Republic of the Philippines design did then and there willfully, unlawfully and feloniously had carnal

SUPREME COURT knowledge with one AAA, a five-year old minor child.
Manila
CONTRARY TO LAW, with the qualifying/aggravating circumstance of minority,
FIRST DIVISION the victim being only five years old.7

G.R. No. 182239               March 16, 2011 On 15 July 2003, appellant entered a plea of not guilty. 8 During pre-trial,9 the
defense admitted the existence of the following documents: (1) birth certificate
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, of AAA, showing that she was born on 3 December 1997; (2) police blotter
vs. entry on the rape incident; and (3) medical certificate, upon presentation of the
HERMIE M. JACINTO, Accused-Appellant. original or upon identification thereof by the physician.

DECISION Trial ensued with the prosecution and the defense presenting witnesses to
prove their respective versions of the story.
PEREZ, J.:
Evidence for the Prosecution
Once again, we recite the time-honored principle that the defense of
alibi  cannot prevail over the victim’s positive identification of the accused as the The testimonies of AAA,10 her father FFF,11 and rebuttal witness Julito Apiki
perpetrator of the crime.1 For it to prosper, the court must be convinced that [Julito]12 may be summarized in the following manner:
there was physical impossibility on the part of the accused to have been at
the locus criminis  at the time of the commission of the crime. 2 FFF and appellant have been neighbors since they were born. FFF’s house is
along the road. That of appellant lies at the back approximately 80 meters from
Nevertheless, a child in conflict with the law, whose judgment of conviction has FFF. To access the road, appellant has to pass by FFF’s house, the frequency
become final and executory only after his disqualification from availing of the of which the latter describes to be "every minute [and] every hour." Also,
benefits of suspended sentence on the ground that he/she has exceeded the appellant often visits FFF because they were close friends. He bore no grudge
age limit of twenty-one (21) years, shall still be entitled to the right to against appellant prior to the incident.13
restoration, rehabilitation, and reintegration in accordance with Republic Act No.
9344, otherwise known as "An Act Establishing a Comprehensive Juvenile AAA likewise knows appellant well. She usually calls him kuya.  She sees him
Justice and Welfare System, Creating the Juvenile Justice and Welfare Council all the time – playing at the basketball court near her house, fetching water, and
under the Department of Justice, Appropriating Funds Therefor and for Other passing by her house on his way to the road. She and appellant used to be
Purposes." friends until the incident.14

Convicted for the rape of five-year-old AAA, 3 appellant Hermie M. Jacinto seeks At about past 6 o’clock in the evening of 28 January 2003, FFF sent his eight-
before this Court the reversal of the judgment of his conviction. 4 year-old daughter CCC to the store of Rudy Hatague to buy cigarettes. AAA
followed CCC. When CCC returned without AAA, FFF was not alarmed. He
The Facts thought she was watching television at the house of her aunt Rita Lingcay
[Rita].15
In an Information dated 20 March 20035 filed with the Regional Trial Court and
docketed as Criminal Case No. 1679-13-141[1], 6 appellant was accused of the Julito went to the same store at around 6:20 in the evening to buy a bottle of
crime of RAPE allegedly committed as follows: Tanduay Rum.16 At the store, he saw appellant place AAA on his lap. 17 He was
wearing sleeveless shirt and a pair of short pants. 18 All of them left the store at
the same time.19 Julito proceeded to the house of Rita to watch television, while
That on or about the 28th day of January, 2003 at about 7:00 o’clock in the
appellant, who held the hand of AAA, went towards the direction of the "lower
evening more or less, at barangay xxx, municipality of xxx, province of xxx and
area or place."20
within the jurisdiction of this Honorable Court, [Hermie M. Jacinto], with lewd
AAA recalled that appellant was wearing a chaleko (sando) and a pair of short 2. Petechial hemorrhages on both per-orbital areas.
pants21 when he held her hand while on the road near the store. 22 They walked
towards the rice field near the house of spouses Alejandro and Gloria Perocho 3. Hematoma over the left upper arm, lateral area
[the Perochos].23 There he made her lie down on harrowed ground, removed
her panty and boxed her on the chest. 24 Already half-naked from waist 4. Hematoma over the upper anterior chest wall, midclavicular line
down,25 he mounted her, and, while her legs were pushed apart, pushed his
penis into her vagina and made a push and pull movement. 26 She felt pain and
cried.27 Afterwards, appellant left and proceeded to the Perochos. 28 She, in turn, 5. Abrasion over the posterior trunk, paravertebral area
went straight home crying.29
6. Genital and peri-anal area soiled with debris and whitish mucoid-like
30
FFF heard AAA crying and calling his name from downstairs.  She was without material
slippers.31 He found her face greasy.32 There was mud on her head and blood
was oozing from the back of her head. 33 He checked for any injury and found on 7. Introitus is erythematous with minimal bleeding
her neck a contusion that was already turning black. 34 She had no underwear
on and he saw white substance and mud on her vagina. 35 AAA told him that 8. Hymenal lacerations at the 5 o’clock and 9 o’clock position
appellant brought her from the store36 to the grassy area at the back of the
house of the Perochos;37 that he threw away her pair of slippers, removed her Impression
panty, choked her and boxed her breast; 38 and that he proceeded thereafter to
the Perochos.39
MULTIPLE SOFT TISSUE INJURIES
True enough, FFF found appellant at the house of the Perochos. 40 He asked
HYMENAL LACERATIONS
the appellant what he did to AAA. 41 Appellant replied that he was asked to buy
rum at the store and that AAA followed him. 42 FFF went home to check on his
daughter,43 afterwhich, he went back to appellant, asked again, 44 and boxed Upon the recommendation of Dr. Gaspar,57 AAA submitted herself to another
him.45 examination at the provincial hospital on the following day. Dr. Christine Ruth B.
Micabalo, Medical Officer III of the provincial hospital, attended to her and
issued a medico-legal certificate dated 29 January 2003, 58 the pertinent portion
Meanwhile, at around 7:45 in the evening of even date, Julito was still watching
of which reads:
television at the house of Rita.46 AAA and her mother MMM arrived.47 AAA was
crying.48 Julito pitied her, embraced her, and asked what happened to her, to
which she replied that appellant raped her. 49 Julito left and found appellant at P.E. = Findings is consistent with Dr. Bernardita M. Gaspar findings except No.
the Perochos.50 Julito asked appellant, "Bads, did you really rape the child, the 6 and 7 there is no bleeding in this time of examination. (sic) 59
daughter of [MMM]?" but the latter ignored his question. 51 Appellant’s aunt,
Gloria, told appellant that the policemen were coming to which the appellant Evidence for the Defense
responded, "Wait a minute because I will wash the dirt of my elbow (sic) and
my knees."52 Julito did found the elbows and knees of appellant with dirt. 53 Interposing the defense of alibi,  appellant gave a different version of the story.
To corroborate his testimony, Luzvilla Balucan [Luzvilla] and his aunt Gloria
On that same evening, FFF and AAA proceeded to the police station to have took the witness stand to affirm that he was at the Perochos at the time of the
the incident blottered.54 FFF also had AAA undergo a physical check up at the commission of the crime.60 Luzvilla even went further to state that she actually
municipal health center.55 Dr. Bernardita M. Gaspar, M.D., Rural Health saw Julito, not appellant, pick up AAA on the road. 61 In addition, Antonia
Physician, issued a medical certificate56 dated 29 January 2003. It reads: Perocho [Antonia], sister-in-law of appellant’s aunt, Gloria, 62 testified on the
behavior of Julito after the rape incident was revealed. 63
Injuries seen are as follows:

