darilay is hereby ordered to pay the heirs of Marilyn Arganda and Ailyn Arganda the foregoing civil liabilities under Article 201, P.D. No. 603 as amended (Child and Youth Welfare Code).SO ORDERED.[if !supportFootnotes][28][endif]

On appeal, the appellant assails the decision of the trial court contending that:ITHE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT FOR THE CRIMES OF ATTEMPTED MURDER AND RAPE WITH HOMICIDE WHEN THE GUILT OF THE ACCUSED-APPELLANT WAS NOT PROVEN BEYOND REASONABLE DOUBT.IITHE TRIAL COURT ERRED IN NOT APPLYING THE PRIVILEGE[D] MITIGATING CIRCUMSTANCE OF MINORITY UNDER ARTICLE 68, PAR. 1, OF THE REVISED PENAL CODE IN CRIMINAL CASE NO. RTC97-201.

IIITHE TRIAL COURT ERRED IN NOT APPLYING THE PROVISIONS OF ARTICLE 192 OF PRESIDENTIAL DECREE NO. 603.[if !supportFootnotes][29][endif]

The appellant avers that it was physically impossible for him to have raped and killed Marilyn in the vicinity of the Palinao River. As testified to by SPO1 Teresito Porteza, one has to cross the river, then three-feet deep and strewn with big stones, to reach the place where Marilyns body was found. The appellant reasoned that since he was only 15 years old at the time, it is inconceivable that he could single-handedly carry a girl who weighed 18 kilos to a distance of one kilometer, even crossing the three-feet deep river in the process.The appellant asserts that all things considered, his testimony that Bon and Delfino carried Marilyn across the Palinao River and brought her to the other side is believable. He also claims that Ailyn failed to see Bon and Delfino because they were covered by grasses, the tallest of which were two feet high. Ailyns testimony, that the appellant hit her at the back, is highly improbable considering that the evidence shows that the appellant approached her head on. The appellant insists that the prosecutor failed to prove that he raped and killed Marilyn as Ailyn herself admitted that she did not see the appellant rape and kill her sister. As such, it was a travesty for the trial court to convict him of rape with homicide, relying solely on Ailyns testimony that he struck Marilyn on the back twice with a piece of wood.The contentions of the appellant do not hold water.First. SPO1 Porteza declared that the portion of the Palinao river which he and his companions crossed to reach the place where Marilyn was found is the ordinary place where people use to pass in going to the other side of the river.[if !supportFootnotes][30][endif] If ordinary people cross the river through that portion, there is no reason why the appellant could not have done the same. In fact, the appellant and the policemen were able to cross the river without much ado when they went to the place where Marilyn was found.Second. The appellant testified that he himself crossed the river when Bon and Delfino carried Marilyn, although he claimed that he merely accompanied them.Third. The appellant was a young man in the prime of his life while Marilyn was a girl under 12 years old, only 4 feet tall. It was, thus, not impossible for him to have carried her across the river to the other side and dump her nearby, under the cover of bushes and trees to prevent her body from being discovered.Fourth. The trial court gave credence and full probative weight to the testimony of Ailyn. The legal aphorism is that the findings of facts of the trial court, its calibration of the testimonies of witnesses and its assessment of their probative weight, as well as its conclusions, based on its findings are accorded by the appellate court high respect, if not conclusive effect. The appellant failed to convince the court that the trial court ignored, misunderstood or misinterpreted cogent facts and circumstances of substance which if considered will change the outcome of the case. Ailyn testified how the appellant mercilessly waylaid her and Marilyn as they were on their way home, and that she immediately told her mother that the appellant had attacked them, and that her sister was nowhere to be found:Q How is Marilyn related to you?A She is my sister.Q Who is older?A Marilyn.Q Where were you and your Ate Marilyn when you were asked by your mother to buy tinapa?A We were still inside the house.Q Where do you reside?A Magrimpong.Q What barrio?A Tinambac.Q Did you go with your sister to buy tinapa?A Yes, sir.ATTY. TAYER:Q Objection Your Honor.PROS. CU:This is a follow-up question, Your Honor.COURT:Already answered.PROS. CU:Q Where did you buy tinapa or smoked fish?

