Crim Full Text - Midterm

Crim Law Rev Midterm (INCOMPLETE)

PEOPLE OF THE PHILIPPINES, appellee, vs. JOSE OBESO, appellant.2003 Oct 243rd DivisionG.R. No. 152285D E C I S I O N

PANGANIBAN, J.:

The prosecution bears the burden of proving beyond reasonable doubt the guilt of the accused. Every conviction must rest on the strength of the people’s evidence, never on the weakness of that for the defense.

The Case

Before us is an appeal from the June 19, 2001 Decision[1] of the Regional Trial Court (RTC) of Cebu City (Branch 18) in Criminal Case No. CBU-49812, convicting Jose Obeso of kidnapping and serious illegal detention. The decretal portion of the Decision reads as follows:

“WHEREFORE, in view of the foregoing facts and circumstances, accused Jose Obeso is found guilty beyond reasonable doubt of the crime of kidnapping and serious illegal detention under Article 267 of the Revised Penal Code and he is hereby imposed the penalty of RECLUSION PERPETUA, with the accessory penalties of the law; to indemnify the victim with damages in the sum of P50,000.00 and to pay the costs.”[2]

In an Information[3] dated February 23, 1999, appellant was charged as follows:

“That on or about the 9th day of December 1998 at around 3:00 o’clock in the afternoon, more or less, at Sitio Ilang-Ilang, Barangay Lagtang, Municipality of Talisay, Province of Cebu, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, a private individual, without lawful authority and for the purpose of detaining the victim, or depriving her liberty, a minor, three (3) years old at the time of the commission of the offense and female, without the consent of the victim or her parent or guardian did then and there willfully, unlawfully and feloniously kidnap, detain, or deprive the liberty of one Lilibeth Cabriana, the victim, to the damage and prejudice of the latter.”[4]

During his arraignment on April 12, 1999, appellant, assisted by his counsel,[5] pleaded not guilty after the Information had been read and translated to him in a language that he fully understood.[6] After pretrial and trial, the lower court promulgated its assailed Decision. The Public Attorney’s Office then filed a Notice of Appeal on August 7, 2001.[7]

The Facts

Version of the Prosecution

In its Brief,[8] the Office of the Solicitor General (OSG) narrates the factual antecedents of the case as follows:

“Around four (4) o’clock in the afternoon of December 9, 1998, Elizabeth Cabriana, an unwed mother, together with her three (3) year old daughter Lilibeth Cabriana, went to the Talisay Public Market located at Tabuno[k], Talisay, Cebu, to do some caroling to augment their day to day expenses. As it would be too burdensome for Elizabeth to bring Lilibeth along with her, she (Elizabeth) took her child to the store of Lucy

Nacasio. Thereupon, Elizabeth instructed Lucy’s daughter, Wowie, to look after her child after which, Elizabeth left.

“After finishing her caroling around five (5) o’clock in the afternoon of the same day, Elizabeth proceeded to Lucy’s place to fetch Lilibeth. To her surprise, Elizabeth was informed by both Lucy and Wowie that a certain Jose Obeso took her child.

“Frantic, Elizabeth proceeded to the reservoir located at Ilang-Ilang, Lagtang, Talisay, Cebu, to seek the assistance of Gemelito Abendan, a ‘barangay tanod,’ in retrieving her child.

“Upon her arrival, Elizabeth requested Gemelito to look for Lilibeth. A short while thereafter, one of Gemelito’s neighbors informed the latter that accused-appellant was last seen headed towards the back portion of Gemelito’s house. Acting on the information, Gemelito followed the route supposedly taken by appellant.

“A few moments thereafter, Gemelito chanced upon the appellant and Lilibeth. Per Gemelito’s recollection, Lilibeth was [seated] on the lap of the appellant. Immediately, Gemelito took possession of the child and inquired from the appellant why the latter brought the child there. In response, appellant answered that Lilibeth wanted to go ‘up there’ pointing to the hilly portion beyond the road. At this point, Gemelito noticed that appellant was drunk. Having gained custody of the child, Gemelito took the lat[t]er to her mother. Thereafter, Gemelito brought the appellant to the police station at Tabunok, Talisay, Cebu.

“Lilibeth Cabriana, the victim in this case, testified that she knows the appellant as in fact, she pointed to the appellant when instructed to do so. When asked why she knew the appellant, Lilibeth pressed her left hand on her private part. Subsequently, the court asked Lilibeth what had the appellant done to her. Again, in response to the question propounded by the court, Lilibeth placed her left hand on her front. When asked by the court what Lilibeth meant by placing her left hand near her private part, Lilibeth uttered the word ‘Jose.’

“Lilibeth likewise admitted having been carried by the appellant towards the latter’s house. At this juncture, the court asked Lilibeth what appellant did to her when she was brought to appellant’s house, to which Lilibeth answered by pressing her hand against her private part. Lilibeth likewise testified that she was crying when the appellant brought her to his house.

“When called to the witness stand, appellant presented an entirely different version of the incident. According to him, on December 9, 1998, he was in the vicinity of the Tabunok Public Market when he saw the victim, Lilibeth Cabriana. Allegedly, the child was looking for her mother. Appellant knew Lilibeth because he frequently saw that latter with Elizabeth in the public market.

“Basically, appellant averred that he merely guided the child towards the side of the road to avoid being hit by the oncoming vehicles. Not too long thereafter, a barangay tanod apprehended him. Appellant was informed that Lilibeth’s mother was looking for her.”[9]

Version of the Defense

On the other hand, appellant relates his version of the facts thus:

“JOSE OBESO averred that on December 9, 1998 at around 4:00 o’clock in the afternoon, after buying rice and viand, and while he was walking towards his house passing through the highway, he saw a child at the Tabunok Public Market whom he knew by the name of Lilibeth Cabriana. He happened to know the child because she used to go with her mother [to] the public market where her mother sold vegetables. At the time he saw the child, the latter was crying and was looking for her mother. Thinking of the safety of the child, he guided her and placed her beside him so that she would not be hit by the passing vehicles. After guiding and placing her in a safe place outside the Tabunok Public Market, he was apprehended by a barangay tanod at around 5:00 o’clock in the afternoon. He was in the company of the child for about ten (10) minutes. He did not take the child to any other place. He was with the child as she was crying. He held the child by the hand when he guided her towards the side of the road because there were many passing vehicles. He had no other purpose other than that.

“After the barangay tanod apprehended him, he was detained and a complaint for kidnapping was filed against him. Asked if he knows what is meant by kidnapping, he replied that he knows that kidnapping is to bring a person somewhere in order to be paid for her release.

“Upon further examination by the defense counsel, he declared that he accompanied the child Lilibeth Cabriana [to] Ilang-Ilang, Lagtang, Talisay, while she was waiting for her mother. It was about five (5) minutes that he was with the child when a barangay tanod arrived and arrested him. The barangay tanod told him that the mother of the child was looking for her. He turned over the child to her mother. Prior to his arrest, he already intended to bring the child to the barangay hall.”[10]

Ruling of the Trial Court

The RTC ruled that the prosecution had established beyond reasonable doubt all the elements of the crime of kidnapping and serious illegal detention. The lower court construed deprivation of liberty as actual confinement or restriction of the person of the offended party. The RTC perfunctorily rejected the defense of denial, holding that “greater weight must be given to positive testimony than to the denial of the defendant.”

Hence, this appeal. [11]

The Issues

In his Brief, appellant submits this lone error for our consideration:

“The court a quo gravely erred in finding accused-appellant guilty beyond reasonable doubt of kidnapping and serious illegal detention.”[12]

The Court’s Ruling

The appeal is meritorious.

Sole Issue:

Guilt Beyond Reasonable Doubt

Appellant anchors his defense on the alleged failure of the prosecution to overcome his right to be presumed innocent. In particular, he questions the finding of the court

a quo that he “illegally kidnapped, detained or in any manner deprived the alleged victim of her liberty.”[13]

Kidnapping and serious illegal detention are defined and punished under Article 267 of the Revised Penal Code (RPC), which reads:

“Art. 267. Kidnapping and serious illegal detention. – Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death;

“1. If the kidnapping or detention shall have lasted more than three days.

“2. If it shall have been committed simulating public authority.

“3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made.

“4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female or a public officer.

“The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above mentioned were present in the commission of the offense.

“When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed.”

The elements of the crime are as follows:

1. The offender is a private individual.

2. That individual kidnaps or detains another or in any other manner deprives the latter of liberty.

3. The act of detention or kidnapping is illegal.

4. In the commission of the offense, any of the following circumstances is present:

a. The kidnapping or detention lasts for more than three days.

b. It is committed by one who simulates public authority.

c. Any serious physical injury is inflicted upon the person kidnapped or detained, or any threat to kill that person is made.

d. The person kidnapped or detained is a minor, a female or a public officer.[14]

The crux of the controversy in this case is the second element relating to detention or deprivation of liberty. Appellant firmly asserts that nowhere in the testimonies of the prosecution witnesses was it established that he had illegally deprived the child of her liberty. In fact, he points to the prosecution’s failure to ask her directly whether she was forcibly taken against her will.

In turn, appellee argues that the mere fact that the girl was found with appellant in the mountainous area of Ilang-Ilang, Lagtang, Cebu, undeniably demonstrated his

intention to restrain and deprive her of her liberty. Appellee cites jurisprudence in support of its position that in the crime of kidnapping and serious illegal detention, the victim need not be kept within an enclosure to restrict freedom of movement.

We agree with appellant. It is true that for kidnapping to take place, it is not necessary that the victim be placed in an enclosure;[15] neither is it necessary that the detention be prolonged.[16] However, the essence of kidnapping is the actual deprivation of the victim’s liberty coupled with indubitable proof of the intent of the accused to effect such deprivation.[17]

A review of the narration of events by the prosecution itself shows that it was not able to establish actual confinement, detention or restraint of the child. The testimonies of its witnesses did not adequately prove that she had been forcefully transported, locked up or restrained.

Likewise, the prosecution failed to establish that appellant had intended to deprive the girl of her liberty. Neither the testimony of her mother nor that of the barangay tanod showed what his intent was. Even less helpful was the testimony of the child herself. Certainly, we take note of her tender age, but this consideration cannot be used to supply her testimony with the details that would make appellant liable for the serious crime he was charged with. Absent any indubitable proof of his purposeful or knowing action to restrain her forcibly, there can be no taking coupled with intent to complete the commission of the offense.[18]

Moreover, if the person detained is a child, there is a further question that needs to be addressed: did the accused intend to deprive the parents of custody of their child?[19] We find this matter insufficiently proven.

The girl’s mother testified as to the circumstances of this case in the following manner:

“ATTY. DEBALUCOS:

Q Did I get you right that while caroling you left your child somewhere in Tabuno[k]?A Yes, I left the child with Lucy.

Q You just left your child there at Lucy’s Place but you did not leave it to her case, is it not?A I just left the child at Lucy’s Place without her knowledge. In fact, she saw Jose brought the child.

Q You did not bother to tell Lucy that you are leaving the child at her place because Lucy at that time was very busy is that it?A Yes, Lucy was busy at that time [but] she noticed that [J]ose bro[ugh]t the child.

[Q] In fact, considering that you did not tell Lucy that you were leaving your child at that time Lucy does not even know where you were going at that time?

WITNESS:

A Lucy knew that I was going to Tabunoc Market.ATTY. DEBALUCOS:

Q But you did not tell her that you are going to somewhere at Tabuno[k] Public Market?

A Lucy told me that the child was brought by Jose.

ATTY. DEBALUCOS:

Q My question Miss Cabriana that you did not bother to tell Lucy that you are going somewhere else particularly at Tabuno[k] Market?A I told the daughter of Lucy to watch over my child.

Q How old is that child of Lucy, if you know?A 13 years old.

Q Now, you left your child there at Lucy’s Place because you consider her as a burden in conducting caroling at that time?A Yes.

Q It did not even occur to your mind to bring the child with you considering that [s]he was only 3 years old at that time?A I was in the belief that nobody would take my child. I went on caroling in order to earn something to feed my child.

Q Meaning to say it did not occur to your mind to just bring the child with you while caroling?A No, sir because I did not think somebody will get my child.

Q In fact, even if you left the child at Lucy’s Place even you know that nobody was taking [care] of your child who was just 3 years old at that time you just proceeded in caroling at Tabuno[k], Public Market?A Yes, I was compelled to do so because I have no money to buy food [for] my child and my child even cried.

COURT:

Proceed.

ATTY. DEBALUCOS:

Q About what time did you come back to Lucy’s Place where you [left] your child?A 5:00 o’clock.

COURT:

Q 5:00 o’clock, morning or afternoon.A Afternoon.

ATTY. DEBALUCOS:

Q And that daughter of Lucy was not around at that time when you went back?A Lucy and her daughter [were] around when I [came back. T]hey told me that my daughter was brought by Jose Obeso.

Q Did you not bother to ask that daughter of tha[t] certain Lucy why did she allow that certain Jose Obeso to bring this child?A The daughter of Lucy [already saw] Jose bringing the child to the buzzes [sic]. I asked the daughter of Lucy why she allowed the child to be brought by Jose but she said [J]ose insisted in bringing the child with him.

Q Now, considering that you were not around because you said you were caroling when your child was allegedly taken by Jose Obeso that story of the taking of your child was only related to you, is that it?A Yes, it was told.

COURT:

Q And who in particular told you?A It was Wowie the daughter of Lucy.

Q What is the real name of Wowie?A They just called her Wowie.

ATTY. DEBALUCOS:

Q In short, Mrs. Cabriana you have no personal knowledge about the taking of your child by Jose Obeso, is that it?A I did not see.”[20]

On the other hand, the barangay tanod who was able to retrieve the child testified as follows:

“FISCAL MANALAC:

Q What did you notice, if any, about the body of the child?A I don’t know about it.

Q Now, when you took possession of the child from Jose Obeso, as barangay tanod, did you inquire from him why he was in possession of the child?A I asked him and he told me that the child wanted to be there up.

COURT:

Witness extending left hand with finger pointing to the upper portion of the courtroom.

ATTY. DEBALUCOS:

As if, Your Honor, that witness is indicating that the place is uphill.

COURT:

Q What was there that was referred to as ‘up there’?A It was Jose who said to me.

Q Have you noticed anything there up which was pointed by him?A To a hilly portion beyond the road.

Q After you recovered the child, did you turn over Jose Obeso to the Police Station in Talisay?A Yes.

x x x x x x x x x

Q What was the child doing at the time the child was in the possession of Jose Obeso?A I don’t know, sir.

x x x x x x x x x

COURT:

Q Was the child harmed as you saw [her]?A I don’t know, Your Honor, because he was just holding the child.”[21]

x x x x x x x x x

ATTY. DEBALUCOS:Q Mr. Abendan, you told the Court that while you were in your house on December 10, 1998, your assistance was sought by Elizabeth Gabriana to help her in looking for her child. Did I get you right?A Yes, sir.

Q And according to Gabriana, her child was allegedly brought by the accused in this case?A Yes.

Q In other words, you were not present during the actual, during the alleged actual taking of the child by herein accused?A No, sir. I was in our house.

Q In fact, you were also further told by this Elizabeth Gabriana that she was also not present. When accused allegedly brought her child with him?A I don’t know, sir, because she just appeared in our house?

Q And you just brought herein accused to the police station because somebody just advised you to turn him over to the police?A Yes.

Q Even if you did not know the circumstances surrounding why he allegedly brought the child with him?

FISCAL MANALAC:I object to the question, Your Honor. It is immaterial and misleading and irrelevant, because it contradicts verified knowledge that the barangay tanod personally received the report of the commission of crime from the mother. And after such information, he went to recover the child. That is the doctrine in ....

COURT:And what is the core of the question?

FISCAL MANALAC:Objection was it is immaterial and misleading and irrelevant. I invoke the case of Padilla versus Court of Appeals, which says that police, upon receipt of a report from eye witess, complainant may subject the report and that is considered verified knowledge, from which the police can act or conduct the arrest of a person.

COURT (to Atty. Debalucos):

What do you say Panero?

ATTY. DEBALUCOS:I am not misleading. I’m riding on the testimony of witness.

COURT:That was touched?

ATTY. DEBALUCOS:Yes, Your Honor.

COURT:Ruling--Witness may answer.

WITNESS:A I have no knowledge, sir.

ATTY. DEBALUCOS:Q Are you referring to the police station at Tabunok, Talisay, Cebu, where you brought Jose Obeso?A Tabunok, Talisay, sir.

Q Isn’t it a fact that at Tabunok, Talisay, you were told by the policeman there that [the] child who was allegedly brought by the accused in this case, just kept roaming in Tabunok and was a neglected child?A Yes, I was told by the police.”[22]

Far from clearly establishing the elements of the crime, these testimonies give rise to more questions: Why did appellant take the victim? Was she left by her mother? Most important of all, did he indeed kidnap and restrain her or deprive her of her liberty in any manner whatsoever?

Appellee argues that the alleged deprivation of liberty consisted of bringing the girl near the reservoir of Ilang-Ilang. We cannot see how this act alone could establish either deprivation of liberty or intent to commit that crime. While it does not take much to scare the wits out of a small child, we cannot say with certainty that, under the attendant circumstances in the present case, the girl was deprived of her liberty. Without any further act or evidence reinforcing appellee’s inference, the Court[23] -- while taking cognizance of the child’s minority -- hesitates to find that appellant indeed kidnapped her.

Time and time again we have said that a conviction must stand on the strength of the prosecution evidence, not on the weakness of that for the defense.[24] Here, we find the evidence presented by the prosecution to be too weak and too insufficient to convict appellant of the serious crime with which he was charged.

It bears stressing that the Court is making its judgment on the basis of the evidence presented by the prosecution. We are not concluding that the child was not a victim in this case, or that no wrong was actually committed against her. But given the insufficiency of evidence, it is clear that the prosecution has failed to overcome the presumption of appellant’s innocence.