1. Multiple abrasions with erythema along the neck area.

Appellant claimed that he lives with his aunt, not with his parents whose house AAA did not answer. Upon Antonia’s advice, Julito released her and went out of
stands at the back of FFF’s house. 64 He denied that there was a need to pass the house.84
by the house of FFF in order to access the road or to fetch water. 65 He,
however, admitted that he occasionally worked for FFF, 66 and whenever he was Appellant further testified that at past 7 o’clock in the evening, FFF arrived,
asked to buy something from the store, AAA always approached him. 67 pointed a finger at him, brandished a bolo, and accused him of molesting AAA.
FFF left but returned at around 8 o’clock in the evening. This time, he boxed
At about 8 o’clock in the morning of 28 January 2003, appellant went to the appellant and asked again why he molested his daughter. 85
Perochos to attend a birthday party. At 6:08 in the evening, while the visitors,
including appellant and his uncle Alejandro Perocho [Alejandro], were gathered On 26 March 2004, the Regional Trial Court rendered its decision, 86 the
together in a drinking session, appellant’s uncle sent him to the store to buy dispositive portion of which reads:
Tanduay Rum. Since the store is only about 20 meters from the house, he was
able to return after three (3) minutes. He was certain of the time because he WHEREFORE, finding accused Hermie M. Jacinto guilty beyond reasonable
had a watch .68 doubt of rape committed upon a 5-year old girl, the court sentences him to
death and orders him to pay [AAA] P75,000.000 as rape indemnity and
Appellant’s aunt, Gloria, the lady of the house, confirmed that he was in her P50,000.00 as moral damages. With costs87
house attending the birthday party; and that appellant went out between 6 and
7 in the evening to buy a bottle of Tanduay from the store. She recalled that The defense moved to reopen trial for reception of newly discovered evidence
appellant was back around five (5) minutes later. She also observed that stating that appellant was apparently born on 1 March 1985 and that he was
appellant’s white shorts and white sleeveless shirt were clean. 69 only seventeen (17) years old when the crime was committed on 28 January
2003.88 The trial court appreciated the evidence and reduced the penalty from
At 6:30 in the evening,70 Luzvilla, who was also at the party, saw appellant at death to reclusion perpetua.89 Thus:
the kitchen having a drink with his uncle Alejandro and the rest of the
visitors.71 She went out to relieve herself at the side of the tree beside the road WHEREFORE, the judgment of the court imposing the death penalty upon the
next to the house of the Perochos. 72 From where she was, she saw Julito, who accused is amended in order to consider the privileged mitigating circumstance
was wearing black short pants and black T-shirt, carry AAA. 73 AAA’s face was of minority. The penalty impos[a]ble upon the accused, therefore[,] is reduced
covered and she was wiggling.74 This did not alarm her because she thought it to reclusion perpetua. xxx
was just a game.75 Meanwhile, appellant was still in the kitchen when she
returned.76 Around three (3) minutes later, Luzvilla saw Julito, now in a white T-
shirt,77 running towards the house of Rita. 78 AAA was slowly following Appealed to this Court, the case was transferred to the Court of Appeals for its
behind.79 Luzvilla followed them.80 Just outside the house, Julito embraced AAA disposition in view of the ruling in People v. Mateo and the Internal Rules of the
and asked what the appellant did to her.81 The child did not answer.82 Supreme Court allowing an intermediate review by the Court of Appeals of
cases where the penalty imposed is death, reclusion perpetua, or life
imprisonment.90
Luzvilla also followed FFF to the Perochos. She witnessed the punching
incident and testified that appellant was twice boxed by FFF. According to her,
FFF tapped the left shoulder of the appellant, boxed him, and left. FFF came in On 29 August 2007, the Court of Appeals AFFIRMED the decision of the trial
the second time and again boxed appellant. This time, he had a bolo pointed at court with the following MODIFICATIONS:
appellant. Appellant’s uncle Alejandro, a barangay councilor, and another
Civilian Voluntary Organization (CVO) member admonished FFF.83 xxx that Hermie M. Jacinto should suffer the Indeterminate penalty of from six
(6) years and one (1) day to twelve (12) years of prision  mayor, as minimum, to
On sur-rebuttal, Antonia testified that, at 7 o’clock in the evening, she was seventeen (17) and four (4) months of reclusion temporal, as maximum.
watching the television along with other people at the house of Rita. Around Appellant Hermie M. Jacinto is ordered to indemnify the victim in the sum of
7:10, Julito, who was wearing only a pair of black short pants without a shirt on, P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P25,000.00
entered the house drunk. He paced back and forth. After 10 minutes, AAA as exemplary damages and to pay the costs.91
came in crying. Julito tightly embraced AAA and asked her what happened.
On 19 November 2007, the Court of Appeals gave due course to the appellant’s
Notice of Appeal.92 This Court required the parties to simultaneously file their
respective supplemental briefs.93 Both parties manifested that they have That the crime of rape has been committed is certain. The vivid narration of the
exhaustively discussed their positions in their respective briefs and would no acts culminating in the insertion of appellant’s organ into the vagina of five-year-
longer file any supplement.94 old AAA and the medical findings of the physicians sufficiently proved such fact.

Before the Court of Appeals, appellant argued that "THE COURT A QUO AAA testified:
GRAVELY ERRED IN CONVICTING HEREIN ACCUSED-APPELLANT
GUILTY BEYOND REASONABLE DOUBT OF RAPE" 95 by invoking the PROS. OMANDAM:
principle that "if the inculpatory facts and circumstances are capable of two or
more reasonable explanations, one of which is consistent with the innocence of xxxx
the accused and the other with his guilt, then the evidence does not pass the
test of moral certainty and will not suffice to support a conviction." 96
Q You said Hermie laid you on the ground, removed your panty and
boxed you, what else did he do to you?
Our Ruling
A He mounted me.
We sustain the judgment of conviction.
Q When Hermie mounted you, was he facing you?
In the determination of the innocence or guilt of a person accused of rape, we
consider the three well-entrenched principles:
A Yes.
(1) an accusation for rape can be made with facility; it is difficult to prove but
more difficult for the accused, though innocent, to disprove; (2) in view of the Q When he mounted you what did he do, did he move?
intrinsic nature of the crime of rape in which only two persons are usually
involved, the testimony of the complainant must be scrutinized with extreme A He moved his ass, he made a push and pull movement.
caution; and (3) the evidence for the prosecution must stand or fall on its own
merits, and cannot be allowed to draw strength from the weakness of the Q When he made a push and pull movement, how were your legs
evidence for the defense.97 positioned?

Necessarily, the credible, natural, and convincing testimony of the victim may A They were apart.
be sufficient to convict the accused. 98 More so, when the testimony is supported
by the medico-legal findings of the examining physician.99 Q Who pushed them apart?

