11.

consummated/frustrated/attempted
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. 143468-71 January 24, 2003
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FREDDIE LIZADA @ FREDIE LIZADA, accused-appellant.
CALLEJO, SR., J.:
This is an automatic review of the Decision
1
of the Regional Trial Court of Manila, Branch 54, finding accused-
appellant Freddie Lizada guilty beyond reasonable doubt of four (4) counts of qualified rape and meting on him the
death penalty for each count.
I. The Charges
Accused-appellant
2
was charged with four (4) counts of qualified rape under four separate Informations. The
accusatory portion of each of the four Informations reads:
"That sometime in August 1998 in the City of Manila, Philippines, the said accused, with lewd designs, did
then and there willfully, unlawfully and feloniously, by means of force, violence and intimidation upon the
person of one ANALIA ORILLOSA y AGOO, by then and there embracing her, kissing and touching her
private parts, thereafter removing her skirt and panty, placing himself on top of her and trying to insert his
penis into her vagina and succeeded in having carnal knowledge with the said ANALIA ORILLOSA y
AGOO, against her will and consent.
Contrary to law.
xxx xxx xxx
That on or about November 5, 1998, in the City of Manila, Philippines, the said accused, with lewd
designs, did then and there willfully, unlawfully and feloniously, by means of force, violence and
intimidation upon the person of one ANALIA ORILLOSA Y AGOO, by then and there embracing her,
kissing and touching her private parts, thereafter removing her skirt and panty, placing himself on top of
her and trying to insert his penis into her vagina and succeeded in having carnal knowledge with the said
ANALIA ORILLOSA Y AGOO, against her will and consent.
Contrary to law.
xxx xxx xxx
That on or about October 22, 1998, in the City of Manila, Philippines, the said accused, with lewd designs,
did then and there willfully, unlawfully and feloniously, by means of force, violence and intimidation upon
the person of one ANALIA ORILLOSA Y AGOO, by then and there embracing her, kissing and touching
her private parts, thereafter removing her skirt and panty, placing himself on top of her and trying to insert
his penis into her vagina and succeeded in having carnal knowledge with the said ANALIA ORILLOSA Y
AGOO, against her will and consent.
Contrary to law.
xxx xxx xxx
That on or about September 15, 1998, in the City of Manila, Philippines, the said accused, with lewd
designs, did then and there willfully, unlawfully and feloniously, by means of force, violence and
intimidation upon the person of one ANALIA ORILLOSA Y AGOO, by then and there embracing her,
kissing and touching her private parts, thereafter removing her skirt and panty, placing himself on top of
her and trying to insert his penis into her vagina and succeeded in having carnal knowledge with the said
ANALIA ORILLOSA Y AGOO, against her will and consent.
Contrary to law."
3

The four (4) Informations were docketed as Criminal Cases Nos. 99-171390, 99-171391, 99-171392 and 99-171393,
respectively.
Accused-appellant was arraigned on April 15, 1999, assisted by counsel de parte and entered a plea of not guilty to
each of the charges.
4
A joint trial then ensued.
II. Evidence of the Prosecution
5

Ricardo Orillosa and his wife, Rose Orillosa, natives of San Isidro, Bohol, had three (3) children, namely: Analia,
who was born on December 18, 1985;
6
Jepsy, who was 11 years old, and Rossel, who was nine years old. However,
the couple decided to part ways and live separately. Rose left Bohol and settled in Manila with her young children.
She worked as a waitress to make both ends meet.
In 1994, Rose met accused-appellant. They decided to live together as husband and wife at No. 1252 Jose Abad
Santos Street, Moriones, Tondo, Manila. In 1996, Rose resigned from her job as a waitress. She secured a loan,
bought a truck and used it for her business.
In the meantime, Rose secured a loan anew and used the proceeds thereof to put up a video shop in her house. She
sold Avon products from house to house to augment her income. Whenever she was out of their house, Rossel and
Analia took turns in tending the video shop and attending to customers.
Sometime in 1996, Analia was in her room when accused-appellant entered. He laid on top of her, removed her T-
shirt and underwear. He then inserted his finger in her vagina. He removed his finger and inserted his penis in her
vagina. Momentarily, she felt a sticky substance coming out from his penis. She also felt pain in her sex organ.
Satiated, accused-appellant dismounted but threatened to kill her if she divulged to anyone what he did to her.
Accused-appellant then returned to his room. The incident lasted less than one hour. Petrified by the threats on her
life, Analia kept to herself what happened to her.
7

Sometime in August 1997, accused-appellant entered again the room of Analia, placed himself on top of her and
held her legs and arms. He then inserted his finger into her sex organ ("fininger niya ako"). Satiated, accused-
appellant left the room. During the period from 1996 to 1998, accused-appellant sexually abused private
complainant two times a week.
On November 5, 1998, at about 3:00 p.m., Analia was in the sala of their house studying her assignments. Accused-
appellant was also in the sala. Rossel tended the video shop while his mother was away. Analia went into her room
and lay down in bed. She did not lock the door of the room because her brother might enter any time. She wanted to
sleep but found it difficult to do so. Accused-appellant went to his room next to the room of Analia. He, however,
entered the room of Analia. He was wearing a pair of short pants and was naked from waist up. Analia did not mind
accused-appellant entering her room because she knew that her brother, Rossel was around. However, accused-
appellant sat on the side of her bed, placed himself on top of her, held her hands and legs and fondled her breasts.
She struggled to extricate herself. Accused-appellant removed her panty and touched her sex organ. Accused-
appellant inserted his finger into her vagina, extricated it and then inserted his penis into her vagina. Accused-
appellant ejaculated. Analia felt pain in her sex organ. Momentarily, Rossel passed by the room of Analia after
drinking water from the refrigerator, and peeped through the door. He saw accused-appellant on top of Analia.
Accused-appellant saw Rossel and dismounted. Accused-appellant berated Rossel and ordered him to go to his room
and sleep. Rossel did. Accused-appellant then left the room. Analia likewise left the room, went out of the house and
stayed outside for one hour. Rose arrived home at 6:00 p.m. However, Analia did not divulge to her mother what
accused-appellant had just done to her.
On November 9, 1998, at about 3:00 p.m., Rose left the house. Accused-appellant was in the sala of the house
watching television. Analia tended the video shop. However, accused-appellant told Analia to go to the sala. She
refused, as nobody would tend the video shop. This infuriated accused-appellant who threatened to slap and kick
her.
Analia ignored the invectives and threats of accused-appellant and stayed in the video shop. When Rose returned, a
heated argument ensued between accused-appellant and Analia. Rose sided with her paramour and hit Analia. This
prompted Analia to shout. "Ayoko na, ayoko na." Shortly thereafter, Rose and Analia left the house on board the
motorcycle driven by her mother in going to Don Bosco Street, Moriones, Tondo, Manila, to retrieve some tapes
which had not yet been returned. When Rose inquired from her daughter what she meant by her statement, "ayoko
na, ayoko na," she told her mother that accused-appellant had been touching the sensitive parts of her body and that
he had been on top of her. Rose was shocked and incensed. The two proceeded to Kagawad Danilo Santos to have
accused-appellant placed under arrest. On November 10, 1998, the two proceeded to the Western Police District
where Analia gave her Affidavit-Complaint to PO1 Carmelita Nocum in the presence of SPO2 Fe H. Avindante. She
related to the police investigator that accused-appellant had touched her breasts and arms in August, 1998,
September 15, 1998, October 22, 1998 and on November 5, 1998, at 3:00 p.m. Analia then submitted herself to
genitalia examination by Dr. Armie Umil, a medico-legal officer of the NBI. The medico-legal officer interviewed
Analia, told him that she was raped in May, 1997 at 3:00 p.m. and November 5, 1998 at 3:00 p.m.
8

Dr. Umil prepared and signed a report on "Living Case No. MO-98-1265" which contained her findings during her
examination on Analia, thus:
"xxx xxx xxx
Fairly nourished, conscious, coherent, cooperative, ambulatory subject. Breasts, developed, hemispherical,
firm. , brown, 3.0 cms. in diameter. Nipples brown, protruding, 0.7 cms. in diameter.
No extragenital physical injuries noted.
GENITAL EXAMINATION:
Pubic hair, fully grown, moderate. Labia majora and minora, coaptated. Fourchette, tense. Vetibular
mucosa, pinkish. Hymen, tall, thick, intact. Hymenal orifice measures, 1.5 cms. in diameter. Vaginal walls,
tight. Rugosities, prominent.
CONCLUSIONS:
1). No evident sign of extragenital physical injuries noted on the body of the subject at the time of
examination.
2). Hymen, intact and its orifice small (1.5 cms. in diameter) as to preclude complete penetration by an
average-sized adult Filipino male organ in full erection without producing any genital injury."
9

Subsequently, Analia told her mother that "mabuti na lang iyong panghihipo lang ang sinabi ko." When
Rose inquired from her daughter what she meant by her statement, Analia revealed to her mother that
accused-appellant had sexually abused her. On December 15, 1998, Analia executed a "Dagdag na
Salaysay ng Paghahabla" and charged accused-appellant with rape.
10

III. The Defenses and Evidence of Accused-Appellant
Accused-appellant testified in his defense. He declared that after a month of courtship, he and Rose agreed in 1994
to live together as husband and wife. He was then a utility worker with the Navotas Branch of the Philippine
Banking Corporation. Rose, on the other hand, was a waitress at the Golden Bird beer house at Rizal Avenue,
Manila.
Accused-appellant denied having raped Analia. He claimed that he loved the children of Rose as if they were his
own children. He took care of them, as in fact he cooked and prepared their food before they arrived home from
school. At times, he ironed their school uniforms and bathed them, except Analia who was already big. Analia was
hard-headed because she disobeyed him whenever he ordered her to do some errands. Because of Analia's
misbehavior, accused-appellant and Rose oftentimes quarreled. Rose even demanded that accused-appellant leave
their house. Another irritant in his and Rose's lives were the frequent visits of the relatives of her husband.
Sometime in 1997, accused-appellant was retrenched from his employment and received a separation pay of
P9,000.00 which he used to put up the VHS Rental and Karaoke from which he earned a monthly income of
P25,000.00. While living together, accused-appellant and Rose acquired two colored television sets, two VHS Hi-fi
recorders, one VHS player, one washing machine, one scooter motor, two VHS rewinders, one sala set, one compact
disc player and many other properties.
Accused-appellant ventured that Rose coached her children Analia and Rossel to testify against him and used them
to fabricate charges against him because Rose wanted to manage their business and take control of all the properties
they acquired during their coverture. Also, Rose was so exasperated because he had no job.
IV. The Verdict
On May 29, 2000, the trial court rendered judgment against accused-appellant finding him guilty beyond reasonable
doubt of four (4) counts of rape, defined and penalized in the seventh paragraph, no. 1, Art. 335 of the Revised Penal
Code, and meted on him the death penalty for each count. The dispositive portion of the decision reads:
"From all the evidence submitted by the prosecution, the Court concludes that the accused is guilty beyond
reasonable doubt of the crime charged against him in these four (4) cases, convicts him thereof, and
sentences him to DEATH PENALTY in each and every case as provided for in the seventh paragraph, no.
1, Article 335 of the Revised Penal Code.
SO ORDERED."
11

V. Assigned Errors of the Trial Court
Accused-appellant assailed the decision of the court a quo and averred in his brief that:
"THE TRIAL COURT GRAVELY ERRED IN NOT MAKING A FINDING OF FACT IN ITS
DECISION AND SUCH FAILURE IS A REVERSIBLE ERROR."
12

xxx xxx xxx
"THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT OF FOUR (4)
COUNTS OF RAPE DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.
13

VI. Findings of the Court
On the first assignment of error, accused-appellant contends that the decision of the trial court is null and void as it
failed to comply with the requirements of Section 14, Article VIII of the 1987 Constitution and Section 1, Rule 36 of
the 1997 Rules of Civil Procedure, as amended. He avers that the court a quo made no findings of facts in its
decision. The trial court merely summarized the testimonies of the witnesses of the prosecution and those of
accused-appellant and his witnesses, and forthwith set forth the decretal portion of said decision. The trial court even
failed to state in said decision the factual and legal basis for the imposition of the supreme penalty of death on him.
The Solicitor General, on the other hand, argues that there should be no mechanical reliance on the constitutional
provision. Trial courts may well-nigh synthesize and simplify their decisions considering that courts are harassed by
crowded dockets and time constraints. Even if the trial court did not elucidate the grounds as the legal basis for the
penalties imposed, nevertheless the decision is valid. In any event, the Solicitor General contends that despite the
infirmity of the decision, there is no need to remand the case to the trial court for compliance with the constitutional
requirement as the Court may resolve the case on its merits to avoid delay in the final disposition of the case and
afford accused-appellant his right to a speedy trial.
The contention of accused-appellant is well-taken. Article VIII, paragraph 14 of the 1987 Constitution provides that
"no decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on
which it is based." This requirement is reiterated and implemented by Rule 120, Section 2 of the 1985 Rules on
Criminal Procedure, as amended, which reads:
"SEC. 2. Form and contents of judgment. The judgment must be written in the official language,
personally and directly prepared by the judge and signed by him and shall contain clearly and distinctly a
statement of the facts proved or admitted by the accused and the law upon which the judgment is based.
If it is of conviction, the judgment shall state (a) the legal qualification of the offense constituted by the acts
committed by the accused, and the aggravating or mitigating circumstances attending the commission
thereof, if there are any; (b) the participation of the accused in the commission of the offense, whether as
principal, accomplice, or accessory after the fact; (c) the penalty imposed upon the accused; and (d) the
civil liability or damages caused by the wrongful act to be recovered from the accused by the offended
party, if there is any, unless the enforcement of the civil liability by a separate action has been reserved or
waived."
14

The purpose of the provision is to inform the parties and the person reading the decision on how it was reached by
the court after consideration of the evidence of the parties and the relevant facts, of the opinion it has formed on the
issues, and of the applicable laws. The parties must be assured from a reading of the decision of the trial court that
they were accorded their rights to be heard by an impartial and responsible judge.
15
More substantial reasons for the
requirement are:
"For one thing, the losing party must be given an opportunity to analyze the decision so that, if permitted,
he may elevate what he may consider its errors for review by a higher tribunal. For another, the decision if
well-presented and reasoned, may convince the losing party of its merits and persuade it to accept the
verdict in good grace instead of prolonging the litigation with a useless appeal. A third reason is that
decisions with a full exposition of the facts and the law on which they are based, especially those coming
from the Supreme Court, will constitute a valuable body of case law that can serve as useful references and
even as precedents in the resolution of future controversies."
16

The trial court is mandated to set out in its decision the facts which had been proved and its conclusions culled
therefrom, as well as its resolution on the issues and the factual and legal basis for its resolution.
17
Trial courts
should not merely reproduce the respective testimonies of witnesses of both parties and come out with its decretal
conclusion.
In this case, the trial court failed to comply with the requirements under the Constitution and the Rules on Criminal
Procedure. It merely summarized the testimonies of the witnesses of the prosecution and of accused-appellant on
direct and cross examinations and merely made referral to the documentary evidence of the parties then concluded
that, on the basis of the evidence of the prosecution, accused-appellant is guilty of four (4) counts of rape and
sentenced him to death, on each count.
The trial court even failed to specifically state the facts proven by the prosecution based on their evidence, the issues
raised by the parties and its resolution of the factual and legal issues, as well as the legal and factual bases for
convicting accused-appellant of each of the crimes charged. The trial court rendered judgment against accused-
appellant with the court declaration in the decretal portion of its decision that it did so based on the evidence of the
prosecution. The trial court swallowed hook, line and sinker the evidence of the prosecution. It failed to explain in
its decision why it believed and gave probative weight to the evidence of the prosecution. Reading the decision of
the trial court, one is apt to conclude that the trial court ignored the evidence of accused-appellant. The trial court
did not even bother specifying the factual and legal bases for its imposition of the supreme penalty of death on
accused-appellant for each count of rape. The trial court merely cited seventh paragraph, no. 1, Article 335 of the
Revised Penal Code. The decision of the trial court is a good example of what a decision, envisaged in the
Constitution and the Revised Rules of Criminal Procedure, should not be.
The Court would normally remand the case to the trial court because of the infirmity of the decision of the trial
court, for compliance with the constitutional provision. However, to avert further delay in the disposition of the
cases, the Court decided to resolve the cases on their merits considering that all the records as well as the evidence
adduced during the trial had been elevated to the Court.
18
The parties filed their respective briefs articulating their
respective stances on the factual and legal issues.
In reviewing rape cases, this Court is guided by the following principles: (1) to accuse a man of rape is easy but to
disprove it is difficult though the accused may be innocent; (2) considering the nature of things, and only two
persons are usually involved in the crime of rape, the testimony of the complainant should be scrutinized with great
caution; (3) the evidence for the prosecution must stand or fall on its own merits and not be allowed to draw strength
from the weakness of the evidence of the defense.
19
By the very nature of the crime of rape, conviction or acquittal
depends almost entirely on the credibility of the complainant's testimony because of the fact that usually only the
participants can testify as to its occurrence. However, if the accused raises a sufficient doubt as to any material
element of the crime, and the prosecution is unable to overcome it with its evidence, the prosecution has failed to
discharge its burden of proving the guilt of the accused beyond cavil of doubt and hence, the accused is entitled to
an acquittal.
Anent the second assignment of error, we will resolve the same for convenience, as follows:
Re: CRIMINAL CASES NOS. 99-171392 and 99-171393 (covering the crime of rape committed on or
about October 22, 1998 and on or about September 15, 1998)
Accused-appellant avers that the prosecution failed to adduce the requisite quantum of evidence that he raped the
private complainant precisely on September 15, 1998 and October 22, 1998. Moreover, the medical findings of Dr.
Armie Umil show that the hymen of the private complainant was intact and its orifice so small as to preclude
complete penetration by an average size adult Filipino male organ in full erection without producing any genital
injury. The physical evidence belies private complainant's claim of having been deflowered by accused-appellant on
four different occasions. The Office of the Solicitor General, for its part, contends that the prosecution through the
private complainant proved the guilt of accused-appellant for the crime charged on both counts.
The contention of accused-appellant does not persuade the Court. The private complainant testified that since 1996,
when she was only eleven years old, until 1998, for two times a week, accused-appellant used to place himself on
top of her and despite her tenacious resistance, touched her arms, legs and sex organ and inserted his finger and
penis into her vagina. In the process, he ejaculated. Accused-appellant threatened to kill her if she divulged to
anyone what he did to her.
20
Although private complainant did not testify that she was raped on September 15, 1998
and October 22, 1998, nevertheless accused-appellant may be convicted for two counts of rape, in light of the
testimony of private complainant.
It bears stressing that under the two Informations, the rape incidents are alleged to have been committed "on or
about September 15, 1998" and "on or about October 22, 1998." The words "on or about" envisage a period, months
or even two or four years before September 15, 1998 or October 22, 1998. The prosecution may prove that the crime
charged was committed on or about September 15, 1998 and on or about October 22, 1998.
In People vs. Gianan,
21
this Court affirmed the conviction of accused-appellant of five (5) counts of rape, four of
which were committed in December 1992 (two counts) and one each in March and April, 1993 and in November,
1995 and one count of acts of lasciviousness committed in December 1992, on a criminal complaint for multiple
rape, viz:
"That sometime in November 1995, and some occasions prior and/or subsequent thereto, in the
Municipality of Dasmarias, Province of Cavite, and within the jurisdiction of this Honorable Court, the
above-named accused, with lewd designs, taking advantage of his superior strength over the person of his
own twelve (12) year old daughter, and by means of force, violence and intimidation, did, then and there,
willfully, unlawfully and feloniously, have repeated carnal knowledge of Myra M. Gianan, against her will
and consent, to her damage and prejudice."
22

On the contention of accused-appellant in said case that his conviction for rape in December 1992 was so remote
from the date (November 1995) alleged in the Information, so that the latter could no longer be considered as being
"as near to the actual date at which the offense was committed" as provided under Section 11, Rule 110 of the Rules
on Criminal Procedure, as amended, this Court held:
"Accused-appellant nevertheless argues that his conviction for rape in December 1992 is so remote from
the date (November 1995) alleged in the information, so that the latter could no longer be considered as
being "as near to the actual date at which the offense was committed" as provided under Rule 110, 11.
This contention is also untenable. In People v. Garcia, this Court upheld a conviction for ten counts of rape
based on an information which alleged that the accused committed multiple rape "from November 1990 up
to July 21, 1994," a time difference of almost four years which is longer than that involved in the case at
bar. In any case, as earlier stated, accused-appellant's failure to raise a timely objection based on this
ground constitutes a waiver of his right to object."
23

Moreover, when the private complainant testified on how accused-appellant defiled her two times a week from 1996
until 1998, accused-appellant raised nary a whimper of protest. Accused-appellant even rigorously cross-examined
the private complainant on her testimony on direct examination. The presentation by the prosecution, without
objection on the part of accused-appellant, of evidence of rape committed two times a week from 1996 until 1998
(which includes September 15, 1998 and October 22, 1998) to prove the charges lodged against him constituted a
waiver by accused-appellant of his right to object to any perceived infirmity in, and in the amendment of, the
aforesaid Informations to conform to the evidence adduced by the prosecution.
The barefaced fact that private complainant remained a virgin up to 1998 does not preclude her having been
repeatedly sexually abused by accused-appellant. The private complainant being of tender age, it is possible that the
penetration of the male organ went only as deep as her labia. Whether or not the hymen of private complainant was
still intact has no substantial bearing on accused-appellant's commission of the crime.
24
Even, the slightest
penetration of the labia by the male organ or the mere entry of the penis into the aperture constitutes consummated
rape. It is sufficient that there be entrance of the male organ within the labia of the pudendum.
25
InPeople vs. Baculi,
cited in People vs. Gabayron,
26
we held that there could be a finding of rape even if despite repeated intercourse over
a period of four years, the complainant still retained an intact hymen without injury. In these cases, the private
complainant testified that the penis of accused-appellant gained entry into her vagina:
"Fiscal Carisma
(continuing)
After your underwear was removed by the accused, what happened next?
Witness:
He laid himself on top of me, sir.
Q What did he do while he was on top of you?
A He inserted his finger (Finenger nya ako, ipinatong nya yong ano nya)
Q Can you please describe more specifically what is this and I quote "Pinatong nya yong ano nya" and
where did he place it?
A His organ, sir.
Q Where did he place his organ?
A In my organ, sir. (sa ari ko po.)
Q At this very juncture madam witness, what did you feel?
A I felt pain, sir, and I also felt that there was a sticky substance that was coming out,
sir."
27
(Emphasis supplied)
We agree with accused-appellant that he is guilty only of two counts of simple rape, instead of qualified rape. The
evidence on record shows that accused-appellant is the common-law husband of Rose, the mother of private
complainant. The private complainant, as of October 1998, was still 13 years old, and under Article 335 as amended
by Republic Act 7659, the minority of the private complainant, concurring with the fact that accused-appellant is the
common-law husband of the victim's mother, is a special qualifying circumstance warranting the imposition of the
death penalty.
28
However, said circumstance was not alleged in the Informations as required by Section 8, Rule 110
of the Revised Rules on Criminal Procedure which was given retroactive effect by this Court because it is favorable
to the accused.
29
Hence, even if the prosecution proved the special qualifying circumstance of minority of private
complainant and relationship, the accused-appellant being the common-law husband of her mother, accused-
appellant is guilty only of simple rape. Under the given law, the penalty for simple rape is reclusion perpetua.
Conformably with current jurisprudence, accused-appellant is liable to private complainant for civil indemnity in the
amount of P50,000.00 and moral damages in the amount of P50,000.00 for each count of rape, or a total of
P200,000.00.
Re: Criminal Cases Nos. 99-171390 and 99-171391 (covering the crime committed on or about August
1998 and November 5, 1998)
Accused-appellant avers that (a) the Information in Criminal Case No. 99-171390 is defective because the date of
the offense "on or about August 1998" alleged therein is too indefinite, in violation of Rule 110, Section 11 of the
Revised Rules on Criminal Procedure which reads:
"Sec. 11. Date of commission of the offense. It is not necessary to state in the complaint or information
the precise date the offense was committed except when it is a material ingredient of the offense. The
offense may be alleged to have been committed on a date as near as possible to the actual date of its
commission. (11a)"
30

Accused-appellant further asserts that the prosecution failed to prove that he raped private complainant in August
1998. Hence, he argues, he should be acquitted of said charge. The Office of the Solicitor General, for its part,
argued that the date "on or about August 1998" is sufficiently definite. After all, the date of the commission of the
crime of rape is not an essential element of the crime. The prosecution adduced conclusive proof that accused-
appellant raped private complainant on or about August 1998, as gleaned from her testimony during the trial.
The Court does not agree with accused-appellant. It bears stressing that the precise date of the commission
of the crime of rape is not an essential element of the crime. Failure to specify the exact date when the rape
was committed does not render the Information defective. The reason for this is that the gravamen of the
crime of rape is carnal knowledge of the private complainant under any of the circumstances enumerated
under Article 335 of the Revised Penal Code, as amended. Significantly, accused-appellant did not even
bother to file a motion for a bill of particulars under Rule 116, Section 9 of the Revised Rules on Criminal
Procedure before he was arraigned. Indeed, accused-appellant was duly arraigned under the Information
and entered a plea of not guilty to the charge without any plaint on the sufficiency of the Information.
Accused-appellant even adduced his evidence after the prosecution had rested its case. It was only on
appeal to this Court that accused-appellant questioned for the first time the sufficiency of the Information
filed against him. It is now too late in the day for him to do so. Moreover, in People vs. Salalima,
31
this
Court held that:
"Failure to specify the exact dates or time when the rapes occurred does not ipso facto make the
information defective on its face. The reason is obvious. The precise date or time when the victim was
raped is not an element of the offense. The gravamen of the crime is the fact of carnal knowledge under any
of the circumstances enumerated under Article 335 of the Revised Penal Code. As long as it is alleged that
the offense was committed at any time as near to the actual date when the offense was committed an
information is sufficient. In previous cases, we ruled that allegations that rapes were committed "before and
until October 15, 1994," "sometime in the year 1991 and the days thereafter," "sometime in November
1995 and some occasions prior and/or subsequent thereto" and "on or about and sometime in the year 1988"
constitute sufficient compliance with Section 11, Rule 110 of the Revised Rules on Criminal Procedure.
In this case, although the indictments did not state with particularity the dates when the sexual assaults took
place, we believe that the allegations therein that the acts were committed "sometime during the month of
March 1996 or thereabout," "sometime during the month of April 1996 or thereabout," "sometime during
the month of May 1996 or thereabout" substantially apprised appellant of the crimes he was charged with
since all the elements of rape were stated in the informations. As such, appellant cannot complain that he
was deprived of the right to be informed of the nature of the cases filed against him. Accordingly,
appellant's assertion that he was deprived of the opportunity to prepare for his defense has no leg to stand
on."
The prosecution proved through the testimony of private complainant that accused-appellant raped her two times a
week in 1998. As in Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant is guilty only of simple rape.
As to the crime of rape subject of Criminal Case No. 99-171391, accused-appellant avers that he is not criminally
liable of rape. We agree with accused-appellant. The collective testimony of private complainant and her younger
brother Rossel was that on November 5, 1998, accused-appellant who was wearing a pair of short pants but naked
from waist up, entered the bedroom of private complainant, went on top of her, held her hands, removed her panty,
mashed her breasts and touched her sex organ. However, accused-appellant saw Rossel peeping through the door
and dismounted. He berated Rossel for peeping and ordered him to go back to his room and to sleep. Accused-
appellant then left the room of the private complainant. The testimony of private complainant on direct examination
reads:
"Fiscal Carisma:
Q In between 1996 and August 1997?
A Yes, sir, sometimes two (2) times a week.
Q In November of 1998, do you recall of any unusual experience that happened to you again?
A Yes, sir.
Q What was this unusual experience of yours?
A He laid himself on top of me, sir.
Q You said "he" whom are you referring to?
A Freedie Lizada Jakosalem, sir.
Q The same person you pointed to earlier?
A Yes, sir.
Q You said he placed himself on top of you in November, 1998, what did he do while he was on top
of you?
A He's smashing my breast and he was also touching my arms and my legs, sir.
Q What else if any madam witness?
A He was also touching my sex organ, sir.
Q What else, if any?
Atty. Estorco:
May we take note of the same objection your honor, the prosecution
Court:
Same ruling. Let the complainant continue considering that she is crying and still young.
Witness:
None else, sir.
Fiscal Carisma:
With what part of his body did he touch your sex organ?
Atty. Estorco:
Your Honor, that is
Court:
May answer.
Fiscal Carisma:
I will re-propound the question, your honor.
You said that he touched your sex organ, will you tell the court with what part of his body, did he
touch your sex organ?
Witness:
With his hands, sir.
Q What about after November 1998 was this the last incident, this unusual thing that you
experienced from the hands of the accused was this that last time, the one you narrated in November 1998?
A Yes, sir."
32

