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Tad-y vs People

G.R. No. 148862. August 11, 2005

J. Callejo, Sr., 2nd division

Facts: Petitioner Ruben Tad-y was accused direct bribery of demanding and receiving P4,000.00 from
Encabo on July 24, 1995 in consideration for his signing a certificate of occupancy, which he also signed
on the said date. Tad-y was also charged with violation of Section 3(c ) of RA3019 He was convicted by
the MTC of violation of Paragraph 2 of Article 210 of the Revised Penal Code, which decision was upheld
by the RTC with modifications as to penalty, and the RTC decision was affirmed in toto by the CA. while
the RTC denied the motion for reconsideration, however, it agreed with Tad-y’s contention that what
the latter signed was a certificate of final inspection and not a certificate of occupancy, in connection
with which he was acquitted of charges of violation of Section 3(c) of Republic Act No. 3019.

Issue: whether the prosecution adduced proof beyond reasonable doubt of his guilt for direct bribery
under the second paragraph of Article 210 of the Revised Penal Code.

Ruling: The MTC convicted the petitioner of direct bribery on its finding that the petitioner demanded
P4,000.00 from Wong, through Encabo, in consideration of signing a certificate of occupancy, and that
on July 24, 1995, the petitioner received the said amount from Encabo and signed the said certificate
for the Atrium building.

There is no iota of competent and credible evidence to support these findings. There is no evidence on
record that the petitioner and Encabo met on April 24, 1995. In fact, it was only on April 25, 1995 that
Encabo arrived at the OCE to make arrangements for the final inspection of the building by the officers
concerned, the signing of the certificate of inspection by said officers, and the signing of the certificate
of occupancy by the building official. There is also no dispute that what was signed by the petitioner, on
July 24, 1995, following his final inspection of the building, was the certificate of final inspection and not
a certificate of occupancy of the building. Even Encabo admitted that the petitioner refused to sign the
said certificate because as of July 24, 1995, there had been no final inspection of the building, and not
because he was demanding P4,000.00 from Encabo.

There is also no credible evidence on record that the petitioner demanded P4,000.00 from Wong,
through Encabo, in exchange for the signing of the certificate of occupancy. Indeed, it is incredible that
the petitioner would demand the said amount as a precondition to his signing a certificate, considering
that, under Section 309 of P.D. No. 1096, the authority to sign said certificate is vested specifically on
the building official, and not on the petitioner:

Petition granted; decisions of the MTC, RTC and CA reversed and set aside. Petitioner is acquitted.
ZENAIDA V. SAZON, G.R. No. 150873
Petitioner,
Present:

YNARES-SANTIAGO, J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
PERALTA, JJ.

Promulgated:
SANDIGANBAYAN (Fourth Division),
Respondent. February 10, 2009

x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court
seeking to nullify the Decision[1] of the Sandiganbayan, dated July 26, 2001, in Criminal Case No.
18257, finding the petitioner Zenaida V. Sazon guilty beyond reasonable doubt of Robbery
Extortion.[2] Likewise assailed is the Sandiganbayans Resolution[3] dated November 16,
2001 denying petitioners motion for reconsideration.

The facts, as established by the evidence presented, are as follows:

Petitioner was a Senior Forest Management Specialist of the Department of Environment and
Natural Resources (DENR), National Capital Region (NCR).[4] On September 24, 1992, the
DENR-NCR issued Travel Order No. 09-92-409 directing the petitioner and a certain Carlos Gubat
I (Gubat) to proceed to Karuhatan and Navotas, both in Metro Manila, to perform the following:
1. To investigate [an] intelligence report on the alleged arrival of illegal
shipment of poles and piles to Navotas, Metro Manila; and

2. [To] verify illegal resaw operation of Honway Lumber, Karuhatan, Metro


Manila.[5]

On September 25, 1992, petitioner and her team, composed of Gubat and Forester Nemesio
Ricohermoso, conducted a surveillance in Karuhatan and Navotas. While looking for the office of
Vifel Shipyard, subject of the travel order, the team chanced upon the R&R Shipyard (R&R) and
asked from the lady guard for Mr. Rodrigo Opena (Mr. Opena), the Operations Manager.[6] As the
petitioner knew Mr. Opena, the former wanted to inquire from the latter where Vifel Shipyard
was.[7] In the course of their conversation with the lady guard, the team spotted squared logs, which
they claimed to be dungon logs piled at the R&R compound. Upon a closer look, the team noticed
that the squared logs were mill-sawn and bore hatchet marks with a number indicating inspection
by the DENR. Since dungon logs were banned species, the team asked for the pertinent documents
relative thereto. However, the same could not be produced at that time; hence, they decided to
return on October 1.[8]

On October 1, 1992, petitioner and her team returned to R&R to check the necessary
documents they were looking for. Yet again, Mr. Opena could not produce the documents as they
were then allegedly in the possession of the auditing section of their main office. Petitioner insisted
that the subject logs were banned species and, thus, threatened Mr. Opena that he could be arrested
and that the logs could be confiscated. Mr. Opena, however, claimed that the logs that were seen
by the petitioner were yakal and tangile and not dungon.[9]

On October 7, 1992, Atty. Teresita Agbi, the lawyer of R&R, met with the petitioner to
talk about the subject logs. Petitioner instructed Atty. Agbi to proceed to the bakeshop at the
ground floor of the formers office.[10] There, Atty. Agbi informed the petitioner that she had in her
possession the receipts covering the subject logs; but the latter averred that the receipts were not
sufficient as there were additional requirements[11] to be submitted. Believing that Atty. Agbi could
not produce the required documents, petitioner initially demanded the payment of P300,000.00 if
no papers would be submitted; P200,000.00 if incomplete; and P100,000.00 if the papers were
complete.[12]

On October 13, 1992, petitioner made a final demand of P100,000.00 in exchange for the
favor of fixing the papers of the alleged hot logs. She even offered Atty. Agbi P25,000.00 as her
share in the amount.[13] Atty. Agbi reported the matter to the police. Consequently, an entrapment
operation against the petitioner was planned wherein Atty. Agbi would agree to pay P100,000.00
to settle the issue with the petitioner.[14]

On October 14, 1992, the day of the scheduled entrapment operation, Atty. Agbi, together
with Senior Police Officer 1 Edwin Anaviso (SPO1 Anaviso), SPO1 Pablo Temena (SPO1
Temena) and SPO2 Renato Dizon (SPO2 Dizon) went to the Maxs Restaurant in
EDSA, Caloocan City, where they would meet the petitioner.[15] Upon seeing Atty. Agbi,
petitioner instructed the former to drop the envelope containing the money in the taxicab parked
outside. Atty. Agbi, however, could not comply since her P25,000.00 commission had not yet been
segregated from the P100,000.00. Petitioner thus offered to segregate it at the ladies room.[16] As
soon as Atty. Agbi handed over the envelope containing the money, petitioner placed her wallet
and handkerchief inside the envelope;[17] then SPO2 Dizon immediately accosted and handcuffed
the petitioner while SPO1 Temena took pictures of the incident.[18]
Petitioner, for her part, denied the above accusation. She averred that it was in fact Atty. Agbi who
proposed the settlement which she, however, rejected. When offered a brown envelope containing
money, petitioner allegedly stood up and prepared to leave, but a man came from nowhere and
immediately handcuffed her while another man took pictures.[19]

At about 11 oclock in the evening, petitioner was brought to the assistant prosecutor for
inquest.[20] Thereafter, an Information for Robbery Extortion was filed against the petitioner, the
accusatory portion of which reads:

That on or about October 14, 1992, in Kalookan City, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused, a public officer,
being then the supervisor of the Department of Environment and Natural Resources
(D[E]NR), taking advantage of her public position and which offensed (sic) was
committed in relation to her office, by means of intimidation and with intent to gain,
did then and there willfully, unlawfully and feloniously demand, take and extort
from the IRMA FISHING & TRADING COMPANY as represented herein by
ATTY. TERESITA A. AGBI, the amount of P100,000.00 to prevent the
confiscation of more or less thirty (30) pcs. of logs, which are found in the
compound of RNR Marine Inc., purportedly for unauthorize[d] possession of the
said logs, and belonging to the said Irma Fishing & Trading Company, to the
damage and prejudice of the said owner in the aforementioned amount
of P100,000.00.

CONTRARY TO LAW.[21]
Upon arraignment, petitioner entered a plea of Not Guilty.[22]

After trial on the merits, the Sandiganbayan rendered a Decision[23] convicting the petitioner of the
crime of robbery extortion. The dispositive portion of the assailed decision is quoted hereunder:

WHEREFORE, the accused, ZENAIDA SAZON y VENTURA, is hereby found


GUILTY beyond reasonable doubt of the crime of ROBBERY EXTORTION,
defined under Article 293, and penalized under paragraph 5, Article 294 (as
amended by Section 9, Republic Act No. 7659) both of the Revised Penal Code,
and, there being no aggravating or mitigating circumstance that attended the
commission of the crime, she is hereby sentenced, under the Indeterminate
Sentence Law, to suffer the penalty of imprisonment of from Two (2) Years and
Three (3) Months of prision correccional, as minimum, to Seven (7) Years
of prision mayor, as maximum, and to pay the costs.

SO ORDERED.[24]

The court found that the elements of robbery with intimidation were established by the
prosecution.[25] It was pointed out that if the interest of petitioner was merely the submission by
R&R of the required documents, she should have required that they meet at her office and not at a
restaurant.[26] Her liability, said the court, was not negated by the eventual admission of Irma
Fishing and Trading Co. that the required documents could not be produced.[27]

Hence, the instant petition on the following grounds:

I. WITH DUE RESPECT, THE RESPONDENT COURT GRAVELY


ERRED IN CONCLUDING THAT THE VERSION OF THE PROSECUTION
TENDS TO SHOW THAT ALL THE ELEMENTS OF THE CRIME OF
ROBBERY WITH INTIMIDATION ARE PRESENT.

II. WITH DUE RESPECT, THE RESPONDENT COURT GRAVELY


ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE
DOUBT OF THE CRIME CHARGED.[28]

Apart from the instant criminal case, the DENR filed an administrative complaint against the
petitioner for grave misconduct in the performance of official duty, but the same was dismissed
for lack of interest on the part of the complainant. Another administrative case was filed before the
Office of the Ombudsman, but the same was likewise dismissed.[29]
Petitioners insistence on her acquittal of the crime of robbery with intimidation hinges on
the alleged absence of the elements of the crime. She specifically questions the Sandiganbayans
conclusion that she employed intimidation in order to extort P100,000.00 from R&R. Petitioner
strongly doubts that the threat of confiscation of the subject logs created fear in the mind of R&R
or its employees. Absent such element, says the petitioner, her exoneration is clearly indicated.[30]

We do not agree with the petitioner.

In appeals to this Court from the Sandiganbayan, only questions of law may be raised, not
issues of fact. The factual findings of the Sandiganbayan are binding upon this Court.[31] The
Supreme Court should not be burdened with the task of re-examining the evidence presented
during the trial of the case. This rule, however, admits of exceptions, to wit: 1) when the conclusion
is a finding grounded entirely on speculation, surmise or conjectures; 2) the inference made is
manifestly mistaken; 3) there is grave abuse of discretion on the part of the lower court or agency;
4) the judgment is based on a misapprehension of facts; 5) said findings of fact are conclusions
without citation of specific evidence on which they are based; and 6) the findings of fact of the
Sandiganbayan are premised on an absence of evidence on record.[32] However, we find no reason
to disturb the factual findings of the Sandiganbayan, as none of these exceptions is present in this
case.

Petitioner was charged with robbery defined and penalized under Articles 293[33] and 294(5)[34] of
the Revised Penal Code (RPC), otherwise known as simple robbery. Simple robbery is committed
by means of violence against or intimidation of persons.[35] The elements of robbery as defined in
Article 293 of the RPC are the following: a) that there is personal property belonging to another;
b) that there is unlawful taking of that property; c) that the taking is with intent to gain; and d) that
there is violence against or intimidation of persons or force upon things.[36]

Indeed, the prosecution adequately established the above elements.

As to what was taken, it is undisputed that petitioner demanded and eventually received from
R&R P100,000.00, a personal property belonging to the latter. The amount was placed inside a
brown envelope and was given to petitioner while inside Maxs Restaurant in
EDSA, Caloocan City.
As to how the money was taken, it was proven that P100,000.00 was unlawfully taken by the
petitioner from R&R, with intent to gain and through intimidation. In robbery, there must be an
unlawful taking or apoderamiento, which is defined as the taking of items without the consent of
the owner, or by means of violence against or intimidation of persons, or by using force upon
things.[37] Taking is considered complete from the moment the offender gains possession of the
thing, even if he has no opportunity to dispose of the same. In the instant case, it was adequately
proven that petitioner received and took possession of the brown envelope containing the money;
she even placed her wallet and handkerchief inside the envelope. At that point, there was already
taking.

As a public officer employed with the DENR, petitioner was tasked to implement forestry laws,
rules and regulations. Specifically, she had the power to make reports on forestry violations which
could result in the eventual confiscation of logs if the possession thereof could not be justified by
the required documents; and the prosecution of violators thereof. Undoubtedly, petitioner could
not demand and eventually receive any amount from private persons as a consideration for the
formers non-performance of her lawful task. More so, in the instant case where the petitioner
threatened the complainants with possible confiscation of the logs and prosecution if they would
not accede to her demand for P100,000.00. Under such circumstances, the eventual receipt of the
said amount by the petitioner makes the taking unlawful.

