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414 Phil. 189
SECOND DIVISION
[ G.R. No. 142024, July 20, 2001 ]
P/CPL. GUILLERMO SARABIA, PNP, PETITIONER, VS. THE PEOPLE OF THE PHILIPPINES, RESPONDENT.
D E C I S I O N
MENDOZA, J.:
This is a petition for review of the decision, dated October 29, 1999, and resolution, dated March 6, 2000, of the Court of Appeals[1] affirming the decision of the Regional Trial Court of Bohol, Branch 48, which affirmed the decision of the Municipal Trial Court of Tagbilaran, finding petitioner Guillermo Sarabia guilty of grave coercion, and denying petitioner's motion for reconsideration, respectively.
The facts are as follows:
On June 23, 1991, at around 8 o'clock in the evening, complainant Josephine Picos-Mapalad and her then boyfriend, complainant Anastacio Mapalad (now the former's husband), were dating at one of the grandstands inside the Garcia Sports Complex in Tagabilaran City.[2] Petitioner Sarabia, then a member of the city police force, on that particular evening was passing by the Garcia Sports Complex on his way to his house. He was carrying with him his service gun and flashlight. He saw the two lovers and focused his flashlight on them.[3]
According to the prosecution, petitioner, with intimidation, pointed his gun at the two lovers and forced them to perform sexual acts against their will. Petitioner then extorted P100.00 from them. Petitioner made complainant Anastacio Mapalad buy him a cigarette outside the complex, and, while he was gone, petitioner forced complainant Picos-Mapalad to masturbate his penis.[4] Afterwards, petitioner allowed complainants to leave with the threat that he would kill them if they reported the incident to anyone. The following morning, complainants went to Panglao and stayed there for several days to recuperate and to decide what action they would take. With the help of their relatives, they reported the matter to the police. As a result, three informations for grave coercion were filed against petitioner.[5]
Petitioner denied the allegations against him. He claimed that he merely confronted complainants and directed them to go home as the place was dangerous. At this point, complainant Picos-Mapalad allegedly screamed at him and told him that he had no business telling them what to do, as they were in a public place and they could do whatever they wanted. Petitioner repeated his warning that he would take them to the municipal hall if they did not leave. Still, complainants refused to leave and continued calling him names. To avoid any altercation with them, petitioner left and headed home.[6] Petitioner vehemently denied the accusations leveled against him by complainants.
Three criminal informations against petitioner for grave coercion were filed in the Municipal Trial Court of Tagbilaran City, which resulted in the filing of Criminal Case Nos. 4399, 4400, and 4401 in that court. On November 27, 1996, the Municipal Trial Court, Branch I, Tagbilaran City, rendered a decision convicting petitioner. The dispositive portion of its decision reads:
In an Omnibus Decision,[9] dated June 17, 1997, Branch 1 of the RTC of Bohol affirmed the decision of the Municipal Trial Court in Criminal Case Nos. 4399 and 4400. Petitioner filed an Omnibus Motion for Reconsideration questioning the said decision. On the other hand, Branch 47 of the RTC of Bohol ordered the transfer of the records of Criminal Case No. 9730 to Branch I of the same court to be consolidated with Criminal Case No. 9729 and 9731. However, on December 29, 1997, the judge of Branch I inhibited himself from hearing the three consolidated cases without resolving petitioner's Omnibus Motion in Criminal Case Nos. 9729 and 9731 and without rendering a decision on Criminal Case No. 9730. The three cases were finally raffled off to Branch 48 of the RTC.
In an Omnibus Decision, dated August 3, 1998, Branch 48 of the RTC of Bohol affirmed in toto the decision of the Municipal Trial Court. In its Omnibus Order, dated August 28, 1998, it likewise denied petitioner's motion for reconsideration.
As stated at the beginning, the Court of Appeals dismissed petitioner's appeal and affirmed in toto the decision of the lower court. It subsequently denied reconsideration of its decision. Hence this petition.