On cross-examination, the private complainant testified, thus:
"Atty. Balaba:
Q Who was that somebody who entered the room?
A My stepfather Freedie Lizada, sir.
Q He was fully dressed at that time, during the time, is that correct?
A Yes, sir, he was dressed then, sir.
Q And he had his pants on, is that correct?
A He was wearing a short pants, sir.
Q Was it a T-shirt that he had, at that time or a polo shirt?
A He was not wearing any shirt then, sir, he was naked.
Q When you realized that somebody was entering the room were you not afraid?
A No, sir, I was not afraid.
Q What happened when you realized that somebody entered the room, and the one who entered was
your stepfather, Freedie Lizada?
A I did not mind him entering the room because I know that my brother was around but suddenly I felt
that somebody was holding me.
Q He was holding you, where were you when he held you?
A I was in the bed, sir, lying down.
Q You were lying down?
A Yes, sir.
Q What part of the body did the accused Freedie Lizada touched you?
A My two arms, my legs and my breast, sir.
Q Do you mean to tell us that he was holding your two arms and at the same time your legs, is that
what you are trying to tell us?
A He held me first in my arms and then my legs, sir.
Q He held you first by your arms, is that what you are trying to tell us?
Fiscal Carisma:
Already answered your honor, he held the arms and then the legs.
Court:
Already answered.
Atty. Balaba:
Q Your honor, I am just trying to
Court:
Proceed.
Atty. Balaba:
Q He held your arms with his two hands?
A Only with one hand, sir.
Q Which hand were you touched?
A I do not know which hand, sir.
Q Which arm of yours was held by Freedie Lizada?
A I could not recall, sir.
Q Which side of your body was Freedie Lizada at that time?
A I cannot recall, sir.
Q What was the position of Freedie Lizada when he held your arms?
A He was sitting on our bed, sir.
Q Which side of your bed was Freedie Lizada sitting on?
A I do not know, sir. I cannot recall.
Atty. Balaba:
Can we take a recess your honor?
Court:
How long will it take you to finish your cross?
Atty. Balaba:
We will confront the witness with so many things your honor.
Court:
Yes, that's why I am asking you how long will it take you to finish your cross?
Atty. Balaba:
About another hour, sir.
Court:
So we will be finished by 11:15, proceed.
Atty. Balaba:
You cannot also remember which leg was held by Freedie Lizada?
A I cannot recall, sir.
Q When this happened, did you not shout for help?
A I did not ask for help, I was motioning to resist him, so that he would go out, sir. I was struggling to
free myself from him, sir.
Q And you were not able to extricate yourself from him?
A I was not able to extricate myself, sir.
Q You were struggling with one arm of Lizada holding your arm, and the other hand was holding your
leg, is that what you are trying to tell us?
A No, sir, it's not like that.
Q Could you tell us, what happened, you did not shout for help and you were trying to extricate
yourself, what happened?
A He suddenly went out of the room, sir.
Q Now, he went
Court:
You did not shout during that time?
A No, your honor."
33

Rossel, the nine-year old brother of the private complainant corroborated in part his sister's testimony. He testified
on direct examination, thus:
"Fiscal Carisma: (continuing)
Q Now, on November 2, 1998 do you recall where you were at about 3:00 o'clock?
A I was outside our house, sir.
Q Where was your house again, Mr. witness, at that time? Where was your house at that date, time and
place? At that date and time?
A 1252 Jose Abad Santos, Tondo, Manila, sir.
Court:
Q The same address?
A. Yes, sir.
Fiscal Carisma:
Q On that date, time and place, do your recall where your sister Anna Lea Orillosa was?
A Yes, sir.
Q Where was she?
A She was sleeping, sir.
Q Now, on that date, time and place you said you were outside your house, did you stay the whole
afternoon outside your house?
A No, sir.
Q Where did you go next?
A Inside, sir.
Q For what purpose did you get inside your house?
A Because I was thirsty, sir.
Q So you went to the fridge to get some water?
A Yes, sir.
Q And what happened as you went inside your house to get some water?
A I saw my stepfather removing the panty of my sister and he touched her and then he laid on top of
her, sir.
Q Do you see your stepfather inside the courtroom now?
A Yes, sir.
Q Will you point to him?
A He is the one, sir.
Court Interpreter:
Witness pointing to a male person who when asked answers to the name Freedie Lizada.
Fiscal Carisma:
Q This thing that your father was that your stepfather did to your elder sister, did you see this
before or after you went to the fridge to get some water?
A I already got water then, sir.
Q What did you do as you saw this thing being done by your stepfather to your elder sister?
A I was just looking at them when he saw me, sir.
Q Who, you saw who? You are referring to the accused Freedie Lizada?
A Yes, sir.
Q So, what did you do as you were seen by your stepfather?
A He scolded me, he shouted at me, he told me something and after that he went to the other room and
slept, sir."
34

Rossel testified on cross-examination, thus:
"Q So you got thirsty, is that correct, and went inside the house?
A Yes, sir.
Q And you took a glass of water from the refrigerator?
A Yes, sir.
Q And it was at this time that you saw the accused Freedie Lizada touching your sister?
A Yes, sir.
Q Where was this refrigerator located?
A In front of the room where my sister sleeps, sir.
Q So the door of your sister's room was open?
A Yes, sir.
Q And okay, you said your sister was sleeping. What was the position of your sister when you said
the accused removed her panty?
A She was lying straight, but she was resisting, sir.
Q Were you noticed by your sister at that time?
A No, sir.
Q And your sister did not call for help at that time?
A No, sir.
Q And all this time you saw the accused doing this, from the refrigerator where you were taking a
glass of water?
A Yes, sir.
Q Did you not say something to the accused?
A No, sir, I was just looking.
Q So your sister was lying down when the accused removed her panty, is that what you are trying to
tell us?
A Yes, sir.
Q And where was the and the accused saw you when he was removing the panty of your sister?
A Not yet, sir, but after a while he looked at the refrigerator because he might be thirsty.
Q So you said the accused was touching your sister. What part of her body was touched by the
accused?
A Here, sir.
Court Interpreter:
Witness pointing at the lower portion of the body.
Atty. Balaba:
Q You saw with what hand was the accused touching your sister?
A Yes, sir.
Q What hand was he touching your sister?
A This hand, sir.
Court Interpreter:
Witness raising his right hand.
Atty. Balaba:
Q And which part of your sister's body was the accused touching with his right hand? Your sister's
body was the accused touching with his right hand?
A Her right leg, sir.
Q How about his left hand, what was the accused doing with his left hand?
A Removing her panty, sir.
Q Removing her?
A Panty, sir.
Q Which hand of your sister was being removed with the left hand of the accused?
Court:
Which?
Atty. Balaba:
Which hand, which hand?
Fiscal Carisma:
The question is vague, your honor.
Atty. Balaba:
Because he said that removing the hand
Fiscal Carisma:
He said removing the panty.
Atty. Balaba:
Is that panty? I'm sorry.
Q So, the accused was touching with his right hand the left thigh of your sister
Fiscal Carisma:
The right thigh.
Atty. Balaba:
Q Rather the right thigh of your sister and with his left hand removing the panty, is that what you are
telling to tell us?
A Yes, sir.
Q And your sister all the time was trying to was struggling to get free, is that not correct?
A Yes, sir, she was resisting. (witness demonstrating)
Q She was struggling was the accused able to remove the panty?
A Yes, sir.
Q And all the time you were there looking with the glass of water in your hand?
A Yes, sir."
35

In light of the evidence of the prosecution, there was no introduction of the penis of accused-appellant into the
aperture or within the pudendum of the vagina of private complainant. Hence, accused-appellant is not criminally
liable for consummated rape.
36

The issue that now comes to fore is whether or not accused-appellant is guilty of consummated acts of
lasciviousness defined in Article 336 of the Revised Penal Code or attempted rape under Article 335 of the said
Code, as amended in relation to the last paragraph of Article 6 of the Revised Penal Code. In light of the evidence on
record, we believe that accused-appellant is guilty of attempted rape and not of acts of lasciviousness.
Article 336 of the Revised Penal Code reads:
"Art. 336. Acts of Lasciviousness. Any person who shall commit any act of lasciviousness upon other
persons of either sex, under any of the circumstances mentioned in the preceding article, shall be punished
by prision correccional."
37

For an accused to be convicted of acts of lasciviousness, the prosecution is burdened to prove the confluence of the
following essential elements:
"1. That the offender commits any act of lasciviousness or lewdness.
2. That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise unconscious; or
c. When the offended party is under 12 years of age."
38

"Lewd" is defined as obscene, lustful, indecent, lecherous. It signifies that form of immorality which has relation to
moral impurity; or that which is carried on a wanton manner.
39

The last paragraph of Article 6 of the Revised Penal Code reads:
"There is an attempt when the offender commences the commission of a felony directly by overt acts, and
does not perform all the acts of execution which should produce the felony by reason of some cause or
accident other than his own spontaneous desistance."
The essential elements of an attempted felony are as follows:
"1. The offender commences the commission of the felony directly by overt acts;
2. He does not perform all the acts of execution which should produce the felony;
3. The offender's act be not stopped by his own spontaneous desistance;
4. The non-performance of all acts of execution was due to cause or accident other than his spontaneous
desistance."
40

The first requisite of an attempted felony consists of two elements, namely:
"(1) That there be external acts;
(2) Such external acts have direct connection with the crime intended to be committed."
41

An overt or external act is defined as some physical activity or deed, indicating the intention to commit a particular
crime, more than a mere planning or preparation, which if carried out to its complete termination following its
natural course, without being frustrated by external obstacles nor by the spontaneous desistance of the perpetrator,
will logically and necessarily ripen into a concrete offense.
42
The raison d'etre for the law requiring a direct overt act
is that, in a majority of cases, the conduct of the accused consisting merely of acts of preparation has never ceased to
be equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that
must be lacking before the act becomes one which may be said to be a commencement of the commission of the
crime, or an overt act or before any fragment of the crime itself has been committed, and this is so for the reason that
so long as the equivocal quality remains, no one can say with certainty what the intent of the accused is.
43
It is
necessary that the overt act should have been the ultimate step towards the consummation of the design. It is
sufficient if it was the "first or some subsequent step in a direct movement towards the commission of the offense
after the preparations are made."
44
The act done need not constitute the last proximate one for completion. It is
necessary, however, that the attempt must have a causal relation to the intended crime.
45
In the words of Viada, the
overt acts must have an immediate and necessary relation to the offense.
46

Acts constitutive of an attempt to commit a felony should be distinguished from preparatory acts which consist of
devising means or measures necessary for accomplishment of a desired object or end.
47
One perpetrating preparatory
acts is not guilty of an attempt to commit a felony. However, if the preparatory acts constitute a consummated felony
under the law, the malefactor is guilty of such consummated offense.
48
The Supreme Court of Spain, in its decision
of March 21, 1892, declared that for overt acts to constitute an attempted offense, it is necessary that their objective
be known and established or such that acts be of such nature that they themselves should obviously disclose the
criminal objective necessarily intended, said objective and finality to serve as ground for designation of the
offense.
49

There is persuasive authority that in offenses not consummated as the material damage is wanting, the nature of the
action intended (accion fin) cannot exactly be ascertained but the same must be inferred from the nature of the acts
executed (accion medio).
50
Hence, it is necessary that the acts of the accused must be such that, by their nature, by
the facts to which they are related, by circumstances of the persons performing the same, and b the things connected
therewith, that they are aimed at the consummation of the offense. This Court emphasized inPeople vs.
Lamahang
51
that:
"The relation existing between the facts submitted for appreciation and the offense which said facts are
supposed to produce must be direct; the intention must be ascertained from the facts and therefore it is
necessary, in order to avoid regrettable instances of injustice, that the mind be able to cause a particular
injury."
52

If the malefactor does not perform all the acts of execution by reason of his spontaneous desistance, he is not guilty
of an attempted felony.
53
The law does not punish him for his attempt to commit a felony.
54
The rationale of the law,
as explained by Viada:
"La Ley, en efecto, no hiere sino a pesar suyo; prefiere impedir el crimen que castigarlo. Si el autor de la tentativa,
despues de haber comenzado a ejecutar el delito por actos exteriores, se detiene, por un sentimiento libre y
espontaneo, en el borde del abismo, salvo esta. Es un llamamiento al remordimiento, a la conciencia, una gracia un
perdon que concede la Ley al arrepentimiento voluntario."
55

As aptly elaborated on by Wharton:
"First, the character of an attempt is lost when its execution is voluntarily abandoned. There is no
conceivable overt act to which the abandoned purpose could be attached. Secondly, the policy of the law
requires that the offender, so long as he is capable of arresting an evil plan, should be encouraged to do so,
by saving him harmless in case of such retreat before it is possible for any evil consequences to ensue.
Neither society, nor any private person, has been injured by his act. There is no damage, therefore, to
redress. To punish him after retreat and abandonment would be to destroy the motive for retreat and
abandonment."
56

It must be borne in mind, however, that the spontaneous desistance of a malefactor exempts him from criminal
liability for the intended crime but it does not exempt him from the crime committed by him before his desistance.
57

In light of the facts established by the prosecution, we believe that accused-appellant intended to have carnal
knowledge of private complainant. The overt acts of accused-appellant proven by the prosecution were not mere
preparatory acts. By the series of his overt acts, accused-appellant had commenced the execution of rape which, if
not for his spontaneous desistance, will ripen into the crime of rape. Although accused-appellant desisted from
performing all the acts of execution however his desistance was not spontaneous as he was impelled to do so only
because of the sudden and unexpected arrival of Rossel. Hence, accused-appellant is guilty only of attempted
rape.
58
In a case of similar factual backdrop as this case, we held:
"Applying the foregoing jurisprudence and taking into account Article 6 of the Revised Penal Code, the
appellant can only be convicted of attempted rape. He commenced the commission of rape by removing his
clothes, undressing and kissing his victim and lying on top of her. However, he failed to perform all the
acts of execution which should produce the crime of rape by reason of a cause other than his own
spontaneous desistance, i.e., by the timely arrival of the victim's brother. Thus, his penis merely touched
Mary Joy's private organ. Accordingly, as the crime committed by the appellant is attempted rape, the
penalty to be imposed on him should be an indeterminate prison term of six (6) years of prision
correccional as minimum to twelve (12) years of prision mayor as maximum."
The penalty for attempted rape is prision mayor which is two degrees lower than reclusion perpetua.
59
Accused-
appellant should be meted an indeterminate penalty the minimum of which should be taken from prision
correccional which has a range of from six months and one day to six years and the maximum of which shall be
taken from the medium period of prision mayor which has a range of from eight years and one day to ten years,
without any modifying circumstance. Accused-appellant is also liable to private complainant for moral damages in
the amount of P25,000.00.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Manila, Branch 54, is SET
ASIDE. Another judgment is hereby rendered as follows:
1. In Criminal Case No. 99-171390, accused-appellant is hereby found guilty beyond reasonable doubt of simple
rape under Article 335 of the Revised Penal Code as amended and is hereby meted the penalty of reclusion perpetua.
Accused-appellant is also hereby ordered to pay private complainant Analia Orillosa the amounts of P50,000.00 by
way of civil indemnity and P50,000.00 by way of moral damages;
2. In Criminal Case No. 99-171391, accused-appellant is hereby found guilty of attempted rape under Article 335 of
the Revised Penal Code as amended in relation to Article 6 of the said Code and is hereby meted an indeterminate
penalty of from six years of prision correccional in its maximum period, as minimum to ten years ofprision mayor in
its medium period, as maximum. Accused-appellant is hereby ordered to pay private complainant Analia Orillosa
the amount of P25,000.00 by way of moral damages; and,
3. In Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant is hereby found guilty beyond reasonable
doubt of two counts of simple rape, defined in Article 335 of the Revised Penal Code as amended and is hereby
meted the penalty of reclusion perpetua for each count. Accused-appellant is hereby ordered to pay to private
complainant Analia Orillosa the amount of P50,000.00 by way of civil indemnity and the amount of P50,000.00 by
way of moral damages for each count, or a total amount of P200,000.00.
SO ORDERED.
Davide, Jr., C .J ., Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Gutierrez, Carpio, Austria-
Martinez, Corona, Carpio-Morales, and Azcuna, JJ ., concur.
Bellosillo, J ., on leave.

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 138033 February 22, 2006
RENATO BALEROS, JR., Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
D E C I S I O N
GARCIA, J.:
In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks the reversal of the January
13, 1999 decision
1
of the Court of Appeals (CA) in CA-G.R. CR No. 17271 as reiterated in its March 31, 1999
resolution
2
denying petitioners motion for reconsideration.
The assailed decision affirmed an earlier decision of the Regional Trial Court (RTC) of Manila, Branch 2, in
Criminal Case No. 91-101642 finding petitioner Renato Baleros, Jr. y David (CHITO) guilty of attempted rape.
3

The accusatory portion of the information
4
dated December 17, 1991 charging petitioner with attempted rape reads
as follow:
That about 1:50 in the morning or sometime thereafter of 13 December 1991 in Manila and within the jurisdiction of
this Honorable Court, the above-named accused, by forcefully covering the face of Martina Lourdes T. Albano with
a piece of cloth soaked in chemical with dizzying effects, did then and there willfully, unlawfully and feloniously
commenced the commission of rape by lying on top of her with the intention to have carnal knowledge with her but
was unable to perform all the acts of execution by reason of some cause or accident other than his own spontaneous
desistance, said acts being committed against her will and consent to her damage and prejudice.
Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded "Not Guilty."
5
Thereafter, trial on
the merits ensued.
To prove its case, the prosecution presented thirteen (13) witnesses. Among them were private complainant Martina
Lourdes Albano (Malou), and her classmates, Joseph Bernard Africa, Rommel Montes, Renato Alagadan and
Christian Alcala. Their testimonies, as narrated in some detail in the decision of the CA, established the following
facts:
Like most of the tenants of the Celestial Marie Building (hereafter "Building", ) along A.H. Lacson Street,
Sampaloc, Manila, MALOU, occupying Room 307 with her maid, Marvilou Bebania (Marvilou), was a medical
student of the University of Sto. Tomas [UST] in 1991.
In the evening of December 12, inside Unit 307, MALOU retired at around 10:30. Outside, right in front of her
bedroom door, her maid, Marvilou, slept on a folding bed.
Early morning of the following day, MALOU was awakened by the smell of chemical on a piece of cloth pressed on
her face. She struggled but could not move. Somebody was pinning her down on the bed, holding her tightly. She
wanted to scream for help but the hands covering her mouth with cloth wet with chemicals were very tight (TSN,
July 5, 1993, p. 33). Still, MALOU continued fighting off her attacker by kicking him until at last her right hand got
free. With this the opportunity presented itself when she was able to grab hold of his sex organ which she then
squeezed.
The man let her go and MALOU went straight to the bedroom door and roused Marvilou. xxx. Over the intercom,
MALOU told S/G Ferolin that: "may pumasok sa kuarto ko pinagtangkaan ako" (Ibid., p. 8). Who it was she did not,
however, know. The only thing she had made out during their struggle was the feel of her attackers clothes and
weight. His upper garment was of cotton material while that at the lower portion felt smooth and satin-like (Ibid, p.
17). He was wearing a t-shirt and shorts Original Records, p. 355).
To Room 310 of the Building where her classmates Christian Alcala, Bernard Baptista, Lutgardo Acosta and
Rommel Montes were staying, MALOU then proceeded to seek help. xxx.
It was then when MALOU saw her bed topsy-turvy. Her nightdress was stained with blue (TSN, July 5, 1993,
pp. 13-14). Aside from the window with grills which she had originally left opened, another window inside her
bedroom was now open. Her attacker had fled from her room going through the left bedroom window (Ibid,
Answers to Question number 5; Id), the one without iron grills which leads to Room 306 of the Building (TSN, July
5, 1993, p.6).
xxx xxx xxx
Further, MALOU testified that her relation with CHITO, who was her classmate , was friendly until a week prior
to the attack. CHITO confided his feelings for her, telling her: "Gusto kita, mahal kita" (TSN, July 5, 1993, p. 22)
and she rejected him. . (TSN, July 5, 1993, p. 22).
Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the Building at 1:30 in the early
morning of December 13, 1991, wearing a white t-shirt with a marking on the front of the T-shirt T M and a
Greek letter (sic) and below the quoted letters the word 1946 UST Medicine and Surgery (TSN, October 9,
1992, p. 9) and black shorts with the brand name Adidas (TSN, October 16, 1992, p.7) and requested permission
to go up to Room 306. This Unit was being leased by Ansbert Co and at that time when CHITO was asking
permission to enter, only Joseph Bernard Africa was in the room.
He asked CHITO to produce the required written authorization and when CHITO could not, S/G Ferolin initially
refused [but later, relented] . S/G Ferolin made the following entry in the security guards logbook :
"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have (sic) a Request letter from our tenant of Unit
#-306 Ansbert, but still I let him inter (sic) for the reason that he will be our tenant this coming summer break as he
said so I let him sign it here
(Sgd.) Baleros Renato Jr."
(Exhibit "A-2")
That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was corroborated by Joseph Bernard Africa
(Joseph), .
xxx xxx xxx
Joseph was already inside Room 306 at 9 oclock in the evening of December 12, 1991. xxx by the time CHITOs
knocking on the door woke him up, . He was able to fix the time of CHITOs arrival at 1:30 A.M. because he
glanced at the alarm clock beside the bed when he was awakened by the knock at the door .
Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt (Ibid., p. 23) when he let the latter in.
. It was at around 3 oclock in the morning of December 13, 1991 when he woke up again later to the sound of
knocking at the door, this time, by Bernard Baptista (Bernard), .
xxx. With Bernard, Joseph then went to MALOUs room and thereat was shown by Bernard the open window
through which the intruder supposedly passed.
xxx xxx xxx
Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was finally able to talk to CHITO . He
mentioned to the latter that something had happened and that they were not being allowed to get out of the building.
Joseph also told CHITO to follow him to Room 310.
CHITO did just that. He followed after Joseph to Unit 310, carrying his gray bag. xxx. None was in Room 310 so
Joseph went to their yet another classmate, Renato Alagadan at Room 401 to see if the others were there. xxx.
People from the CIS came by before 8 oclock that same morning . They likewise invited CHITO and Joseph to
go with them to Camp Crame where the two (2) were questioned .
An occupant of Room 310 Christian Alcala (Christian) recalled in Court that in the afternoon of December 13,
1991, after their 3:30 class, he and his roommates, Bernard Baptista and Lutgardo Acosta (Gary) were called to the
Building and were asked by the CIS people to look for anything not belonging to them in their Unit. While they
were outside Room 310 talking with the authorities, Rommel Montes (Loyloy), another roommate of his, went
inside to search the Unit. Loyloy found (TSN, January 12, 1993, p. 6) a gray "Khumbella" bag cloth type (Ibid, pp.
44-45) from inside their unit which they did not know was there and surrender the same to the investigators. When
he saw the gray bag, Christian knew right away that it belonged to CHITO (Ibid, p. 55) as he had seen the latter
usually bringing it to school inside the classroom (Ibid, p. 45).
In their presence, the CIS opened the bag and pulled out its contents, among others, a white t-shirt with a Taunu (sic)
Sigma Phi sign (Ibid, p. 7), a Black Adidas short pants, a handkerchief , three (3) white T-shirts, an underwear, and
socks (Ibid).
Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit "D-5"), and the handkerchief
(Exhibit "D-3) to be CHITOs because CHITO had lent the very same one to him . The t-shirt with CHITOs
fraternity symbol, CHITO used to wear on weekends, and the handkerchief he saw CHITO used at least once in
December.
That CHITO left his bag inside Room 310 in the morning of December 13, 1991, was what consisted mainly of
Renato R. Alagadans testimony.
xxx xxx xxx.
The colored gray bag had a handle and a strap, was elongated to about 11/4 feet and appeared to be full but was
closed with a zipper when Renato saw it then (Ibid, pp. 19-20). At that time Christian, Gary, Bernard, and Renato
went back to Room 310 at around 3 to 4 oclock that afternoon along with some CIS agents, they saw the bag at the
same place inside the bedroom where Renato had seen CHITO leave it. Not until later that night at past 9 oclock in
Camp Crame, however, did Renato know what the contents of the bag were.
xxx xxx xxx.
The forensic Chemist, Leslie Chambers, of the Philippine National Police Crime Laboratory in Camp Crame, having
acted in response to the written request of PNP Superintendent Lucas M. Managuelod dated December 13, 1991,
(Exhibit "C"; Original Records, p. 109.) conducted laboratory examination on the specimen collated and
submitted. Her Chemistry Report No. C-487-91 (Exhibit "E"; Ibid., p. 112) reads in part, thus:
"SPECIMEN SUBMITTED:
xxx xxx xxx:
1) One (1) small white plastic bag marked UNIMART with the following:
xxx xxx xxx
Exh C One (1) night dress colored salmon pink.
2) One (1) small white pl astic bag marked JONAS with the following:
Exh. D One (1) printed handkerchief.
Exh. E One (1) white T-shirt marked TMZI.
Exh. F One (1) black short (sic) marked ADIDAS.
PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of volatime (sic), non-volatile and/or metallic poison on the above stated specimens.
FINDINGS:
Toxicological examination conducted on the above stated specimens gave the following results:
Exhs. C and D POSITIVE to the test for chloroform, a volatile poison.
Exhs. A, B, E and F are insufficient for further analysis.
CONCLUSION:
Exhs. C and D contain chloroform, a volatile poison."
6
(Words in bracket added)
For its part, the defense presented, as its main witness, the petitioner himself. He denied committing the crime
imputed to him or making at any time amorous advances on Malou. Unfolding a different version of the incident, the
defense sought to establish the following, as culled from the same decision of the appellate court:
In December of 1991, CHITO was a medical student of (UST). With Robert Chan and Alberto Leonardo, he was
likewise a member of the Tau Sigma Phi Fraternity . MALOU, , was known to him being also a medical
student at the UST at the time.
From Room 306 of the Celestial Marie Building , CHITO, wearing the prescribed barong tagalog over dark pants
and leather shoes, arrived at their Fraternity house located at Dos Castillas, Sampaloc, Manila at about 7 oclock
in the evening of December 12, 1991. He was included in the entourage of some fifty (50) fraternity members
scheduled for a Christmas gathering at the house of their senior fraternity brother, Dr. Jose Duran, at No. 3 John
Street, North Greenhills, San Juan. xxx.
The party was conducted at the garden beside [the] swimming pool . Soon after, the four (4) presidential
nominees of the Fraternity, CHITO included, were being dunked one by one into the pool. xxx.
xxx CHITO had anticipated his turn and was thus wearing his t-shirt and long pants when he was dunked. Perla
Duran, , offered each dry clothes to change into and CHITO put on the white t-shirt with the Fraternitys
symbol and a pair of black shorts with stripes. xxx .
Again riding on Albertos car and wearing "barong tagalog over a white t-shirt with the symbol TAU Sigma Phi,
black short pants with stripe, socks and shoes" (TSN, April 25, 1994, p. 15), CHITO left the party with Robert Chan
and Alberto at more or less past 1 A.M. of December 13, 1991 and proceeded to the Building which they reached at
about 1:30 A.M. (Ibid., p. 19). He had left his gray traveling bag containing "white t-shirt, sando, underwear, socks,
and toothbrush (Ibid., pp. 17-18) at room 306 in the afternoon of the previous day .
At the gate of the Building, CHITO knocked and , S/G Ferolin, looking at his watch, approached. Because of this,
CHITO also looked at his own watch and saw that the time was 1:30 (Ibid., p. 26). S/G Ferolin initially refused
CHITO entry . xxx.
S/G Ferolin called Unit 306 . xxx. When S/G Ferolin finally let him in, already about ten (10) minutes had lapsed
since CHITO first arrived (Ibid., p. 25).
CHITO went up the floor, found the key left for him by Joseph behind the opened jalousie window and for five (5)
minutes vainly tried to open the door until Rommel Montes, approached him and even commented: "Okey ang
suot mo ha, di mo mabuksan ang pinto (Ibid., pp. 26-29). Rommel tried to open the door of Unit 306 but was
likewise unsuccessful. CHITO then decided to just call out to Joseph while knocking at the door.
It took another (5) minutes of calling out and knocking before Joseph, , at last answered the door. Telling him,
"Ikaw na ang bahala diyan" Joseph immediately turned his back on CHITO and went inside the bedroom. CHITO ,
changed to a thinner shirt and went to bed. He still had on the same short pants given by Perla Duran from the
fraternity party (TSN, June 16, 1994, p. 20).
At 6 oclock in the morning of December 13, 1991, CHITO woke up . He was already in his school uniform
when, around 6:30 A.M, Joseph came to the room not yet dressed up. He asked the latter why this was so and,
without elaborating on it, Joseph told him that something had happened and to just go to Room 310 which CHITO
did.
At Room 310, CHITO was told by Rommel Montes that somebody, whom MALOU was not able to identify, went
to the room of MALOU and tried to rape her (TSN, April 25, 1994, p. 36). xxx.
Joseph told him that the security guard was not letting anybody out of the Building . When two (2) CIS men came
to the unit asking for Renato Baleros, CHITO presented himself. Congressman Rodolfo B. Albano, father of
MALOU, then asked him for the key to Room 306.
xxx xxx xxx
The CIS men looked inside the bedroom and on the windows. Joseph was told to dress up and the two (2) of them,
CHITO and Joseph, were brought to Camp Crame.
When they arrived at Camp Crame , Col. Managuelod asked Joseph inside his room and talked to him for 30
minutes. xxx. No one interviewed CHITO to ask his side.
xxx xxx xxx
Both CHITO and Joseph were taken to Prosecutor Abesamis who later instructed them to undergo physical
examination at the Camp Crame Hospital .. At the hospital, CHITO and Joseph were physically examined by a
certain Dr. de Guzman who told them to strip .
xxx xxx xxx
CHITO had left his gray bag containing, among others, the black striped short pants lent to him by Perla Duran
(Exhibit "8-A", Original Records, p. 345), inside Room 310 at more/less 6:30 to 7 oclock in the morning of
December 13, 1991. The next time that he saw it was between 8 to 9 P.M. when he and Joseph were brought before
Fiscal Abesamis for inquest. One of the CIS agents had taken it there and it was not opened up in his presence but
the contents of the bag were already laid out on the table of Fiscal Abesamis who, however, made no effort to ask
CHITO if the items thereat were his.
The black Adidas short pants purportedly found in the bag, CHITO denied putting in his gray bag which he had left
at Room 306 in the early evening of December 12, 1991 before going to the fraternity house. He likewise disavowed
placing said black Adidas short pants in his gray bag when he returned to the apartment at past 1:00 oclock in the
early morning of December 13, 1991 (TSN, June 16, 1994, p. 24), nor when he dressed up at about 6 oclock in the
morning to go to school and brought his gray bag to Room 310 (Ibid. 25). In fact, at any time on December 13,
1991, he was not aware that his gray bag ever contained any black short Adidas pants (Ibid). He only found out for
the first time that the black Adidas short pants was alluded to be among the items inside his gray bag late in the
afternoon, when he was in Camp Crame.
Also taking the witness stand for the defense were petitioners fraternity brothers, Alberto Leonardo and Robert
Chan, who both testified being with CHITO in the December 12, 1991 party held in Dr. Durans place at Greenhills,
riding on the same car going to and coming from the party and dropping the petitioner off the Celestial Marie
building after the party. Both were one in saying that CHITO was wearing a barong tagalog, with t-shirt inside, with
short pants and leather shoes at the time they parted after the party.
7
Rommel Montes, a tenant of Room 310 of the
said building, also testified seeing CHITO between the hours of 1:30 and 2:00 A.M. of December 13, 1991 trying to
open the door of Room 306 while clad in dark short pants and white barong tagalog.
On the other hand, Perla Duran confirmed lending the petitioner the pair of short pants with stripes after the dunking
party held in her fathers house.
8
Presented as defense expert witness was Carmelita Vargas, a forensic chemistry
instructor whose actual demonstration in open court showed that chloroform, being volatile, evaporates in thirty (30)
seconds without tearing nor staining the cloth on which it is applied.
9

