Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION

G.R. No. 125865 January 28, 2000

JEFFREY LIANG (HUEFENG), petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent.

YNARES-SANTIAGO, J.:

Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994, for allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he was charged before the Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of grave oral defamation docketed as Criminal Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of a warrant issued by the MeTC. After fixing petitioner's bail at P2,400.00 per criminal charge, the MeTC released him to the custody of the Security Officer of ADB. The next day, the MeTC judge received an "office of protocol" from the Department of Foreign Affairs (DFA) stating that petitioner is covered by immunity from legal process under Section 45 of the Agreement between the ADB and the Philippine Government regarding the Headquarters of the ADB (hereinafter Agreement) in the country. Based on the said protocol communication that petitioner is immune from suit, the MeTC judge without notice to the prosecution dismissed the two criminal cases. The latter filed a motion for reconsideration which was opposed by the DFA. When its motion was denied, the prosecution filed a petition for certiorari and mandamus with the Regional Trial Court (RTC) of Pasig City which set aside the MeTC

rulings and ordered the latter court to enforce the warrant of arrest it earlier issued. After the motion for reconsideration was denied, petitioner elevated the case to this Court via a petition for review arguing that he is covered by immunity under the Agreement and that no preliminary investigation was held before the criminal cases were filed in court.1âwphi1.nêt

The petition is not impressed with merit.

First, courts cannot blindly adhere and take on its face the communication from the DFA that petitioner is covered by any immunity. The DFA's determination that a certain person is covered by immunity is only preliminary which has no binding effect in courts. In receiving ex-parte the DFA's advice and in motu propio dismissing the two criminal cases without notice to the prosecution, the latter's right to due process was violated. It should be noted that due process is a right of the accused as much as it is of the prosecution. The needed inquiry in what capacity petitioner was acting at the time of the alleged utterances requires for its resolution evidentiary basis that has yet to be presented at the proper time.1 At any rate, it has been ruled that the mere invocation of the immunity clause does not ipso facto result in the dropping of the charges.2

Second, under Section 45 of the Agreement which provides:

Officers and staff of the Bank including for the purpose of this Article experts and consultants performing missions for the Bank shall enjoy the following privileges and immunities:

a.) immunity from legal process with respect to acts performed by them in their official capacity except when the Bank waives the immunity.

the immunity mentioned therein is not absolute, but subject to the exception that the acts was done in "official capacity." It is therefore necessary to determine if petitioner's case falls within the ambit of Section 45(a). Thus, the prosecution should have been given the chance to rebut the DFA protocol and it must be accorded the opportunity to present its controverting evidence, should it so desire.

Third, slandering a person could not possibly be covered by the immunity agreement because our laws do not allow the commission of a crime, such as defamation, in the name of official duty.3 The imputation of theft is ultra vires and cannot be part of official functions. It is well-settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice or in bad faith or beyond the scope of his authority or jurisdiction.4 It appears that even the government's chief legal counsel, the Solicitor General, does not support the stand taken by petitioner and that of the DFA.

Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming petitioner is such, enjoys immunity from criminal jurisdiction of the receiving state except in the case of an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions.5 As already mentioned above, the commission of a crime is not part of official duty.

Finally, on the contention that there was no preliminary investigation conducted, suffice it to say that preliminary investigation is not a matter of right in cases cognizable by the MeTC such as the one at bar.6 Being purely a statutory right, preliminary investigation may be invoked only when specifically granted by law.7 The rule on the criminal procedure is clear that no preliminary investigation is required in cases falling within the

jurisdiction of the MeTC.8 Besides the absence of preliminary investigation does not affect the court's jurisdiction nor does it impair the validity of the information or otherwise render it defective.9

WHEREFORE, the petition is DENIED.

SO ORDERED.1âwphi1.nêt

Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-23133 August 20, 1925

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs.ANASTASIO DAGMAN, ET AL., defendants-appellants.

Valentin J. Alcid for appellants.Attorney-General Villa-Real for appellee.

MALCOLM, J.:

On the 2nd of May, 1924, Elias Magbual, en employee of the hacienda "La Esperanza," while in the performance of his duties, was treacherous attacked by a crowd of person, probably about forty in number and was nearly killed. The motive of the crime was

that the persons who harbored enmity against the Magbual had previously been dispossessed of portions of the land by judicial order. The attack began by the crowd shouting "Avance" and with Magbual attempting to escape. But a stone thrown by Anastasio Dagman hit Magbual in the breast, and knocked him down. In this position, he was attacked by Luis Pacunla who wounded him with a lance. Magbual made another attempt to flee only to fall again and to receive wounds made by bolos and clubs wielded by the accused. Magbual escaped death from his tormentors by the use of feigning death.

On these facts, seven persons, Luis Pacunla, Andres Rebollido, Isabelo Rebollido, Juan Olanan, Anastasio Dagman, Valentin Tabladillo, and Luciano Pacunla, were charged in the Court of First Instance of Nueva Ecija with the crime of frustrated murder. After trial, each of the accused was found guilty by the Honorable Eduardo Gutierrez David, Judge of First Instance, of the crime of frustrated homicide and was sentenced accordingly.