WHEREFORE, the appealed Decision is hereby REVERSED and SET ASIDE. Appellant Jose Obeso is ACQUITTED on reasonable doubt and is ordered immediately RELEASED from custody, unless he is being held for some other lawful cause.

The Director of the Bureau of Corrections is ORDERED to implement this Decision forthwith and to INFORM this Court, within five (5) days from receipt hereof, of the date appellant was actually released from confinement. Costs de oficio.

SO ORDERED.

JOSE "PEPITO" TIMONER, petitioner, vs. THE PEOPLE OF THE PHILIPPINES AND THE HONORABLE COURT OF APPEALS, IV DIVISION, respondents.1983 November 252nd DivisionG.R. No. L-62050D E C I S I O N

ESCOLIN, J.:

Petition for review of the affirmance in toto by the Court of Appeals, now the Intermediate Appellate Court, of the judgment of conviction handed down by the then Municipal Court of Daet, Camarines Norte, in Criminal Case No. 4281, entitled "People of the Philippines vs. Jose Timoner," finding petitioner guilty of the crime of grave coercion, as follows:

"WHEREFORE, this Court finds the accused JOSE 'PEPITO' TIMONER guilty beyond reasonable doubt of the crime of Grave Coercion as penalized under Art. 286 of the Revised Penal Code, and hereby sentences the said accused pursuant to the provision of Rule 64, Par. 3, to suffer SIX MONTHS OF IMPRISONMENT OF ARRESTO MAYOR IN ITS MAXIMUM PERIOD, to pay a fine of P300.00 and to pay the offended party in the amount of P5,000.00 as damages, without subsidiary liability in case of insolvency. The other accused SAMUEL MORENA and ERNESTO QUIBRAL are hereby ordered ACQUITTED."

The salient facts are not disputed. At about 10:00 in the evening of December 13, 1971, petitioner, then Mayor of Daet, Camarines Norte, accompanied by two uniformed policemen, Samuel Morena and Ernesto Quibral, and six laborers, arrived in front of the stalls along Maharlika highway, the main thoroughfare of the same town. Upon orders of petitioner, these laborers proceeded to nail together rough lumber slabs to fence off the stalls which protruded into the sidewalk of the Maharlika highway. Among the structures thus barricaded were the barbershop of Pascual Dayaon, the complaining witness,. and the store belonging to one Lourdes Pia-Rebustillos. These establishments had been recommended for closure by the Municipal Health Officer, Dra. Alegre, for non-compliance with certain health and sanitation requirements.

Thereafter, petitioner filed a complaint in the, Court of First Instance of Camarines Norte against Lourdes Pia-Rebustillos and others for judicial abatement of their stalls. The complaint, docketed as Civil Case No. 2257, alleged that these stalls constituted public nuisances as well as nuisances per se. Dayaon was never able to reopen his barbershop business.

Subsequently, petitioner and the two policemen, Morena and Quibral, were charged with the offense of grave coercion before the Municipal Court of Daet. As already noted, the said court exonerated the two policemen, but convicted petitioner of the crime charged as principal by inducement.

On appeal, the Court of Appeals affirmed in full the judgment of the trial court. Hence, the present recourse.

Petitioner contends that the sealing off of complainant Dayaon's barbershop was done in abatement of a public nuisance and, therefore, under lawful authority.

We find merit in this contention. Unquestionably, the barbershop in question did constitute a public nuisance as defined under Article Nos. 694 and 695 of the Civil Code, to wit:

"ART. 694. A nuisance is any act, omission, establishment, business, condition of property, or anything else which:

(1) Injures or endangers the health or safety of others; or (2) Annoys or offends the senses; or (3) Shocks, defies or disregards decency or morality; or (4) Obstructs or interferes with the free passage of any public highway or street, or any body of water; or (5) Hinders or impairs the use of property.

"ART. 695. Nuisance is either public or private. A public nuisance affects a community or neighborhood or any considerable number of persons, although the extent of the annoyance, danger or damage upon individuals may be unequal. A private nuisance is one that is not included in the foregoing definition."

The barbershop occupied a portion of the sidewalk of the poblacion's main thoroughfare and had been recommended for closure by the Municipal Health Officer. In fact, the Court of First Instance of Camarines Norte, in its decision in Civil Case No. 2257, declared said barbershop as a nuisance per se. Thus:

"Under the facts of the case, as well as the law in point, there is no semblance of any legality or right that exists in favor of the defendants to build a stall and conduct their business in a sidewalk, especially in a highway where it does not only constitute a menace to the health of the general public passing through the street and also of the unsanitary condition that is bred therein as well as the unsightly and ugly structures in the said place. Moreover, even if it is claimed and pretended that there was a license, permit or toleration of the defendants' makeshift store and having quarters for a number of years does not lend legality to an act which is a nuisance per se. Such nuisance affects the community or neighborhood or any considerable number of persons and the general public which posed a danger to the people in general passing and using that place, for in addition, this is an annoyance to the public by the invasion of its rights — the fact that it is in a public place and annoying to all who come within its sphere [Baltazar vs. Carolina Midland, Ry. Co., 54 S.C. 242, 32 S.B. 258, cited in 11 Tolentino's Civil Code of the Philippines, p. 375; Kapisanan Lingkod ng Bayan, Inc. vs. Lacson, CA-G.R. No. 27260-R, March 25, 1964; 61 O.G. 2487].

Xxx xxx xxx

"IN VIEW OF THE FOREGOING, the Court hereby declares that the structures subject of this complaint as well as those occupied by the impleaded defendants are nuisances per se, and therefore orders the defendants to demolish the stall and vacate the premises immediately . . ."

But even without this judicial pronouncement, petitioner could not have been faulted for having fenced off said barbershop. Paragraph 3, Article 699 of the Civil Code authorizes the abatement of a public nuisance without judicial proceedings.

"ART. 699. The remedies against a public nuisance are:

[1] A prosecution under the Penal Code or any local ordinance; or

[2] A civil action; or [3] Abatement, without judicial proceedings."

In the case at bar, petitioner, as mayor of the town, merely implemented the aforesaid recommendation of the Municipal Health Officer. Having then acted in good faith in the performance of his duty, petitioner incurred no criminal liability.

Grave coercion is committed when "a person who, without authority of law, shall by means of violence, prevent another from doing something not prohibited by law or compel to do something against his will, either it be right or wrong." 1 The three elements of grave coercion are: [1] that any person be prevented by another from doing something not prohibited by law, or compelled to do something against his will, be it right or wrong; [2] that the prevention or compulsion be effected by violence, either by material force or such display of it as would produce intimidation and control the will of the offended party, and [3] that the person who restrained the will and liberty of another had no right to do so, or, in other words, that the restraint was not made under authority of law or in the exercise of a lawful right. 2

The third element being absent in the case at bar, petitioner cannot be held guilty of grave coercion.

WHEREFORE, the decision of the Court of Appeals in CA-G.R. No. 19534-CR, is hereby set aside and petitioner is acquitted of the crime charged. Costs de oficio.

SO ORDERED.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DIEGO OPERO Y COSIPAG, et al., accused, DIEGO OPERO Y COSIPAG, defendant-

appellant.1981 June 11En BancG.R. No. L-48796

PER CURIAM:

Automatic review of the death sentence imposed on Diego Opero for robbery with homicide with which he was charged in the Circuit Criminal Court of Manila, together with Reynaldo Lacsinto and Milagros Villegas, who, however, did not appeal their conviction with much lesser penalty, the last-named, as a mere accessory after the fact. Another accused, Asteria Avila was acquitted.

In his brief, appellant raised only the question of the propriety of the imposition of the death penalty on him with the following assignments of error:

"1. THE LOWER COURT ERRED IN NOT CONSIDERING ARTICLE 4, PARAGRAPH 1 OF THE REVISED PENAL CODE IN DETERMINING THE CRIMINAL LIABILITY OF THE ACCUSED.

"2. THE TRIAL COURT ERRED IN NOT CONSIDERING ARTICLE 49, PARAGRAPH 1 OF THE REVISED PENAL CODE IN IMPOSING THE PENALTY ON THE ACCUSED."

For the facts of the case, the narration of which in both the People's brief and that of appellant does not vary as to the essential ones, We could very well quote from the Appellee's brief, being the more comprehensive and complete, the following:

"At about 4:00 o'clock in the morning of April 27, 1978, Salvador Oliver, a GSIS security guard assigned to the House International Hotel at Ongpin Street, Binondo, Manila, was informed by Demetrio Barcing, another security Guard, that the latter

picked up a little girl about three years old loitering at the second floor of the building. Rafael Ordoña, a janitor of the House International Hotel, told Oliver that the little girl is residing at Room 314 of the hotel. Oliver called up Room 314 by telephone and when nobody answered, he and Barcing brought the little girl to said Room 314 (pp. 6, 7, & 8, t.s.n., June 15, 1978). Upon reaching Room 314, Oliver knocked at the door, and when nobody answered, he pushed the door open but he smelled foul odor emanating from the room. Oliver covered his nose with a handkerchief and together with Barcing and the little girl, they entered the room where they saw prostrate on a bed a dead person with the face down and both feet tied. Oliver called up the homicide division of the Manila Police. Patrolman Fajardo who was assigned to investigate the report of Oliver, together with some funeral parlor men arrived at the scene, and they saw a small baby crying and trying to get out of a crib near the bed of the dead person. (pp. 9, 10 & 11, t.s.n., Id.)

"The dead body at Room 314 of the House International Hotel was that of Liew Soon Ping. Room 314 had been ransacked and personal belongings thrown all around. The hands and feet of the dead person were tied and the body was bloated. A towel was tied around the mouth of the victim. Photographs of the dead person and the condition of the room were taken under Patrolman Fajardo's supervision (pp. 19, 20, 21, 22, 23, & 24, t.s.n., June 15, 1978).

"Patrolman Fajardo came to know that the occupants of Room 314 were Dr. Hong, his wife Liew Soon Ping who is the victim in this case, their three children and two maids, namely, Mila and Ester (pp. 26 & 27, t.s.n., Id.). After conducting a preliminary inquiry around the vicinity of the incident, Patrolman Fajardo made an advance report (Exh. "O"; pp. 32, 33, & 34, rec.) naming therein three suspects, namely, Diego Opero, Milagros Villegas, Asteria Avila and a fourth unidentified suspect. The names of these suspects were furnished by neighbors of the victim to Patrolman Fajardo (pp. 28 & 29, t.s.n., Id).

"After establishing the identity of the suspects, a follow up team of Manila Policemen composed of Patrolmen Luis Lim and Servande Malabute was formed to further investigate the case. A separate police team composed of Sgt. Yanguiling and several policemen were sent to Leyte and Samar to track down the suspects (pp. 30 & 31, t.s.n., Id.).

"Dr. Hong, the victim's husband who was in Cebu when the incident in his residence was committed, was contacted by the police and informed about the death of his wife. Dr. Hong came back immediately from Cebu and reported to the police. He (Dr. Hong) made an inventory of the personal effects found missing in his residence, valued at P30,221.00 (pp. 31, 32 & 33, t.s.n., Id; Exhs. 'R' and 'R-1').

"While the case was under investigation, the homicide division of the Manila Police, received a radio message (Exh. 'T-1', p. 40, rec.) relayed thru Col. Narciso Cabrera, Chief of the Detective Bureau of the Manila Police, that Reynaldo Lacsinto one of the suspects could be found in a school house in Moriones, Tondo, Manila. Another radio message (Exh. 'T', p. 41, rec.) was received by the police that two other suspects in the case, namely, Diego Opero and Asteria Avila were picked up by the Samar P.C. and some of the missing articles, namely, one (1) camera, flashlight, bill fold, and other personal belongings were recovered from them (pp. 35 & 36, t.s.n., Id.).

"Reynaldo Lacsinto was taken to police headquarters and after appraising him of his rights under the constitution, his statement was taken in the presence of his father (pp. 37, 38 & 39, t.s.n., Id; Exhs. 'U' & 'U-1', pp. 42, 43, 44, 45, 46, 47 & 48, rec.). In his said statement to the police, Lacsinto admitted his participation and narrated in

detail the commission of the robbery in Room 314 of the House International Hotel.

"The Samar P.C. turned over three other suspects, namely Diego Opero, Milagros Villegas and Asteria Avila to Sgt. Yanguiling who brought said suspects to Manila and turned them over to the homicide division of the Manila Police, together with some of the stolen articles (pp. 31 & 32, t.s.n., June 16, 1978). Statements of these three suspects (Exhibits 'B', 'C' and 'D', respectively) taken by the Samar P.C. were also turned over by Sgt. Yanguiling to the homicide division (pp. 34 & 35, t.s.n., Id.). Opero was investigated further at the Manila Police Headquarters and he gave a supplemental statement (Exh. 'FF', pp. 70-74, rec.; p. 36, t.s.n., Id.) admitting that he had robbed the victim and identified some of the missing articles recovered from his possession (pp. 41 & 42, t.s.n., Id.). He described in detail how he planned the robbery and named the rest of his co-accused as willing participants. He also narrated in his said supplemental statement that he and his co-accused Lacsinto subdued the victim by assaulting her, tying up her hands and feet stabbing her and stuffing her mouth with a piece of pandesal (pp. 70-74, rec.)

"In her statement to the Manila police (Exh. 'GG', pp. 74 & 75, rec.) Milagros Villegas identified the stolen clothes which were given to her by Opero. (pp. 44, 45 & 46, t.s.n., Id.)

"The third suspect, Asteria Avila told the Manila Police that she was not a party to the crime and upon advice of her lawyer she did not give any further statement. (p. 47, t.s.n., Id.)

"A reenactment of the crime at the crime scene was held under the direction of Opero portraying - his role, with Lacsinto depicting his part, and pictures of the reenactment were taken (pp. 51, 52, 53, 54, 55, 56, 57, 58, 59 & 60, t.s.n., Id., pp. 79-99, incl., rec.)

"The body of the victim Liew Soon Ping was autopsied by Dr. Angelo Singian, then Chief of the Medico Legal Division of the Western Police District. The body was identified by the victim's husband. Dr. Singian examined the body of the victim and issued a death certificate (Exh. 'AA'), and the necropsy report (Exh. 'BB'), with the following findings: 1) a pale yellowish band across the eyes of the victim caused by the application of a towel, or broad piece of cloth across the eyes; 2) a pale yellowish band across the mouth caused by a similar material as the one applied across the victim's eyes, which was tied across the mouth; 3) contusion and hematoma on the upper and lower lips caused by a blunt instrument; 4) abrasions on the right side of the chin; 5) broad linear mark of clothing material on the neck; 6) cord or ligature marks on the left and right arm, indicating that both arms were tied; 7) abdomen distended with gas, due to decomposition; 8) epiglotis, hematoma and contusion on the right side of the tongue; 9) contusions and hematoma on the right cheek; 10) superficial stab wound measuring 0.8 cm. on the right side of the chin caused by a sharp bladed instrument; 11) superficial stab wound on the mid-axilliary lie caused by a sharp bladed instrument; 12) stab wound on the left forearm; 13) cord markings on both feet.

"Internal findings reveal an impacted bolus of white bread measuring 3 x 2.5 cm. in the oropharynx. The tongue has contusion on the right lateral side and an abrasion across the middle portion. The larynx and trachea are markedly congested. The cause of death was due to 'asphyxiation by suffocation' with an impacted bolus into the oropharynx and compression of the neck with a broad clothing around the neck" (pp. 6-18, incl., t.s.n., June 16, 1978; Exh. 'BB', 62 & 63, rec.)

In his first assignment of error, appellant advances the theory that he never intended to kill the deceased, his intention being merely to rob her, for if indeed he had the intention to kill her, he could have easily done so with the knife, and therefore, his liability should be only for robbery.

Appellant's theory finds no basis in the law or in jurisprudence. It has been repeatedly held that when direct and intimate connection exists between the robbery and the killing, regardless of which of the two precedes the other, or whether they are committed at the same time, the crime committed is the special complex crime of robbery with homicide. 1 If the circumstances would indicate no intention to kill, as in the instant case where evidently, the intention is to prevent the deceased from making an outcry, and so a "pandesal" was stuffed into her mouth, the mitigating circumstance of not having intended to commit so grave a wrong may be appreciated. 2 The stuffing of the "pandesal" in the mouth would not have produced asphyxiation had it not slid into the neckline, "caused by the victim's own movements," according to Dr. Singian. The movements of the victim that caused the "pandesal" to slide into the neckline were, however, attributable to what appellant and his co-accused did to the victim, for if they did not hogtie her, she could have easily removed the "pandesal" from her mouth and avoided death by asphyxiation.

It may not avail appellant to contend that the death was by mere accident for even if it were so, which is not even beyond doubt for the sliding of the pandesal into the neckline to produce asphyxiation could reasonably have been anticipated, it is a settled doctrine that when death supervenes by reason or on the occasion of the robbery, it is immaterial that the occurrence of death was by mere accident. 3 What is important and decisive is that death results by reason or on the occasion of the robbery. 4 These Spanish doctrines were cited by this Court in People vs. Mangulabnan, et al., 99 Phil. 992.