To constitute robbery, the taking should be accompanied by intent to gain. Intent to gain, or animus
lucrandi, as an element of the crime of robbery, is an internal act; hence, presumed from the
unlawful taking of things.[38] Actual gain is irrelevant as the important consideration is the intent
to gain.[39] Having established that the amount of P100,000.00 was unlawfully taken by the
petitioner from R&R for her personal benefit, intent to gain was likewise proven.

Lastly, we agree with the Sandiganbayan that petitioner employed intimidation in order to obtain
the amount of P100,000.00 from R&R.

Intimidation is defined in Blacks Law Dictionary as unlawful coercion; extortion; duress;


putting in fear.[40] In robbery with intimidation of persons, the intimidation consists in causing or
creating fear in the mind of a person or in bringing in a sense of mental distress in view of a risk
or evil that may be impending, real or imagined. Such fear of injury to person or property must
continue to operate in the mind of the victim at the time of the delivery of the money.[41]
Applying this principle to the pertinent facts of the instant case, it is noteworthy that: On September
25, 1992, petitioner discovered the questioned logs and asked that the supporting documents be
shown; on October 1, she formally demanded the submission of the required documents; on
October 7, she demanded payment of a particular sum of money while offering to fix the problem;
on October 13, she made the final demand; and on October 14, the representatives of R&R parted
with their P100,000.00. While it appears that initially, petitioner only demanded the submission of
the supporting documents to show that R&Rs possession of the subject logs was legal, she agreed
to talk about the matter outside her office. This circumstance alone makes her intentions highly
suspect.The same was confirmed when petitioner eventually demanded from R&R the payment of
a particular sum of money, accompanied by threats of prosecution and confiscation of the logs.
From the foregoing, and in light of the concept of intimidation as defined in various jurisprudence,
we find and so hold that the P100,000.00 grease money was taken by the petitioner from R&Rs
representatives through intimidation. By using her position as Senior Management Specialist of
the DENR, petitioner succeeded in coercing the complainants to choose between two alternatives:
to part with their money, or suffer the burden and humiliation of prosecution and confiscation of
the logs.

Indeed, this Court had, in a number of cases involving substantially the same factual milieu as in
the present case, convicted the accused of the crime of robbery with intimidation. These include
the early cases of People v. Francisco[42] and United States v. Sanchez,[43] and the more recent
cases of Fortuna v. People[44] and Pablo v. People.[45]

In People v. Francisco, the accused, who was then a sanitary inspector in the Philippine Health
Service, discovered during an inspection of the merchandise in Sy Hams store that the lard was
unfit for consumption. He then demanded from Sy Ham the payment of P2.00 with threats of
prosecution and arrest. For fear of being arrested, prosecuted, and convicted, Sy Ham immediately
paid the amount demanded.

In United States v. Sanchez, two police officers demanded from a Chinese, who allegedly violated
the Opium Law, P500.00, accompanied by threats to take him before the proper authorities and
have him prosecuted. For fear of being sent to prison for a long term, the Chinese paid a negotiated
amount of P150.00

In Fortuna v. People and Pablo v. People, three policemen frisked Diosdada and Mario
Montecillo, and accused the latter of illegal possession of a deadly weapon. The policemen
threatened Mario that he would be brought to the police station where he would be interrogated by
the police, mauled by other prisoners and heckled by the press. The apprehending policemen took
from Mario P1,000.00.They likewise rummaged Diosdadas bag where they found and eventually
pocketed P5,000.00. They further demanded from Diosdada any piece of jewelry that could be
pawned. Thereafter, the two were released by the policemen.

In all of the above cases, the Court was convinced that there was sufficient intimidation applied
by the accused on the offended parties inasmuch as the acts of the accused engendered fear in the
minds of their victims and hindered the free exercise of their will.
As in the aforesaid cases, petitioner herein was a public officer who, in the performance of her
official task, discovered the subject logs which she claimed to be banned species. By reason of
said discovery, she had the power to bring the offenders to the proper authorities. As such public
officer, she abused her authority and demanded from the offenders the payment of a particular sum
of money, accompanied by an assurance that the latter would no longer be prosecuted. Eventually,
money was given to the petitioner. We, therefore, find no reason to depart from the above
conclusion.

We would like to stress that the Constitution guarantees that in all criminal prosecutions, the
accused shall be presumed innocent until the contrary is proved. This means proving the guilt of
the accused beyond reasonable doubt. Reasonable doubt is present when, after the comparison and
consideration of all the evidence adduced, the minds of the judges are left in a condition that they
cannot say they feel an abiding conviction, a moral certainty, of the truth of the charge, a certainty
that convinces and directs the understanding, and satisfies the reason and judgment of those who
are bound to act conscientiously upon it.[46] To be sure, proof beyond reasonable doubt does not
demand absolute certainty and the exclusion of all possibility of error.[47]

We find, however, that the Sandiganbayan failed to appreciate the aggravating circumstance of
abuse of public position.[48] The fact that petitioner was Senior Forest Management Specialist of
the DENR situated her in a position to perpetrate the offense. It was on account of petitioners
authority that the complainants believed that they could be prosecuted and the subject logs
confiscated unless they gave her what she wanted. Consequently, we find that a modification of
the penalty imposed by the Sandiganbayan is in order.

Article 294(5) of the RPC fixes the penalty for simple robbery at prision correccional in its
maximum period to prision mayor in its medium period, the range of which is from four (4) years,
two (2) months and one (1) day to ten (10) years. Considering the aggravating circumstance of
abuse of public position, the penalty should be imposed in its maximum period; and applying the
Indeterminate Sentence Law, the same should likewise be the maximum term of the indeterminate
penalty. The minimum term, on the other hand, shall be taken from the penalty next lower in degree
which is arresto mayor maximum to prision correccional medium in any of its periods, the range
of which is four (4) months and one (1) day to four (4) years and two (2) months.[49]

WHEREFORE, premises considered, the petition is DENIED. The Decision of the


Sandiganbayan, dated July 26, 2001, and its Resolution dated November 16, 2001 in Criminal
Case No. 18257, are AFFIRMED WITH THE MODIFICATION that petitioner Zenaida V.
Sazon is sentenced to the indeterminate penalty of Two (2) Years, Ten (10) Months and Twenty-
One (21) Days of prision correccional, as minimum, to Eight (8) Years and Twenty-One (21) Days
of prision mayor, as maximum.
SO ORDERED.

