G.R. Nos. L-10364 and L-10376, Samson v. CA et al., 103 Phil. 277Republic of the PhilippinesSUPREME COURTManila

EN BANC

March 31, 1958

G.R. Nos. L-10364 and L-10376RUFINO T. SAMSON, petitioner,vs.THE HONORABLE COURT OF APPEALS, ET AL., respondents.

Baizas, Macadaeg and Baviera for petitioner.Solicitor General Ambrosio Padilla and Solicitor Eriberto D. Ignacio for respondents.

BAUTISTA ANGELO, J.:

Rufino T. Samson was jointly charged with Amado L. Cruz and Bonifacio Vergara and two others whose names are unknown in two separate informations with the complex crime of estafa through falsification of two checks of the Philippine National Bank before the Court of First Instance of Manila (Cases Nos. 12802 and 12803). On a plea of not guilty, they were tried and found guilty as charged, the court sentencing each of the three defendants to suffer in each case a penalty of not less than 6 years and 1 day and not more than 9 years, 4 months and 1 day of prision mayor, to pay a fine of P2,500 and the costs. In addition, they were sentenced to indemnify the Philip-pine Ryukyus Command, the payee of the checks, in the sum of P5,417.11 in each of the two cases.

The trio appealed from the decision and the Court of Appeals affirmed the same but with a reduced penalty with regard to appellants Cruz and Vergara. Appellant Samson was only found guilty of committing the crime through gross imprudence and was accordingly sentenced to 4 months of arresto mayor in each of the two cases.

Dissatisfied with his conviction, Samson sued out the present petition for review contending (1) that the acts done by him, as found by the Court of Appeals, do not constitute gross imprudence; (2) that there is no such offense as estafa through (falsification by) negligence; and (3) that the Court of Appeals erred in denying his motion for new trial.

The facts as found by the Court of Appeals are: "Espiridion Lascaño, father of the late Felipe Lascaño, a lieutenant of the USAFFE, who died during the last World War, and his widow Rosanna Paras, through the latter filed, is Felipe Lascano's only legitimate surviving heir, their claim papers with the Red Cross Chapter in the Province of Sorsogon in the early part of 1946.

"On October 2, 1948 Amado L. Cruz asked the help of his former classmate Rufino T. Samson in getting the checks of the two claimants who were with him at Camp Murphy by approaching an officer of the Philippine Army who could identify said persons assuring Samson that he had known said claimants for a long time. Having been assured twice of the identity of the supposed claimants and after examining their residence certificates attached to the claim papers, Samson accompanied by Cruz and the supposed claimants went to talk to Lt. Manuel Valencia and requested him to act as guarantor to secure the claimants check. Believing in the representations made by Samson, Lt. Valencia accompanied them to the Deceased Check Delivery Section, Finance, AFP, and secured the release of PNB Check No-754497J, Exhibit C, in favor of Rosalina Paras for the sum of P6,417.11 and the PNB Check No. 754498J, Exhibit D, in favor of Espiridion Lascaño for the sum of P6,417.10. Thence, the party repaired to the Bureau of Treasury, Finance Building, where again through the help of Rufino T. Samson on, the two checks above-mentioned were cashed by the teller Rosario Mallari who knew Samson. In accordance with the regulations of the Bureau of Treasury to payee Rosalina Paras, not knowing how to write or sign her name, was required to thumbmark on the back of the check, Exhibit C, and below her thumbmark Rufino T. Samson and Francisco Ordoñez signed as witnesses. Espiridion Lascaño who knows how to sign his name was asked to do so on the back of the check, Exhibit D, and below his signature

Samson signed not as a witness but as the last indorser. The accounts called for in said two checks were delivered to a son and Cruz, who, as will be shown hereafter, was the person who signed as Francisco Ordoñez, counted the money and delivered it to the supposed claimants. The party then proceeded to the Aristocrat Restaurant where together with about eleven others took their lunch for which Vergara paid P60, besides giving Samson P300 sup-posed to be paid to the officers who helped them in securing the checks plus P10 for Samson's taxi fare. Samson left the party and went to the movie to meet a friend from Camp Murphy.

"On October 4, or just two days after cashing the checks, while at Camp Murphy Samson was informed by Severino Anda, one of those who were with the party which cashed the checks, thus said cheeks were delivered to the wrong parties. Worried by such news he left for Sorsogon the following day to locate the real claimants. While on the train he saw an old couple whom he suspected to be the fake claimants because they had been throwing furtive glances at him. Upon arriving at Sorsogon he reported the matter to the matter to police and caused to be taken the couples finger prints names and address. At about 10 a.m., October 6, he went to look for the house of the Lascaño family. He found Espiridion Lascaño, too old and weak to leave the house. He saw Rosalina at the school where she was teaching and inquired from her whether she had received a check from Camp Murphy as well as the cheek of the old man and he was answered in the negative. He returned to Manila the following day and on October 8 reported the matter to Sgt. Luis Balignasan, G-2 PC, who after taking his affidavit promised to help him and conduct the necessary investigation. He submitted a copy of the finger prints of the suspects."

Analyzing the criminal responsibility of appellant Sam-son, the court made the following comment:

Coming now to appellant Rufino T. Samson, we believe that the following facts are admitted; that on the strength of the assurances given by Amado L. Cruz that the supposed claimants were the real ones he requested the help of Lt. Manuel Valencia to act as guarantor and Valencia, relying on his representations, accompanied him and the claimants to the Delivery Window and secured the

checks for them; that again Rufino T. Samson helped Amado T. Cruz and the supposed claimants by signing as witness together with Cruz so that the supposed claimant Rosalina Paras could cash her check and went to the extent of signing as last indorser on the back of the check, Exhibit D, in favor of Espiridion Lascaño and then later at the Aristocrat Restaurant accepted from Vergara and Cruz the sum of P300 to be paid to the officers who helped them and the further sum of P10 for his tax fare. There is no evidence that he was aware that the supposed claimants were not the real ones and his subsequent conduct shows it to be true; but although he did not know them personally he induced another friend of his, Lt. Manuel Valencia, to believe in the identity of said claimants thus helping his co-accused Amado L. Cruz, Bonifacio Vergara and John Doe and Maria Doe to perpetrate the crime of estafa through falsification. It is unbelievable that he would accept as his share the meager amount of P310 if he were a co-conspirator in the commission of a fraud amounting to over P12,000. We see nothing strange in his acceptance of P310 as a token of gratitude on the part of the claimants, but he has undoubtedly acted with reckless imprudence for having taken no precaution whatsoever in assuring himself that the supposed claimants were the real ones. The mere assurances given him by Amado L. Cruz were not sufficient to justify his acting in the manner he did.

We find no error in the conclusion reached by the Court of Appeals that the appellant herein acted with gross negligence in assuring Lt. Valencia and the Cashier of the identity of the supposed claimants, as a result of which the impersonators managed to secure possession of the checks in question and to cash the same. Appellant was, or must have been aware that the claim was for a sizeable amount, totalling over twelve thousand pesos, and ordinary prudence required that he should satisfy himself by all proper and adequate means of the identity of the persons claiming said amounts, since they we personally unknown to him. The mere assurance of a former class, mate would certainly not be a satisfactory identification to justify disbursement of such a large amount if the funds belonged to appellant; and we see no justification for him treating government fund is with less care and diligence than if they were his own. Nor does the submission to this appellant of residence certificates constitute adequate identification,

since these certificates are tax receipts and not means of establishing the identity of persons; and appellant as a Lieutenant of the Army is sufficiently intelligent and educated to foresee the possibility that the certificates could be forged or stolen.