On December 14, 1994, the trial court rendered its decision
10
convicting petitioner of attempted rape and
accordingly sentencing him, thus:
WHEREFORE, under cool reflection and prescinding from the foregoing, the Court finds the accused Renato D.
Baleros, Jr., alias "Chito", guilty beyond reasonable doubt of the crime of attempted rape as principal and as charged
in the information and hereby sentences him to suffer an imprisonment ranging from FOUR (4) YEARS, TWO (2)
MONTHS AND ONE (1) DAY of Prision Correctional, as Minimum to TEN (10) YEARS of Prision Mayor as
Maximum, with all the accessory penalties provided by law, and for the accused to pay the offended party Martina
Lourdes T. Albano, the sum of P50,000.00 by way of Moral and exemplary damages, plus reasonable Attorneys
fees of P30,000.00, without subsidiary imprisonment in case of insolvency, and to pay the costs.
SO ORDERED.
Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed as CA-G.R. CR No. 17271.
As stated at the threshold hereof, the CA, in its assailed Decision dated January 13, 1999, affirmed the trial courts
judgment of conviction, to wit:
WHEREFORE, finding no basis in fact and in law to deviate from the findings of the court a quo, the decision
appealed from is hereby AFFIRMED in toto. Costs against appellant.
SO ORDERED.
11

Petitioner moved for reconsideration, but his motion was denied by the CA in its equally assailed resolution of
March 31, 1999.
12

Petitioner is now with this Court, on the contention that the CA erred -
1. In not finding that it is improbable for petitioner to have committed the attempted rape imputed to him,
absent sufficient, competent and convincing evidence to prove the offense charged.
2. In convicting petitioner of attempted rape on the basis merely of circumstantial evidence since the
prosecution failed to satisfy all the requisites for conviction based thereon.
3. In not finding that the circumstances it relied on to convict the petitioner are unreliable, inconclusive and
contradictory.
4. In not finding that proof of motive is miserably wanting in his case.
5. In awarding damages in favor of the complainant despite the fact that the award was improper and
unjustified absent any evidence to prove the same.
6. In failing to appreciate in his favor the constitutional presumption of innocence and that moral certainty
has not been met, hence, he should be acquitted on the ground that the offense charged against him has not
been proved beyond reasonable doubt.
Otherwise stated, the basic issue in this case turns on the question on whether or not the CA erred in affirming the
ruling of the RTC finding petitioner guilty beyond reasonable doubt of the crime of attempted rape.
After a careful review of the facts and evidence on record in the light of applicable jurisprudence, the Court is
disposed to rule for petitioners acquittal, but not necessarily because there is no direct evidence pointing to him as
the intruder holding a chemical-soaked cloth who pinned Malou down on the bed in the early morning of December
13, 1991.
Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness to the
very act of commission of the crime. There are two types of positive identification. A witness may identify a suspect
or accused as the offender as an eyewitness to the very act of the commission of the crime. This constitutes direct
evidence. There may, however, be instances where, although a witness may not have actually witnessed the very act
of commission of a crime, he may still be able to positively identify a suspect or accused as the perpetrator of a
crime as when, for instance, the latter is the person or one of the persons last seen with the victim immediately
before and right after the commission of the crime. This is the second type of positive identification, which forms
part of circumstantial evidence.
13
In the absence of direct evidence, the prosecution may resort to adducing
circumstantial evidence to discharge its burden. Crimes are usually committed in secret and under condition where
concealment is highly probable. If direct evidence is insisted under all circumstances, the prosecution of vicious
felons who committed heinous crimes in secret or secluded places will be hard, if not well-nigh impossible, to
prove.
14

Section 4 of Rule 133 of the Rules of Court provides the conditions when circumstantial evidence may be sufficient
for conviction. The provision reads:
Sec. 4. Circumstantial evidence, when sufficient Circumstantial evidence is sufficient for conviction if
a) There is more than one circumstance;
b) The facts from which the inferences are derived are proven; and
c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.
In the present case, the positive identification of the petitioner forms part of circumstantial evidence, which, when
taken together with the other pieces of evidence constituting an unbroken chain, leads to only fair and reasonable
conclusion, which is that petitioner was the intruder in question.
We quote with approval the CAs finding of the circumstantial evidence that led to the identity of the petitioner as
such intruder:
Chito was in the Building when the attack on MALOU took place. He had access to the room of MALOU as Room
307 where he slept the night over had a window which allowed ingress and egress to Room 306 where MALOU
stayed. Not only the Building security guard, S/G Ferolin, but Joseph Bernard Africa as well confirmed that CHITO
was wearing a black "Adidas" shorts and fraternity T-shirt when he arrived at the Building/Unit 307 at 1:30 in the
morning of December 13, 1991. Though it was dark during their struggle, MALOU had made out the feel of her
intruders apparel to be something made of cotton material on top and shorts that felt satin-smooth on the bottom.
From CHITOs bag which was found inside Room 310 at the very spot where witness Renato Alagadan saw CHITO
leave it, were discovered the most incriminating evidence: the handkerchief stained with blue and wet with some
kind of chemicals; a black "Adidas" satin short pants; and a white fraternity T-shirt, also stained with blue. A
different witness, this time, Christian Alcala, identified these garments as belonging to CHITO. As it turned out,
laboratory examination on these items and on the beddings and clothes worn by MALOU during the incident
revealed that the handkerchief and MALOUs night dress both contained chloroform, a volatile poison which causes
first degree burn exactly like what MALOU sustained on that part of her face where the chemical-soaked cloth had
been pressed.
This brings the Court to the issue on whether the evidence adduced by the prosecution has established beyond
reasonable doubt the guilt of the petitioner for the crime of attempted rape.
The Solicitor General maintained that petitioner, by pressing on Malous face the piece of cloth soaked in chemical
while holding her body tightly under the weight of his own, had commenced the performance of an act indicative of
an intent or attempt to rape the victim. It is argued that petitioners actuation thus described is an overt act
contemplated under the law, for there can not be any other logical conclusion other than that the petitioner intended
to ravish Malou after he attempted to put her to an induced sleep. The Solicitor General, echoing what the CA said,
adds that if petitioners intention was otherwise, he would not have lain on top of the victim.
15

Under Article 335 of the Revised Penal Code, rape is committed by a man who has carnal knowledge or intercourse
with a woman under any of the following circumstances: (1) By using force or intimidation; (2) When the woman is
deprived of reason or otherwise unconscious; and (3) When the woman is under twelve years of age or is demented.
Under Article 6, in relation to the aforementioned article of the same code, rape is attempted when the offender
commences the commission of rape directly by overt acts and does not perform all the acts of execution which
should produce the crime of rape by reason of some cause or accident other than his own spontaneous desistance.
16

Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro M. Recto in People vs.
Lamahang,
17
stated that "the attempt which the Penal Code punishes is that which has a logical connection to a
particular, concrete offense; that which is the beginning of the execution of the offense by overt acts of the
perpetrator, leading directly to its realization and consummation." Absent the unavoidable connection, like the
logical and natural relation of the cause and its effect, as where the purpose of the offender in performing an act is
not certain, meaning the nature of the act in relation to its objective is ambiguous, then what obtains is an attempt to
commit an indeterminate offense, which is not a juridical fact from the standpoint of the Penal Code.
18

There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the present case. The
next question that thus comes to the fore is whether or not the act of the petitioner, i.e., the pressing of a chemical-
soaked cloth while on top of Malou, constitutes an overt act of rape.1avvphil.net
Overt or external act has been defined as some physical activity or deed, indicating the intention to commit a
particular crime, more than a mere planning or preparation, which if carried out to its complete termination
following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the
perpetrator, will logically and necessarily ripen into a concrete offense.
19

Harmonizing the above definition to the facts of this case, it would be too strained to construe petitioner's act of
pressing a chemical-soaked cloth in the mouth of Malou which would induce her to sleep as an overt act that will
logically and necessarily ripen into rape. As it were, petitioner did not commence at all the performance of any act
indicative of an intent or attempt to rape Malou. It cannot be overemphasized that petitioner was fully clothed and
that there was no attempt on his part to undress Malou, let alone touch her private part. For what reason petitioner
wanted the complainant unconscious, if that was really his immediate intention, is anybodys guess. The CA
maintained that if the petitioner had no intention to rape, he would not have lain on top of the complainant. Plodding
on, the appellate court even anticipated the next step that the petitioner would have taken if the victim had been
rendered unconscious. Wrote the CA:
The shedding of the clothes, both of the attacker and his victim, will have to come later. His sexual organ is not yet
exposed because his intended victim is still struggling. Where the intended victim is an educated woman already
mature in age, it is very unlikely that a rapist would be in his naked glory before even starting his attack on her. He
has to make her lose her guard first, or as in this case, her unconsciousness.
20

At bottom then, the appellate court indulges in plain speculation, a practice disfavored under the rule on evidence in
criminal cases. For, mere speculations and probabilities cannot substitute for proof required to establish the guilt of
an accused beyond reasonable doubt.
21

In Perez vs. Court of Appeals,
22
the Court acquitted therein petitioner of the crime of attempted rape, pointing out
that:
xxx. In the crime of rape, penetration is an essential act of execution to produce the felony. Thus, for there to be an
attempted rape, the accused must have commenced the act of penetrating his sexual organ to the vagina of the victim
but for some cause or accident other than his own spontaneous desistance, the penetration, however, slight, is not
completed.
xxx xxx xxx
Petitioners act of lying on top of the complainant, embracing and kissing her, mashing her breasts, inserting his
hand inside her panty and touching her sexual organ, while admittedly obscene and detestable acts, do not constitute
attempted rape absent any showing that petitioner actually commenced to force his penis into the complainants
sexual organ. xxx.
Likewise in People vs. Pancho,
23
the Court held:
xxx, appellant was merely holding complainants feet when his Tito Onio arrived at the alleged locus criminis. Thus,
it would be stretching to the extreme our credulity if we were to conclude that mere holding of the feet is attempted
rape.
Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the premises, of any wrongdoing
whatsoever. The information filed against petitioner contained an allegation that he forcefully covered the face of
Malou with a piece of cloth soaked in chemical. And during the trial, Malou testified about the pressing against her
face of the chemical-soaked cloth and having struggled after petitioner held her tightly and pinned her down. Verily,
while the series of acts committed by the petitioner do not determine attempted rape, as earlier discussed, they
constitute unjust vexation punishable as light coercion under the second paragraph of Article 287 of the Revised
Penal Code. In the context of the constitutional provision assuring an accused of a crime the right to be informed of
the nature and cause of the accusation,
24
it cannot be said that petitioner was kept in the dark of the inculpatory acts
for which he was proceeded against. To be sure, the information against petitioner contains sufficient details to
enable him to make his defense. As aptly observed by then Justice Ramon C. Aquino, there is no need to allege
malice, restraint or compulsion in an information for unjust vexation. As it were, unjust vexation exists even without
the element of restraint or compulsion for the reason that this term is broad enough to include any human conduct
which, although not productive of some physical or material harm, would unjustly annoy or irritate an innocent
person.
25
The paramount question is whether the offenders act causes annoyance, irritation, torment, distress or
disturbance to the mind of the person to whom it is directed.
26
That Malou, after the incident in question, cried while
relating to her classmates what she perceived to be a sexual attack and the fact that she filed a case for attempted
rape proved beyond cavil that she was disturbed, if not distressed by the acts of petitioner.
The penalty for coercion falling under the second paragraph of Article 287 of the Revised Penal Code is arresto
menor or a fine ranging from P5.00 to P200.00 or both.
WHEREFORE, the assailed Decision of the Court of Appeals affirming that of the Regional Trial Court of Manila,
is hereby REVERSED and SET ASIDE and a new one entered ACQUITTING petitioner Renato D. Baleros, Jr. of
the charge for attempted rape. Petitioner, however, is adjudged GUILTY of light coercion and is accordingly
sentenced to 30 days of arresto menor and to pay a fine of P200.00, with the accessory penalties thereof and to pay
the costs.
SO ORDERED.
CANCIO C. GARCIA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Associate Justice
Chairperson
( On Leave )
ANGELINA SANDOVAL-GUTIERREZ
*

Associate Justice
RENATO C. CORONA
Asscociate Justice
ADOLFO S. AZCUNA
Associate Justice
A T T E S T A T I O N
I attest that the conclusions in the above decision were reached in consultation before the case was assigned to the
writer of the opinion of the Courts Division.
REYNATO S .PUNO
Associate Justice
Chairperson, Second Division
C E R T I F I C A T I O N
Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairman's Attestation, it is hereby
certified that the conclusions in the above decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court.
ARTEMIO V. PANGANIBAN
Chief Justice
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G. R. No. 160188 June 21, 2007
ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS NACHURA, respondents.
D E C I S I O N
TINGA, J.:
This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner effectively concedes
having performed the felonious acts imputed against him, but instead insists that as a result, he should be adjudged
guilty of frustrated theft only, not the felony in its consummated stage of which he was convicted. The proposition
rests on a common theory expounded in two well-known decisions
1
rendered decades ago by the Court of Appeals,
upholding the existence of frustrated theft of which the accused in both cases were found guilty. However, the
rationale behind the rulings has never been affirmed by this Court.
As far as can be told,
2
the last time this Court extensively considered whether an accused was guilty of frustrated or
consummated theft was in 1918, in People v. Adiao.
3
A more cursory
treatment of the question was followed in 1929, in People v. Sobrevilla,
4
and in 1984, in Empelis v. IAC.
5
This
petition now gives occasion for us to finally and fully measure if or how frustrated theft is susceptible to commission
under the Revised Penal Code.
I.
The basic facts are no longer disputed before us. The case stems from an Information
6
charging petitioner Aristotel
Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m.,
petitioner and Calderon were sighted outside the Super Sale Club, a supermarket within the ShoeMart (SM) complex
along North EDSA, by Lorenzo Lago (Lago), a security guard who was then manning his post at the open parking
area of the supermarket. Lago saw petitioner, who was wearing an identification card with the mark "Receiving
Dispatching Unit (RDU)," hauling a push cart with cases of detergent of the well-known "Tide" brand. Petitioner
unloaded these cases in an open parking space, where Calderon was waiting. Petitioner then returned inside the
supermarket, and after five (5) minutes, emerged with more cartons of Tide Ultramatic and again unloaded these
boxes to the same area in the open parking space.
7

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it towards the parking
space where Calderon was waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi, then boarded the
vehicle. All these acts were eyed by Lago, who proceeded to stop the taxi as it was leaving the open parking area.
When Lago asked petitioner for a receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot, but
Lago fired a warning shot to alert his fellow security guards of the incident. Petitioner and Calderon were
apprehended at the scene, and the stolen merchandise recovered.
8
The filched items seized from the duo were four
(4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional cases of detergent, the goods
with an aggregate value of P12,090.00.
9

Petitioner and Calderon were first brought to the SM security office before they were transferred on the same day to
the Baler Station II of the Philippine National Police, Quezon City, for investigation. It appears from the police
investigation records that apart from petitioner and Calderon, four (4) other persons were apprehended by the
security guards at the scene and delivered to police custody at the Baler PNP Station in connection with the incident.
However, after the matter was referred to the Office of the Quezon City Prosecutor, only petitioner and Calderon
were charged with theft by the Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day after
the incident.
10

After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having been innocent
bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May 1994 when they were haled by
Lago and his fellow security guards after a commotion and brought to the Baler PNP Station. Calderon alleged that
on the afternoon of the incident, he was at the Super Sale Club to withdraw from his ATM account, accompanied by
his neighbor, Leoncio Rosulada.
11
As the queue for the ATM was long, Calderon and Rosulada decided to buy
snacks inside the supermarket. It was while they were eating that they heard the gunshot fired by Lago, leading them
to head out of the building to check what was
transpiring. As they were outside, they were suddenly "grabbed" by a security guard, thus commencing their
detention.
12
Meanwhile, petitioner testified during trial that he and his cousin, a Gregorio Valenzuela,
13
had been at
the parking lot, walking beside the nearby BLISS complex and headed to ride a tricycle going to Pag-asa, when they
saw the security guard Lago fire a shot. The gunshot caused him and the other people at the scene to start running, at
which point he was apprehended by Lago and brought to the security office. Petitioner claimed he was detained at
the security office until around 9:00 p.m., at which time he and the others were brought to the Baler Police Station.
At the station, petitioner denied having stolen the cartons of detergent, but he was detained overnight, and eventually
brought to the prosecutors office where he was charged with theft.
14
During petitioners cross-examination, he
admitted that he had been employed as a "bundler" of GMS Marketing, "assigned at the supermarket" though not at
SM.
15

In a Decision
16
promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City, Branch 90,
convicted both petitioner and Calderon of the crime of consummated theft. They were sentenced to an indeterminate
prison term of two (2) years of prision correccional as minimum to seven (7) years of prision mayor as
maximum.
17
The RTC found credible the testimonies of the prosecution witnesses and established the convictions
on the positive identification of the accused as perpetrators of the crime.
Both accused filed their respective Notices of Appeal,
18
but only petitioner filed a brief
19
with the Court of Appeals,
causing the appellate court to deem Calderons appeal as abandoned and consequently dismissed. Before the Court
of Appeals, petitioner argued that he should only be convicted of frustrated theft since at the time he was
apprehended, he was never placed in a position to freely dispose of the articles stolen.
20
However, in its Decision
dated 19 June 2003,
21
the Court of Appeals rejected this contention and affirmed petitioners conviction.
22
Hence the
present Petition for Review,
23
which expressly seeks that petitioners conviction "be modified to only of Frustrated
Theft."
24

Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious intent and his
actual participation in the theft of several cases of detergent with a total value of P12,090.00 of which he was
charged.
25
As such, there is no cause for the Court to consider a factual scenario other than that presented by the
prosecution, as affirmed by the RTC and the Court of Appeals. The only question to consider is whether under the
given facts, the theft should be deemed as consummated or merely frustrated.
II.
In arguing that he should only be convicted of frustrated theft, petitioner cites
26
two decisions rendered many years
ago by the Court of Appeals: People v. Dio
27
and People v. Flores.
28
Both decisions elicit the interest of this Court,
as they modified trial court convictions from consummated to frustrated theft and involve a factual milieu that bears
similarity to the present case. Petitioner invoked the same rulings in his appeal to the Court of Appeals, yet the
appellate court did not expressly consider the import of the rulings when it affirmed the conviction.
It is not necessary to fault the Court of Appeals for giving short shrift to the Dio and Flores rulings since they have
not yet been expressly adopted as precedents by this Court. For whatever reasons,
the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet despite the silence
on our part, Dio and Flores have attained a level of renown reached by very few other appellate court rulings. They
are comprehensively discussed in the most popular of our criminal law annotations,
29
and studied in criminal law
classes as textbook examples of frustrated crimes or even as definitive of frustrated theft.
More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that populate criminal law
exams more than they actually occur in real life. Indeed, if we finally say that Dio and Flores are doctrinal, such
conclusion could profoundly influence a multitude of routine theft prosecutions, including commonplace shoplifting.
Any scenario that involves the thief having to exit with the stolen property through a supervised egress, such as a
supermarket checkout counter or a parking area pay booth, may easily call for the application of Dio and Flores.
The fact that lower courts have not hesitated to lay down convictions for frustrated theft further validates that Dio
and Flores and the theories offered therein on frustrated theft have borne some weight in our jurisprudential system.
The time is thus ripe for us to examine whether those theories are correct and should continue to influence
prosecutors and judges in the future.
III.
To delve into any extended analysis of Dio and Flores, as well as the specific issues relative to "frustrated theft," it
is necessary to first refer to the basic rules on the three stages of crimes under our Revised Penal Code.
30

Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A felony is
consummated "when all the elements necessary for its execution and accomplishment are present." It is frustrated
"when the offender performs all the acts of execution which would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes independent of the will of the perpetrator." Finally, it is
attempted "when the offender commences the commission of a felony directly by overt acts, and does not perform
all the acts of execution which should produce the felony by reason of some cause or accident other than his own
spontaneous desistance."
Each felony under the Revised Penal Code has a "subjective phase," or that portion of the acts constituting the crime
included between the act which begins the commission of the crime and the last act performed by the offender
which, with prior acts, should result in the consummated crime.
31
After that point has been breached, the subjective
phase ends and the objective phase begins.
32
It has been held that if the offender never passes the subjective phase of
the offense, the crime is merely attempted.
33
On the other hand, the subjective phase is completely passed in case of
frustrated crimes, for in such instances, "[s]ubjectively the crime is complete."
34

Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and attempted felonies on
the other. So long as the offender fails to complete all the acts of execution despite commencing the commission of a
felony, the crime is undoubtedly in the attempted stage. Since the specific acts of execution that define each crime
under the Revised Penal Code are generally enumerated in the code itself, the task of ascertaining whether a crime is
attempted only would need to compare the acts actually performed by the accused as against the acts that constitute
the felony under the Revised Penal Code.
In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial concession that
all of the acts of execution have been performed by the offender. The critical distinction instead is whether the
felony itself was actually produced by the acts of execution. The determination of whether the felony was
"produced" after all the acts of execution had been performed hinges on the particular statutory definition of the
felony. It is the statutory definition that generally furnishes the elements of each crime under the Revised Penal
Code, while the elements in turn unravel the particular requisite acts of execution and accompanying criminal intent.
The long-standing Latin maxim "actus non facit reum, nisi mens sit rea" supplies an important characteristic of a
crime, that "ordinarily, evil intent must unite with an unlawful act for there to be a crime," and accordingly, there
can be no crime when the criminal mind is wanting.
35
Accepted in this jurisdiction as material in crimes mala in
se,
36
mens rea has been defined before as "a guilty mind, a guilty or wrongful purpose or criminal intent,"
37
and
"essential for criminal liability."
38
It follows that the statutory definition of our mala in se crimes must be able to
supply what the mens rea of the crime is, and indeed the U.S. Supreme Court has comfortably held that "a criminal
law that contains no mens rea requirement infringes on constitutionally protected rights."
39
The criminal statute must
also provide for the overt acts that constitute the crime. For a crime to exist in our legal law, it is not enough that
mens rea be shown; there must also be an actus reus.
40

It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the felony is produced.
As a postulate in the craftsmanship of constitutionally sound laws, it is extremely preferable that the language of the
law expressly provide when the felony is produced. Without such provision, disputes would inevitably ensue on the
elemental question whether or not a crime was committed, thereby presaging the undesirable and legally dubious
set-up under which the judiciary is assigned the legislative role of defining crimes. Fortunately, our Revised Penal
Code does not suffer from such infirmity. From the statutory definition of any felony, a decisive passage or term is
embedded which attests when the felony is produced by the acts of execution. For example, the statutory definition
of murder or homicide expressly uses the phrase "shall kill another," thus making it clear that the felony is produced
by the death of the victim, and conversely, it is not produced if the victim survives.
We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its elements are
spelled out as follows:
Art. 308. Who 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 latters
consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner;
2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits
or object of the damage caused by him; and
3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs to another
and without the consent of its owner, shall hunt or fish upon the same or shall gather cereals, or other forest or farm
products.
Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic means by which
theft may be committed.
41
In the present discussion, we need to concern ourselves only with the general definition
since it was under it that the prosecution of the accused was undertaken and sustained. On the face of the definition,
there is only one operative act of execution by the actor involved in theft the taking of personal property of
another. It is also clear from the provision that in order that such taking may be qualified as theft, there must further
be present the descriptive circumstances that the taking was with intent to gain; without force upon things or
violence against or intimidation of persons; and it was without the consent of the owner of the property.
Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the Revised Penal
Code, namely: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the
taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the
taking be accomplished without the use of violence against or intimidation of persons or force upon things.
42

In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early Roman law as
defined by Gaius, was so broad enough as to encompass "any kind of physical handling of property belonging to
another against the will of the owner,"
43
a definition similar to that by Paulus that a thief "handles (touches, moves)
the property of another."
44
However, with the Institutes of Justinian, the idea had taken hold that more than mere
physical handling, there must further be an intent of acquiring gain from the object, thus: "[f]urtum est contrectatio
rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve."
45
This requirement of animo
lucrandi, or intent to gain, was maintained in both the Spanish and Filipino penal laws, even as it has since been
abandoned in Great Britain.
46

In Spanish law, animo lucrandi was compounded with apoderamiento, or "unlawful taking," to characterize theft.
Justice Regalado notes that the concept of apoderamiento once had a controversial interpretation and application.
Spanish law had already discounted the belief that mere physical taking was constitutive of apoderamiento, finding
that it had to be coupled with "the intent to appropriate the object in order to constitute apoderamiento; and to
appropriate means to deprive the lawful owner of the thing."
47
However, a conflicting line of cases decided by the
Court of Appeals ruled, alternatively, that there must be permanency in the taking
48
or an intent to permanently
deprive the owner of the stolen property;
49
or that there was no need for permanency in the taking or in its intent, as
the mere temporary possession by the offender or disturbance of the proprietary rights of the owner already
constituted apoderamiento.
50
Ultimately, as Justice Regalado notes, the Court adopted the latter thought that there
was no need of an intent to permanently deprive the owner of his property to constitute an unlawful taking.
51