First. Petitioner contends that the Court of Appeals' decision, affirming the decisions of the lower courts, and its resolution, denying his motion for reconsideration, were issued with grave abuse of discretion because the conclusions of law drawn therefrom vis-à-vis the facts clearly established during the trial on the merits are gravely erroneous. He insists that when he saw complainants in the sports complex, he merely directed them to go home. When they refused, he proceeded home.[10]
Petitioner also claims that complainants' testimonies are replete with contradictions which put their credibility in serious doubt. According to petitioner, complainant Picos-Mapalad testified in court that the day after the incident in question, she went with Anastacio Mapalad to Panglao and stayed there for three days, but Anastacio Mapalad testified that they stayed in Panglao for one week before coming back to Tagbilaran City. Complainant Picos-Mapalad also testified that Anastacio Mapalad had an erection when they were having sex upon petitioner's demand and that he ejaculated during their intercourse. Anastacio Mapalad, on the other hand, denied having had an erection or ejaculating during the incident.
Petitioner claims that both complainants repeatedly contradicted what they stated in their respective affidavits and testimonies. It is alleged that complainant Picos-Mapalad variously testified that she was already married to Anastacio Mapalad on the night of the incident; but later admitted that they were just sweethearts when the incident happened; and that she executed her affidavit three days after June 23, 1991, while records showed that it was executed more than a week after said date. Complainant Anastacio Mapalad likewise testified that he executed his affidavit on June 30, 1991, when in fact he executed it on July 2, 1991. He also stated in his affidavit that Josephine Picos-Mapalad's relatives reported the incident to the authorities, but testified later on in court that it was he and Josephine who really reported the incident. He also contradicted his affidavit, wherein he stated that he and Josephine Picos-Mapalad had been sweethearts for two years before the incident, when he testified that they had been together for four years, which he subsequently changed to three years.
It is contended that under the principle of falsus in uno, falsus in omnibus, inasmuch as the complainants lied and contradicted their statements many times, it is safe to conclude that they also lied about their other statements to the prejudice of petitioner.
Petitioner belabors the fact that complainants did not report what happened to the authorities right away when they had every opportunity to do so. Petitioner insists that it was surprising why complainant Mapalad did not report the matter to the police when he could have done so when he was ordered by petitioner to buy cigarettes. It was equally surprising, according to petitioner, why both complainants stayed in Plaza Rizal after the incident, instead of reporting what happened to the police station, when the station was only a stone's throw away from the Plaza. Private complainants spent a week in Panglao after the incident. Petitioner asks why they did not report what happened to anyone, but instead waited until after returning to Tagbilaran before approaching the police. It is also puzzling how complainant Picos-Mapalad could have gotten pregnant as a result of the sexual intercourse she had with Anastacio Mapalad on the night of the incident when, according to the latter, he neither had an erection nor ejaculated that night when they were having sexual intercourse.
Given all the above contradictions and variances between private complainants' testimonies and affidavits, petitioner would have this Court believe that the entire incident, upon which the charges of grave coercion are based, has been entirely fabricated by complainants so that petitioner would pay for having investigated Josephine Picos-Mapalad's brother in an earlier criminal case.
We do not agree.
