Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 179080               November 26, 2014

EDIGARDO GEROCHE, ROBERTO GARDE and GENEROSO MARFIL alias "TAPOL", Petitioners,

DECISION

PERALTA, J.:

This is an appeal from the Decision  dated November 18, 2005 and Resolution  dated June 19, 2007 of the Court of
1 2

Appeals (CA) in G.R. CR No. 26418, which set aside the November 15, 2001 Decision  of the Regional Trial Court
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(RTC), Branch 17, Kidapawan City, Cotabato.

Petitioners Edigardo Geroche, Roberto Garde and Generoso Marfil alias "Tapol" were charged with the crime of
Violation of Domicile under Article 128 of the Revised Penal Code (RPC).  The Information dated May 3, 1990 reads:
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The undersigned accuses EDIGARDO GEROCHE, ROBERTO GARDE AND GENEROSO MARFIL Alias "TAPOL" of
the crime of Violation of Domicile, committed as follows:

That at about 10:00 o’clock in the evening of May 14, 1989, at Sitio New Lantawan, Barangay Greenhills, Municipality
of President Roxas, Province of Cotabato, Philippines, the above-named accused EDIGARDO GEROCHE, being a
Barangay Captain and the rest being CAFGUs, hence, persons inauthority, conspiring, confederating and mutually
helping one another, armed with garand rifles, did then and there, wilfully, unlawfully and feloniously, without proper
judicial order, entered the house of ROBERTO MALLO by forcibly breaking the door of said house against the will of
the occupants thereof, search the effects of the house without the previous consent of the owner and then mauled one
of the occupant BARILIANO LIMBAG inflicting injuries to the latter.

CONTRARY TO LAW. 5

During the arraignment on November5, 1990, all the petitioners pleaded not guilty.  Thereafter, trial ensued.
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Baleriano Limbag (Baleriano) testified that the crime happened around 10:00 o’clock in the evening of May 14, 1989
inside the house which he already bought from Roberto Mallo. He roused from sleep when petitioners, who were not
armed with search warrant, suddenly entered the house by destroying the main door. The petitioners mauled him,
striking with a garand rifle, which caused his injuries. They looked for firearms but instead found and took away his
airgun. Roberto Limbag, Baleriano’s nephew who was living with him, witnessed the whole incident and corroborated
his testimony.

Aside from presenting SPO4 Felomino Calfoforo, the Subpoena and Warrant Officer of President Roxas Police Station
who testified on the police blotter, Dr. Antonio Cabrera also took the witness stand for the prosecution. Essentially, he
affirmed the medical certificate that he issued. His findings indicated that Baleriano suffered hematoma on the left side
of the nose, back portion of the body at the level of the hip region, and back portion at the right side of the scapular
region as well as abrasion on the right side of the breast and left side of the body at the axilliary region.  Dr. Cabrera
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opined that the injuries inflicted would heal from seven to ten days.  For the defense, petitioners denied the crime
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charged, declaring in unison that they were in their respective houses the entire evening of May 14, 1989. They
alleged, however, that the night before, on May 13, 1989, they conducted a roving footpatrol, together with other
barangay officials, due to the rampant cattle rustling in the area. At the time, they recovered a stolen carabao owned by
a certain Francisco Pongasi  from three unidentified persons who managed to escape.
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On November 15, 2001, the trial court found petitioners guilty beyond reasonable doubt of the crime of Less Serious
Physical Injuries under the Article 265 of the RPC. They were sentenced to suffer the penalty of imprisonment of
arresto mayor maximum, that is, four (4) months and one (1) day to six (6) months. According to the RTC, the
prosecution failed to prove that petitioners are public officers, which is an essential element of Article 128 of the RPC. It
held:

