Criminal Law 1 - Compilation Of Full Cases, Second Set (ponelas-palaganas)

Criminal Law 1-cases compiled
View more...
   EMBED

Share

Preview only show first 6 pages with water mark for full document please download

Transcript

May 18, 1959 G.R. No. L-10853 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SALVADOR PONELAS Y INAJE AND JAVIER ENORIO Y HERNANDEZ, defendants-appellants. BAUTISTA ANGELO, J.: Salvador Ponelas and Javier Enorio were charged with rape before the Court of First Instance of Manila. Both were found guilty and sentenced each to suffer an indeterminate penalty of from 12 years of prision mayor to 20 years of reclusion temporal, to indemnify jointly and severally the heirs of the deceased in the sum of P5,000.00 and to pay the costs. Both appealed to the Court of Appeals. Pending appeal, Ponelas moved to withdraw his appeal which was granted. And when counsel for the accused gave notice that he would only raise questions of law, the case was certified to this Court as required by law. In the morning of April 25, 1955, Enrique Marcelo, a coffee vendor, went to Estero de la Quinta, near Echague, Manila, to answer a call for nature and upon reaching the place, he saw a woman in the river drowning whereupon he jumped and brought the girl to the bank to resuscitate her through artificial respiration. In the meantime, a mobile patrol arrived after having been informed of the drowning woman, while Salvador Ponelas informed a police precinct of the drowning incident. A policeman questioned the girl and asked her why she jumped into the river. She replied that she was raped by two men, pointing to Ponelas as one of them who was then around. Ponelas said nothing when he was pointed to. The woman was placed in an ambulance and taken to the North General hospital where she died the following afternoon of "respiratory failure due to marked congestion and edema of the lungs following submersion in water." The vaginal smear taken from her private organ was found positive for several complete sperm cells. Ponelas was taken to the police station and upon being investigated by a policeman, he admitted having sexual intercourse with the woman implicating one Javier Enorio. He stated that the latter used force upon the girl who fought with her wooden shoes and allowed her to jump into the water which she threatened to do because Javier thought that she was mere bluffing. His statements were taken down in writing and were signed by him. Javier Enorio was subsequently arrested and investigated, and he too admitted his participation in the rape. His statements were also taken down in writing and signed by him. After the investigation, the two were taken to the scene of the crime where they enacted how they abused and ravished the woman. Photographs of the reenactment were taken. We are only concerned here with the appeal of Javier Enorio since, as already stated, the appeal of his co-accused Ponelas was withdrawn. And in this instance, his counsel merely raises the question whether the trial court had validly acquired jurisdiction over the case in view of the testimony given in court by Leonor Sarabia who signed the complaint that gave rise to the prosecution of the two defendants. In this connection, counsel poses the following questions: since the crime of rape can only be prosecuted upon complaint of the offended party, her parents, grandparents, or guardian, does failure to comply with this requirement affect the jurisdiction of the trial court? It appears that when the victim died as a result of her attempt to commit suicide by jumping into the river, the authorities waited for her relatives to claim for her body which was kept in the morgue for sometime. Apparently, the deceased had neither parents, grandparents, or relatives. Later, however, one Leonora Sarabia came along inquiring about niece of hers who disappeared, and so she was taken to the morgue. After the coffin was opened and Leonor and her brother were allowed to examine the cadaver, they stated that the victim was their missing niece and apparently because she made the authorities know that she was her guardian, Leonor was taken to the city fiscal's office where she filed the complaint which gave rise to the prosecution of Ponelas and Enorio. It developed, however, after the prosecution had rested its case, that Leonor was presented as witness by the defense and testified that she made a mistake in her identification claiming that although the deceased bore a marked similarity to her missing niece, she was not the one because her niece turned out to be alive. According to Leonor, the name of her missing niece was Amalia Sarabia whereas the name of the victim was Flora de Cesareo. And in view of this change in the attitude of Leonor Sarabia, counsel for the defense now contends, as he did in the lower court, that the latter lost jurisdiction over the case, invoking Article 344 of the Revised Penal Code which provides that the offense of rape can only be prosecuted upon the complaint filed by the offended party, her parents, grandparents or guardian. While under Article 344 abovementioned the offense of rape can only be prosecuted upon the complaint filed by the offended party, her parents, grandparents or guardian, and that unless this requirement is complied with the prosecution may fail on the ground of lack of jurisdiction, we believe however that in this particular case, it cannot be successfully maintained that there is a failure of compliance with this requirement it appearing that Leonor Sarabia has filed the complaint as guardian of the victim after satisfying herself that the one lying in the morgue which she carefully examined and identified was really her niece of which she stood as her guardian in the City of Manila. While Leonor on the witness stand affirmed that she committed a mistake in the identification of the victim, her testimony was not however given credence by the trial court considering her wavering attitude and the apparent discrepancies noted in her testimony. Thus, the trial court said on this point: "The Court entertains serious doubts on the sincerity of the defense witness Leonor Sarabia who claims that she made a mistake in the identification of the victim." The court further commented: "Assuming for the sake of argument that there was a marked similarity in the facial features of the deceased and Amalia Sarabia and assuming further that by sheer coincidence both the victim and Amalia have a scar in their left legs, all of which might have led Leonor Sarabia into error as to the real identity of the victim, Leonor Sarabia could not have been mistaken as to the names. The victim's name is Flora and Leonor's niece was named Amalia. Besides, if Leonor was not really sure of the identity of the victim, why did she subscribe to the complaint?" And then the court concluded: "Leonor Sarabia of her own accord and free will and as guardian of the victim, instituted the original action. Such complaint, the Court believes, is sufficient to confer jurisdiction upon the court to take cognizance or try on the case on the merits." The foregoing, being a finding of fact that which is binding upon this Court in view of the fact that this appeal was taken on purely questions of law, we have no other alternative than to conclude that Leonor Sarabia filed the present action as guardian of the victim and as such complaint conferred jurisdiction upon the trial court to act on the case. The lower court, therefore, acted properly in denying the motion to dismiss filed by the defense. Wherefore the decision appealed from insofar as appellant Javier Enorio is concerned is affirmed, with one-half of the costs against said appellant. G.R. No. L-10853 May 18, 1959 THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. SALVADOR PONELAS Y INAJE AND JAVIER ENORIO Y HERNANDEZ, Defendants-Appellants. BAUTISTA ANGELO, J.: chanrobles virtual law library Salvador Ponelas and Javier Enorio were charged with rape before the Court of First Instance of Manila. Both were found guilty and sentenced each to suffer an indeterminate penalty of from 12 years of prision mayor to 20 years of reclusion temporal, to indemnify jointly and severally the heirs of the deceased in the sum of P5,000.00 and to pay the costs.chanroblesvirtualawlibrary chanrobles virtual law library Both appealed to the Court of Appeals. Pending appeal, Ponelas moved to withdraw his appeal which was granted. And when counsel for the accused gave notice that he would only raise questions of law, the case was certified to this Court as required by law.chanroblesvirtualawlibrary chanrobles virtual law library In the morning of April 25, 1955, Enrique Marcelo, a coffee vendor, went to Estero de la Quinta, near Echague, Manila, to answer a call for nature and upon reaching the place, he saw a woman in the river drowning whereupon he jumped and brought the girl to the bank to resuscitate her through artificial respiration. In the meantime, a mobile patrol arrived after having been informed of the drowning woman, while Salvador Ponelas informed a police precinct of the drowning incident. A policeman questioned the girl and asked her why she jumped into the river. She replied that she was raped by two men, pointing to Ponelas as one of them who was then around. Ponelas said nothing when he was pointed to. The woman was placed in an ambulance and taken to the North General hospital where she died the following afternoon of "respiratory failure due to marked congestion and edema of the lungs following submersion in water." The vaginal smear taken from her private organ was found positive for several complete sperm cells.chanroblesvirtualawlibrary chanrobles virtual law library Ponelas was taken to the police station and upon being investigated by a policeman, he admitted having sexual intercourse with the woman implicating one Javier Enorio. He stated that the latter used force upon the girl 1 who fought with her wooden shoes and allowed her to jump into the water which she threatened to do because Javier thought that she was mere bluffing. His statements were taken down in writing and were signed by him. Javier Enorio was subsequently arrested and investigated, and he too admitted his participation in the rape. His statements were also taken down in writing and signed by him. After the investigation, the two were taken to the scene of the crime where they enacted how they abused and ravished the woman. Photographs of the reenactment were taken.chanroblesvirtualawlibrary chanrobles virtual law library We are only concerned here with the appeal of Javier Enorio since, as already stated, the appeal of his co-accused Ponelas was withdrawn. And in this instance, his counsel merely raises the question whether the trial court had validly acquired jurisdiction over the case in view of the testimony given in court by Leonor Sarabia who signed the complaint that gave rise to the prosecution of the two defendants. In this connection, counsel poses the following questions: since the crime of rape can only be prosecuted upon complaint of the offended party, her parents, grandparents, or guardian, does failure to comply with this requirement affect the jurisdiction of the trial court?chanrobles virtual law library It appears that when the victim died as a result of her attempt to commit suicide by jumping into the river, the authorities waited for her relatives to claim for her body which was kept in the morgue for sometime. Apparently, the deceased had neither parents, grandparents, or relatives. Later, however, one Leonora Sarabia came along inquiring about niece of hers who disappeared, and so she was taken to the morgue. After the coffin was opened and Leonor and her brother were allowed to examine the cadaver, they stated that the victim was their missing niece and apparently because she made the authorities know that she was her guardian, Leonor was taken to the city fiscal's office where she filed the complaint which gave rise to the prosecution of Ponelas and Enorio.chanroblesvirtualawlibrary chanrobles virtual law library It developed, however, after the prosecution had rested its case, that Leonor was presented as witness by the defense and testified that she made a mistake in her identification claiming that although the deceased bore a marked similarity to her missing niece, she was not the one because her niece turned out to be alive. According to Leonor, the name of her missing niece was Amalia Sarabia whereas the name of the victim was Flora de Cesareo. And in view of this change in the attitude of Leonor Sarabia, counsel for the defense now contends, as he did in the lower court, that the latter lost jurisdiction over the case, invoking Article 344 of the Revised Penal Code which provides that the offense of rape can only be prosecuted upon the complaint filed by the offended party, her parents, grandparents or guardian.chanroblesvirtualawlibrary chanrobles virtual law library While under Article 344 abovementioned the offense of rape can only be prosecuted upon the complaint filed by the offended party, her parents, grandparents or guardian, and that unless this requirement is complied with the prosecution may fail on the ground of lack of jurisdiction, we believe however that in this particular case, it cannot be successfully maintained that there is a failure of compliance with this requirement it appearing that Leonor Sarabia has filed the complaint as guardian of the victim after satisfying herself that the one lying in the morgue which she carefully examined and identified was really her niece of which she stood as her guardian in the City of Manila. While Leonor on the witness stand affirmed that she committed a mistake in the identification of the victim, her testimony was not however given credence by the trial court considering her wavering attitude and the apparent discrepancies noted in her testimony.chanroblesvirtualawlibrary chanrobles virtual law library Thus, the trial court said on this point: "The Court entertains serious doubts on the sincerity of the defense witness Leonor Sarabia who claims that she made a mistake in the identification of the victim." The court further commented: "Assuming for the sake of argument that there was a marked similarity in the facial features of the deceased and Amalia Sarabia and assuming further that by sheer coincidence both the victim and Amalia have a scar in their left legs, all of which might have led Leonor Sarabia into error as to the real identity of the victim, Leonor Sarabia could not have been mistaken as to the names. The victim's name is Flora and Leonor's niece was named Amalia. Besides, if Leonor was not really sure of the identity of the victim, why did she subscribe to the complaint?" And then the court concluded: "Leonor Sarabia of her own accord and free will and as guardian of the victim, instituted the original action. Such complaint, the Court believes, is sufficient to confer jurisdiction upon the court to take cognizance or try on the case on the merits." The foregoing, being a finding of fact that which is binding upon this Court in view of the fact that this appeal was taken on purely questions of law, we have no other alternative than to conclude that Leonor Sarabia filed the present action as guardian of the victim and as such complaint conferred jurisdiction upon the trial court to act on the case. The lower court, therefore, acted properly in denying the motion to dismiss filed by the defense.chanroblesvirtualawlibrary chanrobles virtual law library Wherefore the decision appealed from insofar as appellant Javier Enorio is concerned is affirmed, with one-half of the costs against said appellant.chanroble G.R. No. L-47941 April 30, 1985 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JAIME TOMOTORGO y ALARCON, defendant-appellant. ALAMPAY, J.: Jaime Tomotorgo y Alarcon, the accusedappellant in this case, appeals from the decision rendered on December 22, 1977, by the Court of First Instance of Camarines Sur, Branch IV, in Criminal Case No. 403 of said court finding him guilty of the crime of parricide for having killed his wife Magdalena de los Santos. The dispositive portion of said judgment reads, as follows: WHEREFORE, in view of the foregoing considerations, the accused Jaime Tomotorgo y Alarcon is hereby condemned to suffer the penalty of reclusion perpetua and to indemnify the heirs of the deceased Magdalena delos Santos in the sum of P12,000.00 without subsidiary imprisonment, plus costs. And considering the circumstances under which the offense was committed, the court hereby recommends executive clemency for him, after serving the minimum of the medium penalty of prision mayor. Let copy of this decision be furnished, his Excellency, the President of the Philippines, and the Chairman of the Board of Pardons and Parole. SO ORDERED. Given at Naga City, this 22nd day of December, 1977. SGD. ALFREDO S. REBUENA Judge (Rollo, pg. 10) The facts of this case as recited in the decision of the trial court and in the appellee's brief stand uncontroverted and undisputed. From the evidence submitted it is disclosed that the victim, Magdalena de los Santos, was the wife of the herein accused. Several months prior to the occurrence of the fatal incident on June 23, 1977, Magdalena de los Santos had been persistently asking her husband to sell the conjugal home which was then located at Sitio Dinalungan, Barangay Cabugao, Municipality of Siruma, Camarines Sur. She wanted their family to transfer to the house of her husband's in-laws which is in the town of Tinambac, Camarines Sur. (TSN, pp. 6-10, December 13, 1977). Accused Tomotorgo would not accede to his wife's request. He did not like to abandon the house wherein he and his wife were then living. Furthermore, he had no inclination to leave because he has many plants and improvements on the land which he was then farming in said municipality of Siruma, Camarines Sur, a town very far from the place of his in-laws where his wife desired their family to transfer to. On June 23, 1977, at about seven o'clock in the morning, the accused left his home to work on his farm Upon his return at about nine o'clock that same morning. He found his wife and his three-month old baby already gone. He proceeded to look for both of them and sometime later on, on a trail about two hundred (200) meters from their home, he finally saw his wife carrying his infant son and bringing a bundle of clothes. He asked and pleaded with his wife that she should return home with their child but she adamantly refused to do so. When appellant sought to take the child from his wife, the latter threw the baby on the grassy portion of the trail hereby causing the latter to cry. This conduct of his wife aroused the ire of the herein accused. Incensed with wrath and his anger beyond control, appellant picked lip a piece of wood nearby and started hitting his wife with it until she fell to the ground complaining of severe pains on her chest. Realizing what he had done, the accused picked his wife in his arms and brought her to their home. He then returned to the place where the child was thrown and he likewise took this infant home. Soon thereafter, Magdalena de los Santos died despite the efforts of her husband to alleviate her pains. After the accused changed the dress of his wife, he reported the tragic incident to the Barangay Captain of their place who brought him to Policeman Arellosa to whom the accused surrendered. He also brought with him the piece of wood he used in beating his wife. Charged with the crime of parricide, the accused at his arraignment on November 24, 2 1977, with assistance from his counsel deoficio, pleaded not guilty to the said offense. However, when his case was called for trial on December 13, 1977, his counsel manifested to the court that after his conference with the accused, the latter expressed a desire to change his previous plea of not guilty to that of guilty. Accordingly, and upon motion by the counsel of the accused and without objection on the part of the prosecution, the trial court allowed the accused to withdraw his original plea. Upon being re-arraigned, the accused entered a plea of guilty. He confirmed the manifestations made by his counsel to the court regarding his desire to change his initial plea. He expressed his realization of the gravity of the offense charged against him and the consequences of his plea. His counsel was then permitted by the court to establish the mitigating circumstances which were then invoked in favor of the accused. After the accused had testified and upon his plea given in open court, the court below found him guilty of the crime of parricide, but with three mitigating circumstances in his favor, namely: voluntary surrender, plea of guilty, and that he acted upon an impulse so powerful as naturally to have produced passion and obfuscation. With the imposition by the court below of the penalty of reclusion perpetua on the herein accused and the subsequent denial of his motion for reconsideration of the judgment rendered against him, the accused through his counsel filed a notice of appeal to this Court. In his appeal, accused argues and contends that the lower court erred: 1. In disregarding its own findings of fact which showed manifest lack of intent to kill; 2. In disregarding the provisions of Article 49 of the Revised Penal Code which prescribes the proper applicable penalty where the crime committed is different from that intended; 3. In not following the mandatory sequence of procedures for determining the correct applicable penalty; 4. In denying the appellant the benefits of the Indeterminate Sentence Law. (Appellant's Brief, pg. 1, pars. 1-4) We find no merit in the appeal of the accused herein which assails only the correctness of the penalty imposed by the trial court on him. Appellant submits that the penalty for the felony committed by him which is parricide being higher than that for the offense which he intended to commit, and which he avers to be that of physical injuries only, the provisions of Article 49 of the Revised Penal Code which relate to the application of penalties should have been observed and followed by the trial court. The said provision of law which accused invokes provides that: ART. 49. Penalty to be imposed upon the principals when the crime committed is different from that intended in cases in which the felony committed is different from that which the offender intended to commit, the following rules shag be observed; 1. If the penalty prescribed for the felony committed be higher than that corresponding to the offense which the accused intended to commit, the penalty corresponding to the latter shall be imposed in its maximum period. xxx xxx xxx Continuing, appellant argues in his appeal brief submitted to this Court, that: xxx xxx xxx The felony actually committed, parricide. has a higher penalty (reclusion perpetua to death) than the felony intended, qualified physical injuries (reclusion temporal medium and maximum). Hence, since the penalty corresponding to the felony intended shall be imposed in its maximum period, the prescribed penalty is therefore reclusion temporal maximum. This is a divisible penalty. Under Article 64, sub-par. 5, of the Penal Code, When there are two or more mitigating circumstances and no aggravating circumstances are present, the court shall impose the penalty next lower to that prescribed by law, in the period that it may deem applicable, according to the number and nature of such circumstances. The trial court itself found "that the accused is entitled to three (3) mitigating circumstances with no aggravating circumstances, namely: voluntary surrender, plea of guilty, and obfuscation. We submit that the plea of guilty, which, as we had shown earlier, was improvidently made, should no longer be considered. This leaves only two mitigating with no aggravating. Sufficient compliance with the law. Hence, an automatic lowering of the penalty by one degree, or to reclusion temporal medium This being a case where a period constitutes the entire range of the penalty prescribed, and therefore, also a degree. (Appellant's Brief, pp. 8-9) Appellant maintains the belief that he should be punished only for the offense he intended to commit which he avers to be serious physical injuries, qualified by the fact that the offended party is his spouse. Pursuant to the sub-paragraph of paragraph 4 of Art. 263 of the Revised Penal Code and as his wife is among the persons mentioned in Art. 246 of the same code, appellant contends that the penalty imposable should then be reclusion temporal in its medium and maximum periods. On this mistaken premise, appellant therefore claims that the penalty prescribed by law for his offense is divisible and he should thus be entitled to the benefits of the Indeterminate Sentence Law. These contentions of the accused are manifestly untenable and incorrect. Article 4 of the Revised Penal Code expressly states that criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act be different from that which he intended and that the accused is liable for all the consequences of his felonious acts. The reference made by the accused to Article 263 of the Revised Penal Code which prescribes graduated penalties for the corresponding physical injuries committed is entirely misplaced and irrelevant considering that in this case the victim died very soon after she was assaulted. It will be, therefore, illogical to consider appellant's acts as falling within the scope of Article 263 of the Revised Penal Code. The crime committed is parricide no less. We are in complete accord with and we sustain the ruling made by the courts below that the accused is not entitled to the benefits of the Indeterminate Sentence Law. The court sustains the submissions of the appellee that — ... Article 49 of the Revised Penal Code does not apply to cases where more serious consequences not intended by the offender result from his felonious act because, under Article 4, par. I of the same Code, he is liable for all the direct and natural consequences of his unlawful act. His lack of intention to commit so grave a wrong is, at best mitigating (Article 13, par. 3). Article 49 applies only to cases where the crime committed is different from that intended and where the felony committed befalls a different person (People vs. Albuquerque, 59 Phil. 150). Article 246 of the Revised Penal Code punished parricade with the penalty of reclusion perpetua to death, which are two indivisible penalties. As the commission of the act was attended by mitigitating circumstances with no aggravating circumstances, the lesser penalty, which is reclusion perpetua, should be imposed (People vs. Laureano, et al., 71 Phil. 530; People vs. Francisco, 78 Phil. 697; People vs. Belarmino, 91 Phil. 118) Appellee's Brief, pp. 6-7). (Emphasis supplied) We hold that the fact that the appellant intended to maltreat the victim only or inflict physical imjuries does not exempt him from liability for the resulting and more serious crime committed. In the case of People vs. Climaco Demiar, 108 Phil. 651, where the accused therein had choked his mother in a fit of anger because the latter did not prepare any food for him, it was ruled that hte crime committed by Demiar is parricide (Article 246, Revised Penal Code), the deceased victim of his criminal act being his legitimate mother. Said crime was declared as punishable with reclusion perpetua to death. As the mitigating circumstance of alck of intent to commit so grave a wrong. (Article 13 (3 Id.) The penalty imposed on the herein accused is therefore correct in the light of the relevant provisions of law and jurisprudence. The trial court in its consideration of this case had added a recommendation that "executive clemency be extended to the accusedappellant after his service of the minimum of the medium penalty of prison mayor." The Solicitor General likewise concludes and prays in the People's Brief that in view of the circumstances which attended the commission of the offense, a recommendation for the commutation of the penalty would be appropriate. (Appellee's Brief, pg. 7). This Court is constrained to take note that the accused-appellant is said to have been in detention since June 23, 1977 or for more than seven years already. This Court can do no less than express its hope that hte accused-appellant can be now extended an absolute or conditional pardon by the President of the Republic of the Philippines or that there be a commutation of his sentence so that he may qualify and be eligible for parole. WHEREFORE, the appealed judgment is hereby affirmed without any pronouncement as to costs. Considering the circumstances which attended the commission of the offense, the manifest repentant attitude of the accused and his remorse for his act which even the trial court made particular mention of in its decision and the recommendation made by the Office of the Solicitor General as well as number of years that the accused-appellant had been imprisoned, this Court can do no less than recommend that executive clemency be extended to the accusedappellant, Jaime Tomotorgo y Alarcon, or that his sentence be commuted so that he can now qualify and be considered eligible for parole. This recommendation of the Court should be promptly brought to the attention of the President of the Republic of the Philippines by the proper authorities in whose custody the herein accused has been placed. Aside from this, let copy of this decision be furnished the Office of the President of the 3 Republic of the Philippines and the Chairman of the Board of Pardons and Parole. September 28, 1935 G.R. No. 42607 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. JUAN QUIANZON, defendant-appellant. RECTO, J.: Charged with and convicted of the crime of homicide in the Court of First Instance of Ilocos Norte, and sentenced to an indeterminate penalty of from six years and one day of prision mayor, as minimum to fourteen years, seven months and one day of reclusion temporal, as maximum, Juan Quianzon appeal to this court for the review of the case. On February 1, 1934, a novena for the suffrage of the soul of the deceased person was being held in the house of Victoria Cacpal in a barrio, near the poblacion, of the municipality of Paoay, Ilocos Norte, with the usual attendance of the relatives and friends. The incident that led to the filling of these charges took place between 3 to 4 o'clock in the afternoon. Andres Aribuabo, one of the persons present, went to ask for food of Juan Quianzon, then in the kitchen, who, to all appearances, had the victuals in his care. It was the second or third time that Aribuabo approached Quianzon with the same purpose whereupon the latter, greatly peeved, took hold of a firebrand and applied ran to the place where the people were gathered exclaiming that he is wounded and was dying. Raising his shirt, he showed to those present a wound in his abdomen below the navel. Aribuabo died as a result of this wound on the tenth day after the incident. There is no conflict between the prosecution and the defense as regards the foregoing facts. The question to be determined is who wounded Aribuabo. The prosecution claims that it was Juan Quianzon and, to prove it, called Simeon Cacpal, Roman Bagabay, Gregorio Dumlao and Julian Llaguno to the witness stand. The first witness, Simeon Cacpal, claims to have witnessed the wounding of Andres Aribuabo in the abdomen by Juan Quianzon. However, we find the testimony of this witness so improbable, incongruent and contradictory that we consider meritorious the claim of the defense that it was an error of the lower court to have taken it into consideration in formulating the findings of its judgment. Not so with respect to the testimony of the other witnesses. Roman Bagabay, one of the persons present at said gathering, testified that he saw Juan Quianzon apply a firebrand to the neck of Andres Aribuabo who shortly afterwards went toward the place where the witness and the other guests were gathered, telling that he was wounded and was going to die and naming Juan Quianzon as the person who wounded him. He also testified that Juan Quianzon, upon being asked immediately by him about the incident, admitted to him attacked Aribuabo with a bamboo spit. Gregorio Dumalao, a barrio lieutenant, who, upon being informed of the incident, forthwith conducted an investigation, questioned Aribuabo and the latter told him that it was the accused who had wounded him. He likewise questioned the accused and the latter, in turn, stated that he had wounded the deceased with a bamboo spit. Upon being brought before Juan Llaguno, chief of police of Paoay, for questioning, Quianzon confessed to Llaguno that he had applied a firebrand to Aribuabo's neck and had later wounded him with a bamboo spit. Before the chief of police could put this confession of Quianzon in writing, the later retracted, denying that he had wounded Aribuabo, for which reason in the affidavit Exhibit B the fact of having applied a firebrand to Aribuabo's neck appears admitted by Quianzon but not of having wounded the deceased with a bamboo spit. The disinterestedness of these three witnesses for the prosecution, Bagabay, Dumalo and Llaguno, is not questioned by the defense. Neither the accused, in his testimony, nor his counsel, in the brief filed by him in this court, was able to assign any unlawful, corrupt or wicked motive that might have actuated them to testify falsely in this case and knowingly bring about the imprisonment of an innocent person. Bagabay is not even a relative of the deceased. Dumlao, the barrio lieutenant, is a nephew of the accused. Llaguno, chief of police of Paoay, is an officer of the law whose intervention of this case was purely in compliance with his official duties. All the appellant has been able to state in his brief to question the credibility of these witnesses is that they were contradicted by Simeon Cacpal, the other witness for the prosecution, who testified that he had not seen them speak neither to Aribuabo nor to Quianzon in the afternoon of the crime. But the position of the defense in invoking Simeon Cacpal's testimony for the purpose of discrediting the other witnesses for the prosecution is untenable, after having vigorously impeached said testimony, branding it as improbable, incongruent and contradictory. If Cacpal is a false witness — and the court believes this claim of the defense as true — , none of his statements may be taken into account or should exert any influence in the consideration of the other evidence in the case. After discharging testimony of Simeon Cacpal, the evidence presented by the prosecution relative to the appellant's criminal liability for the death of Andres Aribuabo, briefly consists, first, in the victim's statement immediately after receiving the wound, naming the accused as the author of the aggression, and the admission forthwith made by the accused that he had applied a firebrand to Aribuabo's neck and had wounded him, besides, with a bamboo spit. Both statements are competent evidence in the law, admissible as a part of the res gestae (section 279 and 298, No. 7, of the Code of Civil Procedure; U.S. vs. Macuti, 26 Phil., 170; People vs. Portento and Portento, 48 Phil., 971). Second, in the extrajudicial confession of the accused to the barrio lieutenant, Dumlao, and later to the chief of police Llaguno, in the same afternoon of the crime, that he was the author of Aribuabo's wound and that he had inflicted it by means of a bamboo spit. Inasmuch as this confession, although extrajudicial, is strongly corroborated and appears to have been made by the accused freely and voluntarily, it constitutes evidence against him relative to his liability as author of the crime charged (U.S. vs. so Fo, 23 Phil., 379; People vs. Cabrera, 43 Phil., 64, 82; U.S. vs. Jamino, 3 P.R.A., 52; Francisco's Quizzer on Evidence). The defense of the accused consisted simply in denying that he had wounded the deceased and that he had confessed his guilt to the witnesses Bagabay, Dumlao and Llaguno. But such denial cannot prevail against the adverse testimony of these three veracious and disinterested witnesses, all the more because neither the accused nor any other witness for the defense has stated or insinuated that another person, not the accused, might be the author of the wound which resulted in Aribuabo's death, and because it is admitted by the defense that it was the accused, whom Aribuabo had been pestering with request for food, who attacked the latter, burning his neck with a firebrand, afetr which Aribuaboappeared wounded in the abdomen, without the accused and the witnesses for the defense explaining how and by whom the aggression had been made. It is contended by the defense that even granting that it was the accused who inflicted the wound which resulted in Aribuabo's death, he should not be convicted of homicide but only of serious physical injuries because said wound was not necessarily fatal and the deceased would have survived it had he not twice removed the drainage which Dr. Mendoza had placed to control or isolate the infection. This contention is without merit. According to the physician who examined whether he could survive or not." It was a wound in the abdomen which occasionally results in traumatic peritonitis. The infection was cause by the fecal matter from the large intestine which has been perforated. The possibility, admitted by said physician that the patient might have survived said wound had he not removed the drainage, does not mean that the act of the patient was the real cause of his death. Even without said act the fatal consequence could have followed, and the fact that the patient had so acted in a paroxysm of pain does not alter the juridical consequences of the punishable act of the accused. One who inflicts an injury on another is deemed by the law to be guilty of homicide if the injury contributes mediately or immediately to the death of such other. The fact that the other causes contribute to the death does not relieve the actor of responsibility. . . . (13 R. C.L., 748.) Furthermore, it does not appear that the patient, in removing the drainage, had acted voluntarily and with the knowledge that he was performing an act prejudicial to his health, inasmuch as self-preservation is the strongest instinct in living beings. It much be assumed, therefore, that he unconsciously did so due to his pathological condition and to his state of nervousness and restlessness on account of the horrible physical pain caused by the wound, aggravated by the contract of the drainage tube with the inflammed peritoneum. "When the peritonitis is due to traumatism, or to a perforation of the stomach, intestine or gall-bladder, etc., it is indicated by violent shivering and pain first localized at a point in the abdomen, extending later to the entire abdominal wall; acute intolerable pain, which is aggravated by the slightest movement, becoming unbearable upon contact with the hand, a rag, or the bedclothes. The pain is continuous but it gives frequent paroxysms. The abdomen is swollen, tense. Vomittings of the greenish matter, which are very annoying and terribly painful, take from the beginning and continue while the disease lasts." (XVI Spanish-America Encyclopaedic Dictionary, 176; see also XXI Encyclopaedia Britannica, 1911 ed., 171.) If to this is added the fact that the victim in this case was mentally deranged, according to the defense itself, it 4 becomes more evident that the accused is wrong in imputing the natural consequences of his criminal act to an act of his victim. The question herein raised by the appellant has already been finally settled by jurisprudence. The Supreme Court of Spain, in a decision of April 3, 1879, said in the case similar to the present, the following: "Inasmuch as a man is responsible for the consequences of his act — and in this case the physical condition and temperament of the offended party nowise lessen the evil, the seriousness whereof is to be judged, not by the violence of the means employed, but by the result actually produced; and as the wound which the appellant inflicted upon the deceased was the cause which determined his death, without his being able to counteract its effects, it is evident that the act in question should be qualified as homicide, etc." In the case of People vs. Almonte (56 Phil., 54), the abdominal wound was less serious than that received by Aribuabo in this case, as it was not penetrating, merely involving the muscular tissue. In said case the death of the victim was due to a secondary hemorrhage produced twenty-four hours after the wound had been inflicted, because of the "bodily movements of the patient, who was in a state of nervousness, sitting up in bed, getting up and pacing about the room, as as a consequence of which he internal vessels, already congested because of the wound, bled, and the hemorrhage thus produced caused his death." The court in deciding the question stated that "when a person dies in consequence of an internal hemorrhage brought on by moving about against the doctor's orders, not because of carelessness or a desire to increase the criminal liability of his assailant, but because of his nervous condition due to the wound inflicted by said assailant, the crime is homicide and not merely slight physical injuries, simply because the doctor was of the opinion that the wound might have healed in seven days." The grounds for this rule of jurisprudence are correctly set forth in 13 R.C.L., 751, as follows: While the courts may have vacilated from time to time it may be taken to be settled rule of the common law that on who inflicts an injury on another will be held responsible for his death, although it may appear that the deceased might have recovered if he had taken proper care of himself, or submitted to a surgical operation, or that unskilled or improper treatment aggravated the wound and contributed to the death, or that death was immediately caused by a surgical operation rendered necessary by the condition of the wound. The principle on which this rule is founded is one of universal application, and lies at the foundation of the criminal jurisprudence. It is, that every person is to be held to contemplate and to be responsible for the natural consequences of his own acts. If a person inflicts a wound with a deadly weapon in such a manner as to put life in jeopardy, and death follows as a consequence of this felonious and wicked act, it does not alter its nature or diminish its criminality to prove that other causes cooperated in producing the fatal result. Indeed, it may be said that neglect of the wound or its unskillful and improper treatment, which are of themselves consequences of the criminal act, which might naturally follow in any case, must in law be deemed to have been among those which were in contemplation of the guilty party, and for which he is to be held responsible. But, however, this may be, the rule surely seems to have its foundation in a wise and practical policy. A different doctrine would tend to give immunity to crime and to take away from human life a salutary and essential safeguard. Amid the conflicting theories of the medical men, and the uncertainties attendant upon the treatment of bodily ailments and injuries, it would be easy in many cases of homicide to raise a doubt as to the immediate cause of death, and thereby to open a wide door by which persons guilty of the highest crime might escape conviction and punishment. Assuming that we should disregard Simeon Cacpal's testimony, there is no evidence of record that the crime charged was committed by means of the knife, Exhibit A, and we only have the extrajudicial admission of the accused that he had committed it by means of a bamboo spit with which the wound of the deceased might have been caused because, according to the physician who testified in this case, it was produced by a "sharp and penetrating" instrument. Inasmuch as the mitigating circumstances of lack of instruction and of intention to commit so grave a wrong as the committed should be taken into consideration in favor of the appellant, without any aggravating circumstances adverse to him, we modify the appealed judgment by sentencing him to an indeterminate penalty with a minimum of four years of prision correccional and a maximum of a eight years of prision mayor, affirming it in all other respect, with cost to said appellant. September 7, 1931 G.R. No. 35006 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. PURIFICACION ALMONTE, defendantappellant. . IMPERIAL, J.: Purificacion Almonte is charged with the crime of homicide, the