Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-5803 November 29, 1954

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NARCISO UMALI, ET AL., defendants.
NARCISO UMALI, EPIFANIO PASUMBAL and ISIDRO CAPINO, defendants-
appellants.

Jose P. Laurel, Cipriano Primicias, Alejo Mabanag, Manuel Concordia, P.M.

Stuart Del Rosario, Tomas R. Umali, Eufemio E. De Mesa and Edmundo T.
Zepeda for appellants.
Solicitor General Juan R. Liwag and Solicitor Martiniano P. Vivo for appellee.

MONTEMAYOR, J.:

Narciso Umali, Epifanio Pasumbal, and Isidro Capino are appealing directly to this Tribunal
from a decision of the Court of First Instance of Quezon province finding them guilty of
the complex crime of rebellion with multiple murder, frustrated murder, arson and
robbery, and sentencing each of them to "life imprisonment, other accessories of the law,
to indemnify jointly and severally Marcial Punsalan in the amount of P24,023; Valentin
Robles in the amount of P10,000; Yao Cabon in the amount of P700; Claro Robles in the
amount of P12,800; Pocho Guan in the amount of P600; the heirs of Domingo Pisigan in
the amount of P6,000; the heirs of Locadio Untalan in the amount of P6,000; Patrolman
Pedro Lacorte in the amount of P500; Lazaro Ortega in the amount of P300; Hilarion
Aselo in the amount of P300; Calixto Rivano in the amount P50; Melecio Garcia in the
amount of P60; and Juanito Lector in the amount of P90, each to pay one fifteenth of the
costs, without subsidiary imprisonment in case of insolvency due to the nature of the
principal penalty that is imposed upon them."

The complex crime of which appellants were found guilty was said to have been
committed during the raid staged in the town of Tiaong, Quezon, between 8:00 and 9:00
in the evening of November 14, 1951, by armed men. It is not denied that such a raid
took place resulting in the burning down and complete destruction of the house of Mayor
Marcial Punzalan including its content valued at P24,023; the house of Valentin Robles
valued at P10,000, and the house of one Mortega, the death of Patrolman Domingo
Pisigan and civilians Vicente Soriano and Leocadio Untalan, and the wounding of
Patrolman Pedro Lacorte and five civilians; that during and after the burning of the
houses, some of the raiders engaged in looting, robbing one house and two Chinese
stories; and that the raiders were finally dispersed and driven from the town by the
Philippine Army soldiers stationed in the town led by Captain Alzate.

To understand the reason for and object of the raid we have to go into the political
situation in Tiaong not only shortly before that raid but one year or two years before it.
Narciso Umali and Marcial Punzalan were old time friends and belonged to the same
political faction. In the general elections of 1947 Umali campaigned for Punzalan who
later was elected Mayor of Tiaong. In the elections of 1949 Punzalan in his turn
campaigned and worked for Narciso Umali resulting in the latter's election as
Congressman. However, these friendly relations between the two did not endure. In the

1
words of Punzalan, Narciso Umali who as Congressman regarded himself as the political
head and leader in that region including Tiaong, became jealous because of his
(Punzalan's) fast growing popularity among the people of Tiaong who looked to him
instead of Umali for political guidance, leadership, and favors. In time the strain in their
relations became such that they ceased to have any dealings with each other and they
even filed mutual accusations. According to Punzalan, in May 1950, Umali induced about
twenty-six special policemen of his (Punzalan's) to flee to the mountains with their arms
and join the Huks, this is in order to discredit Punzalan's administration; that he was later
able to contact two of his twenty-six policemen and tried to persuade them to return to
the town and to the service, but they told him that they and their companions would not
surrender except and with through the intervention of Congressman Umali, and so
Punzalan had to seek Umali's intervention which resulted in the surrender of the 26 men
with their firearms; that thereafter Umali wanted to have their firearms, claiming that
they all belonged to him from his guerrilla days when he was a colonel, and that after
liberation he had merely loaned them to the municipal authorities of Tiaong to help keep
peace and order; and that the refusal of Punzalan to grant Umali's request further strained
their relations, and thereafter Umali would not speak to him even when they happened
to meet at parties.

On September 19, 1951, the Chief of Police of Punzalan disarmed four of Umali's men,
including his bodyguard Isidro Capino who were then charged with illegal possession of
firearms. Umali interceded for his men and Col. Gelveson, Provincial Commander, sent a
telegram stating that the firearms taken away from the men were licensed. As a result
the complaint was dismissed. This incident was naturally resented by Umali and spurred
him to have a showdown with Punzalan.

Then the elections of 1951 (November 13) approached and Punzalan ran for reelection.
To oppose him, and to clip his political wings and definitely blast his ambition for
continued power and influence in Tiaong, Umali picked Epifanio Pasumbal, his trusted
leader.

The pre-election campaign and fight waged by both factions — Punzalan and Pasumbal,
was intense and bitter, even ruthless. The election was to be a test of political strength
and would determine who was who in Tiaong, — Umali or Punzalan. Umali spoke at
political meetings, extolling the virtues of Pasumbal and the benefits and advantages that
would accrue to the town if he was elected, at the same time bitterly attacking Punzalan,
accusing him of dishonesty, corruption in office, abuse of power, etc. At one of those
meetings he told the audience not to vote for Punzalan because he would not be elected
and that even if he won the election, he would not sit for blood will flow, and that he
(Umali) had already prepared a golden coffin for him (Punzalan). After denying the
charges, in retort, Punzalan would say that Umali as a Congressman was useless, and
that he did not even attend the sessions and that his chair in Congress had gathered
dust, even cobwebs.

To help in the Umali-Pasumbal campaign, Amado Mendoza who later was to play the role
of star witness for the prosecution, was drafted. He was a compadre of Pasumbal and
had some experience in political campaigns, and although he was not exactly a model
citizen, being sometimes given to drunkenness, still, he had the gift of speech and
persuasion. In various political meetings he delivered speeches for Pasumbal. He was
ever at the back and call of Umali and Pasumbal, and naturally he frequented the latter's
houses or headquarters. The result of the elections plainly showed that Punzalan was the
political master and leader in Tiaong. He beat Pasumbal by an overwhelming majority of
2,221 votes. Naturally, Umali and Pasumbal were keenly disappointed, and according to
the evidence, adopted measures calculated to frustrate Punzalan's victory, even as

2
prophesied by Umali himself in one of his pre-election speeches about blood flowing and
gold coffin.

Going back to the raid staged in Tiaong on November 14, 1951, it is well to make a short
narration of the happenings shortly before it, established by the evidence, so as to
ascertain and be informed of the reason or purpose of said raid, the persons, behind it,
and those who took part in it. According to the testimony of Amado Mendoza, in the
morning of November 12th, that is, on the eve of the election, at the house of Pasumbal's
father, then being used as his electoral headquarters, he heard Umali instruct Pasumbal
to contact the Huks through Commander Abeng so that Punzalan will be killed, Pasumbal
complying with the order of his Chief (Umali) went to the mountains which were quite
near the town and held a conference with Commander Abeng. It would seem that Umali
and Pasumbal had a feeling that Punzalan was going to win in the elections the next day,
and that his death was the surest way to eliminate him from the electoral fight.

The conference between Pasumbal and Commander Abeng on November 12th was
witnessed and testified to by Nazario Anonuevo, a Huk who was under Commander
Abeng, and who later took an active part in the raid. In the evening of the same day,
Mendoza heard Pasumbal report to Umali about his conference with Commander Abeng,
saying that the latter was agreeable to the proposition and had even outlined the manner
of attack, that the Huks would enter the town (Tiaong) under Commander Lucio and
Aladin, the latter to lead the sector towards the East; but that Commander Abeng had
suggested that the raid be postponed because Pasumbal may yet win the election the
following day, thereby rendering unnecessary the raid and the killing of Punzalan.

Continuing with the testimony of Amado Mendoza, he told the court that as per
instructions of Umali he went to the house of the latter, in the evening of November 14th,
the day following the election, with the result of the election already known, namely, the
decisive victory of Punzalan over Pasumbal. He was told by Umali to come with him, and
Pasumbal and the three boarded a jeep with Pasumbal at the wheel. They drove toward
the Tiaong Elementary School and once there he (Mendoza) was left at the school
premises with instructions by Umali to wait for Commander Abeng and the Huks and
point to them the house of Punzalan. After waiting for sometime, Abeng and his troops
numbering about fifty, armed with garands and carbines, arrived and after explaining his
identity and his mission to Abeng, he had led the dissidents or part of the contingent in
the direction of Punzalan's house and on arriving in front of the bodega of Robles, he
pointed out Punzalan's house and then walked toward his home, leaving the Huks who
proceeded to lie flat in a canal. Before reaching his house, he already heard shots, so, he
evacuated his family to their dugout in his yard. While doing so he and his wife Catalina
Tinapunan saw armed men in the lanzones grove just across the street from their house,
belonging to the father of Umali, and among those men they saw Congressman Umali
holding a revolver, in the company of Huk Commander Torio and about 20 armed men.
Afterwards they saw Umali and his companions leave in the direction of Taguan, by way
of the railroad tracks.

It would appear from the evidence that the raid was well-planned. As a diversionary
measure, part of the attacking force was deployed toward the camp or station of the
Army (part of 8th B.C.T.) in the suburbs and the camp was fired upon, not exactly to
destroy or drive out that Army unit but to keep it from going to the rescue and aid of the
main objective of the raid. The rest of the raiding party went toward Punzalan's house
and attacked it with automatic weapons, hand grenades, and even with bottles filled with
gasoline (popularly known as Molotov's cocktail). It was evident that the purpose of the
attack on Punzalan's house was to kill him. Fortunately, however, and apparently
unknown to the attackers and those who designed the raid, at six o'clock that morning

3
of November 14th Punzalan and his Chief of Police had left Tiaong to go to Lucena, the
capital, to report the results of the election to the Governor.

The attack on the house of Punzalan was witnessed and described by several persons,
including policemen who happened to be near the house. Policeman Tomas Maguare who
was in front of the house saw Epifanio Pasumbal, Isidro Umali (brother of Congressman
Umali) and Moises Escueta enter the gate of Punzalan's house and take part in the firing.
Policeman Pedro Lacorte who was stationed as guard at the gate of Mayor Punzalan's
house recognized defendant Isidro Capino as one of those firing at the house. Lacorte
said that he was guarding the house of Punzalan when he suddenly heard shots coming
from the sides of the house and going over to the place to investigate, he saw armed
men in fatigue and shouting "burn the house of Mayor Punzalan"; that he was hit on the
left check and later Isidro Capino threw at him a hand grenade and he was hit in the right
forearm and in the right eye and became permanently blind in said eye. Mateo Galit,
laundryman who was sitting inside a jeep parked in front of the house of Punzalan
recognized defendant Pasumbal as one of the attackers who, once in the yard said ina
loud voice as though addressing somebody in the house "Pare, come down." Mrs.
Punzalan who was then inside the house related to the court that at about eight in the
evening while she was resting she heard shots and rapid firing. As a precaution she took
her children to the bathroom. Then she noticed that her house was being fired at because
the glass window panes were being shattered and she heard the explosion of a hand
grenade inside the house, followed by flares in the sala and burning of blankets and
mosquito nets in the bedrooms and she noticed the smell of smoke of gasoline. Realizing
the great danger, she and the children ran out of the house and went to hide in the house
of a neighbor.

Nazario Añonuevo declared in court that he was a farmer and was picked up and seized
by Huk Commander Tommy sometime in August 1951, and was taken to Mt. Banahaw in
Laguna and mustered in the ranks of the Huks; that just before the elections of November
13, 1951, he saw Pasumbal come to the mountains near Tiaong and talk to Commander
Abeng; that on November 14th by order of Commander Abeng he with other Huks left
Mt. Banahaw for Tiaong; that when they crossed the Osiw River already near Tiaong,
they were met by Pasumbal and Capino; that when they were at the outskirts of the
town, he and the party were told by Commander Tommy to attack the 8th BCT camp in
Tiaong to prevent the sending of army help to the town proper; that he took part in firing
on the camp which returned the fire in the course of which he was wounded; and that
because of his wound he could not escape with his companions to the mountains when
the Army soldiers dispersed and drove them out of the town and so he was finally
captured by said soldiers.

As to defendants Pasumbal and Capino, their participation in and responsibility for the
raid was duly established not only by the going of Pasumbal on November 12th to the
mountains following instructions of Umali, and conferring with Commander Abeng asking
him to raid Tiaong and kill Punzalan, but also by the fact that Pasumbal and Capino in
the afternoon or evening of November 14th met the Huks at the Osiw River as the
dissidents were on their way to Tiaong and later Pasumbal and Capino were seen in the
yard of Punzalan firing at the house with automatic weapons and hand grenades.

What about Umali? His criminal responsibility was also established, tho indirectly. We
have the testimony of Amado Mendoza who heard him instructing Pasumbal to contact
Commander Abeng and ask him to raid Tiaong and kill Punzalan. The rest of the evidence
is more or less circumstantial, but nonetheless strong and convincing. No one saw him
take part in the firing and attack on the house of Punzalan; nor was he seen near or
around said house. Because of his important position as Congressman, perchance he did

4
not wish to figure too prominently in the actual raid. Besides, he would seem to have
already given out all the instructions necessary and he could well stay in the background.
However, during the raid, not very far from Punzalan's house he was seen in the
lanzonesan of his father, holding a revolver and in the company of about 20 armed men
with Huk Commander Torio, evidently observing and waiting for developments. Then he
and his companions left in the direction of Taguan.

Umali and Pasumbal, however, claim that during the raid, they were in the home of
Pasumbal in Taguan, about seven kilometers away from Tiaong where a consolation party
was being held. There is ample evidence however to the effect that they arrived in
Pasumbal's home only around midnight. An Army soldier named Cabalona who happened
to be in Pasumbal's home arriving there earlier in the evening and who was invited to
take some refreshments said that he did not see the two men until they arrived about
midnight when the Army reinforcements from Lucena passed by on their way to Tiaong.
Thus, we have this chain of circumstances that does not speak in favor of Umali, or
Pasumbal for that matter. But this is not all. There is the rather strange and unexplained,
at least not satisfactorily, behaviour of Umali and Pasumbal that evening of November
14th. Assuming for a moment as they claim, that the two were not in Tiaong at the
commencement of the raid between 8:00 and 9:00 p.m., and during the whole time the
raid lasted, and that they were all that time in the home of Pasumbal in Taguan, still,
according to their own evidence, they were informed by persons coming or fleeing from
Tiaong that there was a raid going on there, and that some houses were burning. As a
matter of fact, considering the promixity of Taguan to Tiaong, a distance of about seven
kilometers and the stillness and darkness of the night, the fire and the glow produced by
the burning of three houses and the noise produced by the firing of automatic weapons
and the explosion of the hand grenades and bottles of gasoline, could and must have
been seen and heard from Taguan. The natural and logical reaction on the part of Umali
and Pasumbal would have been to rush to Tiaong, see what had really happened and
then render help and give succor to the stricken residents, including their own relatives.
It will be remembered that the houses of the fathers of Umali and Pasumbal were in
Tiaong and their parents and relatives were residing there. And yet, instead of following
a natural impulse and urge to go to Tiaong, they fled in the opposite direction towards
Candelaria. And Umali instead of taking the road, purposely avoided the same and
preferred to hike through coconut groves so that upon arriving in Candelaria, he was wet,
and spattered and very tired. Had they wanted to render any help to Tiaong they could
have asked the police authorities of Candelaria to send a rescue party to that town. Or
better still, when the army reinforcements from Lucena sent at the instance of Punzalan,
who at about eight or nine that evening was returning to Tiaong from Lucena, found at
the barrio or sitio of Lusakan near Tiaong that there was fighting in the town, he
immediately returned to Lucena to get army reinforcements to relieve his town, was
passing by Taguan, where they were, Umali and Pasumbal could have joined said
reinforcements and gone to Tiaong. Instead the two continued on their way to the capital
(Lucena) where before dawn, they went and contacted Provincial Fiscal Mayo, a first
cousin of Umali, and Assistant Fiscal Reyes and later had these two officials accompany
them to the Army camp to see Col. Gelveson, not for the purpose of asking for the sending
of aid or reinforcement to Tiaong but presumably to show to the prosecution officials,
specially the Army Commander that they (Umali and Pasumbal) had nothing to do
whatsoever with the raid. Umali said he was trying to avoid and keep clear of Tiaong
because he might be suspected of having had some connection with the raid and might
be the object of reprisal. As a matter of fact, according to Umali himself, while still in
Taguan that evening and before he went to Candelaria, somebody had informed him that
Col. Legaspi of the Army was looking for him. Instead of seeking Col. Legaspi and find
out what was wanted of him, he left in the opposite direction and fled to Candelaria and
later to Lucena, and the next day he took the train for Manila. This strange act and

5
behaviour of the two men, particularly Umali, all contrary to impulse and natural reaction,
and what other people would ordinarily have done under the circumstances, prompted
the trial court in its decision to repeat the old saying "The guilty man flees even if no one
pursues, but the innocent stands bold as a lion." We might just as well reproduce that
portion of the decision of the trial court, to wit:

. . . Considering the fact that Taguan is very near Tiaong so that even taking it for
granted as true, for the sake of argument, that the said accused were really at the
party of Pasumbal on the night in question, that would not prevent them from
being in Tiaong between 8 and 9. Besides, why was it that night the hasag lamp
was replaced with candles when the reinforcements passed through Taguan about
midnight of November 14, 1951. Why did Congressman Umali and company
instead of going to Tiaong which was the scene of the attack hurried towards
Candelaria, after the reinforcement has passed and went to the house of Felix Ona
walking through a muddy path under the coconut groves? Why was Umali afraid
to pass through the provincial road and preferred a muddy road instead? Was he
trying to conceal himself? Why did Pasumbal and company also go to the house
of Ona? Why did they go to the house of Felix Ona instead of going to the house
of Manalo who could have given them better protection? And again why did
Congressman Umali and the other co-accused repaired and sought the company
of Fiscal Reyes in going at such an early hour to the Army authorities, did they
fear any reprisal? From whom? Why did Umali go to Manila from Lucena on
November 16, 1951? "The guilty man flees even if no one pursues, but the
innocent stands bold as a lion."

At first blush it would appear rather unbelievable that Umali and Pasumbal, particularly
the former should seek the aids of the Huks in order to put down and eliminate their
political enemy Punzalan. It would seem rather strange and anomalous that a member of
Congress should have friendly relations with this dissidents whom the Government had
been fighting all these years. But if we study the evidence, it will be found that the reason
and the explanation are there. As already stated, during the Japanese occupation, to
further the resistance movement, guerillas were organized in different parts of the
Philippines. One of these was the guerilla unit known as President Quezon's Own Guerillas
(PQOG) operating in the provinces of Tayabas (now Quezon) and Laguna. Umali,
Pasumbal, Commander Abeng and even Punzalan himself were officers in this guerilla
unit, Umali attaining the rank of colonel, and Pasumbal and Punzalan that of Lieutenant-
colonel, Pasumbal then being known as "Panzer". After Liberation, Abeng joined the
dissidents, and became a Huk Commander. It was not unnatural that Umali and Pasumbal
should continue their friendship and association with Commander Abeng and seek his aid
when convenient and necessary. Umali admitted that he knew Huk Commander Kasilag.
Graciano Ramos, one of the witnesses of the prosecution told the court that way back in
May 1950, in a barrio of San Pablo City he saw Umali confer with Commander Kasilag,
which Commander after the conference told his soldiers including Ramos that Umali
wanted the Huks to raid Tiaong, burn the presidencia and kidnap Punzalan. Of course,
the last part of the testimony may be regarded as hearsay, but the fact is that Umali
conferred with a Huk commander as early as 1950. Then we have the fact that on
November 18 of the same year Punzalan wrote to President Quirino denouncing the
congressman Umali for fraternizing with the Huks and conducting a campaign among
them in preparation for the elections the following year. And we may also consider the
fact that the town of Tiaong stands at the foothills of Mt. Banahaw where the dissidents
under Commander Abeng, Tommy, Lucio, Aladin, and others had their hideout, so that it
was not difficult for residents of Tiaong like Umali and Pasumbal to communicate and
even associate with dissidents in that region.

6
After carefully considering all the evidence in the case, we are constrained to agree with
the trial court that the three appellants are guilty. Besides, the determination of this case,
in great measure, hinges on the credibility of witnesses. The learned trial court which had
the opportunity of observing the demeanor of witnesses on the stand and gauging their
sincerity and evaluating their testimony, decided the Government witnesses, including
Amado Mendoza, to be more credible and reliable. And we find nothing in the record to
warrant correction or reversal of the stand and finding of the trial court on the matter.
We have not overlooked the rather belated retraction of Amado Mendoza made on
October 31, 1952, about a year and 9 months after he testified in court. Considering the
circumstances surrounding the making of this affidavit or retraction, the late date at which
it was made, the reasons given by him for making it and the fact that when he testified
in court under the observation and scrutiny of the trial court bearing in mind that he was
the star witness for the prosecution and his testimony naturally extremely important, and
the trial court after the opportunity given to it of observing his demeanor while on the
witness stand had regarded him as a witness, sincere, and his testimony truthful, and
considering further the case with which affidavits of retraction of this nature are obtained,
we confess that we are not impressed with such retraction of Mendoza.

The last point to be determined is the nature of the offense of offenses committed.
Appellants were charged with and convicted of the complex crime of rebellion with
multiple murder, frustrated murder, arson and robbery. Is there such a complex crime of
rebellion with multiple murder, etc? While the Solicitor General in his brief claims that
appellants are guilty of said complex crime and in support of his stand "asks for leave to
incorporate by reference" his previous arguments in opposing Umali's petition for bail,
counsel for appellants considered it unnecessary to discuss the existence or non-existence
of such complex crime, saying that the nature of the crime committed "is of no moment
to herein appellants because they had absolutely no part in it whatsoever". For that
present, and with respect to this particular case, we deem it unnecessary to decide this
important and controversial question, its consideration and determination to another case
or occasion more opportune, when it is more directly and squarely raised and both parties
given an opportunity to discuss and argue the question more adequately and
exhaustively. Considering that, assuming for the moment that there is no such complex
crime of rebellion with murder, etc., and that consequently appellants could not have
been legally charged with, much less convicted of said complex crime, and the information
should therefore, be regarded as having charged more than one offense, contrary to Rule
106, section 12 and Rule 113, section 2 (e), of the Rules of Court, but that appellants
having interposed no objection thereto, they were properly tried for and lawfully
convicted if guilty of the several, separate crimes charged therein, we have decided and
we rule that the appellants may properly be convicted of said several and separate crimes,
as hereinafter specified. We feel particularly supported and justified in this stand that we
take, by the result of the case, namely, that the prison sentence we impose does not
exceed, except perhaps in actual duration, that meted out by the Court below, which is
life imprisonment.

We are convinced that the principal and main, tho not necessarily the most serious, crime
committed here was not rebellion but rather that of sedition. The purpose of the raid and
the act of the raiders in rising publicly and taking up arms was not exactly against the
Government and for the purpose of doing the things defined in Article 134 of the Revised
Penal code under rebellion. The raiders did not even attack the Presidencia, the seat of
local Government. Rather, the object was to attain by means of force, intimidation, etc.
one object, to wit, to inflict an act of hate or revenge upon the person or property of a
public official, namely, Punzalan was then Mayor of Tiaong. Under Article 139 of the same
Code this was sufficient to constitute sedition. As regards the crime of robbery with which
appellants were charged and of which they were convicted, we are also of the opinion

7
that it was not one of the purposes of the raid, which was mainly to kidnap or kill Punzalan
and destroy his house. The robberies were actually committed by only some of the
raiders, presumably dissidents, as an afterthought, because of the opportunity offered by
the confusion and disorder resulting from the shooting and the burning of the three
houses, the articles being intended presumably to replenish the supplies of the dissidents
in the mountains. For these robberies, only those who actually took part therein are
responsible, and not the three appellants herein. With respect to the crime of multiple
frustrated murder, while the assault upon policeman Pedro Lacorte with a hand grenade
causing him injuries resulting in his blindness in one eye, may be regarded as frustrated
murder; the wounding of Ortega, Anselo, Rivano, Garcia and Lector should be considered
as mere physical injuries. The crimes committed are, therefore, those of sedition, multiple
murder, arson, frustrated murder and physical injuries. The murders may not be qualified
by evident premeditation because the premedition was for the killing of Punzalan. The
result was the killing of three others intended by the raiders (People vs. Guillen, 47 Off).
The killing may, however, be qualified by treachery, the raiders using firearms against
which the victims were defenseless, with the aggravating circumstance of abuse of
superior strength. The three murders may be punished with the penalty of death.
However, because of lack of the necessary votes, the penalty should be life imprisonment.

We deem it unnecessary to discuss the other points raised by the appellants in their brief.

In conclusion, we find appellants guilty of sedition, multiple murder, arson, frustrated

murder and physical injuries. For the crime of sedition each of the appellants is sentenced
to 5 years of prision correctional and to pay a fine of P4,000; for each of the three
murders, each of the appellants is sentenced to life imprisonment and to indemnify the
heirs of each victim in the sum of P6,000; and for the arson, for which we impose the
maximum penalty provided in Article 321, paragraph 1, of the Revised Penal Code, for
the reason that the raiders in setting fire to the buildings, particularly the house of
Punzalan they knew that it was then occupied by one or more persons, because they
even and actually saw an old lady, the mother of Punzalan, at the window, and in view
of the aggravating circumstances of nighttime, each of the appellants is sentenced
to reclusion perpetua and to pay the indemnities mentioned in the decision of the lower
court. It shall be understood, however, the pursuant to the provisions of Article 70 of the
Revised Penal Code the duration of all penalties shall not exceed 40 years. In view of the
heavy penalties already imposed and their long duration, we find it unnecessary to fix
and impose the prison sentences corresponding to frustrated murder and physical
injuries; however, the sums awarded the victims (Lacorte, Ortega, Anselo, Rivano, Garcia
and Lector), by the court below will stand. With these modifications, the decision
appealed from is hereby affirmed, with costs.

Pablo, Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, Concepcion and Reyes, J.B.L.,
JJ., concur.

8
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-28166 November 2, 1928

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
DATU TAHIL and Datu TARSON, defendants-appellants.

Jose A. Uy for appellants.

Vicente Sotto for appellant Datu Tahil.
Attorney-General Jaranilla for appellee.

AVANCEÑA, C.J.:

The appellants, Datu Tahil and Datu Tarson, were convicted in the Court of First Instance
of Sulu of the crime of rebellion, Datu Tahil being sentenced to ten years' imprisonment
and to pay a fine of $10,000, and Datu Tarso to five years' imprisonment and to pay a
fine of $5,000, with sudsidiary imprisonment in case of insolvency in regard to Datu
Tarson.

Having encountered certain difficulties in the collection of the land and the personal
cedula taxes among the resident of Patikul, due to their refusal to make this payment,
the provincial governor of Sulu, Carl Moore, turned the matter over to Lieutenant Angeles
of the Constabulary for the purpose of employing such means as he might consider
convenient to overcome these difficulties. Datu Tahil, then the third member of the
provincial board of Sulu, being amongst those who refused to make this payment,
Lieutenant Angeles tried and succeeded in having a conference with him, in which Datu
Tahil suggested that he return the following day because he would call meeting of his
people at his house in Liang in order to discuss the matter with them. Lieutenant Angeles
went to Datu Tahil's house the day following this meeting and found about 70 persons
present. After Lieutenant Angeles has explained to all the importance of the Government's
collecting the land tax, Datu Tahil took several of those present into a room for a secret
conference, after which he informed Lieutenant Angeles that he, personally, had no
objection to paying the tax, but the others asked time to do so. Lieutenant Angeles said
that he would inform Governor Moore of it and left.

When Lieutenant Angeles returned to Patikul, Moro Pasingan, who had attended the
conference as a secret agent of the Government informed him that the extension
requested for the payment of the land tax was nothing more than a pretext to gain time
in order to construct a fort. Indeed, a few days after, the construction of a fort was
commenced on a hill at a strategical location. After the construction of the fort Datu Tahil
gathered his people therein, including Datu Tarson who was one of those who refused to
pay the tax and who attended the conference. Then the propaganda started to extend
the movement, and they tried to attract those who were in the Government service. The
principal purpose of the movements was to obtain the abolition of the land tax and
besides, other pretentions in connection with the attendance of children at school, the
privilege of carrying arms and the removal of certain provincial officials, amongst whom,

9
Governor Moore, with the threat that if their request were not granted, they would oppose
the Government by forcible means. Datu Tahil made them all, including Datu Tarson,
take an oath on the Koran to this effect. From then on they took turns in guarding the
fort and its surrondings under the orders of Datu Tahil, who always carried a rifle and a
revolver. Lieutenant Angeles upon being informed of this state of affairs reported it to
Governor Moore, and the latter, in turn, endorsed the matter to the provincial fiscal.

About the middle of January, 1927, the provincial fiscal filed a complaint against Datu
Tahil and his followers charging them with sedition, and the proper warrant of arrest was
issued on the 15th. Governor Moore, however, did not wish to proceed on this warrant
of arrest and tried to persuade Datu Tahil and his followers to desist from their intention,
using the influence of other prominent Moros to this end. Governor Moore even tried to
have a conference with Datu Tahil for the same purpose, but was unsuccessful because
he was informed that they intended to attack him.

On January 30th, when Governor Moore had given up all hopes of obtaining any results
from his efforts, he delivered the warrant of arrest to Commander Green of the
Constabulary of its compliance. The following day Commander Green with a group of
soldiers, stationed themselves about 50 meters in front of the fort where he found a red
flag flying and demanded the surrender of Datu Tahil. He did not receive any reply to his
intimation, and, in turn, a group of armed Moros appeared at the left flank of the
Constabulary soldiers in the act of attacking them, but were repelled. It was again
intimated that Datu Tahil surrender, but again no answer was received, and then a larger
group of Moros appeared in an aggressive attitude, being likewise repelled. For the
purpose of frightening the Moros, the Constabulary soldiers fired the stoke mortar, which
caused the defenders of the fort to flee, leaving the Government forces in possession
thereof, where they found only the bodies of those who had been killed in this affray.

Some days after this Datu Tahil surrendered to the authorities and, while in jail, had a
conference with Governor Moore in which he stated that Commander Malone of the
Contabulary was to blame for everything, as he had induced them to rebel against the
Government.

The appellants allege in their defense that the construction of the fort and the meetings
which took place therein were only for the purpose of discussing their grievances against
the Government in order to present and submit their claims through peaceful means. This
allegation, however, is not supported by the evidence. Datu Tahil, himself, admits that
he in fact did swear his followers on the Koran, although he says that the very purpose
of this was in order that they would not oppose the Government but would present their
grievances through peaceful means. But, if this were the purpose of the oath, the
necessity of taking it is not understood. The said Datu Tahil admits in an affidavit having
committed all of these acts against the law, constructing the fort in order to oppose the
Government, because Commander Malone had encouraged him to do so, promising to
furnish arms and ammunition, and visiting the fort from time to time while it was in the
course of construction. We do not believe that Datu Tahil, as he stated during the trial,
signed this affidavit without having been informed of its contents. Furthermore, this
supposed inducement of Commander Malone, aside from being no excuse for the
commission of the crime, was emphatically denied by Datu Tahil.

At any rate, for the purpose of the present case, suffice it to say that upon its being
intimated to Datu Tahil that he surrender with the object of complying with a judicial
warrant of arrest against him and his followers, he resisted this order by means of force,
thus preventing the officer charged with this duty from performing it. This already
constitutes a crime.

10
In regard to Datu Tarson, it appears that he was one of those who took an oath on the
Koran to oppose the Government by force; that he took part in all the activities of the
movement, assisting in the construction of the fort; that in the day preceding the incident
he was in the fort; and while he left in the afternoon, he returned early the following
morning and was found in the fort when the Government forces appeared.

The facts proven, however, constitute the crime of sedition, defined in section 5 of Act
No. 292, and not of rebellion according to section 3 of the same law, the acts committed
being limited to preventing the Government officials, throught force, from complying with
their duties in connection with the judicial order, the enforcement of which was entrusted
to them. lawphi1.net

In our opinion, the crime committed is that of sedition, and the fine imposed upon Datu
Tahil is therefore reduced to $5,000 and that imposed upon Datu Tarson to $2,500, the
judgment appealed from being affirmed in all other respects, with the costs against the
appellants. So ordered.

Johnson, Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.

11
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 17748 March 4, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
GRACIANO L. CABRERA, ET AL., defendants-appellants.

Vicente Sotto for appellants.

Acting Attorney-General Tuason for appellee

MALCOLM, J.:

As one outcome of the tumultous uprising of certain members of the Philippine

Constabulary to inflict revenge upon the police of the city of Manila, charges of sedition
were filed in the Court of First Instance of the city of Manila against the participants in
the public disturbance. Convicted in the trial court of a violation of Act No. 292 of the
Philippine Commission, and sentenced either to the maximum penalty or a near approach
to the maximum penalty provided by the punitive provisions of that law, all of the
defendants have perfected an appeal to this court. A statement of the case and of the
facts, an opinion on the pertinent issues, and a judgement, if no reversible error be found,
regarding the appropriate penalty, will be taken up in the order named.

STATEMENT OF THE CASE AND OF THE FACTS

On December 13, 1920, policemen of the city of Manila arrested a woman who was a
member of the household of a Constabulary soldier stationed at the Santa Lucia Barracks
in this city. The arrest of the woman was considered by some of the Constabulary soldiers
as an outrage committed by the policemen, and it instantly gave rise to friction between
members of Manila police department and member of the Philippine Constabulary.

The next day, December 14, at about sunset, a policemen named Artemio Mojica, posted
on Calle Real, in the District of Intramuros, city of Manila, had an encounter with various
Constabulary soldiers which resulted in the shooting of private Macasinag of the
Constabulary. Private Macasinag was seriously, and as afterwards appeared, mortally
wounded.

The encounter between policemen Mojica and other companions of the Manila force and
private Macasinag and other companions of the Constabulary, with its grave
consequences for a Constabulary soldier endangered a deep feeling of resentment on the
part of the soldiers at Santa Lucia Barracks. This resentment was soon converted into a
desire for revenge against the police force of the city of Manila. The officers of the
Constabulary appear to have been aware of the state of excitement among the soldiers
the shooting of private Macasinag, Captain Page, the commanding officer of the Barracks,
increased the number of guards, and confined all the soldiers in the Barracks.

During the afternoon of the next day, December 15, 1920, a rumor spread among the
soldiers in Santa Lucia Barracks to the effect that policeman Mojica was allowed to
continue on duty on the streets of Intramuros and that private Macasinag had died as a
consequence of the shot he received the night before. This rumor contributed in no small

12
degree in precipitating a movement for reprisal by the Constabulary soldiers against the
policemen.

At about 7 o'clock in the evening of the same day, December 15, 1920, corporal Ingles
of the Fourth Company approached private Nicolas Torio who was then the man in charge
of quarters, and asked him to let the soldiers out through the window of the quarters of
the Fourth Company. Private Torio was easily persuaded to permit private Francisco
Garcia of the Second Company to saw out the window bars of the quarters, in his charge,
and to allow soldiers to escape through the window with rifles and ammunition under the
command of their sergeants and corporals. When outside of the quarters, these soldiers
divided into groups for attack upon the city police force.

One platoon of Constabulary soldiers apparently numbering about ten or twelve, on Calle
Real, Intramuros, fired in the direction of the intersection of Calles Real and Cabildo where
an American policeman named Driskill was stationed, and was taking with a friend named
Jacumin, a field clerk in the United States Army. These two men were shot and died soon
afterwards. To the credit of policeman Driskill be it said, that although in a dying condition
and in the face of overwhelming odds, her valiantly returned the fire with his revolver.
Jacumin was killed notwithstanding that in response to the command of Constabulary,
"Hands up!," he elevated both arms.

A street car happened to stop at this time at the corner of Calles Real and Cabildo. Without
considering that the passengers in the car were innocent passersby, the Constabulary
squad fired a volley into the car, killing instantly the passenger named Victor de Torres
and gravely wounding three other civilian passengers, Gregorio Cailes, Vicente Antonio,
and Mariano Cortes. Father Jose Tahon, a priest of the Cathedral of Manila, proved
himself a hero on this occasion for, against the command of the Constabulary, he
persisted in persuading them to cease firing and advanced in order that he might
administer spiritual aid to those who had been wounded.

The firing on Calle Real did not end at that time. Some minutes later, Captain William E.
Wichman, assistant chief of police of the city of Manila, riding in a motorcycle driven by
policeman Saplala, arrived at the corner of Calles Real and Magallanes in Intramuros, and
a volley of shorts by Constabulary soldiers resulted in the instantaneous death of Captain
Wichman and the death shortly afterwards of patrolman Saplala.

About the same time, a police patrol came from the Meisic police station. When it was on
Calle Real near Cabildo, in Intramuros, it was fired upon by Constabulary soldiers who
had stationed themselves in the courtyard of the San Agustin Church. This attack resulted
in the death of patrolmen Trogue and Sison.

Another platoon of the Constabulary, between thirty and forty in number, had in the
meantime, arranged themselves in a firing line on the Sunken Gradens on the east side
of Calle General Luna opposite the Aquarium. From this advantageous position the
Constabulary fired upon the motorcycle occupied by Sergeant Armada and driven by
policeman Policarpio who with companions were passing along Calle General Luna in front
of the Aquarium going in the direction, of Calle Real, Intramuros. As a result of the
shooting, the driver of the motorcycle, policeman Policarpio, was mortally wounded. This
same platoon of Constabulary soldiers fired several volleys indiscriminately into the
Luneta police station, and the office of the secret service of the city of Manila across
Calles General Luna and Padre Burgos, but fortunately no one was injured.

General Rafael Crame, Chief of the Constabulary, and Captain Page, commanding officer
of the Santa Lucia Barracks, and other soldiers in the streets of Manila, and other soldiers

13
one after another returned to the Barracks where they were disarmed. No list of the
names of these soldiers was, however, made.

In the morning of the next day, December 16, 1920, Colonel, Lucien R. Sweet of the
Constabulary officers, and later by the fiscals of the city of Manila, commenced an
investigation of the events of the night before. He first ordered that all the soldiers in
Santa Lucia Barracks at that time, numbering some one hundred and eighty, be
assembled on the parade ground and when this was done, the soldiers were separated
into their respective companies. Then Colonel Sweet, speaking in English with the
assistance of Captain Silvino Gallardo, who interpreted his remarks into Tagalog, made
to all of the soldiers two statements.

What occurred on the occasion above described can best be told in the exact language
of Colonel Sweet: "I assembled all four companies in Santa Lucia Barracks and asked
them to tell me which ones had been out the night before and which ones had participated
in the shooting, which they did, and to tell me the names of those who were with them
and who were not then present, which they did. I think there were seventy-two (seventy-
three) present and they named five (four) others." Again the witness said: "At first I
asked all those who went out on the previous night for any purpose whatever to signify
the fact by stepping forward and gave them five minutes to think it over before doing so.
To those who stepped forward that had gone out for any purpose whatever I asked those
who took part in the shooting the night before that in justice to themselves and to the
other men who had not taken part in it, and for the good of all concerned, that they step
forward and they did." The names of the four who took part (not five as stated by Colonel
Sweet), but ho were taken to present, were noted by Captain Gallardo.

The statements of the seventy-seven soldiers were taken in writing during the afternoon
of the same day, December 16. The questionnaire prepared by the fiscal of the city of
Manila was in English or Spanish. The questions and answers were, however, when
requested by the soldiers, translated not their dialects. Each statement was signed by the
soldier making it in the presence of either two or three witnesses.

Although the answers to the questions contained these statements vary in phraseology,
in substance they are the same. One of them, the first in numerical order, that of Sergeant
Graciano L. Cabrera, taken in Spanish and interpreted into Tagalog, may be selected into
Tagalog, may be selected as typical of the rest, and is here literally transcribed:

1. Give your name, age, status, occupation, and residence. — Graciano I. Cabrera,
254 years of age, single, sergeant of the first company of the General Service of
the Constabulary, residing in Santa Lucia Barracks.

2. To what company of the Philippine Constabulary do you belong? — First

Company, General Service of the Constabulary.]

3. Where were you garrisoned yesterday afternoon December 15,

1920? — In the Santa Lucia Barracks.

4. Did you leave the barracks at about 7 o'clock yesterday evening? — Yes, sir.

5. For what reason, and where did you go? — We went in search of the policemen
and secret service men of Manila. It has been sometime now since we have been
having standing grudge against now since we have been having a standing grudge
against the police of Manila. The wife of one of our comrades was first arrested by
the policemen and then abused by the same; and not content with having abused

14
her, they gave this woman to an American; after this incident, they arrested two
soldiers of the Constabulary, falsely accusing them of keeping women of bad
reputation; after this incident, came the shooting of Macasinag, a shooting not
justified, because we have come to know that Macasinag did nothing and the
policemen could have arrested him if they desired. Moreover, the rumor spread
among us that the police department of Manila had given orders to the policemen
to fire upon any Constabulary soldier they found in the streets, and we believe
that the rumor was not without foundation since we noticed that after the
Macasinag affair, the policemen of Manila, Contrary to the usual practice, were
armed with carbines or shotguns. For this reason we believe that if we did not put
an end to these abuses of the policemen and secret service men, they would
continue abusing the constabulary. And as an act of vengeance we did what we
had done last night.

6. How did you come to join your companions who rioted last night? — I saw that
almost all the soldiers were jumping through the window and I was to be left alone
in the barracks and so I followed.

7. Who asked you to join it? — Nobody.

8. Do you know private Crispin Macasinag, the one who was shot by the Manila
police the night before last on Calle Real? — Yes, Sir, I know him because he was
our comrade.

9. Were you offended at the aggression made on the person of said soldier? —
Indeed, yes, not only was I offended, but my companions also were.

10. State how many shots you fired, if nay, during the riot last night. — I cannot
tell precisely the number of shots I fired because I was somewhat obfuscated; all
I can assure you is that I fired more than once.

11. Do you know if you hit any policeman or any other person?-If so state whether
the victim was a policeman or a civilian. — I cannot tell whether I hit any policeman
or any civilian.

12. State the streets of the city where you fired shots. — I cannot given an exact
account of the streets where I fired my gun. I had full possession of my faculties
until I reached Calle Victoria; afterwards, I became aware that I was bathed with
perspiration only upon reaching the barracks.

13. What arms were you carrying and how much ammunition or how many
cartidge did you use? — I Carried a carbine; I cannot tell precisely the number of
cartridges I used; however, I placed in my pocket the twenty cartridges belonging
to me and I must have lost.

14. How did you manage to leave the barracks? — By the window of the quarter
of the Fourth Company, through the grating which I found cut off.

15. Are the above statements made by you, voluntarily, freely, and spontaneously
given? — Yes, sir.

16. Do you swear to said statements although no promise of immunity is made to

you? — Yes, sir; I confirm them, being true.

(Sgd.) G. L. CABRERA.
15
 Witnesses:

S. GALLARDO.
LAURO C. MARQUEZ.

The defendants were charged in one information filed in the Court of First Instance of
the City of Manila with the crime of sedition, and in another information filed in the same,
court, with the crimes of murder and serious physical injuries. The two cases were tried
separately before different judges of first instance.

All of the accused, with the exception of eight, namely, Francisco Ingles, Juan Noromor,
P. E. Vallado., Dionisio Verdadero, and Paciano Caña, first pleased guilty to the charge of
sedition, but later, after the first witness for the prosecution had testified, the accused
who had pleaded guilty were permitted, with the consent of the court, to substitute
therefor the plea of not guilty. the prosecution, in making out it case, presented the
seventy-seven confession of the defendants, introduced in evidence as Exhibits C to C-
76, conclusive, and with the exception of those made by Daniel Coralde, Nemesio Gamus,
and Venancio Mira, all were identified by the respective Constabulary officers,
interpreters, and typists who intervened in taking them. The prosecution further relied
on oral testimony, including eyewitness to the uprising.

The attorneys for the accused presented two defenses. The first defense was in favor of
all the defendants and was based on the contention that the written statements Exhibits
C to C-76 were not freely and voluntarily made by them. The second defense was in favor
of the defendants Vicente Casimiro, Salvador Gregorio, Roberto Palabay, Cipriano Lizardo,
Ildefonso de la Cruz, Roque Ebol, Francisco Garcia, Benigno Tagavilla, Paciano Caña, Juan
Abarques, Genaro Elayda, Hilario Hibabar, P. E. Vallado, Patricio Bello, Felix Liron,
Bonifacio Eugenio, Nemesio Deceña, Venancio Mira, Baldomero Rodriguez, Juan
Noromor, Maximo Perlas, and Victor Atuel, and was to the effect these men did not take
part in the riot.

The court overruled the special defenses and found that the guilt of the accused had
been proved beyond a reasonable doubt. All of the defendants were sentenced to serve
the maximum imprisonment of ten years provided by section 6 of Act No. 292. The court,
however, distinguished fines from that of a defendants Francisco Garcia, a private and
the eight corporals E. E. Agbulos, Francisco Ingles, Clemente Manigdeg, Juan Abarques,
Pedro V. Matero, Juan Regalado, Hilario Hibalar and Genaro Elayda, upon each of whom
a fine of P5,000 was imposed, and of the three sergeants Graciano L. Cabrera, Pascual
Magno, and Bonifacio Eugenio, upon each of whom a fine of P10,000 was imposed. The
costs were divided proportionately among the defendants.

For the statement of the cases and the facts which has just been made, we are indebted
in large measure to the conspicuously fair and thoughtful decisions of the Honorable
George R. Harvey who presided in the sedition case and of the Honorable Carlos Imperial
who presided in the murder case. As stipulated by the Attorney-General and counsel for
the defendants, the proof is substantially the same in both cases.

In all material respects we agree with the findings of fact as made by the trial court in
this case. The rule is again applied that the Supreme Court will not interfere with the
judgement of the trial court in passing upon the credibility of the opposing witnesses,
unless there appears in the record some fact or circumstances of weight and influence
which has been overlooked or the significance of which has been misinterpreted. (U. S.
vs. Ambrosio and Falsario [1910], 17 Phil., 295; U. S. vs. Remegio [1918], 37 Phil., 599.)
In the record of the case at bar, no such fact or circumstance appears.

16
OPINION

An assignment of five errors is made by counsel for the defendants and appellants. Two
the assignment of error merit little or no consideration. Assignment of error No. 2 (finding
its counterpart in assignments of error 5 and 6 in the murder case), in which it is
attempted to establish that Vicente Casimiro, Salvador Gregorio, Paciano Caña, Juan
Abarquez, Mariano Garcia, Felix Liron, Bonifacio Eugenio, Patricio Bello, Baldomero
Rodriguez, Roberto Palabay, Juan Noromor, Roque Ebol, Ildefonso de la Cruz, Cipriano
Lizardo, Francisco Garcia, Genaro Elayda, Hilario Hibalar, P. M. Vallado, Maximo Perlas,
and Benigno Tagavilla, did not leave the Santa Lucia Barracks in the night of the tragedy,
is predicated on the special defense raised in the lower court for these defendants and
three other and which was found untenable by the trial court. Any further discussion of
this question falls more appropriately under consideration of assignment of error No. 4,
relating to the conspiracy between the accused.

Assignment of error No. 3, relating to the finding of the trial court that it had not been
shown that the policemen were not aware of the armed attack of the Constabulary,
However, we find that the evidence supports this conclusion of the trial court.

The three pertinent issues in this case relate to: (1) the Admission of Exhibits C to C-76
of the prosecution (assignment of error No. 2, murder case); (2) the conspiracy between
the accused (assignment of error No. 4, sedition case; assignment of error No. 3, murder
case); and (3) the conviction of the accused of a violation of the Treason and Sedition
Law (assignment of error No. 5, sedition case).

1. The admission of exhibits C to C-76

Appellants claim that fraud and deceit marked the preparation of the seventy seven
confessions. It is alleged that some of the defendants signed the confessions under the
impression that those who had taken part in the affray would be transferred to Mindanao,
and that although they did not in fact so participate, affirmed that they because of a
desire to leave Manila; that other stepped forward "for the good of the service" in
response to appeals from Colonel Sweet and other officers; while still others simply didn't
understand what they were doing, for the remarks of Colonel Sweet were made in English
and only translated into Tagalog, and their declarations were sometime taken in al
language which was unintelligible to them. Counsel for the accused entered timely
objection to the admission in evidence of Exhibits C to C-76, and the Attorney-General is
worn in stating otherwise.

Section 4 of Act No. 619, entitle "An Act to promote good order and discipline in the
Philippines Constabulary," and reading: "No confession of any person charged with crime
shall be received as evidence against him by any court of justice unless be first shown to
the satisfaction of the court that it was freely and voluntarily made and not the result of
violence, intimidation, threat, menace or of promises or offers of reward or leniency,"
was repealed by the first Administrative Code. But the same rule of jurisprudence
continues without the law. As he been repeatedly announced by this and other courts,
"the true test of admissibility is that the confession is made freely, voluntarily, and without
compulsion or inducement of any sort". If the confession is freely and voluntarily made,
it constitutes one of the most effectual proofs in the law against the party making it.
(Wilson vs. U. S.[1896], 162 U. S. 613.)The burden of proof that he confession was not
voluntarily made or was obtained by undue pressure is on the accused. (U. S. vs Zara
[1912, 42 Phil., 308.)

17
What actually occurred when the confessions were prepared is clearly explained in the
records. The source of the rumor that the defendant would be transferred to Mindanao
if they signed the confession is not established. One the contrary it is established that
before the declaration were taken, Lieutenant Gatuslao in response to a query had shown
the improbability of such a transfer. With military orders given in English and living in the
city of Manila where the dialect is tagalog, all of the defendants must have understood
the substantial part of Colonel Sweet's remarks. What is more important, there could be
no misunderstanding as to the contents of the confessions as written down. In open
court, sixty-nine of the defendants reiterated their guilt. The officers who assisted in the
investigation were of the same service as the defendants in their own men.

It must also be remembered that each and everyone of the defendants was a member
of the Insular Police force. Because of the very nature of their duties and because of their
practical experience, these Constabulary soldiers must have been aware of the penalties
meted out for criminal offenses. Every man on such a momentous occasion would be
more careful of his actions than ordinarily and whatever of credulity there is in him, would
for the moment be laid aside. Over and above all desire for a more exciting life, over and
above the so called esprit de corps, is the instinct of self preservation which could not
but be fully aroused by such stirring incidents too recent to be forgotten as had occurred
in this case, and which would counsel prudence rather than rashness; secretiveness
rather than garrulity.

These confessions contain the statements that they were made freely and voluntarily
without any promise of immunity. That such was the case was corroborated by the
attesting witnesses whose credibility has not been successfully impeached.

We rule that the trial court did not err in admitting Exhibits C to C-76 of the prosecution.

2. The conspiracy between the accused

The contention of the appellants is that evidence is lacking of any supposed connivance
between the accused. Counsel emphasizes that in answer to the question in the
confession, "who asked you to join the riot," each of the accused answered, "Nobody."
The argument is then advanced that the appellants cannot be held criminally responsible
because of the so called psychology of crowds theory. In other words, it is claimed that
at the time of the commission of the crime the accused were mere automatons obeying
the insistent call of their companions and of their uniform. From both the negative failure
of evidence and the positive evidence, counsel could deduce the absence of conspiracy
between the accused.

The attorney-General answers the argument of counsel by saying that conspiracy under
section 5 of Act No. 292 is not an essential element of the crime of sedition. In this law
officer for the people may be on solid ground. However, this may be, there is a broader
conception of the case which reaches the same result.

It is a primary rule that if two or more persons combine to perform a criminal act, each
is responsible for all the acts of the other done in furtherance of the common design; and
" the result is the same if the act is divided into parts and each person proceed with his
part unaided." (U. S. vs Maza [1905], 5 Phils., 346; U. S. vs. Remegio [1918] 37 Phil.,
599; decision of supreme court of Spain of September 29, 1883; People vs. Mather
[1830], 4 Wendell, 229.)

Conspiracies are generally proved by a number of indefinite acts, conditions, and

circumstances which vary according to the purposes to be accomplished. It be proved

18
that the defendants pursued by their acts the same object, one performing one part and
another part of the same, so as to complete it, with a view to the attainment of that same
object, one will be justified in the conclusion that they were engaged in a conspiracy to
effect that object. (5 R. C. L., 1088.) Applied to the facts before us, it is incontestable
that all of the defendants were imbued with the same purpose, which was to avenge
themselves on the police force of the city of Manila. A common feeling of resentment
animated all. A common plan evolved from their military training was followed.

The effort to lead the court into the realm of psychology and metaphysics is unavailing
in the face of actualities. The existence of a joint assent may be reasonably inferred from
the facts proved. Not along are the men who fired the fatal shots responsible, not along
are the men who admit firing their carbines responsible, but all, having united to further
a common design of hate and vengeance, are responsible for the legal consequences
therefor.

We rule that the trail court did not err in declaring that there a c conspiracy between the
accused.

3. The conviction of the accused of a violation of the Treason and Sediton Law

Sedition, in its more general sense, is the raising of commotions or disturbances in the
State. The Philippine law on the subject (Act No. 292) makes all persons guilty of sedition
who rise publicly and tumultuously in order to obtain by force or outside of legal methods
any one of vie objects, including that of inflicting any act of hate or revenge upon the
person or property of any official or agent of the Insular Government or of Provincial or
Municipal Government. The trial court found that the crime of sedition, as defined and
punished by the law, had been committed, and we believe that such finding is correct.

Counsel's contention that in order for there to be a violation of subdivision 3 of section 5

of Act No. 292 it is and necessary that the offender should be a private citizen and the
offended party a public functionary, and that what really happened in this instance was
a fight between two armed bodies of the Philippine Government, is absolutely without
foundation. Subdivison 3 of section 5 of the Treason and Sedition Law makes no
distinction between the persons to which it applies. In one scene there was a fights
between two armed bodies of the Philippine Government, but it was an unequal fight
brought on by the actions of the accused.

We rule that the trial court did not err in convicting the accused of the violation of section
5, paragraph 3, of Act No. 292 of the Philippine Commission.

JUDGEMENT

The Treason and Sedition Law provides as a penalty for any person guilty of sedition as
defined in section 5 of the law, punishment by fine of not exceeding P10,000 or by
imprisonment not exceeding ten years, or both. In this connection, it will be recalled that
the court sentenced each of the private soldiers Salvador Gregorio, Juan Noromor,
Patricio Bello, Nemesio Deceña, Baldomero Rodriguez, P. E. Vallado, Pedro Layola, Felix
Liron (Cenon), Dionisio Verdadero, Lorenzo Tumboc, Casiano Guinto, Victor Atuel,
Venancio Mira, Benigno Tagavilla, Masaway, Quintin Desierto, Teofilo Llana, Timoteo
Opermaria, Maximo Perlas, Cornelio Elizaga, Roberto Palabay, Roque Ebol, Benito Garcia,
Honorio Bautista, Crisanto Salgo, Francisco Lusano, Marcelino Silos, Nicanor Perlas,
Patricio Rubio, Mariano Aragon, Silvino Ayngco, Guillermo Inis, Julian Andaya, Crispin
Mesalucha, Prudencio Tasis, Silvino Bacani, Petronilo Antonio, Domingo Peroche,
Florentino Jacob, Paciano Caña, Domingo Canapi, Arcadio San Pedro, Daniel Coralde,

19
Nemesio Camas, Luis Borja, Severino Elefane, Vicente Tabien, Marcos Marquez, Victorino
Merto, Bernabe Sison, Eusebio Cerrudo, Julian Acantilado, Ignacio Lechoncito, Pascual
Dionio, Marcial Pelicia, Rafael Nafrada, Zacarias Bayle, Cipriano Lizardo, Ildefonso de la
Cruz, Juan Miranda, Graciano Zapata, Felisardo Favinal, Gaspar Andrade, Felix Lamsing,
and Vicente Casimiro, to suffer imprisonment for ten years, and to pay one seventy-
seventh part of the costs; the private Francisco Garcia, who sawed the bars of the window
through which the defendants passed from Santa Lucia Barracks and each of the
corporals E. E. Agbulos, Francisco Ingles, Clemente Manigdeg, Juan Abarquez, Pedro V.
Mateo, Juan Regalado, Hilario Hibalar and Genaro Elayda, to suffer imprisonment for ten
years and to pay a fine of P5,000 and one seventy-seventy of the costs; and each of the
sergeants Graciano L. Cabrera, Pascual Magno, and Bonifacio Eugenio, to suffer
imprisonment for ten years and to pay a fine of P10,000 and one seventy-seventy of the
costs. The trial judge appears to have made a reasonable exercise of the discretion which
the law reposes in him.

We cannot bring to a close this disagreeable duty without making our own the pertinent
observations found in the decision of the trial court in this case. Therein, along toward
the closed of his learned opinion, Judge Harvey said:

Rarely in the history of criminality in this country has there been registered a crime
so villainous as that committed by these defendants. The court is only concerned
in this case with crime of sedition. The maximum penalty prescribed by Act No.
292, imprisonment for ten year and a fine P10,000, is not really commensurate
with the enormity of the offense. Impelled by hatred, employing their knowledge
of military sciences which is worthy of a better cause, and in disregard of the
consequences to themselves and their innocent loved ones, and using the means
furnished to them by the Government for the protection of life and property, they
sought by force and violence and outside of legal methods to avenge a fancied
wrong by an armed and tumultuous attack upon officials and agents of the
government of the city of Manila.

Although in view of the sentence which is being handed down in the murder case,
affecting these same defendants and appellants, it would seem to be a useless formality
to impose penalties in this case, yet it is obviously our duty to render judgement appealed
from, with one seventy-seventh of the costs of this instance against each appellant. So
ordered.

Araullo, C.J. Johnson, Street, Avanceña, Villamor, Ostrand, Johns and Romualdez, JJ.,
concur.

20
Article 142

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-21049 December 22, 1923

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
ISAAC PEREZ, defendant-appellant.

Mario Guariña for appellant.

Attorney-General Villa Real for appellee.

MALCOLM, J.:

Isaac Perez, the municipal secretary of Pilar, Sorsogon, and Fortunato Lodovice, a citizen
of that municipality, happening to meet on the morning of April 1, 1992, in
the presidencia of Pilar, they became engaged in a discussion regarding the
administration of Governor-General Wood, which resulted in Perez shouting a number of
times: "The Filipinos, like myself, must use bolos for cutting off Wood's head for having
recommended a bad thing for the Filipinos, for he has killed our independence." Charged
in the Court of First Instance of Sorsogon with a violation of article 256 of the Penal Code
having to do with contempt of ministers of the Crown or other persons in authority, and
convicted thereof, Perez has appealed the case to this court. The question presented for
decision is, What crime, if any, did the accused commit?

A logical point of departure is the information presented in this case. It reads in translation
as follows:

That on or about April 1, 1922, in the municipality of Pilar, Province of Sorsogon,

Philippine Islands, the said accused, Isaac Perez, while holding a discussion with
several persons on political matters, did criminally, unlawfully and wilfully and with
knowledge that Honorable Leonard Wood was the Governor-General of the
Philippine Islands and in the discharge of his functions as such authority, insult by
word, without his presence, said Governor-General, uttering in a loud voice and in
the presence of many persons, and in a public place, the following phrases: "Asin
an mangña filipinos na caparejo co, maninigong gumamit nin sundang asin haleon
an payo ni Wood huli can saiyang recomendacion sa pag raot con Filipinas," which
in English, is as follows: "And the Filipinos, like myself, must use bolos for cutting
off Wood's head for having recommended a bad thing for the Philippines.

Contrary to article 256 of the Penal Code.

At the trial of the case, two witnesses were called on behalf of the prosecution and three
witnesses on behalf of the defense. According to the first witness for the Government,
Juan Lumbao, the municipal president of Pilar, what Perez said on the occasion in
question was this:

21
"The Filipinos, like myself, should get a bolo and cut off the head of Governor-General
Wood, because he has recommended a bad administration in these Islands and has not
made a good recommendation; on the contrary, he has assassinated the independence
of the Philippines and for this reason, we have not obtained independence and the head
of that Governor-General must be cut off." Higinio J. Angustia, justice of the peace of
Pilar, in a written statement, and Gregorio Cresencio, another witness for the prosecution,
corroborated the testimony of the first witness. Cresencio understood that Perez invited
the Filipinos including himself to get their bolos and cut off the head of Governor-General
Wood and throw it into the sea.

The witnesses for the defense did not deny that an altercation took place on the morning
of April 1, 1922, in which the accused participated. But they endeavored to explain that
the discussion was between Perez and one Severo Madrid, the latter maintaining that the
fault was due to the Nacionalista Party, while Perez argued that the Governor-General
was to blame. The accused testified that the discussion was held in a peaceful manner,
and that what he wished to say was that the Governor-General should be removed and
substituted by another. On the witness stand, he stated that his words were the following:
"We are but blaming the Nacionalista Party which is in power but do not take into account
that above the representatives there is Governor-General Wood who controls everything,
and I told him that the day on which the Democrats may kill that Governor-General, then
we, the Filipinos will install the government we like whether you Democratas want to pay
or not to pay taxes."

The trial judge found as a fact, and we think with abundant reason, that it had been
proved beyond a reasonable doubt that the accused made use of the language stated in
the beginning of this decision and set out in the information. The question of fact thus
settled, the question of law recurs as to the crime of which the accused should be
convicted.

It should be recalled that the fiscal named, in the information, article 256 of the Penal
Code as having been infringed and the trial judge so found in his decision. The first error
assigned by counsel for the appellant is addressed to this conclusion of the lower court
and is to the effect that article 256 of the Penal Code is no longer in force.

In the case of United States vs. Helbig ([1920], R. G. No. 14705 1), the accused was
charged with having uttered the following language: "To hell with the President of the
United States and his proclamation!" Mr. Helbig was prosecuted under article 256, and
though the case was eventually sent back to the court of origin for a new trial, the
appellate court by majority vote held as a question of law that article 256 is still in force.

In the case of People vs. Perfecto ([1922], 43 Phil., 887), the accused was charged with
having published an article reflecting on the Philippine Senate and its members in violation
of article 256 of the Penal Code. In this court, Mr. Perfecto was acquitted by unanimous
vote, with three members of the court holding that article 256 was abrogated completely
by the change from Spanish to American sovereignty over the Philippines, and with six
members holding that the Libel Law had the effect of repealing so much of article 256 as
relates to written defamation, abuse, or insult, and that under the information and the
facts, the defendant was neither guilty of a violation of article 256 of the Penal Code nor
of the libel Law. In the course of the main opinion in the Perfecto case, is found this
significant sentence: "Act No. 292 of the Philippine Commission, the Treason and Sedition
Law, may also have affected article 256, but as to this point, it is not necessary to make
a pronouncement."

22
It may therefore be taken as settled doctrine, to which those of us who retain a contrary
opinion must bow with as good grace as we can muster, that until otherwise decided by
higher authority, so much of article 256 of the Penal Code as does not relate to ministers
of the Crown or to writings coming under the Libel Law, exist and must be enforced. To
which proposition, can properly be appended a corollary, namely: Seditious words,
speeches, or libels, constitute a violation of Act No. 292, the Treason and Sedition Law,
and to this extent, both the Penal Code and the Libel Law are modified.

Accepting the above statements relative to the continuance and status of article 256 of
the Penal Code, it is our opinion that the law infringed in this instance is not this article
but rather a portion of the Treason and Sedition Law. In other words, as will later appear,
we think that the words of the accused did not so much tend to defame, abuse, or insult,
a person in authority, as they did to raise a disturbance in the community.

In criminal law, there are a variety of offenses which are not directed primarily against
individuals, but rather against the existence of the State, the authority of the Government,
or the general public peace. The offenses created and defined in Act No. 292 are distinctly
of this character. Among them is sedition, which is the raising of commotions or
disturbances in the State. It is a revolt against legitimate authority. Though the ultimate
object of sedition is a violation of the public peace or at least such a course of measures
as evidently engenders it, yet it does not aim at direct and open violence against the
laws, or the subversion of the Constitution. (2 Bouvier's Law Dictionary, 974;
U.S. vs. Abad [1902], 1 Phil., 437; People vs. Cabrera [1922], 43 Phil., 64.)

It is of course fundamentally true that the provisions of Act No. 292 must not be
interpreted so as to abridge the freedom of speech and the right of the people peaceably
to assemble and petition the Government for redress of grievances. Criticism is permitted
to penetrate even to the foundations of Government. Criticism, no matter how severe,
on the Executive, the Legislature, and the Judiciary, is within the range of liberty of
speech, unless the intention and effect be seditious. But when the intention and effect of
the act is seditious, the constitutional guaranties of freedom of speech and press and of
assembly and petition must yield to punitive measures designed to maintain the prestige
of constituted authority, the supremacy of the constitution and the laws, and the
existence of the State. (III Wharton's Criminal Law, pp. 2127 et seq.; U.S. vs. Apurado
[1907], 7 Phil., 422; People vs. Perfecto, supra.)

Here, the person maligned by the accused is the Chief Executive of the Philippine Islands.
His official position, like the Presidency of the United States and other high offices, under
a democratic form of government, instead, of affording immunity from promiscuous
comment, seems rather to invite abusive attacks. But in this instance, the attack on the
Governor-General passes the furthest bounds of free speech was intended. There is a
seditious tendency in the words used, which could easily produce disaffection among the
people and a state of feeling incompatible with a disposition to remain loyal to the
Government and obedient to the laws.

The Governor-General is an executive official appointed by the President of the United

States by and with the advice and consent of the Senate of the United States, and holds
in his office at the pleasure of the President. The Organic Act vests supreme executive
power in the Governor-General to be exercised in accordance with law. The Governor-
General is the representative of executive civil authority in the Philippines and of the
sovereign power. A seditious attack on the Governor-General is an attack on the rights of
the Filipino people and on American sovereignty. (Concepcion vs. Paredes [1921], 42
Phil., 599; U.S. vs. Dorr [1903], 2 Phil., 332.)

23
Section 8 of Act No. 292 of the Philippine Commission, as amended by Act No. 1692,
appears to have been placed on the statute books exactly to meet such a situation. This
section reads as follows:

Every person who shall utter seditious words or speeches, or who shall write,
publish or circulate scurrilous libels against the Government of the United States
or against the Government of the Philippine Islands, or who shall print, write,
publish utter or make any statement, or speech, or do any act which tends to
disturb or obstruct any lawful officer in executing his office or in performing his
duty, or which tends to instigate others to cabal or meet together for unlawful
purposes, or which suggests or incites rebellious conspiracies or which tends to
stir up the people against the lawful authorities, or which tends to disturb the
peace of the community or the safety or order of the Government, or who shall
knowingly conceal such evil practices from the constituted authorities, shall be
punished by a fine not exceeding two thousand dollars United States currency or
by imprisonment not exceeding two years, or both, in the discretion of the court.

In the words of the law, Perez has uttered seditious words. He has made a statement
and done an act which tended to instigate others to cabal or meet together for unlawful
purposes. He has made a statement and done an act which suggested and incited
rebellious conspiracies. He has made a statement and done an act which tended to stir
up the people against the lawful authorities. He has made a statement and done an act
which tended to disturb the peace of the community and the safety or order of the
Government. All of these various tendencies can be ascribed to the action of Perez and
may be characterized as penalized by section 8 of Act No. 292 as amended.

A judgment and sentence convicting the accused of a violation of section 8 of Act No.
292 as amended, is, in effect, responsive to, and based upon, the offense with which the
defendant is charged. The designation of the crime by the fiscal is not conclusive. The
crime of which the defendant stands charged is that described by the facts stated in the
information. In accordance with our settled rule, an accused may be found guilty and
convicted of a graver offense than that designated in the information, if such graver
offense is included or described in the body of the information, and is afterwards justified
by the proof presented during the trial. (Guevarra's Code of Criminal Procedure, p. 9; De
Joya's Code of Criminal Procedure, p. 9.)

The penalty meted out by the trial court falls within the limits provided by the Treason
and Sedition Law, and will, we think, sufficiently punish the accused.

That we have given more attention to this case than it deserves, may be possible. Our
course is justified when it is recalled that only last year, Mr. Chief Justice Taft of the
United States Supreme Court, in speaking of an outrageous libel on the Governor of the
Porto Rico, observed: "A reading of the two articles removes the slightest doubt that they
go far beyond the "exuberant expressions of meridional speech," to use the expression
of this court in a similar case in Gandia vs. Pettingill (222 U.S. , 452, 456). Indeed they
are so excessive and outrageous in their character that they suggest the query whether
their superlative vilification has not overleapt itself and become unconsciously humorous."
(Balzac vs. Porto Rico [1922], 258 U.S., 298.) While our own sense of humor is not
entirely blunted, we nevertheless entertain the conviction that the courts should be the
first to stamp out the embers of insurrection. The fugitive flame of disloyalty, lighted by
an irresponsible individual, must be dealt with firmly before it endangers the general
public peace.

24
The result is to agree with the trial Judge in his findings of fact, and on these facts to
convict the accused of a violation of section 8 of Act No. 292 as amended. With the
modification thus indicated, judgment is affirmed, it being understood that, in accordance
with the sentence of the lower court, the defendant and appellant shall suffer 2 months
and 1 day's imprisonment and pay the costs. So ordered.

Street, Ostrand, Johns and Romualdez, JJ., concur.

Separate Opinions

JOHNSON, J., concurring:

I agree with the opinion of Mr. Justice Villamor. I cannot give assent to a doctrine which
permits a complaint to be presented upon one theory and the trial to be carried through
upon that theory and then to condemn the defendant upon a theory which he nor the
prosecution ever dreamed of.