So long as the "descriptive" circumstances that qualify the taking are present, including animo lucrandi and
apoderamiento, the completion of the operative act that is the taking of personal property of another establishes, at
least, that the transgression went beyond the attempted stage. As applied to the present case, the moment petitioner
obtained physical possession of the cases of detergent and loaded them in the pushcart, such seizure motivated by
intent to gain, completed without need to inflict violence or intimidation against persons nor force upon things, and
accomplished without the consent of the SM Super Sales Club, petitioner forfeited the extenuating benefit a
conviction for only attempted theft would have afforded him.
On the critical question of whether it was consummated or frustrated theft, we are obliged to apply Article 6 of the
Revised Penal Code to ascertain the answer. Following that provision, the theft would have been frustrated only,
once the acts committed by petitioner, if ordinarily sufficient to produce theft as a consequence, "do not produce
[such theft] by reason of causes independent of the will of the perpetrator." There are clearly two determinative
factors to consider: that the felony is not "produced," and that such failure is due to causes independent of the will of
the perpetrator. The second factor ultimately depends on the evidence at hand in each particular case. The first,
however, relies primarily on a doctrinal definition attaching to the individual felonies in the Revised Penal Code
52
as
to when a particular felony is "not produced," despite the commission of all the acts of execution.
So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as to how exactly is
the felony of theft "produced." Parsing through the statutory definition of theft under Article 308, there is one
apparent answer provided in the language of the law that theft is already "produced" upon the "tak[ing of]
personal property of another without the latters consent."
U.S. v. Adiao
53
apparently supports that notion. Therein, a customs inspector was charged with theft after he
abstracted a leather belt from the baggage of a foreign national and secreted the item in his desk at the Custom
House. At no time was the accused able to "get the merchandise out of the Custom House," and it appears that he
"was under observation during the entire transaction."
54
Based apparently on those two circumstances, the trial court
had found him guilty, instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive,
and holding instead that the accused was guilty of consummated theft, finding that "all the elements of the
completed crime of theft are present."
55
In support of its conclusion that the theft was consummated, the Court cited
three (3) decisions of the Supreme Court of Spain, the discussion of which we replicate below:
The defendant was charged with the theft of some fruit from the land of another. As he was in the act of taking the
fruit[,] he was seen by a policeman, yet it did not appear that he was at that moment caught by the policeman but
sometime later. The court said: "[x x x] The trial court did not err [x x x ] in considering the crime as that of
consummated theft instead of frustrated theft inasmuch as nothing appears in the record showing that the policemen
who saw the accused take the fruit from the adjoining land arrested him in the act and thus prevented him from
taking full possession of the thing stolen and even its utilization by him for an interval of time." (Decision of the
Supreme Court of Spain, October 14, 1898.)
Defendant picked the pocket of the offended party while the latter was hearing mass in a church. The latter on
account of the solemnity of the act, although noticing the theft, did not do anything to prevent it. Subsequently,
however, while the defendant was still inside the church, the offended party got back the money from the defendant.
The court said that the defendant had performed all the acts of execution and considered the theft as consummated.
(Decision of the Supreme Court of Spain, December 1, 1897.)
The defendant penetrated into a room of a certain house and by means of a key opened up a case, and from the case
took a small box, which was also opened with a key, from which in turn he took a purse containing 461 reales and
20 centimos, and then he placed the money over the cover of the case; just at this moment he was caught by two
guards who were stationed in another room near-by. The court considered this as consummated robbery, and said:
"[x x x] The accused [x x x] having materially taken possession of the money from the moment he took it from the
place where it had been, and having taken it with his hands with intent to appropriate the same, he executed all the
acts necessary to constitute the crime which was thereby produced; only the act of making use of the thing having
been frustrated, which, however, does not go to make the elements of the consummated crime." (Decision of the
Supreme Court of Spain, June 13, 1882.)
56

It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the criminal actors in
all these cases had been able to obtain full possession of the personal property prior to their apprehension. The
interval between the commission of the acts of theft and the apprehension of the thieves did vary, from "sometime
later" in the 1898 decision; to the very moment the thief had just extracted the money in a purse which had been
stored as it was in the 1882 decision; and before the thief had been able to spirit the item stolen from the building
where the theft took place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of no
consequence in those cases, as it was ruled that the thefts in each of those cases was consummated by the actual
possession of the property belonging to another.
In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated rather than
consummated theft. The case is People v. Sobrevilla,
57
where the accused, while in the midst of a crowd in a public
market, was already able to abstract a pocketbook from the trousers of the victim when the latter, perceiving the
theft, "caught hold of the [accused]s shirt-front, at the same time shouting for a policeman; after a struggle, he
recovered his pocket-book and let go of the defendant, who was afterwards caught by a policeman."
58
In rejecting
the contention that only frustrated theft was established, the Court simply said, without further comment or
elaboration:
We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-book, and that
determines the crime of theft. If the pocket-book was afterwards recovered, such recovery does not affect the
[accuseds] criminal liability, which arose from the [accused] having succeeded in taking the pocket-book.
59

If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the latter, in that the
fact that the offender was able to succeed in obtaining physical possession of the stolen item, no matter how
momentary, was able to consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of petitioner in this
case. Yet to simply affirm without further comment would be disingenuous, as there is another school of thought on
when theft is consummated, as reflected in the Dio and Flores decisions.
Dio was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before Flores. The
accused therein, a driver employed by the United States Army, had driven his truck into the port area of the South
Harbor, to unload a truckload of materials to waiting U.S. Army personnel. After he had finished unloading, accused
drove away his truck from the Port, but as he was approaching a checkpoint of the Military Police, he was stopped
by an M.P. who inspected the truck and found therein three boxes of army rifles. The accused later contended that he
had been stopped by four men who had loaded the boxes with the agreement that they were to meet him and retrieve
the rifles after he had passed the checkpoint. The trial court convicted accused of consummated theft, but the Court
of Appeals modified the conviction, holding instead that only frustrated theft had been committed.
In doing so, the appellate court pointed out that the evident intent of the accused was to let the boxes of rifles "pass
through the checkpoint, perhaps in the belief that as the truck had already unloaded its cargo inside the depot, it
would be allowed to pass through the check point without further investigation or checking."
60
This point was
deemed material and indicative that the theft had not been fully produced, for the Court of Appeals pronounced that
"the fact determinative of consummation is the ability of the thief to dispose freely of the articles stolen, even if it
were more or less momentary."
61
Support for this proposition was drawn from a decision of the Supreme Court of
Spain dated 24 January 1888 (1888 decision), which was quoted as follows:
Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la consumacion del delito de
hurto es preciso que so haga en circunstancias tales que permitan al sustractor la libre disposicion de aquella,
siquiera sea mas o menos momentaneamente, pues de otra suerte, dado el concepto del delito de hurto, no puede
decirse en realidad que se haya producido en toda su extension, sin materializar demasiado el acto de tomar la cosa
ajena.
62

Integrating these considerations, the Court of Appeals then concluded:
This court is of the opinion that in the case at bar, in order to make the booty subject to the control and disposal of
the culprits, the articles stolen must first be passed through the M.P. check point, but since the offense was
opportunely discovered and the articles seized after all the acts of execution had been performed, but before the loot
came under the final control and disposal of the looters, the offense can not be said to have been fully consummated,
as it was frustrated by the timely intervention of the guard. The offense committed, therefore, is that of frustrated
theft.
63

Dio thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the time of
apprehension is determinative as to whether the theft is consummated or frustrated. This theory was applied again by
the Court of Appeals some 15 years later, in Flores, a case which according to the division of the court that decided
it, bore "no substantial variance between the circumstances [herein] and in [Dio]."
64
Such conclusion is borne out
by the facts in Flores. The accused therein, a checker employed by the Luzon Stevedoring Company, issued a
delivery receipt for one empty sea van to the truck driver who had loaded the purportedly empty sea van onto his
truck at the terminal of the stevedoring company. The truck driver proceeded to show the delivery receipt to the
guard on duty at the gate of the terminal. However, the guards insisted on inspecting the van, and discovered that the
"empty" sea van had actually contained other merchandise as well.
65
The accused was prosecuted for theft qualified
by abuse of confidence, and found himself convicted of the consummated crime. Before the Court of Appeals,
accused argued in the alternative that he was guilty only of attempted theft, but the appellate court pointed out that
there was no intervening act of spontaneous desistance on the part of the accused that "literally frustrated the theft."
However, the Court of Appeals, explicitly relying on Dio, did find that the accused was guilty only of frustrated,
and not consummated, theft.
As noted earlier, the appellate court admitted it found "no substantial variance" between Dio and Flores then before
it. The prosecution in Flores had sought to distinguish that case from Dio, citing a "traditional ruling" which
unfortunately was not identified in the decision itself. However, the Court of Appeals pointed out that the said
"traditional ruling" was qualified by the words "is placed in a situation where [the actor] could dispose of its
contents at once."
66
Pouncing on this qualification, the appellate court noted that "[o]bviously, while the truck and
the van were still within the compound, the petitioner could not have disposed of the goods at once." At the same
time, the Court of Appeals conceded that "[t]his is entirely different from the case where a much less bulk and more
common thing as money was the object of the crime, where freedom to dispose of or make use of it is palpably less
restricted,"
67
though no further qualification was offered what the effect would have been had that alternative
circumstance been present instead.
Synthesis of the Dio and Flores rulings is in order. The determinative characteristic as to whether the crime of theft
was produced is the ability of the actor "to freely dispose of the articles stolen, even if it were only momentary."
Such conclusion was drawn from an 1888 decision of the Supreme Court of Spain which had pronounced that in
determining whether theft had been consummated, "es preciso que so haga en circunstancias tales que permitan al
sustractor de aquella, siquiera sea mas o menos momentaneamente." The qualifier "siquiera sea mas o menos
momentaneamente" proves another important consideration, as it implies that if the actor was in a capacity to freely
dispose of the stolen items before apprehension, then the theft could be deemed consummated. Such circumstance
was not present in either Dio or Flores, as the stolen items in both cases were retrieved from the actor before they
could be physically extracted from the guarded compounds from which the items were filched. However, as implied
in Flores, the character of the item stolen could lead to a different conclusion as to whether there could have been
"free disposition," as in the case where the chattel involved was of "much less bulk and more common x x x, [such]
as money x x x."
68

In his commentaries, Chief Justice Aquino makes the following pointed observation on the import of the Dio
ruling:
There is a ruling of the Court of Appeals that theft is consummated when the thief is able to freely dispose of the
stolen articles even if it were more or less momentary. Or as stated in another case[
69
], theft is consummated upon
the voluntary and malicious taking of property belonging to another which is realized by the material occupation of
the thing whereby the thief places it under his control and in such a situation that he could dispose of it at once. This
ruling seems to have been based on Viadas opinion that in order the theft may be consummated, "es preciso que se
haga en circumstancias x x x [
70
]"
71

In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also states that "[i]n theft
or robbery the crime is consummated after the accused had material possession of the thing with intent to
appropriate the same, although his act of making use of the thing was frustrated."
72

There are at least two other Court of Appeals rulings that are at seeming variance with the Dio and Flores rulings.
People v. Batoon
73
involved an accused who filled a container with gasoline from a petrol pump within view of a
police detective, who followed the accused onto a passenger truck where the arrest was made. While the trial court
found the accused guilty of frustrated qualified theft, the Court of Appeals held that the accused was guilty of
consummated qualified theft, finding that "[t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x
x indicate that actual taking with intent to gain is enough to consummate the crime of theft."
74

In People v. Espiritu,
75
the accused had removed nine pieces of hospital linen from a supply depot and loaded them
onto a truck. However, as the truck passed through the checkpoint, the stolen items were discovered by the Military
Police running the checkpoint. Even though those facts clearly admit to similarity with those in Dio, the Court of
Appeals held that the accused were guilty of consummated theft, as the accused "were able to take or get hold of the
hospital linen and that the only thing that was frustrated, which does not constitute any element of theft, is the use or
benefit that the thieves expected from the commission of the offense."
76

In pointing out the distinction between Dio and Espiritu, Reyes wryly observes that "[w]hen the meaning of an
element of a felony is controversial, there is bound to arise different rulings as to the stage of execution of that
felony."
77
Indeed, we can discern from this survey of jurisprudence that the state of the law insofar as frustrated theft
is concerned is muddled. It fact, given the disputed foundational basis of the concept of frustrated theft itself, the
question can even be asked whether there is really such a crime in the first place.
IV.
The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not consummated, theft. As
we undertake this inquiry, we have to reckon with the import of this Courts 1984 decision in Empelis v. IAC.
78

As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the premises of his
plantation, in the act of gathering and tying some coconuts. The accused were surprised by the owner within the
plantation as they were carrying with them the coconuts they had gathered. The accused fled the scene, dropping the
coconuts they had seized, and were subsequently arrested after the owner reported the incident to the police. After
trial, the accused were convicted of qualified theft, and the issue they raised on appeal was that they were guilty only
of simple theft. The Court affirmed that the theft was qualified, following Article 310 of the Revised Penal
Code,
79
but further held that the accused were guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether the theft was consummated or frustrated was
raised by any of the parties. What does appear, though, is that the disposition of that issue was contained in only two
sentences, which we reproduce in full:
However, the crime committed is only frustrated qualified theft because petitioners were not able to perform all the
acts of execution which should have produced the felony as a consequence. They were not able to carry the coconuts
away from the plantation due to the timely arrival of the owner.
80

No legal reference or citation was offered for this averment, whether Dio, Flores or the Spanish authorities who
may have bolstered the conclusion. There are indeed evident problems with this formulation in Empelis.
Empelis held that the crime was only frustrated because the actors "were not able to perform all the acts of execution
which should have produced the felon as a consequence."
81
However, per Article 6 of the Revised Penal Code, the
crime is frustrated "when the offender performs all the acts of execution," though not producing the felony as a
result. If the offender was not able to perform all the acts of execution, the crime is attempted, provided that the non-
performance was by reason of some cause or accident other than spontaneous desistance. Empelis concludes that the
crime was
frustrated because not all of the acts of execution were performed due to the timely arrival of the owner. However,
following Article 6 of the Revised Penal Code, these facts should elicit the conclusion that the crime was only
attempted, especially given that the acts were not performed because of the timely arrival of the owner, and not
because of spontaneous desistance by the offenders.
For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if the two
sentences we had cited actually aligned with the definitions provided in Article 6 of the Revised Penal Code, such
passage bears no reflection that it is the product of the considered evaluation of the relevant legal or jurisprudential
thought. Instead, the passage is offered as if it were sourced from an indubitable legal premise so settled it required
no further explication.
Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft. Indeed, we cannot
see how Empelis can contribute to our present debate, except for the bare fact that it proves that the Court had once
deliberately found an accused guilty of frustrated theft. Even if Empelis were considered as a precedent for
frustrated theft, its doctrinal value is extremely compromised by the erroneous legal premises that inform it, and also
by the fact that it has not been entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in this jurisdiction.
Considering the flawed reasoning behind its conclusion of frustrated theft, it cannot present any efficacious
argument to persuade us in this case. Insofar as Empelis may imply that convictions for frustrated theft are beyond
cavil in this jurisdiction, that decision is subject to reassessment.
V.
At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de Espaa was then in place. The
definition of the crime of theft, as provided then, read as follows:
Son reos de hurto:
1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las personas ni fuerza en las cosas, toman las
cosas muebles ajenas sin la voluntad de su dueo.
2. Los que encontrndose una cosa perdida y sabiendo quin es su dueo se la apropriaren co intencin de lucro.
3. Los daadores que sustrajeren o utilizaren los frutos u objeto del dao causado, salvo los casos previstos en los
artculos 606, nm. 1.0; 607, nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613; Segundo prrafo del 617 y 618.
It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court decisions were handed
down. However, the said code would be revised again in 1932, and several times thereafter. In fact, under the
Codigo Penal Espaol de 1995, the crime of theft is now simply defined as "[e]l que, con nimo de lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueo ser castigado"
82

Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, "la libre disposicion" of the property
is not an element or a statutory characteristic of the crime. It does appear that the principle originated and perhaps
was fostered in the realm of Spanish jurisprudence.
The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the 1870 Codigo Penal
de Espaa. Therein, he raised at least three questions for the reader whether the crime of frustrated or consummated
theft had occurred. The passage cited in Dio was actually utilized by Viada to answer the question whether
frustrated or consummated theft was committed "[e]l que en el momento mismo de apoderarse de la cosa ajena,
vindose sorprendido, la arroja al suelo."
83
Even as the answer was as stated in Dio, and was indeed derived from
the 1888 decision of the Supreme Court of Spain, that decisions factual predicate occasioning the statement was
apparently very different from Dio, for it appears that the 1888 decision involved an accused who was surprised by
the employees of a haberdashery as he was abstracting a layer of clothing off a mannequin, and who then proceeded
to throw away the garment as he fled.
84

Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of the Supreme
Court of Spain that have held to that effect.
85
A few decades later, the esteemed Eugenio Cuello Caln pointed out
the inconsistent application by the Spanish Supreme Court with respect to frustrated theft.
Hay frustracin cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de harino del carro
que los conducia a otro que tenan preparado, 22 febrero 1913; cuando el resultado no tuvo efecto por la
intervencin de la policia situada en el local donde se realiz la sustraccin que impidi pudieran los reos disponer
de lo sustrado, 30 de octubre 1950. Hay "por lo menos" frustracin, si existe apoderamiento, pero el culpale no
llega a disponer de la cosa, 12 abril 1930; hay frustracin "muy prxima" cuando el culpable es detenido por el
perjudicado acto seguido de cometer la sustraccin, 28 febrero 1931. Algunos fallos han considerado la existencia
de frustracin cuando, perseguido el culpable o sorprendido en el momento de llevar los efectos hurtados, los
abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, stos, conforme a lo antes
expuesto, son hurtos consumados.
86

Ultimately, Cuello Caln attacked the very idea that frustrated theft is actually possible:
La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa queda de hecho a la
disposicin del agente. Con este criterio coincide la doctrina sentada ltimamente porla jurisprudencia espaola que
generalmente considera consumado el hurto cuando el culpable coge o aprehende la cosa y sta quede por tiempo
ms o menos duradero bajo su poder. El hecho de que ste pueda aprovecharse o no de lo hurtado es indiferente. El
delito no pierde su carcter de consumado aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada.
No se concibe la frustracin, pues es muy dificil que el que hace cuanto es necesario para la consumacin del hurto
no lo consume efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante, declara hurtos frustrados
son verdaderos delitos consumados.
87
(Emphasis supplied)
Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who was content with replicating the Spanish
Supreme Court decisions on the matter, Cuello Caln actually set forth his own thought that questioned whether
theft could truly be frustrated, since "pues es muy dificil que el que hace cuanto es necesario para la consumacin
del hurto no lo consume efectivamente." Otherwise put, it would be difficult to foresee how the execution of all the
acts necessary for the completion of the crime would not produce the effect of theft.
This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought that obliges us
to accept frustrated theft, as proposed in Dio and Flores. A final ruling by the Court that there is no crime of
frustrated theft in this jurisdiction will not lead to scholastic pariah, for such a submission is hardly heretical in light
of Cuello Calns position.
Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a fresh
perspective, as we are not bound by the opinions of the respected Spanish commentators, conflicting as they are, to
accept that theft is capable of commission in its frustrated stage. Further, if we ask the question whether there is a
mandate of statute or precedent that must compel us to adopt the Dio and Flores doctrines, the answer has to be in
the negative. If we did so, it would arise not out of obeisance to an inexorably higher command, but from the
exercise of the function of statutory interpretation that comes as part and parcel of judicial review, and a function
that allows breathing room for a variety of theorems in competition until one is ultimately adopted by this Court.
V.
The foremost predicate that guides us as we explore the matter is that it lies in the province of the legislature,
through statute, to define what constitutes a particular crime in this jurisdiction. It is the legislature, as
representatives of the sovereign people, which determines which acts or combination of acts are criminal in nature.
Judicial interpretation of penal laws should be aligned with what was the evident legislative intent, as expressed
primarily in the language of the law as it defines the crime. It is Congress, not the courts, which is to define a crime,
and ordain its punishment.
88
The courts cannot arrogate the power to introduce a new element of a crime which was
unintended by the legislature, or redefine a crime in a manner that does not hew to the statutory language. Due
respect for the prerogative of Congress in defining crimes/felonies constrains the Court to refrain from a broad
interpretation of penal laws where a "narrow interpretation" is appropriate. "The Court must take heed of language,
legislative history and purpose, in order to strictly determine the wrath and breath of the conduct the law forbids."
89

With that in mind, a problem clearly emerges with the Dio/Flores dictum. The ability of the offender to freely
dispose of the property stolen is not a constitutive element of the crime of theft. It finds no support or extension in
Article 308, whether as a descriptive or operative element of theft or as the mens rea or actus reus of the felony. To
restate what this Court has repeatedly held: the elements of the crime of theft as provided for in Article 308 of the
Revised Penal Code are: (1) that there be taking of personal property; (2) that said property belongs to another; (3)
that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that
the taking be accomplished without the use of violence against or intimidation of persons or force upon things.
90

Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain, of personal
property of another without the latters consent. While the Dio/Flores dictum is considerate to the mindset of the
offender, the statutory definition of theft considers only the perspective of intent to gain on the part of the offender,
compounded by the deprivation of property on the part of the victim.
For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage, the question is
again, when is the crime of theft produced? There would be all but certain unanimity in the position that theft is
produced when there is deprivation of personal property due to its taking by one with intent to gain. Viewed from
that perspective, it is immaterial to the product of the felony that the offender, once having committed all the acts of
execution for theft, is able or unable to freely dispose of the property stolen since the deprivation from the owner
alone has already ensued from such acts of execution. This conclusion is reflected in Chief Justice Aquinos
commentaries, as earlier cited, that "[i]n theft or robbery the crime is consummated after the accused had material
possession of the thing with intent to appropriate the same, although his act of making use of the thing was
frustrated."
91

It might be argued, that the ability of the offender to freely dispose of the property stolen delves into the concept of
"taking" itself, in that there could be no true taking until the actor obtains such degree of control over the stolen
item. But even if this were correct, the effect would be to downgrade the crime to its attempted, and not frustrated
stage, for it would mean that not all the acts of execution have not been completed, the "taking not having been
accomplished." Perhaps this point could serve as fertile ground for future discussion, but our concern now is
whether there is indeed a crime of frustrated theft, and such consideration proves ultimately immaterial to that
question. Moreover, such issue will not apply to the facts of this particular case. We are satisfied beyond reasonable
doubt that the taking by the petitioner was completed in this case. With intent to gain, he acquired physical
possession of the stolen cases of detergent for a considerable period of time that he was able to drop these off at a
spot in the parking lot, and long enough to load these onto a taxicab.
Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment the
offender gains possession of the thing, even if he has no opportunity to dispose of the same.
92
And long ago, we
asserted in People v. Avila:
93

x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated into the
physical power of the thief, which idea is qualified by other conditions, such as that the taking must be
effectedanimo lucrandi and without the consent of the owner; and it will be here noted that the definition does not
require that the taking should be effected against the will of the owner but merely that it should be without his
consent, a distinction of no slight importance.
94

Insofar as we consider the present question, "unlawful taking" is most material in this respect. Unlawful taking,
which is the deprivation of ones personal property, is the element which produces the felony in its consummated
stage. At the same time, without unlawful taking as an act of execution, the offense could only be attempted theft, if
at all.
With these considerations, we can only conclude that under Article 308 of the Revised Penal Code, theft cannot
have a frustrated stage. Theft can only be attempted or consummated.
Neither Dio nor Flores can convince us otherwise. Both fail to consider that once the offenders therein obtained
possession over the stolen items, the effect of the felony has been produced as there has been deprivation of
property. The presumed inability of the offenders to freely dispose of the stolen property does not negate the fact
that the owners have already been deprived of their right to possession upon the completion of the taking.
Moreover, as is evident in this case, the adoption of the rule that the inability of the offender to freely dispose of
the stolen property frustrates the theft would introduce a convenient defense for the accused which does not
reflect any legislated intent,
95
since the Court would have carved a viable means for offenders to seek a mitigated
penalty under applied circumstances that do not admit of easy classification. It is difficult to formulate definite
standards as to when a stolen item is susceptible to free disposal by the thief. Would this depend on the
psychological belief of the offender at the time of the commission of the crime, as implied in Dio?
Or, more likely, the appreciation of several classes of factual circumstances such as the size and weight of the
property, the location of the property, the number and identity of people present at the scene of the crime, the
number and identity of people whom the offender is expected to encounter upon fleeing with the stolen property, the
manner in which the stolen item had been housed or stored; and quite frankly, a whole lot more. Even the fungibility
or edibility of the stolen item would come into account, relevant as that would be on whether such property is
capable of free disposal at any stage, even after the taking has been consummated.
All these complications will make us lose sight of the fact that beneath all the colorful detail, the owner was indeed
deprived of property by one who intended to produce such deprivation for reasons of gain. For such will remain the
presumed fact if frustrated theft were recognized, for therein, all of the acts of execution, including the taking, have
been completed. If the facts establish the non-completion of the taking due to these peculiar circumstances, the
effect could be to downgrade the crime to the attempted stage, as not all of the acts of execution have been
performed. But once all these acts have been executed, the taking has been completed, causing the unlawful
deprivation of property, and ultimately the consummation of the theft.
Maybe the Dio/Flores rulings are, in some degree, grounded in common sense. Yet they do not align with the
legislated framework of the crime of theft. The Revised Penal Code provisions on theft have not been designed in
such fashion as to accommodate said rulings. Again, there is no language in Article 308 that expressly or impliedly
allows that the "free disposition of the items stolen" is in any way determinative of whether the crime of theft has
been produced. Dio itself did not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later
Flores was ultimately content in relying on Dio alone for legal support. These cases do not enjoy the weight of
stare decisis, and even if they did, their erroneous appreciation of our law on theft leave them susceptible to reversal.
The same holds true of Empilis, a regrettably stray decision which has not since found favor from this Court.
We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As petitioner has latched
the success of his appeal on our acceptance of the Dio and Flores rulings, his petition must be denied, for we
decline to adopt said rulings in our jurisdiction. That it has taken all these years for us to recognize that there can be
no frustrated theft under the Revised Penal Code does not detract from the correctness of this conclusion. It will take
considerable amendments to our Revised Penal Code in order that frustrated theft may be recognized. Our deference
to Viada yields to the higher reverence for legislative intent.
WHEREFORE, the petition is DENIED. Costs against petitioner.
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
LEONARDO A. QUISUMBING
Associate Justice
CONSUELO YNARES-SANTIAGO
Associate Justice
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
ANTONIO T. CARPIO
Associate Justice
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
RENATO C. CORONA
Associate Justice
CONCHITA CARPIO MORALES
Associate Justice
ADOLFO S. AZCUNA
Associate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
CANCIO C. GARCIA
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice


C E R T I F I C A T I O N
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. Nos. 141724-27 November 12, 2003
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
ARNULFO ORANDE y CHAVEZ, Appellant.
D E C I S I O N
CORONA, J.:
This is an appeal from the decision
1
of the Regional Trial Court of Manila, Branch 18, in Criminal Case Nos. 97-
159184, 97-159185, 97-159186 and 97-159187, convicting appellant for two counts of simple rape, one count of
statutory rape and one count of frustrated rape, and sentencing him to suffer three counts of reclusion perpetua for
the simple and statutory rapes, and an indeterminate penalty of 8 years to 14 years and 8 months of imprisonment for
the frustrated rape.
Complainant Jessica Castro charged appellant with raping her four times between January 1994 and November
1996. The informations filed against appellant by the City Prosecutor read:
In Criminal Case No. 97-159184 -
That on or about January 14, 1996, in the City of Manila, Philippines, the said accused did then and there willfully,
unlawfully and feloniously, by means of force and intimidation, that is, by threatening to kill said Jessica Castro, had
carnal knowledge of the latter against her will.
CONTRARY TO LAW.
In Criminal Case No. 97-159185-
That on or about April 15, 1994, in the City of Manila, Philippines, the said accused did then and there willfully,
unlawfully and feloniously, by means of force and intimidation, that is, by threatening JESSICA CASTRO Y DE
LA CRUZ of death should she resist or report the matter to anybody, had carnal knowledge of said Jessica C.
Castro, a minor, under 12 years of age, against her will.
CONTRARY TO LAW.
In Criminal Case No. 97-159186 -
That on or about March 12, 1995, in the City of Manila, Philippines, the said accused did then and there willfully,
unlawfully and feloniously, by means of force and intimidation, that is, by threatening Jessica Castro y de la Cruz of
death should she resist or report the matter to anybody, had carnal knowledge of said Jessica C. Castro, a minor,
under 12 years of age, against her will.
CONTRARY TO LAW.
In Criminal Case No. 97-159187-
That on or about November 17, 1996, in the City of Manila, Philippines, the said accused did then and there
willfully, unlawfully and feloniously, by means of force and intimidation, that is, by threatening to kill said Jessica
Castro, had carnal knowledge of the latter against her will.
CONTRARY TO LAW.
2