information reading as follows: The undersigned provincial fiscal charges Purificacion Almonte with the crime of homicide, committed as follows: That on or about October 1, 1930, in the municipality of Sorsogon, Province of Sorsogon, Philippine Islands, and within the jurisdiction of this court, the aforementioned accused did willfully, unlawfully, and feloniously beat, attack, and assault one Felix Te Sue with a knife, which she carried, producing a wound in the abdomen which was the immediate cause of the death of the said Felix Te Sue. Contrary to law. Sorsogon, Sorsogon, November 7, 1930. (Sgd.) JACINTO YAMZON Provincial Fiscal The accused pleaded not guilty, and after the trial, at which she was represented by counsel, she was convicted of the said crime of homicide, and sentenced to fourteen years, eight months, and one day of reclusion temporal, to indemnify the heirs of the deceased in the sum of P1,000, and to pay the costs. The defendant appealed. The facts which have been proved beyond question are as follows: Until a week before the crime, the accused lived maritally with the Chinaman Felix Te Sue who was a married man. Because one Miguela Dawal, with whom he had also lived maritally, threatened to bring suit against him unless he rejoined her, the Chinaman and the accused voluntarily agreed to separate. From that time on Te Sue lived in the barrio of Guinlajon, municipality of Sorsogon, Province of Sorsogon, together with the said Miguela Dawal. On the morning of October 1, 1930, the accused visited her former paramour and on entering the house, found him with Miguela. When Te Sue saw her, he approached and told her to go away at once because her new paramour might get jealous and do her harm. The accused insisted upon remaining, and on being pushed by Te Sue and Miguela, feeling that she was being unjustly treated, took hold of a small penknife she carried and stabbed the man in the abdomen. Horrified, perhaps, at her deed, she fled to the street, leaving the blade sticking in her victim's abdomen, and, taking the first bus that chanced to pass, finally went home. The injured man was at once taken to the provincial hospital where he was given first aid treatment, and Doctor Ortega performed a slight operation upon him, cleaning and sewing up his wound. It was not serious, according to the doctor, and might be healed in a week; but on the sixth day the patient succumbed to complications which we shall treat of later on. The relatives of the deceased paid a little over P200 for the hospital treatment and the expenses of his last illness. In this instance the defense assigns the following alleged errors as committed by the trial court in its judgment: I. The trial court erred in holding that the unnecessary movements of the deceased while in the provincial hospital of Sorsogon for medical treatment were caused by the pain of the wound inflicted by the accused. II. The trial court erred in holding the accused criminally responsible for the secondary hemorrhage which caused the death of the deceased. III. The trial court erred in holding the accused responsible for the death of the offended party as the direct and immediate consequence of the wound inflicted by the accused. IV. The trial court erred in holding the accused of the crime of homicide as charged in the information instead of lesiones leves as supported by the evidence in this case. The first three assignments of error raise questions of fact and what really caused the death of the deceased. It is strongly argued that the judgment appealed from is erroneous in finding that the deceased's movements, which Doctor Ortega declares were the cause of the secondary hemorrhage that produced his death, were due to the pain felt after the operation and during his illness. It is contended that according to the record, the real cause of the movements was, so the deceased himself declared, the excessive warmth of the bed and the fact that he was unaccustomed to such a bed. To ascertain this important point requires a careful examination of the evidence upon this particular. Doctor Eduardo Ortega, in charge of the Sorsogon Provincial Hospital, a physician of admitted ability and skill, speaking of the patient's physical condition when he entered the hospital, testified as follows: Q. What was the result of your examination? — A. I found a wound in the abdomen, on the left side near the umbilical region; it was 5 not deep and did not penetrate very far, but it passed through the muscle tissue. Q. What caused the death of Felix Te Sue? — A. He died of a secondary internal hemmorhage. Q. How? — A. The wound was caused by a certain blow, because the penknife was not very sharp; the force of the blow which introduced the knife into the flesh produced a secondary congestion of the internal organ so that any unnecessary movement on the patient's part would cause congestion of the veins, or would make them more congested and cause them to bleed. Q. And in the case of Felix Te Sue, did they bleed? — A. He began to bleed after he had been twenty-four hours in the hospital. Q. Why do you call it a secondary hemorrhage? — A. There are many kinds of hemorrhages: Primary, in this particular case, if the wound had reached the internal organs and severed the veins of those organs it would be called a primary hemorrhage because it was directly caused by the wound; but there was no immediate hemorrhage after the wound was inflicted, but twenty-four hours later; in other words, there was what is called a secondary hemorrhage. Q. You also said that Felix Te Sue had made an unnecessary movement? — A. Yes, sir. Q. Can you tell the court what were those unnecessary movements? — A. Those movements were the following: The patient began by moving from side to side; then he would sit up at night, and perhaps jump out of bed, and begin walking about; when asked why he did that, contrary to medical instructions, he explained that he could not lie down because the bed was to warm, and that he was not used to lying to bed. Q. Do you mean to say that the patient's movements brought on the secondary internal hemorrhage? — A. Yes, sir, they produced the secondary internal hemorrhage. Q. And he died because of that secondary internal hemmorhage? — A. Yes, sir. Q. Was the wound alone, as treated by you, sufficient to cause the death of Felix Te Sue? — A. If the patient had lain in bed quietly, in order to avoid increasing the congestion of the internal veins, there would have been no secondary hemorrhage. Q. But the wound you treated could have been healed? — A. Yes, sir; it could have been. Q. In how many days could it have been healed? — A. That wound, if there had been no secondary infection, would have healed up in a week. Q. You said that Felix Te Sue had been asked why he moved about contrary to the physician's instructions; what instructions did you give him? — A. As soon as he had been admitted into the hospital, he was examined, and then made to lie in bed. Medical treatment was then administered, and he was given to understand that he should remain in bed, for any unnecessary movement might aggravate his condition, and that what he needed was complete rest. Q. If he had not made those movements, do you think death would have ensued? — A. I am very sure he would not have had that secondary hemorrhage, because as a matter of fact, during the first twenty-four hours he had no symptoms of having an internal hemorrhage. Q. And that internal congestion of the veins, although those veins contained more blood than usual, would not have caused the hemorrhage? That is to say, the veins would not have burst, if the patient Felix Te Sue had not moved about, as you have said? — A. Yes, sir; that internal congestion would have not burst if the patient had not moved about. Q. Can you tell us, doctor, why strangers who know nothing about the care of the sick are placed in charge of a patient so delicate that his moving may cause his death, as indeed it did, in this case? — A. The patient was not placed in the care of strangers; we have nurses to attend and see to the patient as often as it is needed, besides the physician's visits to him; but even in the presence of the doctor and the hospital attendants, and after we had put the patient to bed, he continued to struggle with us. Q. Do you mean to say, then, that Felix Te Sue was fastened in his bed, and in spite of that he was able to leave it a walk about? — A. He left his bed the first day after the operation, and immediately after it, when he was not fastened in because he did not seem to be violent. (Pages 16-22, transcript of the stenographic notes.) From the foregoing testimony it may be inferred: That the deceased was stabbed on the left side of the abdominal region, near the navel; that the wound did not involve any internal organ; that upon arriving at the hospital, he was submitted to a minor operation which consisted in cleaning, medicating, and suturing the wound; that upon his arrival, the patient was in a nervous state; that during the operation they tied down the patient; that immediately after the operation Doctor Ortega admonished him to keep quiet because any movement he might make would change his pathological state for the worse and bring about dangerous complication; that in spite of this admonition the deceased moved about, sitting up in bed, getting up and pacing about the room; that because of this, the internal vessels, already congested because of the wound, bled, and the hemorrhage thus produced caused his death. The defense contends, with which the Attorney-General agrees, that according to Doctor Ortega's testimony the determining cause of Te Sue's death was not he wound inflicted by the accused, but his own carelessness in moving about against the doctor's orders, which produced the internal hemorrhage. We agree with both parties that according to Doctor Ortega, the immediate and determining cause of the death was none other than the internal hemmorhage produced by the rupture of the abdominal blood vessels; but we cannot agree, in view of the evidence, that the real cause of said death was not the wound inflicted upon the victim. Carefully analyzing Doctor Ortega's testimony, we reach the inevitable conclusion that the internal veins were congested from the beginning because of the force of the blow which produced the wound, for that is what the doctor means when he says that "the wound was caused by a certain blow, because the penknife was not very sharp, the force of the blow which introduced the knife into the flesh produced a secondary congestion of the internal organ so that an unnecessary movement on the patient's part would cause congestion of the veins, or would make them more congested, causing them to bleed"; and that what really impelled the patient to violate the doctor's orders, by sitting up in bed and pacing about the room, was not, as the defense insinuates, a desire to aggravate the criminal liability of the accused, but simply his nervous condition, which was noted from the moment he entered the provincial hospital. It was not the warmth of the bed or his not being used to it that made the patient act as he did, but the pathological state created by the illness brought on by the wound from which he was suffering. We are convinced that under normal conditions, if the patient had not been ill, he would not have violated the doctor's orders, knowing, as he did, that the slightest movement might occasion a complication or internal hemorrhage capable of causing death. The point raised by Viada in volume 3 of his work, pages 41 and 42, involves facts similar to those established in this case, and we believe the decision of the Supreme Court of Spain is perfectly applicable to this case: Even when the doctors say that the death was due not so much to the wound, which in a better constituted person would have healed in thirty or forty days, as to the patient's purely nervous temperament, his irritability and other causes, all of which depend upon his physical constitution: — should such a death be qualified as HOMICIDE? The Supreme Court has ruled affirmatively: "Inasmuch as a man is responsible for the consequences of his act — and in this case the physical condition and temperament of the offended party nowise lessen the evil, the seriousness whereof is to be judged, not by the violence of the means employed, but by the result actually produced and as the wound which the appellant inflicted upon the deceased was the cause which determined his death, without his being able to counteract its effects, it is evident that the act in question should be qualified as homicide, etc." (Decision of April 3, 1879, published in the Gazette on the 16th of June.) In the case cited the doctors were of the opinion that death was not an immediate consequence of the wound received, but was rather due to the victim's purely nervous temperament, his irritability and other causes, peculiar to his physical constitution. In the case in question, it is sought to attribute the internal hemorrhage that directly caused death, not to the wound or injury, but the patient's movements, overlooking the fact that they were due to his nervous condition, and that this state of nervousness could only be the result of the wound inflicted by the appellant. We hold, therefore, that the real cause of death in this case was not the bodily movements referred to, but the congestion of the internal veins produced beforehand by the force of the blow which caused the wound and the nervous condition of the deceased. In United States vs. Sornito (4 Phil., 357), we held that "In crimes against the life of a human being the results and effects of the criminal acts must necessarily be taken into consideration in order to establish the seriousness and extent of the evil or injury produced and to define the crime in 6 accordance with the law. It must also be taken into consideration that the guilty parties are responsible under the law for all the unlawful acts executed by them in violation of its principles and for all the consequences of those acts." In United States vs. Montes (6 Phil., 443), we also held that "Where a person voluntarily and with intent of injuring another commits an act which is notoriously unlawful, he shall be held responsible for the consequences of his criminal action, even though when such wrongful act constitutes the crime of homicide it appears that he had no intention of killing the deceased." In United States vs. Navarro (7 Phil., 713), we reaffirmed the same principle holding that "`the firm and unalterable jurisprudence of the Supreme Court (interpreting the Penal Code now in force and effect) is that the crime of homicide is committed when death ensues or follows, as the result of a wound inflicted by another, whether the death be the precise and necessary consequence of the injuries or wounds, or whether death resulted from accidents caused or brought on by reason of such wounds or injuries received by the patient.' (Judgment of the Supreme Court of Spain, May 8, 1890.) `It is the firm and unalterable doctrine, and so held by the Court of Cassation, that the aggressor is responsible for all the natural consequences of the aggression when these consequences do not owe their origin to acts or malicious omissions imputable to the assaulted party.' (Judgment of the Supreme Court of Spain, May 30, 1892.)" The same doctrine was laid down in United States vs. Monasterial (14 Phil., 391). Here it was held among other things, "persons who are responsible for an act constituting a crime are also liable for all the consequences arising therefrom and inherent therein, other than those due to incidents entirely foreign to the act executed, or which originate through the fault or carelessness of the injured person, which are exceptions to the rule not arising in the present case." At this juncture it is well to remember that, as we stated in the beginning, the patient's nervous condition when the complication or internal hemorrhage which caused death set in, was an inherent physiological condition produced by the wound in the abdomen. It goes without saying that if he had not been wounded he would not have undergone that extraordinary state and condition, nor have had to leave his bed during the critical stage of his illness. Lastly, in United States vs. Zamora (32 Phil., 218), we held that "One who performs a criminal act should be held to liability for the act and for all of its consequences, although both were inflicted upon a person other than the one whom the felon intended to injure." The cases which the Attorney-General cites in his brief are not applicable, for the reason that in them all the deaths were due to alien acts, malicious and imprudent, performed by the injured persons themselves. We have shown that in the case at bar the real and actual cause of death of the deceased was the hemorrhage of the internal veins, which had already been congested by the wound produced and the patient's nervous condition, rather than the so-called bodily movements, and that these, if they were the immediate cause of his death, were the direct consequence of the patient's pathological condition or nervousness. At any rate, they are both traceable to the wound inflicted by the accused. The last assignment of error is but a corollary to the first three, which have just been refuted, and it is contended that the accused can only be convicted of slight physical injuries, instead of the serious crime of homicide. If the appellant must answer for all the consequences of her acts voluntarily performed, as we have shown, it necessarily and logically follows that she must be convicted of the graver offense. The appellant is entitled to the mitigating circumstances of not having intended to commit so serious a crime as that committed, and of having acted with passion and obfuscation. The first is shown by the fact that she made use of a small penknife, and the second, by the fact that before the attack she had been pushed out of the room where the victim was, and that she considered such treatment as an offense or abuse. The penalty must therefore be reduced one degree or to prision mayor. Wherefore, the judgment appealed from is modified and the appellant is sentenced to eight years and one day of prision mayor, to indemnify the heirs of the deceased in the amount of P500, to suffer the accessory penalties of article 61 of the Penal Code, and to pay the costs of both instances. So ordered. Avanceña, C.J., Johnson, Street, and Villamor, JJ., concur. Separate Opinions VILLA-REAL, J., dissenting: It appears from the testimony of Dr. Eduardo Ortega that immediately after being wounded by the accused, Felix Te Sue went to the hospital of Sorsogon where he was examined by said doctor, who found that he had a wound on the left side of the abdomen near the umbilical region, which while it penetrated the muscle tissue, was not deep and did not produce a primary hemorrhage, for it did not reach the internal organs, and might be healed in seven days. A minor operation was performed upon him, but in order to do so, he had to be tied down, because he was afraid. After the operation he was put to bed, given medical treatment, and to told to keep quiet because he needed complete rest and any unnecessary movement might have aggravate his condition. Besides the hospital nurses and attendants, two relatives to the injured person watched him night and day. As the penknife was not sharp, the force of the blow by which it was introduced into the flesh produced a secondary congestion in the internal organ, which, through any unnecessary movement on the patients part might cause congestion of the veins. After twenty four hours had passed without any indication if an internal hemorrhage, it set in with the bursting of the congested veins, because the patient, disobeying the doctor's orders, moved from side to side, sat up in a bed at night, got up, and paced about the room, notwithstanding the warnings of the nurses and relatives, who attended him, saying that he could not remain lying down because the bed was too warm for him, and that he was not used to that kind of furniture. In the opinion of the physician, the patient would not have suffered a secondary hemorrhage and death would not have occurred, if he had not moved about. In finding the defendant-appellant guilty of the crime of homicide and not merely of slight physical injuries, the majority rely upon the holding that the movements made by the patient against the doctor's orders, which caused the rupture of the veins already congested by the impact of the blow, were due to his nervous condition and not to the excessive warmth he felt or to his not being used to sleeping in a bed. The doctor who examined the deceased, and upon whose testimony the majority base their conclusion, said nothing about the victim's nervous temperament, nor has the latter said he was so. The doctor said quite plainly — and we have no reason to doubt him — that the patient's restlessness was due to the fact that the bed was to warm for him, and that he was not used to it. One need not have a nervous temperament in order to look for coolness and comfort in sleeping. If the injured man, for the sake of a cooler and more comfortable bed, wished to risk his life — by a purely conscious and voluntary act — violating the doctor's instructions and refusing to listen to his warnings and those of the persons attending him, he alone must be held responsible for his own death, which resulted from his carelessness; and such death cannot be attributed to the person who wounded him slightly, and who is, indeed, responsible for the natural and logical consequences of such a voluntary act, but not for the death, which as we have seen, was not a natural and logical consequence of the wound. Very similar to this are the cases cited by Viada in volume V of the fifth edition of his commentaries, where the Supreme Court of Spain laid down the following doctrines: QUESTION 22. If the immediate cause of death was traumatic erysipelas complicated with meningoencephalitis arising form the erysipelas itself, and the remote and original cause of the latter was the wound inflicted by the defendant on the upper part of the offended party's left parietal bone, although if the victim were not predisposed to erysipelas, had not gone out in the open, and had been given proper medicine, it is probable the accident would have been avoided and the wound healed in thirty days. Is the person who inflicted the wound guilty of homicide or of physical injuries? The Supreme Court has held in favor of the latter and lighter offense, arguing to make the special circumstances stated above qualify the act prosecuted as consequences of grossly imprudent acts and omissions of the injured person, which unfortunately brought on his death, and which in all justice and reason can only be imputed to the latter, and not to the defendant, who had no share in them and could not have prevented them. (Decision of June 15, 1874, Gazette for August 26th.) 5 Viada, 5th edition, page 80. QUESTION 23. When a wound in the head, which is essential a less serious physical injuries, gives rise to traumatic erysipelas, which in turn produces cerebral meningitis from which the person injured dies in eleven days, and the doctors declare that the erysipelas may have been due to the patient's carelessness in constantly exposing himself to a draft: Is the act homicide or merely less serious physical injuries? The Audiencia of Granada held in favor of the former, but upon appeal on the ground that articles 419 and 433 of the Code had been violated, because the crime of less serious physical injuries was penalized as if it were homicide, the Supreme Court held that the appeal had been well taken, because according to the opinion of the doctors, the erysipelas which preceded the meningitis that produced death may have been due to the patient's carelessness in constantly exposing himself to a draft, 7 contrary to said doctors' orders; and as it is not alleged that the other causes which might have contributed to it actually occasioned the death, there is some doubt, for a crime is determined by the act wherein it consists, and if this be so, the crime in question is none other than less serious physical injuries. (Decision of December 17, 1878, Gazette of February 7, 1879.) 5 Viuda, 5th edition page 81. QUESTION 24. If the verdict it is stated that the wounds inflicted upon the deceased by the defendant would have healed, with the loss of the arm, had it not been for complications due to make mistakes committed by the doctor in the surgical operation and treatment: Is the crime homicide? It was so held by the Audiencia of Jaen; but upon appeal taken by the accused, the Supreme Court only found him guilty of the crime of serious physical injuries : "Whereas, although as this court has repeatedly held, a person is liable for all justiciable acts contrary to law and for all the consequences thereof, having inflicted physical injuries, from which or from whose direct or immediate consequences death results, either incidentally or accidentally, the offender must answer for the ultimate result of his act, i. e., for the death resulting from the injury he inflicted, — yet this principle is not applicable where it clearly appears that the injury would not have caused death, in the ordinary course of events, but would have healed in so many days, and where it is shown beyond all doubt that the death is due to the malicious or careless acts of the injured person or a third person, because it is a more and equitable principle universally recognized and constantly applied, that one is accountable for his own acts and their natural or logical consequences, and not for those which bear no relation to the initial cause and are due to the carelessness, fault, or lack of skill of another, whether it be the injured man himself or a third person: Whereas, the proper jury having been found, upon the strength of the evidence before it, that the wounds inflicted by the appellant Jeronimo Navarro upon Bartolome Martinez would have healed, with the loss of an arm, had it not been for certain complications due to the mistakes committed by the doctor in the surgical operations and treatment thereof, it is obvious that following the doctrine set forth in the foregoing reasonings, the appellant should not have been convicted of the crime of homicide, but merely of serious physical injuries with the loss of a principal member, this being the only consequence imputable to him in view of his act, inasmuch as the death was due wholly to another person's carelessness or lack of skill, etc." (Decision of April 2, 1903, Gazette of May 23rd.) 5 Viada, 5th edition, page 81.) In the first two cases cited, it will be observed that the deceased received less serious physical injuries and that death was due to their own carelessness or abuses committed by them. In the third case, the deceased had been seriously injured, but died as a result of the mistakes of the doctor in the surgical operation and treatment of the injuries. The Supreme Court of Spain held them criminally liable for the crime of less serious physical injuries in the first two, and of serious physical injuries in the third, because these, and not homicide were the natural consequences of their unlawful acts, inasmuch as death was the result of carelessness and abuses committed by the injured persons themselves, and of the mistakes of the doctor in the surgical operation and treatment of the wounds. In United States vs. Embate (3 Phil., 640), where the real cause of death could not be determined, this court, through Chief Justice Arellano, held: All the witnesses attribute the death of the child to the illness it was suffering, but the doctor, who did nothing more than to examine the body and gives his certificate as to certain bruises on the thighs, in his testimony states that the body showed unequivocal signs of a serious disease of the heart, and that the bruises could not have caused the death of the child, but might have contributed to accelerate the fatal result of that illness, which was a serious affection of the heart. Being asked by the judge whether the gravity of the child's illness, owing to the affection of the heart, was such that it might have died without the blows which were inflicted upon him, the witness replied that "if in the first place the age of the child is taken into consideration, and in the second its surrounding circumstances, its condition was such as to lead one to expect a fatal result, no physician being in attendance." Upon being further questioned as to whether he believed that the blows inflicted upon the child and which produced the bruises were the cause of its death, he replied that "as no other approximate cause is known than the great excitement produced by those blows, it may be inferred that they were the sole cause which precipitated the fatal result of the illness of the child." We do not find in this testimony, given solely upon the result of the examination of the body, sufficient evidence as to the true cause of the death of the child. But it is true that the accused did strike him for the purpose of inflicting punishment, and as by this he committed a misdemeanor which should not go unpunished, and which can be punished in this same cause under the provisions of section 29 of General Orders, No. 58, . . . For all the foregoing, I am of the opinion that the defendant- appellant can only be made to answer for the misdemeanor of slight physical injuries as defined and penalized in article 587 of the Penal Code, inasmuch as the wound inflicted by her might have been healed in seven days, the penalty fixed being arresto menor. Malcolm and Romualdez, JJ., concur. March 22, 1921 G.R. No. 16486 THE UNITED STATES, plaintiff-appelle, vs. CALIXTO VALDEZ Y QUIRI, defendantappellant. STREET, J.: The rather singular circumstances attending the commission of the offense of homicide which is under discussion in the present appeal are these: At about noon, on November 29, 1919, while the interisland steamer Vigan was anchored in the Pasig River a short distance from the lighthouse and not far from where the river debouches into the Manila Bay, a small boat was sent out to raise the anchor. The crew of this boat consisted of the accused, Calixto Valdez y Quiri, and six others among whom was the deceased, Venancio Gargantel. The accused was in charge of the men and stood at the stern of the boat, acting as helmsman, while Venancio Gargantel was at the bow. The work raising the anchor seems to have proceeded too slowly to satisfy the accused, and he accordingly began to abuse the men with offensive epithets. Upon this Venancio Gargantel remonstrated, saying that it would be better, and they would work better, if he would not insult them. The accused took this remonstrance as a display of insubordination; and rising in rage he moved towards Venancio, with a big knife in hand, threatening to stab him. At the instant when the accused had attained to within a few feet of Venancio, the latter, evidently believing himself in great and immediate peril, threw himself into the water and disappeared beneath its surface to be seen no more. The boat in which this incident took place was at the time possibly 30 or 40 yards from shore and was distant, say, 10 paces from the Vigan. Two scows were moored to the shore, but between these and the boat intervened a space which may be estimated at 18 or 20 yards. At it was full midday, and there was nothing to obstruct the view of persons upon the scene, the failure of Venancio Gargantel to rise to the surface conclusively shows that, owing to his possible inability to swim or the strength of the current, he was borne down into the water and was drowned. Two witnesses who were on the boat state that, immediately after Venancio leaped into the water, the accused told the remaining members of the crew to keep quiet or he would kill them. For this reason they made no movement looking to rescue; but inasmuch as there witnesses are sure that Venancio did not again come to the surface, efforts at rescue would have been fruitless. The fact that the accused at his juncture threatened the crew with violence is, therefore, of no moment except tho show the temporary excitement under which he was laboring. On the next day one of the friends of Venancio Gargantel posted himself near the lighthouse to watch for the body, in the hope that it might come to the surface and could thus be recovered. Though his friendly vigil lasted three days nothing came of it. It may be added that Venancio has not returned to his lodging in Manila, where he lived as a bachelor in the house of an acquaintance; and his personal belongings have been delivered to a representative of his mother who lives in the Province of Iloilo. His friends and relatives, it is needless to say, take it for granted that he is dead. The circumstances narrated above are such in our opinion as to exclude all reasonable possibility that Venancio Gargantel may have survived; and we think that the trial judge did not err in holding that he is dead and that he came to his death by drowning under the circumstances stated. The proof is direct that he never rose to the surface after jumping into the river, so far as the observers could see; and this circumstance, coupled with the known fact that human life must inevitably be extinguished by asphyxiation under water, is conclusive of his death. The possibility that he might have swum ashore, after rising in a spot hidden from the view of his companions, we consider too remote to be entertained for a moment. As to the criminal responsibility of the accused for the death thus occasioned the likewise can be no doubt; for it is obvious that the deceased, in throwing himself in the river, acted solely in obedience to the instinct of self-preservation and was in no sense legally responsible for his own death. As to him it was but the exercise of a choice between two evils, and any reasonable person under the 8 same circumstances might have done the same. As was once said by a British court, "If a man creates in another man's mind an immediate sense of dander which causes such person to try to escape, and in so doing he injuries himself, the person who creates such a state of mind is responsible for the injuries which result." (Reg. vs. Halliday, 61 L. T. Rep. [N.S.], 701. In this connection a pertinent decision from the Supreme Court of Spain, of July 13, 1882, is cited in the brief of The Attorney-General, as follows: It appeared that upon a certain occasion an individual, after having inflicted sundry injuries upon another with a cutting weapon, pointed a shotgun at the injured person and to escape the discharge the latter had to jump into a river where he perished by drowning. The medical authorities charged with conducting the autopsy found that only one of the wounds caused by a cut could have resulted in the death of the injured person, supposing that he had received no succour, and that by throwing himself in the river he in fact died of asphyxia from submersion. Having been convicted as the author of the homicide, the accused alleged upon appeal that he was only guilty of the offense of inflicting serious physical injuries, or at most of frustrated homicide. The Supreme Court, disallowing the appeal, enunciated the following doctrine: "That even though the death of the injured person should not be considered as the exclusive and necessary effect of the very grave wound which almost completely severed his axillary artery, occasioning a hemorrhage impossible to stanch under the circumstances in which that person was placed, nevertheless as the persistence of the aggression of the accused compelled his adversary, in order to escape the attack, to leap into the river, an act which the accused forcibly compelled the injured person to do after having inflicted, among others, a mortal wound upon him and as the aggressor by said attack manifested a determined resolution to cause the death of the deceased, by depriving him of all possible help and putting him in the very serious situation narrated in the decision appealed from, the trial court, in qualifying the act prosecuted as consummated homicide, did not commit any error of law, as the death of the injured person was due to the act of the accused." (II Hidalgo, Codigo Penal, p. 183.) The accused must, therefore, be considered the responsible author of the death of Venancio Gargantel, and he was properly convicted of the offense of homicide. The trial judge appreciated as an attenuating circumstance the fact that the offender had no intention to commit so great a wrong as that committed. (Par. 3, art. 9 Penal Code.) In accordance with this finding the judge sentenced the accused to undergo imprisonment for twelve years and one day, reclusion temporal, to suffer the corresponding accessories, to indemnify the family of the deceased in the sum of P500, and to pay the costs. Said sentenced is in accordance with law; and it being understood that the accessories appropriate to the case are those specified in article 59 of the Penal Code, the same is affirmed, with costs against the appellant. So ordered. Mapa, C.J., Malcolm, Avanceña and Villamor, JJ., concur. Separate Opinions ARAULLO, J., dissenting: I dissent from the majority opinion in this case. The only fact that the evidence shows in that Venancio Gargantel, one of those who were in a boat of the steamer Vigan subject to the orders of the accused Calixto Valdez and who at the time was engaged in the work of raising the anchor of that vessel, which was then lying at the Pasig River, a short distance from the lighthouse and not far from its mouth at the Manila Bay, upon seeing that the accused was approaching him, armed with a big knife, and in the attitude of attacking him, threw himself into the water and disappeared from the surface and had not been seen again. This event took place at noon on November 29, 1919, the boat being then about 30 or 40 yards from land and about 10 steps from the Vigan, there being two lighters moored to the shore and at a distance of about 18 or 20 yards from the boat. All of these facts are stated in the decision itself. The original information in the present case, charging Calixto Valdez y Quiri with the crime of homicide and alleging that as a result of his having thrown himself into the river under the circumstances mentioned, Venancio Gargantel was drowned, was presented on December 8, 1919, that is, nine days afterwards. There is no evidence whatever that the corpse of Venancio Gargantel had been found or, what is the same thing, that he had died. From November 28, the day when the event occurred, until December 8, when the information was filed, it cannot in any manner be maintained that the necessary time had passed for us to properly conclude, as is alleged in the information, that said Gargantel had died by drowning, as a consequence of his having thrown himself into the water upon seeing himself threatened and attacked by the accused. Neither does it appear in the evidence that all the precaution necessary for us to assure ourselves, as a sure and proven fact, that Venancio Gargantel then died by drowning, were taken; nor is there any evidence that it would have been impossible for him, by swimming or by any other means to rise to the surface at a place other than the Pasig River or that where the boat was, from which he threw himself into the river, and in that manner save himself from death. From the evidence of the witnesses for the prosecution which is the only evidence in the record, for the accused di not take the stand, it only appears that Venancio Gargantel, after having jumped from the boat, did not rise again to the surface. Such was the statement of two of those witnesses who were members of the boat's crew at the time. Another witness also declared that Gargantel was afterwards not again seen at the house where he lived in this city, No. 711 San Nicolas Street, where he kept his trunks and some effects, a fact which caused his mother, who lived in the municipality of Guimbal, in the Province of Iloilo, upon being informed of it and upon the failure of Venancio to appear in said place, to give special power on the 28th of that month of December, that is, one month afterwards, to a student, Ignacio Garzon, to get the trunks and effects of Venancio from said house. Sid Garzon himself testified, upon being asked whether Venancio Gargantel had returned to the house of his parents since November 29, 1919, that he had no information about it, and another witness, Pedro Garcia, of the prosecution, stated that he had probably died, because he had not seen Venancio Gargantel. Therefore, in short, the only fact proved is that since Venancio Gargantel threw himself into the river, upon being threatened with a knife by the accused, his whereabouts has remained unknown even at the moment of rendering judgment in this case, or, February 9, 1920, that is, two and one-half months after the occurrence of the event. It is stated in the decision that the friend and parents of Gargantel give him up for dead. There is nevertheless in the record no statement of any parent of Gargantel to that effect; for his mother Maria Gatpolitan, a resident of the municipality of Guimbal, merely stated in the power of attorney executed in favor of Ignacio Garzon that the latter should take steps in order that the city fiscal might investigate the death of her son which, according to information, was caused by another members, of the crew of the steamer Vigan; and none of his friends, that is, none of the two members of the party in the boat at that time and of the crew of the steamer Vigan, nor Maximo Gumbog, the owner of the house in which Gargantel lived in this city, nor Pedro Garcia, another member of the crew of that steamer, and finally, nor Ignacio Garzon himself has stated that he gave up Gargantel for dead, for the simple reason that this was not possible, for they only knew that he did not again rise to the surface and was not seen again after having thrown himself into the river from the boat. For this reason it is stated in the decision that the circumstances therein stated are such that they exclude all reasonable possibility that Venancio Gargantel could have survived and that the circumstance that never rose to the surface after having jumped into the river, as witnessed by the persons present, together with the admitted fact that human life is necessarily asphyxiated under the water, is conclusive that he died. Then, there is nothing more than a deduction that Gargantel had died based upon those facts and circumstances. In my opinion this is not sufficient to convict the accused as guilty of homicide, because there is the possibility that Gargantel had risen to the surface at some place away from the where he threw himself into the river and had embarked on some other vessel in the same river or out of it in the bay and had gone abroad, or to some province of these Islands and is found in some municipality thereof, cannot be denied. And this is very probable inasmuch as it does not appear in the record that the necessary investigation has been made in order to determined even with only some measure of certainty, not to say beyond all reasonable doubt, that it was and is impossible to find said person or determined his whereabouts. Furthermore, there is not even a presumption juris tantum that he had died, for in order that this presumption may exist, according to section 334 of the Code of Civil Procedure, it is necessary that no information about him should have been received for seven years from his disappearance upon his throwing himself into the river, which occurred on November 29, 1919, that is, only about one year and four months ago. And if, in order that a finding of a civil character in favor of or against some person, may be made, by virtue of that presumption, it is necessary that seven years should have elapsed without any notice being received of the person whose whereabouts is unknown, it is not just, reasonable, or legal that the period of one year and four months from his disappearance or since Venancio Gargantel threw himself into the water should suffice for us to impose 9 upon the accused Calixto Valdez such a grave penalty as that of twelve years and one day of reclusion temporal, merely assuming without declaring it, as a proven fact, that Gargantel has died and at the same time finding said accused to be the author of that death. Lastly, the decision of the English Supreme Court or that of the Spanish Supreme Court dated July 13, 1882, cited by the majority