Appellant would also have Article 49, paragraph 1 of the Revised Penal Code apply to him, and faults the court a quo for having failed to do so. The provision cited reads:

"Art. 49. Penalty to be imposed upon the principals when the crime committed is different from that intended. - In cases in which the felony committed is different from that which the offender intended to commit, the following rules shall be observed:

"1. If the penalty prescribed for the felony committed be higher than that corresponding to the offense which the accused intended to commit, the penalty corresponding to the latter shall be imposed in its maximum period.

xxx xxx xxx"

The foregoing provision has been applied only to cases when the crime committed befalls a different person from the one intended to be the victim. This was the explicit ruling in the case of People vs. Albuquerque, 59 Phil. 150-153, citing decisions of the Supreme Court of Spain. 5

In the instant case, the intended victim, not any other person, was the one killed, as a result of an intention to rob, as in fact appellant and his co-accused, did rob the deceased. As stated earlier, what may be appreciated in appellant's favor is only the mitigating circumstance of not having intended to commit so grave a wrong as that committed, under paragraph 3 of Article 13 of the Revised Penal Code, an entirely different situation from that contemplated under paragraph 1, Article 49 of the same Code, where as already explained, the different felony from that intended, befalls

someone different from the intended victim, as when the person intended to be killed is a stranger to the offender, but the person actually killed is the offender's father, thereby making the intended felony which is homicide different from the crime actually committed which is parricide.

Notwithstanding the presence of the mitigating circumstance of not having intended to commit so grave a wrong as that committed, there still remains one aggravating circumstance to consider, after either one of the two aggravating circumstances present, that of superior strength and dwelling, is offset by the mitigating circumstance aforesaid. The higher of the imposable penalty for the crime committed, which is reclusion perpetua to death, should therefore be the proper penalty to be imposed on appellant. This is the penalty of death as imposed by the lower court.

WHEREFORE, the judgment appealed from being in accordance with law and the evidence, except as to the non-appreciation of the mitigating circumstance of having no intention to commit so grave a wrong as that committed, which nevertheless does not call for the modification of the penalty of death as imposed by the lower court, is hereby affirmed. Cost de oficio.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MANOLITO TIDONG y LASCANO, accused-appellant.1993 August 132nd DivisionG.R. No. 101583D

E C I S I O N

REGALADO, J.:

The alleged refusal of an employer to accede to the demand of an employee for his separation pay, which the latter believed he was rightfully entitled to, resulted in the former's death and the latter's indictment and conviction for robbery with homicide and double frustrated homicide.

Accused-appellant Manolito Tidong was charged before Branch 172 of the Regional Trial Court of Valenzuela, Metro Manila, with homicide and double frustrated homicide in its Criminal Case No. 177-V-91. The accusatory portion of the information alleges:

"That on or about the 27th day of March 1991 in Valenzuela, MM and within the jurisdiction of this Honorable Court, the above-named accused, with intent to gain and by means of force and intimidation, did then and there wilfully, unlawfully and feloniously take, rob and carry away the amount of P5,000.00 from VICENTE CO Y SY; that on the occasion of said robbery and for the purpose of enabling him to take, steal and carry away the aforementioned amount, said accused with intent to kill, did then and there wilfully, unlawfully and feloniously stab said Vicente Co y Sy causing the latter sustained (sic) physical injuries which caused his death; that as a further consequence, said accused also stabbed MARIO CO Y SY and MARTIN CO Y SY, causing both to sustain serious physical injuries which however, did not result to their death, due to the timely, efficient intervention rendered to them by the FATIMA MEDICAL CENTER, Valenzuela." 1

Duly assisted by counsel, accused entered a plea of not guilty when arraigned on April 22, 1991. After trial on the merits, on August 7, 1991 the lower court promulgated its judgment convicting appellant of the crime charged, under the following disposition:

"WHEREFORE, in view of the foregoing, the Court finds the accused guilty beyond reasonable doubt of the crime of Robbery with Homicide and Double Frustrated Homicide, and hereby sentences him to suffer the penalty of Reclusion Perpetua; to indemnify the heirs of Vicente Co in the sum of P50,000.00; to indemnify the complaining witnesses in the unrecovered amount of P800.00 and to pay the costs.

"The accused shall be credited with the full term of his preventive imprisonment." 2

Appellant has now come to us on appeal, and in his brief, he imputes to the trial court the following errors: (1) in giving credence to the testimonies of the prosecution witnesses which are replete with bias and material inconsistencies; (2) in refusing to acquit him although the evidence adduced by the prosecution failed to overcome the constitutional presumption of innocence by clear and convincing evidence establishing his guilt beyond reasonable doubt; and (3) assuming ex gratia argumenti that he was responsible for the injuries sustained by Mario Co, Martin Co and the deceased Vicente Co, in finding him guilty of robbery with homicide and double frustrated homicide and without appreciating the mitigating circumstance of voluntary surrender. 3

The pertinent confluence of facts which gave rise to this prosecution is commendably summarized by the Solicitor General, as set forth hereunder, on the bases of the evidence of record correspondingly cited in authentication thereof.

"Around 7:00 o'clock in the evening of March 27, 1992, appellant entered the Co residence at Rincon Street, Malinta, Valenzuela, Metro Manila. The same address housed the wiring and cable business of the Co family. Appellant was familiar with the layout of the place, having worked there at least three years, from 1988 to 1991 (tsn, May 10, 1991, pp. 2-3)

"Once inside, appellant grabbed Joan ** Co, the six-year old daughter of Martin Co. The commotion attracted the attention of the Co brothers who rushed to the scene and pleaded with appellant not to harm the child. Appellant, while poking a knife at the neck of Joan, demanded money from the Cos. He threatened to kill the child if he was not given the amount of P5,000.00 (id., p. 4).

"Vicente Co left to get the money. When he returned, appellant told him to place the money on the floor. When Vicente did as instructed, appellant picked up the money and placed it in his pocket. Then appellant started retreating towards an alley. All this time, the Co family pleaded with him to release Joan. After retreating about ten (10) meters, appellant suddenly pushed Joan, who fell on the ground. Vicente was the first to react. He rushed to help the fallen child. As he came nearer, appellant stabbed him on the chest. In rapid succession, Martin Co instinctively rushed to assist Vicente and Joan. He was stabbed at the back by appellant. Then, Mario Co also tried to help his brothers but was stabbed, too. Mario sustained injuries on his left wrist and left ear. He was, however, able to shout for help from the neighbors. Hearing this, appellant ran away (tsn, April 29, 1991, pp. 4-6).

"Help arrived as angry neighbors of the Cos chased appellant. The Co brothers were rushed to Fatima Hospital for immediate medical treatment. Vicente Co died at the hospital (ibid.). He sustained two incised wounds on the face, one stab wound on the left side of the chest, and minor contusions on both knees. Cause of death was severe hemorrhage, secondary to the chest stab wound (tsn, June 3, 1991, pp. 4-5).

"Pfc. Henry Marteja of the Valenzuela Police was conducting a routine surveillance in the area at the time of the incident. He was walking near a gasoline station at the

corner of Malinta when someone called his attention and informed him of a commotion at Rincon Street. Marteja went to Rincon Street to verify the reported incident. There he saw appellant being chased by the townspeople. He joined in the pursuit. As he came nearer, he saw that appellant was holding a knife. He identified himself as a police officer and ordered appellant to stop. Appellant did as ordered. Marteja then got the knife from appellant and brought him to the police station. When asked by Marteja why he was being chased by the townspeople, appellant admitted that he hostaged (sic) a child. At the police station, Marteja also recovered the amount of P4,200.00 from appellant (tsn, June 10, 1991, pp. 2-3)." 4

As expected, the defense came up with an entirely different story, for the details of which we go back to appellant's brief earlier adverted to and quote from the same at length, especially since the resolution of this case apparently turns on the factual presentation by the parties of their respective versions and the credibility thereof.

"Accused Manolito Tidong y Lascano, in his defense, testified that Martin, Mario and Vicente Co used to be his employers at the United Power and Industrial Corporation. He started working there in 1988. On February 22, 1991 he was suspended for 2 weeks for reasons he does not know but according to the Cos he was being suspended because he was always complaining about his work. After the 2 weeks' suspension or on March 11, 1991, he returned to work but he was not accepted anymore as according to Martin Co he already had a replacement. He demanded for his separation pay but Martin told him that he has no authority from the company to pay him. Upon hearing this, he told Martin that he would just come back on some other day. On March 25, 1991 when he went back to get his separation pay, he was advised by Martin to return on March 27, 1991 as there was yet no money. When he returned on March 27, Martin and Mario again told him that there was no money. He then told them that if they would not give him his separation pay he would just return to work but he was told that the owner did not want him to work there anymore. So he told them that he would not leave the premises unless he was given his separation pay. Martin got angry and cursed him, saying: 'Putang-ina mo, wala ka nang karapatan na magpunta rito dahil wala ka na sa trabaho', but he insisted that he would leave only after he is paid his separation pay. At this juncture, Martin left and went inside his house and returned with a gun. Upon seeing Martin with a gun, he moved to run but as he was about to run he met Martin's helper with Jo Ann (sic). Instinctively, he grabbed the child to protect himself and prevent Martin from shooting him. He held the child by the neck and hair. Martin told him not to hurt the child and they will pay him but he told him to let go of the gun first and throw it towards his direction. At this point, Vicente Co, who was previously asked by Martin to get the money, came out and approached him to give the money but he told him to just place it on the floor, so that he could pick it after the gun was thrown in his direction. After Martin ha(d) thrown the gun, he picked up both money and gun and tucked the gun in his waist. He let go of the child and left for the exit. When he was already going out he heard the shout of Martin 'Putang ina mo Lito walang bala ang baril ko'. He looked back and saw the Cos running after him with wooden clubs. He ran outside and push(ed) the gate so hard. Outside, he was met by two men. He was stabbed once on the left arm and as he was retreating he saw Vicente and Martin come out with wooden clubs. Martin struck the man but he missed and was stabbed instead. He ran but his path was blocked and he was clubbed by the other companion of the man who stabbed Martin. He lost consciousness and did not know what happened to Vicente.

"Accused further declared that when he regained consciousness the policemen were already there. After he explained to the policemen how the money and gun came into his possession, he was brought by the policemen to Polo Hospital where his head

injuries were treated. He was transferred to the Jose Reyes Memorial Hospital where he was X-rayed and then brought to the police station where he was detained. He denied the charges against him.

"On cross-examination, Manolito Tidong testified that he went to the Co family at 6:45 PM because he was told to come back on March 27, 1991 after the employees have received their pay. He denied having received the P6,987.00 in January 1991, as part of his separation pay and other financial benefits, reflected in the cash voucher dated January 19, 1991 (Exh. N). Although he admitted that the signature therein is his, he explained that everytime they received their pay they were made to sign and that he remembered he signed a voucher like Exhibit "N" but it did not have the particulars stated therein. He also denied having signed any Affidavit of Quitclaim.

"He also declared that he does not know Pfc. Henry Marteja and he denied that a knife was ever recovered from him during the incident. He categorically declared that he grabbed Jo Ann (sic) only to defend himself, and prevent Martin from shooting him." 5

A careful perusal of the entire records of this case compels us to conclude that this appeal is bereft of merit and that the prosecution has established beyond reasonable doubt a case of robo con homicidio against appellant.

Martin and Mario Co both took the witness stand and identified appellant as the perpetrator of the crimes charged. Both brothers testified without vacillation and in a straightforward manner, directly inculpating appellant as alleged in the information. Although their testimonies would appear to jibe in almost every point, giving rise to a suspicion of rehearsed statements, still this fact does not necessarily discredit their declarations as a whole since such portions thereof deemed worthy of belief may be credited. 6

The trial court has observed, and we agree with its position, that the version of the prosecution witnesses is more tenable than that of the defense. For one, we have held that credibility is a matter for the trial court to determine and, generally, we have been inclined to leave it to the sound discretion of the lower court. 7 Besides, the defense has failed to present, nor did it attempt to proffer, any evidence of ill motive on the part of the Co brothers to falsely testify against appellant. When there is no evidence indicating that the principal witness for the prosecution was moved by any improper motive, the presumption is that he was not so moved, and his testimony is entitled to full faith and credit. 8

Furthermore, the testimonies of the Cos were corroborated by other additional evidence presented by the prosecution, such as the sworn statement of Mario Co and the testimony of the arresting officer, Pfc. Henry Marteja.

A few hours after the incident, Mario Co executed a salaysay or sworn statement. 9 The details in the statement tallied with his declarations in open court and whatever slight discrepancies there are between the two are on minor matters. Both his testimony in court and his sworn statement conduced to one consistent basic fact, that is, that appellant obtained P5,000.00 from the offended parties through force and intimidation and, as a consequence thereof, Vicente Co died while Mario and Martin Co sustained injuries.

We agree with the trial court that the salaysay given by Mario Co just a few hours after the startling occurrence is credible since at the time the statement was given,

the incident "was still fresh in his mind" and "he would have had no time yet to concoct or fabricate a story" in so short a time. 10 Stated otherwise in evidential terminology, such statements constituted part of the res gestae.

Appellant seeks to assail Mario Co's credibility by pointing out an alleged inconsistency between his sworn statement and his testimony. Appellant claims that Mario Co declared in his sworn statement "that he was inside the house when he heard a commotion outside and when he went out he saw the accused poking a knife at the child." Then, according to appellant, when Mario Co testified before the trial court, he averred that "the accused was inside the(ir) house." 11 We find such argument meritless and misleading.

In his testimony, Mario Co stated that he heard a commotion outside his room, prompting him to investigate. 12 Nowhere in his testimony did he declare that appellant was inside the house. It is highly probable that the commotion he heard was coming from outside the house, not merely outside his room. Be that as it may and even assuming that appellant's observation is true, still the most honest witness may make mistakes sometimes, but such honest lapses do not necessarily impair his credibility, 13 especially when minor details are involved.

On the witness stand, Pfc. Henry Marteja testified that at around 7:00 P.M. of March 27, 1991, while he was conducting routine surveillance, somebody approached him and informed him that there was a commotion in Rincon, Malinta, Valenzuela. He immediately proceeded to the scene and saw a man being chased by the townspeople. He also gave chase and ordered the man to stop. The man, later identified as appellant, stopped and surrendered to him. A knife and P4,200.00 were recovered from the former. 14

It appears that although the Co brothers testified that they gave appellant the sum of P5,000.00, what was actually recovered from the latter was only P4,200.00. The discrepancy may be explained by the fact that when appellant came out of the compound, he encountered the neighbors of the Cos who subsequently mauled him. It is not far-fetched to conclude that the P800.00 deficit may either have been lost or was taken from him during the melee.

The testimony of Pfc. Marteja is significant because it corroborates the earlier claims of the Co brothers that indeed appellant threatened Joan with a knife and forcibly took P5,000.00 from them. The statements of this police officer thus demolishes appellant's account of what supposedly transpired on that occasion. In his testimony, appellant asserted that Martin Co brought out a gun, prompting him to hold Joan by the hair and neck and that he was able to gain possession of the gun which he tucked in his waistline before he went out of the Cos' compound. 15 No mention was ever made by appellant of having any knife with him prior to his arrest. If appellant's version of the incident is to be believed, how then would he explain the fact that the arresting officer recovered from him a knife and not a gun?

In the absence of any countervailing evidence, the testimony of police authorities are given full faith and credence as they are presumed to be in the regular performance of their official duties. 16 Furthermore, no iota of evidence was ever presented to even suggest that Pfc. Marteja had dubious or evil motives to implicate appellant in the dastardly attack against the Co brothers and little Joan.

The defense argues that appellant never had the original design to rob when he went to the Co compound. That may be so. The compound of the Cos is fenced and the only entrance is through the gate with a security guard. It was only 7:00 o'clock in

the evening and a number of people were still awake, hardly the proper occasion for staging a successful robbery. Notable too is the fact that the amount recovered from appellant was only in the amount of the separation pay which he demanded, leading to the inference that perhaps appellant had no original intent to rob the Cos.

Nonetheless, even if there was no original design to commit robbery, appellant is still liable for robbery if at the time of the taking of the personal property of another with violence or intimidation there was intent to gain. Although the Court gives considerable weight to the theory of the prosecution, we are not inclined to entirely do away with the version of the defense, especially with regard to his claim that he went to the Co compound to demand his separation pay. Although disputed by the Cos, it is possible that appellant believed, rightly or wrongly, that he had the right to a separation pay.

It is likewise probable that while appellant was inside the compound, a disagreement between him and one of the Co brothers took place. Exasperated with his employers' continuing intransigence against giving him his separation pay, he threatened the Cos, which resulted in an altercation culminating in the tragedy. Yet, assuming that appellant had all the legal right to demand his separation pay, he should not have taken the law into his hands but should have gone through legal channels to demand his rights. While we empathize with the plight of the overworked and underpaid Filipino laborer, that does not warrant the grant of a license for lawlessness.

Even if we were to accept appellant's version as partially quoted below, still by his very own admission the money he got from the Cos was not given voluntarily by them. Consider his testimony on the succession of events coetaneous with and subsequent to the killing:

"Q What happened after Mario Co came out of his residence with a gun? A Upon seeing the gun I was about to run but I met their helper together with Jo-Ann (sic) so I grabbed Jo-Ann (sic), sir.

Q Why did you have to grab the child Jo-Ann (sic)? A Because I was afraid that I might be shot, sir.

Q Shot by whom? A Martin, sir.

Q After you grabbed the child in order to protect yourself from (sic) fear that you will be shot by Martin Co, what happened after that? A I held the child by the neck and the hair, sir.

Q When Martin Co saw what you did with the child what did he do, if he did anything? A They told me not to hurt the child and they will pay me, sir.

xxx xxx xxx

Q Why did you have to ask him to throw the gun near you?A To make sure that I would not be shot, sir.

Q Did he throw the gun near you?A It took him some time, sir. He first tended (sic) the money.

Q Who tended (sic) the money?

A Vicente came out and he was the one who brought the money, sir." (Emphasis ours.) 17

Thus, appellant himself revealed that the Cos were only compelled to give him the P5,000.00. The Cos, apparently fearing for the safety of Joan, pleaded to him not to hurt the child and informed him that they were willing to give him his separation pay. Apparently, appellant received the money with the conscious knowledge that the Cos parted with the money, to say the least, unwillingly. Appellant said Martin Co took some time to give him the gun because Vicente had to get the money inside the house. If his primary purpose was to use Joan only as a shield to protect himself, why did he have to wait for Vicente Co to get the money? Fearing for his life, definitely his immediate impulse at that very moment would have been to get away from the compound as soon as possible, instead of tarrying there just for the money.

