G.R. No. L-16486             March 22, 1921

THE UNITED STATES, plaintiff-appelle, vs.CALIXTO VALDEZ Y QUIRI, defendant-appellant.

Angel Roco for appellant.Acting Attorney-General Feria for appellee.

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 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 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.

GEMMA T. JACINTO,

Petitioner,

G.R. No. 162540

   Present:

  

 

- versus -

 

 

 YNARES-SANTIAGO, J.,

 Chairperson,

CHICO-NAZARIO,

VELASCO, JR.,

NACHURA, and

PERALTA, JJ.   PEOPLE OF THE PHILIPPINES, Promulgated:Respondent.  July 13, 2009

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D E C I S I O N

 

 

 

PERALTA, J.:

 

Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto seeking the reversal of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 23761 dated December 16, 2003, affirming petitioner's conviction of the crime of Qualified Theft, and its Resolution[2] dated March 5, 2004 denying petitioner's motion for reconsideration.

 

Petitioner, along with two other women, namely, Anita Busog de Valencia y Rivera and Jacqueline Capitle, was charged before the Regional

Trial Court (RTC) of Caloocan City, Branch 131, with the crime of Qualified Theft, allegedly committed as follows:

 

That on or about and sometime in the month of July 1997, in Kalookan City, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping one another, being then all employees of MEGA FOAM INTERNATIONAL INC., herein represented by JOSEPH DYHENGCO Y CO, and as such had free access inside the aforesaid establishment, with grave abuse of trust and confidence reposed upon them with intent to gain and without the knowledge and consent of the owner thereof, did then and there willfully, unlawfully and feloniously take, steal and deposited in their own account, Banco De Oro Check No. 0132649 dated July 14, 1997 in the sum of P10,000.00, representing payment made by customer Baby Aquino to the Mega Foam Int'l. Inc. to the damage and prejudice of the latter in the aforesaid stated amount of P10,000.00.

 CONTRARY TO LAW.[3] 

 

The prosecution's evidence, which both the RTC and the CA found to be more credible, reveals the events that transpired to be as follows.

 

In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino, handed petitioner Banco De Oro (BDO) Check Number 0132649 postdated July 14, 1997 in the amount of P10,000.00. The check was payment for Baby Aquino's purchases from Mega Foam Int'l., Inc., and petitioner was then the collector of Mega Foam. Somehow, the check was deposited in the Land Bank account of Generoso Capitle, the husband of Jacqueline Capitle; the latter is the sister of petitioner and the former pricing, merchandising and inventory clerk of Mega Foam.

Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone call sometime in the middle of July from one of their customers, Jennifer Sanalila. The customer wanted to know if she could issue checks payable to the account of Mega Foam, instead of issuing the checks payable to CASH. Said customer had apparently been instructed by Jacqueline Capitle to make check payments to Mega Foam payable to CASH. Around that time, Ricablanca also received a phone call from an employee of Land Bank, Valenzuela Branch, who was looking for Generoso Capitle. The reason for the call was to inform Capitle that the subject BDO check deposited in his account had been dishonored.

 

Ricablanca then phoned accused Anita Valencia, a former employee/collector of Mega Foam, asking the latter to inform Jacqueline Capitle about the phone call from Land Bank regarding the bounced check. Ricablanca explained that she had to call and relay the message through Valencia, because the Capitles did not have a phone; but they could be reached through Valencia, a neighbor and former co-employee of Jacqueline Capitle at Mega Foam.

Valencia then told Ricablanca that the check came from Baby Aquino, and instructed Ricablanca to ask Baby Aquino to replace the check with cash. Valencia also told Ricablanca of a plan to take the cash and divide it equally into four: for herself, Ricablanca, petitioner Jacinto and Jacqueline Capitle. Ricablanca, upon the advise of Mega Foam's accountant, reported the matter to the owner of Mega Foam, Joseph Dyhengco.

Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that the latter indeed handed petitioner a BDO check for P10,000.00 sometime in June 1997 as payment for her purchases from Mega Foam.[4] Baby Aquino further testified that, sometime in July 1997, petitioner also called her on the phone to tell her that the BDO check bounced.[5] Verification from company records showed that petitioner never remitted the subject check to Mega Foam. However, Baby Aquino said that she had already paid Mega Foam P10,000.00 cash in August 1997 as replacement for the dishonored check.[6]

Generoso Capitle, presented as a hostile witness, admitted depositing the subject BDO check in his bank account, but explained that the check came into his possession when some unknown woman arrived at his house around the first week of July 1997 to have the check rediscounted. He parted with his cash in exchange for the check without even bothering to inquire into the identity of the woman or her address. When he was informed by the bank that the check bounced, he merely disregarded it as he didnt know where to find the woman who rediscounted the check.

Meanwhile, Dyhengco filed a Complaint with the National Bureau of Investigation (NBI) and worked out an entrapment operation with its agents. Ten pieces of P1,000.00 bills provided by Dyhengco were marked and dusted with fluorescent powder by the NBI. Thereafter, the bills were given to Ricablanca, who was tasked to pretend that she was going along with Valencia's plan.

On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner, who was then holding the bounced BDO check, handed over said check to Ricablanca. They originally intended to proceed to Baby Aquino's place to have the check replaced with cash, but the plan did not push through. However, they agreed to meet again on August 21, 2007.

On the agreed date, Ricablanca again went to petitioners house, where she met petitioner and Jacqueline Capitle. Petitioner, her husband, and Ricablanca went to the house of Anita Valencia; Jacqueline Capitle decided not to go with the group because she decided to go shopping. It was only petitioner, her husband, Ricablanca and Valencia who then boarded petitioner's jeep and went on to Baby Aquino's factory. Only Ricablanca alighted from the jeep and entered the premises of Baby Aquino, pretending that she was getting cash from Baby Aquino. However, the cash she actually

brought out from the premises was the P10,000.00 marked money previously given to her by Dyhengco. Ricablanca divided the money and upon returning to the jeep, gaveP5,000.00 each to Valencia and petitioner. Thereafter, petitioner and Valencia were arrested by NBI agents, who had been watching the whole time.

 

Petitioner and Valencia were brought to the NBI office where the Forensic Chemist found fluorescent powder on the palmar and dorsal aspects of both of their hands. This showed that petitioner and Valencia handled the marked money. The NBI filed a criminal case for qualified theft against the two and one Jane Doe who was later identified as Jacqueline Capitle, the wife of Generoso Capitle.

The defense, on the other hand, denied having taken the subject check and presented the following scenario.

 

Petitioner admitted that she was a collector for Mega Foam until she resigned on June 30, 1997, but claimed that she had stopped collecting payments from Baby Aquino for quite some time before her resignation from the company. She further testified that, on the day of the arrest, Ricablanca came to her mothers house, where she was staying at that time, and asked that she accompany her (Ricablanca) to Baby Aquino's house. Since petitioner was going for a pre-natal check-up at the Chinese General Hospital, Ricablanca decided to hitch a ride with the former and her husband in their jeep going to Baby Aquino's place in Caloocan City. She allegedly had no idea why Ricablanca asked them to wait in their jeep, which they parked outside the house of Baby Aquino, and was very surprised when Ricablanca placed the money on her lap and the NBI agents arrested them.

Anita Valencia also admitted that she was the cashier of Mega Foam until she resigned on June 30, 1997. It was never part of her job to collect payments from customers. According to her, on the morning of August 21, 1997, Ricablanca called her up on the phone, asking if she (Valencia) could accompany her (Ricablanca) to the house of Baby Aquino. Valencia claims that she agreed to do so, despite her admission during cross-examination that she did not know where Baby Aquino resided, as she had never been to said house. They then met at the house of petitioner's mother, rode the jeep of petitioner and her husband, and proceeded to Baby Aquino's place. When they arrived at said place, Ricablanca alighted, but requested them to wait for her in the jeep.After ten minutes, Ricablanca came out and, to her surprise, Ricablanca gave her money and so she even asked, What is this?Then, the NBI agents arrested them.

 

The trial of the three accused went its usual course and, on October 4, 1999, the RTC rendered its Decision, the dispositive portion of which reads:

 

 WHEREFORE, in view of the foregoing, the Court finds accused Gemma Tubale De Jacinto y Latosa, Anita Busog De Valencia y Rivera and Jacqueline Capitle GUILTY beyond reasonable doubt of the crime of QUALIFIED THEFT and each of them is hereby sentenced to suffer imprisonment of FIVE (5) YEARS, FIVE (5) MONTHS AND ELEVEN (11) DAYS, as minimum, to SIX (6) YEARS, EIGHT (8) MONTHS AND TWENTY (20) DAYS, as maximum. SO ORDERED.[7]

 

The three appealed to the CA and, on December 16, 2003, a Decision was promulgated, the dispositive portion of which reads, thus:

  IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED, in that: 

(a) the sentence against accused Gemma Jacinto stands;(b) the sentence against accused Anita Valencia is reduced to 4 months arresto mayor medium.(c) The accused Jacqueline Capitle is acquitted. SO ORDERED.

 

A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for petitioner Gemma Tubale Jacinto, but the same was denied per Resolution dated March 5, 2004.

 

Hence, the present Petition for Review on Certiorari filed by petitioner alone, assailing the Decision and Resolution of the CA.The issues raised in the petition are as follows:

 

1.      Whether or not petitioner can be convicted of a crime not charged in the information; 2.      Whether or not a worthless check can be the object of theft; and 

3. Whether or not the prosecution has proved petitioner's guilt beyondreasonable doubt.[8]

The petition deserves considerable thought.

 

The prosecution tried to establish the following pieces of evidence to constitute the elements of the crime of qualified theft defined under Article 308, in relation to Article 310, both of the Revised Penal Code: (1) the taking of personal property - as shown by the fact that petitioner, as collector for Mega Foam, did not remit the customer's check payment to her employer and, instead, appropriated it for herself; (2) said property belonged to another − the check belonged to Baby Aquino, as it was her payment for purchases she made; (3) the taking was done with intent to gain this is presumed from the act of unlawful taking and further shown by the fact that the check was deposited to the bank account of petitioner's brother-in-law; (4) it was done without the owners consent petitioner hid the fact that she had received the check payment from her employer's customer by not remitting the check to the company; (5) it was accomplished without the use of violence or intimidation against persons, nor of force upon things the check was voluntarily handed to petitioner by the customer, as she was known to be a collector for the company; and (6) it was done with grave abuse of confidence petitioner is admittedly entrusted with the collection of payments from customers.

However, as may be gleaned from the aforementioned Articles of the Revised Penal Code, the personal property subject of the theft must have some value, as the intention of the accused is to gain from the thing stolen. This is further bolstered by Article 309, where the law provides that the penalty to be imposed on the accused is dependent on the value of the thing stolen.

In this case, petitioner unlawfully took the postdated check belonging to Mega Foam, but the same was apparently without value, as it was subsequently dishonored. Thus, the question arises on whether the crime of qualified theft was actually produced.

 

The Court must resolve the issue in the negative.

 

Intod v. Court of Appeals[9] is highly instructive and applicable to the present case. In Intod, the accused, intending to kill a person, peppered the latters bedroom with bullets, but since the intended victim was not home at the time, no harm came to him.The trial court and the CA held Intod guilty of attempted murder. But upon review by this Court, he was adjudged guilty only of an impossible crime as defined and penalized in paragraph 2, Article 4, in relation to Article 59, both of the Revised Penal Code, because of the factual impossibility of producing the crime. Pertinent portions of said provisions read as follows:

 Article 4(2). Criminal Responsibility. - Criminal responsibility shall be incurred: x x x x 

2.                  By any person performing an act which would be an offense against persons or

property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate to ineffectual means. (emphasis supplied)

Article 59. Penalty to be imposed in case of failure to commit the crime because the means employed or the aims sought are impossible. - When the person intending to commit an offense has already performed the acts for the execution of the same but nevertheless the crime was not produced by reason of the fact that the act intended was by its nature one of impossible accomplishment or because the means employed by such person are essentially inadequate to produce the result desired by him, the court, having in mind the social danger and the degree of criminality shown by the offender, shall impose upon him the penalty ofarresto mayor or a fine ranging from 200 to 500 pesos.

Thus, the requisites of an impossible crime are: (1) that the act performed would be an offense against persons or property; (2) that the act was done with evil intent; and (3) that its accomplishment was inherently impossible, or the means employed was either inadequate or ineffectual. The aspect of the inherent impossibility of accomplishing the intended crime under Article 4(2) of the Revised Penal Code was further explained by the Court in Intod[10] in this wise:

 

 Under this article, the act performed by the offender cannot produce an offense against persons or property because: (1) the commission of the offense is inherently impossible of accomplishment; or (2) the means employed is either (a) inadequate or (b) ineffectual. That the offense cannot be produced because the commission of the offense is inherently impossible of accomplishment is the focus of this petition. To be impossible under this clause, the act intended by the offender must be by its nature one impossible of accomplishment. There must be either (1) legal impossibility, or (2) physical impossibility of accomplishing the intended act in order to qualify the act as an impossible crime. Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime.x x x x The impossibility of killing a person already dead falls in this category. On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or beyond his control prevent the consummation of the intended crime. x x x [11]

In Intod, the Court went on to give an example of an offense that involved factual impossibility, i.e., a man puts his hand in the coat pocket of another with the intention to steal the latter's wallet, but gets nothing since the pocket is empty.

Herein petitioner's case is closely akin to the above example of factual impossibility given in Intod. In this case, petitioner performed all the acts to consummate the crime of   qualified theft, which is a crime against property. Petitioner's evil intent cannot be denied, as the mere act of unlawfully taking the check meant for Mega Foam showed her intent to gain or be unjustly enriched. Were it not for the fact that the check bounced, she would have received the face value thereof, which was not rightfully hers. Therefore, it was only due to the extraneous circumstance of the check being unfunded, a fact unknown to petitioner at the time, that prevented the crime from being produced. The thing unlawfully taken by petitioner turned out to be absolutely worthless, because the check was eventually dishonored, and Mega Foam had received the cash to replace the value of said dishonored check.

 

The fact that petitioner was later entrapped receiving the P5,000.00 marked money, which she thought was the cash replacement for the dishonored check, is of no moment. The Court held in Valenzuela v. People[12] that under the definition of theft in Article 308 of the Revised Penal Code, there is only one operative act of execution by the actor involved in theft ─ the taking of personal property of another. Elucidating further, the Court held, thus:

 

x x x Parsing through the statutory definition of theft under Article 308, there is one apparent answer provided in the language of the law that theft is already produced upon the tak[ing of] personal property of another without the latters consent. x x x x x x x when is the crime of theft produced? There would be all but certain unanimity in the position that theft is produced when there is deprivation of personal property due to its taking by one with intent to gain. Viewed from that perspective, it is immaterial to the product of the felony that the offender, once having committed all the acts of execution for theft, is able or unable to freely dispose of the property stolen since the deprivation from the owner alone has already ensued from such acts of execution. x x x x x x x x x x we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same. x x x x x x Unlawful taking, which is the deprivation of ones personal property, is the element which produces the felony in its consummated stage. x x x [13]

 

From the above discussion, there can be no question that as of the time that petitioner took possession of the check meant for Mega Foam, she had performed all the acts to consummate the crime of theft, had it not been impossible of accomplishment in this case. The circumstance of petitioner receiving the P5,000.00 cash as supposed replacement for the dishonored check was no longer necessary for the consummation of the crime of qualified theft. Obviously, the plan to convince Baby Aquino to give cash as replacement for the check was hatched only after the check had been dishonored by the drawee bank. Since the crime of theft is not a continuing offense, petitioner's act of receiving the cash replacement should not be considered as a continuation of the theft. At most, the fact that petitioner was caught receiving the marked money was merely corroborating evidence to strengthen proof of her intent to gain.

Moreover, the fact that petitioner further planned to have the dishonored check replaced with cash by its issuer is a different and separate fraudulent scheme. Unfortunately, since said scheme was not included or covered by the allegations in the Information, the Court cannot pronounce judgment on the accused; otherwise, it would violate the due process clause of the Constitution. If at all, that fraudulent scheme could have been another possible source of criminal liability.

IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals, dated December 16, 2003, and its Resolution dated March 5, 2004, are MODIFIED. Petitioner Gemma T. Jacinto is found GUILTY of an IMPOSSIBLE CRIME as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code, respectively. Petitioner is sentenced to suffer the penalty of six (6) months of arrresto mayor, and to pay the costs.

 

SO ORDERED.

ARISTOTEL VALENZUELA y G. R. No. 160188

NATIVIDAD,

Petitioner, Present:

 

PUNO, C.J.,

QUISUMBING,

 SANTIAGO,

-         versus - GUTIERREZ,

CARPIO,

 MARTINEZ,

 CORONA,

CARPIO MORALES,

AZCUNA,

TINGA,

CHICO-NAZARIO,

GARCIA,

VELASCO, and

PEOPLE OF THE PHILIPPINES NACHURA, JJ.

and HON. COURT OF APPEALS,

Respondents.