A Ate Arlyn (sic).Q Were you able to buy tinapa?A Yes, sir.Q So, after you bought smoked fish, what if anything, did you do next with your Ate Marilyn?A We went home.Q While on your way home with your Ate Marilyn, what, if anything, happened?A Something happened, sir.ATTY. TAYER:We will object to that, no basis.PROS. CU:What, if anything, happened.COURT:What if anything happened when on the way going home? The witness has already answered, anyway. Proceed.PROS. CU:Q You said that while on your way home, something happened. What was this event that happened?A Suddenly, Noel Darilay came out from he were (sic).Q Where did he come from?A From a catmon tree.Q When you saw Noel Darilay suddenly came out from a catmon tree, what if anything transpired next?A He struck us.Q What if anything was Noel Darilay holding?A A wood.Q Who was the person whom Noel Darilay struck first?. . .COURT:Witness may answer. Who is the first one?A I was the one, sir.PROS. CU:Q In what portion of your body were you struck at?A At my back.Q How many times?A Two (2) times.Q Now, after you were struck by Noel Darilay with that piece of wood which he was holding, what if anything did he do next to you?A He punched me at my left cheekbone (sic).Q After you were punched by Noel Darilay, what if anything did he do to Marilyn?A He also struck Marilyn at her back.Q And how many times did Noel Darilay strike your Ate Marilyn?A Twice also, sir.Q What, if anything, did you feel when you were struck by Noel Darilay with that piece of wood?A I felt pain all over my body.Q What about when you were punched by Noel Darilay on your left cheek, what, if anything, did you feel?A My face was very painful.Q After Noel Darilay struck your Ate Marilyn twice also at her back with that piece of wood, what if anything happened next?A He threw us on the grassy portion.Q Who first was carried by Noel Darilay to be thrown in a grassy portion then?A I was the one, sir.Q Why were you not able to escape, Ailyn?A Because my body was very painful.Q For how long did you find yourself on that state or condition in the place where you were thrown at?A Half an hour, sir.Q Were you able to go back to your house, Ailyn?A Yes, sir.Q What time did you go back to your house?

A Around 9:00 oclock in the morning.Q Was your Ate Marilyn with you when you went back to your house?ATTY. TAYER:Objection, leading.COURT:Sustained.PROS. CU:Q Were you alone when you went back?ATTY. TAYER:Objection, leading.COURT:Reform your question.PROS. CU:Q Who was with you when you went home?A I have no companion, sir.Q Why, where was, if you know, your Ate Marilyn?A She was gone and I did not anymore find her.Q When you arrived at your residence or house, who was the person inside the house?A My mother, sir.Q So, what, if anything, did you tell to your mother?A I told my mother that Noel struck us.Q Do you know the person of Noel Darilay?A Yes, sir.[if !supportFootnotes][31][endif]