Appellant's main defense is denial of both criminal intent and the overt felonious act. Denial, like alibi, is inherently weak and cannot prevail over the positive and credible testimonies of the prosecution that the accused committed the crime. 18 In the case at bar, the denial of appellant is unsubstantiated by any positive evidence necessary and sufficient to overthrow the cogent and plausible testimonies of the prosecution witnesses.

Appellant, as the only witness for the defense, denied the charges against him, foisting the blame instead on the Cos. The allegations of appellant do not and cannot inspire belief. He was arrested near the crime scene, with the knife and money recovered from him. He disclaimed authorship of the death of Vicente Co and the injuries sustained by Mario and Martin Co, his lame and easily fabricated excuse being that it was done by two unknown men whom he providentially met on his way out of the compound. According to appellant, these two men attacked him and the Co brothers. 19 Said pretension, to say the least, is fantastic. These supposedly anonymous persons were never presented in court nor at least identified. Besides, why would two unknown persons, unprovoked and for no apparent reason, attack him and the Co brothers at that very moment and conveniently disappear upon the arrival of the policeman? This claim approximates a phantasmagoria conceived by an overly fertile imagination.

Proceeding on the possibility of an acquittal, appellant theorizes that assuming arguendo his responsibility for the injuries sustained by the Cos, still it was done purely in self-defense. Suffice it to say that, under the evidence on record, appellant miserably failed to substantiate this improbable claim. An accused who admits inflicting a fatal injury on his victim and invokes self-defense must rely on the strength of his own evidence and not on the weakness of that of the prosecution for, even if weak, the prosecution evidence gains more credibility. 20

Appellant seeks to capitalize on the failure of the Cos to call for police assistance, despite the opportunity to do so. That may be the most logical course of action they could have taken but not necessarily the only one. The workings of the human mind when placed under emotional stress are unpredictable and people react differently. 21 The actuations of appellant himself on that occasion cannot but be categorized as either abnormal or sub-normal.

Regarding the stab wounds inflicted on the victims, appellant asserts that he could not have inflicted the stab wounds on the left side of the chest of Vicente Co, the stab wounds at the back of Martin nor the lacerated wounds sustained by Mario, because "according to Mario Co, the accused was running towards the gate when he released the child," hence he was in no position to inflict injuries on the Cos. 22 The records of

the case, however, show that the injuries sustained by the Co brothers could have been easily and conceivably inflicted by appellant.

Dr. Prospero A. Cabanayan, who conducted the autopsy on Vicente Co, noted that the deceased sustained three wounds, two on the face and one on the left side of the chest. The doctor concluded that the victim could have been kneeling down when he sustained the wound in his left chest, considering the presence of two contusions on both knees of the deceased. 23 This finding is in harmony with the testimony of the Co brothers that Vicente Co was attacked while he was trying to help Joan who was at that time on the ground after appellant pushed her.

On the other hand, Dr. Elvis Verzo, who personally treated Martin and Mario Co, testified that Martin sustained a lacerated wound at the back of his ear while Mario suffered slight physical injuries. Appellant argues that the attending physician testified that the lacerated wounds sustained by both brothers were caused by a blunt instrument, hence appellant could not have possibly inflicted them since it was a knife which was found in his possession. We reject this reasoning. A reading of the doctor's testimony shows that although Dr. Verzo testified that sharp instruments usually cause incised wounds, he also stated that the same instrument may also cause lacerated wounds. 24

As to the designation of the offense of which appellant was convicted, a modification is in order. The information charges appellant with the crime of robbery with homicide and double frustrated homicide. The trial court erred when it likewise convicted the accused of robbery with homicide and double frustrated homicide. It is true that there was a direct relation and an intimate connection between the robbery and the killing of Vicente Co. Said information, however, should have charged the accused only with the special complex crime of robbery with homicide under paragraph 1, Article 294 of the Revised Penal Code, and the court below should have convicted appellant only for the same offense.

There is no special complex crime of robbery with homicide and double frustrated homicide. The offense should have been designated as robbery with homicide alone, regardless of the number of homicides or injuries committed. These other felonies have, at the most and under appropriate circumstances, been considered merely as generic aggravating circumstances which can be offset by mitigating circumstances. 25 The term "homicide" in paragraph 1 of Article 294 is used in its generic sense, that is, any act that results in death. Any other act producing injuries short of death is integrated in the "homicide" committed by reason or on the occasion of the robbery, assuming, of course, that the homicide is consummated. If no death supervenes, the accused should be held liable for separate crimes of robbery and frustrated or attempted homicide or murder (provided that there was intent to kill) if the latter offenses were not necessary for the commission of the robbery, or for a complex crime of robbery and frustrated or attempted homicide or murder under Article 48 of the Code if the latter offenses were the necessary means for the commission of the robbery.

One last point. Anent the issue of whether or not the trial court erred in not appreciating the mitigating circumstance of voluntary surrender, we agree with appellant and the Solicitor General that the trial court acted erroneously on this matter. The records show that appellant, who was running away from the crowd mauling him, voluntarily surrendered to Pfc. Marteja when the latter subsequently pursued him and shouted that he was a policeman.

However, notwithstanding the presence of the mitigating circumstance of voluntary surrender, the criminal liability of appellant remains the same. The aforesaid composite crime of robbery with homicide is punishable by reclusion perpetua to death. Article 63 of the Code provides that where the law prescribes a penalty composed of two indivisible penalties and the commission of the act is attended by ordinary mitigating circumstances, with no aggravating circumstance, the lesser penalty shall be applied. Hence, even with the presence of the mitigating circumstance of voluntary surrender, the penalty imposable in this case is still reclusion perpetua.

WHEREFORE, subject to the aforestated modification that the offense committed by appellant and for which he should be convicted and punished is the special complex crime of robbery with homicide, the impugned judgment of the court a quo is hereby AFFIRMED.

SO ORDERED.

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

accused-appellants.1993 February 172nd DivisionG.R. No. 97471D E C I S I O N

REGALADO, J p:

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 of 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 had 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 vendor's 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 Mercedes 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 gunpoint, what she gave under the circumstances of this case can be equated with or was in the concept of ransom in the law of kidnappings. 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. 53Z (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 (Italic ours.)

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 and stunting the economic and social progress of the people;

"WHEREAS, such acts or 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 depredations 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;" ( mphasis 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 properly 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 far-fetched 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 gunpoint 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 to 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.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RONNIE AGOMO-O, accused, EDDY PANEZA and OSCAR SERVANDO, accused-appellants.2000

June 232nd DivisionG.R. No. 131829

MENDOZA, J.:

This is an appeal from a decision 1 [Per Judge Tito G. Gustilo] of the Regional Trial Court, Branch 23, Iloilo City, finding accused-appellants Eddy Paneza and Oscar Servando, together with accused Ronnie Agomo-o, 2 [Also referred to as Ronie Agomo-o in the records.] guilty of highway robbery under P.D. No. 532, and sentencing them to suffer the penalty of reclusion perpetua and to indemnify the heirs of the victim, Rodito Lasap, in the amount of P50,000.00.

The information 3 [Records, p. 1.] against accused-appellants and their co-accused Ronnie Agomo-o charged -

That on or about the 22nd day of September, 1993, along the national highway, in the Municipality of San Enrique, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring confederating and mutually helping one another, armed with a pistolized homemade shotgun and bladed weapons announced a hold-up when the passenger jeepney

driven by Rodito Lasap reached Barangay Mapili, San Enrique, Iloilo, and by means of violence against or intimidation, did then and there willfully, unlawfully and feloniously, with intent to gain, take steal and carry away cash money, in the amount of FIFTY PESOS (P50.00), Philippine Currency and a wrist watch with a value of THREE THOUSAND PESOS (P3,000.00) both belonging to JOSE AMADOR, another amount of ONE HUNDRED THIRTY PESOS (P130.00) belonging to FREDDIE AGRABIO, and the amount of TWO HUNDRED PESOS (P200.00) belonging to the driver, RODITO LASAP, with a total value of THREE THOUSAND THREE HUNDRED EIGHTY PESOS (P3,380.00), Philippine Currency, to the damage and prejudice of the aforesaid persons and on the occasion of said robbery, the accused, with intent to kill shot the driver RODITO LASAP, with the firearms they were provided at that time which resulted [in] the death of Rodito Lasap and with deliberate intent to kill likewise stab one FREDDIE AGRABIO with a bladed weapon they were provided thus hitting him on the left elbow, thus commencing the commission of homicide directly by overt acts but did not perform all the acts of execution which would produce the felony by reason of some cause or accident other than their own spontaneous desistance.

The prosecution evidence showed that, on September 22, 1993, at around 7:30 in the evening, a passenger jeepney driven by Rodito Lasap en route to Passi, after coming from Sitio Gomez, Barangay Abaca, San Enrique, Iloilo, was stopped by three men, among them was the accused in this case, Ronnie Agomo-o, who, armed with a gun, announced a hold-up and ordered the driver to turn off the engine. After Lasap obeyed, Ronnie Agomo-o shot him just the same.4 [TSN, pp. 4-7, May 3, 1994.] That same night, Rodito Lasap died as a result of multiple gunshot wounds.5 [Exh. J.] A passenger, Freddie Agrabio, who was seated beside the driver, transferred, out of fright, to the rear portion of the jeep. He was then told to lie face down on the floor of the vehicle. Afterwards, he was asked to hand in his wallet containing P130.00 to one of the robbers. The accused then ordered the passengers to alight from the jeepney and keep their hands up. As they were doing so, accused-appellant Paneza stabbed Agrabio, hitting him on the left elbow. Agrabio ran from the scene.6 [TSN, pp. 7-10, May 3, 1994.]

Another passenger of the jeepney was Jose Amador. He saw the three accused coming from the sugarcane field at Barangay Mapili. The three stopped the passenger jeepney. Eddy Paneza took Amador’s wallet containing P50.00 as well as his wrist watch, all the while pointing a "pinote" at him. He thought it was Oscar Servando who stabbed Freddie Agrabio. When Agrabio ran, Amador also ran.7 [TSN, pp. 4-8, Oct. 5, 1994.] Amador said that he was seated behind the driver and was thus able to see the accused as the moon was bright and there was light coming from the jeepney.8 [Id., pp. 12-14.]

SPO1 Joely Lasap and his companions received a report of the hold-up. Some of them went to Barangay Mapili to respond to the report of the incident. At around four o’clock in the morning of the following day, SPO1 Lasap and his companions found three empty shells of a 12-gauge shotgun.9 [TSN, pp. 12-13, July 18, 1994.] SPO1 Lasap is a first cousin of the victim Rodito Lasap.10 [TSN, p. 5, Aug. 10, 1994.]

Dr. Jason Palomado of the Passi District Hospital treated Freddie Agrabio for a wound on his left elbow. The wound was two centimeters in length and two centimeters in depth. Agrabio was discharged from the hospital the following morning.11 [TSN, pp. 4-5, June 20, 1994.] Dr. Palomado issued a medical certificate12 [Exh. A.] stating that Agrabio needed treatment for a period of 9 to 30 days.

On September 28, 1993, Jocelyn Agomo-o went to the San Enrique Police Station and turned over a wrist watch allegedly taken during the hold-up. The watch was

eventually returned to its owner, Jose Amador.13 [TSN, p. 7, Sept. 7, 1994; TSN, p. 20, Oct. 5, 1994.] The defense of the accused was alibi. Ronnie Agomo-o claimed that he was at the Provincial Hospital with his mother from September 21 to September 23, 1993 to watch over his sick brother.14 [TSN, pp. 6-8, Dec. 16, 1994.] Accused-appellant Eddy Paneza said he was in his aunt’s house in Rizal, Palapala, Iloilo in the morning of September 22, 1993 and that, at around 10 o’clock, he accompanied his aunt, Teresa Escultero, to Brgy. Madarag, San Enrique, arriving there at three o’clock in the afternoon. They went there to talk with the family of the prospective husband of his aunt’s daughter. Eddy Paneza slept in the groom’s house and proceeded to Barangay Bawatan the following morning.15 [TSN, pp. 3-6, May 15, 1995.] Teresa Escultero corroborated Eddy Paneza’s testimony.16 [See TSN, pp. 2-6, March 14, 1995.] Lastly, Ma. Elena Servando, sister-in-law of Oscar Servando, testified that on September 22, 1993, accused-appellant Oscar Servando accompanied her to Sitio Baclayan, San Enrique to gather corn. They went back home at around six o’clock in the evening. They removed the corn ears from the cob and finished doing so at 11 o’clock that evening. The following morning, they dried the corn until the afternoon.17 [TSN, pp. 3-6, Sept. 6, 1995.]

The lower court then rendered a decision on February 5, 1997 finding the accused guilty. The dispositive portion of its decision states:

WHEREFORE, premises considered, judgment is hereby rendered finding accused Ronnie Agomo-o, Eddy Paneza and Oscar Servando GUILTY beyond reasonable doubt of violating the provisions of Section 3, Paragraph (b) of Presidential Decree No. 532, otherwise known as the Anti-Piracy and Anti-Highway Robbery Law of 1974, particularly the last portion thereof, and sentences them to suffer a penalty of imprisonment of Reclusion Perpetua, and to pay the heirs of Rodito Lasap civil indemnity in the amount of P50,000.00.

The accused Ronnie Agomo-o, Eddy Paneza and Oscar Servando who are presently detained are entitled to be credited in full with the entire period of their preventive detention.

SO ORDERED.18 [RTC Decision, pp. 7-8; Records, pp. 303-304.]

It is from this judgment that Paneza and Servando appealed. Ronnie Agomo-o did not appeal. Accused-appellants contend:

I. THE TRIAL COURT ERRED IN FINDING ALL THE ACCUSED RONNIE AGOMO-O, EDDY PANEZA and OSCAR SERVANDO GUILTY BEYOND REASONABLE DOUBT OF VIOLATING THE PROVISIONS OF SECTION 3, PARAGRAPH (b) OF PRESIDENTIAL DECREE NO. 532, OTHERWISE KNOWN AS THE ANTI-PIRACY AND ANTI-ROBBERY LAW OF 1974, IN SPITE OF THE FACT THAT THERE WAS NO PROOF OF CONSPIRACY.

II. THE TRIAL COURT FURTHER ERRED IN IMPOSING A PENALTY OF IMPRISONMENT OF RECLUSION PERPETUA TO ALL THE ACCUSED AND TO PAY THE HEIRS OF RODITO LASAP CIVIL INDEMNITY IN THE AMOUNT OF P50,000.00.

III.THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANT OSCAR SERVANDO IN SPITE OF THE ABSENCE OF PROOF AS TO HIS PARTICIPATION.

We find the appeal to be without merit.

First. Accused-appellants claim that the testimony of Freddie Agrabio was incredible and highly improbable. They contend that Agrabio could not have been beside the

driver when the latter was shot; otherwise, he, too, would have been injured considering his proximity to the driver.19 [Brief for the Accused-Appellants, p. 10; Rollo, p. 62.] That Freddie Agrabio could also have been hit is sheer speculation and conjecture and, therefore, not a valid argument against the veracity of his testimony. Freddie Agrabio could not have been hit because Rodito Lasap was shot at close range.20 [TSN, p. 17, May 3, 1994.] The latter was shot on the chest,21 [Id., p. 18.] hence, the scattered pellets only hit that area. Moreover, Freddie Agrabio was the only one seated in front of the jeepney beside the driver.22 [Id., p. 20.] Under such circumstances, the passenger could have moved away from the driver. He may have been seated next to the driver but not close enough to be within the range of the shotgun.

The trial court correctly relied on the positive identification of the accused made by Freddie Agrabio and Jose Amador. No reason has been advanced why the testimonies of these witnesses should not be believed. Hence, the trial court’s evaluation of the witnesses’ testimonies must be accorded great respect since it had the opportunity to observe and examine the witnesses’ conduct and demeanor on the witness stand.23 [People v. Sala, G.R. No. 76340-41, July 28, 1999.]

On direct examination, Freddie Agrabio testified as follows:

Q. Mr. Freddie Agrabio, on September 22, 1993, around 7:30 in the evening, more or less, could you remember where were you?A. Yes, sir.

Q. Where were you?A. I was sitting in the front seat of the jeepney.

Q. Why were you there?A. I was going to town.

Q. Of what town?A. Passi.

Q. Where did you come from?A. From Sitio Gomez.

Q. What municipality?A. Sitio Gomez, Brgy. Abaca, San Enrique, Iloilo.

Q. While riding on the said jeepney, could you remember if any incident that happened?A. When we arrived at the crossing Ronie Agomo-o appeared bringing with him a firearm.

Q. Could you remember what crossing was that?A. Crossing [Barangay] Mapili.

Q. Of what municipality is Brgy. Mapili?A. San Enrique.

Q. Was Ronie Agomo-o alone?A. There were three of them.

Q. Could you remember who were his other companions?

A. Eddy Paneza and Servando.

Q. By the way, do you know the full [name] of this certain Servando?A. I just knew him as Servando.

Q. Why do you know this Ronie Agomo-o?A. Because he often drive a jeep and we often pass that place.

Q. If Ronie Agomo-o is inside the courtroom, could you point out where is he?A. Yes, sir.

Q. Point to him?A. He is there. (witness pointing to man seated on the accused bench who when asked [identified himself] as Ronie Agomo-o.)

Q. How about this Eddy Paneza, could you point out where is he in this Court?A. Yes, sir, he is also there. (witness pointing to another seated on the accused bench who when asked identified himself as Eddy Paneza)

Q. How about a certain Servando you mentioned?A. He is there. (witness again pointing to another man situated on the accused bench and when asked his name identified himself as Oscar Servando)

Q. After you saw this Ronie Agomo-o appeared with a shotgun and declared hold-up, what happened further?A. He instructed the driver Rodito Lasap to turn off the engine of the jeep and upon instructing Rodito he shot Rodito Lasap.