Further, the defense of alibi cannot prevail over the victim’s positive A Hermie.
identification of the perpetrator of the crime, 100 except when it is established that
it was physically impossible for the accused to have been at the locus
Q Did Hermie push anything at you?
criminis at the time of the commission of the crime.101

A Yes.
I

Q What was that?

A man commits rape by having carnal knowledge of a child under twelve (12)
years of age even in the absence of any of the following circumstances: (a)
through force, threat or intimidation; (b) when the offended party is deprived of A His penis.
reason or otherwise unconscious; or (c) by means of fraudulent machination or
grave abuse of authority.102 Q Where did he push his penis?
 A To my vagina. would be impossible for the child not to recognize the man who held her hand
and led her all the way to the rice field.
Q Was it painful?
We see no reason to disturb the findings of the trial court on the unwavering
A Yes. testimony of AAA.

Q What was painful? The certainty of the child, unusually intelligent for one so young, that it was
accused, whom she called "kuya" and who used to play basketball and fetch
water near their house, and who was wearing a sleeveless shirt and shorts at
A My vagina.
the time he raped her, was convincing and persuasive. The defense attempted
to impute the crime to someone else – one Julito Apiki, but the child, on
Q Did you cry? rebuttal, was steadfast and did not equivocate, asserting that it was accused
who is younger, and not Julito, who is older, who molested her. 112
A Yes.103
In a long line of cases, this Court has consistently ruled that the determination
The straightforward and consistent answers to the questions, which were by the trial court of the credibility of the witnesses deserves full weight and
phrased and re-phrased in order to test that AAA well understood the respect considering that it has "the opportunity to observe the witnesses’
information elicited from her, said it all – she had been raped. When a woman, manner of testifying, their furtive glances, calmness, sighs and the scant or full
more so a minor, says so, she says in effect all that is essential to show that realization of their oath,"113 unless it is shown that material facts and
rape was committed.104 Significantly, youth and immaturity are normally badges circumstances have been "ignored, overlooked, misconstrued, or
of truth and honesty.105 misinterpreted."114

Further, the medical findings and the testimony of Dr. Micabalo 106 revealed that Further, as correctly observed by the trial court:
the hymenal lacerations at 5 o’clock and 9 o’clock positions could have been
caused by the penetration of an object; that the redness of the introitus could xxx His and his witness’ attempt to throw the court off the track by imputing the
have been "the result of the repeated battering of the object;" and that such crime to someone else is xxx a vain exercise in view of the private
object could have been an erect male organ.107 complainant’s positive identification of accused and other corroborative
circumstances. Accused also admitted that on the same evening, Julito Apiki,
The credible testimony of AAA corroborated by the physician’s finding of the supposed real culprit, asked him "What is this incident, Pare?", thus
penetration conclusively established the essential requisite of carnal corroborating the latter’s testimony that he confronted accused after hearing of
knowledge.108 the incident from the child."115

II On the other hand, we cannot agree with the appellant that the trial court erred
in finding his denial and alibi weak despite the presentation of witnesses to
The real identity of the assailant and the whereabouts of the appellant at the corroborate his testimony. Glaring inconsistencies were all over their respective
time of the commission of the crime are now in dispute. testimonies that even destroyed the credibility of the appellant’s very testimony.

The defense would want us to believe that it was Julito who defiled AAA, and Appellant testified that it was his uncle Alejandro Perocho who sent him to store
that appellant was elsewhere when the crime was committed. 109 to buy Tanduay; that he gave the bottle to his uncle; and that they had already
been drinking long before he bought Tanduay at the store.
We should not, however, overlook the fact that a victim of rape could readily
identify her assailant, especially when he is not a stranger to her, considering This was contradicted by the testimony of his aunt Gloria, wife of his uncle
that she could have a good look at him during the commission of the Alejandro. On cross-examination, she revealed that her husband was not
crime.110 AAA had known appellant all her life. Moreover, appellant and AAA around before, during, and after the rape incident because he was then at
even walked together from the road near the store to the situs criminus111 that it work.116 He arrived from work only after FFF came to their house for the second
time and boxed appellant.117 It was actually the fish vendor, not her husband, committed. He must demonstrate that he was so far away and could not have
who asked appellant to buy Tanduay. 118 Further, the drinking session started been physically present at the scene of the crime and its immediate vicinity
only after the appellant’s errand to the store.119 when the crime was committed.123

Neither was the testimony of Luzvilla credible enough to deserve consideration. In People v. Paraiso,124 the distance of two thousand meters from the place of
the commission of the crime was considered not physically impossible to reach
Just like appellant, Luzvilla testified that Alejandro joined the drinking session. in less than an hour even by foot. 125 Inasmuch as it would take the accused not
This is contrary to Gloria’s statement that her husband was at work. more than five minutes to rape the victim, this Court disregarded the testimony
of the defense witness attesting that the accused was fast asleep when she left
to gather bamboo trees and returned several hours after. She could have
Luzvilla’s testimony is likewise inconsistent with that of sur-rebuttal witness
merely presumed that the accused slept all throughout. 126
Antonia Perocho. Antonia recalled that Julito arrived without a shirt on. This
belied Luzvilla’s claim that Julito wore a white shirt on his way to the house of
Rita. In addition, while both the prosecution, as testified to by AAA and Julito, In People v. Antivola,127 the testimonies of relatives and friends corroborating
and the defense, as testified to by Gloria, were consistent in saying that that of the appellant that he was in their company at the time of the commission
appellant wore a sleeveless shirt, Luzvilla’s recollection differ in that Julito wore of the crime were likewise disregarded by this Court in the following manner:
a T-shirt (colored black and later changed to white), and, thus, a short-sleeved
shirt. Ruben Nicolas, the appellant’s part-time employer, and Marites Capalad, the
appellant’s sister-in-law and co-worker, in unison, vouched for the appellant’s
Also, contrary to Luzvilla’s story that she saw AAA walking towards Rita’s physical presence in the fishpond at the time Rachel was raped. It is, however,
house three (3) minutes after she returned to the Perochos at 6:38 in the an established fact that the appellant’s house where the rape occurred, was
evening, Antonia recalled that AAA arrived at the house of Rita at 7:30. In this a stone’s throw away from the fishpond. Their claim that the appellant
respect, we find the trial court’s appreciation in order. Thus: never left their sight the entire afternoon of December 4, 1997 is
unacceptable. It was impossible for Marites to have kept an eye on the
appellant for almost four hours, since she testified that she, too, was very much
xxx. The child declared that after being raped, she went straight home, crying,
occupied with her task of counting and recording the fishes being harvested.
to tell her father that Hermie had raped her. She did not first drop into the house
Likewise, Mr. Nicolas, who, admittedly was 50 meters away from the fishpond,
of Lita Lingkay to cry among strangers who were watching TV, as Luzvilla
could not have focused his entire attention solely on the appellant. It is,
Balucan would have the court believe. When the child was seen at the house of
therefore, not farfetched that the appellant easily sneaked out unnoticed,
Lita Lingkay by Julito Apiki and Luzvilla Balucan, it was only later, after she had
and along the way inveigled the victim, brought her inside his house and
been brought there by her mother Brenda so that Lita Lingkay could take a look
ravished her, then returned to the fishpond as if he never left.128 (Emphasis
at her ˗ just as Julito Apiki said.120
supplied.)1avvphi1
Above all, for alibi to prosper, it is necessary that the corroboration is credible,
As in the cases above cited, the claim of the defense witnesses that appellant
the same having been offered preferably by disinterested witnesses. The
never left their sight, save from the 5-minute errand to the store, is contrary to
defense failed thuswise. Its witnesses cannot qualify as such, "they being
ordinary human experience. Moreover, considering that the farmland where the
related or were one way or another linked to each other." 121
crime was committed is just behind the house of the Perochos, it would take
appellant only a few minutes to bring AAA from the road near the store next to
Even assuming for the sake of argument that we consider the corroborations on the Perochos down the farmland and consummate the crime. As correctly
his whereabouts, still, the defense of alibi cannot prosper. pointed out by the Court of Appeals, appellant could have committed the rape
after buying the bottle of Tanduay and immediately returned to his uncle’s
We reiterate, time and again, that the court must be convinced that it would be house.129 Unfortunately, the testimonies of his corroborating witnesses even
physically impossible for the accused to have been at the locus criminis at the bolstered the fact that he was within the immediate vicinity of the scene of the
time of the commission of the crime.122 crime.130