The basic issue presented in this case centers on the credibility of complainants. It is settled that when a conviction hinges on the credibility of witnesses, the assessment of the trial court is accorded the highest degree of respect. Absent any compelling reason to depart from this established rule, factual conclusions reached by the lower court, which had the opportunity to observe and evaluate the demeanor of the witnesses while on the witness stand, should not be disturbed.[11]
Petitioner was apparently trying his best to pick out each and every trivial inconsistency which he could find in the complainants' testimonies in an attempt to discredit them. Such a move betrays desperation in argument. An erroneous reckoning or misestimation of time, such as that which complainants committed by giving different time periods as to how long they stayed in Panglao or varying estimation of the length of time that they had been sweethearts prior to the incident in question, is too trivial and immaterial to discredit their testimonies, especially in this case where time is not an essential element or has no bearing on the fact of the commission of the crime.[12] As aptly stated by the Solicitor General:
The contradiction between the affidavit and the testimony of a witness may be explained by the fact that an affidavit will not always disclose all the facts and will oftentimes and without design incorrectly describe, without the deponent detecting it, some of the occurrences narrated. As an affidavit is taken ex-parte, it is almost always incomplete and often inaccurate, sometimes from partial suggestions, and sometimes from want of suggestions and inquiries, without the aid of which the witness may be unable to recall the connected collateral circumstances necessary for the correction of the first suggestion of his memory and for his accurate recollection of all that belongs to the subject. It has thus been held that affidavits are generally subordinated in importance to open court declarations because the former are often executed when the affiant's mental faculties are not in such a state as to afford him a fair opportunity of narrating in full the incident which has transpired. Moreover, affidavits are not complete reproductions of what the declarant has in mind because they are generally prepared by the administering officer and the affiant simply signs them after the same have been read to him.[16]
The defense makes much of the fact that complainant failed to report the incident to anyone until several days after the commission of the crime. We do not believe that an adverse implication can be drawn from such failure. The non-disclosure by witnesses to police officers of petitioner's identity immediately after the occurrence of the crime is not necessarily against human experience.[17] The natural reticence of most people to get involved in criminal prosecutions against immediate neighbors, as in the case of Josephine Picos-Mapalad and petitioner, is a matter of judicial notice.[18] As the trial court said, complainants cannot be faulted for this considering that their tormentor was no ordinary delinquent but a city policeman. He threatened complainants at gunpoint that he would harm them if they reported the matter to anyone. Complainants are both unschooled. At the time of the commission of the crime, Josephine Picos-Mapalad was a 17-hear old laundry woman, while Anastacio Mapalad was a simple grocery bagger. It needs no stretch of the imagination that when petitioner threatened to kill them if they reported the matter to the authorities, they believed entirely and utterly that he could and would make good on his threat.
Second. Finally, petitioner raises the plea of double jeopardy. He contends the incident which gave rise to this case is also the subject of a criminal case for robbery with violence against or intimidation of person wherein he was convicted, and which is now on appeal with the Court of Appeals.
There is no merit to this contention.
To raise the defense of double or second jeopardy, the following elements must be present: (1) a first jeopardy must have attached prior to the second; (2) the first jeopardy must have terminated; and (3) the second jeopardy must be for the same offense as that in the first.
With respect to the third element, under Rule 117, §7 of the Rules of Court, the test is whether one offense is identical with the other or whether it is an attempt or frustration of the other or whether one offense necessarily includes or is necessarily included in the other. On the other hand, Rule 120, §5 provides:
WHEREFORE, the instant petition is DENIED and the decision of the Court of Appeals, dated October 29, 1999, is AFFIRMED.
SO ORDERED.
Bellosillo, (Chairman), Buena, and De Leon, Jr., JJ., concur.
Quisumbing, J., on official business.
[1] The decision was penned by Justice Omar U. Amin and concurred in by Justices Hector L. Hofilena and Jose L. Sabio, Jr. of the Thirteenth Division, while the resolution was penned by Justice Jose L. Sabio, Jr. and concurred in by Justices Candido V. Rivera and Mercedes Gozo-Dadole of the Special Former Thirteenth Division of the Court of Appeals.
[2] CA Decision, p. 2; CA Rollo, p. 281.
[3] MTC Decision, p. 2; id., p. 14.
[4] TSN (Josephine Picos), pp. 12-14, Dec. 6, 1995.
[5] MTC Decision, supra note 2.
[6] Counter-Affidavit of Guillermo Sarabia dated Sept. 5, 1991; CA Rollo, pp. 57-58.
[7] MTC Decision, p. 8; id., p. 20.
[8] See Comment of the Solicitor General, pp. 4-5; Rollo, pp. 282-283.
[9] Rollo, p. 37.
[10] Petition, p. 4; Rollo, p. 6.
[11] People v. Empleo, 226 SCRA 454 (1993); People v. Abarico, 238 SCRA 203 (1994).
[12] See People v. Empleo, supra.
[13] Comment of the Office of the Solicitor General, pp. 13-14; Rollo, pp. 291-292.