opinion is not applicable. The first, is not applicable because in the present case it is not proved, beyond reasonable doubt, that some damage resulted to Gargantel, just as it cannot be considered as proved that he had died, or that he had been injured or that he had suffered some injury after having thrown himself into the river as a result of the threat of the accused. The second is not applicable because the decision of the Supreme Court of Spain refers to a case, in which the injured party had already been wounded with a cutting instrument by the accused before throwing himself into the river upon the latter aiming at him with his gun, it having afterwards been proved upon his being taken out of the river that the wound inflicted upon him by the accused was mortal; and, consequently, it was declared by said court that, even if the death of the deceased be considered as not having resulted exclusively and necessarily from that most grave wound, the persistence of the aggression of the accused compelled his adversary to escape it and threw himself into the river, by depriving him of all possible help and placing him in the serious situation related in the judgment appealed from -a case which, as is seen, is very different from that which took place in the present case. For the reasons above stated, I am of the opinion, with due respect to the opinion of the majority, that the accused Calixto Valdez y Quiri cannot be found guilty of homicide and should be acquitted. G.R. No. L-34665 August 28, 1931 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. DONATO BINDOY, defendant-appellant. VILLAMOR, J.: The appellant was sentenced by the Court of First Instance of Occidental Misamis to the penalty of twelve years and one day of reclusion temporal, with the accessories of law, to indemnify the heirs of the deceased in the amount of P1,000, and to pay the costs. The crime charged against the accused is homicide, according to the following information: That on or about the 6th of May, 1930, in the barrio of Calunod, municipality of Baliangao, Province of Occidental Misamis, the accused Donato Bindoy willfully, unlawfully, and feloniously attacked and with his bolo wounded Emigdio Omamdam, inflicting upon the latter a serious wound in the chest which caused his instant death, in violation of article 404 of the Penal Code. The accused appealed from the judgment of the trial court, and his counsel in this instance contends that the court erred in finding him guilty beyond a reasonable doubt, and in convicting him of the crime of homicide. The record shows that in the afternoon of May 6, 1930, a disturbance arose in a tuba wineshop in the barrio market of Calunod, municipality of Baliangao, Province of Occidental Misamis, started by some of the tuba drinkers. There were Faustino Pacas (alias Agaton), and his wife called Tibay. One Donato Bindoy, who was also there, offered some tuba to Pacas' wife; and as she refused to drink having already done so, Bindoy threatened to injure her if she did not accept. There ensued an interchange of words between Tibay and Bindoy, and Pacas stepped in to defend his wife, attempting to take away from Bindoy the bolo he carried. This occasioned a disturbance which attracted the attention of Emigdio Omamdam, who, with his family, lived near the market. Emigdio left his house to see what was happening, while Bindoy and Pacas were struggling for the bolo. In the course of this struggle, Bindoy succeeded in disengaging himself from Pacas, wrenching the bolo from the latter's hand towards the left behind the accused, with such violence that the point of the bolo reached Emigdio Omamdam's chest, who was then behind Bindoy. There is no evidence that Emigdio took part in the fight between Bindoy and Pacas. Neither is there any indication that the accused was aware of Emigdio Omamdam's presence in the place, for, according to the testimony of the witnesses, the latter passed behind the combatants when he left his house to satisfy his curiosity. There was no disagreement or ill feeling between Bindoy and Omamdam, on the contrary, it appears they were nephew and uncle, respectively, and were on good terms with each other. Bindoy did not try to wound Pacas, and instead of wounding him, he hit Omamdam; he was only defending his possession of the bolo, which Pacas was trying to wrench away from him, and his conduct was perfectly lawful. The wound which Omamdam received in the chest, judging by the description given by the sanitary inspector who attended him as he lay dying, tallies with the size of the point of Bindoy's bolo. There is no doubt that the latter caused the wound which produced Emigdio Omamdam's death, but the defendant alleges that it was caused accidentally and without malicious intent. Pacas and the widow of the deceased, Carmen Angot, testified having seen the accused stab Omamdam with his bolo. Such testimony is not incompatible with that of the accused, to the effect that he wounded Omamdam by accident. The widow testified that she knew of her husband's wound being caused by Bindoy from his statement to her before his death. The testimony of the witnesses for the prosecution tends to show that the accused stabbed Omamdam in the chest with his bolo on that occasion. The defendant, indeed, in his effort to free himself of Pacas, who was endeavoring to wrench his bolo from him, hit Omamdam in the chest; but, as we have stated, there is no evidence to show that he did so deliberately and with the intention of committing a crime. If, in his struggle with Pacas, the defendant had attempted to wound his opponent, and instead of doing so, had wounded Omamdam, he would have had to answer for his act, since whoever willfully commits a felony or a misdemeanor incurs criminal liability, although the wrongful act done be different from that which he intended. (Art. 1 of the Penal Code.) But, as we have said, this is not the case. The witness for the defense, Gaudencio Cenas, corroborates the defendant to the effect that Pacas and Bindoy were actually struggling for the possession of the bolo, and that when the latter let go, the former had pulled so violently that it flew towards his left side, at the very moment when Emigdio Omamdam came up, who was therefore hit in the chest, without Donato's seeing him, because Emigdio had passed behind him. The same witness adds that he went to see Omamdam at his home later, and asked him about his wound when he replied: "I think I shall die of this wound." And then continued: "Please look after my wife when I die: See that she doesn't starve," adding further: "This wound was an accident. Donato did not aim at me, nor I at him: It was a mishap." The testimony of this witness was not contradicted by any rebuttal evidence adduced by the fiscal. We have searched the record in vain for the motive of this kind, which, had it existed, would have greatly facilitated the solution of this case. And we deem it well to repeat what this court said in United States vs. Carlos (15 Phil., 47), to wit: The attention of prosecuting officers, and especially of provincial fiscals, directed to the importance of definitely ascertaining and proving, when possible, the motives which actuated the commission of a crime under investigation. In many criminal cases one of the most important aids in completing the proof of the commission of the crime by the accused is the introduction of evidence disclosing the motives which tempted the mind of the guilty person to indulge the criminal act. In view of the evidence before us, we are of opinion and so hold, that the appellant is entitled to acquittal according to article 8, No. 8, Penal Code. Wherefore, the judgment appealed from is reversed, and the accused Donato Bindoy is hereby acquitted with costs de oficio. So ordered. February 25, 1947 G.R. No. L-482 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BIENVENIDO NOCUM, defendant-appellant. BENGZON, J.: For having discharged a gun and accidentally killed Eugenio Francisco, the defendant Bienvenido Nocum, alias Bembe, was tried in the Court of First Instance Manila, before the Honorable Alfonso Felix, judge. Found guilty of homicide through reckless negligence, he appealed in due course. According to the evidence, about 9 o'clock in the evening of November 21, 1945, there was a fistic fight between Federico Bautista and Vicente Aurencio at the corner of Mayhaligue and Magdalena Streets, City of Manila. Desiring to stop the encounter, defendant shouted at the combatants. As these paid him no attention, he drew a .45 caliber pistol and shot twice at the air. The bout continued, however; so he fired another shot at the ground, but unfortunately the bullet ricocheted and hit Eugenio Francisco, an innocent by-stander, resident of the place. The wounded man was promptly carried to the St. Luke's Hospital where he expired soon after. The above paragraph is a composite and abridged statement of the declarations of several witnesses (Jesus Santos, Vicente and Juan Aurencio and Ramon Gagui) in connection with defendant's confession Exhibit F.[[1]] But his attorney, assailing the 10 validity of said confession in the ground of involuntariness, contends in this Court that in asmuch as the corpus delicti had not been demonstrated by evidence dehors that document, his client should be absolved, pursuant to several pertinent decisions. (United States vs. De la Cruz, 2 Phil., 148; and People vs. Bantagan, 54 Phil., 834.) Particular attention has been given to these points. Yet there is competent proof establishing the fact that, during the affray, pistol detonations were heard, and that one of the bullets produced the tragic death of Eugenio Francisco, whose photograph is Exhibit B. That is proof of the corpus delicti, i. e., proof of violent death, whether or not feloniously caused. (See Moran, Law of Evidence, Revised Edition, pp. 108, 109; People vs. Mones, 58 Phil., 46.) The confession Exhibit F served to identify the person who fired those shots and committed the offense. We feel no inclination to reject such confession, because the uncorroborated and implausible testimony of the accused, alleging he had been manhandled before signing this document, about which he knew nothing, could not definitely overcome the positive assertions of Pablo Montilla of the Manila Police Department (before whom Exhibit F had been executed) that no force or intimidation had been employed on Nocum, who willingly signed it "after propounding to him all the questions and explaining to him the contents" thereof. The impartiality of that officer of the law has not been shaken by the lone testimony of herein appellant, which, as explained in the People's brief, deserves no credence. Nocum said in court that he signed Exhibit F when Montilla told him "it was simply a proof that they arrested me" (p. 27, t.s.n.). This is inconsistent with the alleged third-degree methods. If he was forced, deceit was unneccessary. And yet, he could not be deceived thusly, because he was no illiterate, being seventh grader. Anyway, the trial judge had the chance to see the opposing witnesses, and to observe their demeanor on the stand; and in the conflict of their statements we will not interfere with his judgment, unless the record discloses some important circumstance which was overlooked, (United States vs. Remigio, 37 Phil., 599; United States vs. Maralit, 36 Phil., 155), it being the peculiar province of trial courts to resolve questions relating to the credibility of witnesses. (United States vs. Pico, 15 Phil., 549.) The mishap should be classed as homicide through reckless imprudence, the slaying having been unintentional (cf. People vs. Sara, 55 Phil., 939; and United States vs. Reodique, 32 Phil., 458). It is apparent the defendant wilfully discharged his gun — for which he exhibited no license, by the way — without taking the precautions demanded by the circumstance that the district was populated, and the likehood that his bullet would glance over the hard pavement of the Manila thoroughfare. A landowner surprise a youngster in the act of stealing some fruit in his orchard. To scare the intruder he fired a shotgun aiming at the foliage of a cherry tree. The shot scattered and a pellet injured the boy, who was standing under the tree. That was reckless negligence, the Spanish Supreme Court decided. (Sent. June 20, 1900, Viada, 5th ed., Vol. 7, p. 14.) The penalty imposed on the appellant is 2 months and 1 day to 1 year and 1 day, indemnity of P2,000 with subsidiary imprisonment, and costs. It is within the limits authorized by law. (Article 365, Rev. Penal Code, and Act No. 4103.) (Act No. 284.) Wherefore, the appealed judgment is affirmed, with costs against appellant. Moran, C.J., Feria, Pablo, Hilado, Briones, Hontiveros, Padilla and Tuason, JJ., concur. Separate Opinions PERFECTO, J., dissenting: Appellant is indicted for homicide committed on November 21, 1945, which caused the death of Eugenio Francisco. The lower court sentenced him to from two months and one day of arresto mayor to one year and one day of prision correccional, to indemnify the heirs of Eugenio Francisco in the sum of P2,000 and to suffer the corresponding subsidiary imprisonment in case of insolvency, and to pay the costs. The lower court found appellant guilty of homicide through reckless imprudence, upon the prosecution's theory, stated in the appealed decision as follows: "On November 21, 1945, at about 9 o'clock in the evening, and at the corner of Mayhaligue and Magdalena Streets in the District of Sta. Cruz of this City of Manila, a quarrel developed between Vicente Aurencio and Federico Bautista in which other gangsters intervened. On that occasion defendant Bienvenido Nocum, one of the members of the gang, desiring to stop the fight, shouted at the combatants in vain; so he decided to discharge his revolver twice in the air, but seeing that even this recourse was not taken heed of by his quarrelling friends, he fired another shot to the ground which unfortunately ricocheted and hit a passer-by named Eugenio Francisco. The wounded man was taken to the hospital where he expired soon after his arrival therein." These pronouncement of the lower court are not supported by the evidence. They are based on fantasy. The prosecution called five witnesses to testify and presented two exhibits as evidence. Pablo Montilla has no personal knowledge of the incident, because he arrived at the place about thirty minutes after the incident was over. His testimony, notwithstanding, tends to show alleged admissions of appellant during the investigation and about the voluntariness of appellant's written statement Exhibit F. Jesus Santos, another police officer, has no personal knowledge as to how the deceased Eugenio Francisco was shot, because when he arrived at the place he saw the deceased being held and attended inside the store where the witness was told that somebody was shot. Ramon Gagui, testified that he never had seen Bienvenido Nocum, although he was present during the incident in which Federico Bautista and Vicente Aurencio had been fighting and he heard shots during the fight. Vicente Aurencio and Juan Aurencio did not testify anything against Nocum. They have not seen him at the place of the incident. They do not know him. The two exhibits of the prosecution which were admitted are Exhibit B, which is a photograph of the deceased, and Exhibit F, which is the written statement attributed to appellant. Appellant, a laborer, 22 years of age, sixth grade, testified that he had never seen the deceased and denied having been at the place of the incident on November 21, 1945, because at that time he was in the province where he had been since September. When he signed Exhibit F, he was not asked by Pablo Montilla questions regarding the killing of Eugenio Francisco. Appellant did not see Exhibit F being typewritten. He denied having been asked by Montilla the questions appearing in the statement and having given the answer attributed to him. He never possessed any revolver, be it .45 caliber or any other caliber. Exhibit F was not read or translated in Tagalog to the appellant, who was told to sign it simply as a proof that he was arrested. Appellant was not given the opportunity to read the document. "This statement was rolled in such a way that I could not see the contents; and before I was asked to sign it the policeman hurt me," pointing to Pablo Montilla as the one who hurt him. Explaining why he appeared in court wearing torn dress, appellant said: "Because when he boxed me in the stomach I turned towards the right, and he held me by the right arm." The witness was wearing the same suit when he was compelled to sign Exhibit F. "Afterwards two of his companions arrived, bringing pieces of wet cloth. They tied them in my neck and, after tying them, they folded their sides and I did not know what happened to me afterwards," that is, the witness became unconscious "and I fell to the ground." Only after the lapse of some time, when appellant recovered consciousness, when he was to sign Exhibit F. Exhibit F appears to have been signed on March 12, 1946, nearly four months after the shooting of Eugenio Francisco, and about one month after appellant had been arrested on February 14, 1946. Appellant's testimony as to the torture he underwent before he was made to sign Exhibit F has never been rebutted by the prosecution. Although police officer Pablo Montilla was present in the court room at the time appellant testified as to his torture, so much so as he pointed to Montilla as one of the three police officers who boxed him and tortured him with wet cloth, until the accused lost consciousness and fell down, said Montilla did not dare to contradict appellant's testimony. The testimony remains unchallenged and should be given its full value. We are not willing to lend our support to a sentence convicting a man of a crime and sending him to prison upon the involuntary evidence of an alleged confession extracted from him by torture. It would simply be iniquitous. All words of condemnation against the third degree methods are not enough to paint in all its ugliness the practice compelling a person to sign an involuntary confession through physical sufferings. We should eradicate completely, once and for all, all traces which symbolize the kempei methods at Fort Bonifacio, zoning camps, and other torture chambers operated by the sadistic Nippon regime. The second paragraph of the majority opinion, wherein it appears that appellant fired a bullet which ricocheted and hit Eugenio Francisco, is represented by the majority as a composite and abridged statement of the declarations of witnesses Jesus Santos, Vicente Aurencio, Juan Aurencio, and Ramon Gagui. We regret to disagree. There is absolutely nothing in the declaration of the said persons to show that appellant was present in the place where the incident took place, much less that he fired any shot at all. It seems to us beyond all understanding how the majority were able to read in the declarations of said witnesses what no one will be able to find therein. No 11 one should be convicted on what can be imagined appearing in the testimonies of witnesses but which, as a matter of fact, does not appear in them. An accused must be convicted on the strength of actual evidence; never on the hazy creatures of our imaginations. We have read and re-read the declarations of the four witnesses mentioned in the majority decision, but we were unable to find any support to the majority position. No one even mentioned the name of appellant Nocum and, as to Vicente Aurencio, Juan Aurencio and Ramon Gagui, notwithstanding the leading questions propounded by the fiscal they stated categorically that they had not seen Bienvenido Nocum and that they do not even know him. Vicente Aurencio testified: "Q. El acusado Bienvenido Nocum estaba alli en aquella ocasion? — A. No setaba alli; no le conozo. Con mayor razon no estaba. No le conozco a ese." Juan Aurencio testified equally that "no recuerdo que este acusado Nocum fuera companero de ellos." Asked if he knows Bienvenido Nocum, he answered, "No señor." Asked if he saw him on the occasion of the incident he answered, "No senor." Concerning the shots fired he said: "Yo oi una detonacion pero no se quien disparo." In the whole testimony of Jesus Santos there is absolutely no mention of Nocum. As to the alleged confession Exhibit F of appellant, because appellant testified that he was told "that it was simply a proof that they arrested me," the majority would not believe that appellant's signature in the document was obtained by third degree methods, upon the novel theory of inconsistency of deceit and force or torture as means to extract involuntary confessions or admissions. Such naive proposition shows lack of sense of reality. There is absolutely no incompatibility in the use of deceit and torture to secure involuntary admissions or confessions. As a matter of fact they are complementary, and in many cases they have been simultaneously used. The majority do not accept that appellant could have been deceived, "because he was no illiterate, being a seventh grader." In the first place, literacy has never been an absolute guarantee against deceit. There is no kind, grade or measure of culture which can be considered absolutely deceit-proof. We vote to reverse the appealed decision and for the acquittal of appellant. Paras, J., concurs. Footnotes Nocum said: "In my efforts to pacify them I shouted at them to quit fighting but they did not give heed. I then took hold of my .45 caliber pistol and fired two shots into the air, but still they continued fighting. I then fired another more shot into the ground, without any intention of hitting anybody, but accidentally it hit Eugenio Francisco who was standing on the other side of the street." (Exhibit F.) February 16, 1950 G.R. No. L-1896 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAFAEL BALMORES Y CAYA, defendantappellant. OZAETA, J.: Appellant, waiving the right to be assisted by counsel, pleaded guilty to the following information filed against him in the Court of First Instance of Manila: The undersigned accuses Rafael Balmores y Caya of attempted estafa through falsification of a security, committed as follows: That on or about the 22nd day of September, 1947, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and feloniously commence the commission of the crime of estafa through falsification of a security directly by overt acts, to wit; by then and there tearing off at the bottom in a cross-wise direction a portion of a genuine 1/8 unit Philippine Charity Sweepstakes ticket thereby removing the true and real unidentified number of same and substituting and writing in ink at the bottom on the left side of said ticket the figure or number 074000 thus making the said ticket bear the said number 074000, which is a prize-winning number in the Philippine Charity Sweepstakes draw last June 29, 1947, and presenting the said ticket so falsified on said date, September 22, 1947, in the Philippine Charity Sweepstakes Office for the purpose of exchanging the same for the corresponding cash that said number has won, fraudulently pretending in said office that the said 1/8 unit of a Philippine Charity Sweepstakes ticket is genuine and that he is entitled to the corresponding amount of P359.55 so won by said ticket in the Philippine Charity Sweepstakes draw on said date, June 29, 1947, but the said accused failed to perform all the acts of execution which would have produce the crime of estafa through falsification of a security as a consequence by reason of some causes other than this spontaneous desistance, to wit: one Bayani Miller, an employee to whom the said accused presented said ticket in the Philippine Charity Sweepstakes Office discovered that the said ticket as presented by the said accused was falsified and immediately thereafter he called for a policeman who apprehended and arrested the said accused right then and there. Contrary to law. (Sgd.) LORENZO RELOVA Assistant City Fiscal and was sentenced by Judge Emilio Pena to suffer not less than 10 years and 1 day of prision mayor and not more than 12 years and 1 day of reclusion temporal, and to pay a fine of P100 and the costs. From that sentence he appealed to this court, contending (1) that the facts and (2) that the trial court lacked jurisdiction to convict him on a plea of guilty because, being illiterate, he was not assisted by counsel. In support of the first contention, counsel for the appellant argues that there could be so could be no genuine 1/8 unit Philippine Charity Sweepstakes ticket for the June 29, 1947, draw; that this court has judicial notice that the Philippine Charity Sweepstakes Office issued only four 1/4 units for each ticket for the said draw of June 29, 1947; that the information does not show that the true and real unidentified number of the ticket alleged to have been torn was not and could not be 074000; that the substitution and writing in ink of the said number 074000 was not falsification where the true and real number of the ticket so torn was 074000. This contention is based on assumption not borne out by the record. The ticket alleged to have been falsified is before us and it appears to be a 1/8 unit. We cannot take judicial notice of what is not of common knowledge. If relevant, should have been proved. But if it is true that the Philippine Charity Sweepstakes Office did not issue 1/8 but only 1/4 units of tickets for the June 29, 1947, draw, that would only strengthen the theory of the prosecution that the 1/8 unit of a ticket which appellant presented to the Philippine Charity Sweepstakes Office was spurious. The assumption that the true and real unidentified number of the ticket alleged to have been torn was the winning number 074000, is likewise not supported by the record. The information to which appellant pleaded guilty alleged that the appellant removed the true and real unidentified number of the ticket and substituted and wrote in ink at the bottom on the left side of said ticket the figure or number 074000. It is obvious that there would have been no need of removal and substitution if the original number on the ticket was the same as that which appellant wrote in ink in lieu thereof. The second contention appears to be based on a correct premises but wrong conclusion. The fact that appellant was illiterate did not deprive the trial court of jurisdiction assisted by counsel. The decision expressly states that appellant waived the right to be assisted by counsel, and we know of no law against such waiver. It may be that appellant was either reckless or foolish in believing that a falsification as patent as that which he admitted to have perpetrated would succeed; but the recklessness and clumsiness of the falsification did not make the crime impossible within the purview of paragraph 2, article 4, in relation to article 59, of the Revised Penal Code. Examples of an impossible crime, which formerly was not punishable but is now under article 59 of the Revised Penal Code, are the following: (1) When one tries to kill another by putting in his soup a substance which he believes to be arsenic when in fact it is common salt; and (2) when one tries to murder a corpse. (Guevara, Commentaries on the Revised Penal Code, 4th ed., page 15; decision, Supreme Court of Spain, November 26, 1879; 12 Jur. Crim., 343.) Judging from the appearance of the falsified ticket in question, we are not prepared to say that it would have been impossible for the appellant to consummate the crime of estafa thru falsification of said ticket if the clerk to whom it was presented for the payment had not exercised due care. The penalty imposed by article 166 for the forging or falsification of "treasury or bank notes or certificates or other obligations and securities" is reclusion temporal in its minimum period and a fine not to exceed P10,000, if the document which has been falsified, counterfeited, or altered is an obligation or security of the United States or of the Philippine Islands. This being a complex crime of attempted estafa through falsification of an obligation or security of the Philippines, the penalty should be imposed in its maximum period in accordance with article 48. Taking into consideration the mitigating circumstance of lack of instruction, and applying the Indeterminate Sentence Law, the minimum cannot be lower than prision mayor in its maximum period, which is 10 years and 1 day to 12 years. It results, therefore, that the penalty imposed by the trial court is correct. The alteration, or even destruction, of a losing sweepstakes ticket could cause no harm to anyone and would not constitute a crime 12 were it not for the attempt to cash the ticket so altered as a prize-winning number. So in the ultimate analysis appellant's real offense was the attempt to commit estafa (punishable with eleven days of arresto menor); but technically and legally he has to suffer for the serious crime of falsification of a government obligation. We realize that the penalty is too severe, considering all the circumstances of the case, but we have no discretion to impose a lower penalty than authorized by law. The exercise of clemency and not in this court. We are constrained to affirm the sentence appealed from, with costs against the appellant. Moran, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes and Torres, JJ., concur. Separate Opinions PARAS, J., dissenting: The accused-appellant, instead of being the victimizer, had become the victim. He was accused of having falsified a genuine 1/8 unit of the Philippine Charity Sweepstakes ticket for the June, 1947, draw by tearing off at its bottom in a cross-wise direction a portion, thereby removing the true and unidentified number of said ticket and substituting and writing in ink at the bottom on the left side the number 074000, thus making said ticket bear a prize-winning number. He was convicted of attempted estafa thru falsification of an obligation or security and sentenced to an indeterminate penalty of from 10 years and 1 day of prision mayor 12 years and 1 day of reclusion temporal, and to pay a fine of P100 plus the costs. He waived the right to be assisted by counsel and merely pleaded guilty to the information. The appellant is admittedly an illiterate and, in my opinion, had committed only an impossible crime now punishable under paragraph 2, article 4, in relation to article 59, of the Revised Penal Code. I say impossible, because in the way the alleged falsification was done, it was inherently inadequate or ineffective and according certain to be detected. Stated otherwise, the appellant could not have succeeded in cashing the ticket. Flor who would cash a ticket which, in the first place, has a missing portion and, in the second place, contains a number written in ink. Not even boy agents who conduct their trades on street sidewalks, and much less the employee of the Sweepstakes Office to whom it was presented. As a matter of fact, the falsification was readily detected by said employee. The crime is just as impossible as passing a counterfeit paper bill concocted in regular newsprint and in ordinary handwriting. A doubt also arises from the fact that the ticket is a 1/8 unit, in the face of the contention of attorney for appellant in this instance that the tickets for the June, 1947, Sweepstakes draw consisted of only four units. Of course, this may not be a matter of judicial notice, but the point remains that if appellant was assisted by competent counsel in the trial court, the fact might have been duly proven. It is true that the appellant waived his right to be assisted by counsel, but we cannot help pointing out that a miscarriage of justice may sometime result by force of circumstances. In such cases, any capital doubt should be resolved in favor of the accused. My vote, therefore, is to reverse the appealed judgment and to release the appellant immediately as he has been in prison since November 11, 1947. August 31, 1981 G.R. No. L-52797 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANGELO UMAGUING, defendant whose death Sentence is under review. AQUINO, J.: There is no controversy as to the facts of this extraordinary case where the accused attempted to hasten the death of a septuagenarian woman who had suffered a stroke. In the evening of January 8, 1977, Amparo Lazo y Villaflor, 76, a resident of 45-B llth Avenue, Cubao, Quezon City (a native of Sto. Domingo, Ilocos Sur), had a severe headache and a bout of vomiting, followed by cerebral hemorrhage. She fell into a coma. She was rushed by her relatives and two boarders to the Polymedic General Hospital, located at E. de los Santos Avenue, Mandaluyong, Metro Manila and administered by Doctor Victor Potenciano. She arrived in the emergency room at seven-forty five. She was on a stretcher. She was unconscious due to cerebrovascular congestion. She had difficulty in breathing, Her blood pressure was 200/100. Her pulse rate was 100 per minute (Exh. B1). The nurse on duty administered oxygen inhalation to the patient. She was given dextrose, penicillin, solu-cortef serpasil decadron and sodium bicarbonate, A vein of the patient was cut to diminish the blood pressure, As the patient had apnea Doctor Emmanuel Favila called the other resident physicians for a consultation. At about eight-thirty, Doctor Estacio, an anesthesiologist, inserted into the patients mouth and windpipe an endotracheal rubber tube, about six inches long and half an inch in diameter with a plastic ventilator. It was taped to the patient's mouth by means of a plaster. The purpose was for "ventilation" or the excretion of the carbon dioxide (to prevent "drowning", according to Doctor Favila). After the endotracheal tube had been inserted, Angelo Umaguing, a janitor, for reasons known only to himself and without the least justification, tried to remove the plaster holding the tube in place. Doctor Estacio shooed him away. That episode was witnessed by Doctor Favila (81-82 tsn March 9,1977). Then, a few minutes later, after the doctors had left the emergency room and while the nurse's back was turned, Umaguing went to the patient's bed and, to suit his purpose (for being a mere janitor he had nothing to do with the patient), he removed the endotracheal tube. His reckless and irrational act was witnessed by Jojo Cruz and Adelaida Apostol, the patient's grandson and niece, respectively. According to Adelaida, the removal of the tube caused the patient to bleed in the mouth and to have a convulsion (nangisay)Umaguing even closed the patient's eyes, (6-7 tsn November 11, 1977). The nurse called the doctors to the emergency room. Doctor Ramon Sison, the chief resident physician, restored the endotracheal tube. The patient -was still breathing. The security guard was alerted and directed to detain Umaguing. A relative of the patient called a policeman. Umaguing was arrested and brought to the police station of Mandaluyong where the incident was investigated. The removal of the tube impelled the patient's relatives to transfer her to the Cardinal Santos Hospital. She was brought there in an ambulance. She died there the next day at four-quarter in the morning. Death was due to. cardiorespiratory arrest brought about by cerebro-vascular hemorrhage and hypertension (Exh. A). The Mandaluyong police secured the statement of Jojo Cruz, Gloria Apostol, Adelaida Apostol and the nurse who pointed to Umaguing (he was present when the statements were taken) as the culprit who removed the endotracheal tube. Jose Cruz, the sixteen-year-old grandson of the patient, in his statement taken in Umaguing s presence, said: . . .ng nasa emergency room kami ay ginamot siya (the patient) ng doktor ay nanduruon siya (Angelo Umaguing, the accused) ay inalis niya ang plaster ng gomang inalagay ng doktor sa bibig ng aking lola, ay pinalis ng doktor ang kanyang kamay at sinabi sa kanya na : Bakit mo pinakikialam iyo? at umalis na siya( Angelo Umaguing). Pumunta kami ng tiyahing kong si Gloria Apostol, sa information para iconfine ang aking Lola. Ako po ay bumalik sa emergency room. Nakita ko ang aking tiyang si Adelaida na nakaupo at minasahe ang kamay ng aking lola. Mga ilang sandalin po ay biglang lumapit siya (Angelo Umaguing) ulit at tinanggal ang plaster na nakakabit sa gomang nakalagay sa bibig ng aking Lola at hinugot iyon. Mabuti at may lumabas na nurse at tinanong kami: 'Sino ang nag-alis niyan?' Ang taong iyan (Angelo Umaguing) ay pilit na ipinipikit ang (mga) mata ng aking Lola at tinanong si Angelo na kung bakit siya nakikialam. At lumabas itong si Angelo patungo sa corridor at siya ay hinabol ng nurse at narinig ko na huwag papaalisin ang taong iyan. (Exh. F, p. 62, Record). Adelaida Apostol, a niece of the patient who was also in the emergency room, in her statement gave the following account of what Umaguing did: Ng aming pong dalahin ang aking tiyang si Amparo Lazo sa Polymedic Hospital ay ipinasok siya sa emergency room. Agad namang inasikaso ng mga doktor at ng nurse ang aking tiyahin. Kami nuon ng aking pamangking si Jojo (Jose Cruz) at ang dalawang boarders ng aking tiya ay nasa paligid din ng emergency room. Nakita ko na may nagmamasahe sa tiyan ng aking tiya, May nagbobomba sa bibig niya at may nagsaksak ng iniksyon sa kamay. Ng may inilalagay na ang isang doktor sa bibig ng aking tiya na parang tubo ay nakita ko ang taong iyan (Angelo Umaguing) na inalis ang plaster (adhesive tape) at pinalis pa ang kamay niya (Angelo Umaguing) ng doktor at pinaalis Ng ang aking hipag na si Gloria ay lumabas upang ipaconfine na ang aking tiyahin at matapos na ang paglalagay ng tubo sa bibig ng aking tiya. Hindi nagtagal ay umalis na rin ang doktor at ang natira ay ang orderly na isang lalaki, ay pumasok ang lalaking iyan (pointing again to Angelo Umaguing) at biglang inalis ang nasabing tubo sa bibig ng aking tiya, at nakita ko na parang hinabol ng Tiya Amparing ko ang kanyang hininga at ang orderly ay nagsalita ng 'Bakit mo inalis iyan at inutusan ang isang guwardiya yata na pigilin 13 ang taong iyan (Angelo Umaguing) ng siya ay palabas na" (Exh. H, p. 64, Record). These statements are reflected in the initial police investigation report of the incident, excerpts from which are quoted below: During the process when the endotracheal tube was being installed/inserted, the suspect, Angelo Umaguing, took off the adhesive tape that strengthened the said tube and the doctor attending to it, seeing the hands of the suspect, warded them and was sent off (shooed away) by him (the first attempt). After the installation of the endotracheal tube and the doctor was out, the suspect returned and in the clear view of the witnesses, Jose Cruz, Gloria Apostol and the other relatives of the victim, took out the said tube from the mouth of the victim Amparo Lazo y Villaflor, causing a disruption of her breath. (Exh. D, p. 151, Record). Nurse Tessie Piad gave the following account of Umaguing's wrongful act: Suddenly, Mr. Makinano (the orderly) shouted and said that the endotracheal tube was removed by Mr. Umaguing (the janitor). According to one of the relatives (of the patient) (the one watching the patient) that Mr. Umaguing (the janitor) open(ed) the curtain and suddenly took the endotracheal tube without any word. So, I went immediately to the patient and looked at her. The patient was still breathing same as before and did not look like she was in distress, I take (took) the vital signs; then called for the doctor. Dr. Enrile, Dr. Sison and Dr. Favila went down immediately. Dr. Sison did the reinsertion of the endotracheal tube. The relatives requested to transfer the patient to the Cardinal Santos Memorial Hospital. Our ambulance took the patient there, accompanied by Dr. Enrile and Miss Abuan and some relatives of the patient. The patient was still in the same condition when she left the hospital (Polymedic General Hospital). " (Exh. C, p. 149, Record). On January 12, 1977, the chief investigator of the Mandaluyong police filed in the municipal court a complaint for murder against Umaguing. He waived the second stage of the preliminary investigation. On January 20, 1977, the fiscal filed an information for murder against Umaguing in the Circuit Criminal Court at Pasig, Rizal. After trial, the court convicted Umaguing of consummated murder, qualified by treachery and aggravated by abuse of superiority, nocturnity, disregard of old age and ignominy, sentenced him to death and ordered him to pay an indemnity of twenty-two thousand pesos to the heirs of Amparo Lazo (Criminal Case No. 1858). The case was elevated to this Court for review of the death penalty. Umaguing, 29, who finished third year high school, testified that in 1976 he started working as janitor in the hospital. He became a member of the Bahala na Gang in 1967. His defense was that at past nine o'clock he was categorically ordered by Doctor Sison to remove alisin na") the endotracheal tube and other instruments and devices because the old woman's case was hopeless. The order was allegedly given to him and to the nurse and the orderly or attendant named Abundio Makinano (3, 9-10 tsn January 5,1978). In the courtroom Umaguing demonstrated the giving of the signal by sitting on the floor, his left elbow on top of the witness stand and his right hand making a sign that there was no more hope for the patient (9 tsn January 5, 1978). Immediately after Umaguing mentioned the name of Sison, Judge Onofre A. Villaluz ordered that he be subpoenaed to testify. In his testimony, Sison denied that he gave a signal to Umaguing to remove the endotracheal tube. Umaguing denied that he was connected with any funeral parlor. Doctor Sison did not know whether Umaguing was an agent of any mortician. Umaguing admitted that after removing the endotracheal tube he was called by the head nurse. He was running because he was nervous. He was nervous because he had pulled out the tube. He admitted that removing the tube was a mistake. He was apprehended by the security guard at the gate. He did not tell the police during the investigation that Doctor Sison ordered him to remove the tube (11 12 tsn). Umaguing's counsel in the trial court admitted that "there is no dispute that" Umaguing "removed the endotracheal tube" (p. 164, Record). In the police station, when two relatives of the patient, Jose Cruz and Adelaida Apostol, fingered him as the malefactor who removed the endotracheal tube, he did not controvert that accusation. He did not execute any sworn statement to prove his innocence. Umaguing's counsel de oficio contends that the trial court erred in finding that the removal of the endotracheal tube shortened the old woman's life or caused her death and in holding that he committed murder. He argues that because of the old woman's critical condition she was sure to die a natural death; that the tube was inserted into her windpipe merely to lessen her suffering and that she did not die immediately after the removal of that tube. It is also contended that the accused accidentally removed the tube while he was cleaning the emergency room and, therefore, he did not deliberately intend to kill the old woman. Hence, he could not be guilty of murder. Those contentions are devoid of merit. As a janitor, the accused had no compelling reason to be in the emergency room to watch the old woman's condition while medical assistance was being extended to her. His presence in the emergency room was for some ulterior motive and that motive became evident when he removed the tube. The removal of the tube was not accidental. Evidently counsel de oficio did not remember the testimony of Umaguing which counsel himself elicited on direct examination, of counsel did not bother to read the record. Since Umaguing testified that he removed the tube because he was ordered to do so by Doctor Sison (3-4 tsn January -01 1978), the removal of the tube was not accidental. Umaguing was not cleaning the emergency room when the old woman was brought there. He had stationed himself in the emergency room to monitor or to observed the medical treatment being administered to her. his diabolical purpose was to wait for a good opportunity when he could attempt to hasten the old woman demise. On the other hand, The Solicitor General recommends the acquital of the accused on the ground that the proximate cause of the patient's death aws not the removal of the endotracheal tube but cardio-respiratory arrest and that it was not shown that the accused acted with criminal intent. That recommendation is not well taken. Umaguing's removal of the endotracheal tube was utterly malicious and felenious. The victims relative, he was trying to kill the old woman. And so, they lost