Promulgated:

 

 

 June 21, 2007

 

x----------------------------------------------------------------------------x

 

 

D E C I S I O N

 

TINGA, J.:

 

This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner effectively concedes having performed the felonious acts imputed against him, but instead insists that as a result, he should be adjudged guilty of frustrated theft only, not the felony in its consummated stage of which he was convicted. The proposition rests on a common theory expounded in two well-known decisions[1] rendered decades ago by the Court of Appeals, upholding the existence of frustrated theft of which the accused in both cases were found guilty. However, the rationale behind the rulings has never been affirmed by this Court.

 

As far as can be told,[2] the last time this Court extensively considered whether an accused was guilty of frustrated or consummated theft was in 1918, in People v. Adiao.[3] A more cursory

 

treatment of the question was followed in 1929, in People v. Sobrevilla,[4] and in 1984, in Empelis v. IAC.[5] This petition now gives occasion for us to finally and fully measure if or how frustrated theft is susceptible to commission under the Revised Penal Code.

 

I.

 

The basic facts are no longer disputed before us. The case stems from an Information[6] charging petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m., petitioner and Calderon were sighted outside the Super Sale Club, a supermarket within the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago), a security guard who was then manning his post at the open parking area of the supermarket. Lago saw petitioner, who was wearing

an identification card with the mark Receiving Dispatching Unit (RDU), hauling a push cart with cases of detergent of the well-known Tide brand. Petitioner unloaded these cases in an open parking space, where Calderon was waiting. Petitioner then returned inside the supermarket, and after five (5) minutes, emerged with more cartons of Tide Ultramatic and again unloaded these boxes to the same area in the open parking space.[7]

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

 

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

 

After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having been innocent bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May 1994 when they were haled by Lago and his fellow security guards after a commotion and brought to the Baler PNP Station. Calderon alleged that on the afternoon of the incident, he was at the Super Sale Club to withdraw from his ATM account, accompanied by his neighbor, Leoncio Rosulada.[11] As the queue for the ATM was long, Calderon and Rosulada decided to buy snacks inside the supermarket. It was while they were eating that they heard the gunshot fired by Lago, leading them tohead out of the building to check what was

 

 

transpiring. As they were outside, they were suddenly grabbed by a security guard, thus commencing their detention.[12] Meanwhile, petitioner testified during trial that he and his cousin, a Gregorio Valenzuela,[13] had been at the parking lot, walking beside the nearby BLISS complex and headed to ride a tricycle going to Pag-asa, when they saw the security guard Lago fire a shot. The gunshot caused him and the other people at the scene to start running, at which point he was apprehended by Lago and brought to the security office. Petitioner claimed he was detained at the security office until around 9:00 p.m., at which time he and the others were brought to the Baler Police Station. At the station, petitioner denied having stolen the cartons of detergent, but he was detained overnight, and eventually brought to the prosecutors office where he was charged with theft.[14] During petitioners cross-examination, he admitted that he had been employed as a bundler of GMS Marketing, assigned at the supermarket though not at SM.[15]

 

In a Decision[16] promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City, Branch 90, convicted both petitioner and Calderon of the crime of consummated theft. They were sentenced to an indeterminate prison term of two (2) years of prision correccional as minimum to seven (7) years of prision mayor as maximum.[17]The RTC found credible the testimonies of the prosecution witnesses and established the convictions on the positive identification of the accused as perpetrators of the crime.

 

Both accused filed their respective Notices of Appeal,[18] but only petitioner filed a brief[19] with the Court of Appeals, causing the appellate court to deem Calderons appeal as abandoned and consequently dismissed. Before the Court of Appeals, petitioner argued that he should only be convicted of frustrated theft since at the time he was apprehended, he was never placed in a position to freely dispose of the articles stolen.[20] However, in its Decision dated 19 June 2003,[21] the Court of Appeals rejected this contention and affirmed petitioners conviction.[22] Hence the present Petition for Review,[23] which expressly seeks that petitioners conviction be modified to only of Frustrated Theft.[24]

 

Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious intent and his actual participation in the theft of several cases of detergent with a total value of P12,090.00 of which he was charged.[25] As such, there is no cause for the Court to consider a factual scenario other than that presented by the prosecution, as affirmed by the RTC and the Court of Appeals. The only question to consider is whether under the given facts, the theft should be deemed as consummated or merely frustrated.

 

II.

 

In arguing that he should only be convicted of frustrated theft, petitioner cites[26] two decisions rendered many years ago by the Court of Appeals: People v. Dio[27] and People v. Flores.[28] Both decisions elicit the interest of this Court, as they modified trial court convictions from consummated to frustrated theft and involve a factual milieu that bears similarity to the present case. Petitioner invoked the same rulings in his appeal to the Court of Appeals, yet the appellate court did not expressly consider the import of the rulings when it affirmed the conviction.

 

It is not necessary to fault the Court of Appeals for giving short shrift to the Dio and Flores rulings since they have not yet been expressly adopted as precedents by this Court. For whatever reasons,

 

the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet despite the silence on our part, Dio and Flores have attained a level of renown reached by very few other appellate court rulings. They are comprehensively discussed in the most popular of our criminal law annotations,[29] and studied in criminal law classes as textbook examples of frustrated crimes or even as definitive of frustrated theft.

 

More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that populate criminal law exams more than they actually occur in real life. Indeed, if we finally say that Dio and Flores are doctrinal, such conclusion could profoundly influence a multitude of routine theft prosecutions, including commonplace shoplifting. Any scenario that involves the thief having to exit with the stolen property through a supervised egress, such as a supermarket checkout counter or a parking area pay booth, may easily call for the application of Dio and Flores. The fact that lower courts have not hesitated to lay down convictions for frustrated theft further validates that Dio andFlores and the theories offered therein on frustrated theft have borne some weight in our jurisprudential system. The time is thus ripe for us to examine whether those theories are correct and should continue to influence prosecutors and judges in the future.

 

III.

 

To delve into any extended analysis of Dio and Flores, as well as the specific issues relative to frustrated theft, it is necessary to first refer to the basic rules on the three stages of crimes under our Revised Penal Code.[30]

 

Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A felony is consummated when all the elements necessary for its execution and accomplishment are present. It is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. Finally, it is attempted when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance.

 

Each felony under the Revised Penal Code has a subjective phase, or that portion of the acts constituting the crime included between the act which begins the commission of the crime and the last act performed by the offender which, with prior acts, should result in the consummated crime.[31] After that point has been breached, the subjective phase ends and the objective phase begins.[32] It has been held that if the offender never passes the subjective phase of the offense, the crime is merely attempted.[33] On the other hand, the subjective phase is completely passed in case of frustrated crimes, for in such instances, [s]ubjectively the crime is complete.[34]

 

Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and attempted felonies on the other. So long as the offender fails to complete all the acts of execution despite commencing the commission of a felony, the crime is undoubtedly in the attempted stage. Since the specific acts of execution that define each crime under the Revised Penal Code are generally enumerated in the code itself, the task of ascertaining whether a crime is attempted only would need to compare the acts actually performed by the accused as against the acts that constitute the felony under the Revised Penal Code.

 

In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial concession that all of the acts of execution have been performed by the offender. The critical distinction instead is whether the felony itself was actually produced by the acts of execution. The determination of whether the felony was produced after all the acts of execution had been performed hinges on the particular statutory definition of the felony. It is the statutory definition that generally furnishes the elements of each crime under the Revised Penal Code, while the elements in turn unravel the particular requisite acts of execution and accompanying criminal intent.

 

The long-standing Latin maxim actus non facit reum, nisi mens sit rea supplies an important characteristic of a crime, that ordinarily, evil intent must unite with an unlawful act for there to be a crime, and accordingly,

there can be no crime when the criminal mind is wanting.[35] Accepted in this jurisdiction as material in crimes mala in se,[36] mens rea has been defined before as a guilty mind, a guilty or wrongful purpose or criminal intent,[37] and essential for criminal liability.[38] It follows that the statutory definition of our mala in se crimes must be able to supply what themens rea of the crime is, and indeed the U.S. Supreme Court has comfortably held that a criminal law that contains no mens rea requirement infringes on constitutionally protected rights.[39] The criminal statute must also provide for the overt acts that constitute the crime. For a crime to exist in our legal law, it is not enough that mens rea be shown; there must also be an actus reus.[40]

It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the felony is produced. As a postulate in the craftsmanship of constitutionally sound laws, it is extremely preferable that the language of the law expressly provide when the felony is produced. Without such provision, disputes would inevitably ensue on the elemental question whether or not a crime was committed, thereby presaging the undesirable and legally dubious set-up under which the judiciary is assigned the legislative role of defining crimes. Fortunately, our Revised Penal Code does not suffer from such infirmity. From the statutory definition of any felony, a decisive passage or term is embedded which attests when the felony is produced by the acts of execution. For example, the statutory definition of murder or homicide expressly uses the phrase shall kill another, thus making it clear that the felony is produced by the death of the victim, and conversely, it is not produced if the victim survives.

 

We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its elements are spelled out as follows:

 

Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latters consent.

Theft is likewise committed by:

1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner;

2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or object of the damage caused by him; and

3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall gather cereals, or other forest or farm products.

 

Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic means by which theft may be committed.[41] In the present discussion, we need to concern ourselves only with the general definition since it was under it that the prosecution of the accused was undertaken and sustained. On the face of the definition, there is only one operative act of execution by the actor involved in theft ─ the taking of personal property of another. It is also clear from the provision that in order that such taking may be qualified as theft, there must further be present the descriptive circumstances that the taking was with intent to gain; without force upon things or violence against or intimidation of persons; and it was without the consent of the owner of the property.

 

Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the Revised Penal Code, namely: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things.[42]

 

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

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

thought that there was no need of an intent to permanently deprive the owner of his property to constitute an unlawful taking.[51]

So long as the descriptive circumstances that qualify the taking are present, including animo lucrandi andapoderamiento, the completion of the operative act that is the taking of personal property of another establishes, at least, that the transgression went beyond the attempted stage. As applied to the present case, the moment petitioner obtained physical possession of the cases of detergent and loaded them in the pushcart, such seizure motivated by intent to gain, completed without need to inflict violence or intimidation against persons nor force upon things, and accomplished without the consent of the SM Super Sales Club, petitioner forfeited the extenuating benefit a conviction for only attempted theft would have afforded him.

On the critical question of whether it was consummated or frustrated theft, we are obliged to apply Article 6 of the Revised Penal Code to ascertain the answer. Following that provision, the theft would have been frustrated only, once the acts committed by petitioner, if ordinarily sufficient to produce theft as a consequence, do not produce [such theft] by reason of causes independent of the will of the perpetrator. There are clearly two determinative factors to consider: that the felony is not produced, and that such failure is due to causes independent of the will of the perpetrator. The second factor ultimately depends on the evidence at hand in each particular case. The first, however, relies primarily on a doctrinal definition attaching to the individual felonies in the Revised Penal Code[52] as to when a particular felony is not produced, despite the commission of all the acts of execution.

 

So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as to how exactly is the felony of theft produced. Parsing through the statutory definition of theft under Article 308, there is one apparent answer provided in the language of the law that theft is already produced upon the tak[ing of] personal property of another without the latters consent.

 

U.S. v. Adiao[53] apparently supports that notion. Therein, a customs inspector was charged with theft after he abstracted a leather belt from the baggage of a foreign national and secreted the item in his desk at the Custom House. At no time was the accused able to get the merchandise out of the Custom House, and it appears that he was under observation during the entire transaction.[54] Based apparently on those two circumstances, the trial court had found him guilty, instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive, and holding instead that the accused was guilty of consummated theft, finding that all the elements of the completed crime of theft are present.[55] In support of its conclusion that the theft was consummated, the Court cited three (3) decisions of the Supreme Court of Spain, the discussion of which we replicate below:

 

  The defendant was charged with the theft of some fruit from the land of another. As he was in the act of taking the fruit[,] he was seen by a policeman, yet it did not appear that he was at that moment caught by the policeman but sometime later. The court said: "[x x x] The trial court did not err [x x x ] in considering the crime as that of consummated theft instead of frustrated theft inasmuch as nothing appears in the record showing that the policemen who saw the accused take the fruit from the adjoining land arrested him in the act and thus prevented him from taking full possession of the thing stolen and even its utilization by him for an interval of time." (Decision of the Supreme Court of Spain, October 14, 1898.) 

Defendant picked the pocket of the offended party while the latter was hearing mass in a church. The latter on account of the solemnity of the act, although noticing the theft, did not do anything to prevent it. Subsequently, however, while the defendant was still inside the church, the offended party got back the money from the defendant. The court said that the defendant had performed all the acts of execution and considered the theft as consummated. (Decision of the Supreme Court of Spain, December 1, 1897.)

 The defendant penetrated into a room of a certain house

and by means of a key opened up a case, and from the case took a small box, which was also opened with a key, from which in turn he took a purse containing 461 reales and 20 centimos, and then he placed the money over the cover of the case; just at this moment he was caught by two guards who were stationed in another room near-by. The court considered this as consummated robbery, and said: "[x x x] The accused [x x x] having materially taken possession of the money from the moment he took it from the place where it had been, and having taken it with his hands with intent to appropriate the same, he executed all the acts necessary to constitute the crime which was thereby produced; only the act of making use of the thing having been frustrated, which, however, does not go to make the elements of the consummated crime." (Decision of the Supreme Court of Spain, June 13, 1882.)[56]

 

It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the criminal actors in all these cases had been able to obtain full possession of the personal property prior to their apprehension. The interval between the commission of the acts of theft and the apprehension of the thieves did vary, from sometime later in the 1898 decision; to the very moment the thief had just extracted the money in a purse which had been stored as it was in the 1882 decision; and before the thief had been able to spirit the item stolen from the building where the theft took place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of no consequence in those cases, as it was ruled that the

thefts in each of those cases was consummated by the actual possession of the property belonging to another.

 

In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated rather than consummated theft. The case is People v. Sobrevilla,[57] where the accused, while in the midst of a crowd in a public market, was already able to abstract a pocketbook from the trousers of the victim when the latter, perceiving the theft, caught hold of the [accused]s shirt-front, at the same time shouting for a policeman; after a struggle, he recovered his pocket-book and let go of the defendant, who was afterwards caught by a policeman.[58] In rejecting the contention that only frustrated theft was established, the Court simply said, without further comment or elaboration:

 

We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-book, and that determines the crime of theft. If the pocket-book was afterwards recovered, such recovery does not affect the [accuseds] criminal liability, which arose from the [accused] having succeeded in taking the pocket-book.[59]

If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the latter, in that the fact that the offender was able to succeed in obtaining physical possession of the stolen item, no matter how momentary, was able to consummate the theft.

 

Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of petitioner in this case. Yet to simply affirm without further comment would be disingenuous, as there is another school of thought on when theft is consummated, as reflected in the Dio and Flores decisions.

 

Dio was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before Flores. The accused therein, a driver employed by the United States Army, had driven his truck into the port area of the SouthHarbor, to unload a truckload of materials to waiting U.S. Army personnel. After he had finished unloading, accused drove away his truck from the Port, but as he was approaching a checkpoint of the Military Police, he was stopped by an M.P. who inspected the truck and found therein three boxes of army rifles. The accused later contended that he had been stopped by four men who had loaded the boxes with the agreement that they were to meet him and retrieve the rifles after he had passed the checkpoint. The trial court convicted accused of consummated theft, but the Court of Appeals modified the conviction, holding instead that only frustrated theft had been committed.

 

In doing so, the appellate court pointed out that the evident intent of the accused was to let the boxes of rifles pass through the checkpoint, perhaps in the belief that as the truck had already unloaded its cargo inside the depot, it would be allowed to pass through the check point without further investigation or checking.[60] This point was deemed material and indicative that the theft had not been fully produced, for the Court of Appeals pronounced that the fact determinative of consummation is the ability of the thief to dispose freely of the articles stolen, even if it were more or less momentary.[61] Support for this proposition was drawn from a decision of the Supreme Court of Spain dated 24 January 1888 (1888 decision), which was quoted as follows:

 

Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la consumacion del delito de hurto es preciso que so haga en circunstancias tales que permitan al sustractor la libre disposicion de aquella, siquiera sea mas o menos momentaneamente, pues de otra suerte, dado el concepto del delito de hurto, no puede decirse en realidad que se haya producido en toda su extension, sin materializar demasiado el acto de tomar la cosa ajena.[62]

 

Integrating these considerations, the Court of Appeals then concluded:

 

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

 

Dio thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the time of apprehension is determinative as to whether the theft is consummated or frustrated. This theory was applied again by the Court of Appeals some 15 years later, in Flores, a case which according to the division of the court that decided it, bore no substantial variance between the circumstances [herein] and in [Dio].[64] Such conclusion is borne out by the facts in Flores. The accused therein, a checker employed by the Luzon Stevedoring Company, issued a delivery receipt for one empty sea van to the truck driver who had loaded the purportedly empty sea van onto his truck at the terminal of the stevedoring company. The truck driver proceeded to show the delivery receipt to the guard on duty at the

gate of the terminal. However, the guards insisted on inspecting the van, and discovered that the empty sea van had actually contained other merchandise as well.[65] The accused was prosecuted for theft qualified by abuse of confidence, and found himself convicted of the consummated crime. Before the Court of Appeals, accused argued in the alternative that he was guilty only of attempted theft, but the appellate court pointed out that there was no intervening act of spontaneous desistance on the part of the accused that literally frustrated the theft. However, the Court of Appeals, explicitly relying on Dio, did find that the accused was guilty only of frustrated, and not consummated, theft.