[14] People v. Cayago, 158 SCRA 586 (1988).
[15] MTC Decision, p. 7; CA Rollo, p. 19.
[16] People v. Empleo, supra.
[17] People v. Jose Encarnacion Malimit, 264 SCRA 167 (1996) citing People v. Pacebes, 137 SCRA 158 (1985).
[18] See id. citing People v. Rubio, 257 SCRA 528 (1996).
The facts are as follows:
On June 23, 1991, at around 8 o'clock in the evening, complainant Josephine Picos-Mapalad and her then boyfriend, complainant Anastacio Mapalad (now the former's husband), were dating at one of the grandstands inside the Garcia Sports Complex in Tagabilaran City.[2] Petitioner Sarabia, then a member of the city police force, on that particular evening was passing by the Garcia Sports Complex on his way to his house. He was carrying with him his service gun and flashlight. He saw the two lovers and focused his flashlight on them.[3]
According to the prosecution, petitioner, with intimidation, pointed his gun at the two lovers and forced them to perform sexual acts against their will. Petitioner then extorted P100.00 from them. Petitioner made complainant Anastacio Mapalad buy him a cigarette outside the complex, and, while he was gone, petitioner forced complainant Picos-Mapalad to masturbate his penis.[4] Afterwards, petitioner allowed complainants to leave with the threat that he would kill them if they reported the incident to anyone. The following morning, complainants went to Panglao and stayed there for several days to recuperate and to decide what action they would take. With the help of their relatives, they reported the matter to the police. As a result, three informations for grave coercion were filed against petitioner.[5]
Petitioner denied the allegations against him. He claimed that he merely confronted complainants and directed them to go home as the place was dangerous. At this point, complainant Picos-Mapalad allegedly screamed at him and told him that he had no business telling them what to do, as they were in a public place and they could do whatever they wanted. Petitioner repeated his warning that he would take them to the municipal hall if they did not leave. Still, complainants refused to leave and continued calling him names. To avoid any altercation with them, petitioner left and headed home.[6] Petitioner vehemently denied the accusations leveled against him by complainants.
Three criminal informations against petitioner for grave coercion were filed in the Municipal Trial Court of Tagbilaran City, which resulted in the filing of Criminal Case Nos. 4399, 4400, and 4401 in that court. On November 27, 1996, the Municipal Trial Court, Branch I, Tagbilaran City, rendered a decision convicting petitioner. The dispositive portion of its decision reads:
WHEREFORE, premises considered, the Court finds the accused GUILTY beyond reasonable doubt of one crime of Grave Coercion in the three above-entitled cases and therefore hereby CONVICTS him and sentences him to the penalty of SIX MONTHS of Arresto Mayor and a FINE of P500.00; to pay the offended parties the sum of P5,000.00 as damages and to pay the costs.[7]On appeal to the Regional Trial Court of Bohol, the three criminal cases were raffled to two salas of the court. Criminal Case Nos. 4399 and 4400 (re-docketed as RTC Criminal Cases No. 9729 and 9731) were assigned to Branch 1, while Criminal Case No. 4401 (re-docketed as RTC Criminal Case No. 9730) was assigned to Branch 47.[8]
In an Omnibus Decision,[9] dated June 17, 1997, Branch 1 of the RTC of Bohol affirmed the decision of the Municipal Trial Court in Criminal Case Nos. 4399 and 4400. Petitioner filed an Omnibus Motion for Reconsideration questioning the said decision. On the other hand, Branch 47 of the RTC of Bohol ordered the transfer of the records of Criminal Case No. 9730 to Branch I of the same court to be consolidated with Criminal Case No. 9729 and 9731. However, on December 29, 1997, the judge of Branch I inhibited himself from hearing the three consolidated cases without resolving petitioner's Omnibus Motion in Criminal Case Nos. 9729 and 9731 and without rendering a decision on Criminal Case No. 9730. The three cases were finally raffled off to Branch 48 of the RTC.