From the judgment last mentioned, all of the defendants have appealed. In their behalf, two errors are assigned and argued, namely, (1) that the trial judge erred in finding that the accused had the intention to kill Elias Magbual, the offended party, and (2) that the trial judge likewise erred in finding that there was an agreement to kill Elias Magbual and therefore in sentencing all of the accused to the same penalty, without taking into account the participation of each of one of them in the commission of the crime, if any.

Neither of these points is well taken. The trial judge found each of the accused to have been proved guilty beyond a reasonable doubt of a crime included in the information. There is ample proof to substantiate this finding. The murderous intent of the accused and their joint purpose are likewise clearly demonstrated.

The trial judge, it will be recalled, found the defendants guilty of the crime of frustrated homicide. The Attorney-General, however, recommends that the crime be classified as frustrated murder in view of the presence of the qualifying circumstance of treachery, and that the penalty then be placed in the maximum of that provide by law because of the presence of the aggravating circumstance that prohibited arms were use by the assailants. A majority of the court agree with the Attorney-General. We believe the felony should be classified as frustrated rather than attempted, under the law and the local jurisprudence.

The murder should be regarded as frustrated because the offenders performed all of the acts of execution which should precede the felony as consequence but which, nevertheless, did not produce it by reason of causes independent of the will of the perpetrators; in this instance, the playing possum by Magbual. (Penal Code, art. 3, par. 2.) There was an intent upon the part of the assailants to take the life of the person attacked, which intent may be gathered from the circumstances surrounding the attack; in this instance, the nature of the wounds, the cry of the accused, "Vamos a matarle," and their fingering the nose of Magbual to see if respiration continued. (U.S. vs. Mendoza [1918], 38 Phil., 691; U.S. vs. Sanchez [1911], 20 Phil., 427; U.S. vs. Domingo and Dolor [1911], 18 Phil., 250; U.S. vs. Marasigan [1908], 11 Phil., 27; U.S. vs. Reyes [1906], 6 Phil., 38 U.S. vs. Sabio [1903], 2 Phil., 485; U.S. vs. Taguibao [1901], 1 Phil., 16.) Deadly weapons were used, blows were directed at the vital parts of the body, the aggressors stated their purpose to kill and thought they had killed. The subjective phase of the crime was entirely passed, and subjectively speaking, the crime was complete. (U.S. vs. Eduave [1917], 36 Phil., 209.) The particular parts of the body of the person struck during the assault, the deadly character of the weapons used, the violence of the attack, and the accomplishment of the crime with alevosia in such manner as to insure the safety of the assailants while depriving the victim of the

opportunity to make defense, classifies the crime a frustrated murder. (U.S. vs. Sanchez [1911], 20 Phil., 427, citing decisions of the supreme court of Spain of April 17, 1895, September 29, 1881, and December 31, 1890.) And finally, that the victim did not die, was owing to a chance or accident or reason independent of the criminal act performed. (U.S. Agoncillo and Admana [1916], 33 Phil., 242.) (See also U.S. vs. Bastas and De la Serna [1905], 5 Phil., 251; U.S. vs. Poblete [1908], 10 Phil., 578; U.S. vs. Domingo and Dolor [1911], 18 Phil., 250; Albert, The Law on Crimes, pp. 31-33; and 30 C.J., 14.)

In the decision in the case of United States vs. Lim San ( [1910], 17 Phil., 273, 276), Mr. Justice Moreland speaking for a unanimous court, in part, said:

The court found the defendant guilty of the crime of attempted murder. We are unable to agree with that finding. We regard the crime as frustrated murder. The distinction between frustrated murder and attempted murder is this: In frustrated murder the accused performs all of the acts which he believes necessary to consummate the crime. Death, fails to follow for causes entirely apart from his will. In attempted murder the accused begins the commission of the crime by over acts, but involuntarily desists from performing the other acts necessary to consummate the crime, he being prevented from so doing by some cause outside of his own will. In the case at bar it appears clearly that the defendant believed that he had performed all of the acts necessary to consummate the crime of murder, and, therefore, of his own will, desisted from striking further blows. He believed that he had killed Keng Kin. Death did not result for reasons entirely apart from the will of the accused. This surely stamps the crime as frustrated murder. If, after the first blow, some one had rushed to the assistance of Keng Kin and by his efforts had prevented the accused from proceeding further in the commission of the crime, the accused not believing

that he had performed all of the acts necessary to cause death, he would have been guilty of attempted murder.

Agreeable to the recommendation of the Attorney-General, the judgment appealed from is modified and each of the defendants and appellants is sentenced to fourteen years, eight months and one day imprisonment cadena temporal, with the accessory penalties provided by law, and to pay a one-seventh part of the costs of each instance, and all of the defendants and appellants jointly and severally are sentenced to reimburse the offended party in the amount of P65 for medical services. So ordered.