 

As noted earlier, the appellate court admitted it found no substantial variance between Dio and Flores then before it. The prosecution in Flores had sought to distinguish that case from Dio, citing a traditional ruling which unfortunately was not identified in the decision itself. However, the Court of Appeals pointed out that the said traditional ruling was qualified by the words is placed in a situation where [the actor] could dispose of its contents at once.[66] Pouncing on this qualification, the appellate court noted that [o]bviously, while the truck and the van were still within the compound, the petitioner could not have disposed of the goods at once. At the same time, the Court of Appeals conceded that [t]his is entirely different from the case where a much less bulk and more common thing as money was the object of the crime, where freedom to dispose of or make use of it is palpably less restricted,[67]though no further qualification was offered what the effect would have been had that alternative circumstance been present instead.

Synthesis of the Dio and Flores rulings is in order. The determinative characteristic as to whether the crime of theft was produced is the ability of the actor to freely dispose of the articles stolen, even if it were only momentary. Such conclusion was drawn from an 1888 decision of the Supreme Court of Spain which had pronounced that in determining whether theft had been consummated, es preciso que so haga en circunstancias tales que permitan al sustractor de aquella, siquiera sea mas o menos momentaneamente. The qualifier siquiera sea mas o menos momentaneamente proves another important consideration, as it implies that if the actor was in a capacity to freely dispose of the stolen items before apprehension, then the theft could be deemed consummated. Such circumstance was not present in either Dio or Flores, as the stolen items in both cases were retrieved from the actor before they could be physically extracted from the guarded compounds from which the items were filched. However, as implied inFlores, the character of the item stolen could lead to a different conclusion as to whether there could have been free disposition, as in the case where the chattel involved was of much less bulk and more common x x x, [such] as money x x x.[68]

 

In his commentaries, Chief Justice Aquino makes the following pointed observation on the import of the Dioruling:

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

 

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

 

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

 

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

 

In pointing out the distinction between Dio and Espiritu, Reyes wryly observes that [w]hen the meaning of an element of a felony is controversial, there is bound to arise different rulings as to the stage of execution of that felony.[77] Indeed, we can discern from this survey of jurisprudence that the state of the law insofar as frustrated theft is concerned is muddled. It fact, given the disputed foundational basis of the concept of frustrated theft itself,

the question can even be asked whether there is really such a crime in the first place.

 

IV.

 

The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not consummated, theft. As we undertake this inquiry, we have to reckon with the import of this Courts 1984 decision in Empelis v. IAC.[78]

 

As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the premises of his plantation, in the act of gathering and tying some coconuts. The accused were surprised by the owner within the plantation as they were carrying with them the coconuts they had gathered. The accused fled the scene, dropping the coconuts they had seized, and were subsequently arrested after the owner reported the incident to the police. After trial, the accused were convicted of qualified theft, and the issue they raised on appeal was that they were guilty only of simple theft. The Court affirmed that the theft was qualified, following Article 310 of the Revised Penal Code,[79] but further held that the accused were guilty only of frustrated qualified theft.

It does not appear from the Empelis decision that the issue of whether the theft was consummated or frustrated was raised by any of the parties. What does appear, though, is that the disposition of that issue was contained in only two sentences, which we reproduce in full:

 

However, the crime committed is only frustrated qualified theft because petitioners were not able to perform all the acts of execution which should have produced the felony as a consequence. They were not able to carry the coconuts away from the plantation due to the timely arrival of the owner.[80]

 

No legal reference or citation was offered for this averment, whether Dio, Flores or the Spanish authorities who may have bolstered the conclusion. There are indeed evident problems with this formulation in Empelis.

 

Empelis held that the crime was only frustrated because the actors were not able to perform all the acts of execution which should have produced

the felon as a consequence.[81] However, per Article 6 of the Revised Penal Code, the crime is frustrated when the offender performs all the acts of execution, though not producing the felony as a result. If the offender was not able to perform all the acts of execution, the crime is attempted, provided that the non-performance was by reason of some cause or accident other than spontaneous desistance. Empelisconcludes that the crime was

 

frustrated because not all of the acts of execution were performed due to the timely arrival of the owner. However, following Article 6 of the Revised Penal Code, these facts should elicit the conclusion that the crime was only attempted, especially given that the acts were not performed because of the timely arrival of the owner, and not because of spontaneous desistance by the offenders.

 

For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if the two sentences we had cited actually aligned with the definitions provided in Article 6 of the Revised Penal Code, such passage bears no reflection that it is the product of the considered evaluation of the relevant legal or jurisprudential thought. Instead, the passage is offered as if it were sourced from an indubitable legal premise so settled it required no further explication.

 

Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft. Indeed, we cannot see how Empelis can contribute to our present debate, except for the bare fact that it proves that the Court had once deliberately found an accused guilty of frustrated theft. Even if Empelis were considered as a precedent for frustrated theft, its doctrinal value is extremely compromised by the erroneous legal premises that inform it, and also by the fact that it has not been entrenched by subsequent reliance.

Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in this jurisdiction. Considering the flawed reasoning behind its conclusion of frustrated theft, it cannot present any efficacious argument to persuade us in this case. Insofar as Empelis may imply that convictions for frustrated theft are beyond cavil in this jurisdiction, that decision is subject to reassessment.

 

V.

 

At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de Espaa was then in place. The definition of the crime of theft, as provided then, read as follows:

 Son reos de hurto: 1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la voluntad de su dueo.

 2.      Los que encontrndose una cosa perdida y sabiendo quin es su dueo se la apropriaren co intencin de lucro.

 3.      Los daadores que sustrajeren o utilizaren los frutos u objeto del dao causado, salvo los casos previstos en los artίculos 606, nm. 1.0; 607, nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613; Segundo prrafo del 617 y 618.

 

It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court decisions were handed down. However, the said code would be revised again in 1932, and several times thereafter. In fact, under the Codigo Penal Espaol de 1995, the crime of theft is now simply defined as [e]l que, con nimo de lucro,

tomare las cosas muebles ajenas sin la voluntad de su dueo ser castigado[82]

 

Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, la libre disposicion of the property is not an element or a statutory characteristic of the crime. It does appear that the principle originated and perhaps was fostered in the realm of Spanish jurisprudence.

 

The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the 1870 Codigo Penal de Espaa. Therein, he raised at least three questions for the reader whether the crime of frustrated or consummated theft had occurred. The passage cited in Dio was actually utilized by Viada to answer the question whether frustrated or consummated theft was committed [e]l que en el momento mismo de apoderarse de la cosa ajena, vindose sorprendido, la arroja al suelo.[83] Even as the answer was as stated in Dio, and was indeed derived from the 1888 decision of the Supreme Court of Spain, that decisions factual predicate occasioning the statement was apparently very different from Dio, for it appears that the 1888 decision involved an accused who was surprised by the employees of a haberdashery as he was abstracting a layer of clothing off a mannequin, and who then proceeded to throw away the garment as he fled.[84]

 

Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of the Supreme Court of Spain that have held to that effect.[85] A few decades later, the esteemed Eugenio Cuello Caln pointed out the inconsistent application by the Spanish Supreme Court with respect to frustrated theft.

 

Hay frustracin cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de harino del carro que los conducia a otro que tenan preparado, 22 febrero 1913; cuando el resultado no tuvo efecto por la intervencin de la policia situada en el local donde se realiz la sustraccin que impidi pudieran los reos disponer de lo sustrado, 30 de octubre 1950. Hay "por lo menos" frustracin, si existe apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril 1930; hay frustracin "muy prxima" cuando el culpable es detenido por el perjudicado acto seguido de cometer la sustraccin, 28 febrero 1931. Algunos fallos han considerado la existencia de frustracin cuando, perseguido el culpable o sorprendido en el momento de llevar los efectos hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, stos, conforme a lo antes expuesto, son hurtos consumados.[86]

 

Ultimately, Cuello Caln attacked the very idea that frustrated theft is actually possible:

 

La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa queda de hecho a la disposicin del agente. Con este criterio coincide la doctrina sentada ltimamente porla jurisprudencia espaola que generalmente considera consumado el hurto cuando el culpable coge o aprehende la cosa y sta quede por tiempo ms o menos duradero bajo su poder. El hecho de que ste pueda aprovecharse o no de lo hurtado es indiferente. El delito no pierde su carcter de consumado aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada. No se concibe la frustracin, pues es muy dificil que el que hace cuanto es necesario para la consumacin del hurto no lo consume efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante, declara hurtos frustrados son verdaderos delitos consumados.[87] (Emphasis supplied)

 

 

Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who was content with replicating the Spanish Supreme Court decisions on the matter, Cuello Caln actually set forth his own thought that questioned

whether theft could truly be frustrated, since pues es muy dificil que el que hace cuanto es necesario para la consumacin del hurto no lo consume efectivamente. Otherwise put, it would be difficult to foresee how the execution of all the acts necessary for the completion of the crime would not produce the effect of theft.

 

This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought that obliges us to accept frustrated theft, as proposed in Dio and Flores. A final ruling by the Court that there is no crime of frustrated theft in this jurisdiction will not lead to scholastic pariah, for such a submission is hardly heretical in light of Cuello Calns position.

 

Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a fresh perspective, as we are not bound by the opinions of the respected Spanish commentators, conflicting as they are, to accept that theft is capable of commission in its frustrated stage. Further, if we ask the question whether there is a mandate of statute or precedent that must compel us to adopt the Dio and Flores doctrines, the answer has to be in the negative. If we did so, it would arise not out of obeisance to an inexorably higher command, but from the exercise of the function of statutory interpretation that comes as part and parcel of judicial review, and a function that allows breathing room for a variety of theorems in competition until one is ultimately adopted by this Court.

V.

 

The foremost predicate that guides us as we explore the matter is that it lies in the province of the legislature, through statute, to define what constitutes a particular crime in this jurisdiction. It is the legislature, as representatives of the sovereign people, which determines which acts or combination of acts are criminal in nature. Judicial interpretation of penal laws should be aligned with what was the evident legislative intent, as expressed primarily in the language of the law as it defines the crime. It is Congress, not the courts, which is to define a crime, and ordain its punishment.[88] The courts cannot arrogate the power to introduce a new element of a crime which was unintended by the legislature, or redefine a crime in a manner that does not hew to the statutory language. Due respect for the prerogative of Congress in defining crimes/felonies constrains the Court to refrain from a broad interpretation of penal laws where a narrow interpretation is appropriate.  The Court must take heed of language, legislative history and purpose, in order to strictly determine the wrath and breath of the conduct the law forbids.[89]

 

With that in mind, a problem clearly emerges with the Dio/Flores dictum. The ability of the offender to freely dispose of the property stolen is not a constitutive element of the crime of theft. It finds no

support or extension in Article 308, whether as a descriptive or operative element of theft or as the mens rea or actus reus of the felony. To restate what this Court has repeatedly held: the elements of the crime of theft as provided for in Article 308 of the Revised Penal Code are: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things.[90]

 

Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain, of personal property of another without the latters consent. While the Dio/Flores dictum is considerate to the mindset of the offender, the statutory definition of theft considers only the perspective of intent to gain on the part of the offender, compounded by the deprivation of property on the part of the victim.

 

For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage, the question is again, when is the crime of theft produced? There would be all but certain unanimity in the position that theft is produced when there is deprivation of personal property due to its taking by one with intent to gain. Viewed from that perspective, it is immaterial to the product of the felony that the offender, once having committed all the acts of execution for theft, is able or unable to freely dispose of the property stolen since the deprivation from the owner alone has already ensued from such acts of execution. This conclusion is reflected in Chief Justice Aquinos commentaries, as earlier cited, that [i]n theft or robbery the crime is consummated after the accused had material possession of the thing with intent to appropriate the same, although his act of making use of the thing was frustrated.[91]

 

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

 

Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same.[92] And long ago, we asserted in People v. Avila:[93]

 

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

 

Insofar as we consider the present question, unlawful taking is most material in this respect. Unlawful taking, which is the deprivation of ones personal property, is the element which produces the felony in its consummated stage. At the same time, without unlawful taking as an act of execution, the offense could only be attempted theft, if at all.

 

With these considerations, we can only conclude that under Article 308 of the Revised Penal Code, theft cannot have a frustrated stage. Theft can only be attempted or consummated.

 

Neither Dio nor Flores can convince us otherwise. Both fail to consider that once the offenders therein obtained possession over the stolen items, the effect of the felony has been produced as there has been deprivation of property. The presumed inability of the offenders to freely dispose of the stolen property does not negate the fact that the owners have already been deprived of their right to possession upon the completion of the taking.

 

Moreover, as is evident in this case, the adoption of the rule that the inability of the offender to freely dispose of the stolen property frustrates the theft would introduce a convenient defense for the accused which does not reflect any legislated intent,[95] since the Court would have carved a viable means for offenders to seek a mitigated penalty under applied circumstances that do not admit of easy classification. It is difficult to formulate definite standards as to when a stolen item is susceptible to free disposal by the thief. Would this depend on the psychological belief of the offender at the time of the commission of the crime, as implied in Dio?

Or, more likely, the appreciation of several classes of factual circumstances such as the size and weight of the property, the location of the property, the number and identity of people present at the scene of the crime, the number and identity of people whom the offender is expected to encounter upon fleeing with the stolen property, the manner in which the stolen item had been housed or stored; and quite frankly, a whole lot more. Even the fungibility or edibility of the stolen item would come into account, relevant as that would be on whether such property is capable of free disposal at any stage, even after the taking has been consummated.

 

All these complications will make us lose sight of the fact that beneath all the colorful detail, the owner was indeed deprived of property by one who intended to produce such deprivation for reasons of gain. For such will remain the presumed fact if frustrated theft were recognized, for therein, all of the acts of execution, including the taking, have been completed. If the facts establish the non-completion of the taking due to these peculiar circumstances, the effect could be to downgrade the crime to the attempted stage, as not all of the acts of execution have been performed. But once all these acts have been executed, the taking has been completed, causing the unlawful deprivation of property, and ultimately the consummation of the theft.

 

Maybe the Dio/Flores rulings are, in some degree, grounded in common sense. Yet they do not align with the legislated framework of the crime of theft. The Revised Penal Code provisions on theft have not been designed in such fashion as to accommodate said rulings. Again, there is no language in Article 308 that expressly or impliedly allows that the free disposition of the items stolen is in any way determinative of whether the crime of theft has been produced. Dio itself did not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was ultimately content in relying on Dio alone for legal support. These cases do not enjoy the weight of stare decisis, and even if they did, their erroneous appreciation of our law on theft leave them susceptible to reversal. The same holds true of Empilis, a regrettably stray decision which has not since found favor from this Court.

 

We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As petitioner has latched the success of his appeal on our acceptance of the Dio and Flores rulings, his petition must be denied, for we decline to adopt said rulings in our jurisdiction. That it has taken all these years for us to recognize that there can be no frustrated theft under the Revised Penal Code does not detract from the correctness of this conclusion. It will take considerable amendments to our Revised Penal Code in order that frustrated theft may be recognized. Our deference to Viada yields to the higher reverence for legislative intent.

 

WHEREFORE, the petition is DENIED. Costs against petitioner.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDGARDO DE LEON Y SANTOS, accused-appellant.

D E C I S I O N

PUNO, J.:

This is an automatic review of the decision of the Regional Trial Court, Branch 90, Cavite City in Criminal Case No. 3454-94,[1] the dispositive portion of which reads:

WHEREFORE, this court finds the accused, EDGARDO DE LEON guilty of Rape beyond reasonable doubt, and sentences him to the DEATH penalty and to pay the victim, Amelia de Leon Parocho, the amount of P50,000.00 for moral

damages in line with the reward made under the case of People v. Bonday (222 SCRA 216 [1997]).

"SO ORDERED.[2]

The facts, according to the prosecution, are as follows:

On July 22, 1992, at 11:00 in the evening, Amelia de Leon, twenty (20) years of age, was sleeping in her house at Barangay Sta. Cristina 2, Area C, Bagong Bayan, Dasmarinas, Cavite. On the bed beside her slept her two-year old daughter while adjacent to them on a crib was her younger daughter, aged one year. The fluorescent lamp was lit as Amelia had barely fallen asleep. An overpowering smell of liquor suddenly pervaded the air. Waking up, Amelia saw her father, herein accused-appellant Edgardo de Leon, bending over her and aiming a knife at her. He ordered her to undress. Amelia tried to get up but accused-appellant hit her head with the knifes handle. Amelia cried. Accused-appellant covered her mouth with his hand and with the other hand punched her on the thigh. Amelia continued to cry. He placed the knife behind her back and with it ripped her clothes. Amelia protested, crying Tay, ano bang ginagawa ninyo? Sundin mo yung inuutos ko! he barked and peeled off her clothes. Amelia struggled. Accused-appellant thrust his knife on the pillow beside them. Amelia feared that he hit her sleeping daughters head. Instead, he aimed the knife at the child and declared that if Amelia did not give in to what he wanted, he was going to kill the child. Fearing this, Amelia undressed herself and lay down on the bed.