Q. Was Rodito Lasap hit by Ronie Agomo-o?A. Yes, sir.

Q. And what happened further?A. Then I transferred to the back portion of the jeep at the passengers area.

Q. After you transferred at the back portion of the passenger jeep, what did the three (3) outlaws do, if any?A. They told us to give our money to them and not to do anything bad.

COURT

Q. Who ordered the passengers to turn over their money?A. The three (3) of them, Your Honor.

. . . .

Q. After the three (3) accused in this case ordered you and your companions to give your money, did you follow their order?A. Yes, sir, I gave to them my wallet.

Q. Was your wallet empty at the time you gave them to the holdupper?A. There was. The money inside was P130.00.

COURT

Q. To whom did you give your wallet?

A. I really don’t know to whom I gave because I was facing down when I gave my wallet.

Q. Why did you lie down?A. They told me.

Q. What did they tell you?A. They told me not to do anything bad.

COURT

Proceed.

PROSECUTOR

Q. After you gave your wallet to the holdupper, what happened further, if any?A. They instructed us to alight from the jeep and kept our hands up.

Q. And what happened further?A. And then Eddy Paneza stabbed me.

Q. Were you hit?A. Yes, sir.

COURT

Q. Where?A. Here, Your Honor. (witness pointing his left elbow)

Q. How many times did Eddy Paneza stab you?A. Once. After he stabbed me I ran away.

Q. Were you injured?A. Yes, Your Honor. (witness showing to the Bench his left elbow with a scar)

. . . .

COURT

Proceed.

PROSECUTOR

Q. You said that Eddy Paneza, one of the accused in this case stabbed you. Were you able to have your wound treated?A. Yes, sir.

. . . .

COURT

Q. In what hospital were you treated?A. At Passi.

. . . .

PROSECUTOR

Q. After Eddy Paneza stabbed you, what happened?A. We scampered away and when I turned my back I saw Jose Amador following me.

Q. Was Jose Amador one of the passengers in the said jeepney?A. Yes, sir.24 [TSN, pp. 4-12, May 3, 1994.]

Freddie Agrabio was steadfast in his testimony despite rigorous cross-examination by defense counsel. He further testified:

CROSS EXAMINATION

BY ATTY. ACEBUQUE

Q. You said you were sitting on the front seat when this Ronie Agomo-o appeared from the sugarcane plantation, is that correct?A. Yes, sir.

Q. And immediately after Ronie Agomo-o appeared from the sugarcane plantation, he shouted hold-up, is that correct?A. Yes, sir.

Q. And you were still on the front seat of the passenger jeep at the time when he announced there was hold-up, is that correct?A. I was beside the driver, at the right.

Q. You mean to tell this Honorable Court that immediately he shouted hold-up, he shot the driver, is that correct?A. Yes, sir.

Q. And at the time you were near the driver?A. Yes, sir.

Q. You said that Ronie [Agomo-o] used a pistolized homemade shotgun, is that correct?A. I cannot identify what kind of firearm because it was dark.

Q. Are you sure of that, Mr. Witness?A. Yes, sir.

. . . .

WITNESS

A. I am sure that the firearm is a pistolized homemade shotgun.

ATTY. ACEBUQUE

Q. When Ronie Agomo-o shot the driver Rodito Lasap, how far were you then sitting on the front seat with the Rodito Lasap?A. We were side by side.

Q. And you saw at the time Ronie Agomo-o shot Rodito Lasap, is that correct?

A. Yes, sir.

Q. Where was Ronie Agomo-o at the time when he shot Rodito Lasap?A. He was at the left side of the driver.

COURT

Q. How far was Ronie Agomo-o from Rodito Lasap when he shot the latter?A. About one arm’s length.

Q. You saw the accused pointed that shotgun to Rodito Lasap?A. Yes, Your Honor.

Q. When you saw Ronie Agomo-o pointed that firearm to the driver, Rodito Lasap, could you tell this Court what was the distance of the tip of the barrel of the shotgun to the body of Rodito Lasap?A. The tip of the barrel is about six (6) to seven (7) inches.

COURT

From the body of Rodito Lasap. Proceed.

ATTY. ACEBUQUE

Q. In what particular part of the body of Rodito Lasap did Ronie Agomo-o pointed the shotgun?A. Middle of his breast.

Q. And you were situated beside Rodito Lasap, is that correct?

Q. You did not hide when Ronie Agomo-o pointed the shotgun to Rodito Lasap?A. I was not able to move.

Q. You mean to tell this Honorable Court when the firearm was fired, you were still beside Rodito Lasap, is that correct?A. When the firearm was fire[d] I was still beside Rodito Lasap.

Q. And despite the burst of the shotgun you were not injured by that particular burst?A. I was not hit.

Q. The only injury which you suffered at the time was the stab wound which Eddy Paneza inflicted upon your person, is that correct?A. Yes, sir.

COURT

Q. What happened to Rodito Lasap when he was shot by Ronie Agomo-o?A. He laid down in the front seat.

COURT

Proceed.

ATTY. ACEBUQUE

Q. How about you after the shot, what did you do?A. I transferred to the back portion of the jeep.

Q. You mean to tell this Honorable Court you went down from the front seat then you transferred to the back portion of the jeep?A. No, sir, I just climbed at the back.

Q. At the time of the incident, how many persons were sitting at the front seat excluding the driver?A. There were three (3) of us.

Q. Who were your companions, could you remember?A. Joey and Junior.

Q. And this Joey and Junior were still sitting at the front seat when Ronie Agomo-o shot Rodito Lasap together with you?A. No sir, they were not there anymore. They alighted one by one.

. . . .

Q. When you transferred at the back portion passing through the front seat back, were Joey and Junior whom you mentioned a while ago still in the front seat?A. They were not there anymore. Only Rodito Lasap was there.

Q. You testified that your were divested the amount of P130.00. Who divested you of that amount?A. I cannot tell which one of them because I was facing down.

Q. So you were not sure who divested you of the amount of P130.00?A. I am not sure. I could not determine who took the money.

Q. When for the first time were you able to identify the accused, the three (3) accused here?A. I identified Ronie Agomo-o because I saw him come out from the sugarcane plantation.

Q. When for the first time you come to know the name of Ronie Agomo-o?A. For long time already.

COURT

Q. How long before the incident on September 22, 1993 did you come to personally know Ronie Agomo-o?A. About five (5) years.

. . . .

ATTY. ACEBUQUE

Q. You said you were confined at the Passi District Hospital for two (2) days, is that correct?A. Yes, [s]ir.

Q. Immediately upon confinement at the Passi District Hospital, were there policemen who came to the hospital and investigated about the incident?

A. Joely Lasap came to me.

Q. What is his relation to Rodito Lasap?A. They are first cousins. Joely Lasap is a policeman of San Enrique.

Q. And this Pat. Lasap investigated you at the said hospital, is that correct?A. Yes, sir.

Q. When he investigated you, were you able to identify the three accused immediately?A. Yes, sir.

. . . .

COURT

Q. You said awhile ago you came to know Ronie Agomo-o for the last five (5) years. How about Eddy Paneza, when for first time have you come to know him personally?A. I already know them, Your Honor.

. . . .

Q. How about Oscar Servando, for how long have you known him?A. The same year.

Q. You know Oscar Servando for the last five (5) years yet you were not able to know what was his first name?A. Because I forgot since my house is far away.

. . . .

ATTY. ACEBUQUE

Q. When you first knew the three (3) accused for the last five (5) years, have you ever met them before the incident of September 22, 1993?A. Yes, sir.

Q. How many times have you met the three (3) accused before the incident?A. Many times.25 [Id., pp. 12-25.]

Jose Amador corroborated Agrabio’s testimony as to what transpired in the evening of September 22, 1993. He testified:

Q. On September 22, 1993 in the evening, where were you?A. I was inside the jeep.

Q. Why were you there?A. I am intending to go to Passi.

Q. Could you remember the name of the driver of that particular jeep where you were riding on that particular time?A. Yes, sir. The name is Rodito Lasap.

Q. Could you likewise remember some of your co-passengers on that particular time?A .There others I could remember but the others I could not.

Q. And at what particular time was that?A . 7:30 o’clock.

Q. While the jeep where you were riding was on its way to Passi, could you remember if there was an unusual incident that happened?A. When we were about to cross at the crossing of Brgy. Mapili within the municipality of San Enrique going to Banate, three persons came out from the camp.

COURT:

Q. What kind of camp was that?A. The [t]hree persons came out from the sugarcane field.

Q. And what did they do?A. And they pointed a gun saying “This is hold-up.”

PROSECUTOR:

Q. How many were holding a gun?A. One.

Q. Could you remember the person who was holding the gun on that particular time?A. Yes, sir I could recall.

Q. Who was he?A. Ronie Agomo-o.

Q. If Ronie Agomo-o is inside the Court, could you point out where is he?A. Yes, sir.

INTERPRETER:

(Witness pointing to a person and when asked of his name answered Ronie Agomo-o).

PROSECUTOR:

Q. How about his companions, could you remember them?A. I could identify them when the police pointed them to me but during the incident I don’t know them.

Q. Could you name the names of the two other companions?A. Servando and Paneza.

Q. If these other two companions of Ronie Agomo-o are inside the Court, could you point out where are they now?A. Yes, sir.

Q. Point to them.

INTERPRETER:

(The witness pointed to a man sitting on the right side of the bench, who, when asked of his name answered Paneza and at the left side answered Servando.)

PROSECUTOR:

Q. Now after Ronie Agomo-o and his companions came out of the sugarcane field and pointed out his gun, what happened further, if any?A. Paneza took away P50.00 and he also got my wrist watch.

Q. When Paneza took your wrist watch, was it with your consent or not?A. Why should I not consent because he was holding a pinote.

Q. If that wrist watch be shown to you, could you still remember that wrist watch?A. Yes, sir. It is my watch.

Q. Showing to you this wrist watch, how is this related to the one you are referring to?A. This is the one. There is a name de luxe.

. . . .

Q. Before Paneza took your money and your watch, what did Ronie Agomo-o and his other companions were doing at that time?A. They told me to get down the jeep.

Q. How about the driver, what was he doing at that time?A. He lay down on the chair of the jeep.

Q. Do you know why he lay down the jeep?A. Because he lost consciousness for he was shot at the chest.

COURT:

Q. Shot by whom?A. Ronie Agomo-o shot the driver.

PROSECUTOR:

Q. Which happened first, the shooting of Rodito Lasap by Ronie Agomo-o or the taking of your watch by Paneza?A. The shooting of the driver was ahead of the taking of my watch.

Q. Then upon taking your watch, what did you do?A. They told me to go down from the jeep.

Q. Did you go down from the jeep?A. Yes, sir.

Q. Then after that?A. Servando frisked my waist and then he stabbed Freddie.

Q. That Freddie, you refer to the person of Freddie Agrabio?A. Yes, sir because he was following me.

Q. Then what happened further, if any?A. No more because Freddie ran away and I also followed Freddie.26 [TSN, pp. 4-9, Oct. 5, 1994.]

As will be noted, the testimonies of Agrabio and Amador did not fit each other in

every detail. For example, while Agrabio identified Eddy Paneza as the person who stabbed him,27 [TSN, p. 9, May 3, 1993.] Jose Amador said it was Oscar Servando.28 [TSN, p. 8, Oct. 5, 1994.] Freddie Agrabio was also confused about the type of firearm Ronnie Agomo-o used, whether it was a pistolized homemade shotgun or something else.29 [TSN, pp. 13-15, May 3, 1994.] Such discrepancies, however, in the testimonies of the witnesses do not detract from their truthfulness. These apparent inconsistencies may be attributed more from an honest mistake due to fleeting memory than from a deliberate intent to prevaricate. Instead of detracting from the truthfulness of the testimonies, the inconsistencies reinforce the witnesses’ credibility.30 [People v. Bautista, G.R. No. 117685, June 21, 1999.] What is important is that the testimonies of these witnesses corroborated each other in material points, to wit: (a) that the passenger jeepney they were riding on was stopped on the crossing to Barangay Mapili, San Enrique by an armed man in the person of Ronnie Agomo-o, accompanied by accused-appellants Eddy Paneza and Oscar Servando; (b) that after announcing a hold-up, Ronnie Agomo-o shot Rodito Lasap, the driver of the passenger jeepney; and, (c) that the accused then divested the passengers of their money and other valuables.

It is settled that so long as the witnesses’ testimonies agree on substantial matters, the inconsequential inconsistencies and contradictions dilute neither the witnesses’ credibility nor the verity of their testimonies. As this Court has held:

In sum, the inconsistencies referred to by the defense are inconsequential. The points that mattered most in the eyewitnesses’ testimonies were their presence at the locus criminis, their identification of the accused-appellant as the perpetrator of the crime and their credible and corroborated narration of accused-appellant’s manner of shooting Crisanto Suarez. To reiterate, inconsistencies in the testimonies of witnesses that refer to insignificant details do not destroy their credibility. Such minor inconsistencies even manifest truthfulness and candor erasing any suspicion of a rehearsed testimony.31 [People v. Biñas, G.R. No. 121630, Dec. 8, 1999.]

In contrast to the clear and positive identification of Freddie Agrabio and Jose Amador, accused-appellants gave nothing but alibi and denial. They gave only self-serving testimonies, corroborated only by the testimonies of their relatives. As we have held, "[a]libi becomes less plausible when it is corroborated by relatives and friends who may then not be impartial witnesses."32 [People v. Araneta, 300 SCRA 80, 95 (1998).] Alibi is an inherently weak defense and must be rejected when the accused’s identity is satisfactorily and categorically established by the eyewitnesses to the offense,33 [People v. Grefaldia, 298 SCRA 337 (1998).] especially when such eyewitnesses have no ill motive to testify falsely.34 [People v. Araneta, supra.] In the case at bar, the defense failed to show that Freddie Agrabio and Jose Amador were motivated by ill will.

Furthermore, accused-appellants’ defense of alibi and denial cannot be believed as they themselves admitted their proximity to the scene of the crime when the offense occurred. Eddy Paneza testified that, at the time of the incident, he was in Barangay Madarag, a town within the municipality of San Enrique35 [TSN, p. 5, May 15, 1995.] where the robbery took place. On the other hand, Ma. Elena Servando testified that Oscar Servando went with her to gather corn in Sitio Baclayan which is also in the municipality of San Enrique.36 [TSN, p. 4, Sept. 6, 1995.]

For the defense of alibi to prosper, the following must be established: (a) the presence of the accused-appellant in another place at the time of the commission of the offense; and, (b) physical impossibility for him to be at the scene of the crime.37 [People v. Sumalde, et al., G.R. No. 121780, March 17, 2000.] These requisites were

not fulfilled in this case. Considering that accused-appellants themselves admitted that they were in the same municipality as the place where the offense occurred, it cannot be said that it was physically impossible for them to have committed the crime. On the contrary, they were in the immediate vicinity of the area where the robbery took place. Thus, their defense of alibi cannot prosper.

Second. Accused-appellants contend that there can be no finding of conspiracy against them because the prosecution failed to establish their participation in the killing of Rodito Lasap.38 [Brief for the Accused-Appellants, p. 13; Rollo, p. 65.]

This argument is without merit. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. It may be inferred from the acts of the accused indicating a common purpose, a concert of action, or community of interest.39 [People v. Macahia, 307 SCRA 404 (1999).] That there was conspiracy in the case at bar is supported by the evidence on record. Freddie Agrabio testified that after shooting the driver, the accused ordered the passengers to give their money and valuables.40 [TSN, p. 7, May 3, 1994.] Although Freddie Agrabio could not specify who among the three divested him of his wallet because he was lying face down on the floor of the jeepney,41 [Id., p. 8.] it is clear that accused-appellants took part in the robbery. Accused-appellant Paneza did not only take valuables from the passengers but also stabbed Freddie Agrabio, hitting the latter on the left elbow.42 [Id., p. 9.] Jose Amador identified both accused-appellants Eddy Paneza as the one who took his wrist watch and wallet while simultaneously pointing a "pinote" at him,43 [TSN, p. 7, Oct. 5, 1994.] and Servando as the one who frisked his waist as he was alighting from the jeepney.44 [Id., p. 8.] Clearly, therefore, accused-appellants cooperated with one another in order to achieve their purpose of robbing the driver and his passengers. "[F]or collective responsibility to be established, it is not necessary that conspiracy be proved by direct evidence of a prior agreement to commit a crime. It is sufficient that at the time of the commission of the offense, all the accused acted in concert showing that they had the same purpose or common design or that they were united in its execution.:"45 [People v. Durado, G.R. No. 121669, Dec. 23, 1999.]

While only Ronnie Agomo-o shot and killed Rodito Lasap, accused-appellants cannot be exonerated. When conspiracy is established, all who carried out the plan and who personally took part in its execution are equally liable.46 [People v. Andales, G.R. No. 130637, Aug. 19, 1999.] Accused-appellants must both also be held responsible for the death of Rodito Lasap.

Third. Accused-appellants further assert that they cannot be convicted of highway robbery as the crime was not committed by at least four persons, as required in Article 306 of the Revised Penal Code. However, highway robbery is now governed by P.D. No. 532, otherwise known as the Anti-Piracy and Anti-Highway Robbery Law of 1974. This law provides:

Sec. 2. (e). Highway Robbery/Brigandage.¾ The seizure of any person for ransom, extortion or other unlawful purposes, or the taking away of the property of another by means of violence against or intimidation of person or force upon things or other unlawful means, committed by any person on any Philippine Highway.