Avanceña, C.J., Johnson, Ostrand, and Johns, JJ., concur.Villamor and Villa-Real, JJ., took no part.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-26789 April 25, 1969

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.DICTO ARPA and MAALUM ARPA defendants-appellants.

Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Felicisimo R. Rosete and Solicitor Antonio M. Martinez for plaintiff-appellee. Antonio L. Africa for defendants-appellants.

TEEHANKEE, J.:

Automatic review by this Court of the death penalty imposed by the trial court on the accused for the crime of Robbery with Triple Homicide.

In the information filed before the Court of First Instance of Davao, the accused, Dicto Arpa and Maalum Arpa, were charged with the crime of Robbery with Triple Homicide (Criminal Case No. 9694); alleged to have been committed as follows:

That on or about February 20, 1966, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, having boarded a motor banca named "MAMI I", owned by Epimaco Mola together with other passengers bound for Talicud Island, Davao, and once the motor banca was in the middle of the sea and when it developed engine trouble, the accused, conspiring together and helping one another, with intent to steal the motor banca and by means of intimidation, the accused Dicto Arpa firing his .22 cal. revolver to scare the passengers of the banca, and fired at one of the passengers, hitting the said passenger at the right shoulder, wilfully, unlawfully and feloniously took and carried away the said motor banca "MAMI I" belonging to the said Epimaco Mola valued at P2,100.00, to the damage and prejudice of the above-named owner in the aforementioned amount of P2,100.00, and as a result of the jumping into the sea of all the passengers of the motor banca, Alfonso Villegas, Bernardo Villegas and Lourdes Villegas, all passengers of the motor banca were drowned and died.

On the scheduled date of arraignment on March 7, 1966, the accused, through their counsel de oficio, Atty. Bernardino Bolcan Jr., manifested their desire to plead guilty only as to the fact of "the killing of one of the persons mentioned in the information," 1

denying the killing of the two other persons. The fiscal, however, manifested that the State could not agree to the accused's offer to plead guilty to only one homicide, since "the two other persons were lost on the same occasion, ... because of the incident. They jumped overboard after the firing at one of the victims, ..." 2 The trial judge, Hon. Manases G. Reyes, accordingly did not accept the plea and reset the arraignment for the next day, informing the accused that as the prosecution was not agreeable to their qualified plea, they would have to enter into trial.

When the case was called on the following day, the information was read to the accused in the dialect they understood, and both accused pleaded guilty, their counsel de oficio invoking, in their favor two mitigating circumstances of plea of guilty and lack of intent to commit so grave a wrong. The fiscal objected to the appreciation of the latter circumstance, demonstrating that "there could be no lack of intent when they immediately fired at one of the victims point blank with a pistol, that is fatal." 3

The case was submitted and the trial court rendered thereafter on March 11, 19661, its decision, crediting the accused with the mitigating circumstance of their voluntary plea of guilty, but rejecting the claimed mitigating circumstance of lack of intent to commit so grave a wrong, in view of "the nature and gravity of the offense committed." The trial court further found two aggravating circumstances against the accused, as follows;

A perusal of the information reveals the following, allegation in the information:

...and once the motor banca was in the middle of the sea and when it developed engine trouble....

These allegations to the mind of the Court constitute two aggravating circumstances. The first underlined portion constitutes the aggravating circumstance that the crime was committed in an uninhabited place. (People vs. Rubia 52 Phil. 172). And the second constitutes the aggravating circumstance that the crime is committed on the occasion of conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune.

The Court believes that the development of engine trouble in the middle of the sea is a misfortune which tends to create confusion and apprehensions of the passengers and, thereby, to commit a crime such a time the accused manifested greater perversity and instead of rendering help increased their affliction by taking advantage of the said misfortune.

As it is, therefore, the accused in the commission of this crime has one mitigating circumstance in their favor and two aggravating circumstances against them, and offsetting one another there is still remaining one aggravating circumstance to the accused.4

Consequently, the trial court sentenced each of the accused to the penalty of death and order both of them, jointly and severally, to indemnify the heirs of the deceased Alfonso Villegas, Bernardo Villegas and Lourdes Villegas in the amount of P6,000.00 for each of them, without subsidiary imprisonment in case of insolvency by reason of the penalty imposed, and to indemnify Epimaco Mola in the sum of P2,100.00, and to pay the costs proportionately.

For purposes of this review, Atty. Antonio L. Africa was appointed counsel de oficio for the accused, upon the latter's request for such counsel. Said Counsel urges the reversal of the death sentence, and the Solicitor-General recommends the affirmance thereof. Counsel for the accused in a well-prepared brief, assigns the following errors: —

I. THE LOWER COURT ERRED IN HOLDING THAT THE CRIME COMMITTED IS ROBBERY WITH TRIPLE HOMICIDE.

II. THE LOWER COURT ERRED IN HOLDING THAT THE CRIME COMMITTED WAS ATTENDED BY THE AGGRAVATING CIRCUMSTANCES OF UNINHABITED PLACE AND ON THE OCCASION OF A MISFORTUNE.