Arraigned on September 5, 1997, appellant pleaded not guilty.
3
Thereafter, trial on the merits ensued. However, the
trial was subsequently postponed for eight months as Jessica was suffering from psychological and emotional
trauma from her horrifying ordeal.
4
The lower court ordered the suspension of the trial to enable her to undergo
psychological therapy at the Child Protection Unit of the Philippine General Hospital. Trial resumed in November
1998 with the prosecution presenting Jessica as its first witness.
Incidentally, prior to the filing of the aforementioned cases, Jessica also filed a criminal case against her mother,
Girlie de la Cruz Castro, and the appellant for child abuse.
The evidence of the prosecution showed that appellant was the common law husband of Jessicas mother Girlie.
Appellant, a pedicab driver, started living with Girlie and her three children sometime in 1993 in a two-storey house
in Paco, Manila owned by Girlies mother. They occupied a room on the ground floor which served as their
bedroom, kitchen and living room. The adjacent room was occupied by Girlies brother and his family while the
room on the second floor was occupied by Girlies sister and her family.
Girlie gave birth to two more children by appellant. To earn a living, Girlie sold fish at the Paco Market, buying her
stock from the Navotas fish market late at night and sometimes in the early hours of the morning.
The first incident of rape, subject of Criminal Case No. 97-159185, happened sometime in April 1994 when Girlie
was at the fish market. Appellant was left in the house with Jessica, her siblings and appellants two children with
Girlie. Jessica was then watching television while her brothers and sisters were sleeping beside her. Appellant
grabbed Jessicas right hand and lasciviously jabbed her palm with his finger. He ordered her to undress which she
obeyed out of fear as appellant was armed with a knife. Appellant then removed his pants, placed himself on top of
complainant and succeeded in partially penetrating her. Jessica felt pain in her vagina and saw it smeared with blood
and semen. She tried to leave the room but appellant locked the door and threatened to kill her if she told her mother
what happened. Jessica was then only nine years and four months old, having been born on December 19, 1983.
5

The second rape, subject of Criminal Case No. 97-159186, occurred on March 14, 1995 at around 11:00 a.m. when
Jessica was 11 years and 3 months old. Girlie was in the market while Jessica and her siblings were left in the house
watching television. Soon after, appellant arrived and sent the children, except Jessica, to play outside. Left alone
with Jessica, appellant removed his clothes, pulled out a balisong and ordered Jessica to undress. He then held her
by the shoulder and made her lie down. Then he mounted her. Appellant reached his orgasm shortly after
penetrating her slightly. He stood up with semen still dripping from his penis. Apparently still not satisfied, he knelt
down, kissed and fingered Jessicas vagina, then mashed her breasts. He only stopped what he was doing when
someone knocked at the door. Appellant and Jessica hurriedly put on their clothes and, as appellant opened the door,
Jessica went to the bathroom to wash herself.
The third rape, subject of Criminal Case No. 97-159184, occurred on January 14, 1996, when Jessica was 12 years
and 6 months old. She arrived from school at around 11:00 a.m. While she was changing her clothes, appellant
ordered Jessicas brother and sister to visit their mother at the Paco Market and sent his children to play outside the
house. When appellant and Jessica were alone, he removed his pants, got his knife and ordered her to undress. Since
she was afraid, Jessica was forced to remove her clothes. Appellant then told her they would do what they did
before, pulled her towards him and made her lie down on the floor. While holding the knife, he kissed and fingered
her vagina, then mashed her breasts. Thereafter, he placed himself on top of her, partially penetrated her until he
ejaculated. When Jessicas brother and sister arrived, appellant hurriedly put on his clothes. Jessica did the same.
She then went to the bathroom to wash herself and change her bloodstained underwear.
The last rape, subject of Criminal Case No. 97-159187, occurred sometime in November 1996, at around 11:00 p.m.
Girlie was again in the public market while Jessica was at home with her siblings who were all asleep. Appellant
told Jessica that they would again do what they did before but she refused, saying that she might get pregnant.
Appellant brandished his balisong and threatened to kill her. He then covered himself and Jessica with a blanket,
removed his pants and her shorts, and placed himself on top of her. His penis slightly penetrated her vagina. He
mashed her breasts, inserted his finger into her vagina and kissed it. Jessica pushed him away and told him she
wanted to sleep. Then she put on her shorts. Appellant also put on his pants and told Jessica not to tell her mother
what he did to her. He assured her that she would not get pregnant because she was not yet menstruating.
Sometime in March 1997, a teacher of Jessica, Mrs. Adoracion Mojica, noticed the unusual treatment of Jessica by
appellant. When confronted by Mrs. Mojica, Jessica admitted that appellant had raped her several times. Mrs.
Mojica called up Jessicas aunt, Mrs. Antonina de la Cruz, and narrated to her what Jessica had confessed. Mrs. De
la Cruz then accompanied Jessica to the police station to file a complaint and to the Philippine General Hospital
(PGH), Child Protection Unit, to be examined. Dr. Bernadette J. Madrid, Director of the Child Protection Unit,
examined Jessica and the findings revealed the following:
Genital Examination:
Hymen: Estrogenized,
Attenuated from 1 oclock position to 4 o clock position
and from 6 o clock to 12 o clock position
Notch at 5 oclock
Healed hymenal tear at the 6 o clock position
Anus: Normal rectal tone, no pigmentation, no scars, normal rugae
6

For his defense, appellant advanced denial and alibi. He denied ever raping Jessica and testified that, during the
alleged second rape incident, he was driving his pedicab. His live-in partner Girlie testified that, during the
purported first and second incidents of rape, appellant was with her to buy fish in Navotas and sell them in Paco
market. Appellant argued that since Jessica disapproved of his relationship with her mother, she had the motive to
falsely accuse him of raping her. Further, he pointed out the improbability of the alleged first and fourth incidents of
rape inasmuch as the make-up of the room made it impossible for Jessicas siblings not to wake up during the
commission of the crime. Appellant further contended that Jessicas failure to cry out for help, knowing that her
mothers relatives were in the same house, made her story of rape unbelievable.
The trial court gave credence to the testimony of Jessica and convicted the appellant:
WHEREFORE, in Criminal Case No. 97-159184, Accused Arnulfo Orande y Chavez is convicted of simple rape
under Article 335 of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua with all the
accessory penalties provided by law.
In Criminal Case No. 97-159185, the accused is also convicted of simple rape under Article 335 of the Revised
Penal Code and sentenced to suffer the penalty of reclusion perpetua with all the accessory penalties provided by
law.
In Criminal Case No. 97-159186, the accused is likewise convicted of statutory rape under Article 335 of the
Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua with all the accessory penalties
provided by law.
In Criminal Case No. 97-159187, the accused is convicted of frustrated rape under Article 335 of the Revised Penal
Code and sentenced to suffer the indeterminate penalty of 8 years of prision mayor as minimum to 14 years and 8
months of reclusion temporal as maximum, and to pay the costs.
On the civil liability of the accused in the four cases, he is ordered to pay the victim, Jessica Castro, moral, nominal
and exemplary damages in the respective sums of P400,000.00, P200,000.00 and P100,000.00.
SO ORDERED.
7

In this appeal, appellant assigns the following errors:
I. THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY
BEYOND REASONABLE DOUBT OF ONE COUNT OF STATUTORY RAPE, ONE COUNT OF
FRUSTRATED RAPE AND TWO COUNTS OF SIMPLE RAPE.
II. THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF
FRUSTRATED RAPE DESPITE THE FACT THAT UNDER PREVAILING JURISPRUDENCE THERE
IS NO SUCH CRIME.
8

The Office of the Solicitor General argues that appellants convictions should be upheld as the prosecution was able
to prove his guilt beyond reasonable doubt.
The appeal is partly meritorious. This Court finds that the prosecution was able to prove beyond reasonable doubt
appellants guilt for two counts of statutory rape and two counts of simple rape, there being no such crime as
frustrated rape in this jurisdiction.
After a thorough review of the records, we find no reason to deviate from the well-established rule that the
credibility of witnesses is a matter best assessed by the trial court because of its unique opportunity to observe them
firsthand and to note their demeanor, conduct and attitude.
9
In the present case, the trial court found Jessicas
testimony convincing, logical and credible. Moreover, the court a quo:
xxx discerned from her demeanor the intense mental torture, embarrassment, emotional pain and bitterness she
suffered whenever she was asked to recall and narrate the humiliating sexual ordeals she had gone through, and her
... desire for justice and the punishment of her defiler. She was continually in tears while testifying and the
proceeding was interrupted several times to calm her down.
10

No young woman would allow an examination of her private part and subject herself to the humiliation and rigor of
a public trial if the accusations were not true, or if her motive were other than a fervent desire to seek justice.
11

We do not subscribe to appellants theory that the filing of the rape charges was motivated by Jessicas dislike for
him. To charge appellant with rape for the sole purpose of exacting revenge, as appellant implies in his brief, takes a
certain kind of psychiatric depravity which this Court does not see in Jessica. The fact that Jessica had to undergo
psychological treatment
12
after her first testimony in February 1998 belies appellants defense. The need for such
counseling came about after the defilement she suffered in the hands of appellant. In fact, it was the incidents of rape
that caused her psychological and emotional imbalance which required therapy at the Child Protection Unit of the
Philippine General Hospital.
The alleged inconsistencies and improbabilities in Jessicas testimony did not discredit her nor reveal any
fabrication. Inconsistencies regarding minor details were attributable to the fact that she was recalling details of
incidents that happened three years before, not to mention the fact that these details pertained to something she had
very little knowledge of, being then only nine years and three months old when the first rape was committed. We
have consistently ruled that errorless recollection of a harrowing experience cannot be expected of a witness (a very
young one at that) specially when she is recounting details of an occurrence so humiliating, so painful and, in this
case, so alien as rape.
13

Appellant makes much of the fact that two incidents of rape happened inside the room where the other children were
sleeping. This Court has repeatedly held that rape can be committed in the same room where other members of the
family are also sleeping, in a house where there are other occupants or even in places which to many might appear
unlikely and high-risk venues for its commission.
14

Also, the failure of Jessica to cry out for help during the incidents in question, inspite of the physical proximity of
her relatives, or to report to them what happened, did not at all make her testimony improbable inasmuch as it is not
uncommon for a young girl of tender age to be easily intimidated into silence and conceal for sometime the violation
of her honor, even by the mildest threat to her life.
15
Besides, Girlie, Jessicas mother, had a rift with her siblings
who lived in the same house and forbade Jessica to socialize with them. It was likewise highly probable that the
strained relations between Jessicas mother, uncle and aunt prevented Jessica from confiding in them.
In a number of cases, this Court has likewise ruled that delay, even of three years, in reporting the crime does not
necessarily detract from the witness credibility as long as it is satisfactorily explained.
16
Jessica was threatened by
appellant that he would kill her mother and relatives if she reported the rape. A young girl like Jessica can easily be
mesmerized by fear of bodily harm and, unlike a mature woman, cannot be expected to have the courage or
confidence to immediately report a sexual assault on her, specially when a death threat hangs over her head.
17

In view of the credible testimony of Jessica, appellants defenses of denial and alibi deserve no consideration. These
weak defenses cannot stand against the positive identification and categorical testimony of a rape victim.
18

The court a quo convicted appellant of one count of frustrated rape in Criminal Case No. 97-151987, the dispositive
portion of which read:
x x x x x x x x x
In Criminal Case No. 97-159187, the accused is convicted of frustrated rape under Article 335 of the Revised Penal
Code and sentenced to suffer the indeterminate penalty of 8 years of prision mayor as minimum, and to pay the
costs.
x x x x x x x x x
SO ORDERED.
19

However, we agree with the observation of the Solicitor General that the court a quo was referring to Criminal Case
No. 97-159185, and not Criminal Case No. 97-159187, in convicting appellant of frustrated rape:
The trial court convicted appellant of simple rape in Criminal Case No. 97-159185. However, the factual basis
thereof in the body of the decision reads:
With regard to Criminal Case No. 97-159185, the Court has gathered that sometime in April, 1994, at around 11:00
p.m., Jessica and her two siblings together with the accused were in their house, while their mother, Girlie, was in
Navotas buying fish. Jessica was watching TV in a lying position beside her two sleeping siblings, when the accused
held Jessicas right hand and jabbed her palm with his finger. Then he told her to remove her short pants, panty and
T-shirt, after which the accused removed his pants and with a balisong in his hand, he began kissing the sensitive
parts of her body. Then he placed himself on top of her and tried to have sexual intercourse with her.He succeeded
in nudging her sex organ with the tip of his penis, but was unable to accomplish penetration, due to the resistance
offered by her by struggling and kicking him. Nonetheless, the accused had orgasm and Jessicas sex organ was
smeared with his semen. (emphasis supplied, p. 2, Decision)
Such was the only rape incident where the trial court concluded there was no penetration.
On the other hand, the factual basis for the conviction in Criminal Case No. 97-159187 in the body of the trial
courts decision reads:
Anent Criminal Case No. 97-159187, the records further show that in November, 1996, at around 11:00 p.m.,
Jessica was watching TV while the other siblings were asleep and her mother was away, when accused again made
sexual advances to her. She resisted and told accused she might become pregnant, but the accused persisted and
threatened to kill her at that very moment if she would not submit to his lust. As in the previous occasions, he again
succeeded in having carnal knowledge of the helpless and scared victim. After her defilement, the victim continually
cried and the accused tried to calm her down by assuring her that she would not be impregnated, because she has not
yet began to have menstruation (p. 3, Decision)
Consequently the conviction for frustrated rape should pertain to the incident in April 1994 described in Criminal
Case No. 97-159185 and not Criminal Case No. 97-159187 since this case refers to the November 1996 rape
incident where the findings of the trial court was that there was carnal knowledge.
20

Moreover, the oversight of the court a quo in interchanging Criminal Case Nos. 97-159185 and 97-159187 is further
evidenced by the following paragraph found in page four of the trial court decision:
In Criminal Case 97-159185 and 97-159184, the acts of the accused in having carnal knowledge of the victim by
intimidation on two separate occasions in [the] early or middle part [of] 1996, and in November of the same year,
constitute two separate crimes of qualified rape under R.A. 7659 and the penalty prescribed therefore is death by
lethal injection.
21
(Emphasis Ours)
The rape incidents which occurred in 1996 were designated as Criminal Case Nos. 97-159184 and 97-159187, as
borne out by the informations filed by the City Prosecutor.
22
Thus, the conviction for frustrated rape should pertain
to Criminal Case No. 97-159185 and not Criminal Case No. 97-159187.
Regarding Criminal Case No. 97-159185 (the April 1994 rape incident), the Court sustains appellants contention
that there is no such crime as frustrated rape, as we have ruled in a long line of cases.
23
Recently, in People vs.
Quinanola,
24
we again reiterated the rule:
Let it be said once again that, as the Revised Penal Code presently so stands, there is no such crime as frustrated
rape. In People vs. Orita, the Court has explicitly pronounced:
Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim, he actually attains
his purpose and, from that moment also all the essential elements of the offense have been accomplished. Nothing
more is left to be done by the offender, because he has performed the last act necessary to produce the crime. Thus,
the felony is consummated. In a long line of cases (People vs. Oscar, 48 Phil. 527; People vs. Hernandez, 49 Phil.
980; People vs. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People vs. Amores, G.R. No. L-32996,
August 21, 1974, 58 SCRA 505), We have set the uniform rule that for the consummation of rape, perfect
penetration is not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or
lips of the female organ, without rupture of the hymen or laceration of the vagina is sufficient to warrant conviction.
Necessarily, rape is attempted if there is no penetration of the female organ (People vs. Tayaba, 62 Phil. 559; People
vs. Rabadan, et al., 53 Phil. 694; United States vs. Garcia, 9 Phil. 434) because not all acts of execution was
performed. The offender merely commenced the commission of a felony directly by overt acts. Taking into account
the nature, elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly
conceivable how the frustrated stage in rape can ever be committed.
Of course, We are aware of our earlier pronouncement in the case of People vs. Eriia, 50 Phil. 998 [1927] where
We found the offender guilty of frustrated rape there being no conclusive evidence of penetration of the genital
organ of the offended party. However, it appears that this is a stray decision inasmuch as it has not been reiterated
in Our subsequent decisions. Likewise, We are aware of Article 335 of the Revised Penal Code, as amended by
Republic Act No. 2632 (dated September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which
provides, in its penultimate paragraph, for the penalty of death when the rape is attempted or frustrated and a
homicide is committed by reason or on the occasion thereof. We are of the opinion that this particular provision on
frustrated rape is a dead provision. The Eriia case, supra, might have prompted the law-making body to include the
crime of frustrated rape in the amendments introduced by said laws.
The Court is not unaware that Republic Act No. 7659, amending Article 335 of the Revised Penal Code, has
retained the provision penalizing with reclusion perpetua to death an accused who commits homicide by reason or
on the occasion of an attempted or frustrated rape. Until Congress sees it fit to define the term frustrated rape and
thereby penalize it, the Court will see its continued usage in the statute book as being merely a persistent lapse in
language. (emphasis ours)
Thus, it was error for the trial court to convict appellant of frustrated rape. Besides, after a careful review of the
records, we find that the rape was in fact consummated. Jessica initially testified that, although appellant did not
succeed in inserting his penis in her vagina, she felt his sex organ touch hers and she saw and felt semen come out of
his penis and smear her vagina.
25
In response to the clarificatory questions asked by the prosecutor, Jessica testified
that the appellant was able to slightly penetrate her because she felt pain and her vagina bled.
26
It has been held that,
to be convicted of rape, there must be convincing and sufficient proof that the penis indeed touched the labia or slid
into the female organ, and not merely stroked the external surface thereof.
27
Nevertheless, we have also ruled in cases
where penetration is not established that the rape is deemed consummated if the victim felt pain, or the medico-legal
examination finds discoloration in the inner lips of the vagina, or the labia minora is already gaping with redness, or
the hymenal tags are no longer visible.
28
In the present case, the victim testified that she felt pain and her vagina
bled, indisputable indications of slight penetration or, at the very least, that the penis indeed touched the labia and
not merely stroked the external surface thereof. Thus, the appellant should be found guilty of (consummated) rape
and not merely frustrated or attempted rape.
Pursuant to Section 11 of RA 7659 or the Heinous Crimes Law, the penalty of death is imposed if rape is committed
when the victim is under 18 years of age and the offender is the common-law spouse of the parent of the victim.
However, the trial court was correct in not imposing the death penalty in Criminal Case Nos. 97-159184 and 97-
159187 because the qualifying circumstances of age and relationship of the victim to the appellant were not alleged
in the information.
29
Thus, appellant can only be convicted of simple rape punishable by reclusion perpetua under
Article 335 of the Revised Penal Code. However, in Criminal Case Nos. 97-159185 and 97-159186, the appellant
can be convicted of statutory rape also punishable by reclusion perpetua under Article 335 of the Revised Penal
Code inasmuch as the age of Jessica was alleged in the information
30
and duly proven during the trial by the
presentation of her birth certificate.
31

We award moral damages of P50,000 for each count of rape as moral damages are automatically awarded to rape
victims without need of pleading or proof.
32
We also award civil indemnity ex delicto of P50,000 for each count of
rape in the light of the ruling that civil indemnity, which is distinct from moral damages, is mandatory upon the
finding of the fact of rape.
33
We likewise award exemplary damages of P25,000 for each count of rape consistent
with the prevailing jurisprudence on the matter.
34

WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 18, in Criminal Case Nos. 97-159 184 to
87 is AFFIRMED with the following MODIFICATIONS:
1. In Criminal Case No. 97-159 184, appellant is convicted of simple rape under Article 335 of the Revised
Penal Code and sentenced to suffer the penalty of reclusion perpetua.
2. In Criminal Case No. 97-159 185, appellant is convicted of statutory rape under Article 335 of the
Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua.
3. In Criminal Case No. 97-159186, appellant is convicted of statutory rape under Article 335 of the
Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua.
4. In Criminal Case No. 97-159187, appellant is convicted of simple rape under Article 335 of the Revised
Penal Code and sentenced to suffer the penalty of reclusion perpetua.
For each count of rape, appellant is ordered to pay complainant Jessica Castro P50,000 as moral damages, P50,000
as civil indemnity and P25,000 as exemplary damages, or a total of P500,000. Costs against appellant.
SO ORDERED.
Puno, (Chairman), Panganiban, Sandoval-Gutierrez, and Carpio-Morales, JJ., concur.

12.cospiracy

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. 131926 & 138991 June 18, 2003
PEOPLE OF THE PHILIPPINES, Appellee,
vs.
MICHAEL U. PAGALASAN alias "Mike," RONNIE CABALO alias "Romy, ALADIN CABALO, FERDINAND
CORTEZ, a JOHN DOE identified only as FERNANDO, and a PETER DOE identified only as "Bong,"Accused.
MICHAEL U. PAGALASAN alias "Mike," Appellant.
D E C I S I O N
CALLEJO, SR., J.:
This is an automatic review of the Decision
1
of the Regional Trial Court of General Santos City, Branch 35,
convicting appellant Michael U. Pagalasan of two counts of kidnapping for ransom of George Lim and his 10-year-
old son Christopher Neal Lim and sentencing him to double death.
The Antecedents
The Spouses George and Desiree Lim and their three young children, one of whom was 10-year-old Christopher
Neal Lim, resided at Villa Consuelo Subdivision, General Santos City. The spouses hired a security guard,
Ferdinand Cortez, from the Valiant Security Agency to provide security services to the family. On September 4,
1994, at 11:00 p.m., the spouses and their children were in the masters bedroom watching television. The couples
housemaid, Julita Sarno, was in the kitchen. She heard knocks on the kitchen door. Thinking that it was Ferdinand,
she opened the door. Four men, about 55" to 56" tall, each armed with handguns, two of whom were holding hand
grenades, barged into the kitchen. The four intruders wore bonnets over their faces. With them was Ferdinand,
whose hands were tied behind his back. When asked by the masked men where her employers were, Julita
responded that they were in their bedroom. On orders of the intruders, she knocked on the bedroom door. When
Georges daughter opened the door, three of the masked men barged into the room, while the fourth masked man
remained in the sala of the house.
2
The three masked men shouted to George and Desiree: "Walang mangyayari sa
inyo basta ibigay ninyo ang kailangan namin." (Nothing will happen to you provided you give us what we
want.)
3
They ransacked the house, getting cash and valuables. The masked men gave Desiree a handwritten
note,
4
and dragged George and Christopher Neal Lim out of the bedroom through the sala to the garage, where
Georges Nissan car was parked for the night. George saw Ferdinand in the sala with his hands tied behind his back.
One of the masked men ordered George to hand over the key to his vehicle, to board the car and occupy the back
seat along with Christopher. Father and son did as they were told. Two of the masked men positioned themselves on
either side of George and Christopher. The third man drove the car, while the fourth sat on the passengers seat
beside the driver. The car cruised along the national highway. When the car was nearing the Gambalan Kitchenette,
George and Christopher were blindfolded. The masked men told them that they would be brought to Polomolok.
After about fifteen minutes, the car stopped at Sitio Tupi. The two men who were seated at the back and the masked
man seated beside the driver alighted from the car, bringing Christopher with them. George was transferred to the
front seat beside the driver. George was told that he would be transported to Maasim.
In the meantime, SPO2 Federico Pao, the duty officer of Police Precinct No. 2, received a radio report that George
Lim and his son Christopher had been kidnapped. Police investigators were dispatched to the Lim residence to
conduct an on-the-spot investigation. They brought Ferdinand and Julita to the police station for investigation. SPO2
Renato Daga-as, SPO2 Datur Villanueva and SPO1 Alimuddin Timbao were directed to establish a mobile
checkpoint at the intersection of the national highway and a dirt road (Espina Road). The three policemen boarded a
Tamaraw mobile car and parked it at the said intersection. At about thirty meters from the checkpoint, the masked
driver of the Nissan vehicle saw the police car. Instead of running the car through the checkpoint, the driver stopped
and switched off its headlights. He removed his bonnet and Georges blindfold, warning the latter not to make any
false move. George looked at the driver, who turned out to be the appellant Michael Pagalasan.
The three police officers approached the car. Daga-as went to the right side of the car beside the passenger seat,
while Villanueva went to the left side, near the drivers seat. For his part, Timbao proceeded to the cars rear end.
Daga-as and Villanueva identified themselves to George and Michael as police officers on the lookout for a certain
George Lim and his son who had been kidnapped in General Santos City. Daga-as inquired from George what his
name was, and George replied that he was Albert Lim. The driver identified himself as Michael Pagalasan. George
gave a false first name because he was afraid Michael might shoot him. Daga-as noticed that Georges fingers were
trembling. Villanueva knocked at the door on the drivers side, and tried to open the same, but it was locked. When
Michael himself opened the door, Villanueva pulled him out of the vehicle and brought him to the mobile car.
Michael was suddenly in the custody of the policemen. George then identified himself as one of the kidnapped
victims. He also told the policemen that his son was still with the other kidnappers. The policemen thereafter
searched the Nissan car and found a .38 caliber
5
handgun with six live bullets in its chamber
6
and a grenade under
the drivers seat.
7
The policemen brought Michael and George to the police station where Ferdinand was being
interrogated by police investigators. Ferdinand told George that he had nothing to do with the kidnapping, but before
he could explain further, he was whisked into the investigation room. After giving a sworn statement to the police
investigator, George was allowed to go home. Desiree gave George the handwritten letter earlier given to her by the
kidnappers before they left the house that evening. In the letter, the spouses were warned not to coordinate with the
military, nor to take any action in connection with the kidnapping without their knowledge or consent. They were
also informed that the malefactors would communicate with the couple, whether by letter or through the telephone
only through "MUBARAK II or 2."
8
Julita executed an affidavit in connection with the kidnapping.
9

Police Inspector Antonio Evangelista ordered SPO4 Recio Aniversario to conduct a custodial investigation on
Michael. Recio asked Michael if he wanted to execute an affidavit, and Michael replied that he was going to execute
one. The police investigator inquired if he knew of any lawyer, to which Michael replied in the negative. The police
investigator then suggested Atty. Tomas C. Falgui, a private practitioner, as his counsel. When Michael agreed, the
police investigator phoned the lawyer, requesting the latter to assist Michael while undergoing custodial
investigation. The lawyer agreed and forthwith proceeded to the police station. Michael gave his confession under
custodial investigation with the assistance of Atty. Falgui.
10

In his confession, Michael admitted that upon orders of Ronnie Cabalo, he and three other men, Aladin (Ronnies
brother), a Muslim known as Ferdinand, and Bong (a resident of Purok Islam), had kidnapped George and his son
Christopher. Ronnie Cabalo instructed Michael to use Georges vehicle to transport father and son to the banana
plantation where Aladin, Ferdinand and Boy would alight with Christopher, and to thereafter return George to his
house. Aladin had given him a handgun for his use. Ferdinand Cortez was in cahoots with them. He was at first
reluctant to obey Ronnie, but relented when he was told not to be afraid and to use the grenade in case of trouble.
George told him that he had already given money to Aladin, and that Michaels companions had taken some pieces
of jewelry from him and his wife before they left the Lim residence.
In the light of Michaels confession, farmer Hadji Aladin Malang Cabalo, Ronie Puntuan and Fernando Quizon were
arrested and detained at Camp Fermin Lira Barracks, General Santos City. In the meantime, on September 6, 1994,
George received another handwritten letter, ordering the release of Michael and Ronie Puntuan because they were
innocent, and demanding P3,000,000 for Christophers release.
11

On September 9, 1994, George received another handwritten letter dated September 9, 1994, this time from
"MUBARAK II or 2" informing him and his wife that the kidnappers did not want the military to be involved nor
innocent people to be prejudiced. The spouses were also warned that their son would not be released alive unless
Ronie Puntuan was freed in three days.
12
On the same day at 3:25 p.m., Ronie Puntuan, through counsel, filed a
motion with the MTC praying that he be transferred from the Camp Fermin Lira Barracks to the General Santos City
Jail.
13

In the morning of the following day, September 10, 1994, Christopher was rescued by policemen without any
ransom being paid. On September 13, 1994, George executed a sworn statement relating to the incidents that
happened from September 4, 1994 to September 10, 1994.
14

Michael was charged with kidnapping for ransom and violation of PD 1866 before the Municipal Trial Court (MTC)
of General Santos City.
15