Physical impossibility refers to distance and the facility of access between

the situs criminis and the location of the accused when the crime was
Clearly, the defense failed to prove that it was physically impossible for (17) year-old appellant’s mental capacity to fully understand the consequences
appellant to have been at the time and place of the commission of the crime. of his unlawful action.139

All considered, we find that the prosecution has sufficiently established the guilt Nonetheless, the corresponding imposable penalty should be modified.
of the appellant beyond reasonable doubt.
The birth certificate of AAA140 shows that she was born on 3 December 1997.
III Considering that she was only five (5) years old when appellant defiled her on
28 January 2003, the law prescribing the death penalty when rape is committed
In the determination of the imposable penalty, the Court of Appeals correctly against a child below seven (7) years old141 applies.
considered Republic Act No. 9344 (Juvenile Justice and Welfare Act of
2006) despite the commission of the crime three (3) years before it was The following, however, calls for the reduction of the penalty: (1) the prohibition
enacted on 28 April 2006. against the imposition of the penalty of death in accordance with Republic Act
No. 9346;142 and (2) the privileged mitigating circumstance of minority of the
We recognize its retroactive application following the rationale elucidated appellant, which has the effect of reducing the penalty one degree lower than
in People v. Sarcia:131 that prescribed by law, pursuant to Article 68 of the Revised Penal Code. 143

[Sec. 68 of Republic Act No. 9344]132 allows the retroactive application of the Relying on People v. Bon,144 the Court of Appeals excluded death from the
Act to those who have been convicted and are serving sentence at the time of graduation of penalties provided in Article 71 of the Revised Penal
the effectivity of this said Act, and who were below the age of 18 years at the Code.145 Consequently, in its appreciation of the privileged mitigating
time of the commission of the offense. With more reason, the Act should circumstance of minority of appellant, it lowered the penalty one degree
apply to this case wherein the conviction by the lower court is still under from reclusion perpetua and sentenced appellant to suffer the indeterminate
review.133 (Emphasis supplied.) penalty of six (6) years and one (1) day to twelve (12) years of prision mayor,
as minimum, to seventeen (17) years and four (4) months of reclusion temporal,
in its medium period, as maximum.146
Criminal Liability; Imposable Penalty

We differ.
Sec. 6 of Republic Act No. 9344 exempts a child above fifteen (15) years but
below eighteen (18) years of age from criminal liability, unless the child is found
to have acted with discernment, in which case, "the appropriate proceedings" in In a more recent case,147 the Court En Banc, through the Honorable Justice
accordance with the Act shall be observed.134 Teresita J. Leonardo-de Castro, clarified:

We determine discernment in this wise: Under Article 68 of the Revised Penal Code, when the offender is a minor
under 18 years, the penalty next lower than that prescribed by law shall be
imposed, but always in the proper period. However, for purposes of
Discernment is that mental capacity of a minor to fully appreciate the
determining the proper penalty because of the privileged mitigating
consequences of his unlawful act. 135 Such capacity may be known and should
circumstance of minority, the penalty of death is still the penalty to be
be determined by taking into consideration all the facts and circumstances
reckoned with. Thus, the proper imposable penalty for the accused-appellant
afforded by the records in each case.136
is reclusion perpetua.148 (Emphasis supplied.)
xxx The surrounding circumstances must demonstrate that the minor knew
Accordingly, appellant should be meted the penalty of reclusion perpetua.
what he was doing and that it was wrong.137 Such circumstance includes the
gruesome nature of the crime and the minor’s cunning and shrewdness. 138
Civil Liability
In the present case, we agree with the Court of Appeals that: "(1) choosing an
isolated and dark place to perpetrate the crime, to prevent detection[;] and (2) We have consistently ruled that:
boxing the victim xxx, to weaken her defense" are indicative of then seventeen
The litmus test xxx in the determination of the civil indemnity is the heinous The xxx provision makes no distinction as to the nature of the offense
character of the crime committed, which would have warranted the imposition of committed by the child in conflict with the law, unlike P.D. No. 603 and A.M. No.
the death penalty, regardless of whether the penalty actually imposed is 02-1-18-SC. The said P.D. and Supreme Court (SC) Rule provide that the
reduced to reclusion perpetua.149 benefit of suspended sentence would not apply to a child in conflict with the law
if, among others, he/she has been convicted of an offense punishable by
Likewise, the fact that the offender was still a minor at the time he committed death, reclusion perpetua or life imprisonment. In construing Sec. 38 of R.A.
the crime has no bearing on the gravity and extent of injury suffered by the No. 9344, the Court is guided by the basic principle of statutory construction
victim and her family.150 The respective awards of civil indemnity and moral that when the law does not distinguish, we should not distinguish. Since R.A.
damages in the amount of ₱75,000.00 each are, therefore, proper. 151 No. 9344 does not distinguish between a minor who has been convicted of a
capital offense and another who has been convicted of a lesser offense, the
Court should also not distinguish and should apply the automatic suspension of
Accordingly, despite the presence of the privileged mitigating circumstance of
sentence to a child in conflict with the law who has been found guilty of a
minority which effectively lowered the penalty by one degree, we affirm the
heinous crime.157
damages awarded by the Court of Appeals in the amount of ₱75,000.00 as civil
indemnity and ₱75,000.00 as moral damages. And, consistent with prevailing
jurisprudence,152 the amount of exemplary damages should be increased from The legislative intent reflected in the Senate deliberations 158 on Senate Bill No.
₱25,000.00 to ₱30,000.00. 1402 (Juvenile Justice and Delinquency Prevention Act of 2005) further
strengthened the new position of this Court to cover heinous crimes in the
application of the provision on the automatic suspension of sentence of a child
Automatic Suspension of Sentence; Duration; Appropriate Disposition after the
in conflict with the law. The pertinent portion of the deliberation reads:
Lapse of the Period of Suspension of Sentence