III. THE LOWER COURT ERRED IN NOT CONSIDERING THE MITIGATING CIRCUMSTANCE OF LACK OF INTENT TO COMMIT SO GRAVE A WRONG AS THAT COMMITTED.

IV. THE LOWER COURT ERRED IN IMPOSING UPON THE ACCUSED THE SUPREME PENALTY OF DEATH.

The accused, leaving voluntarily pleaded guilty to the information, come under the firmly settled doctrine of being deemed to have admitted all the material facts alleged in the information, including the aggravating circumstances therein alleged. 5

The first error assigned that "if the original criminal design does not clearly comprehend homicide, (in view of the allegations in the information that the accused's intent was to steal the motor banca and that accused Dicto Arpa fired his 22 cal. revolver to scare the passengers of the banca), but homicide follows the robbery as an incident of the latter, the criminal acts should be viewed as constitutive of two offenses, and not as a single special offense (of robbery with homicide)" 6 is without merit. Article 294, paragraph 1 of the Revised Penal Code which defines the special, single and indivisible crime of robbery with homicide with the use of violence against, or intimidation of any person, imposes one distinct penalty of reclusion perpetua to death "when by reason or on occasion of the robbery, the crime of homicide shall have been committed." In

the case of People vs. Mangulabnan, et al., 7 this Court pointed out that the "English version of the Code is a poor translation of the prevailing Spanish text of sale paragraph, which reads as follows:lawphi1.nêt

I. o Con la pena de reclusion perpetua a muerte cuando con motivo o' con occasion del robo resultare homicidio.

We see, therefore, that in order to determine the existence of the crime of robbery with homicide it is enough that a homicide would result by reason or on the occasion of the robbery (Decision of the Supreme Court of Spain of November 26, 1892, and January 7, 1878, quoted in 2 Hidalgo's Penal code, p. 267 and 259-260, respectively). This High Tribunal speaking of the accessory character of the circumstances leading to the homicide, has also held that it is immaterial that the death would supervene by mere accident (Decision of September 9, 1886; October 22, 1907; April 30, 1910 and July 14, 1917), provided that the homicide be produced by reason or on occasion of the robbery, inasmuch as it is only the result obtained, without reference or distinction as to the circumstances, causes, modes or persons intervening in commission of the crime, that has to be taken into consideration (Decision of January 12, 1889 — see Cuello Calon's Codigo Penal p. 501-502).

In that case, one of the two unidentified co-participants of the appellant Mangulabnan climbed up a table and fired at the ceiling, which was conceded to be "an unpremeditated act that surged on the spur of the moment and possibly without any idea that Vicente Pacson was hiding therein" that resulted in the killing of said Vicente Pacson, but said appellant having been shown to have participated in the criminal design to commit the robbery with his co-defendants was held guilty of the crime of robbery with homicide. Here, upon the accused carrying out their criminal design to steal the motor banca, one of them, Dicto Arpa, started firing his

revolver to scare the passengers and fired directly at one of the passengers, hitting him at the right shoulder, and as a result, the three passengers jumped into the sea and met their death by drowning. Even if we were to concede appellants' contention that their original criminal design did not clearly comprehend homicide, and that homicide followed the robbery "as an incident of the latter", still the deaths clearly resulted by reason of or on the occasion of the robbery and the trial court therefore correctly found them guilty of the crime of robbery with triple homicide.

The remaining errors assigned concern the trial court's appreciation and finding of two aggravating circumstances as against one mitigating circumstance of a voluntary plea of guilty in the commission of the crime and the mandatory imposition, as a consequence, of the penalty of death.

We hold that the trial court correctly held that the crime committed was attended by the aggravating circumstance of uninhabited place. The accused, in having boarded at Davao City the motor banca, together with other passengers bound for Talicud Island, Davao, and carrying out their criminal design of stealing the said motor banca, once it was in the middle of the sea and when it developed engine trouble, with one of them firing revolver shots in order to forestall any resistance, certainly cannot disclaim that they sought the isolation of the sea to attain their criminal objective without interference. As held by this Court in People vs. Rubia, 8 the aggravating circumstance of the crime of homicide having been committed in an uninhabited place must be considered, where the deed was committed at sea, where it was difficult for the offended party to receive any help, while the assailants could easily have escaped punishment, and the purely accidental circumstance that another banca carrying the eyewitnesses to the crime was also at sea in the vicinity at the time without the assailants' knowledge is no argument against the appreciation of said circumstance.

We hold, however, against the trial court's finding of a second aggravating circumstance in that the crime was committed "on the occasion of a conflagration, shipwreck, earthquake, epidemic, or other calamity or misfortune." 9 In so holding, the trial Court reasoned:

The Court believes that the development of engine trouble in the middle of the sea is a misfortune which tends to create confusions and apprehensions of the passengers and, thereby, to commit a crime at such a time the accused manifested greater perversity and instead of rendering help increased their affliction by taking advantage of the said misfortune. (Decision, p. 3).