G. R. No. 41008

DIAZ, J.:
Isidoro T. Policher was charged with, and convicted of the complex crime of estafa through
falsification of public documents in the Court of First Instance of Lanao which sentenced him to
ten years and one day of prision mayor with the corresponding accessories of the law, to pay a
fine of P1,000, and to indemnify Moros Somampot, Donato Marcos and Tindigan Dipatuan in
the sums of P4, P16 respectively, with costs.
The information which gave rise to the action against said accused reads as follows:
"That on or about and during the period intervening from May 20, 1928, to May 29, 1930, in the
municipal district of Kolambugan, Province of Lanao, Philippine Islands, and within the
jurisdiction of this court, said accused, the then duly appointed treasurer of said municipal
district and as such was in charge and responsible, among other official duties, for the issuance
of cedula certificates in said municipal district of Kolambugan, voluntarily, unlawfully and
feloniously, and with grave abuse of his official position and with intent to gain and of
prejudicing and defrauding Moros Somampot, Donato Marcos and Tindigan Dipatuan, falsified
cedula certificates G-Nos. 3844057, 3222523, 3843641, 3843629, 3844005, 3221650, 3221649,
3221752 and 3221753, by erasing the names written thereon of persons to whom said cedula
certificates had originally been issued so as to reissue them, and in fact he reissued them, in order
to appropriate for himself, and in fact he voluntarily, unlawfully and feloniously appropriated for
his own use and benefit, the proceeds of this reissuance of the cedula certificates in question,
amounting to P36, to the damage of said Moros Somampot, Tindigan Dipatuan, and Donato
Marcos in the sums of P4, P16 and P16, respectively. Contrary to law."
The accused appealed from the judgment rendered against him, assigning in his brief three
alleged errors as committed by the trial court, to wit:
"1. The lower court erred in not holding that all the webs of circumstances leading to the
prosecution of the crime were deliberately planned and ingeniously manipulated by the enemies
of the acused to satisfy their lust of vengeance.
"2. The lower court erred in giving credit to the self-contradicting and perverted testimony of the
three more witnesses for the prosecution.
"3. The lower court erred in convicting the defendant-appellant of the crime of estafa thru
falsification of public documents beyond reasonable doubt and in not absolving him from all
criminal responsibilities."
The evidence shows that the appellant was the municipal treasurer of the municipal district of
Kolambugan, of the Province of Lanao, for at least some years prior to February 27, 1927, the
date on which the witness for the prosecution, Felix Jalasan, entered the service as clerk under
said appellant. Prior to the date above stated, he had acted as municipal treasurer of other
municipalities, and in 1933, when this case was tried, he had already been in the Government
service as municipal treasurer for about eleven years.
In May, 1928, the appellant, in his own handwriting, issued cedulas Nos. 3221649 (Exhibit F-l),
3221650 (Exhibit G-1), 3221752 (Exhibit H-1) and 3221753 (Exhibit 1-1), stated in the
information, the first two in favor of Mamoncar Bomantay and the last two in favor of Macaraub
Bangor. In 1929 said appellant's office issued cedulas Nos. 3844057 (Exhibit A-1), 3222523
(Exhibit B-1), 8843641 (Exhibit C-1), 3843629 (Exhibit D-1) and 3844005 (Exhibit E-1), also
stated in the information, in favor of Daniel Calumba, Ditual, Balinting Alongan, Ditual
Macaagan and Salangan, respectively.
All the blanks of said first four cedulas (F-1, G-1, H-1, and I-1) were filled in by the appellant
himself in his own handwriting, and those of the last five (A-1, B-1, C-1, B-1 and E-1), intended
for entry of the personal record of the taxpayers, all with respect to Exhibit A-l and partially with
respect to the rest, or B-1, C-1, D-1 and E-1, were filled in by Felix Jalasan, according to the stub
of the first, Exhibit A-l, and the duplicates of the others, Exhibits B-1, C-1, D-1 and E-1. The
only spaces of these cedulas which could be filled in then were those intended for the names,
said witness Jalasan having written therein those of Ditual, Balingting Alongan, Ditual
Macaagan and Salangan, respectively, because they were the only data then available-.
Instead of delivering the nine cedulas in question to the taxpayers who had paid for them, they
were retained in the appellant's office on the ground that the interested parties had not furnished
all the necessary data relative to their personal circumstances. While waiting for said data, the
cedulas in question together with others were in the custody of clerk Felix Jalasan. At this
juncture, the appellant summoned Moros Somampot, Tindigan Dipatuan and Donato Marcos to
appear before him in order to demand of them the payment of their back cedulas. As soon as said
three Moros had arrived at the appellant's office, he bade them enter and forthwith asked his
clerk to deliver to him the cedulas in question, that is, Exhibits A-l to 1-1 which, as stated, were
already partially filled out with the date appearing on their respective stubs and duplicates,
Exhibits A. B, C, D, E, F, G, H and I, and which-were theretofore in the custody of said clerk. In
compliance with the appellant's requirement said Moros then delivered to him, the first P4, the
second P8 and the third ¦P24, to complete the sums which they had paid him for their cedulas on
former occasions.
The various sums of P4 seated in cedulas Exhibits A-l to 1-1, amounting to P36, and which were
paid by the persons in whose favor said cedulas had originally been issued, were duly deposited
in the safe and entered in the official records of the appellant (Exhibits A-2, B-2, C-2, D-2, E-2,
F-2, G-2, H-2 and 1-2); but those paid to him by Moros Somampot, Tindigan Dipatuan and
Donato Marcos when he delivered to them the certificates which were already altered as they are
at present, were not deposited in the safe and do not appear to have been entered by the appellant
in any of his records, thus leading to the logical conclusion that he misappropriated them.
The names on the cedillas in question showing that they were issued in favor of said Moros
Somampot, Tindigan Dipatuan and Donato Marcos, and not to Daniel Calumba, Ditual, Balinting
Alongan, Ditual Macaagan and Salangan, are in the appellant's handwriting, if credit is to be
given to the testimony of Miguel Burdeos, chief clerk of the provincial auditor, who examined
the accounts and investigated the appellant, and that of Felix Jalasan, confidential clerk of said
appellant. Both witnesses who are familiar with the appellant's penmanship by reason of their
long association with him, categorically affirmed that the alterations appearing on the cedulas in
question are in the appellant's handwriting. The testimony of said two witnesses and that of said
three Moros, who claimed to have delivered to the appellant the sums required of them and
received said cedulas from said appellant's own hands, jointly prove that it was the appellant and
no other person who made the alterations in the cedula certificates in question.
However, the appellant contends that it was not he who committed the falsification or received
the money which the three Moros claimed to have delivered to him. In support of his contention,
he insinuates in his brief that Felix Jalasan might have made the alterations imputed to him and
that said witness did so serving as a tool for the vengeance of chief of police Salvador C. Rabaya
who harbored a grudge against him because he had once deducted from Rabaya's salary the
payment of a certain municipal tax due from the latter's barber shop in Kolambugan, Lanao. His
testimony, however, is insufficient to destroy that of the five witnesses for the prosecution
particularly when the motive attributed by him to said chief of police Salvador C. Rabaya is not
of such nature that it may be considered sufficient to have induced Rabaya to plot against him in
connivance with the witnesses for the prosecution named Somampot, Tindigan Dipatuan, Donato
Marcos, Felix Jalasan and Miguel Burdeos. Furthermore, there is absolutely nothing of record to
show that there had actually been a plot against him.
Another argument used by the appellant in support of his contention that Felix Jalasan might
have been the author of the falsification is that the handwriting on said cedulas is similar to his
own handwriting and also to that of Jalasan. Acting under this supposition, the appellant, after
the prosecution had presented its evidence, asked the lower court to postpone the continuation of
the trial at least until the following session of said court in order to have the opportunity to
engage the services of a handwriting expert from Manila, who might be able to determine the
truth of his contention. The lower court justly denied his petition, first, because he did not then
assure that if the handwriting expert were to testify he would declare that the alterations
appearing on the cedulas in question were made by Jalasan; second, because when he entered the
trial, he failed to reserve the right later to present a handwriting expert to prove that the
alterations on the cedulas in question were not in his own handwriting; and third, because
although he then knew that the crime with which he was charged was falsification of the cedulas
stated in the information, from October 5, 1932, when the information was filed, or nearly one
year prior to the holding of the trial, he neither made any effort to look for a handwriting expert
nor thought of setting up the defense alleged by him later in his brief. Therefore, the belief that
the appellant's purpose in asking for the suspension of the trial until the following session of the
court was merely to delay the action, as stated by the fiscal at the trial, is not unfounded.
On the other hand, there is absolutely no reason to believe that Felix Jalasan has distorted the
facts in his testimony inasmuch as he felt nothing but gratitude towards the appellant because the
latter not only gave him the job, as the appellant himself stated at the trial, but also allowed him
to continue in the service notwithstanding his lack of efficiency during his first years of service
until he (the appellant) became pleased to retain him upon observing his progress and diligence.
Furthermore, it is not Felix Jalasan's testimony or that of Miguel Burdeos alone that points to the
appellant as the author of the falsification, but also that of the three Moros af orestated. It is the
testimony of said five witnesses, corroborated as it is by the aforesaid documentary evidence of
record, that denounces him and proves his direct participation in the commission of the crime of
falsification.
After it has been proven that the appellant is guilty of falsification and inasmuch as only one
information had been filed against him, (1) for how many crimes of said nature may he be held
liable? (2) Should he also be held liable for the crime of estafa or that of malversation, having
appropriated his collection from said three Moros instead of depositing it in the Government
coffers?
These are questions which necessarily arise after knowing the facts just stated.
In the opinion of this court, it is not the said three Moros (Somampot, Tindigan Dipatuan and
Donato Marcos) who suffered the damage resulting from the falsification and the appropriation
by the appellant of the money collected from them, but the Government itself because inasmuch
as said Moros knew that the appellant was the public official designated by law and by the
constituted authorities to collect cedula taxes, having done so for a long time, and furthermore,
inasmuch as they knew that they were obliged to pay said taxes, it should be stated that they
were only acting with absolute propriety when they delivered to said appellant the sums which
he demanded of them in payment of their respective cedulas corresponding to former years. For
the same reason that they had no intervention in the administration of the appellant's office, it
was not and it is not just to require that they should have made sure that their money paid for said
concept has been deposited in the safe by the appellant and furthermore entered by him in his
corresponding records. When a public official, whose official duty is to collect taxes, receives a
payment in said concept, he makes himself directly accountable to the Government for the
money so collected and received inasmuch as thereafter said money acquires the character or
forms part of the public funds and the tax on account of which said payment was made should
also thenceforth be considered paid by the taxpayer without further responsibility on his part. To
hold the taxpayer responsible for the misappropriation of the money collected for taxes due, by
the public official who has collected and received payment, would be not only unreasonable but
also highly unjust. Therefore, the crime committed by the appellant is not the complex crime
of estafa through falsification but nine falsifications of official or public documents, as are the
cedulas, and malversation.
It is true that only one action was instituted and only one information filed against the appellant
but it is none the less true that in said information he was expressly charged with nine acts of
falsification of public documents by reason of the issuance of nine different cedulas. In the case
of United States vs. Balaba (37 Phil., 260), this court held that there is nothing to prevent the
imposition upon the accused of as many penalties as there are offenses imputed to him and
proven at the trial, if, as in this case, it satisfactorily appears that he has consented to the action
wherein said crimes were imputed to him by failing to interpose on time, although he could have
done so, a demurrer on the ground that the information charged him with more than one offense.
The right to be charged with not more than one offense in an information may be. waived, the
only exceptions to this rule being the cases where one of the offenses charged has been a
necessary means for committing the other and where both have been the result of a single act,
(Article 89 of the old Penal Code; article 48 of the Revised Penal Code.)
As to the second question, this court is of the opinion that the appellant cannot be declared guilty
of estafa because the proven facts show, for the reasons already stated, that the crime committed
was not estafa but malversation, which is a crime entirely different from the former and for the
existence of which some elements not belonging to estafa are necessary. The appellant, upon
entering trial, was undoubtedly unprepared to defend himself from the charges for malversation
and falsification except only from falsification and estafa, and it would be taking him by surprise
if he were to be sentenced also for malversation. It has been stated during the consideration of
this case that under the allegations contained in the information, the appellant may also be
declared guilty of malversation inasmuch as it has been proven that he appropriated his
collection from the aforesaid three Moros instead of depositing It in the safe. In the information,
however, there is no allegation to justify the inference, without resorting to the proven facts, that
it is the Government that sustained the injury resulting from the appellants crime. What the
information clearly expresses and states is that it was the three Moros in question who sustained
the injury. Therefore the various acts of malversation committed by the appellant should not be
taken into consideration in this case because he was not charged therewith.
Inasmuch as the falsifications proven at the trial took place long before the Revised Penal Code
went into effect, the law applicable to the case is undoubtedly the old Penal Code. Under the
provisions of article 88 of said Code, a penalty in excess of three-fold the most severe penalty
which the appellant deserves for one of said crimes cannot be imposed upon him (or said nine
crimes of falsification of public documents. According to said Code, as amended by Act No.
2712, each of said acts of falsification is punishable with prision mayor and a fine of from 250 to
12,500 pesetas. In view whereof, and taking into consideration the fact that no modifying
circumstance of any kind has been proven, the penalty which should be imposed for one of said
crimes is eight years and one day of prision mayor which is the minimum of the medium period
of prision mayor plus a fine of 250 pesetas.
Wherefore, by amending the appealed judgment, the appellant is hereby sentenced, for the nine
crimes with which he was charged and convicted, to twenty-four years and three days
of prision, which is threefold eight years and one day of prision mayor, and to pay a fine of
P150, with costs. In view, however, of the provisions of Act No. 4103, the minimum of said
penalty of twenty-four years and three days of prision is fixed at six years. So ordered.
Street, Malcolm, Hull, Butte, and Goddard, JJ., concur.
VICKERS, J., with whom concurs AVENCENA, C. J., concurring and dissenting in part:
I concur in the decision of the majority convicting the defendant of the crime of falsification of
public documents as to each of the cedulas in question, but I dissent from that part of the
decision which holds that he is not also guilty of malversation. This conclusion of the majority
rests upon the finding that the allegations in the information are not sufficient to charge
malversation. The principal, if not the sole, reason for this finding appears to be the fact that it is
not alleged in the information that the Government was prejudiced by the defendant's
misappropriation of the sums collected by him as municipal treasurer from the Moros for
cedulas. There is no question as to the sufficiency of the evidence, and no objection was made to
the form of the complaint. Any defect therein was cured by the evidence, which shows that the
defendant while acting as municipal treasurer collected from the Moros mentioned in the
information the money in question, but failed to account for it; that he altered and delivered to
the Moros certain cedulas belonging to other persons. The Moros were not prejudiced, because
the payments made by them were valid payments of their cedula taxes.
It is charged in the information:
"That on or about and during the period intervening from May 20, 1928, to May 29, 1930, in the
municipal district of Kolambugan, Province of Lanao, Philippine Islands, and within the
jurisdiction of this court, said accused, the then duly appointed treasurer of said municipal
district and as such was in charge and responsible, among other official duties, for the issuance
of cedula certificates in said municipal district of Kolambugan, voluntarily, unlawfully and
feloniously, and with grave abuse of his official position and with intent to gain and of
prejudicing and defrauding Moros Somampot, Donato Marcos and Tindigan Dipatuan, falsified
cedula certificates G-Nos. 3844057, 3222523, 3843641, 3843629, 3844005, 3221650, 3221649,
3221752 and 3221753, by erasing the names written thereon of persons to whom said cedula
certificates had originally been issued so as to reissue them, and in fact he reissued them, in order
to appropriate for himself, and in fact he voluntarily, unlawfully and feloniously appropriated!
for his own use and benefit, the proceeds of this reissuance of the cedula certificates in question,
amounting to P36, to the damage of said Moros Somampot, Tindigan Dipatuan, and Donato
Marcos in the sums of P4, P16 and P16, respectively. Contrary to law."
In my opinion the crime of malversation is sufficiently charged in the body of the information. It
is immaterial that in the information the offense was erroneously designated as estafa instead of
malversation, and the allegation that the offended party was the Moros is a mere conclusion of
law.
It has been repeatedly held by this court that in criminal procedure the character of the crime will
be determined from the facts alleged in the complaint and not by the qualification of the crime
made in the title to the complaint. (U. S. vs. Supila, 13 Phil., 671; U. S. vs. Treyes, 14 Phil., 270;
U. S. vs. Jeffrey, 15 Phil, 391; Davis vs. Director of Prisons, 17 Phil., 168.)
The designation of the crime by name in the caption of the information is a conclusion of law on
the part of the fiscal and is a usurpation of the powers of the court and, if binding, would be in
effect an adjudication by him of the crime of which the accused must be convicted if he were to
be convicted of any offense. The denial of the designation of the fiscal raises no issue. (U.
S. vs. Lim San, 17 Phil., 273; U. 8.vs.Vega, 31 Phil., 450.)
As a matter of fact the court is the only person or institution authorized by law to say what crime
has been committed. Such designation is a conclusion of law resulting from the facts proved
upon the trial. Until that time arrives it is of no consequence, either to the people or to the
accused, what the technical name of the crime charged may be. (U. S. vs. Lim San, 17 Phil.,
273.)
In determining the nature of the crime charged in a complaint the body and not the title of the
complaint must be examined. The designation of the crime as found in the title of the complaint
is not controlling. (U. S. vs. Cabe, 36 Phil., 728; U. S. vs. Ondaro, 39 Phil., 70.)
It was held in the case of the United States vs. Go Chanca (23 Phil, 641), that a complaint is
sufficient if the facts are alleged and set out in such a manner as to enable a person of common
understanding to know what is intended, and the court to pronounce judgment according to right;
that a complaint is sufficient if it describes the offense in the language of the statute, if the statute
contains all of the essential elements constituting the particular offense; that it is not necessary,
however, to follow the language of the statute in a complaint; that the complaint is sufficient if it
describes the crime defined by law.
It is not necessary for the protection of the substantial rights of the accused, nor for the effective
preparation of the defense, that he be informed of the technical name of the crime for which he
stands charged The crime of which the defendant stands accused is that described by the facts
stated in the information and not that designated by the. fiscal in the preamble thereof. An issue
in a criminal action is one of fact. It is raised by the allegation of facts in the information and the
denial of these facts by a plea of not guilty. (U. S. vs. Lim San, 17 Phil., 273.)
Sections 7 and 10 of General Orders, No, 58 read as follows :
"SEC. 7. Except when time is a material ingredient of an offense, the precise time of commission
need not be stated in a complaint or information, but the act may be alleged to have been
committed at, any time before the filing thereof. And when an offense shall have been descriEed
with sufficient certainty to identify the act, an erroneous allegation as to the person injured shall
be deemed immaterial."
"SEC. 10. No information or complaint is insufficient, nor can the trial, judgment, or other
proceedings be affected by reason of a defect in matter of form which does not tend to prejudice
a substantial right of the defendant upon the merits."
In the case of the United States vs. Kepner (1 Phil., 519, 526), this court said:
"The allegation of the complaint that the unlawful misappropriation of the proceeds of the
warrant was to the prejudice of Aun Tan may be disregarded by virtue of section 7 of General
Orders, No. 58, which declares that when an offense shall have been described in the complaint
with sufficient certainty to identify the act, an erroneous allegation as to the person injured shall
be deemed immaterial. In any event the defect, if defect it was, was one of form which did not
tend to prejudice any substantial right of the defendant on the merits, and can not, therefore,
under the provisions of section 10 of the same Order, affect the present proceeding."
It is a familiar rule that defects in the form of a complaint are waived unless objected to in the
trial court, and that such defects may be Cured by the evidence. (V. S. vs. Li-Pao, 2 Phil., 458; U.
S. vs. Del Castillo, 35 Phil., 413.)
In the case of Mortiga vs. Serra and Obleno (5 Phil., 34;, this court held that objections to the
complaint based upon an insufficient statement of the facts constituting the offense will not be
considered by this court when they were not presented to the court below. In affirming the
decision of this court the Supreme Court of the United States (Serra vs. Mortiga, 204 U. S., 470;
11 Phil., 762) held that while the complaint on a charge of adultery under the Penal Code of the
Philippine Islands may be fatally defective for lack of essential averments as to place and
knowledge on the part of the man that the woman was married, objections of that nature must be
taken at the trial, and if not taken, and the omitted averments are supplied by competent proof, it
is not error for the Supreme Court of the Philippine Islands to refuse to sustain such objection on
appeal.
ABAD SANTOS, J., with whom concur VILLA-REAL and IMPERIAL, J., dissenting:
Upon the evidence presented in this case, I am not convinced of the guilt of the appellant, and I
believe that he is entitled to an acquittal.
It appears that the appellant was a treasurer of the municipal district of Eolambugan, Province of
Lanao. Prior to his assignment to Kolambugan, he acted as treasurer for other districts. Before
the institution of this proceeding against him, appellant had served the Government as municipal
treasurer for ten years or more. His record during this period appeared to be without blemish.
The unpopularity of tax-gatherers, such as the appellant was, is proverbial. In Mindanao
particularly, municipal treasurers are among the most hated of public servants. Unaccustomed to
the modern ways of government, the Moros.naturally hate those who would compel them to pay
taxes. Under these circumstances, it is rendered an easy matter for any one who has certain
influence to fabricate charges against municipal treasurers based upon the testimony of three
ignorant Moros, such as the three principal witnesses for the prosecution in this case appear to
be. There is enough in the record to indicate that vindictiveness on the part of the chief of police
of Kolambugan lay behind the prosecution of the appellant. It is by no means improbable,
therefore, that the appellant is the victim of a frame-up.
In this situation, it seems the part of prudence and wisdom to scrutinize the evidence with the
utmost caution and to give the defendant the amplest opportunity to prove his innocence. The
important issue of fact involved in this case was whether the writings appearing on certain
documents were those of the appellant, or whether they were made by someone who tried to
imitate his hand-writing. Appellant asked for an opportunity to present a handwriting expert to
establish his contention that said writings were not his, but, on objection of the prosecution, the
court below only granted him twelve days within which to produce a hand-writing expert.
Considering that the trial took place in Lanao, and that hand-writing experts are scarce, the
shortness of the period granted by the trial court was, as the defense contended, tantamount to a
denial of its petition. Under the peculiar circumstances of this case, I consider the testimony of a
hand-writing expert essential to the just determination of the guilt or innocence of the appellant,
and the refusal of the trial court, based on the objection of the prosecution, to grant the appellant
sufficient time to engage the services of a hand-writing expert, was, in my opinion, a denial of
his right to a fair trial.
FIRST DIVISION

