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 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
1
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 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 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
2
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 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
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
3
 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.
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 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
4
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.
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, Governor Moore, with the threat that if
their request were not granted, they would oppose the
5
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.
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.
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.

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.

6
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 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.
7
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 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 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.
8
 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.
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.
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.
9
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.)
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 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.
10
The existence of a joint assent may be reasonably Felisardo Favinal, Gaspar Andrade, Felix Lamsing, and
inferred from the facts proved. Not along are the men who Vicente Casimiro, to suffer imprisonment for ten years,
fired the fatal shots responsible, not along are the men and to pay one seventy-seventh part of the costs; the
who admit firing their carbines responsible, but all, having private Francisco Garcia, who sawed the bars of the
united to further a common design of hate and window through which the defendants passed from Santa
vengeance, are responsible for the legal consequences Lucia Barracks and each of the corporals E. E. Agbulos,
therefor. Francisco Ingles, Clemente Manigdeg, Juan Abarquez,
Pedro V. Mateo, Juan Regalado, Hilario Hibalar and
We rule that the trail court did not err in declaring that Genaro Elayda, to suffer imprisonment for ten years and
there a c conspiracy between the accused. 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
3. The conviction of the accused of a violation of the
imprisonment for ten years and to pay a fine of P10,000
Treason and Sediton Law
and one seventy-seventy of the costs. The trial judge
appears to have made a reasonable exercise of the
Sedition, in its more general sense, is the raising of discretion which the law reposes in him.
commotions or disturbances in the State. The Philippine
law on the subject (Act No. 292) makes all persons guilty
We cannot bring to a close this disagreeable duty without
of sedition who rise publicly and tumultuously in order to
obtain by force or outside of legal methods any one of vie making our own the pertinent observations found in the
objects, including that of inflicting any act of hate or decision of the trial court in this case. Therein, along
toward the closed of his learned opinion, Judge Harvey
revenge upon the person or property of any official or
said:
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 Rarely in the history of criminality in this country
been committed, and we believe that such finding is has there been registered a crime so villainous as
correct. 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,
Counsel's contention that in order for there to be a
violation of subdivision 3 of section 5 of Act No. 292 it is imprisonment for ten year and a fine P10,000, is
and necessary that the offender should be a private not really commensurate with the enormity of the
offense. Impelled by hatred, employing their
citizen and the offended party a public functionary, and
knowledge of military sciences which is worthy of
that what really happened in this instance was a fight
a better cause, and in disregard of the
between two armed bodies of the Philippine Government,
consequences to themselves and their innocent
is absolutely without foundation. Subdivison 3 of section
5 of the Treason and Sedition Law makes no distinction loved ones, and using the means furnished to
between the persons to which it applies. In one scene them by the Government for the protection of life
and property, they sought by force and violence
there was a fights between two armed bodies of the
and outside of legal methods to avenge a fancied
Philippine Government, but it was an unequal fight
wrong by an armed and tumultuous attack upon
brought on by the actions of the accused.
officials and agents of the government of the city
of Manila.
We rule that the trial court did not err in convicting the
accused of the violation of section 5, paragraph 3, of Act
Although in view of the sentence which is being handed
No. 292 of the Philippine Commission.
down in the murder case, affecting these same
defendants and appellants, it would seem to be a useless
JUDGEMENT formality to impose penalties in this case, yet it is
obviously our duty to render judgement appealed from,
The Treason and Sedition Law provides as a penalty for with one seventy-seventh of the costs of this instance
any person guilty of sedition as defined in section 5 of the against each appellant. So ordered.
law, punishment by fine of not exceeding P10,000 or by
imprisonment not exceeding ten years, or both. In this Araullo, C.J. Johnson, Street, Avanceña, Villamor,
connection, it will be recalled that the court sentenced Ostrand, Johns and Romualdez, JJ., concur.
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, Nemesio Camas, Luis Borja, Severino Elefane,
Vicente Tabien, Marcos Marquez, Victorino Merto,
Bernabe Sison, Eusebio Cerrudo, Julian Acantilado,
Ignacio Lechoncito, Pascual Dionio, Marcial Pelicia,
Article 142
Rafael Nafrada, Zacarias Bayle, Cipriano Lizardo,
Ildefonso de la Cruz, Juan Miranda, Graciano Zapata,
11
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:
"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
12
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."
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.)
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.)
13
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.
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.
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
14
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 governor of the province, testified as follows:
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 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
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 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
15
Torres, Mapa, Carson and Tracey, JJ., concur.
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 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.
16
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.
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.
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
17
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:
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.
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
18
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?
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.
19
 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.
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.
20
 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
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 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).
21
 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 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]
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
22
 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 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 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.
23
 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.
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 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
24
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.
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.
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
25
a place called Mutingbayan. The policeman attempted to touched by the accused, these facts do not relieve him
take hold of the appellant, but he resisted, striking at the from criminal responsibility.
policeman again with his knife. The councilman then
ordered the appellant to submit himself, and on receiving The penalty imposed by the court below being in
this order the appellant said: "I do not recognize anyone," accordance with the law and the proofs presented, the
and struck at the councilman with the knife. same is hereby affirmed, with costs against the Appellant.
So ordered.
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.
SECOND DIVISION
Article 249 of the Penal Code provides that the following
commit criminal attempt:chanrob1es virtual 1aw library [G.R. No. 11941. December 7, 1916. ]

x x x THE UNITED STATES, Plaintiff-Appellee, v. JUAN

ALVEAR ET AL., Defendants-Appellants.