There is no question that appellant cooperated in the commission of the complex offense of estafa through falsification by reckless imprudence by acts without which it could not have been accomplished, and this being a fact, there would be no reason to exculpate him from liability. Even assuming that he had no intention to defraud the offended party if his co-defendants succeeded in attaining the purpose sought by the culprits, appellant's participation together with the participation of his co-defendant the commission of the offense completed all the necessary for the perpetration of the complex crime of estafa through falsification of commercial document (Article 17, Revised Penal Code). Anyway and for the purposes of the penalty that was actually imposed upon appellant, it is immaterial that he be considered only guilty of falsification of a commercial document through reckless negligence, because the penalty for the crime of falsification of a commercial document under Article 172, No. 1, of the Revised Penal Code, is prision correccional in its medium and maximum periods and a fine of not more than P5,000.00 which under the provisions of Articles 25 and 26 of the same Code is a correctional penalty. Consequently, if in the cases at bar the crimes of falsification were due to reckless imprudence, the corresponding penalty would be arresto mayor in its minimum and medium periods (Art. 365, opening paragraph of the Revised Penal Code), which comprehends the penalty imposed by the Court of Appeals upon appellant.

Under the facts found by the Court of Appeals, the acts of appellant constitute in each case the crime of estafa through falsification of a mercantile document by reckless imprudence, because in so far as the falsification is concerned, his acts of endorsing the respective checks by way of identification of the signatures of the payees entitled to said checks and their proceeds, constituted a written representation that the true payees participated in the indorsement and cashing of the checks aforesaid, when in truth and in fact the true payees had no direct intervention in the proceedings (Art. 171, Revised Penal Code). Even if such indorsement and identification

were extraneous to the official duties of appellant, he would be nevertheless liable as a private person under Article 172 of the Revised Penal Code. Decisions of this Court and of the Supreme Court of Spain assert the juridical standing of the crime of falsification by imprudence since in falsifying public or mercantile document, of intent to cause damage is not required because what the law, seeks to repress is the prejudice to the public confidence in these documents.

An act executed without malice or criminal purpose, but with carelessness, negligence, or lack of precaution, which causes harm to society or to an individual, should be classified as either reckless negligence or simple imprudence; the person responsible therefor is liable for such results could have been anticipated, and for acts which no one would commit except through culpable indifference.

The courts heretofore dealing with acts punishable under the Penal Code of Spain which, with slight modifications, is practically the same as the one in force in these Islands, have heard and decided cases involving falsification of documents with reckless negligence. They therein applied the provisions of article 581 of the Spanish Code, which is identical with article 568 of the Code in force in these Islands, as may be seen among others, in judgments in cessation of July 8, 1882, December 21, 1885, November 8 1887, and December 7,1896; also in case No. 2818, United States vs. Mariano Vega, decided by this Court. (U.S. vs. Maleza, 14 Phil., 468).[[1]]

It is however contended that appellant Samson cannot be convicted of the crime of estafa through falsification by imprudence for the reason that the information filed against him charges only a willful act of falsification and contains no reference to any act of imprudence on his part. Nor can it be said, counsel argues, that the alleged imprudent act includes or is necessarily included in the offense charged in the information because a deliberate intent to do an unlawful act is inconsistent with the idea of negligence.

The rule regarding variance between allegation and proof in a criminal case, is: "When there is variance between the offense charged in the complaint or information, and that proved or established by the evidence, and the offense as charged, is included

in or necessarily includes the offense proved, the defendant shall be convicted of the offense proved included in that which is charged, or of the offense charged included in that which is proved" (Section 4, Rule 116. Rules of Court). As a complement we have also the following rule: "An offense charged necessarily includes that which is proved, when some of the essential elements or ingredients of the former, as this is alleged in the complaint or information, constitute the latter. And the offense charged is necessarily included in the offense proves, when the essential ingredients of the former constitute or form a part of those constituting the latter" (Section 5, Rule 116, Idem.)

While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon vs. Justice of the Peace of Bacolor,[[*]] G.R. No. L-6641, July 28, 1955, but a distinct crime in itself, designated as a quasi offense in our Penal Code, it may however be said that conviction for the former can be had under an information exclusively charging the commission of a willful offense, upon the theory that the greater includes the lesser offense. This is the situation that obtains in the present case. Appellant was charged with willful falsification but from the evidence submitted by the parties, the Court of Appeals found that in effecting the falsification which made possible the cashing of the checks in question, appellant did not act with criminal intent but merely failed to take proper and adequate means to assure himself of the identity of the real claimants as an ordinary prudent man would do. In other words, the information alleges acts which charge willful, falsification but which turned out to be not willful but negligent. This is a case covered by the rule when there is a variance between the allegation and proof, and is similar to some of the cases decided by this Tribunal.

Under a charge of forcible abduction, the defendant may be convicted of illegal detention if the evidence does not show that the kidnapping was with lewd designs. (People vs. Crisostomo, 46 Phil., 775.)

The crime of theft is included necessarily in that of robbery and therefore a defendant can he convicted of the former, notwithstanding that he was charged the latter offense. (U.S. vs. Birueda, 4 Phil., 229; People vs. Rivera, 54 Phil., 578)

The crime of robbery en cuadrilla is necessarily included in that of bandolerisimo (brigandage),and therefore the defendants can be convicted of the former on an information charging the latter. (U.S. vs. De la Cruz 4 Phil., 430.)

Where the information charges brigandage, but the evidence fails to show that the crime was committed by an armed band, the defendants can be convicted of robbery. (U.S. vs. Mangubat, 3 Phil., 1.)

Under a charge of malversation a public official may be found guilty of estafa. (U.S. vs. Solis, 7 Phil., 195.)

Moreover, Section 5, Rule 116, of the Rules of Court does not require that all the essential elements of the offense charged in the information be proved, it being sufficient that some of said essential elements or ingredients thereof be established to constitute the crime proved. This conclusion is strengthened by the provisions of Section 9, Ruled 113, of the Rules of Court under which appellant could no longer be prosecuted for estafa through falsification of commercial documents by reckless negligence were we to acquit him in the cases at bar on the obviously technical theory of the dissenters.

The fact that the information does not allege that the falsification was committed with imprudence is of no moment for here this deficiency appears supplied by the evidence submitted by appellant himself and the result has proven beneficial to him. Certainly, having alleged that the falsification has been willful, it would be incongrous to allege at the same time that it was committed with imprudence for a charge of criminal intent is incompatible with the concept of negligence.

With regard to the motion for new trial filed by appellant for the purpose of introducing an allegedly newly discovered evidence which consists of an affidavit of one Emiliano Salangsang-Salazar, it appearing that the same if admitted would only be corroborative in nature and would not have the effect of altering the result of the case, the same is denied.

Wherefore, the decision appealed from is affirmed, with costs against appellant.

Paras, C.J., Bengzon, Padilla, Montemayor and Endencia, JJ., concur.Reyes, A., J., concurs in the result.

Separate Opinions

FELIX, J., concurring:

I concur in the majority decision for the reasons therein stated. I, however, desire to state a few words in answer to the arguments adduced in the dissenting opinion to the effect that "under the ruling of the majority, each and every charge of a willful offense will necessarily imply an alternative charge of criminal negligence" and that this, is a way of "getting around the established rule that not more than one offense should be charged" and of preventing the accused from guarding against such hidden multiplicity of charges. It is claimed that in such situation the defendant would be unable to determine whether tie is being tried for committing the crime or for not preventing its commission, when he could have done so.

This argument is, in my opinion, utterly untenable. In, the first place, there is no multiplicity of accusations but, a charge that is included in another which is considered in operative and ceases to have any effect on the defendant for lack of supporting evidence. In the second place, no one better than the defendant knows what he has done in connection with the crime he is charged and he must have in mind that section 4, Rule 116, of the Rules of Court already warned him that he could be convicted of any crime included in the crime charged in the information if there were any variance between the latter and the crime establish by the evidence. So that he cannot now claim that he was caught by surprise or prejudiced in any way if the crime he was accused in the information degenerated into a case of criminal negligence. Although I do not deny that in Quizon vs. Justice of the Peace of Bacolor, (97 Phil., 342), We held that criminal negligence is a distinct crime established in our Penal Code, I cannot pass unmentioned the more juridical and more realistic point of view expressed in People vs. Faller, 7 Phil., 529, where it was held that:

RECKLESS IMPRUDENCE is not a crime in itself. It is simply a way of committing it and merely determines a lower degree of criminal liability. The information alleges, that the appellant acted willfully, maliciously, unlawfully and criminally. To this information no objection was interposed. Negligence being a punishable criminal act when it results in a crime, the allegation in the information that the appellant also committed the acts charged unlawfully and criminally includes the charge that acted with negligence.