The development of engine trouble at sea is a misfortune, but it does not come within the context of the phrase "other calamity or misfortune" as used in Article 14, paragraph 7 of the Revised Penal Code, which refer to other conditions of distress similar to those precedingly enumerated therein, namely, "configuration, shipwreck, earthquake, epidemic", such as the chaotic conditions resulting from war or the liberation of the Philippines during the last World War. The reason for the provision of this aggravating circumstance "is found in the debased form of criminality met in one who, in the midst of a great calamity, instead of lending aid to the afflicted adds to their suffering by taking advantage of their misfortune to despoil them." 10 Clearly, no such condition of great calamity or misfortune existed when the motor banca developed engine trouble.

It should be added that there is nothing in the record whatever to indicate that the engine trouble developed was a serious one such as to create confusion and apprehension on the part of the passengers as perceived by the trial court, and that the same was not easily repaired; if at all, the indications are to the contrary, for

as alleged in the information, the accused succeeded in stealing the motor banca at sea.

We hold also against the accused's claim of a second mitigating circumstance of lack of intent to commit so grave a wrong. The trial court correctly held that this circumstance could not properly be appreciated in favor of the accused "viewed from the nature and gravity of the offense committed." As previously pointed out by this Court in the case of People vs. Boyles, 11 the true nature of this circumstance "addresses itself to the intention of the offender at the particular moment when he executes or commits the criminal act; not to his intention during the planning stage. Therefore, when, as in the case under review the original plan was only to rob, but which plan, on account of the resistance offered by the victim, was compounded into the more serious crime of robbery with homicide, the plea of lack of intention to commit so grave a wrong cannot be rightly granted." In the present case, the accused embarked on their most reprehensible criminal design of pirating a motor banca at sea, firing a volley of shots at the passengers notwithstanding the lack of indications of any resistance, thus forcing them to jump overboard in a desperate act of self-preservation only to be swallowed by the sea. The accused cannot now disclaim their lack of criminal intent and responsibility for the direct, logical and fearsome consequences of their unlawful acts.

As thus established, therefore, the crime committed was Robbery with Triple Homicide, attended by the aggravating circumstance of the same having been committed in an uninhabited place which is offset by the accused's voluntary plea of guilty, and the proper imposable penalty is the lesser penalty of reclusion perpetua. (Article 294, paragraph 1 in relation to Article 3, Revised Penal Code.) The compensatory damages awarded to the heirs of the victims should properly be increased to P12,000.00. (People vs. Pantoja, G.R. L-18793, Oct. 11, 1968.)

It may be noted that even if the accused were to be granted the additional claimed mitigating circumstance of lack of intent, the said imposable penalty would still be the same. 12 The question of the fact of death of the two other passengers, since the accused deny knowledge of the fact of their death, as their counsel in the lower court claimed that there was no showing of such fact, 13 although both counsels in this Court as well as in the lower court do not dispute the "judicial admission by the accused appellants of the fact of killing (death) of one of the persons named in the information" 14 would not affect the nature of the single and indivisible crime of Robbery with Homicide committed by the accused nor the proper imposable penalty as herein established, since all the homicides perpetrated by reason or occasion of the robbery are merged in the composite, integrated whole that constitutes the crime of robbery with homicide. 15

Nevertheless, we feel constrained to add that in reviewing the records of the case, we were struck with the paucity of facts and evidence attending the commission of the crime other than those stated in the information and other circumstances that would aid the Court in its ordained task of passing en consulta upon the legality and propriety of the death penalty imposed by the trial court, e.g. the age and education or lack thereof of the accused, and whether there were other passengers who survived, aside from the three persons named in the information as having drowned, as well as what the crew did, if anything, during the commission of the crime. Were it not for the conclusion here reached of imposing the lesser penalty of reclusion perpetua, by virtue of our disallowance of the additional aggravating circumstance of calamity or misfortune found by the trial court, we might have been constrained to remand the case for new trial to the court a quo in order to satisfy ourselves as to the degree of culpability of the accused in relation to the death penalty imposed, especially since

the information did not expressly designate as such the aggravating circumstances found by the trial court and there was no discussion nor spelling out thereof whatever in the eight-page transcript of the entire proceedings. We therefore reiterate the rule of practice recommended since the early cases of U.S. vs. Talbanos 16 and U.S. vs. Rota. 17 set out in Rule 118 section 5 of the Rules of Court, 18 and thereafter suggested a number of cases, lastly, in the case of People vs. Bulalake, 19 where this Court said:

It is of course true that the taking of such evidence is a matter left to the discretion of the trial court. Nevertheless, inasmuch as judgments of conviction imposing the extreme penalty of death are subject to review by the Supreme Court as law and justice shall dictate, whether the defendant appeals or not, which automatic review neither the Court nor the accused could waive or evade it would seem that the proper and prudent course to follow where the accused enters a plea of 'guilty' to capital offenses specially where he is an ignorant person with little or no education, is to take testimony not only to satisfy the trial judge himself but to aid the Supreme Court in determining whether the accused really and truly understood and comprehended the meaning, full significance and consequences of his plea.