"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
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

26
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 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 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.
27

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
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.
28
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
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 letter6 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:
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. –
29
(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
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 be declared null and void for
being unconstitutional; that respondent Executive
30
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
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
31
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 memorandum 27 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:
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 memorandum 38 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 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
32
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
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 rights51 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.
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
33
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
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 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
34
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.
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
inextricably rooted in the separation of powers under the
Constitution x x x " (Emphasis and underscoring supplied)
35
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 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
36
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.
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 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)
37
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.
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 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
38
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 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 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
39
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 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.
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
40
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 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.
41
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:
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.
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
42

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, 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
"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
43
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 ARTICLE 163
public order. Where no municipal ordinance or public law
or regulation forbidding such gatherings is violated, a G.R. No. L-2747 April 11, 1906
criminal breach of the peace can not properly be said to
have been committed, unless the disturbance created is THE UNITED STATES, plaintiff-appellee,
such that it exceeds the limits within which the partisans vs.
may fairly be required to restrict themselves under the AGUSTIN BASCO, defendant-appellant.
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 Vicente P. Delgado, for appellant.
consist of their assembling together and making public Office of the Solicitor-General Araneta, for appellee.
demonstrations, but in exceeding those limits of public
order and good behavior beyond which, under the MAPA, J.:
circumstances, the citizen may not pass.
It was proved at the trial of this case that the defendant
Nor can we agree with the trial judge that the conduct of attempted to pay for a package of cigarettes which he
these accused amounted to a "grave" breach of the bought at a certain store with what appeared to be silver
peace, because of the serious disorders which it appears coin, but which, as a matter of fact, was a Philippine
broke out in the municipality after the election. Had the copper cent; that he insisted that the owner of the store
proof shown that these disorders resulted directly or even should accept the same as a peseta, that is to say, a
indirectly from the disorderly conduct of the crowd of twenty cent piece; that the latter refused to accept it upon
which these accused formed a part, that fact might noticing what the real value and denomination of the coin
perhaps be taken into consideration, in characterizing the was; that the defendant again insisted that the money be
public disorder of which they were guilty; but there is not accepted and the owner of the store refused to do so; that
a particle of evidence which shows any relation of cause as a result of such refusal a quarrel ensued between
and effect, between the conduct of these accused on the them; that a policeman then interfered, and upon being
night in question and the disturbances in the municipality informed of what had happened, placed the defendant
which took place after the election had been held. under arrest and took him to the police station, where
several Mexican and Japanese coins were found in his
So too, when it is considered that the local municipal possession together with a roll of Philippine copper cents,
officials had a perfect right to take part in an election the latter being silver plated, and identical with the coin
meeting and to join in a gathering of partisans of one which he had attempted to pass at the store as a twenty-
candidate or the other, we do not think that their presence cent piece; and that upon an examination of these plated
in the crowd substantially affected its nature, object, or coins it was found that they were genuine Philippine
purposes so as to convert the slight disorder of which its copper cents, which apparently and been whitened with
members were guilty into a grave breach of the peace. quicksilver to give them the color and brightness of silver.

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.
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
44
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
ARTICLE 171
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 G.R. No. 180314 April 16, 2009
of estafa and not of counterfeiting money. There were not
legal grounds upon which a charge for these latter offense NORMALLAH A. PACASUM, Petitioner,
could be based. vs.
PEOPLE OF THE PHILIPPINES, Respondent.
The judgment appealed from is hereby reversed and the
defendant acquitted of the charge of counterfeiting money DECISION
contained in the complaint, and the Attorney-General is
directed to present another complaint against him for the CHICO-NAZARIO, J.:
crime of estafa. It is ordered that the Mexican and
Japanese coins found in the possession of the defendant
Before Us is a petition for review on certiorari which seeks
be returned to him. The costs of both instances are
to set aside the Decision1 of the Sandiganbayan in Crim.
declared de oficio. After the expiration of ten days from
Case No. 27483 promulgated on 7 August 2007 which
the date of final judgment, let the case be remanded to
found petitioner Normallah A. Pacasum guilty of
the Court of First Instance from whence it came for proper
Falsification under Article 171, paragraph 1 of the Revised
procedure. So ordered.
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
45
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 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 memorandum 14 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. 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
46
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
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
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
47
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 As to the first contention, we agree with petitioner that
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
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.
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.
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.
48
 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 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
49
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 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
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
50
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.
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.
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
51
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.
"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 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
52
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.
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.
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
53
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]
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:
54
1. That he admits with so much regret that he indeed
committed the act complained of;
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 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
55
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.
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.
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
56
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.
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 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.
57
"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.
"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."
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.
58

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 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
59
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 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.
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
60
 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.
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 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.
61
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.
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.