VILLAMOR, J., concurring and dissenting:

I agree in that the accused should be sentenced to suffer two months and one day
of arresto mayor with costs, as imposed by the court a quo, under the provisions of article
256 of the Penal Code, but not under section 8 of Act No. 292. The accused, in my
opinion, should not be convicted of the crime of sedition because there is no allegation
in the complaint nor proof in the record, showing that when the accused uttered the
words that gave rise to these proceedings, he had the intention of inciting others to
gather for an illicit purpose, or to incite any conspiracy or rebellion, or to disturb the
peace of the community or the safety and order of the Government which are the acts
penalized by section 8 of Act No. 292. On the contrary, having due regard to the place
and time when the discussion arose between Lodovice and the accused, the political
rivalry between them and the difference of opinion that they entertained regarding the
administration of the Governor-General, the Honorable Leonard Wood, it would appear
evident that the accused expressed himself in biting and poignant language, unbecoming
and improper of a law abiding citizen and highly detrimental and insulting to the authority
of the Governor-General which is the thing prohibited and punished by article 256 of the
Penal Code.

Avanceña and Johnson, JJ., concurs.

25
G.R. No. L-2535 August 9, 1906

THE UNITED STATES,Plaintiff-Appellee, vs. JUAN ABAD,Defendant-Appellant.

V. Ilustre, for appellant.

Attorney-General Wilfley, for appellee.

WILLARD, J.:

The defendant was convicted in the Court of First Instance of the Province of Batangas
of the violation of section 8 of Act No. 292, the law defining and punishing treason and
sedition. He is the author of the Tagalog drama "Tanikalang Guinto" (The Chain of Gold).
This drama he produced in a theater at Batangas on the 10th day of May, 1903. The
Government claimed and the court below held that the drama was
seditious.chanroblesvirtualawlibrary chanrobles virtual law library

The story of the play is as follows: The heroine, Liwanag, is promised in marriage to the
hero, K. Ulayaw. Maimbot, who has given consent to this promise of marriage. During
the progress of the play he withdraws his consent, forbids K. Ulayaw to come to his
house, and by Liwanag to abandon her lover. He takes into his employ Nagtapon, a
brother of K. Ulayaw, whom he directs to act as a spy upon the movements of Ulayaw.
Another of the characters in the play is Dalita, the mother of K. Ulayaw and Nagtapon.
Nagtapon disowns her, and she dies in the first act. The gifts of Maimbot to Liwanag not
producing any result, her resorts to harsher measures, binds her to a tree, and places
Nagtapon as a watch over her. K. Ulayaw, searching for her, finds her in this condition,
and is killed by Nagtapon. The play ends with the translation of Liwanag to the
heavens.chanroblesvirtualawlibrary chanrobles virtual law library

This play on its face seems to be an ordinary love story with an unfortunate termination.
It is claimed by the Government, however, that it was intended to represent the relations
between the Government of the United States and the Philippines, the claim being that
Maimbot represents the United States, Nagtapon those Filipinos friendly to the United
States, K. Ulayaw the Filipinos who desire independence, Liwanag the Philippines, and
Dalita the mother country . It is said that this significance can be given to the play by
reason of the meaning of the names of the characters. The word "Liwanag" in Tagalog
means "light" or dawn of day" ( luz o aurora); "Dalita," punishment, grief;" "K. Ulayaw,"
"lover" ( amante); "Nagtapon," "spendthrift, renegade" (prodigo o renegado);
"Maimbot," "ambitious or avaricious" (ambicioso o avaro). It is not apparent, however,
how the seditious character of the play can be derived from the names of the
characters.chanroblesvirtualawlibrary chanrobles virtual law library

In the play itself there are but few passages which in any way indicate that the play is
anything more than it purports to be upon its face. The word "independence" or
"independent" occurs five times in the course of the play, but always in connection with
the marriage of Liwanag and K. Ulayaw, and with their maintenance of a house separate
and apart from the house of her uncle. The word "pueblo" occurs three or four time in
play, and there is a scene in which Maimbot and Nagtapon are becoming intoxicated, and
which Maimbot and Nagtapon are becoming intoxicated, and in which the former says
that they must accustom themselves to this and sleep in the
streets.chanroblesvirtualawlibrary chanrobles virtual law library

This is practically all there is in the play which tends to support the theory of the
Government, and we think it is every far from doing so. It is possible to give to almost
any play a different meaning than that intended by the author. To the writtings of the

26
greatest dramatists have been given meanings of which the author never
thought.chanroblesvirtualawlibrary chanrobles virtual law library

That the public who witnessed this performance at the theater in Batangas did not
understand the play as meaning what the Government claims it means is apparent from
the testimony of some of the Government's own witnesses. Jose Villanueva, one of those
witnesses, testified as follows on cross-examination:

Q. Could the audience understand the symbolism used by the author to represent his
play? chanrobles virtual law library

A. I can not say exactly, but I think that only a few understood the purpose of the
play.

Alfredo Cantos, another of the Government's witnesses, testified as follows:

Q. What political effects was produced by the drama among the audience? chanrobles
virtual law library

A. I heard but few of the spectators comment upon the symbolical references to the
relation of the United States with the Philippines.chanroblesvirtualawlibrary chanrobles
virtual law library

Q. What was your impression as to the purpose of the drama considering the class
of people who attend the performance? chanrobles virtual law library

A. Many of them were glad to see it, but I can not tell whether it was because of the
eloquent and poetical phrases used or because they were aware of the fact that the play
dealt with the relations between the Philippines and the United States.

Simeon Luz, another witness for the Government, and the governor of the province,
testified as follows:

Q. Could the public understand the meaning of the drama? chanrobles virtual law
library

A. The intelligent part of the audience probably understood it, but I do think the
masses - that is, the great majority of the spectators - understood the same, unless the
character of the play were explained to them.chanroblesvirtualawlibrary chanrobles
virtual law library

Q. You, as the highest official of the province - did you have an opportunity to judge
of the effect produced by the play upon the audience? chanrobles virtual law library

A. I did not, because I did not see the drama myself. All I can say is that apparently
it was very much applauded, although I can not tell whether it was applauded because
of its dramatic value or because of its real significance. In my opinion, I should say that
the drama in question is one of the best plays written in Tagalog.

It was proved at the trial that this drama, prior to its presentation at Batangas, had been
presented more than twenty times in different theaters of Manila, La Laguna, and Cavite,
the first of these representations commencing in October, 1902. The defendant, the
author, testified that after three representations in Manila, he had read in a newspapers
that an order had been issued by the public authorities requiring that all plays, before
their presentation, should be submitted for examination to the division of information. He

27
thereupon took his play to the office of John F. Green and left if there for examination.
It was returned to him the next day, with authority to present it. There was no evidence
to contradict this statement, although there is some evidence to show that one day was
not a sufficient time for a proper examination of the work. However it may be, it is
apparent that the play was not considered seditious by the authorities of
Manila.chanroblesvirtualawlibrary chanrobles virtual law library

An examination of the dramas which were considered in the cases of the United States
vs. Tolentino, 1 No. 1451, decided March 6, 1906, and of the United States vs. Cruz, 2 No.
2128, will show that anyone reading these dramas or seeing them presented could not
fail to understand their seditious tendencies, something which, according to the witnesses
of the Government in this case, a great majority of the spectators of this drama could not
see.chanroblesvirtualawlibrary chanrobles virtual law library

The judgment of the court below is reversed and the defendant acquitted, with the costs
of both instance de oficio. At the expiration of ten days judgment should be entered in
accordance with this decision and the case remanded to the court below for execution of
said judgment. So ordered.chanroblesvirtualawlibrary chanrobles virtual law library

Torres, Mapa, Carson and Tracey, JJ., concur.

28
ARTICLE 148
THIRD DIVISION

[G.R. No. 138553. June 30, 2005]

ENRIQUE TOTOY RIVERA Y DE GUZMAN, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

DECISION
GARCIA, J.:

Assailed and sought to be set aside in this petition for review on certiorari are the
October 16, 1998 decision[1] and April 5, 1999 resolution[2] of the Court of Appeals in CA-
G.R. CR No. 17284, which respectively affirmed in toto an earlier decision of the Regional
Trial Court of La Trinidad, Benguet convicting herein petitioner Enrique Totoy Rivera of
the crime of direct assault, and denied petitioners motion for reconsideration.
On May 6, 1993, in the Regional Trial Court at La Trinidad, Benguet an
information[3] for direct assault was filed against petitioner, allegedly committed, as
follows:

That on or about the 20th day of March, 1993, at Tomay, Shilan, Municipality of La
Trinidad, Province of Benguet, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, did then and there wilfully, unlawfully and feloniously
attack, employ force and seriously resist one Lt. EDWARD M. LEYGO, knowing him to be
a policeman, by then and there challenging the latter to a fistfight and thereafter
grappling and hitting the said policeman on his face, thus injuring him in the process
while the latter was actually engaged in the performance of his official duties.

Contrary to law.

On arraignment, petitioner entered a plea of Not Guilty. Thereafter, trial ensued.

To prove its case, the prosecution presented in evidence the testimonies of the victim
himself, Lt. Edward Leygo, and the two alleged eyewitnesses to the incident, SPO1 Jose
Bangcado and Brenda Dup-et. For its part, the defense presented the petitioner himself
and one Alfredo Castro.
As summarized by the trial court and adopted by the Court of Appeals in the decision
herein assailed, the Peoples version[4] is, as follows:

On March 20, 1993 at around 8:00 oclock in the evening, Police Inspector Edward M.
Leygo, Deputy Chief of Police for Operation and Patrol of the La Trinidad Police Station,
La Trinidad, Benguet and SPO1 Joseph Basquial were conducting routinary patrol on
board a police car somewhere in Shilan, La Trinidad, Benguet when they came upon a
truck unloading sacks of chicken dung at the stall of accused Enrique Totoy Rivera which
was located along the Halsema Highway at Shilan, La Trinidad, Benguet. Inspector Leygo
advised the driver to stop unloading the manure as it violates La Trinidad Municipal
Ordinance No. I-91 (Exhibit C) which prohibits, among others, the loading and unloading
of chicken manure along the sidewalks or road shoulders or within 15 meters from the
center of the Halsema Highway located at La Trinidad, Benguet. The driver complied with

29
the police directive. The policemen then escorted the truck back to Poblacion, La Trinidad,
Benguet and proceeded to the police headquarters.

Not long after, SPOI Jose Bangcado and SPOI Rivera Dayap, members of the La Trinidad
Police under Inspector Leygo were conducting patrol aboard a police car somewhere at
Km. 6, La Trinidad, Benguet when they observed a truck loaded with chicken dung
proceeding towards Shilan, La Trinidad, Benguet. Having in mind the instructions of La
Trinidad Mayor Edna C. Tabanda and their Commanding Officer Inspector Leygo to
Implement Ordinance No. I-91, the two policemen followed and stopped the truck at
Cruz, La Trinidad, Benguet. Immediately they called Inspector Leygo on the radio and
informed him that they stopped a truck carrying chicken dung. Inspector Leygo ordered
them to restrain the truck, as he would be proceeding to the area.

Knowing that the truck being restrained by the two policemen was the same truck which
they had escorted earlier from Shilan, La Trinidad, Benguet, Inspector Leygo felt ignored
and insulted. He immediately called SPO4 Justino Tiwtiwa, SPO1 Baldwin Ngolab and
SPO1 Joseph Basquial and the group sped to Cruz, La Trinidad, Benguet.

Meanwhile, back at Cruz, La Trinidad, Benguet, the accused arrived before the group of
Inspector Leygo did and ordered the driver not to obey the policemen but instead obey
him, as he (accused) was the boss. The truck driver followed the accuseds order and
drove the truck towards Shilan, La Trinidad, Benguet with the accused following closely
behind in his vehicle.

Inspector Leygo and his group arrived in time to see the truck pulling away and so they
gave chase. The police were able to overtake and stop the truck at Dengsi, Tomay, La
Trinidad, Benguet. Inspector Leygo confronted the truck driver and asked him why he
still insisted on proceeding to Shilan to unload chicken manure despite the fact that he
was ordered to go back earlier in the evening. The truck driver stated that he was just
following the orders of the accused. Immediately, Inspector Leygo turned around to see
the accused who had at that time alighted from his vehicle behind the truck. Inspector
Leygo asked the accused why he insisted on defying the ban on the unloading and loading
of chicken manure. Instead of answering however, the accused pointed a finger on the
policeman and uttered words like Babalian kita ng buto (Ill break your bones). Ilalampaso
kita (Ill scrub you). Pulis lang kayo (you are only policemen) and other unsavory and
insulting words. Inspector Leygo who was a little bit angry warned the accused to stop
uttering further insulting words and cautioned him to take it easy and then informed him
that he was being arrested for violation of the chicken dung ordinance. The accused
removed his jacket, placed it inside the vehicle, assumed a fighting stance and challenged
the policeman. Inspector Leygo then approached the accused and warned him anew that
he was being arrested. The accused responded by punching Inspector Leygo on his face,
particularly on his lip. The two then grappled as Inspector Leygo tried to hold the accused.
Finally, with the help of Policemen Dayap and Bongcado, the accused was subdued. The
accused was then pushed into one of the police cars but he resisted until Alfredo Castro,
one of the chicken dung dealers in the area, boarded the police car to accompany him.

The accused was brought to the police headquarters where Inspector Leygo immediately
called Mayor Tabanda who arrived at about 10:00 oclock that same evening. She
confronted the two protagonists and at the same time admonished the accused for
violating Ordinance No. I-91. Mayor Tabanda then accompanied the accused and
Inspector Leygo to the Benguet General Hospital where both were examined by Dr.
Antonio T. Carino. In the medico-legal certificate (Exhibit A) of Inspector Leygo, his injury
described as contusion with 0.5 laceration, upper lip, left side with healing period from 5
to 7 days. Subsequently, this present case was filed against the accused.

30
 Reproduced from the same decision of the appellate court, the defenses
version[5] runs:

At about 8:00 oclock in the evening of March 20, 1993, while the accused was at the
Trading Post at Km. 5, La Trinidad, Benguet, the driver reported to him that he was
prevented by the police from unloading chicken manure at Shilan, La Trinidad, Benguet.
The accused reminded the driver that he should have brought the chicken manure to
Acop, Tublay, Benguet where dealers sell it when prevented from unloading within the
municipality of La Trinidad, Benguet. As it would be more expensive to return the chicken
dung to Batangas where it came from, the accused told the driver to bring the chicken
dung to Acop, Tublay, Benguet. The driver expressed his fear that the police might stop
him along the way and so the accused ordered the driver to proceed and gave him the
assurance that he (accused) would follow later.

The truck then proceeded as instructed and the accused following after a short while.
Arriving at Cruz, La Trinidad, Benguet, the accused noticed that the truck was stopped at
the side of the road while a police vehicle and three policemen were across the road.
Thinking that the policemen were there trying to extort money from the driver, the
accused told the truck driver to proceed. The truck driver complied and the accused tailed
along.

When the truck and the accused reached Dengsi, Tomay, La Trinidad, Benguet, he heard
a police siren from behind. Immediately, a police vehicle overtook the truck, another
police vehicle was running along side the accuseds vehicle and a third police vehicle was
right behind them. Thus, the truck and the accused had no recourse but to stop.

Inspector Leygo alighted from one of the police vehicles and angrily uttered so many
words at the accused. The policeman then held the collar of accuseds jacket and forced
the latter to get out of his vehicle while shouting Ang tigas ng ulo mo. Sige, bumunot ka.
(You are very stubborn. Go ahead, draw your gun.) The accused explained that he had
no gun to draw while removing his jacket and raising his hands to show that there was
no gun on his body. Inspector Leygo then held the left hand of the accused and tried to
put handcuffs on him. The accused tried to resist, pleading that he had no fault and at
the same time asking what infraction of law he committed. Inspector Leygo answered by
uttering insulting words and pointing his left forefinger on the accuseds face while his
right hand was poking a gun on the accused. The accused noticed that the policeman
smelled of liquor.

A crowd started to gather around the scene. Sensing that the onlookers were on his side,
the accused stated that he was going to get his camera inside his vehicle. As he was
opening the door, Inspector Leygo suddenly slapped and boxed him in the stomach
causing the accused to feel dizzy. This assault weakened him and so he did not resist
when the police pushed him inside the police vehicle. Inspector Leygo then ordered his
men to bring the accused to the police headquarters. The accused recognized Alfredo
Castro among the onlookers and because he (accused) knew him to be one of the chicken
dung dealers, asked him (Castro) to accompany him to the police headquarters for fear
that something might happen.

At the police station, the accused suggested that Inspector Leygo should undergo medical
examination to determine if the policeman was positive of alcoholic breath. The accused,
however, was examined ahead and was issued a medical certificate (Exhibit 4) which
described his injury as erythema, lip left side face and contusion-midepigastric area. The
healing period is from 3 to 5 days. With him sustaining this injury, the accused now
wonders why this charge was filed against him.

31
 After weighing the parties respective versions of the incident, the trial court found
that of the People more credible. Accordingly, in its decision of April 22, 1994,[6] it
convicted petitioner of the crime of direct assault and sentenced him, thus:

WHEREFORE, the guilt of the accused having been proven beyond reasonable doubt, the
Court hereby renders judgment finding the accused Enrique Totoy Rivera GUILTY and
sentences him to suffer an indeterminate penalty of Four (4) Months and One (1) Day
of arresto mayor as MINIMUM to One (1) Year, One (1) Month and Eleven (11) Days
of prision correccional as MAXIMUM. He is likewise ordered to pay a fine of FIVE
HUNDRED PESOS (P500.00) and to pay the costs.

SO ORDERED.

With his motion for reconsideration having been denied by the trial court, petitioner
then went on appeal to the Court of Appeals whereat his recourse was docketed as CA-
G.R. CR No. 17284.
As stated at the outset hereof, the appellate court, in its decision [7] of October 16,
1998, affirmed in toto that of the trial court, to wit:

WHEREFORE, premises considered the decision appealed from is hereby affirmed in toto.

SO ORDERED,

and denied petitioners motion for reconsideration in its resolution of April 5, 1999.[8]
Hence, this petition for review on certiorari, submitting for our consideration the
principal issue of whether or not the Court of Appeals erred in affirming the judgment of
conviction rendered by the trial court.
We AFFIRM.
Direct assault, a crime against public order, may be committed in two ways: first, by
any person or persons who, without a public uprising, shall employ force or intimidation
for the attainment of any of the purposes enumerated in defining the crimes of rebellion
and sedition; and second, by any person or persons who, without a public uprising, shall
attack, employ force, or seriously intimidate or resist any person in authority or any of
his agents, while engaged in the performance of official duties, or on occasion of such
performance.[9]
Unquestionably, petitioners case falls under the second mode, which is the more
common form of assault and is aggravated when: (a) the assault is committed with a
weapon; or (b) when the offender is a public officer or employee; or (c) when the offender
lays hand upon a person in authority.[10]
In this recourse, petitioner argues that the appellate court, like the trial court, erred
in finding the testimony of complainant Lt. Leygo as clear and convincing. In an attempt
to impugn the latters credibility, petitioner contends that Lt. Leygo was mumbling while
giving his testimony, adding that the latter failed to identify which of his (petitioner) hands
was used and the precise distance between them when he punched the police lieutenant.
Admittedly, the record shows that the trial judge had to call Lt. Leygos attention for
testifying in such a low voice while on the witness box. Evidently, however, this did not
prevent the trial court into believing his testimony and from according it full faith and
credit. As it is, the witness was able to narrate and communicate the events that
transpired. Both the trial court and the Court of Appeals found the witness to have clearly
and adequately recounted how the incident happened, and we find no valid reason to
discredit the truth and veracity of his narration. We quote:

32
 Q Now, you said that Mr. Rivera faced you, when he faced you after he removed
his jacket what did you do?
A He positioned himself in a fighting stance, sir.
Q What do you mean in the fighting stance?
A He raised his fist. (Witness raised his hands with his clenched fist in front of
him).
Q How about you, what did you do when Mr. Rivera did that?
A I informed him that I am arresting him.
Q How far were you when he faced you at first?
A At first before I went near him is about 6 feet, sir.
Q Now, you said you approached him, is that correct?
A Yes, sir.
Q What did you do when you approached him?
A I told him that I am arresting him, sir.
Q And what was his response?
A He punched me at my face, sir.
Q You said he punched you, with what hand did Mr. Rivera punch you?
A I think it is his left hand, sir.[11]
Nor is Lt. Leygos credibility any less diminished by the circumstance that he failed to
categorically identify which of petitioners hands was used in punching him, and the exact
distance between them at that time. In all likelihood, this police officer was not expecting
a physical attack by the petitioner as he was just confronting the latter about the
prohibited unloading of chicken dung when petitioner laid hand on him. Under this
scenario, any person, like Lt. Leygo, cannot be expected to remember every single detail
of the incident with perfect recall.[12] For sure, far from adversely affecting Lt. Leygos
credibility, his failure to recall every minute detail of what transpired even fortifies it. We
have thus held that the failure of a witness to recall each and every detail of an occurrence
may even serve to strengthen rather than weaken his credibility because it erases any
suspicion of a coached or rehearsed testimony.[13] What is vital in Lt. Leygos testimony is
the fact that petitioner punched him on his face, about which he was steadfast and
unflinching.
In any event, this Court has said time and again that the assessment of the credibility
of witnesses and their testimonies is best undertaken by the trial court, what with reality
that it has the opportunity to observe the witnesses first-hand and to note their
demeanor, conduct, and attitude while testifying. Its findings on such matters, absent,
as here, of any arbitrariness or oversight of facts or circumstances of weight and
substance, are final and conclusive upon this Court and will not to be disturbed on
appeal.[14]
Petitioner also asserts that the testimonies of prosecution witnesses SPO1 Jose
Bangcado and Brenda Dup-et did not corroborate Lt. Leygos testimony. For, while SPO1
Bangcado merely testified during direct examination that petitioner punched Lt. Leygo,
this witness failed to reiterate said testimony during cross-examination. As regards
prosecution witness Brenda Dup-et, petitioner alleged that this witness never testified
that petitioner boxed Lt. Leygo.

33
 The imputed shortcomings in the testimonies of said two (2) prosecution witnesses
are not of their own making. A witness is supposed to confine his answers only to
questions propounded of him. Here, the defense counsel focused his line of questioning
on what the two protagonists were doing immediately prior to the punching incident, and
the answer correctly received by counsel was that both petitioner and Leygo were pushing
each other. There is no showing that counsel asked the witness as to what happened
after the pushing incident, as what the public prosecutor did of SPO1 Bangcado during
the latters direct examination, to wit:
PROS. BOTENGAN:
Q And what happened when they faced each other?
A Totoy Rivera was shouting at Lt. Leygo, sir.
Q What was he shouting?
A Bakit ninyo ako tinutugis, hindi ako criminal. Magbabayad kayo rito. Hindi ninyo
ako kaya, pulis lang kayo. And some other words but I cannot remember
them all, sir.
Q What else, if any, did he say?
COURT:
He said he cannot remember the other words.
WITNESS:
There is one thing more, sir. Ilalampaso kita. Babalian kita ng buto. And others,
sir.
PROS. BOTENGAN:
Q To whom was Mr. Rivera saying this?
A To Lt. Leygo, sir.
Q What was Mr. Rivera doing when he said these?
A He was pointing to the face of Lt. Leygo and they are becoming closer and
closer with each other, sir.
Q At that time, what was Lt. Leygo doing?
A What I saw was they were pushing to one another and after that Totoy Rivera
boxed Lt. Leygo, sir.
Q You said they were pushing one another, what part of their body were they
holding?
A At the breast, sir.
Q So each one was holding each others breast, is that what you mean?
A Yes, sir.
Q How long did they push each other?
A Seven to ten seconds, sir.
Q And was Lt. Leygo saying anything?
A He was trying to arrest Totoy Rivera, sir.
Q You said that he was trying to arrest Totoy Rivera, did you hear him if he says
anything?

34
 A He was convincing Totoy Rivera to go to the Municipal Hall, sir.
Q You said Totoy Rivera boxed Lt. Leygo, what part of the body of Lt. Leygo was
hit?
A His face, sir.
Q What part of his face?
A Here, sir. (Witness referring to his lower lip. Witness is holding his lower lip).
Q What happened when Lt. Leygo was hit?
A He ordered us to arrest Totoy Rivera, so were able to subdue Totoy Rivera and
placed him in the car, sir.[15]
But even assuming, in gratia argumente, that Lt. Leygos testimony was not
corroborated by the two (2) other prosecution witnesses during their cross-examinations,
still the day cannot be saved for the petitioner. Well-settled is the rule in this jurisdiction
that the testimony of a single witness, if straightforward and categorical, is sufficient to
convict. After all, witnesses are weighed, not numbered, and evidence are assessed in
terms of quality, not quantity. It is not uncommon, then, to reach a conclusion of guilt
on the basis of the testimony of a lone witness. Corroborative evidence is deemed
necessary only when there are reasons to warrant the suspicion that the witness falsified
the truth or that his observations had been inaccurate.[16]Unfortunately for the petitioner,
the trial court found nothing to indicate that Lt. Leygo falsified the truth or that his
observations had been inaccurate.
Petitioner theorizes that he could not have hit Lt. Leygo, what with the circumstance
that his co-policemen were present at the scene of the incident, and he finds it unusual
that none of them retaliated if he really hit Lt. Leygo.
We are not persuaded. The evidence on record clearly bears out that it was Lt. Leygo
who was attacked by petitioner, not the other way around, as petitioner would want us
to believe. Both the witnesses for the prosecution and the defense are one in saying that
it was only petitioner who was in confrontation with Lt. Leygo. Evidently, petitioners anger
started to burst when the truck driver reported to him that Lt. Leygo prohibited the
unloading of the chicken dung and ordered him to return, such that when the same
delivery truck was again intercepted by Lt. Leygos group, petitioners anger was too much
for him to contain. We quote with approval what the trial court has said in its decision:

The accused, however, denies that he ever laid hands on the cop. But the bigger question
is, how then did the policeman sustain his injuries? It is highly improbable, if not absurd,
for the policeman to inflict it on himself. It is also very unlikely that his co-policemen
would punch him just to make it appear that the accused did it. The accused admits of
being at the place. He admits having been confronted by the policeman but he denies
that he ever lifted a finger against the policeman. Yet all the witnesses both for the
prosecution and the defense are in accord in saying that it was only the accused who was
in confrontation with the policeman. The only logical conclusion that can be derived from
this is that it is indeed the accused who punched the policeman. Evidence to be believed
must not only proceed from the mouth of the credible witness but it must be credible in
itself. No better test has yet been found to measure the value of the testimony of a
witness than its conformity to the knowledge and common experience of mankind (People
vs. Maspil, Jr., 186 SCRA 751).

That the other police officers did not retaliate is no basis for us to share petitioners
submission that Lt. Leygo was the aggressor. In the nature of things, they naturally
reacted the way they should, i.e. placed petitioner under arrest when ordered by Lt.
Leygo.

35
 Petitioner next contends that Lt. Leygo was not in the performance of his official
duties as a police officer and as Deputy Chief of Police for Operation and Patrol at the
time he was attacked.
Again, We disagree.
It is a matter of record that at the time of the assault, Lt. Leygo was engaged in the
actual performance of his official duties. He was wearing the designated police uniform
and was on board a police car conducting a routinary patrol when he first came upon the
truck unloading chicken manure. Because the unloading of chicken dung was a violation
of La Trinidad Municipal Ordinance No. 1-91, the lieutenant ordered the truck driver to
return from where he came, but petitioner, in defiance of such lawful order, commanded
the truck driver to return to Shilan, the place where the truck was first intercepted, and
on being informed that the same truck had returned, the lieutenant had every reason to
assume it did return for the purpose of unloading its cargo of chicken dung, thus stopped
it from doing so.
Under the circumstances, it simply defies reason to argue that Lt. Leygo was not in
the performance of his lawful duties as a police officer when the assault upon him was
perpetrated by the petitioner.
Nor are we impressed by petitioners submission that the prosecutions failure to
present the doctor, who examined Lt. Leygo, proved disastrous to the Peoples case,
arguing that the alleged injury of Lt. Leygo cannot be proved without the testimony of
the attending physician.
That Dr. Antonio T. Carino did not testify on the medical certificate he issued is of no
moment. If ever, the medical certificate is only corroborative in character and is not an
indispensable element of the crime of direct assault filed against petitioner. The
unequivocal piece of evidence against petitioner is no less Lt. Leygos credible and
consistent testimony that he was punched on his face by the petitioner.
Lastly, petitioner puts the Court of Appeals to task for sustaining the trial courts
observation that he exuded an aura of arrogance and defiance of authorities.
We have consistently ruled that the trial court judge is in the best of position to see
and observe the demeanor, actuation and countenance of a witness, matters which are
not normally expressed in the transcripts of his testimony. We see no reason, therefore,
to disturb the following observations of the trial court in its decision:

The demeanor of the accused on the witness stand also shows that he is the kind who is
impatient with authority. His manner of answering questions bespeaks of one who has
trouble abiding with authority. He portrayed a very aggressive manner and his answers
were always on the defensive as if he had every right in this world to do and say whatever
he wanted to. Over all, he exuded an aura of arrogance and defiance of authority.

In closing, let it be noted that the attention of this Court has not been called to of
any ulterior or improper motive on the part of the prosecution witnesses to falsely testify
against petitioner. Absence such a motive, the presumption is that they were not so
moved, and their testimonies are entitled to full faith and credit.[17]
WHEREFORE, the petition is hereby DENIED, and the assailed decision and resolution
of the Court of Appeals AFFIRMED in toto.
Costs against petitioner.
SO ORDERED.

36
EN BANC

[G.R. No. 153119. April 13, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. ANTONIO REYES y

MAGANO, appellant.

DECISION
CALLEJO, SR., J.:

Before us on automatic appeal is the Decision[1] of the Regional Trial Court of Sta.
Cruz, Laguna, Branch 28, convicting the appellant Antonio Reyes y Magano of robbery
with homicide and sentencing him to suffer the penalty of death.

The Indictment

The appellant was charged with robbery with homicide in an Information, the
accusatory portion of which reads:

That on or about June 11, 1998, in the municipality of Lumban, Province of Laguna, and
within the jurisdiction of this Honorable Court, the above-named accused, with intent to
gain, and while conveniently armed with a bolo, by means of violence against or
intimidation of person, did then and there willfully, unlawfully and feloniously take, steal
and carry away one (1) ladies wristwatch marked Rolex; one (1) gold bracelet; one (1)
gold ring with birthstone of Jade; one (1) Pass Book in the name of the victim/Aurora
Lagrada, in the total amount of P80,000.00, all belonging to Aurora Lagrada, to her
damage and prejudice, in the aforementioned amount, that by reason or on the occasion
of the said robbery accused with intent to kill and while conveniently armed with a bolo,
did then and there willfully, unlawfully and feloniously attack, assault and stab one
AURORA LAGRADA several times in the different parts of her body, which directly caused
her instantaneous death, to the damage and prejudice of her surviving heirs.

CONTRARY TO LAW.[2]

The appellant was arraigned, assisted by counsel, and entered a plea of not guilty.

The Case for the Prosecution[3]

Dr. Aurora Lagrada, a spinster of about seventy years old, lived alone in her two-
storey house located at General Luna Street, Barangay Balimbingan, Lumban,
Laguna. The doctor was the sole proprietor of the Neal Construction and Supplies located
at No. 90 General Luna Street, Lumban, Laguna.[4] The appellants house was about four
to five meters away from the doctors house. He lived with his mother and brother.
At around 11:00 p.m. on June 11, 1998, Barangay Captain William Magpantay
received a radio report from barangay kagawad that someone managed to gain entry
into the house of Lagrada, and that she had shouted for help. Magpantay, a barangay
councilman and a barangay tanod responded and proceeded to the house of the

37
doctor. When they knocked on the door, no one responded. The barangay captain then
proceeded to the Lumban Police Station and reported the matter to the policemen. SPO2
Maximo Gonzales and SPO1 Pedro Nacor, Jr. responded to the report and, accompanied
by Magpantay, proceeded to the house of Lagrada. [5]
When they arrived at the house, the policemen passed by the garage and opened
the door. They saw the bloodied Lagrada, naked from the waist up, sprawled sidewise
on the floor opposite the sink near the kitchen.[6] Near the cadaver was a bolo
(itak). Gonzales took custody of the bolo.[7] Magpantay noticed that Lagradas neighbors,
anxious to know what had happened, were in the vicinity. The appellant, however, was
nowhere to be found.[8]
Magpantay and the policemen went to the appellants house. The appellants mother
and brother informed them that the latter was in Barangay Concepcion.[9] Magpantay,
Barangay Chairman Floro Bulderon and the policemen proceeded to the place, but failed
to locate the appellant. They then returned to the Lumban Police Station where Noel
Saniste (Samonte) told them that the appellant was in the vicinity of the town plaza in
Sta. Cruz, Laguna.[10] In a mobile police car, the policemen and Magpantay rushed to the
place and saw the appellant in the town plaza on board a tricycle, apparently on his way
to the Kapalaran Bus Station in that town. The appellant was handcuffed and boarded in
the mobile police car. He was told that he was a suspect in the killing of Lagrada.[11] While
the car was on its way to Lumban, Gonzales ordered Magpantay to frisk the
appellant. Magpantay did so, and found the following: two watches - a Rolex and
Wittnauer in the right pocket of the appellants pants; bank passbook no. 164764 issued
by the Solid Bank under the name of Lagrada; a gold bracelet and a gold ring; and in the
appellants left pocket, the amount of P130.00. Magpantay turned over the articles and
money to Gonzales.[12]
The policemen proceeded to the house of the appellant where they found a pair of
slippers and the green-colored t-shirt which the appellant wore when he broke into
Lagradas house.[13] At the police station, Gonzales and Nacor, Jr. turned over the
appellant to SPO2 Benedicto del Mundo who was designated as the investigator-on-
case.[14] By then, it was about 1:30 a.m. of June 12, 1998. The incident was placed in
the police blotter.[15]
In the meantime, the appellant was bothered by his conscience and stated that he
wanted to execute an extrajudicial confession.[16] Del Mundo informed the appellant of
his right to be assisted by counsel of his own choice. He also asked the appellant if he
had any lawyer. The appellant replied that he had none, and asked Del Mundo to procure
a lawyer to assist him.Del Mundo managed to locate Atty. Wilfredo Paraiso, a practicing
lawyer in Lumban, Laguna, then President of the Integrated Bar of the Philippines, Laguna
Chapter, and a member of the Knights of Columbus. At that time, Atty. Paraiso was at
the patio of the Catholic church talking with fellow knights after participating in the
Independence Day parade.[17] Del Mundo informed Atty. Paraiso that policemen had just
arrested and detained the appellant, and that the latter had expressed his desire to
execute an extra-judicial confession for which the assistance of counsel was needed. Del
Mundo asked Atty. Paraiso to assist the appellant. The lawyer informed the appellant of
his constitutional rights, including his right to counsel, and told the appellant that he was
volunteering his services to assist him. The appellant agreed to be assisted by Atty.
Paraiso.[18]
Atty. Paraiso then explained to the appellant his constitutional right to remain silent;
that if he did not want to make any confession, it was his right to do so; and that any
admission he made in his confession may be used against him. The appellant told Atty.
Paraiso that he would proceed with his confession because his conscience bothered
him. Atty. Paraiso inquired from the appellant if he had been forced, coerced and
intimidated into agreeing to give a confession, or if somebody had offered to give him

38
any reward in consideration of any statement he would give to the investigator. The
appellant replied that he was not intimidated, coerced nor forced into giving a
confession.[19]
Del Mundo, nevertheless, enumerated and explained to the appellant his
constitutional rights before commencing with his investigation in the presence of Atty.
Paraiso.[20] After the investigation, Del Mundo showed the sworn statement to Atty.
Paraiso and the appellant. Atty. Paraiso explained the contents of the sworn statement
to the appellant. The latter then signed on top of his typewritten name on page 1 thereof,
on the left margin of page 2, and atop his typewritten name on page 3. Atty. Paraiso
followed suit. However, it being a holiday, there was no public officer available in the
municipal building before whom the appellant could swear to the truth of his
confession. Del Mundo requested Atty. Paraiso, being a notary public, to notarize the
sworn statement. Paraiso agreed and affixed his signature above his typewritten name
on page 3 thereof, as Notary Public.[21]
Pictures of the articles seized from the appellant were taken, including the bolo, his
green t-shirt and the pair of slippers. The appellant was made to stand beside a table on
top of which the said articles were placed and photographed.[22]
On June 15, 1998, Dr. Leoncia M. delos Reyes, performed an autopsy on the cadaver
of Lagrada and submitted her postmortem report which contained her findings, viz:

Autopsy Report June 12, 1998, 2:30 AM

Subject: Aurora Lagrada y Macabuhay, 74 years old, female, single, retired government
official who was found dead in her residence at Gen. Luna St., Brgy. Balimbingan,
Lumban, Laguna, on June 11, 1998.

Findings: Cadaver in a state of rigor mortis, in right lateral position, both hands and
arms clenched towards the chest. Both legs are flexed, tongue bitten and
slightly protruding, bleeding from the mouth with clots. Said cadaver
wearing bermuda short and blouse almost worn off exposing the upper half
of the body. Pool of (sic) around the body and floor.

External Findings:
1. Wound incised. 3x1 cms., superficial, submammary area, 3 cms. from the
midline through and through to the back (point of entrance).
2. Wound incised 2 cms. infra-scapular area, right. (point of exit).
3. Wound incised, 3 cms. neck, left, oozing of blood.
4. Hematoma, right neck.
Internal Findings:
No intra-thoracic nor intra-abdominal hemorrhage all internal organs intact.

Pelvic Exam:
Underwear intact, no signs of external violence, perineum intact and dry.

Cause of Death:
Hemorrhagic Shock.[23]

Dr. Delos Reyes also signed Lagradas Certificate of Death.[24]

Gonzales and Nacor, Jr. executed a Joint Affidavit on the incident.[25] Norma Quetulio
executed a sworn statement[26] in which she stated that her sister, Aurora Lagrada,
owned the ring, the bracelet, and the two watches which were confiscated from the
appellant, and that the said articles were worth P80,000.00.[27] She testified that before

39
Lagrada was killed, the latter was employed by the AMA Computer College, Sta. Cruz,
Laguna, as Professor 2, with a monthly salary of P2,000.00, later increased to P5,700.00
a month; and, being a retired public school teacher, she was also receiving a monthly
pension of P3,000.00 from the Social Security System. The victim was also the sole
proprietor of the Neal Construction and Supplies.[28]

The Case for the Appellant

The appellant denied any involvement in the killing of Lagrada and of robbing her of
money and pieces of jewelry.
The appellant testified that he was never investigated by Del Mundo. He did not hire
Atty. Wilfredo Paraiso as his counsel to assist him while being investigated by the
policemen. Del Mundo merely referred the lawyer to him.[29] The appellant claimed that
he had no conference with the lawyer before and after his custodial investigation. He
merely affixed his signature on a piece of paper with some writings on it when it was
presented to him. This was after the policemen threatened him at the station. The
signature above the typewritten name, Antonio Reyes, on the third page of the
statement[30] was not his signature. Contrary to the extrajudicial confession, he finished
third year in high school.
After trial, the court rendered judgment convicting the appellant of the crime
charged. The decretal portion of the decision reads:

WHEREFORE, IN THE LIGHT OF ALL THE FOREGOING CONSIDERATIONS, the Court finds
the accused ANTONIO REYES y MAGANO, GUILTY BEYOND REASONABLE DOUBT, as
PRINCIPAL of the offense of ROBBERY WITH HOMICIDE as alleged in the Information
and defined and punished under Art. 294, No. 1 of the Revised Penal Code, as amended
by the DEATH PENALTY LAW, and further taking into consideration against the accused
the aggravating circumstances of his commission of the offense in the dwelling of the
offended party without any provocation given by the latter and the complete disregard
of the respect due to the offended party on account of her age and sex and without any
mitigating circumstance that would offset the same, hereby sentences the accused to
suffer the SUPREME PENALTY OF DEATH and to pay the heirs of the deceased AURORA
LAGRADA as represented by Maria, Godofredo, Norma, Herminia, Edna and Magdalena,
all surnamed LAGRADA the sum of P50,000.00 as civil indemnity for the death of Aurora
Lagrada and P65,000.00 for funeral expenses or a total amount of P115,000.00 and to
pay the cost of the instant suit.

SO ORDERED.[31]

The appellant assails the decision of the trial court asserting that:
I

THE LOWER COURT ERRED IN NOT APPRECIATING THE DEFENSE INTERPOSED BY THE
ACCUSED-APPELLANT.

II

THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE THE STOLEN ITEMS

ALLEGEDLY SEIZED FROM THE ACCUSED-APPELLANT WHICH, AS THE RECORDS
DISCLOSE, WERE PRODUCTS OF AN ILLEGAL SEARCH.[32]

40
 The Court shall delve into and resolve the assignment of errors jointly, being
interrelated.
The appellant asserts that the extrajudicial confession[33] is inadmissible in evidence
because the signature above his typewritten name on page 3 thereof is a forgery. He
avers that he was forced by SPO2 Benedicto del Mundo and another policeman to sign a
blank page at the town plaza in the presence of Atty. Wilfredo Paraiso. According to him,
that blank page which he signed is now the first page of the extrajudicial
confession. Furthermore, there is a patent and utter dissimilarity between his genuine
signature on page 1 of the extrajudicial confession and his purported signature on page
3 thereof.
The appellant claims that SPO2 Benedicto del Mundo and Atty. Wilfredo Paraiso are
not even in accord as to the precise time when the appellant signed the said confession.
The appellant contends that Barangay Captain William Magpantay, SPO2 Maximo
Gonzales and SPO1 Pedro N. Nacor, Jr. seized the money and articles from him in the
mobile car and from his house without any search warrant therefor, when he was already
arrested by the policemen. As such, the articles are inadmissible in evidence. Given the
inadmissibility of the extrajudicial confession and the money and articles seized from him,
the prosecutor failed to prove his guilt beyond reasonable doubt for the crime charged.
For its part, the Office of the Solicitor General asserts that the appellant failed to
prove that the disputed signature is a forgery. Contrary to the appellants claim, the
signatures atop the typewritten name of the appellant on page 3 of his confession, and
on page 1 and 2 thereof, are similar. Furthermore, the warrantless seizure of the money
and articles from the appellant made by the barangay captain and the policemen was
permissible as an incident to the appellants lawful warrantless arrest.

The Courts Ruling

The Court rejects the appellants claim that his signature on page 3 of his extrajudicial
confession is a forgery and that he affixed his signature on a blank paper, which is now
on page 1 of the said confession.
The appellant was required to submit his counter-affidavit during the preliminary
investigation before the MTC of Lumban, Laguna, but he failed to do so. Furthermore, in
his Comment on the Formal Offer of Exhibits filed by the prosecution, the appellant did
not claim that he was made to sign a blank paper and that his signature on page 3 of the
extrajudicial confession was a forgery. The appellant made this claim for the first time,
only when he testified before the trial court. Forgery cannot be presumed; it must be
proved by clear, positive and convincing evidence. One who alleges forgery has the
burden of proving the same.[34] The appellant failed to discharge his burden.
The extrajudicial confession of the appellant was notarized by Atty. Wilfredo O.
Paraiso who certified that he had personally examined the appellant and that he was
satisfied that the latter had voluntarily executed the same. The notary publics certification
belies the appellants claim that he was forced by the police officers to affix his signature
on page 1 of his confession. Atty. Paraiso is an officer of the court. He is presumed to
have regularly performed his duties as such notary public. The presumption cannot be
overcome by the bare and uncorroborated claim of the appellant that the signature on
page 3 of his extrajudicial confession is a forgery. It is hard to believe that Atty. Paraiso
notarized the confession of the appellant at the town plaza without the appellant first
affixing his signatures, not only on the left margin of pages 1 and 2, but also atop his
typewritten name on page 3 thereof. We also note that the appellants counsel cross-
examined Atty. Paraiso, but failed to cross-examine the latter on the alleged dissimilarity

41
of the signatures on page 3 of the confession and those on the left margin of pages 1
and 2 thereof. Finally, the appellant himself had initialed the corrections of typographical
errors in his confession.[35]
In claiming that the signature atop his typewritten name on page 3 of the confession
is a forgery, the appellant relied solely on the alleged dissimilarity between his
signatures. In Causapin vs. Court of Appeals,[36] this Court held that an accurate
examination to determine forgery should dwell on both the similarities and dissimilarities
of the standard and questioned signatures. Professor Albert S. Osborn, a noted expert on
questioned documents, stated that in some measure, a forgery will be like the genuine
writing, and there is always bound to be some variation in the different samples of
genuine signatures of the same writer. He emphasized that the identification of a
handwriting, as to its genuineness or lack of genuineness, or of a continued writing as to
whether it was written by a certain writer, is based upon the fact that handwriting
embodies various qualities and dissimilarities which in combination are sufficiently
personal to serve as a basis of identification. These many attributes and qualities are of
varying degrees of force and evidence of identity, depending upon just what they are and
their nature.[37]
Professor Osborn also points out that one of the principal causes of errors in
determining whether the handwriting is genuine or forged, or in deciding whether a
particular handwriting was or was not written by a certain writer is the incompetence of
the observer who bases his conclusion entirely upon general appearance, or upon general
character of handwriting as a whole; basing conclusions on forms or designs of letters
alone; mistaking general characteristics of writing or individual characteristics and basing
conclusions thereon; failure to reason correctly regarding the observed characteristics he
sees the evidence but does not know what it means.[38]
He went on to emphasize, thus:

The process of identification, therefore, must include the determination of the extent,
kind and significance of this resemblance as well as of the variation. It then becomes
necessary to determine whether the variation is due to the operation of a different
personality, or is only the expected and inevitable variation found in the genuine writing
of the same writer. It is also necessary to decide whether the resemblance is the result
of a more or less skillful imitation, or is the habitual and characteristic resemblance which
naturally appears in a genuine writing. When these two questions are correctly answered
the whole problem of identification is solved.

It must also be kept in mind by one who is to identify handwriting correctly, that the
attributes and qualities of writing are much more than the mere outline or forms of the
letters. Writing becomes a nearly automatic and an almost unconscious act and has many
physical and psychological qualities outside of the mere forms of letters. The
consideration of a writing by all unskilled observers gives attention only to designs of
letters. If the general designs are correct the writing is considered genuine, or, on the
other hand, if they diverge in any way or any degree, the writing is thought to be a
forgery.

One of the most distinctive qualities of writing is that about it which, by its execution as
shown in its line quality, indicates whether it was freely and unconsciously written, or
whether it was written in a constrained, slow, and unnatural manner. Unconscious writing
is not necessarily skillfully written, but is written with a lack of attention to the act. If
such unconscious, careless, free writing embodies the significant form habits shown in
the genuine writing, this is conclusive proof of genuineness. It should, however, not be
overlooked that a forgery by one with more muscular skill than the writer of the writing

42
imitated may fail by showing a higher degree of skill than the genuine writing. As has
been said, One cannot write better than he can.

There often is in handwriting many of these inherent evidences of genuineness, or

evidences of lack of genuineness, that can be seen without comparison with any standard
writing whatever. Carelessness, freedom, and indications of unconsciousness of the
operation of writing, when they embody characteristic forms, are proofs of genuineness
in handwriting. The opposite conditions, undue care, attention to detail, hesitation,
indicating not lack of muscular control but attention to the process, and especially
delicate, unnecessary repairs and overwriting, all point to a lack of genuineness without
comparison with any genuine writing. A correct, scientific discussion of these points is
necessary in effective testimony and should also form the basis of argument on the
subject by the attorney.

In sum, therefore, the fact of forgery cannot be presumed simply because there are
dissimilarities between the standard and the questioned signature.
The discordance between the testimonies of Atty. Paraiso and that of SPO2 Benedicto
del Mundo as to the exact or precise time when the appellant signed his extrajudicial
confession is of minor and inconsequential importance. Both agree that the appellant
signed his extrajudicial confession in the morning of June 12, 1998.
The trial court correctly convicted the appellant of robbery with homicide defined and
penalized in Article 294, paragraph 1 of the Revised Penal Code, as amended by Republic
Act No. 7659, which reads:

ART. 294. Robbery with violence against or intimidation of persons Penalties. Any person
guilty of robbery with the use of violence against or any person shall suffer:

1. The penalty of reclusion perpetua to death, when by reason or on occasion of the

robbery, the crime of homicide shall have been committed, or when the robbery shall
have been accompanied by rape or intentional mutilation or arson.

To sustain a conviction of the accused for robbery with homicide, the prosecution was
burdened to prove the essential elements of the crime, viz:

(a) the taking of personal property with the use of violence or intimidation against a
person; (b) the property thus taken belongs to another; (c) the taking is characterized
by intent to gain or animus lucrandiand (d) on the occasion of the robbery or by reason
thereof, the crime of homicide, which is therein used in a generic sense, was
committed.[39]

The accused must be shown to have the principal purpose of committing robbery,
the homicide being committed either by reason of or on occasion of the robbery. [40] The
homicide may precede robbery or may occur thereafter. What is essential is that there is
a nexus, an intrinsic connection between the robbery and the killing. The latter may be
done prior to or subsequent to the former. However, the intent to commit robbery must
precede the taking of the victims life.[41] Furthermore, the constituted crimes of robbery
and homicide must be consummated.[42]
A homicide is considered as having been committed on the occasion or by reason of
the robbery when the motive of the offender in killing the victim is to deprive the latter
of his property, to eliminate an obstacle to the crime, to protect his possession of the
loot, to eliminate witnesses, to prevent his being apprehended or to insure his escape
from the scene of the crime.

43
 In this case, the prosecution adduced proof beyond reasonable doubt to establish the
guilt of the appellant. In his extrajudicial confession, the appellant stated that he barged
into the house of the victim to rob her, and that he stabbed the victim when she was
about to shout and because he was drunk. Thus:

T (27): May mga ipakikita ako sa iyo ditong mga alahas, dalawang relos na pangkamay
at pambabae, ang isa (1) ay may tatak na Rolex at ang isa (1) ay tatak Wittnauer, isang
(1) gintong pulseras; isang (1) gintong singsing na may batong kulay-berde at isang (1)
libreta de bangko o Passbook na kulay-pula, may Numero 164764 sa pangalan ni Aurora
Lagrada na Passbook ng Solid Bank (THIS INVESTIGATOR SHOWING TO THE
AFFIANT/SUSPECT ALL ITEMS MENTIONED PLACED ON THE TOP OF THE
INVESTIGATORS TABLE), ano ang masasabi mo dito?

S: Iyan na nga po ang mga ninakaw ko kina Aurora Lagrada.[43]

The appellant then took the victims money and personal belongings and fled from
the scene of the crime:

T (30): May ipakikita rin ako sa iyo ditong pera na halagang Isang Daan at Tatlumpung
Piso (P130.00) ang numero ng Isang Daan ay PK-125726; ang Numero ng Beinte Pesos
ay DS-554554 at ang Numero ng Sampung Piso ay BQ-936130 (THIS INVESTIGATOR IS
SHOWING TO THE AFFIANT/SUSPECT CASH MONEY WITH THE DENOMINATIONS AND
SERIAL NUMBERS STATED HERETO), ano ang masasabi mo dito?

S: Iyan na nga po ang perang nakuha ko sa ibabaw ng mesa sa ibaba ng bahay nina
Aurora Lagrada.

T(31): Kailan at saan ito nagyari?

S: Mga humigit-kumulang po sa alas 11:20 ng gabi, ika-11 ng Hunyo 1998 sa loob ng

bahay nina Aurora Lagrada, sa Gen. Luna St., Barangay Balimbingan, Lumban, Laguna.
Ang pagkakapatay ko po sa kanya ay doon sa ibaba ng bahay malapit sa kusina at ang
mga alahas naman po ay doon ko ninakaw sa loob ng isang kahong maliit na naroroon
naman sa itaas ng bahay ni Aurora Lagrada.[44]

The trial court sentenced the appellant to suffer the death penalty on its finding that
the crime was aggravated by the fact that it was committed in the victims dwelling and
in complete disregard of the victims sex and advanced age of seventy years old. According
to the Office of the Solicitor General, however, the imposable penalty should be reclusion
perpetua, because the foregoing aggravating circumstances were not alleged in the
Information.
The ruling of the trial court is not correct.
First. Robbery with homicide is essentially a felony against property.[45] The
aggravating circumstance of disregard of the victims age is applied only to crimes against
persons and honor.[46] The bare fact that the victim is a woman does not per se constitute
disregard of sex. For this circumstance to be properly considered, the prosecution must
adduce evidence that in the commission of the crime, the accused had particularly
intended to insult or commit disrespect to the sex of the victim.[47] In this case, the
appellant killed the victim because the latter started to shout. There was no intent to
insult nor commit disrespect to the victim on account of the latters sex.
Second. The fact that the crime was committed in the victims dwelling, without
provocation on the part of the latter, is aggravating in robbery with
homicide.[48] However, such circumstance was not alleged in the Information as

44
mandated by Section 8, Rule 110 of the Revised Rules of Criminal Procedure.[49] Although
the crime was committed before the effectivity of the Revised Rules of Criminal
Procedure, the said rule should be applied retroactively as it is favorable to the
appellant.[50]
The appellant failed to prove that any mitigating circumstance attended the
commission of the crime. Although he claimed that he was drunk when he gained entry
into the victims house, killed her and divested her of her properties, the appellant failed
to prove that his intoxication was not habitual or subsequent to the plan to commit the
felony charged.
There being no modifying circumstance to the crime, the appellant should be
sentenced to suffer reclusion perpetua, conformably to Article 63 of the Revised Penal
Code.
The trial court was correct in not awarding moral damages to the heirs of the
victim. The prosecution failed to present any of them to testify on the factual basis for
such circumstance.However, the heirs are entitled to exemplary damages
of P25,000.00,[51] in accordance with current jurisprudence.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Sta.
Cruz, Laguna, Branch 25, finding appellant Antonio Reyes y Magano guilty beyond
reasonable doubt of robbery with homicide under Article 294, paragraph 1 of the Revised
Penal Code, as amended by Republic Act No. 7659, is AFFIRMED with MODIFICATION in
that the appellant is sentenced to suffer reclusion perpetua and is ordered to
pay P25,000.00 to the heirs of the victim, as exemplary damages.
SO ORDERED.

45
FIRST DIVISION

[G.R. No. 5649. September 6, 1910. ]

THE UNITED STATES, Plaintiff-Appellee, v. ISAAC SAMONTE, Defendant-

Appellant.

Godofredo Reyes, for Appellant.

Attorney-General Villamor, for Appellee.

SYLLABUS

1. PEACE OFFICERS; RIGHT TO ARREST WITHOUT WARRANT. — Any officer charged

with the preservation of the public peace may arrest, without a warrant, any person who
is committing, or has committed, a breach of the peace in his presence. (3 Cyc., 881;
Carolina v. McAfee, 10 L.R.A., 607; Commonwealth v. Tobin, 11 Am. Rep., 375; People
v. Rounds, 35 N.W., 77; Douglas v. Barber, 28 Atl., 805.)

2. ID.; ID.; "IN THE PRESENCE OR WITHIN THE VIEW," CONSTRUED. — An offense is
committed in the presence or within the view of an officer, within the meaning of the rule
authorizing an arrest without a warrant, when the officer sees the offense, although at a
distance, or hears the disturbance created thereby and proceeds at once to the scene
thereof; or the offense is continuing, or has not been consummated, at the time the
arrest is made. (3 Cyc., 886; Ramsey v. State, 17 S.E., 613; Dilger v. Com., 11 S.W., 651;
State v. McAfee, 12 S.E., 435; State v. Williams, 15 S.E., 554; Hawkins v. Lutton, 70
N.W., 483.)

3. ID.; RESISTING AN OFFICE; ATTEMPT AGAINST THE AUTHORITIES. — Any person

who attacks the authorities of the Government, or their agents, or employs force against
them, or gravely intimidates them, or offers an equally grave resistance while they are
discharging the functions of their office or on the occasion thereof, is guilty of an attempt
against the authorities. (Art. 249, 250, Penal Code.)

DECISION

TRENT, J. :

The defendant, Isaac Samonte, was tried in the Court of First Instance of the Province of
Tayabas on a charge of criminal attempt against an agent of the authorities, and
sentenced to one year eight months and twenty-one days of prison correccional, to pay
a fine of P65, in case of insolvency to suffer the corresponding subsidiary imprisonment,
to the accessory penalties provided in article 61 of the Penal Code, and to pay the costs.
He appealed to this court.

Counsel for appellant insists, first, that the prosecution has failed to establish beyond a
reasonable doubt that the policeman, Gregorio Glindo, attempted to arrest the accused;
and, second, that if said policeman did attempt to arrest the defendant at this place he,
not having a judicial warrant, was not, under the circumstances, authorized to make the
arrest which he attempted to make.

46
About 8 o’clock on the night of September 6, 1908, the appellant, Isaac Samonte, and
Basilio Rabe were together in the house of one Demetrio Pandeñio in the barrio of
Macalalong, jurisdiction of Pitogo Province of Tayabas. They both left this house and met
shortly afterwards in the street (Verdades) in said barrio. On meeting there they became
engaged in quarrel, the appellant knocking or pushing Rabe down, then proceeded to
maltreat him. At this moment Rabe called "police! police!" Gregorio Glindo, a municipal
policeman of Pitogo, being on patrol duty that night in said barrio, hearing these words
went to the scene, arriving just as the offended party was getting up, and attempted to
arrest the appellant, saying to him: "In the name of the United States, don’t move." The
appellant, on seeing the policeman and hearing this command, said: "Don’t come near,
because I will take your life." The policeman continued toward the appellant and when
very near him the appellant struck at the policeman with a knife. On account of this
resistance the policeman could not arrest the appellant at the time, so he went
immediately to the house of the councilman of that barrio, Demetrio Pandeñio, and
reported the matter. Pandeñio ordered him to arrest the Appellant. He returned to obey
this order, being followed by Pandeñio. They found the appellant in a place called
Mutingbayan. The policeman attempted to take hold of the appellant, but he resisted,
striking at the policeman again with his knife. The councilman then ordered the appellant
to submit himself, and on receiving this order the appellant said: "I do not recognize
anyone," and struck at the councilman with the knife.

The appellant was not arrested on that night on account of this resistance. He did not lay
hands on or touch with his knife either the policeman or the councilman, but he did refuse
to submit himself to the authorities, and resisted arrest. The policeman did not see the
appellant knock the priest down, neither did he see him kick the said priest, but he heard
the cries of the priest calling for help, saying "police! police!" and when he arrived on the
scene the priest was just getting up and freeing himself from the Appellant. When the
policeman heard these cries for help he was only a very short distance — some 6 or 8
brazas — away, and when he arrived the trouble had not terminated, although no active
fighting took place after his arrival. Under these facts and circumstances it was the duty
of this police officer to stop this disturbance by placing the defendant under arrest.

Any officer charged with the preservation of the public peace may arrest, without a
warrant, any person who is committing, or has committed, a breach of the peace in his
presence. (3 Cyc., 881; Carolina v. McAfee., 10 L.R.A., 607; Commonwealth v. Tobin, 11
Am. Rep., 375; People v. Rounds, 35 N.W., 77; and Douglas v. Barber, 28 Atl. Rep.,
805.)

An offense is committed in the presence or within the view of an officer, within the
meaning of the rule authorizing an arrest without a warrant, when the officer sees the
offense, although at a distance, or hears the disturbances created thereby and proceeds
at once to the scene thereof; or the offense is continuing, or has not been consummated,
at the time the arrest is made. (3 Cyc., 886; Ramsey v. State, 17 S. E. 613; Dilger v.
Com., 11 S.W., State v. McAfee, 12 S.E., 453; State v. Williams, 15 S.E., 554; and Hawkins
v. Lutton, 70 N.W., 483.)

In the case at bar Gregorio Glindo, being a peace officer, not only had authority to arrest
the defendant at the time, but it was his duty to do so, he having heard the priest call
for help and having arrived on the scene before the disturbance had finally ended.

Article 249 of the Penal Code provides that the following commit criminal
attempt:chanrob1es virtual 1aw library

47
x x x

"2. Those who attack the authorities or their agents, or employee force against them, or
gravely intimidate them, or offer an equally grave resistance while they are discharging
the functions of their office or on occasion thereof."cralaw virtua1aw library

Article 250 of the same code fixes the penalty to be imposed for those guilty of an attempt
against the authorities or their agents, as provided in the above article.

The accused in this case, after an attempt had been made to arrest him by a duly
authorized police officer in the discharge of his duty as such, offered grave resistance by
refusing to submit himself to arrest and by striking at the policeman with a knife, thereby
attempting a personal injury. Although the policeman was not wounded or touched by
the accused, these facts do not relieve him from criminal responsibility.

The penalty imposed by the court below being in accordance with the law and the proofs
presented, the same is hereby affirmed, with costs against the Appellant. So ordered.

48
SECOND DIVISION

[G.R. No. 11941. December 7, 1916. ]

THE UNITED STATES, Plaintiff-Appellee, v. JUAN ALVEAR ET AL., Defendants-

Appellants.

Teofilo Sison and Beaumont and Tenney for Appellants.

Attorney-General Avanceña for Appellee.

SYLLABUS

1. ASSAULT UPON PERSONS IN AUTHORITY; EVIDENCE; REASONABLE DOUBT. — A

conviction of the grave offense of atentado (assault upon or resistance offered to persons
in authority or their agents) cannot be sustained in any case in which a reasonable doubt
arises as to whether the accused knew or ought to have known that the persons assaulted
or resisted were in fact persons in authority or their agents; provided that the assault or
resistance offered would have been justifiable in the event that the persons assaulted or
resisted had not been persons in authority or their agents.

2. ID.; SELF-DEFENSE IN RESISTING ARREST. — The exemption from criminal liability

which is extended to any one who acts in defense of his own person or rights from
unlawful aggression, under article 8 of the Penal Code, must be held to include one who
assaults or resists a police officer under circumstances which would justify the assault or
resistance, if the person assaulted were not a police officer in the lawful performance of
his duties, when it further appears that the person making the assault did not know, and
had no reasonable grounds to believe, that the person assaulted was a police officer
acting in the performance of his duties as such.

DECISION

CARSON, J. :

Each of the five appellants in this case, two of whom are women, was convicted in the
court below of the crime of atentado contra los agentes de la autoridad (assault upon
agents in authority) and sentenced to one year eight months and twenty-one days of
prision correccional, and to pay a fine of five hundred pesetas.

The prosecution undertook to prove that a Constabulary sergeant and a soldier, who were
duly provided with a search warrant, entered the house where the accused were arrested
for the purpose of searching for opium; that immediately upon entering the house, the
sergeant proceeded to read the search warrant to those whom he found within; that the
occupants of the house fell upon the two soldiers, violently assaulted them, snatched the
search warrant from the sergeant while he was reading it, threw the soldier out of one
of the windows, and only desisted from their assault upon the sergeant when a uniformed
Constabulary soldier, armed with a gun, who had been left on guard outside, came up
into the house and arrested the participants in the assault.

The accused and their witnesses testifying for the defense swore that the two police

49
officers entered the house in plain clothes; that the moment they entered one of them
seized and held one of the accused women, at the same time drawing and brandishing a
revolver, while the other threw himself upon another of the accused who was sitting in a
chair near by; that the woman cried loudly for help; that her son and some others came
to her rescue; that a fight followed, which was terminated by the arrival of a uniformed
Constabulary soldier who put the accused under arrest; that they did not know that the
two Constabulary soldiers who first entered were police officers until the uniformed
Constabulary soldier appeared on the scene; and that when they saw him and learned
that the men who had entered the house in plain clothes were police officers, they
promptly surrendered and offered no further resistance.

The witness for the prosecution and for the defense contradict each other in practically
every detail of their accounts of what occurred, except that all of the witnesses agree
that the two Constabulary soldiers entered the house in plain clothes; that immediately
thereafter a violent altercation arose; and that all of the accused promptly surrendered
and offered no further resistance when the third Constabulary soldier in uniform came up
into the house and put them under arrest.

Upon a careful examination of all the evidence of record we think that there is at least a
reasonable doubt that these accused knew or had reason to know that the two
Constabulary soldiers who first entered the house in plain clothes were police officers
until the third soldier entered in uniform.

The police officers claim that they read, or at least began to read a search warrant
immediately after they entered the house; but upon the whole record, and having in mind
the fact that they entered the house in plain clothes evidently for the purpose of surprising
the occupants, we think the weight of the evidence tends to disclose that whatever may
have been their intentions as to the reading of the search warrant, they attempted, before
disclosing their authority to enter the house, to compel the occupants to stay still, lest
they might conceal or get rid of the opium for which the search was made; that to this
end they used physical force and threats with a revolver against two of the accused, one
of whom was a woman; that the cries of the woman brought her son and others to her
rescue; and that as a result the fight was precipitated before the police officers had time
to make themselves known as such.

A conviction of the grave offense of atentado (assault upon or resistance offered to

persons in authority or their agents) cannot be sustained in any case in which a
reasonable doubt arises as to whether the accused knew or ought to have known that
the persons assaulted or resisted were in fact persons in authority or their agents;
provided that the assault or resistance offered would have been justifiable in the event
that the persons assaulted or resisted had not been persons in authority or their agents.
(Art. 1, Penal Code.)

That these accused assaulted and resisted the police officers who entered the house in
plain clothes is not denied; but the assault and resistance would have been wholly
justifiable if these men had been what they seemed to be to the occupants of the house;
that is to say, two strangers, who without lawful authority had entered the house and
physically assaulted the first man and woman they found there, at the same time
threatening their victims with a revolver if they moved or gave an alarm.

The exemption from criminal liability which is extended to anyone who acts in defense of
his own person or rights from unlawful aggression, under article 8 of the Penal Code must
be held to include one who assaults or resists a police officer under circumstances which
would justify the assault or resistance, if the person assaulted were not a police officer in

50
the lawful performance of his duties, when it further appears that the person making the
assault did not know, and had no reasonable grounds to believe, that the person
assaulted was a police officer acting in the performance of his duties as such. (U.S. v. Ah
Chong, 15 Phil. Rep., 488.)

The judgment convicting and sentencing the appellants should be reversed, and they
should be acquitted of the crime with which they are charged in the information and their
bail exonerated, with the costs of both instances de officio. So ordered.

Torres, Johnson, Moreland, and Trent, JJ., concur.

51
ARTICLE 150

G.R. No. 169777* April 20, 2006

SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his

capacity as Senate President, JUAN M. FLAVIER, in his capacity as Senate
President Pro Tempore, FRANCIS N. PANGILINAN, in his capacity as Majority
Leader, AQUILINO Q. PIMENTEL, JR., in his capacity as Minority Leader,
SENATORS RODOLFO G. BIAZON, "COMPANERA" PIA S. CAYETANO, JINGGOY
EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN PONCE ENRILE,
RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO S.LIM, M. A.
MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and MAR
ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of
President Gloria Macapagal-Arroyo, and anyone acting in his stead and in
behalf of the President of the Philippines, Respondents.

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

G.R. No. 169659 April 20, 2006

BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep. SATUR

OCAMPO, Rep. CRISPIN BELTRAN, Rep. RAFAEL MARIANO, Rep. LIZA MAZA,
Rep. TEODORO CASINO, Rep. JOEL VIRADOR, COURAGE represented by
FERDINAND GAITE, and COUNSELS FOR THE DEFENSE OF LIBERTIES
(CODAL) represented by ATTY. REMEDIOS BALBIN, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary and alter-ego of
President Gloria Macapagal-Arroyo, Respondent.

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

G.R. No. 169660 April 20, 2006

FRANCISCO I. CHAVEZ, Petitioner,

vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary, AVELINO J.
CRUZ, JR., in his capacity as Secretary of Defense, and GENEROSO S. SENGA,
in his capacity as AFP Chief of Staff, Respondents.

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

G.R. No. 169667 April 20, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,

vs.
HON. EDUARDO R. ERMITA, in his capacity as Executive
Secretary, Respondent.

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

G.R. No. 169834 April 20, 2006

52
PDP- LABAN, Petitioner,
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.

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

G.R. No. 171246 April 20, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA,

JOSE AMOR AMORANDO, ALICIA A. RISOS-VIDAL, FILEMON C. ABELITA III,
MANUEL P. LEGASPI, J. B. JOVY C. BERNABE, BERNARD L. DAGCUTA,
ROGELIO V. GARCIA, and the INTEGRATED BAR FOR THE
PHILIPPINES, Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.

DECISION

CARPIO MORALES, J.:

A transparent government is one of the hallmarks of a truly republican state. Even in the
early history of republican thought, however, it has been recognized that the head of
government may keep certain information confidential in pursuit of the public interest.
Explaining the reason for vesting executive power in only one magistrate, a distinguished
delegate to the U.S. Constitutional Convention said: "Decision, activity, secrecy, and
dispatch will generally characterize the proceedings of one man, in a much more eminent
degree than the proceedings of any greater number; and in proportion as the number is
increased, these qualities will be diminished."1

History has been witness, however, to the fact that the power to withhold information
lends itself to abuse, hence, the necessity to guard it zealously.

The present consolidated petitions for certiorari and prohibition proffer that the President
has abused such power by issuing Executive Order No. 464 (E.O. 464) last September
28, 2005. They thus pray for its declaration as null and void for being unconstitutional.

In resolving the controversy, this Court shall proceed with the recognition that the
issuance under review has come from a co-equal branch of government, which thus
entitles it to a strong presumption of constitutionality. Once the challenged order is found
to be indeed violative of the Constitution, it is duty-bound to declare it so. For the
Constitution, being the highest expression of the sovereign will of the Filipino people,
must prevail over any issuance of the government that contravenes its mandates.

In the exercise of its legislative power, the Senate of the Philippines, through its various
Senate Committees, conducts inquiries or investigations in aid of legislation which call
for, inter alia, the attendance of officials and employees of the executive department,
bureaus, and offices including those employed in Government Owned and Controlled
Corporations, the Armed Forces of the Philippines (AFP), and the Philippine National Police
(PNP).

