THIRD DIVISION
|
PEOPLE OF THE Appellee, - versus - ISMAEL
MOKAMMAD, CAIRODEN MOKAMMAD, HADJI AMER MOKAMMAD and TARATINGAN MOKAMMAD, Accused, ISMAEL MOKAMMAD and CAIRODEN
MOKAMMAD, Appellants. |
G.R.
No. 180594
Present: CARPIO MORALES, J.,* CHICO-NAZARIO,**
Acting Chairperson, VELASCO, JR., NACHURA, and PERALTA, JJ. Promulgated: August
19, 2009 |
x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
On appeal is the August 17, 2007
Decision[1] of
the Court of Appeals (CA) in CA-G.R. CR-HC No. 00357 which affirmed with
modification the decision[2]
rendered by Branch 12 of the Regional Trial Court (RTC) of Lanao del Sur,
finding appellants Ismael Mokammad and Cairoden Mokammad (appellants) guilty
beyond reasonable doubt of murder and three (3) counts of frustrated murder.
On
September 25, 1996, an information[3]
for the complex crime of murder with frustrated murder was filed against
appellants and other accused Hadji Amer Mokammad (Amer) and Taratingan Mokammad
(Taratingan). The accusatory portion of
the information reads:
That on or about August 3, 1996 at around
8:00 o’clock in the morning at Barangay Tangkal, Municipality of Tubaran,
Province of Lanao del Sur, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused conspiring, confederating and mutually
helping each other with intent to kill, armed with assorted high powered
firearms and by means of treachery and evident premeditation did then and there
willfully, unlawfully and feloniously attack, assault, ambush and shot upon (sic)
Hadji Nasser Kasim [Amerol], Olomoddin Abbas, Calauto [Radiamoda] Kamid, Lito
Mabandos and Mizangkad Atal [Hadji Yusoph], and hitting them on the different
part[s] of their body, thereby inflicting upon said Olommodin Abbas serious and
fatal wounds which caused his instantaneous death, and perform all the acts of
execution which should have produce[d] the crime of murder as a consequence
with respect to victims Hadji Nasser Kasim [Amerol], Calauto [Radiamoda] Kamid,
Lito Mabandus and Mizangkad Atal [Hadji Yusoph], but nevertheless did not
produce it by r[e]ason of causes independent of the will of the perpetrators,
that is, by the timely and able medical attendance rendered to said victims
which prevented their death.
CONTRARY
TO and in violation of Article 248 in relation to Article[s] 48 and 6 of the
Revised Penal Code with the qualifying aggravating circumstance of treachery
and a generic aggravating circumstance of evident premeditation.[4]
When arraigned on June 3, 1997,
appellants, with the assistance of counsel de
oficio, entered their respective pleas of not guilty. Accused Amer and
Taratingan remained at large. Trial on the merits then ensued.
The Office of the Solicitor General
(OSG) summed up the prosecution’s version as follows:
On August 3, 1996, about 7 o’clock in the
morning, the incumbent vice-mayor of Tubaran, Lanao del Sur, Hadji Nasser Kasim
[Amerol] was on his way to the Tangkal Market.
He was in the company of Calauto Radiamoda [Kamid], Mizangkad [Atal
Hadji] Yusoph, Bangcola Rasad and [Olomoddin] Hadji Abbas. Upon reaching the Poblacion of Tangkal, a few
meters from the market, the group was ambushed by four (4) persons. The attackers, who were in a prostrate
position, fired their armalite and carbine rifles at Hadji Nasser and his
companions. Hadji [Nasser] did not move
from his position and, instead, invoked the help of Allah. Hadji Nasser saw Olomoddin wounded by the
gunfire (TSN, June 3, 1997, pp. 3-4, 6).