For the foregoing considerations, I vote with the majority in affirming the decision appealed from, with costs against appellant.

REYES, J.B.L., dissenting:

If I regret my inability to agree that under a charge of intentionally committing a crime, an accused may be convicted of committing such crime through negligence or imprudence.

We have shown in Quizon vs. Justice of the Peace of Bacolor (97 Phil., 342), July 28, 1955, that criminal negligence is not a mere variant of the intentional misdeed; that it is a distinct and separate in itself. We also pointed out in that case that while willful crimes are punished according to their result in crimes of negligence, what the law punishes is the carelessness itself, the failure to take the precautions that society has a right to expect will be taken under the circumstances of each case. So that, while the intentional crime of lesiones is substantially different from that of falsification, lesiones by imprudence and falsification by imprudence are in themselves substantially identical offenses, being but two instances of criminal negligence punishable under one and the same article (365) of the Revised Penal Code.

It is argued that negligence is not a crime but a way of committing it. That view may be true from the philosophical standpoint, but not from that of the Penal Code, withstanding People vs. Faller, 67 Phil., 529, which was questioned in the Quizon case. The stubborn fact is "Que la culpa es un delito propio como el homicidio, las lesiones, etc. lo cual tambien es absurdo; on obstante ello en nuestra sistema legislativo hay que partir de esa base, que por otra parte el Tribunal

Supreme acentua" (Puig Peña Der Penal, Tomo 1, pag. 316). And this is emphasized by the designation of quasi-offenses by our Penal Code, that the Spanish Penal Code does not even use.

As a consequence, it must be admitted that intentional falsification and falsification by negligence not only differ in seriousness, but in essence; they are, by their nature, two different offenses altogether. Wherefore, an offender who is accused of intentional falsification cannot be held to answer for falsification by negligence, because the essential element of the latter offense, the ingredient that characterizes it and separates it from all other offenses, to wit, the criminal negligence or carelessness, is not involved in the elements of the crime charged. Not only is it not included: it is excluded by incompatibility, because malice or intent cannot co-exist with negligence. Intent presupposes that the offender actually visualized or contemplated the act of falsification and determined to realize it; negligence implies that the offender should have foreseen or anticipated, but did not actually anticipate or foresee, the consequences of his act. In the former, the law punishes the culprit for his decision to breach the law, in the latter, for his failure to foresee that his action would result in such a breach.

The difference being so radical, I can not see how the appellant can be held as a co-principal of the crime of estafa with falsification through his reckless imprudence considering that the negligence negates the appellant's knowledge of, or participation in, the intent to commit the fraud. It is urged that appellant's imprudent act was indispensable and that without it, the estafa could not be successfully accomplished, hence, he should be deemed a principal by cooperation under par. 9 of Art. 17, R.P.C. I consider the argument fallacious. Art. 17 says:

ART. 17. Principals. — The following are considered principals:

1. Those who take a direct part in the execution of the act;

2. Those who directly force or induce others to commit it;

3. Those who cooperate in the commission of the offense by another act without which it would not have been accomplished.

Now, to cooperate is to help, to aid; and necessarily presupposes, knowledge of the ultimate purpose in view. This very Court, in People vs. Aplegido, 76 Phil., 571, has ruled that —

to cooperate means to desire or wish in common a thing. But that common will or purpose does not necessarily mean a previous understanding.

What common will or purpose can exist between one acts maliciously and another who acts negligently? If the appellant deliberately omitted to take precautions in order to facilitate the estafa, he would not be guilty of estafa with falsification through imprudence, but of intentional estafa with falsification. Such deliberate intent, however, was expressly declared not to exist by the Court of Appeals, and that finding is conclusive.

In U.S. vs. Magcomot, 13 Phil., 386, 389, this Court, through Mr. Justice Mapa, decided that —

In view of all the circumstances of the case we are satisfied that the assault was committed, without the concurrence of the will of Isidro and Clemente Magcomot, and in the absence of that volition, which is the fundamental source of criminal liability, these co-defendants can not lawfully be held liable for the agrression and its consequences. On the other hand, it can not be pleaded that the acts committed on the body of the body of the deceased by said co-defendants and by Epifanio were perpetrated at the same time, because this simultaneousness does not of itself demonstrate the concurrence of wills nor the unity of action and purpose which are the bases of the responsibility of two or more individuals, and in the absence of which, it is strictly just, in accordance with the sound principles of law, that each one should only be held liable for the acts perpetrated by him. (Emphasis supplied)

Other cases to the same effect are collated in People vs. Tamayo, 44 Phil. 38. Let me note also that if it is unquestioned doctrine that it is an essential condition of complicity that the accomplice, "With knowledge of the criminal intent, should cooperate with the intention of supplying material or moral aid in the execution of the crime"

(People vs. Tamayo, 44 Phil., 49, cit. Dec. May 23, 1905; Viada, 5 Sup. 169; Dec. June 28, 1901; Viada, 4 Sup. 196). If to cooperate as an accomplice demands knowledge of the criminal intent, how may one cooperate as principal without it? It seems to me that such ruling would violate the basic principles of the Revised Penal Code on joint criminal responsibility.

On the procedural side, the objections to appellant's conviction of estafa by falsification through negligence are much more serious.

Section 5, Rule 116, upon which the majority relies as justifying the conviction, expresses the following rule:

An offense charged necessarily includes that which is proved, when some of the essential elements or ingredients of the former, as this alleged in the complaint or information, constitute the latter. (Italic mine)

It is not enough, therefore, that the elements of the crime for which an accused is convicted should be proved, but then must also be charged or alleged. This means, if it means anything at all, that the crime proved may be constituted by, some, i.e., a lesser number, of integrating elements or requisites than the offense charged, provided all such constituent elements are alleged. Thus, in the cases cited by the majority opinion, a charge of robbery includes that of theft, because to constitute theft, we merely eliminate or subtract the element of violence from the alleged components of robbery. One accused of forcible abduction can be convicted of illegal detention, because the elements are common except for the lewd designs; robbery is included in brigandage (bandolerismo) because their elements are identical except for the organization of the band for the purpose of committing highway robbery. And malversation a public official and estafa only differ in that the former must be committed by taking advantage of public office; by discarding the latter constituent element, the remainder alleges a crime of estafa. All these cases, therefore, proceed on the theory that by striking out some of the averments in the information the remainder charges the crime of which the accused is convicted. But it has never been held that a crime is included in the offense charged when not only must one element alleged be discarded but another one, not alleged, must be

supplied. Illustrative of this case is People vs. Oso, 62 Phil., 271, it where we quashed a conviction for abduction with rape, because the charge was plain abduction, carnal knowledge through violence did not appear in the original accusation.

It is very common to say that an accused may he convicted of any lesser crime than the one charged, without realizing that by lesser crime is meant one that is constituted by a number of elements smaller than those alleged; not a crime that carries a lighter penalty.

Now, let us apply, the rule to the present case. What are the ingredients of the crime of falsification in the information?

(1) That the accused made a false statement in a narration of facts (certifying that the impostor's signature was the genuine signature of the true payee);

(2) That he made the, false statement in a commercial paper (check);

(3) That he knew that the signature certified to by him was not that of the payee;

(4) That he acted wilfully, unlawfully, and feloniously.

Clearly these allegations cannot constitute the crime of falsification by negligence by merely striking out any number of them. And for a plain reason: the averment of imprudence, which is the distinctive characteristic of the latter crime, is lacking; it must be supplied from outside the information. Consequently, criminal negligence is not included in the offense charged.