On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations
to various officials of the Executive Department for them to appear on September 29,
2005 as resource speakers in a public hearing on the railway project of the North Luzon
Railways Corporation with the China National Machinery and Equipment Group
(hereinafter North Rail Project). The public hearing was sparked by a privilege speech of
53
Senator Juan Ponce Enrile urging the Senate to investigate the alleged overpricing and
other unlawful provisions of the contract covering the North Rail Project.

The Senate Committee on National Defense and Security likewise issued

invitations2 dated September 22, 2005 to the following officials of the AFP: the
Commanding General of the Philippine Army, Lt. Gen. Hermogenes C. Esperon; Inspector
General of the AFP Vice Admiral Mateo M. Mayuga; Deputy Chief of Staff for Intelligence
of the AFP Rear Admiral Tirso R. Danga; Chief of the Intelligence Service of the AFP Brig.
Gen. Marlu Q. Quevedo; Assistant Superintendent of the Philippine Military Academy
(PMA) Brig. Gen. Francisco V. Gudani; and Assistant Commandant, Corps of Cadets of
the PMA, Col. Alexander F. Balutan, for them to attend as resource persons in a public
hearing scheduled on September 28, 2005 on the following: (1) Privilege Speech of
Senator Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled "Bunye has Provided
Smoking Gun or has Opened a Can of Worms that Show Massive Electoral Fraud in the
Presidential Election of May 2005"; (2) Privilege Speech of Senator Jinggoy E. Estrada
delivered on July 26, 2005 entitled "The Philippines as the Wire-Tapping Capital of the
World"; (3) Privilege Speech of Senator Rodolfo Biazon delivered on August 1, 2005
entitled "Clear and Present Danger"; (4) Senate Resolution No. 285 filed by Senator Maria
Ana Consuelo Madrigal – Resolution Directing the Committee on National Defense and
Security to Conduct an Inquiry, in Aid of Legislation, and in the National Interest, on the
Role of the Military in the So-called "Gloriagate Scandal"; and (5) Senate Resolution No.
295 filed by Senator Biazon – Resolution Directing the Committee on National Defense
and Security to Conduct an Inquiry, in Aid of Legislation, on the Wire-Tapping of the
President of the Philippines.

Also invited to the above-said hearing scheduled on September 28 2005 was the AFP
Chief of Staff, General Generoso S. Senga who, by letter3 dated September 27, 2005,
requested for its postponement "due to a pressing operational situation that demands
[his utmost personal attention" while "some of the invited AFP officers are currently
attending to other urgent operational matters."

On September 28, 2005, Senate President Franklin M. Drilon received from Executive
Secretary Eduardo R. Ermita a letter4 dated September 27, 2005 "respectfully
request[ing] for the postponement of the hearing [regarding the NorthRail project] to
which various officials of the Executive Department have been invited" in order to "afford
said officials ample time and opportunity to study and prepare for the various issues so
that they may better enlighten the Senate Committee on its investigation."

Senate President Drilon, however, wrote5 Executive Secretary Ermita that the Senators
"are unable to accede to [his request]" as it "was sent belatedly" and "[a]ll preparations
and arrangements as well as notices to all resource persons were completed [the
previous] week."

Senate President Drilon likewise received on September 28, 2005 a letter 6 from the
President of the North Luzon Railways Corporation Jose L. Cortes, Jr. requesting that the
hearing on the NorthRail project be postponed or cancelled until a copy of the report of
the UP Law Center on the contract agreements relative to the project had been secured.

On September 28, 2005, the President issued E.O. 464, "Ensuring Observance of the
Principle of Separation of Powers, Adherence to the Rule on Executive Privilege and
Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of
Legislation Under the Constitution, and For Other Purposes,"7 which, pursuant to Section
6 thereof, took effect immediately. The salient provisions of the Order are as follows:

54
SECTION 1. Appearance by Heads of Departments Before Congress. – In accordance with
Article VI, Section 22 of the Constitution and to implement the Constitutional provisions
on the separation of powers between co-equal branches of the government, all heads of
departments of the Executive Branch of the government shall secure the consent of the
President prior to appearing before either House of Congress.

When the security of the State or the public interest so requires and the President so
states in writing, the appearance shall only be conducted in executive session.

SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –

(a) Nature and Scope. - The rule of confidentiality based on executive privilege is
fundamental to the operation of government and rooted in the separation of powers
under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further,
Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials
and Employees provides that Public Officials and Employees shall not use or divulge
confidential or classified information officially known to them by reason of their office and
not made available to the public to prejudice the public interest.

Executive privilege covers all confidential or classified information between the President
and the public officers covered by this executive order, including:

Conversations and correspondence between the President and the public official covered
by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v.
Public Estates Authority, G.R. No. 133250, 9 July 2002);

Military, diplomatic and other national security matters which in the interest of national
security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995;
Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December
1998).

Information between inter-government agencies prior to the conclusion of treaties and

executive agreements (Chavez v. Presidential Commission on Good Government, G.R.
No. 130716, 9 December 1998);

Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good

Government, G.R. No. 130716, 9 December 1998);

Matters affecting national security and public order (Chavez v. Public Estates Authority,
G.R. No. 133250, 9 July 2002).

(b) Who are covered. – The following are covered by this executive order:

Senior officials of executive departments who in the judgment of the department heads
are covered by the executive privilege;

Generals and flag officers of the Armed Forces of the Philippines and such other officers
who in the judgment of the Chief of Staff are covered by the executive privilege;

Philippine National Police (PNP) officers with rank of chief superintendent or higher and
such other officers who in the judgment of the Chief of the PNP are covered by the
executive privilege;

Senior national security officials who in the judgment of the National Security Adviser are
covered by the executive privilege; and

55
Such other officers as may be determined by the President.

SECTION 3. Appearance of Other Public Officials Before Congress. – All public officials
enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to
appearing before either House of Congress to ensure the observance of the principle of
separation of powers, adherence to the rule on executive privilege and respect for the
rights of public officials appearing in inquiries in aid of legislation. (Emphasis and
underscoring supplied)

Also on September 28, 2005, Senate President Drilon received from Executive Secretary
Ermita a copy of E.O. 464, and another letter8 informing him "that officials of the
Executive Department invited to appear at the meeting [regarding the NorthRail project]
will not be able to attend the same without the consent of the President, pursuant to
[E.O. 464]" and that "said officials have not secured the required consent from the
President." On even date which was also the scheduled date of the hearing on the alleged
wiretapping, Gen. Senga sent a letter9 to Senator Biazon, Chairperson of the Committee
on National Defense and Security, informing him "that per instruction of [President
Arroyo], thru the Secretary of National Defense, no officer of the [AFP] is authorized to
appear before any Senate or Congressional hearings without seeking a written approval
from the President" and "that no approval has been granted by the President to any AFP
officer to appear before the public hearing of the Senate Committee on National Defense
and Security scheduled [on] 28 September 2005."

Despite the communications received from Executive Secretary Ermita and Gen. Senga,
the investigation scheduled by the Committee on National Defense and Security pushed
through, with only Col. Balutan and Brig. Gen. Gudani among all the AFP officials invited
attending.

For defying President Arroyo’s order barring military personnel from testifying before
legislative inquiries without her approval, Brig. Gen. Gudani and Col. Balutan were
relieved from their military posts and were made to face court martial proceedings.

As to the NorthRail project hearing scheduled on September 29, 2005, Executive

Secretary Ermita, citing E.O. 464, sent letter of regrets, in response to the invitations sent
to the following government officials: Light Railway Transit Authority Administrator
Melquiades Robles, Metro Rail Transit Authority Administrator Roberto Lastimoso,
Department of Justice (DOJ) Chief State Counsel Ricardo V. Perez, then Presidential Legal
Counsel Merceditas Gutierrez, Department of Transportation and Communication (DOTC)
Undersecretary Guiling Mamonding, DOTC Secretary Leandro Mendoza, Philippine
National Railways General Manager Jose Serase II, Monetary Board Member Juanita
Amatong, Bases Conversion Development Authority Chairperson Gen. Narciso Abaya and
Secretary Romulo L. Neri.10 NorthRail President Cortes sent personal regrets likewise
citing E.O. 464.11

On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and 169667,
for certiorari and prohibition, were filed before this Court challenging the constitutionality
of E.O. 464.

In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives

Members Satur Ocampo, Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador and
Teodoro Casino, Courage, an organization of government employees, and Counsels for
the Defense of Liberties (CODAL), a group of lawyers dedicated to the promotion of
justice, democracy and peace, all claiming to have standing to file the suit because of the
transcendental importance of the issues they posed, pray, in their petition that E.O. 464

56
be declared null and void for being unconstitutional; that respondent Executive Secretary
Ermita, in his capacity as Executive Secretary and alter-ego of President Arroyo, be
prohibited from imposing, and threatening to impose sanctions on officials who appear
before Congress due to congressional summons. Additionally, petitioners claim that E.O.
464 infringes on their rights and impedes them from fulfilling their respective obligations.
Thus, Bayan Muna alleges that E.O. 464 infringes on its right as a political party entitled
to participate in governance; Satur Ocampo, et al. allege that E.O. 464 infringes on their
rights and duties as members of Congress to conduct investigation in aid of legislation
and conduct oversight functions in the implementation of laws; Courage alleges that the
tenure of its members in public office is predicated on, and threatened by, their
submission to the requirements of E.O. 464 should they be summoned by Congress; and
CODAL alleges that its members have a sworn duty to uphold the rule of law, and their
rights to information and to transparent governance are threatened by the imposition of
E.O. 464.

In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his constitutional rights
as a citizen, taxpayer and law practitioner, are affected by the enforcement of E.O. 464,
prays in his petition that E.O. 464 be declared null and void for being unconstitutional.

In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG), alleging that as a
coalition of 17 legal resource non-governmental organizations engaged in developmental
lawyering and work with the poor and marginalized sectors in different parts of the
country, and as an organization of citizens of the Philippines and a part of the general
public, it has legal standing to institute the petition to enforce its constitutional right to
information on matters of public concern, a right which was denied to the public by E.O.
464,13 prays, that said order be declared null and void for being unconstitutional and that
respondent Executive Secretary Ermita be ordered to cease from implementing it.

On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital
interest in the resolution of the issue of the validity of E.O. 464 for it stands to suffer
imminent and material injury, as it has already sustained the same with its continued
enforcement since it directly interferes with and impedes the valid exercise of the Senate’s
powers and functions and conceals information of great public interest and concern, filed
its petition for certiorari and prohibition, docketed as G.R. No. 169777 and prays that E.O.
464 be declared unconstitutional.

On October 14, 2005, PDP-Laban, a registered political party with members duly elected
into the Philippine Senate and House of Representatives, filed a similar petition for
certiorari and prohibition, docketed as G.R. No. 169834, alleging that it is affected by the
challenged E.O. 464 because it hampers its legislative agenda to be implemented through
its members in Congress, particularly in the conduct of inquiries in aid of legislation and
transcendental issues need to be resolved to avert a constitutional crisis between the
executive and legislative branches of the government.

Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his invitation to
Gen. Senga for him and other military officers to attend the hearing on the alleged
wiretapping scheduled on February 10, 2005. Gen. Senga replied, however, by
letter15 dated February 8, 2006, that "[p]ursuant to Executive Order No. 464, th[e]
Headquarters requested for a clearance from the President to allow [them] to appear
before the public hearing" and that "they will attend once [their] request is approved by
the President." As none of those invited appeared, the hearing on February 10, 2006 was
cancelled.16

57
In another investigation conducted jointly by the Senate Committee on Agriculture and
Food and the Blue Ribbon Committee on the alleged mismanagement and use of the
fertilizer fund under the Ginintuang Masaganang Ani program of the Department of
Agriculture (DA), several Cabinet officials were invited to the hearings scheduled on
October 5 and 26, November 24 and December 12, 2005 but most of them failed to
attend, DA Undersecretary Belinda Gonzales, DA Assistant Secretary Felix Jose Montes,
Fertilizer and Pesticide Authority Executive Director Norlito R. Gicana,17 and those from
the Department of Budget and Management18 having invoked E.O. 464.

In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary
and Presidential Spokesperson Ignacio R. Bunye,19 DOJ Secretary Raul M. Gonzalez20 and
Department of Interior and Local Government Undersecretary Marius P.
Corpus21 communicated their inability to attend due to lack of appropriate clearance from
the President pursuant to E.O. 464. During the February 13, 2005 budget hearing,
however, Secretary Bunye was allowed to attend by Executive Secretary Ermita.

On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the Board
of Governors of the Integrated Bar of the Philippines, as taxpayers, and the Integrated
Bar of the Philippines as the official organization of all Philippine lawyers, all invoking their
constitutional right to be informed on matters of public interest, filed their petition for
certiorari and prohibition, docketed as G.R. No. 171246, and pray that E.O. 464 be
declared null and void.

All the petitions pray for the issuance of a Temporary Restraining Order enjoining
respondents from implementing, enforcing, and observing E.O. 464.

In the oral arguments on the petitions conducted on February 21, 2006, the following
substantive issues were ventilated: (1) whether respondents committed grave abuse of
discretion in implementing E.O. 464 prior to its publication in the Official Gazette or in a
newspaper of general circulation; and (2) whether E.O. 464 violates the following
provisions of the Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV.
Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The
procedural issue of whether there is an actual case or controversy that calls for judicial
review was not taken up; instead, the parties were instructed to discuss it in their
respective memoranda.

After the conclusion of the oral arguments, the parties were directed to submit their
respective memoranda, paying particular attention to the following propositions: (1) that
E.O. 464 is, on its face, unconstitutional; and (2) assuming that it is not, it is
unconstitutional as applied in four instances, namely: (a) the so called Fertilizer scam;
(b) the NorthRail investigation (c) the Wiretapping activity of the ISAFP; and (d) the
investigation on the Venable contract.22

Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda on March
7, 2006, while those in G.R. No. 16966725 and G.R. No. 16983426 filed theirs the next day
or on March 8, 2006. Petitioners in G.R. No. 171246 did not file any memorandum.

Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file
memorandum27 was granted, subsequently filed a manifestation28 dated March 14, 2006
that it would no longer file its memorandum in the interest of having the issues resolved
soonest, prompting this Court to issue a Resolution reprimanding them.29

Petitioners submit that E.O. 464 violates the following constitutional provisions:

58
 Art. VI, Sec. 2130

Art. VI, Sec. 2231

Art. VI, Sec. 132

Art. XI, Sec. 133

Art. III, Sec. 734

Art. III, Sec. 435

Art. XIII, Sec. 16 36

Art. II, Sec. 2837

Respondents Executive Secretary Ermita et al., on the other hand, pray in their
consolidated memorandum38 on March 13, 2006 for the dismissal of the petitions for lack
of merit.

The Court synthesizes the issues to be resolved as follows:

1. Whether E.O. 464 contravenes the power of inquiry vested in Congress;

2. Whether E.O. 464 violates the right of the people to information on matters of
public concern; and

3. Whether respondents have committed grave abuse of discretion when they

implemented E.O. 464 prior to its publication in a newspaper of general circulation.

Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment
of whether the requisites for a valid exercise of the Court’s power of judicial review are
present is in order.

Like almost all powers conferred by the Constitution, the power of judicial review is
subject to limitations, to wit: (1) there must be an actual case or controversy calling for
the exercise of judicial power; (2) the person challenging the act must have standing to
challenge the validity of the subject act or issuance; otherwise stated, he must have a
personal and substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement; (3) the question of constitutionality must be
raised at the earliest opportunity; and (4) the issue of constitutionality must be the very
lis mota of the case.39

Except with respect to the requisites of standing and existence of an actual case or
controversy where the disagreement between the parties lies, discussion of the rest of
the requisites shall be omitted.

Standing

Respondents, through the Solicitor General, assert that the allegations in G.R. Nos.
169659, 169660 and 169667 make it clear that they, adverting to the non-appearance of
several officials of the executive department in the investigations called by the different
committees of the Senate, were brought to vindicate the constitutional duty of the Senate

59
or its different committees to conduct inquiry in aid of legislation or in the exercise of its
oversight functions. They maintain that Representatives Ocampo et al. have not shown
any specific prerogative, power, and privilege of the House of Representatives which had
been effectively impaired by E.O. 464, there being no mention of any investigation called
by the House of Representatives or any of its committees which was aborted due to the
implementation of E.O. 464.

As for Bayan Muna’s alleged interest as a party-list representing the marginalized and
underrepresented, and that of the other petitioner groups and individuals who profess to
have standing as advocates and defenders of the Constitution, respondents contend that
such interest falls short of that required to confer standing on them as parties "injured-
in-fact."40

Respecting petitioner Chavez, respondents contend that Chavez may not claim an interest
as a taxpayer for the implementation of E.O. 464 does not involve the exercise of taxing
or spending power.41

With regard to the petition filed by the Senate, respondents argue that in the absence of
a personal or direct injury by reason of the issuance of E.O. 464, the Senate and its
individual members are not the proper parties to assail the constitutionality of E.O. 464.

Invoking this Court’s ruling in National Economic Protectionism Association v.

Ongpin42 and Valmonte v. Philippine Charity Sweepstakes Office,43 respondents assert
that to be considered a proper party, one must have a personal and substantial interest
in the case, such that he has sustained or will sustain direct injury due to the enforcement
of E.O. 464.44

That the Senate of the Philippines has a fundamental right essential not only for intelligent
public decision-making in a democratic system, but more especially for sound
legislation45 is not disputed. E.O. 464, however, allegedly stifles the ability of the
members of Congress to access information that is crucial to law-making.46 Verily, the
Senate, including its individual members, has a substantial and direct interest over the
outcome of the controversy and is the proper party to assail the constitutionality of E.O.
464. Indeed, legislators have standing to maintain inviolate the prerogative, powers and
privileges vested by the Constitution in their office and are allowed to sue to question the
validity of any official action which they claim infringes their prerogatives as legislators.47

In the same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro Casino
(Bayan Muna), Joel Virador (Bayan Muna), Crispin Beltran (Anakpawis), Rafael Mariano
(Anakpawis), and Liza Maza (Gabriela) are allowed to sue to question the constitutionality
of E.O. 464, the absence of any claim that an investigation called by the House of
Representatives or any of its committees was aborted due to the implementation of E.O.
464 notwithstanding, it being sufficient that a claim is made that E.O. 464 infringes on
their constitutional rights and duties as members of Congress to conduct investigation in
aid of legislation and conduct oversight functions in the implementation of laws.

The national political party, Bayan Muna, likewise meets the standing requirement as it
obtained three seats in the House of Representatives in the 2004 elections and is,
therefore, entitled to participate in the legislative process consonant with the declared
policy underlying the party list system of affording citizens belonging to marginalized and
underrepresented sectors, organizations and parties who lack well-defined political
constituencies to contribute to the formulation and enactment of legislation that will
benefit the nation.48

60
As Bayan Muna and Representatives Ocampo et al. have the standing to file their
petitions, passing on the standing of their co-petitioners Courage and Codal is rendered
unnecessary.49

In filing their respective petitions, Chavez, the ALG which claims to be an organization of
citizens, and the incumbent members of the IBP Board of Governors and the IBP in behalf
of its lawyer members,50 invoke their constitutional right to information on matters of
public concern, asserting that the right to information, curtailed and violated by E.O. 464,
is essential to the effective exercise of other constitutional rights 51 and to the
maintenance of the balance of power among the three branches of the government
through the principle of checks and balances.52

It is well-settled that when suing as a citizen, the interest of the petitioner in assailing
the constitutionality of laws, presidential decrees, orders, and other regulations, must be
direct and personal. In Franciso v. House of Representatives,53 this Court held that when
the proceeding involves the assertion of a public right, the mere fact that he is a citizen
satisfies the requirement of personal interest.

As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in view
of the transcendental issues raised in its petition which this Court needs to resolve in
order to avert a constitutional crisis. For it to be accorded standing on the ground of
transcendental importance, however, it must establish (1) the character of the funds (that
it is public) or other assets involved in the case, (2) the presence of a clear case of
disregard of a constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government, and (3) the lack of any party with a more direct and
specific interest in raising the questions being raised.54 The first and last determinants
not being present as no public funds or assets are involved and petitioners in G.R. Nos.
169777 and 169659 have direct and specific interests in the resolution of the controversy,
petitioner PDP-Laban is bereft of standing to file its petition. Its allegation that E.O. 464
hampers its legislative agenda is vague and uncertain, and at best is only a "generalized
interest" which it shares with the rest of the political parties. Concrete injury, whether
actual or threatened, is that indispensable element of a dispute which serves in part to
cast it in a form traditionally capable of judicial resolution.55 In fine, PDP-Laban’s alleged
interest as a political party does not suffice to clothe it with legal standing.

Actual Case or Controversy

Petitioners assert that an actual case exists, they citing the absence of the executive
officials invited by the Senate to its hearings after the issuance of E.O. 464, particularly
those on the NorthRail project and the wiretapping controversy.

Respondents counter that there is no case or controversy, there being no showing that
President Arroyo has actually withheld her consent or prohibited the appearance of the
invited officials.56 These officials, they claim, merely communicated to the Senate that
they have not yet secured the consent of the President, not that the President prohibited
their attendance.57 Specifically with regard to the AFP officers who did not attend the
hearing on September 28, 2005, respondents claim that the instruction not to attend
without the President’s consent was based on its role as Commander-in-Chief of the
Armed Forces, not on E.O. 464.

Respondents thus conclude that the petitions merely rest on an unfounded apprehension
that the President will abuse its power of preventing the appearance of officials before
Congress, and that such apprehension is not sufficient for challenging the validity of E.O.
464.

61
The Court finds respondents’ assertion that the President has not withheld her consent
or prohibited the appearance of the officials concerned immaterial in determining the
existence of an actual case or controversy insofar as E.O. 464 is concerned. For E.O. 464
does not require either a deliberate withholding of consent or an express prohibition
issuing from the President in order to bar officials from appearing before Congress.

As the implementation of the challenged order has already resulted in the absence of
officials invited to the hearings of petitioner Senate of the Philippines, it would make no
sense to wait for any further event before considering the present case ripe for
adjudication. Indeed, it would be sheer abandonment of duty if this Court would now
refrain from passing on the constitutionality of E.O. 464.

Constitutionality of E.O. 464

E.O. 464, to the extent that it bars the appearance of executive officials before Congress,
deprives Congress of the information in the possession of these officials. To resolve the
question of whether such withholding of information violates the Constitution,
consideration of the general power of Congress to obtain information, otherwise known
as the power of inquiry, is in order.

The power of inquiry

The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the

Constitution which reads:

SECTION 21. The Senate or the House of Representatives or any of its respective
committees may conduct inquiries in aid of legislation in accordance with its duly
published rules of procedure. The rights of persons appearing in or affected by such
inquiries shall be respected. (Underscoring supplied)

This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution
except that, in the latter, it vests the power of inquiry in the unicameral legislature
established therein – the Batasang Pambansa – and its committees.

The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v.
Nazareno,58 a case decided in 1950 under that Constitution, the Court already recognized
that the power of inquiry is inherent in the power to legislate.

Arnault involved a Senate investigation of the reportedly anomalous purchase of the

Buenavista and Tambobong Estates by the Rural Progress Administration. Arnault, who
was considered a leading witness in the controversy, was called to testify thereon by the
Senate. On account of his refusal to answer the questions of the senators on an important
point, he was, by resolution of the Senate, detained for contempt. Upholding the Senate’s
power to punish Arnault for contempt, this Court held:

Although there is no provision in the Constitution expressly investing either House of

Congress with power to make investigations and exact testimony to the end that it may
exercise its legislative functions advisedly and effectively, such power is so far incidental
to the legislative function as to be implied. In other words, the power of inquiry – with
process to enforce it – is an essential and appropriate auxiliary to the legislative function.
A legislative body cannot legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to affect or change; and where
the legislative body does not itself possess the requisite information – which is not
infrequently true – recourse must be had to others who do possess it. Experience has
shown that mere requests for such information are often unavailing, and also that
62
information which is volunteered is not always accurate or complete; so some means of
compulsion is essential to obtain what is needed.59 . . . (Emphasis and underscoring
supplied)

That this power of inquiry is broad enough to cover officials of the executive branch may
be deduced from the same case. The power of inquiry, the Court therein ruled, is co-
extensive with the power to legislate.60 The matters which may be a proper subject of
legislation and those which may be a proper subject of investigation are one. It follows
that the operation of government, being a legitimate subject for legislation, is a proper
subject for investigation.

Thus, the Court found that the Senate investigation of the government transaction
involved in Arnault was a proper exercise of the power of inquiry. Besides being related
to the expenditure of public funds of which Congress is the guardian, the transaction, the
Court held, "also involved government agencies created by Congress and officers whose
positions it is within the power of Congress to regulate or even abolish."

Since Congress has authority to inquire into the operations of the executive branch, it
would be incongruous to hold that the power of inquiry does not extend to executive
officials who are the most familiar with and informed on executive operations.

As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded
on the necessity of information in the legislative process. If the information possessed by
executive officials on the operation of their offices is necessary for wise legislation on that
subject, by parity of reasoning, Congress has the right to that information and the power
to compel the disclosure thereof.

As evidenced by the American experience during the so-called "McCarthy era," however,
the right of Congress to conduct inquiries in aid of legislation is, in theory, no less
susceptible to abuse than executive or judicial power. It may thus be subjected to judicial
review pursuant to the Court’s certiorari powers under Section 1, Article VIII of the
Constitution.

For one, as noted in Bengzon v. Senate Blue Ribbon Committee,61 the inquiry itself might
not properly be in aid of legislation, and thus beyond the constitutional power of
Congress. Such inquiry could not usurp judicial functions. Parenthetically, one possible
way for Congress to avoid such a result as occurred in Bengzon is to indicate in its
invitations to the public officials concerned, or to any person for that matter, the possible
needed statute which prompted the need for the inquiry. Given such statement in its
invitations, along with the usual indication of the subject of inquiry and the questions
relative to and in furtherance thereof, there would be less room for speculation on the
part of the person invited on whether the inquiry is in aid of legislation.

Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative
power of inquiry. The provision requires that the inquiry be done in accordance with the
Senate or House’s duly published rules of procedure, necessarily implying the
constitutional infirmity of an inquiry conducted without duly published rules of procedure.
Section 21 also mandates that the rights of persons appearing in or affected by such
inquiries be respected, an imposition that obligates Congress to adhere to the guarantees
in the Bill of Rights.

These abuses are, of course, remediable before the courts, upon the proper suit filed by
the persons affected, even if they belong to the executive branch. Nonetheless, there
may be exceptional circumstances, none appearing to obtain at present, wherein a clear

63
pattern of abuse of the legislative power of inquiry might be established, resulting in
palpable violations of the rights guaranteed to members of the executive department
under the Bill of Rights. In such instances, depending on the particulars of each case,
attempts by the Executive Branch to forestall these abuses may be accorded judicial
sanction.

Even where the inquiry is in aid of legislation, there are still recognized exemptions to the
power of inquiry, which exemptions fall under the rubric of "executive privilege." Since
this term figures prominently in the challenged order, it being mentioned in its provisions,
its preambular clauses,62 and in its very title, a discussion of executive privilege is crucial
for determining the constitutionality of E.O. 464.

Executive privilege

The phrase "executive privilege" is not new in this jurisdiction. It has been used even
prior to the promulgation of the 1986 Constitution.63 Being of American origin, it is best
understood in light of how it has been defined and used in the legal literature of the
United States.

Schwartz defines executive privilege as "the power of the Government to withhold

information from the public, the courts, and the Congress."64 Similarly, Rozell defines it
as "the right of the President and high-level executive branch officers to withhold
information from Congress, the courts, and ultimately the public."65

Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has encompassed
claims of varying kinds.67Tribe, in fact, comments that while it is customary to employ
the phrase "executive privilege," it may be more accurate to speak of executive privileges
"since presidential refusals to furnish information may be actuated by any of at least three
distinct kinds of considerations, and may be asserted, with differing degrees of success,
in the context of either judicial or legislative investigations."

One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S.
Presidents, beginning with Washington, on the ground that the information is of such
nature that its disclosure would subvert crucial military or diplomatic objectives. Another
variety is the informer’s privilege, or the privilege of the Government not to disclose the
identity of persons who furnish information of violations of law to officers charged with
the enforcement of that law. Finally, a generic privilege for internal deliberations has been
said to attach to intragovernmental documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated. 68

Tribe’s comment is supported by the ruling in In re Sealed Case, thus:

Since the beginnings of our nation, executive officials have claimed a variety of privileges
to resist disclosure of information the confidentiality of which they felt was crucial to
fulfillment of the unique role and responsibilities of the executive branch of our
government. Courts ruled early that the executive had a right to withhold documents that
might reveal military or state secrets. The courts have also granted the executive a right
to withhold the identity of government informers in some circumstances and a qualified
right to withhold information related to pending investigations. x x x"69 (Emphasis and
underscoring supplied)

The entry in Black’s Law Dictionary on "executive privilege" is similarly instructive

regarding the scope of the doctrine.

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This privilege, based on the constitutional doctrine of separation of powers, exempts the
executive from disclosure requirements applicable to the ordinary citizen or organization
where such exemption is necessary to the discharge of highly important executive
responsibilities involved in maintaining governmental operations, and extends not only to
military and diplomatic secrets but also to documents integral to an appropriate exercise
of the executive’ domestic decisional and policy making functions, that is, those
documents reflecting the frank expression necessary in intra-governmental advisory and
deliberative communications.70 (Emphasis and underscoring supplied)

That a type of information is recognized as privileged does not, however, necessarily

mean that it would be considered privileged in all instances. For in determining the validity
of a claim of privilege, the question that must be asked is not only whether the requested
information falls within one of the traditional privileges, but also whether that privilege
should be honored in a given procedural setting.71

The leading case on executive privilege in the United States is U.S. v. Nixon, 72 decided
in 1974. In issue in that case was the validity of President Nixon’s claim of executive
privilege against a subpoena issued by a district court requiring the production of certain
tapes and documents relating to the Watergate investigations. The claim of privilege was
based on the President’s general interest in the confidentiality of his conversations and
correspondence. The U.S. Court held that while there is no explicit reference to a privilege
of confidentiality in the U.S. Constitution, it is constitutionally based to the extent that it
relates to the effective discharge of a President’s powers. The Court, nonetheless,
rejected the President’s claim of privilege, ruling that the privilege must be balanced
against the public interest in the fair administration of criminal justice. Notably, the Court
was careful to clarify that it was not there addressing the issue of claims of privilege in a
civil litigation or against congressional demands for information.

Cases in the U.S. which involve claims of executive privilege against Congress are
rare.73 Despite frequent assertion of the privilege to deny information to Congress,
beginning with President Washington’s refusal to turn over treaty negotiation records to
the House of Representatives, the U.S. Supreme Court has never adjudicated the
issue.74 However, the U.S. Court of Appeals for the District of Columbia Circuit, in a case
decided earlier in the same year as Nixon, recognized the President’s privilege over his
conversations against a congressional subpoena.75 Anticipating the balancing approach
adopted by the U.S. Supreme Court in Nixon, the Court of Appeals weighed the public
interest protected by the claim of privilege against the interest that would be served by
disclosure to the Committee. Ruling that the balance favored the President, the Court
declined to enforce the subpoena. 76

In this jurisdiction, the doctrine of executive privilege was recognized by this Court in
Almonte v. Vasquez.77Almonte used the term in reference to the same privilege subject
of Nixon. It quoted the following portion of the Nixon decision which explains the basis
for the privilege:

"The expectation of a President to the confidentiality of his conversations and

correspondences, like the claim of confidentiality of judicial deliberations, for example,
has all the values to which we accord deference for the privacy of all citizens and, added
to those values, is the necessity for protection of the public interest in candid, objective,
and even blunt or harsh opinions in Presidential decision-making. A President and those
who assist him must be free to explore alternatives in the process of shaping policies and
making decisions and to do so in a way many would be unwilling to express except
privately. These are the considerations justifying a presumptive privilege for Presidential
communications. The privilege is fundamental to the operation of government and

65
inextricably rooted in the separation of powers under the Constitution x x x " (Emphasis
and underscoring supplied)

Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein
petitioners. It did not involve, as expressly stated in the decision, the right of the people
to information.78 Nonetheless, the Court recognized that there are certain types of
information which the government may withhold from the public, thus acknowledging, in
substance if not in name, that executive privilege may be claimed against citizens’
demands for information.

In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the common law
holding that there is a "governmental privilege against public disclosure with respect to
state secrets regarding military, diplomatic and other national security matters." 80 The
same case held that closed-door Cabinet meetings are also a recognized limitation on the
right to information.

Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right to
information does not extend to matters recognized as "privileged information under the
separation of powers,"82 by which the Court meant Presidential conversations,
correspondences, and discussions in closed-door Cabinet meetings. It also held that
information on military and diplomatic secrets and those affecting national security, and
information on investigations of crimes by law enforcement agencies before the
prosecution of the accused were exempted from the right to information.

From the above discussion on the meaning and scope of executive privilege, both in the
United States and in this jurisdiction, a clear principle emerges. Executive privilege,
whether asserted against Congress, the courts, or the public, is recognized only in relation
to certain types of information of a sensitive character. While executive privilege is a
constitutional concept, a claim thereof may be valid or not depending on the ground
invoked to justify it and the context in which it is made. Noticeably absent is any
recognition that executive officials are exempt from the duty to disclose information by
the mere fact of being executive officials. Indeed, the extraordinary character of the
exemptions indicates that the presumption inclines heavily against executive secrecy and
in favor of disclosure.

Validity of Section 1

Section 1 is similar to Section 3 in that both require the officials covered by them to
secure the consent of the President prior to appearing before Congress. There are
significant differences between the two provisions, however, which constrain this Court
to discuss the validity of these provisions separately.

Section 1 specifically applies to department heads. It does not, unlike Section 3, require
a prior determination by any official whether they are covered by E.O. 464. The President
herself has, through the challenged order, made the determination that they are. Further,
unlike also Section 3, the coverage of department heads under Section 1 is not made to
depend on the department heads’ possession of any information which might be covered
by executive privilege. In fact, in marked contrast to Section 3 vis-à-vis Section 2, there
is no reference to executive privilege at all. Rather, the required prior consent under
Section 1 is grounded on Article VI, Section 22 of the Constitution on what has been
referred to as the question hour.

SECTION 22. The heads of departments may upon their own initiative, with the consent
of the President, or upon the request of either House, as the rules of each House shall

66
provide, appear before and be heard by such House on any matter pertaining to their
departments. Written questions shall be submitted to the President of the Senate or the
Speaker of the House of Representatives at least three days before their scheduled
appearance. Interpellations shall not be limited to written questions, but may cover
matters related thereto. When the security of the State or the public interest so requires
and the President so states in writing, the appearance shall be conducted in executive
session.

Determining the validity of Section 1 thus requires an examination of the meaning of

Section 22 of Article VI. Section 22 which provides for the question hour must be
interpreted vis-à-vis Section 21 which provides for the power of either House of Congress
to "conduct inquiries in aid of legislation." As the following excerpt of the deliberations of
the Constitutional Commission shows, the framers were aware that these two provisions
involved distinct functions of Congress.

MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the Question

Hour] yesterday, I noticed that members of the Cabinet cannot be compelled anymore
to appear before the House of Representatives or before the Senate. I have a particular
problem in this regard, Madam President, because in our experience in the Regular
Batasang Pambansa – as the Gentleman himself has experienced in the interim Batasang
Pambansa – one of the most competent inputs that we can put in our committee
deliberations, either in aid of legislation or in congressional investigations, is the
testimonies of Cabinet ministers. We usually invite them, but if they do not come and it
is a congressional investigation, we usually issue subpoenas.

I want to be clarified on a statement made by Commissioner Suarez when he said that

the fact that the Cabinet ministers may refuse to come to the House of Representatives
or the Senate [when requested under Section 22] does not mean that they need not
come when they are invited or subpoenaed by the committee of either House when it
comes to inquiries in aid of legislation or congressional investigation. According to
Commissioner Suarez, that is allowed and their presence can be had under Section 21.
Does the gentleman confirm this, Madam President?

MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to what
was originally the Question Hour, whereas, Section 21 would refer specifically to inquiries
in aid of legislation, under which anybody for that matter, may be summoned and if he
refuses, he can be held in contempt of the House.83 (Emphasis and underscoring
supplied)

A distinction was thus made between inquiries in aid of legislation and the question hour.
While attendance was meant to be discretionary in the question hour, it was compulsory
in inquiries in aid of legislation. The reference to Commissioner Suarez bears noting, he
being one of the proponents of the amendment to make the appearance of department
heads discretionary in the question hour.

So clearly was this distinction conveyed to the members of the Commission that the
Committee on Style, precisely in recognition of this distinction, later moved the provision
on question hour from its original position as Section 20 in the original draft down to
Section 31, far from the provision on inquiries in aid of legislation. This gave rise to the
following exchange during the deliberations:

MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style] We

now go, Mr. Presiding Officer, to the Article on Legislative and may I request the
chairperson of the Legislative Department, Commissioner Davide, to give his reaction.

67
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized.|avvphi|.net

MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the Question
Hour. I propose that instead of putting it as Section 31, it should follow Legislative
Inquiries.

THE PRESIDING OFFICER. What does the committee say?

MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer.

MR. MAAMBONG. Actually, we considered that previously when we sequenced this but
we reasoned that in Section 21, which is Legislative Inquiry, it is actually a power of
Congress in terms of its own lawmaking; whereas, a Question Hour is not actually a power
in terms of its own lawmaking power because in Legislative Inquiry, it is in aid of
legislation. And so we put Question Hour as Section 31. I hope Commissioner Davide will
consider this.

MR. DAVIDE. The Question Hour is closely related with the legislative power, and it is
precisely as a complement to or a supplement of the Legislative Inquiry. The appearance
of the members of Cabinet would be very, very essential not only in the application of
check and balance but also, in effect, in aid of legislation.

MR. MAAMBONG. After conferring with the committee, we find merit in the suggestion of
Commissioner Davide. In other words, we are accepting that and so this Section 31 would
now become Section 22. Would it be, Commissioner Davide?

MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)

Consistent with their statements earlier in the deliberations, Commissioners Davide and
Maambong proceeded from the same assumption that these provisions pertained to two
different functions of the legislature. Both Commissioners understood that the power to
conduct inquiries in aid of legislation is different from the power to conduct inquiries
during the question hour. Commissioner Davide’s only concern was that the two
provisions on these distinct powers be placed closely together, they being complementary
to each other. Neither Commissioner considered them as identical functions of Congress.

The foregoing opinion was not the two Commissioners’ alone. From the above-quoted
exchange, Commissioner Maambong’s committee – the Committee on Style – shared the
view that the two provisions reflected distinct functions of Congress. Commissioner
Davide, on the other hand, was speaking in his capacity as Chairman of the Committee
on the Legislative Department. His views may thus be presumed as representing that of
his Committee.

In the context of a parliamentary system of government, the "question hour" has a

definite meaning. It is a period of confrontation initiated by Parliament to hold the Prime
Minister and the other ministers accountable for their acts and the operation of the
government,85 corresponding to what is known in Britain as the question period. There
was a specific provision for a question hour in the 1973 Constitution86 which made the
appearance of ministers mandatory. The same perfectly conformed to the parliamentary
system established by that Constitution, where the ministers are also members of the
legislature and are directly accountable to it.

An essential feature of the parliamentary system of government is the immediate

accountability of the Prime Minister and the Cabinet to the National Assembly. They shall
be responsible to the National Assembly for the program of government and shall
68
determine the guidelines of national policy. Unlike in the presidential system where the
tenure of office of all elected officials cannot be terminated before their term expired, the
Prime Minister and the Cabinet remain in office only as long as they enjoy the confidence
of the National Assembly. The moment this confidence is lost the Prime Minister and the
Cabinet may be changed.87

The framers of the 1987 Constitution removed the mandatory nature of such appearance
during the question hour in the present Constitution so as to conform more fully to a
system of separation of powers.88 To that extent, the question hour, as it is presently
understood in this jurisdiction, departs from the question period of the parliamentary
system. That department heads may not be required to appear in a question hour does
not, however, mean that the legislature is rendered powerless to elicit information from
them in all circumstances. In fact, in light of the absence of a mandatory question period,
the need to enforce Congress’ right to executive information in the performance of its
legislative function becomes more imperative. As Schwartz observes:

Indeed, if the separation of powers has anything to tell us on the subject under
discussion, it is that the Congress has the right to obtain information from any source –
even from officials of departments and agencies in the executive branch. In the United
States there is, unlike the situation which prevails in a parliamentary system such as that
in Britain, a clear separation between the legislative and executive branches. It is this
very separation that makes the congressional right to obtain information from the
executive so essential, if the functions of the Congress as the elected representatives of
the people are adequately to be carried out. The absence of close rapport between the
legislative and executive branches in this country, comparable to those which exist under
a parliamentary system, and the nonexistence in the Congress of an institution such as
the British question period have perforce made reliance by the Congress upon its right to
obtain information from the executive essential, if it is intelligently to perform its
legislative tasks. Unless the Congress possesses the right to obtain executive information,
its power of oversight of administration in a system such as ours becomes a power devoid
of most of its practical content, since it depends for its effectiveness solely upon
information parceled out ex gratia by the executive.89 (Emphasis and underscoring
supplied)

Sections 21 and 22, therefore, while closely related and complementary to each other,
should not be considered as pertaining to the same power of Congress. One specifically
relates to the power to conduct inquiries in aid of legislation, the aim of which is to elicit
information that may be used for legislation, while the other pertains to the power to
conduct a question hour, the objective of which is to obtain information in pursuit of
Congress’ oversight function.

When Congress merely seeks to be informed on how department heads are implementing
the statutes which it has issued, its right to such information is not as imperative as that
of the President to whom, as Chief Executive, such department heads must give a report
of their performance as a matter of duty. In such instances, Section 22, in keeping with
the separation of powers, states that Congress may only request their appearance.
Nonetheless, when the inquiry in which Congress requires their appearance is "in aid of
legislation" under Section 21, the appearance is mandatory for the same reasons stated
in Arnault.90

In fine, the oversight function of Congress may be facilitated by compulsory process only
to the extent that it is performed in pursuit of legislation. This is consistent with the intent
discerned from the deliberations of the Constitutional Commission.

69
Ultimately, the power of Congress to compel the appearance of executive officials under
Section 21 and the lack of it under Section 22 find their basis in the principle of separation
of powers. While the executive branch is a co-equal branch of the legislature, it cannot
frustrate the power of Congress to legislate by refusing to comply with its demands for
information.

When Congress exercises its power of inquiry, the only way for department heads to
exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the
mere fact that they are department heads. Only one executive official may be exempted
from this power — the President on whom executive power is vested, hence, beyond the
reach of Congress except through the power of impeachment. It is based on her being
the highest official of the executive branch, and the due respect accorded to a co-equal
branch of government which is sanctioned by a long-standing custom.

By the same token, members of the Supreme Court are also exempt from this power of
inquiry. Unlike the Presidency, judicial power is vested in a collegial body; hence, each
member thereof is exempt on the basis not only of separation of powers but also on the
fiscal autonomy and the constitutional independence of the judiciary. This point is not in
dispute, as even counsel for the Senate, Sen. Joker Arroyo, admitted it during the oral
argument upon interpellation of the Chief Justice.

Having established the proper interpretation of Section 22, Article VI of the Constitution,
the Court now proceeds to pass on the constitutionality of Section 1 of E.O. 464.

Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution

and the absence of any reference to inquiries in aid of legislation, must be construed as
limited in its application to appearances of department heads in the question hour
contemplated in the provision of said Section 22 of Article VI. The reading is dictated by
the basic rule of construction that issuances must be interpreted, as much as possible, in
a way that will render it constitutional.

The requirement then to secure presidential consent under Section 1, limited as it is only
to appearances in the question hour, is valid on its face. For under Section 22, Article VI
of the Constitution, the appearance of department heads in the question hour is
discretionary on their part.

Section 1 cannot, however, be applied to appearances of department heads in inquiries

in aid of legislation. Congress is not bound in such instances to respect the refusal of the
department head to appear in such inquiry, unless a valid claim of privilege is
subsequently made, either by the President herself or by the Executive Secretary.

Validity of Sections 2 and 3

Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure
the consent of the President prior to appearing before either house of Congress. The
enumeration is broad. It covers all senior officials of executive departments, all officers
of the AFP and the PNP, and all senior national security officials who, in the judgment of
the heads of offices designated in the same section (i.e. department heads, Chief of Staff
of the AFP, Chief of the PNP, and the National Security Adviser), are "covered by the
executive privilege."

The enumeration also includes such other officers as may be determined by the President.
Given the title of Section 2 — "Nature, Scope and Coverage of Executive Privilege" —, it
is evident that under the rule of ejusdem generis, the determination by the President

70
under this provision is intended to be based on a similar finding of coverage under
executive privilege.

En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive
privilege actually covers persons. Such is a misuse of the doctrine. Executive privilege, as
discussed above, is properly invoked in relation to specific categories of information and
not to categories of persons.

In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage
of executive privilege, the reference to persons being "covered by the executive privilege"
may be read as an abbreviated way of saying that the person is in possession of
information which is, in the judgment of the head of office concerned, privileged as
defined in Section 2(a). The Court shall thus proceed on the assumption that this is the
intention of the challenged order.

Upon a determination by the designated head of office or by the President that an official
is "covered by the executive privilege," such official is subjected to the requirement that
he first secure the consent of the President prior to appearing before Congress. This
requirement effectively bars the appearance of the official concerned unless the same is
permitted by the President. The proviso allowing the President to give its consent means
nothing more than that the President may reverse a prohibition which already exists by
virtue of E.O. 464.

Thus, underlying this requirement of prior consent is the determination by a head of

office, authorized by the President under E.O. 464, or by the President herself, that such
official is in possession of information that is covered by executive privilege. This
determination then becomes the basis for the official’s not showing up in the legislative
investigation.

In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present,
such invocation must be construed as a declaration to Congress that the President, or a
head of office authorized by the President, has determined that the requested information
is privileged, and that the President has not reversed such determination. Such
declaration, however, even without mentioning the term "executive privilege," amounts
to an implied claim that the information is being withheld by the executive branch, by
authority of the President, on the basis of executive privilege. Verily, there is an implied
claim of privilege.

The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate
President Drilon illustrates the implied nature of the claim of privilege authorized by E.O.
464. It reads:

In connection with the inquiry to be conducted by the Committee of the Whole regarding
the Northrail Project of the North Luzon Railways Corporation on 29 September 2005 at
10:00 a.m., please be informed that officials of the Executive Department invited to
appear at the meeting will not be able to attend the same without the consent of the
President, pursuant to Executive Order No. 464 (s. 2005), entitled "Ensuring Observance
Of The Principle Of Separation Of Powers, Adherence To The Rule On Executive Privilege
And Respect For The Rights Of Public Officials Appearing In Legislative Inquiries In Aid
Of Legislation Under The Constitution, And For Other Purposes". Said officials have not
secured the required consent from the President. (Underscoring supplied)

The letter does not explicitly invoke executive privilege or that the matter on which these
officials are being requested to be resource persons falls under the recognized grounds

71
of the privilege to justify their absence. Nor does it expressly state that in view of the
lack of consent from the President under E.O. 464, they cannot attend the hearing.

Significant premises in this letter, however, are left unstated, deliberately or not. The
letter assumes that the invited officials are covered by E.O. 464. As explained earlier,
however, to be covered by the order means that a determination has been made, by the
designated head of office or the President, that the invited official possesses information
that is covered by executive privilege. Thus, although it is not stated in the letter that
such determination has been made, the same must be deemed implied. Respecting the
statement that the invited officials have not secured the consent of the President, it only
means that the President has not reversed the standing prohibition against their
appearance before Congress.

Inevitably, Executive Secretary Ermita’s letter leads to the conclusion that the executive
branch, either through the President or the heads of offices authorized under E.O. 464,
has made a determination that the information required by the Senate is privileged, and
that, at the time of writing, there has been no contrary pronouncement from the
President. In fine, an implied claim of privilege has been made by the executive.

While there is no Philippine case that directly addresses the issue of whether executive
privilege may be invoked against Congress, it is gathered from Chavez v. PEA that certain
information in the possession of the executive may validly be claimed as privileged even
against Congress. Thus, the case holds:

There is no claim by PEA that the information demanded by petitioner is privileged

information rooted in the separation of powers. The information does not cover
Presidential conversations, correspondences, or discussions during closed-door Cabinet
meetings which, like internal-deliberations of the Supreme Court and other collegiate
courts, or executive sessions of either house of Congress, are recognized as confidential.
This kind of information cannot be pried open by a co-equal branch of government. A
frank exchange of exploratory ideas and assessments, free from the glare of publicity and
pressure by interested parties, is essential to protect the independence of decision-
making of those tasked to exercise Presidential, Legislative and Judicial power. This is not
the situation in the instant case.91 (Emphasis and underscoring supplied)

Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact
that it sanctions claims of executive privilege. This Court must look further and assess
the claim of privilege authorized by the Order to determine whether it is valid.

While the validity of claims of privilege must be assessed on a case to case basis,
examining the ground invoked therefor and the particular circumstances surrounding it,
there is, in an implied claim of privilege, a defect that renders it invalid per se. By its very
nature, and as demonstrated by the letter of respondent Executive Secretary quoted
above, the implied claim authorized by Section 3 of E.O. 464 is not accompanied by any
specific allegation of the basis thereof (e.g., whether the information demanded involves
military or diplomatic secrets, closed-door Cabinet meetings, etc.). While Section 2(a)
enumerates the types of information that are covered by the privilege under the
challenged order, Congress is left to speculate as to which among them is being referred
to by the executive. The enumeration is not even intended to be comprehensive, but a
mere statement of what is included in the phrase "confidential or classified information
between the President and the public officers covered by this executive order."

Certainly, Congress has the right to know why the executive considers the requested
information privileged. It does not suffice to merely declare that the President, or an

72
authorized head of office, has determined that it is so, and that the President has not
overturned that determination. Such declaration leaves Congress in the dark on how the
requested information could be classified as privileged. That the message is couched in
terms that, on first impression, do not seem like a claim of privilege only makes it more
pernicious. It threatens to make Congress doubly blind to the question of why the
executive branch is not providing it with the information that it has requested.

A claim of privilege, being a claim of exemption from an obligation to disclose information,

must, therefore, be clearly asserted. As U.S. v. Reynolds teaches:

The privilege belongs to the government and must be asserted by it; it can neither be
claimed nor waived by a private party. It is not to be lightly invoked. There must be a
formal claim of privilege, lodged by the head of the department which has control over
the matter, after actual personal consideration by that officer. The court itself must
determine whether the circumstances are appropriate for the claim of privilege, and yet
do so without forcing a disclosure of the very thing the privilege is designed to
protect.92 (Underscoring supplied)

Absent then a statement of the specific basis of a claim of executive privilege, there is no
way of determining whether it falls under one of the traditional privileges, or whether,
given the circumstances in which it is made, it should be respected.93 These, in substance,
were the same criteria in assessing the claim of privilege asserted against the
Ombudsman in Almonte v. Vasquez94 and, more in point, against a committee of the
Senate in Senate Select Committee on Presidential Campaign Activities v. Nixon.95

A.O. Smith v. Federal Trade Commission is enlightening:

[T]he lack of specificity renders an assessment of the potential harm resulting from
disclosure impossible, thereby preventing the Court from balancing such harm against
plaintiffs’ needs to determine whether to override any claims of privilege.96 (Underscoring
supplied)

And so is U.S. v. Article of Drug:97

On the present state of the record, this Court is not called upon to perform this balancing
operation. In stating its objection to claimant’s interrogatories, government asserts, and
nothing more, that the disclosures sought by claimant would inhibit the free expression
of opinion that non-disclosure is designed to protect. The government has not shown –
nor even alleged – that those who evaluated claimant’s product were involved in internal
policymaking, generally, or in this particular instance. Privilege cannot be set up by an
unsupported claim. The facts upon which the privilege is based must be established. To
find these interrogatories objectionable, this Court would have to assume that the
evaluation and classification of claimant’s products was a matter of internal policy
formulation, an assumption in which this Court is unwilling to indulge sua
sponte.98 (Emphasis and underscoring supplied)

Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency must
provide ‘precise and certain’ reasons for preserving the confidentiality of requested
information."

Black v. Sheraton Corp. of America100 amplifies, thus:

A formal and proper claim of executive privilege requires a specific designation and
description of the documents within its scope as well as precise and certain reasons for
preserving their confidentiality. Without this specificity, it is impossible for a court to
73
analyze the claim short of disclosure of the very thing sought to be protected. As the
affidavit now stands, the Court has little more than its sua sponte speculation with which
to weigh the applicability of the claim. An improperly asserted claim of privilege is no
claim of privilege. Therefore, despite the fact that a claim was made by the proper
executive as Reynolds requires, the Court can not recognize the claim in the instant case
because it is legally insufficient to allow the Court to make a just and reasonable
determination as to its applicability. To recognize such a broad claim in which the
Defendant has given no precise or compelling reasons to shield these documents from
outside scrutiny, would make a farce of the whole procedure.101 (Emphasis and
underscoring supplied)

Due respect for a co-equal branch of government, moreover, demands no less than a
claim of privilege clearly stating the grounds therefor. Apropos is the following ruling in
McPhaul v. U.S:102

We think the Court’s decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is
highly relevant to these questions. For it is as true here as it was there, that ‘if (petitioner)
had legitimate reasons for failing to produce the records of the association, a decent
respect for the House of Representatives, by whose authority the subpoenas issued,
would have required that (he) state (his) reasons for noncompliance upon the return of
the writ. Such a statement would have given the Subcommittee an opportunity to avoid
the blocking of its inquiry by taking other appropriate steps to obtain the records. ‘To
deny the Committee the opportunity to consider the objection or remedy is in itself a
contempt of its authority and an obstruction of its processes. His failure to make any such
statement was "a patent evasion of the duty of one summoned to produce papers before
a congressional committee[, and] cannot be condoned." (Emphasis and underscoring
supplied; citations omitted)

Upon the other hand, Congress must not require the executive to state the reasons for
the claim with such particularity as to compel disclosure of the information which the
privilege is meant to protect.103 A useful analogy in determining the requisite degree of
particularity would be the privilege against self-incrimination. Thus, Hoffman v.
U.S.104 declares:

The witness is not exonerated from answering merely because he declares that in so
doing he would incriminate himself – his say-so does not of itself establish the hazard of
incrimination. It is for the court to say whether his silence is justified, and to require him
to answer if ‘it clearly appears to the court that he is mistaken.’ However, if the witness,
upon interposing his claim, were required to prove the hazard in the sense in which a
claim is usually required to be established in court, he would be compelled to surrender
the very protection which the privilege is designed to guarantee. To sustain the privilege,
it need only be evident from the implications of the question, in the setting in which it is
asked, that a responsive answer to the question or an explanation of why it cannot be
answered might be dangerous because injurious disclosure could result." x x x (Emphasis
and underscoring supplied)

The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid
per se. It is not asserted. It is merely implied. Instead of providing precise and certain
reasons for the claim, it merely invokes E.O. 464, coupled with an announcement that
the President has not given her consent. It is woefully insufficient for Congress to
determine whether the withholding of information is justified under the circumstances of
each case. It severely frustrates the power of inquiry of Congress.

In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.

74
No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines,
binding only on the heads of office mentioned in Section 2(b), on what is covered by
executive privilege. It does not purport to be conclusive on the other branches of
government. It may thus be construed as a mere expression of opinion by the President
regarding the nature and scope of executive privilege.

Petitioners, however, assert as another ground for invalidating the challenged order the
alleged unlawful delegation of authority to the heads of offices in Section 2(b). Petitioner
Senate of the Philippines, in particular, cites the case of the United States where, so it
claims, only the President can assert executive privilege to withhold information from
Congress.

Section 2(b) in relation to Section 3 virtually provides that, once the head of office
determines that a certain information is privileged, such determination is presumed to
bear the President’s authority and has the effect of prohibiting the official from appearing
before Congress, subject only to the express pronouncement of the President that it is
allowing the appearance of such official. These provisions thus allow the President to
authorize claims of privilege by mere silence.

Such presumptive authorization, however, is contrary to the exceptional nature of the

privilege. Executive privilege, as already discussed, is recognized with respect to
information the confidential nature of which is crucial to the fulfillment of the unique role
and responsibilities of the executive branch,105 or in those instances where exemption
from disclosure is necessary to the discharge of highly important executive
responsibilities.106 The doctrine of executive privilege is thus premised on the fact that
certain informations must, as a matter of necessity, be kept confidential in pursuit of the
public interest. The privilege being, by definition, an exemption from the obligation to
disclose information, in this case to Congress, the necessity must be of such high degree
as to outweigh the public interest in enforcing that obligation in a particular case.

In light of this highly exceptional nature of the privilege, the Court finds it essential to
limit to the President the power to invoke the privilege. She may of course authorize the
Executive Secretary to invoke the privilege on her behalf, in which case the Executive
Secretary must state that the authority is "By order of the President," which means that
he personally consulted with her. The privilege being an extraordinary power, it must be
wielded only by the highest official in the executive hierarchy. In other words, the
President may not authorize her subordinates to exercise such power. There is even less
reason to uphold such authorization in the instant case where the authorization is not
explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on
this score.

It follows, therefore, that when an official is being summoned by Congress on a matter

which, in his own judgment, might be covered by executive privilege, he must be afforded
reasonable time to inform the President or the Executive Secretary of the possible need
for invoking the privilege. This is necessary in order to provide the President or the
Executive Secretary with fair opportunity to consider whether the matter indeed calls for
a claim of executive privilege. If, after the lapse of that reasonable time, neither the
President nor the Executive Secretary invokes the privilege, Congress is no longer bound
to respect the failure of the official to appear before Congress and may then opt to avail
of the necessary legal means to compel his appearance.

The Court notes that one of the expressed purposes for requiring officials to secure the
consent of the President under Section 3 of E.O. 464 is to ensure "respect for the rights
of public officials appearing in inquiries in aid of legislation." That such rights must indeed

75
be respected by Congress is an echo from Article VI Section 21 of the Constitution
mandating that "[t]he rights of persons appearing in or affected by such inquiries shall
be respected."

In light of the above discussion of Section 3, it is clear that it is essentially an authorization

for implied claims of executive privilege, for which reason it must be invalidated. That
such authorization is partly motivated by the need to ensure respect for such officials
does not change the infirm nature of the authorization itself.

Right to Information

E.O 464 is concerned only with the demands of Congress for the appearance of executive
officials in the hearings conducted by it, and not with the demands of citizens for
information pursuant to their right to information on matters of public concern. Petitioners
are not amiss in claiming, however, that what is involved in the present controversy is
not merely the legislative power of inquiry, but the right of the people to information.

There are, it bears noting, clear distinctions between the right of Congress to information
which underlies the power of inquiry and the right of the people to information on matters
of public concern. For one, the demand of a citizen for the production of documents
pursuant to his right to information does not have the same obligatory force as a
subpoena duces tecum issued by Congress. Neither does the right to information grant a
citizen the power to exact testimony from government officials. These powers belong
only to Congress and not to an individual citizen.

Thus, while Congress is composed of representatives elected by the people, it does not
follow, except in a highly qualified sense, that in every exercise of its power of inquiry,
the people are exercising their right to information.

To the extent that investigations in aid of legislation are generally conducted in public,
however, any executive issuance tending to unduly limit disclosures of information in such
investigations necessarily deprives the people of information which, being presumed to
be in aid of legislation, is presumed to be a matter of public concern. The citizens are
thereby denied access to information which they can use in formulating their own
opinions on the matter before Congress — opinions which they can then communicate to
their representatives and other government officials through the various legal means
allowed by their freedom of expression. Thus holds Valmonte v. Belmonte:

It is in the interest of the State that the channels for free political discussion be maintained
to the end that the government may perceive and be responsive to the people’s will. Yet,
this open dialogue can be effective only to the extent that the citizenry is informed and
thus able to formulate its will intelligently. Only when the participants in the discussion
are aware of the issues and have access to information relating thereto can such bear
fruit.107(Emphasis and underscoring supplied)

The impairment of the right of the people to information as a consequence of E.O. 464
is, therefore, in the sense explained above, just as direct as its violation of the legislature’s
power of inquiry.

Implementation of E.O. 464 prior to its publication

While E.O. 464 applies only to officials of the executive branch, it does not follow that
the same is exempt from the need for publication. On the need for publishing even those
statutes that do not directly apply to people in general, Tañada v. Tuvera states:

76
The term "laws" should refer to all laws and not only to those of general application, for
strictly speaking all laws relate to the people in general albeit there are some that do not
apply to them directly. An example is a law granting citizenship to a particular individual,
like a relative of President Marcos who was decreed instant naturalization. It surely cannot
be said that such a law does not affect the public although it unquestionably does not
apply directly to all the people. The subject of such law is a matter of public interest
which any member of the body politic may question in the political forums or, if he is a
proper party, even in courts of justice.108 (Emphasis and underscoring supplied)

Although the above statement was made in reference to statutes, logic dictates that the
challenged order must be covered by the publication requirement. As explained above,
E.O. 464 has a direct effect on the right of the people to information on matters of public
concern. It is, therefore, a matter of public interest which members of the body politic
may question before this Court. Due process thus requires that the people should have
been apprised of this issuance before it was implemented.

Conclusion

Congress undoubtedly has a right to information from the executive branch whenever it
is sought in aid of legislation. If the executive branch withholds such information on the
ground that it is privileged, it must so assert it and state the reason therefor and why it
must be respected.

The infirm provisions of E.O. 464, however, allow the executive branch to evade
congressional requests for information without need of clearly asserting a right to do so
and/or proffering its reasons therefor. By the mere expedient of invoking said provisions,
the power of Congress to conduct inquiries in aid of legislation is frustrated. That is
impermissible. For

[w]hat republican theory did accomplish…was to reverse the old presumption in favor of
secrecy, based on the divine right of kings and nobles, and replace it with a presumption
in favor of publicity, based on the doctrine of popular sovereignty. (Underscoring
supplied)109

Resort to any means then by which officials of the executive branch could refuse to
divulge information cannot be presumed valid. Otherwise, we shall not have merely
nullified the power of our legislature to inquire into the operations of government, but we
shall have given up something of much greater value – our right as a people to take part
in government.

WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order
No. 464 (series of 2005), "Ensuring Observance of the Principle of Separation of Powers,
Adherence to the Rule on Executive

Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries
in Aid of Legislation Under the Constitution, and For Other Purposes," are declared VOID.
Sections 1 and 2(a) are, however, VALID.

SO ORDERED.

77
ARTICLE 153
EN BANC

[G.R. No. 6219. March 16, 1911.]

THE UNITED STATES, Plaintiff-Appellee, v. MARTIN DOMINGO, ET

AL., Defendants-Appellants.

Maximino Mina and Jose Agoncillo, for Appellants.

Acting Attorney-General Harvey, for Appellee.

SYLLABUS

1. ELECTION CAMPAIGNS; DISTURBANCE OF MEETINGS; MISDEMEANOR. — Hold, That

the disorderly conduct of the defendants, as set out in detail in the opinion, did not
constitute the crime of "gravely" disturbing public order on the occasion of "a largely
attended reunion," or meeting, as defined in article 258 of the Penal Code, amounting,
as it did, to no more than a misdemeanor as defined and penalized in article 574 of the
Code.

2. ID.; ALLOWANCES MUST BE MADE BY BOTH PARTIES. — In the excitement of a hotly

contested political campaign, some allowances must be made for the tense state of public
feeling, and not every petty incident should be magnified into a matter of grave import.
Within reasonable limits, the candidates and their partisans must bear and forbear with
each other.

3. ID.; ASSEMBLIES, MARCHINGS AND CONDUCT OF CAMPAIGN IN GENERAL. — The

assembling of the people together, marching and countermarching in bands from place
to place, endeavoring by speeches and debate, both public and private, to hold together
the partisans of one set of policies or candidates and to draw away the partisans of
opposing policies and candidates, while it undoubtedly tends to disturb the peace and
quiet which ordinarily reigns in the community, does not involve a criminal breach of the
peace or disturbance of public order.

4. ID.; ID.; BREACHES OF THE PEACE; CONSIDERATION IN IMPOSING PENALTIES. —

In imposing a penalty for a breach of the peace on such occasions, it must not be
forgotten that the reprehensible conduct of the partisans does not consist in their
assembling together and making public demonstrations, but in exceeding those limits of
public order and good behavior beyond which, under the circumstances, the citizen may
not pass.

DECISION

CARSON, J.:

One of the candidates for the office of president of the municipality of Santa Maria,
Province of Ilocos Sur, at the last municipal elections held a public meeting for the
purpose of furthering his candidacy on the evening of the day before the election. The
meeting was well attended, from 150 to 250 persons being present, most of whom were
partisans of the candidate who organized it. It was addressed by various speakers,

78
including the candidate himself. Between the hours of 9 and 10 o’clock, about the time
when the last speaker was bringing his address to a close, a party of 100 persons, more
or less, composed largely, if not exclusively, of partisans of the opposing candidate for
the office of president, marched down the street to the inspiring airs of a guitar. When
this party arrived in front of the house where the meeting was being held, it stopped.
Some words passed between the members of the crowd on the street and the people at
the windows upstairs where the meeting was being held, but no attempt appears to have
been made by the party outside to enter the house or to disturb the meeting inside by
any concerted action, other than by standing in a large crowd about the doors of the
house in such a way as to necessarily distract the attention of those attending the meeting
inside by the mere fact that they were doing so. The last speech having come to an end,
the people inside the house crowded down the stairs and out on to the street; some of
the more timorous ones climbed out of the windows at the back of the house, but later
events demonstrate that there was no necessity for such a superabundance of precaution,
as, with possibly a single exception, those who went on to the street either went
peaceably to their homes or mingled with the party outside, without any attempt on the
part of the latter to do them any injury or in any way molest them. The single exception
to the peaceable dispersal of the crowd on that occasion was an altercation which arose
between two individuals, members respectively of the different parties, both of whom
were arrested by the police and taken to jail. Their arrest seems to have been occasioned
by their individual misconduct and not to have been in any way the result of a conflict
between the parties as a whole; and it does not clearly appear from the evidence which
of the two was the original aggressor. There is some testimony to the effect that some
of the members of the party outside threw stones at the house where the meeting was
in progress, but none of the stones appear to have entered the windows and there was
certainly no general stone throwing indulged in by the crowd who were standing
immediately under the windows where the meeting was being held. That there was some
slight disturbance connected with the closing of the meeting can not be doubted, but on
a review of the whole record we do not think that it could have been of a very serious
nature. Partisan feeling was running very high at the time, and to us it seems rather
remarkable that under all the circumstances a serious disturbance did not take place. We
are inclined to think that the party outside the house did not plan a serious disturbance
or intend that one should take place, as otherwise it could hardly have been avoided.
Their stopping in front of the house would appear to have had for its object an effort to
induce some of the persons who were attending the first meeting to accompany them to
other meetings being held at other places in the same town, where the claims of other
candidates for office were being pressed upon the attention of voters; and also perhaps,
to impress upon the minds of those attending the meeting inside, the fact that the
candidate who organized it was not the only one who could boast of a substantial
following at the elections to take place the following day.

The trial judge was of opinion that each and all of the members of the party who stopped
outside of the house where the meeting was being held were guilty of the crime of
"gravely" disturbing the public order on the occasion of a largely attended reunion or
meeting, as defined and penalized in article 258 of the Penal Code, and found the
appellants guilty of that crime. Five of them, who, as it appears, were officials of the
municipality, were sentenced to six months of arresto mayor and the payment of a fine
of 2,625 pesetas each, and seventeen others were sentenced to four months and one
day of arresto mayor and the payment of a fine of 1,500 pesetas each. We are of opinion,
however, that while the evidence sustains the finding of the trial court that all these
defendants were members of the gathering which stopped outside on the street while
the meeting was in progress inside, the offense committed by these appellants
constituted merely a misdemeanor as defined in section 4 of article 574 of the Penal
Code, which is as follows:jgc:chanrobles.com.ph

79
"ART. 574. A fine of from 15 to 125 pesetas and reprimand may be imposed
upon:chanrob1es virtual 1aw library

x x x

"4. Those who, without being included in other provisions of this code, shall lightly disturb
public order by using means that naturally would produce alarm or disturbance."cralaw
virtua1aw library

The trial judge based his conclusion that the defendants were guilty of the crime of
"gravely" or grossly disturbing the public order as defined and penalized in article 258 of
the Penal Code, on three grounds:chanrob1es virtual 1aw library

(1) Because the meeting which was disturbed was organized in connection with the
municipal elections to be held the next day;

(2) Because it appears that the ill-will engendered between the partisans of the various
candidates at the election, resulted in such general disorder that some days thereafter a
special detachment of Constabulary was required to keep the peace in the municipality;
and

(3) Because some of the members of the party comprising the crowd in the street held
municipal offices and were candidates for reelection thereto.