If a mature minor, maybe 16 years old to below 18 years old is charged,

Republic Act No. 9344 warrants the suspension of sentence of a child in conflict
accused with, or may have committed a serious offense, and may have acted
with the law notwithstanding that he/she has reached the age of majority at the
with discernment, then the child could be recommended by the Department of
time the judgment of conviction is pronounced. Thus:
Social Welfare and Development (DSWD), by the Local Council for the
Protection of Children (LCPC), or by [Senator Miriam Defensor-Santiago’s]
SEC. 38. Automatic Suspension of Sentence. - Once the child who is under proposed Office of Juvenile Welfare and Restoration to go through a judicial
eighteen (18) years of age at the time of the commission of the offense is found proceeding; but the welfare, best interests, and restoration of the child should
guilty of the offense charged, the court shall determine and ascertain any civil still be a primordial or primary consideration. Even in heinous crimes, the
liability which may have resulted from the offense committed. However, instead intention should still be the child’s restoration, rehabilitation and
of pronouncing the judgment of conviction, the court shall place the child in reintegration. xxx (Italics supplied in Sarcia.)159
conflict with the law under suspended sentence, without need of
application: Provided, however, That suspension of sentence shall still be
On 24 November 2009, the Court En Banc  promulgated the Revised Rule on
applied even if the juvenile is already eighteen (18) years of age or more
Children in Conflict with the Law, which reflected the same position.160
at the time of the pronouncement of his/her guilt. (Emphasis supplied.)

These developments notwithstanding, we find that the benefits of a suspended

xxxx
sentence can no longer apply to appellant. The suspension of sentence lasts
only until the child in conflict with the law reaches the maximum age of twenty-
Applying Declarador v. Gubaton,153 which was promulgated on 18 August 2006, one (21) years.161 Section 40162 of the law and Section 48163 of the Rule are
the Court of Appeals held that, consistent with Article 192 of Presidential clear on the matter. Unfortunately, appellant is now twenty-five (25) years old.
Decree No. 603, as amended,154 the aforestated provision does not apply to
one who has been convicted of an offense punishable by death, reclusion
Be that as it may, to give meaning to the legislative intent of the Act, the
perpetua or life imprisonment.155
promotion of the welfare of a child in conflict with the law should extend even to
one who has exceeded the age limit of twenty-one (21) years, so long as
Meanwhile, on 10 September 2009, this Court promulgated the decision he/she committed the crime when he/she was still a child. The offender shall be
in Sarcia,156 overturning the ruling in Gubaton. Thus: entitled to the right to restoration, rehabilitation and reintegration in accordance
with the Act in order that he/she is given the chance to live a normal life and MARIANO C. DEL CASTILLO
become a productive member of the community. The age of the child in conflict Associate Justice
with the law at the time of the promulgation of the judgment of conviction is not
material. What matters is that the offender committed the offense when he/she CERTIFICATION
was still of tender age.
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
Thus, appellant may be confined in an agricultural camp or any other training conclusions in the above Decision had been reached in consultation before the
facility in accordance with Sec. 51 of Republic Act No. 9344. 164 case was assigned to the writer of the opinion of the Court’s Division.

Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other RENATO C. CORONA
Training Facilities.  – A child in conflict with the law may, after conviction and Chief Justice
upon order of the court, be made to serve his/her sentence, in lieu of
confinement in a regular penal institution, in an agricultural camp and other
training facilities that may be established, maintained, supervised and
controlled by the BUCOR, in coordination with the DSWD.
Republic of the Philippines
SUPREME COURT
Following the pronouncement in Sarcia, 165 the case shall be remanded to the Manila
court of origin to effect appellant’s confinement in an agricultrual camp or other
training facility.
SECOND DIVISION
WHEREFORE, the Decision dated 29 August 2007 of the Court of Appeals in
CA-G.R. CR HC No. 00213 finding appellant Hermie M. Jacinto guilty beyond
reasonable doubt of qualified rape is AFFIRMED with the
following MODIFICATIONS: (1) the death penalty imposed on the appellant is G.R. No. 103119 October 21, 1992
reduced to reclusion perpetua; and (2) appellant is ordered to pay the victim
P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P30,000.00 SULPICIO INTOD, petitioner,
as exemplary damages. The case is hereby REMANDED to the court of vs.
origin for its appropriate action in accordance with Section 51 of Republic Act HONORABLE COURT OF APPEALS and PEOPLE OF THE
No. 9344. PHILIPPINES, respondents.

SO ORDERED.

JOSE PORTUGAL PEREZ CAMPOS, JR., J.:

Associate Justice
Petitioner, Sulpicio Intod, filed this petition for review of the decision of the
WE CONCUR: Court of Appeals 1 affirming in toto the judgment of the Regional Trial Court,
Branch XIV, Oroquieta City, finding him guilty of the crime of attempted murder.
RENATO C. CORONA
Chief Justice From the records, we gathered the following facts.
Chairperson
In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos
TERESITA J. LEONARDO-DE Tubio and Avelino Daligdig went to Salvador Mandaya's house in Katugasan,
PRESBITERO J. VELASCO, JR.
CASTRO Lopez Jaena, Misamis Occidental and asked him to go with them to the house
Associate Justice
Associate Justice of Bernardina Palangpangan. Thereafter, Mandaya and Intod, Pangasian,
Tubio and Daligdig had a meeting with Aniceto Dumalagan. He told Mandaya . . . The crime of murder was not consummated, not because of
that he wanted Palangpangan to be killed because of a land dispute between the inherent impossibility of its accomplishment (Art. 4(2),
them and that Mandaya should accompany the four (4) men, otherwise, he Revised Penal Code), but due to a cause or accident other
would also be killed. than petitioner's and his accused's own spontaneous
desistance (Art. 3., Ibid.) Palangpangan did not sleep at her
At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya, house at that time. Had it not been for this fact, the crime is
Pangasian, Tubio and Daligdig, all armed with firearms, arrived at possible, not impossible. 3
Palangpangan's house in Katugasan, Lopez Jaena, Misamis Occidental. At the
instance of his companions, Mandaya pointed the location of Palangpangan's Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks
bedroom. Thereafter, Petitioner, Pangasian, Tubio and Daligdig fired at said to remedy the void in the Old Penal Code where:
room. It turned out, however, that Palangpangan was in another City and her
home was then occupied by her son-in-law and his family. No one was in the . . . it was necessary that the execution of the act has been
room when the accused fired the shots. No one was hit by the gun fire. commenced, that the person conceiving the idea should have
set about doing the deed, employing appropriate means in
Petitioner and his companions were positively identified by witnesses. One order that his intent might become a reality, and finally, that the
witness testified that before the five men left the premises, they shouted: "We result or end contemplated shall have been physically possible.
will kill you (the witness) and especially Bernardina Palangpangan and we will So long as these conditions were not present, the law and the
come back if (sic) you were not injured". 2 courts did not hold him criminally liable. 5