After finishing one magazine of bullets, the
ambushers stood up to reload. The
ambushers stepped backwards and again opened fire while backing away. Hadji Nasser was able to recognize the
ambushers to be some of his relatives namely:
the brothers, appellant Ismael, Hadji Taratingan and Hadji Amer Mokammad
and their nephew Cairoden (TSN, June 3, 1997, p. 5). During the second barrage of gunfire, Hadji
Nasser was hit in his left thigh and right ankle. Hadji [Nasser’s] other companions were
likewise hit. [Calauto Radiamoda Kamid] was hit in his thigh and left leg,
Mizangkad [Atal Hadji] Yusoph in his right arm and Bangcola Rasad in his thigh
(TSN, June 3, 1997, pp. 6-7, 9). The
ambushers stopped firing when they were about ten (10) fathoms away from their
victims. After the dust had settled, the
relatives of the victims came to their rescue and brought them to the
hospital. [Olomoddin] was found
dead. Hadji Nasser was brought to the
Mizangkad [Atal] Hadji Yusoph was treated at
the Cagayan de Oro
Appellants’ defense consists of
denial and alibi. Ismael Mokammad (Ismael) averred that on August 3, 1996, from
5:00 a.m. until 8:00 a.m., he was at his farm pasturing his cows. He returned home at around 8:45 in the
morning and stayed there the whole day.[6]
According to Ismael, it would take 2˝ hours before he could reach Tangkal,
Tubaran.[7] Thus, he denied participation in the ambush
staged against Vice Mayor Hadji Nasser Kasim Amerol and the latter’s companions.
Ismael added that on August 4, 1996, fifty (50) persons, headed by a certain
Linog, went to his house looking for the perpetrators of the ambush against the
Vice Mayor. The group destroyed his
house; and thereafter brought him and Cairoden Mokammad (Cairoden) to the
residence of Mayor Lomiloda of Binidayan, Lanao del Sur. Subsequently, they were brought to Lancaf,
Cairoden, for his part, also denied
participation in the ambush. He claimed
that he was in his house in Cabasaran doing carpentry work.[9] He also confirmed Ismael’s testimony on the
incident that transpired on August 4, 1996 that caused the destruction of the
latter’s house.
Noraisa Ongca, Ismael’s wife,[10]
and Omairah Macarangat,[11]
appellants’ neighbor, also took the witness stand to corroborate appellants’
testimonies.
The trial court, however, disbelieved
appellants’ defense and rendered a judgment of conviction. It ruled that their defense of alibi
could not prevail over the positive identification by the victims. It found
that there was no physical impossibility for appellants to be present at the
scene of the crime. It added that
appellants admitted that the victims had no grudge against them; thus, the
latter’s testimonies were entitled to full faith and credit. The RTC, however, found that appellants could
not be held liable for the injuries sustained by Bangcola Rasad, because his
name was not reflected in the information as one of the victims who sustained
injuries during the ambush; that there was no showing that Lito Mabandos, as
reflected in the information, and Bangcola Rasad refer to one and the same
person. Thus, the RTC absolved
appellants from any liability arising from the injuries sustained by Bangcola
Rasad. The RTC further held that appellants’ guilt, as established, did not
warrant their conviction for the complex crime of murder with frustrated
murder, but for separate crimes of murder and three (3) counts of frustrated
murder.
The RTC disposed thus:
WHEREFORE, finding accused Ismael Mokammad
and Cairoden Mokammad guilty of the crimes lodged against them beyond
reasonable doubt, they are hereby sentenced to suffer the following:
1. For the crime of Murder (killing of
Olomoddin Abbas), the penalty of Reclusion Perpetua;
2. As to the [offense] of Frustrated Murder:
a) The
mortal wounds inflicted on Hadji Nasser Kasim Amerol, imprisonment of 8 years,
1 day to 10 years;
b) The
mortal wounds inflicted on Radiamoda Calauto (Calauto [Radiamoda] Kamid), imprisonment
of 8 years, 1 day to 10 years; and
c) The
wounds of Mizangkad [Atal] Hadji Yusoph, same imprisonment of 8 years, 1 day to
10 years.
3. Both accused are further ordered to pay
the heirs of Olomoddin Hadji Abbas the sum of P20,000.00 as actual
damages; moral damages of P50,000.00 and exemplary damages of P20,000.00.
SO
ORDERED.[12]
Initially,
this case was brought to this Court for review, docketed as G.R. No. 146104.
In their
brief, appellants assigned the following errors allegedly committed by the
trial court:
[I]
THE TRIAL COURT
GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANTS ISMAEL MOKAMMAD AND CAIRODEN
MOKAMMAD GUILTY BEYOND REASONABLE DOUBT OF THE CRIMES OF MURDER AND FRUSTRATED
MURDER.