Under the provisions of Chapter VI [Title III, Book II] of the Penal Code we would be
entirely agreed with the trial judge in his characterization of the disturbance of which the
defendants were guilty, as a "grave" or a "gross" disturbance of public order, had it taken
place in connection with the actual holding of an election; for instance, in or about a
voting booth, or the place where the votes were being counted, or, perhaps on the public
highway along which voters on their way to exercise their right to vote must necessarily
pass. But we think that under all the circumstances of this case, the fact that numerous
meetings were being held at which the citizens and voters called together in public by
contending candidates and their partisans for the purpose of inducing or persuading them
to support one candidate or the other at the forthcoming election, tends to justify a
lenient rather than a severe judgment of the nature, object, and conduct of the gathering
of which the defendants formed a part. In the excitement of a hotly contested campaign,
some allowances must be made for the tense state of public feeling, and not every petty
incident should be magnified into a matter of grave import. Within reasonable limits the
candidates and their partisans should be willing to bear and forbear with each other,
recognizing that at such a time things are often said and done in the heat of the contest,
which the authors themselves in a calmer moment would be the first to deprecate. And
so the courts, in passing upon the question whether a breach of the peace has resulted
on such an occasion from the clash of contending wills and the conflict of opposing
policies, opinions, and sentiments, and in characterizing such public disorders as do
actually arise, should keep in mind the actual conditions. The assembling of the people
together, marching and countermarching in bands from place to place, endeavoring by
speeches and debate, both public and private, to hold together the partisans of one set
of policies or candidates and to draw away the partisans of opposing policies and
candidates, while it undoubtedly tends to disturb the peace and quiet which ordinarily
reigns in the community, does not necessarily involve a criminal breach of the peace or
disturbance of public order. Where no municipal ordinance or public law or regulation
forbidding such gatherings is violated, a criminal breach of the peace can not properly be

80
said to have been committed, unless the disturbance created is such that it exceeds the
limits within which the partisans may fairly be required to restrict themselves under the
circumstances; and in imposing a penalty for a breach of the peace on such occasions, it
must not be forgotten that the reprehensible conduct of the partisans does not consist of
their assembling together and making public demonstrations, but in exceeding those
limits of public order and good behavior beyond which, under the circumstances, the
citizen may not pass.

Nor can we agree with the trial judge that the conduct of these accused amounted to a
"grave" breach of the peace, because of the serious disorders which it appears broke out
in the municipality after the election. Had the proof shown that these disorders resulted
directly or even indirectly from the disorderly conduct of the crowd of which these accused
formed a part, that fact might perhaps be taken into consideration, in characterizing the
public disorder of which they were guilty; but there is not a particle of evidence which
shows any relation of cause and effect, between the conduct of these accused on the
night in question and the disturbances in the municipality which took place after the
election had been held.

So too, when it is considered that the local municipal officials had a perfect right to take
part in an election meeting and to join in a gathering of partisans of one candidate or the
other, we do not think that their presence in the crowd substantially affected its nature,
object, or purposes so as to convert the slight disorder of which its members were guilty
into a grave breach of the peace.

The judgment of conviction and the penalty imposed by the trial court should, therefore,
be reversed and we find all of the appellants and each of them guilty of the misdemeanor
defined and penalized in article 574, section 4, of the Penal Code, and sentence them
and each of them to pay a fine of P5 and the payment of their respective shares of the
costs in the first instance, the costs of this instance to be de oficio. So ordered.

Arellano, C.J., Mapa, Moreland and Trent, JJ., concur.

81
ARTICLE 163

G.R. No. L-2747 April 11, 1906

THE UNITED STATES, plaintiff-appellee,

vs.
AGUSTIN BASCO, defendant-appellant.

Vicente P. Delgado, for appellant.

Office of the Solicitor-General Araneta, for appellee.

MAPA, J.:

It was proved at the trial of this case that the defendant attempted to pay for a package
of cigarettes which he bought at a certain store with what appeared to be silver coin, but
which, as a matter of fact, was a Philippine copper cent; that he insisted that the owner
of the store should accept the same as a peseta, that is to say, a twenty cent piece; that
the latter refused to accept it upon noticing what the real value and denomination of the
coin was; that the defendant again insisted that the money be accepted and the owner
of the store refused to do so; that as a result of such refusal a quarrel ensued between
them; that a policeman then interfered, and upon being informed of what had happened,
placed the defendant under arrest and took him to the police station, where several
Mexican and Japanese coins were found in his possession together with a roll of Philippine
copper cents, the latter being silver plated, and identical with the coin which he had
attempted to pass at the store as a twenty-cent piece; and that upon an examination of
these plated coins it was found that they were genuine Philippine copper cents, which
apparently and been whitened with quicksilver to give them the color and brightness of
silver.

The defendant having been asked as to where he had obtained the said coins, first
answered that he had received them as change, but later admitted that he had silvered
them himself.

The court below found that these facts constituted the crime charged in the complaint —
that is to say, the counterfeiting of money — as defined and punished in article 286 of
the Penal Code, and sentenced the defendant to three years' imprisonment (presidio
correccional), and to pay a fine of 750 pesetas, and the costs of the proceedings.

The Attorney-General, in his brief filed in this court, contends that these facts do not
constitute the crime of counterfeiting money, but that of estafa, and for this reasons asks
that the defendant be acquitted of the crime charged in the complaint without prejudice
to the filing of another complaint against him for estafa.

We think that the Attorney-General's contention is correct. There can be no counterfeiting

of money when, as in this case, no spurious or clipped coin was used. The coins in
question were genuine copper cents and bore their original designs and inscriptions. The
defendant did not make or attempt to make any alteration in the designs and inscriptions
of the said coins. All that he did was to give them the appearance of silver pieces for the
purpose of passing them as twenty-cent coins. He did not, however, attempt to imitate
the peculiar design of such coins. The acts committed by the defendant for the purpose
of defrauding third persons by deceiving them us to the real value of the coins in question
constitute the crime of estafa and not of counterfeiting money. There were not legal
grounds upon which a charge for these latter offense could be based.

82
The judgment appealed from is hereby reversed and the defendant acquitted of the
charge of counterfeiting money contained in the complaint, and the Attorney-General is
directed to present another complaint against him for the crime of estafa. It is ordered
that the Mexican and Japanese coins found in the possession of the defendant be
returned to him. The costs of both instances are declared de oficio. After the expiration
of ten days from the date of final judgment, let the case be remanded to the Court of
First Instance from whence it came for proper procedure. So ordered.

83
ARTICLE 171

G.R. No. 180314 April 16, 2009

NORMALLAH A. PACASUM, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CHICO-NAZARIO, J.:

Before Us is a petition for review on certiorari which seeks to set aside the Decision 1 of
the Sandiganbayan in Crim. Case No. 27483 promulgated on 7 August 2007 which found
petitioner Normallah A. Pacasum guilty of Falsification under Article 171, paragraph 1 of
the Revised Penal Code, and its Resolution2 dated 22 October 2007 denying petitioner’s
Motion for Reconsideration and Motion for New Trial/Reception of Newly Discovered
Evidence.

On 2 May 2002, petitioner was charged before the Sandiganbayan with Falsification of
Public Documents, defined and punished under paragraph 1 of Article 171 of the Revised
Penal Code, committed as follows:

That on or about August 22-23, 2000, or sometime prior or subsequent thereto in

Cotabato City, Philippines and within the jurisdiction of this Honorable Court, the accused
NORMALLAH A. PACASUM, a high ranking public official being the Regional Secretary of
the Department of Tourism in the Autonomous Region in Muslim Mindanao, Cotabato
City, while in the performance of her official functions, committing the offense in relation
thereto, taking advantage of her official position, did then and there, willfully, unlawfully
and feloniously falsified her Employee Clearance3 submitted to the Office of the Regional
Governor of the Autonomous Region in Muslim Mindanao, by imitating the signature of
Laura Y. Pangilan, the Supply officer I of the DOT-ARMM, for the purpose of claiming her
salary for the months of August and September 2000.4

On 29 May 2002, petitioner filed a Motion for Reinvestigation asking that she be given
the opportunity to file her counter-affidavit during a preliminary investigation in order
that her right to due process would not be violated.5Petitioner further filed an Urgent
Motion for Preliminary Investigation and/or Reinvestigation with a Prayer to Recall or
Defer Issuance of Warrant of Arrest.6

On 4 May 2004, the Sandiganbayan denied petitioner’s motion for preliminary

investigation/reinvestigation decreeing that petitioner was not deprived of the
opportunity to be heard before the Office of the Ombudsman as she had waived her right
to be heard on preliminary investigation.7

On 16 June 2004, petitioner, assisted by counsel de parte, pleaded not guilty to the crime
charged.8 Thereafter, pre-trial conference was held and the Sandiganbayan issued a Pre-
Trial Order.9 The parties did not enter any admission or stipulation of facts, and agreed
that the issues to be resolved were as follows:

1. Whether or not accused Normallah Pacasum, being then the Regional Secretary
of the Department of Tourism in the Autonomous Region in Muslim Mindanao,
Cotabato City, falsified her Employee Clearance, which she submitted to the Office
of the Regional Governor of the Autonomous Region in Muslim Mindanao, by

84
 imitating the signature of Laura Y. Pangilan, the Supply Officer I of the DOT-ARMM,
for purposes of claiming her salary for the months of August and September 2000;

2. Whether or not the accused took advantage of her official position in order to
commit the crime charged.10

The prosecution presented three witnesses, namely: Subaida K. Pangilan,11 former

Human Resource Management Officer V of the Autonomous Region in Muslim Mindanao
(ARMM); Laura Y. Pangilan, former Supply Officer of the Department of Tourism,
ARMM;12 and Rebecca A. Agatep,13 Telegraph Operator, Telegraph Office, Quezon City.

Subaida K. Pangilan (Pangilan) testified that she was a retired government employee and
formerly a Human Resource Management Officer V of the ARMM which position she held
from May 1993 to 28 May 2003. As such, one of her duties was to receive applications
for clearance of Regional Secretaries of the ARMM. She explained that an Employees
Clearance was a requirement to be submitted to the Office of the Regional Director by
retiring employees, employees leaving the country or those applying for leave in excess
of thirty days. The person applying for clearance shall get a copy of the employees
clearance and shall accomplish the same by having the different division heads sign it.

Mrs. Pangilan disclosed that she knew the accused-petitioner – Norma Pacasum – to be
the former Regional Secretary of the Department of Tourism (DOT), ARMM. She narrated
that in the year 2000, petitioner submitted the original of an Employees Clearance to her
office in compliance with the memorandum14 dated 8 August 2000 issued by Governor
Nur Misuari, directing all officers and employees to clear themselves of property and
money accountabilities before their salaries for August and September 2000 would be
paid. Upon inspection of the Employees Clearance, she noticed that the signature of Laura
Pangilan (Laura) contained in said document was not hers. She said Laura Pangilan was
her daughter-in-law, and that the latter’s signature was very familiar to her. Mrs. Pangilan
immediately photocopied15 the original Employees Clearance with the intention of sending
the same to her daughter-in-law for the purpose of having the latter confirm if the
signature on top of her name in the Employees Clearance was hers. There being no
messenger available, she instead called up Laura to come to her office to verify the
signature. Laura, whose office was only a walking distance away, came and inspected
the clearance, and denied signing the same. After she denied that she signed the
clearance, and while they were conversing, the bearer of the Employees Clearance took
said document and left.

Mrs. Pangilan said she did not know the name of the person who took the original of the
Employee Clearance, but said that the latter was a niece and staff member of the
petitioner. She said that all the signatures16 appearing in the Employees Clearance were
all genuine except for Laura’s signature.

The next witness for the prosecution was Laura Y. Pangilan, the person whose signature
was allegedly imitated. Laura testified that presently she was holding the position of
Human Resource Management Officer II of the Department of Tourism - ARMM. Prior to
said position, she was the Supply Officer of the DOT - ARMM from 1994 to January 2001.
As such, she issued memorandum receipts (MR) to employees who were issued
government property, and received surrendered office properties from officers and
employees of the DOT - ARMM. She said she knew the accused, as she was their Regional
Secretary of the DOT - ARMM.

Laura recounted that on 9 August 2002, Marie Cris17 Batuampar, an officemate and niece
of petitioner Pacasum, went to her house with the Employees Clearance of petitioner.

85
Batuampar requested her to sign in order to clear petitioner of all property
accountabilities. She refused to sign the clearance because at that time, petitioner had
not yet turned over all the office properties issued to her. A few days later, she was called
by her mother-in-law to go to the latter’s office and inspect the Employees Clearance
submitted by the representative of petitioner. She went to her mother-in-law’s office and
was shown the Employees Clearance of petitioner. Upon seeing the same, she denied the
signature18 appearing on top of her name. Thereupon, Marie Cris Batuampar, the
representative of petitioner, took the Employees Clearance and left.

Laura revealed she executed a joint complaint-affidavit19 dated 28 August 2001 regarding
the instant case. She issued a certification20 with a memorandum receipt21 dated 23
November 1999, signed22 by petitioner. The certification attested she did not sign
petitioner’s Employees Clearance because all the office properties issued to petitioner had
not been turned over or returned to the Supply Officer of the DOT - ARMM. Finally, she
said that as of 2 January 2005, her last day as Supply Officer, petitioner had not returned
anything.

The last witness for the prosecution, Rebecca A. Agatep, Telegraph Operator, Telegraph
Office, Quezon City, testified that she had been a telegraph operator for nineteen years.
On 31 May 2005, she was at the Telegraph Office in Commission on Audit, Quezon City.
She received two telegrams23 for transmissions both dated 31 May 2005. One was
addressed to petitioner and the other to Marie Cris Batuampar. Upon receiving said
documents, she transmitted the documents through telegram. The telegram addressed
to petitioner was received by her relative, Manso Alonto, in her residence on 1 June 2005,
while that addressed to Ms. Batuampar was transmitted to, and received in, Cotabato
City on 1 June 2005.24

On 4 July 2005, the prosecution formally offered25 its documentary evidence consisting
of Exhibits A, A-1, A-1-a, A-2, A-2-a, A-2-b, A-2-c, A-2-d, A-2-e, A-2-f, A-2-g, A-3, A-3-1,
A-4, A-4-a, A-5, A-6, A-7, A-8, and A-9, to which the accused filed her objections.26 The
trial court admitted all the exhibits on 10 August 2005.27

For the defense, petitioner and Atty. Jose I. Lorena, former ARMM Regional Solicitor
General, took the stand.

For her defense, petitioner testified that she was appointed by ARMM Regional Governor
Nur Misuari (Gov. Misuari) as Regional Secretary of the DOT of the ARMM in 1999. She
said she was familiar with the Memorandum dated 8 August 2000 issued by Gov. Misuari
directing all ARMM officers and employees to liquidate all outstanding cash advances on
or before 31 August 2000 in view of the impending expiration of the Governor’s extended
term. At first, she said the memorandum applied to her, she being a cabinet secretary,
but later she said same did not apply to her because she had no cash advances. Only
those with cash advances were required to get an Employees Clearance before they could
receive their salaries. She then instructed her staff to work on her salary.

Petitioner said she did not know where the original of her Employees Clearance was.
Neither did she know if the signature of Laura Pangilan therein had been imitated or
forged. She likewise said that although the Employee Clearance was in her name, she did
not cause Laura’s signature to be affixed thereto.

Petitioner disclosed that she was able to get her salary for the month of August 2000
sometime in said month, because ARMM Executive Secretary Randolph C. Parcasio told
her that she did not need a clearance before she could get her salary because she was
re-appointed.28

86
Petitioner explained that she has not seen the original of the subject Employees
Clearance.29 When she first saw the photocopy of the Employees Clearance, the signature
of Laura was not there. She was able to see the photocopy of the Employees Clearance
again after this case had been filed with the Sandiganbayan, already with the alleged
signature of Laura. Petitioner said it was not she who placed or caused Laura’s purported
signature to be affixed there.

Petitioner added that the memorandum of Gov. Misuari did not apply to her, because she
had no cash advances and she could receive her salary even without clearance. At that
time, she said the Cashier, Accountant and the Auditor checked her records and found
that she had no cash advances.30 Because she was elsewhere, she instructed her
secretary to get her salary. However, she was informed by her staff that her salary could
not be released because the Office of the Governor required a clearance. Her staff worked
on her clearance, the purpose of which was for the release of her salary for the months
of August and September 2000. She was able to get all the needed signatures except for
Laura’s signature. With the refusal of Laura to sign, her staff went to Executive Secretary
Parcasio and explained the situation.

Petitioner denied receiving a telegram from Asst. Special Prosecutor I Anna Isabel G.
Aurellano ordering her to submit to the Office of the Special Prosecutor the original of the
Employees Clearance of the DOT-ARMM issued in her name sometime on 22-23 August
2000.

On cross-examination, petitioner said that prior to her receipt of her salary, she believed
that an Employees Clearance was necessary, and for this reason she had this document
prepared by her staff. She said her Employees Clearance was always in the possession
of Marie Cris, her assistant secretary. It was Marie Cris who showed her the document
twice.31

Atty. Jose I. Lorena, former ARMM Solicitor General, testified that he was familiar with
the Memorandum dated 8 August 2000 issued by Gov. Misuari because the same was the
product of consultation among him, Gov. Misuari and ARMM Executive Secretary Parcasio.
He explained that this memorandum pertained only to outstanding cash advances. He
added that an Employees Clearance was not a requirement and was not sufficient to
comply with the directive contained in the memorandum, because what was required for
the purpose of release of salaries was a credit notice from the Resident Auditors of the
Commission on Audit.

On 16 February 2007, the defense formally offered its documentary exhibits32 consisting
of Exhibits 1 to 5, with sub-markings. The prosecution objected to the purpose for which
Exhibit 1 was offered. The trial court admitted all the defense exhibits.33

On 7 August 2007, the Sandiganbayan rendered the assailed decision convicting

petitioner of the crime charged in the information. The dispositive portion of the decision
reads:

WHEREFORE, judgment is hereby rendered finding accused Normallah A. Pacasum

GUILTY beyond reasonable doubt of the offense charged in the Information and, with
the application of the Indeterminate Sentence Law and without any mitigating or
aggravating circumstance, hereby sentencing her to suffer the indeterminate penalty of
TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY OF prision correccional as minimum
to EIGHT (8) YEARS and ONE (1) DAY of prision mayor as maximum with the accessories
thereof and to pay a fine of TWO THOUSAND PESOS (₱2,000.00) with costs against the
accused.34

87
The Sandiganbayan found the signature of DOT-ARMM Supply Officer Laura Y. Pangilan
appearing in the Employees Clearance of petitioner to have been falsified/forged. It did
not give much weight on petitioner’s defense denying she was the one who actually
falsified her Employees Clearance by imitating the signature of Laura Pangilan and that
she had no idea about the alleged falsification, because it was her assistant secretary,
Marie Cris Batuampar, who worked for her clearance and the one who submitted the said
clearance to the Office of the Regional Governor of the ARMM. The trial court found said
denial unsubstantiated and ruled that while there was no direct evidence to show that
petitioner herself "actually" falsified/forged the signature of Laura Pangilan, there were
circumstances that indicated she was the one who committed the falsification/forgery, or
who asked somebody else to falsify/forge the subject signature in her Employees
Clearance. The Sandiganbayan added that considering it was petitioner who took
advantage of and profited from the use of the falsified clearance, the presumption was
that she was the material author of the falsification. Despite full opportunity, she was not
able to rebut said presumption, failing to show that it was another person who
falsified/forged the signature of Laura Pangilan, or that another person had the reason
or motive to commit the falsification/forgery or could have benefited from the same.

The Sandiganbayan likewise did not sustain petitioner’s contention that she did not stand
to benefit from the falsification of her Employees Clearance and from the submission
thereof to the Office of the Regional Governor, because she allegedly had no existing
cash advances. She claimed that an Employees Clearance was not needed to enable her
to draw her salary for the months of August and September 2000 under the 8 August
2000 Memorandum of Gov. Misuari, and that the presumption that he who benefits from
the falsification is presumed to be the author thereof does not apply to her. The lower
court explained that the aforementioned memorandum applied to petitioner, she being
an official of the ARMM. It said that the applicability of said memorandum to petitioner
was even admitted by her when she, in compliance therewith, instructed her
staff/assistant secretary to work for her Employees Clearance to enable her to collect her
salary for the month of August 2000. It said that the fact that she (allegedly) had no
existing cash advances did not exempt her from the coverage of the memorandum,
because she must show she had no cash advances and the only way to do this was by
obtaining a clearance.

Petitioner argued that the photocopy of her Employees Clearance had no probative value
in proving its contents and was inadmissible because the original thereof was not
presented by the prosecution. The Sandiganbayan did not agree. It said that the
presentation and admission of secondary evidence, like a photocopy of her Employees
Clearance, was justified to prove the contents thereof, because despite reasonable
notices (telegrams) made by the prosecution to petitioner and her assistant secretary to
produce the original of her Employees Clearance, they ignored the notice and refused to
present the original of said document.

On 21 August 2007, petitioner filed a motion for reconsideration of the decision of the
Sandiganbayan35 to which the prosecution filed a Comment/Opposition.36 Subsequent
thereto, petitioner filed a Supplement to Accused’s Motion for Reconsideration & Motion
for New Trial/Reception of Newly Discovered Evidence.37 Petitioner prayed that her
motion for new trial be granted in order that the testimony of Marie Cris Batuampar be
introduced, the same being newly discovered evidence. The prosecution filed its
Opposition.38

On 22 October 2007, the Sandiganbayan issued its resolution denying petitioner’s motion
for reconsideration for lack of merit; and the motion for new trial, because the evidence
sought to be presented did not qualify as newly discovered evidence.39

88
On 16 November 2007, the instant petition was filed.

In our Resolution40 dated 27 November 2007, respondent People of the Philippines,

through the Office of the Special Prosecutor (OSP), was required to file its Comment on
the petition.41 After two motions for extension to file comment on the petition, which
were granted by this Court, the OSP filed its Comment dated 18 February
2008.42Petitioner was required43 to file a Reply to the Comment, which she did on 5 June
2008.44

On 5 August 2008, the Court resolved to give due course to the petition for review on
certiorari and required the parties to submit their respective memoranda within thirty (30)
days from notice. They filed their respective memoranda on 21 November 2008 and on
5 November 2008.45

Petitioner assails her conviction arguing that the Sandiganbayan committed grave abuse
of discretion, amounting to lack or excess of jurisdiction, in:

I. Finding that petitioner benefited from the alleged falsification, hence must be
deemed the author thereof, when the evidence on record does not support, but
even contradicts, such a conclusion.

II. Presuming that petitioner had unliquidated cash advances hence was required
under the Misuari Memorandum to submit her Employee’s Clearance to clear
herself of these, when there is no evidence to that effect and the prosecution even
admitted so.

III. Not resolving doubt as to the authenticity of the photocopy of the allegedly
forged Employee’s Clearance, in favor of the innocence of the Accused.

IV. In short-circuiting the right of the petitioner to present additional evidence on

her behalf, thus denying her due process.46

Petitioner contends that under the Misuari memorandum dated 8 August 2000, she was
not required to file an Employees Clearance to draw her salary, since what was required
under said memorandum was a Credit Notice from the COA. She further contends that
since she was not required to file said Employees Clearance because she had no cash
advances, the signature in her Employees Clearance was "irrelevant and a non-issue"
because what was required was a Credit Notice.

As to the first contention, we agree with petitioner that under the aforesaid
memorandum, what was required before she could draw her salaries was a Credit Notice
from the COA and not an Employees Clearance. The full text of the Memorandum47 form
the Regional Governor reads:

MEMORANDUM FROM THE REGIONAL GOVERNOR

TO: ALL CONCERNED

SUBJECT: AS STATED

DATE: AUGUST 8, 2000

1. In view of the impending expiration of the extended term of the undersigned,

it is hereby directed that all outstanding cash advances be liquidated on or before
August 31, 2000.

89
 2. Effective September 1, 2000, the salaries and other emoluments of all ARMM
officials/employees with unliquidated cash advance shall be withheld until they
have settled their accounts and a corresponding Credit Notice is issued to them by
the Commission on Audit.

3. Due to budgetary and financial constraints brought about by the drastic cut of
our budget, memorandum dated December 01, 1998 is hereby reiterated.
Therefore all releases for financial assistance is hereby suspended effective
immediately.

4. For strict compliance.

PROF. NUR MISUARI

It is clear from said memorandum that what was required from officers/employees who
had unliquidated cash advances was the corresponding Credit Notice issued by the COA
after they had settled their accounts. There was indeed no mention of any Employees
Clearance therein. Up to this point, we agree with petitioner. However, on her contention
that the signature of Laura Pangilan in her Employees Clearance was "irrelevant and a
non-issue," we disagree. Whether the signature of Laura Pangilan was imitated or not is
the main issue in this case for falsification.

From the memorandum of Gov. Misuari, the Credit Notice requirement was effective only
starting 1 September 2000 and not before. In the case at bar, the information charges
petitioner not with failure to secure a Credit Notice, but with allegedly falsifying her
Employees Clearance by imitating the signature of Laura Y. Pangilan, Supply Officer I of
the DOT-ARMM. The Credit Notice requirement was therefore irrelevant and a non-issue
as regards the release of salaries prior to 1 September 2000.

The questions to be answered are: (1) Was the signature of Laura Pangilan in petitioner’s
Employees Clearance imitated? If yes, (2) Who imitated or caused the imitation of said
signature?

On the first query, the same was answered by Laura Pangilan. She said that the signature
in petitioner’s Employees Clearance was not hers. The same was an imitation. When a
person whose signature was affixed to a document denies his/her signature therein, a
prima facie case for falsification is established which the defendant must overcome.48

Petitioner argues there was no need for her to file an Employees Clearance to draw her
salary. She adds that Atty. Randolph C. Parcasio, Executive Secretary of the ARMM, told
her and her secretary, Marie Cris Batuampar, that she did not need an Employees
Clearance because she was re-appointed.49

These arguments are untenable. There was a need for petitioner to file an Employees
Clearance not only for compliance with the Misuari memorandum but, more importantly,
because her term of office was about to end, since her position was coterminous with the
term of Gov. Misuari, the appointing authority.50 She even admitted that before she
received her salary for August, 2000,51 an Employees Clearance was
necessary.52 Moreover, her claim that Atty. Parcasio told her and her secretary that she
did not need an Employee Clearance to get her salary does not persuade us. In fact, we
find her alleged "re-appointment," when she was working for her Employees Clearance
at around August 2000, improbable. How could she have been re-appointed by Gov.
Alvarez,53 whom she claims re-appointed her sometime in the year 2000, when Gov.
Misuari was still the Regional Governor of the ARMM when she had her Employees

90
Clearance prepared sometime in August 2000? Clearly, her statement that she did not
need an Employees Clearance because she was re-appointed does not inspire belief.

Petitioner faults the Sandiganbayan for applying the presumption that if a person had in
his position a falsified document and he made use of it (uttered it), taking advantage of
it and profiting thereby, he is presumed to be the material author of the falsification. He
argues that the Sandiganbayan overlooked the fact that there was no evidence to prove
that petitioner made use of or uttered the Employees Clearance, because there was no
evidence that she submitted it -- if not, at least caused it to be submitted to the Office of
the Regional Governor. To support such claim, she said there were no "receipt marks" in
the Employees Clearance to show that the Office of the Regional Governor received said
documents.

It is to be made clear that the "use" of a falsified document is separate and distinct from
the "falsification" of a public document. The act of "using" falsified documents is not
necessarily included in the "falsification" of a public document. Using falsified documents
is punished under Article 172 of the Revised Penal Code. In the case at bar, the
falsification of the Employees Clearance was consummated the moment the signature of
Laura Pangilan was imitated. In the falsification of a public document, it is immaterial
whether or not the contents set forth therein were false. What is important is the fact
that the signature of another was counterfeited.54 It is a settled rule that in the
falsification of public or official documents, it is not necessary that there be present the
idea of gain or the intent to injure a third person for the reason that in the falsification of
a public document, the principal thing punished is the violation of the public faith and the
destruction of the truth as therein solemnly proclaimed.55 Thus, the purpose for which
the falsification was made and whether the offender profited or hoped to profit from such
falsification are no longer material.

The records further show that petitioner "used" or uttered the Employees Clearance. The
fact that the same was circulated to the different division heads for their signatures is
already considered use of falsified documents as contemplated in Article 172. The lack of
the stamp mark "Received" in the Employees Clearance does not mean that said
document was not received by the Office of the Regional Governor. We find the
certification signed by Atty. Randolph C. Parcasio, Executive Secretary of Office of the
Regional Governor - ARMM, as contained in the Employees Clearance, to be sufficient
proof that the same was submitted to the Office of the Regional Governor. It must be
stressed that the Executive Secretary is part of the Office of the Regional Governor.

Petitioner denies having "actually" falsified her Employees Clearance by imitating the
signature of Laura Pangilan, claiming that she had no knowledge about the falsification
because it was her assistant secretary, Marie Cris Batuampar, who worked for her
Employees Clearance.

Petitioner’s denial, unsubstantiated and uncorroborated, must certainly fail. Denial, when
unsubstantiated by clear and convincing evidence, is negative and self-serving evidence,
which deserves no greater evidentiary value than the testimony of credible witnesses who
testify on affirmative matters.56 Denial is intrinsically weak, being a negative and self-
serving assertion.57

In the case at bar, petitioner did not even present as her witness Marie Cris Batuampar,
the person whom she instructed to work for her Employees Clearance. Her failure to
present this person in order to shed light on the matter was fatal to her cause. In fact,
we find that the defense never intended to present Marie Cris Batuampar as a witness.
This is clear from the pre-trial order, because the defense never listed her as a

91
witness.58 Her attempt to present Ms. Batuampar to help her cause after she has been
convicted is already too late in the day, and Ms. Batuampar’s testimony, which is
supposed to be given, cannot be considered newly discovered evidence as to merit the
granting of her motion for new trial and/or reception of newly discovered evidence.

The lack of direct evidence showing that petitioner "actually" imitated the signature of
Laura Pangilan in her Employees Clearance will not exonerate her. We have ruled that it
is not strange to realize that in cases of forgery, the prosecution would not always have
the means for obtaining such direct evidence to confute acts contrived clandestinely.
Courts have to rely on circumstantial evidence consisting of pieces of facts, which if woven
together would produce a single network establishing the guilt of the accused beyond
reasonable doubt.59 We totally agree with the Sandiganbayan, which said:

While there is no direct evidence to show that the accused herself "actually" forged the
signature of Laura Pangilan in the Employees Clearance in question, the Court
nevertheless finds the following circumstances, obtaining in the records, to
establish/indicate that she was the one who committed the forgery or who asked
somebody else to forge or caused the forgery of the signature of Laura Pangilan in her
Employees Clearance, to wit –

1. that the accused instructed her staff Maricris Batuampar to work for her
Employees Clearance in compliance with the Memorandum of ARMM Regional
Governor Nur Misuari and that the forged signature of Laura Pangilan was affixed
on her clearance are strong evidence that the accused herself either falsified the
said signature or caused the same to be falsified/imitated, and that possession by
Maricris of the falsified clearance of the accused is possession by the accused
herself because the former was only acting upon the instructions and in behalf of
the latter;

2. that it was the accused who is required to accomplish and to submit her
Employees Clearance to enable her to collect her salary for the months of August
and September 2000 is sufficient and strong motive or reason for her to commit
the falsification by imitating the signature of Laura Pangilan or order someone else
to forge it; and

3. that the accused was the only one who profited or benefited from the
falsification as she admitted that she was able to collect her salary for the month
of August 2000 after her falsified Employees Clearance was submitted and
approved by the ORG-ARMM and therefore, she alone could have the motive for
making such falsification.

On the basis of the foregoing circumstances, no reasonable and fair-minded man would
say that the accused – a Regional Secretary of DOT-ARMM – had no knowledge of the
falsification. It is an established rule, well-buttressed upon reason, that in the absence of
a satisfactory explanation, when a person has in his possession or control a falsified
document and who makes use of the same, the presumption or inference is justified that
such person is the forger or the one who caused the forgery and, therefore, guilty of
falsification. Thus, in People v. Sendaydiego, the Supreme Court held that –

The rule is that if a person had in his possession a falsified document and he made use
of it (uttered it), taking advantage of it and profiting thereby, the presumption is that he
is the material author of the falsification. This is especially true if the use or uttering of
the forged documents was so closely connected in time with the forgery that the user or
possessor may be proven to have the capacity of committing the forgery, or to have close

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connection with the forgers. (U.S. v. Castillo, 6 Phil. 453; People v. De Lara, 45 Phil. 754;
People v. Domingo, 49 Phil. 28; People v. Astudillo, 60 Phil. 338; People v. Manansala,
105 Phil. 1253).

In line with the above ruling, and considering that it was the accused who took advantage
and profited in the use of the falsified Employees Clearance in question, the presumption
is inevitable that she is the material author of the falsification. And despite full
opportunity, she was not able to rebut such presumption by failing to show that it was
another person who forged or falsified the signature of Laura Pangilan or that at least
another person and not she alone, had the reason or motive to commit the forgery or
falsification, or was or could have been benefited by such falsification/forgery.60

The circumstances enumerated by the Sandiganbayan, as against the denials of

petitioner, convince us to apply the rule that in the absence of satisfactory explanation,
one who is found in possession of, and who has used, a forged document, is the forger
and, therefore, guilty of falsification.61 The effect of a presumption upon the burden of
proof is to create the need of presenting evidence to overcome the prima facie case
created, which, if no contrary proof is offered, will thereby prevail.62 A prima facie case
of falsification having been established, petitioner should have presented clear and
convincing evidence to overcome such burden. This, she failed to do.

Petitioner assails the weight given by the Sandiganbayan to the testimonies of the two
Pangilans when they failed to report the alleged falsification to the police or alert the
Office of the Regional Governor of said falsification, or tried to stop petitioner from getting
her salaries.

We do not agree with the petitioner. It is a settled rule that the findings of fact of the
trial court, its calibration of the testimonies of the witnesses and its assessment of the
probative weight thereof, as well as its conclusions anchored on said findings, are
accorded high respect if not conclusive effect.63 The determination of the credibility of
witnesses is the domain of the trial court, as it is in the best position to observe the
witnesses’ demeanor.64 The Sandiganbayan has given full probative value to the
testimonies of the prosecution witnesses. So have we. We find no reason to depart from
such a rule.

Aware that the prosecution failed to present the original from which the photocopy of
petitioner’s Employees Clearance was supposed to have been obtained, she maintains
that the Sandiganbayan should have doubted the authenticity and probative value of the
photocopy of the Employees Clearance.

The Sandiganbayan correctly admitted in evidence the photocopy of the Employees

Clearance. We agree when it ruled:

Section 3, Rule 130 of the Rules of Court provides that when the subject of inquiry is the
contents of a document, no evidence shall be admissible other than the original document
itself. The purpose of the rule requiring the production by the offeror of the best evidence
if the prevention of fraud, because if a party is in possession of such evidence and
withholds it and presents inferior or secondary evidence in its place, the presumption is
that the latter evidence is withheld from the court and the adverse party for a fraudulent
or devious purpose which its production would expose and defeat. Hence, as long as the
original evidence can be had, the Court should not receive in evidence that which is
substitutionary in nature, such as photocopies, in the absence of any clear showing that
the original has been lost or destroyed or cannot be produced in court. Such photocopies
must be disregarded, being inadmissible evidence and barren of probative weight.

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The foregoing rule, however, admits of several exceptions. Under Section 3(b) of Rule
130, secondary evidence of a writing may be admitted "when the original is in the custody
or under the control of the party against whom the evidence is offered, and the latter
fails to produce it after reasonable notice." And to warrant the admissibility of secondary
evidence when the original of a writing is in the custody or control of the adverse party,
Section 6 of Rule 130 provides as follows:

Sec. 6. When original document is in adverse party’s custody or control. – If the document
is in the custody or control of the adverse party, he must have reasonable notice to
produce it. If after such notice and after satisfactory proof of its existence, he fails to
produce the document, secondary evidence may be presented as in the case of loss.

Thus, the mere fact that the original is in the custody or control of the adverse party
against whom it is offered does not warrant the admission of secondary evidence. The
offeror must prove that he has done all in his power to secure the best evidence by giving
notice to the said party to produce the document which may be in the form of a motion
for the production of the original or made in open court in the presence of the adverse
party or via a subpoena duces tecum, provided that the party in custody of the original
has sufficient time to produce the same. When such party has the original of the writing
and does not voluntarily offer to produce it, or refuses to produce it, secondary evidence
may be admitted.

Here, the accused admitted that her Employees Clearance was always in the possession
of her assistant secretary, [Marie Cris] Batuampar. So the prosecution in its effort to
produce the original copy of the said Employees Clearance of the accused, thru Assistant
Special Prosecutor Anna Isabel G. Aurellano of the Office of the Prosecutor, sent on May
31, 2005 thru the COA Telegraph Office at Quezon City two (2) telegram subpoenas
addressed to accused Normallah Pacasum, and [Marie Cris] Batuampar ordering them to
submit to the Office of the Special Prosecutor on or before June 8, 2005, the original of
the Employees’ Clearance in the name of Normallah Alonto Lucman-Pacasum for the
release of her August and September 2000 salary as DOT Regional Secretary.
Notwithstanding receipt of the said telegram subpoena by her uncle Manso Alonto in her
residence on June 1, 200[5], the accused did not appear before or submit to Assistant
Special Prosecutor Anna Isabel G. Aurellano, the original of the said Employees Clearance,
much less offered to produce the same.

Under the circumstances, since there was proof of the existence of the Employees
Clearance as evidenced by the photocopy thereof, and despite the reasonable notices
made by the prosecution to the accused and her assistant secretary to produce the
original of said employees clearance they ignored the notice and refused to produce the
original document, the presentation and admission of the photocopy of the original copy
of the questioned Employees Clearance as secondary evidence to prove the contents
thereof was justified.65

This Court decrees that even though the original of an alleged falsified document is not,
or may no longer be produced in court, a criminal case for falsification may still prosper
if the person wishing to establish the contents of said document via secondary evidence
or substitutionary evidence can adequately show that the best or primary evidence – the
original of the document – is not available for any of the causes mentioned in Section
3,66 Rule 130 of the Revised Rules of Court.

Petitioner claims she was denied due process when the Sandiganbayan severely restricted
her time to present evidence, allowing her only two hearing dates, thus resulting in her
failure to present another important witness in the of person of Atty. Randolph Parcasio.

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Petitioner was not denied due process. She was given every opportunity to adduce her
evidence. The Sandiganbayan outlined the proceedings of the case as follows:

After the prosecution rested its case, by agreement of the parties, the initial hearing for
the reception of defense evidence was scheduled on September 19 and 20, 2005 both at
8:30 in the morning. However, upon motion of the prosecution, the Court, in its Order of
September 16, 2005, cancelled the setting as the handling prosecutor, Pros. Anna Isabel
G. Aurellano, had to attend a 5-day workshop at PHINMA in Tagaytay City on September
19-23, 2005 and scheduled anew the hearing on November 23 and 24, 2005, both at
8:30 in the morning. However, for failure of the defense counsel, Atty. Rico B. Bolongaita,
to appear at the November 23, 2005 hearing despite due notice, the Court cancelled the
November 23 and 24 hearings, and moved the same to March 13 and 14, 2006 both at
8:30 in the morning, and at the same time directed the said defense counsel to show
cause in writing within five (5) days from receipt of the Order why he should not be held
in contempt for his failure to appear despite due notice. In compliance with this
Order,1awphi1 Atty. Rico B. Bolongaita, filed his Explanation and Withdrawal of
Appearance, respectively, which were both Noted by the Court in its Resolution of January
19, 2006.

In view of the absence of the accused in the March 13, 2006 hearing and her continued
failure to get a substitute counsel considering that her counsel, Atty. Rico B. Bolongaita,
had already withdrawn from the case since January 16, 2006, the Court cancelled the
March 13 and 14, 2006 hearings and moved the same to July 3 and 4, 2006 both at 8:30
in the morning and designated Atty. Conrado Rosario of the PAO as counsel de oficio of
the accused and directed the accused upon receipt of the order to immediately confer
with said counsel for purposes of preparing for her defense in the case.

On March 20, 2006, the Court issued the following Resolution, which reads:

Accused Normallah L. Pacasum’s letter of February 17, 2006 (received by mail on March
16, 2006) requesting extension of time to engage the services of counsel is merely NOTED
WITHOUT ACTION as the next hearings are scheduled on July 3 and 4, 2006 and said
accused would have more than ample time to engage the services of counsel of her
choice. For this reason, any excuse from the accused on said settings that she failed to
engage the services of counsel or that her counsel needs more time to prepare will be
unacceptable. At all events, this Court, in its Order of March 13, 2006, had already
appointed Atty. Conrado Rosario of the PAO as a counsel de oficio to represent the
accused, with specific orders to the latter to confer with Atty. Rosario and assist him in
preparing for her defense.

On July 3, 2006, upon the manifestation of Atty. Conrado Rosario, counsel for the
accused, that since he was appointed counsel de oficio, the accused has not
communicated with him and therefore he was not ready to present any evidence for the
accused, the Court cancelled the hearing in order to give the defense another opportunity
to present its evidence and reset it to July 4, 2006, the following day as previously
scheduled.

On July 4, 2006, the Court issued the following Order, which reads –

"When this case was called for hearing, accused asked for the resetting of the case on
the ground that she just hired a new counsel who thereafter arrived and entered his
appearance as Atty. Napoleon Uy Galit with address at Suite 202 Masonic Building, #35
Matalino St., Diliman, Quezon City. With the appearance of her new counsel, Atty.
Conrado C. Rosario is hereby discharged as counsel de oficio of the accused.

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"As prayed for by the accused, she is given the last chance to present her evidence on
October 9 and 10, 2006, both at 8:30 o’clock in the morning. For repeated failure of the
accused to acknowledge receipt of the notices of the Court, her waiver of appearance is
hereby cancelled and she is ordered to personally appear in the scheduled hearings of
this case.

SO ORDERED.

On October 6, 2006, the accused thru counsel, Atty. Bantreas Lucman, filed an Entry of
Appearance, Motion For Postponement of October 9 and 10 Hearings stating therein that
since his service as new counsel was just engaged by the accused, and that the accused
herself cannot also attend the said hearing because she is undergoing fasting until
October 24, 2006 in observance of Ramadan, he asked to postpone the settings on
October 9 and 10, 2006. At the hearing on October 9, 2006, the Court issued the
following, which reads –

"Acting on the Entry of Appearance, Motion for Postponement of October 9 and 10, 2006
Hearing filed by accused Normallah L. Pacasum, thru counsel, Atty. Bantreas Lucman,
finding the same to be without merit, as this case has been set for hearing several times
and the accused has been given the last chance to present evidence, the Court hereby
denies the motion for postponement.

"In this regard, in view of the absence of accused Normallah L. Pacasum in today’s
hearing despite the Order of the Court dated July 4, 2006, canceling her waiver of
appearance, and ordering her to personally appear before this Court, as prayed for by
the prosecution, let a Bench Warrant of Arrest be issued against the said accused. The
cash bond posted for her provisional liberty is ordered confiscated in favor of the
government. The accused is given thirty (30) days from notice to explain in writing why
final judgment shall not be rendered against the said bond.

With the Manifestation of Atty. Bantreas Lucman that the defense is not ready to present
its evidence today and tomorrow, the last chance for it to present its evidence, the Court
is constraint to consider the accused’s right to present evidence as waived.

The parties are hereby given thirty (30) days to submit their respective memoranda.
Thereafter, the case shall be deemed submitted for decision.

SO ORDERED.

Subsequently, the accused thru counsel, filed a Motion for Reconsideration of the above
Order dated October 25, 2006, and Motion to Set Hearing For Motion for Reconsideration
and to Lift Warrant of Arrest dated October 31, 2006.

At the hearing of accused’s motion for reconsideration on November 3, 2006, the Court
issued the following Order, which reads –

"When the ‘Motion To Set Hearing for Motion for Reconsideration and to Lift Warrant of
Arrest’ was called for hearing this morning, only Attorneys Bantuas M. Lucman and Jose
Ventura Aspiras appeared. Accused Normallah L. Pacasum was absent.

In view of the absence of the accused, the Court is not inclined to give favorable action
to the Motion for Reconsideration. It must be stressed that the primordial reason for the
issuance of the order sought to be reconsidered in the presence of the accused in the
previous hearing in violation of the Court’s Order for her to personally appear in the

96
hearings of this case and for her indifference to the directives of the Court. With the
absence anew of the accused, the Court has no alternative but to deny the Motion.

Moreover, the Court notes the allegation in the Motion that the counsel sought the
assurance of the accused (and she promised) to appear before this Court if the motion
will be granted, as if the Court owes the accused the favor to appear before it. The
accused is reminded/advised that the issuance of the warrant of arrest, she has to
voluntarily surrender and appear before the Court or be arrested and brought to the
Court.

WHEREFORE, the Motion for Reconsideration is denied.

SO ORDERED.

Acting on the Omnibus Motion to Hold in Abeyance Consideration of Prosecution’s

Memorandum (And for a Second Look on the Matter of Accused’s Right to Present
Defense Evidence) of the accused dated November 21, 2006, and the prosecution’s
Opposition thereto, the Court issued the following Order, which reads –

"This refers to the Accused "Omnibus Motion to Hold in Abeyance Consideration of

Prosecution’s November 7, 2006 Memorandum (And For a Second Look on the Matter of
Accused’s Right to Present Defense Evidence)" dated November 21, 2006 and the
plaintiff’s Opposition thereto dated November 28, 2006.

"Inasmuch as the accused has already appeared before the Court and posted an
additional bond of P10,000.00 despite the aforesaid opposition of the prosecution, in the
interest of justice, the Court is inclined to reconsider and give favorable action to the
motion and grant the accused another and last opportunity to present here evidence.

"WHEREFORE, the motion is granted and this case is set for hearing for the accused’s
last chance to present and/or complete the presentation of her evidence on February 5
and 6, 2007 both at 8:30 in the morning in the Sandiganbayan Centennial Building in
Quezon City.

SO ORDERED.

Thus, despite the initial indifference of the accused to present her defense, the Court
gave her ample opportunity to present her evidence.67

The Sandiganbayan properly dealt with the situation. In fact, we find that the trial court
was lenient with the petitioner. The failure of the defense to present Atty. Parcasio was
its own doing. The defense failed to prepare its witnesses for the case. As proof of this,
we quote a portion of the hearing when petitioner was testifying:

ATTY. ASPIRAS

Q Would you know where (sic) the whereabouts of this Sec. Parcasio would be (sic) at
this time?

A He lives in Davao but after what happened to Gov. Misuari, we have not got together
with the other members of the cabinet of Gov. Misuari, but he lives in Davao, sir.

Q Would it be possible, Madame Witness, to request or ask him to testify in this case?

A After this hearing, I will look for Sec. Parcasio just to clear my name, sir.

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CHAIRMAN

Not after this hearing, you should have already done that. Because we already gave you
enough opportunity to present your side, right? You should not be telling the Court that
only after this hearing, you will start looking (for) people who will, definitely, clear your
name. You should be doing that months ago, correct?

WITNESS

Yes, your Honors.68

Petitioner was charged with falsifying her Employees Clearance under Article 171,
paragraph 1 of the Revised Penal Code. For one to be convicted of falsification under said
paragraph, the followings elements must concur: (1) that the offender is a public officer,
an employee, or a notary public; (2) that he takes advantage of his official position; and
(3) that he falsifies a document by counterfeiting or imitating any handwriting, signature
or rubric.

All the foregoing elements have been sufficiently established. There is no dispute that
petitioner was a public officer, being then the Regional Secretary of the Department of
Tourism of the ARMM, when she caused the preparation of her Employees Clearance (a
public document) for the release of her salary for the months of August and September
2000. Such being a requirement, and she being a public officer, she was duty-bound to
prepare, accomplish and submit said document. Were it not for her position and
employment in the ARMM, she could not have accomplished said Employees Clearance.
In a falsification of public document, the offender is considered to have taken advantage
of his official position when (1) he had the duty to make or prepare or otherwise intervene
in the preparation of the document; or (2) he had official custody of the document which
he falsified.69 It being her duty to prepare and submit said document, she clearly took
advantage of her position when she falsified or caused the falsification of her Employees
Clearance by imitating the signature of Laura Pangilan.lawphil.net

Going now to the penalties imposed on petitioner, we find the same proper. The penalty
for falsification under Article 171 of the Revised Penal Code is prision mayor and a fine
not exceeding ₱5,000.00. There being no mitigating or aggravating circumstance in the
commission of the felony, the imposable penalty is prision mayor in its medium period,
or within the range of eight (8) years and one (1) day to ten (10) years. Applying the
Indeterminate Sentence Law, the maximum penalty to be imposed shall be taken from
the medium period of prision mayor, while the minimum shall be taken from within the
range of the penalty next lower in degree, which is prision correccional or from six (6)
months and one (1) day to six (6) years.

WHEREFORE, premises considered, the decision of the Sandiganbayan in Crim. Case No.
27483 dated 7 August 2007 and its resolution dated 22 October 2007 are hereby
AFFIRMED.

SO ORDERED.

98
EN BANC

[A. M. No. OCA-01-5. August 1, 2002]

Civil Service Commission, NCR, represented by Nelson L. Acebedo, Dir. IV,

Office of the Legal Affairs, complainant, vs. Reynaldo B. Sta. Ana,
HRMO I, Leave Division, OCA, respondent.

DECISION
PER CURIAM:

For resolution is the administrative complaint filed against respondent Reynaldo B.

Sta. Ana, Human Resource Management Officer I, Leave Division, Office of the Court
Administrator (OCA), Supreme Court for Dishonesty and Falsification of Public Documents
relative to his promotion as Human Resource Management Officer III.
Respondent gained employment in the Office of the Court Administrator, Supreme
Court in 1976. He started as a Laborer and was later promoted to the position of Human
Resource Management Officer I. Sometime in 1996, respondent applied for promotion as
Human Resource Management Officer III. In support of his application for promotion to
the said position, he submitted the following documents:

(1) a Certificate of Eligibility purportedly issued by the Civil Service Commission certifying
that respondent Sta. Ana passed the Career Service Professional examination on February
18, 1996 with a rating of 83.8%;[1] and

(2) a Personal Data Sheet (PDS) dated August 5, 1996 stating, under Item 18, that he
passed the Career Service Professional examination on February 18, 1996 with a rating
of 83.8%.[2]

Upon verification by Atty. Dante Huerta, Field Officer of the Civil Service Commission
in the Supreme Court, it was found that respondent Sta. Ana was not in the CSC-NCR
Master List of those who passed the MOWE Career Service Professional Examination given
by the Civil Service Commission on February 18, 1996 at Ramon Magsaysay High
School.[3] Atty. Huerta recommended the filing of a formal charge against respondent.
Thus, the Civil Service Commission Office for Legal Affairs (CSC-OLA) issued a formal
charge against respondent for Dishonesty and Falsification of Public Document committed
as follows:

That in support of promotional appointment to the position of Human Resource

Management Officer III, you submitted a Certificate of Eligibility certifying you to have
passed the Career Service Professional Examination on February 18, 1996 with a rating
of 83.8%. Upon verification with this Offices Registry of Eligibles, it was found out that
your name does not appear among those who have passed the said examination. Such
act is contrary to Civil Service Law and rules.[4]

A copy of the formal charge was furnished respondent on October 11, 1996 requiring
him to file his Answer within five days from notice. Respondent asked for an extension of
time to file his Answer which was granted by the CSC-OLA on December 11,
1996.[5] However, respondent still did not submit his Answer within the extended period.
He also failed to attend the scheduled hearings despite notices for him to appear.[6]

99
 On February 19, 1998, an ex-parte hearing was conducted by the Hearing Officer of
the CSC-OLA. A representative from the CSC Field Office in the Supreme Court, Ms. Rose
Perlas, testified to confirm the documents submitted by respondent in support of his
promotional appointment, namely: (1) a Certificate of Eligibility indicating that respondent
passed the Career Service Professional Examination held at Ramon Magsaysay High
School on February 18, 1996;[7] (2) a Personal Data Sheet dated August 5, 1996 stating
that he passed said examination;[8] and (3) an official Appointment dated July 9, 1996
issued by then Chief Justice Andres Narvasa promoting respondent to the position of
Human Resource Management Officer III.[9]
In the same hearing, a certification issued by Ms. Bella A. Mitra, Officer-in-Charge,
Examination and Placement Services Division (EPSD), CSC-NCR, was presented attesting
that respondents name was not included in the Registry of Eligibles in the Career Service
Professional Examination held on February 18, 1996.[10] On the basis of this certification,
it was deduced that respondent submitted a spurious certificate of eligibility and made a
false entry in his Personal Data Sheet.
Hence, on June 22, 1998, the Hearing Officer of the CSC-OLA recommended that
respondent be dismissed from government service.[11] This was affirmed by Atty. Nelson
Acebedo, Director IV, CSC-OLA, on June 24, 1998.[12]
On August 12, 1998, respondent filed a Petition to transfer jurisdiction of the case
from the Civil Service Commission to the Supreme Court and/or to dismiss the case for
lack of jurisdiction[13] pursuant to CSC Memorandum No. 53, Series of 1998, to wit:

Article VIII, Section 6 of the 1987 Constitution exclusively vests in the Supreme Court
administrative supervision over all courts and court personnel, from the Presiding Justice
of the Court of Appeals down to the lowest municipal trial court clerk. By virtue of this
power, it is only the Supreme Court that can oversee the judges and court personnels
compliance with all laws, and take the proper administrative action against them if they
commit any violation thereof. No other branch of government may intrude into this power,
without running afoul of the doctrine of separation of powers.

The CSC-OLA thus referred the case to the Office of the Court Administrator (OCA)
on August 18, 1998.
On May 17, 1999, the Office of the Court Administrator directed respondent to explain
in writing why no disciplinary action should be taken against him for dishonesty and
falsification of public documents.[14]
In a letter to the Court Administrator dated May 21, 1999,[15] respondent admitted
the charge and asked that the penalty meted him be reduced and that he be given
another chance to serve the court in order to correct his mistake.
On February 28, 2001, the Court resolved to docket the case as a regular
administrative matter and required the parties to manifest whether they were willing to
submit the case for resolution on the basis of the available records on file.[16] On April 10,
2001, the CSC-OLA manifested no objection to docketing of the case as a regular
administrative matter and submitting the same for resolution.[17]
In his Manifestation dated April 11, 2001,[18] respondent reiterated that he admits the
charge against him and pleaded for forgiveness. Respondent asked that he be given
another chance considering that he has served the court for more than twenty (20) years
and has consistently received performance ratings of Very Satisfactory and Outstanding.
Pertinent portions of respondents Manifestation[19] reads:

1. That he admits with so much regret that he indeed committed the act complained of;

100
2. That he humbly pleads for forgiveness before this Honorable Court and he be given
another chance to prove his sincerity to correct his misdeed and promises that this
wrongdoing, although not done in the performance of his duties, this will never happen
in the future;

3. That he respectfully informs this Honorable Court that he served the Court for more
than twenty (20) years to the best of his ability. In fact, he was given a performance
rating of Very Satisfactory (VS) and Outstanding, an indication that he has been faithfully
performing his job well. (Please see attached supporting papers);

4. That this is the first Administrative Case filed against him; and

5. That he respectfully prays for compassionate justice before this Honorable Court in
inflicting a harsh penalty considering the future of his children and family depend on his
role (sic) financial support.

xxx[20]

On January 25, 2001, the Office of the Court Administrator affirmed the findings of
the CSC-OLA but recommended suspension for one (1) year without pay. In reducing the
penalty, the Court Administrator took into account -

xxx the fact that respondent has already spent more than twenty (20) years of his life in
the service of this Court and this is his first administrative complaint. It could be that he
committed the acts complained of out of his desire to be promoted for the benefit of his
family. Respondents admission and prayer for forgiveness is a good sign that he is indeed
remorseful for what he did. xxx

True, respondent deserves to be penalized but the same may (sic) tempered in the name
of compassionate justice. Unlike the respondent in A.M. No. 95-1-01-MTCC respondent
Sta. Ana did not defraud and prejudice the government by his acts. He neither assumed
the position he desired nor received the compensation and benefits pertaining thereto.

Moreover, it appears that Reynaldo B. Sta. Ana proved to be an asset of the Leave
Division, OAS-OCA. His efficiency is shown by his performance ratings xxx.

The Code of Conduct and Ethical Standards for Public Officials and Employees,
Republic Act 6713, enunciates the States policy of promoting a high standard of ethics
and utmost responsibility in the public service.[21] And no other office in the government
service exacts a greater demand for moral righteousness and uprightness from an
employee than in the judiciary.[22]
Every employee of the judiciary should be an example of integrity, uprightness and
honesty.[23] The Supreme Court has repeatedly emphasized that the conduct of court
personnel, from the presiding judge to the lowliest clerk, must always be beyond reproach
and must be circumscribed with the heavy burden of responsibility as to let them be free
from any suspicion that may taint the judiciary.[24] The Court condemns and would never
countenance any conduct, act or omission on the part of all those involved in the
administration of justice which would violate the norm of public accountability and
diminish or even just tend to diminish the faith of the people in the judiciary.[25]
Unfortunately, respondent failed to live up to this standard of conduct.
One of the supporting documents respondent appended to his application for
promotion to HRMO III was a certificate of eligibility purportedly issued by the Civil
Service Commission certifying that he passed the career service professional examination

101
on February 18, 1996 with a rating of 83.8%. In his personal data sheet, respondent also
stated that he passed the said examination on the same date and with the same rating.
However, upon examination of the records of the Examination and Placement Services
Division (EPSD) of the Civil Service Commission, it was disclosed that petitioners name
was not in the list of those who passed the said examination held at Ramon Magsaysay
High School on February 18, 1996. This belied respondents statement in his personal
data sheet and led to the inevitable conclusion that respondent submitted a false
certificate of eligibility.
Under Article 172 of the Revised Penal Code, the elements of the crime of use of
falsified documents are (1) that the offender knew that document was falsified by another
person; (2) that the false document is embraced in Art. 171 or in any subdivisions 1 or 2
of Art. 172; (3) that he used such document (not in judicial proceedings); and (4) that
the use of the false document caused damage to another or at least it was used with
intent to cause such damage.
It cannot be gainsaid that respondent was well aware that the certificate of eligibility
he submitted was false because he knew for a fact that he did not pass the career service
examination. It is, likewise, undeniable that his use of such false document in support of
his promotion to HRMO III prejudiced the other applicants who were genuinely qualified
for the position. Then Chief Justice Andres Narvasa had already issued his official
appointment, even though he neither assumed the position nor received the
compensation and benefits pertaining thereto.
Respondents act of indicating in his personal data sheet that he passed that career
service professional examination when in fact he did not, also makes him liable for
falsification of a document by making an untruthful statement in a narration of facts, as
defined under Art. 171, par. 4, of the Revised Penal Code. In falsification by false
narration of facts, (1) the offender makes untruthful statements in a narration of facts;
(2) he has a legal obligation to disclose the truth of the facts narrated by him; (3) the
facts narrated are absolutely false; and (4) it was made with a wrongful intent to injure
a third person.[26]
Respondent stated in his personal data sheet that he passed the career service
professional examination knowing fully well that it was not true because he did not pass
the said exam. Being an aspirant for promotion to a higher position, he had a legal
obligation to disclose the truth because the personal data sheet is required in connection
with the promotion to a higher position.[27] In the case of Inting vs. Tanodbayan,[28] the
Court ruled that the accomplishment of the Personal Data Sheet being a requirement
under the Civil Service Rules and Regulations in connection with employment in the
government, the making of an untruthful statement therein was therefore intimately
connected with such employment xxx. In Belosillo vs. Rivera,[29] we said that since
truthful completion of Personal Data Sheet is a requirement for employment in the
Judiciary, the importance of answering the same with candor need not be gainsaid.
By making a false statement in his personal data sheet to enhance his qualification
and increase his chances of being considered for promotion, which in fact happened
because he was issued an appointment as HRMO III by then Chief Justice Andres
Narvasa, respondent prejudiced the other qualified aspirants to the same position. It does
not matter that respondent did not actually assume the position and receive salaries and
benefits pertaining thereto. The law does not require that actual injury to a third person
be present. What is necessary is that there be intent to injure. Moreover, in People vs.
Po Giok To,[30] it is held that when official documents are falsified, the intent to injure a
third person need not be present because the principal thing punished is the violation of
the public faith and the destruction of the truth as therein proclaimed.

102
 The facts and evidence, coupled with respondents admission, sufficiently established
his culpability. Respondents use of a false certificate of eligibility constitutes an act of
dishonesty under civil service rules and his act of making a false statement in his personal
data sheet renders him administratively liable for falsification. Under Section 23, Rule XIV
of the Administrative Code of 1987, dishonesty (par. a) and falsification (par. f) are
considered grave offenses warranting the penalty of dismissal from service upon
commission of the first offense.
On numerous occasions, the Court did not hesitate to impose such extreme
punishment on employees found guilty of these offenses.[31] There is no reason why
respondent should be treated differently. The Court takes note of the fact that initially,
respondent did not controvert this evidence against him. Neither did he admit the charge.
In fact, deliberately or otherwise, respondent did not participate in the proceedings before
the CSC. He did not file any answer and failed to appear in the scheduled hearings despite
due notice. When he was found guilty of the charge by the CSC-OLA and was
recommended for dismissal, he filed a petition to transfer jurisdiction to the Office of the
Court Administrator and/or motion to dismiss the case. It was only when his case was
transferred to the OCA did he confess his guilt, more than three years after he was first
charged in the CSC.
While we recognize that respondent committed the acts complained of out of an
extreme desire to be promoted for the benefit of his family, the Court cannot turn a blind
eye to what is clearly a transgression of the law. Dishonesty and falsification are
malevolent acts that have no place in the judiciary.[32] Because of his conduct, the Court
seriously doubts respondents ability to perform his duties with the integrity, uprightness
and honesty demanded of an employee in the judiciary.
WHEREFORE, respondent Reynaldo B. Sta. Ana is hereby DISMISSED from the
service with prejudice to re-employment in any government agency and government-
owned or controlled corporation, and with forfeiture of unused leaves, if any, and
retirement benefits. This decision shall take effect immediately.
SO ORDERED.

103
ECOND DIVISION

[A.M. No. P-94-1015. March 29, 1999]

JASMIN MAGUAD and REBECCA BRIOSO, complainants, vs. NICOLAS DE

GUZMAN and RUBY C. BARCENAS, respondents.

DECISION
BUENA, J.:

This is a complaint filed by Jasmin Maguad and Rebecca Brioso against Nicolas de
Guzman, Sheriff of Branch 47 of the Metropolitan Trial Court of Pasay City and Ruby
Barcenas, Court Social Worker in the Regional Trial Court of Makati, Metro Manila, for
grave misconduct, falsification and immorality.
The complaint[1] alleges that sometime in 1982, respondent Nicolas de Guzman
(lawfully married to Corazon Punzalan de Guzman), and respondent Ruby Barcenas,
single, unlawfully and scandalously cohabited as husband and wife at 137 Ignacio St.,
Pasay City; that in October, 1983, when respondents' first illegitimate child Nathaniel Roy
was born, respondents unlawfully and maliciously conspired to falsify an entry in the Birth
Certificate of said child, making it appear that respondents were lawfully married on
December 8, 1982; that when respondents' second illegitimate child Natalia, was born in
1984, respondents unlawfully and maliciously conspired to falsify an entry in the said
child's Birth Certificate, making it appear that respondents were lawfully married on
December 8, 1984 (perhaps a typographical error meant to be December 8, 1982 as in
the first Birth Certificate).
In their joint comment and/or answer,[2] the respondents admitted that respondent
Nicolas de Guzman was married to Corazon Punzalan in 1968 and has two legitimate
children with her; de Guzman explained that he and Corazon Punzalan had long been
separated in fact and a reconciliation between them for purposes of their living together
again has become quite remote as she is now living with another man by the name of
Eliseo Almero; de Guzman added that he has not been remiss in his obligations as a
father to his two legitimate children, as he provided them within his means all that they
needed for their sustenance. Respondents denied the complainants' allegation that they
cohabited as husband and wife under scandalous circumstances; they also denied that
they unlawfully and maliciously conspired to falsify the entries in the certificates of live
birth of their two children. They claimed that the truth is that respondent de Guzman had
no knowledge, much less any participation in the entries therein relating to their alleged
marriage on December 8, 1982; that in the birth certificates of the children, the informant
appearing therein is only-respondent Barcenas. The respondents explained that Barcenas
was "constrained to supply such erroneous information as regards her civil status solely
for purposes of shielding her two children from the stigma of shame and disgrace that
they might encounter in their later years in life by reason of their illegitimacy." De Guzman
and Barcenas took exception to the claim of the complainants that they filed the present
charges as "concerned citizens." According to the respondents, "for some ulterior
designs," the complainants allow themselves to be the willing pawns of one Leoncio Cesar
in the latter's attempts to unduly harass herein respondents because respondent
Barcenas was one of the private complainants against Leoncio Cesar for Grave Oral
Defamation before the Metropolitan Trial Court of Pasay City, Branch 46, in Crim. Cases
Nos. 93-1300 to 1303.

104
 In a resolution[3] dated March 23, 1994, the complaint was referred to Executive
Judge Conchita Carpio Morales for investigation, report and recommendation. However,
in view of the promotion of Executive Judge Morales to the Court of Appeals, this case
was referred to Acting Executive Judge Alfredo J. Gustilo of Branch 116, Regional Trial
Court of Pasay City for investigation, report and recommendation.[4]
During the hearing of the case, instead of presenting proofs in support of the
accusation, the complainants offered in evidence their joint Affidavit of
Desistance,[5] dated August 12, 1994 stating, among others:
xxxxxxxxx

"3. That, assisted by our private lawyer, we recently conferred with the said two accused
about this case and we have realized: (a) that they had no malicious or criminal intent
when they made that entry and that Ruby Barcenas innocently did it in the best interest
of their said children to avoid future social stigma upon the persons of the said children
when they grow up; and (b) that Mr. De Guzman had been separated for many years
from his wife, who has likewise been living her own life with a common-law husband in
Mindoro; and that his wife and two children with her had expressly condoned and
consented to his relationship with Ms. Barcenas many years ago;

"4. That we are no longer interested to pursue this administrative case and that therefore,
in the interest of justice, we hereby request the Supreme Court, thru the investigating
Executive Judge of Pasay City to dismiss the same."

In his Investigation Report[6] dated November 2, 1994 Acting Executive Judge Alfredo
J. Gustilo (now Associate Justice of the Sandiganbayan), made the following findings
which the Court quotes with approval:

"Misconduct means intentional wrong doing or deliberate violation of a rule of law or

standard of behavior, specially by a government official. (Webster's Third New
International Dictionary). To constitute an administrative offense, misconduct should
relate to or be connected with the performance of the official functions and duties of a
public officer. (Lacson vs. Roque, 92 Phil. 456) No act of the respondents appears or has
been established which can be considered as misconduct in office. The charge of grave
misconduct against them is therefore without any basis.

"With respect to the charge of falsification, the complainants allege that the respondents
committed the offense when they made, through conspiracy, an entry in the birth
certificates of their children that they were married on December 8, 1982, or December
8, 1984, in Davao City, when in fact they were not. Apparently, this accusation is
predicated on one of the ways of committing falsification, i.e., by making untruthful
statements in a narration of facts under Article 171 (4) of the Revised Penal Code. One
essential element of this kind of falsification is that there must be a legal obligation to
disclose the truth of the fact claimed to be false. In other words, there must be a law
requiring, expressly or impliedly, the disclosure of the truth of the fact alleged to have
been falsified. No law has been shown by the complainants making it either expressly or
impliedly a duty of an informant in a record of birth to disclose the truth that the parents
of the child covered by it are married or not. Consequently, the charge of falsification
against the respondents cannot likewise prosper.

"It is alleged in the complaint that the respondents conspired with each other in making
the entry in the birth certificates of their children that they were married. Conspiracy
exists when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it. (Art. 8, Revised Penal Code). The rule is that conspiracy

105
should be shown by strong and convincing evidence. No evidence has been adduced in
this case indicating that the respondents agreed and decided to make the entry in the
birth certificates of their children that they were married. Even on the assumption that
such entry in the birth certificates of Nathaniel and Natalia would constitute falsification
by making an untruthful statement in a narration of fact, only respondent Barcenas, the
informant who made the entry, could be held liable therefor. Respondent De Guzman
could not be made to answer for it, since there is no proof that he conspired with his co-
respondent in making such entry.

"On the other hand, the circumstances in this case admitted by the respondents are
sufficient to sustain the charge of immorality. It is not in accordance with the norms of
morality for a man who is legally married to cohabit with another woman during the
subsistence of such marriage. In the same manner, it is against the tenets of morality for
a woman to be living together with a married man not her husband.The stigma of
immorality attaches to this kind of relationship even if the married man is separated from
his wife and the woman living with him is single. This is specially so when the persons
concerned are public officers who are supposed to maintain a high standard of morality
so as to live up to their role to be looked upon as models in society.

"However, to temper justice with mercy, these circumstances may be considered to

mitigate the liability of the respondents:

"1. They have voluntarily admitted that they are living together as husband and wife
without benefit of marriage.

"2. Respondent De Guzman and his lawful wife have been separated in fact for a long
time and his wife is already cohabiting with another man, thereby rendering reconciliation
between them improbable.

"3. Notwithstanding their separation, respondent De Guzman has continued giving

support to his children with Punzalan.

"4. The relationship between the respondents is one of the realities of life which is difficult
to prevent from happening, more so because respondent De Guzman has been separated
for a long time from his wife.

"5. Apparently, the lawful wife and legitimate children of respondent De Guzman have
tolerated the relationship between the respondents as can be implied from the fact that
none of them has filed a complaint against them.

"6. There is no indication that the relationship between the respondents has caused
prejudice to any person or has adversely affected the performance of their functions and
duties as officers of the government to the detriment of the public service.

"7. The complainants have desisted from further prosecuting their complaint and asked
for its dismissal, admitting that the filing of the present charges was an offshoot of a civil
case involving complainant Maguad and the respondents."

The investigating Judge made the following recommendation:

"1. Respondents Nicolas de Guzman and Ruby Barcenas be exonerated of the charges of
grave misconduct and falsification; and

"2. Both respondents be found guilty of the charge of immorality.

106
"However, because of the aforementioned mitigating circumstances, only the penalty of
suspension from office for one (1) month without pay be imposed on them.

"Additionally, the respondents should be admonished to terminate their cohabitation or

to take such proper course of action as will legitimize the relationship between them."