Her father went on top of her, inserted his organ into her private part and made an up and down motion as he kissed her lips, neck and breasts. Amelia tried to wake up her daughter by pinching her. The child cried but accused-appellant shoved a feeding bottle inside her mouth to quiet her. Accused-appellant then ordered Amelia to get up and sit on a chair nearby. She did as she was told. Accused-appellant went beside her and sexually penetrated her. After satisfying his lust, accused-appellant stood up and put on his underpants. He warned Amelia not to report the incident to her mother or he would kill her. Thereafter, accused-appellant went to the living room. He laid down near the door of the house and slept.

That night, Amelia could not sleep. She tried to escape by the window of their house but it was too small. The following day, at 6:00 in the morning, when accused-appellant awoke, Amelia asked permission from him to buy food for their breakfast. He acceded. Amelia left the house with her eldest daughter. Instead of buying food, she ran to her godfathers house. Seeing her godfather, she told him of her fathers assault on her virtue. Forthwith, her godfather took Amelia to her godmother who knew how to reach Simprosa, Amelias mother. Simprosa was then staying overnight in Navotas taking care of her sick father. They found Simprosa and told her of the incident. They all returned to Dasmarinas that same day and reported the matter to the police.[3]

On September 12, 1994, the following Information was filed against accused-appellant, viz:

The undersigned 1st Assistant Provincial Prosecutor accuses EDGARDO DE LEON Y SANTOS of the crime of RAPE based on a verified complaint filed by

one Amelia Parocho [sic] de Leon before the Municipal Trial Court of Dasmarinas, Cavite, committed as follows:

"That on or before the 22nd day of July 1994 at around 11 oclock in the evening at Barangay Sta. Cristina 2, Area C, Bagong Bayan, Municipality of Dasmarinas, Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, taking advantage of his superior strength, with lewd designs and by means of force, violence and intimidation, and being then armed with a knife, did then and there, wilfully, unlawfully and feloniously have carnal knowledge of his daughter Amelia Parocho [sic] de Leon, against the latters will and consent, to the damage and prejudice of said victim.

"CONTRARY TO LAW.[4]

Accused-appellant pleaded not guilty to the crime charged. At the trial, he denied having raped Amelia. He said that Amelia made up the incident to spite him after he had a heated argument with her mother. Earlier that same day, at about 9:00 in the morning, Amelia sought accused-appellants permission to marry. He refused to give his consent because Amelias common-law husband, Juancho Parocho, was in prison serving time for robbery. Simprosa asked why he was objecting to Amelias marriage to another man when Amelia was not accused-appellants daughter. Simprosa reminded him that before their marriage, when they started cohabiting in 1976, she was pregnant with Amelia fathered by a man who had just died. Simprosa uttered other statements which hurt accused-appellants feelings. To make her stop, he punched his wifes face, hitting her on the mouth. Amelia screamed at her father and warned she was going to do everything to put him behind bars.

Simprosa left and took Amelia and her children with her. Alone in the house, accused-appellant passed the day drinking liquor. The next thing he knew he was arrested for rape.[5]

The prosecution evidence was upheld by the trial court. On January 20, 1997, the court rendered a decision convicting the accused of the crime charged and sentenced him to the penalty of death. Hence, this appeal.

Accused-appellant claims that:

THE LOWER COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME OF RAPE, DESPITE THE INSUFFICIENCY OF THE PROSECUTIONS EVIDENCE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.[6]

It is alleged by accused-appellant that the prosecution evidence has not proved his guilt beyond reasonable doubt because: (1) the evidence for the prosecution which consisted of the victims sole testimony is insufficient; (2) this testimony is inconsistent; and (3) the other pieces of vital evidence, i.e., the knife and the victims torn clothes, were not presented to substantiate the victims testimony.

In rape cases, the guiding principles are: (1) an accusation of rape can be made with facility, it is difficult to prove and even more difficult to disprove; (2) considering that only two persons are usually involved in the crime, the testimony of the complainant should be scrutinized with great caution; and

(3) the evidence for the prosecution must stand or fall on its own merit, and cannot draw strength from the weakness of the defense evidence.[7]

Reviewing the records carefully, we find that the sole testimony of the victim sufficiently establishes the guilt of accused-appellant. Amelia de Leon testified naturally, spontaneously and positively. She was straightforward and did not waiver, even on cross-examination. She even cried as she painfully recounted her ordeal in her fathers hands.[8] Her testimony is credible and consistent with human nature and the natural course of things. The failure to present her torn clothes and accused-appellants knife is not fatal because Amelia's lone testimony meets the test of credibility.[9]

The victim allegedly testified that her father undressed her. Later, however, she said she undressed herself. This inconsistency, according to accused-appellant, is not trivial but goes into the very heart of her credibility.[10]

There is no such inconsistency in Amelias testimony. Accused-appellant indeed tried to undress her by ripping her clothes with his knife. When she resisted, accused-appellant aimed the knife at her sleeping child. Out of fear, Amelia was forced to undress herself completely.

Moreover, our well ingrained ruling is that minor inconsistencies tend to bolster, rather than weaken, the victims credibility. The court cannot expect a rape victim to remember with accuracy every single detail of her violation; she might have, in fact, tried to forget the incident.[11]

Accused-appellants claim that the charge against him was merely trumped up by Amelia cannot be believed. No woman, especially a daughter, would subject herself and her family to the humiliation of a public trial and send her father to jail for the rest of his life if her accusation were not true.[12]

The trial court therefore did not err in finding accused-appellant guilty of the crime charged. It erred, however, in imposing the penalty of death.

Rape, under Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659[13] is committed and punished as follows:

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 or is demented.

"The crime of rape shall be punished by reclusion perpetua.

"Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.

"When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death.

"When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death.

"When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death.

"The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:

1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim.

2. when the victim is under the custody of the police or military authorities.

3. when the rape is committed in full view of the husband, parent, any of the children of other relatives within the third degree of consanguinity.

4. when the victim is a religious or a child below seven (7) years old.

5. when the offender knows that he is afflicted with the Acquired Immune Deficiency Syndrome (AIDS) disease.

6. when committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency.

7. When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation.[14]

The elements of rape are: (1) that the offender had carnal knowledge of a woman; (2) that such act is accomplished by using force or intimidation; or when the woman is deprived of reason or otherwise unconscious; or when the woman is under twelve years of age or is demented. The imposable penalty for rape is reclusion perpetua.However, whenever the crime is committed with the use of a deadly weapon or by two or more persons, the imposable penalty ranges from reclusion perpetua to death. When any of the seven (7) circumstances enumerated in the law attends the commission of the rape, the imposable penalty is death.[15]

In the case at bar, accused-appellant had carnal knowledge of the victim by force and intimidation. The victim, Amelia de Leon, is accused-appellants daughter, or step-daughter as appellant claims. The death penalty is imposed if the victim is under eighteen years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the victims parent. This provision does not apply because at the time the rape was committed, Amelia was more than eighteen years of age.[16] Neither does the fact that the rape of Amelia was made in the presence of her children increase the accused-appellants penalty to death. The law requires that the rape must have been committed in full view of the victims children. This circumstance was not stated in the Information, neither was it proven in the court below. From the victims testimony, the children were asleep when she was being violated. The older child may have awakened after the victim

pinched her but there is no showing, much less any allegation, that she was able to view what accused-appellant did to her mother.

Since the rape was committed with the use of a knife, a deadly weapon, the crime is therefore punishable by reclusion perpetua to death. The aggravating circumstance of taking advantage of superior strength stated in the Information cannot increase the imposable penalty to death. Taking advantage of superior strength or abuse of superior strength means to purposely use excessive force out of proportion to the means available to the person attacked.[17] It is abuse of superior numbers or employment of means to weaken the defense.[18] This circumstance is always considered whenever there is notorious inequality of forces between the victim and the aggressor, assuming a situation of superiority notoriously advantageous for the aggressor deliberately chosen by him in the commission of the crime.[19] To properly appreciate it, it is necessary to evaluate not only the physical condition of the parties and the arms or objects employed but the incidents in the total development of the case as well.[20]

That accused-appellant deliberately took advantage of his superior strength by using excessive force on his victim has not been proven. The use of the knife already qualified the rape;[21] and this absorbed the generic aggravating circumstance of abuse of superior strength. Moreover, like the crime of parricide by a husband on his wife,[22] abuse of superior strength is inherent in rape.[23] In 1997, after the instant case, however, Republic Act No. 8353, the Anti-Rape Law of 1997, Section 2, Article 266-A (2) removed the distinction between the sexes in the crime of rape.23 It is generally accepted that under normal circumstances a man who commits rape on a woman is physically stronger than the latter.[24] There being no aggravating or mitigating circumstance in the instant case, the penalty to be imposed should bereclusion perpetua.

IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 90, Cavite City is affirmed insofar as accused-appellant Edgardo de Leon y Santos is found guilty of the crime of rape under Article 335 of the Revised Penal Code, as amended. He is sentenced to suffer the penalty of reclusion perpetua and to indemnify the victim, Amelia de Leon, compensatory damages of P50,000 with an additional P50,000.00 for moral damages.[25]

SO ORDERED.

G.R. No. 206666               January 21, 2015

ATTY. ALICIA RISOS-VIDAL, Petitioner,ALFREDO S. LIM Petitioner-Intervenor, vs.COMMISSION ON ELECTIONS and JOSEPH EJERCITO ESTRADA, Respondents.

D E C I S I O N

LEONARDO-DE CASTRO, J.:

Before the Court are (1) a Petition for Certiorari filed under Rule 64, in relation to Rule 65, both of the Revised Rules of Court, by Atty. Alicia Risos-Vidal (Risos-Vidal), which essentially prays for the issuance of the writ of certiorari annulling and setting aside the April 1, 20131 and April 23, 20132 Resolutions of the Commission on Elections (COMELEC), Second Division and En bane, respectively, in SPA No. 13-211 (DC), entitled "Atty. Alicia Risos-Vidal v. Joseph Ejercito Estrada" for having been rendered with grave abuse of discretion amounting to lack or excess of jurisdiction; and (2) a Petition-in-Intervention3 filed by Alfredo S. Lim (Lim), wherein he prays to be declared the 2013 winning candidate for Mayor of the City of Manila in view of private respondent former President Joseph Ejercito Estrada’s (former President Estrada) disqualification to run for and hold public office.

The Facts

The salient facts of the case are as follows:

On September 12, 2007, the Sandiganbayan convicted former President Estrada, a former President of the Republic of the Philippines, for the crime of plunder in Criminal Case No. 26558, entitled "People of the Philippines v. Joseph Ejercito Estrada, et al." The dispositive part of the graft court’s decision reads:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered in Criminal Case No. 26558 finding the accused, Former President Joseph Ejercito Estrada, GUILTY beyond reasonable doubt of the crime of PLUNDER, defined in and penalized by Republic Act No. 7080, as amended. On the other hand, for failure of the prosecution to prove and establish their guilt beyond reasonable doubt, the Court finds the accused Jose "Jinggoy" Estrada and Atty. Edward S. Serapio NOT GUILTY of the crime of plunder, and accordingly, the Court hereby orders their ACQUITTAL.

The penalty imposable for the crime of plunder under Republic Act No. 7080, as amended by Republic Act No. 7659, is Reclusion Perpetua to Death. There being no aggravating or mitigating circumstances, however, the lesser penalty shall be applied in accordance with Article 63 of the Revised Penal Code. Accordingly, the accused Former President Joseph Ejercito Estrada is hereby sentenced to suffer the penalty of Reclusion Perpetua and the accessory penalties of civil interdiction during the period of sentence and perpetual absolute disqualification.

The period within which accused Former President Joseph Ejercito Estrada has been under detention shall be credited to him in full as long as he agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners.

Moreover, in accordance with Section 2 of Republic Act No. 7080, as amended by Republic Act No. 7659, the Court hereby declares the forfeiture in favor of the government of the following:

(1) The total amount of Five Hundred Forty[-]Two Million Seven Hundred Ninety[-]One Thousand Pesos (P545,291,000.00), with

interest and income earned, inclusive of the amount of Two Hundred Million Pesos (P200,000,000.00), deposited in the name and account of the Erap Muslim Youth Foundation.

(2) The amount of One Hundred Eighty[-]Nine Million Pesos (P189,000,000.00), inclusive of interests and income earned, deposited in the Jose Velarde account.

(3) The real property consisting of a house and lot dubbed as "Boracay Mansion" located at #100 11th Street, New Manila, Quezon City.

The cash bonds posted by accused Jose "Jinggoy" Estrada and Atty. Edward S. Serapio are hereby ordered cancelled and released to the said accused or their duly authorized representatives upon presentation of the original receipt evidencing payment thereof and subject to the usual accounting and auditing procedures. Likewise, the hold-departure orders issued against the said accused are hereby recalled and declared functus oficio.4

On October 25, 2007, however, former President Gloria Macapagal Arroyo (former President Arroyo) extended executive clemency, by way of pardon, to former President Estrada. The full text of said pardon states:

MALACAÑAN PALACEMANILA

By the President of the Philippines

PARDON

WHEREAS, this Administration has a policy of releasing inmates who have reached the age of seventy (70),

WHEREAS, Joseph Ejercito Estrada has been under detention for six and a half years,

WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office,

IN VIEW HEREOF and pursuant to the authority conferred upon me by the Constitution, I hereby grant executive clemency to JOSEPH EJERCITO ESTRADA, convicted by the Sandiganbayan of Plunder and imposed a penalty of Reclusion Perpetua. He is hereby restored to his civil and political rights.

The forfeitures imposed by the Sandiganbayan remain in force and in full, including all writs and processes issued by the Sandiganbayan in pursuance hereof, except for the bank account(s) he owned before his tenure as President.

Upon acceptance of this pardon by JOSEPH EJERCITO ESTRADA, this pardon shall take effect.

Given under my hand at the City of Manila, this 25th Day of October, in the year of Our Lord, two thousand and seven.

Gloria M. Arroyo (sgd.)

By the President:

IGNACIO R. BUNYE (sgd.)Acting Executive Secretary5

On October 26, 2007, at 3:35 p.m., former President Estrada "received and accepted"6 the pardon by affixing his signature beside his handwritten notation thereon.

On November 30, 2009, former President Estrada filed a Certificate of Candidacy7 for the position of President. During that time, his candidacy earned three oppositions in the COMELEC: (1) SPA No. 09-024 (DC), a "Petition to Deny Due Course and Cancel Certificate of Candidacy" filed by Rev. Elly Velez B. Lao Pamatong, ESQ; (2) SPA No. 09-028 (DC), a petition for "Disqualification as Presidential Candidate" filed by Evilio C. Pormento (Pormento); and (3) SPA No. 09-104 (DC), a "Petition to Disqualify Estrada Ejercito, Joseph M.from Running as President due to Constitutional Disqualification and Creating Confusion to the Prejudice of Estrada, Mary Lou B" filed by Mary Lou Estrada. In separate Resolutions8 dated January 20, 2010 by the COMELEC, Second Division, however, all three petitions were effectively dismissed on the uniform grounds that (i) the Constitutional proscription on reelection applies to a sitting president; and (ii) the pardon granted to former President Estrada by former President Arroyo restored the former’s right to vote and be voted for a public office. The subsequent motions for reconsideration thereto were denied by the COMELEC En banc.

After the conduct of the May 10, 2010 synchronized elections, however, former President Estrada only managed to garner the second highest number of votes.

Of the three petitioners above-mentioned, only Pormento sought recourse to this Court and filed a petition for certiorari, which was docketed as G.R. No. 191988, entitled "Atty. Evilio C. Pormento v. Joseph ‘ERAP’ Ejercito Estrada and Commission on Elections." But in a Resolution9 dated August 31, 2010, the Court dismissed the aforementioned petition on the ground of mootness considering that former President Estrada lost his presidential bid.

On October 2, 2012, former President Estrada once more ventured into the political arena, and filed a Certificate of Candidacy,10 this time vying for a local elective post, that ofthe Mayor of the City of Manila.

On January 24, 2013, Risos-Vidal, the petitioner in this case, filed a Petition for Disqualification against former President Estrada before the COMELEC. The petition was docketed as SPA No. 13-211 (DC). Risos Vidal anchored her petition on the theory that "[Former President Estrada] is Disqualified to Run for Public Office because of his Conviction for Plunder by the Sandiganbayan in Criminal Case No. 26558 entitled ‘People of the Philippines vs. Joseph Ejercito Estrada’ Sentencing Him to Suffer the Penalty of Reclusion Perpetuawith Perpetual Absolute Disqualification."11 She relied on Section 40 of the Local Government Code (LGC), in relation to Section 12 of the Omnibus Election Code (OEC), which state respectively, that:

Sec. 40, Local Government Code:

SECTION 40. Disqualifications.- The following persons are disqualified from running for any elective local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; (b) Those removed from office as a result of an administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or nonpolitical cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and

(g) The insane or feeble minded. (Emphasis supplied.)

Sec. 12, Omnibus Election Code:

Section 12. Disqualifications. - Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgmentfor subversion, insurrection, rebellion, or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any public office, unless he has been given plenary pardon or granted amnesty. (Emphases supplied.)