II
THE TRIAL COURT
GRAVELY ERRED IN CONSIDERING THE INCREDIBLE AND INCONSISTENT TESTIMONIES OF THE
PROSECUTION WITNESSES.
III
THE TRIAL COURT
GRAVELY ERRED IN NOT CONSIDERING THE DEFENSE INTERPOSED BY THE
ACCUSED-APPELLANTS.[13]
The OSG, on
behalf of the People, also filed its brief[14]
with a recommendation for the modification of the penalty. It asserted that the trial court correctly
gave credence to the testimony of the prosecution witnesses and rejected
appellants’ defense of alibi. The OSG
insisted that appellants’ guilt for murder and three (3) counts of frustrated
murder was proven beyond reasonable doubt.
It added that the maximum penalty of ten (10) years imposed by the trial
court was erroneous. The maximum
penalty, it argued, should be anywhere
between fourteen (14) years, eight
(8) months and one (1) day to seventeen (17) years and four months of Reclusion
Temporal. Thus, it moved for the
modification of the penalty.
On
December 15, 2005, this Court transferred this case to the CA for intermediate
review, consistent with its ruling in People
v. Mateo.[15]
On August
17, 2007, the CA rendered the assailed Decision affirming appellants’
conviction and modifying the maximum penalty imposed upon them. The dispositive portion of the Decision of the
CA, reads:
WHEREFORE, premises considered, the appeal is
dismissed and the Decision dated 20 September 2000 of the Regional Trial Court,
Branch 12, Malabang, Lanao del Sur is AFFIRMED
WITH MODIFICATION in that the appellants shall each suffer the penalty of
imprisonment of eight (8) years and one (1) day of [Prision] Mayor, as minimum,
to fourteen (14) years, eight (8) months and one (1) day of Reclusion Temporal
Medium, as maximum[,] on three (3) counts, together with the accessory
penalties imposed by law.
SO ORDERED.[16]
Appellants
are now before the Court reiterating their contentions. Both the OSG and the Public Attorney's
Office, counsel for appellants, replicated the arguments in their respective
briefs filed during the pendency of this case for review and prior to its
transfer to the CA. Essentially, appellants
dispute the surviving victims’ identification of them as among the perpetrators
of the ambush. They argue that, in a
surprise attack, positive identification is highly impossible. The normal tendency of the persons attacked
is to seek cover, and not to look at the perpetrators. They further contend that the testimonies of
the victims were incredible and were pure concoctions; and, thus, insufficient
to establish appellants’ guilt beyond reasonable doubt.
After a thorough evaluation and
scrutiny of the evidence on record, we arrive at the conclusion that the guilt
of appellants was established beyond reasonable doubt.
Appellants were positively identified
by three (3) of the surviving victims as among the perpetrators of the ambush
against them. Both the trial court and
the appellate court found their testimonies credible. It is doctrinal that findings of trial courts
on the credibility of witnesses deserve a high degree of respect and will not
be disturbed on appeal absent a clear showing that the trial court had
overlooked, misunderstood or misapplied some facts or circumstances of weight
and substance, which could reverse a judgment of conviction. In fact, in some
instances, such findings are even accorded finality. This is so because the
assignment of value to a witness’ testimony is essentially the domain of the
trial court, not to mention that it is the trial judge who has the direct
opportunity to observe the demeanor of a witness on the stand, thus providing
him unique facility in determining whether or not to accord credence to the
testimony or whether the witness is telling the truth or not.[17]
This Court is not the proper forum
from which to secure a re-evaluation of factual issues, except only where the
factual findings of the trial court do not find support in the evidence on
record or where the judgment appealed from was based on a misapprehension of
facts.[18] None of the exceptions obtains in this case; thus,
we find no compelling reason to depart from this rule.
The alibi offered by appellants does
not deserve credence. To be believed, an
alibi must be supported by the most convincing evidence, as it is an inherently
weak, though paradoxically volatile, if allowed to go unchecked, human argument
that can be easily fabricated to suit the ends of those who seek its recourse. [19]
We agree with the courts below that
the alibi resorted to by appellants is worthless in the face of the positive
identification by the victims. The
surviving victims were found not to have any reason to falsely testify against
appellants. Admittedly, the surviving
victims had no grudge against appellants. It is unnatural for victims
interested in vindicating a crime to accuse somebody other than the real
culprits. Human nature tells us that the
aggrieved parties would want the real culprits punished, and not accept a mere
scapegoat to take the rap for the real malefactors.[20]
As aptly said by the RTC:
[T]he parties have all admitted in open court
that they have no grudge against each other.