The Court fully agrees with the findings and recommendation of the Investigating
Judge that the respondents be absolved from the charges of grave misconduct and
falsification, the same being duly supported by the evidence on record and jurisprudence
on the matter.
With regard to the third accusation, the stigma of immorality attaches to the kind of
relationship between the respondents, the same being improper, notwithstanding the fact
that respondent de Guzman was separated from his wife (who is now living with another
man) and respondent Barcenas was single. In Nalupta, Jr. vs. Tapec,[7] this Court held
that illicit relations is considered disgraceful and immoral conduct subject to disciplinary
action pointing out that Memorandum Circular No. 30, Series of 1989 of the Civil Service
Commission has categorized disgraceful and immoral conduct as a grave offense for
which a penalty of suspension for six (6) months and one (1) day shall be imposed for
the first offense while the penalty of dismissal is imposed for the second offense.
However, this being the first offense of the respondents and there being no allegation
in the complaint that respondent Barcenas knew that de Guzman was married even
before they started their relationship and came to know of it only when it was already
too late to back out, with the birth of their children, and taking into account the
circumstances enumerated by the Investigating Judge that may be considered to mitigate
their liability, the Court, in order to temper justice with mercy is inclined to impose a
lighter penalty upon the respondents.
In a Memorandum[8] for the Chief Justice dated September 28, 1998, the Court
Administrator recommended that the respondents Deputy Sheriff Nicolas de Guzman and
Social Worker Ruby Barcenas be absolved from the charges of grave misconduct and
falsification, but respondent de Guzman should be suspended for two (2) months without
pay for immorality and respondent Barcenas be suspended for fifteen (15) days without
pay and that both respondents be admonished to terminate their relationship or to take
the necessary steps to legitimize the same.
Parenthetically, on February 5, 1999, the respondents filed a Manifestation[9] stating
among others:
xxxxxxxxx

"5. That on May 25, 1995, respondent Nicolas de Guzman filed a

Petition for Annulment of Marriage before the Regional Trial Court, Branch 90, Imus,
Cavite;

"6. On August 12, 1998, a Decision was rendered by the Honorable Judge Dolores C.
Espaol in favor of the respondent;

"7. That on November 27, 1998, Entry of Final Judgment regarding the Annulment of
Marriage was issued by the Clerk of Court of Regional Trial Court Branch 90, Imus, Cavite;
and,

"8. That on October 19, 1998, the respondents had tied their marriage knot before the
Honorable Judge Leticia P. Morales of Regional Trial Court, Makati."

107
 WHEREFORE, respondents Deputy Sheriff Nicolas de Guzman and Court Social
Worker Ruby Barcenas are absolved from the charge of grave misconduct and
falsification, but respondent de Guzman is SUSPENDED for two (2) months without pay
and respondent Barcenas for fifteen (15) days also without pay, both for immorality.
SO ORDERED.

108
FIRST DIVISION

[G.R. No. L-4352. March 24, 1908. ]

THE UNITED STATES, Plaintiff-Appellee, v. RICARDO BAYOT, Defendant-

Appellant.

Carlos Ledesma and Ramon Fernandez, for Appellant.

Attorney-General Araneta, for Appellee.

SYLLABUS

1. FALSIFICATION OF A PUBLIC DOCUMENT; PUBLIC FUNCTIONARY. — The guilt of a

public official charged with the falsification of a public document does not depend upon
the advantage or profit which he may have obtained thereby.

2. ID.; MARKS UPON A PAY ROLL. — Upon the evidence adduced in this case: Held, That
the vertical lines placed upon the day roll opposite certain names thereon did not mean
that such persons were present the entire day, but that they performed all the work
required on the day.

DECISION

WILLARD, J. :

During the month of April, 1907, and for several years prior thereto, the defendant was
and had been the janitor of the city hall in the city of Manila. He had under his charge 12
or 15 men whose business it was to take care of and clean the building. In the month of
April, one of these men was Manuel Manalo. The work assigned to him was the cleaning
of the water-closets. The work done by all of these laborers had to be performed before
the offices opened in the morning or after they were closed at night. The water-closets
were cleaned only once a day and that work was done by Manuel Manalo in the morning
before 8 o’clock. During the month of April he went to the building every day about half
past 6 and performed this work, which was all the work that was assigned to him, and
which was all the work which he had to perform during the entire day. He was not in the
building any day after 9 a. m. There was evidence, however, that it was the duty of these
men to remain in the building so that if any extraordinary work should be required of
them they would be there to perform it. The evidence shows that some of the men were
allowed to go away, and others stayed there and that those that stayed there did nothing
except to perform the regular work assigned to them.

On the 1st of May, 1907, a pay roll was made out for the month of April. It contained the
names of all the workmen and a square against each name for each day in the month.
All of the square against each name of Manuel Manalo contain a vertical line. The
defendant signed the following certificate upon this pay roll: "I certify that I have been
in charge of the men whose names appear on the above roll during the period indicated,
that the roll is correct, and that the labor has been performed as stated." Manuel Manalo
received pay at the rate of 70 cents a day and for the month of April he was paid P21.

A complaint was filed against the defendant charging him, as a public official, with the

109
falsification of a public document, to wit, this pay roll, it being alleged that the certificate
which he attached thereto was false. He was convicted in the court below of the crime
charged against him and has appealed.

To our minds the only question in the case is as to the meaning of the vertical lines placed
in the square opposite the names of these laborers. It is claimed by the appellant that
they only mean that the persons to whom the lines referred had performed upon the
days mentioned the services which had been required of each one. If this is the correct
meaning of these lines, then the certificate signed by the defendant was true, because it
was proven that Manuel Manalo had performed during the month of April all the work
which was assigned to him. It is claimed by the Government, however, that these lines
indicate, not that Manuel Manalo performed all the work that was required of him during
the day, but that he was present in the building during all the day and it relies upon the
following statement made at the top of the payroll: "Mark the time each day in ink under
the proper date, using full or fractional marks for part of a day as earned." The Attorney-
General insists that, inasmuch as Manuel Manalo was not present all of the day, the time
during which he was present all of the day, the time during which he was present should
have been indicated by a fractional mark. There are no fractional marks upon this time
roll. Mr. Dorrington, the then superintendent of public buildings and a witness for the
Government, was asked: "What mark is generally made on the labor pay rolls to indicate
a man has worked one-half a day?" and he answered: "I do not know what would be put
there in a case of that kind." He further testified: "Q. Have you ever seen on the pay roll
a man’s name for one half a day’s work? — A. Not that I recall; it may be possible in
some cases; I do not recall."cralaw virtua1aw library

If that part of the certificate signed by the defendant which states that he had been in
charge of the men was correct, and that part which states that the labor had been
performed was correct, the only question is, Is that part of the certificate which says "that
the roll is correct," false or true? After considerable hesitation we have come to the
conclusion, in view of all the testimony in the case, that it can not be said that this
statement was false; in other words, that the vertical lines do not necessarily mean that
the person against whose name they appear was present in the building during every
hour of the day. The defendant, therefore, can not be convicted of the crime of
falsification of a public document by a public official.

There are some additional facts in the case not before stated, which to our mind have no
bearing upon the precise question in this case, namely, whether the defendant is guilty
of the crime charged against him, for the crime thus charged does not depend upon the
advantage of profit which the defendant may obtain from the falsification. A defendant
may be guilty of this crime without in any way profiting thereby. The additional facts
referred to are the following:chanrob1es virtual 1aw library

It was proven by the Government and admitted by the defendant, that during the month
of April, and for sometime before, Manuel Manalo was and had been the defendant’s
cook; that after he had finished his work at the city hall in the morning the defendant
gave him money and sent him to the market where he bought provisions; and that he
returned to the city hall, stayed there until about 9 o’clock, and then went to the
defendant’s house where he worked as cook until about 2 o’clock in the afternoon and
then went to his own house. For these services as a cook the defendant paid nothing,
although he claims that he was educating the minor child of Manuel Manalo. That this
conduct of the defendant in availing himself of the services of Manuel Manalo under the
circumstances was grossly irregular and that it perhaps constitutes a crime under the
provisions of the Penal Code is not to our minds decisive of the question here raised.
However delinquent the defendant may have been, the question here is, Did his

110
delinquency amount to the crime of the falsification of a public document? If it did not,
he must be acquitted of the present charge and we can not inquire under this complaint
as to what other offense he may have committed.

The judgment of the court below is reversed and the defendant is acquitted, with the
costs of both instances’ de oficio.

111
EN BANC

G.R. No. L-7236 April 30, 1955

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.
PO GIOK TO, defendant-appellee.

First Assistant Solicitor General Ruperto Kapunan, Jr., and Assistant Solicitor
General Lucas Lacson for appellant.
Borromeo, Yap and Borromeo for appellee.

REYES, J.B.L., J.:

In the Court of First Instance of Cebu, the defendant appellee Po Giok To was charged
with the crime of falsification under the following information:

That on or about the 7th day of January, 1952, in the City of Cebu, Philippines,
and within the jurisdiction of this Honorable Court, the said accused, with intent
to falsify or forge a public document, did then and there wilfully, unlawfully and
feloniously falsify, or forge a public document consisting of residence certificate
No. A-1618529 issued to him in the City of Cebu, on January 7, 1952, by e
representative of the City Treasurer of Cebu, to wit: by misrepresenting to the said
representative of the City Treasurer of Cebu that his name is Antonio Perez, that
his place of birth is Jaro, Leyte and that his citizenship is Filipino, and by means of
such misrepresentation, said representative of the City Treasurer of Cebu was
made to issue and write, and in fact did issue and write, on the corresponding
lines on said residence certificate No. A-1618529 the name of Antonio Perez, as
the name of the taxpayer, Jaro, Leyte as his place of birth, and Filipino as his
citizenship, thus causing it to appear that the said residence certificate No. A-
1618529 dated January 7, 1952, was issued to one Antonio Perez with his place
of birth as Jaro, Leyte, and with his citizenship as Filipino, when in truth and in
fact, as the accused well knew, his true name is Po Giok To, his place of birth is
Amoy, China, and his citizenship is Chinese.

Contrary to law.

(Appellants Brief, pp. 2-3).

The accused filed a motion to quash on the ground that the information does not allege
(1) that the accused had the obligation to disclose the truth in the document allegedly
falsified, nor (2) that the accused had the wrongful intent to injure a third person. The
City Fiscal opposed the motion to quash claiming that the information alleges all the
integral elements of the offense charged as defined by the statute. The lower Court,
however, found the motion to quash meritorious and ordered the amendment of the
information. Upon insistence of the City Fiscal that the information was sufficient and that
he was not in possession of any evidence that the accused made use of the residence
certificate containing the alleged false entries, the Court a quo dismissed the case without
prejudice. Hence, this appeal by the Government.

The sole issue is whether or not the information in question alleges sufficient facts to
constitute the crime of falsification of public document. The defense contends that the
information is insufficient for failure to recite two alleged essential elements of the crime
charged; namely, the obligation on the part of the accused to disclose the truth, and
wrongful intent on the part of the accused to injure third persons.
112
We agree with the Solicitor-General that the first element allegedly lacking in the
information, viz., the obligation on the part of the accused to disclose the truth as to the
facts that should appear in a residence certificate, is inherent in the very nature and
purpose of said document. Section 3 Commonwealth Act 465 (otherwise known as the
Residence Tax Act) provides "that the residence certificate for persons shall contain the
full name, place and date of birth, citizenship, civil status, length of residence in the city
or municipality where the certificate is issued, occupation or calling", all of which facts
are required to appear therein for the purpose of establishing the true and correct identity
of the person to whom the certificate is issued. Needless to say, this provision implies
that the person to whom the certificate is issued must state to the officer who issues the
same, the true facts, required to appear therein, the latter having merely the ministerial
function of recording thereon the facts as supplied by this person. And to guarantee that
the facts given correctly and truly identify the holder of the certificate, he is also required
by Sec. 3, supra, to sign the document and affix his right hand thumb mark thereon.
There is, therefore, no question that the accused had the duty to disclose the true facts
about his name, place of birth, and citizenship to the officer or employee who issued his
residence certificate No. A-1618529; and such duty being inherent in the transaction,
there was no need for the criminal charge to allege that the accused had such duty.

Anent the second element allegedly lacking in the information in question, the law is clear
that wrongful intent on the part of the accused to injure a third person is not an essential
element of the crime of falsification of public document.

Article 172, par. 1, in connection with Art. 171, par. 4, of the Revised Penal Code, under
which provision the accused is charged, provides as follows:

ART. 171. Falsification by the public officer, employee or notary or ecclesiastic

minister. — The penalty ofprision mayor and a fine not to exceed 5,000 pesos shall
be imposed upon any public officer, employee, or notary who, taking advantage
of his official position shall falsify a document by committing any of the following
acts:

xxx xxx xxx

4. Making untruthful statements in a narration of facts.

ART. 172. Falsification by private individuals and use of falsified documents. —

The penalty of prision correccional in its medium and maximum periods and a fine
of not more than 5,000 pesos shall be imposed upon:

xxx xxx xxx

1. Any private individual who shall commit any of the falsifications enumerated in
the next preceding article in any other kind of commercial document.

On the other hand, Art. 172, par 2, defining the crime falsification of private
document, provides:

2. Any person who, to the damage of a third party, or with intent to cause such
damage, shall in any private document commit any of the acts of falsification
enumerated in the next preceeding article.

The distinction made by the law between falsification by private persons, first, of public
documents, and secondly of private documents, is clear; the first is committed by the
mere performance of any of the acts of falsification enumerated in Art. 171; while the
113
second is committed not only by the performance of any of the acts of falsification
enumerated in Art. 171; but it must likewise be shown that such act of falsification was
committed to the damage of a third party or with intent to cause such damage.

The reason for the distinction is given in a decision of the Supreme Court of Spain dated
December 23, 1885, cited by this Court in the case of People vs. Pacana, 47 Phil. 48; i.e.,
that in the falsification of public or official documents, whether by public officials or by
private persons, it is unnecessary that there be present the idea of gain or the intent to
injure a third person, for the reason that, in contradiction to private documents, the
principal thing punished is the violation of the public faith and the destruction of the truth
as therein solemnly proclaimed.

Our own commentators on the Revised Penal Code are also agreed on this distinction.
(Francisco, Revised Penal Code.) Sec. ed., Vol. II, Part 1, p. 301; Guevara, Comm. on the
Revised Penal Code, IV Ed., P. 172; Albert, Revised Penal Code, 1948 Ed., p. 398).

Moreover, the acts charged, if true, would result in confusion in the government records,
since the fingerprint of the accused would not correspond to that of the person whose
personal circumstances are recited in the certificate. Such confusion in its records
evidently operates to the Government's prejudice. Being the natural and direct result of
the criminal act charged, the accused must be presumed to have intended it.

Defendant-appellee also advances the theory that a private person can not commit the
crime of falsification charged, i. e., by making untruthful statements in a narration of
facts, referring to the opinion of the late Justice Albert that "only of the eight ways of
committing falsifications enumerated in Article 171, to wit, the first, the fifth, and the
sixth, are open to a private individual" (Albert, supra, p. 405); and stresses that if there
had been any falsification at all in this case, it was committed by the employee who,
though innocently, wrote the allegedly untrue facts on defendant's residence certificate.
The opinion quoted plainly refers to direct falsification by a private person, and does not
contemplate situations where the accused, though a private person, becomes a principal
to the act of falsification committed by a public official or employee, by induction,
cooperation, or planned conspiracy (cf. Sent. of Tribunal Supremo of Spain of 23 Mar.
1885; 28 Apr. 1905; 28 Mar. 1893). In the present case, although it is true that it was
the employee of the Office of the City Treasurer of Cebu who performed the overt act of
writing the allegedly false facts on the defendant's residence certificate, it was however,
the defendants who induced him to do so by supplying him with those facts.
Consequently, the employee was defendant's mere innocent agent in the performance of
the crime charged, while defendant was a principal by inducement.

Finally, it is argued for the defendant-appellee that there being a special law with respect
to residence certificates expressly punishing their falsification (Commonwealth Act No.
465), this special law, and not the provisions of the Revised Penal Code, should apply in
this case; and since Commonwealth Act No. 465, sec. 11 punishes the falsification of a
residence certificate only when it is done "for the purpose of using the same in the
payment of revenue or in securing any exemption or privilege conferred by law", which
element is not alleged in the information, the same was properly dismissed by the lower
Court. Again this contention is without merit. The fact that Commonwealth Act No. 465
punishes the falsification of residence certificates in the cases mentioned therein does
not prevent the application of the general provisions of the Revised Penal Code on other
acts of falsification not covered by the special law, since under Art. 10 of the Rev. Penal
Code, it has supplementary application to all special laws, unless the latter should
specially provide the contrary, and Commonwealth Act No. 465 makes no provision that
it exclusively applies to all falsifications of residence certificates. Then, again, section 12

114
of Commonwealth Act. No. 465 penalize all other violations of the residence certificate
law not covered by the preceeding sections thereof. Which law is applicable should be
determined when the case is decided on its merits. At the present stage of the
proceedings, however, it can be stated that whether the crime charged be punishable
under the Revised Penal Code, or sec. 12 Comm. Act No. 465, the information was
sufficient, and its dismissal for insufficiency by the Court below was improper and
erroneous.

The order of the trial court dismissing the information filed in this case is, therefore,
reversed, and the case is remanded to the Court below for further proceedings, with costs
against the defendant-appellee.

Pablo, Acting C.J., Bengzon, Montemayor, Reyes, A., Bautista Angelo, Labrador and
Concepcion, JJ., concur.

115
G.R. No. L-36345 November 25, 1932

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
PEDRO MONTANO and WENCESLAO CABAGSANG, defendants-appellants.

M. H. de Joya for appellants.

Attorney-General Jaranilla for appellee.

BUTTE, J.:

This is an appeal from the decision of the Court of First Instance of Cavite, convicting the
defendants-appellants of the crime of falsification of public documents. The defendant
Wenceslao Cabagsang was the chief of police and the defendant Pedro Montano was the
justice of the peace of the municipality of Tanza in the Province of Cavite, in the month
of September, 1930, when the crimes for which they were convicted occurred. It appears
from the evidence that on September 5, 1930, a criminal complaint against one Arturo A.
Soriano for the crime of qualified seduction was filed with the said justice of the peace.
The justice, apparently to favor Soriano, delayed the preliminary investigation until the
offended woman on September 18, 1930, filed with him a motion demanding immediate
action and calling his attention to the fact that his delay was a violation of the circular of
instructions of the judge of the Court of First Instance of said province. The case was
then set for hearing on September 22, 1930. Thereafter administrative charges against
the justice of the peace were filed with the Court of First Instance of Cavite, alleging that
the delay in the preliminary investigation was a violation of the circular of the Court of
First Instance, dated November 15, 1928, requiring all justices of the peace to dispose of
all preliminary investigations within ten days from the date on which the court acquired
jurisdiction over the person of the accused.lawphil.net

The evidence shows beyond reasonable doubt that prior to the hearing of said
administrative case, the defendants, in order to make it appear that there had been no
violation of the said instructions to the justices of the peace, falsified official records in
their custody as follows:

The defendant chief of police fraudulently altered and falsified the municipal police blotter
and the book of records of arrests and the return of the warrant of arrest and Soriano's
bail bond so as to make them show that the said Arturo A. Soriano was arrested and gave
bond on the 13th day of September, 1930, whereas, in truth and in fact, as said records
showed before said falsification, the said Arturo A. Soriano was arrested and released on
bond on the 6th day of September, 1930; that the defendant Pedro Montano conspired
and cooperated with his codefendant in making said falsifications in order to meet the
administrative charges then pending against him. The court below rejected the defense
of the accused that said alterations were made in good faith and corresponded to the
true facts of the case. There is no issue of law raised in the assignment of errors. We
have made a careful review of the evidence and have come to the conclusion that the
judgment of the court below should be affirmed, with costs against the appellants. So
ordered.

Avanceña, C.J., Villa-Real, Abad Santos, Hull and Vickers, JJ., concur.

116
[A.C. No. 5645. July 2, 2002]

ROSALINDA BERNARDO VDA DE ROSALES, complainant, vs. ATTY. MARIO G.

RAMOS, respondent.

DECISION
BELLOSILLO, J.:

This complaint for disbarment was filed in behalf of complainant Rosalinda Bernardo
Vda. de Rosales by the National Bureau of Investigation (NBI) against respondent Atty.
Mario G. Ramos for violation of Act No. 2711 of the Revised Administrative Code of 1917,
Title IV, Ch. 11, otherwise know as the Notarial Law, particularly Secs. 245 and 246
thereof.
In September 1990 Manuel A. Bernardo, brother of complainant Rosalinda Bernardo
Vda. de Rosales, borrowed from Rosalinda the Original Transfer Certificate of Title No.
194464 covering Lot No. 1-B-4-H in her name. The lot measures 112 square meters and
is located at the back of Manuel's house on Fabie Street, Paco, Metro Manila. On 25
November 1990 Rosalinda sold this lot to one Alfredo P. Castro. When she asked her
brother Manuel to return her title he refused.
On 22 October 1990 Rosalinda executed an Affidavit of Loss of her title and presented
the affidavit to the Register of Deeds of Manila.
On 3 September 1991 the Register of Deeds informed Rosalinda that her title to the
property was already transferred to Manuel by virtue of a Deed of Absolute Sale she
purportedly executed in favor of Manuel on 5 September 1990. The document was
notarized by respondent Atty. Mario G. Ramos on 1 October 1990 and entered in his
Notarial Register as Doc. No. 388, Page No. 718, Book No. 10, Series of 1990. Rosalinda
however denied having signed any deed of sale over her property in favor of Manuel.
On 3 September 1991 Rosalinda filed with the NBI a complaint for falsification of
public document against her brother Manuel. The NBI invited respondent Atty. Ramos for
questioning.The complaint alleged among others that on 12 September 1991 Atty. Mario
G. Ramos executed an affidavit before the NBI admitting that when Manuel presented
the purported Deed of Absolute Sale to him for notarization, he (Atty. Ramos) found some
defects in the document and that complainant Rosalinda was not around. The NBI
Questioned Documents Division also compared Rosalinda's signature appearing in
the Deed of Absolute Sale with samples of her genuine signature, and found that the
signature in the purported Deed of Absolute Sale and her genuine signatures were not
written by one and the same person.
On 5 October 1992 the NBI transmitted its findings to the Office of the City Prosecutor
of Manila with the recommendation that Manuel and Atty. Ramos be prosecuted for
Falsification of Public Document under Art. 172 in relation to Art. 171 of The Revised
Penal Code, and that Atty. Ramos be additionally charged with violation of the Notarial
Law.
The NBI also transmitted to the Integrated Bar of the Philippines (IBP) Commission
on Bar Discipline (CBD) photocopies of the NBI investigation report and its annexes, and
a verified complaint[1] for disbarment signed by Rosalinda. The CBD received the records
on 5 October 1992. On the same date, the CBD through Commissioner Victor C.
Fernandez directed respondent to submit an answer to the complaint within fifteen (15)
days from notice.

117
 Respondent admitted in his Answer[2] that he had affixed his signature on the
purported Deed of Absolute Sale but failed to enter the document in his Notarial Registry
Book. He also admitted executing before the NBI on 12 September 1991 an affidavit
regarding the matter. Respondent prayed for the dismissal of the complaint since
according to him he only inadvertently signed the purported Deed of Absolute Sale and/or
that his signature was procured through mistake, fraud, undue influence or excusable
negligence, claiming that he simply relied on the assurances of Manuel that the document
would not be used for purposes other than a loan between brother and sister, and that
he affixed his signature thereon with utmost good faith and without intending to obtain
personal gain or to cause damage or injury to another.
The CBD set the case for hearing on 3 March 2000, 28 April 2000, 16 June 2000 and
5 October 2000. Complainant never appeared. The records show that the notices sent to
her address at 1497 Fabie Street, Paco, Manila, were returned unclaimed.[3]
On 26 January 2002 the IBP Board of Governors approved the report and
recommendation of the CBD through Commissioner Fernandez that the case against
respondent be dismissed in view of complainant's failure to prosecute and for lack of
evidence on record to substantiate the complaint.[4] The Investigating Commissioner
found that the notices sent to complainant were returned unclaimed with the
annotation "moved out," and that she did not leave any forwarding address, and neither
did she come to the CBD to inquire about the status of her case. From these actuations,
he concluded that complainant had lost interest in the further prosecution of this
case,[5] and so recommended its dismissal.
We cannot wholly agree with the findings and recommendation of the Investigating
Commissioner. It is clear from the pleadings before us that respondent violated the
Notarial Law in failing to register in his notarial book the deed of absolute sale he
notarized, which fact respondent readily admitted.
The Notarial Law is explicit on the obligations and duties of a notary public. It requires
him to keep a notarial register where he shall record all his official acts as notary, [6] and
specifies what information with regard to the notarized document should be entered
therein.[7] Failure to perform this duty results in the revocation of his commission as
notary public.[8]
The importance attached to the act of notarization cannot be
overemphasized. Notarization is not an empty, meaningless, routinary act. It is invested
with substantive public interest, such that only those who are qualified or authorized may
act as notaries public.[9] Notarization converts a private document into a public document
thus making that document admissible in evidence without further proof of its
authenticity.[10] A notarial document is by law entitled to full faith and credit upon its
face. Courts, administrative agencies and the public at large must be able to rely upon
the acknowledgment executed by a notary public and appended to a private
instrument.[11]
For this reason notaries public must observe with utmost care the basic requirements
in the performance of their duties.[12] Otherwise, the confidence of the public in the
integrity of this form of conveyance would be undermined.[13] Hence a notary public
should not notarize a document unless the persons who signed the same are the very
same persons who executed and personally appeared before him to attest to the contents
and truth of what are stated therein.[14] The purpose of this requirement is to enable the
notary public to verify the genuineness of the signature of the acknowledging party and
to ascertain that the document is the party's free act and deed.[15]
The notary public is further enjoined to record in his notarial registry the necessary
information regarding the document or instrument notarized and retain a copy of the
document presented to him for acknowledgment and certification especially when it is a

118
contract.[16] The notarial registry is a record of the notary public's official
acts. Acknowledged documents and instruments recorded in it are considered public
documents. If the document or instrument does not appear in the notarial records and
there is no copy of it therein, doubt is engendered that the document or instrument was
not really notarized, so that it is not a public document and cannot bolster any claim
made based on this document. Considering the evidentiary value given to notarized
documents, the failure of the notary public to record the document in his notarial registry
is tantamount to falsely making it appear that the document was notarized when in fact
it was not.
We take note of respondent's admission in his Answer that he had affixed his
signature in the purported Deed of Absolute Sale but he did not enter it in his notarial
registry. This is clearly in violation of the Notarial Law for which he must be disciplined.
Respondent alleges that he merely signed the Deed of Absolute Sale inadvertently
and that his signature was procured through mistake, fraud, undue influence or excusable
negligence as he relied on the assurances of Manuel A. Bernardo, a kababayan from
Pampanga, that the document would not be used for any illegal purpose.
We cannot honor, much less give credit to this allegation. That respondent notarized
the document out of sympathy for his kababayan is not a legitimate excuse. It is appalling
that respondent did away with the basics of notarial procedure in order to accommodate
the alleged need of a friend and client. In doing so, he displayed a decided lack of respect
for the solemnity of an oath in a notarial document. He also exhibited his clear ignorance
of the importance of the office of a notary public. Not only did he violate the Notarial
Law, he also did so without thinking of the possible damage that might result from its
non-observance.
The principal function of a notary public is to authenticate documents. When a notary
public certifies to the due execution and delivery of the document under his hand and
seal he gives the document the force of evidence. Indeed, one of the purposes of
requiring documents to be acknowledged before a notary public, in addition to the
solemnity which should surround the execution and delivery of documents, is to authorize
such documents to be given without further proof of their execution and
delivery.[17] Where the notary public is a lawyer, a graver responsibility is placed upon
him by reason of his solemn oath to obey the laws and to do no falsehood or consent to
the doing of any.[18] Failing in this, he must accept the consequences of his unwarranted
actions.
From his admissions we find that Atty. Mario G. Ramos failed to exercise the due
diligence required of him in the performance of the duties of notary public. We do not
agree however that his negligence should merit disbarment, which is the most severe
form of disciplinary sanction. Disbarment should never be imposed unless it is evidently
clear that the lawyer, by his serious misconduct, should no longer remain a member of
the bar. Removal from the bar should not really be decreed when any punishment less
severe - reprimand, temporary suspension or fine - would accomplish the end
desired.[19] Under the circumstances, imposing sanctions decreed under the Notarial Law
and suspension from the practice of law would suffice.
WHEREFORE, for lack of diligence in the observance of the Notarial Law, the
commission of respondent Atty. Mario G. Ramos as Notary Public, if still existing, is
REVOKED and thereafter Atty. Ramos should be DISQUALIFIED from reappointment to
the office of Notary Public.
Respondent Atty. Mario G. Ramos is also SUSPENDED from the practice of law for a
period of six (6) months effective immediately. He is DIRECTED to report to this Court
his receipt of this Decision to enable it to determine when his suspension shall have taken
effect.

119
 The Clerk of Court of this Court is DIRECTED to immediately circularize this Decision
for the proper guidance of all concerned.
Let copies of this Decision be furnished the Office of the Bar Confidant and the
Integrated Bar of the Philippines.
SO ORDERED.

120
ARTICLE 178

G.R. No. 11522 September 26, 1916

THE UNITED STATES, plaintiff-appellee,

vs.
TO LEE PIU, defendant-appellant.

Beaumont and Tenney for appellant.

Attorney-General Avancena for appellee.

MORELAND, J.:

This is an appeal from a judgment convicting the appellant of the crime of using a false
name and sentencing him to 2 months and one day of arresto mayor, to pay a fine of
325 pesetas, with subsidiary imprisonment in case of nonpayment of the fine, and the
costs of the trial.

The appellant was charged with using a false name. The evidence is to the effect that he
came to the Philippine Islands in 1911 and presented a section six certificate, which is
attached to the record as Exhibit A, wherein his name appears as To Lee Piu. Thereafter,
he attached to an application for a passport the name Toribio Jalijali. Said application was
accompanied by the affidavits of two witnesses and by a baptismal certificate showing
that a person by that name was born in the Philippine Islands in 1878. On the trial there
was no denial of the fact that appellant signed the name Toribio Jalijali to the application
for a passport; and the only evidence which may be regarded as having been contradicted
in the case is that given by the defendant himself when he testified that he was born in
the Philippine Islands, that his name is Toribio Jalijali, that he went to China at an early
age, and, feeling doubtful as to his ability to prove his right to reenter, applied to the
American consul at Canton for a section six certificate; that, on such application, he stated
to the consul that his name was Toribio Jalijali, and that, upon being told by the clerk of
the consulate that it was not necessary to put his surname in such application, wrote
therein the Christian name Toribio alone.

The charge is prosecuted on the theory that To Lee Piu appellant's correct name and that
the name Toribio Jalijali is false.

Counsel for appellant maintains that the Government, in order to maintain the action,
must prove (a) that the two names in question were different, and (b) that the name
alleged to be false was in fact false; and that the failure of the Government to meet these,
or either these, requirements must result in an acquittal.

It is contended on this appeal that the Government did not meet either of these
requirements. Counsel says:

Upon the issue as to whether the two names were identical the evidence is to the
effect that To Lee Piu is the nearest that the word Toribio can be written in Chinese
characters, and that it is the way in which a Chinese interpreter would naturally
write such a word.

With respect to the charge that the name used in the application for a passport was a
false name, counsel contends that the allegation upon which that charge is based was
not proved by the Government. He says in brief:

121
 Even were the testimony upon this issue contradictory or doubtful, conceding for
the sake of argument that the two names are legally different, the burden would
be clearly upon the Government to show which was the true and which was the
false name; and having made their election and alleged that one of the two names
is false, affirmative proof must be introduced in support of this issue.

We are satisfied on the whole case that the conviction must stand. From the fact and
circumstances in evidence it appears established beyond a reasonable doubt that the
appellant used the name of another person for the purpose of deceiving Government
and, by that deception, to obtain a passport. He came to the Philippine Islands as a
Chinese person traveling for curiosity and pleasure. He so represented himself to the
American consul at Canton and, by that representation, obtained a section six certificate.
In his application for that certificate he stated that he was a Chinese person, and that his
name was To Lee Piu .He came to the Philippine Islands upon those representations; and,
by virtue of the certificate obtained thereby, was permitted to enter the country. Desiring
to return to China, or travel in other parts of the world and, at the same time, be permitted
to return to the Philippine Islands at will, he sought to obtain a passport as a citizen of
the Philippine Islands under the sovereignty of the United States. In order to accomplish
his purpose it was necessary for him to show to the authorities of the Philippine Islands
issuing passport that he was in fact a citizen of the Philippine Islands and as such entitled
to a passport. He thereupon took unto himself a Filipino name, one not his own, and
made his application for a passport attaching to his application the name Toribio Jalijali.

As to the difference between the two names, To Lee Piu and Toribio Jalijali, a mere glance
at, or a single pronunciation of, the two names serves to demonstrate beyond question
their complete unlikeness. It is true that the name Toribio when pronounced by a
Chinaman may sound like To Lee Piu. But it must be observed, in the first place, that the
name assumed by the appellant and signed to the application for a passport is not Toribio
but Toribio Jalijali; and, in the second place, that the name assumed by the appellant in
China and that under which he presented himself to the American consul at Canton, was
not Toribio nor Toribio Jalijali, but To Lee Piu, thus clearly implying that he belonged to
the family or tribe of To, and, therefore, was not of Philippine origin or birth. The claim
of the appellant that the clerk of the American consulate at Canton told him that, in
making an application for a section six certificate it was unnecessary to give his surname,
cannot be accepted. Such a contention is so unusual and so opposed to universal
experience that it must fall of its own weight. It seems incredible that an American consul,
or any of his responsible employees, would give such information to a Chinese person
applying for the privilege of entering American territory. It cannot be accepted without
strong corroborative proof that an American consul, or his accredited representative,
would inform the appellant that the most important of his two names, his family name,
could be omitted or entirely disregarded in a proceeding having for its main purpose his
identification. The surname is the only name by which identification is rendered possible.
The Christian name, while being the specific and individual name, is of no value whatever
for identification purposes. One of the most important duties of American officials
engaged in permitting the entry of Chinese persons into American territory is to establish
and preserve the identity of the particular individual to be admitted. Without the ability
to identify all control over the admission of Chinese is lost. It is not to be believed that
an American official whose duty it is to enforce the laws pertaining to Chinese exclusion
and to protect the territory of the United States from an invasion of Chinese laborers,
would inform a Chinaman desiring to enter American territory that he might dispense
with the only evidence upon which an identification of him could be based. The Christian
name is without value for the purposes of identification until after the surname is known.

122
That the name Toribio Jalijali was a false name as applied to the appellant in this case is
in our judgment beyond question in the record. It is undoubted that To Lee Piu was the
name by which the appellant was known in China. It is the name he gave to the American
consul and it is the only name he gave. He alleged that he was born in China in October,
1878, and applied for a certificate which is required of Chinese persons only. Upon his
own statements and the statement of his government he was given a section six
certificate. It would seem to us that these facts are sufficient to establish, prima facie at
least, that the appellant is a Chinese person and a Chinese subject; that he was born in
China in October, 1878; and that his name is To Lee Piu. These facts being established it
is incumbent on the appellant to relieve himself of the charge that, when he stated under
oath in his application for a passport that his name was Toribio Jalijali and that he was
born in Santa Cruz, Manila, on the 27th of April, 1878, he did not tell the truth; or to give
such proof with reference thereto as would raise in the mind of the trial court a reasonable
doubt as to his true name. The only evidence offered by the appellant in this connection
was a certificate of baptism of an infant named Toribio Jalijali, born in Santa Cruz, Manila,
in April, 1878. The names of several witnesses appear in this certificate. None of them
were produced on the trial; nor was it shown that these witnesses, or any of them, were
dead, or that the appellant was unable to procure their presence at the trial. No effort
was made to find or offer as a witness his alleged father or mother.

On the trial the appellant testified in the Chinese language by means of a Chinese
interpreter. He showed no familiarity with the Spanish language or with any of the
Philippine dialects; and the trial court said, with reference to his personal
appearance, that so far as could be judged from all surface characteristics the
defendant is in truth and in fact a Chinese person as he describes himself in the
Philippine Carnival certificate Exhibit A; and adds: "A comparison of the two
documents, the certificate Exhibit A and the application for passport, is alone
sufficient to show that the defendant's statements are unworthy of credence, that
his claim is that he was born m in the Philippine Islands is false, and that the name
Toribio Jalijali now claimed by the defendant is false and assumed.

The judgment appealed from is affirmed, with costs against the appellant. So ordered.

123
ARTICLE 183
[G.R. No. 5751. September 6, 1910. ]

THE UNITED STATES, Plaintiff-Appellee, v. LOPE ESTRAÑA, Defendant-

Appellant.

Vicente Franco, for Appellant.

Attorney-General Villamor, for Appellee.

SYLLABUS

1. THE LAW OF PERJURY IN THE PHILIPPINE ISLANDS. — The provisions of the Penal
Code relative to false swearing were repealed by Act No. 1697, and this Act now
constitutes the general law of perjury in this jurisdiction. (U.S. v. Concepcion, 13 Phil.
Rep., 424.)

2. PERJURY; FALSE TESTIMONY, TO CONSTITUTE PERJURY, MUST BE MATERIAL AND

MUST BE SO ESTABLISHED. — False testimony, in order to become punishable under the
law of perjury, must be material to some issue involved in the cause wherein such false
testimony is alleged to have been given; Revised Statutes, sec. 5392; U.S. v. Landsberg,
23 Fed. Rep., 585; State v. Hattaway, 10 Am. Dec., 580) Materiality must be established
by evidence and can not be left to presumption or inference. (30 Cyc., 1443, and cases
cited.)

3. ID.; "MATERIAL MATTER" DEFINED. — The term "material matter" means the main
fact which was the subject of the inquiry, or any circumstance which tends to prove the
fact, or any fact or circumstance which tends to corroborate or strengthen the testimony
relative to the subject of the inquiry, or which legitimately affects the credits of any
witness who testifies. (In Franklin Country 5 Ohio S. & c. Pl. Dec., 691; 7 Ohio, N. p.,
250; People v. Greenwell, 5 Utah, 112, 13 Pac. Rep., 89.)

4. CRIMINAL PRACTICE AND PROCEDURE; FATAL DEFECTS IN COMPLAINT; OBJECTION

ON APPEAL; DEFECTS CURED BY COMPETENT EVIDENCE. — Where a complaint is fatally
defective, either in form or in substance, and no objection is taken at the trial but is raised
for the first time on appeal, it is not error for this court to refuse to sustain such objection
when the fatal defects are supplied by competent proofs. (Serra v. Mortiga, 204, 204
U.S., 470, reported in 11 Phil., Rep., 762.)

5. ID.; ADMISSIONS BY COUNSEL MADE FOR FIRST TIME ON APPEAL, NOT COMPETENT.
— A mere statement by the counsel for the accused, made for the first time in his brief
on appeal and which would constitute ground for a conclusion of guilt, can not be
accepted by this court as competent proof to supply fatal defects in the complaint, nor
as a basis upon which to sustain conviction. Clayton v. State, 4 Tex, App., 515.)

6. PERJURY AS DEFINED BY STATUTE; DISTINCTION BETWEEN PERJURY AND FALSE

SWEARING. — Perjury, as modified by statute, may be define to be the willful and corrupt
assertion of a falsehood, under oath or affirmation administered by authority of law, in a
material matter, the offense being enlarged and made to extend to false oaths other than
those taken in the course of judicial proceedings. There is a distinction between perjury
and false swearing; the one is stubborn and corrupt, while the other is simply not true
and is lacking the elements which go to constitute the crime of perjury. (Miller v. State,
15 Fla., 577.)

124
7. CRIMINAL PRACTICE AND PROCEDURE; PROSECUTION FOR PERJURY. — In some
jurisdictions, a prosecution for perjury is continued until the proceeding in which the
perjury is continued until the proceeding in which the perjury is alleged to the have
committed is ended. But, under the law of the Philippine Islands (Act No. 1697), it is not
necessary that the proceeding in which the perjury is alleged to have been committed be
terminated before prosecution for the crime is commenced. (U.S. v. Concepcion, 13 Phil.
Rep., 424.) The contrary rule obtained under the Penal Code. (U.S. v. Opinion, 6 Phil.
Rep., 662; U.S. v. Adolfo, 12 Phil. Rep., 296.)

DECISION

TRENT, J. :

The complaint filed in this case is a follows:jgc:chanrobles.com.ph

"That on the 26th of July, 1909, in the municipality of Bacolod, Province of Negros
Occcidental, Philippine Islands, the said Lope Estraña, having been duly sworn as a
witness in the Court of First Instance of the said province in criminal case No. 1055 ,
entitled "United States v. Gil Gamao Et. Al.," 1 for murder, illegally, maliciously, willfully,
and falsely testified and declared, under oath, that on the 15th day of May, 1909, one
Dionisio Tambolero came to his house in Japitan, within the jurisdiction of the municipality
of Escalante, in said province, at about 7 p.m. on the said 15th day of May, 1909, and
that he remained in the house of the said accused (Lope Estraña) until the following day;
when, as a matter of fact, and as the accused, Lope Estraña, well knew, the said Dionisio
Tambolero was not at Japitan on the said 15th day of May; all of which was in violation
of the statutes in such case made and provided."cralaw virtua1aw library

The accused was arraigned, plead not guilty, tried, convicted, and sentenced to be
confined in the Insular penitentiary, for the period of one year and one day, and "to
hereafter be incapable of holding any public office or of giving testimony in any court of
the Philippine Islands," and to pay the costs of the cause. He appealed to this court.

The Roman Catholic priest in charge of the parish in the town of Escalante, Province of
Occidental Negros, was fatally wounded on the night of May 15, 1909, and died about 5
a.m. on the following morning. Subsequently thereto criminal case No. 1055, wherein the
United States was plaintiff and Gill Gamao Et. Al. were defendants, charged with the
assassination of the said priest, was instituted in the Court of First Instance in the said
province. The appellant, Lope Estraña, was called as a witness for the defense in said
criminal case and after being duly sworn according to law, testified, among other things,
that he was then living in the barrio of Japitan, jurisdiction of the said town of Escalante,
and that one Dionisio Tambolero came to his house in the said barrio about 7 p.m. on
May 15, 1909, and remained there all night, leaving about 5 a.m. on the following
morning. The prosecuting officers, believing this testimony to be false, filed a complaint
against the appellant, charging him with the crime of perjury. On the trial of this case in
the court below the appellant again testified that the said Tambolero passed the night of
May 15, 1909, at his house, and called as witnesses to corroborate him on this point his
wife and stepson who did in fact corroborate the testimony of the appellant, in that the
said Tambolero came to the appellant’s house and passed the night of May 15 there, but
they could not specifically state the hour he left the following morning.

Dionisio Tambolero testified in this case that he did not know exactly where the

125
defendant’s house is situated in the barrio of Japitan and that he never was at any time
in the house of the defendant in the said barrio; that on the morning of the 15th of May,
1909, he went to the church in Escalante, heard mass, and returned to his house in the
said town of Escalante; that at about 4 o’clock in the afternoon he returned to the
sacristia, arriving there about 5 o’clock that afternoon, had a conversation with Natalio
In son about certain baptisms which had taken place on that afternoon, and that on
leaving the sacristia he went to the store of one Jose Nieva and remained there until
about 6:30 or 7 o’clock in the evening; that on leaving this store he returned to his own
house and later went to the house of his compadre; that he and his family did not sleep
in his own house on the night of May 15 on account of it being used for the storage of
tobacco, but that they did sleep in the next house, which was owned by an employee of
his; that the next morning, when he was informed by a policeman named Clemente
Magallon of what had happened to the priest on the night before, he went direct to the
convent, arriving there a few minutes after 5 o’clock; that within one-half hour after he
arrived at the convent Gregorio Tudanca gave him some money and sent to a Chinese
store to buy nails to be used in making a casket for the deceased priest.

According to the testimony of this witness he did not leave the town of Escalante at any
time during the night of May 15, 1909. He was in the sacristia of the church at 4 o’clock
on the afternoon of May 15, and was at the convent the following morning just a few
minutes after 5 o’clock. The testimony of this witness as to the time he was at the sacristia
on the afternoon of the 15th of May is corroborated by the testimony of Natalio In son,
and his testimony with reference to the time he went to the convent on the following
morning is corroborated in every particular by the testimony of Gregorio Tudanca,
Celedonia Samonte, and Vicente Olmedo, all of whom testified positively that they saw
the said Tambolero at the convent about 5 o’clock on the morning of the 16th of May
assisting in the preparation of the body of the deceased priest for interment. So it has
been conclusively established that Dionisio Tambolero did not go to the house of the
appellant in the barrio of Japitan on May 15, neither did he spend the night of the 15th
of May in the appellant’s house. Considering the distance from the appellant’s house to
the town of Escalante, which requires at least two and one-half hours, either by land of
water, and the difficulties to be encountered in making this journey, it was a physical
impossibility for Tambolero to have left the house of the appellant at the time stated by
him (the appellant) and to have arrived at the convent at the time he appeared there to
assist in the burial of the priest. The appellant, Lope Estraña, did therefore knowingly and
intentionally testify falsely, under oath, before a legally constituted tribunal, when he
swore that Tambolero passed the night of May 15 in his (appellant’s) house.

The prosecution in this case is based on the said false testimony of the appellant given
in criminal case No. 1055. It may be inferred that Dionisio Tambolero was a material
witness for the prosecution in said criminal case No. 1055. If said Tambolero did, in fact,
testify as a witness for the prosecution in that case, the record of the case at bar fails to
disclose what his testimony was. Tambolero did not state that he was a witness in the
said murder case (No. 1055), neither did he make any reference to what he knew, if
anything, about the commission of that murder; but on the contrary, reading his
testimony alone, it would appear that he knew nothing about the facts surrounding the
commission of the crime, as he stated that after leaving the Chinese store he went to his
own house, slept in the house of one of his employees, and was informed the following
morning by a policeman that the murder had been committed. The only reference to the
testimony of Tambolero in said murder case appears in the appellant’s brief, wherein his
counsel states that "In said case (referring to criminal case No. 1055) a witness for the
prosecution, called Dionisio Tambolero, testified that on the night of May 15, 1909, when
the murder was committed he saw Mauricio Gamao, with a bolo in his hand, come out of
the lower part of the convent." (Mauricio Gamao was one of the defendants charged with

126
the assassination of the priest in case No. 1055.) If this statement of counsel for the
appellant be accepted as true, then Tambolero did testify that he saw one of the
defendants in that case (No. 1055) on the night of the murder leaving the lower part of
the convent with a bolo in his hand. This statement of counsel will be considered later.

Counsel for the appellant insists that the court below should have dismissed this case for
the reason that the facts perjury as defined and punished by Act No. 1697, basing his
contention on the ground that in order to sustain a conviction under said Act it was
necessary to show that the appellant had testified twice about a certain matter, his latter
testimony being contradictory of his former, and as he had only testified once he should
have been charged with the crime of false swearing (false testimonio), under the
provisions of Chapter VI of the Penal Code.

Section 3 of Act No. 1697 is as follows:jgc:chanrobles.com.ph

"Any person who, having taken an oath before a competent tribunal, officer, or person,
in any case in which a law of the Philippine Islands authorizes an oath to be administered,
that he will testify, declare, depose, or certify truly, or that any written testimony,
declaration, deposition, or certificate by him subscribed in true, willfully and contrary to
such oath states or subscribed any material matter which he does not believe to be true,
is guilty of perjury, and shall be punished by a fine of not more than five years; and shall,
moreover, thereafter be incapable of holding any public office or of giving testimony in
any court of the Philippine Islands until such time as the judgment against him is
reversed."cralaw virtua1aw library

This section specifically provides that any person who has taken an oath before a
competent tribunal that he will testify truly or that any written testimony by him
subscribed is true, willfully and contrary to such oath, states or subscribes to any material
matter which he does not believe to be true, is guilty of perjury. This section does not
impliedly require as an essential element of the crime of perjury that a defendant who is
prosecuted for having violated these provisions should have testified twice in any case or
in any investigation, his second testimony being contradictory of his firs, but he can be
charged and convicted of the crime of perjury if he willfully testifies, under oath, as
provided in said section, to any material matter which he does not believe to be true.

In the case of the United States v. Concepcion (13 Phil. Rep., 424), the defendants were
inspectors of the election board in the municipality of Calibo, Province of Capiz, in the
election for Delegates held on the 31st of July, 1907. The defendants were accused and
convicted for having violated the provisions of the Election Law, in that they refused to
inscribe the name of one Esteban Leocario without just cause. The point in controversy
in said case was whether or not Esteban Leocario appeared before the inspectors (the
accused) in order to have his name registered in the electoral list. The accused were
convicted of having violated the provision of the Esteban Law and on appeal to this court
the sentence and judgment of the lower court was affirmed. The defendants having
testified in that case the said Esteban Leocario did not appear before them on the day
alleged, to have his name registered as an elector, the prosecution filed a complaint
against the said defendants charging them with the crime of perjury. The fact in
controversy in both cases was only one, namely; the appearance or nonappearance of
Esteban Leocario before the election inspector. The defendants having been convicted of
the crime of perjury, they appealed, and this court, in passing upon the questions
involved, said (pp. 425, 429):jgc:chanrobles.com.ph

"The important question in the case, however, is whether this offense is to be punished
by the provisions of the Penal Code, articles 318 and following, or whether these articles

127
have been impliedly repealed by section 3 of Act No. 1697. If the case falls within the
provisions of the Penal Code and those provisions are still in force, the judgment must be
reversed, because this case for perjury was tried and decided in the court below before
the termination of the case in which the false testimony was given.

x x x

"Our conclusion is that the articles of the Penal Code relating to perjury have been
repealed, and that the crime is now defined and punished by section 3 of Act No.
1697."cralaw virtua1aw library

So the reason given by counsel for the appellant as to the sufficiency of the allegations
in the complaint is untenable, but there is a good reason why the complaint is insufficient
in law, and that is that there is no allegation in this complaint that the testimony of the
appellant in criminal case No. 1055 was material to the issues involved in said case. This
question apparently escaped the attention of the trial court, the prosecuting officers, and
counsel for the Appellant. It is not mentioned anywhere in the record, nor in the briefs
filed in this court.

As we have said, the appellant willfully and contrary to the oath which he had taken,
testified in said criminal case No. 1055 that Tambolero came to his house about 7 p.m.
on May 15 and remained there until 5 a.m. of the next day. This testimony was false, but
the record does not disclose (aside from the statement of counsel before mentioned)
whether or not this false testimony did affect, or could have in any way affected, the
questions involved in said murder case.

It is now necessary to determine whether or not the appellant is guilty of the crime of
perjury under section 3 of Act No. 1697, above quoted (the provisions of the Penal Code
with reference to false testimony having been repealed by Act No. 1697), when it is not
alleged in the complaint, nor does it appear from the record, that the false testimony
given by the appellant in said criminal case No. 1055 was material to the issue involved
therein.

In the absence of a statute to the contrary, it is well settled that an indictment for perjury
must show conclusively that the testimony given or assertion made by the defendant and
charged to be false was material to the issue on the trial on which he was sworn or it will
be fatally defective. This may be done either by a direct allegation that it was material,
or by the allegation of facts from which its materiality will appear. (30 Cyc., 1433, and
U.S. v. Singleton, 54 Fed. Rep., 488; U.S. v. Cowing, 25 Fed. Cas., No. 14880, 4 Cranch
C.C., 613; Hembree v. State, 52 Ga., 242; State v. Anderson, 103 Ind., 170; State v.
Gibson, 26 La. Ann., 71; State v. Williams, 60 Kan,., 837; People v. Ah Bean, 77 Cal., 12;
Gibson v. State, 47 Fla., State v. Cunningham, 66 Iowa, 94; People v. , Collier, 1 Mich.,
137; Wood v. People, 59 N.Y., 117; Buller v. State, 33 Tex Cr., 551, and numerous other
cases cited.)

No objections to the sufficiency of the complaint made were in the court below, and it is
now well settled was it is not error for this court to refuse to sustain using objection taken
for the first time on appeal when the fatal defects in the complaint are supplied by
competence proof. (Serra v. Mortiga, 204 U.S. 420, reported in 11 Phil. Rep., 762.)

The complaint in the case at bar is fatally defective for the want of an allegation that the
testimony, alleged to be false, was material to the issues involved in the murder case.
Our statute (section 3 of Act No. 1697 supra) specifically makes materially an essential

128
element of the crime of perjury and without this the crime can not legally exist. As no
objection to the sufficiency on the complaint was raised this fatal defect could have been
supplied by competent testimony on the trial.

The materiality of a matter sworn to must be established by evidence and can not be left
to the presumption or inference. (30 Cyv., 1443, and Nelson v. State, 32 Ark., 192; Mackin
v. People, 115 III., 312; State v. Aikens, 32 Iowa, 403; Wood v. People, 59 N.Y., 117;
Garrett v. State, 37 Tex, Cr., 198.)

The term "material matter" means the main fact which was the subject of the inquiry, or
any circumstance which tends to prove that fact, or any fact or circumstance which tends
to corroborate or strengthen the testimony relative to the subject of the inquiry, or which
legitimately affects the credit of any witness who testifies. (In re Franklin Country, 5 Ohio
S. & C. Pl. Dec., 691; 7 Ohio, N.P., 450; People v. Greenwell, 5 Utah, 112, 13 Pac., 89.)

By the common law perjury is the willful and corrupt taking of a false oath, lawfully
administered in a judicial proceeding or the course of justice in regard to a matter material
to the issue or point of inquiry. (30 Cyc., 1399, and cases cited therein.)

This definition of perjury, as modified by statute, may be more accurately defined to be

the willful and corrupt assertion of a falsehood, under oath or affirmation administered
by authority of law, in a material matter, the offense being enlarged and made to extend
to other false oaths than those taken in the course of judicial proceedings. (30 Cyc., 1400,
and cases cited.)

In the case of The State v. Hattaway (10 Am. Dec., 580) one Shackleford having been
indicated for stealing a cow and afterwards discharged brought an action against the
prosecution for malicious prosecution. In this action Hattaway was called as a witness
and testified that Shackleford purchased the cow in question from one Carter, and that
he was present at the time. Being asked where he lived at the time, he said, "Near
Carter’s; perhaps within 100 yards;" whereas it was proved that he did not live in the
State. The perjury assigned was his false testimony as to where he lived. The trial court
instructed the jury that the testimony was not material so as to constitute perjury, but
the jury thought otherwise and found the defendant guilty. The defendant then moved
to set aside the verdict as contrary to the law, and the court in passing upon this motion
said (p. 581):jgc:chanrobles.com.ph

"It seems to be agreed by all the writers on criminal law, that one ingredients in the crime
of perjury is that the oath relate to some matter material to the question in issue: . . .
There can be no doubt but that an extra-judicial oath, or one relating to a matter utterly
immaterial, or even an impious oath, taken in idle conversation, may be as offensive in
the eye of heaven as the most solemn oath taken in a court of justice. But there are many
offenses against morality and religion which are not cognizable in courts of justice. For
such offense, a man is answerable only to his God, and not to the laws of his country. .
.

"There is no offense the general character of which is better understood than that of
perjury; and no point better settled, perhaps, than that the oath must relate to some fact
material to the issue.’

There is a distinction between perjury and false swearing; the one is stubborn and corrupt
while the other is simply not true, lacking the elements which go to constitute the crime
of perjury. (Miller v. State, 15 Fla., 577.)

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Section 3 of Act No. 1697 is a copy, with the necessary changes only, of section 5392 of
the Revised Statutes of the United States. This section (5392) is as
follows:jgc:chanrobles.com.ph

"Every person who, having taken an oath before a competent tribunal, officer, or person,
in any case in which a law of the United States authorizes an oath to be administered,
that he will testify, declare, depose, or certify truly, or that any written testimony,
declaration, deposition, or certificate by him subscribed is true, willfully and contrary to
such oath states or subscribes any material matter which he does not believe to be true,
is guilty of perjury, and shall be punished by a fine of not more than two thousand dollars,
and by imprisonment, at hard labor, not more than five years; and shall, moreover,
thereafter be incapable of giving testimony in any court of the United States until such
time as the judgment against him is reversed."cralaw virtua1aw library

The essential parts of this section (5392) and section 3 of Act No. 1697 are exactly the
same. It is also true that section 3 of our perjury law is practically the same as that of
nearly all of the States of the Union wherein materially is made, by statute, an element
of the crime.

An essential element of the offense created by the statute (section 5392, Rev. Stat.) is
the materially of the matter charged to have been falsely stated. (U.S. v. Landsberg, 23
Fed. Rep., 585.)

In some jurisdictions the prosecution of perjury is continued until the proceeding in which
the perjury is alleged to have been committed has been ended, but under our law (Act
No. 1697) it is not necessary that the proceeding in which the perjury was committed
should be terminated before prosecution for that crime is commenced. (U.S. v.
Concepcion, supra.) The contrary rule obtained for prosecution under the provisions of
the Penal Code. (U.S. v. Opinion, 6 Phil. Rep., 662; and U.S. v. Adolfo, 12 Phil. Rep.,
296.)

Where materiality is made by statute, as in Act No. 1697, an essential element of the
crime of perjury, the doctrine of the courts that it must be shown by competent proof
that the false testimony was material to the issues involved, is settled beyond question.
This doctrine pervades the entire adjudged law on the subject. "Wherever we more in
this department of our jurisprudence we come in contact with it. We can no more escape
from it than from the atmosphere which surrounds us."cralaw virtua1aw library

Aside from the statement of counsel in his brief, heretofore referred to, the prosecution
has failed to establish the legal guilt of the accused of the crime of perjury, inasmuch as
it has not been proven in any manner that the false testimony of the appellant was
material in the murder case.

We shall now determine in what way, if any, the said statement of counsel can affect the
guilt of the accused. As we have said, he has not committed a crime (if this statement of
counsel does not affect the result) for which he can be punished under the law in force
in this jurisdiction. In order to sustain a conviction based on a fatally defective complaint,
the defects must be supplied by competent proof. Counsel in his printed brief in this court
states that the witness Tambolero testified in said murder case that when the murder
was committed he saw one of the defendants come out of the lower part of the convent
with a bolo in his hand. This is not a confession, as there is a marked difference between
a confession and such a statement, but this is purely a statement by counsel made in the
appellant court. It is more than probable that the appellant himself knows nothing of this
statement; no doubt he has never seen the brief filed in this case. So such a statement

130
made for the first time on appeal is not competent proof to establish the guilt of the
appellant when such guilt must depend solely upon the said statement. Counsel for
appellant was not authorized by his client to make this statement.

In the case of Sweet Clayton v. State (4 Tex. App., 515), George Spears and Sweet
Clayton were indicated in the district court of Uvalde, Texas, for the crime of conveying,
or causing to be conveyed, into the jail of Uvalde Country, certain instrument for the
purpose of aiding two prisoners to make their escape. A motion for the arrest of the
judgment was made in the court of appeals, based on the ground of the insufficiency of
the indictment. The court did not sustain the contention of counsel for the defendants,
but on its own motion reversed the judgment on another ground which was not raised
by counsel and which referred to the admission made by defendant’s counsel, and in
passing upon this question the court, speaking through Mr. Justice White, said (p.
518):jgc:chanrobles.com.ph

"The charge of the court, which was otherwise unexceptionable, presents an error which
will necessitate a reversal of the case. In the fourth subdivision of the charge the jury are
told that it is admitted by the defendant’s counsel that John Woods and Lark Clayton
were prisoners legally confirmed in the country jail of Uvalde Country, on an accusation
of felony, to wit, theft of a cow. As was said in the case of Nels v. The State: "The
prisoner’s counsel had no authority to make any statement or admission to supply the
palce or have the force of evidence against him. No confession of theirs could bind or
affect him. Their admissions could not in law prejudice or affect his rights; nor could they
be in any wise jeopardized by the assumption of any grounds whatever upon which his
defense may have been placed by his counsel. Whether those grounds were correct or
incorrect, true or false, was wholly immaterial. That was not the question for the
consideration of the jury, whose duty it was to decide the question of the guilt or
innocence upon the law as given them by the court, and the evidence as given by the
witness, irrespective of any admissions by the prisoner’s counsel, or any grounds upon
which they may have rested his defense."cralaw virtua1aw library

In this case, defendant’s counsel no doubt admitted in open court, at the time the
defendant were on trial and in their presence, that the said Woods and Clayton were
prisoners legally confined. It does not appear that the defendants made any objections
to the said admission. Notwithstanding all these facts the court reversed the judgment
solely for this reason.

In the case at bar we do not find it necessary to go as far as the Texas court did, for the
reason that the statement of counsel for the appellant was not made in the trial court
and this record fails to disclose whether said statement was made in the presence of the
accused; but it does conclusively show that the same was made for the first time in the
printed brief on appeal. So much a statement can not be accepted as competent proof of
supply the fatal defects in the complaint and form the basis upon which a conviction can
be entered.

Our conclusions are, therefore, that the appellant is not guilty of the crime of perjury for
the reasons above set forth. The judgment is reversed and the appellant acquitted, with
costs de oficio.

131
Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 168301 March 5, 2007

ANTONIO B. MONFORT III and ILDEFONSO B. MONFORT, Petitioners,

vs.
MA. ANTONIA M. SALVATIERRA, PAUL MONFORT, RAMON H. MONFORT,
JACQUELINE M. YUSAY, YVETTE M. BENEDICTO, ESTER S. MONFORT,
SECRETARY OF JUSTICE and CITY PROSECUTOR OF CADIZ
CITY,Respondents.

DECISION

CHICO-NAZARIO, J.:

In this Petition for Review1 on Certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, petitioners Antonio B. Monfort III and Ildefonso B. Monfort seek to set aside
the Decision dated 28 January 20052 and Resolution dated 26 May 20053 of the Court of
Appeals in CA-G.R. SP No. 67109. In its Decision and Resolution, the Court of Appeals
affirmed the Resolutions dated 11 October 20004 and 15 August 2001,5 of the Secretary
of Justice which dismissed the petitioners’ criminal complaint for perjury against private
respondents Ma. Antonia M. Salvatierra, Paul Monfort, Ramon H. Monfort, Jacqueline M.
Yusay, Yvette M. Benedicto and Ester S. Monfort.

The factual antecedents are as follows:

Petitioners are children of the late Antonio H. Monfort, Jr., one of the original
stockholders/incorporators of the Monfort Hermanos Agricultural Development
Corporation (MHADC).6 On 28 October 1998, petitioners filed a letter-complaint for
perjury under Article 183 of the Revised Penal Code before the City Prosecutor of Cadiz
against private respondents. The case was docketed as I.S. No. 8009. In the said
complaint, petitioners claimed that the private respondents made false statements in their
respective counter-affidavits dated 11 June 1998 which the latter had executed and
submitted to the City Prosecutor of Cadiz in connection with another complaint for
perjury, docketed as I.S. No. 7883, earlier filed by the petitioners against the private
respondents. The alleged false statements referred to the declarations of the private
respondents that the 1996 annual stockholders’ meeting of the MHADC was held on 16
October 1996, and that they were elected as board directors of the MHADC during the
same meeting. Petitioners insisted that the 1996 annual stockholders’ meeting of the
MHADC was held, not on 16 October 1996, but on 27 November 1996 as stated in the
1996 General Information Sheet (GIS) accomplished by the MHADC and submitted to the
Securities and Exchange Commission (SEC), Iloilo Extension Office. Further, there is
nothing in the 1996 GIS of the MHADC which states that an election of the board of
directors of the MHADC took place on 16 October 1996.7

Subsequently, private respondents filed their joint counter-affidavits dated 9 December

1998 in I.S. No. 8009 before the City Prosecutor of Cadiz. They alleged that they are
stockholders of record of the MHADC; that a stockholders’ meeting of the MHADC was
held on 16 October 1996 where they were elected as board directors of MHADC; that the
MHADC’s corporate accountant, Litonjua, Desabelle and Associates (LDA), was

132
responsible for the preparation of the MHADC’s GIS; that the LDA made erroneous
statements in the 1996 GIS of MHADC; that the erroneous statements refer to the date
of the MHADC’s annual stockholders’ meeting and the persons composing the MHADC’s
board of directors; that the LDA had admitted having committed such honest error; that
the LDA had rectified the same by submitting a letter to the SEC informing the latter that
the annual stockholders’ meeting of the MHADC for the year 1996 was held on 16 October
1996 and not on 27 November 1996; that what transpired on 27 November 1996 was not
the annual stockholders’ meeting of the MHADC but merely a special meeting of the board
of directors thereof; and, that, the private respondents were elected as board directors
of the MHADC during the annual stockholders’ meeting on 16 October 1996.8

Private respondents thus argue that they cannot be held liable for perjury since one of
the elements of perjury under Article 183 of the Revised Penal Code is that the assertion
of falsehood must be willful and deliberate; that the terms willful and deliberate imply
malice and evil intent in asserting falsehood; and that this element is lacking in the case
at bar.9

Thereafter, Investigating Prosecutor Abraham E. Tionko (Investigator Tionko) issued a

Resolution dated 14 April 1999 in I.S. No. 8009 dismissing the letter-complaint for perjury
of the petitioners for lack of probable cause.10Investigator Tionko noted that the
statements in the 1996 GIS of the MHADC are indeed erroneous. The 1996 GIS stated
that the stockholders’ meeting and election of the board of directors took place on 27
November 1996. If such information were true and correct, then according to Investigator
Tionko, it would have been impossible for some of the board directors to be elected as
such on 27 November 1996 since they were already deceased at that time.11Moreover, if
the 1996 annual stockholders’ meeting of MHADC was indeed held on 27 November 1996
which fell on a Wednesday, it would have been inconsistent with the by-laws of the
MHADC which states that the annual stockholders’ meeting of the MHADC shall be held
on the last Thursday of November, which, according to the 1996 calendar, fell on 28
November 1996.

As to the matter of whether or not the stockholders may hold their annual meeting on a
date other than that specified in its by-laws, Investigator Tionko opined that such is not
within the province of his office to rule.12

He, thereafter, made the following findings: that it was not impossible for the MHADC
stockholders to have conducted their annual meeting on 16 October 1996; that there
would have been willful and deliberate assertion of falsehood on the part of the private
respondents only if no error was committed in the preparation of the 1996 GIS of MHADC;
that private respondent Ramon H. Monfort was not aware of the said errors at the time
he subscribed and swore to the correctness of the 1996 GIS of MHADC as Vice-President
thereof; that upon the discovery of the errors, the LDA sent a letter to the SEC providing
the latter with the correct information; that such should be considered as mere negligence
and imprudence on the part of private respondent Ramon H. Monfort; and that the crime
of perjury cannot be committed by negligence or imprudence. The dispositive portion of
Investigator Tionko’s Resolution states:

WHEREFORE, the undersigned believes there is no probable cause to support a finding

of perjury against all of the respondents and this complaint is hereby dismissed.13

Petitioners appealed the aforementioned Resolution to the Office of the Regional State
Prosecutor for Region VI. In his Resolution dated 19 November 1999, Regional State
Prosecutor Vicente E. Aragona (Prosecutor Aragona) denied due course to petitioners’
appeal as the same was filed out of time.14 Petitioners filed a motion for reconsideration

133
but the same was dismissed by Prosecutor Aragona in his Resolution dated 22 December
1999.15Prosecutor Aragona sustained the claim of the private respondents that the annual
stockholders meeting of the MHADC was held on 16 October 1996 at Agmac Building,
Bacolod City, where they were elected as board directors since this is supported by
evidence on record consisting of the notices of stockholders’ meeting and registry return
receipt.16 He also affirmed that patent errors were committed in the preparation of the
1996 GIS of the MHADC. Pertinent portions of the 22 December 1999 Resolution of
Prosecutor Aragona reads:

We then ruled and so rules here, that an erroneous document is incorrect and therefore
not the truth. It cannot be used as basis to charge the respondents for Perjury, for the
simple reason that it is not an evidence that they lied under oath. In fact, it is an evidence
not only of it being an incorrect document but also of the fact that the November 27,
1996 meeting written in it was a mistake and that the dead persons listed as elected
officers in that meeting is likewise a mistake. This evidence has no probative value to
establish prima facie case for perjury because of its nature as being worthless due to its
inherent incredibility to establish that November 27, 1996 is the true date of the Annual
Stockholders’ Meeting of the Monfort Hermanos Agricultural Development Corporation.

In view of the foregoing, the appeal should be, as it is hereby dismissed.17

Petitioners, then, appealed to the Secretary of Justice. Finding no reversible error in

Prosecutor Aragona’s Resolution dated 22 December 1999, Undersecretary of Justice
Regis V. Puno dismissed petitioners’ appeal in his Resolution dated 11 October 2000,18 to
wit:

This resolves the appeal from the resolution of the Regional State Prosecutor, Region VI,
Iloilo City in the above-entitled case dismissing the complaint against Ma. Antonia M.
Salvatierra, et. al. for perjury.1avvphil.net

Section 9 of Department Order No. 223 dated June 30 1993, as amended, (now Section
12 in relation to Section 7 of Department Circular No. 70 dated 3 July 2000), prescribing
rules on appeals from resolution in preliminary investigations provides that the Secretary
of Justice may, motu proprio, dismiss outright an appeal if there is showing of any
reversible error in the questioned resolution. We have carefully examined the record of
the case and we found no such error committed by the prosecutor that would justify a
reversal of his resolution, which is in accord with the law and evidence on the matter.

WHEREFORE, premises considered, the appeal is hereby DISMISSED.19

Petitioners filed a motion for reconsideration of Undersecretary Puno’s Resolution dated

11 October 2000 but this was denied in the Resolution dated 15 August 2001 of
Undersecretary of Justice Manuel A.J. Teehankee since no new matter was raised to
warrant the review of the same,20 viz:

A perusal of the motion shows no new matter which was not taken into consideration in
our review of the case. Hence, we find no compelling reason to alter or modify our
resolution.