no time in calling a policeman to apprehend and investigate him. Umaguing, as a janitor, had nothing to do with the patient. He had no business being in the emergency room at eight o'clock in the evening. As his act of removing the tube was wrongful, it is to be presumed that he did so with an evil intent (See 5[b], Rule 131, Rules of Court; U.S. vs. Apostol, 14 Phil. 92; U.S. vs. Tria, 17 Phil. 303; U.S. vs. Ballesteros, 25 Phil. 634; People vs. Sia Teb Ban, 54 Phil. 52; People vs. Cubelo 106 Phil. 496). Umaguing was not able to rebut satisfactorily that presumption. As already noted, his testimony that he was ordered by Doctor Sison, the chief resident physician, to remove the tube was denied by the latter (22 tsn January 5, 1978). Doctor Favila testified that the removal of the tube was a serious matter (65 tsn March 9, 1977). The overt acts committed by the accused constitute attempted murder. He was not able to perform all the acts of execution necessary to consummate the crime because the victim was transferred to another hospital and the accused was immediately apprehended. Moreover, the tube was reinserted into the victim's mouth. We find the accused guilty beyond reasonable doubt of attempted murder without any aggravating circumstances. The trial court's decision is modified. The death penalty is set aside. Umaguing is sentenced to an indeterminate penalty of four years of prision correccional as minimum to eight years of prision mayor as maximum and to pay an indemnity of five thousand pesos to the heirs of the victim, Amparo Lazo. Costs de oficio. SO ORDERED. G.R. No. L-29481 October 31, 1928 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. PAMBAYA BAYAMBAO, defendantappellant. ROMUALDEZ, J.: Pambaya Bayambao was charged with the crime of murder, was found guilty thereof by the Court of First Instance of Lanao and sentenced to twenty years' cadena temporal, the accessories of law, costs and to indemnify the heirs of the deceased in the sum of P1,000. He does not deny having caused the deceased's death. He alleges, however, that he did it by mistake, believing the deceased malefactor who attacked him in the dark. He thus related the occurence: A. While my wife was cooking she called out to me saying, "Pambaya, Pambaya, someone has thrown a stone at the house." So I took my revolver and went down. Having gone under the house, I looked around, but did not see anybody; however, I did not go far because I was alone. Then, while I was near the staircase, about to ascend, I heard a noise and saw a black figure that rushed at me, with hands lifted up as if to strike me, and becoming frightened, I fired at it. 1awph!l.net Q. Why did you shoot him? — A. Because I thought he was an outlaw and he also thought that I was another outlaw, but found out later that it was my brother-in-law. Q. Why did you not shout before shooting? — A. I had no time because the man was already near, when I saw that black figure with uplifted arms behind a pillar, and fearing 14 he would attack me with his kampilan or dagger, I shot him before he would kill me. Q. Why did you think that black figure was an outlaw? — A. Because my wife screamed that there were evildoers below, and in our place ther are many outlaws, and those outlaws hate me because I help the Government to collect taxes. Some days before, there was killing near my house, a soldier killing two outlaws. Q. After you had fired at that black figure, what did you do? — A. After having fired, I waited a moment to see if he had other outlaw companions, and I was prepared to go up and get my gun. As I did not see anybody else, I cried out, "Brother-in-law, come down, Imo, bring a light." At that Imo and Morid came down with a light and we discovered that the person who was moaning was my brother- in-law. Upon seeing him I ran towards him, embracing and kissing him, saying: "Forgive me, I thought you were an outlaw," and he answered: "And I also thought you were an outlaw." (Pages 33-34, t.s.n.) The wife of the victim gives another version of the occurrence. She testified that when the accused's wife informed him that someone had thrown a stone at the house, the accused suggested that the deceased go down and see who was throwing stones at them; that the deceased went down and told the accused that there was no one under the house; that thereupon the accused, telling him to wait there for he was going to use his flashlight, went down carrying an automatic revolver in his right hand and a flashlight in the left; that, on coming downstairs the accused asked the deceased if the hens there belonged to him, and the latter asked the accused to focus his light there in order to gather all the hens together; that at this the accused shot the deceased, whose wife peered out of the door and saw her husband with the accused focusing his flashlight on him and then firing at him again; that the deceased told Pambaya that he was wounded; that the deceased's wife upbraided the accused telling him that he did wrong, and asked why he had shot the deceased; that the accused turned upon her telling her to shut up or he would shoot her also. Morid, widow of the deceased, is the only witness testifying to these facts. Her testimony is uncorroborated. The alleged ante-mortem declaration contained in the document Exhibit B, is of doubtful authenticity, because, while the justice of the peace and the witness Urunaga state that such statement was made by the deceased, Constabulary Lieutenant Cramer, who arrived at where the deceased was a few moments before said justice of the peace positively states that the deceased could no longer speak. Consequently, he could not very well have the alleged statement. Of Course, it appears that it was not the deceased who wrote it, but Urunaga, and upon a typewriter. It does not appear that the deceased read it or that it was read to him, or that the deceased acknowledge it as his own statement. This proof of identity is indispensible for the admissibility of such an ante-mortem declaration as evidence. (People vs. Dizon, 44 Phil., 267.) We cannot give any probatory value to document Exhibit B. Alone and uncorroborated, therefore, stands the testimony of Morid, which, besides being incongruous in parts, is flatly and shoutly denied by the accused and his wife. Considering the circumstances of the case, it is very improbable that, without a previous dispute or even an exchange of words, the accused should suddenly and unexpectedly attack the deceased. The disagreement that, according to the latter's widow, arose between the accused and the deceased ten days before the incident, has not been proven in the record, and it is inconsistent with the conduct of the two during the subsequent days up to time of the incident, with both living peacefully and sleeping together in the same house on the night in question, a few moments before the occurrence, according to the testimony of Morid herself. On the other hand, the accused's narration seems natural. And as it is corroborated not only by his wife's testimony, but on some points by that of Lieutenant Cramer and Sergeant Tumindog, to the effect that immediately after the occurrence the accused betook himself to the commanding officer of the place in order to give an account of the incident, and to ask for prompt medical help for his unexpected victim, it cannot but produce in the mind a conviction that what happened to the unfortunate Mangutara was an accident, without fault or guilt on the part of the herein appellant. The latter, on that occasion, acted from the impulse of an uncontrollable fear of an ill at least equal in gravity, in the belief that the deceased was a malefactor who attacked him with a kampilan or dagger in hand, and for this reason, he was guilty of no crime and is exempt from criminal liability (art. 8, No. 10, Penal Code.) Furthermore, his ignorance or error of fact was not due to negligence or bad faith, and this rebuts the presumption of malicious, intent accompanying the act of killing. In an case, this court acquitted the accused (U.S. vs. Ah Chong, 15 Phil., 488), and we deem the doctrine laid down in that case applicable to this one. The judgment appealed from is reversed and the appellant acquitted, with costs de officio, and the other pronouncements in his favor. So ordered. August 3, 1935 G.R. No. 43530 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. AURELIO LAMAHANG, defendantappellant. RECTO, J.: The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First Instance of Iloilo, finding him guilty of attempted robbery and sentencing him to suffer two years and four months of prision correccional and to an additional penalty of ten years and one day of prision mayor for being an habitual delinquent, with the accessory penalties of the law, and to pay the costs of the proceeding. At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on Delgado and C.R. Fuentes streets of the City of Iloilo, caught the accused in the act of making an opening with an iron bar on the wall of a store of cheap goods located on the last named street. At that time the owner of the store, Tan Yu, was sleeping inside with another Chinaman. The accused had only succeeded in breaking one board and in unfastening another from the wall, when the policeman showed up, who instantly arrested him and placed him under custody. The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the trial judge and the SolicitorGeneral, as constituting attempted robbery, which we think is erroneous. It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which has a logical relation 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. The attempt to commit an indeterminate offense, inasmuch as its nature in relation to its objective is ambiguous, is not a juridical fact from the standpoint of the Penal Code. There is no doubt that in the case at bar it was the intention of the accused to enter Tan Yu's store by means of violence, passing through the opening which he had started to make on the wall, in order to commit an offense which, due to the timely arrival of policeman Tomambing, did not develop beyond the first steps of its execution. But it is not sufficient, for the purpose of imposing penal sanction, that an act objectively performed constitute a mere beginning of execution; it is necessary to establish its unavoidable connection, like the logical and natural relation of the cause and its effect, with the deed which, upon its consummation, will develop into one of the offenses defined and punished by the Code; it is necessary to prove that said beginning of execution, if carried 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. Thus, in case of robbery, in order that the simple act of entering by means of force or violence another person's dwelling may be considered an attempt to commit this offense, it must be shown that the offender clearly intended to take possession, for the purpose of gain, of some personal property belonging to another. In the instant case, there is nothing in the record from which such purpose of the accused may reasonably be inferred. From the fact established and stated in the decision, that the accused on the day in question was making an opening by means of an iron bar on the wall of Tan Yu's store, it may only be inferred as a logical conclusion that his evident intention was to enter by means of force said store against the will of its owner. That his final objective, once he succeeded in entering the store, was to rob, to cause physical injury to the inmates, or to commit any other offense, there is nothing in the record to justify a concrete finding. It must be borne in mind (I Groizard, p. 99) 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). Hence, the necessity that these acts be such that by their very nature, by the facts to which they are related, by the circumstances of the persons performing the same, and by the things connected therewith, they must show without any doubt, that they are aimed at the consummation of a crime. Acts susceptible of double interpretation , that is, in favor as well as against the culprit, and which show an innocent as well as a punishable act, must not and can not furnish grounds by themselves for attempted nor frustrated crimes. The relation existing 15 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 directly infer from them the intention of the perpetrator to cause a particular injury. This must have been the intention of the legislator in requiring that in order for an attempt to exist, the offender must commence the commission of the felony directly by overt acts, that is to say, that the acts performed must be such that, without the intent to commit an offense, they would be meaningless. Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the commission of the offense, are not punished except when they are aimed directly to its execution, and therefore they must have an immediate and necessary relation to the offense." Considering — says the Supreme Court of Spain in its decision of March 21, 1892 — that in order to declare that such and such overt acts constitute an attempted offense it is necessary that their objective be known and established, or that said 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 the designation of the offense: . ... In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does not constitute attempted robbery but attempted trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and decisions of the Supreme Court of Spain therein cited). Under article 280 of the Revised Penal Code, this offense is committed when a private person shall enter the dwelling of another against the latter's will. The accused may be convicted and sentenced for an attempt to commit this offense in accordance with the evidence and the following allegation contained in the information: "... the accused armed with an iron bar forced the wall of said store by breaking a board and unfastening another for the purpose of entering said store ... and that the accused did not succeed in entering the store due to the presence of the policeman on beat Jose Tomambing, who upon hearing the noise produced by the breaking of the wall, promptly approached the accused ... ." Under the circumstances of this case the prohibition of the owner or inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil., 509; U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21 Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against the accused must be taken into consideration the aggravating circumstances of nighttime and former convictions, — inasmuch as the record shows that several final judgments for robbery and theft have been rendered against him — and in his favor, the mitigating circumstance of lack of instruction. The breaking of the wall should not be taken into consideration as an aggravating circumstance inasmuch as this is the very fact which in this case constitutes the offense of attempted trespass to dwelling. The penalty provided by the Revised Penal Code for the consummated offense of trespass to dwelling, if committed with force, is prision correccional in its medium and maximum periods and a fine not exceeding P1,000 (art. 280, par. 2); therefore the penalty corresponding to attempted trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its minimum and medium periods. Because of the presence of two aggravating circumstances and one mitigating circumstance the penalty must be imposed in its maximum period. Pursuant to article 29 of the same Code, the accused is not entitled to credit for one-half of his preventive imprisonment. Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of attempted trespass to dwelling, committed by means of force, with the aforesaid aggravating and mitigating circumstances and sentenced to three months and one day of arresto mayor, with the accessory penalties thereof and to pay the costs. Avanceña, C.J., Abad Santos, Hull, and Vickers, JJ., concur. March 3, 1934 G.R. No. 40512 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. PERFECTO TAYAG and ATANASIO MORALES, defendants-appellants. DIAZ, J.: The defendants and appellants Perfecto Tayag and Atanasio Morales were convicted of attempted robbery in an inhabited house, located at No. 325-A San Marcelino Street, Manila, having, on the night of September 12, 1933, attempted to enter the said house with intent to rob, according to the allegations of the information, by means of force and by using a bolo and a screw driver to force one of the doors thereof, which were then closed and barred. The court, which tried the case against the said two appellants, imposed upon Perfecto Tayag, the penalty of four years and two months of prision correccional plus the additional penalty of six years and two months of prision correccional plus also an additional penalty of ten years, he being likewise a habitual delinquent with a greater number of former convictions. From this sentence, the defendants appealed. The facts disclosed by the evidence of the prosecution, which are certainly overwhelming and leave no room for doubt, are: that a little after two o'clock on the morning of September 12, 1933, the said two appellants, armed with a bolo and a screw driver, went to Juan Nicasio Go Cuay's store, which also served as his dwelling, located, as aforestated, at No. 325-A San Marcelino Street, of the City of Manila. Believing that they were unnoticed, they proceeded to open one of the doors of the said store with the tools — bolo and screw driver — which they then carried and which, of course, were not the proper means for that purpose. After they had succeeded in loosening one of the bars of the door and upon becoming aware that the inhabitants of the store had been awakened, they tried to escape but policemen A. Santos, J. Rubic and G. Malap, who up to that time had been watching them, detained and placed them under arrest. The said policemen found the bolo, Exhibit A, in the possession of the appellant Perfecto Tayag, and the screw driver, Exhibit B, in the possession of the other appellant Atanasio Morales. In the store of said Juan Nicasio Go Cuay there were, at that time, a little more than P40 in cash, which represented the proceeds of his sales the day before, and merchandise valued at around P1,000. However, there is absolutely nothing of record to show that the said appellants' intention on that occasion was to commit robbery, or that they somehow knew that they would find money amounting to P40 therein. In every criminal proceeding, the guilt of the accused must be proven by means of competent and conclusive evidence and should never be based on mere inferences, however reasonable these may be, particularly when there still remains, as in this case, a sufficient indication of the existence of an intention different from that of committing robbery. It would be arbitrary, not to say absurd, to suppose that had the appellants succeeded in entering the store of said Juan Nicasio Go Cuay, they would have carried away all the goods therein, because they would not have been able to do so by themselves, not having any vehicle at their disposal. The act committed by the appellants simply constitutes the crime of attempted trespass to dwelling, as defined in article 280, paragraph 2, of the Revised Penal Code, that is, trespass committed by means of violence. (Decision of the Supreme Court of Spain of February 8, 1899, Viada, Fourth Supplement, p. 399; Decision of the Supreme Court of Spain of December 10, 1900, Id., p. 401; Decision of the Supreme Court of Spain of April 5, 1890, Hidalgo, Penal Code, vol. 2, p. 512.) The documentary evidence presented by the prosecution, consisting of Exhibits C, D and E, which are the records of criminal cases No. 38880, 38924 and 38923, does not show that the appellants are habitual delinquents. The most that the said documents disclose is that at about the same time, the appellants committed the crimes of theft with which they were charged therein, and therefore the 10th aggravating circumstance, that is, previous convictions, should be taken into consideration against them. The aggravating circumstance of nocturnity should likewise be considered against the said appellants. Wherefore, and taking into consideration that the penalty lower by two degrees than that prescribed for trespass to dwelling by means of violence in article 280, paragraph 2, of the Revised Penal Code is arresto mayor in its minimum and medium periods (from one month and one day to four months), the penalty imposed upon the appellants is hereby modified by sentencing them, each to three months and one day of arresto mayor, with the corresponding accessory penalties, and to pay the proportionate part of the costs of both instances, without prejudice to their being credited with one-half of the time during which they have undergone preventive imprisonment, in accordance with article 29 of the Revised Penal Code. So ordered. March 31, 1903 G.R. No. 1114 THE UNITED STATES, complainantappellee, vs. BARTOLOME OSTREA, ET AL., defendants-appellants. MAPA, J.: It is sufficiently appears from the record that the defendants, at the time in question, went to the house of Juan Rodriguez, alleged to have been broken into, with the intent of making an entrance there at all cost, even against the will of the said Juan Rodriguez. It 16 does not, however, appear to be certain that they did in fact succeed in entering, as the record is not very explicit upon this point. It is evident that they succeeded in entering the first door of the house, either violently by breaking it open, as alleged by the complainant, or because they found it already open, as testified by the defendant Bartolome Ostrea. It does not appear, however, whether this door formed an integral part of the house or whether, on the contrary, it was an outer door, separate and independent from the body of the house. We are inclined to believe that the latter is the fact, in view of the testimony in the case. The complainant calls this first door the frontdoor, and adds that upon seeing it had been broken by the accused he immediately closed the second door and did not allow them to enter his house. In another part of his testimony he states that when they (the accused) saw that they could not enter the house they went away. The other witness for the prosecution, Benigno Sebastian, testifies that Bartolome Ostrea called to his wife, who was in the house, but that he could not get in, because the doors were closed. Bartolome Ostrea, on his part, in his testimony at the trial says that the first door was open, and that the following door at the entrance to the house was closed. From this statement it would appear that the second door was that at the entrance to the house in question. In view of the terms in which these witnesses expressed themselves and the lack of other more precise data in the record it may be concluded that, notwithstanding the fact that the defendants entered the first door, they did not succeed in entering the house. It is possible that this conclusion is not in conformity with the facts as the really occurred, but is the legal conclusion from the data disclosed by the record and upon which alone we must rely for our decision. In consequence, the defendants are only responsible for the crime of an attempted forcible entry into the dwelling, and not for a consummated entry, as considered by the court below in the judgment appealed. It has been proven that in the execution of this act the defendants employed violence and intimidation, and for nearly half an hour tried to push open the door at the entrance to the house, and that Bartolome Ostrea fired several shots from his revolver upon seeing that Rodriguez refused to open the door. The latter says that Ostrea fired three or four shots. The other witnesses for the prosecution only heard one. It is a matter of indifference, however, whether one or more shots were fired for the purposes of considering the circumstance of intimidation, more especially in view of the fact that Bartolome himself admits that he discharged the revolver which he carried, although he adds that he only fired in the air. The concurrence of this circumstance brings the act in question within the sanction of paragraph 2 of article 491 of the Penal Code. In favor of the accused we must consider the mitigating circumstance of drunkenness (No. 6 of art. 9 of the Penal Code), as it appears from the testimony of the complainant himself and that of Benigno Sebastian that they were drunk at the time in question, and that they are not habitual drunkards. In the present case we must consider as mitigating the circumstance that the complainant, Juan Rodriguez, is the father-in-law of Bartolome Ostrea, by virtue of the provisions of paragraph 1 of article 10, for, in view of this close relationship, it is not considered that the defendant would regard himself as a stranger in the home of the complainant, to which it is to be presumed he ordinarily had free access as a member of the Rodriguez family. The fact, sufficiently proven in the case, that he believed his wife, the daughter of the said Rodriguez, was in the house at the time in question, may also have contributed to lead him to believe, although erroneously, that he had a right to enter the house. Upon the grounds set forth, and in view of the provisions of articles 66 and 75, paragraph 2 of article 91, and article 92 of the Penal Code, we condemn each of the defendants to a fine of 325 pesetas, or to subsidiary imprisonment, in case of nonpayment, at the rate of one day for each 12 1/2 pesetas. The judgment appealed, thus modified, is affirmed, with the costs of this instance to the defendants. So ordered. December 2, 1929 G.R. No. 30993 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. PIO VIVAS, SANTIAGO LAUDE, LORENZO CARAZO and RAYMUNDO MECO,defendants-appellants. AVANCEÑA, C.J.: At about 10 o'clock on the night of September 1, 1928, Pablo Estobesa and Hermogenes Eusebio, night-watchmen, and Joaquin Unlao, guard, in the College of Agriculture located in Los Baños, Laguna, inspected the paying teller's office and found all the doors and windows closed, except one window which was ajar. Seeing that near the lock of this window was a hole large enough to put the fist through, they lighted the room through it, and saw that all was well. Before leaving the place they closed the window and locked it from within, introducing the hand into the hole near the lock. At half past 12 that night Unlao went to the college stores to inspect them, and Pablo Estobesa went to the garage, where he met the chauffeur Pablo Estrada who had driven an automobile from Manila. After conversing for some time, Estobesa and Estrada heard a noise coming from the office of the paymaster; Estobesa went up to the office and found that the window they had closed was again open, and in front of it was standing Raymundo Meco, whom he knew to be one of the workmen in one of the collection departments. Although he had recognized him, Estobesa, acting as guard, asked him twice who he was, and Raymundo, instead of answering him, hid himself behind a column. Estobesa, becoming suspicious of Raymundo's actions fired a shot in the air with his revolver as a signal for help. Raymundo ran behind the building, and at the same time, five persons jumped out of the window that had been opened again, and joined Raymundo. Estobesa approached the group, scrutinized their faces, and recognized that they were Raymundo Meco, Lorenzo Carazo, Santiago Laude, Pio Vivas and the Mulingtapang brothers. Raymundo was armed with a pistol and the others with penknives. The Mulingtapang brothers then attacked Pablo Estobesa with their knives wounding him on the right arm and in his back, and in self-defense, he used his revolver and killed the two brothers. Meanwhile, Estrada and Unlao came up to where Estobesa was, and confronted the other four members of the group, who attacked and killed Unlao. After the incident an investigation was made and a piece of iron was found beside the paymaster's safe. The hinge of the safe was broken and its covering was on the ground. The safe contained about P12,000. An information was filed against Raymundo Meco, Lorenzo Carazo, Santiago Laude, and Pio Vivas for the crime of frustrated robbery with homicide, as principals. The trial court found these defendants guilty of the two independent crimes: the homicide of Joaquin Unlao, and physical injuries on the person Pablo Estobesa, sentencing each for the first crime to seventeen years, four months, and one day of reclusion temporal, with the accessaries, and to indemnify the family of the deceased Joaquin Unlao jointly and severally in the sum of P500; and for the second, to four months and one dayarresto mayor, with the accessaries, and to pay a fine of 1,500 pesetas, with subsidiary imprisonment in case of insolvency, and the proportional share of the costs. From this judgment the defendants appealed. With regard to the identity of the appellants, the evidence in our opinion leaves no room for doubt. The witnesses who testified in this case to the effect that the appellants were four of those who committed the crime, took an active part in the occurrence and had every opportunity to see and recognize the appellants. The evidence adduced to sustain the alibi alleged by the appellants can in no wise offset the evidence presented by the Government. The court below held that the evidence was insufficient to prove an attempted robbery, because if the appellants conceived the intention to rob the college safe, they desisted of their own free will. This conclusion is unfounded. The appellants commenced their proposed robbery with direct overt acts, by breaking the lock of the safe where the amount of P12,000 was kept. And although they failed to carry out all the acts of execution which should have produced the crime of robbery, it was not due to their own voluntary desistance, but to the shot fired in the air by Estobesa in front of the building. For these reasons we are of opinion that the appellants are guilty as charged in the information, of the crime of attempted robbery with homicide, and physical injuries, and therefore article 506, in connection with paragraph 1 of article 503 of the Penal Code is applicable. The aggravating circumstances of cuadrilla and nighttime were present in the commission of the crime, with no mitigating circumstance to offset them. In conformity with the Attorney-General's recommendation, the judgment appealed from is modified, the appellants being sentenced to life imprisonment, the accessaries, and the costs. So ordered. December 29, 1948 G.R. No. L-1798 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DOMINGO ACUSAR, MARCELINO ACUSAR, IGMIDIO ACUSAR, ANSELMO ACUSAR, and OTHERS UNKNOWN, defendants. DOMINGO ACUSAR and IGMIDIO ACUSAR, appellants. PERFECTO, J.: At about eleven o'clock in the morning of August 21, 1946, the brothers Domingo and 17 Marcelino ACUSAR went to the U.S. Army Ammunition Depot at barrio Balte, Batangas, to which formerly they used to go together some firewood. Domingo boarded a truck, used by the depot for carrying trash, when it was about to move out. After the truck had traveled some distance, about fifty meters, Domingo threw out from the truck three spades. Upon seeing it, Romero Velasquez, the foreman of the depot, ordered the laborers to take the spades, Laborer Francisco Orense went running to pick them up, Marcelino coming behind him, evidently in a race to reach for the spades. Orense placed the spades among the implements used in the depot. At about twelve o'clock that same day accompanied by Anselmo Acusar, another brother, Domingo returned to the depot and asked the laborers, who were then taking their noontime, rest, who took the three spades. Orense answered that he was the one on orders of the foreman. At this juncture Romero approached the group and was asked by Domingo who ordered the taking of the spades. Romero answered that he was the one because, as foreman, he was responsible for them. Domingo demanded that the spades be given to him because he had promised them to somebody else. Romero rejected the demand. alleging that the spades were placed under his care and responsibility, he had signed receipts for them and he would be accountable for their loss. Domingo insisted in his demand and Romero in his refusal. The discussion became heated, and Domingo went to one side where he picked a bolo and with it he hacked twice Romero at the back. Romero fell down. Although he was able to stand up once, he fell down again under the continued attacks of Domingo, who was helped by his brothers Anselmo and Marcelino, both using knives to wound Romero. One of the assailants said that Romero should be left alone because he was dying, and Romero was left alone lying wounded on the ground. At the time he was being attacked, an old man, Gregorio Velasquez, father of Romero and who was in the depot as one of the laborers, had been shouting to the assailants to leave alone his son because he was not offering any resistance. Upon noticing it, Igmidio Acusar, father of Domingo, came down from his house, accompanied towards Gregorio and started pounding him with the butt of a rifle, while his two companions beat the old man with bakawan sticks. After leaving Romero alone and upon seeing what was happening where Gregorio Velasquez was, Domingo, Anselmo and Marcelino, each armed with a crowbar that they picked lying among the empty boxes, joined their father in beating to fall, Domingo hacked him once on the back with a bolo. Gregorio fell unconscious and the assailants fled. As a result of the affray, Gregorio Velasquez did a few minutes after his arrival in the Station Hospital of the American Army in Batangas, due to multiple and severe fractures of the skull, which appeared like an egg that had been pounded and battered to pieces by blows. The deceased had received an incised wound on the shoulder. The right thumb of Romero Velasquez was severed and he suffered several wounds. He had to stay for many days in the hospital, less than a month, and had an additional twoweek medical treatment at the dispensary after he left the hospital. The facts of the case, as above narrated, have been conclusively proved. Direct participation of Domingo and Igmidio Acusar in causing death of Gregorio Velasquez of Domingo in almost killing Romero Velasquez, has been established by the testimonies of Francisco Orense and Crisanto Atienza. Igmidio tried to establish as alibi. alleging that in the morning of August 21, 1946 he went to the town of Cuenca to look over a bull he was intending to purchase from Fausto Dipasupil. He was accompanied by his son, Marcelino, and both started from Cuenca to their home at about 1 o'clock in the afternoon and, therefore, he could have not taken part in the assault that caused the death of Gregorio Velasquez. Marcelino Acusar and Fausto Dipasupil testified to corroborated him but the lower court has correctly rejected the defense. The testimonies of the three witnesses for the prosecution appear to be more reliable. No improper motive was shown why laborers Francisco Orense and Crisanto Atienza would have falsely imputed to Igmidio active participation in , and the commencement of, the assault against Gregorio Velasquez. The defense does not deny, but admits that Orenses and Atienza were in the scene of the incident and were eyewitness to the wounding of Romero and the killing of Gregorio. It is unquestioned that the whole incident took place in the presence of other persons, aside from those who testified at the trial, and if the accusation against Igmidio were false, there would have been one or more who, not enduring to se an innocent falsely accused of a crime he has not committed, would have come in the open to testify in court and champion his cause. The more or less widespread cynicism notwithstanding human experience has conclusively shown that the essential feeling of righteousness in the average human being is a reality that cannot be ignored. Domingo tried to show by his own testimony, unsupported by any other witness, that in wounding Romero he acted in self-defense, but not one of the many actors and witnesses of the whole incident corroborated him. He said that between Romero and himself there was exchange of words and counter-charges as thieves for the pilferage of goods in the depot and that Romero, provoked by the counter-accusation against him, drew out an open knife and tried to stab Domingo who evaded the blow and ran away. But Romero chased him until Domingo was able to hold a bolo which was on top of some boxes. There was a scuffle. While Romero suffered many wounds and lost his right thumb, Domingo, due to his dexterity in fencing, was able to come out unscathed. The inverisimilitude of Domingo's version is apparent. It is unbelievable that in such a long struggle narrated by Domingo, the latter should come out without a single scratch on the skin, while Romero should suffer so many wounds. Not even extreme ability in fencing can explain such an extraordinary result, considering that Romero was not a weakling. On the contrary, his survival from the many wounds he received is an evidence that he was endowed with unusual vitality. According to Dr. Schrank, two back wounds of Romero and one on his thigh were caused by a sharp instrument like a knife, not a bolo. The three wounds belie completely the story of Domingo. The lower court found the two appellants guilty of murder for the death of Gregorio Velasquez and found Domingo guilty of serious physical injuries caused to Romero Velasquez. The Solicitor General is of opinion that the crime committed for the killing of Gregorio should not be considered murder but homicide. The abuse of superior strength to make the crime murder, not having been alleged in the information, should only be considered as aggravating circumstances for the crime of homicide. As regards the attack on Romero, the Solicitor General maintains that, from the evidence, Domingo's intention to kill was manifest, he and his co-assailants having used deadly weapons such as bolos and knives. As a matter of fact, they left Romero for dead. But as Dr. Schrank, witness for the prosecution, has expressed the doubt that the wounds suffered by Romero would, without medical assistance, have caused his death, the Solicitor General is of opinion that the crime committed by Domingo is only attempted homicide. The position of the Solicitor General is well taken. Igmidio is responsible as principal of homicide for the slaying of Gregorio. Both prosecution and defense, correctly agreed that Domingo should only be found guilty as accomplice in the homicide, there being no conspiracy and his contribution being a mere lacerated wound on the shoulder of the deceased which was described by Dr. Schrank as moderate and not fatal. Accordingly, Igmidio Acusar is sentenced to an indeterminate penalty of from six years and one day prision mayor to seventeen years, four months and one day of reclusion temporal, and Domingo Acusar, as accomplice in the crime of homicide, to suffer an indeterminate penalty of from two years, four months and one day of prision correccional to eight years and one day of prision mayor, and as principal of the crime of attempted homicide, to suffer from one month and one day of arresto mayor to two years, four months and one day of prision correctional. For the loss of the right thumb of Romero Velasquez the latter shall be indemnified by Domingo Acusar in the sum of P500, and both Igmidio and Domingo Acusar shall indemnify jointly and severally the heirs of the deceased Gregorio Velasquez, as recommended by the prosecution and in accordance with the doctrine laid down inPeople vs. Amansec (L-927, 45 Off. Gaz. [Supp. to No. 9], 51)[[1]] in the sum of P6,000, and to pay the costs. [G.R. No. 1593. March 20, 1905. ] THE UNITED STATES, ComplainantAppellee, v. BENITO MERCADO, Defendant-Appellant. SYLLABUS 1. PLACE OF TRIAL; OBJECTION; REVERSAL. — The fact for the convenience of witnesses a case is tried in the Prison of Bilibid, the defendant not having objected thereto at the time, is no ground for reversal. 2. BODILY INJURIES. — If the evidence so warrants, the court may before the expiration of the ninety days mentioned in article 416 of the Penal Code, find that the effects of the injury will continue for a longer time than said period. 18 WILLARD, J. : There was no substantial dispute about the facts in this case. The defendant, Benito Mercado, and the injured party, Julio Salazar, were on the 21st day of February, 1903, both confined in the Prison of Bilibid. On that day the defendant, without any apparent provocation, struck Salazar upon the side of the head with a heavy club. At the trial Dr. Lyon, who saw the injured person within a minute or two after he was hurt, testified that under the most favorable conditions it would be impossible for Salazar to recover the normal condition of his hearing within a period of ninety days, and that it was absolutely impossible for him ever to recover such use, and that there was only a slight probability that he would ever recover a part of his hearing. The defendant, in this court, asks that the judgment be reversed upon two grounds:chanrob1es virtual 1aw library (1) The case was tried within the Prison of Bilibid, probably because the defendant, the complaining witness, and nearly all of the other witnesses were there confined as prisoners. It is claimed by the defendant that this trial was illegal because there was no provision of the law which authorized the judge to hold a trial at that place and because such a trial was not the public trial which is guaranteed to the defendant by the act of Congress. It affirmatively appears from the record that the defendant offered no objection to the trial of the case in Bilibid Prison. This statement appears in the record prior to the taking of any testimony, and it is clear that the question where the trial was to be held was raised and determined before the trial was to be held was raised and determined before the trial was commenced. Under these circumstances it is not necessary for us to decide whether, if there had been objection on the part of the defendant, the trial would have been legal. It is sufficient to say that this was one of the rights which the defendant could waive, and as he did expressly waive it before the trial commenced it is too late for him now to insist that the trial was erroneous. (2) The injury was committed on the 21st day of February, 1903, and the trial took place on the 7th of March, 1903. During the testimony of Dr. Lyon the defendant asked that the trial be suspended until the court could be absolutely certain that the injury would be permanent, or, at least, that its effects would continue for more than ninety days, and so bring the case within the provisions of article 416 of the Penal Code. The question for the court to determine was whether or not the defendant had permanently lost his hearing or whether he would be incapacitated from his usual work of be sick for more than ninety days. The testimony of Dr. Lyon was positive to the effect that he was permanently injured and that he would never recover his hearing. Under these circumstances we do not think it was necessary for the court to postpone the further hearing of the case until the expiration of ninety days. There was evidence before it from which it was justified in finding that the injury was permanent. As suggested by the Attorney-General in his brief, the fact that no motion for a new trial has been made by the defendant is indicative of the fact that the judgment of the court below as to the permanent character of the complaining witness’s injuries was well based upon the evidence which he then had before him. The judgment of the court below is confirmed, with the costs of this instance against the Appellant. [G.R. No. L-3620. March 25, 1907. ] THE UNITED STATES, Plaintiff-Appellee, v. CATALINO DE LA CRUZ AND JOAQUIN DE LA CRUZ, Defendants-Appellants. SYLLABUS ABDUCTION. — Held, That the facts in this case constitute attempted abduction rather than the frustrated crime. (Following U.S. v. Salazar; U.S. v. Luna, 4 Phil. Rep., 269.) TRACEY, J. : Catalino de la Cruz and Joaquin de la Cruz, in the Court of First Instance of Bulacan, were adjudged guilty of the crime of frustrated abduction. With eight companions they went first to one of two contiguous houses in the barrio of Santol in Malolos and tied up some men whom they found therein; they then proceeded to the adjoining house where they called out that all the men there must come down, as they were police agents. The woman above answering that the men were absent from the house, Catalino de la Cruz, with one companion, went up and meeting Eulalia de los Santos, forcibly dragged her downstairs and in spite of her resistance carried her away to a distance of 25 brazas from the house, when they were interrupted by neighbors answering her cries. days thereafter let the case be remanded to the court from whence it came for proper action. So ordered. It appears that Catalino, having for a long time been seeking to marry this girl, had been rejected by her about a month before and told that she was pledged to another. One defense set up in his behalf is that even if we accept the facts of the charge as proved, yet we should assume that his object in carrying her off was not to do her any injury other than that notoriety of the adventure. There is nothing in the evidence that justifies such a forced interpretation of his acts, which we think, on the contrary, must be given their natural significance and held to indicate an unchaste design, under article 445 of the Penal Code. THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, v. ANASTACIO DAGMAN, ET AL., Defendants-Appellants. The trial court characterized the crime as frustrated abduction. In an occurrence of this nature it is extremely difficult to draw the line between the attempted and the frustrated crime. It seems, however, that this court in various causes has held facts similar to those now before us to constitute a mere attempt, and it is the opinion of the majority that this criterion is to be adopted in the present case. (U.S. v. Salazar, 1 No. 2483, November 15, 1905; U.S. v. Luna, 3 Off. Gaz., 267. 