Hence, there is no reason why private complainants should point to the
accused as the culprits if the latter were not the perpetrators of the
crime. In a very recent ruling of the
Highest Tribunal, it held that time and again, proof of motive is not
indispensable to conviction especially if the accused has been positively
identified by an [eyewitness] and his participation therein has been definitely
established.
The victims would have no credible reason to
point to the accused as the culprits if it is not the truth. The Court assiduously scrutinized the records
to find out if the complainants were actuated by improper motives. There is none. Where there is nothing to indicate that a
principal witness for the prosecution was actuated by improper motives, the
presumption is that he was not so actuated and his testimony is entitled to
full faith and credit.[21]
Likewise, for alibi to prosper, an accused
must prove not only that he was at some other place at the time of the
commission of the crime, but also that it was physically impossible for him to be
at the locus delicti or within its
immediate vicinity.[22] Apart
from testifying that they were in their respective houses in the morning of
August 3, 1996, appellants were unable to show that it was physically
impossible for them to be at the scene of the crime. Their respective houses were only an hour’s
drive away from the scene of the crime.
We, therefore, sustain the RTC and the CA in ruling that no physical
impossibility existed for appellants to have been at the scene of the crime at
the time of its commission.
Appellants’
alibi was further demolished by the fact that it was corroborated by their
relatives and friends who may not have been impartial witnesses. Thus, in the light of the positive
identification of appellants as among the perpetrators of the crime, their
defense of alibi and denial cannot be sustained.
Jurisprudence teems with
pronouncements that between the categorical statements of the prosecution
witnesses, on one hand, and the bare denial of appellants, on the other, the
former must perforce prevail. An affirmative testimony is far stronger than a
negative one, especially when it comes from the mouth of credible witnesses.
Alibi and denial, if not substantiated by clear and convincing evidence, are
negative and self-serving evidence undeserving of weight in law. They are
considered with suspicion and always received with caution, not only because
they are inherently weak and unreliable, but also because they are easily
fabricated and concocted.[23] Accordingly,
we affirm the RTC and the CA in giving full faith and credence to the
testimonies of the surviving victims.
This Court also agrees with the trial
court in appreciating treachery as a qualifying circumstance. As we have consistently ruled, there is
treachery when the offender commits any of the crimes against persons,
employing means, methods or forms in the execution thereof, which tend directly
and specially to ensure its execution without risk to himself arising from the
defense that the offended party might make.
Two conditions must concur for treachery to exist, namely: (a) the
employment of means of execution gave the person attacked no opportunity to
defend himself or to retaliate; and (b) the means or method of execution was
deliberately and consciously adopted.[24]
In the case at bar, the attack on the
victim was deliberate, sudden and unexpected.
Appellants, surreptitiously and without warning, fired at the victims
who were at that time unarmed and completely unaware of any impending danger to
their lives. They had no opportunity to
offer any defense at all against the surprise attack by appellants and their
co-accused with armalite and carbine rifles.
All these indicate that appellants employed means and methods that tended
directly and specially to ensure the execution of the offense without risk to
themselves arising from the defense that the victims might make. Thus, treachery was correctly appreciated as
a circumstance to qualify the crime to murder.
This Court notes that the information
filed with the RTC was for the complex crime of murder with frustrated
murder. Evidence on record,
however, established that the injuries sustained by the victims were the consequences of volleys of
gunshots. Thus, the murder and each act of frustrated
murder should have been charged in separate informations because they were not
covered by Article 48[25]
of the Revised Penal Code (RPC).
Nevertheless, appellants did not,
within the prescribed period, file a motion to quash the information on the
ground of duplicity. They are, therefore, deemed to have waived the defect in
the information. It is axiomatic that when an accused fails, before
arraignment, to move for the quashal of such information, and goes to trial
thereunder, he thereby waives the objection, and may be found guilty of as many
offenses as those charged in the information and proved during the trial.[26] Thus, appellants’ conviction for
murder and three (3) counts of frustrated murder cannot be considered a
reversible error.