WHEREFORE, the motion for reconsideration is hereby DENIED with finality.21

Petitioners appealed the resolutions of the Secretary of Justice dated 11 October 2000
and 15 August 2001, respectively, to the Court of Appeals. On 28 January 2005, the Court
of Appeals rendered its Decision affirming the said resolutions. 22 It ruled that the
Secretary of Justice did not commit grave abuse of discretion since its non-finding of
134
probable cause for perjury against private respondents is based on law, jurisprudence
and evidence on records. It also held that the private respondents had sufficiently
established the fact that a stockholders’ meeting of the MHADC actually took place on 16
October 1996, and that they were elected during the said meeting as board directors. It
further stated that willful and deliberate assertion of falsehood, as one of the elements
of perjury, is not present in the instant case.23 The fallo of the assailed Decision reads:

WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us

DISMISSING the petition filed in this case and AFFIRMING the Resolutions dated October
11, 2000 and August 15, 2001 respectively, issued by the public respondent Secretary of
Justice.24

Petitioners filed a Motion for Reconsideration but the same was denied by the Court of
Appeals in its Resolution dated 26 May 2005.25

Petitioners filed the present petition raising the sole issue of whether or not the Court of
Appeals erred in affirming the findings of the Secretary of Justice that there is no probable
cause to indict the private respondents for the crime of perjury.26

According to the petitioners, the insistence of the private respondents that the annual
stockholders’ meeting of MHADC took place on 16 October 1996, and that they were
elected during the said meeting as board directors constitute willful and deliberate
assertion of a falsehood because it is not in harmony with the constitution and by-laws
of MHADC which provides that the annual stockholders’ meeting and the election of board
directors shall be held every last Thursday of November for each year. They stressed the
fact that the date 16 October 1996 is not the last Thursday of November in the year 1996.
They also claimed that the notices of meeting dated 1 October 1996 received by the
private respondents are "incompetent" to prove that the annual stockholders’ meeting
and the election of directors of the MHADC took place on 16 October 1996. Further, the
intent of the private respondents to commit a willful and deliberate assertion of falsehood
is evident in the 1996 GIS of the MHADC which does not specify that an election of board
directors took place on 16 October 1996.27

Petitioners also averred that the correction of the alleged erroneous entries in the 1996
GIS of MHADC was made by the LDA, MHADC’s corporate accountant, only after the lapse
of two years from the execution of the said document. They argued that the same was a
futile attempt on the part of the private respondents to escape criminal liability since: a)
at the time the corrections were made, they had already charged private respondent
Ramon H. Monfort with perjury and falsification of private document for including in the
1996 GIS of the MHADC the names of stockholders who were already deceased as elected
board directors of MHADC;28 b) the alleged errors in the 1996 GIS of the MHADC,
particularly in the composition of the alleged elected board of directors, is belied by the
1997 GIS of MHADC filed by private respondent Ramon H. Monfort which reiterated the
names of the deceased stockholders as elected directors of MHADC; this is not just one
mistake but two mistakes already; c) there was ill-motive on the part of the private
respondents when it sent, through LDA, a letter to the SEC to correct the alleged errors
because at the time such letter was received by the SEC, the City Prosecutor of Cadiz had
already issued a resolution in I.S. No. 7883 finding probable cause for perjury against
private respondents; and d) at the time of the correction of errors, a total of six or more
criminal cases for perjury were already filed by the petitioners against private respondents
and some are still pending resolution.29

Petitioners further asseverated that the private respondents’ statements in their

respective counter-affidavits dated 11 June 1998 in I.S. No. 7883 that they were elected

135
board directors during the 16 October 1996 annual stockholders’ meeting show willful
and deliberate assertion of falsehood since the private respondents had made these same
statements as their bases in filing civil cases for forcible entry and delivery of personal
property against petitioners which cases, however, were eventually dismissed by this
Court in G.R. No. 152542 and No. 155472.30They posited that this Court had dismissed
the civil cases as the private respondents failed to establish the fact that they were duly
elected as board directors of MHADC and, as such, were not authorized to file the said
cases. Based on these premises, petitioners concluded that there is more than enough
evidence to support the finding of probable cause for perjury against private
respondents.31

These contentions are devoid of merit.

It should be emphasized at the outset that the function of a preliminary investigation is

to determine whether there is sufficient ground to engender a well-founded belief that a
crime has been committed and the respondent is probably guilty thereof, and should be
held for trial.32 It is through the conduct of a preliminary investigation that the prosecutor
determines the existence of a probable cause that would warrant the prosecution of a
case.33 Probable cause, for purposes of filing a criminal information, has been defined as
such facts as are sufficient to engender a well-founded belief that a crime has been
committed and that the private respondent is probably guilty thereof. It is such a state
of facts in the mind of the prosecutor as would lead a person of ordinary caution and
prudence to believe or entertain an honest or strong suspicion that a thing is so. The
term does not mean "actual or positive cause;" nor does it import absolute certainty. It
is merely based on opinion and reasonable belief.34

In this proceeding, the prosecutor is vested with authority and discretion to determine
whether there is sufficient evidence to justify the filing of corresponding information.35 If
the prosecutor found probable cause to indict the respondent for a criminal offense, it is
his duty to file the corresponding information in court.36 However, it is equally his duty
not to prosecute when after an investigation, the evidence adduced is not sufficient to
establish a prima facie case.37 We explained the rationale in the case of People v.
Pineda,38 thus:

A prosecuting attorney, by the nature of his office, is under no compulsion to file a

particular criminal information where he is not convinced that he has evidence to prop
up the averments thereof, or that the evidence at hand points to a different conclusion.
This is not to discount the possibility of the commission of abuses on the part of the
prosecutor. But we must have to recognize that a prosecuting attorney should not be
unduly compelled to work against his conviction. In case of doubt, we should give him
the benefit thereof. A contrary rule may result in our courts being unnecessarily swamped
with unmeritorious cases. Worse still, a criminal suspect’s right to due process - the
sporting idea of fair play - may be transgressed. x x x.

Perjury is the willful and corrupt assertion of a falsehood under oath or affirmation
administered by authority of law on a material matter.39 Article 183 of the Revised Penal
Code states the definition of and penalty for perjury, thus:

Art. 183. False testimony in other cases and perjury in solemn affirmation. The penalty
of arresto mayor in its maximum period to prision correccional in its minimum period shall
be imposed upon any person who, knowingly make untruthful statements and not being
included in the provisions of the next preceding articles, shall testify under oath or make
an affidavit, upon any material matter before a competent person authorized to
administer an oath in cases in which the law so requires.

136
Any person who, in case of a solemn affirmation made in lieu of an oath, shall commit
any of the falsehoods mentioned made in this and the three preceding articles of this
section shall suffer the respective penalties provided therein.

As can be gleaned from the foregoing, the elements of perjury are as follows:

(a) That the accused made a statement under oath or executed an affidavit upon
a material matter.

(b) That the statement or affidavit was made before a competent officer,
authorized to receive and administer oath.

(c) That in the statement or affidavit, the accused made a willful and deliberate
assertion of a falsehood.

(d) That the sworn statement or affidavit containing the falsity is required by law
or made for a legal purpose.40

The third element of perjury requires that the accused had willfully and deliberately
asserted a falsehood. A mere assertion of a false objective fact is not sufficient. The
assertion must be deliberate and willful.41

In the instant case, the petitioners failed to establish the fact that the private respondents
made a willful and deliberate assertion of falsehood in their counter-affidavits dated 11
June 1998.

Private respondent Ramon H. Monfort had sufficiently and reasonably explained the
circumstances surrounding the preparation and his signing of the erroneous statements
in the 1996 GIS of the MHADC. He narrated that as Vice-President of the MHADC, he
signed and certified the same under oath; that he was not, however, aware of the
erroneous statements therein at the time when he signed it; that it was LDA as MHADC’s
corporate accountant which had solely prepared the 1996 GIS of the MHADC; that he
always relied on the accuracy of LDA; that he hastily signed it since, at that time, the LDA
representative was in a hurry to beat the deadline in submitting the same to the SEC;
that after being informed of the erroneous statements, the LDA sent a letter to the SEC
informing the latter of the mistakes and supplying the correct informations therein; that
the erroneous statements were due to the oversight of the LDA; and, that he admitted
that he was negligent in not carefully reading and analyzing the statements therein.42

The naïve reliance of the private respondents on the foregoing circumstances in executing
their respective counter-affidavits dated 11 June 1998 negates willful and deliberate
assertion of falsehood. Perjury being a felony by dolo, there must be malice on the part
of the accused.43 Willfully means intentionally, with evil intent and legal malice, with
consciousness that the alleged perjurious statement is false with the intent that it should
be received as a statement of what was true in fact. It is equivalent to "knowingly."
"Deliberately" implies "meditated" as distinguished from "inadvertent acts." It must
appear that the accused knows his statement to be false or is consciously ignorant of its
truth.44

In this case, the private respondents believed in good faith that, based on the above-
explained events, their statements in their respective counter- affidavits dated 11 June
1998 are true and correct. Good faith or lack of malice is a valid defense vis-a-vis the
allegation of deliberate assertion of falsehood in perjury cases.45

137
It should also be borne in mind that perjury cannot be willful where the oath is according
to belief or conviction as to its truth. Bona fide belief in the truth of a statement is an
adequate defense.46 The private respondents had consistently claimed that the 1996 GIS
of the MHADC is erroneous on its face. They have maintained all along their stand that
the annual stockholders meeting of the MHADC was held on 16 October 1996 and not on
27 November 1996. They also submitted documentary evidence to prove that the annual
stockholders’ meeting took place on 16 October 1996, and that the LDA had already
communicated to the SEC the mistakes and corrections in the 1996 GIS of the
MHADC.47 In addition thereto, they also submitted a letter coming from the SEC which
acknowledged the corrections therein and had noted that the same now form part of the
records of the MHADC.48

Further, the Secretary of Justice had found that the 1996 GIS of the MHADC is patently
erroneous. It concluded that the same is worthless and has no probative value in evidence
because it does not establish the fact that the true date of the annual stockholders’
meeting for the year 1996 took place on 27 November 1996. This finding was sustained
by the Court of Appeals in its Decision dated 28 January 2005.

As a general rule, this Court will not interfere in the conduct of preliminary investigations
and leave to the investigating prosecutor sufficient latitude of discretion in the exercise
of determination of what constitutes sufficient evidence as will establish probable cause
for the filing of an information against an offender.49 As an exception, however, this Court
may inquire into the determination of probable cause during the preliminary investigation
if, based on the records, the prosecutor committed grave abuse of discretion.50 In the
case at bar, the City Prosecutor of Cadiz, the Regional State Prosecutor for Region VI,
and the Secretary of Justice had consistently ruled that there is no probable cause to
indict the private respondents for the crime of perjury. We find no grave abuse of
discretion or manifest error on their part considering the fact that their non-finding of
probable cause is supported by the evidence on record. It is well to state, too, that the
resolution of the Secretary of Justice declaring the absence or existence of a probable
cause and affirmed by the Court of Appeals is accorded high respect and generally
conclusive on this Court.51 We find no exceptional reasons to deviate from this principle.

The pronouncements of this Court in G.R. No. 152542 and No. 15547252 do not
automatically imply that there is sufficient evidence or probable cause to indict the private
respondents for the crime of perjury. It should be underscored that in G.R. No. 152542
and No. 155472, there is no finding with regard to the correct date of the 1996 annual
stockholders’ meeting and the election of the board of directors as to bind this Court in
the Petition at bar.

WHEREFORE, the instant petition is hereby DENIED. The Decision and Resolution of the
Court of Appeals in CA-G.R. SP No. 67109 dated 28 January 2005 and 26 May 2005,
respectively, are hereby AFFIRMED. Costs against petitioners.

SO ORDERED.

138
EN BANC

[A.M. No. P-00-1445. April 30, 2003]

MEDARDO M. PADUA, complainant, vs. IRENEO S. PAZ, in his capacity as

Sheriff IV, Branch 31, Regional Trial Court, San Pedro,
Laguna, respondent.

DECISION
PER CURIAM:

Complainant Medardo M. Padua charges respondent Ireneo S. Paz, Sheriff IV of

Branch 31 of the Regional Trial Court, San Pedro, Laguna, with grave misconduct,
falsification of public document, perjury, giving false testimony, and abuse of position in
connection with Civil Case No. 3225.[1]
On 12 June 1997, a Toyota Tamaraw wagon model 1994 bearing plate number TKU
319 belonging to Medardo M. Padua (complainant) figured in a traffic accident with the
vehicle of Ireneo S. Paz (respondent sheriff), a 1981 Ford Laser bearing plate number
DAL 334. Complainants 18-year old son Ryan Nio Padua (Ryan Padua) was driving
complainants vehicle at the time of the accident.
Police Officer Victoriano A. Sabuco prepared a Traffic Accident Investigation
Report[2] (police report) shortly after completing the investigation of the accident. The
police report stated that at the time of the accident Ryan Padua possessed a valid drivers
license with license number NO1-95-179337.[3]
Complainant claimed that after the traffic accident, he gave respondent sheriff his
calling card. This card supposedly contained the addresses and telephone numbers of
both the complainant and his insurer, Covenant Assurance Company (Covenant).[4] Since
respondent sheriff appeared satisfied with the arrangement, complainant believed the
matter was amicably settled. Thus, complainant went his own way and so did respondent
sheriff.
However, on 26 November 1998, several armed men, including police officers,
claiming to be from the Office of the Provincial Sheriff of Laguna, awakened complainant
at 6:00 a.m. in his house. The men announced that they were enforcing a writ of
execution issued by the Municipal Trial Court of Bian, Laguna (Bian MTC). Complainant
was able to convince the men from the sheriffs office to give him some time to clarify the
matter, and so the men peacefully left the premises.
Complainant soon discovered the reason for the sheriffs surprise visit. He and his
lawyer found out that on 30 June 1997 respondent sheriff filed with the Bian MTC a civil
case for damages[5] in connection with the traffic accident. The summons was allegedly
sent to complainants mother in Novaliches, where complainant previously resided. This,
complainant claims, explains why he was not aware of the case filed against him until the
sheriffs made their surprise visit. Complainant was declared in default for failing to file an
answer within the reglementary period. Subsequently, there was an ex-
parte presentation of evidence before a commissioner. Soon after this ex-parte hearing,
Estanislao S. Belan of the Bian MTC rendered a decision on 24 November 1997 in
respondent sheriffs favor. Complainant vigorously opposed the execution of this decision
because of the alleged defective summons.

139
 On 18 December 1998, complainant filed this administrative complaint against
respondent sheriff for falsification of public document, perjury, giving false testimony and
abuse of position.[6] Complainant also asserted that under the current civil service rules,
respondent sheriff did not possess the necessary qualifications to hold his present
position.[7] Complainant, moreover, stated that he resorted to all the means available to
prevent the enforcement of an obviously unjust decision considering the numerous false
statements and misrepresentations made by respondent sheriff.[8] He narrated that he
felt so aggrieved by the numerous attempts of the sheriffs of the Bian MTC to enforce
the writ of execution despite the fact that he had already gone to the courts to defend
himself.[9]
On 25 March 1999, respondent sheriff filed an Answer[10] denying all of complainants
material allegations. Respondent sheriff contended that he only filed the civil case for
damages because complainant failed to honor his repeated promises that his insurer
would pay for the damage to respondent sheriffs vehicle.
On 7 May 1999, complainant filed his Reply refuting respondent sheriffs allegations
in the Answer and reiterating some of the allegations in his Complaint.
The Court, in the Resolution of 9 May 2001, assigned to Executive Judge Norberto Y.
Geraldez[11] (Investigating Judge Geraldez) this administrative complaint for
investigation, report and recommendation.
On 6 November 2001, the Court received the report and recommendations of
Investigating Judge Geraldez. Some of Judge Geraldezs findings included the following:
A. Medardo Padua alleged some irregularities in the service of summons and copy
of the complaint. Medardo Padua failed to present any evidence to prove the
same. The Traffic Accident Investigation Report (Exhibit B) and Ryan Paduas
drivers license (Exhibit K) showed that Ryan Nio Paduas residence was at
Novaliches. There was basis to serve the summons at Novaliches. His claim
that respondent knew that he now lives in Las Pias was not supported by
evidence.
B. Medardo Padua claimed that Ireneo Paz gave a false statement in court. This
was when Ireneo Paz testified that he went to Novaliches to talk to him.
Medardo Padua claimed this was not true. There was no evidence to prove
this.
C. Medardo Padua claimed that Ireneo Paz falsified the Traffic Accident
Investigation Report (Exhibit B-1). In said Exhibit B-1 Ryan Paduas age was
13. He presented the same as evidence before the MTC.
Medardo Padua presented a copy of the same Traffic Accident Investigation
Report (Exhibit B) where the age of Ryan Padua was 18 years old. Respondent
did not file any opposition to the said Exhibit B. There was evidence to prove
that Ireneo Paz may have committed falsification of the Traffic Accident
Investigation Report (Exhibit B-1).
It is interesting to note that Ryan Padua, as per his drivers license (Exhibit K)
and Certification from the Land Transportation Office (Exhibit K-1) was born
on January 4, 1977. Therefore, Ryan Padua, at the time of the accident on
June 12, 1997 was 20 years and 5 months old and not 13 or 18 years old.
D. Ireneo Paz in his subscribed complaint for damages alleged that Ryan Padua
had no drivers license. Ireneo Paz knew the same was false as, as per Traffic
Accident Investigation Report (Exhibit B), Ryan Padua had a drivers license.
And, Ireneo Paz was well aware of this. There was evidence to show that
Ireneo Paz may have committed perjury.

140
 E. Ireneo Paz testified in court that he never filed a claim before the Covenant
Insurance Company when there was evidence to prove that he had filed a
claim with said insurance company and submitted documents (Exhibit H, H-1
to H-7). Ireneo Paz may have given a false testimony.
Investigating Judge Geraldez stated in his Resolution dated 5 November 2001, that:

As Ireneo Paz committed grave misconduct and conduct prejudicial to the best interest
of public service, it is respectfully recommended that said respondent be dismissed from
the service with forfeiture of all benefits, and disqualification to hold any public position
in any branch or agency of the government including government-owned or controlled
corporations.

Upon receipt of Investigating Judge Geraldezs findings and recommendations, the

Court referred this administrative case to the Office of the Court Administrator on 10
December 2001 for evaluation, report and recommendation.
After a careful evaluation of the record of this case, the Office of the Court
Administrator (OCA) agreed with the report of Investigating Judge Geraldez. The OCA
affirmed in toto his recommendations and found them to be wholly supported by
evidence and jurisprudence.
The OCA recommended that respondent sheriff Ireneo S. Paz be dismissed from the
service with forfeiture of retirement benefits and with prejudice to re-employment in any
branch, instrumentality or agency of the government, including government-owned or
controlled corporations. Moreover, the OCA recommended that the case be referred to
the Department of Justice for investigation and filing, if warranted, of the appropriate
criminal case against complainant or respondent sheriff, or both.[12]
The Court agrees with the findings and conclusions of the OCA.
Complainant first imputes to respondent sheriff the act of falsifying the police report
respondent sheriff presented to the court. Respondent sheriff presented to the Bian MTC
a photocopy of the police report,[13] showing that at the time of the traffic accident Ryan
Padua was only thirteen years old, well below the statutory minimum age for driving,
which is eighteen years. Respondent sheriffs copy of the police report is marked as Exhibit
B-1 and is a certified true copy of the original. However, it was Dahlia E. Borromeo, the
Clerk of Court of the Bian MTC, who certified it.
To refute this piece of evidence submitted by respondent sheriff, complainant
presented a different copy of the same police report, duly marked as Exhibit B. This copy
of the police report was certified by Police Officer Victoriano A. Sabuco of the Metro Traffic
Force, Southern District Traffic Command, Pasay City. He was also the police officer who
prepared the original document. This copy submitted by complainant states that Ryan
Paduas age is eighteen years old.
Respondent sheriff never filed any opposition to Exhibit B. He never contested its
authenticity. His silence may be construed as a tacit admission of the authenticity of
Exhibit B, and necessarily also a tacit admission that the police report he presented in
court is a falsified copy.
Respondent sheriff stood to benefit from having the police report reflect that Ryan
Padua was an underage driver, showing that Ryan Padua was at the time of the accident
not qualified to drive a vehicle. As a father to a minor, complainant would also be liable
for the negligent acts of his son that cause damage to others.[14] Thus, as found by
Investigating Judge Geraldez, there is evidence to prove that Ireneo Paz may have
committed falsification of the Traffic Accident Investigation Report (Exhibit B-1), an act
constituting grave misconduct.

141
 Another charge imputed against respondent sheriff is the act of having committed
perjury. Perjury is the deliberate making of untruthful statements upon any material
matter before a competent person authorized to administer an oath in cases in which the
law requires such oath.[15]There are four elements that comprise the crime of perjury,
namely: (a) the accused made a statement under oath on a material matter; (b) the
statement was made before a competent officer, authorized to receive and administer
oaths; (c) the accused made a willful and deliberate assertion of a falsehood in the
statement and, (d) the sworn statement containing the falsity is required by law or made
for a legal purpose.
Respondent sheriff in his verified complaint for damages stated that Ryan Padua had
no drivers license on 12 June 1997, which was the date of the vehicular accident.
Respondent sheriff knew that this statement he made under oath was false. This
conclusion is drawn from the fact that in respondent sheriffs own copy of the police
report, at the time of the accident, Ryan Padua possessed license number NO1-95-
179337. This information contained in respondent sheriffs copy of the police report
completely contradicts the statement respondent sheriff made in his very own complaint.
Respondent sheriff cannot merely feign ignorance of this detail which is material to his
complaint for damages. Based on the evidence, all the requisite elements of the act of
perjury exist. Clearly, respondent sheriff committed perjury in filing his verified complaint
for damages, an act constituting grave misconduct.
Another accusation complainant makes against respondent sheriff is the act of giving
false testimony. Complainant cites respondent sheriffs testimony in court that he never
filed a claim with complainants insurer, Covenant. Complainant, however, points out that
respondent sheriff did file a claim with Covenant to collect on complainants admitted
liability for his sons part in the vehicular accident.
On 21 August 1997, in an ex-parte hearing conducted before the Clerk of Court of
the Bian MTC, respondent sheriff stated under oath that he approached complainant to
plead with him to pay the damages respondent sheriff incurred from the accident.
However, complainant allegedly refused to pay the damages and instead claimed that his
insurance company would pay the damages. When asked if respondent sheriff contacted
this insurance company, respondent sheriff claimed he did not because complainant did
not even mention to him the insurance company that insured complainants car.[16]
However, ample evidence exists on record to prove that respondent sheriff indeed
had filed a claim with Covenant, contrary to the statement he made under oath.
Respondent sheriff submitted several documents to the insurance company, namely: (1)
a Certificate of Registration;[17] (2) an official receipt from the Land Transportation Office
evidencing payment of such registration;[18] (3) a drivers license;[19] (4) a receipt[20] from
Imperial Insurance, Inc., evidencing payment of premium, which receipt is duly marked
as received by Covenant; (5) a Private Car Policy[21] issued by Imperial Insurance, Inc. in
favor of one Ireneo Paz, also marked as received by Covenant; and (6) a detailed
estimate[22] issued by Cosmetic Car Care enumerating the various repairs needed on
respondent sheriffs vehicle.
All these are some of the requirements necessary prior to the filing of an insurance
claim with Covenant. Respondent sheriff did contact Covenant and even filed a claim with
Covenant for payment of the damage to his car, despite his sworn testimony to the
contrary. Clearly, respondent sheriff gave false testimony in the ex-parte hearing, an act
also constituting grave misconduct.
Court personnel charged with the dispensation of justice, from the presiding judge to
the lowliest clerk, bear a heavy responsibility in insuring that their conduct is always
beyond reproach.[23] The preservation of the integrity of the judicial process is of
paramount importance. All those occupying offices in the judiciary should at all times be

142
aware that they are accountable to the people. They must serve with utmost
responsibility, integrity, loyalty and efficiency, act with patriotism and justice and
lead modest lives.[24]
Indeed, all those involved in the administration of justice must at all times conduct
themselves with the highest degree of propriety and decorum and take utmost care in
avoiding incidents that degrade the judiciary and diminish the respect and regard for the
courts.[25]
In grave misconduct, there must be substantial evidence showing that the acts
complained of are corrupt or inspired by an intention to violate the law, or constitute
flagrant disregard of well-known legal rules.[26] Respondent sheriffs introduction in
evidence of the falsified police report, committing perjury and giving false testimony, are
plainly corrupt acts and show an intent to disregard flagrantly the law. They constitute
grave misconduct that corrodes respect for the courts. Incidentally, respondent sheriffs
acts of perjury and of giving false testimony, which show a predisposition to lie, defraud
and deceive, also constitute dishonesty.[27]
The penalty for grave misconduct is dismissal from the service,[28] with forfeiture of
all benefits and with prejudice to re-employment in any branch or agency of the
government, including government-owned or controlled corporations.[29] In Remolona v.
Civil Service Commission,[30] the Court En Banc ruled that, to warrant dismissal, grave
misconduct or dishonesty need not be committed in the course of performance of duty
by the person charged. The Court explained the rationale for this rule, as follows:

The rationale for the rule is that if a government officer or employee is dishonest or is
guilty of oppression or grave misconduct, even if said defects of character are not
connected with his office, they affect his right to continue in office. The Government
cannot tolerate in its service a dishonest official, even if he performs his duties correctly
and well, because by reason of his government position, he is given more and ample
opportunity to commit acts of dishonesty against his fellow men, even against offices and
entities of the government other than the office where he is employed; and by reason of
his office, he enjoys and possesses a certain influence and power which renders the
victims of his grave misconduct, oppression and dishonesty less disposed and prepared
to resist and to counteract his evil acts and actuations. The private life of an employee
cannot be segregated from his public life. Dishonesty inevitably reflects on the fitness of
the officer or employee to continue in office and the discipline and morale of the service.

Public confidence in our courts is vital to the effective functioning of the judiciary.
Court personnel who commit misconduct or dishonesty diminish the faith of the people
in the judiciarys ability to dispense justice.Respondent sheriff failed to live up to the high
ethical standards demanded by the office he occupies. By committing the questioned
acts, respondent sheriff undermined the integrity of the service and jeopardized the
publics faith in the impartiality of the courts. Respondent sheriff, who is an important
court personnel because he enforces judicial orders, debased the judicial process by
introducing in evidence a falsified document, committing perjury and giving false
testimony in an effort to obtain unfairly a favorable judgment for himself.
WHEREFORE, the Court finds respondent Sheriff IV Ireneo S. Paz of the Regional
Trial Court, Branch 31, San Pedro, Laguna, guilty of GRAVE MISCONDUCT. The Court
imposes on him the penalty of DISMISSAL from the service with forfeiture of all benefits,
excluding accrued leave credits, with prejudice to re-employment in any branch or agency
of the government, including government-owned or controlled corporations.Let a copy of
this decision be attached to the personnel records of Ireneo S. Paz.
SO ORDERED.

143
SECOND DIVISION

CRISTE B. VILLANUEVA, G.R. No. 162187

Petitioner,
Present:
PUNO, J., Chairman,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO,* JJ.
THE HON. SECRETARY OF
JUSTICE and HORST-KESSLER Promulgated:
VON SPRENGEISEN,
Respondents. November 18, 2005

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

DECISION

CALLEJO, SR., J.:

Before the Court is a petition for review on certiorari of the Decision[1] of the Court of

Appeals (CA) in CA-G.R. SP No. 76999 dismissing the petition for certiorari assailing the

finding of the Secretary of Justice that no probable cause exists against private

respondent Horst-Kessler Von Sprengeisen for perjury.

The Antecedents

On April 2, 1996, the Refractories Corporation of the Philippines (RCP) filed a protest

before the Special Committee on Anti-Dumping of the Department of Finance against

certain importations of Hamburg Trading Corporation (HTC), a corporation duly organized

and existing under the laws of the Philippines. The matter involved 151.070 tons of

magnesite-based refractory bricks from Germany.[2] The case was docketed as Anti-

Dumping Case No. I-98.

The protest was referred to the Bureau of Import Services (BIS) of the Department of
Trade and Industry, to determine if there was a prima facie case for violation of Republic

144
Act (R.A.) No. 7843, the Anti-Dumping Law. Sometime in February 1997, the BIS

submitted its report to the Tariff Commission, declaring that a prima facie case existed

and that continued importation of refractory bricks from Germany would harm the local

industry. It adopted the amount of DM 1,200 per metric ton as the normal value of the

imported goods.[3]

The HTC received a copy of the said report on February 14, 1997. However, before

it could respond, the chairman of the Tariff Commission prodded the parties to settle the

matter amicably. A conference ensued between RCP Senior Vice President and Assistant

General Manager Criste Villanueva and Jesus Borgonia, on the one hand, and HTC

President and General Manager Horst-Kessler Von Sprengeisen and Sales Manager Dennis

Gonzales, on the other. During the conference, the parties agreed that the refractory

bricks were imported by the HTC at a price less than its normal value of DM 1,200, and

that such importation was likely to injure the local industry. The parties also agreed to

settle the case to avoid expenses and protracted litigation. HTC was required to reform
its price policy/structure of its importation and sale of refractory bricks from Germany to

conform to the provisions of R.A. No. 7843 and its rules and regulations. Jesus Borgonio

thereafter prepared and signed a compromise agreement containing the terms agreed

upon which Villanueva and Borgonia signed.[4] Bienvenido Flores, an Office Clerk of RCP,

delivered the agreement to HTC at the 9th Floor of Ramon Magsaysay Center Building,

1680 Roxas Boulevard, Manila by Von Sprengeisens approval.[5]

However, Von Sprengeisen did not sign the agreement. Borgonia revised the

agreement by inserting the phrase based on the findings of the BIS in paragraph 1

thereof. Villanueva and Borgonia signed the agreement and had the same delivered to

the office of HTC on April 22, 1997 by Lino M. Gutierrez, a technical assistant of RCP.

Gonzales received the agreement and delivered the same to Von Sprengeisen. After 20

minutes, Gonzales returned, with the agreement already signed by Von

Sprengeisen.[6] Gonzales, who had also signed, then gave it to Gutierrez. On the same

day, Notary Public Zenaida P. De Zuiga notarized the agreement.[7] Gonzales delivered a

copy of the notarized Agreement to HTC.[8]

RCP submitted the compromise agreement to the Tariff Commission. During the

May 9, 1997 hearing before the Commission for the approval of the agreement, a

145
representative of HTC appeared. He offered no objection to the Agreement. The

Commission submitted its report to the Special Committee which rendered a decision

declaring that, based on the findings of the BIS, the normal value of the imported

refractory bricks was DM 1,200 per metric ton. HTC received a copy of the decision on

March 4, 1998. Neither RCP nor HTC appealed the decision to the Court of Tax Appeals.

In the meantime, HTC imported refractory bricks from Germany anew and noted

that the normal value of the said importation under the decision of the Special Committee

based on the BIS report was DM 1,200 per metric ton. On July 28, 1998, the HTC filed

an Urgent Motion to Set Aside and/or Vacate Judgment with the Special Committee on

Anti-Dumping, praying that such decision be declared null and void on the following

grounds:

1. THE FRAUD HAD BEEN COMMITTED BY THE PROTESTANT DURING THE

NEGOTIATION FOR THE PREPARATION OF THE COMPROMISE
AGREEMENT.

2. THAT INSERTIONS AND/OR SUBSTITUTION OF THE FACTS NOT

AGREED UPON WAS DELIBERATELY AND SURREPTITIOUSLY MADE BY THE
PROTESTANT IN THE COMPROMISE AGREEMENT WITHOUT THE
KNOWLEDGE AND CONSENT OF THE PROTESTEE.[9]

The motion was verified by Von Sprengeisen. The HTC averred therein that

Villanueva violated Article 172 of the Revised Penal Code when he surreptitiously inserted

the phrase based on the findings of the BIS in the agreement without the knowledge and

consent of Von Sprengeisen and despite their agreement to put behind them the findings

of the BIS. Appended to the motion was an Affidavit of Merit executed by Von Sprengeisen

in which he alleged, inter alia, that sometime in February 1997, the BIS came out with

its Report declaring that the normal value of the magnesite-based refractory bricks was
DM 1,200 per metric ton; before

HTC could respond to the report, Villanueva invited him to a conference for the purpose

of finding the best solution to the pending case before the Commission; he and Gonzales

attended the meeting during which it was agreed, by way of a compromise, that the

parties will accept the amount of DM 1,050 per metric ton as the normal value for all

magnesite-based refractory bricks from Germany; when he received the draft of the
compromise agreement prepared by Villanueva, he approved the same; subsequently,

146
Villanueva transmitted a compromise agreement already signed by him to Von

Sprengeisen for his review, approval and signature; believing that the compromise

agreement reproduced the contents of the first compromise agreement, he signed the

second agreement without reading it; when he received, on March 4, 1998, a copy of the

decision of the Tariff Commission based on the compromise agreement of the parties

wherein the committee adopted the findings and recommendations of the BIS (that the

normal value of the shipment was DM 1,200 per metric ton), he was shocked because he

never agreed to the use of such findings for the reformation of its price policies; there

was, in fact, an agreement between him and Villanueva to put behind them the findings

of the BIS; he called up Villanueva at his office but failed to contact him despite several

attempts; suspecting that something amiss happened, he had the draft of the first

compromise agreement retrieved but his secretary failed to locate the same; it was only

sometime later that his secretary found the folder-file containing the draft and was

appalled to discover that Villanueva had substantially altered the first draft of the

compromise agreement; this made him conclude and confirm his suspicion that

Villanueva, thru deceit and fraud, induced him to sign the compromise agreement to the

prejudice of the HTC.[10]

The RCP opposed the motion. But, in a parallel move, Villanueva, in his capacity as Senior

Vice President and Assistant General Manager of RCP, filed a criminal complaint for

perjury against Von Sprengeisen in the Office of the City Prosecutor of Manila. Appended

thereto was a complaint-affidavit executed by Villanueva wherein he declared, inter alia,

that Von Sprengeisen made the following false statements in the Urgent Motion, thus:

a. [Complainant] was the one who called up his office, inviting him to a
meeting for the purpose of finding the best and most equitable solution
to the case (p. 3, Urgent Motion);

b. RCP and Hamburg Trading agreed to put behind them the findings and
recommendations of the Bureau of Import Services (BIS) with respect
to the anti-dumping protest filed by RCP (p. 3, Urgent Motion);

c. The original version of the Compromise Agreement sent to him was

merely a draft (p. 3, Urgent Motion);

d. The phrase based on the findings of the Bureau of Import Services was
inserted in paragraph 1 of the final Compromise Agreement without his
knowledge and consent (p. 3, Urgent Motion); and

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 e. [Complainant] was the one who surreptitiously inserted the aforesaid
phrase (p. 3, Urgent Motion).[11]

Villanueva also alleged that Von Sprengeisen made the following false statements in his

Affidavit of Merit:

a. [Complainant] invited him to a conference for the purpose of finding the

best solution to the case;

b. [Complainant and he] agreed to put behind [them] the findings and
recommendation of the BIS submitted to the Secretary of Finance;

c. We agreed to the amount of DM 1,050/ton as the normal value for all

magnesite-based refractory bricks from Germany;

d. The original version of the Compromise Agreement sent to him was

merely a draft; and

e. Through deceit and fraud, [complainant] induced [respondent] to sign

the final Compromise Agreement.[12]

In his Counter-Affidavit, Von Sprengeisen averred that whoever called the other for a

conference was not a material matter. Since the first draft of the Compromise Agreement

transmitted to him was by fax, he asked the complainant to send to him the hard copy

of the Agreement for his signature. He further narrated that when he received the hard

copy of the compromise agreement, he did not bother to review since he assumed that

it contained the same provisions in the faxed copy. He did not suggest that the phrase

based on the findings of the BIS be inserted in the hard copy of the agreement because

he and Villanueva were at odds on the BIS finding the normal price of the goods was DM

1,200 per metric ton. He insisted that it would have been senseless of him to agree to

such insertion; as such, he did not make any willful and deliberate assertion of any

falsehood as to any material fact.[13]

Investigating Prosecutor Francisco G. Supnet found no probable cause for perjury

against the private respondent and recommended the dismissal of the complaint. Second

Assistant City Prosecutor Leoncia Dimagiba reviewed the resolution of Prosecutor Supnet

and found probable cause for perjury against the private respondent for alleging in his

Affidavit of Merit
that he was induced to sign the compromise agreement through fraud and deceit.

148
According to the Second Assistant City Prosecutor, the allegation of the private

respondent thru deceit and fraud to sign the final Compromise Agreement was a

deliberate assertion of a falsehood, designed as it was merely to give the BIS the

impression that private respondent was misled into agreeing to the compromise

agreement. She further opined that the allegation was perjurious, considering that the

private respondent had sufficient time to pass upon the Compromise Agreement and

could have availed the services of legal minds who could review the terms and conditions

thereof before signing the same;[14]hence, she recommended the reversal of Prosecutor

Supnets resolution and the filing of the information. The City Prosecutor approved the

recommendation of the Second Assistant City Prosecutor. Accordingly, an Information for

perjury was filed against the private respondent with the Metropolitan Trial Court of

Manila.

The private respondent appealed the resolution to the Secretary of Justice, who

reversed the resolution of the City Prosecutor on September 20, 2002. According to the
Justice Secretary, the complainant failed to establish the materiality of the alleged false

assertions and that the said assertions were willful and deliberate. Moreover, the

allegations in the Affidavit of Merit are not altogether false since the intention of the

parties in executing the compromise agreement was precisely to put behind the ruling of

the BIS, despite which the complainant inserted the condition that the parties would be

bound by such findings and recommendations.[15] The decretal portion of the resolution

reads:

WHEREFORE, the appealed resolution of the City Prosecutor of Manila is

hereby REVERSED. The City Prosecutor is directed to withdraw the
information for perjury against respondent Horst-Kessler von Sprengeisen
and to report the action taken within ten (10) days from receipt hereof.

SO ORDERED.[16]

Villanueva then filed a petition for certiorari with the CA assailing the resolution of the

Justice Secretary, alleging therein that grave abuse of discretion, amounting to excess or

lack of jurisdiction, was committed in issuing the said resolution.[17] The private

respondent, for his part, sought the dismissal of the petition alleging that, as found by
the Justice Secretary, there was no probable cause against him for perjury.[18]

149
 On February 13, 2004, the CA dismissed the petition and affirmed the resolution

of the Justice Secretary.[19]

The CA declared that, as posited by the Office of the Solicitor General in its

comment on the petition, the parties had agreed to put behind them the findings and

recommendations of the BIS with respect to the anti-dumping protest. The appellate

court stated that its finding is buttressed by the fact that the amount of DM 1,050 was

not mentioned in the first compromise agreement and that, under such agreement, the

HTC obliged itself to reform

its pricing policy and structure with respect to refractory products being imported to and

sold in the Philippines in accordance with the provisions of R.A. No. 7843 and its

implementing rules and requirements. The CA emphasized that it was inclined to believe

that there was no meeting of the minds of the parties when the petitioner inserted the

phrase based on the findings of the BIS in the revised compromise agreement; hence,

there could not have been perjury when the private respondent executed the Affidavit of
Merit and the Urgent Motion to Set Aside and/or Vacate Judgment. The CA also agreed

with the findings of the Secretary of Justice that the insertion of the condition in the

compromise agreement that the parties would be bound by the BIS findings and

recommendation gave the private respondent reason to believe that he was deceived by

the petitioner into signing the Agreement; as such, the private respondents allegation in

his Affidavit of Merit, that he was induced to signing the Compromise Agreement through

fraud and deceit, was not altogether false. Consequently, the CA ruled, the private

respondent did not make any willful and deliberate assertion of a falsehood.[20] The

appellate court conformed to the disquisitions of the Secretary of Justice in the assailed

resolution and concluded that the private respondent did not, in the Affidavit of Merit,

make a willful and deliberate assertion of a falsehood.[21]

Aggrieved, the petitioner filed a petition for review on certiorari with this Court

against private respondent Von Sprengeisen and the Secretary of Justice, insisting that

the CA committed grave abuse of discretion amounting to excess or lack of jurisdiction in

dismissing the petition and affirming the assailed resolution.

The petitioner maintains that, during the preliminary investigation, he adduced

substantial evidence to prove probable cause for perjury against the private respondent.

150
He maintains that probable cause does not mean actual and positive causes; nor does it

import absolute certainty. It is merely based on opinion and reasonable belief. It is

enough that it is believed that the act or omission complained of constitutes the offense

charged. He avers that, contrary to the claim of the private respondent in his Affidavit of

Merit, the meeting between him and Jesus Borgonio, on the one hand, and the private

respondent and HTC Sales Manager Dennis Gonzales, on the other, was arranged by the

latter and not by him. As gleaned from the draft and final copies of the compromise

agreement, the parties made express reference to the prima facie findings of the BIS that

the actual export price of HTC was below the fair market value. By agreeing that such

findings of the BIS be included in the Compromise Agreement, the said private respondent

impliedly agreed to such findings as basis of the price for which HTC would sell the

German-made magnesite-based refractory bricks in the Philippines. The petitioner avers

that the fact that the amount of DM 1,050 per metric ton was not specifically mentioned

in the compromise agreement was of no importance, considering the parties acceptance

of such findings is based on R.A. No. 7843. He points out that the private respondent

could not have failed to notice the difference between the first draft and the final copy of

the agreement before signing it because, as alleged by Lino Gutierrez in his reply affidavit,

it took the private respondent twenty minutes or so after receiving the agreement to
review the final draft before signing it. Moreover, the Urgent Motion to Set Aside and/or

Vacate Judgment signed by the private respondent was filed more than 15 months from

the execution of the compromise agreement and after four months from the Tariff

Commissions approval thereof.

The petitioner argues that it is incredible that during the interregnum of 19

months, the private respondent failed to discover the revisions/insertions in the final draft

of the compromise agreement. Considering the premises, the petitioner submits, the

private respondents filing of the Urgent Motion for and in behalf of HTC was merely an

afterthought, to enable the latter to escape compliance with the terms and conditions of

the Agreement.

The petitioner further insists that the insertion of the contested phrase in the final draft

of the compromise agreement was necessary although it may not be in the best interest
of HTC. He posits that the falsehoods made by the private respondent in his Urgent

151
Motion and Affidavit of Merit were material to the proceedings in the Anti-Dumping Office

of the Tariff Commission because these were used to set aside the compromise

agreement executed by the parties.

In his Comment on the petition, the private respondent avers that the issues raised by

the petitioner are factual, hence, improper in a petition for

review on certiorari under Rule 45 of the Rules of Court. The determination of the

existence of a probable cause is primarily an administrative sanction of the Secretary of

Justice. He insists that the findings of the Justice Secretary should be accorded great

respect, especially since the same were upheld by the CA. He asserts that the petitioner

failed to establish in the CA and in this Court that the Justice Secretary committed a grave

abuse of discretion amounting to excess or lack of jurisdiction in her resolution.

The petition has no merit.

The pivotal issue in this case is factual whether or not, based on the records, there

was probable cause for the private respondents indictment for perjury.

Rule 45 of the Rules of Court provides that only questions of fact may be raised in

a petition for review on certiorari. Findings of facts of a quasi-judicial agency, as affirmed

by the CA, are generally conclusive on the Court, unless cogent facts and circumstances

of such a nature warranting the modification or reversal of the assailed decision were

ignored, misunderstood or misinterpreted. Thus, the Court may delve into and resolve

factual issues in exceptional cases. The petitioner has failed to establish that any such

circumstance is present in the case at bar.[22]

The Court finds that the public respondent did not commit any grave abuse of

discretion amounting to excess or lack of jurisdiction in issuing the assailed resolution,

and that the CA did not commit any reversible error in its assailed decision and resolution.

If at all the public respondent erred in issuing the assailed resolution, such is merely an

error in the exercise of jurisdiction, reversible by a petition for review under Rule 43 of

the Rules of Court especially so where, as in this case, the issues before the CA were
factual and not legal. The absence or existence of probable cause in a given case involves

152
a calibration and a reexamination of the evidence adduced by the parties before the Office

of the City Prosecutor of Manila and the probative weight thereof. The CA thus ruled

correctly when it dismissed the petition before it.

Probable cause, for purposes of filing a criminal information, has been defined as

such facts as are sufficient to engender a well-founded belief that a crime has been

committed and that the private respondent is probably guilty thereof. It is such a state

of facts in the mind of the prosecutor as would lead a person of ordinary caution and

prudence to believe or entertain an honest or strong suspicion that a thing is so. The

term does not mean actual or positive cause; nor does it import absolute certainty. It is

merely based on opinion and reasonable belief. Thus, a finding of probable cause does

not require an inquiry into whether there is sufficient evidence to procure a conviction. It

is enough that it is believed that the act or omission complained of constitutes the offense

charged. Precisely, there is a trial for the reception of evidence of the prosecution in

support of the charge.[23]

The determination of its existence lies within the discretion of the prosecuting

officers after conducting a preliminary investigation upon complaint of an offended

party.[24] The Resolution of the Secretary of Justice declaring the absence or existence of

a probable cause affirmed by the CA is accorded high respect. However, such finding may

be nullified where grave abuse of discretion amounting to excess or lack of jurisdiction is

established.[25]

Perjury is defined and penalized in Article 183 of the Revised Penal Code, thus:

Art. 183. False testimony in other cases and perjury in solemn affirmation.
The penalty of arresto mayor in its maximum period to prision
correccional in its minimum period shall be imposed upon any person who,
knowingly making untruthful statements and not being included in the
provisions of the next preceding articles, shall testify under oath or make
an affidavit upon any material matter before a competent person authorized
to administer an oath in cases in which the law so requires.

Any person who, in case of a solemn affirmation made in lieu of an oath,

shall commit any of the falsehoods mentioned in this and the three
preceding articles of this section shall suffer the respective penalties
provided therein.

153
 Perjury is an obstruction of justice; its perpetration may affect the earnest

concerns of the parties before a tribunal. The felony is consummated when the false

statement is made.[26]

The seminal modern treatment of the history of perjury concludes that one

consideration of policy overshadows all others the measures taken against the offense

must not be so severe as to discourage aggrieved parties from lodging complaints or

testifying.[27] As quoted by Dean Wigmore, a leading 19th Century Commentator, noted

that English law, throws every fence round a person accused of perjury, for the obligation

of protecting witnesses from oppression or annoyance, by charges, or threats of charges,

of having made false testimony is far paramount to that of giving even perjury its

deserts.[28]

Perjury is the willful and corrupt assertion of a falsehood under oath or affirmation

administered by authority of law on a material matter.[29] The elements of the felony are:
(a) That the accused made a statement under oath or executed an affidavit
upon a material matter.

(b) That the statement or affidavit was made before a competent officer,
authorized to receive and administer oath.

(c) That in that statement or affidavit, the accused made a willful and
deliberate assertion of a falsehood.

(d) That the sworn statement or affidavit containing the falsity is required
by law or made for a legal purpose.[30]

A mere assertion of a false objective fact, a falsehood, is not enough. The assertion

must be deliberate and willful.[31] Perjury being a felony by dolo, there must be malice on

the part of the accused.[32] Willfully means intentionally; with evil intent and legal malice,

with the consciousness that the alleged perjurious statement is false with the intent that

it should be received as a statement of what was true in fact. It is equivalent to knowingly.

Deliberately implies meditated as distinguished from inadvertent acts.[33] It must appear

that the accused knows his statement to be false or as consciously ignorant of its truth.[34]

Perjury cannot be willful where the oath is according to belief or conviction as to

its truth. A false statement of a belief is not perjury. Bona fide belief in the truth of a

statement is an adequate defense.[35] A false statement which is obviously the result of

an honest mistake is not perjury.

154
 There are two essential elements of proof for perjury: (1) the statement made by

the defendants must be proven false; and (2) it must be proven that the defendant did

not believe those statements to be true.[36]

Knowledge by the accused of the falsity of his statement is an internal act. It may

be proved by his admissions or by circumstantial evidence. The state of mind of the

accused may be determined by the things he says and does, from proof of a motive to

lie and of the objective falsity itself, and from other facts tending to show that the accused

really knew the things he claimed not to know.[37]

A conviction for perjury cannot be sustained merely upon the contradictory sworn

statements of the accused. The prosecution must prove which of the two statements is

false and must show the statement to be false by other evidence than the contradicting

statement.[38] The rationale of this principle is thus:

Proof that accused has given contradictory testimony under oath at

a different time will not be sufficient to establish the falsity of testimony
charged as perjury, for this would leave simply one oath of the defendant
as against another, and it would not appear that the testimony charged was
false rather than the testimony contradictory thereof. The two statements
will simply neutralize each other; there must be some corroboration of the
contradictory testimony. Such corroboration, however, may be furnished by
evidence aliunde tending to show perjury independently of the declarations
of testimony of the accused.[39]

The term material matter is the main fact subject of the inquiry, or any circumstance

which tends to prove that fact, or any fact or circumstance which tends to corroborate or

strengthen the testimony related to the subject of the inquiry, or which legitimately

affects the credence of any witness who testified. In this case, a matter is material if it

has a material effect or tendency to influence the Commission in resolving the motion of

HTC one way or the other. The effects of the statement are weighed in terms of

potentiality rather than probability.[40] The prosecution need not prove that the false

testimony actually influenced the Commission.[41]

The private respondent did err when he declared, in the motion of the HTC and his

affidavit, that it was the petitioner who invited him to a

155
conference. The truth of the matter is that it was Gonzales who did so. Nonetheless, the

issue of who called for a conference is of de minimis importance because, after all, the

parties agreed to meet after having been prodded by the Chairman of the Commission to

settle the case instead of going through the tribulations and expenses of a protracted

litigation. No adverse inference (related to the merits of their respective contention in this

case) can be ascribed as to whoever called the conference. After all, parties are even

urged to settle cases amicably.

Besides, as correctly declared by the Second Assistant City Prosecutor in her resolution:

The allegation that it was complainant who invited respondent to the

meeting may not be a deliberate lie. Respondent may not have known who
arranged the meeting, but as he was able to talk to complainant, he
presumed that it was complainant who extended the invitation. Moreover,
the identity of the one who initiated the meeting is not material considering
that there was a meeting of the minds of the Parties.[42]

The Court also agrees with the contention of the private respondent that the copy of the

first agreement transmitted to him was a fax copy of the draft, and that, contrary to the

allegations of the private respondent, such agreement was prepared by Borgonia and not

by the petitioner. As gleaned from page two of the agreement, the particulars of the

residence certificates of the petitioner and the private respondent were not typewritten,

hence, cannot as yet be notarized. As claimed by the private respondent, a copy was

transmitted to him for his personal review, and if he found it to be in order, the petitioner

and Borgonia would prepare and sign the agreement and give it back to him for review

and signature, with the particulars of his community tax certificate indicated in the final

copy.

Undeniably, the identity of the person who prepared or caused to prepare the compromise

agreement subsequently signed by the petitioner and the private respondent was of prime

importance because only such person should be charged for perjury. The private

respondent erroneously stated in his Affidavit of Merit and Urgent Motion that it was the

petitioner who prepared the agreement that was signed by the parties. It turned out that

it was Borgonia who prepared the first and the second copies. However, the private

respondent cannot be held liable for perjury since it was Borgonia who prepared the

156
agreement and not the petitioner. The Court agrees with the following contention of the

private respondent in his counter-affidavit:

4.6 While complainant claims that it was not he but Mr. Borgonia who made
the insertions, there is no doubt that, indeed, the insertions were made
into the document. Since complainant is the signatory to the
Compromise Agreement, it is but natural for one to presume that he
had made the insertions. At the same time, I can not be expected to
know that it was Mr. Borgonia, as claimed by complainant, who made
such insertions.[43]

Indeed, Borgonia was merely the Manager of the Management Information Group

of RCP, whereas the petitioner was no less than its Senior Vice President and Assistant

General Manager, Borgonias superior. Unless and until approved by the petitioner, any

agreement prepared by Borgonia was merely a piece of paper, barren of any legal effect.

In this case, the compromise agreement prepared by Borgonia had the petitioners

imprimatur. Borgonia was merely a witness to the agreement. For all legal intents and
purposes, the petitioner had the compromise agreement prepared under his supervision

and control. It cannot thus be concluded that the private respondent made a deliberate

falsehood when he alleged that the agreement was prepared by the petitioner.

The Court is not persuaded by the petitioners claim that, during the conference,

he and the private respondent agreed that, based on the BIS report, the normal value of

the imported refractory bricks per metric ton was DM 1,200, and that such report would

be used as basis for the revision of the price policy and structure of HTC.

It bears stressing that, during the conference, the petitioner and the private

respondent had agreed on three aspects of the case: (1) based on the prima

facie findings of the BIS, the normal value of the goods per meter ton was DM 1,200 and
that the actual export price of HTC was below the fair market value; (2) to terminate the

case, HTC will have to adjust and revise its price policy and structure for imported

refractory bricks to conform to R.A. No. 7843 and rules and regulations implementing the

law; and (3) if HTC fails or refuses to comply with its undertaking, RCP will be entitled to

a writ of execution without need of demand. However, the petitioner and the private

respondent could not have agreed on such base price; the petitioner insisted on the
amount recommended by the BIS (DM 1,200) while the private respondent insisted on

157
DM 950. There was an impasse. By way of a compromise, the parties agreed to do away

with the BIS recommended base

value and agreed for HTC to base the normal value of the importation per metric ton

under R.A. No. 7843 and the rules issued implementing the law. This is gleaned from the

affidavit of Borgonia:

13. During the meeting, Mr. von Sprengeisen suggested that the value of
DM 1,050/ton be applied as the price at which Hamburg Trading would sell
German-made magnesite-based refractory bricks in the Philippines. Mr.
Villanueva did not agree to the suggested value, as we considered it low.
In the end, both parties decided to base the determination of the price on
the provisions of Republic Act No. 7843 and its implementing rules and
regulations. [44]

Borgonia prepared the first compromise agreement and incorporated therein the

agreement of the petitioner and the private respondent arrived at during the conference,

thus:

1. For the purpose of buying peace and by way of concession in order to

end litigation, the SECOND PARTY undertakes and commits to reform
its pricing policy and structure with respect to refractory products being
imported interest sold in the Philippines in accordance with the
provisions of Republic Act 7843 and its implementing rules and
regulations.[45]

If, as claimed by the petitioner in his Affidavit-Complaint, he and the private

respondent had agreed that HTC will use as basis for its price policy and structural

revision, the BIS report, for sure, Borgonia would have incorporated the said agreement

in the first compromise agreement. He did not, and Borgonia has not offered any

explanation for such failure. The petitioner signed the draft of the agreement without any

plaint or revision. It was only in the second compromise agreement that was later signed

by the petitioner and the private respondent that Borgonia incorporated the phrase

based on the findings of the BIS. Borgonia and the petitioner made the insertion on their

own, without the a priori consent of the private respondent.

The Court is not convinced by the petitioners contention (and that of Borgonia in

his Affidavit) that the petitioner and the private respondent had agreed to leave the final

determination of the base value or price of importation per metric ton to a third party

(BIS). The private respondent could not have agreed to the use of the BIS report because,

158
as mentioned, he had strenuously objected to its use as basis for the revision of its price

policy and structure. For HTC to admit that the BIS finding of DM 1,200 per metric ton

was the normal value of the refractory bricks from Germany for the purpose of resolving

the anti-dumping case is one thing; but for HTC to agree to be bound by the BIS

recommendation for the purpose of revising its price policy and structure is completely a

different matter.

With the petitioner and the private respondents admission of the prima

facie findings of the BIS, the Commission can prepare its recommendation to the Special

Committee on the protest of the RCP to the HTC importation subject of the case.

Thereafter:

D. The Special Committee shall, within fifteen (15) days after receipt of the
report of the Commission, decide whether the article in question is being
imported in violation of this section and shall give due notice of such
decision. In case the decision of dumping is in the affirmative, the special
committee shall direct the Commissioner of Customs to cause the dumping
duty, to be levied, collected and paid, as prescribed in this section, in
addition to any other duties, taxes and charges imposed by law on such
article, and on the articles of the same specific kind or class subsequently
imported under similar circumstances coming from the specific country.

In the event that the Special Committee fails to decide within the period
prescribed herein, the recommendation of the Commission shall be deemed
approved and shall be final and executory.[46]

On the matter of the revision or adjustment of the price policy and structure of

HTC, the parties had agreed to accomplish the same in due time. It goes without saying

that the RCP retained the right to object to or protest to the price policy and structure

revision of HTC.

The agreement of the petitioner and the private respondent not to be bound by

the base value in the BIS report for the revision of its price policy and structure is not

unexpected because: (1) the findings of the BIS are only prima facie, meaning to say,

not conclusive, and HTC was accorded a chance to base its price policy and structure on

evidence and informations other than those contained in the BIS report; (2) the normal

value of the imported refractory bricks may fluctuate from time to time, hence, the need

for any importer to revise its price policy and structure from time to time; and (3) the

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base value to be used by HTC in revising its price policy would be scrutinized and resolved

initially by the Commission, by the Special Committee and by the Court of Tax Appeals

on appeal.

The process agreed upon by the petitioner and the private respondent was not

only practical and fair, but in accord with law as well.

In fine, the private respondent did not commit any falsehood in the Urgent Motion

and his Affidavit of Merit when he declared that he and the

petitioner put behind them the BIS report, and agreed to use R.A. No. 7843 and the rules

and regulations implementing the same to determine the base price for the revision of

the price policy and structure of HTC.

Admittedly, the respondent did not object to the offending phrase before and after

signing the agreement and for a considerable stretch period until HTC filed its motion.

However, we do not agree with the contention of the petitioner that such failure of the

respondent to object to the offending phrase for such period of time amounted to an

admission that, indeed, the private respondent was aware of the offending phrase in the

Agreement, and to his agreement thereto; and estopped the private respondent from

alleging that he was deceived by the petitioner into signing the Compromise Agreement.

In his appeal to the DOJ, the private respondent declared that:

3.9 True, respondent-appellant may have been remiss and lacking in

circumspect in failing to review the hard copy Compromise Agreement and
notice the insertion. Being in the trading business, respondent-appellant
personally handles hundreds of documents daily and is on the telephone for
most of the day communicating with suppliers and customers. And he had
no reason to believe that either complainant-appellee or Mr. Borgonia would
make such an insertion, especially after respondent-appellant had accepted
the fax Compromise Agreement wording and conveyed such acceptance to
complainant-appellees office. Respondent-appellant also had to reason to
even think that such a surreptitious insertion would be made; after all, he
had a very warm and friendly meeting with complainant-appellee and Mr.
Borgonia and came out of it with a feeling that he could trust complainant-
appellee (p. 4, Annex C).

3.10 Hence, when respondent-appellant alleges that he was induced

to sign the hard copy Compromise Agreement through fraud and deceit,
respondent-appellant honestly believes that he was misled into signing it.
He was misled by the fact that he had been sent the fax Compromise
Agreement by complainant-appellee, that he had conveyed its acceptability
to complainant-appellee and now requested for the hard copy for execution,

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 that he had been led to trust that the findings and recommendation of the
BIS were being put behind them and that complainant-appellee had agreed
to such a compromise. The transmittal of the hard copy Compromise
Agreement, without any notice or mention by complainant-appellee or
complainant-appellees office that it contained
insertions or wording different from the fax Compromise Agreement, and
on respondent-appellants understanding that the wording of the hard copy
Compromise Agreement would be exactly the same as the fax Compromise
Agreement, constitutes the fraud or deceit allegedly by respondent-
appellant.[47]

In his rejoinder-affidavit, the private respondent explained that:

2. Again, contrary to the allegations in the Reply-Affidavits, I was unable to

review the Compromise Agreement delivered by Mr. Gutierrez on 22
April 1997 as I was busy with numerous calls and business at the time
it was delivered. Also, I had been led to believe in our meetings with
Mr. Villanueva and Mr. Borgonia that I could trust them. So, after having
seen the fax Compromise Agreement and being amenable to it, I
trusted that they would send a genuine hard copy. As it turned out, I
was mistaken.[48]

Moreover, even before filing the Urgent Motion and signing the Affidavit of Merit,

the private respondent tried for several times to contact the petitioner, but the latter

failed to return his calls. This reinforced the suspicion of the private respondent that the

insertion of the offending phrase was not, after all, inadvertent but deliberate, calculated

to deceive him to the prejudice of HTC. The private respondent may be blamed for putting

too much trust and confidence on the petitioner, but he certainly cannot be indicted for

perjury for lack of probable cause.

The petitioner failed to append to his petition records of the Commission that the

private respondent appeared for HTC, on May 9, 1997, before the Commission for the

hearing on the Compromise Agreement; and showing that the private respondent did not

object thereto.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The

assailed Decision of the Court of Appeals in CA-G.R. SP No. 76999 is AFFIRMED. Costs

against the petitioner.

SO ORDERED.

161
ARTICLE 200
FIRST DIVISION

[G.R. No. 5115. November 29, 1909. ]

THE UNITED STATES, Plaintiff-Appellee, v. MANUEL SAMANIEGO and JUANA

BENEDICTO DE PEREZ, Defendants-Appellants.

Joaquin Rodriguez Serra, for Appellants.

Solicitor-General Harvey, for Appellee.

SYLLABUS

1. ADULTERY; OFFENSES INVOLVING GRIEVOUS SCANDAL OR ENORMITY. — In order

to sustain a conviction under article 441 of the Penal Code, for an offense which "offends
modesty or good morals by grievous scandal or enormity," it is essential that the act or
acts complained of should be committed in a public place or within the public knowledge
or view. (U.S. v. Catajay, 6 Phil. Rep., 398; supreme court of Spain, April 13, 1885,
December 14, 1903, January 27, 1908; Viada, vol. 3, p. 130.)

DECISION

MORELAND, J. :

On the 20th day of December, 1907, the following information was presented to the Court
of First Instance of the city of Manila against the defendants in this
case:jgc:chanrobles.com.ph

"That on or about the 25th day of November, 1907, in the city of Manila, Philippine
Islands, the said Manuel Samaniego did then and there willfully, unlawfully, and
feloniously lie with and have sexual intercourse with the said accused, Juana Benedicto
de Perez, who was then and there, as the said accused Manuel Samaniego then and there
well knew, a married woman and the lawfully wedded wife of Jose Perez Siguenza; and
the said accused Juana Benedicto de Perez, being then and there a married woman and
the lawfully wedded wife of the said Jose Perez Siguenza, did then and there willfully,
unlawfully, and feloniously lie with and have sexual intercourse with the said accused,
Manuel Samaniego."cralaw virtua1aw library

The defendants were arrested under said information and were confined in Bilibid, the
said Samaniego on the 21st day of December, 1907, and the said Juana Benedicto de
Perez on the 26th of the same month. After the arrest of the said defendants, Juana
Benedicto de Perez, at the instance of the prosecuting attorney, was examined by three
physicians for the purpose of determining her mental condition. On the 27th day of
December, 1907, the doctors made their report to the Court of First Instance, expressing
the opinion that the said Juana Benedicto de Perez was mentally deranged. On the 7th
day of January, 1908, the defendants were tried on the charge of adultery, as presented
in said information, and, after the introduction of the proofs upon the part of the
Government, both the prosecuting attorney and the trial court believed that the evidence
was insufficient to warrant the conviction of either of the defendants, and they were both

162
accordingly acquitted of that charge. In the judgment acquitting the defendants the court
included permission to the prosecuting attorney to file against either or both of the said
defendants a new information charging them with the crime defined in article 441 of the
Penal Code. On the 8th day of January, 1908, pursuant to such permission, the
prosecuting attorney presented against both of the defendants an information charging
them with the crime mentioned in said article, as follows:jgc:chanrobles.com.ph

"That on and for many weeks prior to the 27th day of November, 1907, in the city of
Manila, Philippine Islands, the said Juana Benedicto de Perez was a married woman, and
that said Manuel Samaniego knew that she was married and united in the bonds of
matrimony with and was the legitimate consort of Jose Perez Siguenza; that during the
period of time above expressed the said Manuel Samaniego and Juana Benedicto de
Perez, willfully, illegally, and criminally and scandalously, without having any matrimonial
tie between them, habitually appeared together in public places and frequented together
places of recreation, suspicious places, vacant houses, and houses of bad repute, in the
daytime as well as in the nighttime; and lewdly and indecently went to bed together in
the house of the husband of the said Juana Benedicto de Perez during the late hours of
the night, dressed only in their night clothes, and indecorously, indecently, and
immodestly embraced each other and caressed each other in the presence of the family,
children, and servants of the said husband of Juana Benedicto de Perez; all with public
scandal and with scandal to the community, and with shame and humiliation to the
husband and family of the said Juana Benedicto de Perez."cralaw virtua1aw library

After the presentation of this information, it appearing that the proofs under the charge
therein contained would be the same as were those under the charge in the information
first herein set forth, the prosecuting attorney and the attorneys for the defendants
agreed to submit and did submit the case to the court for final determination upon the
proofs already taken in the trial on the charge of adultery. No witness was sworn. On the
5th day of February, 1908, the trial court rendered a decision in which he found the
defendants guilty of the crime charged, condemning the defendant Samaniego to the
penalty of arresto mayor in its maximum degree and ordering the defendant Juana
Benedicto de Perez confined in an asylum for the insane until the further order of the
court. On the same day the defendants excepted to said decision and made a motion for
a new trial. On the 12th day of February said court, upon its own motion, and, so far as
appears of record, without notice to or consent of the defendants or their attorneys made
an order reopening said case "for the purpose only," as expressed in the order, "of
receiving evidence as to the publicity or nonpublicity of the acts charged in the complaint."
On the 15th day of April, following, additional evidence was taken in the case and used
by the court as the basis for a further judgment in the action. This was done over the
objections and exception of defendant’s attorneys. On the 18th day of April the court
rendered a decision affirming the judgment rendered by him on the 5th day of February
in the same case. In the same decision he denied defendants’ motion for a new trial.

The witnesses for the prosecution during the trial of the defendants on the charge made
in the first information, viz, that of adultery, were Jose Perez, the husband of Juana
Benedicto de Perez, three of his children, and his cochero. The husband testified that
Juana, after having lived with him for more than twenty years, and having borne him
more than five children, expressed the desire to separate from him on account of the
physical abuse and ill treatment which she had received and was receiving at his hands.
He testified further that he himself desired to terminate his marital relations with her and
that he wanted a divorce; and, as a preliminary step to that end, he obtained her arrest
at the hands of the police, who, at his request, conducted her in a patrol wagon publicly
through the streets of the city of Manila to an asylum for the insane, where she was
detained and imprisonment against her will. He declared further that the reason why he

163
thus humiliated and disgraced her and deprived her of her liberty was his ardent desire
to save her soul; that, in ordering her arrest and reclusion, he was acting under the advice
and counsel of various lawyers and doctors. He further testified that, after her arrest, she
many times implored him to give her back her liberty and permit her to return to her
family; and that, during one of such supplications, she admitted to him that the defendant
Samaniego was her friend, but, at the same time, denied that he had ever taken
advantage of that friendship in any way whatever.

In attempting to prove the adultery alleged in the information, the prosecution presented
as witnesses the persons above mentioned, viz, Caridad Perez, daughter of the defendant
Juana; Rafael Perez, a student of medicine, 18 years of age, son of the defendant Juana;
Concepcion Perez, 12 years of age, daughter of the defendant Juana; together with the
cochero of the family, all of whom lived with the accused, Juana, and her husband at No.
257 Calle Nozaleda, Manila.

According to the testimony of these witnesses, the kitchen and the toilet of the house,
No. 257 Nozaleda, are situated on the ground floor. Here slept the cochero in a bed called
by the family a bench. This was the only bed in the lower part of the house which could
possibly be used for any purpose.

On the night of the 6th of November, 1907, the accused, Juana Benedicto de Perez,
accompanied by her daughters, attended a dance given by a friend. The other accused,
Samaniego, was also present. Juana and her daughters returned home late at night.
There were then present in the house the accused, Juana Benedicto de Perez; her three
daughters, Caridad, Rosario, and Conchita, and a friend of Conchita; her son Rafael; a
younger son, Manolo; and the cochero. When the mother and the daughters who had
attended the dance with her were preparing for bed, Conchita discovered that there was
a stranger in the lower part of the house and by her cries brought the household to the
spot. She declares in her testimony that when she first saw the stranger he was near the
cochero’s bed and, while she was watching the movements of the stranger, her mother
went below and appeared to be talking with him; that not for a moment did she lose
sight of her mother during all the occurrence.

The cochero testified that the stranger was Samaniego and that he came first to the
cochero’s bed and talked with him a while, but afterwards the cochero went to sleep, and
later, on hearing the cries of Conchita, he saw Samaniego trying to conceal himself in the
kitchen and also observed that the accused, Juana Benedicto de Perez, was going up and
down the stairs.

The married daughter, Caridad, who, it appears, was not at the dance, testified that,
when Conchita informed the family that a stranger was in the lower part of the house,
she awoke her brother Rafael, who accompanied her below, where they found the
defendant Samaniego, dressed only in his drawers; that she gave him a blow in the face
and ordered him immediately to quit the house; that he asked her pardon and requested
permission to put on his clothes; that permission to do so was refused and she and her
brother ejected him from the house by force and later the cochero handed him his clothes
over the wall.

Caridad also testified that Samaniego was once at the house and talked with her mother
through the window from the street, and on that occasion her mother delivered to him a
pawn ticket; that once when she and her mother were in a carromata on the streets the
defendant approached them and spoke to her mother. The testimony of Rafael shows
that one morning, as he was returning from the hospital in Quiapo, he saw the defendant
Samaniego on foot near the carromata of his mother in the Botanical Garden talking to

164
her.