[G.R. No. 121099. February 17, 1999]

FIDEL T. SALAMERA, petitioner, vs. SANDIGANBAYAN, FIRST DIVISION, respondent.

DECISION
PARDO, J.:

The case is an appeal via certiorari taken by petitioner from a decision of the Sandiganbayan
and its resolution convicting him of malversation of public property defined and penalized in
Article 217 in relation to Article 222 of the Revised Penal Code, and appreciating the mitigating
circumstance of full restitution, imposing upon him the indeterminate sentence of two (2) years
four (4) months and one (1) day of prision correccional, as minimum, to six (6) years and one (1)
day of prision mayor, as maximum; the penalty of perpetual special disqualification, and a fine
of P5,000.00, the value of the .38 Cal. Smith & Wesson Revolver, with Serial No. 879886.
We reverse.
The facts may be related as follows:
On February 2, 1988, petitioner was elected to and assumed the position of mayor of the
municipality of Casiguran, province of Aurora.
Later that month, he received from Casiguran Barangay Captain[1] Antonio Benavidez one .38
Caliber Smith & Wesson Revolver, with Serial No. 879886. The gun was owned by and licensed
to Ponciano Benavidez, an uncle of Antonio, who mortgaged it to him. Petitioner placed the gun
in an attache case.
After about a week, petitioner together with his security men, went to Manila, and brought
with them the attache case with the gun in it. On their return to the province, their car was stopped
at a spot checkpoint in Quezon City,where Pat. Alfredo B. Villanueva of the Quezon City Police
saw the revolver. On petitioners instruction, his security men surrendered the gun to police officer
Villanueva.
Back in the municipality of Casiguran, Ponciano Benavidez, the licensed owner of the gun
claimed it from petitioner. The latter informed Ponciano that the gun was confiscated by the
Quezon City Police.
On September 30, 1988, Ponciano Benavidez filed with the office of the Provincial Prosecutor
of Aurora a complaint for theft against petitioner and Antonio Benavidez.
On December 13, 1988, Ponciano Benavidez filed with the Department of Local Government,
an administrative complaint against petitioner for abuse of authority, ignorance of the law and
conduct unbecoming of a public servant.
On January 20, 1989, the Provincial Prosecutor of Aurora dismissed the case for theft.
On April 6, 1989, complainant Ponciano Benavidez filed a complaint for theft against
petitioner with the Office of the Ombudsman in Manila.
On August 21, 1990, during the investigation of the administrative case by the Sangguniang
Panlalawigan of Aurora, complainant Ponciano Benavidez executed an affidavit of desistance
acknowledging that petitioner had paid the value of the gun, and withdrawing the administrative
case and the criminal case he filed against petitioner with the Ombudsman.
On August 22, 1990, the Sangguniang Panlalawigan approved a resolution dismissing the
administrative case against petitioner.
On March 9, 1992, the Ombudsman approved the filing by Special Prosecution Officer
Prospero G. Pelayo of an information against petitioner for malversation of public funds, which
was duly filed on March 12, 1992, with the Sandiganbayan, Manila.
On March 30, 1992, the Sandiganbayan issued a warrant of arrest. On March 30, 1992,
petitioner posted a cash bail of P20,000.00, which he deposited with the provincial treasurer of
Aurora, duly approved by Regional Trial Court Judge Filemon N. Tan of Baler, Aurora.[2]
Upon arraignment on June 1, 1992, before the Sandiganbayan, First Division, petitioner
entered a plea of not guilty, and accordingly, the court scheduled the case for pre-trial conference.
Meantime, on or about August 14, 1992, petitioner was able to contact Pat. Villanueva in
Camp Karingal, Quezon City. The latter said that he returned the gun to Patrolman Orgas, one of
petitioner's security men on the very next day after he had confiscated it. Unfortunately, Pat. Orgas
did not inform petitioner about the recovery of the gun, and, at the time Villanueva so informed
petitioner, Pat. Orgas had died.
At the pre-trial conference held on August 28, 1992, the prosecution and the accused
(petitioner herein) assisted by counsel de parte, entered into a stipulation of facts signed by them,
as follows:
1. At all times relevant to this case, the accused was the Mayor of the Municipality of
Casiguran, Aurora;
2. That in the exercise of his functions as Mayor, the accused had the occasion to
confiscate one .38 caliber Smith & Wesson revolver with Serial No. 879886 from
Barangay Captain Antonio Benavidez;
3. This weapon was actually owned by Ponciano Benavidez, the value of which the parties
have not agreed upon;
4. That the accused confiscated this weapon in the performance of his official functions
and was, therefore, in custody thereof in his capacity as such;
5. That demand was made from the accused by Ponciano Benavidez sometime in June of
1988 to produce the above-mentioned firearm but the accused failed to do so;
6. That at a subsequent time, the accused and Ponciano Benavidez went to the offices of
the Quezon City Police Department in search of this weapon;
7. That there has been restitution of the value of the firearm by the accused to the
complaining witness Ponciano Benavidez although there is disagreement as to the
amount of the restitution;
8. That the following affidavits were executed:

a. By complaining witness Ponciano Benavidez indicating his desistance from further


prosecution thereof for reasons stated therein;

b. By Alfredo Villanueva of the Quezon City Police


Department purporting to describe the circumstances under which he allegedly
confiscated the weapon in question from the accused Mayor.

Further to the above stipulations, the Government now marks the following exhibit which is
admitted by the accused:

Exhibit A - a xerox copy of the License to Carry Firearm No. 0188490, issued by Necesitas
Katigbak of the Firearm and Explosives Unit, to Ponciano Benavidez involving .38 caliber Smith
& Wesson revolver with SN 879886.

The accused for his part has marked the following exhibits:

Exhibit 1 - The Order of the Fiscal dated January 20, 1989, dismissing the charge of Theft, which
is Annex 1 to the Supplemental Affidavit;

Exhibit 2 - The administrative complaint filed by the complaining witness dated December 13,
1988, which is Annex 2 to the Supplemental Affidavit;

Exhibit 3 - The Complaint for the filing of the case before the Ombudsman on April 6, 1989,
which is Annex 3 to the Supplemental Affidavit;

Exhibit 4 - The investigation before the Sangguniang Panlalawigan dated August 21, 1990 at
Baler, Aurora, wherein the owner of the gun submitted his affidavit of desistance and admitting
therein that he was paid for the loss of the gun, which is Annex 4 to the Supplemental Affidavit;

Exhibit 5 - the Affidavit of Desistance executed by the owner of the gun dated August 21, 1990,
marked as Annex 5 to the Supplemental Affidavit, wherein the owner of the gun admitted that he
verified the loss of the gun to be true and also admitted that the equivalent amount in cash and in
kind for the .38 caliber revolver was paid to him, for which he promised to dismiss the criminal
case and the administrative case.

Exhibit 6 - the Minutes of the Sangguniang Panlalawigan of Aurora dated August 22, 1990,
which decided to dismiss the administrative case, which is marked as Annex 6 to the
Supplemental Affidavit;

Exhibit 7 - the Resolution of the Investigating Fiscal for the Ombudsman dated February 24,
1992, which is marked as Annex 7 to the Supplemental Affidavit;
Exhibit 8 - the Resolution of the Ombudsman, which is marked as Annex 8 to the Supplemental
Affidavit;

Exhibit 9 - a copy of the Order of Arrest issued by the Sandiganbayan, marked as Annex 9 to the
Supplemental Affidavit;

Exhibit 10 - the payment of the Bond for the provisional release of the accused, marked as
Annex 10 to the Supplemental Affidavit;

Exhibit 11 - the Joint Affidavit of the Chairman of the Sangguniang Panlalawigan and a certain
Angelito Salamera stating that they were present when payment was made for the gun to the
owner, which is marked as Annex "11 to the Supplemental Affidavit;

Exhibit 12 - the Affidavit executed by Alfonso Villanueva dated August 14, 1992, wherein he
admitted that he had confiscated the gun at a checkpoint in Quezon City, which is marked as
Annex 12 to the Supplemental Affidavit;

Exhibit 13 - the Affidavit executed by Antonio Benavidez dated July 30, 1989, which is marked
as Annex 13 to the Supplemental Affidavit.

On June 30, 1993, the prosecution formally presented as its evidence Exhibit "A"[3] and upon
the admission thereof, rested its case.
On the other hand, the defense presented two (2) witnesses including petitioner.
After the testimony of the witnesses on July 21, 1993, the court gave the defense counsel ten
(10) days to formally offer his evidence in writing. In time, the defense formally offered its
exhibits, and on September 6, 1993, the court admitted all exhibits except Exhibits 11 and 13,
which were rejected for being hearsay.
On February 17, 1995, more than a year after the case was submitted for decision, the
Sandiganbayan promulgated its decision, the decretal portion of which is narrated in the opening
paragraph of this opinion.
On March 3, 1995, petitioner filed a motion for reconsideration of the decision; however, on
July 5, 1995, the Sandiganbayan denied the motion.
Hence, this appeal.
On October 4, 1995, the Court required respondent to file its comment on the petition. On
January 4, 1996, the Office of the Special Prosecutor filed its comment on the petition for
review. On January 30, 1996, the Solicitor General also filed his comment.
We give due course to the petition.
To begin with, petitioner is charged with malversation under Article 217 in relation to Article
222 of the Revised Penal Code, providing as follows:

Article 217. Malversation of public funds or property--Presumption of malversation. - Any


public officer who, by reason of the duties of his office, is accountable for public funds or
property, shall appropriate the same, or shall take or misappropriate or shall consent, or through
abandonment or negligence, shall permit any other person to take such public funds or property,
wholly or partially, or shall otherwise be guilty of the misappropriation of malversation of such
funds or property, shall suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the amount
involved in the misappropriation or malversation does not exceed two hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is
more than 200 pesos but does not exceed 6,000 pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum
period, if the amount involved is more than 6,000 pesos but is less than 12,000 pesos.

4. The penalty of reclusion temporal in its medium and maximum periods, if the amount
involved is more than 12,000 pesos but is less than 22,000 pesos. If the amount exceeds the
latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total value
of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which
he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that
he has put such missing funds or property to personal uses. (As amended by Rep. Act No. 1060,
approved June 12, 1954).

Article 222. Officers included in the preceding provisions. The provisions of this chapter shall
apply to private individuals who, in any capacity whatever, have charge of any insular,
provincial or municipal funds, revenues, or property and to any administrator or depository of
funds or property attached, seized or deposited by public authority, even if such property belongs
to a private individual.