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 G.R. No. L-36345 November 25, 1932
general provisions of the Revised Penal Code on other
acts of falsification not covered by the special law, since
THE PEOPLE OF THE PHILIPPINE
under Art. 10 of the Rev. Penal Code, it has
ISLANDS, plaintiff-appellee,
supplementary application to all special laws, unless the
vs.
latter should specially provide the contrary, and
PEDRO MONTANO and WENCESLAO
Commonwealth Act No. 465 makes no provision that it
CABAGSANG, defendants-appellants.
exclusively applies to all falsifications of residence
certificates. Then, again, section 12 of Commonwealth
Act. No. 465 penalize all other violations of the residence M. H. de Joya for appellants.
certificate law not covered by the preceeding sections Attorney-General Jaranilla for appellee.
thereof. Which law is applicable should be determined
when the case is decided on its merits. At the present BUTTE, J.:
stage of the proceedings, however, it can be stated that
whether the crime charged be punishable under the
62
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.
[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.
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
63
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 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
64
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.
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.
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
65
based was not proved by the Government. He says in
brief:
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.
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.
66

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.)
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
67
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 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 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
68
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 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 The materiality of a matter sworn to must be established
"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 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.
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.)
69

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.)
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 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
70
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.
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
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
71
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 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.
72
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 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 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:
73
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.
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
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,
74
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.
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.
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.
75
 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.
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.
Another charge imputed against respondent sheriff
is the act of having committed perjury. Perjury is the
76
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 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
77
giving false testimony in an effort to obtain unfairly a
favorable judgment for himself. Corporation (HTC), a corporation duly organized and
WHEREFORE, the Court finds respondent Sheriff IV
existing under the laws of the Philippines. The matter
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 involved 151.070 tons of magnesite-based refractory
service with forfeiture of all benefits, excluding accrued
leave credits, with prejudice to re-employment in any bricks from Germany.[2] The case was docketed as Anti-
branch or agency of the government, including
government-owned or controlled corporations.Let a copy Dumping Case No. I-98.
of this decision be attached to the personnel records of
Ireneo S. Paz.
The protest was referred to the Bureau of Import Services
SO ORDERED.
SECOND DIVISION (BIS) of the Department of Trade and Industry, to

determine if there was a prima facie case for violation

CRISTE B. VILLANUEVA, G.R. No. 162187
Petitioner, of Republic Act (R.A.) No. 7843, the Anti-Dumping Law.
Present:
PUNO, J., Chairman, Sometime in February 1997, the BIS submitted its report
- versus - AUSTRIA-MARTINEZ,
CALLEJO, SR., to the Tariff Commission, declaring that a prima
TINGA, and
CHICO- facie case existed and that continued importation of
NAZARIO,* JJ.
THE HON. SECRETARY OF refractory bricks from Germany would harm the local
JUSTICE and HORST-KESSLER Promulgated:
VON SPRENGEISEN, industry. It adopted the amount of DM 1,200 per metric
Respondents. November 18,
2005
ton as the normal value of the imported goods.[3]
x----------------------------------------
----------x
The HTC received a copy of the said report on

DECISION February 14, 1997. However, before it could respond, the

chairman of the Tariff Commission prodded the parties to

CALLEJO, SR., J.: settle the matter amicably. A conference ensued between

RCP Senior Vice President and Assistant General

Before the Court is a petition for review on certiorari of the Manager Criste Villanueva and Jesus Borgonia, on the

Decision[1] of the Court of Appeals (CA) in CA-G.R. SP one hand, and HTC President and General Manager

No. 76999 dismissing the petition for certiorari assailing Horst-Kessler Von Sprengeisen and Sales Manager

the finding of the Secretary of Justice that no probable Dennis Gonzales, on the other. During the conference,

cause exists against private respondent Horst-Kessler the parties agreed that the refractory bricks were imported

Von Sprengeisen for perjury. 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

The Antecedents to avoid expenses and protracted litigation. HTC was

required to reform its price policy/structure of its

On April 2, 1996, the Refractories Corporation of the
importation and sale of refractory bricks from Germany to
Philippines (RCP) filed a protest before the Special
conform to the provisions of R.A. No. 7843 and its rules
Committee on Anti-Dumping of the Department of
and regulations. Jesus Borgonio thereafter prepared and
Finance against certain importations of Hamburg Trading