After trial, the Regional Trial Court convicted Intod of attempted murder. The This legal doctrine left social interests entirely unprotected. 6 The Revised
court (RTC), as affirmed by the Court of Appeals, holding that Petitioner was Penal Code, inspired by the Positivist School, recognizes in the offender his
guilty of attempted murder. Petitioner seeks from this Court a modification of formidability, 7 and now penalizes an act which were it not aimed at something
the judgment by holding him liable only for an impossible crime, citing Article quite impossible or carried out with means which prove inadequate, would
4(2) of the Revised Penal Code which provides: constitute a felony against person or against property. 8 The rationale of Article
4(2) is to punish such criminal tendencies. 9
Art. 4(2). CRIMINAL RESPONSIBILITY. — Criminal
Responsibility shall be incurred: Under this article, the act performed by the offender cannot produce an offense
against person or property because: (1) the commission of the offense is
xxx xxx xxx inherently impossible of accomplishment: or (2) the means employed is either
(a) inadequate or (b) ineffectual. 10
2. By any person performing an act which would be an offense
against persons or property, were it not for the inherent That the offense cannot be produced because the commission of the offense is
impossibility of its accomplishment or on account of the inherently impossible of accomplishment is the focus of this petition. To be
employment of inadequate or ineffectual means. impossible under this clause, the act intended by the offender must be by its
nature one impossible of accomplishment. 11 There must be either impossibility
of accomplishing the intended act 12 in order to qualify the act an impossible
Petitioner contends that, Palangpangan's absence from her room on
crime.
the night he and his companions riddled it with bullets made the crime
inherently impossible.
Legal impossibility occurs where the intended acts, even if completed, would
not amount to a crime. 13 Thus:
On the other hand, Respondent People of the Philippines argues that the crime
was not impossible. Instead, the facts were sufficient to constitute an attempt
and to convict Intod for attempted murder. Respondent alleged that there was Legal impossibility would apply to those circumstances where
intent. Further, in its Comment to the Petition, respondent pointed out that: (1) the motive, desire and expectation is to perform an act in
violation of the law; (2) there is intention to perform the physical
act; (3) there is a performance of the intended physical act; and
 (4) the consequence resulting from the intended act does not impossibility grows out of extraneous acts not within the control
amount to a crime. 14 of the party.

The impossibility of killing a person already dead 15 falls in this category. In the case of Clark vs. State, 20 the court held defendant liable for attempted
robbery even if there was nothing to rob. In disposing of the case, the court
On the other hand, factual impossibility occurs when extraneous circumstances quoted Mr. Justice Bishop, to wit:
unknown to the actor or beyond his control prevent the consummation of the
intended crime. 16 One example is the man who puts his hand in the coat It being an accepted truth that defendant deserves punishment
pocket of another with the intention to steal the latter's wallet and finds the by reason of his criminal intent, no one can seriously doubt that
pocket empty. 17 the protection of the public requires the punishment to be
administered, equally whether in the unseen depths of the
The case at bar belongs to this category. Petitioner shoots the place where he pocket, etc., what was supposed to exist was really present or
thought his victim would be, although in reality, the victim was not present in not. The community suffers from the mere alarm of crime.
said place and thus, the petitioner failed to accomplish his end. Again: Where the thing intended (attempted) as a crime and
what is done is a sort to create alarm, in other words, excite
apprehension that the evil; intention will be carried out, the
One American case had facts almost exactly the same as this one. In People
incipient act which the law of attempt takes cognizance of is in
vs.  Lee Kong, 18 the accused, with intent to kill, aimed and fired at the spot
reason committed.
where he thought the police officer would be. It turned out, however, that the
latter was in a different place. The accused failed to hit him and to achieve his
intent. The Court convicted the accused of an attempt to kill. It held that: In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of
victim's room thinking that the latter was inside. However, at that moment, the
victim was in another part of the house. The court convicted the accused of
The fact that the officer was not at the spot where the attacking
attempted murder.
party imagined where he was, and where the bullet pierced the
roof, renders it no less an attempt to kill. It is well settled
principle of criminal law in this country that where the criminal The aforecited cases are the same cases which have been relied upon by
result of an attempt is not accomplished simply because of an Respondent to make this Court sustain the judgment of attempted murder
obstruction in the way of the thing to be operated upon, and against Petitioner. However, we cannot rely upon these decisions to resolve the
these facts are unknown to the aggressor at the time, the issue at hand. There is a difference between the Philippine and the American
criminal attempt is committed. laws regarding the concept and appreciation of impossible crimes.

In the case of Strokes vs. State, 19 where the accused failed to accomplish his In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided
intent to kill the victim because the latter did not pass by the place where he for impossible crimes and made the punishable. Whereas, in the United States,
was lying-in wait, the court held him liable for attempted murder. The court the Code of Crimes and Criminal Procedure is silent regarding this matter.
explained that: What it provided for were attempts of the crimes enumerated in the said Code.
Furthermore, in said jurisdiction, the impossibility of committing the offense is
merely a defense to an attempt charge. In this regard, commentators and the
It was no fault of Strokes that the crime was not committed. . . .
cases generally divide the impossibility defense into two categories: legal
It only became impossible by reason of the extraneous
versus factual impossibility. 22 In U.S. vs.  Wilson 23 the Court held that:
circumstance that Lane did not go that way; and further, that he
was arrested and prevented from committing the murder. This
rule of the law has application only where it is inherently . . . factual impossibility of the commission of the crime is not a
impossible to commit the crime. It has no application to a case defense. If the crime could have been committed had the
where it becomes impossible for the crime to be committed, circumstances been as the defendant believed them to be, it is
either by outside interference or because of miscalculation as no defense that in reality the crime was impossible of
to a supposed opportunity to commit the crime which fails to commission.
materialize; in short it has no application to the case when the
Legal impossibility, on the other hand, is a defense which can be invoked to To uphold the contention of respondent that the offense was Attempted Murder
avoid criminal liability for an attempt. In U.S. vs. Berrigan, 24 the accused was because the absence of Palangpangan was a supervening cause independent
indicated for attempting to smuggle letters into and out of prison. The law of the actor's will, will render useless the provision in Article 4, which makes a
governing the matter made the act criminal if done without knowledge and person criminally liable for an act "which would be an offense against persons
consent of the warden. In this case, the offender intended to send a letter or property, were it not for the inherent impossibility of its accomplishment . . ."
without the latter's knowledge and consent and the act was performed. In that case all circumstances which prevented the consummation of the
However, unknown to him, the transmittal was achieved with the warden's offense will be treated as an accident independent of the actor's will which is an
knowledge and consent. The lower court held the accused liable for attempt but element of attempted and frustrated felonies.
the appellate court reversed. It held unacceptable the contention of the state
that "elimination of impossibility as a defense to a charge of criminal attempt, as WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED,
suggested by the Model Penal Code and the proposed federal legislation, is the decision of respondent Court of Appeals holding Petitioner guilty of
consistent with the overwhelming modern view". In disposing of this contention, Attempted Murder is hereby MODIFIED. We hereby hold Petitioner guilty of an
the Court held that the federal statutes did not contain such provision, and thus, impossible crime as defined and penalized in Articles 4, paragraph 2, and 59 of
following the principle of legality, no person could be criminally liable for an act the Revised Penal Code, respectively. Having in mind the social danger and
which was not made criminal by law. Further, it said: degree of criminality shown by Petitioner, this Court sentences him to suffer the
penalty of six (6) months of arresto mayor, together with the accessory
Congress has not yet enacted a law that provides that intent penalties provided by the law, and to pay the costs.
plus act plus conduct constitutes the offense of attempt
irrespective of legal impossibility until such time as such SO ORDERED.
legislative changes in the law take place, this court will not
fashion a new non-statutory law of criminal attempt. Feliciano, Regalado and Nocon, JJ., concur.