One essential element of the crime of malversation is that a public officer must take public
funds, money or property, and misappropriate it to his own private use or benefit. There must be
asportation of public funds or property, akin to the taking of another's property in theft. The funds,
money or property taken must be public funds or private funds impressed with public attributes or
character for which the public officer is accountable.
In this case, Antonio Benavidez voluntarily turned over the gun, a .38 caliber Smith & Wesson
revolver, to petitioner mayor of the town of Casiguran, Aurora. Antonio surrendered the gun to
the mayor. The gun was duly licensed.It was not seized or confiscated. Antonio obtained
possession of the gun from Ponciano Benavidez, an uncle of his, who was the owner and licensee
of the gun. Ponciano mortgaged it to Antonio.
The elements of malversation, essential for the conviction of an accused, under the above
penal provisions are that
(a) the offender is a public officer;

(b) he has the custody or control of funds or property by reason of the duties of his office;

(c) the funds or property involved are public funds or property for which he is accountable;
and

(d) he has appropriated, taken or misappropriated, or has consented to, or through abandonment
or negligence permitted, the taking by another person of, such funds or property.[4]

The question may be asked: Did Antonio's surrender of the gun to petitioner mayor invest the
gun with public character sufficient to consider the gun as public property for which the mayor is
accountable? We believe not. There was no reason to surrender or confiscate the gun. It was duly
licensed to Ponciano Benavidez. The license is not transferable. Antonio could not validly possess
the gun. He should have returned the gun to Ponciano, the licensed owner or surrendered it to the
local police or to the Constabulary Provincial Commander. By turning over the gun to petitioner
mayor, the gun did not become public property because it was not intended for public use or
purpose nor was it lawfully seized. The gun continued to be private property, that is why the gun
owner rightfully asked for its return to him, not to be turned over to the public coffer or
treasury. Petitioner's failure to return the gun after demand by the private owner did not constitute
a prima facie evidence of malversation. The property was private and the one who demanded its
return was a private person, not a person in authority. The presumption of conversion will not
apply.
A respected author in Criminal Law wrote Malversation can only be committed by a public
official who has charge of public funds or property by virtue of his official position. A public
official not responsible for public funds or property and without authority to safeguard the same
can not be convicted of malversation.[5]
What is more, the gun was confiscated by a police officer at a checkpoint in Quezon City. The
policeman should have turned over the confiscated gun to the Constabulary Firearm and Explosive
Unit, in Camp Crame, Quezon City.Instead, he returned the gun to a security aide of petitioner
mayor, as a favor to the mayor. The security aide died in the meantime, and, apparently, the gun
got lost. Assuming that the loss was due to petitioner's fault or negligence, he is not criminally
liable for malversation through negligence because there was no evidence of conversion of public
funds or property to the use or benefit of the accused. The legal presumption of malversation
created by a demand for restitution of public funds or property is not applicable because the gun
was private property and a public officer entitled to its possession did not make the demand for its
return.
The presumption takes the place of affirmative proofs showing the actual conversion. It
obviates the necessity of proving acts of conversion; a thing most extremely difficult to do. If in a
particular case a demand was made upon an accountable public official to produce the funds in his
custody and he failed to do so, the presumption thereby arising would render unnecessary further
proof of conversion. The disappearance of public funds in the hands of the accountable public
officer is prima facie evidence of its conversion.[6] Here, there is no presumption of conversion
nor evidence of actual conversion.
Nevertheless, petitioner made restitution of the value of the gun to the private owner, Ponciano
Benavidez. Obviously, petitioner did not malverse the gun by dolo or culpa to his private use or
benefit.
One more point. Admittedly, there was no evidence submitted to the court of the value of the
gun to enable the court to fix the penalty to be imposed on the accused. Assuming that petitioner
malversed the gun, in malversation, the penalty for the offense is dependent on the value of the
public funds, money or property malversed. In this case, the Sandiganbayan did not base the
penalty on the minimum value of the gun in the absence of evidence of its true worth.It took
judicial notice of its market value and estimated its "reasonable value" at P5,000.00. This is a
grievous error.
The Sandiganbayan could not take judicial notice of the value of the gun. It must be duly
proved in evidence as a fact. The court can not take judicial notice of a disputed fact. The court
may take judicial notice of matters of public knowledge, or which are capable of unquestionable
demonstration, or ought to be known to judges because of their judicial functions.[7] Otherwise,
the court must receive evidence of disputed facts with notice to the parties.[8] This is an innovation
introduced in the Revised Rules of Evidence the Supreme Court adopted on July 1, 1989, which
should not be unknown to the lower courts.[9] The new rule of evidence governs this case, since it
was decided in 1995, six years after its effectivity.
WHEREFORE, the Court hereby REVERSES the appealed decision and resolution of the
Sandiganbayan in its Criminal Case No. 17563, and ACQUITS the accused Fidel Salamera y
Torres, with costs de oficio.
The Court orders the Sandiganbayan to forthwith cancel the cash bail of the accused, and
immediately reimburse the amount to him.
SO ORDERED.
MARINO B. ICDANG v. SANDIGANBAYAN (Second Division) and PEOPLE OF THE
PHILIPPINES
G.R. No. 185960, 25 January 2012, FIRST DIVISION (Villarama, Jr., J.)

The fact that not a single document was produced and no witness was produced by the defense in a span of 4
years afforded them by the Sandiganbayan, it can be reasonably inferred that the petitioner did not have those evidence in the
first place.

A Special Audit Team was formed by the Commission on Audit (COA) Regional Office XII,
Cotabato City to conduct comprehensive audit on the 1996 funds for livelihood projects of the OSCC-
Region XII. In the report, they noted that Marino B. Icdang (Icdang), the Regional Director of the Office
for Southern Cultural Communities (OSCC) Region XII in Cotabato City, was granted cash advances
which remained unliquidated. The report also disclosed that out of the total P920,933.00 allocated for 1996
livelihood projects, the amount of P445,892.80 was disbursed leaving a balance of P475,040.20; however,
final trial balance as of December 31, 1996 showed that the office has exhausted the allocated funds for
the whole year; the utilization of the P475,040.20 could not be explained by the Accountant so that it may
be concluded that such was misappropriated.

A demand letter was sent by the COA for Icdang to immediately produce the missing funds.
Icdang failed to comply with the demand. Hence, the audit team recommended the initiation of
administrative and criminal charges against him.

The Sandiganbayan (SB) convicted him for violation of Art. 217 of the Revised Penal Code, as
amended, and acquitted him for violation of Section 3(e) of Republic Act No. 3019 (Anti-Graft and
Corrupt Practices Act). He filed a motion for reconsideration requesting that he be given another chance
to present his evidence, stating that his inability to attend the trial were due to financial constraints such
that even when some of the scheduled hearings were sometimes held in Davao City and Cebu City, he still
failed to attend the same. However, the SB denied the same.

ISSUE:

Whether or not the gross negligence of Icdang’s counsel deprived him of the opportunity to
present defense evidence.

HELD:

Petition DENIED.

At the scheduled initial presentation of defense evidence on August 11, 2003, only Icdang appeared
informing that when he passed by that morning to his counsel’s residence, the latter was ill and thus
requested for postponement. Without objection from the prosecution and on condition that Atty. Iral will
present a medical certificate within five days, the SB reset the hearing to October 16 and 17, 2003. The SB
also said that if by the next hearing Icdang is not yet represented by his counsel, said court shall appoint a
counsel de oficio in the person of Atty. Wilfredo C. Andres of the Public Attorney’s Office. However, on
October 16, 2003, the SB received a letter from Icdang requesting for postponement citing the untimely
death of his nephew and swelling of his feet due to arthritis. He assured the court of his attendance in the
next hearing it will set at a later date. Accordingly, the SB reset the hearings to February 12 and 13,
2004. On February 4, 2004, the SB again received a letter from Icdang requesting another postponement
for medical (arthritis) and financial (lack of funds for attorney’s/appearance fee) reasons. He assured the
court of his availability after the May 10, 2004 elections. This time, the SB did not grant the request and
declared the case submitted for decision on the basis of the evidence on record.

On March 30, 2004, Atty. Iral filed an Urgent Motion for Reconsideration of the February 12,
2004 order submitting the case for decision, citing circumstances beyond his control. In the interest of
justice, the SB reconsidered its earlier order submitting the case for decision and gave the Icdang a last
chance to present his evidence on August 17 to 18, 2004. On August 17, 2004, Atty. Iral appeared but
requested that presentation of evidence be postponed to the following day, which request was granted by
the SB. The next day, however, only Icdang appeared saying that his lawyer is indisposed. Over the
objection of the prosecution and in the supreme interest of justice, the SB cancelled the hearing and
rescheduled it to November 15 and 16, 2004. Atty. Iral was directed to submit a verified medical certificate
within 10 days under pain of contempt, and the SB likewise appointed a counsel de oficio in the person of
Atty. Roberto C. Omandam who was directed to be ready at the scheduled hearing in case Icdang’s counsel
is not ready, stressing that the court will no longer grant any postponement. Still, Icdang was directed to
secure the services of another counsel if Atty. Iral is not available. With the declaration by Malacañang that
November 15, 2004 is a special non-working holiday, the hearing was reset to November 16, 2004 as
previously scheduled.

On November 16, 2004, Atty. Iral appeared but manifested that he has no witness available. Over
the objection of the prosecution, hearing was reset to March 14 and 15, 2005. Atty. Iral agreed to submit
the case for decision on the basis of prosecution evidence in the event that he is unable to present any
witness on the aforesaid dates. On March 14, 2005, the SB again reset the hearing dates to May 26 and 27,
2005 for lack of material time. However, at the scheduled hearing on May 26, 2005, Icdang manifested to
the court that Atty. Iral was rushed to the hospital having suffered a stroke, thereupon the hearing was
rescheduled for September 21 and 22, 2005 with a directive for Atty. Iral to submit a verified medical
certificate. On September 22, 2005, Atty. Iral appeared but again manifested that he has no witness present
in court. On the commitment of Atty. Iral that if by the next hearing he still fails to present their evidence
the court shall consider them to have waived such right, the hearing was reset to February 8 and 9,
2006. However, on February 9, 2006, the defense counsel manifested that he has some other commitment
in another division of the SB and hence he is constrained to seek cancellation of the hearing. Without
objection from the prosecution and considering that the intended witness was Icdang himself, the SB reset
the hearing to April 17 and 18, 2006, which dates were later moved to August 7 and 8, 2006. On August
7, 2006, over the objection of the prosecution, the SB granted the motion for postponement by the defense
on the ground of lack of financial capacity. The hearing was for the last time reset to October 17 and 18,
2006, which date was later changed to October 11 and 12, 2006.

The foregoing shows that the defense was granted ample opportunity to present their evidence as
in fact several postponements were made on account of Atty. Iral’s health condition and Icdang’s lack of
financial resources to cover transportation costs. The SB exercised utmost leniency and compassion and
even appointed a counsel de oficio when Icdang cited lack of money to pay for attorney’s fee. In those
instances when either Icdang or his counsel was present in court, the following documentary evidence
listed during the pre-trial, allegedly in the possession of Icdang, and which he undertook to present at the
trial, were never produced in court at any time: (1) Liquidation Report by Icdang; (2) Certification of
Accountant Zamba Lajaratu of the National Commission on Indigenous People, Region XII, Cotabato
City; and (3) Different Certifications by project officers and barangay captains. If indeed these documents
existed, Icdang could have readily submitted them to the court considering the length of time he was given
to do so. The fact that not a single document was produced and no witness was produced by the defense
in a span of 4 years afforded them by the SB, it can be reasonably inferred that Icdang did not have those
evidence in the first place.
TELLO vs. PEOPLE

FACTS:

Tello was a Telegraph Operator and Telegraphic Transfer-in-Charge of the Bureau of


Telecommunications. The Commission on Audit conducted an audit and questioned petitioner
on the official receipts of the bank to confirm the remittance advices. Petitioner informed them
that they were sent to the regional office of the Bureau of Telecommunications. Saligumba, an
auditor, secured copies of the official receipts and compared them with the remittance advices
submitted by petitioner and found that the PNB’s official receipts did not correspond with
petitioner’s remittance advices and that the total shortage incurred by petitioner amounted to
P204,607.70.

Saligumba demand the immediate production and restitution of the missing


amounts. However, petitioner failed to submit his explanation and to produce or restitute the
missing funds. Petitioner also failed to show in his office.

Petitioner was charged before the Sandiganbayan with malversation of public funds but he
alleged that as an acting telecom operator, he was not an accountable officer. However, the
Sandiganbayan found petitioner guilty beyond reasonable doubt of malversation of public funds.

ISSUE:
Whether petitioner is guilty beyond reasonable doubt of the crime of malversation of public
funds

HELD:

The elements of malversation of public funds under Article 217 of the RPC are:

1. that the offender is a public officer;

2. that he had the custody or control of funds or property by reason of the


duties of his office;
3. that those funds or property were public funds or property for which he
was accountable; and

4. that he appropriated, took, misappropriated or consented or, through


abandonment or negligence, permitted another person to take them.

In this case, all the elements of the crime are present.

Petitioner is a public officer. He was appointed Telegraph Operator

As Telegraph Operator and Telegraphic Transfer-in-Charge, petitioner was in charge of the


collections which he was supposed to remit to the PNB. The funds are public funds for which
petitioner was accountable. It was also established that petitioner misappropriated the
money. He failed to remit his cash collections and falsified the entries in the cashbooks to make
it appear that he remitted the money to PNB. Petitioner failed to explain the discrepancies and
shortage in his accounts and he failed to restitute the missing amount upon demand. It was also
established that petitioner stopped reporting to work

The last paragraph of Article 217 of the RPC states: “The failure of a public officer to have
duly forthcoming any public funds or property with which he is chargeable, upon demand by any
duly authorized officer, shall be prima facie evidence that he has put such missing funds or
property to personal uses.”

In this case, petitioner failed to rebut the presumption of malversation. He did not present
testimonial evidence to defend himself. He practically admitted the shortage except that he
manifested, contrary to the evidence presented by the prosecution, that only the amount
of P6,152.90 was missing. He did not report to his office when the audit examination
started. We sustain the Sandiganbayan’s finding that petitioner’s guilt has been proven beyond
reasonable doubt.