In a Resolution dated April 1, 2013,the COMELEC, Second Division, dismissed the petition for disqualification, the fallo of which reads:

WHEREFORE, premises considered, the instant petition is hereby DISMISSED for utter lack of merit.12

The COMELEC, Second Division, opined that "[h]aving taken judicial cognizance of the consolidated resolution for SPA No. 09-028 (DC) and SPA No. 09-104 (DC) and the 10 May 2010 En Banc resolution affirming it, this Commission will not be labor the controversy further. Moreso, [Risos-Vidal] failed to present cogent proof sufficient to reverse the standing pronouncement of this Commission declaring categorically that [former President Estrada’s] right to seek public office has been effectively restored by the pardon vested upon him by former President Gloria M. Arroyo. Since this Commission has already spoken, it will no longer engage in disquisitions of a settled matter lest indulged in wastage of government resources."13

The subsequent motion for reconsideration filed by Risos-Vidal was denied in a Resolution dated April 23, 2013.

On April 30, 2013, Risos-Vidal invoked the Court’s jurisdiction by filing the present petition. She presented five issues for the Court’s resolution, to wit:

I. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN HOLDING THAT RESPONDENT ESTRADA’S PARDON WAS NOT CONDITIONAL;

II. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN NOT FINDING THAT RESPONDENT ESTRADA IS DISQUALIFIED TO RUN AS MAYOR OF MANILA UNDER SEC. 40 OF THE LOCAL GOVERNMENTCODE OF 1991 FOR HAVING BEEN CONVICTED OF PLUNDER, AN OFFENSE INVOLVING MORAL TURPITUDE;

III. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN DISMISSING THE PETITION FOR DISQUALIFICATION ON THE GROUND THAT THE CASE INVOLVES THE SAME OR SIMILAR ISSUES IT ALREADY RESOLVED IN THE CASES OF "PORMENTO VS. ESTRADA", SPA NO. 09-028 (DC) AND IN "RE: PETITION TO DISQUALIFY ESTRADA EJERCITO, JOSEPH M. FROM RUNNING AS PRESIDENT, ETC.," SPA NO. 09-104 (DC);

IV. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN NOT RULING THAT RESPONDENT ESTRADA’S PARDON NEITHER RESTORED HIS RIGHT OF SUFFRAGE NOR REMITTED HIS PERPETUAL ABSOLUTE DISQUALIFICATION FROM SEEKING PUBLIC OFFICE; and

V. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN NOT HAVING EXERCISED ITS POWER TO MOTU PROPRIO DISQUALIFY RESPONDENT ESTRADA IN THE FACE OF HIS PATENT DISQUALIFICATION TO RUN FOR PUBLIC OFFICE BECAUSE OF HIS PERPETUAL AND ABSOLUTE DISQUALIFICATION TO SEEK PUBLIC OFFICE AND TO VOTE RESULTING FROM HIS CRIMINAL CONVICTION FOR PLUNDER.14

While this case was pending beforethe Court, or on May 13, 2013, the elections were conducted as scheduled and former President Estrada was voted into office with 349,770 votes cast in his favor. The next day, the local board of canvassers proclaimed him as the duly elected Mayor of the City of Manila.

On June 7, 2013, Lim, one of former President Estrada’s opponents for the position of Mayor, moved for leave to intervene in this case. His motion was granted by the Court in a Resolution15 dated June 25, 2013. Lim subscribed to Risos-Vidal’s theory that former President Estrada is disqualified to run for and hold public office as the pardon granted to the latter failed to expressly remit his perpetual disqualification. Further, given that former President Estrada is disqualified to run for and hold public office, all the votes obtained by the latter should be declared stray, and, being the second placer with 313,764 votes to his name, he (Lim) should be declared the rightful winning candidate for the position of Mayor of the City of Manila.

The Issue

Though raising five seemingly separate issues for resolution, the petition filed by Risos-Vidal actually presents only one essential question for resolution by the Court, that is, whether or not the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in ruling that former President Estrada is qualified to vote and be voted for in public office as a result of the pardon granted to him by former President Arroyo.

In her petition, Risos-Vidal starts her discussion by pointing out that the pardon granted to former President Estrada was conditional as evidenced by the latter’s express acceptance thereof. The "acceptance," she claims, is an indication of the conditional natureof the pardon, with the condition being embodied in the third Whereas Clause of the pardon, i.e., "WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office." She explains that the aforementioned commitment was what impelled former President Arroyo to pardon former President Estrada, without it, the clemency would not have been extended. And any breach thereof, that is, whenformer President Estrada filed his Certificate of Candidacy for President and Mayor of the City of Manila, he breached the condition of the pardon; hence, "he ought to be recommitted to prison to serve the unexpired portion of his sentence x x x and disqualifies him as a candidate for the mayoralty [position] of Manila."16

Nonetheless, Risos-Vidal clarifies that the fundamental basis upon which former President Estrada mustbe disqualified from running for and holding public elective office is actually the proscription found in Section 40 of the LGC, in relation to Section 12 ofthe OEC. She argues that the crime of plunder is both an offense punishable by imprisonment of one year or more and involving moral turpitude; such that former President Estrada must be disqualified to run for and hold public elective office.

Even with the pardon granted to former President Estrada, however, Risos-Vidal insists that the same did not operate to make available to former President Estrada the exception provided under Section 12 of the OEC, the pardon being merely conditional and not absolute or plenary. Moreover, Risos-Vidal puts a premium on the ostensible requirements provided under Articles 36 and 41 of the Revised Penal Code, to wit:

ART. 36. Pardon; its effects.– A pardon shall not work the restoration of the right to hold publicoffice, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence.

x x x x

ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties.– The penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. (Emphases supplied.)

She avers that in view of the foregoing provisions of law, it is not enough that a pardon makes a general statement that such pardon carries with it the restoration of civil and political rights. By virtue of Articles 36 and 41, a pardon restoring civil and political rights without categorically making mention what specific civil and political rights are restored "shall not work to restore the right to hold public office, or the right of suffrage; nor shall it remit the accessory penalties of civil interdiction and perpetual absolute disqualification for the principal penalties of reclusion perpetua and reclusion temporal."17 In other words, she considers the above constraints as

mandatory requirements that shun a general or implied restoration of civil and political rights in pardons.

Risos-Vidal cites the concurring opinions of Associate Justices Teodoro R. Padilla and Florentino P. Feliciano in Monsanto v. Factoran, Jr.18 to endorse her position that "[t]he restoration of the right to hold public office to one who has lost such right by reason of conviction in a criminal case, but subsequently pardoned, cannot be left to inference, no matter how intensely arguable, but must be statedin express, explicit, positive and specific language."

Applying Monsantoto former President Estrada’s case, Risos-Vidal reckons that "such express restoration is further demanded by the existence of the condition in the [third] [W]hereas [C]lause of the pardon x x x indubitably indicating that the privilege to hold public office was not restored to him."19

On the other hand, the Office ofthe Solicitor General (OSG) for public respondent COMELEC, maintains that "the issue of whether or not the pardon extended to [former President Estrada] restored his right to run for public office had already been passed upon by public respondent COMELEC way back in 2010 via its rulings in SPA Nos. 09-024, 09-028 and 09-104, there is no cogent reason for it to reverse its standing pronouncement and declare [former President Estrada] disqualified to run and be voted as mayor of the City of Manila in the absence of any new argument that would warrant its reversal. To be sure, public respondent COMELEC correctly exercised its discretion in taking judicial cognizance of the aforesaid rulings which are known toit and which can be verified from its own records, in accordance with Section 2, Rule 129 of the Rules of Court on the courts’ discretionary power to take judicial notice of matters which are of public knowledge, orare capable of unquestionable demonstration, or ought to be known to them because of their judicial functions."20

Further, the OSG contends that "[w]hile at first glance, it is apparent that [former President Estrada’s] conviction for plunder disqualifies him from running as mayor of Manila under Section 40 of the [LGC], the subsequent grant of pardon to him, however, effectively restored his right to run for any public office."21 The restoration of his right to run for any public office is the exception to the prohibition under Section 40 of the LGC, as provided under Section 12 of the OEC. As to the seeming requirement of Articles 36 and 41 of the Revised Penal Code, i.e., the express restoration/remission of a particular right to be stated in the pardon, the OSG asserts that "an airtight and rigid interpretation of Article 36 and Article 41 of the [RPC] x x x would be stretching too much the clear and plain meaning of the aforesaid provisions."22 Lastly, taking into consideration the third Whereas Clause of the pardon granted to former President Estrada, the OSG supports the position that it "is not an integral part of the decree of the pardon and cannot therefore serve to restrict its effectivity."23

Thus, the OSG concludes that the "COMELEC did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed Resolutions."24

For his part, former President Estrada presents the following significant arguments to defend his stay in office: that "the factual findings of public respondent COMELEC, the Constitutional body mandated to administer and enforce all laws relative to the conduct of the elections, [relative to the

absoluteness of the pardon, the effects thereof, and the eligibility of former President Estrada to seek public elective office] are binding [and conclusive] on this Honorable Supreme Court;" that he "was granted an absolute pardon and thereby restored to his full civil and political rights, including the right to seek public elective office such as the mayoral (sic) position in the City of Manila;" that "the majority decision in the case of Salvacion A. Monsanto v. Fulgencio S. Factoran, Jr.,which was erroneously cited by both Vidal and Lim as authority for their respective claims, x x x reveal that there was no discussion whatsoever in the ratio decidendi of the Monsanto case as to the alleged necessity for an expressed restoration of the ‘right to hold public office in the pardon’ as a legal prerequisite to remove the subject perpetual special disqualification;" that moreover, the "principal question raised in this Monsanto case is whether or not a public officer, who has been granted an absolute pardon by the Chief Executive, is entitled to reinstatement toher former position without need of a new appointment;" that his "expressed acceptance [of the pardon] is not proof that the pardon extended to [him] is conditional and not absolute;" that this case is a mere rehash of the casesfiled against him during his candidacy for President back in 2009-2010; that Articles 36 and 41 of the Revised Penal Code "cannot abridge or diminish the pardoning power of the President expressly granted by the Constitution;" that the text of the pardon granted to him substantially, if not fully, complied with the requirement posed by Article 36 of the Revised Penal Code as it was categorically stated in the said document that he was "restored to his civil and political rights;" that since pardon is an act of grace, it must be construed favorably in favor of the grantee;25 and that his disqualification will result in massive disenfranchisement of the hundreds of thousands of Manileños who voted for him.26

The Court's Ruling

The petition for certiorari lacks merit.

Former President Estrada was granted an absolute pardon that fully restored allhis civil and political rights, which naturally includes the right to seek public elective office, the focal point of this controversy. The wording of the pardon extended to former President Estrada is complete, unambiguous, and unqualified. It is likewise unfettered by Articles 36 and 41 of the Revised Penal Code. The only reasonable, objective, and constitutional interpretation of the language of the pardon is that the same in fact conforms to Articles 36 and 41 of the Revised Penal Code. Recall that the petition for disqualification filed by Risos-Vidal against former President Estrada, docketed as SPA No. 13-211 (DC), was anchored on Section 40 of the LGC, in relation to Section 12 of the OEC, that is, having been convicted of a crime punishable by imprisonment of one year or more, and involving moral turpitude, former President Estrada must be disqualified to run for and hold public elective office notwithstanding the fact that he is a grantee of a pardon that includes a statement expressing "[h]e is hereby restored to his civil and political rights." Risos-Vidal theorizes that former President Estrada is disqualified from running for Mayor of Manila inthe May 13, 2013 Elections, and remains disqualified to hold any local elective post despite the presidential pardon extended to him in 2007 by former President Arroyo for the reason that it (pardon) did not expressly provide for the remission of the penalty of perpetual absolute disqualification, particularly the restoration of his (former President Estrada) right to vote and bevoted upon for public office. She invokes Articles 36 and 41 of the Revised Penal Code as the foundations of her theory.

It is insisted that, since a textual examination of the pardon given to and accepted by former President Estrada does not actually specify which political right is restored, it could be inferred that former President Arroyo did not deliberately intend to restore former President Estrada’s rights of suffrage and to hold public office, orto otherwise remit the penalty of perpetual absolute disqualification. Even if her intention was the contrary, the same cannot be upheld based on the pardon’s text.

The pardoning power of the President cannot be limited by legislative action.

The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article IX-C, provides that the President of the Philippines possesses the power to grant pardons, along with other acts of executive clemency, to wit:

Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.

x x x x

Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations shall be granted by the President without the favorable recommendation of the Commission.

It is apparent from the foregoing constitutional provisions that the only instances in which the President may not extend pardon remain to be in: (1) impeachment cases; (2) cases that have not yet resulted in a final conviction; and (3) cases involving violations of election laws, rules and regulations in which there was no favorable recommendation coming from the COMELEC. Therefore, it can be argued that any act of Congress by way of statute cannot operate to delimit the pardoning power of the President.

In Cristobal v. Labrador27 and Pelobello v. Palatino,28 which were decided under the 1935 Constitution,wherein the provision granting pardoning power to the President shared similar phraseology with what is found in the present 1987 Constitution, the Court then unequivocally declared that "subject to the limitations imposed by the Constitution, the pardoning power cannot be restricted or controlled by legislative action." The Court reiterated this pronouncement in Monsanto v. Factoran, Jr.29thereby establishing that, under the present Constitution, "a pardon, being a presidential prerogative, should not be circumscribed by legislative action." Thus, it is unmistakably the long-standing position of this Court that the exercise of the pardoning power is discretionary in the President and may not be interfered with by Congress or the Court, except only when it exceeds the limits provided for by the Constitution.

This doctrine of non-diminution or non-impairment of the President’s power of pardon by acts of Congress, specifically through legislation, was strongly adhered to by an overwhelming majority of the framers of the 1987 Constitution when they flatly rejected a proposal to carve out an exception from the pardoning power of the President in the form of "offenses involving graft and corruption" that would be enumerated and defined by Congress

through the enactment of a law. The following is the pertinent portion lifted from the Record of the Commission (Vol. II):

MR. ROMULO. I ask that Commissioner Tan be recognized to introduce an amendment on the same section.

THE PRESIDENT. Commissioner Tan is recognized.

SR. TAN. Madam President, lines 7 to 9 state:

However, the power to grant executive clemency for violations of corrupt practices laws may be limited by legislation.

I suggest that this be deletedon the grounds that, first, violations of corrupt practices may include a very little offense like stealing P10; second, which I think is more important, I get the impression, rightly or wrongly, that subconsciously we are drafting a constitution on the premise that all our future Presidents will bebad and dishonest and, consequently, their acts will be lacking in wisdom. Therefore, this Article seems to contribute towards the creation of an anti-President Constitution or a President with vast responsibilities but no corresponding power except to declare martial law. Therefore, I request that these lines be deleted.

MR. REGALADO. Madam President,may the Committee react to that?

THE PRESIDENT. Yes, please.

MR. REGALADO. This was inserted here on the resolution of Commissioner Davide because of the fact that similar to the provisions on the Commission on Elections, the recommendation of that Commission is required before executive clemency isgranted because violations of the election laws go into the very political life of the country.

With respect to violations of our Corrupt Practices Law, we felt that it is also necessary to have that subjected to the same condition because violation of our Corrupt Practices Law may be of such magnitude as to affect the very economic systemof the country. Nevertheless, as a compromise, we provided here that it will be the Congress that will provide for the classification as to which convictions will still require prior recommendation; after all, the Congress could take into account whether or not the violation of the Corrupt Practices Law is of such magnitude as to affect the economic life of the country, if it is in the millions or billions of dollars. But I assume the Congress in its collective wisdom will exclude those petty crimes of corruption as not to require any further stricture on the exercise of executive clemency because, of course, there is a whale of a difference if we consider a lowly clerk committing malversation of government property or funds involving one hundred pesos. But then, we also anticipate the possibility that the corrupt practice of a public officer is of such magnitude as to have virtually drained a substantial portion of the treasury, and then he goes through all the judicial processes and later on, a President who may have close connections with him or out of improvident compassion may grant clemency under such conditions. That is why we left it to Congress to provide and make a classification based on substantial distinctions between a minor act of corruption or an act of substantial proportions. SR. TAN. So, why do we not just insert the word GROSS or GRAVE before the word "violations"?

MR. REGALADO. We feel that Congress can make a better distinction because "GRAVE" or "GROSS" can be misconstrued by putting it purely as a policy.

MR. RODRIGO. Madam President.

THE PRESIDENT. Commissioner Rodrigo is recognized.

MR. RODRIGO. May I speak in favor of the proposed amendment?

THE PRESIDENT. Please proceed.

MR. RODRIGO. The power to grant executive clemency is essentially an executive power, and that is precisely why it is called executive clemency. In this sentence, which the amendment seeks to delete, an exception is being made. Congress, which is the legislative arm, is allowed to intrude into this prerogative of the executive. Then it limits the power of Congress to subtract from this prerogative of the President to grant executive clemency by limiting the power of Congress to only corrupt practices laws. There are many other crimes more serious than these. Under this amendment, Congress cannot limit the power of executive clemency in cases of drug addiction and drug pushing which are very, very serious crimes that can endanger the State; also, rape with murder, kidnapping and treason. Aside from the fact that it is a derogation of the power of the President to grant executive clemency, it is also defective in that it singles out just one kind of crime. There are far more serious crimes which are not included.