Despite intense and grueling cross-examination by the appellants counsel, Ailyn remained steadfast and unrelenting.Fifth. The appellant was merely clutching at straws when he attempted to pin the criminal liability on Bon and Delfino for the injuries sustained by Ailyn and the rape and death of Marilyn. If, indeed, Bon and Delfino were involved, Ailyn would have said so when she testified. Moreover, Ailyn identified the appellant as the only culprit. There is no evidence on record that Ailyn harbored any ill or devious motive to point to the appellant as the sole perpetrator of the crime, for which the latter could be meted the capital penalty, if convicted. Hence, Ailyns testimony is entitled to full probative weight. We agree with the disquisitions of the trial court, thus:These foregoing circumstantial evidence pieced together, points to the accused as the rapist-murderer of 8-year-old Marilyn Arganda. The testimony of Ailyn Arganda identifying the accused having struck her and her sister on the very day of April 19, 1997 between 8:30 and 9:00 oclock in the morning at Magrimpong, Tinambac, Camarines Sur is consistent with truth considering that it was even admitted by the accused that about that time, they were following the two (2) sisters. However, the defense of the accused was that it was Hercules Bon who had struck Marilyn Arganda while Ailyn Arganda was walking ahead of Marilyn was struck by Jose Delfino. This statement of the accused is quite unbelievable over the statement of Ailyn Arganda even [if] she testified that she was so definite that it was accused Noel Darilay who was alone at that time who struck her and her sister. Ailyn Arganda although she was only 8 years old is a very much qualified witness despite her tender age because as observed by the court, she was narrating the incident in a straightforward manner. Because of her tender age, she was asked by the prosecution whether she knows that she has to tell the truth and nothing but the truth in giving her testimony in court and she answered, yes, and she even testified that telling a lie is bad. Her testimony was likewise corroborated by the findings of Dr. Betito who conducted an autopsy examination on the cadaver of Marilyn Arganda and conducted a medical examination on the injuries of Ailyn Arganda. The findings of Dr. Betito was that Marilyn Arganda suffered injuries on her head which were fatal and would cause internal hemorrhage that caused her death while in the physical examination that he conducted on Ailyn Arganda. Dr. Betito testified that he had found contusion and abrasion on the back of the head of Ailyn Arganda and also contusion on the left face of Ailyn Arganda. Ailyn Arganda had testified clearly that she was hit twice by the accused and hit the back of her head and she was punched hitting her cheek and this was corroborated then by the findings of Dr. Betito. Likewise, she testified that her sister was also struck hitting her on the head and the findings of Dr. Betito on the cadaver of Marilyn Arganda was that she had injuries on her head which may be caused by a hard object. His alibi that he was not the one who had struck Marilyn and Ailyn Arganda and pointing to Hercules Bon and Jose Delfino is unbelievable considering that Ailyn Arganda positively identified him to be the one who both (sic) struck her and her sister Marilyn on April 19, 1997.[if !supportFootnotes][32][endif]

[T]he testimony of Ailyn Arganda was made in a straightforward manner and all the facts that she has narrated jibed with the findings of the doctor who conducted the autopsy on the cadaver of Marilyn and conducted the medical examination on her. Her testimonies even remained the same and she remained unshaken during the cross-examination. The witness who is of tender age such as Ailyn Arganda is a credible witness because usually children of tender age cannot be coached and had to tell the truth of what she had experienced. The court has no doubt as to the truthfulness of the testimony of Ailyn Arganda which is consistent with common experience in the natural course of things coupled with the fact that it was corroborated by an expert witness who conducted [an] examination both on Ailyn Arganda herself and on the cadaver of Marilyn Arganda.The testimony of children of sound mind is likely to be more correct and truthful than that of older persons, so that once established that they have fully understood the character and nature of an oath, their testimony should be given full credence. (Julio Marco vs. CA and People of the Philippines, G.R. No. 117561, June 11, 1997).[if !supportFootnotes]

[33][endif]

The Crime Committed by theAppellant in CriminalCase No. RTC97-202We agree with the ruling of the trial court that the appellant is guilty of attempted murder for the injuries sustained by Ailyn. Under Article 6 of the Revised Penal Code, there is an attempt to commit a felony when the offender commences the commission of a felony by direct acts, and does not perform all the acts of execution by reason of some causes or accident other than his own spontaneous desistance. In People v. Lizada,[if !supportFootnotes][34]

[endif] we held:The Supreme Court of Spain, in its decision of March 21, 1892, declared that for overt acts to constitute an attempted offense, it is necessary that their objective be known and established or such that acts be of such nature that they themselves should obviously disclose the criminal objective necessarily intended, said objective and finality to serve as ground for designation of the offense.[if !supportFootnotes][35][endif]