During the initial stage of the preliminary investigation by the MTC on September 6, 1994, Atty. Falgui appeared as
Michaels counsel and testified on what transpired immediately before, during and after the custodial investigation,
including Michaels execution of his extrajudicial confession.
16
Michael was also placed on the witness stand and,
with the assistance of counsel, testified on his extrajudicial confession. He affirmed the veracity of the contents of
the said confession.
17
Subsequently, Michael, through his mother, secured the services of Atty. Emmanuel V.
Fontanilla. On September 12, 1994, Michael executed an affidavit withdrawing his September 5, 1994 extrajudicial
confession, in which he stated that: (a) he was not assisted by counsel of his own choice when he executed the
extrajudicial confession; and (b) Ronie Puntuan, who was arrested and detained, was not Ronnie Cabalo.
18
Michael
also executed a counter-affidavit where he denied the accusations against him, and clarified that he was forced and
intimidated into making his September 5, 1994 confession, and he was not provided with counsel of his own choice
during custodial investigation. His constitutional rights under custodial investigation were allegedly not sufficiently
explained to him.
19
He filed the said affidavits with the MTC during the preliminary investigation.
On September 23, 1994, the MTC issued a resolution finding probable cause for charging the accused with
kidnapping for ransom. The Office of the City Prosecutor conducted a reinvestigation of the case. On October 4,
1994, the Office of the City Prosecutor issued a resolution ordering the release of Hadji Aladin Malang Cabalo on
the ground that he was not the Aladin Cabalo referred to by Michael in his confession.
20

An Information for violation of PD 1866 was filed against Michael on October 17, 1994 with the Regional Trial
Court of General Santos City, Branch 22, docketed as Criminal Case No. 11062. On November 3, 1994, Michael,
Ronnie Cabalo, Aladin Cabalo, Ferdinand Cortez, a certain John Doe identified as Fernando, and Peter Doe were
charged with kidnapping for ransom in an Information, docketed as Criminal Case No. 11098, which reads:
That on or about September 4, 1994, in General Santos City, Philippines, within the jurisdiction of this Honorable
Court, the said accused, conspiring, and confederating together and mutually helping each other, did then and there
willfully, unlawfully and feloniously kidnap George Lim, and his ten-year-old son, Christopher Neal Lim, for the
purpose of extorting ransom from the said victims.
21

The cases were raffled to Branch 22 of the Regional Trial Court. When arraigned in Criminal Case No. 11062 for
Violation of PD 1866, Michael pleaded not guilty. On February 6, 1995, Michael, Ferdinand and Fernando Quizon
were arraigned in Criminal Case No. 11098 and pleaded not guilty.
22
Ronnie Cabalo and Aladin Cabalo remained at-
large. On August 24, 1995, the judge hearing the cases inhibited himself. Both cases were re-raffled, assigned to,
and were tried jointly by Branch 35 of the Regional Trial Court.
During the trial, Michael, through counsel, admitted the truth of the contents of the affidavit executed by Julita
Sarno.
23
Michael also executed an affidavit on December 5, 1995 alleging inter alia that he was forced at gunpoint
by Boy and Aladin to barge into the Lim residence and drive the latters car, and that he did not know Fernando
Quizon.
24
After the prosecution had presented all its witnesses, it filed a formal offer of its documentary evidence
including Michaels December 15, 1995 Sworn Statement and his confession.
25
Michael did not file any comment or
opposition to the said offer. On May 3, 1996, the trial court issued an order admitting the prosecutions documentary
evidence, including Michaels confession.
26
After the prosecution had rested its case, Fernando Quizon filed a
demurrer to evidence in Criminal Case No. 11098. On July 2, 1996, the court issued an order granting the demurrer
to evidence of the said accused and acquitted him of the charge.
27

The Defense and Evidence of the Accused
Ferdinand Cortez denied kidnapping George and Christopher. He testified that he had been employed as a security
guard by the Valiant Security Agency. He was assigned by the agency to protect George Lim and his family. On the
evening of September 4, 1994, Ferdinand was washing Georges car in the garage. The house was surrounded by a
10-foot wall, and the gate was locked. Ferdinand was shocked when masked men, armed with handguns, suddenly
arrived. They poked their guns at him, maltreated him, and tied his hands behind his back. The masked men knocked
at the door of the house and when the housemaid Julita Sarno opened it, the men dragged Ferdinand towards the
entrance, to make it appear that he was the one knocking. The masked men then barged into the sala and tied Julitas
hands. Ferdinand claimed he never met any of the kidnappers before September 4, 1994. He was puzzled why he
was being implicated in the case.
For his part, Michael testified that he was a Muslim, 19 years of age, and an elementary school graduate. He made a
living as a conductor of his uncles jeepney. At night, the jeepney was parked in Tambler, and it was where he
usually slept. On the evening of September 4, 1994, at about 9:00 p.m., he was in their house at Purok Islam public
market, General Santos City. His friend Bong arrived, and invited him for a stroll and to accompany the latter to get
a motorcycle. Michael agreed. They took a tricycle and arrived at the Villa Consuelo Subdivision. Michael was
surprised when the tricycle stopped near the gate of the Lim residence and masked men suddenly appeared, poking
their guns at him. Bong fled, leaving Michael alone to fend for himself. The masked men ordered Michael to drive a
car, and warned him that if he refused, he would be killed. Momentarily, one of the men emerged from the house,
with George Lim in tow. George gave the key to his Nissan car to one of the kidnappers, who in turn handed it over
to Michael. The men forced George and his son Christopher to board the car. Father and son were seated between
two masked men. Afraid for his life, Michael was forced to drive the car with one of the kidnappers pointing a gun
at him, seated to his right at the passengers side. The kidnappers ordered Michael to drive the car towards the
direction of Barangay Ligaya.
When the car reached a dark portion of the road in Barangay Ligaya, three of the men alighted, bringing Christopher
with them. Michael then pleaded to George to bring him first to Tambler, where the jeepney of his uncle was parked.
Michael wanted to sleep there instead of going home. George agreed, and drove the car himself through Barangay
Makar. George told Michael that they had to travel along Espina road, a dirt road, instead of the regular road
because they might encounter policemen, and Christopher might be killed by his kidnappers. However, the car had
to stop at the intersection of the national highway and Espina Road when George saw policemen and the mobile
police car parked at the intersection.
Michael was arrested by the police, blindfolded, and brought to the mobile car where he was also mauled. His head
was banged against the sides of the mobile car. At the precinct, Michael was mauled anew by the policemen. It was
only after he had given his statement to a police investigator that Atty. Falgui arrived and told Michael, "I am your
lawyer."
28
Atty. Falgui instructed Michael to tell the whole truth.
29
When his mother Camaria Opong visited him, he
told her that he had been blindfolded and mauled at the station, and that because of this, his body ached. She saw a
big hump in his head. On September 8, 1994, she secured the services of Atty. Fontanilla as counsel of her son. The
lawyer went to the City Jail and talked to Michael. Michael showed the lawyer the contusions and bruises on his
body, and the scratches on his neck. Michael told the lawyer that he had been maltreated by an inmate at the
detention cell. He also narrated that he knew nothing about the kidnapping and that he was only hired by somebody
to drive a car. Michael assured the lawyer that he was not aware of the purpose of the culprits in kidnapping George
and Christopher. On September 9, 1994, Atty. Fontanilla executed an affidavit reiterating the information Michael
conveyed to him.
30
On September 16, 1994, Michael filed an urgent motion for medical check-up, which the court
granted.
31

Dra. Virginia Ramirez, Officer-In-Charge of the City Integrated Health Services, examined Michael on September
22, 1994 and found him suffering from myalgia residual or muscle pains due to mauling, which she surmised took
place about one week to ten days before the examination. She issued a medical certificate of the said examination.
32

On September 24, 1997, the trial court rendered judgment acquitting Ferdinand Cortez and convicting Michael of
kidnapping for ransom, the decretal portion of which reads:
JUDGMENT
WHEREFORE, premises considered, the accused is hereby sentenced as follows:
In Criminal Case No. 11062 for failure of the prosecution to prove the accusation against the accused Michael
Pagalasan beyond reasonable doubt, he is hereby ACQUITTED of the crime charged.
In Criminal Case No. 11098, the accused Michael Pagalasan is hereby found guilty of the crime of kidnapping for
ransom as defined and penalized under Article 267 as amended by Section 8 of Republic Act 7659, and there being
no modifying circumstance to consider, he is sentenced to suffer the EXTREME PENALTY OF DEATH insofar as
the case of George Lim is concerned.
The same penalty of death shall also be imposed against Michael Pagalasan in the case of Christopher Neal Lim who
was kidnapped on the same occasion and was released only on the sixth day after his captivity.
The case of Ferdinand Cortez, for lack of sufficient evidence to convict him, he is hereby ACQUITTED of the crime
charged.
SO ORDERED.
33

The trial court ruled in Criminal Case No. 11098 that with or without the confession of Michael, the prosecution
adduced proof beyond reasonable doubt that he, in conspiracy with three others, kidnapped George and Christopher.
It found the testimony of George straightforward and positive, credible and entitled to full probative weight. The
trial court sentenced Michael to double death on its finding that he and his cohorts kidnapped George and
Christopher for the purpose of extorting ransom. It disbelieved Michaels confession implicating Ferdinand Cortez,
and acquitted the latter for failure of the prosecution to prove his guilt beyond reasonable doubt. The trial court
likewise acquitted Michael in Criminal Case No. 11062.
Michael, now the appellant, asserts that:
I
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT FOR THE CRIME OF
KIDNAPPING FOR RANSOM OF CHRISTOPHER NEAL LIM DESPITE THE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.
II
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT FOR THE CRIME OF
KIDNAPPING FOR RANSOM OF ONE GEORGE LIM WITHOUT ANY BASIS IN FACT AND IN LAW.
III
THE TRIAL COURT ERRED IN NOT CONSIDERING THE DEFENSE INTERPOSED BY THE ACCUSED-
APPELLANT AND IN GIVING CREDENCE TO THE INCONSISTENT TESTIMONY OF GEORGE LIM.
34

The appellant is guilty of
kidnapping Christopher
under Article 267 of the
Revised Penal Code.
On the first assignment of error, the appellant avers that the prosecution failed to prove his guilt beyond cavil of
doubt for the crime of kidnapping Christopher. Georges testimony that the gun and hand grenade
35
were found in
the car, under the seat beside the driver is inconsistent with his own statement before the police investigator that the
said gun and grenade were found in the appellants possession; hence, the testimony of George is incredible and
barren of probative weight. The case for the prosecution was enfeebled by its failure to present Christopher to testify
on his kidnapping and to corroborate the testimony of his father. The failure of the prosecution to present
Christopher as a witness raised the presumption that if he had been so presented, he would have testified on matters
adverse to the prosecution. For its part, the Office of the Solicitor General contends that the testimony of George, its
principal witness, as well as those of its other witnesses, is sufficient to prove, beyond reasonable doubt, that the
appellant conspired with three others in kidnapping Christopher for ransom. There was no need for the prosecution
to present Christopher to testify on his kidnapping, as his testimony would be merely corroborative of his fathers
account of events.
The contention of the appellant is barren of merit.
Article 267 of the Revised Penal Code as amended by Republic Act No. 7659 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. (As amended by RA No. 7659).
For the accused to be convicted of kidnapping, the prosecution is burdened to prove beyond reasonable doubt all the
elements of the crime, namely: (a) the offender is a private individual; (b) he kidnaps or detains another, or in any
manner deprives the latter of his liberty; (c) the act of detention or kidnapping must be illegal; and (d) in the
commission of the offense any of the following circumstances is present: (1) the kidnapping or detention lasts for
more than three days; (2) it is committed by simulating public authority; (3) any serious physical injuries are
inflicted upon the person kidnapped or detained or threats to kill him are made; or (4) the person kidnapped or
detained is a minor, female, or a public officer.
36
If the victim of kidnapping and serious illegal detention is a minor,
the duration of his detention is immaterial. Likewise, if the victim is kidnapped and illegally detained for the
purpose of extorting ransom, the duration of his detention is immaterial.
The essential elements for this crime is the deprivation of liberty of the victim under any of the above-mentioned
circumstances coupled with indubitable proof of intent of the accused to effect the same.
37
There must be a
purposeful or knowing action by the accused to forcibly restrain the victim coupled with intent.
38

Judge Learned Hand once called conspiracy "the darling of the modern prosecutors nursery."
39
There is conspiracy
when two or more persons agree to commit a felony and decide to commit it.
40
Conspiracy as a mode of incurring
criminal liability must be proven separately from and with the same quantum of proof as the crime itself. Conspiracy
need not be proven by direct evidence. After all, secrecy and concealment are essential features of a successful
conspiracy. Conspiracies are clandestine in nature. It may be inferred from the conduct of the accused before, during
and after the commission of the crime, showing that they had acted with a common purpose and
design.
41
Paraphrasing the decision of the English Court in Regina v. Murphy,
42
conspiracy may be implied if it is
proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each
doing a part so that their combined acts, though apparently independent of each other, were, in fact, connected and
cooperative, indicating a closeness of personal association and a concurrence of sentiment.
43
To hold an accused
guilty as a co-principal by reason of conspiracy, he must be shown to have performed an overt act in pursuance or
furtherance of the complicity.
44
There must be intentional participation in the transaction with a view to the
furtherance of the common design and purpose.
45

The United States Supreme Court in Braverman v. United States,
46
held that the precise nature and extent of the
conspiracy must be determined by reference to the agreement which embraces and defines its objects. For one thing,
the temporal dimension of the conspiracy is of particular importance. Settled as a rule of law is that the conspiracy
continues until the object is attained, unless in the meantime the conspirator abandons the conspiracy or is arrested.
There is authority to the effect that the conspiracy ends at the moment of any conspirators arrest, on the
presumption, albeit rebuttable, that at the moment the conspiracy has been thwarted, no other overt act contributing
to the conspiracy can possibly take place, at least as far as the arrested conspirator is concerned.
47
The longer a
conspiracy is deemed to continue, the greater the chances that additional persons will be found to have joined it.
There is also the possibility that as the conspiracy continues, there may occur new overt acts. If the conspiracy has
not yet ended, then the hearsay acts and declarations of one conspirator will be admissible against the other
conspirators and one conspirator may be held liable for substantive crimes committed by the others.
48

Each conspirator is responsible for everything done by his confederates which follows incidentally in the execution
of a common design as one of its probable and natural consequences even though it was not intended as part of the
original design.
49
Responsibility of a conspirator is not confined to the accomplishment of a particular purpose of
conspiracy but extends to collateral acts and offenses incident to and growing out of the purpose
intended.
50
Conspirators are held to have intended the consequences of their acts and by purposely engaging in
conspiracy which necessarily and directly produces a prohibited result that they are in contemplation of law, charged
with intending the result.
51
Conspirators are necessarily liable for the acts of another conspirator even though such
act differs radically and substantively from that which they intended to commit.
52
The Court agrees with the ruling
of the Circuit Court of Appeals (Second District) per Judge Learned Hand in United States v. Peoni
53
"that nobody is
liable in conspiracy except for the fair import of the concerted purpose or agreement as he understood it; if later
comers change that, he is not liable for the change; his liability is limited to the common purpose while he remains
in it." Earlier, the Appellate Court of Kentucky in Gabbard v. Commonwealth
54
held that:
The act must be the ordinary and probable effect of the wrongful acts specifically agreed on, so that the connection
between them may be reasonably apparent, and not a fresh and independent project of the mind of one of the
confederates, outside of or foreign to the common design, and growing out of the individual malice of the
perpetrator.
Equally persuasive is the pronouncement of the Circuit Court of Appeals (Second District) in United States v.
Crimms,
55
that it is never permissible to enlarge the scope of the conspiracy itself by proving that some of the
conspirators, unknown to the rest, have done what was beyond the reasonable intendment of the common
understanding. This is equally true when the crime which the conspirators agreed upon is one of which they
severally might be guilty though they were ignorant of the existence of some of its constitutive facts. Also, while
conspirators are responsible for consequent acts growing out of the common design they are not for independent acts
growing out of the particular acts of individuals.
56

In this case, the evidence on record inscrutably shows that the appellant and his three cohorts were armed with
handguns; two of them had hand grenades, and all of them had masks over their faces. They gained entry into the
Lim residence after overpowering the security guard Ferdinand and the housemaid Julita, and tying their hands
behind their backs. One of the masked men remained in the sala, while the three others barged into the bedroom of
George and Desiree, and kidnapped George and his ten-year-old son Christopher. The appellant and his cohorts
forced father and son to board Georges car. The appellant drove the car, dropped off Christopher and his cohorts at
Sitio Tupi, and drove on with George in the car towards the direction of Maasim.
The collective, concerted and synchronized acts of the appellant and his cohorts before, during and after the
kidnapping constitute indubitable proof that the appellant and his three companions conspired with each other to
attain a common objective: to kidnap George and Christopher and detain them illegally. The appellant was a
principal by direct participation in the kidnapping of the two victims.
The trial court found the testimony of George straightforward and positive, and entitled to credit and full probative
weight.
57
The legal aphorism is that the findings of facts of the trial court, its calibration of the testimonies of
witnesses and of their probative weight, its conclusions anchored on its findings are accorded high respect by the
appellate court, if not conclusive effect, because of the unique advantage of the trial court of observing at close
range the demeanor, conduct and deportment of witnesses as they regale the trial court with their testimonies.
58
It is
true that the appellate court is not bound by the findings and conclusions of the trial court if the latter ignored,
misunderstood, misapplied or misinterpreted cogent facts and circumstances, which, if considered, would change the
outcome of the case.
59
This ruling, however, is inapplicable in the case at bar, since the appellant failed to establish
that the trial court erred in this wise.
George testified that when the policemen found the gun and grenade
60
inside his car, the appellant was already at the
police station.
61
However, in his September 13, 1994 Affidavit,
62
George stated that the policemen found the gun
when the appellant was frisked, while the grenade was spotted under the passengers seat, beside the driver. This
seeming inconsistency between the two statements does not discredit his testimony nor his credibility for the
following reasons: (a) it is of judicial knowledge that affidavits being taken ex parte are almost always incomplete
and often inaccurate and are generally inferior to the testimony of a witness in open court;
63
(b) the credibility of
Georges testimony cannot be impeached by the inconsistent statements contained in his sworn statement because
the said statement was not admitted in evidence; and Section 34, Rule 132 of the Revised Rules of Evidence
provides that the Court shall not consider evidence which has not been formally offered; besides, George was not
confronted with his sworn statement and accorded an opportunity to explain the inconsistency;
64
(c) the
inconsistency refers to trivial, minor and collateral matters and not to the substance of his testimony. Such minor
inconsistency even enhances its veracity as the variances erase any suspicion of a rehearsed testimony.
65
A truth-
telling witness is not always expected to give an error-free testimony, considering the lapse of time and the treachery
of human memory.
66

Neither is the case for the prosecution impaired by the failure of the prosecution to present Christopher as its
witness. It bears stressing that Georges testimony is corroborated by Julita and the three arresting officers. Besides,
case law has it that the testimony of a single witness, if positive and credible, is sufficient to sustain a judgment of
conviction.
67
The law does not require the testimonies of at least two witnesses for the conviction of an accused for
kidnapping and serious illegal detention. The prosecution has the discretion to decide on who to call as witness
during the trial, and its failure to present a particular witness does not give rise to the presumption that evidence
willfully suppressed would be adverse if withheld, where the evidence is at the disposal of the appellant and is
merely cumulative or corroborative.
68
In this case, the testimony of George is, by itself, independently of
Christophers testimony, sufficient proof of the guilt of the appellant. George had personal knowledge of the facts
and circumstances of the kidnapping, as he himself had been kidnapped along with his young son. His failure to
testify on where Christopher was detained after the three cohorts of the appellant had alighted from the car with
Christopher, and the circumstances surrounding the rescue do not weaken the case of the prosecution, as the said
facts and circumstances had occurred after the crime of kidnapping had already been a fait accompli.
The prosecution failed to prove
that in kidnapping George and
Christopher, the appellant and
his cohorts intended to extort
ransom.
The trial court convicted the appellant of kidnapping George and Christopher for ransom and sentenced him to
double death on its finding that the appellant and his co-accused conspired to extort ransom for the release of the
victims. For his part, the appellant contends that the prosecution failed to prove the element of extorting ransom. The
appellant argues that he cannot be held liable for kidnapping for ransom, even if after his arrest on September 4,
1994 his co-conspirators actually demanded ransom for Christophers release. The prosecution failed to prove that
he had knowledge of and concurred with the said demand.
The Court agrees with the appellant. The second paragraph of Article 267 of the Revised Penal Code reads:
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.
The provision is pursuant to Rep. Act No. 1084 approved on June 15, 1984 derived from the so-called "Lindbergh
Law" in the United States, approved on June 22, 1932, as amended on May 13, 1934.
To warrant the imposition of the death penalty for the crime of kidnapping and serious illegal detention for ransom,
the prosecution must prove beyond reasonable doubt the following: (a) intent on the part of the accused to deprive
the victim of his liberty; (b) actual deprivation of the victim of his liberty; (c) motive of the accused, which is
extortion of ransom from the victim or any other person. In kidnapping or serious illegal detention for ransom, the
purpose of extorting ransom is a qualifying circumstance which must be alleged in the Information and proved by
the prosecution as the crime itself by words and overt acts of the accused before, during and after the kidnapping and
detention of the victim. Neither actual demand for nor actual payment of ransom is necessary for the crime to be
committed.
69
Although kidnapping for a certain purpose is a qualifying circumstance, the law does not require that
the purpose be accomplished.
70
Ransom employed in the law is so used in its common or ordinary sense: a sum of
money or other thing of value, price, or consideration paid or demanded for redemption of a kidnapped or detained
person, a payment that releases from captivity.
71
It may include benefits not necessarily pecuniary which may accrue
to the kidnapper or a third person as a condition for the release of the victim.
72

In this case, the prosecution was able to prove beyond reasonable doubt that the appellant conspired with three
others to kidnap the victims. However, it failed to prove that they intended to extort ransom from the victims
themselves or from some other person, with a view to obtaining the latters release. The kidnapping by itself does
not give rise to the presumption that the appellant and his co-conspirators purpose is to extort ransom from the
victims or any other person.
The only evidence adduced by the prosecution to prove the element of extorting ransom are the three handwritten
letters: the first was received by Desiree on September 4, 1994, while the second and third letters were received by
George on September 6 and 9, 1994, respectively.
The handwritten letter received by Desiree on September 4, 1994, "first letter" for brevity, reads:
Para Sa Inyo Mr. & Mrs. Lim,
Una wag na wag kayong gumawa ng hakbang na hindi namin alam o gusto, lalong-lalo na sa pakikipag-usap sa
militar o magkoordinate sa militar ay hindi namin gustong mangyari ang ganon mga sistem. Ang pangalawa, wag na
wag kayong tumanggap ng negotiator na walang palatandaan na galing sa amin, pakiusap lang yon na dapat ninyong
sundin, madidisgrasya ang aming dala kung kayoy magkakamali ng hakbang.
Maliwanag sana sa inyo ang aming mga salaysay.
Note
Palatandaan na galing sa aming hakbang ay ito
MR. MUBARAK II or 2
Sulat man o telephone
73

The letter received by George on September 6, 1994, "second letter" for brevity, reads:
Ronie Puntuan
Michael Pagalasan
Mr. G. Lim palayain ninyo ang suspek ninyo. Wala silang kasalanan bago natin tapusin ang usapan tatlong milyong
piso (3,000,000) katumbas ng kalayaan ng mahal ninyong anak. Paalisin ang mga sundalo. Kailangan ang Black Out
News. Huwag kang magkakamali Mr. Lim. Kunting sipyot mo patay ang anak mo. Isang araw lamang ang tagal
namin sa inyo.
(Sgd.)
74

The handwritten letter received by George on September 9, 1994, "third letter" for brevity, reads:
Para sayo Mr. & Mrs. Lim,
Mr. Lim, gusto ko lang ipaabot sayo ang maikli kong kataga. Unang-una, ayaw namin na mga asong militar na
makialam. Pangalawa, ayaw namin sa grupo na idamay ang tao na walang-alam. Alalahanin mo mabuti lahat ng
mga kataga na iniwan ko sayo, Mr. Lim. Ang taong dinampot ng militar sa purok islam na si Ronie, ang taong yan
walang conection (sic) sa grupo, sa madaling usapan, Mr. Lim, alalahanin mo ang anak mo sa oras na tatlong araw
na taong yan hindi makalabas. Ang isipin mo ang anak mo hindi rin makalabas hanggat sa mabulok sa lupa
(maliwanag).
(Sign)
Palatandaan
MUBARAK II - 2
75

As gleaned from the three letters, there was no demand for ransom in exchange for George and Christophers
liberty. While there is a demand for ransom of P3,000,000 in the second letter, and a demand for the release of
Ronie Puntuan within three days in the third letter, the said demands are in consideration of Christophers release
from custody, and not that of George.
Even then, the prosecution failed to adduce evidence that the second letter demanding ransom in the amount
ofP3,000,000 for the release of Christopher actually came from the appellant and his co-conspirators. It bears
stressing that in the first letter, the kidnappers made it clear to the couple that only those communications, whether
by letter or by telephone, bearing the name "MR. MUBARAK II or 2" came from them:
Note
Palatandaan na galing sa aming hakbang ay ito
MR. MUBARAK II or 2
Sulat man o telephone
76

The second letter received by George was signed by an unidentified person. It was not stated that the letter came
from "MUBARAK II-2." That the second letter could not have come from the appellant and his cohorts is buttressed
by the fact that the third letter, which came from "MUBARAK II-2," does not even mention any demand for ransom
in the amount of P3,000,000 for Christophers release.
The Court can only surmise, but it is possible that the signatory and sender of the second letter could have been
acting independently of the appellant and his co-conspirators in order to profit from the kidnapping. It bears
stressing that the kidnapping of Christopher and George was already known when the appellant was arrested on
September 4, 1994, and the crime had already been reported to the police authorities. Persons other than the co-
conspirators of the appellant could have written the letter.
Since there is no evidence that the signatory and sender of the second letter is a co-conspirator of the appellant, the
latter is not bound by the said letter, conformably to Section 28, Rule 130 of the Revised Rules of Evidence which
reads:
Sec. 28. Admission by third party. The rights of a party cannot be prejudiced by an act, declaration, or omission of
another, except as hereinafter provided.
Even if it is assumed for the nonce that the second letter came from a co-conspirator, the same is not binding on the
appellant, absent evidence aliunde that he knew of and concurred with the said ransom demand. It bears stressing
that when George received the second letter on September 6, 1994, the appellant had already been arrested and
detained. The conspiracy forged by the appellant and his cohorts on or before September 4, 1994 had already ceased,
when on the said date, the appellant was arrested by the policemen and detained.
77

Neither is the third letter admissible in evidence against the appellant to prove that he conspired with others to
demand the release of Ronie Puntuan in consideration for Christophers freedom. The appellant and his cohorts
could not have planned to demand ransom for the release of Ronie Puntuan as early as September 4, 1994, the date
of the kidnapping: Ronie had not yet been arrested on this date. The appellant was arrested first, and Ronies
detention was only to follow. Furthermore, the third letter was sent to George on September 9, 1994. At that point,
the appellant had already been arrested by the policemen, and was already in jail. There is no evidence that while in
jail, the appellant had knowledge of and concurred with the said ransom demand. It may be reasonably inferred that
the appellants co-conspirators could have decided to demand Ronie Puntuans release as a consideration for
Christophers liberty, while the appellant was already languishing in jail. The said demand for ransom was a new
and independent project of the appellants co-conspirators, growing out of their own malice, without any a priori
knowledge on the part of the appellant or his post facto concurrence therewith. Indeed, the records show that on
September 9, 1994, the very day the co-conspirators sent the third letter to George, Ronie Puntuan through counsel
Atty. Jose Jerry L. Fulgar, also the counsel for the appellant, filed a motion with the MTC, praying that he be
detained at the General Santos City Jail:
WHEREFORE, premises considered, it is most respectfully prayed that an order be please issued directing that
accused Ronie Puntuan be please detained at General Santos City Jail with the instruction that the said accused be
separated from his co-accused as desired by the Police Officers.
78