In an Omnibus Decision, dated August 3, 1998, Branch 48 of the RTC of Bohol affirmed in toto the decision of the Municipal Trial Court. In its Omnibus Order, dated August 28, 1998, it likewise denied petitioner's motion for reconsideration.
As stated at the beginning, the Court of Appeals dismissed petitioner's appeal and affirmed in toto the decision of the lower court. It subsequently denied reconsideration of its decision. Hence this petition.
First. Petitioner contends that the Court of Appeals' decision, affirming the decisions of the lower courts, and its resolution, denying his motion for reconsideration, were issued with grave abuse of discretion because the conclusions of law drawn therefrom vis-à-vis the facts clearly established during the trial on the merits are gravely erroneous. He insists that when he saw complainants in the sports complex, he merely directed them to go home. When they refused, he proceeded home.[10]
Petitioner also claims that complainants' testimonies are replete with contradictions which put their credibility in serious doubt. According to petitioner, complainant Picos-Mapalad testified in court that the day after the incident in question, she went with Anastacio Mapalad to Panglao and stayed there for three days, but Anastacio Mapalad testified that they stayed in Panglao for one week before coming back to Tagbilaran City. Complainant Picos-Mapalad also testified that Anastacio Mapalad had an erection when they were having sex upon petitioner's demand and that he ejaculated during their intercourse. Anastacio Mapalad, on the other hand, denied having had an erection or ejaculating during the incident.
Petitioner claims that both complainants repeatedly contradicted what they stated in their respective affidavits and testimonies. It is alleged that complainant Picos-Mapalad variously testified that she was already married to Anastacio Mapalad on the night of the incident; but later admitted that they were just sweethearts when the incident happened; and that she executed her affidavit three days after June 23, 1991, while records showed that it was executed more than a week after said date. Complainant Anastacio Mapalad likewise testified that he executed his affidavit on June 30, 1991, when in fact he executed it on July 2, 1991. He also stated in his affidavit that Josephine Picos-Mapalad's relatives reported the incident to the authorities, but testified later on in court that it was he and Josephine who really reported the incident. He also contradicted his affidavit, wherein he stated that he and Josephine Picos-Mapalad had been sweethearts for two years before the incident, when he testified that they had been together for four years, which he subsequently changed to three years.
It is contended that under the principle of falsus in uno, falsus in omnibus, inasmuch as the complainants lied and contradicted their statements many times, it is safe to conclude that they also lied about their other statements to the prejudice of petitioner.
Petitioner belabors the fact that complainants did not report what happened to the authorities right away when they had every opportunity to do so. Petitioner insists that it was surprising why complainant Mapalad did not report the matter to the police when he could have done so when he was ordered by petitioner to buy cigarettes. It was equally surprising, according to petitioner, why both complainants stayed in Plaza Rizal after the incident, instead of reporting what happened to the police station, when the station was only a stone's throw away from the Plaza. Private complainants spent a week in Panglao after the incident. Petitioner asks why they did not report what happened to anyone, but instead waited until after returning to Tagbilaran before approaching the police. It is also puzzling how complainant Picos-Mapalad could have gotten pregnant as a result of the sexual intercourse she had with Anastacio Mapalad on the night of the incident when, according to the latter, he neither had an erection nor ejaculated that night when they were having sexual intercourse.
Given all the above contradictions and variances between private complainants' testimonies and affidavits, petitioner would have this Court believe that the entire incident, upon which the charges of grave coercion are based, has been entirely fabricated by complainants so that petitioner would pay for having investigated Josephine Picos-Mapalad's brother in an earlier criminal case.
We do not agree.