That falsification through imprudence does not include intentional falsification is self-evident. Negligence can not include wilfulness or vice-versa. As pointed out previously, one excludes the other. It is thus unavoidable to conclude that a charge of wilful falsification does not charge falsification by negligence; neither does the latter include the former. Therefore, regardless of the evidence, a conviction for falsification by imprudence can not be had on a charge of wilful forgery, the two being incompatible offenses.

But there is more, and worse. Under the ruling of the majority, each and every charge of a wilful offense (except those where malice is indispensable) will necessarily imply an alternative charge of criminal negligence, since the accused may be convicted thereof. Is this not getting around the established rule that not more than one offense should be charged? And how can the accused guard against such hidden multiplicity? If the information should expressly allege that the accused "wilfully, intentionally and/or negligently, by failing to take the requisite precautions" committed an offense, unquestionably the accused could object on the ground that the information on its face charges two offenses, criminal negligence and the wilful crime; and he could demand that the prosecution should elect to stand on one charge alone, and strike out the other. But under the majority ruling, without any specific charge, the accused must stand trial and risk conviction of either the intentional offense or criminal negligence. Is such a procedure at all compatible with the right of the accused to fair play? The accused can not determine whether he is being tried for committing the crime or for not preventing its commission, when he could have done so.

The unfairness to the accused becomes compounded when it is recalled that negligence under our Penal Code admits two varieties: reckless imprudence and simple imprudence, the latter involving a lesser penalty. Under the majority ruling, therefore, a person accused of a wilful offense is actually compelled to face three ways and defend himself against three different offenses: the wilful act, reckless negligence, and simple imprudence. He can not object to any prosecution evidence tending to establish any or all of these multifarious charges; he must also see that his own evidence protects him against all three charges, altho I the information recites only one, the intentional offense. I submit that to force an accused to guard against all three possibilities at once is against all fairness, justice and equity. Pitted against the resources of the state, an accused is already at a disadvantage; I see no need to make his position worse.

To cap it all, the accused-appellant in the present case was convicted of criminal negligence on appeal, when he no longer could ask for a reopening of the trial to introduce evidence against such a

charge. The least that he is entitled to, it seems to me, is a new trial. It has been the practice hitherto that where the evidence shows the accused to be guilty of a crime different from the one charged, to acquit him of the charge and, without release from custody, remand him to answer for the proper offense, see no reason why that rule should not be followed in the present case.

EN BANC[G.R. No. 133489 & 143970. January 15, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RONALD a.k.a ROLAND GARCIA y FLORES,* RODANTE ROGEL y ROSALES, ROTCHEL LARIBA y DEMICILLO, and GERRY B. VALLER, accused-appellants.D E C I S I O NPER CURIAM:

In Crim. Case No. Q-96-68049 accused-appellants Ronald a.k.a Roland Garcia y Flores, Rodante Rogel y Rosales, Rotchel Lariba y Demicillo and Gerry B. Valler, along with a certain Jimmy Muit, were charged with and convicted of kidnapping for ransom and were sentenced each to death, except aforementioned Jimmy Muit who has remained at large, for obvious reasons, and to indemnify their victim Romualdo Tioleco P200,000.00 and to pay the costs.[1]

In a related case, Crim. Case No. Q-96-68050, which was decided jointly with Crim. Case No. Q-96-68049, accused-appellants Rotchel Lariba and Rodante Rogel were also found guilty of illegal possession of firearms and ammunition and each sentenced to an indeterminate prison term of four (4) years, nine (9) months and eleven (11) days of prision correccional as minimum, to eight (8) years, eight (8) months and one (1) day of prision mayor as maximum, and to pay a fine of P30,000.00 plus the costs.[2] No notice of appeal[3] was filed in this criminal case; nonetheless, for reasons herein below stated, we take cognizance of the case.

Atty. Romualdo Tioleco was jogging alone at Gilmore Avenue, New Manila, Quezon City, at about 5:30 oclock in the morning of 5 October 1996.[4] He was heading towards 4th Avenue when he noticed a blue car parked at the corner of this street.[5] As he was about to cross 4th Avenue, the car lurched towards him and stopped.[6] Two (2) men quickly alighted from the car.[7] One of them pointed a gun at Atty. Tioleco while the other hit his back and pushed him into the back seat of the car.[8] Once inside, he saw two (2) other men, one on the drivers seat and the other on the back seat directly behind the driver.[9] He found out later the identities of the driver whom he undoubtedly recognized during the abduction to be

accused-appellant Gerry Valler, and of the other person on the passenger seat behind Valler as accused-appellant Roland Ronald Garcia.[10] He described the man who disembarked from the car and who pushed him inside to be 55 or 56 in height, medium built, and the other, who threatened him with a gun, at 54 or 55 in height, dark complexioned and medium built although heftier than the other.[11] These two (2) persons have since the commission of the crime have remained at large.

While inside the car Atty. Tioleco was made to crouch on the leg room.[12] As it sped towards a destination then unknown to the victim, the men on board feigned to be military men and pestered him with the accusation of being a drug pusher and the threat of detention at Camp Crame.[13] As they were psyching him down, they started putting blindfold on [him] and packaging tape on [his]face and handcuffed [him] on the back of [his] body.[14] His eyeglasses were taken off when they were putting blindfold on [him] x x x.[15] Then they divested him of his other personal belongings, e.g., his keys, wristwatch, etc.[16]

The car cruised for thirty (30) to forty-five (45) minutes.[17] When it finally stopped, Atty. Tioleco was told to alight, led to a house and then into a room.[18] He remained blindfolded and handcuffed throughout his ordeal and made to lie down on a wooden bed.[19] During his captivity, one of the kidnappers approached him and told him that he would be released for a ransom of P2 million[20] although the victim bargained for an amount between P50,000.00 and P100,000.00 which according to him was all he could afford. While still under detention, one of his abductors told him that they had mistaken him for a Chinese national and promised his release without ransom.[21] But he was just being taken for a ride since the kidnappers had already begun contacting his sister Floriana Tioleco.

Floriana was at her office when her mother called up about her brothers kidnapping.[22] Floriana hurried home to receive a phone call from a person who introduced himself as Larry Villanueva demanding P3 million for Atty. Tiolecos ransom.[23] Several other calls to Floriana were made during the day and in one of those calls the ransom was reduced to P2 million.[24] Around 7:00 oclock in the evening of the same day, 5 October 1996, P/Sr. Insp. Ronaldo

Mendoza of the Presidential Anti-Crime Commission (PACC) arrived at Florianas house to monitor her brothers kidnapping upon the request of her friends.[25] Floriana received the following day about eight (8) phone calls from the kidnappers still demanding P2 million for her brothers safe release.[26]

By the end of the day on 7 October 1996 Floriana was able to raise only P71,000.00,[27] which she relayed to the kidnappers when they called her up.[28] They finally agreed to set her brother free upon payment of this amount, which was short of the original demand.[29] The pay-off was scheduled that same day at around 8:00 oclock in the evening at Timog Avenue corner Scout Tuazon in Quezon City near the Lighthaus and Burger Machine.[30] Upon instruction of P/Sr. Insp. Mendoza, Floriana together with only two (2) female friends proceeded to this meeting place.[31] They reached there at 8:40 oclock in the evening and waited for the kidnappers until about 10:30 or 11:00 o clock that evening.[32]

Meanwhile, P/Sr. Insp. Mendoza relayed the information about the pay-off and other relevant facts to P/Chief Insp. Gilberto Cruz at the PACC headquarters.[33] With the information from P/Sr. Insp. Mendoza, P/Chief Insp. Cruz, together with P/Chief Insps. Winnie Quidato and Paul Tucay with P/Sr. Insp. Nilo Pagtalunan, immediately went to Timog Avenue corner scout Tuazon near the Lighthaus and Burger Machine in Quezon City.[34] They surveyed this site and saw a blue Toyota Corona with three (3) persons on board suspiciously stopping about five (5) meters from Floriana and her friends and remaining there for almost two (2) hours.[35]