That the appellant plotted with his co-conspirators to demand the release of Ronie Puntuan as a condition for
Christophers liberty is too far-fetched, considering that Ronie and the appellant had the same lawyer. Ronie
Puntuan himself, through his and the appellants counsel, prayed to the court that he be transferred from Camp
Fermin Lira Barracks to the General Santos City Jail.
The appellant is also guilty
of slight illegal detention of
George under Article 268
of the Revised Penal Code.
Aside from convicting the appellant of kidnapping Christopher, the trial court also convicted him of kidnapping
George under Article 267 of the Revised Penal Code. But the Office of the Solicitor General contends that the
appellant is guilty of another felony: slight illegal detention under Article 268 of the Revised Penal Code, because
none of the circumstances enumerated in Article 267 of the Revised Penal Code is present in the kidnapping and
detention of George. The prosecution may have failed to prove that the appellant and his co-conspirators intended to
extort ransom for Georges release; however, as a matter of substantive law, the appellant may be held guilty of two
separate crimes, although he and his co-conspirators kidnapped George and Christopher on the same occasion and
from the same situs. As a matter of procedural law, the appellant may be convicted of slight illegal detention under
the Information for kidnapping for ransom as the former is necessarily included in the latter crime.
The Court agrees with the Office of the Solicitor General. The appellant is guilty of slight illegal detention under
Article 268 of the Revised Penal Code which reads:
Art. 268. Slight illegal detention. The penalty of reclusion temporal shall be imposed upon any private individual
who shall commit the crimes described in the next preceding article without the attendance of any of the
circumstances enumerated therein.
The same penalty shall be incurred by anyone who shall furnish the place for the perpetration of the crime.
If the offender shall voluntarily release the person so kidnapped or detained within three days from the
commencement of the detention, without having attained the purpose intended, and before the institution of criminal
proceedings against him, the penalty shall be prision mayor in its minimum and medium periods and a fine not
exceeding seven hundred pesos. (As amended by Republic Act No. 18).
While the epigraph or title of the article mentions only slight illegal detention, kidnapping committed in connection
with the lower offense of slight illegal detention is also covered by the article.
79

The felony has the following essential elements:
1. That the offender is a private individual.
2. That he kidnaps or detains another, or in any other manner deprives him of his liberty.
3. That the act of kidnapping or detention is illegal.
4. That the crime is committed without the attendance of any of the circumstances enumerated in Art.
267.
80

The crime of slight illegal detention is consummated upon the occurrence of all the elements thereof. "A day," in the
last paragraph of Article 268 of the Revised Penal Code, should be understood as twenty-four hours, to be counted
from the deprivation of the liberty of the victim until the cessation thereof. As Cuello Calon put it: "El plazo de los
tres dias de veinte cuatro horas y desde el momento de la privacion de libertad si en que esta cesare."
81
The rescue or
escape of the victim within three days from his kidnapping and detention is not an exempting circumstance. The
voluntary release by the offender of the victim within three days from his detention, without the offender having
attained his purpose and before the institution of criminal proceedings against him for slight illegal detention, is not
an exempting circumstance; it merely serves to reduce the penalty to prision mayor in its maximum and medium
periods and a fine not exceeding P700.
In this case, the appellant is a private individual. George had been kidnapped and detained illegally by the appellant
and his cohorts, but only for less than a day. George regained his freedom after the appellant had been arrested at the
intersection of the national highway and Espina Road. There is no evidence that the appellant and his cohorts
kidnapped George for the purpose of extorting ransom for his release. There is likewise no evidence that they
inflicted any serious physical injuries on George, or simulated public authority, or threatened to kill him.
Furthermore, there is no evidence that the appellant and his cohorts intended to detain the victim for more than three
days.
Although the appellant and his co-conspirators kidnapped George and Christopher on the same occasion and from
the same situs, the appellant is guilty of two separate crimes: kidnapping under Article 267 of the Revised Penal
Code, and slight illegal detention under Article 268 of the Revised Penal Code. The appellant and his co-
conspirators were animated by two sets of separate criminal intents and criminal resolutions in kidnapping and
illegally detaining the two victims. The criminal intent in kidnapping Christopher was separate from and
independent of the criminal intent and resolution in kidnapping and detaining George for less than three days. In the
mind and conscience of the appellant, he had committed two separate felonies; hence, should be meted two separate
penalties for the said crimes: one for kidnapping under Article 267 of the Revised Penal Code and another for slight
illegal detention under Article 268 of the same code.
82
The felony of slight illegal detention is necessarily included
in the crime of kidnapping for ransom; thus, the appellant may be convicted of the former crime under an
Information for kidnapping for ransom.
83

PENALTIES FOR THE CRIMES
COMMITTED BY THE APPELLANT
The crimes committed by the appellant were aggravated by dwelling,
84
the victims having been kidnapped in their
house; by the use of motor vehicle,
85
the victims having been transported by the appellant from their house with the
use of Georges car; and by a band, the crime having been committed by the appellant and three co-
conspirators.
86
However, the Court cannot consider these aggravating circumstances in determining the proper
penalties for the said crimes, because the same were not alleged in the Information as mandated by Sections 8 and 9,
Rule 110 of the Revised Rules of Criminal Procedure.
87
Although the said rules took effect after the commission of
the crimes by the appellant, the same is favorable to the appellant; hence, should be applied retroactively.
88

The appellant is not entitled to the privileged mitigating circumstance under the second paragraph of Article 268 of
the Revised Penal Code
89
because he did not voluntarily release George within three days from the kidnapping.
George was recovered by the policemen at the intersection of the national highway and Espina Road.
The prescribed penalty for kidnapping under Article 267 of the Revised Penal Code as amended by Rep. Act No.
7659 is reclusion perpetua to death. There being no aggravating circumstance or modifying circumstance in the
commission of the crime, the proper penalty for the said crime is reclusion perpetua, conformably to Article 63 of
the Revised Penal Code. The prescribed penalty for slight illegal detention is reclusion temporal in its full period,
with a range of twelve years and one day to twenty years. To determine the minimum of the indeterminate penalty,
the penalty shall be reduced by one degree, prision mayor, which has a range of six years and one day to twelve
years. The minimum of the indeterminate penalty shall be taken from the full range of the penalty at the discretion of
the Court. The maximum of the indeterminate penalty shall be taken from the medium period of reclusion temporal,
conformably to Article 64, paragraph 1 of the Revised Penal Code. Hence, the appellant shall suffer an
indeterminate penalty of nine years and four months of prision mayor in its medium period as minimum, to sixteen
years and five months of reclusion temporal in its medium period as maximum.
CIVIL LIABILITIES OF THE APPELLANT
Although the prosecution adduced testimonial evidence that the appellant and his co-conspirators ransacked the
bedroom of the victims and took cash and valuables, the prosecution nevertheless failed to adduce any documentary
evidence to prove the amount of the said cash and the value of the jewelry. Hence, Spouses George and Desiree Lim
are not entitled to actual damages.
Under Article 2219, paragraph 5 of the New Civil Code, moral damages may be recovered. In this case, the
prosecution adduced testimonial evidence that for the crimes committed by the appellant and his co-conspirators,
Spouses George and Desiree suffered mental anguish, fright and serious anxiety caused by the kidnapping of George
and their son Christopher. Considering the factual milieu in this case, the Court believes that the said spouses are
entitled to moral damages in the amount of P100,000 for the kidnapping of Christopher, and the amount of P50,000
for the illegal detention of George. The appellant is also liable to the spouses for exemplary damages in the total
amount of P50,000 for the two crimes conformably with current jurisprudence.
90

IN LIGHT OF ALL THE FOREGOING, the Decision dated September 27, 1997 of the Regional Trial Court of
General Santos City, Branch 35, is AFFIRMED WITH MODIFICATIONS. Appellant Michael Pagalasan alias
"Mike" is found guilty of kidnapping under Article 267, paragraph 4 of the Revised Penal Code and there being no
modifying circumstances in the commission of the crime is hereby sentenced to suffer the penalty of reclusion
perpetua. Appellant Michael Pagalasan alias "Mike" is found guilty beyond reasonable doubt of the crime of slight
illegal detention under Article 268 of the Revised Penal Code and there being no modifying circumstances in the
commission of the crime is hereby sentenced to suffer an indeterminate penalty of from nine years and four months
of prision mayor in its medium period as minimum to sixteen years and five months of reclusion temporal in its
medium period as maximum. The said appellant is ordered to pay to Spouses George and Desiree Lim the total
amount of P150,000 as moral damages; and P50,000 as exemplary damages in the two cases.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, and Azcuna, JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 132895 March 10, 2004
PEOPLE OF THE PHILIPPINES, appellee,
vs.
ELIZABETH CASTILLO and EVANGELINE PADAYHAG, appellants.


D E C I S I O N


PER CURIAM:
Before us on automatic review is the Decision
1
of the Regional Trial Court of Paraaque, Branch 260, National
Capital Judicial Region, in Criminal Case No. 95-86, finding appellants Elizabeth Castillo ("Castillo") and
Evangeline Padayhag ("Padayhag") guilty of Qualified Kidnapping and Serious Illegal Detention
2
and sentencing
them to death.
The Information
3
charging Castillo, Padayhag and Imelda Wenceslao with the crime of kidnapping, reads:
That on or about March 1, 1995, in Paraaque, Metro Manila, Philippines, and within the jurisdiction of the
Honorable Court, said accused ELIZABETH CASTILLO and EVANGELINE PADAYHAG, conspiring
together, confederating, and mutually helping one another, did then and there willfully, unlawfully and
feloniously kidnap, carry away, and seriously detain HORACIO CEBRERO IV @ "Rocky", a five years
old child (sic), which kidnapping or serious detention lasted for more than three (3) days thereby depriving
him of his liberty, and which was committed for the purpose of extorting ransom from the parents of the
victim, to the damage and prejudice of the victim himself and his parents.
The said accused IMELDA CASTILLO WENCESLAO, without having participated in the said crime as a
principal, did then and there willfully, unlawfully and feloniously participated (sic) in the execution of the
crime by previous and simultaneous acts by allowing and furnishing the use of her residence where victim
Horacio Cebrero IV was kept knowing him to have been taken by principal accused Elizabeth Castillo and
Evangeline Padayhag without the consent of his parents.
CONTRARY TO LAW.
Upon arraignment on 10 May 1995, both Castillo and Padayhag initially pleaded guilty. However, on 18 May 1995,
Castillo and Padayhag withdrew their plea of guilt. They entered a plea of not guilty on 3 August 1995. Imelda
Wenceslao remains at large.
The prosecution submitted documentary evidence and presented eight witnesses, namely: (1) Horacio Cebrero IV
("Rocky"), the victim; (2) Rosanna Baria, the victims "yaya"; (3) Luis Cebrero, the victims father; (4) Sandra
Cebrero, the victims mother; (5) Staff Sgt. Alejandro Delena of the Philippine National Police ("PNP"); (6) Wivino
Demol, a member of the Armed Forces of the Philippines ("AFP") Intelligence Security Group, army surveillance
and search team; (7) Capt. Raniel Ramiro, also of the AFP Intelligence Security Group; (8) and Staff Sgt. Manual
Iglesias of the PNP.
The defense presented only two witnesses: Castillo and Padayhag themselves.
The Office of the Solicitor General ("OSG") summarized the prosecutions version of the incident in the appellees
brief, as follows:
On March 1, 1995, Rosanna Baria was employed as one of the household helpers of Mr. and Mrs. Luis De
Guzman Cebrero at their residence in Classic Homes, B. F. Paraaque, Metro Manila (p. 26, tsn, August 3,
1995). In the morning of said date, Femie, another housemaid of the Cebreros and Barias relative, bathed
and dressed up Rocky, the couples six year old son and afterwards advised Baria that someone, who was
also a Cebrero househelper, will fetch Rocky (p. 28, supra). At about 8:00 a.m., a tricycle arrived. On board
was a woman, whom Baria pointed to in court and who gave her name as Evangeline Padayhag (p.
26,supra). Baria assisted Rocky to board the tricycle. The tricycle brought Rocky and the woman, whom
Rocky pointed to in court and who gave her name as Evangeline Padayhag (p. 9, tsn, August 3, 1995), to a
nearby "Mcdonalds". Thereat, they were joined by another woman (p. 13, supra) whom Rocky pointed to
in court and who gave her name as Elizabeth Castillo (p. 9, supra). The three proceeded to a house far from
the "Mcdonalds" (p. 13, supra) where Rocky slept "four times" (p. 14, supra).
At about 5:30 p.m. of March 1, 1995, Luis Cebrero arrived home from work. When his son DJ arrived, he
informed his father that Rocky did not attend school. Luis Cebrero asked Baria (pp. 4-5, tsn, August 22,
1995) who told him that Rocky was fetched at home by a woman to attend a birthday party (p. 5, supra).
Informed thereof, Mr. Cebrero then called up his friends and went to the police station to report that his son
was missing (p. 9, supra).
At about 7:30 p.m. that night, Luis Cebrero received a telephone call from a woman saying, "Ibigay mo sa
akin ang ATM card mo o ang bata" (p. 10, supra). Luis replied, "Kailangan ko ang bata". The woman asked
how much money was in his ATM and Luis replied P40,000.00. Luis then requested to talk to his son but
the woman said, "Hindi puwede, malayo dito ang anak mo at tatawag na lang uli ako" (p. 10, supra).
Luis Cebrero decided to connect a tape recorder to his phone. On March 2, 1995, at about 7:20 p.m., his
phone rang. The caller was a woman telling him, "Bigyan mo ako nang isang million", to which he replied,
"Hindi ko kayang ibigay ang isang million". The caller told Luis that she will call back later on (pp. 11-
12,supra).
The Cebreros informed the authorities that two of their maids were hired from an agency, the General
Services, Inc. at Paraaque. Major Ordoyo of the Intelligence Security Group, Philippine Army (PA) sent
Sergeants Rempillo and Iglesias to the agency to verify this. The two were furnished by General Services,
Inc. with the personal data of the maids named Elizabeth Castillo and Jasmine Nuez (pp. 13-14, tsn,
March 12, 1996).
When the caller did not contact Luis Cebrero the following day, March 3, 1995, he instructed his wife to
raise some money. From the bank, Mrs. Cebrero withdrew P800,000.00 in P1,000.00 denomination. The
bank provided Mrs. Cebrero a list containing the serial numbers of the money withdrawn (pp. 15-
16, supra).
On March 4, 1995, at about 9:30 p.m., Luis Cebrero received a telephone call. The caller was a woman who
asked, "Ano nasa iyo na ba ang pera"? Luis answered, "Hindi ko kayang ibigay sa iyo ang halagang iyon,
kalahati lang ang kaya kong ibigay". The caller said, "Sige, puede na yan (p. 17, supra) and instructed Luis
Cebrero to be in Paco, Obando, Bulacan, alone, at about 2:00 a.m.; that at Paco, Obando, Bulacan, is a
"Farmacia Dilag" and beside it is a street which Luis must follow until he reaches the church called
"Sabadista" where he should drop the money (p. 18, supra). Luis Cebrero received another call on that same
night instructing him to stop in front of the Farmacia Dilag and walk on the street beside it going to a
chapel and to drop the money on the chapels terrace (p. 19, supra).
Informed of the place for the pay-off, on March 4, 1995, Major Ronnie Eleazar, Commanding Officer of
the Intelligence Security Group (ISG), Philippine Army, briefed his men on Rockys kidnapping and
assigned them their respective tasks in the stakeout they will undertake around the pay-off area (pp. 6-7 tsn,
January 30, 1996). At about 11:00 p.m. of March 4, 1995, Sgt. Alejandro Delena and his ISG team,
proceeded to Obando, Bulacan for the stakeout. After positioning themselves near the stakeout site, a car
arrived and stopped in front of the chapel. The man alighted and placed a bag in front of the chapel and
immediately left (p. 10, supra). After about forty (40) minutes, two women appeared, proceeded to where
the bag was dropped. On seeing the bag, the women laughed and left. After about two (2) minutes, the two
women returned, picked up the bag and immediately left (pp. 11-12, supra). The ISG team searched the
area around the drop-off place but the two women were nowhere to be found (p. 17, supra). In court, Sgt.
Delena pointed to and identified Castillo and Padayhag as the two women he saw in front of the chapel in
Obando, Bulacan and who, later on, picked up the bag dropped by Luis Cebrero (p. 12, supra).
Puzzled by the sudden disappearance of the two women, Sgt. Delena and his team remained at the stake-out
area. The team befriended the residents of the place, one of whom was a certain Joselito Torres who
claimed to be the former boyfriend of Elizabeth Castillo whom he recognized from the picture shown to
him by Sgt. Delena. Torres informed the ISG team that Castillo had already left for Mindanao. Sgt. Delena
immediately communicated the information, including the address of Gigi Padayhag in Navotas, to his
commanding officer (p. 19, supra).
At about 9:00 p.m. of March 5, 1995, Luis Cebrero was at home when a tricycle stopped in front of his
house. Somebody knocked at the door and when Luis Cebrero opened it, he saw his son, Rocky (pp. 23-24,
tsn, August 22, 1995).
On March 12, 1995, an ISG team headed by Sgt. Manuel Iglesias was dispatched to Navotas to locate
"Gigi" Padayhag at the address furnished by Sgt. Delena. The team found Padayhag who upon being
apprised of the kidnapping of Rocky Cebrero, voluntarily went with the ISG team to Camp Crame to clear
her name (p. 14, tsn, May 22, 1996).
Upon the instruction of the ISG, Sgts. Delena and Demo were ordered to proceed to Dipolog City to look
for Castillo (pp. 20-21, tsn, January 30, 1996). Sgt. Delena arrived in Dipolog City on March 13, 1996. He
was briefed and shown the area where Castillo could be found (p. 23, supra).
When Sgt. Demol arrived in Dipolog City, he and Sgt. Delena coordinated with the PNP stationed at
Barangay Tulong, Rizal, Zamboanga del Norte (p. 41, tsn, March 12, 1996). Thereat, Sgt. Demol requested
for the assistance of persons from Barangay Mitimos, where Castillo was believed to be hiding. The PNP
assigned them two barangay officials of Mitimos who, when shown the picture of Castillo, said that the
woman in the picture is in Barangay Mitimos (p. 46, supra).
Upon the request of the police, the two barangay officials conducted a daily surveillance on Castillo. On
March 18, 1995, Sgt. Demol reported to the ISG headquarters that Castillo was in Barangay Mitimos. In
turn, Sgt. Demol was advised that ISG will be sending him, through JRS Express, copies of the list of serial
numbers of the bills used as pay-off and a DOJ subpoena (p. 54, supra). Upon receipt of said documents,
Sgt. Demol applied for a search warrant (p. 58, supra) which was granted by the Dipolog City Regional
Trial Court on March 21, 1995 (p. 57, supra). The search warrant was shown to Elizabeth Castillo and her
father who signed the same (pp. 60-61, supra). The search yielded a black bag placed in a carton inside the
house (pp. 61-62) containing money in P1,000.00 bills in the total amount of P277,000.00 (p. 68, supra).
The serial numbers of the recovered money bills appeared in the list furnished to Sgt. Demol by ISG (pp.
88-89, supra). Thereafter, the money was deposited with the Regional Trial Court at Dipolog City (p.
89,supra).
Prosecuted for kidnapping and serious illegal detention, Evangeline Padayhag and Elizabeth Castillo
initially pleaded guilty upon arraignment and were each meted the penalty of life imprisonment (p. 4, tsn,
August 3, 1995). The trial court, however, on motion based on improvident plea, ordered the withdrawal of
the plea of guilty and directed the re-arraignment of Castillo and Padayhag.
After trial, Castillo and Padayhag were convicted of kidnapping and serious illegal detention as charged.
4

Appellants maintain their innocence and present their own version of the events in their brief, as follows:
1. Accused ELIZABETH CASTILLO was a househelper at the Cebrero household from December 1993 to
January 1995. She did the cleaning of the house, laundry of dirty clothes, and also took care of Rocky, son
of Luis and Sandra Cebrero;
2. Accused Evangeline Padayhag, also a househelper, is a friend of Elizabeth Castillo. The two met
sometime in 1994 at Paco, Ubando, Bulacan, when Padayhag worked in the household of Julito Lawagon,
the latter being the neighbor of Helen Lim, Elizabeth Castillos sister;
3. Upon assumption from work, Castillo was promised by Mrs. Sandra Cebrero a monthly salary of one
thousand two hundred pesos (P1,200.00);
4. Castillo, however, was never given compensation during her entire employment in the Cebrero
household;
5. Castillo was also not treated nicely by the Cebrero spouses. When something gets lost in the house, she
was always the one being blamed, although the children were the ones getting the things. Besides, they say
bad words against her. Thus, she has no other choice but to leave her work;
6. Castillo had been consistently demanding from the Cebrero spouses her unpaid wages for one year; but
her demands remained unheeded;
7. Having reached only elementary education, Castillo believed that the only effective way for her to claim
back her unpaid wages is to use Rocky, son of the Cebrero Spouses;
8. On 1 March 1995 Castillo called Padayhag, telling the latter that her boyfriend is sick. At that time,
Padayhag was already working at Jelaya St., B.F. Homes, Paraaque under the employ of Lulu Sablan.
Castillo fetched Padayhag. The two, however, did not go to see Padayhags boyfriend but instead they went
to a playground;
9. Castillo then instructed Padayhag to fetch Rocky from his house at Cesar Virata St., B.F. Homes,
Paraaque, Manila. When Padayhag asked why she wanted to see Rocky, Castillo answered that she missed
the boy. Padayhag obliged to the request, knowing that the latter would not do any harm to the boy;
10. It was only the first time that Padayhag saw Rocky;
11. She brought the child to a market at B.F. Paraaque, where Castillo was waiting. The three went on a
stroll. Thereafter, they went to the house of Imelda Wenceslao, Castillos sister, at Bagong Barrio,
Caloocan City. Castillo noticed that Rocky had a fever, so she requested Vangie to buy a medicine;
12. Padayhag was not told by Castillo as to when the latter would return the boy. Padayhag did not sense
anything wrong with what had happened as she believed that Castillo only took Rocky for a stroll;
13. Imelda Wenceslao asked why they brought a child along with them. Castillo answered that she just
wanted to see the boy. Wenceslao then asked if they asked permission from the parents, and Castillo
answered "no";
14. At night, Castillo talked to Mr. Luis Cebrero over the phone to inform him that Rocky was with her.
Mr. Cebrero told her not to harm the boy. No threat or demand for ransom was ever made by the accused to
the Cebrero spouses. She never asked Mr. Cebrero how much money he had in the bank;
15. The following day, 2 March 1995, Castillo called Mr. Cebrero again to tell him that she could not yet
return Rocky because he still had a slight fever. She also told Mr. Cebrero: "Hindi nyo ako
sinusuwelduhan". He asked her: "Magkano ba ang kailangan mo?" She did not answer. Then Mr. Cebrero
said: "May pera ako rito, kalahating milyon." At that moment, Castillo hanged-up the phone;
16. Castillo denied in her Sinumpaang Salaysay dated 25 August 1999, attached as Annex "A" and made an
integral part hereof, that she demanded one million (P1,000,000.00) from the Cebrero spouses;
17. On the evening of 4 March 1995, when Castillo called Mr. Cebrero, he asked them where they were.
The accused told him that they were in Paco, Ubando, Bulacan, near a Protestant Church. Mr. Cebrero then
said: "Pupunta ako riyan bandang 2:00 ng madaling araw (March 5, 1999) na may bitbit na pera at ilalapag
ko ito sa may simbahan";
18. On 5 March 1995, at around 4:30 a.m. Castillo and Padayhag went out to buy "pandesal". They noticed
that at a post near a Church, a dog was trying to pull a black plastic bag. They picked it up and brought it
home. When they opened it, they found five bundles of money, in P1,000.00 denomination;
19. At about 9:00 p.m. of the same day, Mr. Cebrero heard a tricycle stop in front of their house. Someone
knocked at the door, and when he opened the door, he saw Rocky;
20. On 11 March 1995, Capt. Raniel Ramiro, Intelligence Security Group of the Philippine Army, together
with his men, after coordinating with Caloocan Police, arrested Evangeline Padayhag at her residence at
Dagat-Dagatan, Caloocan City. The military men did not have a warrant of arrest at this particular
operation;
21. The military were civilian-dressed. They pretended to be Padayhags cousins who came from abroad,
and they "invited her to a birthday party". However, they brought her to Fort Bonifacio for interrogation. It
was only then that Padayhag learned that her companions were military men;
22. At Fort Bonifacio, the police coerced Padayhag to confess to the crime, threatening her: "Pag hindi ka
pa umamin, kami na mismo and bibitay sa iyo". Padayhag, however, did not confess to the commission of
the crime. She was then brought to Camp Crame at Quezon City on that same date;
23. The following day, 12 March 1995, during the custodial investigation, a certain Major Meneses was
exerting pressure on Padayhag to reveal where the P500,000.00 is. She told Major Meneses: "Wala akong
pera na ganoon kalaki." He said to her: "Pag hindi ka umamin, papatayin na kita talaga!" Her answer was:
"Patayin nyo man ako, hindi ako aamin dahil wala akong ganoong kalaking pera." Major Meneses then
slapped Padayhag and hit her with a stool on her leg;
24. Major Meneses also threatened Padayhag that if she would not confess to the crime, he would submerge
her on a drum. They forcibly brought her to a toilet room. She saw there two big drums. Major Meneses
then told her: "Iyong mga hindi umamin, nilulublob namin dito sa drum". Padayhag shouted. Thereafter,
someone knocked at the door and said: "Pakawalan nyo na iyan dahil marami nang tao". They brought her
out of the room and handcuffed her;
25. SPO1 Larry Pablo was likewise threatening Padayhag: "Pag hindi ka pa umamin, ihuhulog na kita sa
bintanang ito!" (They were on the third floor of a building) "Alam mo ba kung ilan na ang naihulog namin
diyan? Panlabindalawa ka na sa ihuhulog namin diyan!";
26. During the custodial investigation, Padayhag was not assisted by a counsel, nor has she waived her
right to counsel. She was coerced by the police into signing an extrajudicial confession without even
explaining to her the contents thereof;
27. Atty. Eranio Sedillo only arrived one hour (1 hr.) after Padayhag had already signed the questioned
extrajudicial confession;
28. Elizabeth Castillo was arrested at Mitimos, Rizal, Zamboanga del Norte on or about 21 March 1995.
Police officers came to her house, and when they informed her that they were looking for the money, she
voluntarily gave it to them;
29. The approximate amount of money taken by Castillo was only twenty thousand (P20,000.00) She
returned the rest of the money to the police who arrested, her;
30. Castillo vehemently denied in her Sinumpaang Salaysay (par. No. 14) that she returned only
P227,000.00;
31. Castillo and her escorts were fetched in Manila by a van. Inside the van, they blindfolded her. They
removed her blindfold when they reached Camp Crame;
32. Major Meneses and SPO1 Larry Pablo investigated her. She was slapped by Pablo, forcing her to admit
where the money is;
33. During the investigation, Pablo poked a gun on her, then forced her to write what he would say to her.
He instructed her to write: "Na kapag hindi ko isasauli ang lahat ng pera ay pwede nyo na akong patayin".
Castillo followed the instructions because of fear.
5

In an 11-page Decision, of which nine pages were devoted to the recital of facts, the trial court found the testimonies
of the prosecution witnesses more credible and gave no weight to Castillo and Padayhags defenses. The trial court
convicted appellants on 17 December 1997 and imposed on them the death penalty, thus:
Originally, both accused pleaded guilty to the offense and were meted the penalty of life imprisonment.
However, shortly thereafter, they moved to withdraw their plea claiming it was precipitate, which the court
allowed and proceeded with a full-blown trial.
Accused Elizabeth Castillo demanded money from Rockys parents for the release of the latter. She told his
father to bring the money to Obando Bulacan. The Court can only imagine the pain, worry, fear and anxiety
of the boys parents while their youngest son was under detention.
Ransom is money, price or consideration demanded for the redemption of a captured person or persons, a
payment that releases from captivity" (Corpus Juris Secundum 458). The testimony of Elizabeth Castillo
that she did not know about the money cannot be given weight. Two hundred Seventy Seven Thousand
(P277,000.00) Pesos was found among her things, the bills bearing the same serial number as the money
paid to her.
The court has taken a hard look in determining the liability of Evangeline Padayhag as it seems that her
only participation in the crime was picking up the boy from his house. Although she did not get part of the
ransom the fact is that she fully and directly cooperated and did her part to carry out the resolution of her
co-accused. Under these facts there was conspiracy to extort ransom. People versus Kamad Akiran, 18
SCRA 239.
The Court is convinced that the prosecution has established the guilt of the accused beyond reasonable
doubt.
WHEREFORE, ELIZABETH CASTILLO and EVANGELINE PADAYHAG are sentenced to suffer the
supreme penalty of death. Further, they are hereby ordered to pay jointly and severally the sum of Five
Hundred Thousand (P500,000.00) Pesos as moral damages and Five Hundred Thousand (P500,000.00)
Pesos as exemplary damages plus costs of litigation.
SO ORDERED.
6

Appellants seek the reversal of their conviction by raising the following assignments of error:
I
THE TRIAL COURT ERRED IN MISAPPRECIATING (SIC) THE FACTS OF THE CASE.
II
THE TRIAL COURT ERRED IN CONCLUDING THAT THERE WAS CONSPIRACY TO EXTORT
RANSOM IN THIS CASE.
III
THE TRIAL COURT ERRED IN CONSIDERING THE UNCOUNSELLED CONFESSION OF
EVANGELINE PADAYHAG.
IV
THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY IN THE CASE AT
BAR.
7