MR. REGALADO. I will just make one observation on that. We admit that the pardoning power is anexecutive power. But even in the provisions on the COMELEC, one will notice that constitutionally, it is required that there be a favorable recommendation by the Commission on Elections for any violation of election laws.

At any rate, Commissioner Davide, as the principal proponent of that and as a member of the Committee, has explained in the committee meetings we had why he sought the inclusion of this particular provision. May we call on Commissioner Davide to state his position.

MR. DAVIDE. Madam President.

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. I am constrained to rise to object to the proposal. We have just approved the Article on Accountability of Public Officers. Under it, it is mandated that a public office is a public trust, and all government officers are under obligation to observe the utmost of responsibility, integrity, loyalty and efficiency, to lead modest lives and to act with patriotism and justice.

In all cases, therefore, which would go into the verycore of the concept that a public office is a public trust, the violation is itself a violation not only of the economy but the moral fabric of public officials. And that is the reason we now want that if there is any conviction for the violation of the Anti-Graft and Corrupt Practices Act, which, in effect, is a violation of the public trust character of the public office, no pardon shall be extended to the offender, unless some limitations are imposed.

Originally, my limitation was, it should be with the concurrence of the convicting court, but the Committee left it entirely to the legislature to formulate the mechanics at trying, probably, to distinguish between grave and less grave or serious cases of violation of the Anti-Graft and Corrupt Practices Act. Perhaps this is now the best time, since we have strengthened the Article on Accountability of Public Officers, to accompany it with a mandate that the President’s right to grant executive clemency for offenders or violators of laws relating to the concept of a public office may be limited by Congress itself.

MR. SARMIENTO. Madam President.

THE PRESIDENT. Commissioner Sarmiento is recognized.

MR. SARMIENTO. May I briefly speak in favor of the amendment by deletion.

Madam President, over and over again, we have been saying and arguing before this Constitutional Commission that we are emasculating the powers of the presidency, and this provision to me is another clear example of that. So, I speak against this provision. Even the 1935 and the 1973 Constitutions do not provide for this kind of provision.

I am supporting the amendment by deletion of Commissioner Tan.

MR. ROMULO. Commissioner Tingson would like to be recognized.

THE PRESIDENT. Commissioner Tingson is recognized.

MR. TINGSON. Madam President, I am also in favor of the amendment by deletion because I am in sympathy with the stand of Commissioner Francisco "Soc" Rodrigo. I do believe and we should remember that above all the elected or appointed officers of our Republic, the leader is the President. I believe that the country will be as the President is, and if we systematically emasculate the power of this presidency, the time may come whenhe will be also handcuffed that he will no longer be able to act like he should be acting.

So, Madam President, I am in favor of the deletion of this particular line.

MR. ROMULO. Commissioner Colayco would like to be recognized.

THE PRESIDENT. Commissioner Colayco is recognized.

MR. COLAYCO. Thank you very much, Madam President.

I seldom rise here to object to or to commend or to recommend the approval of proposals, but now I find that the proposal of Commissioner Tan is worthy of approval of this body.

Why are we singling out this particular offense? There are other crimes which cast a bigger blot on the moral character of the public officials.

Finally, this body should not be the first one to limit the almost absolute power of our Chief Executive in deciding whether to pardon, to reprieve or to commute the sentence rendered by the court.

I thank you.

THE PRESIDENT. Are we ready to vote now?

MR. ROMULO. Commissioner Padilla would like to be recognized, and after him will be Commissioner Natividad.

THE PRESIDENT. Commissioner Padilla is recognized.

MR. PADILLA. Only one sentence, Madam President. The Sandiganbayan has been called the Anti-Graft Court, so if this is allowed to stay, it would mean that the President’s power togrant pardon or reprieve will be limited to the cases decided by the Anti-Graft Court, when as already stated, there are many provisions inthe Revised Penal Code that penalize more serious offenses.

Moreover, when there is a judgment of conviction and the case merits the consideration of the exercise of executive clemency, usually under Article V of the Revised Penal Code the judge will recommend such exercise of clemency. And so, I am in favor of the amendment proposed by Commissioner Tan for the deletion of this last sentence in Section 17.

THE PRESIDENT. Are we ready to vote now, Mr. Floor Leader?

MR. NATIVIDAD. Just one more.

THE PRESIDENT. Commissioner Natividad is recognized.

MR. NATIVIDAD. I am also against this provision which will again chip more powers from the President. In case of other criminals convicted in our society, we extend probation to them while in this case, they have already been convicted and we offer mercy. The only way we can offer mercy to them is through this executive clemency extended to them by the President. If we still close this avenue to them, they would be prejudiced even worse than the murderers and the more vicious killers in our society. I do not think they deserve this opprobrium and punishment under the new Constitution.

I am in favor of the proposed amendment of Commissioner Tan.

MR. ROMULO. We are ready tovote, Madam President.

THE PRESIDENT. Is this accepted by the Committee?

MR. REGALADO. The Committee, Madam President, prefers to submit this to the floor and also because of the objection of the main proponent, Commissioner Davide. So we feel that the Commissioners should vote on this question.

VOTING

THE PRESIDENT. As many as are in favor of the proposed amendment of Commissioner Tan to delete the last sentence of Section 17 appearing on lines 7, 8 and 9, please raise their hand. (Several Members raised their hand.)

As many as are against, please raise their hand. (Few Members raised their hand.)

The results show 34 votes in favor and 4 votes against; the amendment is approved.30 (Emphases supplied.)

The proper interpretation of Articles

36 and 41 of the Revised Penal Code.

The foregoing pronouncements solidify the thesis that Articles 36 and 41 of the Revised Penal Code cannot, in any way, serve to abridge or diminish the exclusive power and prerogative of the President to pardon persons convicted of violating penal statutes.

The Court cannot subscribe to Risos-Vidal’s interpretation that the said Articles contain specific textual commands which must be strictly followed in order to free the beneficiary of presidential grace from the disqualifications specifically prescribed by them.

Again, Articles 36 and 41 of the Revised Penal Code provides:

ART. 36. Pardon; its effects.– A pardon shall not work the restoration of the right to hold publicoffice, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence.

x x x x

ART. 41. Reclusion perpetua and reclusion temporal – Their accessory penalties.– The penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. (Emphases supplied.)

A rigid and inflexible reading of the above provisions of law, as proposed by Risos-Vidal, is unwarranted, especially so if it will defeat or unduly restrict the power of the President to grant executive clemency.

It is well-entrenched in this jurisdiction that where the words of a statute are clear, plain, and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. Verba legis non est recedendum. From the words of a statute there should be no departure.31 It is this Court’s firm view that the phrase in the presidential pardon at issue which declares that former President Estrada "is hereby restored to his civil and political rights" substantially complies with the requirement of express restoration.

The Dissent of Justice Marvic M.V.F. Leonen agreed with Risos Vidal that there was no express remission and/or restoration of the rights of suffrage and/or to hold public office in the pardon granted to former President Estrada, as required by Articles 36 and 41 of the Revised Penal Code.

Justice Leonen posits in his Dissent that the aforementioned codal provisions must be followed by the President, as they do not abridge or diminish the

President’s power to extend clemency. He opines that they do not reduce the coverage of the President’s pardoning power. Particularly, he states:

Articles 36 and 41 refer only to requirements of convention or form. They only provide a procedural prescription. They are not concerned with areas where or the instances when the President may grant pardon; they are only concerned with how he or she is to exercise such power so that no other governmental instrumentality needs to intervene to give it full effect.

All that Articles 36 and 41 do is prescribe that, if the President wishes to include in the pardon the restoration of the rights of suffrage and to hold public office, or the remission of the accessory penalty of perpetual absolute disqualification,he or she should do so expressly. Articles 36 and 41 only ask that the President state his or her intentions clearly, directly, firmly, precisely, and unmistakably. To belabor the point, the President retains the power to make such restoration or remission, subject to a prescription on the manner by which he or she is to state it.32

With due respect, I disagree with the overbroad statement that Congress may dictate as to how the President may exercise his/her power of executive clemency. The form or manner by which the President, or Congress for that matter, should exercise their respective Constitutional powers or prerogatives cannot be interfered with unless it is so provided in the Constitution. This is the essence of the principle of separation of powers deeply ingrained in our system of government which "ordains that each of the three great branches of government has exclusive cognizance of and is supreme in matters falling within its own constitutionally allocated sphere."33Moreso, this fundamental principle must be observed if noncompliance with the form imposed by one branch on a co-equal and coordinate branch will result into the diminution of an exclusive Constitutional prerogative.

For this reason, Articles 36 and 41 of the Revised Penal Code should be construed in a way that will give full effect to the executive clemency granted by the President, instead of indulging in an overly strict interpretation that may serve to impair or diminish the import of the pardon which emanated from the Office of the President and duly signed by the Chief Executive himself/herself. The said codal provisions must be construed to harmonize the power of Congress to define crimes and prescribe the penalties for such crimes and the power of the President to grant executive clemency. All that the said provisions impart is that the pardon of the principal penalty does notcarry with it the remission of the accessory penalties unless the President expressly includes said accessory penalties in the pardon. It still recognizes the Presidential prerogative to grant executive clemency and, specifically, to decide to pardon the principal penalty while excluding its accessory penalties or to pardon both. Thus, Articles 36 and 41 only clarify the effect of the pardon so decided upon by the President on the penalties imposedin accordance with law.

A close scrutiny of the text of the pardon extended to former President Estrada shows that both the principal penalty of reclusion perpetua and its accessory penalties are included in the pardon. The first sentence refers to the executive clemency extended to former President Estrada who was convicted by the Sandiganbayan of plunder and imposed a penalty of reclusion perpetua. The latter is the principal penalty pardoned which relieved him of imprisonment. The sentence that followed, which states that

"(h)e is hereby restored to his civil and political rights," expressly remitted the accessory penalties that attached to the principal penalty of reclusion perpetua. Hence, even if we apply Articles 36 and 41 of the Revised Penal Code, it is indubitable from the textof the pardon that the accessory penalties of civil interdiction and perpetual absolute disqualification were expressly remitted together with the principal penalty of reclusion perpetua.

In this jurisdiction, the right toseek public elective office is recognized by law as falling under the whole gamut of civil and political rights.

Section 5 of Republic Act No. 9225,34 otherwise known as the "Citizenship Retention and Reacquisition Act of 2003," reads as follows:

Section 5. Civil and Political Rights and Liabilities.– Those who retain or reacquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions: (1) Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws;

(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath;

(3) Those appointed to any public office shall subscribe and swear an oath of allegiance to the Republic of the Philippines and its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the country where they took that oath; (4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to engage in such practice; and

(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to, those who:

(a) are candidates for or are occupying any public office in the country of which theyare naturalized citizens; and/or

(b) are in active service as commissioned or non commissioned officers in the armed forces of the country which they are naturalized citizens. (Emphases supplied.)

No less than the International Covenant on Civil and Political Rights, to which the Philippines is a signatory, acknowledges the existence of said right. Article 25(b) of the Convention states: Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions:

x x x x

(b) To vote and to be electedat genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors[.] (Emphasis supplied.)

Recently, in Sobejana-Condon v. Commission on Elections,35 the Court unequivocally referred to the right to seek public elective office as a political right, to wit:

Stated differently, it is an additional qualification for elective office specific only to Filipino citizens who re-acquire their citizenship under Section 3 of R.A. No. 9225. It is the operative act that restores their right to run for public office. The petitioner’s failure to comply there with in accordance with the exact tenor of the law, rendered ineffectual the Declaration of Renunciation of Australian Citizenship she executed on September 18, 2006. As such, she is yet to regain her political right to seek elective office. Unless she executes a sworn renunciation of her Australian citizenship, she is ineligible to run for and hold any elective office in the Philippines. (Emphasis supplied.)

Thus, from both law and jurisprudence, the right to seek public elective office is unequivocally considered as a political right. Hence, the Court reiterates its earlier statement that the pardon granted to former President Estrada admits no other interpretation other than to mean that, upon acceptance of the pardon granted tohim, he regained his FULL civil and political rights – including the right to seek elective office.

On the other hand, the theory of Risos-Vidal goes beyond the plain meaning of said penal provisions; and prescribes a formal requirement that is not only unnecessary but, if insisted upon, could be in derogation of the constitutional prohibition relative to the principle that the exercise of presidential pardon cannot be affected by legislative action.

Risos-Vidal relied heavily on the separate concurring opinions in Monsanto v. Factoran, Jr.36 to justify her argument that an absolute pardon must expressly state that the right to hold public office has been restored, and that the penalty of perpetual absolute disqualification has been remitted.

This is incorrect.

Her reliance on said opinions is utterly misplaced. Although the learned views of Justices Teodoro R. Padilla and Florentino P. Feliciano are to be respected, they do not form partof the controlling doctrine nor to be considered part of the law of the land. On the contrary, a careful reading of the majority opinion in Monsanto, penned by no less than Chief Justice Marcelo B. Fernan, reveals no statement that denotes adherence to a stringent and overly nuanced application of Articles 36 and 41 of the Revised Penal Code that will in effect require the President to use a statutorily prescribed language in extending executive clemency, even if the intent of the President can otherwise be deduced from the text or words used in the pardon. Furthermore, as explained above, the pardon here is consistent with, and not contrary to, the provisions of Articles 36 and 41.

The disqualification of former President Estrada under Section 40 of the LGC in relation to Section 12 of the OEC was removed by his acceptance of the absolute pardon granted to him.

Section 40 of the LGC identifies who are disqualified from running for any elective local position. Risos-Vidal argues that former President Estrada is disqualified under item (a), to wit:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence[.] (Emphasis supplied.)

Likewise, Section 12 of the OEC provides for similar prohibitions, but it provides for an exception, to wit:

Section 12. Disqualifications. – x x x unless he has been given plenary pardon or granted amnesty. (Emphasis supplied.)

As earlier stated, Risos-Vidal maintains that former President Estrada’s conviction for plunder disqualifies him from running for the elective local position of Mayor of the City of Manila under Section 40(a) of the LGC. However, the subsequent absolute pardon granted to former President Estrada effectively restored his right to seek public elective office. This is made possible by reading Section 40(a) of the LGC in relation to Section 12 of the OEC.

While it may be apparent that the proscription in Section 40(a) of the LGC is worded in absolute terms, Section 12 of the OEC provides a legal escape from the prohibition – a plenary pardon or amnesty. In other words, the latter provision allows any person who has been granted plenary pardon or amnesty after conviction by final judgment of an offense involving moral turpitude, inter alia, to run for and hold any public office, whether local or national position.

Take notice that the applicability of Section 12 of the OEC to candidates running for local elective positions is not unprecedented. In Jalosjos, Jr. v. Commission on Elections,37 the Court acknowledged the aforementioned provision as one of the legal remedies that may be availed of to disqualify a candidate in a local election filed any day after the last day for filing of certificates of candidacy, but not later than the date of proclamation.38 The pertinent ruling in the Jalosjos case is quoted as follows:

What is indisputably clear is that false material representation of Jalosjos is a ground for a petition under Section 78. However, since the false material representation arises from a crime penalized by prision mayor, a petition under Section 12 ofthe Omnibus Election Code or Section 40 of the Local Government Code can also be properly filed. The petitioner has a choice whether to anchor his petition on Section 12 or Section 78 of the Omnibus Election Code, or on Section 40 of the Local Government Code. The law expressly provides multiple remedies and the choice of which remedy to adopt belongs to petitioner.39 (Emphasis supplied.)

The third preambular clause of the pardon did not operate to make the pardon conditional.

Contrary to Risos-Vidal’s declaration, the third preambular clause of the pardon, i.e., "[w]hereas, Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office," neither makes the pardon conditional, nor militate against the conclusion that former President

Estrada’s rights to suffrage and to seek public elective office have been restored.

This is especially true as the pardon itself does not explicitly impose a condition or limitation, considering the unqualified use of the term "civil and political rights"as being restored. Jurisprudence educates that a preamble is not an essential part of an act as it is an introductory or preparatory clause that explains the reasons for the enactment, usually introduced by the word "whereas."40 Whereas clauses do not form part of a statute because, strictly speaking, they are not part of the operative language of the statute.41 In this case, the whereas clause at issue is not an integral part of the decree of the pardon, and therefore, does not by itself alone operate to make the pardon conditional or to make its effectivity contingent upon the fulfilment of the aforementioned commitment nor to limit the scope of the pardon.

On this matter, the Court quotes with approval a relevant excerpt of COMELEC Commissioner Maria Gracia Padaca’s separate concurring opinion in the assailed April 1, 2013 Resolution of the COMELEC in SPA No. 13-211 (DC), which captured the essence of the legal effect of preambular paragraphs/whereas clauses, viz:

The present dispute does not raise anything which the 20 January 2010 Resolution did not conclude upon. Here, Petitioner Risos-Vidal raised the same argument with respect to the 3rd "whereas clause" or preambular paragraph of the decree of pardon. It states that "Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office." On this contention, the undersigned reiterates the ruling of the Commission that the 3rd preambular paragraph does not have any legal or binding effect on the absolute nature of the pardon extended by former President Arroyo to herein Respondent. This ruling is consistent with the traditional and customary usage of preambular paragraphs. In the case of Echegaray v. Secretary of Justice, the Supreme Court ruled on the legal effect of preambular paragraphs or whereas clauses on statutes. The Court stated, viz.:

Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its intent or purposes. It cannot be the origin of rights and obligations. Where the meaning of a statute is clear and unambiguous, the preamble can neither expand nor restrict its operation much less prevail over its text.