WHEREFORE, the decision under review is modified: the accused are imposed the penalty of reclusion perpetua and ordered, jointly and severally, to indemnify the heirs of the deceased Alfonso Villegas, Bernardo Villegas and Lourdes Villegas in the amount of P12,000.00 for each of them, and Epimaco Mola in the sum of P2,100.00, and proportionately to pay the costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Fernando and Barredo, JJ., concur.Castro and Capistrano, JJ., took no part.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-31012 August 15, 1973

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ARTURO CARANDANG, MARIO BUISER, MONTANO CARAAN and DIOMEDES ESTRELLA, defendants-appellants.

Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor, General Ricardo L. Pronove, Jr. and Solicitor Tomas M. Dilig for plaintiff-appellee.

Pastor B. Timog for defendant-appellant Arturo Carandang.

Magno T. Bueser for defendants-appellants Mario Buiser, et al.

FERNANDO, J.:

The appeal in this case from a judgment of conviction by the four accused, Arturo Carandang and Diomedes Estrella for the crime of robbery with rape, with the other two defendants Montano Caraan and Mario Buiser being held liable only for robbery, raises no significant legal question. The reliance for the reversal sought is made to rest on the plea that the trial judge could have appreciated the evidence differently. It is therefore premised on the credibility

accorded the witnesses for the prosecution, primarily the offended parties themselves. It becomes apparent then why the burden assumed by appellants is far from easy, considering furthermore that for exculpation, they would rely on the defense of alibi. We cannot reverse.

From the testimony of the prosecution witnesses, relied upon by the lower court, the offense in question occurred in the early evening of November 28, 1968, while the spouses Gutierrez and Socorro Familiar and their children were taking their supper, their house being located at Barrio Sta. Veronica, San Pablo City. 1 At that time, there was the sudden appearance of a man, with his face partly covered with a handkerchief and armed with a gun. 2 He ordered the persons inside the house not to make any noise and to go to the sala; then he put out the light of the Coleman lamp inside the house. While the Gutierrezes were being taken to the sala, another person, with his face likewise partly covered with a piece of cloth from the nose down, arrived. The first thing he did was to ask Eugenio Gutierrez for his gun. 3 A negative response so enraged him that he kicked the latter on the face, asked him to kneel, and said "Your gun or your life." 4 The presence of a light in the room of the house caused one of them to blindfold the members of the household. 5 Then the house was ransacked and cash amounting to P130.00, a radio valued at P280.00, and a watch valued at P70.00 taken. 6 The two individuals thus perpetrating such acts were recognized by Gutierrez as the accused Arturo Carandang and Diomedes Estrella. Moreover he heard talk coming from below the house, asking them to hurry up so they could leave. 7 He did identify the source as the other two accused Montano Caraan and Mario Buiser, both of whom were known to him for several years, as they were hired to pick coconuts in the plantation which he was supervising at the time. 8 Not satisfied with what they had done, one of the accused, Arturo Carandang, approached the wife of Gutierrez, Socorro Familiar, then praying, and pulled her to the

kitchen. 9 It was there where her panties were immediately ripped off and she was asked, at the point of a gun, to lie down. 10 Socorro pleaded to Carandang to desist from what he intended to do as she had just given birth, all to no avail. 11 After he was through with the sexual act, the accused Diomedes Estrella approached her, and, at gun point, was also able to have carnal knowledge of her. 12 During such assault by Estrella, her blindfold did not conceal things as she kept moving her head; thus she saw the other accused, Montano Caraan, seated near the stairs. 13 He was also about to do the same thing as his companions, but Socorro asked him to have pity on her informing him as she did the other two that she had just given birth, and Caraan voluntarily desisted. 14 Thereafter, the party left the house, before leaving, they threatened the occupants with death, should they report the incident to the authorities. 15 Gutierrez was able to follow them surreptitiously, and upon reaching the road, he saw that the four accused, the three aforementioned and also Mario Buiser, going to the house of Otilio Diones. Then and there, he reported the happening to the barrio captain, Isabelo Guevarra. He made sure that the identities the culprits were revealed. 16

The version for the defense rejected by the lower court was set forth in the brief for appellant Carandang in these words: "That on November 28, 1968, and a year prior thereto, he has been living in the house of spouses Otilio Diones and Jacinta Saba in barrio Santa Veronica, San Pablo City; that on morning of November 28, 1969, appellant Arturo Carandang went to the ricefield he was farming for spouses Otilio Diones and Jacinta Saba, and returned home for lunch at 11:00 A.M. In the afternoon, he also worked in the ricefield. On his way home he went to a [place] and gathered fodder for his carabao, returning home at about 4:30 P.M. After he had fed the carabao, he rested in a bamboo bed under the house until he was called by his Ate (Jacinta Saba) as supper then was ready. At about 6:00 P.M., his three co-accused Diomedes Estrella, Mario Buiser and