For one to be criminally liable for a consummated, frustrated or attempted homicide or murder, there must be, on the part of the accused, an intent to kill the victim. Intent to kill is an internal act but may be proved by evidence, inter alia, that the accused used a lethal weapon; the nature, location and number of wounds sustained by the victim; and by the words uttered by the malefactor before, at the time or immediately after the infliction of the injuries on the victim.[if !supportFootnotes][36][endif] In this case, the prosecution proved that the appellant intended to kill the victim Ailyn because (a) he used a piece of wood; (b) he struck Ailyn twice on the back and boxed her on the face; (c) he threw her to the ground and dragged her to a grassy area; (d) he left Ailyn all by herself. There is evidence on record that the injuries sustained by Ailyn were mortal and could have caused her death. She recovered from her injuries in less than 5 days but not more than 9 days. Furthermore, the crime was qualified by treachery because Ailyn, who was only 7 years old at the time, could not defend herself against the appellants physical assault. Hence, the appellant is guilty of attempted murder.The Crime Committed by theAppellant in Criminal CaseNo. RTC97-201The appellant asserts that there was no eyewitness to the rape and killing of Marilyn. He contends that the prosecution failed to prove that the appellant raped the victim and killed her on the occasion or by reason of the said rape. He should thus be acquitted of the said crime. For its part, the Office of the Solicitor General avers that as gleaned from the evidence on record and the findings of the trial court in its decision, the prosecution adduced circumstantial evidence to prove that the appellant raped the victim and killed her on the occasion or by reason of said crime. Hence, it asserts, the trial court did not err in convicting the appellant of the special complex crime of rape with homicide.We agree with the appellant that the prosecution failed to adduce direct evidence to prove that he raped and killed Marilyn on the occasion or by reason of the said crime. However, direct evidence is not indispensable to prove the guilt of the accused for the crime charged; it may be proved by circumstantial evidence. In People v. Delim,[if !

supportFootnotes][37][endif] we held, thus:Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. What was once a rule of ancient practicability is now entombed in Section 4, Rule 133 of the Revised Rules of Evidence which states that circumstantial evidence, sometimes referred to as indirect or presumptive evidence, is sufficient as anchor for a judgment of conviction if the following requisites concur:

x x x if (a) there is more than one circumstance; (b) the facts from which the inferences are derived have been established; and (c) the combination of all the circumstances is such as to warrant a finding of guilt beyond reasonable doubt.The prosecution is burdened to prove the essential events which constitute a compact mass of circumstantial evidence, and the proof of each being confirmed by the proof of the other, and all without exception leading by mutual support to but one conclusion: the guilt of the accused for the offense charged. For circumstantial evidence to be sufficient to support a conviction, all the circumstances must be consistent with each other, consistent with the hypothesis that accused is guilty and at the same time inconsistent with the hypothesis that he is innocent, and with every other rational hypothesis except that of guilt. If the prosecution adduced the requisite circumstantial evidence to prove the guilt of accused beyond reasonable doubt, the burden of evidence shifts to the accused to controvert the evidence of the prosecution.[if !supportFootnotes][38][endif]