Under
Article 248[27] of the RPC,
as amended, the penalty imposed for the crime of murder is reclusion perpetua to death. There being no aggravating or
mitigating circumstance, the penalty imposed on appellants is reclusion perpetua, pursuant to Article
63, paragraph 2,[28] of the
RPC. The prison term imposed by the
trial court and affirmed by the CA for the death of Olommodin Abbas is,
therefore, correct.
We also affirm the CA’s modification
of the penalty imposed for frustrated murder from 8 years of prision mayor, as minimum, to 14 years,
8 months and 1 day of reclusion temporal,
as maximum. Under Article 61, paragraph
2,[29]
of the RPC, the penalty for frustrated murder is one degree lower than reclusion
perpetua to death, which is reclusion
temporal. Reclusion temporal has
a range of 12 years and 1 day to 20 years.
Applying the Indeterminate Sentence
Law, the maximum of the indeterminate penalty should be taken
from reclusion temporal, the penalty for the crime taking into account any modifying circumstances
in the commission of the crime. The minimum of the indeterminate penalty shall be taken from the full range of prision mayor which is one degree lower than reclusion temporal.[30] Since there is no modifying circumstance in
the commission of the frustrated murder, an
indeterminate prison term of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen
(14) years, eight (8) months and one (1) day of reclusion temporal, as maximum, is appropriate for the frustrated
murder under the facts of this case. Thus,
we sustain the penalty for frustrated murder as modified by the CA.
And now, the award of damages. The RTC awarded, and the CA affirmed, the
award of P20,000.00 as actual damages, P50,000.00 as moral
damages, and P20,000.00 as exemplary damages to the heirs of Olommodin
Abbas.
When death occurs due to a crime, the
following may be recovered: (1) civil indemnity ex delicto for the death of the victim; (2) actual or compensatory
damages; (3) moral damages; (4) exemplary damages; (5) attorney's fees and
expenses of litigation; and (6) interest, in proper cases.[31]
In murder, the grant of civil
indemnity, which has been fixed by jurisprudence at P50,000.00, requires
no proof other than the fact of death as a result of the crime and proof of an accused's
responsibility therefor.[32] Thus, the heirs of Olomoddin Abbas should be
awarded civil indemnity of P50,000.00.
This Court sustains the award of P50,000.00
as moral damages to the heirs of Olomoddin Abbas. Moral damages are awarded in view
of the violent death of the victim. These
do not require allegation and proof of the emotional sufferings of the heirs. [33]
Likewise, the award of exemplary
damages is warranted when the commission of the offense is attended by an
aggravating circumstance, whether ordinary or qualifying,[34]
as in this case. Accordingly, we sustain the RTC for awarding exemplary damages
to the heirs, but we increase the award to P30,000.00.
However,
the award of P20,000.00 as actual damages should be deleted as the prosecution
failed to present any receipt to substantiate its claim. In lieu of actual damages for funeral and burial expenses, we award
the amount of P25,000.00
as temperate damages since it cannot be denied that the heirs
suffered some pecuniary loss as a result of the death of Olomoddin Abbas.
Similarly, the surviving victims are
entitled to temperate, moral and exemplary damages.
Indisputably, the surviving victims
were hospitalized and operated on. They,
however, failed to present any receipt for their hospitalization expenses. Nevertheless, it could not be denied that
they suffered pecuniary loss; thus, we deem it prudent to award P25,000.00
to each of the surviving victims, as temperate damages.
The surviving victims are also
entitled to moral damages which this Court hereby awards in the amount of P40,000.00
to each of them. Ordinary human
experience and common sense dictate that the wounds inflicted upon the
surviving victims would naturally cause physical suffering, fright, serious
anxiety, moral shock, and similar injuries. Finally, the award in the amount of
P20,000.00 each, as exemplary damages, is also in order considering that
the crime was attended by the qualifying circumstance of treachery.[35]
WHEREFORE, the appeal is DISMISSED. The assailed
Decision of the Court of Appeals in CA-G.R. CR-HC No. 00357 is AFFIRMED with MODIFICATIONS. Appellants Ismael Mokammad and
Cairoden Mokammad are found GUILTY
beyond reasonable doubt of MURDER
and are hereby sentenced to suffer the penalty of reclusion perpetua.