Floriana and her friends left the pay-off site after waiting for two (2) hours more or less;[36] so did the blue Toyota Corona almost simultaneously.[37] No payment of ransom took place.[38]3P/Chief Insp. Cruz then ordered P/Chief Insps. Quidato and Tucay and their subordinates to tail this car which they did all the way to the De Vega Compound at Dahlia Street in Fairview, Quezon City.[39] This compound consisted of one bungalow house and was enclosed by a concrete wall and a steel gate for ingress and egress.[40] They posted themselves thirty (30) to forty (40) meters from the compound to reconnoiter the place.[41] Meanwhile, the kidnappers explained in a phone call to Floriana that they had aborted the pay-off on account

of their belief that her two (2) companions at the meeting place were police officers.[42] But she assured them that her escorts were just her friends.[43]

At around 1:00 oclock in the afternoon of 8 October 1996 Floriana received a call from the kidnappers at her house[44] who wanted to set another schedule for the payment of the ransom money an hour later or at 2:00 oclock.[45] This time the rendezvous would be in front of McDonalds fastfood at Magsaysay Boulevard in Sta. Mesa, Manila.[46] She was told by the kidnappers that a man would go near her and whisper Romy to whom she would then hand over the ransom money. Floriana agreed to the proposal. With her two (2) friends, she rushed to the place and brought with her the P71,000.00.[47] About this time, the same blue Toyota Corona seen at the first pay-off point left the De Vega Compound in Fairview.[48] A team of PACC operatives under P/Chief Insp. Cruz again stationed themselves in the vicinity of McDonalds.[49]

Floriana arrived at the McDonalds restaurant and waited for a few minutes.[50] Not long after, the blue Toyota Corona was spotted patrolling the area.[51] The blue car stopped and, after dropping off a man, immediately left the place. The man approached Floriana and whispered Romy to her.[52] She handed the money to him who took it.[53] Floriana identified this man during the trial as accused-appellant Roland (Ronald) Garcia.[54]

The PACC operatives tried to follow the blue car but were prevented by traffic.[55] They were however able to catch up and arrest Garcia who was in possession of the ransom money in the amount of P71,000.00.[56] They brought him inside their police car and there apprised him of his custodial rights.[57] Garcia informed the PACC operatives that Atty. Tioleco was being detained inside the De Vega compound in Fairview.[58] With this information, P/Chief Insp. Cruz ordered P/Chief Insps. Tucay and Quidato who had been posted near the compound to rescue the victim.[59]

The two (2) PACC officers, together with their respective teams, entered the compound and surged into the bungalow house where they saw two (2) men inside the living room.[60] As one of the PACC teams was about to arrest the two (2) men, the latter ran towards a

room in the house where they were about to grab a .38 cal. revolver without serial number loaded with six (6) rounds of ammunitions and a .357 cal. revolver with six (6) live ammunitions.[61] The other PACC team searched the house for Atty. Tioleco and found him in the other room.[62] The two (2) men were arrested and informed of their custodial rights. They were identified in due time as accused-appellants Rodante Rogel and Rotchel Lariba.[63]

P/Chief Insp. Cruz arrived at the De Vega compound[64] and coordinated with the proper barangay authorities.[65] While the PACC operatives were completing their rescue and arrest operations, the house phone rang.[66] Accused-appellant Rogel answered the call upon the instruction of P/Chief Insp. Cruz.[67] Rogel identified the caller to be accused-appellant Valler who was then driving towards the De Vega compound.[68] In the same phone call, Valler also talked with accused-appellant Garcia to inquire about the ransom money.[69]

Then a blue Toyota Corona arrived at the De Vega compound.[70] Valler alighted from the car and shouted at the occupants of the house to open the gate.[71] Suspicious this time, however, he went back to his car to flee.[72] But the PACC operatives pursued his car, eventually subduing and arresting him.[73] The operations at the De Vega Compound ended at 8:30 in the evening and the PACC operatives, together with Atty. Tioleco and the accused-appellants, left the De Vega compound and returned to their headquarters in Camp Crame, Quezon City.[74] The ransom money was returned intact to Atty. Tioleco.[75]

When arraigned, accused-appellants Ronald Roland Garcia, Rodante Rogel, Rotchel Lariba and Gerry Valler pleaded not guilty to the charge of kidnapping for ransom in Crim. Case No. Q-96-68049, although during the trial Garcia admitted complicity in the abduction of Atty. Tioleco and in the receipt of the ransom money from the victims sister Floriana.[76] In Crim. Case No. Q-96-68050 for illegal possession of firearms and ammunition, Rodante Rogel and Rotchel Lariba also pleaded not guilty.[77]

During the trial, Gerry Valler denied being part of the kidnapping for ransom and asserted that he was at the De Vega compound where

he was arrested on 8 October 1996 solely to pay for the fighting cocks he had bought from one Jimmy Muit, alleged owner of the compound.[78] Accused Ronald Garcia, despite his admission to the crime, nevertheless disowned any role in planning the crime or knowing the other accused-appellants since his cohorts were allegedly Jimmy Muit and two (2) others known to him only as Tisoy and Tony.[79] He also alleged that it was Jimmy Muits red Toyota car that was used in the crime.[80] Explaining their presence at the De Vega compound at the time they were arrested, Rogel claimed that he was employed as a helper for breeding cocks in this compound[81] while Laribas defense focused on an alleged prior agreement for him to repair Jimmy Muits car.[82]

Accused-appellants filed separate appellants briefs. In the brief submitted by the Public Attorneys Office in behalf of accused-appellants Garcia, Rogel and Lariba, they argue that the crime of kidnapping for ransom was not committed since Atty. Tioleco was released from detention by means of the rescue operation conducted by the PACC operatives and the ransom money subsequently recovered.[83] They conclude that their criminal liability should only be for slight illegal detention under Art. 268, of The Revised Penal Code. Accused-appellants Rogel and Lariba further assert that they could not be held guilty of illegal possession of firearms and ammunition since neither was in complete control of the firearms and ammunition that were recovered when they were arrested and no evidence was offered to prove responsibility for the presence of firearms and ammunition inside the room.[84]

The brief filed for accused-appellant Gerry B. Valler asserts the same defense he made at the trial that he was at the De Vega compound only to pay his debts to Jimmy Muit,[85] arguing that Atty. Tioleco did not have the opportunity to really recognize him so that his identification as the driver of the car was tainted by police suggestion, and that P/Chief Insp. Cruz testimony is allegedly replete with inconsistencies that negate his credibility.[86]

Encapsulated, the issues herein focun on (a) the ransom as element of the crime under Art. 267 of The Revised Penal Code, as amended; (b) the sufficiency of the prosecution evidence to prove kidnapping for ransom; (c) the degree of responsibility of each

accused-appellant for kidnapping for ransom; and, (d) the liability for illegal possession of firearms and ammunition under RA 8294, amending PD 1866.

First. We do not find any quantum of merit in the contention that kidnapping for ransom is committed only when the victim is released as a result of the payment of ransom. In People v. Salimbago[87] we ruled -

No specific form of ransom is required to consummate the felony of kidnapping for ransom so long as it was intended as a bargaining chip in exchange for the victims freedom. In municipal criminal law, ransom refers to the money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases from captivity. Neither actual demand for nor actual payment of ransom is necessary for the crime to be committed. It is enough if the crime was committed for the purpose of extorting ransom. Considering therefore, that the kidnapping was committed for such purpose, it is not necessary that one or any of the four circumstances be present.