To restate, in the United States, where the offense sought to be committed is Narvasa, C.J., is on leave.
factually impossible or accomplishment, the offender cannot escape criminal
liability. He can be convicted of an attempt to commit the substantive crime
where the elements of attempt are satisfied. It appears, therefore, that the act is
penalized, not as an impossible crime, but as an attempt to commit a crime. On
the other hand, where the offense is legally impossible of accomplishment, the
actor cannot be held liable for any crime — neither for an attempt not for an
impossible crime. The only reason for this is that in American law, there is no
such thing as an impossible crime. Instead, it only recognizes impossibility as a
defense to a crime charge — that is, attempt.

This is not true in the Philippines. In our jurisdiction, impossible crimes are
recognized. The impossibility of accomplishing the criminal intent is not merely
a defense, but an act penalized by itself. Furthermore, the phrase "inherent
impossibility" that is found in Article 4(2) of the Revised Penal Code makes no
distinction between factual or physical impossibility and legal impossibility. Ubi
lex non distinguit nec nos distinguere debemos.

The factual situation in the case at bar present a physical impossibility which
rendered the intended crime impossible of accomplishment. And under Article
4, paragraph 2 of the Revised Penal Code, such is sufficient to make the act an
impossible crime.
 The evidence of the prosecution showed that in the morning of March 11, 1982,
while Enrico was walking with a classmate along Roque street in the poblacion
of Lopez, Quezon, he was approached by a man who requested his assistance
in getting his father's signature on a medical certificate. Enrico agreed to help
and rode with the man in a tricycle to Calantipayan, where he waited outside
while the man went into a building to get the certificate. Enrico became
apprehensive and started to cry when, instead of taking him to the hospital, the
man flagged a minibus and forced him inside, holding him firmly all the while.
The man told him to stop crying or he would not be returned to his father. When
they alighted at Gumaca, they took another tricycle, this time bound for the
municipal building from where they walked to the market. Here the man talked
to a jeepney driver and handed him an envelope addressed to Dr. Enrique
Agra, the boy's father. The two then boarded a tricycle headed for San Vicente,
Republic of the Philippines with the man still firmly holding Enrico, who continued crying. This aroused the
SUPREME COURT suspicion of the driver, Alexander Grate, who asked the man about his
Manila relationship with the boy. The man said he and the boy were brothers, making
Grate doubly suspicious because of the physical differences between the two
and the wide gap between their ages. Grate immediately reported the matter to
FIRST DIVISION
two barangay tanods when his passengers alighted from the tricycle. Grate and
the tanods  went after the two and saw the man dragging the boy. Noticing that
  they were being pursued, the man told Enrico to run fast as their pursuers might
behead them. Somehow, the man managed to escape, leaving Enrico behind.
G.R. No. 95322 March 1, 1993 Enrico was on his way home in a passenger jeep when he met his parents, who
were riding in the hospital ambulance and already looking for him. 2
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. At about 1:45 in the afternoon of the same day, after Enrico's return, Agra
PABLITO DOMASIAN AND DR. SAMSON TAN, accused-appellant. received an envelope containing a ransom note. The note demanded P1 million
for the release of Enrico and warned that otherwise the boy would be killed.
The Solicitor General for plaintiff-appellee. Agra thought the handwriting in the note was familiar. After comparing it with
some records in the hospital, he gave the note to the police, which referred it to
Silvestre L. Tagarao for appellant Pablito Domasian. the NBI for examination.3

Lino M. Patajo for appellant Dr. Samson Tan. The test showed that it bad been written by Dr. Samson Tan. 4 On the other
hand, Enrico was shown a folder of pictures in the police station so be could
identify the man who had detained him, and he pointed to the picture of Pablito
CRUZ, J.: Domasian.5 Domasian and Tan were subsequently charged with the crime of
kidnapping with serious illegal detention in the Regional Trial Court of Quezon. 6
The boy was detained for only about three hours and was released even before
his parents received the ransom note. But it spawned a protracted trial The defense of both accused was denial and alibi. Domasian claimed that at
spanning all of 8 years and led to the conviction of the two accused. 1 the time of the incident he was watching a mahjong game in a friend's house
and later went to an optical clinic with his wife for the refraction of his
The victim was Enrico Paulo Agra, who was 8 years old at the time of the eyeglasses.7 Dr. Tan for his part said he was in Manila.8
incident in question. The accused were Pablito Domasian and Samson Tan, the
latter then a resident physician in the hospital owned by Enrico's parents. They After trial Judge Enrico A. Lanzanas found both accused guilty as charged and
were represented by separate lawyers at the trial and filed separate briefs in sentenced them to suffer the penalty of reclusion perpetua and all accessory
this appeal.
penalties. They were also required to pay P200,000.00 to Dr. and Mrs. Enrique Domasian's alibi cannot stand against his positive identification by Enrico,
Agra as actual and moral damages and attorney's fees. Grate and Ferreras, let alone the contradictions made by his corroborating
witness, Dr. Irene Argosino, regarding the time he was in the optical clinic and
In the present appeal, the accused-appellants reiterate their denial of any the manner of his payment for the refraction. 9 Tan's alibi is not convincing
participation in the incident in question. They belittle the credibility of the either. The circumstance that he may have been in Manila at the time of the
prosecution witnesses and submit that their own witnesses are more believable. incident does not prove that he could not have written the ransom note except
Tan specifically challenges the findings of the NBI and offers anew the opposite at that time.
findings of the PC/INP showing that he was not the writer of the ransom note.
He maintains that in any case, the crime alleged is not kidnapping with serious Concerning the note, Rule 132, Section 22, of the Rules of Court provides as
illegal detention as no detention in an enclosure was involved. If at all, it should follows:
be denominated and punished only as grave coercion. Finally, both Domasian
and Tan insist that there is no basis for the finding of a conspiracy between The handwriting of a person may be proved by any witness
them to make them criminally liable in equal degree. who believes it to be the handwriting of such person and has
seen the person write, or has seen writing purporting to be his
First, on the credibility of the witnesses. This is assessed in the first instance by upon which the witness has acted or been charged and has
the trial judge, whose finding in this regard is received with much respect by the thus acquired knowledge of the handwriting of such person.
appellate court because of his opportunity to directly observe the demeanor of Evidence respecting the handwriting may also be given by a
the witnesses on the stand. comparison, made by the witness or the court with writings
admitted or treated as genuine by the party against whom the
In the case at bar, Judge Lanzanas relied heavily on the testimony of the victim evidence is offered or proved to be genuine to the satisfaction
himself, who positively identified Domasian as the person who detained him for of the judge.
three hours. The trial court observed that the boy was "straight-forward, natural
and consistent" in the narration of his detention. The boy's naivete made him Two expert witnesses were presented in the case at bar, one from the
even more believable. Tirso Ferreras, Enrico's classmate and also his age, NBI, 10 who opined that the ransom note and the standard documents were
pointed to Domasian with equal certainty, as the man who approached Enrico written by one and the same person, and another from the PC/INP 11 who
when they were walking together that morning of March 11, 1982. Grate, the expressed a contrary conclusion. The trial court chose to believe the NBI expert
tricycle driver who suspected Enrico's companion and later chased him, was because his examination and analysis "was more comprehensive than the one
also positive in identifying Domasian. All these three witnesses did not know conducted by the PC/INP handwriting expert, who virtually limited his reliance
Domasian until that same morning and could have no ill motive in testifying on the perceived similarities and dissimilarities in the pattern and style of the
against him. By contrast, Eugenia Agtay, who testified for the defense, can writing, thereby disregarding the basic principle in handwriting identification that
hardly be considered a disinterested witness because she admitted she had it is not the form alone nor anyone feature but rather a combination of all the
known Domasian for 3 years. qualities that identify."