We are convinced that, based on the evidence on record and as declared by the trial court in its decision, the prosecution adduced circumstantial evidence to prove beyond cavil that it was the appellant who raped and killed Marilyn on the occasion or by reason of the rape. Hence, he is guilty beyond reasonable doubt of rape with homicide, a special complex crime.First. The appellant alone waylaid Ailyn and Marilyn while the two were walking home after buying tinapa. The appellant hit Ailyn twice with a piece of wood on her back and boxed the left side of her face, rendering her unconscious. The appellant also struck Marilyn with a piece of wood on the back. After dragging Ailyn to a grassy area, he left her there.Second. When Ailyn regained consciousness, Marilyn and the appellant were nowhere to be found.Third. The torn dress, the pair of panties, and a slipper were found about 15 meters away from where the two young girls were waylaid by the appellant.Fourth. The appellant testified that he himself accompanied the policemen and pointed to the place where Marilyns body was dumped, completely naked, with blood oozing from her nose and vagina.We are convinced that the appellant raped Marilyn about 15 meters from where he had earlier waylaid Ailyn. He then carried Marilyn across the river where he killed her to prevent her from revealing to the authorities that she was raped. The appellant hid her body under the bushes and trees to thus prevent police authorities from discovering that he killed Marilyn. Irrefragably, Marilyn was killed by reason of the rape. The killing of a child, barely 9 years old, is murder. Nonetheless, the appellant is guilty of rape with homicide because the latter crime is used in its generic sense.The Proper Penalties Against the AppellantAs found by the trial court, the appellant was over 9 years but under 15 years old when he committed the crime. The appellant acted with discernment when he committed the same. Article 6 of the Revised Penal Code provides that the imposable penalty should be reduced by two degrees. Under Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, rape with homicide is punishable by death. Reducing the penalty by two degrees, the imposable penalty is reclusion temporal, from which the maximum of the indeterminate penalty should be taken. To determine the minimum of the penalty, it should be reduced by one degree, which is prision mayor. Applying the indeterminate sentence law and taking into account how the ghastly crime was committed, the appellant should be sentenced to suffer an indeterminate penalty of from 6 years and one day of prision mayor in its medium period, as minimum, to 17 years and 4 months of reclusion temporal in its medium period, as maximum.For attempted murder, the trial court sentenced the appellant to an indeterminate penalty, from 2 months and one day to 4 months of arresto mayor. The penalty imposed by the trial court is erroneous. The penalty of consummated murder under Article 248 of the Revised Penal Code, as amended, is reclusion perpetua to death. The imposable penalty should be reduced by two degrees under Article 68 of the Revised Penal Code because the appellant is a minor. As reduced, the penalty is reclusion temporal.[if !supportFootnotes][39][endif] Reclusion temporal should be reduced by two degrees lower, conformably to Article 51 of the Revised Penal Code which is prision correccional. This penalty should be reduced by one degree, which is arresto mayor, to determine the minimum of the indeterminate penalty. Accordingly, the appellant should be sentenced to a straight penalty of four (4) months. It goes without saying that if the trial court decides to impose on the accused a penalty of imprisonment of one year or less, it should impose a straight penalty and not an indeterminate penalty.Civil Liability for the CrimesConsidering that at the time of the commission of the crime, the appellant was a minor under the parental authority of his parents, the Spouses Manuel and Julieta Darilay are primarily and directly liable for the damages sustained by the heirs of the victims Marilyn and Ailyn Arganda.[if !supportFootnotes][40][endif] Consequently, the Spouses

Manuel and Julieta Darilay are hereby ordered, jointly and severally, in Criminal Case No. RTC97-201, to pay to the heirs of the victim Marilyn Arganda, the amount of P100,000.00 as civil indemnity; [if !supportFootnotes][41][endif] P50,000.00 as moral damages;[if !supportFootnotes][42][endif] and P28,000.00 as exemplary -damages.[if !supportFootnotes][43][endif] The prosecution failed to adduce evidence in support of actual damages; hence, the heirs of the victim are not entitled thereto. They are, however, entitled to temperate damages in the amount of P25,000.00.[if !supportFootnotes][44][endif]

In Criminal Case No. RTC97-202, the Spouses Manuel and Julieta Darilay are hereby ordered to pay, jointly and severally, to Ailyn Arganda, the amount of P25,000.00 as moral damages and P25,000.00 as exemplary damages.

IN LIGHT OF ALL THE FOREGOING, the appealed decision of the Regional Trial Court of Camarines Sur, Branch 63, is AFFIRMED WITH MODIFICATION. In Criminal Case No. RTC97-201, the appellant is found guilty of rape with homicide under Article 335 of the Revised Penal Code, as amended, and is hereby sentenced to suffer an indeterminate penalty from six (6) years of prision mayor in its medium period, as minimum, to seventeen (17) years and four (4) months of reclusion temporal in its medium period, as maximum. The Spouses Manuel and Julieta Darilay, are hereby ordered to pay, jointly and severally, to the heirs of the victim Marilyn Arganda P100,000.00 as civil indemnity; P50,000.00 as moral damages; P25,000.00 as exemplary damages; and P25,000.00 as temperate damages.

In Criminal Case No. RTC97-202, the appellant is found guilty beyond reasonable doubt of attempted murder under Article 248 in relation to Article 6 of the Revised Penal Code, and is hereby sentenced to suffer imprisonment of four (4) months. The Spouses Manuel and Julieta Darilay, are ordered to pay, jointly and severally, to Ailyn Arganda the amount of P25,000.00 as moral damages and P25,000.00 as exemplary damages.SO ORDERED.

Puno, Chairman, Quisumbing, Austria-Martinez and Tinga, JJ., concur.[if !supportFootnotes]