The prosecution who has that onus probandifailed to prove one of the essential elements of the crime; on the issue of
whether or not all the accused were public officers; while it is true that accused were named CVO’s and the other as a
barangay captain and that even if the same were admitted by them during their testimony in open court, such an
admission is not enough to prove that they were public officers; it is for the prosecution to prove by clear and convincing
evidence other than that of the testimony of witnesses that they werein fact public officers; there exist a doubt of
whether or not all the accused were in fact and in truth public officers; doubts should be ruled in favorof the accused;
that on this lone and essential element the crime charged as violation of domicile is ruled out; that degree of moral
certainty of the crime charged was not established and proved by convincing evidence of guilt beyond reasonable
doubt; x x x.  Petitioners elevated the case to the CA, which, on November 18, 2005, set aside the trial court’s
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judgment. While it agreed with both parties that petitioners should not be convictedfor Less Serious Physical Injuries,
the CA still ruled that they are guilty of Violation of Domicile considering their judicial admissions that they were
barangay captain (in the case of Geroche) and part of the Citizen Armed Forces Geographical Unit (in the case of
Garde and Marfil). The dispositive portion of the assailed Decision states:
WHEREFORE, pursuant to applicable law and jurisprudence on the matter and the evidence on hand, the appealed
decision is hereby SET ASIDE and a new one entered finding the accused-petitioners GUILTY beyond reasonable
doubt of the crime of Violation of Domicile under Article 128 of the Revised Penal Code and sentencing them to an
indeterminate penalty of Four (4) Months, One (1) Day of arresto mayor maximum to Six (6) Months and One (1) Day of
prision [correccional] minimum with the accessory penalty of suspension from public office and from the right to follow a
professionor calling pursuant to Article 43 of the Revised Penal Code.

SO ORDERED. 11

Petitioners’ motion for reconsideration was denied; hence, this petition. They argue that there is double jeopardy since
the trial court already acquitted them of Violation of Domicile and such judgment, being now final and executory, is res
judicata. Petitioners insist that their appeal before the CA is limited to their conviction for the crime of Less Serious
Physical Injuries, focusing their arguments and defense for acquittal from said crime, and that the CA violated their
constitutional right to due process when it convicted them for Violation of Domicile.

We deny.

An appeal in a criminal case opensthe entire case for review on any question including one not raised by the
parties.  When an accused appeals from the sentence of the trial court,he or she waives the constitutional safeguard
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against double jeopardy and throws the whole case open to the review of the appellate court, which is then called upon
to render such judgment as law and justice dictate.  An appeal confers upon the appellate court jurisdiction to examine
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the records, revise the judgment appealed from, increase (or reduce) the penalty, and cite the proper provision of the
penal law.  The appellate court may, and generally does,look into the entire records to ensure that no fact of weight or
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substance has been overlooked, misapprehended, or misapplied by the trial court. 15

Thus, when petitioners appealed the trial court’s judgment of conviction for Less Serious Physical Injuries, they are
deemed to have abandoned their right to invoke the prohibition on doublejeopardy since it becomes the duty of the
appellate court to correct errors as may be found in the assailed judgment. Petitioners could not have been placed
twice in jeopardy when the CA set aside the ruling of the RTC by finding them guilty of Violation of Domicile as charged
in the Information instead of Less Serious Physical Injuries.

The Court adopts the findings of factand conclusions of law of the CA. In their testimony before the open court as well
as in the pleadings they filed, neither Geroche denied that hewas a barangay captain nor Garde and Marfil refuted that
they were CAFGU members. In holding such positions, they are considered as public officers/employees. 16

As to the penalty imposed by the CA, however, We modify the same. Under Article 128 of the RPC, the penalty shall be
prision correccionalin its medium and maximum periods (two [2] years, four [4] months and one [1] day to six [6] years)
if Violation of Domicile be committed at nighttime or if any papers or effects not constituting evidence of a crime be not
returned immediately after the search made by the offender. In this case, petitioners barged in the house of Baleriano
while they were sleeping at night and, in addition, they took away with them his airgun.

In imposing a prison sentence for an offense punished by the RPC, the Indeterminate Sentence Law  requires courts to
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impose upon the accused an indeterminate sentence. The maximum term of the prison sentence shall be that which, in
view of the attending circumstances, could be properly imposed under the rules of the said Code.  Yet the penalty
1âwphi1

prescribed by Article 128 of the RPC is composed of only two, not three, periods. In which case, Article 65 of the same
Code requires the division into three equal portions the time included in the penalty, forming one period of each of the
three portions. Applying the provision, the minimum, medium and maximum periods of the penalty prescribed by Article
128 are:

Minimum – 2 years, 4 months and 1 day to 3 years, 6 months and 20 days

Medium – 3 years, 6 months and 21 days to 4 years, 9 months and 10 days

Maximum – 4 years, 9 months and 11 days to 6 years

Thus, applying in this case, the maximum term should be within the medium period or from 3 years, 6 months and 21
days to 4 years, 9 months and 10 days, in light of the provisions of Article 64 of the Revised Penal Code that if there
are no other mitigating or aggravating circumstances attending the commission of the crime, the penalty shall be
imposed in its medium period.