So the gist of the crime, as aptly stated in American jurisprudence from which was derived the crime of kidnapping for ransom,[88] is not the forcible or secret confinement, imprisonment, inveiglement, or kidnapping without lawful authority, but x x x the felonious act of so doing with intent to hold for a ransom the person so kidnapped, confined, imprisoned, inveigled, etc.[89]

It is obvious that once that intent is present, as in the case at bar, kidnapping for ransom is already committed. Any other interpretation of the role of ransom, particularly the one advanced by accused-appellants, is certainly absurd since it ironically penalizes rescue efforts of kidnap victims by law enforcers and in turn rewards kidnappers for the success of police efforts in such rescue operations. Moreover, our jurisprudence is replete with cases, e.g., People v. Chua Huy,[90] People v. Ocampo[91] and People v. Pingol,[92] wherein botched ransom payments and effective recovery of the victim did not deter us from finding culpability for kidnapping for ransom.

Second. Issues of sufficiency of evidence are resolved by reference to findings of the trial court that are entitled to the highest respect on appeal in the absence of any clear and overwhelming showing that the trial court neglected, misunderstood or misapplied some facts or circumstances of weight and substance affecting the result of the case.[93] Bearing this elementary principle in mind, we find enough evidence to prove beyond reasonable doubt the cooperation of all accused-appellants in the kidnapping for ransom of Atty. Tioleco.

Truly incriminating is the judicial confession of accused-appellant Garcia of his participation in the commission of the crime. He admitted that he took part in actually depriving Atty. Tioleco of his liberty[94] and in securing the ransom payment from Floriana Tioleco.[95] He could not have been following mechanically the orders of an alleged mastermind, as he claims, since by his own admission he was neither threatened, forced or intimidated to do so[96] nor mentally impaired to resist the orders.[97] In the absence of evidence to the contrary, he is presumed to be in full possession of his faculties and conscience to resist and not to do evil.

We cannot also give credence to Garcias asseveration that the persons still at large were his co-conspirators. This posture is a crude attempt to muddle the case as discerned by the trial court from his demeanor when he testified -

Because he had been caught in flagrante delicto, Roland Garcia admitted his participation in the crime charged. From his testimony, however, there appears a veiled attempt to shield Gerry Valler from conviction. First, Garcia claimed that the car they used was reddish in color (TSN, October 20, 1997, pp. 9, 19 & 20). Then he added that the owner of the car was Jimmy Muit and not Gerry Valler (TSN, October 20, 1997, p. 9). Next, he said that there was no conspiracy and he did not know then Gerry Valler, Rodante Rogel and Rogel Lariba until they were placed together in Camp Crame (Ibid., p. 22).

The Court however cannot simply accept this part of his story. To begin with, his repeated reference to the color of the car as reddish is quite suspicious. He conspicuously stressed the color of the car in three (3) instances without being asked. The transcripts of the notes bear out the following:

ATTY. MALLABO: Did you use any vehicle while you were there at Gilmore Street?

A: Yes, sir.

Q: What kind of vehicle was that?

A: Jimmys car, a Toyota, somewhat reddish in color x x x x

Q: By the way, what car did you use when you were roaming around Quezon City on October 6 in the evening?

A: Jimmys car, which was somewhat red in color. Reddish.

Q: And what car did you use the following day when you took the bag? The same car?

A: The same car, the Toyota car which was somewhat reddish in color.

Such a clear attempt to mislead and deceive the Court with such unsolicited replies cannot succeed. On October 8, 1996, in the vicinity of McDonalds, he was seen alighting from the blue Toyota Corona (TSN, March 17, 1997, pp. 28-32). As earlier pointed out, the blue Toyota Corona car is owned by Gerry Valler who was the one driving it in the afternoon of the same day to the De Vega compound (TSN, April 28, 1997, pp. 64-67; and November 10, 1997, pp. 22-28). Gerry Valler was also identified by Atty. Tioleco as the driver of the dark blue car used in his abduction (TSN, April 10, 1997, pp. 10-11; and TSN, April 14, 1997, pp. 21-27).[98]

Accused-appellant Vallers profession of innocence also deserves no consideration. Various circumstances indubitably link him to the crime. For one, he was positively identified by Atty. Tioleco to be the driver of the dark blue Toyota car used in the abduction on 5 October 1997, which car was seen again twice during the occasions for ransom payment. This was followed by a telephone call made by Valler to the house where Atty. Tioleco was being detained and in fact talked with accused-appellant Rogel to tell him that he was

coming over[99] and with accused-appellant Garcia to ask from him about the ransom supposedly earlier collected.[100] Given the overwhelming picture of his complicity in the crime, this Court cannot accept the defense that he was only trying to pay his debts to Jimmy Muit when he was arrested.

We find nothing substantive in Vallers attempt to discredit the victims positive identification of him on the trifling observation that Atty. Tioleco was too confused at the time of his abduction to recognize accused-appellants physical features accurately. It is truly evident from the testimony of Atty. Tioleco that his vision and composure were not impaired by fear or shock at the time of his abduction and that he had the opportunity to see vividly and remember unerringly Vallers face -

Q: Where were these two unidentified men positioned inside the car?

A: One of them was at the drivers seat and the other one was immediately behind the drivers seat.

Q: Now, could you please describe to this honorable court the person who was seated on the drivers seat?

A: He has a dark complexion, medium built and short hair at that time.

Q: If you see that person again will you be able to identify him sir?

A: Yes, sir.

Q: And if hes present in the courtroom will you be able to point to him?

A: Yes, sir.

Q: At this juncture your honor we would like to request with the courts permission the witness be allowed to step down from the witness stand and approach the person just described and tap him on his shoulder.

COURT INTERPRETER: Witness stepping down from the witness stand and approached the person he had just described and tapped him on his shoulder and who when asked to identify himself he gave his name as Gerry Valler.[101]

Even on cross-examination, Atty. Tioleco was steadfast in his reference to Gerry Valler -

Q: What stage was that when your eyeglasses were grabbed by these persons inside the car?

A: That was after the other accused entered the vehicle and the car zoomed away, that was when they were putting a blindfold on me, that was the time when they started removing my eyeglasses, sir x x x x[102]

Q: So when you were inside the car, you had difficulty seeing things inside the car because you were not wearing your eyeglasses?

A: No, sir, that is not correct, because they were close, so I can see them x x x x[103]

Q: And as a matter of fact, it was the PACC operatives who informed you that the person being brought in was also one of the suspects, am I correct?

A: That is not correct, sir. They said that, but I know that is one of the suspects because he was the person who was driving the vehicle at the time I got kidnapped. So I know him.

Q: So you saw him at the time you were kidnapped that is why you were able to identify him when he was ushered in?

A: When he was brought into the kitchen I saw him. When I saw him, I knew he was one of the suspects.

Q: When you saw him, he was in handcuffs?

A: Yes, sir, that is correct.

Q: You were informed that his name is Gerry Valler?

A: When he went inside the house and the kitchen, they started interviews, that is where I learned his name, Gerry Valler x x x x[104]

Q: But I thought that when you were pushed inside the car, you were pushed head first, how can you easily describe this person driving the vehcile and the person whom you now identified as Roland Garcia?

A: Even if they pushed my head, there was an opportunity for me to see the face of the accused.[105]

As we held in People v. Candelario,[106] it is the most natural reaction for victims of crimes to strive to remember the faces of their assailants and the manner in which the craven acts are committed. There is no reason to disbelieve Atty. Tioelecos claim that he saw the faces of his abductors considering that they brazenly perpetrated the crime in broad daylight without donning masks to hide their faces. Besides, there was ample opportunity for him to discern their features from the time two (2) of his kidnappers approached and forced him into their car and once inside saw the other two (2), including Gerry Valler, long enough to recall them until he was blindfolded.

The victims identification of accused-appellant Valler is not any bit prejudiced by his failure to mention Vallers name in his affidavit. It is well-settled that affidavits are incomplete and inaccurate involving as they do mere passive mention of details anchored entirely on the investigators questions.[107] As the victim himself explained -

Q: Now, in Question No. 5 and I quote x x x Why did you not identify here the name of the driver as one Gerry Valler?