Petition denied.
BERNARDO U. MESINA v. PEOPLE

BERSAMIN, J.:
Under review is the decision promulgated on July 24, 2003,[1] whereby the Court of Appeals
(CA) affirmed with modification the judgment rendered by the Regional Trial Court (RTC),
Branch 120, in Caloocan City convicting the petitioner of malversation as defined and penalized
under Article 217, paragraph 4 of the Revised Penal Code.[2]

Antecedents

On July 9, 1998, an information was filed in the RTC charging the petitioner with qualified theft.
Upon his motion, he was granted a reinvestigation. On September 17, 1998, after the
reinvestigation, an amended information was filed charging him instead with malversation of
public funds, the amended information alleging thusly:

That on or about the 6th day of July 1998, in Caloocan City, Metro Manila, and within the
jurisdiction of this Honorable Court, the said above-named accused, being then an employee of
[the] City Treasurer’s Office, Caloocan City, and acting as Cashier of said office, and as such
was accountable for the public funds collected and received by him (sic) reason of his position,
did then and there willfully, unlawfully and feloniously misappropriated, misapplied and
embezzled and convert to his own personal use and benefit said funds in the sum of P167,876.90,
to the damage and prejudice of the City Government of Caloocan in the aforementioned amount
of P167,876.90.

CONTRARY TO LAW.[3]
The CA adopted the RTC’s summary of the facts, as follows:

x x x that in the afternoon of July 6, 1998 between 1:00 and 2:00 o’clock, herein accused
Bernardo Mesina then Local Treasurer Officer I of the Local Government of Caloocan City went
to the so called Mini City Hall located at Camarin Road, District I, Caloocan City for purposes of
collection. While thereat, Ms. Rosalinda Baclit, Officer-In-Charge of collection at said office,
turned over/remitted to Mesina the weeks’ collection for the period covering the month of June
1998 representing, among others, the Market Fees’ collection, Miscellaneous fees, real property
taxes, Community Tax Receipts (cedula) and the ‘Patubig’ (local water system) collection all
amounting to P468,394.46 (Exhs. ‘K’ and ‘K-2’, ‘L’ – ‘L-2’, ‘M’, ‘M-2’, ‘N’ – ‘N-2’, ‘O’ – ‘O-
2’, ‘P’ – ‘P-2’, ‘Q’ – ‘Q-2’, ‘R’, ‘R-2’, ‘S’ – ‘S-2’, ‘T’ – ‘TO-2’, ‘U’ – ‘U-2’, ‘V’ – ‘V-2’, ‘W’,
‘W-2’, ‘X’ – ‘X-2’, and ‘Y’ – ‘Y-2’). After counting the cash money, the (sic) were bundled and
placed inside separate envelopes together with their respective liquidation statements numbering
about thirteen (13) pieces signed by both Ms. Irene Manalang, OIC of the Cash Receipt Division,
and herein accused Mesina acknowledging receipt and collection thereof (Exhs, ‘K-1’, ‘M-3’,
‘N-3’, ‘P-3’, ‘Q-3’, ‘R-3’, T-3’, ‘U-3’, ‘V-3’, ‘W-3’, ‘X-3’, and ‘Y-3’). Thereafter, Bernardo
Mesina together with his driver left the Mini City Hall and proceeded to City Hall Main.

Later that same afternoon, Ms. Baclit received several phone calls coming from the Main City
Hall. At around 3:00 o’clock, Mrs. Josie Sanilla, secretary of City Treasurer Carolo V. Santos,
called up the Mini City Hall confirming the collection of the ‘Patubig’ by Mr. Bernardo Mesina.
Thirty (30) minutes thereafter, Mrs. Elvira Coleto, Local Treasurer Operation Officer II of the
Main City Hall called up to inform Ms. Baclit that the supposed ‘Patubig’ collection amounting
to P167,870.90 (Exh. ‘K-2’) was not remitted. Also, Bernardo Mesina phoned Ms. Baclit telling
the latter that he did not receive the ‘Patubig’ collection. Alarmed by these telephone calls she
just received, Ms. Baclit then immediately consulted the documents/liquidation statements
supposedly signed by Mesina acknowledging receipt and collection thereof, however, all efforts
to locate and retrieved (sic) these records proved futile at that moment.

Meanwhile, City Treasurer Carolo V. Santos, after having been informed by Mrs. Irene
Manalang of the discrepancy in the collection, summoned both Ms. Baclit and Bernardo Mesina
to his office at the Main City Hall for an inquiry relative to the missing P167,870.90 ‘Patubig’
collection. And as the two (2), Baclit and Mesina, insisted on their respective versions during
said confrontation, City Treasurer Santos, in the presence of the Chief of the Cash Disbursement
Division, Administrative Officers and Local Treasurer’s Operation Officer II Mrs. Coleto, then
ordered Mesina’s vault sealed pending further investigation.

The following morning July 7, 1998, Caloocan City Mayor Reynaldo O. Malonzo called for an
immediate probe of the matter. Present during the investigation at the Mayor’s Office were Ms.
Baclit, accused Bernardo Mesina, City Auditor Chito Ramirez, City Treasurer Santos as well as
the representative from the different offices concerned. Again, when asked by Mayor Malonzo as
to whether or not [t]he ‘Patubig’ collection was collected and/or remitted, Mesina stood fast in
his denial of having received the same; Ms. Baclit on the other hand positively asserted the
remittance and collection thereof by Bernardo Mesina.

Thereafter, they all proceeded to the cashier’s room where Mesina had his safe and thereat, in the
presence of COA State Auditor III Panchito Fadera, Cashier IV-CTO Fe. F. Sanchez,
Administrative Officer IV Lourdes Jose, LTOO II Elvira M. Coleto, accused Bernardo Mesina
and LTOO II Rosalinda Baclit, Mesina’s vault was opened and a cash count and/or physical
count of the contents thereof was conducted. Found inside were the following, to wit: 1) coins
amounting to P107.15; 2) coins amounting to P50.47; 3) coins amounting to P127.00; 4) coins
amounting to P64.10; 5) cash with tape amounting to P770.00; 6) spoiled bills amounting to
P440.00; 7) bundled bills amounting to P20,500.00. Also found inside were the Report of
Collection by the Liquidating Officer (RCLO) in the amount of P123,885.55 as well as the
original and duplicate copies of the daily sum of collections of accountable form under the name
of one Racquel Ona dated March 31, 1998 amounting to P123,885.55 (six (6) copies of
vales/chits) Exhs. ‘Z’, ‘Z-1’ and ‘Z-2’). In addition thereto, the cash amount of P67,900.00 then
withheld by the City Cashier pending this investigation, was turned over to the said auditing
team, thus, the total cash money audited against accused Mesina amounted to P89,965.72 (sic)
(Exhs. ‘BB’ and ‘BB-1’).

In the afternoon of July 7, 1998, at about 5:00 o’clock, Mses. Rosalinda Baclit and Maria Luisa
Canas all went to the SID Caloocan City Police Station to have their separate sworn statements
taken (Exhs. ‘E’, ‘E-1’, ‘D’, ‘D-1’, ‘F’, and ‘F-1’). Mmes. Lorna Palomo-Cabal, Divina
Dimacali-Sarile and Victoria Salita Vda. De Puyat likewise executed a joint sworn affidavit
(Exhs. ‘G’, ‘G-1’, ‘G-2’, and ‘G-3’) in preparation for the filing of appropriate criminal charge
against Bernardo Mesina.

The following day, July 8, 1998, Mamerto M. Manahan, Panchito Fadera and Carolo V. Santos
also executed their respective affidavits in relation to the incidents at bar (Exhs. ‘A’, ‘A-1’, ‘A-
2’; Exhs. ‘B’, and ‘B-1’; Exhs. ‘C’, and ‘C-1’). Meanwhile, the statement of collection
supposedly signed by accused Mesina was finally recovered at Rosalinda Baclit’s desk hidden
under a pile of other documents. (Rollo, pp. 74-75)[4]
The Defense presented the oral testimony of the petitioner and documentary evidence.[5] He
admitted collecting the total amount of P468,394.46 from Baclit, including the
subject patubig collection totaling to P167,976.90, but adamantly denied misappropriating,
misapplying, and embezzling the patubig collection, maintaining that the patubig collection was
found complete in his vault during the inspection. He explained that he deliberately kept the
collection in his vault upon learning that his wife had suffered a heart attack and had been rushed
to the hospital for immediate medical treatment. He believed that he did not yet need to remit the
amount to the OIC of the Cash Receipt Division because it was still to be re-counted. He claimed
that when he returned to the Main City Hall that same day his vault was already sealed.[6] He said
that the accusation was politically motivated. In support of his claim of innocence, he cited his
numerous awards and citations for honesty and dedicated public service.[7]

On November 8, 2001, the RTC found the petitioner guilty beyond reasonable doubt of the crime
of malversation, disposing:

WHEREFORE, premises considered, this Court finds the accused BERNARDO MESINA Y
UMALI guilty beyond reasonable doubt of the crime of Malversation as defined and penalized
under Article 217 paragraph 4 of the Revised Penal Code and hereby sentences him to suffer an
indeterminate penalty of twelve (12) years and one (1) day of prision mayor as minimum to
twenty (20) years of reclusion temporal as maximum.

The Court further imposes a penalty of perpetual disqualification to hold public office and a fine
of P167,876.90 upon the accused.

SO ORDERED.[8]
On July 24, 2003, the CA affirmed the RTC’s decision, with modification as to the amount of
fine imposed,[9] decreeing:

WHEREFORE, foregoing premises considered, the Decision dated November 8, 2001 of the
Regional Trial Court, Branch 120, Caloocan City in Criminal Case No. C-54217 is affirmed
with modification in the sense that the fine is reduced from P167,876.98 to P37,876.98. Costs
against accused-appellant.

SO ORDERED.
Issues

In his appeal, the petitioner submits for consideration the following:

I. WHETHER THE COURT OF APPEALS ERRED IN AFFIRMING WITH


MODIFICATION THE CONVICTION OF PETITIONER ACCUSED-APPELLANT
OF THE CRIME OF MALVERSATION NOTWITHSTANDING THAT:

a.
b. it had admitted in evidence the testimony of prosecution witness ELVIRA COLITO
that she saw, when accused-appellant’s vault was opened, to have seen (sic) the
bundles of the missing Patubig collections of more than Ps130,000.00 (sic), and
thus, in effect, there was no misappropriation, as one of the elements of the crime
of malversation;

c. that it erred and completely misapprehended and failed to appreciate the true
meaning of the testimony of the said witness of seeing inside the vault more than
Ps130,000.00 in bundles by treating/and/or (sic) appreciating the same as exactly
Ps130,000.00 flat without appreciating the words more than, thus guilty of
erroneous inference surmises and conjectures;

d. that it overlooked and completely disregarded that inside the vault was the sum of
Ps20,500.00 in bundles also [Exh. “BB and B-1”] regarding contents of the vault
or the total sum of Ps22,065.72 testified to by Panchito Madera (sic), Head of the
Audit Team;

e. the Court of Appeals gravely erred to surmise and at least look on the lack from
the lists of inventories of the vault the more than Ps130,000.00 in bundles and
why it was not listed among the moneys found inside the accused-appellant’s
vault;

f. doubts and inconsistencies existing threrefrom shall remained (sic) favorable to


the accused-appellant pursuant to applicable jurisprudence;

II. THAT THE COURT OF APPEALS ERRED ON A (SIC) QUESTIONS OF LAW,


THAT THE INVESTIGATION CONDUCTED BY THE GROUP OF MAYOR
MALONZO, THE TREASURER, THE ADMINISTRATOR, THE CITY AUDITOR,
CHIEF OF DIVISIONS AND THE AUDIT PROCEEDINGS ARE NULL AND VOID
DUE:

A.
B. Accused-appellant was not informed of his constitutional right to assistance of
counsel as mandated by the Constitution;

C. The audit proceedings did not comply strictly with the Manual of Instructions to
Treasurers and Auditors and other Guidelines, thus null and void;

D. Thus, the presumption of juris tantum in Art. 127 of the Revised Penal Code is
overcome firmly supported by the discovery of the missing money and further the
conclusions of the Court of Appeals was against established jurisprudence
enunciated in the case of TINGA vs. PEOPLE OF THE PHILIPPINES, No. L-
57650, [160 SCRA 483];

III. WHETHER THE COURT OF APPEALS WAS FATALLY WRONG IN NOT


APPLYING EVIDENCE OF GOOD MORAL CHARACTER TO ACQUIT AND
EXONERATE PETITIONER ACCUSED-APPELLANT IN VIOLATION OF RULE
130, SEC. 46, OF THE RULES OF COURT.

.
A. Notwithstanding, not only are the evidence weak, but its findings or discovery
of more than Ps130,000.00 inside the vault is subject to double interpretations,
and/or double alternative or probabilities, thus the presumption of innocence will
be adopted.[10]

Ruling of the Court

The appeal has no merit.

The crime of malversation of public funds charged herein is defined and penalized under Article
217 of the Revised Penal Code, as amended, as follows:

Article 217. Malversation of public funds or property. – Presumption of malversation. – Any


public officer who, by reason of the duties of his office, is accountable for public funds or
property, shall appropriate the same, or shall take or misappropriate or shall consent, or through
abandonment or negligence, shall permit any other person to take such public funds or property,
wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such
funds or property shall suffer:

xxxx

4. The penalty of reclusion temporal in its medium and maximum periods, if the amount
involved is more than twelve thousand pesos but is less than twenty-two thousand pesos. If the
amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period
to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total value
of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which
he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that
he has put such missing funds or property to personal use. (As amended by R.A. No. 1060)
The crime of malversation of public funds has the following elements, to wit: (a) that the
offender is a public officer; (b) that he had the custody or control of funds or property by reason
of the duties of his office; (c) that the funds or property were public funds or property for which
he was accountable; and (d) that he appropriated, took, misappropriated or consented or, through
abandonment or negligence, permitted another person to take them.[11]

The elements of the crime charged were duly established against the petitioner.