If former President Arroyo intended for the pardon to be conditional on Respondent’s promise never to seek a public office again, the former ought to have explicitly stated the same in the text of the pardon itself. Since former President Arroyo did not make this an integral part of the decree of pardon, the Commission is constrained to rule that the 3rd preambular clause cannot be interpreted as a condition to the pardon extended to former President Estrada.42 (Emphasis supplied.)

Absent any contrary evidence, former President Arroyo’s silence on former President Estrada’s decision torun for President in the May 2010 elections against, among others, the candidate of the political party of former President Arroyo, after the latter’s receipt and acceptance of the pardon speaks volume of her intention to restore him to his rights to suffrage and to hold public office.

Where the scope and import of the executive clemency extended by the President is in issue, the Court must turn to the only evidence available to it, and that is the pardon itself. From a detailed review ofthe four corners of said document, nothing therein gives an iota of intimation that the third Whereas Clause is actually a limitation, proviso, stipulation or condition on the grant of the pardon, such that the breach of the mentioned commitment not to seek public office will result ina revocation or cancellation of said pardon. To the Court, what it is simply is a statement of fact or the prevailing situation at the time the executive clemency was granted. It was not used as a condition to the efficacy orto delimit the scope of the pardon.

Even if the Court were to subscribe to the view that the third Whereas Clausewas one of the reasons to grant the pardon, the pardon itself does not provide for the attendant consequence of the breach thereof. This Court will be hard put to discern the resultant effect of an eventual infringement. Just like it will be hard put to determine which civil or political rights were restored if the Court were to take the road suggested by Risos-Vidal that the statement "[h]e is hereby restored to his civil and political rights" excludes the restoration of former President Estrada’s rights to suffrage and to hold public office. The aforequoted text ofthe executive clemency granted does not provide the Court with any guide asto how and where to draw the line between the included and excluded political rights.

Justice Leonen emphasizes the point that the ultimate issue for resolution is not whether the pardon is contingent on the condition that former President Estrada will not seek janother elective public office, but it actually concerns the coverage of the pardon – whether the pardon granted to former President Estrada was so expansive as to have restored all his political rights, inclusive of the rights of suffrage and to hold public office. Justice Leonen is of the view that the pardon in question is not absolute nor plenary in scope despite the statement that former President Estrada is "hereby restored to his civil and political rights," that is, the foregoing statement restored to former President Estrada all his civil and political rights except the rights denied to him by the unremitted penalty of perpetual absolute disqualification made up of, among others, the rights of suffrage and to hold public office. He adds that had the President chosen to be so expansive as to include the rights of suffrage and to hold public office, she should have been more clear on her intentions.

However, the statement "[h]e is hereby restored to his civil and political rights," to the mind of the Court, iscrystal clear – the pardon granted to former President Estrada was absolute, meaning, it was not only unconditional, it was unrestricted in scope, complete and plenary in character, as the term "political rights"adverted to has a settled meaning in law and jurisprudence.

With due respect, I disagree too with Justice Leonen that the omission of the qualifying word "full" can be construed as excluding the restoration of the rights of suffrage and to hold public office. There appears to be no distinction as to the coverage of the term "full political rights" and the term "political rights" used alone without any qualification. How to ascribe to the latter term the meaning that it is "partial" and not "full" defies one’s understanding. More so, it will be extremely difficult to identify which of the political rights are restored by the pardon, when the text of the latter is silent on this matter. Exceptions to the grant of pardon cannot be presumed from the

absence of the qualifying word "full" when the pardon restored the "political rights" of former President Estrada without any exclusion or reservation.

Therefore, there can be no other conclusion but to say that the pardon granted to former President Estrada was absolute in the absence of a clear, unequivocal and concrete factual basis upon which to anchor or support the Presidential intent to grant a limited pardon.

To reiterate, insofar as its coverageis concerned, the text of the pardon can withstand close scrutiny even under the provisions of Articles 36 and 41 of the Revised Penal Code.

The COMELEC did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed Resolutions.

In light of the foregoing, contrary to the assertions of Risos-Vidal, the COMELEC did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed Resolutions.

The Court has consistently held that a petition for certiorariagainst actions of the COMELEC is confined only to instances of grave abuse of discretion amounting to patentand substantial denial of due process, because the COMELEC is presumed to be most competent in matters falling within its domain.43

As settled in jurisprudence, grave abuse of discretion is the arbitrary exercise of power due to passion, prejudice or personal hostility; or the whimsical, arbitrary, or capricious exercise of power that amounts to an evasion or refusal to perform a positive duty enjoined by law or to act at all in contemplation of law. For an act to be condemned as having been done with grave abuse of discretion, such an abuse must be patent and gross.44

The arguments forwarded by Risos-Vidal fail to adequately demonstrate any factual or legal bases to prove that the assailed COMELEC Resolutions were issued in a "whimsical, arbitrary or capricious exercise of power that amounts to an evasion orrefusal to perform a positive duty enjoined by law" or were so "patent and gross" as to constitute grave abuse of discretion.

On the foregoing premises and conclusions, this Court finds it unnecessary to separately discuss Lim's petition-in-intervention, which substantially presented the same arguments as Risos-Vidal's petition.

WHEREFORE, the petition for certiorari and petition-inintervention are DISMISSED. The Resolution dated April 1, 2013 of the Commission on Elections, Second Division, and the Resolution dated April 23, 2013 of the Commission on Elections, En bane, both in SPA No. 13-211 (DC), are AFFIRMED.

SO ORDERED.

G.R. Nos. 165510-33             July 28, 2006

BENJAMIN ("KOKOY") T. ROMUALDEZ, petitioner, vs.HON. SIMEON V. MARCELO, in his official capacity as the Ombudsman, and PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, respondents.

R E S O L U T I O N

YNARES-SANTIAGO, J.:

For resolution is petitioner’s Motion for Reconsideration1 assailing the Decision dated September 23, 2005, the dispositive portion of which states:

WHEREFORE, the petition is DISMISSED. The resolutions dated July 12, 2004 and September 6, 2004 of the Office of the Special Prosecutor, are AFFIRMED.

SO ORDERED.2

Petitioner claims that the Office of the Ombudsman gravely abused its discretion in recommending the filing of 24 informations against him for violation of Section 7 of Republic Act (RA) No. 3019 or the Anti-Graft and Corrupt Practices Act; that the Ombudsman cannot revive the aforementioned cases which were previously dismissed by the Sandiganbayan in its Resolution of February 10, 2004; that the defense of prescription may be raised even for the first time on appeal and thus there is no necessity for the presentation of evidence thereon before the court a quo. Thus, this Court may accordingly dismiss Criminal Case Nos. 28031-28049 pending before the Sandiganbayan and Criminal Case Nos. 04-231857–04-231860 pending before the Regional Trial Court of Manila, all on the ground of prescription.

In its Comment,3 the Ombudsman argues that the dismissal of the informations in Criminal Case Nos. 13406-13429 does not mean that petitioner was thereafter exempt from criminal prosecution; that new informations may be filed by the Ombudsman should it find probable cause in the conduct of its preliminary investigation; that the filing of the complaint with the Presidential Commission on Good Government (PCGG) in 1987 and the filing of the information with the Sandiganbayan in 1989 interrupted the prescriptive period; that the absence of the petitioner from the Philippines from 1986 until 2000 also interrupted the aforesaid period based on Article 91 of the Revised Penal Code.

For its part, the PCGG avers in its Comment4 that, in accordance with the 1987 Constitution and RA No. 6770 or the Ombudsman Act of 1989, the Omdudsman need not wait for a new complaint with a new docket number

for it to conduct a preliminary investigation on the alleged offenses of the petitioner; that considering that both RA No. 3019 and Act No. 3326 or the Act To Establish Periods of Prescription For Violations Penalized By Special Acts and Municipal Ordinances and to Provide When Prescription Shall Begin To Run, are silent as to whether prescription should begin to run when the offender is absent from the Philippines, the Revised Penal Code, which answers the same in the negative, should be applied.

The issues for resolution are: (1) whether the preliminary investigation conducted by the Ombudsman in Criminal Case Nos. 13406-13429 was a nullity; and (2) whether the offenses for which petitioner are being charged have already prescribed.

Anent the first issue, we reiterate our ruling in the assailed Decision that the preliminary investigation conducted by the Ombudsman in Criminal Case Nos. 13406-13429 is a valid proceeding despite the previous dismissal thereof by the Sandiganbayan in its Minute Resolution5 dated February 10, 2004 which reads:

Crim. Cases Nos. 13406-13429–PEO. vs. BENJAMIN T. ROMUALDEZ

Considering that the Decision of the Honorable Supreme Court in G.R. Nos. 143618-41, entitled "Benjamin ‘Kokoy’ Romualdez vs. The Honorable Sandiganbayan (First Division, et al.)" promulgated on July 30, 2002 annulled and set aside the orders issued by this Court on June 8, 2000 which, among others, denied the accused’s motion to quash the informations in these cases; that in particular the above-mentioned Decision ruled that the herein informations may be quashed because the officer who filed the same had no authority to do so; and that the said Decision has become final and executory on November 29, 2002, these cases are considered DISMISSED. Let these cases be sent to the archives.

The aforesaid dismissal was effected pursuant to our ruling in Romualdez v. Sandiganbayan6 where petitioner assailed the Sandiganbayan’s Order dated June 8, 2000 in Criminal Case Nos. 13406-13429 which denied his Motion to Quash, terminated the preliminary investigation conducted by Prosecutor Evelyn T. Lucero and set his arraignment for violations of Section 7 of RA No. 3019 on June 26, 2000.7 In annulling and setting aside the aforesaid Order of the Sandiganbayan, we held that:

In the case at bar, the flaw in the information is not a mere remediable defect of form, as in Pecho v. Sandiganbayan where the wording of the certification in the information was found inadequate, or in People v. Marquez, where the required certification was absent. Here, the informations were filed by an unauthorized party. The defect cannot be cured even by conducting another preliminary investigation. An invalid information is no information at all and cannot be the basis for criminal proceedings.8

In effect, we upheld in Romualdez v. Sandiganbayan9 petitioner’s Motion to Quash and directed the dismissal of Criminal Case Nos. 13406-13429 because the informations were filed by an unauthorized party, hence void.

In such a case, Section 6, Rule 117 of the Rules of Court is pertinent and applicable. Thus:

SEC. 6. Order sustaining the motion to quash not a bar to another prosecution; exception. – An order sustaining the motion to quash is not a bar to another prosecution for the same offense unless the motion was based on the grounds specified in section 3(g) and (i)10 of this Rule.

An order sustaining a motion to quash on grounds other than extinction of criminal liability or double jeopardy does not preclude the filing of another information for a crime constituting the same facts. Indeed, we held in Cudia v. Court of Appeals11 that:

In fine, there must have been a valid and sufficient complaint or information in the former prosecution. If, therefore, the complaint or information was insufficient because it was so defective in form or substance that the conviction upon it could not have been sustained, its dismissal without the consent of the accused cannot be pleaded. As the fiscal had no authority to file the information, the dismissal of the first information would not be a bar in petitioner’s subsequent prosecution. x x x.12

Be that as it may, the preliminary investigation conducted by the Ombudsman in the instant cases was not a violation of petitioner’s right to be informed of the charges against him. It is of no moment that the cases investigated by the Ombudsman bore the same docket numbers as those cases which have already been dismissed by the Sandiganbayan, to wit: Criminal Case Nos. 13406-13429. As we have previously stated:

The assignment of a docket number is an internal matter designed for efficient record keeping. It is usually written in the Docket Record in sequential order corresponding to the date and time of filing a case.

This Court agrees that the use of the docket numbers of the dismissed cases was merely for reference. In fact, after the new informations were filed, new docket numbers were assigned, i.e., Criminal Cases Nos. 28031-28049 x x x.13

Besides, regardless of the docket numbers, the Ombudsman conducted the above-referred preliminary investigation pursuant to our Decision in Romualdez v. Sandiganbayan14 when we categorically declared therein that:

The Sandiganbayan also committed grave abuse of discretion when it abruptly terminated the reinvestigation being conducted by Prosecutor Lucero. It should be recalled that our directive in G.R. No. 105248 for the holding of a preliminary investigation was based on our ruling that the right to a preliminary investigation is a substantive, rather than a procedural right. Petitioner’s right was violated when the preliminary investigation of the charges against him were conducted by an officer without jurisdiction over the said cases. It bears stressing that our directive should be strictly complied with in order to achieve its objective of affording petitioner his right to due process.15

Anent the issue on the prescription of the offenses charged, we should first resolve the question of whether this Court may validly take cognizance of and resolve the aforementioned issue considering that as we have said in the assailed Decision, "this case has never progressed beyond the filing of the

informations against the petitioner"16 and that "it is only prudent that evidence be gathered through trial on the merits to determine whether the offense charged has already prescribed."17 We reconsider our stance and shall rule in the affirmative.

Rule 117 of the Rules of Court provides that the accused may, at any time before he enters his plea, move to quash the complaint and information18 on the ground that the criminal action or liability has been extinguished,19 which ground includes the defense of prescription considering that Article 89 of the Revised Penal Code enumerates prescription as one of those grounds which totally extinguishes criminal liability. Indeed, even if there is yet to be a trial on the merits of a criminal case, the accused can very well invoke the defense of prescription.

Thus, the question is whether or not the offenses charged in the subject criminal cases have prescribed? We held in the case of Domingo v. Sandiganbayan20 that:

In resolving the issue of prescription of the offense charged, the following should be considered: (1) the period of prescription for the offense charged; (2) the time the period of prescription starts to run; and (3) the time the prescriptive period was interrupted.21

Petitioner is being charged with violations of Section 7 of RA No. 3019 for failure to file his Statements of Assets and Liabilities for the period 1967-1985 during his tenure as Ambassador Extraordinary and Plenipotentiary and for the period 1963-1966 during his tenure as Technical Assistant in the Department of Foreign Affairs.

Section 11 of RA No. 3019 provides that all offenses punishable therein shall prescribe in 15 years. Significantly, this Court already declared in the case of People v. Pacificador22 that:

It appears however, that prior to the amendment of Section 11 of R.A. No. 3019 by B.P. Blg. 195 which was approved on March 16, 1982, the prescriptive period for offenses punishable under the said statute was only ten (10) years. The longer prescriptive period of fifteen (15) years, as provided in Section 11 of R.A. No. 3019 as amended by B.P. Blg. 195, does not apply in this case for the reason that the amendment, not being favorable to the accused (herein private respondent), cannot be given retroactive effect. Hence, the crime prescribed on January 6, 1986 or ten (10) years from January 6, 1976.23

Thus, for offenses allegedly committed by the petitioner from 1962 up to March 15, 1982, the same shall prescribe in 10 years. On the other hand, for offenses allegedly committed by the petitioner during the period from March 16, 1982 until 1985, the same shall prescribe in 15 years.

As to when these two periods begin to run, reference is made to Act No. 3326 which governs the computation of prescription of offenses defined by and penalized under special laws. Section 2 of Act No. 3326 provides:

SEC. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment.

The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy.

In the case of People v. Duque,24 we construed the aforequoted provision, specifically the rule on the running of the prescriptive period as follows:

In our view, the phrase "institution of judicial proceedings for its investigation and punishment" may be either disregarded as surplusage or should be deemed preceded by the word "until." Thus, Section 2 may be read as:

"Prescription shall begin to run from the day of the commission of the violation of the law; and if the same be not known at the time, from the discovery thereof;"

or as:

"Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and until institution of judicial proceedings for its investigation and punishment." (Emphasis supplied)25

Thus, this Court rules that the prescriptive period of the offenses herein began to run from the discovery thereof or on May 8, 1987, which is the date of the complaint filed by the former Solicitor General Francisco I. Chavez against the petitioner with the PCGG.

In the case of Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto26 this Court already took note that:

In cases involving violations of R.A. No. 3019 committed prior to the February 1986 EDSA Revolution that ousted President Ferdinand E. Marcos, we ruled that the government as the aggrieved party could not have known of the violations at the time the questioned transactions were made. Moreover, no person would have dared to question the legality of those transactions. Thus, the counting of the prescriptive period commenced from the date of discovery of the offense in 1992 after an exhaustive investigation by the Presidential Ad Hoc Committee on Behest Loans.27

However, both respondents in the instant case aver that, applying Article 91 of the Revised Penal Code suppletorily, the absence of the petitioner from the Philippines from 1986 until April 27, 2000 prevented the prescriptive period for the alleged offenses from running.

We disagree.