In the case of People v. Puno,47 [219 SCRA 85 (1993).] it was held that P.D. No. 532 amended Art. 306 of the Revised Penal Code and that it is no longer required that there be at least four armed persons forming a band of robbers.48 [Ibid.] The number of offenders is no longer an essential element of the crime of highway robbery.49 [People v. Mendoza, 254 SCRA 61 (1996).] Hence, the fact that there were only three

identified perpetrators is of no moment. P.D. No. 532 only requires proof that persons were organized for the purpose of committing highway robbery indiscriminately.50 [People v. Versoza, 294 SCRA 466 (1998).]" The robbery must be directed not only against specific, intended or preconceived victims, but against any and all prospective victims." 51 [People v. Cerbito, G.R. No. 126397, Feb. 1, 2000.] In this case, the accused, intending to commit robbery, waited at the Barangay Mapili crossing for any vehicle that would happen to travel along that road. The driver Rodito Lasap and his passengers were not predetermined targets. Rather, they became the accused’s victims because they happened to be traveling at the time when the accused were there. There was, thus, randomness in the selection of the victims, or the act of committing robbery indiscriminately, which differentiates this case from that of a simple robbery with homicide.

Sec. 3(b) of the law provides:

The penalty of reclusión temporal in its minimum period shall be imposed. If physical injuries or other crimes are committed during or on the occasion of the commission of robbery or brigandage, the penalty of reclusión temporal in its medium and maximum periods shall be imposed. If kidnapping for ransom or extortion or murder or homicide, or rape is committed as a result or on the occasion thereof, the penalty of death shall be imposed.52 [Emphasis added.]

Since a homicide occurred during the commission of the highway robbery, the appropriate penalty to be imposed on accused-appellants would have been death. However, the crime was committed on September 22, 1993 when the imposition of the death penalty was suspended by the 1987 Constitution. Hence, the penalty next lower in degree, or reclusion perpetua, was correctly imposed by the trial court on accused-appellants Paneza and Servando.

In accordance with our recent rulings,53 [People v. Sumalde, supra. See also People v. Cerbito, supra.] the trial court correctly awarded P50,000.00 as civil indemnity in favor of the heirs of Rodito Lasap.

WHEREFORE, the decision of the Regional Trial Court, Branch 23, Iloilo City is AFFIRMED.

SO ORDERED.

JEWEL VILLACORTA, assisted by her husband, GUERRERO VILLACORTA, petitioner, vs. THE INSURANCE COMMISSION and EMPIRE INSURANCE

COMPANY, respondents.1980 October 281st DivisionG.R. No. L-54171D E C I S I O N

TEEHANKEE, Acting C.J.:

The Court sets aside respondent Insurance Commission's dismissal of petitioner's complaint and holds that where the insured's car is wrongfully taken without the insured's consent from the car service and repair shop to whom it had been entrusted for check-up and repairs (assuming that such taking was for a joy ride, in the course of which it was totally smashed in an accident), respondent insurer is liable and must pay insured for the total loss of the insured vehicle under the theft clause of the policy.

The undisputed facts of the case as found in the appealed decision of April 14, 1980 of respondent insurance commission are as follows:

"Complainant (petitioner) was the owner of a Colt Lancer, Model 1976, insured with respondent company under Private Car Policy No. MBI/PC-0704 for P35,000.00 - Own Damage; P30,000.00 - Theft; and P30,000.00 - Third Party Liability, effective May 16, 1977 to May 16, 1978. On May 9, 1978, the vehicle was brought to the Sunday Machine Works, Inc., for general check-up and repairs. On May 11, 1978, while it was in the custody of the Sunday Machine Works, the car was allegedly taken by six (6) persons and driven out to Montalban, Rizal. While travelling along Mabini St., Sitio Palyasan, Barrio Burgos, going North at Montalban, Rizal, the car figured in an accident, hitting and bumping a gravel and sand truck parked at the right side of the road going south. As a consequence, the gravel and sand truck veered to the right side of the pavement going south and the car veered to the right side of the pavement going north. The driver, Benito Mabasa, and one of the passengers died and the other four sustained physical injuries. The car, as well, suffered extensive damage. Complainant, thereafter, filed a claim for total loss with the respondent company hut claim was denied. Hence, complainant was compelled to institute the present action."

The comprehensive motor car insurance policy for P35,000.00 issued by respondent Empire Insurance Company admittedly undertook to indemnify the petitioner-insured against loss or damage to the car (a) by accidental collision or overturning, or collision or overturning consequent upon mechanical breakdown or consequent upon wear and tear; (b) by fire, external explosion, self-ignition or lightning or burglary, housebreaking or theft; and (c) by malicious act.

Respondent insurance commission, however, dismissed petitioner's complaint for recovery of the total loss of the vehicle against private respondent, sustaining respondent insurer's contention that the accident did not fall within the provisions of the policy either for the Own Damage or Theft coverage, invoking the policy provision on "Authorized Driver" clause.

1 Respondent commission upheld private respondent's contention on the "Authorized Driver" clause in this wise: "It must be observed that under the above-quoted provisions, the policy limits the use of the insured vehicle to two (2) persons only, namely: the insured himself or any person on his (insured's) permission. Under the second category, it is to be noted that the words "any person' is qualified by the phrase ". . . on the insured's order or with his permission.' It is therefore clear that if the person driving is other than the insured, he must have been duly authorized by the insured, to drive the vehicle to make the Insurance company liable for the driver's negligence. Complainant admitted that she did not know the person who drove her vehicle at the time of the accident, much less consented to the use of the same (par. 5 of the complaint). Her husband likewise admitted that he neither knew this driver Benito Mabasa (Exhibit '4'). With these declarations of complainant and her husband, we hold that the person who drove the vehicle, in the person of Benito Mabasa, is not an authorized driver of the complainant. Apparently, this is a violation of the 'Authorized Driver' clause of the policy."

Respondent commission likewise upheld private respondent's assertion that the car was not stolen and therefore not covered by the Theft clause, ruling that "(T)he element of 'taking' in Article 308 of the Revised Penal Code means that the act of depriving another of the possession and dominion of a movable thing is coupled . . . with the intention, at the time of the 'taking', of withholding it with the character of permanency (People vs. Galang, 7 Appt. Ct. Rep. 13). In other words, there must have been shown a felonious intent upon the part of the taker of the car, and the intent

must be an intent permanently to deprive the insured of his car," and that "(S)uch was not the case in this instance. The fact that the car was taken by one of the residents of the Sunday Machine Works, and the withholding of the same, for a joy ride should not be construed to mean 'taking' under Art. 308 of the Revised Penal Code. If at all there was a 'taking', the same was merely temporary in nature. A temporary taking is held not a taking insured against (48 ALR 2d., page 15)."

The Court finds respondent commission's dismissal of the complaint to be contrary to the evidence and the law.

First, respondent commission's ruling that the person who drove the vehicle in the person of Benito Mabasa, who, according to its own finding, was one of the residents of the Sunday Machine Works, Inc. to whom the car had been entrusted for general check-up and repairs was not an "authorized driver" of petitioner-complainant is too restrictive and contrary to the established principle that insurance contracts, being contracts of adhesion where the only participation of the other party is the signing of his signature or his "adhesion" thereto, "obviously call for greater strictness and vigilance on the part of courts of justice with a view of protecting the weaker party from abuse and imposition, and prevent their becoming traps for the unwary." 2

The main purpose of the "authorized driver" clause, as may be seen from its text, supra, is that a person other than the insured owner, who drives the car on the insured's order, such as his regular driver, or with his permission, such as a friend or member of the family or the employees of a car service or repair shop must be duly licensed drivers and have no disqualification to drive a motor vehicle.

A car owner who entrusts his car to an established car service and repair shop necessarily entrusts his car key to the shop owner and employees who are presumed to have the insured's permission to drive the car for legitimate purposes of checking or road-testing the car. The mere happenstance that the employee(s) of the shop owner diverts the use of the car to his own illicit or unauthorized purpose in violation of the trust reposed in the shop by the insured car owner does not mean that the "authorized driver" clause has been violated such as to bar recovery, provided that such employee is duly qualified to drive under a valid driver's license.

The situation is no different from the regular or family driver, who instead of carrying out the owner's order to fetch the children from school takes out his girl friend instead for a joy ride and instead wrecks the car. There is no question of his being an "authorized driver" which allows recovery of the loss although his trip was for a personal or illicit purpose without the owner's authorization.

Secondly, and independently of the foregoing (since when a car is unlawfully taken, it is the theft clause, not the "authorized driver" clause, that applies), where a car is admittedly as in this case unlawfully and wrongfully taken by some people, be they employees of the car shop or not to whom it had been entrusted, and taken on a long trip to Montalban without the owner's consent or knowledge, such taking constitutes or partakes of the nature of theft as defined in Article 308 of the Revised Penal Code, viz. "(W)ho are liable for theft. - Theft is committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latter's consent," for purposes of recovering the loss under the policy in question.

The Court rejects respondent commission's premise that there must be an intent on the part of the taker of the car "permanently to deprive the insured of his car" and that since the taking here was for a "joy ride" and "merely temporary in nature," a

"temporary taking is held not a taking insured against."

The evidence does not warrant respondent commission's findings that it was a mere "joy ride". From the very investigator's report cited in its comment, 3 the police found from the waist of the car driver Benito Mabasa y Bartolome who smashed the car and was found dead right after the incident "one Cal. 45 Colt. and one apple type grenade," hardly the materials one would bring along on a "joy ride". Then, again, it is equally evident that the taking proved to be quite permanent rather than temporary, for the car was totally smashed in the fatal accident and was never returned in serviceable and useful condition to petitioner-owner.

Assuming, despite the totally inadequate evidence, that the taking was "temporary" and for a "joy ride", the Court sustains as the better view that which holds that when a person, either with the object of going to a certain place, or learning how to drive, or enjoying a free ride, takes possession of a vehicle belonging to another, without the consent of its owner, he is guilty of theft because by taking possession of the personal property belonging to another and using it, his intent to gam is evident since he derives therefrom utility, satisfaction, enjoyment and pleasure. Justice Ramon C. Aquino cites in his work Groizard who holds that the use of a thing constitutes gain and Cuello Calon who calls it "hurt de uso."

The insurer must therefore indemnify the petitioner owner for the total loss of the insured car in the sum of P35,000.00 under the theft clause of the policy, subject to the filing of such claim for reimbursement or payment as it may have as subrogee against the Sunday Machine Works, Inc.

ACCORDINGLY, the appealed decision is set aside and judgment is hereby rendered sentencing private respondent to pay petitioner the sum of P35,000.00 with legal interest from the filing of the complaint until full payment is made and to pay the costs of suit.

SO ORDERED.

TEOFISTO GUINGONA, JR., ANTONIO I. MARTIN, and TERESITA SANTOS, petitioners, vs. THE CITY FISCAL OF MANILA, HON. JOSE B. FLAMINIANO,

ASST. CITY FISCAL FELIZARDO N. LOTA and CLEMENT DAVID, respondents.1984 April 042nd DivisionG.R. No. L-60033D

MAKASIAR, Actg. C.J.:

This is a petition for prohibition and injunction with a prayer for the immediate issuance of restraining order and/or writ of preliminary injunction filed by petitioners on March 26, 1982.

On March 31, 1982, by virtue of a court resolution issued by this Court on the same date, a temporary restraining order was duly issued ordering the respondents, their officers, agents, representatives and/or person or persons acting upon their (respondents') orders or in their place or stead to refrain from proceeding with the preliminary investigation in Case No. 81-31938 of the Office of the City Fiscal of Manila (pp. 47-48, rec.). On January 24, 1983, private respondent Clement David filed a motion to lift restraining order which was denied in the resolution of this Court dated May 18, 1983.

As can be gleaned from the above, the instant petition seeks to prohibit public respondents from proceeding with the preliminary investigation of I.S. No. 81-31938,

in which petitioners were charged by private respondent Clement David, with estafa and violation of Central Bank Circular No. 364 and related regulations regarding foreign exchange transactions principally, on the ground of lack of jurisdiction in that the allegations of the charged, as well as the testimony of private respondent's principal witness and the evidence through said witness, showed that petitioners' obligation is civil in nature.

For purposes of brevity, We hereby adopt the antecedent facts narrated by the Solicitor General in its Comment dated June 28, 1982, as follows:

"On December 23, 1981, private respondent David filed I.S. No. 81-31938 in the Office of the City Fiscal of Manila, which case was assigned to respondent Lota for preliminary investigation (Petition, p. 8).

"In I.S. No. 81-31938, David charged petitioners (together with one Robert Marshall and the following directors of the Nation Savings and Loan Association, Inc., namely Homero Gonzales, Juan Merino, Flavio Macasaet, Victor Gomez, Jr., Perfecto Mañalac, Jaime V. Paz, Paulino B. Dionisio, and one John Doe) with estafa and violation of Central Bank Circular No. 364 and related Central Bank regulations on foreign exchange transactions, allegedly committed as follows (Petition, Annex 'A'):

"'From March 20, 1979 to March, 1981, David invested with the Nation Savings and Loan Association, (hereinafter called NSLA) the sum of P1,145,546.20 on time deposits, P13,531.94 on savings account deposits (jointly with his sister, Denise Kuhne), US$10,000.00 on time deposit, US$15,000.00 under a receipt and guarantee of payment and US$50,000.00 under a receipt dated June 8, 1980 (all jointly with Denise Kuhne), that David was induced into making the aforestated investments by Robert Marshall, an Australian national who was allegedly a close associate of petitioner Guingona Jr., then NSLA President, petitioner Martin, then NSLA Executive Vice-President and petitioner Santos, then NSLA General Manager; that on March 21, 1981 NSLA was placed under receivership by the Central Bank, so that David filed claims therewith for his investments and those of his sister; that on July 22, 1981 David received a report from the Central Bank that only P305,821.92 of those investments were entered in the records of NSLA; that, therefore, the respondents in I.S. No. 81-31938 misappropriated the balance of the investments, at the same time violating Central Bank Circular No. 364 and related Central Bank regulations on foreign exchange transactions; that after demands, petitioner Guingona Jr. paid only P200,000.00, thereby reducing the amounts misappropriated to P959,078.14 and US$75,000.00.

"Petitioners, Martin and Santos, filed a joint counter-affidavit (Petition, Annex 'B') in which they stated the following:

"'That Martin became President of NSLA in March 1978 (after the resignation of Guingona, Jr.) and served as such until October 30, 1980, while Santos was General Manager up to November 1980; that because NSLA was urgently in need of funds and at David's insistence, his investments were treated as special accounts with interests above the legal rate, and recorded in separate confidential documents only a portion of which were to be reported because he did not want the Australian government to tax his total earnings (nor) to know his total investments; that all transactions with David were recorded except the sum of US$15,000.00 which was a personal loan of Santos; that David's check for US$50,000.00 was cleared through Guingona, Jr.'s dollar account because NSLA did not have one, that a draft of US$30,000.00 was placed in the name of one Paz Roces because of a pending transaction with her; that the Philippine Deposit Insurance Corporation had already reimbursed David within

the legal limits; that majority of the stockholders of NSLA had filed Special Proceedings No. 82-1695 in the Court of First Instance to contest its (NSLA's) closure; that after NSLA was placed under receivership, Martin executed a promissory note in David's favor and caused the transfer to him of a nine and one half (9 1/2) carat diamond ring with a net value of P510,000.00; and, that the liabilities of NSLA to David were civil in nature.'

"Petitioner, Guingona, Jr., in his counter-affidavit (Petition, Annex 'C') stated the following:

"'That he had no hand whatsoever in the transactions between David and NSLA since he (Guingona Jr.) had resigned as NSLA president in March 1978, or prior to those transactions; that he assumed a portion of the liabilities of NSLA to David because of the latter's insistence that he placed his investments with NSLA because of his faith in Guingona, Jr.; that in a Promissory Note dated June 17, 1981 (Petition, Annex "D") he (Guingona, Jr.) bound himself to pay David the sums of P668.307.01 and US$37,500.00 in stated installments; that he (Guingona, Jr.) secured payment of those amounts with second mortgages over two (2) parcels of land under a deed of Second Real Estate Mortgage (Petition, Annex" E") in which it was provided that the mortgage over one (1) parcel shall be cancelled upon payment of one half of the obligation to David; that he (Guingona, Jr.) paid P200,000.00 and tendered another P300,000.00 which David refused to accept, hence, he (Guingona, Jr.) filed Civil Case No. Q-33865 in the Court of First Instance of Rizal at Quezon City, to effect the release of the mortgage over one (1) of the two parcels of land conveyed to David under second mortgages.'

"At the inception of the preliminary investigation before respondent Lota, petitioners moved to dismiss the charges against them for lack of jurisdiction because David's claims allegedly comprised a purely civil obligation which was itself novated. Fiscal Lota denied the motion to dismiss (Petition, p. 8)

"But, after the presentation of David's principal witness, petitioners filed the instant petition because: (a) the production of the Promissory Notes, Banker's Acceptance, Certificates of Time Deposits and Savings Account allegedly showed that the transactions between David and NSLA were simple loans, i.e., civil obligations on the part of NSLA which were novated when Guingona, Jr. and Martin assumed them; and (b) David's principal witness allegedly testified that the duplicate originals of the aforesaid instruments of indebtedness were all on file with NSLA, contrary to David's claim that some of his investments were not recorded (Petition, pp. 8-9).

"Petitioners alleged that they did not exhaust available administrative remedies because to do so would be futile (Petition, p. 9)" [pp. 153-157, rec.]

As correctly pointed out by the Solicitor General, the sole issue for resolution is whether public respondents acted without jurisdiction when they investigated the charges (estafa and violation of CB Circular No. 364 and related regulations regarding foreign exchange transactions) subject matter of I.S. No. 81-31938.

There is merit in the contention of the petitioners that their liability is civil in nature and therefore, public respondents have no jurisdiction over the charge of estafa.