2) Catalino de la Cruz also by his own testimony and that of other witnesses sought to prove an alibi. On this point we do not think that his testimony overcame his positive identification by three witnesses who were present at the occurrence and who also identified his brother Joaquin. There were three aggravating circumstances in this case, nocturnity, the false impersonation of an officer of justice, and the perpetration of the offense in the woman’s house. The judgment of the lower court is reversed and both accused are sentenced to the punishment of five years’ imprisonment (prision correccional) with the accessories under article 61 of the Penal Code and to indemnify the injured party, Eulalia de los Santos, in the sum of 200 pesos; in case on insolvency to suffer subsidiary imprisonment, not exceeding one year, and to pay the costs of both instances. After the expiration of ten days let judgment be entered in accordance herewith and ten [G.R. No. 23133. August 20, 1925. ] SYLLABUS 1. MURDER; WHETHER SHOULD BE CLASSIFIED AS FRUSTRATED OR ATTEMPTED. — The law and the jurisprudence on the subject of frustrated and attempted murder examined and followed. (Penal Code, art. 3, par. 2; U.S. v. Mendoza [1918], 38 Phil., 691; U.S. v. Domingo and Dolor [1911], 18 Phil., 250; U.S. v. Marasigan [1908], 11 Phil., 27; U.S. v. Reyes [1906], 6 Phil, 38; U.S. v. Sabio [1903], 2 Phil., 485; U.S. v. Taguibao [1901], 1 Phil., 16; U.S. v. Eduave [1917], 36 Phil., 209; U.S. v. Sanchez [1911], 20 Phil., 427, citing decisions of the supreme court of Spain of April 17, 1895, September 29, 1881, and December 31, 1890; U.S. vs Agoncillo and Admana [1916], 33 Phil., 242; U.S. v. Bastas and De la Serna [1905], 5 Phil., 251; U.S. v. Poblete [1908], 10 Phil., 578; Albert, The Law on Crimes, pp. 3133; and 30 C.J., p. 14.) 2. ID.; ID. — 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, however, fails to follow for causes entirely apart from his will. In attempted murder the accused begins the commission of the crime by overt 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. (U.S. v. Lim San [1910], 17 Phil., 273.) 3. ID; ID. — Considering (1) the intent upon the part of the assailants to take the life of the person attacked; (2) the deadly weapons used; (3) the vital parts of the body struck during the assault; (4) the violence of the attack; (5) the statement by the aggressors of their purpose to kill; (6) the belief of the aggressors that they had killed; and (7) the presence of causes independent of the will of the perpetrators which saved the victim — playing possum by him — the crime should be classified as frustrated murder. 19 MALCOLM, J. : On the 2nd of May, 1924, Elias Magbual, an employee of the hacienda "La Esperanza," while in the performance of his duties, was treacherously attacked by a crowd of persons, probably about forty in number and was nearly killed. The motive of the crime was that the persons who harbored enmity against 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 ruse of feigning death. On these facts, seven persons, Luis Pacunla, Andres Rebollido, Isabelo Rebollido, Juan Olonan, 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 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 provided by law because of the presence of the aggravating circumstance that prohibited arms were used 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 a 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. v. Mendoza [1918], 38 Phil., 691; U.S. v. Sanchez [1911], 20 Phil., 427; U.S. v. Domingo and Dolor [1911], 18 Phil., 250; U.S. v. Marasigan [1908], 11 Phil., 27; U.S. v. Reyes [1906], 6 Phil., 38; U.S. v. Sabio [1903], 2 Phil., 485; U.S. v. 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. v. 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 as frustrated murder. (U.S. v. 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. v. Agoncillo and Admana [1916], 33 Phil., 242.) (See also U.S. v. Bastas and De la Serna [1905]; 5 Phil., 251; U.S. v. Poblete [1908], 10 Phil., 578; U.S. v. 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 v. Lim San ([1910], 17 Phil., 273, 276), Mr. Justice Moreland speaking for a unanimous court, in part, said:jgc:chanrobles.com.ph "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 accused performs all of the acts which he believes necessary to consummate the crime. Death, however, fails to follow for causes entirely apart from his will. In attempted murder the accused begins the commission of the crime by overt 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, someone 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."cralaw virtua1aw library Agreeable to the recommendation of the Attorney-General, the judgment appealed from is notified 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. [G.R. No. L-5335. November 8, 1910. ] THE UNITED STATES, Plaintiff-Appellee, v. LIM SAN, Defendant-Appellant. SYLLABUS 1. CRIMINAL PRACTICE AND PROCEDURE; COMPLAINT OR INFORMATION; CHARGE OF "ATTEMPTED MURDER," CONVICTION FOR "FRUSTRATED MURDER." — Although the crime designated in the information is that of "attempted murder," this court may, on appeal, convict the accused of "frustrated murder," notwithstanding the fact that the latter crime is the more severely punished, when the crime of frustrated murder is clearly and unmistakably described by the facts set forth in the information. 2. ID.; ID.; CRIME CHARGED IS THAT DESCRIBED. — The crime of which the defendant stands accused is that described by the facts stated in the information, and not that designated by the fiscal in the preamble thereof. 3. ID.; ID.; DESIGNATION OF CRIME BY TECHNICAL NAME IS A CONCLUSION OF LAW. — The designation of the crime by name in the caption of the information is a conclusion of law on the part of the fiscal. The denial of that conclusion raises no issue. 4. ID.; ID.; ISSUE, AND HOW RAISED. — An issue in a criminal action is one of fact. It is raised by the allegation of facts in the information and the denial of those facts by a plea of not guilty. 5. ID.; ID.; DESIGNATION OF CRIME BY TECHNICAL NAME NOT IMPORTANT. — It is not necessary, for the protection of the substantial rights of the accused, nor for the effective preparation of his defense, that he be informed of the technical name of the crime of which he stands charged. He must look to the facts alleged. 6. ID.; ID.; COURT ALONE CAN CONCLUDE WHAT CRIME HAS BEEN COMMITTED. — As a matter of fact the court is the only person or institution authorized by law to say what crime has been committed. Such designation is a conclusion of law resulting from the facts proven upon the trial. Until that time arrives it is of no consequence, either to the people or to the accused, what the technical name of the crime of which the accused is charged may be. 7. ID.; ID.; DESIGNATION OF THE CRIME BY ITS TECHNICAL NAME IS USURPATION OF JUDICIAL FUNCTION. — The designation by the fiscal of the crime in the information by its technical name is a usurpation of the powers of the court and, if 20 binding, would be in effect an adjudication by him of the crime of which the accused must be convicted, if he were to be convicted of any offense. MORELAND, J. : The defendant in this case was convicted of the crime of attempted murder in the Court of First Instance of the city of Manila and sentenced to seven years of presidio mayor and to pay one-third of the costs of the trial. It is alleged that on or about the 18th day of October, 1908, the defendant Lim San attempted to kill one Keng Kin by assaulting him with a bolo and inflicting upon him several wounds; that one of the wounds would have proved fatal had not the injured person received prompt and efficient medical assistance. The guilt of the defendant was established beyond reasonable doubt, if the testimony of Keng Kin, Chua Hung, and Gregorio Mariano is to be believed. All of these witnesses testify that the accused assaulted Keng Kin without cause or provocation and stabbed him several times with a bolo. All unite in saying that Keng Kin, at the time, was standing just outside the limits of the street, his attention upon a dog which he had with him, when the accused leaped upon him with his bolo and committed the acts complained of. All of these witnesses saw the accused in the act, fully recognized him, and later identified him as the person who committed the offense. The defense interposed by the accused was an alibi. He produced several witnesses to support it. Between the testimony of these witnesses and that of the witnesses of the prosecution there is an irreconcilable contradiction. The court below, having heard the witnesses testify and having observed their manner and attitude upon the witness stand, decided that credibility lay with those of the prosecution. A careful reading of the testimony discloses no reason why the conclusion of the court in this particular should be disturbed. The court decided between witness and witness. There are no conditions found in the record which render the story told by the witnesses for the prosecution inherently improbable. There is no circumstance disclosed which impeaches their truthfulness. There is nothing found which impugns in any way their credibility. Under such conditions we will not interfere with the conclusion of the trial court respecting credibility. The crime in this case was committed about 10 o’clock at night. It was somewhat dark, the only light being that given by a lamp suspended from the ceiling of a tienda directly across the street. Keng Kin was not expecting to be attacked. His attention was directed exclusively to his dog. He was wholly unsuspicious. Every faculty was withdrawn from consideration of danger. The accused, without warning of any kind, careful not to disturb the quiescent attitude in which he found his victim until the very instant of the blow, attacked him with great rapidity and force, driving his bolo straight into his face. On the first blow the point of the knife entered the left eye, penetrating to and slightly cutting the brain, destroying the eye completely and rendering him entirely incapable of protecting himself. As a necessary result, the assaulted had no opportunity whatever to defend himself, to escape the blow, to ward it off, or to mitigate its consequences. He was wholly surprised and incapable of offering the slightest resistance. This means simply that the accused committed the crime maliciously and treacherously by methods which tended, directly and especially, to insure him against risk that might proceed from any defense which his victim might make. In other words, the combination of the conditions, darkness, distracted attention, lack of knowledge of the attack, lack of warning, the suddenness of the assault, the maneuvering of the accused in such way as not to attract attention till the very moment of the blow, keeping him quiescent until the end was accomplished, constitutes alevosia under subdivision 2 of article 10 of the Penal Code. This would have made the crime murder had Keng Kin been killed. 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, however, fails to follow for causes entirely apart from his will. In attempted murder the accused begins the commission of the crime by overt acts, but involuntarily desists from performing the other acts 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. The information in his case reads as follows:jgc:chanrobles.com.ph "Pursuant to a preliminary investigation heretofore conducted in the office of the prosecuting attorney for the city of Manila, under the provisions of section 39 of Act No. 183 of the United States Philippine Commission, as amended, the undersigned, prosecuting attorney of the city of Manila, gives the court information against Lim San, Lim Chu, and Que Lat, and accuses the same, and each of them, of the crime of attempted assassination, committed as follows:jgc:chanrobles.com.ph "That on or about the 18th day of October, 1908, in the city of Manila, Philippine Islands, the said Lim San, Lim Chu, and Que Lat, conspiring together, did then and there willfully, unlawfully, feloniously, with treachery, deliberate and known premeditation, and n the nighttime, attempt to kill and assassinate one Keng Kin, by then and there, in the nighttime, lying in wait for and assaulting, cutting, and stabbing the said Keng Kin with deadly weapons — to wit, large bolos — and inflicting then and there upon the head and body of the said Keng Kin numerous cuts, wounds, and physical injuries, with intent then and there to kill and assassinate the said Keng Kin; that the said accused then and there performed all of the acts of execution which should constitute the crime of assassination, but which did not constitute said crime by reason of the fact that though said wounds were intended by the said accused to cause the death of the said Keng Kin, and were believed by the said accused to be sufficient to cause the death of the said Keng Kin, did not cause his death, by reason of prompt and efficient medical assistance, which prevented the said wounds from becoming fatal. "All contrary to law."cralaw virtua1aw library It appears from this pleading that the prosecuting attorney characterized the crime in the caption of the information as attempted assassination. It appears, however, that the facts set out in the body of the information describe the crime of frustrated assassination. Notwithstanding apparent contradiction between caption and body, we believe that we ought to say and hold that the characterization of the crime by the fiscal in the caption of the information is immaterial and purposeless, and that the facts states in the body of the pleading must determine the crime of which the defendant stands charged and for which he must be tried. The establishment of this doctrine is permitted by the Code of Criminal Procedure, and is thoroughly in accord with common sense and with the requirements of plaint justice. We are aware that such a doctrine departs somewhat from the established theories of American criminal jurisprudence; but we are confident that the result obtained fully justifies our holding. Many cases might be cited in which justice has either been greatly delayed or wholly defeated by adhering to the doctrine which we discard. Procedure in criminal actions should always be so framed as to insure to each criminal that retributive punishment which ought swiftly and surely to visit him who willfully and maliciously violates the penal laws of society. We believe that a doctrine which does not produce such a result is illogical and unsound and works irreparable injury to the community in which it prevails. From a legal point of view, and in a very real sense, it is of no concern to the accused what is the technical name of the crime of which he stands charged. It in no way aids him in a defense on the merits. Whatever its purpose may be, its result is to enable the accused to vex the court and embarrass the administration of justice by setting up the technical defense that the crime set forth in the body of the information and proved in the trial is not the crime characterized by the fiscal in the caption of the information. That to which his attention should be directed, and in which he, above all things else, should be most interested, are the facts alleged. The real question is not did he commit a crime given in the law some technical and specific name, but did he perform the acts alleged in the body of the information in the manner therein set forth. If he did, it is of no consequence to him, either as a matter of procedure or of substantive right, how the law denominates the crime which those acts constitute. The designation of the crime by name in the caption of the information from the facts alleged in the body of that pleading 21 is a conclusion of law made by the fiscal. In the designation of the crime the accused never has a real interest until the trial has ended. For his full and complete defense he need not know the name of the crime at all. It is of no consequence whatever for the protection of his substantial rights. The real and important question to him is, "Did you perform the acts alleged in the manner alleged?" not, "Did you commit a crime named murder?" If he performed the acts alleged, in the manner stated, the law determines what the name of the crime is and fixes the penalty therefor. It is the province of the court alone to say what the crime is or what it is named. If the accused performed the acts alleged in the manner alleged, then he ought to be punished and punished adequately, whatever may be the name of the crime which those acts constitute. The plea of not guilty ought always to raise a question of fact and not of law. The characterization of the crime is a conclusion of law on the part of the fiscal. The denial by the accused that he committed that specific crime so characterized raises no real question. No issue can be raised by the assertion of a conclusion of law by one party and a denial of such conclusion by the other. The issues raised by the pleadings in criminal actions, as well as in civil, are primarily and really issues of fact and not of law. The issue to be tried in all criminal cases should be one of fact, raised by the allegation of certain facts in the information and a denial of those facts by the plea of not guilty on the part of the defendant. There is no more reason why the defendant should be allowed to take advantage of a misnomer of the action where the people are prosecuting than when assailed civilly by a private individual. The failure to observe this fundamental distinction has been one of the causes of the frequent miscarriage of justice in criminal cases in many parts of the United States. If a plaintiff in a civil action should open his complaint with the statement, "This is an action of tort," and then proceed to set out fully facts showing that his action was really to foreclose a mortgage, asking the remedy proper to that end, no court would hesitate a moment as to what was the real nature of the action. It could not be contended for an instant that the plaintiff, in order to recover, would be obliged to prove an action in tort. The statement, "This is an action in tort," is a mere conclusion of law and not a statement of fact. It has no influence whatever upon the nature of the action. It is pure surplusage. It can not fairly be said to deceive the defendant. So far as the procedure or the merits are concerned, it is of no consequence what the name of the action may be. Issues are not made by asserting and denying names. They are framed by the allegation and denial of facts. The acts or omissions of the defendant, as set out by the plaintiff in the complaint as the basis of his action, are that to which the defendant looks to prepare his defense. They are that to which, when proved, the court looks to apply the remedy. So it is with pleadings in criminal actions. To quibble about names is to lose sight of realities. To permit an accused to stand by and watch the fiscal while the guesses as to the name which ought to be applied to the crime of which he charges the accused, and then take advantage of the guess if it happens to be wrong, while the acts or omissions upon which that guess was made and which are the real and only foundation of the charge against him are clearly and fully stated in the information, is to change the battle ground in criminal cases from issues to guesses and from fact to fancy. It changes lawyers into dialecticians and law into metaphysics — that fertile filed of delusion propagated by language. Section 5 of the Code of Criminal Procedure reads as follows:jgc:chanrobles.com.ph "An information is an accusation in writing charging a person with a public offense, presented and signed by the promoter fiscal or his deputy and filed with the clerk of the court."cralaw virtua1aw library Section 6 is as follows:jgc:chanrobles.com.ph "A complaint or information is sufficient if it shows:jgc:chanrobles.com.ph "1. The name of the defendant, or, if his name can not be discovered, that he is described under a fictitious name with a statement that his true name is unknown to the informant or official signing the same. His true name may be inserted at any stage of the proceedings instituted against him, whenever ascertained. "2. The designation of the crime or public offense charged. "3. The acts or omission complained of as constituting the crime or public offense in ordinary and concise language, without repetition, not necessarily in the words of the statute, but in such form as to enable a person of common understanding to know what is intended and the court to pronounce judgment according to right. "4. That the offense was committed within the jurisdiction of the court and is triable therein. "5. The names of the persons against whom, or against whose property, the offense was committed, if known."cralaw virtua1aw library Section 8 reads as follows:jgc:chanrobles.com.ph "A complaint or information may be substantially in the following form:jgc:chanrobles.com.ph "‘The United States against A. B. "‘In the Court of _______________ for ___________________, Province of ____________________, the _____________________ day of _______________, 19 _____ "‘A. B. is accused by the undersigned of the crime of (giving its legal appellation, such as murder, arson, robbery, or the like, or designating it as a felony or misdemeanor), committed as follows:jgc:chanrobles.com.ph "‘That said A. B., on the _____________ day of _______________, 19 ________, at the ________ of ________, Province of ______________, (here set forth the acts or omissions charged as an offense), contrary to the statute in such case made and provided. "‘(Signed) ____________________________________’ " Subdivision 2, section 6, above quoted, requires that the information shall contain "the designation of the crime or public offense charged." But while that is so and while section 8 provides that the information may stated the legal appellation of the crime, "such as murder, arson, robbery, or the like," nevertheless, said section also provides that such offense may be designated generally "as a felony or misdemeanor." This evidently and unquestionably permits an information to be drawn and framed upon the lines marked in the doctrine we here lay down. This is the form in which information should be drawn. We are aware that it may be said that, when a fiscal has characterized by name the offense with which he charges the defendant, and the defendant has accepted that characterization in good faith and prepared his trial in accordance therewith, he ought not to be required upon appeal or elsewhere to meet a new or different crime; that such a proceeding would prejudice him severely and might be the means of convicting him without a real hearing, if not without due process of law. Our reply is, in the first place, that it is very rare indeed that circumstances would be presented in which an accused could be any change be thus prejudiced. Such contingency is so remote as to be almost negligible. But, should such a condition arise, we say, in the second place, that this court will not permit the doctrine here laid down to prejudice any defendant who has been innocently misled in any action heretofore tried. However, after the lapse of a reasonable time following the publication of this decision, its contents and tenor will be presumed to be known to all. After the doctrine here promulgated is fully known, no one will be heard to say that he has been prejudiced by its application. We reply, in the third place, that the people of the land are interested more than any single individual in the punishment of those who offend against its laws; that the fiscal has no right to characterize a crime in defiance of the interests of society; that he has no authority to speak for the State and say what crime has been committed. That is the duty of the court — the duty of a coordinate branch of the government, one of its three departments — to which and to which alone the sovereignty has delegated the right to denominate crime from facts alleged or proved and to impose punishment in accordance with that denomination. The duty of the fiscal in framing an information is limited to a statement of the facts which the accused has performed and the manner in which he performed them. It is no part of his duties to give a technical name to the crime which is born of the facts set forth, or draw an inference or conclusion as to how the courts will or will not denominate the crime described by the facts. If the fiscal denominate or characterize the crime and if that denomination binds the court, as it always does under the doctrine were are criticizing, then it is clear that the fiscal has, by such act, usurped the function of the court, inasmuch as he has thereby irrevocably decided by his own fiat of what crime, if any, the defendant shall be convicted. This is not only performing duties ministerial, but legislative and judicial as well. He thus not only tries the case as fiscal, but he also, by his mischaracterization, changes the law really applicable to the case. Moreover, such 22 mischaracterization being binding on the courts, he also thereby in a sense adjudicates the offense for which the defendant shall be punished. He thus leaves little for the court to do but apply the penalty. Even that must be in accordance with the fiscal’s characterization. We would say, fourthly, that a careful lawyer ought always to prepare the defense of his client to meet every allegation of material fact presented by the people’s pleading, and to deny, and to substantiate that denial by proof, every such fact which is alleged and proved to his prejudice, and that wholly irrespective of the characterization of the crime by the fiscal. It is undoubted that every innocent man can and will do that. No innocent man will permit himself to rest under proof that he has been guilty of a malicious and criminal act against the law of the land. He desires above all things to disprove, and will always insist upon disproving, everything presented by the prosecution which smirches his character or taints his honor. Generally speaking, it is only the criminal, either by act or intention, who is willing to rest his defense upon the technicality of a characterization, leaving the main facts proved against him untouched and the conclusions from them unreduced. Every innocent man wants to meet facts and not theories. He wants to strike at the substance of fact and not the straw man of conclusion. He will insist on meeting the thing and not the characterization of the thing. Moreover, one can not claim to be prejudiced who voluntarily and willfully shuts his eyes to the facts alleged. Why are the facts alleged at all if not to specify the real nature of the crime? If the accused looks to the characterization of the fiscal and not to the facts, why have facts at all; why not have the information state conclusions only? But it will be observed that if we should urge that proposition, the accused would be he who would first object. His instant reply would be, "I want facts and not conclusions. I can prepare no defense against the allegation of mere conclusions." Nevertheless he insists on holding the people strictly to the pure conclusion involved in the fiscal’s characterization of the crime. In other words, he wants conclusions if the facts hurt him, and he wants facts if the conclusions hurt him. A technicality is something which makes a criminal life worth living. This is here fully exemplified. We are not forgetful, in what we have said, of those sacred and immutable rights which belong to every freeman. We do not forget, either, that institutions and states which do not sacredly protect and guard those rights can not live. To their protection every man is willing to dedicate his life, his fortune, and his honor. The doctrine here laid down conserves those rights swiftly and perfectly — far more so than does the doctrine we are criticizing. On the other hand and in addition, it protects society from the malicious activities of those who are ever ready to commit crime if there exists in the law anywhere a technicality upon which the may rest a hope of escape. For these reasons it is competent for this court to find the defendant guilty of the crime described by the facts stated in the information, these facts being fully and satisfactorily proved and the accused having in no wise been prejudiced. Under article 407 of the Penal Code the defendant should be punished with a penalty lower by one degree than that which would have been applied had he consummated the crime. The penalty for the consummated crime ranges from cadena temporal in its maximum degree to death. The penalty lower by one degree is from presidio correccional in its maximum degree to presidio mayor in its medium degree. There being present the aggravating circumstance of nocturnity, the penalty must be imposed in its maximum degree. The judgment of the court below is, therefore, reversed, and the defendant is convicted of the crime of frustrated murder and sentenced to eight years and day of presidio mayor and to pay one-third of the costs. There being no evidence in the case of the damages which Keng Kin has suffered by reason of the acts complained of, no indemnity can be required paid in this action. [G.R. No. 33463. December 18, 1930.] THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, v. BASILIO BORINAGA,Defendant-Appellant. SYLLABUS 1. CRIMINAL LAW; FRUSTRATED MURDER OR ATTEMPTED MURDER. — While M one evening was seated on a chair in a provincial store, with his back towards the window, B from the window struck with a knife at M, but the knife lodged in the back of the chair on which M was seated, causing M to fall from the chair, but not injuring him. The attendant circumstances established that murder was in the heart and mind of the aggressor. Held: That within the meaning of article 3 of the Penal Code, the crime committed was frustrated murder and not attempted murder. 2. ID.; ID. — The author performed all the acts of execution. Nothing remained to be done to accomplish the work of the assailant completely. The cause resulting in the failure of the attack arose by reason of forces independent of the will of the perpetrator. The assailant voluntarily desisted from further acts. What is known as the subjective phase of the criminal act was passed. MALCOLM, J.: Sometime prior to March 4, 1929, an American by the name of Harry H. Mooney, a resident of the municipality of Calubian, Leyte, contracted with one Juan Lawaan for the construction of a fish corral. Basilio Borinaga was associated with Lawaan in the construction of the corral. On the morning of March 4, 1929, Lawaan, with some of his men, went to Mooney’s shop and tried to collect from him the whole amount fixed by the contract, notwithstanding that only about two-thirds of the fish corral had been finished. As was to be expected, Mooney refused to pay the price agreed upon at that time. On hearing this reply of Mooney, Lawaan warned him that if he did not pay, something would happen to him, to which Mooney answered that if they wanted to do something to him they should wait until after breakfast, inasmuch as he had not yet taken his breakfast. Lawaan then left with his men, and Mooney, after partaking of his morning meal, returned to his shop. On the evening of the same day, Mooney was in the store of a neighbor by the name of Perpetua Najarro. He had taken a seat on a chair in front of Perpetua, his back being to the window. Mooney had not been there long when Perpetua saw Basilio Borinaga from the window strike with a knife at Mooney, but fortunately for the latter, the knife lodged in the back of the chair on which Mooney was seated. Mooney fell from the chair on which Mooney was seated. Mooney fell from the chair as a result of the force of the blow, but was not injured. Borinaga ran away towards the market place. Before this occurred, it should be stated that Borinaga had been heard to tell a companion: "I will stab this Mooney, who is an American brute." After the attack, Borinaga was also heard to say that he did not hit the back of Mooney but only the back of the chair. But Borinaga was persistent in his endeavor, and hardly ten minutes after the first attack, he returned, knife in hand, to renew it, out was unable to do so because Mooney and Perpetua were then on their guard and turned a flashlight on Borinaga, frightening him away. Again that same night, Borinaga was overheard stating that he had missed his mark and was unable to give another blow because of the flashlight. The paint of the knife was subsequent, on examination of the chair, found imbedded in it. The foregoing occurrences gave rise to the prosecution of Basilio Borinaga in the Court of First Instance of Leyte for the crime of frustrated murder. The defense was alibi, which was not given credence. The accused was convicted as charged, by Judge Ortiz, who sentenced him to fourteen years, eight months, and one day of imprisonment, reclusion temporal, with the accessory penalties and the costs. The homicidal intent of the accused was plainly evidenced. The attendant circumstances conclusively establish that murder was in the heart and mind of the accused. More than mere menaces took place. The aggressor stated his purpose, which was to kill, and apologized to his friends for not accomplishing that purpose. A deadly weapon was used. The blow was directed treacherously toward vital organs of the victim. The means used were entirely suitable for accomplishment. The crime should, therefore, be qualified as murder because of the presence of the circumstance of treachery. The only debatable question, not referred to in the briefs, but which must be decided in order to dispose of the appeal, is: Do the facts constitute frustrated murder or attempted murder within the meaning of article 3 of the Penal Code? Although no exact counterpart to the facts at bar has been found either in Spanish or Philippine jurisprudence, a majority of the court answer the question propounded by stating that the crime committed was that of frustrated murder. This is true notwithstanding the admitted fact that Mooney was not injured in the least. The essential condition of a frustrated crime, that the author perform all the acts of execution, attended the attack. Nothing remained to be done to accomplish the work of the assailant completely. The cause resulting in the failure of the attack arose by reason of forces independent of the will of the 23 perpetrator. The assailant voluntarily desisted from further acts. What is known as the subjective phase of the criminal act was passed. (U. S. v. Eduave [1917], 36 Phil., 209; People v. Mabugat [1926], 51 Phil., 967.) No superfine distinctions need be drawn in favor of the accused to establish a lesser crime than that of frustrated murder, for the facts disclose a wanton disregard of the sanctity of human life fully meriting the penalty imposed in the trial court. Based on the foregoing considerations, the judgment appealed from will be affirmed, with the costs of this instance against the Appellant. We dissent from the opinion of the majority in so far as it finds the defendant-appellant guilty of the crime of frustrated murder instead of that of an attempt to commit murder. Article 3 of the Penal Code provides as follows:jgc:chanrobles.com.ph "ART. 3. Frustrated felonies and attempts to commit felonies are punishable, as well as those which are consummated. "A felony is frustrated when the offender performs all the acts of execution which should produce the felony as a consequence, but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. "There is an attempt when the offender commences the commission of the felony directly by overt acts, and does not perform all the acts of execution which constitute the felony by reason of some cause or accident other than his own voluntary desistance."cralaw virtua1aw library The pertinent facts as found by the court, below and by this court are the following:chanrob1es virtual 1aw library On the evening of the same day, Mooney was in the store of a neighbor by the name of Perpetua Najarro. He had taken a seat on a chair in front of Perpetua, his back being to the window. Mooney had not been there long when Perpetua saw Basilio Borinaga from the window strike with a knife at Mooney, but fortunately for the latter, the knife lodged in the back of the chair on which Mooney was seated. Mooney fell from the chair as a result of the force of the blow, but was not injured. Borinaga ran away towards the market place. Before this occurred, it should be stated that Borinaga had been heard to tell a companion: "I will stab this Mooney, who is an American brute." After the attack, Borinaga was also heard to say that he did not hit the back of Mooney but only the back of the chair. But Borinaga was persistent in his endeavor, and hardly ten minutes after the first attack, he returned, knife in hand, to renew it, but was unable to do so because Mooney and Perpetua were then on their guard and turned a flashlight on Borinaga, frightening him away. Again that same night, Borinaga was overheard stating that he had missed his mark and was unable to give another blow because of the flashlight. The point of the knife was subsequently, on examination of the chair, found imbedded in it. Since the fact constituting frustrated felony and those constituting an attempt to commit felony are integral parts of those constituting consummated felony, it becomes important to know what facts would have been necessary in order that the case at bar might have been a consummated murder, so that we may determine whether the facts proved during the trial constitute frustrated murder or simply an attempt to commit murder. In order that the crime committed by the defendant-appellant might have been a consummated murder it would have been necessary for him to have inflicted a deadly wound upon a vital spot of the body of Mooney, with treachery, as a result of which he should have died. Since according to the definition given by the Code a frustrated felony is committed "when the offender performs all the acts of execution which should produce the felony as a consequence, but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator" let us examine the facts of record to find out whether the said defendant-appellant has performed all the acts of execution which should produce the murder of Mooney as a consequence. The prisoner at bar, intending to kill Mooney, approached him stealthily from behind and made a movement with his right hand to strike him in the back with a deadly knife, but the blow, instead of reaching the spot intended, landed on the frame of the back of the chair on which Mooney was sitting at the time and did not cause the slightest physical injury on the latter. The acts of execution performed by the defendant-appellant did not produce the death of Mooney as a consequence nor could they have produced it because the blow did not reach his body; therefore the culprit did not perform all the acts of execution which should produce the felony. There was lacking the infliction of the deadly wound upon a vital spot of the body of Mooney. It is true that the frame of the back of the chair stood between the deadly knife and the back of Mooney; but what it prevented was the wounding of said Mooney in the back and not his death, had he been wounded. It is the preventing of death by causes independent of the will of the perpetrator, after all the acts of execution which constitute the felony, as in the present case. The interference of the frame of the back of the chair which prevented the defendant-appellant from wounding Mooney in the back with a deadly knife, made his acts constitute an attempt to commit, murder; for he had commenced the commission of the felony directly by overt acts, and did not perform all the acts of execution which constitute the felony by reason of a cause or accident other than his own voluntary desistance. The foregoing consideration force us to the conclusion that the facts alleged in the information and proved during the trial are not sufficient to constitute the crime of frustrated murder, but simply the crime of an attempt to commit murder. [G.R. Nos. 23112-23114. March 17, 1925. ] THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, v. MAXIMO REYES,Defendant-Appellant. SYLLABUS 1. WITNESSES; CREDIBILITY; SUBSTANTIAL CONTRADICTIONS. — Where the principal witness for the defense has made a substantial contradictions, the trial court, having seen the witnesses testify, commits no error in no giving any credit to the witnesses for the defense. 