The Prosecution proved, firstly, that the petitioner was a public officer with the position of Local
Treasurer Officer I of Caloocan City; secondly, that by reason of his position, he was tasked to
collect fees and taxes regularly levied by the Mini City Hall, including market fees,
miscellaneous fees, real property taxes, and the subject patubig collection; and, thirdly, that all of
the fees and taxes collected were unquestionably public funds for which he was accountable.

As to the fourth element of misappropriation, the petitioner did not rebut the presumption that he
had misappropriated the patubigcollection to his personal use. He had earlier feigned ignorance
of having received the patubig collection when he phoned Ms. Baclit to tell her that he did not
receive the collection. He still insisted that he had not received the sum from Ms. Baclit when the
City Treasurer summoned them both. His denial continued until the next day when City Mayor
Malonzo himself asked them both about the matter. Only after the petitioner’s vault was finally
opened did he declare that the collection was intact inside his vault. Even then, the actual amount
found therein was short by P37,876.98. Conformably with Article 217 of the Revised Penal
Code, supra, the failure of the petitioner to have the patubig collection duly forthcoming upon
demand by the duly authorized officer was prima facie evidence that he had put such missing
fund to personal use. Although the showing was merely prima facie, and, therefore, rebuttable,
he did not rebut it, considering that he not only did not account for the collection upon demand
but even steadfastly denied having received it up to the time of the inspection of the sealed vault.
Under the circumstances, he was guilty of the misappropriation of the collection.

Malversation is committed either intentionally or by negligence. The dolo or the culpa is only a
modality in the perpetration of the felony. Even if the mode charged differs from the mode
proved, the same offense of malversation is still committed; hence, a conviction is proper.[12] All
that is necessary for a conviction is sufficient proof that the accused accountable officer had
received public funds or property, and did not have them in his possession when demand therefor
was made without any satisfactory explanation of his failure to have them upon demand. For this
purpose, direct evidence of the personal misappropriation by the accused is unnecessary as long
as he cannot satisfactorily explain the inability to produce or any shortage in his
accounts.[13] Accordingly, with the evidence adduced by the State being entirely incompatible
with the petitioner’s claim of innocence, we uphold the CA’s affirmance of the conviction, for,
indeed, the proof of his guilt was beyond reasonable doubt.

The petitioner bewails the deprivation of his constitutionally guaranteed rights during the
investigation. He posits that a custodial investigation was what really transpired, and insists that
the failure to inform him of his Miranda rights rendered the whole investigation null and void.

We disagree with the petitioner’s position.

According to People v. Marra,[14] custodial investigation involves any questioning initiated by


law enforcement authorities after a person is taken into custody or otherwise deprived of his
freedom of action in any significant manner. The safeguards during custodial investigation begin
to operate as soon as the investigation ceases to be a general inquiry into a still unsolved crime,
and the interrogation is then focused on a particular suspect who has been taken into custody and
to whom the police would then direct interrogatory questions that tend to elicit incriminating
statements. The situation contemplated is more precisely described as one where –

After a person is arrested and his custodial investigation begins a confrontation arises which at
best may be termed unequal. The detainee is brought to an army camp or police headquarters and
there questioned and cross-examined not only by one but as many investigators as may be
necessary to break down his morale. He finds himself in a strange and unfamiliar surrounding,
and every person he meets he considers hostile to him. The investigators are well-trained and
seasoned in their work. They employ all the methods and means that experience and study has
taught them to extract the truth, or what may pass for it, out of the detainee. Most
detainees are unlettered and are not aware of their constitutional rights.

And even if they were, the intimidating and coercive presence of the officers of the law in such
an atmosphere overwhelms them into silence x x x.[15]
Contrary to the petitioner’s claim, the fact that he was one of those being investigated did not by
itself define the nature of the investigation as custodial. For him, the investigation was still a
general inquiry to ascertain the whereabouts of the missing patubigcollection. By its nature, the
inquiry had to involve persons who had direct supervision over the issue, including the City
Treasurer, the City Auditor, the representative from different concerned offices, and even the
City Mayor. What was conducted was not an investigation that already focused on the petitioner
as the culprit but an administrative inquiry into the missing city funds. Besides, he was not as of
then in the custody of the police or other law enforcement office.

Even as we affirm the CA, we have to clarify the penalty imposed in terms of the Indeterminate
Sentence Law.

Section 1 of the Indeterminate Sentence Law states that an indeterminate sentence is imposed on
the offender consisting of a maximum term and a minimum term.[16] The maximum term is the
penalty properly imposed under the Revised Penal Code after considering any attending
circumstance; while the minimum term is within the range of the penalty next lower than that
prescribed by the Revised Penal Code for the offense committed.

Conformably with the instructions on the proper application of the Indeterminate Sentence
Law in malversation reiterated in Zafra v. People:[17] (a) the penalties provided under Article 217
of the Revised Penal Code constitute degrees; and (b) considering that the penalties provided
under Article 217 of the Revised Penal Code are not composed of three periods, the time
included in the prescribed penalty should be divided into three equal portions, each portion
forming a period, pursuant to Article 65 of the Revised Penal Code.[18]With the amount of
P37,876.98 ultimately found and declared by the CA to have been misappropriated exceeding the
P22,000.00 threshold, the imposable penalty is reclusion temporal in its maximum period
to reclusion perpetua (that is, 17 years, four months and one day to reclusion perpetua), the
minimum period of which is 17 years, four months and one to 18 years and eight months, the
medium period of which is 18 years, eight months and one day to 20 years, and the maximum
period is reclusion perpetua.

Accordingly, the maximum of the indeterminate sentence of the petitioner is the medium period
in view of the absence of any aggravating or mitigating circumstances, while the minimum of the
indeterminate sentence shall be taken from the penalty next lower, which is reclusion
temporal in its minimum and medium periods (i.e., from 12 years and one day to 17 years and
four months). Hence, the indeterminate sentence for the petitioner is modified to 12 years and
one day of reclusion temporal, as minimum, to 18 years, eight months and one day of reclusion
temporal, as maximum.

In addition, the Court notes that both lower courts did not require the petitioner to pay the
amount of P37,876.98 subject of the malversation. That omission was plain error that we should
now likewise correct as a matter of course, for there is no denying that pursuant to Article 100 of
the Revised Penal Code, every person criminally liable for a felony is also civilly liable. The
omission, if unchecked and unrevised, would permanently deprive the City of Caloocan of the
misappropriated amount. Such prejudice to the public coffers should be avoided.

The Court has justifiably bewailed the omissions by the lower courts in this respect, and has seen
fit to point out in Zafra v. People:

One more omission by the CA and the RTC concerned a matter of law. This refers to their failure
to decree in favor of the Government the return of the amounts criminally misappropriated by the
accused. That he was already sentenced to pay the fine in each count was an element of the
penalties imposed under the Revised Penal Code, and was not the same thing as finding him
civilly liable for restitution, which the RTC and the CA should have included in the judgment.
Indeed, as the Court emphasized in Bacolod v. People, it was “imperative that the courts
prescribe the proper penalties when convicting the accused, and determine the civil liability to be
imposed on the accused, unless there has been a reservation of the action to recover civil liability
or a waiver of its recovery,” explaining the reason for doing so in the following manner:

It is not amiss to stress that both the RTC and the CA disregarded their express mandate under
Section 2, Rule 120 of the Rules of Court to have the judgment, if it was of conviction, state: “(1)
the legal qualification of the offense constituted by the acts committed by the accused and the
aggravating or mitigating circumstances which attended its commission; (2) the participation of
the accused in the offense, whether as principal, accomplice, or accessory after the fact; (3) the
penalty imposed upon the accused; and (4) the civil liability or damages caused by his
wrongful act or omission to be recovered from the accused by the offended party, if there is
any, unless the enforcement of the civil liability by a separate civil action has been reserved
or waived.” Their disregard compels us to act as we now do lest the Court be unreasonably seen
as tolerant of their omission. That the Spouses Cogtas did not themselves seek the correction of
the omission by an appeal is no hindrance to this action because the Court, as the final reviewing
tribunal, has not only the authority but also the duty to correct at any time a matter of law and
justice.

We also pointedly remind all trial and appellate courts to avoid omitting reliefs that the parties
are properly entitled to by law or in equity under the established facts. Their judgments will not
be worthy of the name unless they thereby fully determine the rights and obligations of the
litigants. It cannot be otherwise, for only by a full determination of such rights and obligations
would they be true to the judicial office of administering justice and equity for all. Courts should
then be alert and cautious in their rendition of judgments of conviction in criminal cases. They
should prescribe the legal penalties, which is what the Constitution and the law require and
expect them to do. Their prescription of the wrong penalties will be invalid and ineffectual for
being done without jurisdiction or in manifest grave abuse of discretion amounting to lack of
jurisdiction. They should also determine and set the civil liability ex delicto of the accused, in
order to do justice to the complaining victims who are always entitled to them. The Rules of
Court mandates them to do so unless the enforcement of the civil liability by separate actions has
been reserved or waived.[19]
Under the law, the civil liability of the petitioner may involve restitution, reparation of the
damage caused, and indemnification for consequential damages.[20] Given that his obligation
requires the payment of the amount misappropriated to the City of Caloocan, the indemnification
for damages is through legal interest of 6% per annum on the amount malversed, reckoned from
the finality of this decision until full payment.[21]

WHEREFORE, the Court AFFIRMS the decision promulgated on July 24, 2003 finding
petitioner BERNARDO U. MESINA guilty beyond reasonable doubt of malversation of public
funds subject to the MODIFICATIONS that: (a) he shall suffer the indeterminate penalty of 12
years and one day of reclusion temporal, as minimum, to 18 years, eight months and one day
of reclusion temporal, as maximum, and pay a fine of P37,876.98; and (b) he shall further pay to
the City of Caloocan the amount of P37,876.98, plus interest thereon at the rate of 6% per
annum, reckoned from the finality of this decision until the amount is fully paid.

The petitioner shall pay the costs of suit.

SO ORDERED.

Republic of the Philippines


SUPREME COURT
Baguio

EN BANC
G.R. No. 95604 April 29, 1994

LUCIANO KIMPO y NIÑANUEVO, petitioner,


vs.
THE SANDIGANBAYAN AND PEOPLE OF THE PHILIPPINES, respondents.

Augusto S. Sanchez & Associates Law Firm for petitioner.

The Solicitor General for the People of the Philippines.

VITUG, J.:

Petitioner Luciano Kimpo y Niñanuevo, a Special Collecting Officer of the Bureau of Domestic
Trade at General Santos City, was found guilty beyond reasonable doubt by the Sandiganbayan
of malversation of public funds. He appealed to this Court.

The case was initiated by Special Prosecution Officer Mothalib C. Onos who, on 29 March 1989,
filed with the Sandiganbayan an information charging petitioner with having committed the
following offense:

That on or about April 30, 1985 and/or sometime prior thereto, in General Santos
city, and within the jurisdiction of this Honorable Court, accused Luciano Kimpo,
a public officer, being the Special Collecting Officer, Bureau of Domestic Trade,
General Santos City, and as such is an accountable officer responsible for the
funds collected by him by reason of the duties of his office, did then and there
wilfully, unlawfully and feloniously, with grave abuse of confidence, appropriate,
embezzle and convert to his personal use and benefit the sum of Fifteen Thousand
Three Hundred Nine Pesos (P15,309.00), which amount constitutes his collection,
to the damage and prejudice of the Government in the aforesaid amount.

Contrary to law.

When arraigned, petitioner, assisted by counsel, 1 pleaded, "not guilty."

At the pre-trial inquest conducted by the Sandiganbayan, the following exhibits were admitted:

1. Exhibits A and A-1, as well as the fact that they are faithful reproductions of
the originals. In connection therewith, the accused admitted that he was on or
before April 30, 1985, Special Collecting Officer, Bureau of Trade, General
Santos City;
2. That an audit-examination of the cash and accounts of the accused was
conducted on April 30, 1985; that the corresponding Report of Examination
(Exhibit B), Statement of Accountability for Accountable Forms without Money
Value (Exhibit B-1), and Reconciliation Statement of Accountability (Exhibit B-
3) were made and signed, and that the signatures appearing on the dorsal side of
Exhibits B and B-1 are those of the accused, all these admissions being subject to
the qualification that the accused is questioning the validity of the audit
examination and the accuracy of the results thereof on constitutional grounds;

3. The existence of Exhibits C, E, F, M and M-1, including the fact that they are
faithful copies of the originals, subject to the same qualification made with
respect to Exhibits B, B-1 and B-2;

4. The existence of Exhibits D and D-1, including the fact that they are correct
copies of the originals, but not their relevance;

5. Exhibit H as the Official Cash Book of the accused and his signatures
appearing between the entries therein beginning August 1, 1984 and up to April
31, 1985, with the qualification that the said entries were not made by him;

6. The existence of Exhibits I, I-1 to I- 40, J, J-1 to J-95, K,


K-1 to K-26, and L, L-1 to L-44 (carbon copies of official receipts) and his
signatures thereon, subject to the qualification that the entries therein were not
made by him;

7. Exhibit N, subject to the qualification that the data mentioned therein were
based on the results of the audit examination, the validity and accuracy of which
are questioned;

8. Exhibits A1-1, N2-2, T2-1, L3 -1, F4 -2, A5, L7, N7-1, U7-2, B8-1, C8, D8, E8, G8,
G8, H8, M8-2, Y8-2 AND Y8-2 AND Y8-3 (xerox copies of official receipts),
including the fact that they are faithful reproductions of the originals;

9. Exhibits J8 to O8, as well as the signatures appearing on the last page of each
exhibit and the fact that they are true copies of the originals.