A casual perusal of the December 23, 1981 affidavit-complaint filed in the Office of the City Fiscal of Manila by private respondent David against petitioners Teofisto Guingona, Jr., Antonio I. Martin and Teresita G. Santos, together with one Robert Marshall and the other directors of the Nation Savings and Loan Association, will

show that from March 20, 1979 to March, 1981, private respondent David, together with his sister, Denise Kuhne, invested with the Nation Savings and Loan Association the sum of P1,145,546.20 on time deposits covered by Bankers Acceptances and Certificates of Time Deposits and the sum of P13,531.94 on savings account deposits covered by passbook nos. 6-632 and 29-742, or a total of P1,159,078.14 (pp. 15-16, rec.). It appears further that private respondent David, together with his sister, made investments in the aforesaid bank in the amount of US$75,000.00 (p. 17, rec.).

Moreover, the records reveal that when the aforesaid bank was placed under receivership on March 21, 1981, petitioners Guingona and Martin, upon the request of private respondent David, assumed the obligation of the bank to private respondent David by executing on June 17, 1981 a joint promissory note in favor of private respondent acknowledging an indebtedness of P1,336,614.02 and US$75,000.00 (p. 80, rec.). This promissory note was based on the statement of account as of June 30, 1981 prepared by the private respondent (p. 81, rec.). The amount of indebtedness assumed appears to be bigger than the original claim because of the added interest and the inclusion of other deposits of private respondent's sister in the amount of P116,613.20.

Thereafter, or on July 17, 1981, petitioners Guingona and Martin agreed to divide the said indebtedness, and petitioner Guingona executed another promissory note antedated to June 17, 1981 whereby he personally acknowledged an indebtedness of P668,307.01 (1/2 of P1,336,614.02) and US$37,500.00 (1/2 of US$75,000.00) in favor of private respondent (p. 25, rec.). The aforesaid promissory notes were executed as a result of deposits made by Clement David and Denise Kuhne with the Nation Savings and Loan Association.

Furthermore, the various pleadings and documents filed by private respondent David before this Court indisputably show that he has indeed invested his money on time and savings deposits with the Nation Savings and Loan Association.

It must be pointed out that when private respondent David invested his money on time and savings deposits with the aforesaid bank, the contract that was perfected was a contract of simple loan or mutuum and not a contract of deposit. Thus, Article 1980 of the New Civil Code provides that:

"Article 1980. Fixed, savings, and current deposits of money in banks and similar institutions shall be governed by the provisions concerning simple loan."

In the case of Central Bank of the Philippines vs. Morfe (63 SCRA 114, 119 [1975], We said:

"It should be noted that fixed, savings, and current deposits of money in banks and similar institutions are not true deposits. They are considered simple loans and, as such, are not preferred credits (Art. 1980 Civil Code: In re Liquidation of Mercantile Bank of China: Tan Tiong Tick vs. American Apothecaries Co., 65 Phil. 414; Pacific Coast Biscuit Co. vs. Chinese Grocers Association, 65 Phil. 375; Fletcher American National Bank vs. Ang Cheng Lian, 65 Phil. 385; Pacific Commercial Co. vs. American Apothecaries Co., 65 Phil. 429; Gopoco Grocery vs. Pacific Coast Biscuit Co., 65 Phil. 443)."

This Court also declared in the recent case of Serrano vs. Central Bank of the Philippines (96 SCRA 96, 102 [1980]) that:

"Bank deposits are in the nature of irregular deposits. They are really loans because

they earn interest. All kinds of bank deposits, whether fixed, savings, or current are to be treated as loans and are to be covered by the law on loans (Art. 1980, Civil Code; Gullas vs. Phil. National Bank, 62 Phil. 519). Current and savings deposits are loans to a bank because it can use the same. The petitioner here in making time deposits that earn interests with respondent Overseas Bank of Manila was in reality a creditor of the respondent Bank and not a depositor. The respondent Bank was in turn a debtor of petitioner. Failure of the respondent Bank to honor the time deposit is failure to pay its obligation as a debtor and not a breach of trust arising from a depository's failure to return the subject matter of the deposit".

Hence, the relationship between the private respondent and the Nation Savings and Loan Association is that of creditor and debtor; consequently, the ownership of the amount deposited was transmitted to the Bank upon the perfection of the contract and it can make use of the amount deposited for its banking operations, such as to pay interests on deposits and to pay withdrawals. While the Bank has the obligation to return the amount deposited, it has, however, no obligation to return or deliver the same money that was deposited. And, the failure of the Bank to return the amount deposited will not constitute estafa through misappropriation punishable under Article 315, par. 1(b) of the Revised Penal Code, but it will only give rise to civil liability over which the public respondents have no jurisdiction.

WE have already laid down the rule that:

"In order that a person can be convicted under the above-quoted provision, it must be proven that he has the obligation to deliver or return the same money, goods or personal property that he received. Petitioners had no such obligation to return the same money, i.e., the bills or coins, which they received from private respondents. This is so because as clearly stated in criminal complaints, the related civil complaints and the supporting sworn statements, the sums of money that petitioners received were loans.

"The nature of simple loan is defined in Articles 1933 and 1953 of the Civil Code.

"'Art. 1933. - By the contract of loan, one of the parties delivers to another, either something not consumable so that the latter may use the same for a certain time and return it, in which case the contract is called a commodatum; or money or other consumable thing, upon the condition that the same amount of the same kind and quality shall be paid in which case the contract is simply called a loan or mutuum.

"'Commodatum is essentially gratuitous.

"'Simple loan may be gratuitous or with a stipulation to pay interest.

"'In commodatum the bailor retains the ownership of the thing loaned, while in simple loan, ownership passes to the borrower.

"'Art. 1953. - A person who receives a loan of money or any other fungible thing acquires the ownership thereof, and is bound to pay to the creditor an equal amount of the same kind and quality.'

"It can be readily noted from the above quoted provisions that in simple loan (mutuum), as contrasted to commodatum, the borrower acquires ownership of the money, goods or personal property borrowed. Being the owner, the borrower can dispose of the thing borrowed (Article 248, Civil Code) and his act will not be considered misappropriation thereof" (Yam vs. Malik, 94 SCRA 30, 34 [1979]).

But even granting that the failure of the bank to pay the time and savings deposits of private respondent David would constitute a violation of paragraph 1(b) of Article 315 of the Revised Penal Code, nevertheless any incipient criminal liability was deemed avoided, because when the aforesaid bank was placed under receivership by the Central Bank, petitioners Guingona and Martin assumed the obligation of the bank to private respondent David, thereby resulting in the novation of the original contractual obligation arising from deposit into a contract of loan and converting the original trust relation between the bank and private respondent David into an ordinary debtor-creditor relation between the petitioners and private respondent. Consequently, the failure of the bank or petitioners Guingona and Martin to pay the deposits of private respondent would not constitute a breach of trust but would merely be a failure to pay the obligation as a debtor.

Moreover, while it is true that novation does not extinguish criminal liability, it may however, prevent the rise of criminal liability as long as it occurs prior to the filing of the criminal information in court. Thus, in Gonzales vs. Serrano ( 25 SCRA 64, 69 [1968]) We held that:

"As pointed out in People vs. Nery, novation prior to the filing of the criminal information - as in the case at bar - may convert the relation between the parties into an ordinary creditor-debtor relation, and place the complainant in estoppel to insist on the original transaction or 'cast doubt on the true nature' thereof."

Again, in the latest case of Ong vs. Court of Appeals (L-58476, 124 SCRA 578, 580-581 [1983]), this Court reiterated the ruling in People vs. Nery ( 10 SCRA 244 [1964]), declaring that:

"The novation theory may perhaps apply prior to the filing of the criminal information in court by the state prosecutors because up to that time the original trust relation may be converted by the parties into an ordinary creditor-debtor situation, thereby placing the complainant in estoppel to insist on the original trust. But after the justice authorities have taken cognizance of the crime and instituted action in court, the offended party may no longer divest the prosecution of its power to exact the criminal liability, as distinguished from the civil. The crime being an offense against the state, only the latter can renounce it (People vs. Gervacio, 54 Off. Gaz. 2898; People vs. Velasco, 42 Phil. 76; U.S. vs. Montañes, 8 Phil. 620).

"It may be observed in this regard that novation is not one of the means recognized by the Penal Code whereby criminal liability can be extinguished; hence, the role of novation may only be to either prevent the rise of criminal liability or to cast doubt on the true nature of the original basic transaction, whether or not it was such that its breach would not give rise to penal responsibility, as when money loaned is made to appear as a deposit, or other similar disguise is resorted to (cf. Abeto vs. People, 90 Phil. 581; U.S. vs. Villareal, 27 Phil. 481)."

In the case at bar, there is no dispute that petitioners Guingona and Martin executed a promissory note on June 17, 1981 assuming the obligation of the bank to private respondent David; while the criminal complaint for estafa was filed on December 23, 1981 with the Office of the City Fiscal. Hence, it is clear that novation occurred long before the filing of the criminal complaint with the Office of the City Fiscal.

Consequently, as aforestated, any incipient criminal liability would be avoided but there will still be a civil liability on the part of petitioners Guingona and Martin to pay the assumed obligation.

Petitioners herein were likewise charged with violation of Section 3 of Central Bank Circular No. 364 and other related regulations regarding foreign exchange transactions by accepting foreign currency deposit in the amount of US$75,000.00 without authority from the Central Bank. They contend however, that the US dollars intended by respondent David for deposit were all converted into Philippine currency before acceptance and deposit into Nation Savings and Loan Association.

Petitioners' contention is worthy of belief for the following reasons:

1. It appears from the records that when respondent David was about to make a deposit of bank draft issued in his name in the amount of US$50,000.00 with the Nation Savings and Loan Association, the same had to be cleared first and converted into Philippine currency. Accordingly, the bank draft was endorsed by respondent David to petitioner Guingona, who in turn deposited it to his dollar account with the Security Bank and Trust Company. Petitioner Guingona merely accommodated the request of the Nation Savings and Loan Association in order to clear the bank draft through his dollar account because the bank did not have a dollar account. Immediately after the bank draft was cleared, petitioner Guingona authorized Nation Savings and Loan Association to withdraw the same in order to be utilized by the bank for its operations.

2. It is safe to assume that the U.S. dollars were converted first into Philippine pesos before they were accepted and deposited in Nation Savings and Loan Association, because the bank is presumed to have followed the ordinary course of the business which is to accept deposits in Philippine currency only, and that the transaction was regular and fair, in the absence of a clear and convincing evidence to the contrary (see paragraphs p and q, Sec. 5, Rule 131, Rules of Court).

3. Respondent David has not denied the aforesaid contention of herein petitioners despite the fact that it was raised in petitioners' reply filed on May 7, 1982 to private respondent's comment and in the July 27, 1982 reply to public respondents' comment and reiterated in petitioners' memorandum filed on October 30, 1982, thereby adding more support to the conclusion that the US$75,000.00 were really converted into Philippine currency before they were accepted and deposited into Nation Savings and Loan Association. Considering that this might adversely affect his case, respondent David should have promptly denied petitioners' allegation.

In conclusion, considering that the liability of the petitioners is purely civil in nature and that there is no clear showing that they engaged in foreign exchange transactions, We hold that the public respondents acted without jurisdiction when they investigated the charges against the petitioners. Consequently, public respondents should be restrained from further proceeding with the criminal case for to allow the case to continue, even if the petitioners could have appealed to the Ministry of Justice, would work great injustice to petitioners and would render meaningless the proper administration of justice.

While as a rule, the prosecution in a criminal offense cannot be the subject of prohibition and injunction, this court has recognized the resort to the extraordinary writs of prohibition and injunction in extreme cases, thus:

"On the issue of whether a writ of injunction can restrain the proceedings in Criminal Case No. 3140, the general rule is that 'ordinarily, criminal prosecution may not be blocked by court prohibition or injunction.' Exceptions, however, are allowed in the following instances:

"'1. for the orderly administration of justice; "'2. to prevent the use of the strong arm of the law in an oppressive and vindictive manner; "'3. to avoid multiplicity of actions; "'4. to afford adequate protection to constitutional rights; "'5. in proper cases, because the statute relied upon is unconstitutional or was held invalid'" (Primicias vs. Municipality of Urdaneta, Pangasinan, 93 SCRA 462, 469-470 [1979]; citing Ramos vs. Torres, 25 SCRA 557 [1968]; and Hernandez vs. Albano, 19 SCRA 95, 96 [1967]).

Likewise, in Lopez vs. The City Judge, et al. (18 SCRA 616, 621-622 [1966]), We held that:

"The writs of certiorari and prohibition, as extraordinary legal remedies, are in the ultimate analysis, intended to annul void proceedings; to prevent the unlawful and oppressive exercise of legal authority and to provide for a fair and orderly administration of justice. Thus, in Yu Kong Eng vs. Trinidad, 47 Phil. 385, We took cognizance of a petition for certiorari and prohibition although the accused in the case could have appealed in due time from the order complained of, our action in the premises being based on the public welfare and the advancement of public policy, In Dimayuga vs. Fajardo, 43 Phil. 304, We also admitted a petition to restrain the prosecution of certain chiropractors although, if convicted, they could have appealed. We gave due course to their petition for the orderly administration of justice and to avoid possible oppression by the strong arm of the law. And in Arevalo vs. Nepomuceno, 63 Phil. 627, the petition for certiorari challenging the trial court's action admitting an amended information was sustained despite the availability of appeal at the proper time."

WHEREFORE, THE PETITION IS HEREBY GRANTED; THE TEMPORARY RESTRAINING ORDER PREVIOUSLY ISSUED IS MADE PERMANENT. COSTS AGAINST THE PRIVATE RESPONDENT.

SO ORDERED.

ROBERT CRISANTO D. LEE, Petitioner, versus PEOPLE OF THE PHILIPPINES and ATOZ TRADING CORPORATION, Respondents.2005 Apr 112nd

DivisionG.R. No. 157781D E C I S I O N CALLEJO, SR., J.:

This is a petition for review under Rule 45 of the Revised Rules of Court of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 19947 dismissing the appeal of petitioner Robert Crisanto D. Lee and the Resolution[2] denying his motion for reconsideration.

At the instance of Atoz Trading Corporation (ATC), 10 separate Informations were filed, on September 27, 1994, in the Regional Trial Court of Pasig City, Branch 159, against petitioner in his capacity as marketing manager of ATC. The cases were docketed as Criminal Case Nos. 107020 to 107029. Except for the dates and the amounts involved, the Informations contained common allegations for the crimes allegedly committed, as follows:

1. CRIM. CASE No. 107020:

That on or about the 10th day of January, 1992, in the Municipality of San Juan, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then the Marketing Manager of Atoz Trading Corporation represented by Johnny M. Jaotegan was authorized to [receive] payments for the company; Thus received from Ocean Feed Mills Company's Client, the amount of P47,940.00 through telegraphic transfer, with the corresponding obligation to remit/account the same to Atoz Trading Corporation; but accused, far from complying with his obligation to remit the same despite notices and demands made upon him, with intent [to] gain, unfaithfulness and grave abuse of confidence and to defraud Atoz Trading Corporation represented by Johnny M. Jaotegan once in possession of the money received from Ocean Feed Mills, did then and there willfully, unlawfully, and feloniously misapplied, misappropriated and converted to his own personal use and benefit the amount of P47,940.00 to the damage and prejudice of the complainant in the aforementioned amount of P47,940.00.

CONTRARY TO LAW.[3]

Other than Criminal Case No. 107023 which was ordered dismissed on motion of the prosecution, joint trial on the merits of the remaining nine cases eventuated, following the arraignment of petitioner on February 20, 1995 during which he pleaded “Not Guilty.”

The proceedings before the trial court and the evidence adduced by the parties were summarized by the CA as follows:

During the joint trial of the remaining cases, the prosecution presented the following witnesses: (1) Johnny Jaotegan, the President and Chief Operating Officer of Atoz Trading Corporation; (2) Jeffrey Corneby, the general teller of UCPB, Greenhills, San Juan; (3) Maria Concepcion dela Cruz, the corporate secretary of Ocean Feed Mills; and (4) Ellen Gusar, the accounting clerk-computer encoder of Atoz Trading Corporation. Their testimonies tend to establish the following factual backdrop:

Atoz Trading Corporation, hereinafter referred to as Atoz, is a stock corporation engaged in the trading of animal feeds, feeds supplements, raw materials and ingredients for feed mills, with herein [petitioner] Robert Crisanto Lee as the corporation’s sales manager from early 90’s to 1994. In the course of Lee’s employment therewith, he was able to bring in Ocean Feed Mills, a Bacolod-based company engaged in the manufacture of pelletized feeds for prawn and fish, as one of Atoz’s clients. Having “personally found” Ocean Feed Mills, [petitioner] handled said account.

Transactions between the two companies were then coursed through [petitioner], so that it was upon the latter’s instructions that Ocean Feed Mills addressed its payments through telegraphic transfers to either “Atoz Trading and/or Robert Lee” or “Robert Lee” since [petitioner] explained that it was difficult for him to claim the check at UCPB Greenhills.

When [petitioner] ceased reporting for work in 1994, Atoz audited some of the accounts handled by him. It was then that Atoz discovered Ocean Feed Mills’ unpaid account in the amount of P318,672.00. Atoz thus notified Ocean Feed Mills that [petitioner] was no longer connected with the corporation, and advised it to verify its accounts. Promptly preparing a certification and summary of payments, Ocean Feed Mills informed Atoz that they have already fully settled their accounts and even made overpayments.

Bank documents prepared and submitted by UCPB Greenhills, San Juan, later showed that [petitioner] maintained therewith Savings Account No. 117-105532-0, to which account the payments made by Ocean Feed Mills to Atoz through telegraphic transfers, have either been credited or deposited. Jeffrey Corneby, UCPB Greenhills’ general teller, testified that upon receipt of telegraphic transfers coursed through UCPB, it is customary for said bank to either credit the amount to payee’s account if payee has an account with the bank, or just issue a manager’s check for the amount transmitted if the payee has no account.