2. FRUSTRATED HOMICIDE; TREACHERY. — Where the accused has attacked the offended party unexpectedly, and the wounds inflicted by him upon the latter would have caused death had not the weapon whereby the same were inflicted met with an obstacle, such as the ribs, which prevented its penetrating the lungs and kidneys, the defendant is guilty of frustrated murder. VILLAMOR, J. : On the night of November 5, 1923, in the barrio of Santa Clara, municipality of Santo Tomas, Province of Batangas, the accused attacked Maria Jaurigue, Higino Mayuga and Antonio Mercado with a bolo, inflicting several wounds on different parts of the body of Maria Jaurigue, three of which a were necessarily mortal, according to medical opinion, and caused her death five days after the event, on account of certain complications. Higino Mayuga also received wounds which healed after one month, and Antonio Mercado was wounded on the back, the breast and on one side, his wounds having been serious, and, according to the testimony of the physician who made the autopsy, two of said wounds, those on the back and the side, would have caused his death had not the weapon met with an obstacle, namely, the ribs, which presented it from reaching the lungs and kidneys. The accused was prosecuted separately for the death of Maria Jaurigue and the wounds inflicted upon Higino Mayuga and Antonio Mercado. The three cases were tried jointly by agreement of the parties approved by the court, and the trial court rendered separate judgments finding the accused guilty of the crime of homicide with the aggravating circumstance of nocturnity for the death of Maria Jaurigue, and sentencing him to seventeen years, four months, and one day of reclusion temporal, with the accessories provided by the law, to indemnify the heirs of Maria Jaurigue in the sum of P1,000, and to pay the costs of the action, crediting him with the imprisonment suffered by him as detention prisoner. For the wounds of Higino Mayuga the trial court found the accused guilty of the crime of lesiones graves, without any modifying circumstances, and sentenced him to one year and eight months of prision correcional, with the accessories provided by the law, to indemnify the offended party Higino Mayuga in the sum of P200, to suffer, in case of insolvency, the corresponding subsidiary imprisonment, and to pay the costs of the action; and for the wounds of Antonio Mercado, the trial court found the accused guilty of the crime of frustrated homicide, with the aggravating circumstance of nocturnity, and sentenced him to ten years and one day of prision mayor, with the accessories provided by the law, to indemnify the offended party, Antonio Mercado, in the sum of P530 and to pay the costs of the action, it being understood that the accused shall serve the penalties imposed upon him 24 successively in the order of their relative gravity. The defense argues that the trial court erred in not giving credit to the declarations of the witnesses for the defense. We have examined the record before us, and find that the evidence shows beyond a reasonable doubt that the accused is guilty of the three crimes he is charged with. The accused was a suitor of one Maria Encarnacion Jaurigue, niece of the deceased Maria Jaurigue, and believing himself rejected by the spouses Antonio Mercado and Maria Jaurigue, in whose house the girl was living, he decided on the night in question to do away with them, which he did as follows: Said spouses Antonio Mercado and Maria Jaurigue were then working in the camarin (shed) of Higino Mayuga, engaged in the drying of coconuts for the manufacture of copra. The deceased was near a furnace where there was a lamp, while Antonio was about 15 brazas from her, seated upon his heels, gathering coconut shells and putting them in a sack. Suddenly Antonio was attacked with a bolo while he was with his back toward the aggressor, and received the wounds above-mentioned, having spent P450 for medical assistance and P80 for medicines to cure them. This offended party distinctly identified his aggressor as Maximo Reyes, because there was a lamp in the place, with which Antonio illuminated the coconut shells that he was gathering. And due to his wounds, he fell to the ground unconscious. Higino Mayuga, the owner of the camarin, upon hearing the cries of Maria, who was about 15 meters from his house, ran immediately to see what was happening, and there he met Maximo Reyes, who also assaulted him, wounding him near the stomach and on the forearm, and fleeing away thereafter. their homes, just as the accused Maximo Reyes did, having seen near the camarin a person who was running and whom they did not recognize, but supposed he was the author of the crime in question. The trial court gave no credit to the testimony of the witnesses for the defense, and we are of the opinion that this is no error. The testimony of the witnesses of the accused seems to us so improbable that we cannot see how it can be believed without ignoring the rules of sound judging. His Honor, the trial judge, who saw and heard these witnesses, says that their testimony had been studied by heart an we add that they had not learned the lesson well, for we find in the testimony of the principal witness Bonifacio Landicho several substantial contradictions which entirely discredit him. We hold that the testimony of the witnesses for the defense in the instant case is worthless, as compared with the declarations of the witnesses for the prosecution. The Attorney-General observes that the accused must be held guilty of the crime of frustrated murder for the wounds inflicted upon Antonio Mercado, in view of the treacherous manner in which said offended party was assaulted by the accused, and recommends that the judgment appealed from be modified so that the maximum degree of the penalty be imposed upon the accused, which is from presidio mayor in its maximum degree to cadena temporal in its medium degree, that is to say, fourteen years, eight months, and one day of cadena temporal, with the accessories provided by the law. As thus modified, the judgment appealed from must be as is hereby, affirmed with the costs against the appellant So ordered. [G.R. No. L-5848. April 30, 1954.] Higino Mayuga was incapacitated to walk on his hacienda for more than one month, and spent P200 for medical attendance and medicines. THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. SY PIO, alias POLICARPIO DE LA CRUZ, Defendant-Appellant. The testimony of these witnesses was corroborated by Francisco Reyes and Aquilino Belleza. SYLLABUS The defense presented two witnesses by the names of Bonifacio Landicho and Andres Mendoza who in substance testified that on that night, due to the disturbance aroused by the wounding of the three persons, they left 1. CRIMINAL LAW; COMPLEX CRIMES; DISTINCT AND SEPARATE ACTS PRODUCE DIFFERENT CRIMES. — According to the uncontradicted testimony of the offended party, when the latter saw defendant firing shots, he asked him why he was doing so, and the defendant, instead of answering him, turned around and fired at him also. It is not true, therefore, that the victim received the shot accidentally from the same bullet that had been fired at another person. 2. ID.; EVIDENCE SUFFICIENT TO SUSTAIN JUDGMENT OF CONVICTION. — Where the admissions made by the defendant at the time of trial regarding the incidents, as well as the cause of his having assaulted his victims coincide exactly with the reasons given in his written confession, which he himself could have known, the claim that the offense has not been proved beyond reasonable doubt must be dismissed. 3. ID.; ATTEMPTED MURDER; REQUISITE. — In the case at bar, the defendant fired at his victim, and the latter was hit, but he was able to escape and hide in another room. The fact that he was able to escape, which defendant must have seen, must have produced in his mind that he was not able to hit his victim at a vital part of the body. In other words, he knew that he had not actually performed all the acts of execution necessary to kill his victim. Under these circumstances, it can not be said that the subjective phase of the acts of execution had been completed. Hence, he is guilty of attempted murder. LABRADOR, J.: This is an appeal from a judgment of the Court of First Instance of Manila finding the defendant-appellant herein Sy Pio, alias Policarpio de la Cruz, guilty of frustrated murder against the person of Tan Siong Kiap, and sentencing him to suffer an indeterminate sentence of 6 years, 1 month, and 11 days of prisión mayor, to 14 years, 8 months, and 1 day of reclusión temporal, to indemnify the offended party Tan Siong Kiap in the sum of P350, without subsidiary imprisonment in case of insolvency, and to pay the costs. The case was appealed to the Court of Appeals, but that court certified it to this Court under the provisions of section 17 (4) of Republic Act No. 296, on the ground that the crime charged was committed on the same occasion that the defendant-appellant had committed crime of murder, with which the defendant-appellant was also charged. The evidence for the prosecution shows that early in the morning of September 3, 1949, the defendant-appellant entered the store at 511 Misericordia, Sta. Cruz, Manila. Once inside he started firing a .45 caliber pistol that he had in his hand. The first one shot was Jose Sy. Tan Siong Kiap, who was in the store and saw the accused enter and afterwards fire a shot at Jose Sy, asked the defendant-appellant, "What is the idea?" Thereupon defendant-appellant turned around and fired at him also. The bullet fired from defendant-appellant’s pistol entered the right shoulder of Tan Siong Kiap and passed through his back. Upon being hit, Tan Siong Kiap immediately ran to a room behind the store to hide. From there he still heard gunshots fired from defendant-appellant’s pistol, but afterwards defendant-appellant ran away. Tan Siong Kiap was brought to the Chinese General Hospital, where his wound was treated. He stayed there on September 3 to September 12, 1949, when he was released upon his request and against the physician’s advice. He was asked to return to the hospital for further treatment, and he did so five times for a period of more than ten days. Thereafter his wound was completely healed. He spent the sum of P300 for hospital and doctor’s fees. The defendant-appellant shot two other persons in the morning of September 3, 1949, before shooting and wounding Tan Siong Kiap; one was Ong Pian and the other Jose Sy. On September 5 information was received by the Manila Police Department that defendant-appellant was in the custody of the Constabulary in Tarlac, so a captain of the Manila police by the name of Daniel V. Lomotan proceeded to Tarlac. There he saw the defendant-appellant and had a conversation with him. On this occasion defendant-appellant admitted to Lomotan that his victims were Tan Siong Kiap, Ong Pian, and Jose Sy. The Constabulary in Tarlac also delivered to Lomotan the pistol used by the defendant- appellant, marked Exhibit C, and its magazine, Exhibit C-1, both of which the Constabulary had confiscated from the defendant-appellant. The defendant-appellant was thereupon delivered to the custody of Lomotan, and the latter brought him to Manila, where his statement was taken down in writing. This declaration was submitted at the time of the trial as Exhibit D, and it contains all the details of the assaults that defendantappellant had made in Manila in the morning of September 3 against the persons of Tan Siong Kiap, Ong Pian, and Jose Sy. This written statement was taken down on a 25 typewriter and afterwards signed by the defendant-appellant in both his Chinese and Filipino names, the latter being Policarpio de la Cruz. According to the declaration of the defendantappellant, some months prior to September 3, 1949, he was employed as an attendant in a restaurant belonging to Ong Pian. Defendantappellant’s wife by the name of Vicenta was also employed by Ong Pian’s partner, Eng Cheng Suy. Prior to September 3 the relatives of his wife had been asking the latter for help, because her father was sick. Defendant-appellant asked money from Ong Pian, but the latter could only give him P1. His wife was able to borrow P20 from her employer, and this was sent to his wife’s parents in Cebu. Afterwards defendantappellant was dismissed from his work at the restaurant of Ong Pian, and he became a peddler. Ong Pian presented a list of the sums that defendant- appellant had borrowed from him, and these sums were deducted from the salary of his wife. Defendantappellant did not recognize these sums as his indebtedness, and so he resented Ong Pian’s conduct. As to Tan Siong Kiap, the confession states that a few days before September 3, 1949, Defendant-Appellant had been able to realize the sum of P70 from the sales of medicine that he peddled. He laid this money in a place in his room, but the following morning he found that it had disappeared from the place in which he had placed it. Tan Siong Kiap and Jose Sy, upon the discovery of the loss of the money, told defendantappellant that he must have given the money to his wife, and that nobody had stolen it. After this incident of the loss, the defendantappellant used to hear Tan Siong Kiap and Jose Sy and other Chinamen say that the money had not been actually stolen, but that he lost it in gambling. Because of these accusations against him, he nurtured resentment against both Tan Siong Kiap and Jose Sy. So early in the morning of September 3, while a Chinaman by the name of Ngo Cho, who was the possessor of a caliber .45 pistol, was away from his room, Defendant-Appellant got his pistol and tucked it in his belt. With this pistol he went to the restaurant at 822 Ongpin, and there shot Ong Pian. After shooting him, he proceeded to 511 Misericordia, in the store where Jose Sy and Tan Siong Kiap were, and there he fired at them. Then he escaped to Legarda street, in Sampaloc, where he borrowed P1 from his relatives. From there he went to Malabon, to the house of his mother, to whom he told he had killed two. persons and from whom he asked money. The foregoing is the substance of the written declaration made by the defendant-appellant in Exhibit D on September 6, 1949. At the time of the trial, however, he disowned the confession and explained that he signed it without having read its contents. He declared that it was not he who shot the three victims, but it was one by the name of Chua Tone, with whom he had previously connived to kill the three victims. He introduced no witnesses, however, to support his denial. Neither did he deny that he admitted before Captain Lomotan having killed the three persons, or having been found in Tarlac in possession of the caliber .45 pistol, Exhibit C, and its magazine, Exhibit C-1. In his crossexamination he admitted many of the incidents mentioned in the confession, especially the cause of his resentment against his victims Ong Pian, Jose Sy, and Tan Siong Kiap. The trial court refused to believe his testimony, and, therefore, found him guilty of the crime charged. On this appeal counsel for the defendantappellant claims that the trial court erred in not finding that Tan Siong Kiap received the shot accidentally from the same bullet that had been fired at Jose Sy, and in finding that defendant-appellant has committed a crime distinct and separate from that of murder for the slaying of Jose Sy. We find no merit in this contention. According to the uncontradicted testimony of the offended party Tan Siong Kiap, when the latter saw defendant- appellant firing shots, he asked him why he was doing so, and the defendantappellant, instead of answering him, turned around and fired at him also. It is not true, therefore, that the shot which hit him was fired at Sy. It is also contended that the evidence is not sufficient to sustain the judgment of conviction. We also find no merit in this contention. The evidence submitted to prove the charge consists of: the uncontradicted testimony of the victim himself; the admissions made verbally by the defendantappellant before Captain Lomotan in Tarlac; the fact that the defendant-appellant had escaped and was found in Tarlac; his possession of the .45 caliber pistol coupled with the fact, attested to by the testimony of the physician who examined and treated the wounds of Tan Siong Kiap, that the wounds found in his person must have been caused by the caliber .45 bullet; and, lastly, the confession of the defendant-appellant himself, Exhibit D, which he was not able to impugn. As against this mass of evidence, defendant- appellant has only made a very unbelievable story that it was not he but another that had committed the crime charged. His admissions at the time of the trial regarding the incidents, as well as the cause of his having assaulted his victims, coincide exactly with the reasons given in his written confession. This shows that he had made the confession himself, for nobody but himself could have known the facts therein stated. The claim that the offense has not been proved beyond reasonable doubt must be dismissed. The defendant-appellant lastly claims that the lower court also erred in sentencing him to pay an indemnity of P350. The offended party testified that he actually spent P300 for hospital and doctor’s fees, and that he was confined in the hospital for nine days. The above facts stand uncontradicted. This assignment of error must also be dismissed. It is lastly contended that the defendantappellant should be found guilty only of less serious physical injuries instead of the crime of frustrated murder as defendant-appellant admitted in his confession in the open court that he had a grudge against the offended party, and that he connived with another to kill the latter. The intent to kill is also evident from his conduct in firing the shot directly at the body of the offended party. But while the intent to kill is conclusively proved the wound inflicted was not necessarily fatal, because it did not touch any of the vital organs of the body. As a matter of fact, the medical certification issued by the physician who examined the wound of the offended party at the time he went to the hospital, states that the wound was to heal within a period of fourteen days, while the offended party actually stayed in the hospital for nine days and continued receiving treatment thereafter five times for a period of more than ten days, or a total of not more than thirty days. The question that needs to be determined, therefore, is: Did the defendant-appellant perform all the acts of execution necessary to produce the death of his victim? In the cases of U.S. v. Eduave, 36 Phil., 209, People v. Dagman, 47 Phil., 768, and People v. Borinaga, 55 Phil., 433, this Court has held that it is not necessary that the accused actually commit all the acts of execution necessary to produce the death of his victim, but that it is sufficient that he believes that he has committed all said acts. In the case of People v. Dagman, supra, the victim was first knocked down by a stone thrown at him, then attacked with a lance, and then wounded by bolos and clubs wielded by the accused, but the victim upon falling down feigned death, and the accused desisted from further continuing in the assault in the belief that their victim was dead. And in the case of People v. Borinaga, supra, the accused stabbed his intended victim, but the knife with which he committed the aggression instead of hitting the body of the victim, lodged in the back of the chair in which he was seated, although the accused believed that he had already harmed him. In both these cases this Court held that the crime committed was that of frustrated murder, because the subjective phase of the acts necessary to commit the offense had already passed; there was a full and complete belief on the part of the assailant that he had committed all the acts of execution necessary to produce the death of the intended victim. In the case at bar, however, the defendantappellant fired at his victim, and the latter was hit, but he was able to escape and hide in another room. The fact that he was able to escape, which appellant must have seen, must have produced in the mind of the defendant- appellant that he was not able to hit his victim at a vital part of the body. In other words, the defendant-appellant knew that he had not actually performed all the acts of execution necessary to kill his victim. Under these circumstances, it can not be said that the subjective phase of the acts of execution had been completed. And as it does not appear that the defendant-appellant continued in the pursuit, and, as a matter of fact, he ran away afterwards a reasonable doubt exists in our mind that the defendantappellant had actually believed that he had committed all the acts of execution or passed the subjective phase of the said acts. This doubt must be resolved in favor of the defendant-appellant. We are, therefore, not prepared to find the defendant-appellant guilty of frustrated murder, as charged in the information. We only find him guilty of attempted murder, because he did not perform all the acts of 26 execution, actual and subjective, in order that the purpose and intention that he had to kill his victim might be carried out. Therefore, the judgment appealed from should be, as it is hereby, modified, and the defendant-appellant is found guilty of the crime of attempted murder, and the sentence imposed upon him reduced to an indeterminate penalty of from 4 years, 2 months, and 1 day of prisión correccional, to 10 years of prisión mayor. In all other respects the judgment is affirmed. With costs against the defendant-appellant. THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee vs. ROGACIANO CUEVAS, def endant and appellant. Appeal from a decision of the Court of First Instance of Batangas. In Criminal Case No. 28, the trial court convicted Rogaciano Cuevas of the crime of murder and sentenced him to an indeterminate penalty of 17 years and 4 months of reclusion temporal to reclusion perpetua, and to pay indemnity to the offended party. In Criminal Case No. 29, in which Cuevas was charged with frustrated murder, he was convicted of attempted murder and sentenced to an indeterminate penalty ranging from 4 years and 2 months of prison correcional to 6 years, 1 month and 11 days of prision mayor. Held: The crime committed, in connection with Criminal Case No. 28 (L-5844), is murder, qualified by treachery. No modifying circumstances having attended the commission of the offense, the penalty for murder should be imposed in its medium period, namely, life imprisonment, without the benefit of the Indeterminate Sentence Law, which is not applicable to this case. As regards Criminal Case No. 29 (L-5845), it having been established that appellant had performed all the acts of execution necessary to kill, and yet did not produce the desired result, the crime committed is frustrated murder. Hence, appellant should be sentenced to an indeterminate penalty ranging from 4 years, 2 months and 1 day of prision correccional to 12 years and 1 day of reclusión temporal. Modified as to the penalty in both cases, the decision is affirmed in all other respects. [People vs. Cuevas, 97 Phil. 963(1955)] THE UNITED STATES, complainant and appellee, vs. ALEJANDRO GONZALEZ (alias DANDO) ET AL., defendants and appellants. CRIMINAL PROCEDURE; QUALIFYING CIRCUMSTANCE; CRIMINAL INTENTION.— Intention is the essential element of the crime and it is revealed in the acts themselves, and must be considered from a rational criterion in each case, taking into consideration the appearance, transcendency, and character of the acts punishable in themselves and susceptible of different or several meanings. APPEAL from a judgment of the Court of First Instance of Manila. The facts are stated in the opinion of the court.. TORRES, J.: In a complaint dated September 29, 1903, filed by one of the assistant prosecuting attorneys for the city of Manila, Alejandro Gonzalez and Genaro Atienza were charged with the crime of attempted robbery. The complaint stated that these individuals on the previous day entered a house at No. 105 Calle Echague where the Chinaman Sy Poco lived. For this purpose they made an opening in the exterior wall of the building with the intention of committing the robbery of 1,000 pesos which were in said house, although they did not consummate the crime for a cause or accident other than their own voluntary desistance, all contrary to law. The case having come on for trial, the court, in view of the result of the proof s, declared the defendants guilty of the crime of attempted robbery and sentenced each of them to the penalty of two years of presidio correccional with the accessories and to pay the costs pro rata. From this judgment the defendants appealed. From the evidence adduced during the trial it appears that between 3 and 4 o'clock on the morning of September 28, 1903, Alejandro Gonzalez and Genaro Atienza, together with two unknown men, entered the house No. 105 Calle Echague, district of Quiapo, inhabited by the Chinaman Sy Poco and others. They did this at a time when the inhabitants of the house were asleep. To accomplish their purpose they made an opening in the partition wall of said house between said house and the next one, No. 103, tearing away some of the boards, and through this opening they entered the former. The inhabitants of the house awoke and one of them, Sy Poco, asked the defendants what they wanted, and at that moment Gonzalez attacked said Sy Poco, wounding him with a poniard in the right arm, after which the malefactors fled, two of them jumping through a window which opened on the back yard of the house, and the other two came down the stairway, leaving through the door of the house. It appears likewise that when the two defendants were arrested, in the immediate vicinity of the house, they were identified by Sy Poco as being two of the four individuals who entered his house; at the same time another Chinaman, Sy Sing, the companion of the former, identified them as two of the four men who entered the house, and stated that Genaro Atienza was the one who covered his face with a mosquito netting which was on the bed. Sy Poco stated that he had in his room in a trunk the sum of 1,000 pesos, the proceeds of a sale of rice. These facts being perfectly proven in this case, they are clothed with all the characteristics of the crime of attempted robbery provided for and punished in article 508, paragraph 3, together with article 66 of the Penal Code, inasmuch as the defendants entered the house by means of scaling and breaking the wall, passing through the opening which was not the proper and ordinary entrance to said house, thus making a beginning in the execution of said robbery by overt acts and if they did not continue in the realization of their criminal purpose to a complete consummation of the crime it was because the inhabitants of the house awoke and they were af raid of being surprised by the authorities, and not because of their own voluntary desistance. They did not succeed in opening the trunk which contained the money, nor even approach said article of furniture, but all the acts which they performed from the moment they scaled the house, made the opening, and entered through same tended to the consummation of the crime which they had intended to commit. Intention is the essential element of the crime and it is revealed in the acts themselves, and must be considered from a rational criterion in each case, taking into consideration the appearance, transcendency, and character of the acts punishable in themselves and susceptible of different or several meanings. This is in accordance with the existing doctrine established by the supreme court of Spain in judgments of October 6, 1871, May 14, 1883, and December 16, 1887. It is undeniable that the two defendants are guilty as proven principals and clearly convicted, together with other unknown men, of the said crime of attempted robbery. They were arrested near the raided house at a very late hour on the night in question, and just a few moments after the robbery had been attempted, with their trousers soiled with mud on account of their having stumbled against some sugar jars covered with mud when they jumped through from the porch of the house. They were identified by the two Chinamen who lived in the same house. One of the Chinamen, Sy Poco, was wounded in the arm by the defendant Alejandro Gonzalez. The defendants were unable to justify their defense; their testimony is not worthy of credit because, if they lived in Binondo and Tondo and came from work in the bay, it can not be understood how they were arrested on Calle Echague, Quiapo. They themselves, in spite of having pleaded not guilty, could not explain their presence in that vicinity; they could have landed at the Bridge of Spain, or if they came up as far as the Santa Cruz Bridge they would have landed at Plaza de Goiti, if we give any faith at all to their story of returning to their houses, which were situated one on Calle Reina Regente and the other in Bancusay. In the commission of the said crime we must take into consideration the concurrence of the aggravating circumstance of nocturnity, without any extenuating one, and f or this reason the penalty two degrees below that of presidio correccional in its medium degree to presidio mayor in its minimum degree, or, in other words, the fine imposed as correccional in its minimum degree to that of arresto mayor must be imposed on the defendants in its maximum degree, and therefore, by virtue of the reasons above stated, we believe that with the reversal of the judgment appealed from. the defendants, Alejandro Gonzales and Genaro Atienza, are sentenced to two months' arresto mayor with the accessories and to pay the costs in both instances, onehalf each. The court is instructed to proceed in accordance with the law should any complaint for lesiones of the Chinaman Sy Poco be presented. This case to be returned to the court of origin, with a certified copy of this decision and of the judgment which shall be rendered in accordance herewith. So ordered. Arellano, C. J., Mapa, Johnson, and Carson, JJ., concur. Judgment modified. [United States vs. Gonzalez, 4 Phil., 414(1905)] [No. 26298. January 20, 1927] THE-PEOPLE OF THE PHILIPPINE ISLANDS, paintiff and appellee, vs. 27 JULIAN ERIÑIA Y VINOLLA, defendant and appellant. CRIMINAL LAW; RAPE OF A CHILD.—The crime of rape may be committed upon a child of the age of 3 years and 11 months. APPEAL from a judgment of the Court of First Instance of Manila. Diaz, J. The facts are stated in the opinion of the court. OSTRAND, J.: This is an appeal from a judgment of the Court of First Instance of Manila finding the def endant guilty of the crime of consummated rape and sentencing him to suffer seventeen years, four months and one day of reclusión temporal, with the accessory penalties provided by law and to pay the costs. The victim of the crime was a child of 3 years and 11 months old and the evidence is conclusive that the defendant endeavored to have carnal intercourse with her, but there may be some doubt whether he succeeded in penetrating the vagina before being disturbed by the timely intervention of the mother and the sister of the child. The physician who examined the genital organ of the child a few hours after the .commission of the crime found a slight inflammation of the exterior parts of the organ, indicating that an effort had been made to enter the vagina, but in testifying before the court he expressed doubts as to whether the entry had been effected. The mother of the child testified that she found its genital organ covered with a sticky substance, but that cannot be considered conclusive evidence of penetration. It has been suggested that the child was of such tender age that penetration was impossible; that the crime of rape consequently was impossible of consummation; and that, therefore, the offense committed should be treated only as abusos deshonestos. We do not think so. It is probably true that a complete penetration was impossible, but such penetration is not essential to the commission of the crime; it is sufficient if there is a penetration of the labia. In the case of Kenney vs. State ([Tex. Crim. App ] 79 S. W., 817; 65 L. R. A., 316) where the offended party was a child of the age of 3 years and 8 months, the testimony of several physicians was to the effect that the labia of the privates of a child of that age can be entered by a man's male organ to the hymen and the defendant was found guilty of the consummated crime of rape. 2. ID. ; ID.—The decisions of the supreme court of Spain of October 14, 1898, December 1, 1897, and June 13,1882, cited and approved. There being no conclusive evidence of penetration of the genital organ of the offended party, the defendant is entitled to the benefit of the doubt and can only be found guilty of frustrated rape, but in view of the fact that he was living in the house of the parents of the child as their guest, the aggravating circumstance of abuse of confidence existed and the penalty must therefore be imposed in its maximum degree. APPEAL from a judgment of the Court of First Instance of Manila. V. del Rosario, J. The facts are stated in the opinion of the court. Victoriano Yamzon for appellant. Attorney-General Paredes for appellee. MALCOLM, J.: The judgment appealed from is modified and the defendant-appellant is hereby found guilty of the crime of frustrated rape and is sentenced to suffer twelve years of prisión mayor, with the accessory penalties prescribed by law, and with the costs in both instances. So ordered. MALCOLM, J., dissenting: In my opinion, the accused is guilty of raping a child 3 years and 11 months of age. It is consummated rape according to the evidence of record, the findings of the trial judge, and our decisions. (People vs. Hernandez [1925], 49 Phil., 980; People vs. Oscar [1925], 48 Phil., 527.) The instant case is on all fours with the case of Kenney vs. State (65 L. R. A., 316), cited in the majority decision. In the Kenney case, the penalty was death, and here for this horrible crime, should be placed in the maximum degree, or seventeen years, four months, and one day imprisonment, as imposed by the trial court. Accordingly, my vote is for affirmance of the judgment. Judgment modified. [People vs. Eriña, 50 Phil. 998(1927)] THE UNITED STATES, plaintiff and appellee, vs. TOMAS ADIAO, defendant and appellant. 1. THEFT; WHEN CONSUMMATED OR FRUSTRATED.—One A., a Customs' inspector, abstracted a leather belt valued at eighty centavos from the baggage of a Japanese and secreted the belt in his desk in the Custom House, where it was found by other Customs employees. Held: That since the offender had performed all of the acts of execution necessary for the accomplishment of the felony, he is guilty of the consummated crime of theft. The defendant was charged in the Municipal Court of the city of Manila with the crime of theft. He was found guilty of the lesser crime of frustrated theft. He appealed to the Court of First Instance of the city of Manila and again he was found guilty of the crime of frustrated theft, and was sentenced to pay a fine of P100, with subsidiary imprisonment in case of insolvency, and to pay the costs. The sole error assigned on appeal is that the lower court erred in holding that the defendant was guilty of the crime of theft as disclosed by the facts appearing of record. We have examined the evidence carefully and from our study are unable to say that the proof is contrary to the findings of the lower court. Stated in one sentence, the defendant, Tomas Adiao, a customs inspector, abstracted a leather belt valued at fK).80, from the baggage of a Japanese named T. Murakami, and secreted the belt in his desk in the Custom House, where it was found by other customs employees. Based on these facts, the Court is of the opinion that the crime can not properly be classified as frustrated, as this word is defined in article 3 of the Penal Code, but that since the offender performed all of the acts of execution necessary for the accomplishment of the felony, he is guilty of the consummated crime of theft. The fact that the defendant was under observation during the entire transaction and that he was unable to get the merchandise out of the Custom House, is not decisive; all the elements of the completed crime of theft are present. The following decisions of the supreme court of Spain are in point: "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: "* * *. The trial court did not err * * * 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 céntimos, 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: "* * *' The accused * * * 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.) There exists the aggravating circumstance that advantage was taken by the offender of his public position. Wherefore, in view of the provisions of articles 517 and 518, No. 5, of the Penal Code, and there being present one aggravating circumstance compensated by no mitigating circumstance, the penalty must be imposed in the maximum degree. 28 Judgment is reversed and the defendant and appellant is sentenced to three months and one day of arresto mayor, with the costs of all instances against him. The merchandise in question, attached to the record as Exhibit A, shall be returned to the lawful owner, T. Murakami. So ordered. Judgment reversed, penalty increased. [United States vs. Adiao., 38 Phil. 754(1918)] THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff and appellee, vs. PEDRO SORIANO Y SISON, defendant and appellant. CRIMINAL LAW; HABITUAL DELINQUENT ACT; CONSTITUTIONALITY AND VALIDITY OF.—The Habitual Delinquent Act, No. 3586 of the Philippine Legislature, amending Act No. 3397, is of modern origin and tends towards the reform of culprits who have evinced obstinacy in crime. The scheme is to punish the offense last perpetrated taking the preceding convictions into account, but only to impose a more severe penalty. The culprit is not punished for the felonies committed before, which he has already expiated, but for the crime or violation of law again committed, although in imposing the penalty, the habitual quality and felonious tendency of his conduct is taken into consideration. The additional penalties are applied equally to all who are in the same condition. Therefore, the law is not unconstitutional or null and void because ex post facto, or discriminatory, or because it places the defendant twice in jeopardy for the same offense. (People vs. Sierra, G. R. No. 28516 April 21, 1928, not reported; People vs. Madrano, 53 Phil., 860; People vs. Montera, 55 Phil., 933.) APPEAL from a judgment of the Court of First Instance of Manila. Vickers, J. The facts are stated in the opinion of the court. IMPERIAL, J.: valued at P15 belonging to Antonio Borja, thus performing all the acts of execution which should produce the crime of theft as a consequence, but which, nevertheless, did not produce it by reason of causes independent of the will of the accused, that is, the timely arrival of the said Antonio Borja, who having surprised the said accused in the criminal act caused the accused to let loose the said rooster and to leave the same in the premises of the said owner. "That the said accused is a habitual criminal within the purview of Act No. 3586, he having previously been conVicted by final judgments of competent courts seven (7) times of the said crime of theft and once (1) of attempted robbery within a period of ten (10) years from the date of his last conviction on June 9, 1924." After the hearing, during which the defendant had the benefit of counsel, he was found guilty of the crime of attempted theft, and was sentenced to pay a fine of 325 pesetas or P65, with subsidiary imprisonment in case of insolvency, and to pay the costs; he was further sentenced to the additional penalty of twenty-one years' imprisonment as an habitual criminal in accordance with subsection (d) of Act No. 3586. The defendant appealed. The record shows that in the early morning of March 6, 1931, the aforementioned appellant went to the veranda of the complainant, Antonio Borja, and tried to carry away his game cock; he was untying the cock with the evident intent of taking it away, when Borja approached and foiled his attempt to steal it. When the appellant became aware of Borja's presence, he let go of the cock and ran away, with Borja and one Aquino in pursuit; he was finally caught and arrested by policeman Arcadio Rivero who had also appeared upon the scene and assisted in the capture of the appellant. Pedro Soriano y Sison was charged in the Court of First Instance of Manila with the crime of frustrated theft committed as follows, to wit: The appellant has been seven times convicted of the crime of theft and once of attempted robbery, his last two convictions having taken place on June 9, 1924, within ten years s immediately preceding his conviction in the instant case. "That on or about the 6th day of March, 1931, in the City of Manila, Philippine Islands, the said-accused willfully, unlawfully, and feloniously, with intent of gain and without the consent of the owner thereof, took and was in the act of carrying away the fighting rooster The defense raises two questions, one of fact and the other of law. The first is that the evidence is not sufficient to sustain a conviction of the crime of which he has been found guilty. The facts, as established by the evidence, fully support the finding of the defendant's guilt. The second question is that the Law on Habitual Delinquency is unconstitutional as being ex post facto, discriminatory, and imposes a double penalty for the same offense. Not one of these contentions is supported by the law. We have already held in People vs. Sierra (G. R. No. 28516, April 21, 1928)1; People vs. Ortezuela (51 Phil., 857); People vs. Madrano (53 Phil., 860); and People vs. Montera (55 Phil., 933), that the law in question is valid and constitutional and suffers from none of the defects attributed to it by the defense; and in the case of People vs. Abuyen (52 Phil., 722), it was further held that the said law is applicable to both consummated and frustrated or attempted crimes. The judgment appealed from being in accordance with the law, it is hereby affirmed in its entirety, with costs against the appellant. So ordered. Judgment affirmed. [People vs. Soriano, 56 Phil. 95(1931)] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DECOROSO ACA-AC y CESPON, accused-appellant. MENDOZA, J.: This is an appeal from the decision,[1] dated February 19, 1994, of the Regional Trial Court, Branch 4, City of Tagbilaran, finding accused-appellant Decoroso Aca-ac y Cespon, alias “Kokong,” guilty of frustrated rape and sentencing him to suffer the indeterminate penalty of imprisonment from twelve (12) years of prision mayor, as minimum, to seventeen (17) years, four (4) months, and one (1) day of reclusion temporal, as maximum, with accessory penalties, and to indemnify the complainant Fritzie Aca-ac the amount of P30,000.00 as moral damages and P20,000.00 as exemplary damages. Originally taken to the Court of Appeals, the appeal was certified to this Court pursuant to Rule 124, §13 of the Revised Rules on Criminal Procedure in view of the appeals court’s ruling[2] that accusedappellant is guilty of consummated, not frustrated, rape and that the appropriate penalty to be imposed on accused-appellant is reclusion perpetua. The facts are as follows: On the basis of criminal complaints[3] of the minor Fritzie Aca-ac, four informations[4]for rape were filed against accused-appellant in the Regional Trial Court of Tagbilaran City. In Criminal Case No. 7091, the information alleged: That on or about the 22nd day of September, 1990 at Barangay Villalimpia, Municipality of Loay, Province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named accused through craft, lured and brought the victim Fritzie Aca-ac, a minor below twelve years of age, to the former’s house and to his bedroom and thereafter, with intent to have sexual intercourse, removed the victim’s panty, let her lie down while he lay on top her, inserted his penis into her labia minora near the clitoris of the vagina and succeeded in having carnal knowledge with the victim with her vitiated consent since she is below twelve years old, to the damage and prejudice of the said offended party. CONTRARY TO LAW. In Criminal Case No. 7092, the information charged: That on or about the 17th day of October, 1990 at Barangay Villalimpia, Municipality of Loay, Province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named accused through craft, lured the victim Fritzie Aca-ac, a minor below twelve years of age to remove her shorts and panty and to lie down on the ground, and thereafter, the accused inserted his penis into her vagina near the clitoris and vaginal opening and succeeded in having carnal knowledge with the victim with her vitiated consent since she is below twelve years old, to the damage and prejudice of the said offended party. CONTRARY TO LAW. In Criminal Case No. 7093, the information alleged: That on or about the 12th day of January, 1991 at Barangay Villalimpia, Municipality of Loay, Province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named accused through craft, lured the victim Fritzie Aca-ac, a minor below twelve years of age to go to a bushy place near a nipa plantation, and, upon reaching the place, let her undress and lie down while he lay on top of her, and thereafter, he inserted his penis inside her vaginal opening 29 near her clitoris and succeeded in having carnal knowledge with the victim with her vitiated consent since she is below twelve years old, to the damage and prejudice of the said offended party. CONTRARY TO LAW. In Criminal Case No. 7094, the information asserted: That on or about the 8th day of September, 1990 at Barangay Villalimpia, Municipality of Loay, Province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named accused through craft, lured and brought the victim Fritzie Aca-ac, a minor below twelve years of age, to an old uninhabited house, and thereafter, upon reaching the place, took off her shorts and her panty with intent to have sexual intercourse with her and then let her lie down after which the accused lay on top of her and inserted his penis into the labia minora near the clitoris of the vagina of the victim and succeeded in having carnal knowledge with her vitiated consent since she is below twelve years old, to the damage and prejudice of the said offended party. CONTRARY TO LAW. Accused-appellant having pleaded not guilty to the charges, the joint trial of the cases was set. Five witnesses were presented by the prosecution in support of its case, namely, complainant Fritzie Aca-ac, her mother, Felipa Aca-ac, her classmate, Algerico Lonio, the physician, Dr. Stella Maris J. Amora, and rebuttal witness Esteban Dagandan. In Criminal Case No. 7094, complainant testified that on September 8, 1990, she was asked by her mother Felipa Aca-ac to buy cooked fish (inon-onan) for dinner from a store in Barangay Villalimpia, Loay, Bohol. On her way home, she met accusedappellant, who held her by the hand and forced her to go with him to the vacant house of one Pinay Aguirre. Once inside, accusedappellant removed complainant’s shorts and panty and made her lie down on the floor, which was covered with coconut leaves. Complainant claimed that accused-appellant fondled her breasts and licked her private parts. He then went on top of her and made “push and pull movements.” When he was through, complainant said, accused-appellant withdrew his penis and white fluid came out. Complainant said she then wiped her private parts and put on her clothes. She said she did not tell anyone what happened to her.