Montano Caraan arrived. He accompanied Montano Caraan to the house of Miss Oliva Diones, whom Caraan was courting. They stayed in the house of Oliva Diones for about an hour and a half, after which, they returned to the house of spouses Otilio Diones and Jacinta Saba. The three co-accused of appellant Arturo Carandang left at about 10:30 P.M., and appellant retired to bed. Thereafter, policemen Nazario Perez arrived and inquired for appellant Carandang; that he was aroused from his sleep and told that they will bring him to barrio captain who wanted to talk to him; that after patrolman had a brief conversation with the barrio captain, he was told that he will be utilized as guide to locate his three co-accused. However, he was taken to the police headquarters of San Pablo City, and detained." 17 As noted, the judgment was one of conviction, the appealed decision being notable for the rather detailed analysis of the evidence. After a study of the transcript of testimony as well as the briefs for both the prosecution and the defense, the state being represented by the then Solicitor General, now Associate Justice Felix Antonio, aided by the then Assistant Solicitor General, now Judge Ricardo L. Pronove, Jr., who took pains to present quite a fair and objective account of this unfortunate occurrence, we have reached the conclusion, as noted at the outset, that a reversal is not warranted.

1. All four appellants, in the two briefs submitted, one for Carandang by Attorney Salvador B. Timog, and the other for Estrella, Caraan and Buiser by Attorney Magno T. Bueser, did direct their line of fire on what they considered to be a failure of the lower court to appreciate correctly what did really transpire. While the effort to discredit the testimony of the offended parties, the couple Eugenio Gutierrez and Socorro Familiar, evinced their concern to assure that the rights of their clients be fully protected, it cannot be said to possess a persuasive ring. It is not easy to raise doubt as to the guilt of the accused for the offenses for which they were indicted and found guilty. The lower court certainly has not laid itself open to any

accusation of being remiss in analyzing the evidence on the part of both the state and the accused. Much less can it be alleged that there was lacking then that measure of impartiality required by law of occupants of the bench in their appraisal of testimony that could lead to the loss of liberty, in the case of heinous offenses, even of the right of the prisoner at the dock to life itself.

Moreover, a recent decision would indicate the difficulty thus faced by appellants in seeking to overturn their conviction on this ground alone. Thus in People v. Angcap, 18 it was said: "There is need to stress anew that this Court has long been committed to the principle that the determination by a trial judge who could weigh and appraise the testimony as to the facts duly proved is entitled to the highest respect, unless it could be shown that he ignored or disregarded circumstances of weight or influence sufficient to call for a different finding. So it was announced by Justice Moreland in 1915 in the first case of consequence enunciating such a doctrine. As he pointed out, in the event of a conflict in the testimony of the witnesses, "the peculiar province of the trial court is to resolve the question of credibility, and, unless there is something in the record impeaching by fair interpretation the resolution of the trial court in relation to that question, this court will assume that he acted fairly, justly, and legally in the exercise of that function." So it has been since then. In a case reported in the latest volume of the Philippine Reports, Justice Paredes, speaking for this Court succinctly stated "that with respect to the credibility of witnesses, the trial court's findings and conclusions, command great respect and weight." Its more usual formulation was also set forth by Justice Malcolm in these words: "After everything is said and done, we come back, as we invariably do in cases of this nature, to a recognition of the rule that the Supreme Court will not interfere with the judgment of the trial court in passing on the credibility of the opposing witnesses, unless there appears in the record some circumstances of weight

and influence, which has been overlooked or the significance of which has been misinterpreted." 19

Nor is their case for a reversal bolstered by their plea of alibi. This is not to lose sight of the fact that the presence elsewhere of the accused would preclude their participation in a crime. Such a fact, if there be such, has to be shown though by evidence that commands assent. Unfortunately for appellants in this case, they were unable to do so. The categorical nature of the identification made by the offended spouses placed a burden on them too difficult to overcome by the allegation that they could not have been the perpetrators of the foul deed. In this connection, an excerpt from People v. Tapitan 20 is relevant. Thus: "In a 1908 opinion by Justice Torres, the first time the defense of alibi was paid considerable attention, this Court correctly ruled that such a plea could not prevail against the positive testimony of five witnesses to the effect that the accused far from being away from the place where the offense took place was indeed present. So it is in the case before us. Such a defense is futile and unavailing. To the same effect is the following: "The appellants' weak defense of alibi is not sufficient to overcome the positive identification made of them as the perpetrators of the crime by the witnesses, against whom they could not impute sufficient reason for pointing to them." As we had occasion to remark in one of our opinion, through Justice Capistrano: 'Alibi is one of the weakest defenses, and is easily fabricated. We have examined the testimonies in support of this defense of alibi, and have found the same unworthy of credence.' " 21