Section 2 of Act. No. 3326 is conspicuously silent as to whether the absence of the offender from the Philippines bars the running of the prescriptive period. The silence of the law can only be interpreted to mean that Section 2 of Act No. 3326 did not intend such an interruption of the prescription unlike the explicit mandate of Article 91. Thus, as previously held:

Even on the assumption that there is in fact a legislative gap caused by such an omission, neither could the Court presume otherwise and supply the details thereof, because a legislative lacuna cannot be filled by judicial fiat. Indeed, courts may not, in the guise of the interpretation, enlarge the scope of a statute and include therein situations not provided nor intended by the lawmakers. An omission at the time of the enactment, whether careless or calculated, cannot be judicially supplied however after later wisdom may recommend the inclusion. Courts are not authorized to insert into the law what they think should be in it or to supply what they think the legislature would have supplied if its attention has been called to the omission.28

The only matter left to be resolved is whether the filing of the complaint with the PCGG in 1987 as well as the filing of the informations with the Sandiganbayan to initiate Criminal Case Nos. 13406-13429 in 1989 interrupted the running of the prescriptive period such that when the Ombudsman directed petitioner to file his counter-affidavit on March 3, 2004, the offenses have already prescribed.

Under Section 2 of Act No. 3326, the prescriptive period shall be interrupted "when proceedings are instituted against the guilty person." However, there is no such proceeding instituted against the petitioner to warrant the tolling of the prescriptive periods of the offenses charged against him.

In Romualdez v. Sandiganbayan,29 petitioner averred that PCGG acted without jurisdiction and/or grave abuse of discretion in conducting a preliminary investigation of cases not falling within its competence.30 This Court, in its resolve to "deal with the merits of the case to remove the possibility of any misunderstanding as to the course which it wishes petitioner’s cases in the Sandiganbayan to take"31declared invalid –

the preliminary investigation conducted by the PCGG over the 24 offenses ascribed to Romualdez (of failure to file annual statements of assets and liabilities), for lack of jurisdiction of said offenses.32

In Romualdez v. Sandiganbayan,33 petitioner assailed the validity of the informations filed with the Sandiganbayan in Criminal Case Nos. 13406-13429 considering that the same were subscribed and filed by the PCGG. In granting petitioner’s plea, this Court held, thus:

Here, the informations were filed by an unauthorized party. The defect cannot be cured by conducting another preliminary investigation. An invalid information is no information at all and cannot be the basis for criminal proceedings.34

Indeed, the nullity of the proceedings initiated by then Solicitor General Chavez in 1987 with the PCGG and by the PCGG with the Sandiganbayan in 1989 is judicially settled. In contemplation of the law, no proceedings exist that could have merited the suspension of the prescriptive periods.

Besides, the only proceeding that could interrupt the running of prescription is that which is filed or initiated by the offended party before the appropriate body or office. Thus, in the case of People v. Maravilla,35 this Court ruled that the filing of the complaint with the municipal mayor for purposes of preliminary investigation had the effect of suspending the period of prescription. Similarly, in the case of Llenes v. Dicdican,36 this Court held that

the filing of a complaint against a public officer with the Ombudsman tolled the running of the period of prescription.

In the case at bar, however, the complaint was filed with the wrong body, the PCGG. Thus, the same could not have interrupted the running of the prescriptive periods.

However, in his Dissenting Opinion, Mr. Justice Carpio contends that the offenses charged against the petitioner could not have prescribed because the latter was absent from the Philippines from 1986 to April 27, 2000 and thus the prescriptive period did not run from the time of discovery on May 8, 1987, citing Article 91 of the Revised Penal Code which provides that "[t]he term of prescription should not run when the offender is absent from the Philippine Archipelago."

Mr. Justice Carpio argues that –

Article 10 of the same Code makes Article 91 "x x x supplementary to [special laws], unless the latter should x x x provide the contrary." Nothing in RA 3019 prohibits the supplementary application of Article 91 to that law. Hence, applying Article 91, the prescriptive period in Section 11 of RA 3019, before and after its amendment, should run only after petitioner returned to this jurisdiction on 27 April 2000.

There is no gap in the law. Where the special law is silent, Article 10 of the RPC applies suppletorily, as the Court has held in a long line of decisions since 1934, starting with People v. Moreno. Thus, the Court has applied suppletorily various provisions of the RPC to resolve cases where the special laws are silent on the matters in issue. The law on the applicability of Article 10 of the RPC is thus well-settled, with the latest reiteration made by this Court in 2004 in Jao Yu v. People.

He also expresses his apprehension on the possible effects of the ruling of the Majority Opinion and argues that –

The accused should not have the sole discretion of preventing his own prosecution by the simple expedient of escaping from the State’s jurisdiction. x x x An accused cannot acquire legal immunity by being a fugitive from the State’s jurisdiction. x x x.

To allow an accused to prevent his prosecution by simply leaving this jurisdiction unjustifiably tilts the balance of criminal justice in favor of the accused to the detriment of the State’s ability to investigate and prosecute crimes. In this age of cheap and accessible global travel, this Court should not encourage individuals facing investigation or prosecution for violation of special laws to leave Philippine jurisdiction to sit-out abroad the prescriptive period. The majority opinion unfortunately chooses to lay the basis for such anomalous practice.

With all due respect, we beg to disagree.

Article 10 of the Revised Penal Code provides:

ART. 10. Offenses not subject to the provisions of this Code. – Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this Code. This Code shall be

supplementary to such laws, unless the latter should specially provide the contrary.

Pursuant thereto, one may be tempted to hastily conclude that a special law such as RA No. 3019 is supplemented by the Revised Penal Code in any and all cases. As it is, Mr. Justice Carpio stated in his Dissenting Opinion that –

There is no gap in the law. Where the special law is silent, Article 10 of the RPC applies suppletorily, as the Court has held in a long line of decisions since 1934, starting with People v. Moreno. Thus, the Court has applied suppletorily various provisions of the RPC to resolve cases where the special laws are silent on the matters in issue. The law on the applicability of Article 10 of the RPC is thus well-settled, with the latest reiteration made by this Court in 2004 in Jao Yu v. People.

However, it must be pointed out that the suppletory application of the Revised Penal Code to special laws, by virtue of Article 10 thereof, finds relevance only when the provisions of the special law are silent on a particular matteras evident from the cases cited and relied upon in the Dissenting Opinion:

In the case of People v. Moreno,37 this Court, before ruling that the subsidiary penalty under Article 39 of the Revised Penal Code may be applied in cases of violations of Act No. 3992 or the Revised Motor Vehicle Law, noted that the special law did not contain any provision that the defendant can be sentenced with subsidiary imprisonment in case of insolvency.

In the case of People v. Li Wai Cheung,38 this Court applied the rules on the service of sentences provided in Article 70 of the Revised Penal Code in favor of the accused who was found guilty of multiple violations of RA No. 6425 or The Dangerous Drugs Act of 1972 considering the lack of similar rules under the special law.

In the case of People v. Chowdury,39 the Court applied Articles 17, 18 and 19 of the Revised Penal Code to define the words "principal," "accomplices" and "accessories" under RA No. 8042 or the Migrant Workers and Overseas Filipinos Act of 1995 because it was not defined therein although it referred to the same terms in enumerating the persons liable for the crime of illegal recruitment.

In the case at bar, the silence of RA No. 3019 on the question of whether or not the absence of the accused from the Philippines prevents or tolls the running of the prescriptive period is more apparent than real.

Even before the enactment of RA No. 3019 in 1960, Act No. 3326 was already in effect as early as December 4, 1926. Section 3 thereof categorically defines "special acts" as "acts defining and penalizing violations of the law not included in the Penal Code".

Thus, in the case of Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto,40 this Court was categorical in ruling that –

The law on prescription of offenses is found in Articles 90 and 91 of the Revised Penal Code for offenses punishable thereunder. For those penalized under special laws, Act No. 3326 applies.

Section 2 of Act No. 3326 provides that the prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment. The running of the prescriptive period shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy. Clearly, Section 2 of Act No. 3326 did not provide that the absence of the accused from the Philippines prevents the running of the prescriptive period. Thus, the only inference that can be gathered from the foregoing is that the legislature, in enacting Act No. 3326, did not consider the absence of the accused from the Philippines as a hindrance to the running of the prescriptive period. Expressio unius est exclusio alterius. To elaborate, -

Indeed, it is an elementary rule of statutory construction that the express mention of one person, thing, act, or consequence excludes all others. This rule is expressed in the familiar maxim "expressio unius est exclusio alterius." Where a statute, by its terms, is expressly limited to certain matters, it may not, by interpretation or construction, be extended to others. The rule proceeds from the premise that the legislature would not have made specified enumerations in a statute had the intention been not to restrict its meaning and to confine its terms to those expressly mentioned.41

Had the legislature intended to include the accused’s absence from the Philippines as a ground for the interruption of the prescriptive period in special laws, the same could have been expressly provided in Act No. 3326. A case in point is RA No. 8424 or the Tax Reform Act of 1997 where the legislature made its intention clear and was thus categorical that –

SEC. 281. Prescription for Violations of any Provision of this Code – All violations of any provision of this Code shall prescribe after five (5) years.

Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment.

The prescription shall be interrupted when proceedings are instituted against the guilty persons and shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy.

The term of prescription shall not run when the offender is absent from the Philippines. (Emphasis supplied)

According to Mr. Justice Carpio, Article 91 of the Revised Penal Code fills the so-called "gap" in Act No. 3326. Thus, while Act No. 3326 governs the operation of the prescriptive period for violations of R.A. No. 3019, Article 91 of the Revised Penal Code can and shall still be applied in cases where the accused is absent from the Philippines. In effect, Article 91 would supplement Act No. 3326.

This could not have been the intention of the framers of the law.

While it is true that Article 10 of the Revised Penal Code makes the Code suppletory to special laws, however, Act No. 3326 cannot fall within the ambit of "special law" as contemplated and used in Article 10 of the RPC.

In the case of United States v. Serapio,42 the Court had the occasion to interpret the term "special laws" mentioned in Article 7 of then Penal Code of the Philippines, which is now Article 10 of the Revised Penal Code, as referring to penal laws that punish acts not defined and penalized by the Penal Code of the Philippines. Thus –

This contention makes it necessary to define "special laws," as that phrase is used in article 7 of the Penal Code. Does this phrase "leyes especiales," as used in the Penal Code (article 7) have the meaning applied to the phrase "special laws," as the same is generally used? x x x It is confidently contended that the phrase "leyes especiales," as used in the Penal Code (article 7) is not used with this general signification: In fact, said phrase may refer not to a special law as above defined, but to a general law. A careful reading of said article 7 clearly indicates that the phrase "leyes especiales" was not used to signify "special laws" in the general signification of that phrase. The article, it will be noted, simply says, in effect, that when a crime is made punishable under some other law than the Penal Code, it (the crime) is not subject to the provisions of said code.43

Even if we consider both Act No. 3326 and Article 91 as supplements to RA No. 3019, the same result would obtain. A conflict will arise from the contemporaneous application of the two laws. The Revised Penal Code explicitly states that the absence of the accused from the Philippines shall be a ground for the tolling of the prescriptive period while Act No. 3326 does not. In such a situation, Act No. 3326 must prevail over Article 91 because it specifically and directly applies to special laws while the Revised Penal Code shall apply to special laws only suppletorily and only when the latter do not provide the contrary. Indeed, elementary rules of statutory construction dictate that special legal provisions must prevail over general ones.

The majority notes Mr. Justice Carpio’s reservations about the effects of ruling that the absence of the accused from the Philippines shall not suspend the running of the prescriptive period. Our duty, however, is only to interpret the law. To go beyond that and to question the wisdom or effects of the law is certainly beyond our constitutionally mandated duty. As we have already explained –

Even on the assumption that there is in fact a legislative gap caused by such an omission, neither could the Court presume otherwise and supply the details thereof, because a legislative lacuna cannot be filled by judicial fiat. Indeed, courts may not, in the guise of interpretation, enlarge the scope of a statute and include therein situations not provided nor intended by the lawmakers. An omission at the time of the enactment, whether careless or calculated, cannot be judicially supplied however after later wisdom may recommend the inclusion. Courts are not authorized to insert into the law what they think should be in it or to supply what they think the legislature would have supplied if its attention has been called to the omission.44

Mr. Justice Carpio also remarks that the liberal interpretation of the statute of limitations in favor of the accused only relates to the following issues: (1)

retroactive or prospective application of laws providing or extending the prescriptive period; (2) the determination of the nature of the felony committed vis-à-vis the applicable prescriptive period; and (3) the reckoning of when the prescriptive period runs. Therefore, the aforementioned principle cannot be utilized to support the Majority Opinion’s conclusion that the prescriptive period in a special law continues to run while the accused is abroad.

We take exception to the foregoing proposition.

We believe that a liberal interpretation of the law on prescription in criminal cases equally provides the authority for the rule that the prescriptive period runs while the accused is outside of Philippine jurisdiction. The nature of the law on prescription of penal statutes supports this conclusion. In the old but still relevant case of People v. Moran,45 this Court extensively discussed the rationale behind and the nature of prescription of penal offenses –

"We should at first observe that a mistake is sometimes made in applying to statutes of limitation in criminal suits the construction that has been given to statutes of limitation in civil suits. The two classes of statutes, however, are essentially different. In civil suits the statute is interposed by the legislature as an impartial arbiter between two contending parties. In the construction of the statute, therefore, there is no intendment to be made in favor of either party. Neither grants the right to the other; there is therefore no grantor against whom the ordinary presumptions, of construction are to be made. But it is, otherwise when a statute of limitation is granted by the State. Here the State is the grantor, surrendering by act of grace its rights to prosecute, and declaring the offense to be no longer the subject of prosecution.' The statute is not a statute of process, to be scantily and grudgingly applied, but an amnesty, declaring that after a certain time oblivion shall be cast over the offence; that the offender shall be at liberty to return to his country, and resume his immunities as a citizen and that from henceforth he may cease to preserve the proofs of his innocence, for the proofs of his guilt are blotted out. Hence it is that statutes of limitation are to be liberally construed in favor of the defendant, not only because such liberality of construction belongs to all acts of amnesty and grace, but because the very existence of the statute, is a recognition and notification by the legislature of the fact that time, while it gradually wears out proofs of innocence, has assigned to it fixed and positive periods in which it destroys proofs of guilt. Independently of these views, it must be remembered that delay in instituting prosecutions is not only productive of expense to the State, but of peril to public justice in the attenuation and distortion, even by mere natural lapse of memory, of testimony. It is the policy of the law that prosecutions should be prompt, and that statutes, enforcing such promptitude should be vigorously maintained. They are not merely acts of grace, but checks imposed by the State upon itself, to exact vigilant activity from its subalterns, and to secure for criminal trials the best evidence that can be obtained." (Emphasis supplied)

Indeed, there is no reason why we should deny petitioner the benefits accruing from the liberal construction of prescriptive laws on criminal statutes. Prescription emanates from the liberality of the State. Any bar to or cause of interruption in the operation of prescriptive periods cannot simply

be implied nor derived by mere implication. Any diminution of this endowment must be directly and expressly sanctioned by the source itself, the State. Any doubt on this matter must be resolved in favor of the grantee thereof, the accused.

The foregoing conclusion is logical considering the nature of the laws on prescription. The exceptions to the running of or the causes for the interruption of the prescriptive periods may and should not be easily implied. The prescriptive period may only be prevented from operating or may only be tolled for reasons explicitly provided by the law.

In the case of People v. Pacificador,46 we ruled that:

It bears emphasis, as held in a number of cases, that in the interpretation of the law on prescription of crimes, that which is more favorable to the accused is to be adopted. The said legal principle takes into account the nature of the law on prescription of crimes which is an act of amnesty and liberality on the part of the state in favor of the offender. In the case of People v. Moran, this Court amply discussed the nature of the statute of limitations in criminal cases, as follows:

The statute is not statute of process, to be scantily and grudgingly applied, but an amnesty, declaring that after a certain time oblivion shall be cast over the offense; that the offender shall be at liberty to return to his country, and resume his immunities as a citizen; and that from henceforth he may cease to preserve the proofs of his innocence, for the proofs of his guilt are blotted out. Hence, it is that statues of limitation are to be liberally construed in favor of the defendant, not only because such liberality of construction belongs to all acts of amnesty and grace, but because the very existence of the statute is a recognition and notification by the legislature of the fact that time, while it gradually wears out proofs of innocence, has assigned to it fixed and positive periods in which it destroys proofs of guilt.47

In view of the foregoing, the applicable 10-and-15-year prescriptive periods in the instant case, were not interrupted by any event from the time they began to run on May 8, 1987. As a consequence, the alleged offenses committed by the petitioner for the years 1963-1982 prescribed 10 years from May 8, 1987 or on May 8, 1997. On the other hand, the alleged offenses committed by the petitioner for the years 1983-1985 prescribed 15 years from May 8, 1987 or on May 8, 2002.

Therefore, when the Office of the Special Prosecutor initiated the preliminary investigation of Criminal Case Nos. 13406-13429 on March 3, 2004 by requiring the petitioner to submit his counter-affidavit, the alleged offenses subject therein have already prescribed. Indeed, the State has lost its right to prosecute petitioner for the offenses subject of Criminal Case Nos. 28031-28049 pending before the Sandiganbayan and Criminal Case Nos. 04-231857–04-231860 pending before the Regional Trial Court of Manila.

WHEREFORE, premises considered, petitioner’s Motion for Reconsideration is GRANTED. Criminal Case Nos. 28031-28049 pending before the

Sandiganbayan and Criminal Case Nos. 04-231857–04-231860 pending before the Regional Trial Court of Manila are all hereby ordered DISMISSED.

SO ORDERED.