The testimonial evidence consisted of the testimonies of Lydia Mendoza, State Audit Examiner
of the Commission on Audit, for the prosecution, and of Milda de la Peña, Trade and Industry
Analyst of the Department of Trade and Industry at its South Cotabato Provincial Office, as well
as that of petitioner Kimpo himself, for the defense.

From all the evidence adduced, the Sandiganbayan concluded, thus:

Accused herein having admitted his public position as alleged in the information
and the existence of a shortage of P15,309.00 upon audit examination of his
accountabilities, then what remains to be resolved only is whether any criminal
liability is attributable to him by reason of such shortage. As can be deduced from
the defense evidence, testimonial and documentary, accused lays the blame for
the shortage on one Yvette Samaranos, whom he admitted to have been retained
by him as his unofficial clerk/collector in his office and who attended to the
receipt of payments for the registration of business names and issuance of
certifications and official receipts for such payments, including penalties, and fees
for repair shop establishments. While the certifications and official receipts were
pre-signed by him, the collections thereunder were made by Samaranos, who also
entered the amounts collected by her in accused's cashbook.

The amounts collected between the period from July 17, 1984 to April 30, 1985
totalled P100,486.50, from which should be deducted total remittances of
P85,177.50, leaving a balance of P16,221.50. An Inventory of Cash and/or
allowed Cash Items produced P912.50, leaving a shortage of P15,309.00 which
was determined by Auditor Lydia R. Mendoza as the difference between the
amounts appearing in the originals of the Official Receipts/Letter of Confirmation
and the duplicate Official Receipts. In other words, what were collected and
reflected in the duplicate ORs were not the correct amounts appearing in the
original ORs issued to the payees and which were verified and confirmed later by
the payees.

Auditor Mendoza supported her findings of a shortage and the reasons for such
shortage thru a formal "Comparison of Duplicate Official Receipts of P2.00 per
Report of Collections with the Confirmation Letter and/or Original Official
Receipts" for the period from July 17, 1984 to April 30, 1985. Therein, it clearly
appeared that while the amounts to be officially collected should be P110.00 or
P112.00, the amounts reported to have been collected and which were reflected in
the duplicate ORs were only P2.00. The unreported and unrecorded collections of
P108.00 or P110.00 from individual payees were reflected in the original ORs
which were confirmed by said payees through confirmation letters and which
totalled P15,309.00.

After the cash count made by Auditor Mendoza as a prelude to her Report of
Examination and subsequent verification/confirmation, she sent a letter of demand
to the accused on October 14, 1985, which the accused received on the same date.
Therein, he was required to produce immediately the balance of P3,418.50, due to
the fact that he had made deposits amounting to P11,890.50, "after cash count and
confirmed by us (Please see Scheduled 2)." On October 17, 1985, accused
submitted his letter-explanation to Auditor Mendoza wherein he laid the blame
for the shortage on his office clerk whom he had already relieved and alleged that
he had not benefited, directly or indirectly, from the missing funds. On October
18, 1985 and November 7, 1985, accused "restituted and deposited with the
Bureau of Treasury thru PNB, GSC" the amounts of P2,933.50 and P485.00,
respectively, which, if added to his previous deposits from June 2, 1985 to August
23, 1985 amounting to P11,890.50, would total P15,309.50.
There being no dispute, therefore, as to the existence of the shortage in the
accounts of the accused, as found by Auditor Mendoza as of April 30, 1985,
amounting to P15,309.00 and the fact of accused's settlement for such shortage
through installments deposited with the PNB, General Santos City between June
2, 1985 to November 7, 1985, then it behooves the Court to determine if accused
herein had rendered himself liable or not under Article 217 of the Revised Penal
Code by reason of such shortage. Such determination must perforce go into the
merits of his claim that the responsibility for such shortage should be laid on the
doorstep of Yvette Samaranos, a private individual, whom he inherited from his
predecessor who had allowed her to work in the office as clerk-collector and
whom he retained for the following reasons: (1) the Office of the Bureau of
Domestic Trade at General Santos City, of which he was the Provincial Trade
Development Officer, was a one-man operation, hence, understaffed; (2) he had to
go out to the field to campaign for increased registration of business names, hold
symposiums of consumers' groups, conduct meetings for retailers and consumers
and repair shop establishments; (3) he occasionally goes out to attend raffles
conducted by private establishments as representative of the Bureau of Domestic
Trade; and (4) he had to leave someone in the office to attend to the general
public in the registration and/or renewal of business names and the issuance of
certifications and official receipts for the collection of the proper fees. For the
reason that he was out in the field for days at times, he pre-signed official receipts
in blank, as well as certifications, which he entrusted to Samaranos who then fills
up the said receipts and certifications and makes the corresponding entries in his
cashbook. As it turned out, however, Samaranos collected the proper official fees,
issued the original receipts with the proper amounts, filled up the duplicates
thereof with reduced amounts, made the corresponding entries in the cashbook
based on the amounts reflected in the duplicates and made the proper remittances
based on the improper entries.

Accused's defense cannot be accepted, nor can it absolve him from criminal
liability for the missing public funds which the audit examination on his
accountabilities as of April 30, 1985 had revealed. As Special Disbursing Officer,
he was the primary accountable officer for such funds and the fact, which was not
definitely or conclusively established by his evidence, that another person, albeit a
private individual, was responsible for the misappropriation thereof, cannot be
considered in exculpation or justification of such primary accountability.

xxx xxx xxx

Consequently, accused herein cannot blame anyone else for the predicament that
he found himself in. First of all, he should not have allowed Yvette Samaranos,
who did not possess any appointment, to perform official acts which he was
ordained to do. Secondly, since the collection of official fees was a sensitive area,
he should have refrained from pre-signing official receipts and certifications.
Thirdly, if he were that desirous of rendering conscientious public service, he
should have ensured that the collection of official fees was properly made,
recorded and remitted. Fourthly, his admission that he had to pay the salaries of
Samaranos through honoraria received by him from raffles is fatal to his cause
since he should have realized that, under such circumstance, Samaranos would be
subject to the most severe temptation to fool around with the agency's collections.
Apparently, accused was more interested in conducting field trips and raffles
whereby he would be able to collect per diems, travelling allowances and
honoraria from private firms. To allow public accountable officers to adopt the
practice resorted to by the accused in allowing private individuals to perform
public functions would lead to chaos and anarchy and would render nugatory all
applicable norms of public trust and accountability. His bare and unsupported
claim that, after discovery of the shortage upon audit examination, he took steps
to charge Yvette Samaranos for Estafa Thru Falsification of Public Documents
does not, in any way, erase his criminal liability which could be characterized as
malversation of Public Funds through negligence. In his case, such negligence
may be described as gross and inexcusable, amounting to a definite laxity
resulting in the deliberate non-performance of his duties.

On the basis of the above findings, judgment was rendered by the Sandiganbayan convicting
petitioner Kimpo and sentencing him, accordingly:

WHEREFORE, judgment is hereby rendered finding accused Luciano Kimpo y


Niñanuevo GUILTY beyond reasonable doubt of the offense of Malversation of
Public Funds, as defined and penalized under Article 217, paragraph 4 of the
Revised Penal Code, and favorably appreciating the mitigating circumstances of
voluntary surrender and full restitution, after applying the Indeterminate Sentence
Law, hereby sentences him to suffer an indeterminate penalty ranging from
SEVEN (7) YEARS, FOUR (4) MONTHS and ONE (1) DAY of prision
mayor as the minimum, to ELEVEN (11) YEARS, SIX (6) MONTHS and
TWENTY-ONE (21) DAYS, likewise of prision mayor as the maximum; to
further suffer perpetual special disqualification; to pay a fine of P15,309.00 equal
to the amount malversed and to pay the costs of this action. No civil liability is
awarded in view of the full restitution of the amount involved.

SO ORDERED.

In this appeal, petitioner submitted the following assignment of errors: That —

THE RESPONDENT COURT ERRED IN LAW WHEN IT CONSIDERED


EXHIBITS B TO B-3 AGAINST THE ACCUSED OVER ACCUSED'S
OBJECTIONS ANCHORED ON ARTICLE III, SECTIONS 12 & 17 OF THE
1987 CONSTITUTION.

II
THE RESPONDENT COURT ERRED IN LAW WHEN IT CONSIDERED —
OVER PETITIONER'S OBJECTIONS — ALLEGED CONFIRMATION
LETTERS NOT SIGNED OR NOT PROPERLY IDENTIFIED, AS EVIDENCE
TO PROVE ALLEGED SHORTAGE.

III

THE RESPONDENT COURT ERRED IN LAW WHEN IT RULED THAT


ACCUSED IS PRESUMED TO HAVE MALVERSED P15,309.00 BECAUSE
HE FAILED TO HAVE THE AMOUNT FORTHCOMING UPON DEMAND.

IV

THE RESPONDENT COURT ERRED IN LAW IN HOLDING ACCUSED


LIABLE FOR MALVERSATION OF PUBLIC FUNDS THROUGH
NEGLIGENCE.

The appeal has no merit.

Petitioner faults the Sandiganbayan for having considered Exhibits "B" to "B-3," inclusive,
despite what he claims to be an impairment of his constitutional rights under Article III, Section
12 paragraphs (1) and (3), and Section 17, 2 of the 1987 Constitution. We cannot agree. The
questioned exhibits pertain to the Report of Examination, the Statement of Accountability for
Accountable Forms without Money Value, and a Reconciliation Statement of Accountability,
which are official forms prepared and accomplished in the normal course of audit regularly
conducted by the Commission on Audit. Petitioner, not being at the time under investigation for
the commission of a criminal offense, let alone under custodial investigation, clearly cannot be
said to have been deprived of the constitutional prerogatives he invokes (Villaroza vs.
Sandiganbayan, G.R. No. 79636, 17 December 1987; People vs. Olivares, 186 SCRA 536).

On the so-called confirmatory letters, respondent court concluded thus —

III. The Letters of Confirmation (Exhibits Z to II, JJ to SS, TT to GGG, HHH to


WWW, XXX to ZZZZ, AAAA to JJJJJ, KKKKK to KKKKKKK to JJJJJJJJ and
JJJJJJJJ) were not the primary evidence presented by the prosecution to prove the
manipulations and irregularities in question but the originals and duplicates of the
Official Receipts (Exhibits L to I-40, J to J-95, K to K-26 and L to L-44), all of
which were admittedly signed by the accused, wherein it could clearly be seen
that payments for P110.00 were reflected as P2.00 only. Thus, the Letters of
Confirmation are only secondary evidence to support and prove the principal facts
in issue. Accused had not, REPEAT, had not, denied that the above-mentioned
official receipts, originals and duplicates, are genuine and correctly reflect the
amounts which appear to be listed therein.
Hardly can the above findings be validly challenged. Indeed, considering all the evidence on
record, there is not much that the questioned letters could have lent to augment the case for the
prosecution.

Petitioner has been charged with having violated Article 217 of the Revised Penal Code, which,
in full, reads:

Art. 217. Malversation of public funds or property. — Presumption of


malversation. — Any public officer who, by reason of the duties of his office, is
accountable for public funds or property, shall appropriate the same, or shall take
or misappropriate or shall consent, or through abandonment or negligence, shall
permit any other person to take such public funds or property, wholly or partially,
or shall otherwise be guilty the misappropriation or malversation of such funds or
property shall suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the
amount involved in the misappropriation or malversation does not exceed two
hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the
amount involved is more than two hundred pesos but does not exceed six
thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in


its minimum period, if the amount involved is more than six thousand pesos but is
less than twelve thousand pesos.

4. The penalty of reclusion temporal in its medium and maximum periods, if the
amount involved is more than twelve thousand pesos but is less than twenty-two
thousand pesos. If the amount exceeds the latter, the penalty shall be reclusion
temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of
perpetual special disqualification and a fine equal to the amount of the funds
malversed or equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or
property with which he is chargeable, upon demand by any duly authorized
officer, shall be prima facie evidence that he has put such missing funds or
property to personal use.

The validity and constitutionality of the presumption of evidence provided in the above Article,
which petitioner questions, has long been settled affirmatively in a number of cases heretofore
decided by this Court; 3 that point need not again be belabored.
Even while an information charges willful malversation, conviction for malversation through
negligence may, nevertheless, be adjudged as the evidence so yields. Malversation, unlike other
felonies punished under the Revised Penal Code, is consummated, and the same penalty is
imposed, regardless of whether the mode of commission is with intent or due to negligence. 4

Petitioner argues that the restitution made by him of the full amount should exonerate him from
criminal liability. The argument not only is an inappropriate defense in criminal cases but it also
even at times tightens a finding of guilt. In malversation of public funds, payment,
indemnification, or reimbursement of funds misappropriated, after the commission of the crime,
does not extinguish the criminal liability of the offender which, at most, can merely affect the
accused's civil liability thereunder 5 and be considered a mitigating circumstance being
analogous to voluntary surrender. 6

WHEREFORE, the petition is DISMISSED, and the appealed decision of respondent


Sandiganbayan is AFFIRMED in toto.

SO ORDERED.