The basic issue presented in this case centers on the credibility of complainants. It is settled that when a conviction hinges on the credibility of witnesses, the assessment of the trial court is accorded the highest degree of respect. Absent any compelling reason to depart from this established rule, factual conclusions reached by the lower court, which had the opportunity to observe and evaluate the demeanor of the witnesses while on the witness stand, should not be disturbed.[11]
Petitioner was apparently trying his best to pick out each and every trivial inconsistency which he could find in the complainants' testimonies in an attempt to discredit them. Such a move betrays desperation in argument. An erroneous reckoning or misestimation of time, such as that which complainants committed by giving different time periods as to how long they stayed in Panglao or varying estimation of the length of time that they had been sweethearts prior to the incident in question, is too trivial and immaterial to discredit their testimonies, especially in this case where time is not an essential element or has no bearing on the fact of the commission of the crime.[12] As aptly stated by the Solicitor General:
. . . Josephine Mapalad's claim on the length of time she and Anastacio Mapalad had spent at Panglao after the incident may be at variance with the time asserted by Anastacio Mapalad; but this is a collateral matter and did not detract from the fact that they did go to Panglao after the incident. Josephine Mapalad's claim that Anastacio Mapalad had an erection and ejaculated when they were forced by petitioner to copulate may be at variance with Anastacio Mapalad's claim on the same matter; but this contradiction did not detract from the material fact that they were indeed forced by petitioner to copulate. Inconsistencies on minor or collateral matters in the testimony of prosecution eyewitnesses regarding the same event(s) do not affect their credibility; but rather are strong indicia that their testimon[ies] are unrehearsed and indeed true (Cortez v. Court of Appeals, 245 SCRA 198, 204-205 [1995]).[13]The same applies to the other inconsistencies in complainants' testimonies pointed out by petitioner. These inconsistencies can hardly affect complainants' credibility. They refer to matters of minor detail or to the precise sequence of events that do not detract from the central fact that petitioner compelled complainants to perform sexual acts at gunpoint against their will, on which the latter had consistently and candidly testified. The testimonial discrepancies could have been caused by the natural fickleness of human memory, which tend to strengthen, rather than weaken, credibility as they erase any suspicion of rehearsed testimony.[14] When complainants testified, more than four years had elapsed from the time the incident in question took place. Considering this fact, it would have been doubtful if complainants had been able to pinpoint or describe with precision the exact sequence of events. Josephine and Anastacio Mapalad's conflicting statements in respect of the details occurring immediately after the crime may have resulted from the length and tedium of their cross-examination at the hands of petitioner's counsel. In this connection, the Municipal Trial Court aptly observed:
It is true that under rigid cross-examination by defense counsel, private complainants blundered and gave somewhat contradictory and inconsistent statements. But these seeming inconsistencies are hallmarks of sincerity. Sense and experience of men tell us that honest and truthful witnesses do not coincide in the narration of events swiftly occurring before them, especially trifling details. Such minor contradictions do not affect their credibilities and even strengthen the probative value of their testimonies. (Flavio de Leon, et al., vs. People of the Philippines, et al., G.R. No. 66020, June 22, 1992).[15]Equally without merit is petitioner's assertion that the discrepancy between the complainants' affidavits and testimonies in court affects their credibility. While there may exist a variance between some statements of complainants in their affidavits and their testimonies in open court, the alleged inconsistencies are more apparent than real. It is to be expected that complainants would give a more detailed narration in their testimony before the trial court of how petitioner forced them at gunpoint to have sexual intercourse. Such fact, it is evident, does not necessarily signify that their open court testimonies conflict with their affidavits.