A: Because they never asked me the name. They just asked me to narrate what happened. Had they asked me the name, I could have mentioned the name.[108]

In light of the positive identification by the victim of accused-appellant Valler, the latters denial must fall absolutely. Clearly, positive

identification of the accused where categorical and consistent and without any showing of ill motive on the part of the eyewitness testifying on the matter prevails over his defense.[109] When there is no evidence to show any dubious reason or improper motive why a prosecution witness would testify falsely against an accused or falsely implicate him in a heinous crime, the testimony is worthy of full faith and credit.[110]

Finally, we do not see any merit in Vallers enumeration of alleged inconsistencies in the testimony of P/Chief Insp. Gilbert Cruz concerning (a) the time and place of meeting between the PACC operatives and Floriana Tioleco; (b) the schedule of the first and second ransom pay-offs; (c) the number of Floriana Tiolecos companions during the aborted first pay-off; (d) the number of occupants in the blue Toyota car; and, (e) the PACC operatives recognition of Floriana Tioleco during the ransom payments. This is an argument that clutches at straws. For one, the purported inconsistencies and discrepancies involve estimations of time or number, hence, the reference thereto by the witness would understandably vary. Furthermore, they are too minor to warrant the reversal of the judgment of conviction. They do not affect the truth of the testimonies of witnesses nor do they discredit their positive identification of accused-appellants. On the contrary, such trivial inconsistencies strengthen rather than diminish the prosecutions case as they erase suspicion of a rehearsed testimony and negate any misgiving that the same was perjured.[111]

We also do not believe that accused-appellants Rogel and Lariba are innocent bystanders in this case. It taxes the mind to believe Rogels defense that as a caretaker of the place where Atty. Tioleco was detained, he observed nothing unusual about this incident. An innocent man would have immediately reported such dastardly act to the authorities and refused to sit idly by, but a guilty person in contrast would have behaved otherwise as Rogel did.[112]

Accused-appellant Laribas defense is similarly incredible. He joins Gerry Valler in proclaiming that he too was allegedly at the wrong place at the wrong time for the wrong reason of just wanting to tune up the car of Jimmy Muit. But for all these assertions, he failed to produce satisfactory evidence that he was indeed there to repair

such car. Of all the days he could have discharged his work, he chose to proceed on 8 October 1997 when the kidnapping was in full swing. There was even no car to repair on the date that he showed up. Like the submission of Rogel, Laribas defense falls completely flat for he could have so easily observed the kidnapping of Atty. Tioleco that was taking place in the house of Jimmy Muit.

In sum, accused-appellants cannot rely upon the familiar phrase reasonable doubt for their acquittal. As demonstrated by the fastiduous references of Valler to alleged inconsistencies of P/Chief Insp. Cruz, not all possible doubt is reasonable since in the nature of things everything relating to human affairs is open to some imaginary dilemma. As we have said in People v. Ramos,[113] it is not such a doubt as any man may start by questioning for the sake of a doubt; nor a doubt suggested or surmised without foundation in facts or testimony, for it is possible always to question any conclusion derived from testimony. Reasonable doubt must arise from the evidence adduced or from the lack of evidence, and it should pertain to the facts constitutive of the crime charged. Accused-appellants have not shown the presence of such fatal defects in this case. Clearly, all the elements and qualifying circumstances to warrant conviction for the crime of kidnapping for ransom and serious illegal detention have been established beyond reasonable doubt.

Third. We go into the criminal liability of each accused-appellant. There is no doubt that Gerry Valler and Ronald Garcia are principals by direct participation and co-conspirators in the kidnapping for ransom of Atty. Tioleco. Their respective participation in perpetrating the crime cannot be denied. As regards their liability as co-conspirators, we find the same to have also been shown beyond reasonable doubt. Conspiracy exists when two or more persons come to agreement concerning the commission of a felony and decide to commit it for which liability is joint.[114] Proof of the agreement need not rest on direct evidence as the felonious covenant itself may be inferred from the conduct of the parties before, during, and after the commission of the crime disclosing a common understanding between them relative to its commission.[115] The acts of Valler and Garcia in coordinating the abduction, collection of ransom and detention of their victim indubitably prove such conspiracy.

Lariba and Rogel were caught inside the house where Atty. Tioleco was detained. P/Chief Insp. Paul Tucay testified on their involvement -

Q: Okey, when you stormed the place, do you know where these two men were?

A: The two men were seated at the sala during that time, sir.

Q: They were seated at the sala when you entered the place?

A: Yes, sir.

Q: What happened after entering the gate?

A: We announced that we were police officers of the Presidential Anti-Crime Commission.

Q: Do you know what happened with these two men during that time?

A: They were caught by surprise and they were about to run to the first room.

Q: What happened when these two men who were at the living room or at the sala, when they ran to the first room?

A: We surprised them and cornered them in that room.

Q: What about the team of Major Quidato, where did they proceed?

A: Major Quidatos team proceeded to the second room where Atty. Tioleco was being kept.

Q: According to you, you gave chase to these two men who were earlier in the sala and they ran upon your announcement that you were police officers?

A: When we cornered them in that room, they were about to grab the two revolvers loaded with six (6) rounds of ammunitions.

Q: Where were these revolvers placed, Mr. Witness?

A: They were placed on top of a cabinet, which, when you enter in the room, is placed on the right side of the room.

Q: How many revolvers were you able to recover?

A: There were two revolvers.

Q: And can you please describe these revolvers to this Honorable Court?

A: Yes, sir x x x x The revolvers confiscated on that raid are one (1) .38 caliber revolver without serial number loaded with 6 rounds of ammunition, live ammo, one .357 also loaded with 6 rounds of live ammunitions.[116]

Correlating the above testimony with the other evidence, it is clear that at the time Lariba and Rogel were caught, Atty. Tioleco had already been rendered immobile with his eyes blindfolded and his hands handcuffed. No evidence exists that he could have gone elsewhere or escaped. At the precise moment of their apprehension, accused-appellants Lariba and Rogel were unarmed although guns inside one of the rooms of the house were available for their use and possession.

Assessing these established circumstances in the manner most favorable to Lariba and Rogel, we conclude that they were merely guarding the house for the purpose of either helping the other accused-appellants in facilitating the successful denouement to the crime or repelling any attempt to rescue the victim, as shown by the availability of arms and ammunition to them. They thus cooperated in the execution of the offense by previous or simultaneous acts by means of which they aided or facilitated the execution of the crime but without any indispensable act for its accomplishment. Under Art. 18 of The Revised Penal Code, they are mere accomplices.

In People v. De Vera[117] we distinguished a conspirator from an accomplice in this manner -

Conspirators and accomplices have one thing in common: they know and agree with the criminal design. Conspirators, however, know the criminal intention because they themselves have decided upon such course of action. Accomplices come to know about it after the principals have reached the decision, and only then do they agree to cooperate in its execution. Conspirators decide that a crime should be committed; accomplices merely concur in it. Accomplices do not decide whether the crime should be committed; they merely assent to the plan and cooperate in its accomplishment. Conspirators are the authors of a crime; accomplices are merely their instruments who perform acts not essential to the perpetration of the offense.

In the instant case, we cannot deny knowledge on the part of Lariba and Rogel that Valler and Garcia had kidnapped Atty. Tioleco for the purpose of extorting ransom and their cooperation to pursue such crime. But these facts without more do not make them co-conspirators since knowledge of and participation in the criminal act are also inherent elements of an accomplice.[118] Further, there is no evidence indubitably proving that Lariba and Rogel themselves participated in the decision to commit the criminal act. As the evidence stands, they were caught just guarding the house for the purpose of either helping the other accused-appellants in facilitating the success of the crime or repelling any attempt to rescue the victim as shown by the availability of arms and ammunition to them. These items contrast starkly with the tried and true facts against Valler and Garcia that point to them as the agents ab initio of the design to kidnap Atty. Tioleco and extort ransom from his family.