Meanwhile, Ellen Gusar, whose duty was to prepare statement of accounts to be sent to Atoz’s clients, attested that [petitioner] took the duly-prepared statement of accounts of Ocean Feed Mills and never returned the same, on the pretext that he had already sent them to the Ocean Feed Mills. She also confirmed that, as of September 30, 1992, the subsidiary ledger of Atoz showed that Ocean Feed Mills had an outstanding balance of P318,672.00.

After the prosecution rested its case, the [petitioner] filed a Demurrer to Evidence, therein alleging that the evidence thus far presented by the prosecution in each of the cases were insufficient inasmuch as “[I]t is bereft of any evidence of formal demand upon the accused to remit the amounts allegedly misappropriated, before the filing of the subject cases.” In an Order dated January 23, 1996, the trial court denied the demurrer for lack of factual and legal basis (Records, p. 200).

In his defense, [petitioner] maintained that he had informed Lu Hsui Nan, the man whom he alleged to be the “real” president of Atoz, of the manner in which Ocean Feed Mills transmitted its payments and that Nan said “it is okay although unusual, as long as I [petitioner] maintain the customer and the relationships and as long as they pay us” (TSN, March 26, 1996, p. 14). He also asserted that as soon as the bank credited the remittances to his account, he would withdraw the same either in cash or in the form of manager’s checks and remitted the same to Beth Ligo, Atoz’s cashier. He insisted, however, that Beth Ligo, instead of issuing acknowledgment receipts of the aforesaid remittances, merely recorded the same and furnished copies thereof to the credit and collections and the accounting departments of Atoz.

On rebuttal, the prosecution recalled Johnny Jaotegan to the witness stand, and presented additional witnesses, namely: (1) Lu Hsui Nan, whom the prosecution presented as Atoz’s vice president and director; and (2) Elizabeth Ligo, Atoz’s cashier from 1985 to 1994.

Nan denied having knowledge that Ocean Feed Mills made payments through telegraphic transfers addressed to “Atoz Trading Corporation and/or Robert Lee” as payee, saying that he only learned of the same when [petitioner] ceased working for the corporation.

Ligo, on the other hand, testified that she did not receive any payment from Ocean Feed Mills, hence she did not issue provisional receipts for the same. She added that it was only on April 7, 1992 when she issued Provisional Receipt No. 502 for Ocean Feed Mills’ payment of P25,500.00 collected by [petitioner].

Jaotegan claimed that on August 12, 1994, between 10 p.m. to 1 a.m., he went to Parañaque, accompanied by his counsel and some policemen, and tried to locate [petitioner], and that upon finding him, “we asked him [petitioner] to remit the payments made by Ocean Feed Mills to Atoz Trading Corporation.” (TSN, 14 May 1996, p. 19).

On sur-rebuttal, [petitioner] declared that Jaotegan did not demand the payments made by Ocean Feed Mills [Company] but only demanded from him the return of the service car and the cellular phone assigned to him.[4]

On July 23, 1996, the trial court rendered judgment convicting the petitioner of the crimes charged. The dispositive portion of the decision reads:

WHEREFORE, in view of the foregoing, the Court finds accused ROBERT CRISANTO LEE guilty beyond reasonable doubt of nine (9) counts of the crime of Estafa, defined and penalized under Art. 315, par. 1(b) of the Revised Penal Code and there being no mitigating nor aggravating circumstances present in the commission of the crime hereby sentences said accused to suffer the following:

1) In Crim. Case No. 107020 – An indeterminate penalty of two (2) years, eleven (11) months and eleven (11) days of prision correccional in its medium period as minimum to eight (8) years and one (1) day of prision mayor in its medium period as maximum and to pay Atoz Trading Corporation the amount of P47,940.00 as actual damages plus costs.

2) In Crim. Case No. 107021 – An indeterminate penalty of two (2) years, eleven (11) months and eleven (11) days of prision correccional in its medium period as minimum to eight (8) years and one (1) day of prision mayor in its medium period as maximum and to pay Atoz Trading Corporation the amount of P47,940.00 as actual damages plus costs.

3) In Crim. Case No. 107022 – An indeterminate penalty of two (2) years, eleven (11) months and eleven (11) days of prision correccional in its medium period as minimum to five (5) years and six (6) months of prision correccional in its maximum period as maximum and to pay Atoz Trading Corporation the amount of P17,000.00 as actual damages plus costs.

4) In Crim. Case No. 107024 – An indeterminate penalty of two (2) years, eleven (11) months and eleven (11) days of prision correccional in its medium period as minimum to eight (8) years and one (1) day of prision mayor in its medium period as maximum and to pay Atoz Trading Corporation the amount of P47,000.00 as actual damages plus costs.

5) In Crim. Case No. 107025 – An indeterminate penalty of three (3) years, six (6) months and twenty (20) days of prision correccional in its medium period as minimum to nine (9) years and one (1) day of prision mayor in its medium period as maximum and to pay Atoz Trading Corporation the amount of P54,000.00 as actual damages plus costs.

6) In Crim. Case No. 107026 – An indeterminate penalty of one (1) year and nine (9) months of prision correccional in its minimum period as minimum to six (6) years and one (1) day of prision mayor in its minimum period as maximum and to pay Atoz Trading Corporation the amount of P15,000.00 as actual damages plus costs.

7) In Crim. Case No. 107027 – An indeterminate penalty of two (2) years, eleven (11) months and eleven (11) days of prision correccional in its medium period as minimum to eight (8) years and one (1) day of prision mayor in its medium period as maximum and to pay complainant the amount of P23,256.00 as actual damages plus costs.

8) In Crim. Case No. 107028 – An indeterminate penalty of three (3) years, six (6) months and twenty (20) days of prision correccional in its medium period as minimum to fifteen (15) years, eight (8) months and one (1) day of reclusion temporal in its medium period as maximum and to pay private complainant the amount of P93,000.00 as actual damages plus costs.

9) In Crim. Case No. 107029 – An indeterminate penalty of two (2) years, eleven (11) months and eleven (11) days of prision correccional in its medium period as minimum to eight (8) years and one (1) day of prision mayor in its medium period as maximum and to pay private complainant Atoz Trading Corporation the amount of P44,696.00 as actual damages plus costs.

SO ORDERED.[5]

The petitioner appealed the decision to the CA contending that:

A) THE LOWER COURT GRAVELY ERRED IN FINDING THE ACCUSED GUILTY OF ESTAFA THRU CONVERSION OR MISAPPROPRIATION EVEN WITHOUT ANY EVIDENCE OF PRIOR DEMAND; AND

B) THE LOWER COURT GRAVELY ERRED IN FINDING THAT THERE IS EVIDENCE OF CONVERSION OR MISAPPROPRIATION SINCE THERE IS LACK OF IT. (Appellant’s Brief, p. 4; Rollo, pp. 32-40, 35).[6]

In a Decision on September 13, 2002, the CA dismissed the appeal and affirmed the assailed decision. The appellate court, likewise, dismissed the petitioner’s motion for the reconsideration of its decision.

Aggrieved by the aforementioned rulings, the petitioner filed the instant petition for review and raised the following:

A.) WHETHER OR NOT PETITIONER CAN BE CONVICTED FOR THE CRIME OF ESTAFA THRU CONVERSION (ART. 315, PAR. 1-[b] OF THE REVISED PENAL CODE), LACKING THE ELEMENT OF FORMAL DEMAND BEFORE THE FILING OF THE CASES AGAINST HIM; AND

B.) WHETHER THE QUESTIONED DECISION AND RESOLUTION WERE ISSUED WITH GRAVE ABUSE OF DISCRETION OR NOT.[7]

The petitioner contends that demand is a condition sine qua non to the filing of a criminal complaint for estafa. He posits that demand must be made formally. The petitioner cites the commentary of Justice Ramon C. Aquino, based on the rulings of the CA in People v. Pendon[8] and People v. Bastiana.[9] The petitioner, likewise, echoes the commentary of Justice Aquino that even in Tubb v. People,[10] the Court ruled that there must be demand for funds or property held in trust. The petitioner asserts that the respondents failed to prove the element of demand on its evidence-in-chief and attempted to prove the same only on its rebuttal evidence. In any event, the petitioner asserts that the evidence adduced by the respondents to prove the petitioner’s misappropriation is doubtful.

The respondents refute the contention of the petitioner, thus:

The fourth element of estafa under Article 315, par. 1(b) of the Revised Penal Code, i.e., that demand was made by the offended party, was adequately and clearly proven by the prosecution. It must be stressed that prior to the filing of the subject

criminal cases against petitioner, private complainant’s president, Johnny Jaotegan, had demanded from petitioner to turn over to him the subject sums of money. Thus, in the evening of August 12, 1994, Johnny Jaotegan, along with his counsel Atty. Fernando Flor and some Parañaque policemen, went to petitioner’s house in Parañaque and there he asked petitioner to remit said sums of money and to return the company car and a cellular phone (TSN, May 14, 1996, pp. 16-19). It also appears that earlier, private complainant’s officers had encountered difficulty in locating petitioner after his continued failure to report for work in August 1994, prompting said officers to seek the assistance of the Parañaque police for that purpose (Ibid., p. 17). Evidently, as petitioner admitted, there was a demand made on him to account for the money he had collected from private complainant’s customer.

Contrary to petitioner’s proposition, prior demand need not be made formally (See People vs. Valeriano, CA, 61 O.G. 282, 284 [1965], citing Tubb vs. People, 101 Phil. 114 [1957]). This Honorable Court has suggested in the Tubb case that previous demand may be made inwhatever form. There, the complainant, after having failed to locate the whereabouts of the accused to whom he had entrusted P6,000.00 for the purchase of rattan and who neither delivered the rattan nor returned the money, met the accused by chance at the Manila Hotel one year later and asked him about the money. Charged with estafa, the accused claimed that no demand had been made upon him. The Honorable Court declared:

“It is urged that there can be no estafa without a previous demand, which allegedly has not been made upon herein petitioner, but the aforementioned query made to him by Quasha, in the Manila Hotel, was tantamount to a demand. Besides, the 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 [may], however, be established in the case at bar.”

(Tubb vs. People, supra, at 119)

Indeed, in Barrameda vs. Court of Appeals, 313 SCRA 477, 485 [1999], this Honorable Court, citing Tubb vs. People, supra, held that the specific word “demand” need not be used to show that demand had, indeed, been made upon the person charged with the offense. A query as to the whereabouts of the money is tantamount to a demand.

Notably, in his cited book, former Chief Justice Aquino does not, in anyway, purport to subscribe to the view that a demand must be made formally. What he merely says is that while this Honorable Court ruled in Tubb that, under the law, a demand is not a condition precedent to the existence of the crime of embezzlement and that the failure to account, upon demand, for funds or property held in trust is circumstantial evidence of misappropriation, the same ruling states that there must still be some demand, regardless of its form. In the same manner, while he cited in his book the Court of Appeals’ ruling in People vs. Pendon (supra) and People vs. Bastiana (supra) that such demand must be made formally and before the action is filed and that in the absence of demand, an accused cannot be convicted of estafa, it is apparent therefrom that Justice Aquino made use of the citation only to set forth the diverging opinions of the Court of Appeals on the matter, namely, (1) one view holding that the demand must be made formally (People vs. Pendon, supra); (2) another one holding that such demand is not required if there is a specified time for delivery (People vs. Librea, CA, 48 O.G. 5304); and (3) still another one holding that a report to the police

was considered a demand (People vs. Baquir, CA-G.R. No. 5349-R, January 26, 1951).[11]

We agree with the respondents.

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

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

…

1. With unfaithfulness or abuse of confidence, namely:

…

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

The 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.[12]

The words “convert” and “misappropriate” as used in the aforequoted law connote an act of using or disposing of another’s property as if it were one’s own or of devoting it to a purpose or use different from that agreed upon. To “misappropriate” a thing of value for one’s own use or benefit, not only the conversion to one’s personal advantage but also every attempt to dispose of the property of another without a right.[13] Misappropriation or conversion may be proved by the prosecution by direct evidence or by circumstantial evidence.

Demand is not an element of the felony or a condition precedent to the filing of a criminal complaint for estafa. Indeed, the accused may be convicted of the felony under Article 315, paragraph 1(b) of the Revised Penal Code if the prosecution proved misappropriation or conversion by the accused of the money or property subject of the Information.[14] In a prosecution for estafa, demand is not necessary where there is evidence of misappropriation or conversion.[15] However, failure to account upon demand, for funds or property held in trust, is circumstantial evidence of misappropriation.[16]

Demand need not be formal. It may be verbal. In Barrameda v. Court of Appeals,[17] the Court ruled that even a query as to the whereabouts of the money is tantamount to a demand:

It must be noted that the specific word “demand” need not be used to show that demand had, indeed, been made upon the person charged of the offense. A query as to the whereabouts of the money, such as the one proven in the case at bench, is tantamount to a demand.[18]

In the present case, the prosecution adduced proof upon cross-examination of the petitioner that he failed to return the funds held in trust before the complaint for estafa was filed against him:

Anent the second element of Estafa under Article 315, par. 1(b), there was a strong and positive evidence that in all the criminal cases filed before this Court, the accused had, indeed, converted the proceeds of the telegraphic transfers (remitted by Ocean Feed Mills [Company] in favor of Atoz Trading Corporation) to his own benefit. A perusal of the Transcript of Stenographic Notes dated March 26, 1996, page 30, reads:

Cross-Examination of RobertLee conducted byAtty. Flor:

Q - According to you, Mr. Witness, the Ocean Feed Mills whenever they remit their payment, they do it through telegraphic transfer?

A - Yes, Sir.

Q - And according to you, the telegraphic transfer is paid to or the payee is Atoz Trading and/or Robert Crisanto Lee?

A - Just Robert Lee only.

Q - That Robert Lee refers to you?

A - Yes, Sir.

In the foregoing cross-examination, accused admitted that he received the telegraphic transfers sent by Ocean Feed Mills. In the same Transcript of Stenographic Notes, pp. 34-36, accused tried to defend himself by alleging that the proceeds of the remitted amount were given to Ms. Beth Ligo, cashier of Atoz Trading Corporation.

Cross-Examinationconducted byAtty. Flor:

Q - This Beth Ligo, Mr. Witness, according to you, she is the cashier of what company?

A - Both of Atoz and Chiu-Nichi Agro Resources.

Q - According to you a while ago, whenever the Ocean Feed Mills remit their payment, it goes to your account at UCPB and then you withdraw that money from UCPB, Greenhills, sometimes in cash and sometimes in the form of manager’s check payable to Atoz Trading. A while ago, Mr. Witness, you testified that you withdraw the cash from your bank account, is it not?

A - Since it was credited in my account, I have to withdraw it from my account.

Q - You withdraw the payments remitted from Bacolod to Greenhills UCPB, from your bank account?

A - Because it was credited.

Q - My question is, did you withdraw the remittances from your bank account?

A - Yes, Sir.

Q - After you withdraw that money from your bank account, you immediately go and see Miss Beth Ligo and surrender that cash to her, is that what you want to tell us?

A - What do you mean by immediate.

Q - According to you, a while ago, Mr. Witness, UCPB Greenhills is just in front of your office at Greenhills, is it not?

A - Correct, Sir.

Q - When you learned that there is a remittance from Bacolod from their payment of Atoz product, you go to your bank and withdraw that remittance in cash and immediately with this cash, you just cross the street and surrender it to the cashier Ms. Beth Ligo, is it not correct?

A - If what you mean upon crediting of payment from Ocean Feed Mills to my account and I withdraw it immediately, sometimes it was credited and before I know about it a day or two after. That is the situation.

Q - Yes, my question is when you learned that telegraphic transfer was made by Ocean Feed Mills to Atoz Trading and/or Robert Lee and incidentally it ended up in your account, what you normally do is you go and withdraw that amount in cash and considering that your office is just across the street, with the cash you go and see the cashier Miss Beth Ligo and right there and then give her the cash?

A - Yes, because all remittances are handed to the cashier.

From the foregoing testimony of the accused, it is clear that Mr. Robert Crisanto Lee had, indeed, misappropriated or converted to his personal use the payments of Ocean Feed Mills which were remitted thru telegraphic transfers in nine (9) instances since the account of Ocean with Atoz remains outstanding up to the present (Exh. “I,” “I-1” and “J”) as corroborated by Ms. Beth Ligo (cashier of Atoz) where she stated on rebuttal that the accused did not remit these payments of Ocean. It is evident that the accused assumed the right to dispose of the remittances as if it were his own, thus, committing conversion with unfaithfulness and a clear breach of trust.

It is quite obvious that the misappropriation or conversion committed by the accused resulted to the prejudice of both Atoz Trading Corporation and Ocean Feed Mills particularly the latter, which had a belief all along that its payments were credited to its outstanding balance. Since records reveal that up to this even date, Ocean has an outstanding balance of P318,672.00, sufficient to constitute injury within the meaning of Article 315 a(b) of the Revised Penal Code. Thus, the third element of this kind of Estafa is satisfied.[19]

The respondents, likewise, adduced evidence on rebuttal testimony of Johnny M. Jaotegan, the president of ATC, that he, in the company of policemen, demanded the production of the funds from the petitioner but that the latter failed to account for and return the same.[20]

The bare fact that the respondents adduced proof of demand only when they presented Johnny M. Jaotegan as rebuttal witness and not as a witness on their evidence-in-chief does not enfeeble the case of the respondents. It bears stressing that in resolving a case, the trial court must consider all the evidence adduced by the parties on their evidence-in-chief, rebuttal evidence and sur-rebuttal evidence. Moreover, the petitioner testified on sur-rebuttal evidence and denied the testimony of Jaotegan on rebuttal, hence, cannot feign prejudice.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. Costs against the petitioner.

SO ORDERED.