Luisa Avesilla testified that the accused, Juana Benedicto de Perez, paid the board of
Samaniego for three months in a restaurant where she was cashier, and that on one
occasion Juana ate with Samaniego in the restaurant. On that occasion she was
accompanied by her grandson. The cochero testified that he frequently had as
passengers in the carromata the two defendants; that on one occasion he had waited for
them while they went to a house in Calle Cervantes, and on another occasion they had
gone into a house on Calle Malacañang, the witness supposing that the house was
unoccupied because the accused, Juana, had told him that she was looking for a house
to rent; that the witness at no time observed anything improper in the conduct or
deportment of the two defendants. There is no proof whatever that these places were
places of bad repute or that any of them were unoccupied.

Upon the proofs above stated, which are all of the proofs adduced in the trial on the
charge of adultery and are the same proofs upon which the defendants were acquitted
of that charge, the prosecuting attorney recommended that the defendants be convicted
of the crime defined in article 441 of the Penal Code, of which they stood charge, and
the court thereupon convicted them thereof.

The acts complained of lack many of the elements essential to bring them within the
purview of the article of the Penal Code invoked by the prosecution. Every act that was
in anywise public fails entirely of those qualities which offend modesty and good morals
by "grievous scandal or enormity." The occurrence at the residence on the night of the
6th of November did not have that publicity which is required by the article of the Penal
Code referred to. (U.S. v. Catajay, 6 Phil. Rep., 398; supreme court of Spain, April 13,
1885, December 14, 1903, and January 27, 1908; Viada, vol. 3, p. 130.)

The evidence introduced on the reopening adds nothing to the case already made by the
prosecution. The case was reopened for a particular purpose and the evidence to be
introduced, if any, was restricted to a particular condition, viz, the "publicity or
nonpublicity of the acts charged in the complaint." On the reopening, evidence was
presented by the prosecution in relation to the alleged occurrence between the
defendants in Plaza Palacio. Concerning this incident testimony had already been given
on the trial by the witness Rafael Perez. Testimony was also given on the reopening by
the same witness as to an occurrence between the defendants one morning in the
Botanical Garden. In relation to this same event he had already given his testimony on
the trial. His evidence as to these two events given on the reopening of the case is wholly
inconsistent with, if not absolutely contradictory of, his testimony in relation to the same
events given on the trial. Such testimony can have no weight.

The other testimony given on the reopening by this witness and the testimony of the
witness Amadeo Pacheco can have no bearing or weight in the decision of this case
because such testimony relates to acts and relations between the defendants which are
not "charged in the complaint" and concerning which no evidence whatever had been
offered on the trial.

In the judgment of this court the evidence fails to show the defendants guilty of the crime
charged.

The judgment of conviction of the trial court is, therefore, reversed, the defendants
acquitted and their discharge from custody ordered.

Arellano, C.J., Torres, Johnson and Carson, JJ., concur.

165
ARTICLE 201

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-20569 October 29, 1923

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
J. J. KOTTINGER, defendant-appellant.

Fisher, Dewitt, Perkins and Brady for appellant.

Attorney-General Villa-Real for appellee.

MALCOLM, J.:

The question to be here decided is whether or not pictures portraying the inhabitants of
the country in native dress and as they appear and can be seen in the regions in which
they live, are absence or indecent. Surprising as it may seem, the question is one of first
impression not alone in the Philippine Islands, but in the United States, Great Britain, and
elsewhere. This will explain why a case which otherwise would be heard and voted in
Division has been submitted to the court in banc for decision.

On November 24, 1922, detective Juan Tolentino raided the premises known as Camera
Supply Co. at 110 Escolta, Manila. He found and confiscated the post-cards which
subsequently were used as evidence against J. J. Kottinger, the manager of the company.

Out of these facts arose the criminal prosecution of J. J. Kottinger in the Court of First
Instance of Manila. The information filed in court charged him with having kept for sale
in the store of the Camera Supply Co., obscene and indecedent pictures, in violation of
section 12 of Act No. 277. To this information, the defendant interposed a demurrer based
upon the ground that the facts alleged therein did not constitute an offense and were not
contrary to law; but trial court overruled the demurrer and the defendant duly excepted
thereto. Following the presentation of evidence by the Government and the defense,
judgment was rendered finding the defendant guilty of the offense charged and
sentencing him to pay a fine of P50 with subsidiary imprisonment in case of insolvency,
and the costs.

The five errors assigned by defendant-appellant in this court divide themselves into two
general issues. The first point sustained by counsel for the appellant is in nature a
technical objection, growing out of the defendant's demurrer. The second point, in reality
the decesive issue, is as suggested in the beginning of the decision. We will take upon
the assignments of errors as thus classified in order.

Act No. 277 is the Philippine Libel Law. But included therein is a section, No. 12, making
obscene or indecent publications misdemeanors. Said section 12 which, it is contended

166
by the Government, has here been violated, and which, appellant argues, does not apply
to the information and the facts, reads as follow:

Any person who writes, composes, stereotypes, prints, publishes, sells, or keeps
for sale, distributes, or exhibits any obscene or indecent writing, paper, book, or
other matter, or who designs, copies, draws, engraves, paints, or otherwise
prepares any obscene picture or print, or who moulds, cuts, casts, or otherwise
makes any obscene or indecent figure, or who writes, composes, or prints any
notice or advertisement of any such writing, paper, book, print, or figure shall be
guilty of a misdemeanor and punished by a fine of not exceeding one thousand
dollars or by imprisonment not exceeding one year, or both.

Counsel has gone to the trouble to make a careful analysis of section 12 of the Libel Law
which is intended to bear out his thesis, first, that section 12 does not prohibit the taking,
selling, and publishing of alleged obscene and indecent pictures and prints, and second,
that the information in this case charges no offense prohibited by section 12. Recall,
however, that the law provides punishment, among other things, for any person who
keeps for sale or exhibits any absence or indecent writing, paper, book, or other matter,
and that the information charges the defendant, among other things, with having wilfully
and feloniously kept for sale, distribution, or exhibition, obscene and indecent pictures.

The phrase in the law "or other matter", was apparently added as a sort of "catch-all."
While limited to that which is of the same kind as its antecedent, it is intended to cover
kindred subjects. The rule of ejusdem generis invoked by counsel is by no means a rule
of universal application and should be made to carry out, not to defeat, the legislative
intent. Even if the phrase "or other matter" be cobstrued to mean "or other matter of like
kind," pictures and postcards are not so far unrelated to writings, papers, and books, as
not to be covered by the general words (Commonwealth vs. Dejardin [1878], 126 Mass.,
46; 30 Am. Rep., 652; Brown vs. Corbin [1889], 40 Minn., 508).

The line of argumentation is more refined that practical. Once conceded that section 12
of Act No. 277 does not cover the present case, there yet remain for application article
571, No. 2, of the penal code, and section 730 of the Revised Ordinances of the City of
Manila. The section of the Revised Ordinances cited is most specific when it provides in
part that no person shall "exhibit, circulate, distribute, sell, offer or expose for sale, or
give or deliver to another, or cause the same to be done, any lewd, indecent, or absence
book, picture, pamphlet, card, print, paper, writing, mould, cast, figure, or any other
thing."

While admittedly the information is lacking in precision and while the content of section
12 of the Libel Law is not as inclusive as it might be, we yet conclude that the information
is not fatally defective, and that said section 12 covers the alleged facts.

We come now to decide the main issue. We repeat that our own researches have
confirmed the statement of counsel that no one parrallel case be found. We must perforce
reason from the general to the specific and from universal principle to actual fact.

The pictures which it is argued offend against the law on account of being obscene and
indecent, disclose six different postures of non-Christian inhabitants of the Philippines.
Exhibit A carries the legend "Philippines, Bontoc Woman." Exhibit A-1 is a picture of five
young boys and carries the legend "Greetings from the Philippines." Exhibit A-2 has the
legend "Ifugao Belle, Philippines. Greetings from the Philippines." Exhibit A-3 has the
legend "Igorot Girl, Rice Field Costume." Exhibit A-4 has the legend "Kalinga Girls,
Philippines. Exhibit A-5 has the legend "Moros Philippines."

167
The prosecution produced no evidence proving the postcards obscene and indecent
because it thought the post-cards themselves the best evidence of that fact. The fiscal
admitted in open court "that those pictures represented the natives (non-Christians) in
their native dress." The defendant, on the other hand, attempted to show that the
pictures as true to life. Dr. H. Otley Beyer, Professor in the University of the Philippines,
corroborated by other witnesses, testified from his studies in various parts of the Islands,
such as the Mountain Province, Abra, Palawan, and Mindanao and Sulu, that none of the
pictures represented poses which he had not observed on various occasions, and that the
costumes worn by the people in the pictures are the true costumes regularly worn by
them. Are such pictures obscene or indecent?

The word "obscene" ands the term "obscenity" may be defined as meaning something
offensive to chastify, decency, or delicacy. "Indeceny" is an act against behavior and a
just delicacy. The test ordinarily followed by the courts in determining whether a
particular publication or other thing is obscene within the meaning of the statutes, is
whether the tendency of the matter charged as obscene, is to deprave or corrupt those
whose minds are open to such immoral influences and into whose hands a publication or
other article charged as being obscene may fall. Another test of obscenity is that which
shocks the ordinary and common sense of men as an indecency, (29 Cyc., 1315; 8 R. C.
L., 312.)

The Philippine statute does not attempt to define obscene or indecent pictures, writings,
papers, or books. But the words "obscene or indecent" are themselves descriptive. They
are words in common used and every person of average intelligence understand their
meaning. Indeed, beyond the evidence furnished by the pictures themselves, there is but
little scope for proof bearing on the issue of obscenity or indecency. Whether a picture is
obscene or indecent must depend upon the circumstances of the case. (People vs. Muller
[1884], 96 N. Y., 408; 48 Am. Rep., 635.)

Considerable light can be thrown on the subject by turning to the Federal Laws prohibiting
the use of the mails for obscene matter and prohibiting the importation into the Philippine
Islands of articles, etc., of obscene or indecent character. (U. S. Rev. Stat., art. 3893; 36
stat. at L., 135; 7 Fed. Stat. Ann., 1194, sec. 3[b].)

"Obscene," as used in the Federal Statutes making it a criminal offense to place in the
mails any obscene, lewd, or lascivious publication, according to the united States
Supreme Court and lesser Federal courts, signifies that form of immorality which has
relation to sexual impurity, and has the same meaning as is given at common law in
prosecutions for obscene libel. (Swearingen vs. U. S. [1896], 161 U. S., 446; U. S. vs.
Males [1892], 51 Fed., 41; 6 Words and Phrases, 4888, 4889.)

The case of United States vs. Harmon ([189], 45 Fed., 414), grew out of an indictment
for despositing an obscene publication in a United States post-office in violator of the
Postal Law. Judge Philips said:

The statute does not undertake to define the meaning of the terms "obscene," etc.,
further than may be implied by the succeeding phrase, "or other publication of an
indecent character." On the well-organized canon of construction these words are
presumed to have been employed by the law-maker in their ordinary acceptation and
use.

As they cannot be said to have acquired any technical significance as applied to

some particular matter, calling, or profession, but are terms of popular use, the
court might perhaps with propriety leave their import to the presumed intelligence

168
 of the jury. A standard dictionary says that "obscene" mean "offensive to chastity
and decency; expressing or presenting to the mind or view something which
delicacy, purity, and decency forbid to be exposed." This mere dictionary definition
may be extended or amplified by the courts in actual practice, preserving,
however, its essential though, and having always due regard to the popular and
proper sense in which the legislature employed the term. Chief Justice Cockburn,
in Rex vs. Hicklin (L. R. 3 Q. B., 360), said: "The test of obscenity is this: Where
the tendency of the matter charged as obscene is to deprave and corrupt those
whose minds are open to such immoral influences, and into whose hands a
publication of this sort may fall;" and where "it who suggest to the minds of the
young of either sex, or even to persons of more advanced years, thoughts of the
most impure and libidinous character." So, also, it has been held that a book is
obscene which is offensive to decency or chastity, which is immodest, which is
indelicate, impure, causing lewd thoughts of an immoral tendency." U. S. vs.
Bennet, 16 Blatchf., 338. Judge Thayer, in U. S. vs. Clarke, 38 Fed. Rep., 732,
observed:

"The word "obscene" ordinarily means something which is offensive to

chastity; something that is foul or filthy, and for that reason is offensive to
pure-minded persons. That is the meaning of the word in the concrete; but
when used, as in the statute, to describe the character of a book, pamphlet,
or paper, it means containing immodest and indecent matter, the reading
whereof would have a tendency to deprave and corrupt the minds of those
into whose hands the publication might fall whose minds are open to such
immoral influences."

Laws of this character are made for society in the aggregate, and not in particular.
So, while there may be individuals and societies of men and women of peculiar
motions are idiosyncrasies, whose moral sense would neither be depraved nor
offended by the publication now under consideration, yet the exceptional
sensibility, or want of sensibility, of such cannot be allowed as a standard by which
its obscenity or indecency is to be tested. Rather is the test, what is the judgment
of the aggregate sense of the community reached by it? What is its probable,
reasonable effect on the sense of decency, purity, and chastity of society,
extending to the family, made up of men and women, young boys and girls, — the
family, which is the common nursery of mankind, the foundation rock upon which
the state reposes?

. . . To the pure all things are pure, is too poetical for the actualities of practical
life. There is in the popular conception and heart such a thing as modesty. It was
born in the Garden of Eden. After Adam and Eve ate of the fruit of the tree of
knowledge they passed from the condition of perfectibility which some people
nowadays aspire to, and, their eyes being opened, they discerned that there was
both good and evil; "and they knew that they were naked; and they sewed fig
leaves together, and made themselves aprons." From that day to this civilized man
has carried with him the sense of shame, — the feeling that there were some
things on which the eye — the mind — should not look; and where men and
women become so depraved by the use, or so insensate from perverted education,
that they will not evil their eyes, nor hold their tongues, the government should
perform the office for them in protection of the social compact and the body politic.

As above intimated, the Federal statue prohibits the importation or shipment into the
Philippine Islands of the following: "Articles, books, pamphlets, printed matter,
manuscripts, typewritten matter, paintings, illustrations, figures or objects of obscene or

169
indecent character or subversive of public order." There are, however, in the record,
copies of reputable magazines which circulate freely thruout the United States and other
countries, and which are admitted into Philippines without question, containing
illustrations identical in nature to those forming the basis of the prosecution at bar.
Publications of the Philippine Government have also been offered in evidence such as
Barton's "Ifugao Law," the "Philippine Journal of Science" for October, 1906, and the
Reports of the Philippine Commission for 1903, 1912, and 1913, in which are found
illustrations either exactly the same or nearly akin to those which are now impugned.

It appears therefore that a national standard has been set up by the Congress of the
United States. Tested by that standard, it would be extremely doubtful if the pictures
here challenged would be held obscene or indecent by any state of Federal court. It would
be particularly unwise to sanction a different type of censorship in the Philippines that in
the United States, or for that matter in the rest of the world.

The pictures in question merely depict persons as they actually live, without attempted
presentation of persons in unusual postures or dress. The aggregate judgment of the
Philippine community, the moral sense of all the people in the Philippines, would not be
shocked by photographs of this type. We are convicted that the post-card pictures in this
case cannot be characterized as offensive to chastity, or foul, or filthy.

We readily understand the laudable motives which moved the Government to initiate this
prosecution. We fully appreciate the sentiments of colleagues who take a different view
of the case. We would be the last to offend the sensibilities of the Filipino people and the
sanction anything which would hold them up to ridicule in the eyes of mankind. But we
emphasize that we are not deciding a question in political theory or in social ethics. We
are dealing with a legal question predicated on a legal fact, and on this question and fact,
we reach the conclusion that there has not been proved a violation of section 12 of the
Libel Law. When other cases predicated on other states of facts are brought to our
attention, we will decide them as they arise.

We seem to recall the statement of counsel that the proprietor of the photographic
concern whom he represents would on his own initiative place suitable and explicit
inscriptions on the pictures so that no one may be misled as to them. Indeed, he might
even go further and out of consideration for the natural sensibilities of his customers,
withdraw from sale certain pictures which can be pointed out to him.

We hold that pictures portraying the inhabitants of the country in native dress and as
they appear and can be seen in the regions in which they live, are not obscene or indecent
within the meaning of the Libel Law. Disagreeing therefore with the appellant on his
technical argument but agreeing with him on his main contention, it becomes our duty
to order the dismissal of the information. 1awph!l.net

Judgment is reversed, the information is dismissed, and the defendant-appellant is

acquitted with all costs de oficio. So ordered.

170
G.R. No. 159751 December 6, 2006

GAUDENCIO E. FERNANDO and RUDY ESTORNINOS, petitioners,

vs.
COURT OF APPEALS, respondent.

DECISION

QUISUMBING, J.:

This petition for review on certiorari assails the Decision1 dated March 21, 2003 and the
Resolution dated September 2, 2003, of the Court of Appeals in CA-G.R. CR No. 25796,
which affirmed the Decision of the Regional Trial Court of Manila (RTC), Branch 21, in
Criminal Case No. 99-176582.

The RTC convicted Gaudencio E. Fernando and Rudy Estorninos for violation of Article
2012 of the Revised Penal Code, as amended by Presidential Decree Nos. 960 and 969,
and sentenced each to imprisonment of four (4) years and one (1) day to six (6) years
of prision correccional, and to pay the fine of P6,000 and cost of suit.

The facts as culled from the records are as follows.

Acting on reports of sale and distribution of pornographic materials, officers of the

Philippine National Police Criminal Investigation and Detection Group in the National
Capital Region (PNP-CIDG NCR) conducted police surveillance on the store bearing the
name of Gaudencio E. Fernando Music Fair (Music Fair). On May 5, 1999, Judge Perfecto
Laguio of the Regional Trial Court of Manila, Branch 19, issued Search Warrant No. 99-
1216 for violation of Article 201 of the Revised Penal Code against petitioner Gaudencio
E. Fernando and a certain Warren Tingchuy. The warrant ordered the search of
Gaudencio E. Fernando Music Fair at 564 Quezon Blvd., corner Zigay Street, Quiapo,
Manila, and the seizure of the following items:

a. Copies of New Rave Magazines with nude obscene pictures;

b. Copies of IOU Penthouse Magazine with nude obscene pictures;

c. Copies of Hustler International Magazine with nude obscene pictures; and

d. Copies of VHS tapes containing pornographic shows.3

On the same day, police officers of the PNP-CIDG NCR served the warrant on Rudy
Estorninos, who, according to the prosecution, introduced himself as the store attendant
of Music Fair. The police searched the premises and confiscated twenty-five (25) VHS
tapes and ten (10) different magazines, which they deemed pornographic.

On September 13, 1999, petitioners with Warren Tingchuy, were charged in an

Information which reads as follows:

That on or about May 5, 1999, in the City of Manila, Philippines, the said accused,
did then and there willfully, unlawfully, feloniously, publicly and jointly exhibit
indecent or immoral acts, scenes or shows at Music Fair, located at 564 Quezon
Blvd., corner Zigay [S]t., Quiapo[,] this City[,] by then and there selling and
exhibiting obscene copies of x-rated VHS Tapes, lewd films depicting men and
women having sexual intercourse[,] lewd photographs of nude men and women

171
 in explicating (sic) positions which acts serve no other purpose but to satisfy the
market for lust or pornography to public view.

Contrary to law.4

When arraigned, petitioners and Tingchuy pleaded not guilty to the offense charged.
Thereafter, trial ensued.

The prosecution offered the confiscated materials in evidence and presented the following
witnesses: Police Inspector Rodolfo L. Tababan, SPO4 Rolando Buenaventura and
Barangay Chairperson Socorro Lipana, who were all present during the raid. After the
prosecution presented its evidence, the counsel for the accused moved for leave of court
to file a demurrer to evidence, which the court granted. On October 5, 2000, the RTC
however denied the demurrer to evidence and scheduled the reception of evidence for
the accused. A motion for reconsideration was likewise denied.

Thereafter, the accused waived their right to present evidence and instead submitted the
case for decision.5

The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but convicted herein
petitioners as follows:

WHEREFORE, premises considered, the Court finds accused GAUDENCIO

FERNANDO and RUDY ESTORNINOS GUILTY beyond reasonable doubt of the
crime charged and are hereby sentenced to suffer the indeterminate penalty of
FOUR (4) YEARS and ONE (1) DAY as minimum to SIX (6) YEARS of prision
correccional as maximum, to pay fine of P6,000.00 each and to pay the cost.

For failure of the prosecution to prove the guilt of accused WARREN TINGCHUY
beyond reasonable doubt, he is hereby ACQUITTED of the crime charged.

The VHS tapes and the nine (9) magazines utilized as evidence in this case are
hereby confiscated in favor of the government.

SO ORDERED.6

Petitioners appealed to the Court of Appeals. But the appellate courtlatter affirmed in
toto the decision of the trial court, as follows,

WHEREFORE, finding no reversible error on the part of the trial court, the decision
appealed from is AFFIRMED IN TOTO.

Costs against accused-appellants.

SO ORDERED.7

Hence the instant petition assigning the following errors:

I. Respondent court erred in convicting petitioner Fernando even if he was not

present at the time of the raid

II. Respondent erred in convicting petitioner Estorninos who was not doing
anything illegal at the time of the raid.8

172
Simply, the issue in this case is whether the appellate court erred in affirming the
petitioners’ conviction.

Petitioners contend that the prosecution failed to prove that at the time of the search,
they were selling pornographic materials. Fernando contends that since he was not
charged as the owner of an establishment selling obscene materials, the prosecution must
prove that he was present during the raid and that he was selling the said materials.
Moreover, he contends that the appellate court’s reason for convicting him, on a
presumption of continuing ownership shown by an expired mayor’s permit, has no
sufficient basis since the prosecution failed to prove his ownership of the establishment.
Estorninos, on the other hand, insists that he was not an attendant in Music Fair, nor did
he introduce himself so.9

The Solicitor General counters that owners of establishments selling obscene publications
are expressly held liable under Article 201, and petitioner Fernando’s ownership was
sufficiently proven. As the owner, according to the Solicitor General, Fernando was
naturally a seller of the prohibited materials and liable under the Information. The Solicitor
General also maintains that Estorninos was identified by Barangay Chairperson Socorro
Lipana as the store attendant, thus he was likewise liable.10

At the outset, we note that the trial court gave petitionersthem the opportunity to adduce
present their evidence to disprove refute the prosecution’s evidence.11 . Instead, they
waived their right to present evidence and opted to submitted the case for
decision.a1 12 The trial court therefore resolved the case on the basis of prosecution’s
evidence against the petitioners.

As obscenity is an unprotected speech which the State has the right to regulate, the State
in pursuing its mandate to protect, as parens patriae, the public from obscene, immoral
and indecent materials must justify the regulation or limitation.

One such regulation is Article 201 of the Revised Penal Code. To be held liable, the
prosecution must prove that (a) the materials, publication, picture or literature are
obscene; and (b) the offender sold, exhibited, published or gave away such
materials.13 Necessarily, that the confiscated materials are obscene must be proved.

Almost a century has passed since the Court first attempted to define obscenity in People
v. Kottinger.14 There the Court defined obscenity as something which is offensive to
chastity, decency or delicacy. The test to determine the existence of obscenity is, whether
the tendency of the matter charged as obscene, is to deprave or corrupt those whose
minds are open to such immoral influences and into whose hands a publication or other
article charged as being obscene may fall.15 Another test according to Kottinger is "that
which shocks the ordinary and common sense of men as an
indecency." But, Kottinger hastened to say that whether a picture is obscene or
16

indecent must depend upon the circumstances of the case, and that ultimately, the
question is to be decided by the judgment of the aggregate sense of the community
reached by it.17

Thereafter, the Court in People v. Go Pin18 and People v. Padan y Alova, et al.,19 involving
a prosecution under Article 201 of the Revised Penal Code, laid the tests which did little
to clearly draw the fine lines of obscenity.

In People v. Go Pin, the Court said:

173
 If such pictures, sculptures and paintings are shown in art exhibits and art galleries
for the cause of art, to be viewed and appreciated by people interested in art,
there would be no offense committed. However, the pictures here in question were
used not exactly for art’s sake but rather for commercial purposes. In other words,
the supposed artistic qualities of said pictures were being commercialized so that
the cause of art was of secondary or minor importance. Gain and profit would
appear to have been the main, if not the exclusive consideration in their exhibition;
and it would not be surprising if the persons who went to see those pictures and
paid entrance fees for the privilege of doing so, were not exactly artists and
persons interested in art and who generally go to art exhibitions and galleries to
satisfy and improve their artistic tastes, but rather people desirous of satisfying
their morbid curiosity and taste, and lust, and for love [of] excitement, including
the youth who because of their immaturity are not in a position to resist and shield
themselves from the ill and perverting effects of these pictures.20

People v. Padan y Alova, et al. in a way reaffirmed the standards set in Go Pin but with
its own test of "redeeming feature." The Court therein said that:

[A]n actual exhibition of the sexual act, preceded by acts of lasciviousness, can
have no redeeming feature. In it, there is no room for art. One can see nothing in
it but clear and unmitigated obscenity, indecency, and an offense to public morals,
inspiring and causing as it does, nothing but lust and lewdness, and exerting a
corrupting influence specially on the youth of the land.21

Notably, the Court in the later case of Gonzales v. Kalaw Katigbak,22 involving motion
pictures, still applied the "contemporary community standards" of Kottinger but departed
from the rulings of Kottinger, Go Pin and Padan y Alova in that the Court measures
obscenity in terms of the "dominant theme" of the material taken as a "whole" rather
than in isolated passages.

Later, in Pita v. Court of Appeals, concerning alleged pornographic publications, the Court
recognized that Kottinger failed to afford a conclusive definition of obscenity, and that
both Go Pin and Padan y Alova raised more questions than answers such as, whether the
absence or presence of artists and persons interested in art and who generally go to art
exhibitions and galleries to satisfy and improve their artistic tastes, determine what art
is; or that if they find inspiration in the exhibitions, whether such exhibitions cease to be
obscene.23 Go Pin and Padan y Alova gave too much latitude for judicial arbitrament,
which has permitted ad lib of ideas and "two-cents worths" among judges as to what is
obscene or what is art.24

The Court in Pita also emphasized the difficulty of the question and pointed out how hazy
jurisprudence is on obscenity and how jurisprudence actually failed to settle questions on
the matter. Significantly, the dynamism of human civilization does not help at all. It is
evident that individual tastes develop, adapt to wide-ranging influences, and keep in step
with the rapid advance of civilization.25 It seems futile at this point to formulate a perfect
definition of obscenity that shall apply in all cases.

There is no perfect definition of "obscenity" but the latest word is that of Miller v.
California which established basic guidelines, to wit: (a) whether to the average person,
applying contemporary standards would find the work, taken as a whole, appeals to the
prurient interest; (b) whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law; and (c) whether the work,
taken as a whole, lacks serious literary, artistic, political, or scientific value.26 But, it would
be a serious misreading of Miller to conclude that the trier of facts has the unbridled

174
discretion in determining what is "patently offensive."27 No one will be subject to
prosecution for the sale or exposure of obscene materials unless these materials depict
or describe patently offensive "hard core" sexual conduct.28 Examples included (a)
patently offensive representations or descriptions of ultimate sexual acts, normal or
perverted, actual or simulated; and (b) patently offensive representations or descriptions
of masturbation, excretory functions, and lewd exhibition of the genitals.29 What remains
clear is that obscenity is an issue proper for judicial determination and should be treated
on a case to case basis and on the judge’s sound discretion.

In this case, the trial court found the confiscated materials obscene and the Court of
Appeals affirmed such findings. The trial court in ruling that the confiscated materials are
obscene, reasoned as follows:

Are the magazines and VHS tapes confiscated by the raiding team obscene or
offensive to morals? . . .

Pictures of men and women in the nude doing the sexual act appearing in the nine
(9) confiscated magazines namely Dalaga, Penthouse, Swank, Erotic, Rave,
Playhouse, Gallery and two (2) issues of QUI are offensive to morals and are made
and shown not for the sake of art but rather for commercial purposes, that is gain
and profit as the exclusive consideration in their exhibition. The pictures in the
magazine exhibited indecent and immoral scenes and acts…The exhibition of the
sexual act in their magazines is but a clear and unmitigated obscenity, indecency
and an offense to public morals, inspiring…lust and lewdness, exerting a corrupting
influence especially on the youth. (Citations omitted)

The VHS tapes also [exhibit] nude men and women doing the sexual intercourse.
The tape entitled "Kahit sa Pangarap Lang" with Myra Manibog as the actress
shows the naked body of the actress. The tape exhibited indecent and immoral
scenes and acts. Her dancing movements excited the sexual instinct of her male
audience. The motive may be innocent, but the performance was revolting and
shocking to good minds...

In one (1) case the Supreme Court ruled:

Since the persons who went to see those pictures and paid entrance fees
were usually not artists or persons interested in art to satisfy and inspire
their artistic tastes but persons who are desirous of satisfying their morbid
curiosity, taste and lust and for [love] of excitement, including the youth
who because of their immaturity are not in a position to resist and shield
themselves from the ill and perverting effects of the pictures, the display of
such pictures for commercial purposes is a violation of Art. 201. If those
pictures were shown in art exhibits and art galleries for the cause of art, to
be viewed and appreciated by people interested in art, there would be no
offense committed (People vs. Go Pin, 97 Phil 418).

[B]ut this is not so in this case.30

Findings of fact of the Court of Appeals affirming that of the trial court are accorded great
respect, even by this Court, unless such findings are patently unsupported by the
evidence on record or the judgment itself is based on misapprehension of facts.31 In this
case, petitioners neither presented contrary evidence nor questioned the trial court’s
findings. There is also no showing that the trial court, in finding the materials obscene,
was arbitrary.

175
Did petitioners participate in the distribution and exhibition of obscene materials?

We emphasize that mere possession of obscene materials, without intention to sell,

exhibit, or give them away, is not punishable under Article 201, considering the purpose
of the law is to prohibit the dissemination of obscene materials to the public. The offense
in any of the forms under Article 201 is committed only when there is publicity.32The law
does not require that a person be caught in the act of selling, giving away or exhibiting
obscene materials to be liable, for as long as the said materials are offered for sale,
displayed or exhibited to the public. In the present case, we find that petitioners are
engaged in selling and exhibiting obscene materials.

Notably, the subject premises of the search warrant was the Gaudencio E. Fernando
Music Fair, named after petitioner Fernando.33 The mayor’s permit was under his name.
Even his bail bond shows that Hhe lives in the same place.34 Moreover, the mayor’s permit
dated August 8, 1996, shows that he is the owner/operator of the store. 35 While the
mayor’s permit had already expired, it does not negate the fact that Fernando owned and
operated the establishment. It would be absurd to make his failure to renew his business
permit and illegal operation a shield from prosecution of an unlawful act. Furthermore,
when he preferred not to present contrary evidence, the things which he possessed were
presumptively his.36

Petitioner Estorninos is likewise liable as the store attendant actively engaged in selling
and exhibiting the obscene materials. Prosecution witness Police Inspector Tababan, who
led the PNP-CIDG NCR that conducted the search, identified him as the store attendant
upon whom the search warrant was served.37 Tababan had no motive for testifying falsely
against Estorninos and we uphold the presumption of regularity in the performance of his
duties. Lastly, this Court accords great respect to and treats with finality the findings of
the trial court on the matter of credibility of witnesses, absent any palpable error or
arbitrariness in their findings.38 In our view, no reversible error was committed by the
appellate court as well as the trial court in finding the herein petitioners guilty as charged.

WHEREFORE, the Decision dated March 21, 2003 and the Resolution dated September 2,
2003, of the Court of Appeals affirming the Decision of the Regional Trial Court of Manila,
Branch 21, in Criminal Case No. 99-176582 are hereby AFFIRMED.

SO ORDERED.

176
THIRD DIVISION

FREDRIK FELIX P. NOGALES, G.R. No. 191080

GIANCARLO P. NOGALES,
ROGELIO P. NOGALES, MELINDA
P. NOGALES, PRISCILA B.
CABRERA, PHIL-PACIFIC Present:
OUTSOURCING SERVICES
CORPORATION and 3 X 8
INTERNET, represented by its
proprietorMICHAEL VELASCO,
CHRISTOPHER A. NOGALES, JR., J., Chairperson,

Petitioners, PERALTA,

ABAD,

PEREZ,* and

- versus - MENDOZA, JJ.

PEOPLE OF
THE PHILIPPINES and PRESIDING
JUDGE TITA BUGHAO
ALISUAG, Branch 1, Regional Trial
Court, Manila,

Respondents.

Promulgated:

November 21, 2011

177
x --------------------------------------------------------------------------------------- x

DECISION

MENDOZA, J.:

At bench is a petition for certiorari under Rule 65 of the Rules of Court filed by
petitioners Fredrik Felix P. Nogales, Giancarlo P. Nogales, Rogelio P. Nogales, Melinda P.
Nogales, Priscila B. Cabrera, Phil-Pacific Outsourcing Services Corp. and 3 x 8 Internet,
represented by its proprietor Michael Christopher A. Nogales (petitioners) against
respondents People of the Philippines and Presiding Judge Tita Bughao Alisuag (Judge
Alisuag) of Branch 1, Regional Trial Court, Manila (RTC).

The petition challenges the August 19, 2009 Decision[1] of the Court of
Appeals (CA), in CA-G.R. SP No. 105968, which affirmed with modification the August 6,
2008 Order[2] of Judge Alisuag of the RTC; and its January 25, 2010 Resolution,[3] which
denied petitioners motion for reconsideration.

THE FACTS:

On July 30, 2007, Special Investigator Garry Meez (SI Meez) of the National
Bureau of Investigation (NBI) applied for a search warrant before the RTC to authorize
him and his fellow NBI agents or any peace officer to search the premises of petitioner
Phil-Pacific Outsourcing Services Corporation (Phil-Pacific) and to seize/confiscate and
take into custody the items/articles/objects enumerated in his application. The sworn
application, docketed as Search Warrant Proceedings No. 07-11685,[4] partially reads:
SWORN APPLICATION FOR A SEARCH WARRANT

xxxxxxxxx

That he has been informed, verily believes and personally verified that JUN
NICOLAS, LOREN NUESTRA, FREDRICK FELIX P. NOGALES, MELINDA P.
NOGALES, PRISCILA B. CABRERA and/or occupants PHIL-
PACIFIC OUTSOURCING SERVICES CORP. located at Mezzanine Flr.,
Glorietta De Manila Building, 776 San Sebastian St., University Belt,
Manila have in their possession/control and are concealed in the above-

178
 mentioned premises various material[s] used in the creation and selling of
pornographic internet website, to wit:

1. Computer Sets
2. Television Sets
3. Internet Servers
4. Fax Machines
5. Pornographic Films and other Pornographic Materials
6. Web Cameras
7. Telephone Sets
8. Photocopying Machines
9. List of clients and
10. Other tools and materials used or intended to be used in the
commission of the crime.

The application for Search Warrant No. 07-11685 of SI Meez was acted upon by
Judge Alisuag. On August 3, 2007, a hearing was conducted wherein Judge Alisuag
personally examined SI Meez and two other witnesses in the form of searching questions
and their answers thereto were duly recorded by the court. The witnesses affidavits were
also submitted and marked as supporting evidence to the application for the issuance of
a search warrant. On the same date of the hearing, the application was granted and the
corresponding Search Warrant,[5] issued. The said search warrant is quoted as follows:

SEARCH WARRANT

TO: ANY PEACE OFFICER

It appearing to the satisfaction of the undersigned, after examining under

oath applicant SI III GARY I. MEEZ of the Special Task Force Division,
National Bureau of Investigation, and his witnesses, ISABEL CORTEZ y
ANDRADE of 167 5th Avenue, Caloocan City and MARK ANTHONY C.
SEBASTIAN of No. 32 Arlegui Street, San Miguel Quiapo, Manila that there
are good reasons to believe that VIOLATION OF ARTICLE 201 OF THE

179
REVISED PENAL CODE, AS AMENDED IN RELATION TO R.A. 8792
(ELECTRONIC COMMERCE ACT) has been committed and that JUN
NICOLAS, LOREN NUESTRA, FREDERICK (sic) FELIX P. NOGALES, GIAN
CARLO P. NOGALES, ROGELIO P. NOGALES, MELINDA P. NOGALES,
PRISCILA B. CABRERA and/or OCCUPANTS OF PHIL. PACIFIC
OUTSOURCING SERVICES CORPORATION located at Mezzanine Floor,
Glorietta De Manila Building, 776 San Sebastian St., University Belt, Manila,
have in their possession and control of the following:

1. Computer Sets
2. Television Sets
3. Internet Servers
4. Fax Machines
5. Pornographic Films and other Pornographic Materials
6. Web Cameras
7. Telephone Sets
8. Photocopying Machines
9. List of clients and
10. Other tools and materials used or intended to be used in the
commission of the crime.

You are hereby commanded to make an immediate search any time of the
DAY of the premises mentioned above which is Mezzanine Floor, Glorietta De
Manila Building, 776 San Sebastian St., University Belt, Manila and take possession
of the following:

1. Computer Sets
2. Television Sets
3. Internet Servers
4. Fax Machines
5. Pornographic Films and other Pornographic Materials
6. Web Cameras
7. Telephone Sets
8. Photocopying Machines
9. List of clients and

180
 10. Other tools and materials used or intended to be used in the
commission of the crime.

and bring to this Court the said properties and persons to be dealt with as the law
may direct. You are further directed to submit a return within ten (10) days from
today.

On August 8, 2007, SI Meez submitted a Return of Search Warrant [6] to the RTC
manifesting that in the morning of August 7, 2007, the operatives of the Special Task
Force of the NBI implemented the said search warrant in an orderly and peaceful manner
in the presence of the occupants of the described premises and that the seized items
were properly inventoried in the Receipt/Inventory of Property Seized. The items seized
were the following:

1. Ten (10) units of Central Processing Units (CPUs);

2. Ten (10) units of monitors;
3. Ten (10) units of keyboard;
4. Ten (10) units of mouse; and
5. Ten (10) units of AVRs.

The RTC then issued an order granting the prayer of SI Meez to keep the seized
items in the NBI evidence room and under his custody with the undertaking to make said
confiscated items available whenever the court would require them.

Aggrieved by the issuance of the said order, the named persons in the search
warrant filed a Motion to Quash Search Warrant and Return Seized Properties.[7] In the
said motion, petitioners cited the following grounds:

A. Respondents do not have programmers making, designing,

maintaining, editing, storing, circulating, distributing, or selling said
websites or the contents thereof;

181
 B. Respondents do not have any website servers;

C. Respondents do not own the websites imputed to them, which are

actually located outside the Philippines, in foreign countries, and are owned
by foreign companies in those countries;

D. The testimony of the witnesses presented by the NBI are

contradicted by the facts of the case as established by documentary
evidence;

E. The NBI withheld verifiable information from the Honorable Court

and took advantage of the limited knowledge of courts in general in order
to obtain the search warrant for their personal intentions;

F. The NBI raided the wrong establishment; and

G. The element of publicity is absent.

On December 26, 2007, the RTC denied the motion[8] stating, among others, that:

1.) It cannot be said that publicity is not present. The Phil-Pacific

Outsourcing Services Corp., is actually persuading its clients, thru its agents
(call center agents), to log-on to the pornographic sites listed in its web
page. In that manner, Phil-Pacific Outsourcing Services Corporation is
advertising these pornographic web sites, and such advertisement is a form
of publicity.

2.) Even if some of the listed items intended to be seized were not
recovered from the place where the search was made, it does not mean
that there was no really crime being committed. As in fact, pornographic
materials were found in some of the computers which were seized.

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 3.) In the same way that the names listed in the Search Warrant
were not arrested or not in the premises subject of the search, it does not
mean that there are no such persons existing nor there is no crime being
committed.

4.) As a rule, Search Warrant may be issued upon existence of

probable cause. Probable cause for a search is defined as such fact and
circumstances which would lead a reasonable discreet and prudent man to
believe that an offense has been committed and that the objects sought in
connection with the offense are in the place sought to be reached. Hence,
in implementing a Search Warrant, what matters most is the presence of
the items ought to be seized in the place to be searched, even in the
absence of the authors of the crime committed.

5.) The Search Warrant was issued in accordance with Secs. 3 to 6,

Rule 126 of the Revised Rules of Court. Search Warrant may be quashed or
invalidated if there is an impropriety in its issuance or irregularity in its
enforcement. Absent such impropriety or irregularity, quashal is not
warranted.

Undaunted, petitioners moved for the reconsideration of the said order on the
following grounds: (a) the trial court erred in holding that there was no impropriety or
irregularity in the issuance of the search warrant; (b) the trial court erred in holding that
there was no irregularity in its enforcement; and (c) the trial court erred in holding that
publicity was present.

On February 19, 2008, petitioners requested the RTC to issue a subpoena duces
tecum ad testificandum to SI Meez and the witnesses Isabel Cortez and Mark Anthony
Sebastian directing them to appear, bring the records evidencing publicity of
pornographic materials and testify in the hearing set on March 7, 2008.

Meanwhile, in a resolution dated February 21, 2008,[9] the 3rd Assistant City Prosecutor
recommended that the complaint for violation of Article 201[10] of the Revised Penal
Code (RPC) against petitioners be dismissed due to insufficiency of evidence and the
same was approved by the City Prosecutor. Hence, on May 6, 2008, petitioners filed a
Supplemental Motion to Release Seized Properties[11] manifesting that the complaint
against them was dismissed, and that, for said reason, the State had no more use of the
seized properties.

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 On August 6, 2008, the RTC issued the assailed second order,[12] which denied the
motion for reconsideration filed by petitioners. The RTC, however, partially granted the
prayer of petitioners. Judge Alisuag wrote:
Be it noted that the proceedings held by this Court when it heard the
Application for Search Warrant by NBI Special Investigator Meez is very
much different [from] the case resolved by the Office of the City
Prosecutor. The case before the Office of the City Prosecutor, while the
same [was] dismissed cannot be the ground to release the seized properties
subject of the Search Warrant issued by the Court. When the Court issued
the Search Warrant, indeed, it found probable cause in the issuance of the
same, which is the only reason wherein Search Warrant may be issued.

On the case heard by the Office of the City Prosecutor, the Resolution
has its own ground and reason to dismiss it.

xxxxxxxxx

That the subject of the Search Warrant which is now under the
custody of the NBI [was] made subject of the case and as well as the
witnesses for that case which was resolved by the Office of the City
Prosecutor is of no moment.

WHEREFORE, the Motion for Reconsideration is Denied.

The Motion to Release Seized Properties is partially granted.

Accordingly therefore, let the computer sets be hereby returned to

the respondents. The CPU and all the rest of the softwares containing
obscene materials which were seized during the implementation of the valid
Search Warrant are hereby retained in the possession of the National
Bureau of Investigation thru applicant Special Investigator Garry J. Meez.

SO ORDERED.[13]

Not in conformity, petitioners sought relief with the CA via a special civil action for
certiorari alleging that Judge Alisuag committed grave abuse of discretion amounting to
lack or excess of jurisdiction when she partially granted the motion of petitioners for the

184
release of the seized properties such that only the monitor sets were released but the
CPUs and the softwares were retained under the custody of the NBI.

The CA affirmed with modification the assailed August 6, 2008 Order of the RTC. Thus:

WHEREFORE, in view of all the foregoing premises, the assailed

order issued by the respondent Judge on August 6, 2008 is AFFIRMED with
the MODIFICATIONthat the CPUs and softwares which were ordered to be
retained by the NBI through SI Meez shall be released in favor of the
petitioners herein with the condition that the hard disk be removed from
the CPUs and be destroyed. If the softwares are determined to be
unlicensed or pirated copies, they shall be destroyed in the manner allowed
by law.

SO ORDERED.[14] [Underscoring supplied]

The CA explained:

1.) It is undisputed that the seized computer units contained obscene

materials or pornographic files. The hard disk technically contains them but
these files are susceptible to modification or limitation of status; thus, they
can be erased or permanently deleted from the storage disk. In this peculiar
case, the obscene materials or pornographic files are stored in such a way
that they can be erased or deleted by formatting the hard disk without the
necessity of destroying or burning the disk that contains them. By structure,
the hard drive contains the hard disk and the hard drive can be found in
the CPU. These obscene materials or pornographic files are only stored files
of the CPU and do not permanently form part of the CPU which would call
for the destruction or much less retention of the same.

2.) Notwithstanding, with the advancement of technology, there are

means developed to retrieve files from a formatted hard disk, thus, the
removal of the hard disk from the CPU is the reliable manner to permanently
remove the obscene or pornographic files. With regard to the softwares
confiscated and also ordered to be retained by the NBI, nothing in the
evidence presented by the respondents shows that these softwares are
pornographic tools or program customized just for creating obscene
materials. There are softwares which may be used for licit activities like
photograph enhancing or video editing and there are thousands of
softwares that have legitimate uses. It would be different if the confiscated

185
 softwares are pirated softwares contained in compact discs or the pre-
installed softwares have no license or not registered; then, the NBI may
retain them. In the particular circumstances of this case, the return of the
CPUs and softwares would better serve the purposes of justice and
expediency.

3.) The responsibilities of the magistrate do not end with the

granting of the warrant but extend to the custody of the articles seized. In
exercising custody over these articles, the property rights of the owner
should be balanced with the social need to preserve evidence which will be
used in the prosecution of a case. In the instant case, the complaint had
been dismissed by the prosecutor for insufficiency of evidence. Thus, the
court had been left with the custody of highly depreciable merchandise.
More importantly, these highly depreciable articles would have been
superfluous to be retained for the following reasons: (1) it was found by
the prosecutor that there was no sufficient evidence to prove that the
petitioners violated Article 201 of the Revised Penal Code in relation to R.A.
8792 (Electronic Commerce Act); (2) the obscene materials or pornographic
files can be deleted by formatting or removing the hard disk from the CPUs
without destroying the entire CPU; and (3) the petitioners did not dispute
that the files found in the seized items were obscene or pornographic but
the said devices are not obscene or illegal per se. Hence, where the purpose
of presenting as evidence the articles seized is no longer served, there is
no justification for severely curtailing the rights of a person to his property.

Petitioners filed a motion for reconsideration but it was denied in a resolution

dated January 25, 2010.[15]

Undeterred, petitioners filed a petition for certiorari[16] with this Court anchored on the
following:

GROUNDS:

6.1. The decision by the Court of Appeals affirming the decision of

the respondent trial judge constitutes grave abuse of discretion amounting
to lack or excess of jurisdiction, as it violates the constitutional proscription
against confiscation of property without due process of law, and there is no
appeal nor any plain, speedy or adequate remedy in the ordinary course of
law.

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 6.2. Since the case involves pornography accessible in the internet,
this is a case of first impression and current importance.[17] [Emphases
ours]

ISSUE

Whether or not there was grave abuse of discretion on the part of the CA in
ordering the removal and destruction of the hard disks containing the pornographic and
obscene materials.

THE COURTS RULING

Petitioners argue that there is no evidence showing that they were the source of
pornographic printouts presented by the NBI to the RTC or to the City Prosecutor of
Manila in I.S. No. 07H-13530. Since the hard disks in their computers are not
illegal per se unlike shabu, opium, counterfeit money, or pornographic magazines,
said merchandise are lawful as they are being used in the ordinary course of business,
the destruction of which would violate not only procedural, but substantive due
process. [18]

The argument of petitioners is totally misplaced considering the undisputed

fact that the seized computer units contained obscene materials or pornographic files.
Had it been otherwise, then, petitioners argument would have been meritorious as
there could be no basis for destroying the hard disks of petitioners computer units.

While it may be true that the criminal case for violation of Article 201 of the
Revised Penal Code was dismissed as there was no concrete and strong evidence
pointing to them as the direct source of the subject pornographic materials, it cannot
be used as basis to recover the confiscated hard disks. At the risk of being repetitious,
it appears undisputed that the seized computer units belonging to them contained
obscene materials or pornographic files. Clearly, petitioners had no legitimate
expectation of protection of their supposed property rights.

The CA is correct in stating that the removal of the hard disk from the CPU is
a reliable way of permanently removing the obscene or pornographic files.
Significantly, Presidential Decree (PD) No. 969 is explicit. Thus:

187
 Sec. 2. Disposition of the Prohibited Articles. The disposition of the
literature, films, prints, engravings, sculptures, paintings, or other materials
involved in the violation referred to in Section 1 hereof shall be governed
by the following rules:

a. Upon conviction of the offender, to be forfeited in favor of the

government to be destroyed.

b. Where the criminal case against any violator of this decree results
in an acquittal, the obscene/immoral literature, films, prints,
engravings, sculpture, paintings or other materials and other articles
involved in the violation referred to in Section 1 hereof shall
nevertheless be forfeited in favor of the government to
be destroyed, after forfeiture proceedings conducted by the Chief of
Constabulary. [Emphasis and underscoring supplied]

Clearly, the provision directs the forfeiture of all materials involved in violation
of the subject law. The CA was lenient with petitioners in modifying the ruling of the
RTC in that the CPUs and softwares, which were initially ordered to be retained by the
NBI, should be released in their favor with only the hard disk removed from the CPUs
and destroyed. If the softwares are determined to be violative of Article 201 of the
RPC, unlicensed or pirated, they should also be forfeited and destroyed in the manner
allowed by law. The law is clear. Only licensed softwares that can be used for
legitimate purposes should be returned to petitioners.

To stress, P.D. No. 969 mandates the forfeiture and destruction of

pornographic materials involved in the violation of Article 201 of the Revised Penal
Code, even if the accused was acquitted.

Taking into account all the circumstances of this case, the Court holds that the
destruction of the hard disks and the softwares used in any way in the violation of the
subject law addresses the purpose of minimizing if not totally eradicating pornography.
This will serve as a lesson for those engaged in any way in the proliferation of pornography
or obscenity in this country. The Court is not unmindful of the concerns of petitioners but
their supposed property rights must be balanced with the welfare of the public in general.

WHEREFORE, the petition is DENIED. The August 19, 2009 Court of Appeals
Decision is AFFIRMED WITH MODIFICATION in that only the CPUs and those softwares
determined to be licensed and used for legitimate purposes shall be returned in favor of
the petitioners. The hard disk drives containing the pornographic materials and the

188
softwares used in any way in violation of Article 201 of the Revised Penal Code,
unlicensed or pirated shall be forfeited in favor of the Government and destroyed.

SO ORDERED.

ARTICLE 210
SECOND DIVISION

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

RUBIN TAD-Y y BABOR, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

DECISION
CALLEJO, SR., J.:

This is a petition for review of the Decision[1] of the Court of Appeals (CA) in CA-G.R.
CR No. 24162 affirming, on appeal, the Decision[2] of the Regional Trial Court (RTC) of
Bacolod City, Branch 49, in People v. Rubin Tad-y, et al., Criminal Case No. 98-19401.
The RTC ruling had affirmed the decision of the Municipal Trial Court in Cities (MTCC) in
Criminal Case No. 57216 finding the petitioner guilty of direct bribery.

The Antecedents

Engineer Rubin Tad-y, Structural Analyst and Engineer Nestor Velez, Building
Inspector, both of the Office of the City Engineer (OCE), Bacolod City, were charged with
direct bribery under Article 210 of the Revised Penal Code in an Information filed on July
26, 1995 with the MTCC of Bacolod City, docketed as Criminal Case No. 57216. The
accusatory portion of the Information for direct bribery reads:

That on or about the 24th day of July 1995, in the City of Bacolod, Philippines and within
the jurisdiction of this Honorable Court, the herein accused, public officers, being then
engineers at the City Engineers Office, Bacolod City, with corrupt intent and motivated
with pecuniary interest for themselves, did, then and there willfully, unlawfully and
feloniously receive and accept marked money in the amount of Four Thousand
(P4,000.00) Pesos from Julio Encabo, electrical contractor and duly-authorized
representative of Mildred Wong, offended party and owner of Atrium Building located at
Gonzaga Street, Bacolod City, in an entrapment operation conducted by the PNP Criminal
Investigation Service Command at Andres Bakeshop, Bacolod City, which amount was
earlier solicited by said accused from the offended party in exchange for the
signing/approval of permit for building occupancy of the building owned by the offended
party, the signing/approval of said building permit is in connection with the performance
of the official duties of said accused as engineers in the Office of the City Engineer,
Bacolod City, in violation of the aforementioned law.

189
Acts contrary to law.[3]

Velez and Tad-y were also charged with violation of Section 3(c) of Republic Act No.
3019[4] in an Information filed with the RTC, docketed as Criminal Case No. 17186. This
case was raffled to Branch 44 of the RTC of Bacolod City.

The Case for the People[5]

The prosecution presented Julio Encabo, a licensed master electrician and electrical
contractor, who testified that Mildred Wong contracted his services for the construction
of her 6-storey Atrium building along Gonzaga Street, in front of the Central Market in
Bacolod City.[6] On February 16, 1994, the Office of the City Engineer/Building Official
issued Building Permit No. 0694509798[7] for the construction of the building. The
construction of the building was finished by April 25, 1995.[8]
Between 1:30 and 2:00 p.m. of even date, Encabo arrived at the OCE to arrange the
conduct of final building inspections, and, thereafter, the signing of the corresponding
certificates. Rene Cornel, Jose Sotecinal, Ephraim Hechanova, Jose Mari Sales, Mateo
Tuvida and Rubin Tad-y, were the OCE officers-in-charge of the various aspects[9] of the
building construction. If all went well, the Building Official would then sign the certificate
of occupancy, conformably with the provisions of the National Building Code (Presidential
Decree No. 1096).
Encabo had the certificates of final inspection and occupancy form typed by an OCE
secretary. However, Tad-y, Encabos compadre, approached the latter and dissuaded him
from processing the certificates of final inspection and occupancy on the building since
he (Tad-y) was the one responsible for it; also, Mildred Wong still had an unpaid balance
of P4,000.00 for his services. When Encabo told Tad-y that collecting the amount from
Wong would be problematic, Tad-y replied, [Its] up [to] you.
Shortly thereafter, some of the officers at the OCE, including Tad-y and Tuvida,
conducted their final inspection of the building. During the first week of May 1995, Encabo
and Tad-y had an altercation and in his anger, Tad-y squeezed Encabos neck in the
presence of the latters wife.[10] Thus, the relations between Tad-y and Encabo became
strained.
In the meantime, other officers of the OCE made their respective final inspections
during the months of May to June 1995, and signed the respective certificates of final
inspection for the building. Tad-y did not make his final inspection, and refused to do so
unless the money he had demanded was given to him.[11] Encabo even sought the aid of
the City Mayor but did not tell the latter that Tad-y was demanding money because he
did not want to place the latter in a bad light.
Nonetheless, on July 6, 1995, Encabo reported the matter to the Criminal
Investigation Section (CIS) of the Philippine National Police (PNP) in Bacolod City, and
signed a complaint sheet[12] against Tad-y for extortion. Police officer Alexander Muoz
was then ordered to conduct an investigation on the complaint.
Muoz decided to conduct entrapment operations against Tad-y. He asked Encabo to
procure P4,000.00, consisting of forty (40) pieces of P100.00 bills for the
purpose.[13] Encabo complied. Muoz listed the serial numbers of the bills and placed his
initials AM on the right lower corner of each bill.[14] The PNP Crime Laboratory in Bacolod
City applied ultraviolet powder on the bills.[15] The money was placed in a white
envelope,[16] and the envelope was turned over to Encabo for the entrapment.[17] The
police officers and Encabo had agreed that the police officers would position themselves
within the vicinity of the Andres Bakeshop, and after giving the envelope to Tad-y, Encabo

190
would place his eyeglasses in front of his shirt collar to indicate that Tad-y had already
received the money.[18]
After two aborted attempts,[19] Encabo informed Muoz by telephone that he and Tad-
y would inspect the building at about 3:00 p.m. on July 24, 1995, and that Tad-y would
sign the certificate of final inspection afterwards.[20] Police officers Eriberto Castaeda and
Muoz, along with civilian agents, proceeded to Gonzaga Street and positioned themselves
as planned.[21]
Encabo and Tad-y, accompanied by OCE building inspector Engr. Nestor Velez,
arrived at the building at about 5:00 p.m. on July 24, 1995. Encabo brought with him the
envelope[22]containing the forty P100.00 bills and the certificate of final inspection bearing
the signatures of all the other OCE officers concerned, which Tad-y was to sign after the
inspection of the building. Tad-y was then wearing his orange OCE bowling team t-shirt.
Encabo and Tad-y inspected the building together for about ten to twenty minutes. Velez,
on his own, made a separate inspection of the building. After the inspection, Encabo,
Tad-y and Velez agreed to have a snack and proceeded to the Andres Bakeshop at the
ground floor of the Atrium Building along Gonzaga Street.[23] Velez and Tad-y walked side
by side while Encabo followed.[24] By then, Muoz, Castaeda and the other police officers
were already in the vicinity to await Encabos signal.
Inside the bakeshop, Encabo brought out the certificate of final inspection, which
Tad-y forthwith signed.[25] Encabo then gave the envelope containing the forty P100.00
bills to Tad-y. The latter asked Encabo, What is it for? Encabo replied that it was the
money Tad-y had been waiting for.[26] Tad-y opened the envelope and saw its
contents.[27] He asked Encabo if it was dangerous for him to receive the envelope, and
the latter answered that it was not.[28] Instead of putting the envelope in his pocket, Tad-
y handed the same to Velez under the table. Velez asked Tad-y what it was, and Tad-y
told Velez to just keep it.[29] Thereafter, Tad-y and Velez, followed by Encabo, exited from
the bakeshop. Encabo then removed his eyeglasses and placed it on his shirt collar, the
signal that Tad-y had received the money.[30] The police officers then accosted Velez and
Tad-y, and asked the latter where the white envelope was. Tad-y denied that he received
the envelope. Encabo told the police officers that Velez had the envelope.[31] When asked
where the envelope was, Velez brought it out from the right pocket of his pants.[32] Muoz
told Velez to open the envelope and inspected its contents. Velez did as he was told, and
saw that the envelope contained P100.00 bills.[33] Tad-y and Velez were arrested and
brought to the CIS Headquarters, PNP Crime Laboratory.[34] Tad-ys shirt was turned over
by the accosting officers. Castaeda also turned over to the PNP Crime Laboratory the
white envelope and its contents, with a request[35] for the PNP Crime Laboratory to test
Velez and Tad-y for ultraviolet powder and the latters shirt to be tested.[36]
Forensic Chemist Rea Villavicencio conducted the examination and prepared an Initial
Laboratory Report,[37] stating that Rubin B. Tad-y was positive for the presence of yellow
ultraviolet powder on his right arm. Villavicencio, likewise, prepared a sketch[38] depicting
the body of Tad-y, and showing that his right forearm was positive for ultraviolet powder.
On cross-examination, Encabo admitted that Velez was not aware of everything.[39]
Edgar Occea, the Chief of the Inspection Division, later affixed his signature on the
certificate of final inspection bearing Tad-ys signature.[40] The City Building Official
approved and issued the certificate of occupancy on July 27, 1995.[41]

The Case for the Accused Tad-y

Accused Tad-y denied demanding and receiving P4,000.00 from Encabo in

consideration for the conduct of the building inspection, and his signature on the

191
certificate of inspection and the certificate of occupancy. He insists that under P.D. No.
1096, he is not authorized to sign and issue a certificate of occupancy. He testified that
in the afternoon of April 25, 1995, Encabo arrived at the OCE requesting that the
appropriate officials inspect the 6-storey Atrium building preparatory to the issuance of a
certificate of final inspection.[42] The next day, he, Tuvida, Tordesillas, Baja and Danoy
conducted the building inspection.[43] They discovered that only four floors were
completed.[44] Encabo agreed to inspect the building at 3:00 p.m. of July 24, 1995, which,
at Encabos request, was reset to 4:30 p.m.[45] He and Engr. Velez conducted the
inspection of the building on that day and found some defects in the construction of the
building.
After the inspection, Tad-y left Velez and Encabo behind as he was going to a bowling
tournament, but, as he was crossing Gonzaga Street, Velez and Encabo called him and
invited him to join them for a snack at Andres Bakeshop.[46] He agreed because he was
hungry. He and Encabo were seated beside each other at the table in the bakeshop, while
Velez was seated at the opposite side.[47] While taking their snacks, Encabo brought out
the certificate of final inspection bearing the signatures of the other officers of the OCE
who had inspected the building. Tad-y affixed his signature above his typewritten name
with the notation see back page for structural requisites at the dorsal portion of the
document. Appearing at the dorsal portion of the certificate is Tad-ys handwritten
notation: Please Post the Allowable Load on [conspicuous] places especially [in the] area
to be used as storage.[48] Before then, he inquired from Encabo where the other requisite
certificates of final inspection, plumbing, Fire Safety Inspection and logbook were, and
Encabo replied that he brought the requisite certificates with him gesturing to his
portfolio. Encabo assured him that all the requirements were in his portfolio.[49] With
Encabos assurance, he then affixed his signature in the certificate of final inspection.[50]
Momentarily, Encabo told him that he had another document, and forthwith handed
a white envelope to him. Believing that the envelope contained the requisite certificate
of final inspection signed by the other officers in the OCE, he received the envelope and,
without opening it, immediately handed it over to Velez who would examine its contents.
He then left the bakeshop with Velez ahead of him, followed by Encabo. He was crossing
Gonzaga Street on his way to the bowling tournament when he was arrested by
policemen, who asked him where the white envelope he had earlier received from Encabo
was. He told them that the envelope was with Velez.[51]
Tad-y then saw Velez being held by a policeman, and that the envelope was already
opened. A policeman forced Velez to go near him. Another policeman forced him (Tad-y)
to touch the envelope, but he parried the arm of the policeman with his right forearm
and refused to touch it.[52] They were then brought to the PNP headquarters where they
were tested for ultraviolet powder.
Encabo filed a complaint against him because on four (4) prior occasions, he refused
to sign the certificate of final inspection of a house owned by a certain Nelson Seores, as
well as the application for a building permit of Joey Yao, unless the latter paid a 100%
surcharge for deficiencies.[53] Seores and Yao were the principals of Encabo. In the
evening of April 25, 1995, after he, Tuvida, Baja and Tordesillas had their initial
inspections of the building, they had dinner at the Tasty Treat. When he was about to
pay the bill for their food and drinks, Encabo insisted that he would pay the said bill. This
infuriated him, and he squeezed Encabos chin with his hand.[54]
Jimmy Gonzales, a newspaper vendor, corroborated the testimony of the accused
that someone forced Velez to hand over the opened envelope to Tad-y,[55] but that Tad-
y parried the attempt and refused to receive the envelope.[56]
Tad-y marked and offered in evidence the transcript of stenographic notes[57] taken
during the trial of September 25, 1995 in Criminal Case No. 17186.

192
The Case For the Accused Nestor Velez

Nestor Velez denied the charge. He corroborated the testimony of Tad-y and declared
that he was appointed as building inspector of the OCE only on March 16, 1995.[58] When
he and Tad-y inspected the building in the afternoon of July 24, 1995, they did so
separately. After the inspection, Tad-y told him and Encabo that he was going ahead
because he was going to play bowling.[59] When Encabo invited him and Tad-y for a
snack, Tad-y reluctantly agreed.[60]
Momentarily, Encabo brought out the certificate of final inspection and handed it to
Tad-y for the latters signature. However, Tad-y told Encabo that he would note the
deficiencies of the building. Tad-y then signed the certificate after being assured by
Encabo that he had all the other certificates. Tad-y gave Velez the envelope and told him
to keep it because he was going to a bowling game.[61] Velez received the envelope and
put it inside the right pocket of his pants, thinking that it contained the requisite final
safety inspection certificate and other certificates.[62]
On his way from the bakeshop, he and Tad-y were arrested by policemen. He opened
the white envelope as the policemen ordered, and saw money inside. He was forced to
approach Tad-y, and another policeman forced the latter to touch the money contained
in the envelope. Tad-y resisted.
Edgar Occea testified that he signed the original and duplicate copies of the certificate
of final inspection with the requisite certificates of the other officers appended thereto.
The City Engineer/City Building Official signed the Certificate of Occupancy on July 27,
1995. The original copy of the certificate of final inspection and occupancy was then
released to Wong, while the duplicate was retained by the OCE.[63]
Mateo Tuvida testified that he was the engineer in charge of the Mechanical Section
of the OCE of Bacolod City since February 1975.[64] On April 25, 1995, he, Baja, Tad-y,
Cornel and Yolando Ilog inspected the building at the Gonzaga side of the street and
found that it was already complete but that the structure along Cuadra Street was still
incomplete. He found the mechanical aspect of the building completed when he inspected
it in the first week of June 1995.[65] He then affixed his signature on the certificate of final
inspection.[66]
Venancio Baja testified that he had been in charge of the Electrical Division of the
OCE since 1990. He was the assistant of Jose Sotecinal, the Chief Electrical Engineer. He
inspected the Atrium building on April 25, 1995 and found it incomplete. He again
inspected the building and found it in accord with the plans. He then signed the certificate
of final inspection only in the first week of June 1995.[67]
On September 28, 1998, the MTC rendered judgment convicting Tad-y of direct
bribery defined and penalized under Article 210 of the Revised Penal Code. Velez was
acquitted of the charges. The fallo of the decision reads:

WHEREFORE, judgment is hereby rendered as follows:

1. Accused Engineer Nestor Velez is hereby ACQUITTED of the crime of violation

of Article 210 of the Revised Penal Code on the ground that it is the finding
of this Court that he was innocent of the crime charged;

2. Accused Engineer Ruben Tad-y is hereby pronounced GUILTY BEYOND

REASONABLE DOUBT of Violation of Paragraph 2 of Article 210 of the
Revised Penal Code and is hereby sentenced to suffer imprisonment of 2
years and 4 months, as minimum, to 3 years, as maximum, in the absence
of any mitigating or aggravating circumstances, in accordance with the

193
 mandatory provisions of the Indeterminate Sentence Law, and, to pay the
fine in the amount of P8,000.00 pesos.

3. Accused Ruben Tad-y, in case of his insolvency to pay the fine, shall suffer a
subsidiary penalty of imprisonment at the rate of one day for each 8 pesos
and shall remain in confinement until his fine is satisfied. However, his
subsidiary imprisonment shall not exceed one-third of the term of the
sentence, and in no case shall it continue for more than one year, and no
fraction or part of day shall be counted against the prisoner, in accordance
with Article 39 of the Revised Penal Code; and

4. Accused Ruben Tad-y is also hereby ordered to suffer the penalty of special
temporary disqualification and is hereby ordered to be deprived of his right
to hold office and employment in the City Engineers Office, as well as for
holding similar offices or employments either perpetually or during the term
of his sentence in accordance with paragraph 4 of Article 210, in relation to
Article 31, paragraphs 1 and 2 of the Revised Penal Code.

SO ORDERED.[68]

The MTC gave full credence and probative weight to Encabos testimony, ruling that
Tad-y demanded and received P4,000.00 from Encabo on July 24, 1995 in consideration
for his signing a certificate of occupancy. It further ruled that the accused signed the said
certificate on the said date.
Tad-y appealed the decision to the RTC, which rendered judgment on September 13,
1999, affirming the decision of the MTC with modification as to the penalty imposed.
The fallo of the decision reads:

WHEREFORE, the judgment of the trial court is hereby affirmed except for the
modifications that the accused Ruben Tad-y y Babors sentence should consist of an
indeterminate penalty of four (4) months of Arresto Mayor, as minimum, to one (1) year,
eight (8) months and twenty- one (21) days of Prision Correccional, as maximum, and
for him to pay the cost.

SO ORDERED.[69]

The RTC denied Tad-ys motion for reconsideration. However, the RTC agreed with
Tad-ys contention that what the latter signed was a certificate of final inspection and not
a certificate of occupancy.
In a parallel development, the RTC rendered judgment on May 18, 2001 in Criminal
Case No. 17186, acquitting Tad-y and Velez of the charge.[70]
The accused, now the petitioner, filed a petition for review of the decision of the RTC.
The CA rendered judgment on February 2, 2001 affirming the RTC decision in
toto.[71] Upon the denial of the motion for reconsideration of the said decision, the
petitioner filed his petition for review on certiorari with this Court.
The threshold issue raised by the petitioner is factual 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.
The petitioner avers that under the Information, and as held by the courts a quo, he
was charged with direct bribery under the second paragraph of Article 210 of the Revised
Penal Code, for soliciting and receiving P4,000.00 on July 24, 1995 from Mildred Wong,

194
through Encabo, in consideration for his signing/approval of the certificate of occupancy
of the Atrium Building, and that he signed said certificate on said date.
The petitioner maintains that he did not sign a certificate of occupancy. He posits
that a certificate of occupancy is signed by the city building official, and that he has
nothing to do with the execution of such certificate. Hence, he is not criminally liable for
direct bribery, one of the essential elements for the crime being that the act which he
agreed to do or execute is connected to the performance of his official duties.
The petitioner assails the credibility and probative weight of Encabos testimony. He
avers that Encabo had an axe to grind against him because, on prior occasions, he had
denied the applications for building permit filed by his principals due to structural
deficiencies in the buildings.
The petitioner further insists that he did not demand, nor could have demanded the
amount of P4,000.00 on April 25, 1995, or thereafter, because as of the said date, the
Atrium building had not yet been completed. The petitioner avers that Encabos claim that
he demanded P4,000.00 for the signing the certificate of final inspection is belied by the
fact that he indicated the deficiencies of the building at the dorsal portion of the
certificate. It was only in the first week of June 1995 that Baja and Tuvida made their
final inspection and signed the certificate of final inspection.[72] 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.
The petitioner posits that the case for the prosecution was enfeebled by its failure to
adduce in evidence the certificate of final inspection he signed on July 24, 1995. It
adduced in evidence only the certificate of final inspection bearing all the signatures of
the officers in the OCE, except his.[73] He claims that the respondent failed to prove
beyond reasonable doubt that he knew of the contents of the white envelope. He, in fact,
believed that the envelope contained the requisite certificates of inspection. Moreover,
he did not open the envelope and instead passed it over to Velez for verification, as he
was on his way to a bowling game.
The petitioner further contends that the respondent even failed to adduce in evidence
the white envelope he received from Encabo, or prove that the said white envelope was
what he actually received from Encabo. He posits that there is no probable cause for his
and Velezs warrantless arrest; hence, any evidence confiscated by the policemen from
them is inadmissible in evidence.
The respondent, through the Office of the Solicitor General (OSG), avers that it
adduced proof beyond reasonable doubt of the petitioners guilt for direct bribery. It insists
that the petitioner failed to prove that Encabo had any ulterior motive to falsely charge
and testify against him. The OSG points that the testimony of Encabo is honest and
straightforward; hence, entitled to full probative weight. It is hard to believe, the OSG
avers, that the petitioner would accept the envelope without knowing its contents. The
petitioner demanded and received from Encabo the P4,000.00 contained in a white
envelope in consideration of his signing the certificate of occupancy.
The OSG avers that the petitioners signing of the certificate of occupancy was his
duty as the engineer in charge of the structural design in the City Engineers Office of
Bacolod City. The OSG notes that the petitioner was found positive for ultraviolet powder.