[5] Algerico Lonio, a resident of Barangay Villalimpia, Loay, Bohol and a classmate of complainant, testified that at about 7:00 p.m. of September 8, 1990, he was at the house of one Emmie Blasco when he saw accusedappellant and complainant going inside the house of Pinay Aguirre, which was known in the neighborhood to be haunted. Out of curiosity, he said, he followed the two and peeped through the fence at the back. He saw accused-appellant undress complainant, go on top of her, and make “push and pull movements.” Lonio said he knew that the two were having sexual intercourse, which lasted for about three minutes. He claimed he did not tell anyone what he saw for fear of his life. But, Lonio said, on February 27, 1991, he and complainant had a quarrel in school during which he asked complainant about the rape. According to Lonio, complainant admitted that accused-appellant had raped her and then left crying. Lonio later narrated the incident to complainant’s mother.[6] In Criminal Case No. 7091, complainant testified that at about 4:00 p.m. of September 22, 1990, after gathering some guavas in Barangay Villalimpia, Loay, Bohol, she passed by the house of accused-appellant on her way home. When accused-appellant saw her, he tried to lure her on the pretext that he had some papayas for her. Complainant got inside the house but, sensing that there was no papaya in the house, she immediately tried to leave. Accused-appellant, however, closed the door and brought her to his bedroom where he raped her. Accusedappellant threatened her with harm if she told anyone about the incident.[7] In Criminal Case No. 7092, complainant testified that at about 4:30 p.m. of October 17, 1990, as she was gathering firewood in Barangay Villalimpia, Loay, Bohol, accusedappellant came and forced her to remove her shorts and panty. She was made to lie down on the ground covered with nipa leaves and was then raped by accused-appellant. Complainant went home after the incident, bringing with her the firewood she had gathered.[8] In Criminal Case No. 7093, complainant testified that at about 1:00 p.m. of January 12, 1991, as she was on her way home from the house of a certain Betty, she saw accused-appellant near the house of one Ned Reyes in Villalimpia, Loay, Bohol. Accused- appellant seized her and dragged her to a bush near the plantation and made her undress and lie down. Then he allegedly forced her to have sexual intercourse with him.[9] Complainant’s mother, Felipa Aca-ac, testified that accused-appellant is the cousin of her father-in-law, Faustino Aca-ac. She said that in the afternoon of February 27, 1991, she learned from Lonio that her daughter had been raped by accused-appellant. She said that when she confronted her daughter, the latter admitted that accused-appellant had raped her four times. According to her, the next day, February 28, 1991, she took Fritzie to Dr. Stella Maris J. Amora of the Governor Celestino Gallares Memorial Hospital for medical examination. Felipa said that accused-appellant offered to pay P12,000.00 as settlement of the case.[10] Dr. Amora testified that there was no laceration in the hymen of complainant. She said, however, that it was possible that there could be a penetration of a male organ up to the labia minora and the hymen would still be intact.[11] The defense presented six witnesses, namely, accused-appellant Decoroso Aca-ac, Faustino Aca-ac, Felix Adorable, Rosalio Pamayloan, Petronia Aca-ac, and Alberto Cempron. Accused-appellant Decoroso Aca-ac y Cespon, 57 years old at the time of the alleged rape incidents, denied the charges and claimed that Felipa Aca-ac had instigated complainant to file the charges because he told Felipa’s husband that Felipa was having an affair with another man. He said the charges were trumped up by Felipa because she wanted to extort P30,000.00 from him. He also stated that he had a quarrel with Felipa’s husband, Roberto, because the latter had stolen his chicken. Accused-appellant said he reported the matter to Barangay Captain Felix Adorable. He stated that Faustino Aca-ac tried to get the parties to settle the case, but he failed in his efforts. Accused-appellant alleged that at 57, he was already old and that he could no longer have an erection.[12] Faustino Aca-ac, grandfather of complainant and a cousin of accused-appellant, testified that he did not believe accused-appellant committed the crime. He said accusedappellant and complainant’s parents had a misunderstanding which he tried to settle unsuccessfully.[13] Felix Adorable, a former barangay captain of Villalimpia, Loay, Bohol and an incumbent barangay kagawad, confirmed accusedappellant’s claim that he had filed a complaint against Roberto Aca-ac, complainant’s father, with the Katarungang Pambarangay.[14] Rosalio Pamayloan was a neighbor of accused-appellant and a resident of Villalimpia, Loay, Bohol for 12 years. He testified that he had been a principal in a public school since 1983. He personally knew accused-appellant and vouched for the character of accused-appellant as a good man.[15] Petronia P. Aca-ac, wife of accused-appellant, testified that she and her husband had been married for 36 years and had six children, two of whom had died. On the four occasions on which it was alleged accused-appellant had raped complainant, Petronia said her husband was in their house helping her make “nipa shingles.”[16] On rebuttal, the prosecution presented Esteban Dagandan, who testified that complainant’s mother, Felipa, worked as a nurse of his (Dagandan’s) wife, because the latter had suffered a stroke. Dagandan disputed accused-appellant’s claim that complainant and her mother had demanded P30,000.00 for the settlement of the case. He said that sometime in May 1992, Albert “Berting” Cempron, a nephew of accusedappellant, accompanied by his wife Lydia, thrice went to his (Dagandan’s) house asking Felipa to withdraw the case against accusedappellant. Accused-appellant offered to pay Felipa P12,000.00 as settlement of the case, but the same was rejected.[17] Felipa Aca-ac was recalled to the stand. She denied Rosalio Pamayloan’s testimony that she proposed a settlement of the case for P30,000.00 and that accused-appellant had no criminal record in their barangay. She said that she rejected Albert Cempron’s P12,000.00 offer, made in behalf of accusedappellant, for the settlement of the case.[18] Complainant Fritzie Aca-ac was also recalled to the stand. She rebutted the testimony of accused-appellant that he could no longer have an erection. She said she saw accused-appellant insert his erect penis into her vulva.[19] 30 On sur-rebuttal, Alberto A. Cempron, the barangay captain of Matin-aw, Carmen, Bohol, testified that he tried to bring the parties to an amicable settlement of their case because they are relatives and his wife is a cousin of complainant’s father. However, he said he was unsuccessful as accusedappellant’s wife was willing to pay only P12,000.00, but Felipa wanted P30,000.00. [20] On February 19, 1994, the trial court rendered a decision convicting accusedappellant of frustrated rape in Criminal Case No. 7094 and acquitting him of the charges in the rest of the cases. The dispositive portion of its decision reads: WHEREFORE, under Criminal Case No. 7094, the Court finds accused Decoroso Acaac y Cespon guilty beyond reasonable doubt of the crime of frustrated rape and he is hereby sentenced to undergo an indeterminate penalty of imprisonment ranging from twelve (12) years of prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum, with all its accessory penalties, to indemnify the offended party Fritzie Aca-ac the sum of P30,000.00 as moral damages and another amount of P20,000.00 in the concept of exemplary damages. As regards the three other above-entitled cases, Criminal Case Nos. 7091, 7092, & 7093, all for rape, accused Decoroso Aca-ac y Cespon, alias Kokong, is hereby acquitted on the ground of reasonable doubt. SO ORDERED.[21] On appeal, the Court of Appeals held that accused-appellant was guilty of consummated rape and accordingly sentenced him to reclusion perpetua. Hence, this appeal. First. In holding that the crime committed was frustrated rape, the trial court relied on the findings of Dr. Amora which showed that complainant did not have any lacerations in her hymen which in fact was intact. The trial court pointed out that there was no evidence of penetration into the vagina of complainant. This is error. As this Court explained in People v. Orita,[22] rape is either attempted or consummated. There can be no frustrated rape. While the penultimate paragraph of Art. 335 of the Revised Penal Code[23] prescribes death for attempted or frustrated rape, and a homicide committed by reason or on the occasion thereof, the provision on frustrated rape is a “dead provision.” This Court said in Orita: 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 v. Oscar, 48 Phil. 527 (1925); People v. Hernandez, 49 Phil. 980 (1925); People v. Royeras, 56 SCRA 666 (1974); People v. Amores, 58 SCRA 505 (1974)), 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 v. Tayaba, 62 Phil. 559 (1935); People v. Rabadan and Olaybar, 53 Phil. 694 (1927); United States v. Garcia, 9 Phil. 434 (1907)) because not all acts of execution were 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.[24] As the Court of Appeals noted, accusedappellant should be convicted of rape in its consummated stage and not merely for frustrated rape, since the entry of the male organ into the labia of the female organ alone is sufficient to constitute consummated rape. For that matter, the mere touching of the labia or pudendum by the male organ is enough to consummate the crime of rape.[25] It is enough that there is a penetration, however slight, of the external genitalia.[26] Consequently, the fact that there was no laceration of complainant’s private parts or that her hymen was intact, as testified to by Dr. Amora,[27] does not preclude a finding of rape against accused-appellant. It bears emphasis that a broken hymen or laceration of any part of the female genital is not a prerequisite for a conviction for rape.[28] A- That was the time that I squatted, I have no more panty and short pants. Accused-appellant’s claim that it was impossible for him, then 57 years old, to commit the crime of rape because he could no longer have an erection is self-serving. Age is not the criterion in determining sexual interest and potency. Q- Now, when you said you were squatting, did it not occur to your mind to run away or shout? A- No, I did not. Q- And so what happened after that? The birth certificate (Exh. C) of complainant shows that she was born on April 9, 1979. Since complainant was then about 11 years old when she was raped by accusedappellant on September 8, 1990, the crime is statutory rape under Art. 335, paragraph 3 of the Revised Penal Code. Second. Accused-appellant contends that the way complainant narrated the lurid details of how she was allegedly raped is not the way an innocent child below 12 years of age testifies, but the way a woman, who is worldly and experienced in sex, will testify. Accusedappellant questions complainant’s narration as he likens them to stories contained in pornographic magazines and movies. A- He pushed down my knees and caused me to lie down. C O U R T: Q- You mean the accused pushed down your knees and thereafter pushed your body causing you to lie down face up? A- When he pushed down my knees, so I squatted at that time and he also pushed my shoulder that caused me to lie down on my back. ATTY. ALEXANDER H. LIM: Q- After that what happened next? The contention has no merit. Where an alleged rape victim says she was sexually abused, she says almost all that is necessary to show that rape had been inflicted on her person, provided her testimony meets the test of credibility.[29] For no woman would allow an examination of her private parts or go through the humiliation of a trial unless she has actually been so brutalized that she desires justice for her suffering.[30] In this case, accused-appellant has not shown any reason for complainant’s testimony not to be given credence. At the time she was raped, complainant was an 11 year-old Grade 5 student of Loay Central School in Loay, Bohol. After she was deflowered by accused-appellant, she was forced to silence by threats on her life. It was only on March 1, 1991 when she executed a sworn statement[31] before the police authorities narrating therein how she had been raped four times by accused-appellant. She told her story in open court. Complainant testified how she was raped on September 8, 1991, thus: A- He kissed me on the lips. Q- Now, when he did that to you, did you not resist? A- I did not. C O U R T (TO WITNESS) Q- Why did you not like to be kissed by the accused at that time? A- I tried to avoid his kiss but he held my hands. ATTY. ALEXANDER H. LIM: Q- Now, did you not bite him? When you did not like his kiss? A- I did not. Q- Still you did not offer any resistance to shout? A- I resisted but he held my hands. ATTY. ALEXANDER H. LIM: Q- Now, what happened after your short pants and panty were removed? Q- Why did you tell the Court that you uttered something? A- I told him. 31 Q- Meaning your voice was not heard? Q- You were afraid of him when you said he did not hold any weapon? A- He mounted on me. A- He told me not to shout. A- I was afraid he would box me. Q- Why did you not shout the way that it could be heard by your neighbors? ABecause he told me not to make any noise for he will kill me. C O U R T: Any further questions? ATTY. ALEXANDER H. LIM: Q- Is that all? A- Yes, sir. Q- Before that, while the accused was licking your vagina, were your legs apart? Q- Now, at that time according to you he sucked your nipples, you did not consider that you were already endangered? Q- But he did not carry any weapon? ABecause my legs were apart, he licked my vagina. Q- You made it voluntarily or the accused made it apart? Q- So, he was holding your hands and you could cross your leg if you want to? A- I cannot cross my legs because his two legs were over me. C O U R T (TO WITNESS): Q- You mean his body was over your spread legs while mounting from the licking until he mounted on you? A- I was the one who spread my two legs. A- Yes, sir, his body was over my two legs. ATTY. ALEXANDER H. LIM: A- I have not known of such danger. A- No, sir. C O U R T: Q- After that, what happened next? Q- In doing so, when you spread your legs, the accused used his two hands? Q- Now, after that kiss on your lips, what happened next? A- He also sucked the other nipple. A- Yes, sir, he used his two hands. ATTY. ALEXANDER H. LIM: A- He sucked my nipples. Q- So, the two nipples were sucked? Q- At the same time he was licking your vagina? Q- Now, what happened after that? Q- Did you not push him when he sucked your nipples? A- Yes, sir. Any further questions? A- He made a push and pull movement. A- Yes, sir. Q- So, what happened after that? A- I held the back of his head. A- He licked my vagina. Q- How did he suck your nipples? Q- And in that very moment you could stand up or you could squat or use your hand to fight back or to resist? FISCAL REINERIO S. NAMOCATCAT: Q- When he licked your vagina, you did not shout or protest? A- I tried to rise up and pushed his forehead. Is there a particular way of sucking nipples? A- I told him don’t, I tried to stand up but he pushed me and pressed my forehead. Q- And you succeeded in rising up pushing his forehead? ANSWER OF WITNESS: Q- At that moment he was very busy licking your vagina, what else did he do? A- After I pushed his forehead, he crawled and held my hands and let me lie down again. Q- What did you feel when he was doing that act of push and pull movement? A- There was something hot that I felt on my vagina. C O U R T: He raised my t-shirt. A- He pressed my forehead. ATTY. ALEXANDER H. LIM: Q- So, he raised your t-shirt in sucking your nipples? A- Yes, sir. Q- Where did the fluid come from? A- I did not shout, I was afraid he might press me. A- May be it came out when he put his penis on my vagina. Q- But he did not press you? C O U R T: Q- Did you succeed when you stand up after pushing the forehead of the accused? A- I told him don’t, but he did not heed. Q- Still in a low voice? A- It seems that there was something hot that went out from my vagina. It was a sticky fluid. Q- In that process, did you not shout? Q- While he was licking your vagina, you pushed his head? A- I pushed his forehead. Q- Still in raising your t-shirt, you did not shout? Why did you feel something hot in your vagina? A- But he told me if I will make noise, he will kill me. Q- Now, after that what happened? ABecause of his strength, when I stood up, he held my hand and I was made to lie down again. A- Yes, sir. A- He mounted on me. Q- Did you feel the hot fluid coming from the penis of the accused and did you feel inside your vagina or from the labia of your vagina? A- The penis was inside my vagina because he tried to make way to the large opening of my vagina so that his penis will enter. Q- His whole weight mounted on you? Q- You did not shout loudly? Q- While he was licking your vagina, where was the hand of the accused? A- I did not because he told me if I will make a noise or report the matter, he will kill me. A- When I pushed the forehead, he was licking my vagina. Q- So, what happened after that? A- Yes, sir, his whole body. Q- Did you feel the penis of the accused penetrating your vagina? Q- And how did you feel? A- Yes, sir, it went inside. A- I cannot push his head because he held my hands this was the time I could not move. COURT (TO WITNESS) 32 Q- What happened to your vagina, did it bleed when the penis of the accused entered your vagina? A- The penis did not enter but just inside the opening of my vagina. Q- You mean in the vulva of your vagina? A- It was not inside the opening of the vagina but near the clitoris. Q- So, you are now changing your testimony, you said earlier that the penis of the accused penetrated your vagina and now you are changing your testimony by saying that the penis of the accused only touched the clitoris of your vagina? FISCAL REINERIO S. NAMOCATCAT: The witness is trying to say to enter the mouth of the vagina until the clitoris. This child is still very young to demonstrate the fact that the penetration was made up to the labia minora of the victim.[32] Her consistent testimony despite intense and lengthy interrogation[33] belies accusedappellant’s claim that she was telling a tale culled from pornographic magazines or movies. Faced with complainant’s testimony, accused-appellant could only offer the defense of denial. It is well-settled that denial cannot prevail over the positive identification and categorical testimony of complainant. The rule is that between the positive declarations of the prosecution witnesses and the negative statements of the accused, the former deserves more credence.[34] That is why accused-appellant had to summon to his aid an alleged affidavit of desistance (Exh. 3) of complainant and her mother. But how could this bind complainant and her mother or prove anything when the so-called affidavit is unsigned? Third. Accused-appellant says complainant did not immediately report the incidents to the authorities nor tell the same to her mother. He claims that the cases were filed merely to extort money from him. These claims have no basis. The fact that complainant did not immediately report the matter to the authorities was fully explained by the prosecution. Complainant was only 11 years old when the rape incidents took place. Young girls usually conceal for some time their defilement.[35] Moreover, accusedappellant, being the cousin of her paternal grandfather, exercised moral ascendancy over complainant and even threatened her with death if she told anyone what he had done to her. Nor is there any probable reason for complainant to allow herself to be used as a pawn of her mother Felipa to extort money from accused-appellant. Unless it can be shown that complainant was moved by ill will to falsely implicate accused-appellant, the inescapable conclusion is that her testimony is worthy of full faith and credit.[36] Fourth. Accused-appellant doubts the veracity of Algerico Lonio’s testimony that he had witnessed the rape of complainant on September 8, 1990. Accused-appellant points out that Lonio failed to report the incident to complainant’s parents or to the authorities despite the fact that there was no threat to his life. Accused-appellant also points out certain improbabilities in the testimony of Lonio, to wit: that he peeped through the “back fence of the house” and saw accused-appellant raping complainant; that despite the fact that the supposed incident happened between 7:00 to 8:00 p.m., no mention was made of any form of illumination of the place; and that accusedappellant made “push and pull movements” when the medical findings show that complainant’s hymen was intact, thereby proving that there could not have been any penetration by accused-appellant’s organ. These arguments have no merit. On crossexamination, Lonio said that he knew what would happen to complainant when accusedappellant took her to the empty house of Pinay Aguirre because his (Lonio’s) own younger sister and the sister of complainant had been abused by accused-appellant before. He said he saw how accusedappellant violated complainant against her will.[37] Answering questions of the trial court, Lonio categorically said: A He just closed it without locking. Q How far is the gate to the house of Pinay Aguirre? To the main door of her house? INTERPRETER: Witness pointing to a distance indicating 3 to 4 meters. Q What door was used when they entered the house? The back door, or front door, or side door. Side door. Q How do you know that they were using the side door when they entered the house? A Because I saw them. Q The two were seeing you when you entered the gate following them? A Q How far was that fence made of hogwire to the house of Pinay Aguirre where the complainant and the accused entered? INTERPRETER: Witness indicating a distance of 3 to 4 meters. COURT: A A From a hole of a fence which is a hogwire. They did not see me. COURT: Q So that that portion of the house where the two entered was not surrounded by any walling in such a way that they could be seen from the wire? A No wall. Q How do you describe the house? Is it two storeys, or a building without walls? A A two-storey house. Only the first storey has no wall because it was already destroyed by a storm. Q Did you enter the house of Pinay Aguirre using the side door taken by the two when they entered the same house? Q Was the place lighted, considering that it was already 7:00 o’clock in the evening the incident allegedly happened? A No. A It was well lighted because the opposite house was well lighted. Q Where were [you] posted then? A Inside the fence because I climbed over the bamboo fence. Q And the light would reach the house of Pinay Aguirre? A Q Fence around the house of Pinay Aguirre? A It only connected the gate because there was a poultry. Q So, you did not enter the house of Pinay Aguirre where the complainant and the accused had entered at 7:00 o’clock in the evening of September 8, 1990? Yes. Q When you saw the complainant with her shorts already pulled down, did I hear you correctly that the accused with the bended knees made a push-and-pull movement of the body of the complainant? A Yes. Q Was his penis exposed? A Yes, I saw. COURT: (TO WITNESS) A Q You said that you followed the two, accused and the complainant, after they entered the gate of the house of Pinay Aguirre. Did accused Decoroso not close the gate after they gained entrance to the gate? Q Why did you say that Fritzie Aca-ac was already lying down and her short was pulled and her blouse was raised above her breast? A A Q I did not. I peeped. Decoroso closed the gate. Was it locked? Q You said that the accused licked the vagina of the complainant. Which happened first, the licking of the vagina or the push-andpull movement? Q There was a hole or there was a window? A The licking of the vagina happened first and after that, the accused made a push-andpull movement. 33 Q Since you said that the penis of the accused was exposed, did we understand from you that the accused also pulled down his trousers, as well as his underwear? A Yes. Q Did you see the penis of the accused penetrate into the vagina of the complainant? A I did not see because Fritzie was under. Q In that precise moment, how far were you to the two? INTERPRETER: Witness indicating a distance of 3 to 4 meters. because he feared for his life.[40] The testimony of Lonio contains details that dovetails on material points with the testimony of complainant. Fifth. While increasing the imposable penalty to reclusion perpetua in view of its conclusion that accused-appellant was guilty of statutory rape, the Court of Appeals affirmed the trial court’s award of P30,000.00 for moral damages and P20,000.00 for exemplary damages in favor of the complainant. This ruling must be modified. In accordance with current rulings of this Court, the award of moral damages should be increased to P50,000.00.[41] In addition, complainant should be paid P50,000.00 as civil indemnity. [42] On the other hand, the award of P20,000.00 as exemplary damages should be deleted for lack of basis. COURT: Q Did you hear any utterances [from] either of the two regarding the push-and-pull movement made by the accused? Did you hear anything from the accused while making a push-and-pull movement? A None. Q From complainant Fritzie, did you hear anything from her while the accused was making a push-and-pull movement over her? WHEREFORE, the decision of the Court of Appeals finding accused-appellant Decoroso Aca-ac y Cespon guilty of statutory rape and sentencing him to suffer the penalty of reclusion perpetua is AFFIRMED with the MODIFICATION that accused-appellant is ordered to pay complainant Fritzie Aca-ac P50,000.00 as civil indemnity and, in addition, P50,000.00 as moral damages. The award of P20,000.00 as exemplary damages is hereby deleted. A Because of the movement of Decoroso. Q After the push-and-pull movement, what transpired next? A No more.[38] The alleged inconsistencies in the testimony of Lonio as to the details of the September 8, 1990 rape incident are inconsequential. It was evident that Lonio was telling the truth. He cried after narrating to the court how he told his mother about the incident. When the trial judge asked him why he cried, Lonio said that he was hurt because the same thing happened to his younger sister.[39] He also said that he kept his silence in the beginning On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29, 1988 decision and forwarded the case to this Court, considering the provision of Section 9, paragraph 3 of Batas Pambansa Blg. 129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the Judiciary Act of 1948. The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo): CONTRARY TO LAW. Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the witnesses for the People testified and the exhibits were formally offered and admitted, the prosecution rested its case. Thereafter, the defense opted not to present any exculpatory evidence and instead filed a Motion to Dismiss. On August 5, 1985, the trial court rendered its decision, the dispositive portion of which reads (pp. 59-60, Rollo): Complainant Cristina S. Abayan was a 19year old freshman student at the St. Joseph's College at Borongan, Eastern Samar. Appellant was a Philippine Constabulary (PC) soldier. In the early morning of March 20, 1983, complainant arrived at her boarding house. Her classmates had just brought her home from a party (p. 44, tsn, May 23, 1984). Shortly after her classmates had left, she knocked at the door of her boarding house (p. 5, ibid). All of a sudden, somebody held her and poked a knife to her neck. She then recognized appellant who was a frequent visitor of another boarder (pp. 8-9, ibid). C. Manalo for defendant-appellant. MEDIALDEA, J.: SO ORDERED. The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No. 83-031-B before the Regional Trial Court, Branch II, Borongan, Eastern Samar. The information filed in the said case reads as follows (p. 47, Rollo): Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29, 1988, the Court of Appeals rendered its decision, the dispositive portion of which reads (p. 102, Rollo): Upon entering the room, appellant pushed complainant who hit her head on the wall. With one hand holding the knife, appellant undressed himself. He then ordered complainant to take off her clothes. Scared, she took off her T-shirt. Then he pulled off her bra, pants and panty (p. 20, ibid). WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant found guilty of the crime of rape, and consequently, sentenced to suffer imprisonment of reclusion perpetua and to indemnify the victim in the amount of P30,000.00. He ordered her to lie down on the floor and then mounted her. He made her hold his penis and insert it in her vagina. She followed his order as he continued to poke the knife to her. At said position, however, appellant could not fully penetrate her. Only a portion of his I did not hear any word from Fritzie. Q You said earlier that the accused and the complainant had several intercourse. This is also testified to by you during the crossexamination. Do you know that the two were having sexual intercourse? SO ORDERED. WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA @ LITO, of the crime of Frustrated Rape (Art. 335, RPC), beyond reasonable doubt, with the aggravating circumstances of dwelling and nightime (sic) with no mitigating circumstance to offset the same, and considering the provisions of the Indeterminate Sentence Law, imposes on accused an imprisonment of TEN (10) YEARS and ONE (1) DAY, PRISION MAYOR, as minimum to TWELVE (12) YEARS PRISION MAYOR, maximum; to indemnify CRISTINA S. ABAYAN, the amount of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment in case of insolvency, and to pay costs. SO ORDERED. A That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house at Victoria St., Poblacion, Borongan, Eastern Samar, Philippines, and within the jurisdiction of this Honorable Court, above named accused with lewd designs and by the use of a Batangas knife he conveniently provided himself for the purpose and with threats and intimidation, did, then and there wilfully, unlawfully and feloniously lay with and succeeded in having sexual intercourse with Cristina S. Abayan against her will and without her consent. THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CEILITO ORITA alias "Lito," defendantappellant. The Office of the Solicitor General for plaintiffappellee. The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath by the offended party, accuses CEILITO ORITA alias LITO of the crime of Rape committed as follows: She pleaded with him to release her, but he ordered her to go upstairs with him. Since the door which led to the first floor was locked from the inside, appellant forced complainant to use the back door leading to the second floor (p. 77, ibid). With his left arm wrapped around her neck and his right hand poking a "balisong" to her neck, appellant dragged complainant up the stairs (p. 14, ibid). When they reached the second floor, he commanded her to look for a room. With the Batangas knife still poked to her neck, they entered complainant's room. 34 penis entered her as she kept on moving (p. 23, ibid). Appellant then lay down on his back and commanded her to mount him. In this position, only a small part again of his penis was inserted into her vagina. At this stage, appellant had both his hands flat on the floor. Complainant thought of escaping (p. 20, ibid). She dashed out to the next room and locked herself in. Appellant pursued her and climbed the partition. When she saw him inside the room, she ran to another room. Appellant again chased her. She fled to another room and jumped out through a window (p. 27, ibid). Still naked, she darted to the municipal building, which was about eighteen meters in front of the boarding house, and knocked on the door. When there was no answer, she ran around the building and knocked on the back door. When the policemen who were inside the building opened the door, they found complainant naked sitting on the stairs crying. Pat. Donceras, the first policeman to see her, took off his jacket and wrapped it around her. When they discovered what happened, Pat. Donceras and two other policemen rushed to the boarding house. They heard a sound at the second floor and saw somebody running away. Due to darkness, they failed to apprehend appellant. Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital where she was physically examined. Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a Medical Certificate (Exhibit "A") which states: Physical Examination — Patient is fairly built, came in with loose clothing with no underclothes; appears in state of shock, per unambulatory. PE Findings — Pertinent Findings only. Neck- — Circumscribed hematoma at Ant. neck. Breast — Well developed, conical in shape with prominent nipples; linear abrasions below (L) breast. Back — Multiple pinpoint marks. Extremities — Abrasions at (R) and (L) knees. Vulva — No visible abrasions or marks at the perineal area or over the vulva, errythematous (sic) areas noted surrounding vaginal orifice, tender, hymen intact; no laceration fresh and old noted; examining finger can barely enter and with difficulty; vaginal canal tight; no discharges noted. As aforementioned, the trial court convicted the accused of frustrated rape. In this appeal, the accused assigns the following errors: 1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the witnesses; and 2) The trial court erred in declaring that the crime of frustrated rape was committed by the accused. The accused assails the testimonies of the victim and Pat. Donceras because they "show remarkable and vital inconsistencies and its incredibility amounting to fabrication and therefore casted doubt to its candor, truth and validity." (p. 33, Rollo) A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies which are not sufficient to blur or cast doubt on the witnesses' straightforward attestations. Far from being badges of fabrication, the inconsistencies in their testimonies may in fact be justifiably considered as manifestations of truthfulness on material points. These little deviations also confirm that the witnesses had not been rehearsed. The most candid witnesses may make mistakes sometimes but such honest lapses do not necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L37400, April 15, 1988, 160 SCRA 98). Rather than discredit the testimonies of the prosecution witnesses, discrepancies on minor details must be viewed as adding credence and veracity to such spontaneous testimonies (Aportadera et al. v. Court of Appeals, et al., G.R. No. L-41358, March 16, 1988, 158 SCRA 695). As a matter of fact, complete uniformity in details would be a strong indication of untruthfulness and lack of spontaneity (People v. Bazar, G.R. No. L41829, June 27, 1988, 162 SCRA 609). However, one of the alleged inconsistencies deserves a little discussion which is, the testimony of the victim that the accused asked her to hold and guide his penis in order to have carnal knowledge of her. According to the accused, this is strange because "this is the only case where an aggressor's advances is being helped-out by the victim in order that there will be a consumation of the act." (p. 34, Rollo). The allegation would have been meritorious had the testimony of the victim ended there. The victim testified further that the accused was holding a Batangas knife during the aggression. This is a material part of the victim's testimony which the accused conveniently deleted. We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial court on the credibility of witnesses should be accorded the highest respect because it has the advantage of observing the demeanor of witnesses and can discern if a witness is telling the truth (People v. Samson, G.R. No. 55520, August 25, 1989). We quote with favor the trial court's finding regarding the testimony of the victim (p 56, Rollo): As correctly pointed out in the memorandum for the People, there is not much to be desired as to the sincerity of the offended party in her testimony before the court. Her answer to every question profounded (sic), under all circumstances, are plain and straightforward. To the Court she was a picture of supplication hungry and thirsty for the immediate vindication of the affront to her honor. It is inculcated into the mind of the Court that the accused had wronged her; had traversed illegally her honor. When a woman testifies that she has been raped, she says in effect all that is necessary to show that rape was committed provided her testimony is clear and free from contradiction and her sincerity and candor, free from suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA 487; People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v. Soterol G.R. No. 53498, December 16, 1985, 140 SCRA 400). The victim in this case did not only state that she was raped but she testified convincingly on how the rape was committed. The victim's testimony from the time she knocked on the door of the municipal building up to the time she was brought to the hospital was corroborated by Pat. Donceras. Interpreting the findings as indicated in the medical certificate, Dr. Reinerio Zamora (who was presented in view of the unavailability of Dr. Abude) declared that the abrasions in the left and right knees, linear abrasions below the left breast, multiple pinpoint marks, circumscribed hematoma at the anterior neck, erythematous area surrounding the vaginal orifice and tender vulva, are conclusive proof of struggle against force and violence exerted on the victim (pp. 52-53, Rollo). The trial court even inspected the boarding house and was fully satisfied that the narration of the scene of the incident and the conditions therein is true (p. 54, Rollo): . . . The staircase leading to the first floor is in such a condition safe enough to carry the weight of both accused and offended party without the slightest difficulty, even in the manner as narrated. The partitions of every room were of strong materials, securedly nailed, and would not give way even by hastily scaling the same. A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et al., G.R. No. L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo): . . . And the jump executed by the offended party from that balcony (opening) to the ground which was correctly estimated to be less than eight (8) meters, will perhaps occasion no injury to a frightened individual being pursued. Common experience will tell us that in occasion of conflagration especially occuring (sic) in high buildings, many have been saved by jumping from some considerable heights without being injured. How much more for a frightened barrio girl, like the offended party to whom honor appears to be more valuable than her life or limbs? Besides, the exposure of her private parts when she sought assistance from authorities, as corroborated, is enough indication that something not ordinary happened to her unless she is mentally deranged. Sadly, nothing was adduced to show that she was out of her mind. In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We ruled that: What particularly imprints the badge of truth on her story is her having been rendered entirely naked by appellant and that even in her nudity, she had to run away from the latter and managed to gain sanctuary in a house owned by spouses hardly known to her. All these acts she would not have done nor would these facts have occurred unless she was sexually assaulted in the manner she narrated. 35 The accused questions also the failure of the prosecution to present other witnesses to corroborate the allegations in the complaint and the non-presentation of the medico-legal officer who actually examined the victim. Suffice it to say that it is up to the prosecution to determine who should be presented as witnesses on the basis of its own assessment of their necessity (Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29, 1989; People v. Somera, G.R. No. 65589, May 31, 1989). As for the non-presentation of the medico-legal officer who actually examined the victim, the trial court stated that it was by agreement of the parties that another physician testified inasmuch as the medico-legal officer was no longer available. The accused did not bother to contradict this statement. Summing up, the arguments raised by the accused as regards the first assignment of error fall flat on its face. Some were not even substantiated and do not, therefore, merit consideration. We are convinced that the accused is guilty of rape. However, We believe the subject matter that really calls for discussion, is whether or not the accused's conviction for frustrated rape is proper. The trial court was of the belief that there is no conclusive evidence of penetration of the genital organ of the victim and thus convicted the accused of frustrated rape only. The accused contends that there is no crime of frustrated rape. The Solicitor General shares the same view. Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape: Art. 335. When and how rape is committed. — Rape is committed by having carnal knowledge of 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, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present. xxx xxx xxx Carnal knowledge is defined as the act of a man in having sexual bodily connections with a woman (Black's Law Dictionary. Fifth Edition, p. 193). On the other hand, Article 6 of the same Code provides: Art. 6. Consummated, frustrated, and attempted felonies. — Consummated felonies as well as those which are frustrated and attempted, are punishable. A felony is consummated when all the elements necessary for its execution and accomplishment are present; and 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. 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. Correlating these two provisions, there is no debate that the attempted and consummated stages apply to the crime of rape. Our concern now is whether or not the frustrated stage applies to the crime of rape. The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution which would produce the felony and (2) that the felony is not produced due to causes independent of the perpetrator's will. In the leading case of United States v. Eduave, 36 Phil. 209, 212, Justice Moreland set a distinction between attempted and frustrated felonies which is readily understood even by law students: . . . A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by overt acts, is prevented, against his will, by some outside cause from performing all of the acts which should produce the crime. In other words, to be an attempted crime the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has performed all of the acts which should produce the crime as a consequence, which acts it is his intention to perform. If he has performed all of the acts which should result in the consummation of the crime and voluntarily desists from proceeding further, it can not be an attempt. The essential element which distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a foreign or extraneous cause or agency between the beginning of the commission of the crime and the moment when all of the acts have been performed which should result in the consummated crime; while in the former there is such intervention and the offender does not arrive at the point of performing all of the acts which should produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance. 