Appellants are also ordered to jointly and severally pay the heirs of
Olomoddin Abbas the amounts of P50,000.00 as civil indemnity, P50,000.00
as moral damages, P25,000.00 as temperate damages, and P30,000.00
as exemplary damages.
Ismael Mokammad and Cairoden Mokammad
are also found guilty beyond reasonable doubt of three (3) counts of FRUSTRATED MURDER and are hereby sentenced to suffer the penalty of eight (8)
years and one (1) day of prision mayor,
as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum, on each
count, with all the accessory penalties imposed by law. Appellants are further ordered to jointly and
severally pay each of the surviving victims – Hadji Nasser Kasim Amerol, Calauto
Radiamoda Kamid and Mizangkad Atal Hadji Yusoph – P25,000.00 as
temperate damages, P40,000.00 as moral damages, and P20,000.00 as
exemplary damages.
SO ORDERED.
ANTONIO
EDUARDO B. NACHURA
Associate
Justice
WE CONCUR:
CONCHITA CARPIO MORALES
Associate
Justice
|
MINITA V. CHICO-NAZARIO Associate
Justice Acting Chairperson |
PRESBITERO J. VELASCO, JR. Associate
Justice |
DIOSDADO M. PERALTA
Associate
Justice
A T T E S T A T I O N
I attest that the conclusions in the above Decision were
reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.
MINITA V. CHICO-NAZARIO
Associate
Justice
Acting Chairperson,
Third Division
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution
and the Division Acting Chairperson's Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court’s Division.
REYNATO
S. PUNO
Chief
Justice
* Additional member in lieu of Associate Justice Consuelo Ynares-Santiago per Special Order No. 679 dated August 3, 2009.
** In lieu of Associate Justice Consuelo Ynares-Santiago per Special Order No. 678 dated August 3, 2009.
[1] Penned by Associate Justice Jane Aurora C. Lantion, with Associate Justices Edgardo A. Camello and Elihu A. Ybańez, concurring; rollo, pp. 4-15.
[2] Records, pp. 148-162.
[3]
[4]
[5] CA rollo, pp. 128-130.
[6] TSN, July 30, 1998, pp. 29-30.
[7]
[8]
[9] TSN, July 31, 1998, pp. 9, 22.
[10] TSN, August 20, 1998.
[11] TSN, September 30, 1998.
[12] CA rollo, pp. 161-162.
[13]
[14]
[15]
[16]
[17] Lascano v. People, G.R. No. 166241, September 7, 2007, 532 SCRA 515, 523-524.
[18]
[19] People v. Cantere, 363 Phil. 468, 479 (1999).
[20] People v. Togahan, G.R. No. 174064, June 8, 2007, 524 SCRA 557, 571.
[21] Records, p. 158. (Citation omitted.)
[22] People v. Delim, G.R. No. 175492, September 13, 2007, 533 SCRA 366.
[23] People v. Togahan, supra note 20, at 573-574; People v. Baniega, 427 Phil. 405, 418 (2002); see People v. Ramos, G.R. No. 125898, April 14, 2004, 427 SCRA 207.
[24] People v. Ducabo, G.R. No. 175594, September 28, 2007, 534 SCRA 458, 474.
[25] ART. 48. Penalty for complex crimes. – When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period.
[26] People v. S Sgt. Dalmacio, 426 Phil. 563, 597 (2002).
[27] ART. 248. Murder. - Any person who, not falling within the provisions of article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion perpetua to death if committed with any of the following attendant circumstances:
1. With treachery, x x x.
[28] ART. 63. Rules for the application of indivisible penalties. - x x x.
x x x x
2. When there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied.
[29] ART. 61. Rules for graduating penalties. – For the purpose of graduating the penalties which, according to the provisions of articles 50 to 57, inclusive, of this Code, are to be imposed upon persons guilty as principals for any frustrated or attempted felony, or as accomplices or accessories, the following rules shall be observed:
x x x x
2. When the penalty prescribed for the crime is composed of two indivisible penalties, or of one or more divisible penalties to be imposed to their full extent, the penalty next lower in degree shall be that immediately following the lesser of the penalties prescribed in the respective graduated scale.
[30] People v. Tolentino, G.R. No. 176385, February 26, 2008, 546 SCRA 671, 700.
[31]
[32] People
of the
[33] People of the
[34]
[35] People v. Tolentino, supra note 30, at 701.