We affirm the trial courts judgment convicting Castillo. However, we acquit her co-accused Padayhag.
To sustain a conviction for Kidnapping and Serious Illegal Detention under Article 267 of the Revised Penal
Code,
8
the prosecution must establish the following: (1) the offender is a private individual; (2) he kidnaps or detains
another or in any other manner deprives the victim of his liberty; (3) the act of kidnapping or detention is illegal; and
(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 simulating public authority; (c) serious physical injuries are
inflicted on the victim or threats to kill are made; or (d) the person kidnapped or detained is a minor, female or a
public officer.
9

Appellant Castillos Liability
Castillo asserts that the victims parents did not pay her wages when she worked as a maid of the victims
family.
10
She claims that it was this injustice, her educational level and her ignorance of the law, which impelled her
to take Rocky. She faults the trial court for refusing to consider this. Castillo is mistaken. Whether or not her
employer failed to pay her salary is irrelevant. No amount of perceived injustice can serve as justification for any
person to retaliate through the commission of another crime. The trial court was therefore correct in disregarding
Castillos claim that Rockys parents committed injustice on her.
Castillos claim of injustice cannot justify in any way her demand for ransom. Ransom is "money, price or
consideration paid or demanded for redemption of a captured person or persons, a payment that releases from
captivity."
11
Thus, even if she had a right to demand payment of her unpaid wages, the money she actually
demanded and eventually received, is still ransom.
Castillos reliance on her low educational level is similarly unavailing. The penalty for kidnapping for ransom is the
singular and indivisible penalty of death. This bars the application of any alternative, mitigating or aggravating
circumstance.
12

Mr. Cebrero admitted that he was unable to identify his son Rockys abductors. De Lena and Iglesias, the police
officers who did the stake-out during the "pay-off," testified that the two women suddenly disappeared after
retrieving the plastic bag containing the ransom. The police officers inability to explain how two simple maids
managed to give 5 carloads of police officers the slip severely discredits their account of what happened that day.
Rockys testimony, however, leaves no room for doubt. Only six years of age when he testified, Rocky was candid
and direct in his recollection, narrating events as a young boy saw them happen, thus:
COURT
Alright. Rocky, when Vangie went to fetch you from your house.
A Yes.
COURT
You took a tricycle.
A Yes.
COURT
Where did you go?
A I do not know.
PROS. FONACIER
Your Honor, please, may we request that the rule on evidence be not strict on this boy. The witness is of
tender age.
ATTY. SOLUREN
There is no strict implementation as to what the Honorable Prosecutor stated. There is no strict
implementation of the rules of court. In fact, we are very lenient but the fact is, the child said he does not
know. But the question is he was giving the answer to this witness.
COURT
Ask another question.
Q Rocky, nang sumakay kayo ni Vangie sa tricycle, nakita mo ba si Beth Castillo?
A Nakita namin si Beth sa McDonalds. Malapit sa amin.
Q Rocky, nakita ninyo si Beth. Ngayon, tatlo na kayo, ikaw, si Beth at si Vangie?
A Yes.
Q Rocky, noong magkasama na kayong tatlo, saan kayo nagpunta?
A Nasundo namin si Beth.
Q Noong nasundo na ninyo si Beth, saan kayo nagpunta?
A Sa bahay nila.
Q Kaninong bahay?
A Hindi ko alam.
Q Malayo ba sa McDonald o malapit. Sinabi mo kanina, nagpunta kayo sa bahay nila?
A Yes.
Q Iyong bahay na pinuntahan ninyo, malayo sa McDonald?
A Malayo.
Q Anong sinakyan ninyo?
A Hindi ko alam.
Q Noong dumating kayo doon sa bahay na hindi ninyo, bahay, natulog ka ba doon?
A Yes.
Q Ilang beses ka natulog doon?
A 4 sleeps.
Q Pinakakain ka ba sa bahay na pinuntahan ninyo?
A Yes.
Q Ano ang pinakakain sa iyo?
A Champorado and fish.
Q Sino ang nagpapakain sa iyo?
A Vangie.
Q Sino si Vangie. Puede mo bang ituro sa amin?
PROS. FONACIER
The witness is pointing to accused Evangeline Padayhag as the Vangie he was referring to.
Q Doon sa 4 sleeps mo sa bahay na iyon, saan ka pa nila dinala?
A Pinauwi na ako.
Q Sinong kasama mo noong pinauwi ka?
A Wala, pero mula sa McDonald, naiwan na ako sa tricycle hanggang sa bahay.
13

Unshaken by rigorous cross-examination, Rockys testimony would have been more than enough to convict Castillo.
The testimony of a single witness, if credible and positive, is sufficient to convict.
14
But there is more. The evidence
on record amply supports the factual findings of the trial court. Both the evidence of the prosecution and the defense
establish the commission of the crime.
Castillo admitted she instructed Padayhag to fetch Rocky on 1 March 1995:
Q And as a result of sitting at the palaruan, Miss witness, what happened next?
A Pinasundo ko si Rocky kay Vangie, mam.
Q And why did you ask Vangie to fetch Rocky, Miss witness?
A Kasi po naalala ko pagnamamalengke ako at kasama ko si Rocky, lagi po kaming pumupunta sa
palaruan, mam
Q And then what happened next, Miss witness?
A Sinundo po ni Vangie si Rocky, mam.
Q Whom did Vangie fetch, Miss witness?
A Si Rocky po, mam.
Q And after Rocky fetched by Vangie, what happened next?
A Ipinasyal po namin si Rocky, mam.
15
(Emphasis supplied)
She also testified that she had no permission from Rockys parents to take the child with her:
T Saan kayo nananghalian?
S Doon po sa bahay ng kapatid ko.
T Noong dumating kayo doon, ano naman ang sinabi ng kapatid mo sayo?
S Ang sabi niya, bakit daw may kasama kaming bata.
T Ano naman ang naging sagot mo kay Imelda?
S Sabi ko pinasyal lang po namin.
T Hindi tinanong ni Imelda kung bakit pinasyal nyo ang bata, kung may paalam yong bata doon sa
kanyang magulang?
S Tinanong po.
T Ano naman ang sinabi mo sa kanya?
S Sinabi ko gusto ko lang makita si Rocky.
T Pero, ano ang sinabi mo noong tinanong kung may paalam ang bata sa kanyang magulang, anong
naging sagot mo sa katanungan niya?
S Ang sabi niya baka daw pagalitan kami.
T Ano naman ang naging sagot mo?
Your Honor, may we asked (sic) the witness to be more responsive with her answer.
COURT
What was the question, please?
Stenographer:
(Reading back the question)
T Noong tinanong ni Imelda kung may paalam ang bata sa mga magulang, ano ang sagot mo?
S Ang sabi ko po hindi, walang paalam.
T Ano ang naging reaction ng iyong kapatid na si Imelda?
S Bakit daw hindi nagpaalam.
16
(Emphasis supplied)
Castillo testified that, during the period of Rockys detention she called Rockys father, Mr. Cebrero, to wit:
Q What happened next Miss witness?
A Tinawagan ko po ang mga Cebrero.
Q Who of the Cebreros did you call up?
A Si Luis Cebrero po, mam.
Q What happened next after that?
A Pagtawag ko po kay Mr. Luis Cebrero tinanong po niya sa akin kung nasaan si Rocky, mam.
Q And what is your reply?
A Sinabi ko po na nandidito sa amin, mam.
Q After that what happened next?
A Nagalit po si Luis Cebrero sa akin, mam.
Q And what did you do when Luis Cebrero got angry?
A Tinanong po niya ako kung magkano ang kailangan ko, mam.
Q And what else did he say, Miss witness?
A Sinabi po niya sa akin na huwag ko raw pong sasaktan si Rocky, mam.
Q And then what else?
A Pinipilit po niya ako na kung magkano daw ang kailangan namin na pera, pagkatapos hindi ko na po
sinagot ang tanong niya, mam.
Q And then what happened next?
A Binaba ko na po iyong telepono, mam.
17
(Emphasis supplied)
The number and time of these calls coincided with the calls Mr. Cebrero received from Castillo telling him that she
had Rocky and instructing him to pay the ransom for Rockys release.
Additionally, Castillo by her own admission placed herself at the time and place where the "pay-off" occurred:
T Sa pangatlong araw naman, nandoon ka pa rin ba at saka si Rocky?
S Opo.
T Sa bahay ni Imelda?
S Nagpaalam po ako sa kapatid ko na maghahanap muna ako ng trabaho.
T Si Vangie, saan naman siya noon?
S Nandoon pa rin sa Dagat-dagatan po.
T Si Rocky naman?
S Andoon po sa bahay ng kapatid ko.
T Mga anong oras yon na nagpaalam ka na maghanap ng trabaho?
S Umaga po ako nagpaalam.
T Kung ganoon umalis ka ng umagang yan?
S Opo.
T Saan ka naman pumunta?
S Naghanap po ako ng trabaho.
T Saan ka naghanap ng trabaho?
S Sa may bandang Bulacan po.
T Sa may Paco Obando, doon ka ba pumunta?
S Hindi po.
T Saang parte ka ng Bulacan pumunta?
S Malapit po sa may Hindi ko na po matandaan yong pinuntahan namin.
T Malapit sa may?
S Papunta na po ng Obando, pero hindi nakarating doon.
T Saan ka pumunta doon para maghanap ka ng trabaho?
ATTY. SOLUREN
Already answered, Your Honor, that the place papunta ng Obando pero hindi pa nakakarating sa Obando.
STATE PROSECUTOR FONACIER
That is why I am asking.
COURT
What place is that? Witness may answer.
T Anong detalyadong lugar?
S Sa may Julo po.
T Ano yong Julo?
S Malapit po iyan sa Obando
COURT
Saang bayan ng Bulacan yon?
S Yon lang po ang alam ko.
18
(Emphasis supplied)
Beyond a feeble excuse that she was in Obando in order to look for employment, Castillo provides no other
plausible reason why her presence at that place, at such an opportune time should not be taken against her as
additional evidence of her guilt. To attribute this to coincidence, as Castillo would probably have us do, taxes ones
credulity.
The same can be said of her inability to explain how the ransom money was found in her possession when she was
caught by policemen in Dipolog. Castillo plainly contradicts herself on this point. In Castillos brief, she admitted
going to the "pay-off" site on the day Mr. Cebrero was told to leave the ransom for Rockys release. Castillo
admitted she found at the site a black plastic bag filled with money and brought it home.
19
However in her testimony
before the trial court, she maintained that the first time she saw the same plastic bag was when it mysteriously
appeared in her luggage when she went to Dipolog:
Q And thereafter, Miss witness, what happened next?
A Hinanap ko iyong mga kagamitan ko po, mam.
Q And for what purpose you looked at your things, Miss witness?
A Para ayusin po iyong mga kagamitan ko para makapagpahinga na po ako, mam.
Q What happened next, Miss witness?
A May nakuha ako na isang plastic bag sa loob ng aking bag, mam.
Q And what is this plastic bag about, Miss witness?
A May laman po na pera, mam.
Q And how much money was there in that plastic bag, Miss witness?
A Hindi ko po alam.
Q And what did you observe about the money in the plastic bag?
A Nagulat po ako, mam.
Q And why were you surprised?
A Hindi ko po kasi lubos na maisip na ang bag na aking dala dala ay may laman na isang malaking
halaga na pera, mam.
Q And what did you do after learning that there was money inside your bag, Miss witness?
A Pinabayaan ko na lang po at inaantay na may kumuha na lang po niyon sa akin mam.
20
(Emphasis
supplied)
Castillo insists that she took Rocky simply because she missed him, and wanted to spend time with him. At the same
time, in her brief Castillo claims that what spurred her to take Rocky was her desire to get her unpaid wages from
the Cebreros.
21

Castillo also points out that Rocky came along freely with them, was not harmed, and was even cared for during his
detention. This argument is pointless. The essence of kidnapping is deprivation of liberty. For kidnapping to exist, it
is not necessary that the offender kept the victim in an enclosure or treated him harshly.
22
Where the victim in a
kidnapping case is a minor, it becomes even more irrelevant whether the offender forcibly restrained the victim.
Leaving a child in a place from which he did not know the way home, even if he had the freedom to roam around the
place of detention, would still amount to deprivation of liberty. For under such a situation, the childs freedom
remains at the mercy and control of the abductor.
Next, Castillo explains that she called Mr. Cebrero not to ask for ransom but to tell him that Rocky was with her and
unharmed. Castillo admitted that Mr. Cebrero pleaded with her not to harm Rocky. Castillo failed to explain,
however, why she did not inform Mr. Cebrero of their exact whereabouts so that Mr. Cebrero could fetch Rocky.
Her failure to inform Mr. Cebrero clearly shows she kept Rocky in detention considering she called Mr. Cebrero
several times while she had physical control over Rocky.
Castillos explanation that she decided to return Rocky only when he was no longer sick is also implausible. In the
first place, she failed to explain why she did not return the child the moment she found out he was sick. That would
have been the more prudent course of action at that time. However, one day after the "pay-off" on 4 March 1995,
Rocky suddenly appeared by himself at the Cebreros home on 5 March 1995. Any reasonable person would
conclude that the pay-off and the return of the child were related events. Castillo would have us attribute this to
coincidence.
Castillo would also have us believe that what prompted her sudden departure for Dipolog, where she was eventually
captured, was her inability to find employment in Manila. And yet Castillo does not explain why she tried to bring
Padayhag along with her to Dipolog.
Finally, Castillo points out that the prosecution coached Rockys testimony. True, Rocky admitted he did not know
the contents of the document he signed in front of the fiscal.
23
Rocky also stated that he was told to testify that
Padayhag forced him to go with her, and finally, that he must accuse both appellants as his abductors.
24
These
admissions, damaging as they may sound, are of little use to appellants. The reason is simple. The facts to which
Rockys testimony pertains to are the very same facts Castillo herself admitted on the witness stand. Even if we
were to discredit Rockys testimony entirely, the facts of his kidnapping stand proven by no less than Castillos own
admission on the witness stand and in her brief.
With the evidence Castillos own testimony established, the prosecutions witnesses did little more than corroborate
what Castillo herself had admitted. Since Castillo admitted in open court that she instructed Padayhag to fetch
Rocky even without the parents permission, we find her explanations futile. Her allegations of torture and of
signing a sworn statement without counsel are useless. After claiming to have been tortured into making her sworn
statement, logic would have it that Castillo should have debunked the contents of that statement through her
testimony. Instead, she freely and voluntarily recounted events as she narrated them in her sworn statement.
Moreover, there is no allegation that the trial court decided her guilt based on her sworn statement. The trial court
based its decision on the testimonies of all the witnesses, including Castillos.
In sum, the prosecution has established beyond reasonable doubt Castillos guilt.
Appellant Padayhags Liability
The same cannot be said of Padayhag. Our review of the evidence on record shows that the prosecution failed to
prove Padayhags guilt beyond reasonable doubt.
We reiterate the doctrine that an appeal in a criminal case opens the entire case for review on any question including
those not raised by the parties.
25
This becomes even more imperative in cases where the penalty imposed is death.
Padayhags sole involvement in this entire episode is her act of fetching Rocky and bringing him to where Castillo
was waiting for them. Padayhag then went strolling with the two, went to the house of Castillos sister together with
Castillo and Rocky, and then later left the house. From this fact alone, the prosecution would have us rule that
Padayhag acted in conspiracy with Castillo. The prosecution contends that without Padayhags help, Castillo could
not have abducted Rocky.
We are not persuaded.
There must be positive and conclusive evidence that Padayhag acted in concert with Castillo to commit the same
criminal act. To hold an accused guilty as a co-principal by conspiracy, there must be a sufficient and unbroken
chain of events that directly and definitely links the accused to the commission of the crime without any space for
baseless suppositions or frenzied theories to filter through.
26
Indeed, conspiracy must be proven as clearly as the
commission of the crime itself.
27

Conspiracy is established by the presence of two factors: (1) singularity of intent; and (2) unity in execution of an
unlawful objective. The two must concur. Performance of an act that contributes to the goal of another is not
enough. The act must be motivated by the same unlawful intent. Neither joint nor simultaneous action is per se
sufficient indicium of conspiracy, unless proved to have been motivated by a common design.
28

Padayhags act of fetching Rocky is not conclusive proof of her complicity with Castillos plan, a plan Padayhag did
not even know. Both appellants testified that Padayhag met Castillo only because Castillo told Padayhag that
Padayhags boyfriend was sick. It was precisely on the pretext that they were to visit Padayhags boyfriend that the
two met. When they met, Padayhag realized that Castillo had deceived her:
Q Why? (sic) Elizabeth Castillo fetched you on February 28, 1995 and why did you decide to leave
your employment?
A Kasi sabi po niya sa akin ang boyfriend ko raw ay maysakit, sir.
Q And could you tell us who is that boyfriend of yours?
A Si Jessie Mercader po, sir.
Q And what is the address of Jessie Mercader, at that time, February 28, 1995?
A Sa Caloocan City po, sir.
Q And you said he was sick. What was his sickness?
ATTY. SOLUREN
Your Honor, that is misleading.
COURT
Reform your question.
Q Madam witness, you said that you were informed that your boyfriend was sick. Did you go and see
your boyfriend?
A Sumama po ako kay Elizabeth Castillo pero hindi na po kami natuloy pumunta doon, sir.
Q For what reason you did not go?
A Hindi po sinabi sa akin ni Elizabeth Castillo, sir.
Q So, you did not come to find out what was the sickness of your boyfriend?
A Hindi na po sir.
Q Are we made to understand, madam witness, when you left your employer on 28 February 1995 for
the reason that your boyfriend was sick, you did not actually go and see your boyfriend?
A Opo, sir.
29

After the two spent the day together, Castillo beseeched Padayhag to fetch Rocky citing as reason her love for the
child and a desire to spend time with the boy. Padayhag is a young lass from the province who only finished Grade
Two. Padayhag was thus easily misled by the more worldly Castillo. Padayhags testimony reveals her naivet:
COURT
Q Ano ang sinabi sa iyo bakit mo susunduin ang bata?
A Namimiss na raw po niya iyong bata at nais niyang makita, Your Honor.
COURT
Tapos ikaw ang pinasundo niya doon sa bata?
A Opo, Your Honor.
COURT
Tapos noon dalhin sa Caloocan, ano pa, sinabi pa rin niya namimiss niya ang bata ganoon uli ang sinabi
niya sa iyo?
A Wala na po siyang sinabi sa akin, Your Honor.
COURT
Hindi ka ba nakahalata na may mali doon sa pangyayaring iyon?
A Ang pagkakaalam ko po ay ipapasyal lamang niya ang bata, Your Honor.
Q Sa Caloocan?
A Opo, Your Honor.
COURT
Tapos umalis ka na pagkatapos ninyong kumain doon ng kapatid niya?
A Opo, Your Honor.
COURT
Ipinasyal ba niya ang bata?
A Hindi ko na po alam kasi umalis nga po pagkatapos namin kumain, Your Honor.
COURT
Kailan niya sinabi sa iyo na ibabalik ang bata?
A Wala po siyang sinabi kung kailan, Your Honor.
COURT
Ganoon ba ang alam mo sa pamamasyal?
A Siya naman po ang nagyaya, Your Honor.
30

Her ignorance and susceptibility to confusion becomes more evident in the following exchange:
COURT
Kailan ka ba umalis kay Mr. Julito Luwagon?
A Hindi ko pa matandaan, Your Honor.
COURT
Pero sabi mo kanina ay pitong buwan ka doon?
A Opo pitong buwan ako roon pero hindi ko po matandaan kung anong buwan, Your Honor.
ATTY. SOLUREN
She only finished Grade II, Your Honor.
COURT
Yes I know it but she would know that she works for seven (7) months. Alam mo ba na December 1994 ka
nagsimula mangamuhan kay Julito Luwagon?
A Opo, Your Honor.
COURT
Enero, Pebrero, Marso, Abril, Mayo, Hunyo at Hulyo tama ba iyon?
A Opo, Your Honor.
COURT
Papaano nangyari noong Enero 1995 ikaw ay nagtratrabaho na kay Lulu Sablan?
A Itinuro po sa akin ni Elizabeth Castillo na mag-apply ng trabaho sa may BF Homes, Your Honor.
COURT
Kailan kayo nagkita nitong si Elizabeth Castillo?
A Noong January lang po, Your Honor.
COURT
Saan kayo nagkita?
A Pinaalis niya po ako doon sa pinagtratrabahuan ko sa may Dagat Dagatan, Your Honor.
COURT
Alam mo ba kung ilang buwan mayroon ang isang taon?
A Hindi ko po alam, Your Honor.
COURT
Pero alam mo ang mga buwan, Enero, Pebrero.. alam mo iyon?
A Opo, Your Honor.
COURT
Sige nga sabihin mo nga sa akin kung anu-ano ang mga buwan?
A Enero, Pebrero, Marso, Abril, Mayo, Hunyo, Hulyo, Agosto, Setyembre, Oktubre, Nobyembre at
Disyembre po, Your Honor.
31

Padayhags confusion in the way she answered the questions propounded to her only highlights the fact that she was
not aware of Castillos plans and was vulnerable to the latters manipulation. Her straightforward and wide-eyed
admission of facts that incriminate her demonstrate a level of honesty that can only be found in those who do not
know the art of deceit. Far from a cold and calculating mind, Padayhag strikes us as one whose innocence often
leaves her at the mercy of her more worldly peers. It is clear that she acted with the full belief that Castillo was
doing nothing wrong. Whatever moved her to do what Castillo asked of her is up for speculation. What matters is
that her motivation in fetching Rocky was not to kidnap the boy. To impose criminal liability, the law requires that
there be intentional participation in the criminal act,
32
not the unwitting cooperation of a deceived individual.
In its brief the prosecution itself cites that any inquiry as to the liability of an individual as a conspirator should
focus on all acts before, during and after the commission of the crime.
33
We have done precisely that, and it is
precisely why we rule for her innocence. After her stroll with Castillo and Rocky, she left when Castillo brought the
boy to her sisters house in Caloocan.
34
She never visited nor contacted Castillo afterwards. She remained at her
house and refused to go with Castillo when the latter suddenly tried to coax her to go to Dipolog. None of the money
used as ransom was found in her possession. Her involvement in the "pay-off" was never established. The testimony
of two prosecution witnesses, Sgt. De Lena and Sgt. Iglesias, claiming that Padayhag was with Castillo when the
latter picked up the ransom in Obando, is contradicted by Castillos admission in open court that she brought along a
certain "Mila" and not Padayhag.
35
In addition, the testimonies of these two police officers suffer from their failure
to explain how they suddenly lost track of the two women who took the ransom in front of their very eyes.
All these circumstances illustrate the absence of any hint of conspiracy. We also find that the prosecution failed to
prove Padayhags guilt beyond reasonable doubt. In People v. Gonzales
36
we held:
In the absence of conspiracy, if the inculpatory facts and circumstances are capable of two or more
explanations, one of which is consistent with the innocence of the accused and the other consistent with his
guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a
conviction.
Every person accused has the right to be presumed innocent until the contrary is proven beyond reasonable doubt.
The presumption of innocence stands as a fundamental principle of both constitutional and criminal law.
37
Thus, the
prosecution has the burden of proving every single fact establishing guilt.
38
Every vestige of doubt having a rational
basis must be removed.
39
The defense of the accused, even if weak, is no reason to convict.
40
Within this framework,
the prosecution must prove its case beyond any hint of uncertainty. The defense need not even speak at all. The
presumption of innocence is more than sufficient.
The failure to prove Padayhags involvement as a conspirator reveals how tenuous the evidence is linking her to the
crime. Padayhags culpability hinges on how her act of fetching Rocky and bringing him to Castillo formed part of a
concerted effort to kidnap the child. The act of fetching the boy, by itself, does not constitute a criminal offense. By
itself, it is not even sufficient to make her an accomplice. For a person to be considered an accomplice there must be
a community of design, that is, knowing the criminal design of the principal, the co-accused concurs with the latter.
Mere commission of an act which aids the perpetrator is not enough. As we explained in People v. Cual:
41

The cooperation that the law punishes is the assistance knowingly rendered, which cannot exist without the
previous cognizance of the criminal act intended to be executed. It is therefore required in order to be liable
as an accomplice, that the accused must unite with the criminal design of the principal by direct
participation.
There was therefore a need for clear and convincing proof that this single act was committed to kidnap the child.
The prosecution failed to prove this. Padayhag explained that Castillo coaxed her into fetching Rocky through
another deception and by playing on her feelings of sympathy and friendship. Castillo corroborated this on the
witness stand. The prosecution failed to prove otherwise.
The facts as established show that the only thing Castillo told Padayhag was to fetch Rocky because Castillo missed
her former ward. Upon reaching the house of the Cebreros, the boys nanny handed over to Padayhag the child.
There is no allegation or evidence that Padayhag knew the criminal plan of Castillo. Neither is there any hint that
Castillo told Padayhag to abduct the boy, or to misrepresent herself or use means that would have led Padayhag to
suspect that Castillo had some criminal design. Nor was there any proof that Padayhag knew that Castillo had no
permission from the boys parents. The appearance of the boy itself, newly bathed and dressed for a stroll, would
have led Padayhag to believe whatever story Castillo contrived to ask her in fetching the boy.
A criminal conviction must stand on the strength of the evidence presented by the prosecution, and not on the
weakness of the defense of the accused. The prosecution should have done more to establish Padayhags guilt.
Instead, the prosecution left a lot of room for other possible scenarios besides her guilt. This is a fatal error. The
presumption of innocence imposes a rule of evidence, a degree of proof that demands no less than total compliance.
As we explained in United States v. Reyes:
42

The presumption of innocence can be overborne only by proof of guilt beyond reasonable doubt, which
means proof, to the satisfaction of the court and keeping in mind the presumption of innocence, asprecludes
every reasonable hypothesis except that which it is given to support. It is not sufficient for the proof to
establish a probability, even though strong, that the fact charged is more likely true than the contrary. It
must establish the truth of the fact to a reasonable and moral certainty- a certainty that convinces and
satisfies the reason and conscience of those who are to act upon it. (Emphasis supplied)
On the other hand, we find Padayhags explanation sufficiently supported by circumstances aside from Castillos
testimony. Padayhags acts before, during and after the crime all point to the conclusion that she was no more than
an unwitting tool of Castillo. Castillo misled her into a meeting. Castillo again misled her into fetching Rocky.
Castillo never met or contacted her after the day of Rockys abduction. Castillo also testified that she did not bring
Padayhag along with her when she went to Obando on the day that coincided with the "pay-off." The only
circumstance linking Padayhag to that event is the shaky account of two police officers who admitted that their
quarry inexplicably disappeared before their very eyes. Even the presumption of regularity in the performance of
official duty, by itself, cannot prevail over the constitutional presumption of innocence.
43
Nothing links Padayhag to
the demand for ransom. She never received any part of the ransom, precisely because she did not even know it
existed.
Penalty and Damages
Under Article 267 of the Revised Penal Code,
44
the penalty of death is imposed upon proof that the kidnapping was
committed to extort ransom from the victim or any other person. We find that the prosecution has established
Castillos guilt for this crime beyond reasonable doubt. However, Castillos pecuniary liability must be modified to
conform with jurisprudence. The award of exemplary damages must be deleted in the absence of any aggravating
circumstance. Mr. Cebrero testified that their family suffered serious anxiety at the possibility of not seeing Rocky
again.
45
The pain and anguish they experienced justifies the award of moral damages. However, we reduce the trial
courts award of moral damages to P100,000 in line with current jurisprudence.
46

WHEREFORE, the Decision of the Regional Trial Court of Paraaque, Branch 260, National Capital Judicial
Region, in Criminal Case No. 95-86 convicting appellant Elizabeth Castillo is AFFIRMED with MODIFICATION.
Appellant Elizabeth Castillo is sentenced to suffer the penalty of DEATH and to pay the victim P100,000 as moral
damages. The award for exemplary damages is deleted for lack of legal basis. The trial courts Decision convicting
appellant Evangeline Padayhag is REVERSED. We ACQUIT Evangeline Padayhag and order her immediate
RELEASE from confinement unless held for another lawful cause. The Director of the Bureau of Corrections is
ordered to report to the Court, within five days from notice, compliance with this Decision.
In accordance with Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act No. 7659, upon
finality of this decision, let certified true copies of the records of this case be forwarded to the President of the
Philippines for the possible exercise of the pardoning power.
SO ORDERED.
Davide, Jr., C.J., Vitug, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,
Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.
Puno, J., on leave.
Panganiban, J., on official leave.