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 v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L32996, 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 v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United States v. 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 v. Eriña 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 Eriña case, supra, might have prompted the lawmaking body to include the crime of frustrated rape in the amendments introduced by said laws. In concluding that there is no conclusive evidence of penetration of the genital organ of the victim, the trial court relied on the testimony of Dr. Zamora when he "categorically declared that the findings in the vulva does not give a concrete disclosure of penetration. As a matter of fact, he tossed back to the offended party the answer as to whether or not there actually was penetration." (p. 53, Rollo) Furthermore, the trial court stated (p. 57, Rollo): . . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as interpreted by Dr. Reinerio Zamora and the equivocal declaration of the latter of uncertainty whether there was penetration or not. It is true, and the Court is not oblivious, that conviction for rape could proceed from the uncorroborated testimony of the offended party and that a medical certificate is not necessary (People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the citations the people relied upon cannot be applicable to the instant case. The testimony of the offended party is at variance with the medical certificate. As such, a very disturbing doubt has surfaced in the mind of the court. It should be stressed that in cases of rape where there is a positive testimony and a medical certificate, both should in all respect, compliment each other, for otherwise to rely on the testimony alone in utter disregard of the manifest variance in the medical certificate, would be productive of mischievous results. The alleged variance between the testimony of the victim and the medical certificate does not exist. On the contrary, it is stated in the medical certificate that the vulva was erythematous (which means marked by abnormal redness of the skin due to capillary congestion, as in inflammation) and tender. It bears emphasis that Dr. Zamora did not rule out penetration of the genital organ of the victim. He merely testified that there was 36 uncertainty whether or not there was penetration. Anent this testimony, the victim positively testified that there was penetration, even if only partially (pp. 302, 304, t.s.n., May 23, 1984): Q Was the penis inserted on your vagina? A It entered but only a portion of it. xxx xxx xxx Q What do you mean when you said comply, or what act do you referred (sic) to, when you said comply? 78732-33, February 14, 1990). Reclusion perpetua, being a single indivisible penalty under Article 335, paragraph 3, is imposed regardless of any mitigating or aggravating circumstances (in relation to Article 63, paragraph 1, Revised Penal Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA 615; People v. Manzano, G.R. No. L38449, November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA 702). Q And was it inserted? ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused Ceilito Orita is hereby found guilty beyond reasonable doubt of the crime of rape and sentenced to reclusion perpetua as well as to indemnify the victim in the amount of P30,000.00. A Yes only a little. SO ORDERED. The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of the victim's testimony if credible (People v. Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA 65; People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People v. Taduyo, G.R. Nos. L-37928-29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's testimony is merely corroborative and is not an indispensable element in the prosecution of this case (People v. Alfonso, supra). G.R. No. 165483 2006 A I inserted his penis into my vagina. Although the second assignment of error is meritorious, it will not tilt the scale in favor of the accused because after a thorough review of the records, We find the evidence sufficient to prove his guilt beyond reasonable doubt of the crime of consummated rape. Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. The trial court appreciated the aggravating circumstances of dwelling and nighttime. Thus, the proper imposable penalty is death. In view, however, of Article 111, Section 19(1) of the 1987 Constitution and Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that the cited Constitutional provision did not declare the abolition of the death penalty but merely prohibits the imposition of the death penalty, the Court has since February 2, 1987 not imposed the death penalty whenever it was called for under the Revised Penal Code but instead reduced the same to reclusion perpetua (People v. Solis, et al., G.R. Nos. September 12, RUJJERIC Z. PALAGANAS,1 petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. CHICO-NAZARIO, J.: For what is a man, what has he got? If not himself, then he has naught. To say the things he truly feels; And not the words of one who kneels. The record shows I took the blows And did it my way! The song evokes the bitterest passions. This is not the first time the song "My Way"2 has triggered violent behavior resulting in people coming to blows. In the case at bar, the few lines of the song depicted what came to pass when the victims and the aggressors tried to outdo each other in their rendition of the song. In this Petition for Review on Certiorari3 under Rule 45 of the Revised Rules of Court, petitioner Rujjeric Z. Palaganas prays for the reversal of the Decision of the Court of Appeals in CA-G.R. CR No. 22689 dated 30 September 2004,4 affirming with modification the Decision of the Regional Trial Court (RTC), Branch 46, of Urdaneta, Pangasinan, in Criminal Cases No. U-9608, U-9609, and U-9610 and U-9634, dated 28 October 1998,5 finding petitioner guilty beyond reasonable doubt of the crime of Homicide under Article 249 of the Revised Penal Code, and two (2) counts of Frustrated Homicide under Article 249 in relation to Articles 6 and 50 of the same Code. rendered to said Michael "Boying" Ferrer which prevented his death, to his damage and prejudice. On 21 April 1998, petitioner and his older brother, Ferdinand Z. Palaganas (Ferdinand), were charged under four (4) separate Informations6 for two (2) counts of Frustrated Murder, one (1) count of Murder, and one (1) count for Violation of COMELEC Resolution No. 29587 relative to Article 22, Section 261, of the Omnibus Election Code,8 allegedly committed as follows: CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised Penal Code, as amended. CRIMINAL CASE NO. U-9608 That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused armed with an unlicensed firearm, with intent to kill, treachery and evident premeditation, conspiring together, did then and there willfully, unlawfully and feloniously shoot SERVILLANO FERRER, JR. y Juanatas, inflicting upon him "gunshot wound penetrating perforating abdomen, urinary bladder, rectum bullet sacral region," the accused having thus performed all the acts of execution which would have produced the crime of Murder as a consequence, but which nevertheless, did not produce it by reason of the causes independent of the will of the accused and that is due to the timely medical assistance rendered to said Servillano J. Ferrer, Jr. which prevented his death, to his damage and prejudice. CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised Penal Code, as amended. CRIMINAL CASE NO. U-9609 That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused armed with an unlicensed firearm, with intent to kill, treachery and evident premeditation, conspiring together, did then and there willfully, unlawfully and feloniously shoot MICHAEL FERRER alias "Boying Ferrer", inflicting upon him gunshot wound on the right shoulder, the accused having thus performed all the acts of execution which would have produced the crime of murder as a consequence, but which nevertheless, did not produce it by reason of the causes independent of the will of the accused and that is due to the medical assistance CRIMINAL CASE NO. U-9610 That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused armed with an unlicensed firearm, with intent to kill, treachery and evident premeditation, conspiring together, did then and there willfully, unlawfully and feloniously shoot MELTON FERRER alias "TONY FERRER", inflicting upon him mortal gunshot wounds in the head and right thigh which caused the instantaneous death of said Melton "Tony" Ferrer, to the damage and prejudice of his heirs. CONTRARY to Art. 248 of the Revised Penal Code, as amended by R.A. 7659. CRIMINAL CASE NO. U-9634 That on or about January 16, 1998 which is within the election period at Poblacion, Manaoag, Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully and feloniously bear and carry one (1) caliber .38 without first securing the necessary permit/license to do the same. CONTRARY to COMELEC RES. 2958 in relation with SEC. 261 of the OMNIBUS ELECTION CODE, as amended.9 (Underscoring supplied.) When arraigned on separate dates,10 petitioner and Ferdinand entered separate pleas of "Not Guilty." Upon motion of Ferdinand,11 the four cases were consolidated and were assigned to Branch 46 of the RTC in Urdaneta, Pangasinan.12 The factual antecedents as viewed by the prosecution, are summarized in the Comment dated 18 April 2005 of the Office of the Solicitor General,13 to wit: On January 16, 1998, around 8:00 in the evening, brothers Servillano, [Melton] and Michael, all surnamed Ferrer were having a drinking spree in their house because [Melton], who was already living in San 37 Fernando, La Union, visited his three brothers and mother at their house in Sitio Baloking, Poblacion, Manaoag, Pangasinan. At 9:45 in the evening, the three brothers decided to proceed to Tidbits Videoke bar located at the corner of Malvar and Rizal Streets, Poblacion, Manaoag to continue their drinking spree and to sing. Inside the karaoke bar, they were having a good time, singing and drinking beer. Thereafter, at 10:30 in the evening, Jaime Palaganas arrived together with Ferdinand Palaganas and Virgilio Bautista. At that time, only the Ferrer brothers were the customers in the bar. The two groups occupied separate tables. Later, when Jaime Palaganas was singing, [Melton] Ferrer sang along with him as he was familiar with the song [My Way]. Jaime however, resented this and went near the table of the Ferrer brothers and said in Pangasinan dialect "As if you are tough guys." Jaime further said "You are already insulting me in that way." Then, Jaime struck Servillano Ferrer with the microphone, hitting the back of his head. A rumble ensued between the Ferrer brothers on the one hand, and the Palaganases, on the other hand. Virgilio Bautista did not join the fray as he left the place. During the rumble, Ferdinand went out of the bar. He was however pursued by Michael. When Servillano saw Michael, he also went out and told the latter not to follow Ferdinand. Servillano and Michael then went back inside the bar and continued their fight with Jaime. Meantime, Edith Palaganas, sister of Jaime and the owner of the bar, arrived and pacified them. Servillano noticed that his wristwatch was missing. Unable to locate the watch inside the bar, the Ferrer brothers went outside. They saw Ferdinand about eight (8) meters away standing at Rizal Street. Ferdinand was pointing at them and said to his companion, later identified as petitioner [Rujjeric] Palaganas, "Oraratan paltog mo lara", meaning "They are the ones, shoot them." Petitioner then shot them hitting Servillano first at the left side of the abdomen, causing him to fall on the ground, and followed by [Melton] who also fell to the ground. When Servillano noticed that [Melton] was no longer moving, he told Michael "Bato, bato." Michael picked up some stones and threw them at petitioner and Ferdinand. The latter then left the place. Afterwards, the police officers came and the Ferrer brothers were brought to the Manaoag Hospital and later to Villaflor Hospital in Dagupan. Servillano later discovered that [Melton] was fatally hit in the head while Michael was hit in the right shoulder. On the other hand, the defense, in its Appellant's Brief dated 3 December 1999,14 asserted the following set of facts: On January 16, 1998, at around 11:00 in the evening, after a drinking session at their house, the brothers Melton (Tony), Servillano (Junior) and Michael (Boying), all surnamed Ferrer, occupied a table inside the Tidbits Café and Videoke Bar and started drinking and singing. About thirty minutes later, Jaime Palaganas along with his nephew Ferdinand (Apo) and friend Virgilio Bautista arrived at the bar and occupied a table near that of the Ferrers'. After the Ferrers' turn in singing, the microphone was handed over to Jaime Palaganas, who then started to sing. On his third song [My Way], Jaime was joined in his singing by Tony Ferrer, who sang loudly and in an obviously mocking manner. This infuriated Jaime, who then accosted Tony, saying, "You are already insulting us." The statement resulted in a free for all fight between the Ferrers', on one hand, and the Palaganases on the other. Jaime was mauled and Ferdinand, was hit on the face and was chased outside of the bar by Junior and Boying Ferrer. Ferdinand then ran towards the house of the appellant Rujjeric Palaganas, his brother, and sought the help of the latter. Rujjeric, stirred from his sleep by his brother's shouts, went out of his house and, noticing that the van of his uncle was in front of the Tidbits Videoke Bar, proceeded to that place. Before reaching the bar, however, he was suddenly stoned by the Ferrer brothers and was hit on different parts of his body, so he turned around and struggled to run towards his house. He then met his brother, Ferdinand, going towards the bar, so he tugged him and urged him to run towards the opposite direction as the Ferrer brothers continued pelting them with large stones. Rujjeric then noticed that Ferdinand was carrying a gun, and, on instinct, grabbed the gun from the latter, faced the Ferrer brothers and fired one shot in the air to force the brothers to retreat. Much to his surprise, however, the Ferrer brothers continued throwing stones and when (sic) the appellant was again hit several times. Unable to bear the pain, he closed his eyes and pulled the trigger. On 28 October 1998, the trial court rendered its Decision finding petitioner guilty only of the crime of Homicide and two (2) counts of Frustrated Homicide.15 He was, however, acquitted of the charge of Violation of COMELEC Resolution No. 2958 in relation to Section 261 of the Omnibus Election Code.16 On the other hand, Ferdinand was acquitted of all the charges against him.17 In holding that petitioner is liable for the crimes of Homicide and Frustrated Homicide but not for Murder and Frustrated Murder, the trial court explained that there was no conspiracy between petitioner and Ferdinand in killing Melton and wounding Servillano and Michael.18 According to the trial court, the mere fact that Ferdinand "pointed" to where the Ferrer brothers were and uttered to petitioner "Araratan, paltog mo lara!" (They are the ones, shoot them!), does not in itself connote common design or unity of purpose to kill. It also took note of the fact that petitioner was never a participant in the rumble inside the Tidbits Cafe Videoke Bar (videoke bar) on the night of 16 January 1998. He was merely called by Ferdinand to rescue their uncle, Jaime, who was being assaulted by the Ferrer brothers. It further stated that the shooting was instantaneous and without any prior plan or agreement with Ferdinand to execute the same. It found that petitioner is solely liable for killing Melton and for wounding Servillano and Michael, and that Ferdinand is not criminally responsible for the act of petitioner. Further, it declared that there was no treachery that will qualify the crimes as murder and frustrated murder since the Ferrer brothers were given the chance to defend themselves during the shooting incident by stoning the petitioner and Ferdinand.19 It reasoned that the sudden and unexpected attack, without the slightest provocation on the part of the victims, was absent. In addition, it ratiocinated that there was no evident premeditation as there was no sufficient period of time that lapsed from the point where Ferdinand called the petitioner for help up to the point of the shooting of the Ferrer brothers.20 Petitioner was sleeping at his house at the time he heard Ferdinand calling him for help. Immediately, petitioner, still clad in pajama and sleeveless shirt, went out of his room to meet Ferdinand. Thereafter, both petitioner and Ferdinand went to the videoke bar where they met the Ferrer brothers and, shortly afterwards, the shooting ensued. In other words, according to the trial court, the sequence of the events are so fast that it is improbable for the petitioner to have ample time and opportunity to then plan and organize the shooting. Corollarily, it also stated that petitioner cannot successfully invoke self-defense since there was no actual or imminent danger to his life at the time he and Ferdinand saw the Ferrer brothers outside the videoke bar.21 It noted that when petitioner and Ferdinand saw the Ferrer brothers outside the videoke bar, the latter were not carrying any weapon. Petitioner then was free to run or take cover when the Ferrer brothers started pelting them with stones. Petitioner, however, opted to shoot the Ferrer brothers. It also stated that the use by petitioner of a gun was not a reasonable means to prevent the attack of the Ferrer brothers since the latter were only equipped with stones, and that the gun was deadlier compared to stones. Moreover, it also found that petitioner used an unlicensed firearm in shooting the Ferrer brothers.22 As regards the Violation of COMELEC Resolution No. 2958, in relation to Section 261 of the Omnibus Election Code, the trial court acquitted the petitioner of the offense as his use and possession of a gun was not for the purpose of disrupting election activities.23 In conclusion, the trial court held: WHEREFORE, JUDGMENT is hereby rendered as follows: 1. Under CRIM. CASE NO. U-9610, [Rujjeric] PALAGANAS is hereby CONVICTED beyond reasonable doubt of the crime of HOMICIDE (Not Murder) with the use of an unlicensed firearm. The penalty imposable is in its maximum period which is 20 years. The Court sentences [Rujjeric] Palaganas to suffer the penalty of Reclusion Temporal in its maximum period or 20 years of imprisonment; and to pay the heirs of [MELTON] Ferrer the sum of P7,791.50 as actual medical expenses of [MELTON] Ferrer; P500,000.00 as moral damages representing unearned income of [MELTON]; P50,000.00 for the death of [MELTON]; P50,000.00 for exemplary damages and P100,000.00 for burial and funeral expenses. Ferdinand Palaganas is hereby ACQUITTED for failure of the prosecution to prove conspiracy and likewise, for failure to prove the guilt of Ferdinand Palaganas beyond reasonable doubt. 38 2. Under CRIM. CASE NO. U-9608, [Rujjeric] PALAGANAS is hereby CONVICTED beyond reasonable doubt of the crime of FRUSTRATED HOMICIDE (Not Frustrated Murder), with the use of an unlicensed firearm, the Court sentences him to suffer the penalty of Prision Mayor in its maximum period or 12 years of imprisonment and to pay Servillano Ferrer the sum of P163,569.90 for his medical expenses and P50,000.00 for exemplary damages; Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove conspiracy and likewise, for failure to prove the guilt of Ferdinand Palaganas beyond reasonable doubt. 3. Under CRIM. CASE NO. U-9609, [Rujjeric] PALAGANAS is hereby CONVICTED beyond reasonable doubt of the crime of FRUSTRATED HOMICIDE (Not Frustrated Murder), with the use of an unlicensed firearm, the Court sentences him to suffer the penalty of Prision Mayor in its maximum period or 12 years of imprisonment; and to pay Michael Ferrer the sum of P2,259.35 for his medical expenses and P50,000.00 for exemplary damages; Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove conspiracy and likewise, for failure to prove the guilt of Ferdinand Palaganas beyond reasonable doubt. Ordering accused [Rujjeric] Palaganas to pay Mrs. Elena Ferrer, the mother of the Ferrer brothers, the amount of P100,000.00 as attorney's fees in CRIM. CASES NOS. U9608, U-9609, U-9610. 4. Under CRIM. CASE NO. U-9634, for failure of the prosecution to prove the guilt of [Rujjeric] Palaganas beyond reasonable doubt of the crime of Violation of COMELEC Resolution No. 2958 in relation with Section 261 of the Omnibus Election Code, the Court ACQUITS [RUJJERIC] PALAGANAS.24 Aggrieved, the petitioner appealed the foregoing Decision of the RTC dated 28 October 1998, before the Court of Appeals. In its Decision dated 30 September 2004, the Court of Appeals affirmed with modifications the assailed RTC Decision. In modifying the Decision of the trial court, the appellate court held that the mitigating circumstance of voluntary surrender under Article 13, No. 7, of the Revised Penal Code should be appreciated in favor of petitioner since the latter, accompanied by his counsel, voluntarily appeared before the trial court, even prior to its issuance of a warrant of arrest against him.25 It also stated that the Indeterminate Sentence Law should be applied in imposing the penalty upon the petitioner.26 The dispositive portion of the Court of Appeals' Decision reads: WHEREFORE, the judgment of conviction is hereby AFFIRMED, subject to the MODIFICATION that the penalty to be imposed for the crimes which the appellant committed are as follows: (1) For Homicide (under Criminal Case No. U-9610), the appellant is ordered to suffer imprisonment of ten (10) years of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum. Appellant is also ordered to pay the heirs of Melton Ferrer civil indemnity in the amount of P50,000.00, moral damages in the amount of P50,000.00 without need of proof and actual damages in the amount of P43,556.00. (2) For Frustrated Homicide (under Criminal Case No. U-9609), the appellant is hereby ordered to suffer imprisonment of four (4) years and two (2) months of prision correcional as minimum to ten (10) years of prision mayor as maximum. Appellant is also ordered to pay Michael Ferrer actual damages in the amount of P2,259.35 and moral damages in the amount of P30,000.00. (3) For Frustrated Homicide (under Criminal Case No. U-9608), the appellant is hereby penalized with imprisonment of four (4) years and two (2) months of prision correcional as minimum to ten (10) years of prision mayor as maximum. Appellant is also ordered to pay Servillano Ferrer actual damages in the amount of P163,569.90 and moral damages in the amount of P30,000.00.27 On 16 November 2004, petitioner lodged the instant Petition for Review before this Court on the basis of the following arguments: I. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE JUDGMENT OF CONVICTION OF THE TRIAL COURT. II. THE HONORABLE COURT OF APPEALS ERRED IN NOT ACQUITTING ACCUSED- APPELLANT ON THE GROUND OF LAWFUL SELF-DEFENSE.28 Anent the first issue, petitioner argued that all the elements of a valid self-defense are present in the instant case and, thus, his acquittal on all the charges is proper; that when he fired his gun on that fateful night, he was then a victim of an unlawful aggression perpetrated by the Ferrer brothers; that he, in fact, sustained an injury in his left leg and left shoulder caused by the stones thrown by the Ferrer brothers; that the appellate court failed to consider a material evidence described as "Exhibit O"; that "Exhibit O" should have been given due weight since it shows that there was slug embedded on the sawali wall near the sign "Tidbits Café and Videoke Bar"; that the height from which the slug was taken was about seven feet from the ground; that if it was true that petitioner and Ferdinand were waiting for the Ferrer brothers outside the videoke bar in order to shoot them, then the trajectory of the bullets would have been either straight or downward and not upward considering that the petitioner and the Ferrer brothers were about the same height (5'6"5'8"); that the slug found on the wall was, in fact, the "warning shot" fired by the petitioner; and, that if this exhibit was properly appreciated by the trial court, petitioner would be acquitted of all the charges.29 Moreover, petitioner contended that the warning shot proved that that the Ferrer brothers were the unlawful aggressors since there would have been no occasion for the petitioner to fire a warning shot if the Ferrer brothers did not stone him; that the testimony of Michael in the trial court proved that it was the Ferrer brothers who provoked petitioner to shoot them; and that the Ferrer brothers pelted them with stones even after the "warning shot."30 Petitioner's contention must fail. Article 11, paragraph (1), of the Revised Penal Code provides for the elements and/or requisites in order that a plea of self-defense may be validly considered in absolving a person from criminal liability, viz: ART. 11. Justifying circumstances. – The following do not incur any criminal liability: 1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur; Second. Reasonable necessity of the means employed to prevent or repel it; Third. Lack of sufficient provocation on the part of the person defending himself. x x x. As an element of self-defense, unlawful aggression refers to an assault or attack, or a threat thereof in an imminent and immediate manner, which places the defendant's life in actual peril.31 It is an act positively strong showing the wrongful intent of the aggressor and not merely a threatening or intimidating attitude.32 It is also described as a sudden and unprovoked attack of immediate and imminent kind to the life, safety or rights of the person attacked.33 There is an unlawful aggression on the part of the victim when he puts in actual or imminent peril the life, limb, or right of the person invoking self-defense. There must be actual physical force or actual use of weapon.34 In order to constitute unlawful aggression, the person attacked must be confronted by a real threat on his life and limb; and the peril sought to be avoided is imminent and actual, not merely imaginary.35 In the case at bar, it is clear that there was no unlawful aggression on the part of the Ferrer brothers that justified the act of petitioner in shooting them. There were no actual or imminent danger to the lives of petitioner and Ferdinand when they proceeded and arrived at the videoke bar and saw thereat the Ferrer brothers. It appears that the Ferrer brothers then were merely standing outside the videoke bar and were not carrying any weapon when the petitioner arrived with his brother Ferdinand and started firing his gun.36 Assuming, arguendo, that the Ferrer brothers had provoked the petitioner to shoot them by pelting the latter with stones, the shooting of the Ferrer brothers is still unjustified. When the Ferrer brothers started throwing stones, petitioner was not in a state of actual or imminent danger considering the wide distance (4-5 meters) of the latter from the location of the former.37 Petitioner was not cornered nor trapped in a specific area such that he had no way out, nor was his back against the wall. He was still capable of avoiding the stones by running away or by taking cover. He could have also called or proceeded to the proper authorities for help. Indeed, petitioner had several options in First. Unlawful aggression; 39 avoiding dangers to his life other than confronting the Ferrer brothers with a gun. The fact that petitioner sustained injuries in his left leg and left shoulder, allegedly caused by the stones thrown by the Ferrer brothers, does not signify that he was a victim of unlawful aggression or that he acted in selfdefense.38 There is no evidence to show that his wounds were so serious and severe. The superficiality of the injuries sustained by the petitioner is no indication that his life and limb were in actual peril.39 Petitioner's assertion that, despite the fact that he fired a warning shot, the Ferrer brothers continued to pelt him with stones,40 will not matter exonerate him from criminal liability. Firing a warning shot was not the last and only option he had in order to avoid the stones thrown by the Ferrer brothers. As stated earlier, he could have run away, or taken cover, or proceeded to the proper authorities for help. Petitioner, however, opted to shoot the Ferrer brothers. It is significant to note that the shooting resulted in the death of Melton, and wounding of Servillano and Michael. With regard to Melton, a bullet hit his right thigh, and another bullet hit his head which caused his instant death.41 As regards Servillano, a bullet penetrated two of his vital organs, namely, the large intestine and urinary bladder.42 He underwent two (2) surgeries in order to survive and fully recover.43 Michael, on the other hand, sustained a gunshot wound on the right shoulder.44 It must also be noted that the Ferrer brothers were shot near the videoke bar, which contradict petitioner's claim he was chased by the Ferrer brothers. Given the foregoing circumstances, it is difficult to believe that the Ferrer brothers were the unlawful aggressors. As correctly observed by the prosecution, if the petitioner shot the Ferrer brothers just to defend himself, it defies reason why he had to shoot the victims at the vital portions of their body, which even led to the death of Melton who was shot at his head.45 It is an oft-repeated rule that the nature and number of wounds inflicted by the accused are constantly and unremittingly considered important indicia to disprove a plea of self-defense.46 Let it not be forgotten that unlawful aggression is a primordial element in selfdefense.47 It is an essential and indispensable requisite, for without unlawful aggression on the part of the victim, there can be, in a jural sense, no complete or incomplete self-defense.48 Without unlawful aggression, self-defense will not have a leg to stand on and this justifying circumstance cannot and will not be appreciated, even if the other elements are present.49 To our mind, unlawful aggression, as an element of self-defense, is wanting in the instant case. The second element of self-defense requires that the means employed by the person defending himself must be reasonably necessary to prevent or repel the unlawful aggression of the victim. The reasonableness of the means employed may take into account the weapons, the physical condition of the parties and other circumstances showing that there is a rational equivalence between the means of attack and the defense.50 In the case at bar, the petitioner's act of shooting the Ferrer brothers was not a reasonable and necessary means of repelling the aggression allegedly initiated by the Ferrer brothers. As aptly stated by the trial court, petitioner's gun was far deadlier compared to the stones thrown by the Ferrer brothers.51 Moreover, we stated earlier that when the Ferrer brothers allegedly threw stones at the petitioner, the latter had other less harmful options than to shoot the Ferrer brothers. Such act failed to pass the test of reasonableness of the means employed in preventing or repelling an unlawful aggression. With regard to the second issue, petitioner asserts that the Court of Appeals erred in not acquitting him on the ground of lawful selfdefense. Petitioner's argument is bereft of merit. In resolving criminal cases where the accused invokes self-defense to escape criminal liability, this Court consistently held that where an accused admits killing the victim but invokes self-defense, it is incumbent upon the accused to prove by clear and convincing evidence that he acted in self-defense.52 As the burden of evidence is shifted on the accused to prove all the elements of self-defense, he must rely on the strength of his own evidence and not on the weakness of the prosecution.53 As we have already found, there was no unlawful aggression on the part of the Ferrer brothers which justified the act of petitioner in shooting them. We also ruled that even if the Ferrer brothers provoked the petitioner to shoot them, the latter's use of a gun was not a reasonable means of repelling the act of the Ferrer brothers in throwing stones. It must also be emphasized at this point that both the trial court and the appellate court found that petitioner failed to established by clear and convincing evidence his plea of self-defense. In this regard, it is settled that when the trial court's findings have been affirmed by the appellate court, said findings are generally conclusive and binding upon this Court.54 In the present case, we find no compelling reason to deviate from their findings. Verily, petitioner failed to prove by clear and convincing evidence that he is entitled to an acquittal on the ground of lawful self-defense. On another point, while we agree with the trial court and the Court of Appeals that petitioner is guilty of the crime of Homicide for the death of Melton in Criminal Case No. U-9610, and Frustrated Homicide for the serious injuries sustained by Servillano in Criminal Case No. U-9608, we do not, however, concur in their ruling that petitioner is guilty of the crime of Frustrated Homicide as regards to Michael in Criminal Case No. U-9609. We hold that petitioner therein is guilty only of the crime of Attempted Homicide. Article 6 of the Revised Penal Code states and defines the stages of a felony in the following manner: ART. 6. Consummated, frustrated, and attempted felonies. – Consummated felonies, as well as those which are frustrated and attempted, are punishable. A felony is consummated when all the elements necessary for the for its execution and accomplishment are present; and 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 or causes independent of the will of the perpetrator. 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 (italics supplied). Based on the foregoing provision, the distinctions between frustrated and attempted felony are summarized as follows: 1.) In frustrated felony, the offender has performed all the acts of execution which should produce the felony as a consequence; whereas in attempted felony, the offender merely commences the commission of a felony directly by overt acts and does not perform all the acts of execution. 2.) In frustrated felony, the reason for the non-accomplishment of the crime is some cause independent of the will of the perpetrator; on the other hand, in attempted felony, the reason for the non-fulfillment of the crime is a cause or accident other than the offender's own spontaneous desistance. In addition to these distinctions, we have ruled in several cases that when the accused intended to kill his victim, as manifested by his use of a deadly weapon in his assault, and his victim sustained fatal or mortal wound/s but did not die because of timely medical assistance, the crime committed is frustrated murder or frustrated homicide depending on whether or not any of the qualifying circumstances under Article 249 of the Revised Penal Code are present.55 However, if the wound/s sustained by the victim in such a case were not fatal or mortal, then the crime committed is only attempted murder or attempted homicide.56 If there was no intent to kill on the part of the accused and the wound/s sustained by the victim were not fatal, the crime committed may be serious, less serious or slight physical injury.57 Based on the medical certificate of Michael, as well as the testimony of the physician who diagnosed and treated Michael, the latter was admitted and treated at the Dagupan Doctors-Villaflor Memorial Hospital for a single gunshot wound in his right shoulder caused by the shooting of petitioner.58 It was also stated in his medical certificate that he was discharged on the same day he was admitted and that the treatment duration for such wound would be for six to eight days only.59 Given these set of undisputed facts, it is clear that the gunshot wound sustained by Michael in his right shoulder was not fatal or mortal since the treatment period for his wound was short and he was discharged from the hospital on the same day he was admitted therein. Therefore, petitioner is liable only for the crime of attempted homicide as regards Michael in Criminal Case No. U-9609. With regard to the appreciation of the aggravating circumstance of use of an unlicensed firearm, we agree with the trial 40 court and the appellate court that the same must be applied against petitioner in the instant case since the same was alleged in the informations filed against him before the RTC and proven during the trial. However, such must be considered as a special aggravating circumstance, and not a generic aggravating circumstance. Generic aggravating circumstances are those that generally apply to all crimes such as those mentioned in Article 14, paragraphs No. 1, 2, 3, 4, 5, 6, 9, 10, 14, 18, 19 and 20, of the Revised Penal Code. It has the effect of increasing the penalty for the crime to its maximum period, but it cannot increase the same to the next higher degree. It must always be alleged and charged in the information, and must be proven during the trial in order to be appreciated.60 Moreover, it can be offset by an ordinary mitigating circumstance. On the other hand, special aggravating circumstances are those which arise under special conditions to increase the penalty for the offense to its maximum period, but the same cannot increase the penalty to the next higher degree. Examples are quasi-recidivism under Article 160 and complex crimes under Article 48 of the Revised Penal Code. It does not change the character of the offense charged.61 It must always be alleged and charged in the information, and must be proven during the trial in order to be appreciated.62 Moreover, it cannot be offset by an ordinary mitigating circumstance. It is clear from the foregoing that the meaning and effect of generic and special aggravating circumstances are exactly the same except that in case of generic aggravating, the same CAN be offset by an ordinary mitigating circumstance whereas in the case of special aggravating circumstance, it CANNOT be offset by an ordinary mitigating circumstance. Aside from the aggravating circumstances abovementioned, there is also an aggravating circumstance provided for under Presidential Decree No. 1866,63 as amended by Republic Act No. 8294,64 which is a special law. Its pertinent provision states: If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. In interpreting the same provision, the trial court reasoned that such provision is "silent as to whether it is generic or qualifying."65 Thus, it ruled that "when the law is silent, the same must be interpreted in favor of the accused."66 Since a generic aggravating circumstance is more favorable to petitioner compared to a qualifying aggravating circumstance, as the latter changes the nature of the crime and increase the penalty thereof by degrees, the trial court proceeded to declare that the use of an unlicensed firearm by the petitioner is to be considered only as a generic aggravating circumstance.67 This interpretation is erroneous since we already held in several cases that with the passage of Republic Act. No. 8294 on 6 June 1997, the use of an unlicensed firearm in murder or homicide is now considered as a SPECIAL aggravating circumstance and not a generic aggravating circumstance.68 Republic Act No. 8294 applies to the instant case since it took effect before the commission of the crimes in 21 April 1998. Therefore, the use of an unlicensed firearm by the petitioner in the instant case should be designated and appreciated as a SPECIAL aggravating circumstance and not merely a generic aggravating circumstance. As was previously established, a special aggravating circumstance cannot be offset by an ordinary mitigating circumstance. Voluntary surrender of petitioner in this case is merely an ordinary mitigating circumstance. Thus, it cannot offset the special aggravating circumstance of use of unlicensed firearm. In accordance with Article 64, paragraph 3 of the Revised Penal Code, the penalty imposable on petitioner should be in its maximum period.69 As regards the civil liability of petitioner, we deem it necessary to modify the award of damages given by both courts. In Criminal Case No. U-9610 for Homicide, we agree with both courts that the proper amount of civil indemnity is P50,000.00, and that the proper amount for moral damages is P50,000.00 pursuant to prevailing jurisprudence.70 However, based on the receipts for hospital, medicine, funeral and burial expenses on record, and upon computation of the same, the proper amount of actual damages should be P42,374.18, instead of P43,556.00. Actual damages for loss of earning capacity cannot be awarded in this case since there was no documentary evidence to substantiate the same.71 Although there may be exceptions to this rule,72 none is availing in the present case. Nevertheless, since loss was actually established in this case, temperate damages in the amount of P25,000.00 may be awarded to the heirs of Melton Ferrer. Under Article 2224 of the New Civil Code, temperate or moderate damages may be recovered when the court finds that some pecuniary loss was suffered but its amount cannot be proved with certainty. Moreover, exemplary damages should be awarded in this case since the presence of special aggravating circumstance of use of unlicensed firearm was already established.73 Based on prevailing jurisprudence, the award of exemplary damages for homicide is P25,000.00.74 In Criminal Cases No. U-9608 and U-9609, we agree with both courts as to the award of actual damages and its corresponding amount since the same is supported by documentary proof therein. The award of moral damages is also consistent with prevailing jurisprudence. However, exemplary damages should be awarded in this case since the presence of special aggravating circumstance of use of unlicensed firearm was already established. Based on prevailing jurisprudence, the award of exemplary damages for both the attempted and frustrated homicide shall be P25,000.00 for each. WHEREFORE, premises considered, the decision of the Court of Appeals dated 30 September 2004 is hereby AFFIRMED with the following MODIFICATIONS: (1) In Criminal Case No. U-9609, the petitioner is found guilty of the crime of attempted homicide. The penalty imposable on the petitioner is prision correccional under Article 51 of the Revised Penal Code.75 There being a special aggravating circumstance of the use of an unlicensed firearm and applying the Indeterminate Sentence of Law, the penalty now becomes four (4) years and two (2) months of arresto mayor as minimum period to six (6) years of prision correccional as maximum period. As regards the civil liability of petitioner, the latter is hereby ordered to pay Michael Ferrer exemplary damages in the amount of P25,000.00 in addition to the actual damages and moral damages awarded by the Court of Appeals. (2) In Criminal Case No. U-9608, the penalty imposable on the petitioner for the frustrated homicide is prision mayor under Article 50 of the Revised Penal Code.76 There being a special aggravating circumstance of the use of an unlicensed firearm and applying the Indeterminate Sentence Law, the penalty now becomes six (6) years of prision correccional as minimum period to twelve (12) years of prision mayor as maximum period. As regards the civil liability of petitioner, the latter is hereby ordered to pay Servillano Ferrer exemplary damages in the amount of P25,000.00 in addition to the actual damages and moral damages awarded by the Court of Appeals. (3) In Criminal Case No. U-9610, the penalty imposable on petitioner for the homicide is reclusion temporal under Article 249 of the Revised Penal Code.77 There being a special aggravating circumstance of the use of an unlicensed firearm and applying the Indeterminate Sentence Law, the penalty now is twelve (12) years of prision mayor as minimum period to twenty (20) years of reclusion temporal as maximum period. As regards the civil liability of petitioner, the latter is hereby ordered to pay Melton Ferrer exemplary damages in the amount of P25,000.00 in addition to the actual damages and moral damages awarded by the Court of Appeals. The actual damages likewise awarded by the Court of Appeals is hereby reduced to P42,374.18. SO ORDERED. 41