The contradiction between the affidavit and the testimony of a witness may be explained by the fact that an affidavit will not always disclose all the facts and will oftentimes and without design incorrectly describe, without the deponent detecting it, some of the occurrences narrated. As an affidavit is taken ex-parte, it is almost always incomplete and often inaccurate, sometimes from partial suggestions, and sometimes from want of suggestions and inquiries, without the aid of which the witness may be unable to recall the connected collateral circumstances necessary for the correction of the first suggestion of his memory and for his accurate recollection of all that belongs to the subject. It has thus been held that affidavits are generally subordinated in importance to open court declarations because the former are often executed when the affiant's mental faculties are not in such a state as to afford him a fair opportunity of narrating in full the incident which has transpired. Moreover, affidavits are not complete reproductions of what the declarant has in mind because they are generally prepared by the administering officer and the affiant simply signs them after the same have been read to him.[16]
The defense makes much of the fact that complainant failed to report the incident to anyone until several days after the commission of the crime. We do not believe that an adverse implication can be drawn from such failure. The non-disclosure by witnesses to police officers of petitioner's identity immediately after the occurrence of the crime is not necessarily against human experience.[17] The natural reticence of most people to get involved in criminal prosecutions against immediate neighbors, as in the case of Josephine Picos-Mapalad and petitioner, is a matter of judicial notice.[18] As the trial court said, complainants cannot be faulted for this considering that their tormentor was no ordinary delinquent but a city policeman. He threatened complainants at gunpoint that he would harm them if they reported the matter to anyone. Complainants are both unschooled. At the time of the commission of the crime, Josephine Picos-Mapalad was a 17-hear old laundry woman, while Anastacio Mapalad was a simple grocery bagger. It needs no stretch of the imagination that when petitioner threatened to kill them if they reported the matter to the authorities, they believed entirely and utterly that he could and would make good on his threat.
Second. Finally, petitioner raises the plea of double jeopardy. He contends the incident which gave rise to this case is also the subject of a criminal case for robbery with violence against or intimidation of person wherein he was convicted, and which is now on appeal with the Court of Appeals.
There is no merit to this contention.
To raise the defense of double or second jeopardy, the following elements must be present: (1) a first jeopardy must have attached prior to the second; (2) the first jeopardy must have terminated; and (3) the second jeopardy must be for the same offense as that in the first.
With respect to the third element, under Rule 117, §7 of the Rules of Court, the test is whether one offense is identical with the other or whether it is an attempt or frustration of the other or whether one offense necessarily includes or is necessarily included in the other. On the other hand, Rule 120, §5 provides:
Sec. 5. When an offense includes or is included in another. - 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 an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form a part of those constituting the latter.The third requisite, identity of offenses, is absent in this case. The crime for which petitioner now stands charged is not the same as the crime of robbery with violence against or intimidation of person for which he was convicted. Neither is the former an attempt to commit the latter or a frustration thereof. And the former crime does not necessarily include, and is not necessarily included in, the first crime charged.
WHEREFORE, the instant petition is DENIED and the decision of the Court of Appeals, dated October 29, 1999, is AFFIRMED.
SO ORDERED.
Bellosillo, (Chairman), Buena, and De Leon, Jr., JJ., concur.
Quisumbing, J., on official business.
[1] The decision was penned by Justice Omar U. Amin and concurred in by Justices Hector L. Hofilena and Jose L. Sabio, Jr. of the Thirteenth Division, while the resolution was penned by Justice Jose L. Sabio, Jr. and concurred in by Justices Candido V. Rivera and Mercedes Gozo-Dadole of the Special Former Thirteenth Division of the Court of Appeals.
[2] CA Decision, p. 2; CA Rollo, p. 281.
[3] MTC Decision, p. 2; id., p. 14.
[4] TSN (Josephine Picos), pp. 12-14, Dec. 6, 1995.
[5] MTC Decision, supra note 2.
[6] Counter-Affidavit of Guillermo Sarabia dated Sept. 5, 1991; CA Rollo, pp. 57-58.
[7] MTC Decision, p. 8; id., p. 20.
[8] See Comment of the Solicitor General, pp. 4-5; Rollo, pp. 282-283.
[9] Rollo, p. 37.
[10] Petition, p. 4; Rollo, p. 6.
[11] People v. Empleo, 226 SCRA 454 (1993); People v. Abarico, 238 SCRA 203 (1994).
[12] See People v. Empleo, supra.
[13] Comment of the Office of the Solicitor General, pp. 13-14; Rollo, pp. 291-292.
[14] People v. Cayago, 158 SCRA 586 (1988).
[15] MTC Decision, p. 7; CA Rollo, p. 19.
[16] People v. Empleo, supra.
[17] People v. Jose Encarnacion Malimit, 264 SCRA 167 (1996) citing People v. Pacebes, 137 SCRA 158 (1985).
[18] See id. citing People v. Rubio, 257 SCRA 528 (1996).