The defense asks why Domasian openly took Enrico to several public places if We have held that the value of the opinion of a handwriting expert depends not
the intention was to kidnap and detain him. That is for Domasian himself to upon his mere statements of whether a writing is genuine or false, but upon the
answer. We do no have to probe the reasons for the irrational conduct of an assistance he may afford in pointing out distinguishing marks, characteristics
accused. The more important question, as we see it, is why Domasian detained and discrepancies in and between genuine and false specimens of writing
Enrico in the first place after pretending he needed the boy's help. That is also which would ordinarily escape notice or detection from an unpracticed
for Domasian to explain. As for Enrico's alleged willingness to go with observer. 12 The test of genuineness ought to be the resemblance, not the
Domasian, this was manifested only at the beginning, when he believed the formation of letters in some other specimens but to the general character of
man sincerely needed his assistance. But he was soon disabused. His initial writing, which is impressed on it as the involuntary and unconscious result
confidence gave way to fear when Domasian, after taking him so far away from of constitution, habit or other permanent course, and is, therefore itself
the hospital where he was going, restrained and threatened him if he did not permanent. 13
stop crying.
Presented with the conflicting opinions of the witnesses in the case at bar, the who was a private individual, and Enrico was a minor at that time. The crime
Court feels that the scales should tilt in favor of the prosecution. Significantly, clearly comes under Par. 4 of the above-quoted article.
the NBI opinion was bolstered by the testimony of Agra, who believed that the
ransom note was written by Tan, with whose handwriting he was familiar Tan claims that the lower court erred in not finding that the sending of the
because they had been working in the hospital for four years and he had seen ransom note was an impossible crime which he says is not punishable. His
that handwriting every day in Tan's prescriptions and daily reports. 14 reason is that the second paragraph of Article 4 of the Revised Penal Code
provides that criminal liability shall be incurred "by any person performing an
Cesar v. Sandiganbayan  15 is not applicable because that case involved a act which would be an offense against persons or property, were it not for the
forgery or the deliberate imitation of another person's signature. In the case inherent impossibility of its accomplishment or on account of the employment of
before us, there was in fact an effort to disguise  the ransom note writer's inadequate or ineffectual means." As the crime alleged is not against persons
penmanship to prevent his discovery. or property but against liberty, he argues that it is not covered by the said
provision.
As for the nature of the crime committed, Article 267 of the Revised Penal Code
provides as follows: Tan conveniently forgets the first paragraphs of the same article, which clearly
applies to him, thus:
Art. 267. Kidnapping and serious illegal detention. — Any
private individual who shall kidnap or detain another, or in any Art. 4. Criminal liability. — Criminal liability shall be incurred:
manner deprive him of his liberty, shall suffer the penalty
of reclusion perpetua  to death: 1. By any person committing a felony (delito) although the
wrongful act done be different from that which he intended.
1. If the kidnapping or detention shall have lasted more than
five days. x x x           x x x          x x x

2. If it shall have been committed simulating public authority. Even before the ransom note was received, the crime of kidnapping with
serious illegal detention had already been committed. The act cannot be
3. If any serious physical injuries shall have been inflicted upon considered an impossible crime because there was no inherent improbability of
the person kidnapped or detained; of if threats to kill him shall its accomplishment or the employment of inadequate or ineffective means. The
have been made. delivery of the ransom note after the rescue of the victim did not extinguish the
offense, which had already been consummated when Domasian deprived
4. If the person kidnapped or detained shall be a minor, female Enrico of his liberty. The sending of the ransom note would have had the effect
or a public officer. only of increasing the penalty to death under the last paragraph of Article 267
although this too would not have been possible under the new Constitution.
The penalty shall be death where the kidnapping or detention
was committed for the purpose of extorting ransom from the On the issue of conspiracy, we note first that it exists when two or more
victim or any other person; even if none of the circumstances persons come to an agreement concerning the commission of a felony and
above-mentioned were present in the commission of the decide to commit it, whether they act through physical volition of one or all,
offense. proceeding severally or collectively. 17

Contrary to Tan's submission, this crime may consist not only in placing a It is settled that conspiracy can be inferred from and proven by the acts of the
person in an enclosure but also in detaining him or depriving him in any manner accused themselves when said acts point to a joint purpose and design,
of his liberty. 16 In the case at bar, it is noted that although the victim was not concerted action and community of interests. 18 In the instant case, the trial
confined in an enclosure, he was deprived of his liberty when Domasian court correctly held that conspiracy was proved by the act of Domasian in
restrained him from going home and dragged him first into the minibus that took detaining Enrico; the writing of the ransom note by Tan; and its delivery by
them to the municipal building in Gumaca, thence to the market and then into Domasian to Agra. These acts were complementary to each other and geared
the tricycle bound for San Vicente. The detention was committed by Domasian,
toward the attainment of the common ultimate objective, viz., to extort the
ransom of P1 million in exchange for Enrico's life.

The motive for the offense is not difficult to discover. According to Agra, Tan
approached him six days before the incident happened and requested a loan of
at least P15,000.00. Agra said he had no funds at that moment and Tan did not
believe him, angrily saying that Agra could even raise a million pesos if he
really wanted to help. 19 The refusal obviously triggered the plan to kidnap
Enrico and demand P1 million for his release.

The constitutional issues raised by Domasian do not affect the decision in this
case. His claim that he was arrested without warrant and then tortured and
held incommunicado to extort a confession from him does not vitiate his
conviction. He never gave any confession. As for the allegation that the seizure
of the documents used for comparison with the ransom note was made without
a search warrant, it suffices to say that such documents were taken by Agra
himself and not by the NBI agents or other police authorities. We held in the
case of People vs. Andre Marti, 20 that the Bill of Rights cannot be invoked
against acts of private individuals, being directed only against the government
and its law-enforcement agencies and limitation on official action.

We are satisfied that Tan and Domasian, in conspiracy with each other,
committed the crime of kidnapping as defined and penalized under Article 267
of the Revised Penal Code and so deserve the penalty imposed upon them by
the trial court.

WHEREFORE, the appealed decision is AFFIRMED, with costs against the

accused-appellants.

Let a copy of this decision be sent to the Commission on Human Rights for
investigation of the alleged violation of the constitutional rights of Pablito
Domasian.

SO ORDERED.