The Ruling of the Court

The petition is meritorious.

195
 Rule 45 of the Rules of Court provides that only questions of fact may be raised in
this Court on a petition for review on certiorari. The reason is that the Court is not a trier
of facts. However, the rule is subject to several exceptions. The Court may delve into and
resolve factual issues in those cases where the findings of the trial court and the CA are
absurd, contrary to the evidence on record, impossible, capricious or arbitrary, or based
on a misappreciation of facts.[74]
In this case, the Court is convinced that the findings of the MTC, the RTC and the
CA, on the substantial matters at hand, are absurd and arbitrary, and contrary to the
evidence on record.
Article 210 of the Revised Penal Code provides:

Art. 210. Direct Bribery. Any public officer who shall agree to perform an act constituting
a crime, in connection with the performance of his official duties, in consideration of any
offer, promise, gift or present received by such officer, personally or through the
mediation of another, shall suffer the penalty of prison mayor in its minimum and medium
periods and a fine of not less than three times the value of the gift, in addition to the
penalty corresponding to the crime agreed upon, if the same shall have been committed.

If the gift was accepted by the officer in consideration of the execution of an act which
does not constitute a crime, and the officer executed said act, he shall suffer the same
penalty provided in the preceding paragraph; and if said act shall not have been
accomplished, the officer shall suffer the penalties of prision correccional in its medium
period and a fine of not less than twice the value of such gift.

If the object for which the gift was received or promised was to make the public officer
refrain from doing something which it was his official duty to do, he shall suffer the
penalties of prision correccional in its maximum period to prision mayor in its minimum
period and a fine not less than three times the value of the gift.

In addition to the penalties provided in the preceding paragraphs, the culprit shall suffer
the penalty of special temporary disqualification.

The provisions contained in the preceding paragraphs shall be made applicable to

assessors, arbitrators, appraisal and claim commissioners, experts or any other persons
performing public duties.

Direct bribery has the following essential elements:

1. the offender is a public officer;

2. the offender accepts an offer or promise or receives a gift or present by himself

or through another;

3. such offer or promise be accepted or gift or present be received by the public

officer with a view to committing some crime, or in consideration of the
execution of an act which does not constitute a crime but the act must be
unjust, or to refrain from doing something which it is his official duty to do;
and

4. the act which the offender agrees to perform or which he executes is

connected with the performance of his official duties.[75]

The prosecution is mandated to prove, beyond reasonable doubt, the essential

elements of the felony and that the petitioner is the perpetrator thereof.[76]
196
 Official duties include any action authorized. It is sufficient if the officer has the official
power, ability or apparent ability to bring about or contribute to the desired end. The acts
referred to in the law, which the offender agrees to perform or execute, must be
ultimately related to or linked with the performance of his official duties. It is sufficient if
his actions, affected by the payment of the bribe, are parts of any established procedure
consistent with the authority of the government agency.[77] However, where the act is
entirely outside of the official functions of the officer to whom the money is offered, the
offense is not bribery.[78]
The agreement between the public officer and the bribe-giver may be express or
implied. Such agreement may be proved by direct or circumstantial evidence. Proof of
such an agreement may rest upon relevant and competent circumstantial evidence. To
hold, otherwise, would allow the culprit to escape liability with winks and nods even when
the evidence as a whole proves that there has been a meeting of the minds to exchange
official duties for money.[79]
It is not necessary that the money is received by the offender before or at the time
he agreed to perform or execute an act. It is sufficient if he received the money
afterwards in pursuance of a prior arrangement or agreement.[80]
Indisputably, the petitioner is a public officer under Article 203 of the Revised Penal
Code.[81] There is no allegation in the Information that the issuance of the certificate of
occupancy is a crime or is unjust.
The Court agrees with the petitioners contention that the prosecution failed to prove
his guilt for the crime charged beyond reasonable doubt.
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. The CA
affirmed the said findings of the MTC in its decision, thus:

All the elements above are present in the case at bench. Petitioner Ruben Tad-y was an
employee at the City Engineers Office of Bacolod City. That petitioner-accused accepted
the amount of P4,000.00 which he demanded from Julio Encabo, a representative of
Mildred Wong who will secure a certificate of occupancy for the building of the latter and
handed it over to his subordinate Nestor Velez, petitioners co-accused, on April 24, 1995
at Andre Bakeshop. And in consideration of the amount thus given, petitioner would sign
the certificate of occupancy, which is his duty as engineer in charge of structural designs
at the City Engineers Office of Bacolod City. It must be added that petitioner signed the
certificate of occupancy, the original of which was kept at the records section of the City
Engineers Office, after receiving the envelope containing P4,000.00. [82]

However, 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. Thus, Encabo testified:
Q- But in (sic) July 24, 1995 when you mentioned that they inspected again the
building?

197
 A- Yes, Sir.
Q- And after inspection you went down to Andre Bakeshop which is the ground
floor of the Atrium Building. What happened there at Andre Bakeshop?
A- I gave him the papers and let him sign the necessary papers.
Q- What necessary papers are you referring to?
A- This certificate of Final Inspection where he is the one who never affixed his
signature.
Q- When you gave the Certificate of Final Inspection, he signed it?
A- Yes, Sir.[83]
It was only on July 27, 1995, after the petitioner had signed the certificate of final
inspection on July 24, 1995, that the city building official approved and issued the
certificate of occupancy for the building.[84]
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,[85] the authority to sign said certificate is vested specifically on the building official,
and not on the petitioner:

Section 309. Certificate of Occupancy

No building or structure shall be used or occupied and no change in the existing use or
occupancy classification of a building or structure or portion thereof shall be made until
the Building Official has issued a Certificate of Occupancy therefor as provided in this
Code.

A Certificate of Occupancy shall be issued by the Building Official within thirty (30) days
if after final inspection and submittal of a Certificate of Completion referred to in the
preceding section, it is found that the building or structure complies with the provisions
of this Code.

The Certificate of Occupancy shall be posted or displayed in a conspicuous place on the

premises and shall not be removed except upon order of the Building Official.

The non-issuance, suspension and revocation of Certificates of Occupancy and the

procedure for appeal therefrom shall be governed in so far as applicable, by the provisions
of Section 306 and 307 of this Code.[86]

Calibrating the testimony of Encabo, the prosecution sought to prove that the
petitioner agreed to conduct a final inspection of the building and sign a certificate of
final inspection upon the receipt of P4,000.00.
However, the testimony of Encabo is not entitled to full probative weight since it is
evasive and chameleonic, enfeebled by frontal inconsistencies on substantial matters
which the trial court and the CA ignored.
In the court a quo, Encabo testified, on direct examination, that on April 25, 1995,
the petitioner dissuaded him from following up and seeing the approval for the certificate
of occupancy because Wong failed to pay the P4,000.00, the balance due for the
petitioners services in securing the building permit. However, Encabo also claimed that
the petitioner agreed to conduct a final inspection of the building and sign a certificate of

198
final inspection if the money was given to the latter. When he testified in Criminal Case
No. 17186, Encabo declared that the petitioner refused to sign a certificate of inspection
on April 25, 1995 unless the P4,000.00 he demanded was paid.[87] However, Encabo gave
a completely different story to the CIS when he gave his sworn statement; he claimed
that, on April 25, 1995, the petitioner demanded P4,000.00 in consideration for his
signature on the certificate of occupancy.[88]
When he testified in Criminal Case No. 17186, Encabo admitted that the petitioner
did not demand P4,000.00 as a precondition to his final inspection of the building and his
signing of the certificate of final inspection. The petitioner refused to sign a certificate of
final inspection for the sole reason that he had not yet conducted the required final
inspection.
Atty. Sorbito:
On April 25, 1995, when you went there accused Ruben Tad-y refused to sign?
WITNESS:
Yes, Sir.
ATTY. SORBITO:
You mean to say Mr. Encabo that even without final inspection any of the
signatories to the occupancy permit can affixed (sic) their signatures without
inspection?
WITNESS:
They have to inspect.
ATTY. SORBITO:
So when Ruben Tad-y refused to sign the permit on April 25, 1995, its because
there was no final inspection made yet?
WITNESS:
Yes, Sir.
ATTY. SORBITO:
It is not because there was no money or P4,000.00?
WITNESS:
No, Sir.
ATTY. SORBITO:
In short, Ruben Tad-y did not ask for anything because only there in (sic) no
inspection was (sic) made?
WITNESS:
Yes, Sir.[89]
Encabo could not have asked the petitioner or any of the officers in the OCE for that
matter to sign the certificate of occupancy because only the building official has the
authority to sign the same. Moreover, the city building official could not have signed the
certificate because no final inspection of the building had been conducted, and no
certificate of final inspection had been signed by the OCE officers.
Encabos claim that the petitioner agreed to make a final inspection of the building if
he was paid P4,000.00 is belied by his testimony in the court a quo, that, during the
second week of May 1995, the petitioner and the other officers of the OCE conducted an

199
inspection of the building.[90] Encabo did not give any centavo to the petitioner on that
occasion. However, the petitioner and Encabo had a quarrel in the course of which the
petitioner tried, in anger, to squeeze Encabos neck.[91] As testified to by the petitioner,
Encabo insisted on paying for the food and drinks consumed by him and the other OCE
officers after their inspection of the building, despite the petitioners insistence that he
should pay for the bill:
Q You have also mentioned about that incident whether you were antagonized
by Mr. Encabo which you said you have squeezed his chain (sic) with your
hands, where was that establishment?
A At the second floor of Tasty Treat at Araneta Street, Bacolod City.
Q And you were drinking beer with Mr. Encabo during that time?
A When I arrived they were already drinking.
Q And you also started to drink beer?
A Yes, Sir.
Q And how many bottles have you consumed, if you can still recall?
A Two bottles.
Q And it was even Mr. Encabo who paid the bill for the drinking spree?
ATTY. SORBITO:
Misleading, your Honor.
COURT:
Who pay (sic) for the bills?
A That is (sic)where the trouble began because after I have consumed two (2)
bottles of beer, he asked the bills with the intention of paying it because
there is among the group are (sic) my relatives and it was my purpose to
pay.[92]
Encabo testified that he sought the help of the City Mayor for the petitioner to conduct
the final inspection of the building, but did not inform the Mayor that the petitioner had
demanded P4,000.00 in consideration for his inspection of the building. He claimed that
the petitioner was his compadre and he did not want to put him in a bad light:
ATTY. SERFINO:
Q- When you went to the City Mayor, you are yet thinking that you will go to the
CIS?
A- I have already reported that.
Q- What is your reason of not telling the mayor that Ruben Tad-y demanded
money?
A- Being the government employee and he is my kumpare, I do not want to
cause very bad occasion.[93]
Encabo projected himself as solicitous and protective of the petitioners well-being
and the maintenance of the communitys regard to his compadre, the petitioner. However,
when asked why he had to complain to the CIS and thus placed the petitioner in jeopardy
for prosecution of an offense, Encabo replied that he did so because the petitioner had
mauled him:
Q Now, you have already gone to the CIS, as you said, is it not?

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 A Yes, Sir.
Q And, you have already reported to the CIS that supposed demand from you?
A Well, he is (sic) trying to maul me.[94]
What is so disconcerting is that Encabo claimed that even months after the city
building official had already issued the certificate of occupancy to Wong on July 27, 1995,
the petitioner still conducted inspections of the building, along with the other officers, in
September and October 1995:
Q So, you are now certain you have not inspected the building and several other
officials of the City Engineers Office in the afternoon of April 25, 1995, when
you went to the office?
A We do the inspection together with the accused and others during and after
April 25 and October 1995.
Q Please answer me, you are definitely sure that it was on April 25, 1995?
A Yes, the inspection.
Q When you said yes, it was not on that date?
A The date is (sic) April 25, 1995 is not exactly the date of inspection.
Q In what month after April 25, 1995 when you inspected the building but prior
to October 25, 1995?
A It was October or September, somewhat like that. That September or October
I cannot pinpoint the exact date because I dont have the record of that.[95]
It is incredible that the petitioner and the other officers would continue with their
inspections of the building even months after the issuance of the certificate of occupancy,
and when the petitioner had already been charged with direct bribery in the MTC. Indeed,
on September 21, 1995, Encabo was already testifying in Criminal Case No. 17186 for
the prosecution against the petitioner.
The prosecution cannot find solace in the entrapment operations conducted by the
CIS and the aftermath thereof.
First. The petitioner brought along Engineer Nestor Velez, a building inspector in the
OCE, on his final inspection of the building after which they had a snack with Encabo. If,
as claimed by Encabo, the petitioner expected to receive P4,000.00 from him, as bribe,
it would be contrary to human experience to bring another person along (in this case,
Velez) to witness the receipt of the envelope containing the money. Moreover, the Andre
Bakeshop is a public place where people enter to make purchases. Indeed, this Court
in Formilleza v. Sandiganbayan,[96] declared

However, what is revealing is that Mrs. Sevilla and Mrs. Dimaano were present around
the table in the canteen with the petitioner and Mrs. Mutia when the latter allegedly
handed the money to the petitioner. There were other persons in the premises like the
PC agents whose identities petitioner possibly did not know. Under the circumstances and
in such a public place it is not probable that petitioner would have the nerve to accept
bribe money from Mrs. Mutia even under the table. If the petitioner knew and was
prepared to accept the money from Mrs. Mutia at the canteen, the petitioner would not
have invited her officemate Mrs. Sevilla to join them. Mrs. Sevilla stated she did not see
the alleged passing of the money. She could not have seen the money as it was passed
on under the table or when, as petitioner said, it was quickly placed in her hand when
she stood up. What Mrs. Sevilla is sure of is that when they were about to leave the
canteen, two (2) men approached petitioner, one of whom took pictures, and the

201
petitioner shouted at Mrs. Mutia, What are you trying to do to me? The reaction of
petitioner is far from one with a guilty conscience.

Second. The petitioner walked ahead of Velez and Encabo out of the Atrium building
after the final inspection, and was on his way to the bowling tournament. However, he
joined Encabo and Velez for a snack only because Encabo had invited him. Such behavior
on the part of the petitioner is inconsistent with one who expected to receive P4,000.00
from Encabo after his final inspection of the building.
Third. When Encabo handed the envelope to the petitioner, the latter inquired what
the envelope was for. The petitioner opened the envelope in full view of Velez and saw
its contents. He handed the envelope to Velez instead of putting it into his pocket, even
after Encabo had assured the petitioner that it was not dangerous for the latter to receive
it. It is incredible that, as claimed by Encabo, the petitioner handed over the envelope to
Velez under the table.
Such facts and circumstances show that the petitioner had no intention to accept the
money and consider it his own; they negate the prosecutions contention that the
petitioner demanded and expected to receive P4,000.00 as bribe money. Indeed, this
Court ruled in Formilleza

The essential ingredient of indirect bribery as defined in Article 211 of the Revised Penal
Code is that the public officer concerned must have accepted the gift material
consideration. There must be a clear intention on the part of the public officer to take the
gift so offered and consider the same as his own property from then on, such as putting
away the gift for safekeeping or pocketing the same. Mere physical receipt
unaccompanied by any other sign, circumstance or act to show such acceptance is not
sufficient to lead the court to conclude that the crime of indirect bribery has been
committed. To hold otherwise will encourage unscrupulous individuals to frame up public
officers by simply putting within their physical custody some gift, money or other
property.[97]

The foregoing ruling of this Court applies not only to charges of indirect bribery but
also to direct bribery. The respondents contention that the petitioner handed the
envelope to Velez under the table is belied by the testimonies of the petitioner and Velez.
Fourth. The police officers even forced the petitioner to incriminate himself by forcing
him to touch the contents of the envelope, but the petitioner managed to parry the
attempt with his right arm. Thus, Velez testified:
Q What happened outside the bakeshop?
A When we went out of the Atrium building, because we plan to left (sic) the
place separately or to part ways.
Q You mean to say that Engr. Tad-y was going to his own direction and you to
another direction and Mr. Encabo to a different direction?
A Yes.
Q Were you able to do that?
A When I was already at the middle of Gonzaga Street, somebody took hold of
my arm, almost my shoulder.
Q Then what happened?
A I was shocked or surprised, somebody took hold of my arm.
Q Did he say anything?

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A When I turned my head, he told me that I am (sic) under arrest.
Q What else?
A After hearing that, I asked him what sins (sic) have we committed?
Q What did he say?
A He was trying to search on my trousers.
Q Did he show any warrant or authority for him to do that?
A Never.
Q No warrant of arrest or search warrant?
A No.
Q So, what did he find in your trousers?
A While he was searching me, I was asking him, what money and he asked me,
where is that envelope you received, while he was holding me, its in your
pocket, get it. So, I get (sic) it because he was holding me in my hand and
at the same time squeezing it.
Q What arm?
A At first, it was my left hand that he was searching, he was able to took (sic)
hold of my right arm as it is used to be the one to pick the particular envelope.
Q So, how actually sure were you, when you get (sic) the envelope from your
pocket?
A It appears that myself because he was doing it by squeezing my hand.
COURT:
Q About what part of your pocket?
COURT INTERPRETER:
At this juncture, the witness is pointing at the right side of his pocket.
ATTY. SERFINO:
Q And after you have (sic) involuntarily taken that envelope from your pocket,
what did they do?
A When he was squeezing my hand, I was able to get the money and they
brought me to Engr. Tad-y.
Q How far was Engr. Tad-y when they brought you there?
A Maybe ten to fifteen meters.
Q And when you were already near Engr. Tad-y, did you notice what was
happening to Engr. Tad-y?
A When I was there going toward Engr. Tad-y, I saw one person holding his
hands.
Q When you were near him, what happened next?
A When I was near Engr. Tad-y, they let me open that particular envelope.
Q Who was handling that particular envelope towards Engr. Tad-y?
A Its myself holding it while he was holding me towards Engr. Tad-y.

203
Q You mean the very hand he was holding, squeezing, its also the hand holding
the envelope?
A Yes.
Q Was it [the] left or right hand?
A At first left, when he pulled me it was already his right hand.
Q What happened when you were near Engr. Tad-y?
A When I have already opened the envelope and when they saw the content of
that envelope, the money, they try (sic) to pull that so that Engr. Tad-y will
receive the money from me.
Q How did you open that envelope in that stage, was it already opened or did
you have to exert some efforts to open?
A I opened it because it was closed.
Q Did Engr. Tad-y received (sic), take hold of that money?
A When he found out that the content is money, he did not hold it.
Q What did he do?
A He tried not to receive it but he was forced by one arresting officer.
Q What else took place at that stage on that day?
A When they were not able to force Engr. Tad-y to take hold of the money, they
tried to stop a taxi.[98]
The testimony of the petitioner on this matter reads:
Q Now, what happened after you saw that there was another person holding
your co-accused?
A They were searching him in order to have the white envelope out.
Q So, did you see any envelope after that?
A Yes, Sir.
Q How did you see it or how did you happen to see it?
A Because he let Mr. Velez open his pocket and have it left opened.
Q And then what happened?
A When the said envelope was already opened he hold (sic) Mr. Velez and pulled
Mr. Velez towards me.
Q Were they able to come near you?
A Yes, Sir.
Q Now, while your co-accused was already near you, what transpired among
you?
A A person of small size holding the hands of Mr. Velez holding the white envelope
because he wants that I will hold the white envelope.
Q Go ahead.
A It was already opened and he wanted me to hold the white envelope.
Q When you were still inside the bakeshop, will you please inform the Hon. Court
if the envelope was already opened or not?

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A Not yet.
Q The prosecution witness, Julio Encabo here testified that inside the bakeshop,
after he handed to you the envelope, you opened it and peeped inside the
envelope, is this true?
A It is a big lie.
Q Why do you say that it is a big lie?
A It will be subject of the evidence in the Police Laboratory. It was only shown
that there was fluorescent powder.
(Witness, at this juncture is pointing to his right arm.)
Q You are referring to Exhibit 4-A?
A Yes, Sir.
ATTY. SERFINO:
I would like to manifest, your Honor that on Exhibit 4, there is nothing there that
indicates that there was any powder marks in the hands of this accused.
Q Now, what else happened when your co-accused was already near you?
A They tried to let the hands of Nestor come towards me but I was trying to
move away.
Q On the basis of what you saw, if you know what was the reason that (sic) they
were trying to let you hold the envelope?
ASST. CITY PROSECUTOR CENTENO:
Asking for a conclusion, your Honor.
COURT:
Sustained.
COURT:
Reform.
ATTY. SERFINO:
Q From that stage, what else happened?
A Since they cannot do the thing of letting the hands of Nestor Velez go near me,
it was the person who picked the white envelope and tried to give it to me,
but I was trying to parry it. (Witness is pointing to his right forearm.)
Q Thereafter, what happened?
A (Witness, at this juncture is trying to hold the left hand at his waist.) I do not
know whether it was a camera or a gun.
Q What else happened?
He said to me, relax ka lang, you might be fell (sic) down.
Q Was he a Tagalog?
A I do not know but he speak (sic) in Tagalog.
Q How did that incident in front of that street came to close?
A I stayed calm but I was afraid of them.

205
 Q After you relaxed because of your fear, is there anything else that took place?
A They stopped a taxi and then pulled me to ride in the taxi together with the
co-accused, Nestor Velez.[99]
The testimonies of Velez and the petitioner were corroborated by the Initial
Laboratory Report of Forensic Chemist Rea Villavicencio that the petitioners right arm
tested positive for ultraviolet powder. The Report and Sketch drawn by Villavicencio did
not show that any of the fingers of the petitioner were positive for ultraviolet powder.
In sum then, the Court rules that the prosecution failed to prove the guilt of petitioner
Rubin Tad-y of the crime charged. Consequently, the Petition is GRANTED. The decisions
of the Municipal Trial Court in Cities, the Regional Trial Court and the Court of Appeals
are REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime charged in the
Information.
SO ORDERED.

206
ARTICLE 211

G.R. No. 75160 March 18, 1988

LEONOR FORMILLEZA, petitioner,

vs.
THE HONORABLE SANDIGANBAYAN, First Division and PEOPLE OF THE
PHILIPPINES, respondents.

K.V. Faylona & Associates for petitioner.

The Solicitor General for respondents.

GANCAYCO, J.:

This is a Petition for review of a Decision of the Sandiganbayan.

The records of the case disclose that petitioner Leonor Formilleza has been with the
government service for around 20 years. She was the personnel supervisor of the regional
office of the National Irrigation Administration (NIA) in Tacloban City, Leyte since October
1, 1982. Her duties include the processing of the appointment papers of employees.

On the other hand, a certain Mrs. Estrella Mutia was an employee of the NIA from
February, 1978 up to March, 1985. Her appointment was coterminous with a project of
the NIA. On December 31, 1983, her appointment wag terminated. This notwithstanding,
she continued working for the NIA pursuant to the verbal instructions of the regional
director of the Administration.

Mrs. Mutia testified that she took steps to obtain either a permanent or at the least a
renewed appointment; that when she approached the regional director about the matter
she was advised to see the petitioner who was to determine the employees to be
appointed or promoted; and that the petitioner refused to attend to her appointment
papers unless the latter were given some money.

On February 27, 1984, Mrs. Mutia reported her problem to the Philippine Constabulary
(PC) authorities in the province. The PC officials told her that steps were to be taken to
entrap the petitioner. The entrapment equipment consisted of marked paper money bills
worth P100.00. The PC officials concerned were colleagues of the husband of Mrs. Mutia
in the PC.

The first attempt to entrap the petitioner was on February 28, 1984. The plan did not
materialize as the petitioner did not show up at the designated rendezvous at the NIA
building canteen.

The second attempt was on February 29,1984, this time with results. That morning, the
petitioner and Mrs. Mutia met in their service bus on their way to work. The two women
supposedly agreed to meet at the canteen later that morning at 9:00 o'clock. Thereafter,
Mrs. Mutia notified the PC authorities who were to arrange the entrapment. The PC

207
soldiers involved in the arrangement were Identified as Sergeants Eddie Bonjoc, Efren
Abanes and Ignacio Labong.

Everyone who was to participate in the entrapment was ready. Mrs. Mutia went to see
the petitioner in her office after which the two of them proceeded to the canteen. Some
of their officemates — Mrs. Florida Sevilla and a certain Mrs. Dimaano — joined them in
the canteen. They occupied two squareshaped tables joined together. The petitioner sat
at the head of the table with Mrs. Mutia seated at her left, Mrs. Dimaano at her (the
petitioner's) right and Mrs. Sevilla at the right of Mrs. Dimaano. Sergeants Bonjoc and
Labong sat at another table while Sergeant Abanes was alone in still another table. The
latter brought along a camera in order to take photographs of the entrapment. The
marked money was folded altogether.

Mrs. Mutia maintains that after they had finished taking their snacks, she handed the
marked money bills under the table with her right hand to the petitioner who received
the same with her left hand. At that moment, Sergeant Bonjoc approached the petitioner
and held her hand holding the money bills. Sergeant Abanes brought out his camera and
took photo. graphs of the sequence of events. He was able to take seven photographs. 1

The petitioner was arrested by the soldiers despite her objections to the entrapment. She
was brought to the PC crime laboratory in the locality where she was found positive for
ultra-violet powder. In the presence of the corporate counsel of the NW the petitioner
denied accepting any bribe money from Mrs. Mutia.

The case was brought to the Sandiganbayan where it was docketed as Criminal Case No.
9634. Arraigned on January 1 0, 1985, the petitioner entered a plea of not guilty and
went to trial on May 13, 1985.

In the proceedings before the Sandiganbayan, the prosecution argued that the
entrapment arranged by the PC operatives was n because the petitioner was asking
money from Mrs. Mutia in consideration for having the appointment papers of the latter
facilitated. On the other hand, the petitioner maintains her innocence — that there was
no entrapment; the scenario was but a scheme set up by Mrs. Mutia and her husband's
colleagues in the PC. The petitioner denies having accepted the supposed bribe money.

The Sandiganbayan relying on the theory of the prosecution observed in a decision

promulgated on July 14, 1986, 2as follows —

Upon consideration of the evidence. We find the p petitions version credible.

Two days before the entrapment, Mrs. Mutia complained to the PC

authorities about the inaction of the on her appointment papers due to her
failure to give Mm money. She executed a sworn statement to that effect,
... It was the PC who planned the entrapment and supplied the marked
money. Sgt. Efren Abanes who dusted the money bills with fluoresence
powder and who was a member of the entrapment team, witnessed the
delivery and receipt of the money by the accused and the complainant and
he saw how the folded money was handed by Mrs. Mutia with her right
hand underneath the table and received by the with her left hand. That was
also how Mrs. Mutia described the manner she delivered the money to the
accused — the money bills were rolled winch she handed to with her right
hand underneath the table. Although Sgt. Abanes had a camera with him
to photograph the entrapment, he could not prematurely expose the
camera to allow a shot of the actual giving of the money lest the notice his

208
 presence and intention and thereby thwart the operation. But after the
money had been delivered and received, he immediately took out his
camera and snapped pictures, one of them depicting the accused held by
Sgt. Bonjoc and Labong on the left hand ..., and another showing the
accused also held on the left hand by one of the PC men, and the
complainant, Mrs. Mutia, drinking from a glass ...

The fact that Mrs. Mutia's husband is a PC -An himself does not detract from
the credibility of Sgt. Abanes who took part in the Sgt. Abanes entrapment,
took pictures, and testified about the incident in court. Sets. Abanes Bonjoc
and Labong were not the only public authorities privy to the operation. Capt.
Pedro Pates was the one to whom Mrs. Mutia reported the accused demand
for money; it was he who broached the Idea of entrapping the accused;
and it was Mador Fernando Pace who supplied the money and caused it to
be marked with powder. It is inconceivable that an these commissioned and
non-commissioned officers had lent themselves to take part in an unholy
cabal of falsely incriminating a female government employee on the mere
urging of one of their associates.

Just as unreasonable is the insinuation that Mrs. Mutia had inveigled the
accused to the canteen and resorted to the insidious machination of
planting money in her hand in a simulated entrapment simply because she
thought the accused was not helping her in her application for appointment
to a regular item.

Mrs. Florida Sevilla's presence on the same table with the complainant and
the accused may be conceded. But her testimony that she did not see
anything that took place between the complainant and the accused before
the PC operative pounced upon the accused, and the latter angrily asked
the complainant what she was trying to do to her, does not improve the
cause of the defense. As portrayed by the accused, she was at the head of
the rectangular table with the complainant at her left: Mrs. Dimaano at her
right, and Mrs. Sevilla next to Mrs. Dimaano. Since the money, according to
the complainant and Sgt. Abanes was handed to and received by the
accused underneath the table, it is not surprising that Mrs. Sevilla who was
two seats away from the accused did not see it. 3

The respondent court ruled that the crime committed by the petitioner was not Direct
Bribery as defined in Article 210 of the Revised Penal Code cited in the Information but
Indirect Bribery as defined under Article 211 of the same code. Citing the case of People
v. Abesamis, 4 the respondent court was of the opinion that she could be convicted for
Indirect Bribery under the Information for Direct Bribery to which she pleaded and
entered into trial inasmuch as it is the allegation of facts rather than the denomination of
the offense by the provincial fiscal that determines the crime charged.

Thus, the respondent court found the petitioner guilty of Indirect Bribery and sentenced
her to four months of arresto mayor, suspension from public office, profession or calling,
including the right of suffrage, and public censure.

On August 23, 1986, the petitioner elevated the case to this Court by way of the instant
Petition for Review. The thrust of the Petition is that the conclusions reached by the
Sandiganbayan are not supported by the evidence. Moreover, the petitioner disputes the
applicability and/or correctness of the ruling of this Court in People v. Abesamis relied
upon by the respondent court.

209
As instructed by this Court, the Office of the Solicitor General submitted its Comment on
the Petition. In opposing the Petition, the Solicitor General maintains that only questions
of law may be raised in the instant case and the respondent court did not commit any
error of law. The Solicitor General also stresses therein that the findings of fact made by
the Sandiganbayan are supported by the evidence on record and deserve full faith and
credit. The Solicitor General adds that the question of credibility is addressed mainly to
the trier of facts, in this case, the Sandiganbayan.

The parties submitted subsequent pleadings in support of their stand. Thereafter, the
case was deemed submitted for decision.

We find merit in the Petition.

Presidential Decree No. 1606, as amended, governs the procedure through which cases
originating from the Sandiganbayan are elevated to this Court.5 Under Section 7 thereof,
the decisions and final orders of the Sandiganbayan are subject to review on certiorari by
the Supreme Court in accordance with Rule 45 of the Rules of Court. This Court has ruled
that only questions of law may be raised in a petition for certiorari under Rule 45, subject
to certain rare exceptions. 6 Simply stated, one way 7 through which a decision or final
order of the Sandiganbayan can be elevated to the Supreme Court is a Petition for
certiorari under Rule 45 and, as a general rule, only questions of law may be raised
therein. The Solicitor General cites the case of Peñaverde v. Sandiganbayan 8 in support
of this view.

Going now to the question of law raised in the instant Petition, We believe that the ruling
in People v. Abesamis, contrary to the contention of the petitioner, is authority for the
view that the allegation of facts, not the denomination of the offense by the prosecutor,
determines the crime charged. Anent the argument on the correctness of the ruling, the
petitioner had not succeeded in showing any cogent basis for reversing or modifying the
same.

The remaining argument that the judgment of conviction is not supported by the evidence
raises a question of fact inasmuch as the resolution of the issue would require this Court
to sort out and re-examine the evidence presented in the trial. Invoking the ruling of this
Court in Peñaverde v. Sandiganbayan, the Solicitor General moves for the denial of the
Petition. The Solicitor General adds that the credibility of witnesses is a matter better left
to the appreciation of the trial court, in this case, the Sandiganbayan.

Indeed, the general rule is that only questions of law may be raised in a petition of this
character. The general rule admits exceptions, one of which is when the findings of fact
made by the trial court overlooked certain facts of substance and value which, if
considered, might affect the result of the case. This observation was made by this court
in Peñaverde v. Sandiganbayan, cited by the Solicitor General, to wit —

With respect to the allegation that there was error on the part of respondent
Sandiganbayan in concluding that petitioners conspired in the commission
of the offense, suffice it to say that the basis of its finding was the credibility
of witnesses. Pursuant to Section 7 of Presidential Decree No. 1606, in
relation to Section 2, Rule 45 of the Rules of Court, the findings of fact of
the Sandiganbayan are entitled to great respect and only questions of laws
(sic) may be raised to the Supreme Court. Besides, well settled is the rule
that the findings of (the) trial court on credibility of witnesses will not be
disturbed unless much findings overlook certain facts of substance and
value which, if considered might affect (the) results of (the) case. 9

210
We believe that the exception to the general rule calls for application in this case.

The fundamental axiom underlying a criminal prosecution is that before the accused may
be convicted of any crime, his guilt must be proved beyond reasonable doubt. Thus, if
there are substantial facts which were overlooked by the trial court but which could alter
the results of the case in favor of the accused, then such facts should be carefully taken
into account by the reviewing tribunal.

In the case before Us, there are substantial facts and circumstances Which appear to be
favorable to the accused but which were not carefully considered by the Sandiganbayan.
The failure to do so is most unfortunate considering that the Sandiganbayan is the first
and last recourse of the accused before her case reaches the Supreme Court where
findings of fact are generally conclusive and binding.

The essential ingredient of indirect bribery as defined in Article 211 of the Revised Penal
Code 10 is that the public officer concerned must have accepted the gift or material
consideration. There must be a clear intention on the part of the public officer to take the
gift so offered and consider the same as his own property from then on, such as putting
away the gift for safekeeping or pocketing the same. Mere physical receipt
unaccompanied by any other sign, circumstance or act to show such acceptance is not
sufficient to lead the court to conclude that the crime of indirect bribery has been
committed. To hold otherwise will encourage unscrupulous individuals to frame up public
officers by simply putting within their physical custody some gift, money or other
property.

Did the petitioner accept the supposed bribe money?

The Sandiganbayan noted that the photographs of the entrapment show that the
petitioner was accosted by the PC soldiers after she accepted the marked money. Against
the evidence of the pro petition that the money was handed to petitioner by Mrs. Mutia
under the table is the assertion of petitioner that it was when she stood up that Mrs.
Mutia suddenly placed something in her hand which she did not know to be money and
when she saw that it was money she threw it away. 11 An examination of the seven
photographs that were allegedly taken immediately after the passing of the money shows
that the petitioner was standing up when the PC agents apprehended her. This
corroborates petitioner's story. There was no picture showing petitioner to be seated
which should be her position immediately after the money was handed to her under the
table, which should be the case according to the version of the prosecution.12 None of
the photographs show the petitioner in the process of appropriating or keeping the money
after it was handed to her. Two of the seven photographs that were taken outside the
canteen appear to be of no relevance to the operation.

As the petitioner was admittedly handed the money, this explains why she was positive
for ultra-violet powder. It is possible that she intended to keep the supposed bribe money
or may have had no intention to accept the same. These possibilities exist but We are
not certain.

However, what is revealing is that Mrs. Sevilla and Mrs. Dimaano were present around
the table in the canteen with the petitioner and Mrs. Mutia when the latter allegedly
handed the money to the petitioner. There were other persons in the premises like the
PC agents whose Identities petitioner possibly did not know. Under the circumstances
and in such a public place it is not probable that petitioner would have the nerve to accept
bribe money from Mrs. Mutia even under the table. If the petitioner knew and was
prepared to accept the money from Mrs. Mutia at the canteen, the petitioner would not

211
have invited her officemate Mrs. Sevilla to join them. Mrs. Sevilla stated she did not see
the alleged passing of the money. She could not have seen the money as it was passed
on under the table or when, as petitioner said it was quickly placed in her hand when she
stood up. What Mrs. Sevilla is sure of is that when they were about to leave the canteen,
two (2) men approached petitioner, one of whom took pictures, and the petitioner
shouted at Mrs. Mutia, "What are you trying to do to me?" 13 The reaction of petitioner is
far from one with a guilty conscience.

Moral certainty, not absolute certainty, is needed to support a judgment of conviction,

Moral certainty is a certainty that convinces and satisfies the reason and conscience of
those who are to act upon a given matter. 14 Without this standard of certainty, it may
not be said that the guilt of the accused in a criminal proceeding has been proved beyond
reasonable doubt.

With all these circumstances taken into account altogether, We are left at a loss as to the
guilt of the accused. Overlooked by the Sandiganbayan, these facts and circumstances
make out a good case for the petitioner.

Accordingly, the Court holds that the guilt of the petitioner in Criminal Case No. 9634 has
not been proved beyond reasonable doubt. She is, therefore, entitled to an acquittal.

WHEREFORE, in view of the foregoing, the Decision of the Sandiganbayan in Criminal

Case No. 9634 is hereby SET ASIDE. The petitioner Leonor Formilleza is hereby
ACQUITTED on the basis of reasonable doubt. We make no pronouncement as to costs.
This Decision is immediately executory.

SO ORDERED.

212
ARTICLE 214

G.R. No. L-6781 November 6, 1911

THE UNITED STATES, plaintiff-appellee,

vs.
F. WICKERSHAM, defendant-appellant.

Bruce, Lawrence, Ross & Block, for appellant.

Attorney-General Villamor, for appellee.

CARSON, J.:

The information in this case charges the defendant and appellant with the crime
of hurto (theft) committed as follows:

That one day in the month of July of the present year, 1910, in this municipality
of Iloilo, Province of Iloilo, Philippine Islands, the said defendant, F. Wickersham,
being chief clerk in the office of the Quartermaster of the United States Army in
Iloilo, did willfully, maliciously and criminally, and without violence, intimidation or
force toward persons or things, abstract, take possession of, and steal, for the
sake of personal gain and without the consent of the owner and by abusing the
confidence of his chief, various checks belonging to the United States, credited to
Captain L. F. Garrard of the United States Army in Iloilo, to wit:

Check No. 141528

P344.00
....................................
Check No. 139856
525.48
....................................
Check No. 141471
212.00
....................................
Check No. 137651
272.00
....................................
Check No. 137691
10.00
....................................
Check No. 141489
1,500.00
....................................

2,500.00

and, in coin, the sum of P178.08, making a total of P3,041.56 Philippine currency;
the checks above mentioned having been drawn on the Treasury of the Philippine
Islands, depositary of the Treasury of the United States. Acts in violation of law.

There is no controversy as to the facts, the defendant and appellant, through his counsel,
having admitted the truth of the testimony of the witnesses for the prosecution. The

213
defendant was the chief clerk in the quartermaster's office in Iloilo, to whom was intrusted
the combination and the key to the quartermaster's safe. He did not, however, have
charge of the cash book, which was kept by another clerk in the office; nor did he have
authority to open the safe or to withdraw funds therefrom except at the direction of his
superior office, the quartermaster, who was in charge of the safe and its contents, and
under whose immediate control it was. The only duty of the defendant in regard to the
safe and its contents was to keep safely the combination and the key, and to open and
close it at the direction of his superior officer, the quartermaster in charge of the office;
he had no control whatever over the contents of the safe and was not charged with the
withdrawal or distribution of the funds, checks and other property which were kept in it.

During the absence of his superior officer and while in a state of intoxication, defendant
opened the safe and abstracted therefrom the cash and checks described in the
information. Before judgment of conviction in the court below, the cash and all of the
checks were recovered, except three which were indorsed by the parties to whom the
defendant sold them, and paid by the Treasurer of the Philippine Islands, upon whom
they were drawn. The face value of these checks was refunded to the quartermaster, so
that at the time when judgment was entered in the court below all of the stolen property
or its value had been recovered.lawphil.net

Counsel for appellant, without denying that the record discloses highly reprehensible
conduct in the abstraction of the checks and cash from the safe, and the negotiation of
some of the checks, contends nevertheless that the judgment of the lower court should
be reversed on various grounds.

Counsel insists that the trial court erred in refusing to declare the information fatally
defective because, as counsel contends, it does not set out the value of the stolen checks.
Counsel apparently does not deem the use of the sign "P" in the information a sufficient
designation or equivalent of the term "pesos Philippine currency," and he insists that the
tabulated form in which the checks are described in the information does not affirmatively
disclose that the checks were worth the amount for which t is alleged they were drawn.
Counsel's contention can not be sustained. The sign or character P is general accepted in
these Islands as the equivalent of the words peso or pesos Philippine currency; by
Executive Order No. 44 dated Manila, October 29, 1904, this character was made the
official "designation for the new Philippine pesos," and since that date its use for the
purpose has become uniform and universal. We think that the allegation that the
defendant stole the checks described in the tabulated statement set out in the
information, and the sum of P178.08 in cash "which amount in all to the sum of P3,041.56
pesos Filipinos," is a sufficiently definite allegation of the value of the stolen property;
and that it is so clear and explicit as "to leave no room for doubt in the mind of any
person of even rudimentary intelligence" that it meant to charge the defendant with the
theft of the sum of money therein mentioned and of the checks therein described, the
total value of which was the sum therein indicated, the value of each separate check
being the amount for which it was drawn as set out in the tabulated statement.

The bill of rights for the Philippines, giving the accused the right to demand the
nature and cause of the accusation against him does not fasten forever upon those
Islands the inability of the seventeenth century common law to understand or
accept a pleading that did not exclude every misinterpretation capable of occuring
to intelligence fired with a desire to pervert. (Paraiso vs. United States, 207 U. S.,
368; 11 Phil. Rep., 799.)

Counsel also contends that whatever be the nature of the offense committed by the
defendant in abstracting money and checks from the safe of which he carried the key, it

214
is not theft (hurto). His argument is that one can not steal from one's self, and that one
who misappropriates funds or other personal property which are under his control may
perhaps be convicted of some offense of the nature of estafa (embezzlement), or
misappropriation or defalcation of public funds if the funds abstracted are public funds;
but that theft necessarily implies the taking of property from the possession of another.
We do not question the soundness of the legal proposition thus stated, but as we
understand the admitted facts in this case, the defendant did not have the funds and
property contained in the safe under his control. He had no authority of his own volition
to withdraw funds from the safe upon any pretext whatever. The funds were placed in
the safe and could only be taken from it by his superior officer or by his order. Defendant's
possession of the key and the combination of the safe gave him no control over the
contents. His relation to the contents of the safe was merely that of a guard whose duty
it was to see that no one but his superior officer had access to the funds, and he had no
more right of disposition of the contents of the safe than has a watchman of a warehouse
to whom the key is intrusted the right to dispose of its contents. In the case of U. S. vs.
Webster (6 Phil. Rep., 393), the defendant was a forage master in charge of Government
forage, subject to the orders of the quartermaster, who was directly responsible therefor
to the owner, the United States Government, and without whose order no forage could
be issued. The forage master had no authority to issue any orders or give out any forage
except upon the requisition of the quartermaster, nor was he authorized to receive money
on account of sales of this forage. Without such authority and without an order from the
quartermaster he disposed of hay and oats to the value of some P2,015, for which he
failed to account to the Government. In tat case we said:

The qualified charge of this forage, subject to the orders of a superior, who alone
was responsible o the Government for it, without the right on the part of the
accused to sell it or to part with the physical custody of it unless on written orders,
was not such a possession as to render the abstraction of the property by him
malversation instead of theft.

Counsel's remaining contentions may, for convenience, be summoned up in the

proposition that since, as counsel suggests, checks have no value in themselves, or at
most a mere nominal value, that is, the value of the piece of paper on which they are
written, they are not properly the subject of larceny; and that whatever offense is
committed by one who abstracts a check, the property of another, and thereafter
negotiates it, it is not theft. It is contended that the offense of abstracting and negotiating
a check may be estafa (embezzlement) or one of its kindred offenses, but that is not
theft. This was the theory of the common law under which commercial paper was not the
subject of larceny, for the reason, as it was said, that it has no intrinsic value, and is
merely an evidence or token of the existence of money or property elsewhere. The
common law rule, however, has been abrogated in most American jurisdiction by statutes
making commercial papers the subject of larceny (18 Am. & Eng. Ency. of Law, p. 515)
and it is not in force in these Islands. The supreme court of Spain has repeatedly held
that checks (cheques) and other commercial papers (valores) are subjects of larceny.
Decisions of March 16, 1899, and of March 7, 1900.

In those States where commercial paper has by statute been made the subject of larceny,
the statute generally provides that the face value shall be taken, prima facie, as its value
for the purpose of the statute, though this last provision is not universal. In Vermont,
commercial paper was by statute made the subject of larceny without any regulation as
to its value. In the recently decided case of State vs. McClellan (23 L. R. A. ( N. S.) 1063),
an unendorsed check was held to be the subject of larceny, and for the purpose of
determining the degree of the crime its value was held to be its face value, or the amount
for which it was drawn and which could have been realized upon it by its legal owner.

215
A check in the hands of its lawful owner is something more than a mere evidence or
token of the existence of money elsewhere. It is an instrument which, from its peculiar
qualities as a commercial document, places certain funds under the special control of its
lawful holder so long as he retains it in his possession. It confers upon its holder
exceptional and peculiar powers as to the disposition of the funds against which it is
drawn, and enables him to realize those funds without regard to the mutual relations
existing between himself and the drawer of the check or the depository wherein the funds
are actually placed. Furthermore, as a result of the peculiar qualities of a check as a
commercial instrument, the lawful holder, so long as he retains possession, has not only
the right to the funds against which it is drawn, but a claim against the drawer and
previous endorsers in the event of a failure of these funds in whole or in part; provided,
however, there is due diligence on his part in asserting his claim, and in case of endorsers
in protesting the check in the event of nonpayment. The loss of possession of a check
deprives the owner of the immediate control of the funds against which it is drawn, and
may involve the loss of the fund itself, unless he adopts prompt and efficient measures
to protect himself; indeed if the check be made payable to bearer its abstraction from his
possession exposes him to the risk of loss of the fund without redress except only as
against the guilty person. Manifestly these peculiar qualities which the law confers upon
commercial instruments of this kind, and the exceptional incidents attaching to such
instruments in the hands of a lawful owner, give them an actual substantial value in his
hands which may and should be measured by the amount of cash which may be realized
upon them, that it to say, in the case of a good and valid check, by its value; and evidence
that a check is a good and valid check is prima facie proof that it is worth its face value
in the hands of the lawful owner. We are of opinion that a check is in a very real sense
personal property, and that when abstracted with the intention of converting it to use of
the person taking it, the abstraction of the check constitutes a taking of personal property
from the possession of another, defined and penalized as the crime of hurto (theft) in the
Penal Code.

As to the unendorsed checks made payable to order, the contention that they are of no
value seems also to be based on the theory tat the value of stolen property is to be
determined by its condition when taken; that a check payable to order is an incomplete
instrument as long as it remains unendorsed; that no one can draw money on a stolen
check in the condition in which it is found at the time of the theft as long as it remains
unendorsed by the payee; and that consequently stolen checks payable to order have
only a nominal value at the time of the theft. We are of opinion, however, that it is not
necessary that the subject matter of a larceny should be of value to a third person if
valuable to the owner, and the value of good and valid checks and similar commercial
paper to the owner is, as we have seen, the amount which he is entitled to receive
therefor, ordinarily their face value, that is to say the amount for which they are drawn.
In the case at bar the defendant took personal property of this character from the
constructive possession of its owner with the intention of converting it to his own use.
The fact, admitting that it was a fact, that he could not make use of this property in the
condition in which it was at the moment when he deprived the owner of it without
indorsing it, does not and ought not to determine its value when he is called to account
for his criminal act. The checks in the hands of their lawful owners were completed
instruments. They gave their lawful owner control of the amount of currency
corresponding to their face value, with the power of transferring that control by an
appropriate endorsement was not absolutely essential to the value of these checks in the
hands of an honest holder. A formal assignment in an appropriate public instrument and
perhaps a parol agreement with manual delivery would have been sufficient for that
purpose: as between the assignor and assignee, such an assignment would be complete
and effectual, and the holder of a check thus assigned could enforce his right therein by
appropriate legal proceedings. So far, therefore, as the lawful holder of a check payable

216
to order is concerned, its value is the same whether he has actually endorsed it, or has
yet to do so before demanding payment.

We find no prejudicial error in the proceedings in the court below; the judgment of
conviction and the sentence based thereon should therefore be affirmed, with the costs
of this instance against the appellant. So ordered.

Torres, Mapa, Johnson, Moreland and Trent, JJ., concur.

217
FIRST DIVISION

PEOPLE OF THE PHILIPPINES, G.R. No. 157399

Appellee,
Present:
Davide, Jr., C.J. (Chairman),
- versus - Quisumbing,
Ynares-Santiago,
Carpio, and
Azcuna, JJ.
JOSE TING LAN UY, JR. (Acquitted),
ERNESTO GAMUS y SOTELO,
JAIME OCHOA, all of the National
Power Corporation, and RAUL
GUTIERREZ alias Raul Nicolas,
Alias George Aonuevo, alias
Mara Aonuevo (At large),
Accused. Promulgated:

JAIME OCHOA,
Appellant. November 17, 2005
x ---------------------------------------------------------------------------------------- x

DECISION

YNARES-SANTIAGO, J.:

For allegedly diverting and collecting funds of the National Power Corporation (NPC)
intended for the purchase of US Dollars from the United Coconut Planters Bank (UCPB),
Jose Ting Lan Uy, Jr., Ernesto Gamus,[1] Jaime Ochoa and Raul Gutierrez were indicted
before the Sandiganbayan for the complex crime of Malversation through Falsification of
Commercial Documents defined and penalized under Articles 217 and 171 (8), in relation
to Article 48 of the Revised Penal Code, in an amended Information,[2] docketed as
Criminal Case No. 19558, which alleges

That sometime in July 1990, or for sometime prior or subsequent thereto,

in Quezon City, Philippines, and within the jurisdiction of this Honorable
Court, accused Jose Ting Lan Uy, Jr., a public accountable officer, being the
Treasurer of National Power Corporation (NAPOCOR), Ernesto Gamus and
Jaime Ochoa, both public officers being the Manager of the Loan
Management and Foreign Exchange Division (LOMAFED) and Foreign
Trader Analyst, respectively, also of NAPOCOR, and accused Raul Gutierrez,
alias Raul Nicolas, alias George Aonuevo, alias Mara Aonuevo, a private
individual being a foreign exchange trader, said public officers taking
advantage of their official positions, with grave abuse of authority and
committing the offense in relation to their office, conspiring, confederating

218
 and mutually helping one another, with their private co-accused, did then
and there willfully, unlawfully and feloniously falsify or cause to be falsified
the NPCs application for managers checks with the Philippine National Bank
(PNB), NPC Branch in the total amount of ONE HUNDRED EIGHTY THREE
MILLION EIGHT HUNDRED FIVE THOUSAND TWO HUNDRED NINETY ONE
PESOS and TWENTY FIVE CENTAVOS (P183,805,291.25), Philippine
Currency, intended for the purchase of US dollars from the United Coconut
Planters Bank (UCPB), by inserting the account number of Raul Gutierrez
SA-111-121204-4, when in truth and in fact as the accused well knew that
the Payment Instructions (PI) when signed by the NAPOCOR authorities did
not indicate the account number of Raul Gutierrez, thereby making
alteration or intercalation in a genuine document which changes its
meaning, and with the use of the said falsified commercial documents,
accused succeeded in diverting, collecting and receiving the total amount
of ONE HUNDRED EIGHTY THREE MILLION EIGHT HUNDRED FIVE
THOUSAND TWO HUNDRED NINETY ONE PESOS AND TWENTY FIVE
CENTAVOS (P183,805,291.75), Philippine Currency from the National Power
Corporation, which they thereafter malverse, embezzle, misappropriate and
convert to their own personal use and benefit to the damage and prejudice
of the National Power Corporation in the aforementioned sum.

CONTRARY TO LAW.

Upon arraignment, Gamus, Uy and Ochoa pleaded not guilty to the charge, while
Gutierrez has remained at large.

On pre-trial, the prosecution and the defense stipulated

1. That accused Uy at the time stated in the information was a Treasurer

at the NPC;

2. That accused Ernesto Gamus was at the time mentioned in the

information was (sic) the Manager of Loan Management and Foreign
Exchange Division (LOMAFED);

3. That accused Jaime Ochoa was the Senior Financial Analyst, LOMAFED,
at the time mentioned in the information;

4. That accused Gamus does not have any custody to (sic)

public funds;

5. That accused Ochoas position as Sr. Financial Analyst did not

require him to take custody or control of public funds;

6. That the application forms for cashiers check or Managers

check are not accountable forms of the NAPOCOR.[3]

Trial on the merits thereafter ensued. On May 28, 2002, the Sandiganbayan
rendered its Decision,[4] the dispositive portion of which reads:

219
 WHEREFORE, premises considered, accused Jaime B. Ochoa is hereby
found GUILTY beyond reasonable doubt of the crime of Malversation thru
falsification of Commercial Documentand is sentenced to suffer the penalty
of reclusion perpetua and to pay a fine equal to the amount malversed
which is ONE HUNDRED EIGHTY THREE MILLION EIGHT HUNDRED FIVE
THOUSAND TWO HUNDRED NINETY ONE PESOS AND TWENTY FIVE
CENTAVOS (P183,805,291.25) solidarily with accused Jose Ting Lan Uy, Jr.
Accused Ochoa shall also suffer the penalty of perpetual disqualification.
Costs against the accused.

On the ground of reasonable doubt, accused JOSE TING LAN UY, Jr. is
hereby ACQUITTED of Malversation of Public Funds thru Falsification of
Commercial Document. However, because of preponderance of evidence,
he is CIVILLY LIABLE for the damages suffered by the NPC in the amount
of ONE HUNDRED EIGHTY THREE MILLION EIGHT HUNDRED FIVE
THOUSAND TWO HUNDRED NINETY ONE PESOS AND TWENTY FIVE
CENTAVOS (P183,805,291.25) solidarily with accused Jaime Ochoa. The
Hold Departure Order against the accused embodied in this Courts
Resolution dated April 18, 2002 is recalled.

Let an alias warrant of arrest be issued against Raul Gutierrez, alias Raul
Nicolas, alias George Aonuevo, alias Mara Aonuevo with last known address
at 1348 A. Mabini Street, Ermita, Manilaor Suite 603 VIP Building, Roxas
Boulevard, Manila.

SO ORDERED.[5]

Aggrieved, Ochoa interposed this appeal alleging that the Sandiganbayan erred in

1. convicting him based on the allegations in the information;

2. admitting and considering his alleged sworn statements;

3. considering the alleged transcripts of stenographic notes and the NBI

Report.[6]

The factual antecedents of the case, as summed by the Sandiganbayan, are not disputed
by the parties:

In July of 1990, the National Power Corporation (NPC) became embroiled

in a controversy involving the disappearance of P183,805,291.25 of its
funds which were originally on deposit with the Philippine National Bank,
NPC Branch (PNB) but were subsequently used to purchase two (2)
managers/cashiers checks (the first check was in the amount of
P70,000,000.00 while the second was for P113,805,291.25) in order to
comply with its loan obligations to the Asian Development Bank (ADB). As
NPCs debt in favor of ADB was in yen, NPC was obligated to follow an
intricate and circuitous procedure of buying US dollars from a local bank (in
this case, United Coconut Planters Bank or UCPB T.M. Kalaw Branch), which
local bank was supposed to remit the US dollars to an off-shore bank. This
off-shore bank (in this case, the Credit Lyonnais, New York) was then

220
 supposed to remit the yen equivalent of the US dollars to a third bank (in
this case, the Bank of Japan, Tokyo Branch) which would then credit the
funds to the account of the ADB. The contracts of NPC with the concerned
banks (embodied in three [3] Payment Instructions) included a value date
(which was July 13, 1990), the mere arrival of which would trigger the
above-mentioned procedure, culminating in the payment to ADB of the NPC
obligation in the foreign currency agreed upon.

On value date, per routing procedure, Credit Lyonnais (the second bank)
remitted Japanese Yen 1,143,316,130.00 to the Bank of Japan, Tokyo
Branch. Likewise, per routing procedure, UCPB T.M. Kalaw Branch was
supposed to have remitted on said value date the amount of
US$7,740,799.80. UCPB T.M. Kalaw, however, despite the fact that the PNB
had already issued two (2) managers/cashiers checks (Managers check for
brevity) for such purpose, did not make the agreed remittance to Credit
Lyonnais, so Credit Lyonnais received no payment for the funds it had
remitted to the Bank of Japan, Tokyo. Both the State and the accused have
offered explanations for the failure of UCPB, T.M. Kalaw Branch to remit the
dollar equivalent of P183,805,291.25 to Credit Lyonnais. Both explanations,
naturally, were diametrically opposed.[7]

The prosecution theorizes that the accused diverted the funds covered by the two PNB
Managers checks by falsifying a commercial document called an Application for Cashiers
Check (ACC) by inserting an account number (A/C #111-1212-04) of a private individual
after the name of the payee, UCPB, T.M. Kalaw Branch. It claims that NPC did not
authorize the insertion considering that the Payment Instruction (PI) issued by NPC
instructing PNB to prepare a Managers check to be charged to NPCs savings account did
not contain any account number. Through the insertion, the accused allegedly succeeded
in diverting the funds from the UCPB, T.M. Kalaw Branch in favor of Raul Gutierrez @
Raul Nicolas @ George Aonuevo @ Mara Aonuevo, who is still at large.

In his defense, appellant asserts that there was no evidence that he committed any of
the acts alleged in the information, particularly the intercalation on the ACC; that he
deposited the checks subsequently issued or that he received the proceeds thereof; or
that he conspired with any of his co-accused. He claims that his conviction was based on
the alleged sworn statement and the transcript of stenographic notes of a supposed
interview with appellant by the NPC personnel and the report of the National Bureau of
Investigation (NBI). Appellant maintains that he signed the sworn statement while
confined at the Philippine Heart Center and upon assurance that it would not be used
against him. He was not assisted by counsel nor was he apprised of his constitutional
rights when he executed the affidavit.

221
To be found guilty of malversation, the prosecution must prove the following essential
elements:

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.[8]

Appellant insists that he could not be convicted under the allegations in the information
without violating his constitutional right to due process and to be informed of the
accusation against him. He points out that the information alleges willful and intentional
commission of the acts complained of while the judgment found him guilty of inexcusable
negligence amounting to malice.

Appellants contention lacks merit. Malversation may be committed either through a

positive act of misappropriation of public funds or property or passively through
negligence by allowing another to commit such misappropriation.[9] To sustain a charge
of malversation, there must either be criminal intent or criminal negligence[10] and while
the prevailing facts of a case may not show that deceit attended the commission of the
offense, it will not preclude the reception of evidence to prove the existence of negligence
because both are equally punishable in Article 217 of the Revised Penal Code.

More pointedly, the felony involves breach of public trust, and whether it is
committed through deceit or negligence, the law makes it punishable and prescribes a
uniform penalty therefor. Even when the information charges willful malversation,
conviction for malversation through negligence may still be adjudged if the evidence
ultimately proves that mode of commission of the offense.[11] Explicitly stated

Even on the putative assumption that the evidence against petitioner

yielded a case of malversation by negligence but the information was for
intentional malversation, under the circumstances of this case his conviction
under the first mode of misappropriation would still be in order.
Malversation is committed either intentionally or by negligence. The dolo or
the culpa present in the offense is only a modality in the perpetration of the
felony. Even if the mode charged differs from mode proved, the same
offense of malversation is involved and conviction thereof is proper.[12]

222
 The question of whether or not an information charging the commission of the
crime by means of deceit will preclude a conviction on the basis of negligence is neither
novel nor of first impression. In Samson v. Court of Appeals, et al.,[13] we ruled that an
accused charged with willful or intentional falsification can validly be convicted of
falsification through negligence, thus:

While a criminal negligent act is not a simple modality of a willful crime, as

we held in Quizon vs. Justice of the Peace of Bacolor, but a distinct crime
in itself, designated as a quasi offense in our Penal Code, it may however
be said that a conviction for the former can be had under an information
exclusively charging the commission of a willful offense, upon the theory
that the greater includes the lesser offense. This is the situation that obtains
in the present case. Appellant was charged with willful falsification but from
the evidence submitted by the parties, the Court of Appeals found that in
effecting the falsification which made possible the cashing of the checks in
question, appellant did not act with criminal intent but merely failed to take
proper and adequate means to assure himself of the identity of the real
claimants as an ordinary prudent man would do. In other words, the
information alleges acts which charge willful falsification but which turned
out to be not willful but negligent. This is a case covered by the rule when
there is a variance between the allegation and proof, and is similar to some
of the cases decided by this Tribunal.

....

The fact that the information does not allege that the falsification was
committed with imprudence is of no moment for here this deficiency
appears supplied by the evidence submitted by appellant himself and the
result has proven beneficial to him. Certainly, having alleged that the
falsification has been willful, it would be incongruous to allege at the same
time that it was committed with imprudence for a charge of criminal intent
is incompatible with the concept of negligence.

In People v. Consigna, et al.,[14] we ruled that the afore-stated rationale also applies to
the felony of malversation, that is, that an accused charged with willful malversation, in
an information containing allegations similar to the present case, can be validly convicted
of the same offense of malversation through negligence where the evidence sustains the
latter mode of perpetrating the offense.

Appellant next claims that he should be acquitted since his conviction was based on his
sworn statement, transcript of stenographic notes from which the sworn statement was
taken and the NBI Report, which are incompetent evidence. He contends that his sworn
statement was taken without the benefit of counsel, in violation of his constitutional right
under Section 12, Article III of the 1987 Constitution.

223
Paragraph 1, Section 12, Article III of the 1987 Constitution states that

Section 12. (1). Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain silent and
to have competent and independent counsel preferably of his own choice.
If the person cannot afford the services of counsel, he must be provided
with one. These rights cannot be waived except in writing and in the
presence of counsel.

The investigation under the above-quoted provision refers to a custodial

investigation where a suspect has already been taken into police custody[15] and the
investigating officers begin to ask questions to elicit information and confessions or
admissions from the suspect.[16] More specifically

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. And, the rule
begins to operate at once as soon as the investigation ceases to be a
general inquiry into an unsolved crime and direction is then aimed upon a
particular suspect who has been taken into custody and to whom the police
would then direct interrogatory question which tend to elicit incriminating
statements.[17]

Succinctly stated, custodial investigation refers to the critical pre-trial stage when
the investigation ceases to be a general inquiry into an unsolved crime but has begun to
focus on a particular person as a suspect.[18] Such a situation contemplated has been
more precisely described thus 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....[19]

Clearly, therefore, the rights enumerated by the constitutional provision invoked

by accused-appellant are not available before government investigators enter the
picture.[20] Thus we held in one case[21] that admissions made during the course of an
administrative investigation by Philippine Airlines do not come within the purview of
Section 12. The protective mantle of the constitutional provision also does not extend to
224
admissions or confessions made to a private individual,[22] or to a verbal admission made
to a radio announcer who was not part of the investigation,[23] or even to a mayor
approached as a personal confidante and not in his official capacity.[24]

Along the same vein, we held that a videotaped interview showing the accused
unburdening his guilt willingly, openly and publicly in the presence of newsmen is not
covered by the provision although in so ruling, we warned trial courts to take extreme
caution in further admitting similar confessions because we recognized the distinct
possibility that the police, with the connivance of unscrupulous media practitioners, may
attempt to legitimize coerced extrajudicial confessions and place them beyond the
exclusionary rule by having an accused admit an offense on television.[25]

Neither does the constitutional provision on custodial investigation extends to a

spontaneous statement, not elicited through questioning by the authorities, but given in
an ordinary manner whereby the accused orally admits having committed the
crime,[26] nor to a person undergoing an audit examination because an audit examiner is
not a law enforcement officer.[27]
Thus, the flaw in appellants argument in this regard becomes immediately
apparent vis--vis the foregoing legal yardsticks, considering that his statement was taken
during the administrative investigation of NPCs audit team[28] and before he was taken
into custody. As such, the inquest was still a general inquiry into an unsolved offense at
the time and there was, as yet, no specific suspect.

Much less can appellant claim that he was in police custody because he was
confined at the time at the Philippine Heart Center and he gave this statement to NPC
personnel, not to police authorities.[29] Appellant can hardly claim that, under the
prevailing circumstances at the time, whatever degree of compulsion may have existed
went beyond the borders of the unobjectionable where impermissible levels of duress
would force him into making false and incriminating declarations against his interest.
While he may have been persuaded into doing so, he cannot feign that he was intimidated
in such a way as to bring his statements within the ambit of the exclusionary constitutional
provision.

The fact that an NBI investigation was being contemporaneously conducted at the
time the sworn statement was taken will not extricate appellant from his predicament.
The essence of the constitutional safeguard is protection from coercion. The interview
where the sworn statement is based was conducted by NPC personnel for the NPCs
administrative investigation. Any investigation conducted by the NBI is a proceeding
225
separate, distinct and independent from the NPC inquiry and should not be confused or
lumped together with the latter.

Appellant invokes Galman v. Pamaran[30] in insisting that the constitutional

safeguard should have been applied notwithstanding that he was not yet arrested or
under detention at the time. He also invites our attention to the pronouncements of Fr.
Joaquin G. Bernas[31] that the right to counsel is available if a person is in custody, even
if he is not a suspect; or even if not yet in custody but he is a suspect.

The contention is tenuous. Although we held in Galman that the constitutional

protection covers not only confessions but admissions as well, we qualified the ruling with
the statement that what is being eschewed is the evil of extorting a confession from the
mouth of the person being interrogated. As defined, extortion is an act or practice of
taking or obtaining anything from a person by illegal use of fear, whether by force, threats
or any undue exercise of power.[32] In the context of obtaining an admission, extorting
means compelling or coercing a confession or information by any means serving to
overcome his power of resistance, or making the confession or admission
involuntary.[33] In this case, we find nothing on record to support appellants claim that
his statements were extorted from him.

Furthermore, while indeed Galman taken together with the 1986 deliberations on
what was later to become Section 12 (1) of the 1987 Constitution may lead to the
conclusion that the rights are available when the person is already in custody as a suspect,
or if the person is a suspect even if he is not yet deprived in any significant way of his
liberty, Fr. Bernas[34] qualified this statement by saying that [J]urisprudence under the
1987 Constitution, however, has consistently held, following Escobedo, the stricter view,
that the rights begin to be available only when the person is already in custody.[35]
Appellant next advances the argument that even if his sworn statement were
admissible in evidence, the contents thereof may not be sufficient to sustain a conviction.
He contends that although his statement was supposedly gathered from the transcript of
stenographic notes of the conversation between him and Atty. Bagcal, neither Atty.
Bagcal nor the person who actually prepared the sworn statement was presented.
Therefore, the sworn statement is hearsay.

The argument is puerile. It bears stressing that the prosecution presented as

witness Atty. Lamberto P. Melencio who saw appellant at the hospital to show him the
prepared statement and to verify from him the truth of its contents.[36] Atty. Melencio

226
testified that he asked appellant to go over the document before affixing his signature
thereto.[37]He also inquired whether or not appellant was coerced or intimidated by
anybody when the statement was taken.[38] Appellant denied that he was coerced or
intimidated,[39]affirmed the contents of the document as a true reflection of his
statements,[40] and signed the same.[41] It need not be overemphasized that the sworn
statement is a duly notarized document which has in its favor the presumption of
regularity and, thus, it can be contradicted only by clear and convincing evidence. Without
that sort of evidence, the presumption of regularity, the evidentiary weight conferred
upon such public document with respect to its execution, as well as the statements and
the authenticity of the signatures thereon, stand.[42]

In disclaiming the authenticity of his sworn statement, appellant insists that at the
time he signed the document, he was confined in the hospital and therefore not physically
and mentally fit to assess the significance of his signature. This pretext however collides
with the testimony of his own witness, Dr. Teresita Sadava, who stated that appellant
was confined for three days and, who, when queried whether ischemic heart disease had
any emotional or psychological effect, gave the inconclusive reply that it may or may not.
Moreover, as aptly observed by the Sandiganbayan, although supposedly violated and
repulsed as he was by the alleged falsity of the affidavit, it is strange that appellant, who
is supposedly astute in business matters as he then occupied the position of Foreign
Trader Analyst of the NPC, nevertheless felt it unnecessary to execute another affidavit
retracting the same after his recovery from illness. Verily, evidence to be believed must
not only proceed from the mouth of a credible witness, but must be credible in itself such
as the common experience and observation of mankind can approve as probable under
the circumstances.[43]

Appellant finally contends that both the NBI Investigation Report and the transcript
of stenographic notes are hearsay for having been made extra-judicially. The record,
however, shows that the prosecution presented the team leader of the NBI investigators
who conducted the investigation, although his testimony was dispensed with as the
parties stipulated on the existence and due execution of the NBI Investigation report
albeit without admitting the truth of its contents. If at all, the admission of the reports
existence is an acknowledgment that it is neither spurious nor counterfeit.

All told, given the paucity of substance in the arguments advanced by appellant to
prop up his cause, his appeal must fall.

227
 WHEREFORE, the May 28, 2002 Decision of the Sandiganbayan is
hereby AFFIRMED in all respects.

SO ORDERED.

228