Significantly, the crime could have been accomplished even without the participation of Lariba and Rogel. As stated above, the victim had been rendered immobile by Valler and Garcia before the latter established contacts with Floriana Tioleco and demanded ransom. The participation of Lariba and Rogel was thus hardly indispensable. As we have held in Garcia v. CA, in some exceptional situations, having community of design with the principal does not prevent a malefactor from being regarded as an accomplice if his role in the perpetration of the homicide or murder was, relatively speaking, of a

minor character.[119] At any rate, where the quantum of proof required to establish conspiracy is lacking and doubt created as to whether the accused acted as principal or accomplice, the balance tips for the milder form of criminal liability of an accomplice.[120]

We are not unaware of the ruling in People v. Licayan that conspiracy can be deduced from the acts of the accused-appellants and their co-accused which show a concerted action and community of interest. By guarding Co and Manaysay and preventing their escape, accused-appellants exhibited not only their knowledge of the criminal design of their co-conspirators but also their participation in its execution.[121] But the instant case is different. Considering the roles played by Lariba and Rogel in the execution of the crime and the state the victim was in during the detention, it cannot be said beyond reasonable doubt that these accused-appellants were in a real sense detaining Atty. Tioleco and preventing his escape. The governing case law is People v. Chua Huy[122] where we ruled -

The defendants statements to the police discarded, the participation of the other appellants in the crime consisted in guarding the detained men to keep them from escaping. This participation was simultaneous with the commission of the crime if not with its commencement nor previous thereto. As detention is an essential element of the crime charged, as its name, definition and graduation of the penalty therefor imply, the crime was still in being when Lorenzo Uy, Tan Si Kee, Ang Uh Ang, William Hao and Young Kiat took a hand in it. However, we are not satisfied from the circumstances of the case that the help given by these accused was indispensable to the end proposed. Our opinion is that these defendants are responsible as accomplices only.

Fourth. In the beginning, we noted that neither Lariba nor Rogel who were both convicted of illegal possession of firearms and ammunition in Crim. Case No. Q-96-68049 filed a notice of appeal in accordance with established procedures, although the records show that accused-appellant Gerry Valler needlessly did so exclusively in his behalf.[123] But in light of the enactment of RA 8294 amending PD 1866 effective 6 July 1997,[124] and our ruling in People v. Ladjaalam[125] followed in Evangelista v. Siztoza,[126] we nonetheless review this conviction to give effect to Art. 22 of The

Revised Penal Code mandating in the interest of justice the retroactive application of penal statutes that are favorable to the accused who is not a habitual criminal.[127]

In Ladjaalam we ruled that if another crime was committed by the accused he could not be convicted of simple illegal possession of firearms under RA 8294 amending PD 1866 -

Aside from finding appellant guilty of direct assault with multiple attempted homicide, the trial court convicted him also of the separate offense of illegal possession of firearms under PD 1866, as amended by RA 8294, and sentenced him to 6 years of prision correccional to 8 years of prision mayor x x x x

The trial courts ruling and the OSGs submission exemplify the legal communitys difficulty in grappling with the changes brought about by RA 8294. Hence, before us now are opposing views on how to interpret Section 1 of the new law, which provides as follows:

Sec. 1. - Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows:

Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. - The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed.

The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .30 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 centerfire

magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested.

If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance.

If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup detat, such violation shall be absorbed as an element of the crime of rebellion or insurrection, sedition, or attempted coup detat.

The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment.

The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor.

x x x x A simple reading thereof shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the other crime is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms.

Moreover, penal laws are construed liberally in favor of the accused. In this case, the plain meaning of RA 8294s simple language is most favorable to herein appellant. Verily, no other interpretation is

justified, for the language of the new law demonstrates the legislative intent to favor the accused. Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with attempted homicide. Moreover, since the crime committed was direct assault and not homicide or murder, illegal possession of firearms cannot be deemed an aggravating circumstance x x x x The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that no other crime was committed by the person arrested. If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should we.

The Court is aware that this ruling effectively exonerates accused-appellants x x x of illegal possession of an M-14 rifle, an offense which normally carries a penalty heavier than that for direct assault. While the penalty for the first is prision mayor, for the second, it is only prision correccional. Indeed, an accused may evade conviction for illegal possession of firearms by using such weapons in committing an even lighter offense, like alarm and scandal or slight physical injuries, both of which are punishable by arresto menor. This consequence necessarily arises from the language of RA 8294 the wisdom of which is not subject to review by this Court.[128]

Accordingly, we are constrained to dismiss Crim. Case No. Q-96-68049 and set aside the judgment of conviction therein since accused-appellants Rotchel Lariba and Rodante Rogel cannot be held liable for illegal possession of firearms and ammunitions there being another crime - kidnapping for ransom - which they were perpetrating at the same time.

In fine, we affirm the conviction of Gerry Valler and Ronald Roland Garcia as principals and Rotchel Lariba and Rodante Rogel as accomplices for the crime of kidnapping for ransom and serious illegal detention. This Court is compelled to impose the supreme penalty of death on Valler and Garcia as mandated by Art. 267 of The Revised Penal Code, as amended by RA 7659.

The penalty imposable on Lariba and Rogel as accomplices is reclusion perpetua, the penalty one degree lower than that

prescribed for the crime committed pursuant to Art. 52 in relation to Art. 61, par. (1), of the Code. We however set aside the judgment in Crim. Case No. Q-96-68049 convicting Lariba and Rogel of illegal possession of firearms and ammunition in light of the foregoing discussion.

As regards the moral damages against accused-appellants to be paid by them in solidum, we find the amount of P200,000.00 to be reasonable compensation for the ignominy and sufferings Atty. Tioleco and his family endured due to accused-appellants inhumane act of detaining him in blindfold and handcuffs and mentally torturing him and his family to raise the ransom money. The fact that they suffered the trauma of mental, physical and psychological ordeal which constitute the bases for moral damages under the Civil Code[129] is too obvious to require still the recital thereof at the trial through the superfluity of a testimonial charade.

Following our finding that only Gerry Valler and Ronald Roland Garcia are principals by direct participation and conspirators while Rotchel Lariba and Rodante Rogel are accomplices, we apportion their respective responsibilities for the amount adjudged as moral damages to be paid by them solidarily within their respective class and subsidiarily for the others.[130] Thus, the principals, accused-appellants Ronald Roland Garcia and Gerry Valler, shall pay their victim Atty. Romualdo Tioleco P150,000.00 for moral damages and the accomplices P50,000.00 for moral damages.

WHEREFORE, the Decision of the court a quo is MODIFIED. In Crim. Case No. Q-96-68049 (G.R. No. 133489) accused-appellants RONALD ROLAND GARCIA y FLORES and GERRY B. VALLER are declared guilty as PRINCIPALS of kidnapping for ransom and serious illegal detention and are sentenced each to death, while accused-appellants RODANTE ROGEL y ROSALES and ROTCHEL LARIBA y DEMICILLO are convicted as ACCOMPLICES and are ordered to serve the penalty of reclusion perpetua with the accessories provided by law for the same crime of kidnapping for ransom and serious illegal detention. Accused-appellants are further ordered to pay moral damages in the amount of P200,000.00, with the principals being solidarily liable for P150,000.00 of this amount and subsidiarily for the civil liability of the accomplices, and the

accomplices being solidarily liable for P50,000.00 for moral damages and subsidiarily for the civil liability of the principals.

Finally, in Crim. Case No. Q-96-68050 (G.R. No. 143970) the Decision of the court a quo convicting RODANTE ROGEL y ROSALES and ROTCHEL LARIBA y DEMICILLO of illegal possession of firearms and ammunition is REVERSED and SET ASIDE in light of the enactment of RA 8294 and our rulings in People v. Ladjaalam[131] and Evangelista v. Siztoza.[132]

Four (4) Justices of the Court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority that the law is constitutional and the death penalty can be lawfully imposed in the case at bar.

In accordance with Art. 83 of The Revised Penal Code, as amended by Sec. 25 of RA No. 7659, upon the finality of this Decision let the records of this case be forthwith forwarded to the Office of the President for the possible exercise of Her Excellencys pardoning power. Costs against accused-appellants.

SO ORDERED.