2. The remaining error assigned in the brief for appellants Estrella, Caraan and Buiser would find fault with the finding of the lower court, allegedly disregarding the testimony of Dr. Arracleto Polillo who, on November 29, 1968 at 2:00 A.M., examined medically the offended party, Socorro Familiar. 22 Such an alleged

error, on its face, is misleading because this doctor, in answer to a question by the court, readily admitted that before conducting such examination, the patient "complained that she feels something on her private part because she was raped by somebody." 23 When asked whether the findings in his medical certificate later issued compatible with such complaint on the part of the patient, this is how he replied: "Well, Your Honor, the findings here, only one finding here may tally with her complaint." 24 To be more specific, he referred to the "erythematous, abrasion of the labia menora." 25 There was, though, his statement that "in a true case of rape, the presence of spermatozoa should be positive." 26 This rather categorical affirmation he qualified by speaking of their being found in the genital organ of the woman in question for at least twenty-four hours, unless the offended party would wash it. The brief for the three appellants would impress on this Court that doubt does exist as to rape actually having committed. This is too flimsy an argument to be taken seriously . More than seven hours at least had elapsed by that time from the sexual assault suffered by the victim. There is nothing improbable then in her cleaning that part of her body. Moreover, from the legal standpoint, the authoritative pronouncement from People v. Selfaison, 27 the opinion being rendered by Justice Gutierrez David, is to the effect that such a defense lacks merit. Thus: 'Citing Dr. Anzures' "Lectures on Legal Medicine" which states that an examination within 3 days after intercourse would reveal the presence of spermatozoa, the appellants underscore the fact that physical examinations to which the complainants were subjected to were negative as to the presence of spermatozoa. The absence of such spermatozoa, however, does not necessarily mean that the complainants had not in fact been raped. The very authority cited states that such absence does not necessarily mean that the girl subject of the examination has not had any sexual intercourse. It need hardly be said here that in the crime of rape, the slightest penetration is enough. In the case of the complainants, we agree with the trial court that the recent

laceration in the hymen and the contusions on the walls of the labia menora, of their genitals together with the evidence adduced during the trial — sufficiently shows that the copulative act had been performed by means of force and violence. ... In fact, it is not even necessary that there be a medical examination of the victim in cases of rape. Whether or not the charge will prosper depends upon the evidence offered and so long as such evidence convinces the court, a conviction for rape is proper. At any rate, it is not improbable that the complainants washed or flushed themselves not only for the sake of cleanliness but more particularly in order to avoid possible conception. It is, indeed, difficult to believe that the complainants, who are very young and unmarried, would tell a story of defloration, allow the examination of their private parts, and thereafter permit themselves to be the subject of a public trial, if they were not motivated by an honest desire to have the culprits apprehended and punished." 28 The last portion of the above excerpt is merely a reiteration of what was set forth in People v. Canastre 29 a 1948 decision, to the effect that this Court is committed to the principle in accord with the traditional psychology of our people inhibiting a woman from exposing herself to the obloquy that would follow an admission that she had been thus victimized if the truth were otherwise, unless there be proof of a motive weighty enough to make her bear with equanimity the pillory to which she would be thus subjected. What gives force to such an observation is that here, the husband, who himself must certainly bear the brunt of shame at this unfortunate incident, did likewise testify to the violation of his wife. 30

WHEREFORE, the decision of the Circuit Criminal Court of the VIIIth Judicial District of August 26, 1969 finding the accused Arturo Lozada Carandang and Diomedes Estrella y Arcega "guilty beyond reasonable doubt as Principals in the crime of Robbery with Rape and considering the aggravating circumstances of nighttime, dwelling of the offended party, abuse of superior strength and

ignominy, without any mitigating circumstance to consider, [sentencing] each of them to suffer the penalty of reclusion perpetua, to jointly a severally, with their other co-accused, indemnify the complaining spouses in the sum of [Four hundred eighty (P480.00) pesos], representing the value of the articles taken, jointly and severally indemnify the complaining spouses in the sum of [Five thousand (P5,000.00) pesos] by way of damages ..." and the accused Montano Caraan y Pampolina and Mario Buiser "guilty beyond reasonable doubt as principals in the crime of Robbery, defined and penalized under Article 294 paragraph 5, as amended by Section 6, Republic Act No. 18, and considering the aggravating circumstances of nighttime, dwelling of the offended party and abuse of superior strength, without any mitigating circumstance to be considered in their favor, [sentencing] them to suffer an indeterminate penalty ranging from [four (4) years, two (2) months and one (1) day] of prision correccional as minimum to [ten (10) years] of prision mayor as maximum, to jointly and severally indemnify the offended party in the sum of [Four hundred eighty (P480.00) pesos]" 31 is affirmed. Costs against appellants.

Makasiar and Esguerra, JJ., concur.