On the other hand, the minimum term shall be within the range of the penalty next lower to that prescribed by the RPC
for the crime. The penalty next lower to that prescribed by Article 128 is arresto mayor in its maximum period to prision
correccional in its minimum period (or 4 months and 1 day to 2 years and 4 months).

The foregoing considered, in view of the attending circumstances in this case, the Court hereby sentences the
petitioners to suffer the indeterminate penalty from two (2) years and four (4) months of prision correccional, as
minimum, to four ( 4) years, nine (9) months and ten (10) days of prision correccional, as maximum.

WHEREFORE, the Court AFFIRMS the Decision dated November 18, 2005 and Resolution dated June 19, 2007 of the
Court of Appeals in CAG.R. CR No. 26418 finding petitioners Edigardo Geroche, Roberto Garde and Generoso Marfil
alias "Tapol" guilty beyond reasonable doubt of Violation of Domicile, penalized under Article 128 of the Revised Penal
Code, with the MODIFICATION that the penalty that should be imposed is an indeterminate sentence from two (2)
years and four (4) months of prision correccional, as minimum, to four (4) years, nine (9) months and ten (10) days of
prision correccional, as maximum.

SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

MARTIN S. VILLARAMA, JR. BIENVENIDO L. REYES

FRANCIS H. JARDELEZA
Associate Justice

ATTESTATION

I attest 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.

PRESBITERO J. VELASCO, JR.

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division 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.

MARIA LOURDES P.A. SERENO

Footnotes

 Penned by Associate Justice Romulo V. Borja, with Associate Justices Myrna Dimaranan Vidal and Ricardo R.
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Rosario concurring; rol/o, pp. 25-36.

2
 Rollo, pp. 38-39.

3
 Penned by Judge Rodolfo M. Serrano (Records, pp. 326-332; id. at 17-23).

4
 Art. 128. Violation of domicile. - The penalty of pr is ion correccional in its minimum period shall be imposed
upon any public officer or employee who, not being authorized by judicial order, shall enter any dwelling against
the wilI of the owner thereof, search papers or other effects found therein without the previous consent of such
owner, orhaving surreptitiously entered said dwelling, and being required to leave the premises, shall refuse to
do so.

If the offense be committed in the night-time, or if any papers or effects not constituting evidence of a
crime be not returned immediately after the search made by the offender, the penalty shall be prision
correccionalin its medium and maximum periods.

5
 Records, p. 31.

6
 Id. at 36.

7
 Records, p. 4.

8
 TSN, December 7, 1993, p. 4. (Id. at 140).

9
 Spelled as "Pungasi" is some parts of the Records (Seerecords, pp. 318-319).

10
 Records, p. 331; Rollo, p. 22.

11
 Rollo, pp. 35-36.

12
 People of the Philippines v. Reynaldo Torres, et al., G.R. No. 189850, September 22, 2014.

13
 People of the Philippines v. Reynaldo Torres, et al., G.R. No. 189850, September 22, 2014.

14
 Garces v. People, 554 Phil. 683, 696-697 (2007).
15
 People v. Dela Rosa, G.R. No. 201723, June 13, 2013, 698 SCRA 548, 554.

 The CAFGU was created pursuant to Executive Order No. 264 for the purpose of complementing the
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operations of the regular force formations in a locality. It was composed of civilian volunteers who were tasked
to maintain peace and order in their localities, as well as to respond to threats to national security. As such, they
were provided with weapons, and given the authority to detain or order detention of individuals. (See People v.
Flores, 410 Phil. 578, 587 [2001]).

17
 Act No. 4103, as amended by Act No. 4225 and Republic Act No. 4203.
GEROCHE vs. PEOPLE
G.R. No. 179080
November 26, 2014

FACTS:

Baleriano Limbag (Baleriano) testified that the crime happened around 10:00 o’clock in the
evening of May 14, 1989 inside his house. He roused from sleep when petitioners, who
were not armed with search warrant, suddenly entered the house by destroying the main
door. The petitioners mauled him, striking with a garand rifle, which caused his injuries. They
looked for firearms but instead found and took away his airgun.

It was alleged in the Information that petitioner Geroche was a Barangay Captain while
petitioners Garde and Marfil were members of Citizen Armed Forces Geographical Unit
(CAFGU).

ISSUE:

Whether or not the petitioners are guilty of the crime of Violation of Domicile under Article
128 of the Revised Penal Code (YES)

HELD:

YES, the petitioners are guilty of the crime of Violation of Domicile.

In their judicial admissions, in their testimony before the open court as well as in