78
signed a compromise agreement containing the terms the said importation under the decision of the Special

agreed upon which Villanueva and Borgonia Committee based on the BIS report was DM 1,200 per

signed.[4] Bienvenido Flores, an Office Clerk of RCP, metric ton. On July 28, 1998, the HTC filed an Urgent

delivered the agreement to HTC at the 9th Floor of Ramon Motion to Set Aside and/or Vacate Judgment with the

Magsaysay Center Building, 1680 Roxas Boulevard, Special Committee on Anti-Dumping, praying that such

Manila by Von Sprengeisens approval.[5] decision be declared null and void on the following

grounds:
However, Von Sprengeisen did not sign the
1. THE FRAUD HAD BEEN
agreement. Borgonia revised the agreement by inserting COMMITTED BY THE PROTESTANT
DURING THE NEGOTIATION FOR THE
the phrase based on the findings of the BIS in paragraph PREPARATION OF THE
COMPROMISE AGREEMENT.
1 thereof. Villanueva and Borgonia signed the agreement
2. THAT INSERTIONS AND/OR
and had the same delivered to the office of HTC on April SUBSTITUTION OF THE FACTS NOT
AGREED UPON WAS DELIBERATELY
AND SURREPTITIOUSLY MADE BY
22, 1997 by Lino M. Gutierrez, a technical assistant of
THE PROTESTANT IN THE
COMPROMISE AGREEMENT
RCP. Gonzales received the agreement and delivered the
WITHOUT THE KNOWLEDGE AND
CONSENT OF THE PROTESTEE.[9]
same to Von Sprengeisen. After 20 minutes, Gonzales

returned, with the agreement already signed by Von

The motion was verified by Von Sprengeisen.
Sprengeisen.[6] Gonzales, who had also signed, then
The HTC averred therein that Villanueva violated Article
gave it to Gutierrez. On the same day, Notary Public
172 of the Revised Penal Code when he surreptitiously
Zenaida P. De Zuiga notarized the
inserted the phrase based on the findings of the BIS in the
agreement.[7] Gonzales delivered a copy of the notarized
agreement without the knowledge and consent of Von
Agreement to HTC.[8]
Sprengeisen and despite their agreement to put behind
RCP submitted the compromise agreement to the
them the findings of the BIS. Appended to the motion was
Tariff Commission. During the May 9, 1997 hearing before
an Affidavit of Merit executed by Von Sprengeisen in
the Commission for the approval of the agreement, a
which he alleged, inter alia, that sometime in February
representative of HTC appeared. He offered no objection
1997, the BIS came out with its Report declaring that the
to the Agreement. The Commission submitted its report
normal value of the magnesite-based refractory bricks
to the Special Committee which rendered a decision
was DM 1,200 per metric ton; before
declaring that, based on the findings of the BIS, the
HTC could respond to the report, Villanueva invited him
normal value of the imported refractory bricks was DM
to a conference for the purpose of finding the best solution
1,200 per metric ton. HTC received a copy of the decision
to the pending case before the Commission; he and
on March 4, 1998. Neither RCP nor HTC appealed the
Gonzales attended the meeting during which it was
decision to the Court of Tax Appeals.
agreed, by way of a compromise, that the parties will

accept the amount of DM 1,050 per metric ton as the

In the meantime, HTC imported refractory bricks
normal value for all magnesite-based refractory bricks
from Germany anew and noted that the normal value of

79
from Germany; when he received the draft of the he declared, inter alia, that Von Sprengeisen made the

compromise agreement prepared by Villanueva, he following false statements in the Urgent Motion, thus:

approved the same; subsequently, Villanueva transmitted a. [Complainant] was the one who called
up his office, inviting him to a
a compromise agreement already signed by him to Von meeting for the purpose of finding
the best and most equitable solution
Sprengeisen for his review, approval and signature; to the case (p. 3, Urgent Motion);

believing that the compromise agreement reproduced the b. RCP and Hamburg Trading agreed to
put behind them the findings and
recommendations of the Bureau of
contents of the first compromise agreement, he signed
Import Services (BIS) with respect
to the anti-dumping protest filed by
the second agreement without reading it; when he
RCP (p. 3, Urgent Motion);
received, on March 4, 1998, a copy of the decision of the c. The original version of the
Compromise Agreement sent to him
Tariff Commission based on the compromise agreement was merely a draft (p. 3, Urgent
Motion);
of the parties wherein the committee adopted the findings
d. The phrase based on the findings of
and recommendations of the BIS (that the normal value the Bureau of Import Services was
inserted in paragraph 1 of the final
of the shipment was DM 1,200 per metric ton), he was Compromise Agreement without his
knowledge and consent (p. 3,
shocked because he never agreed to the use of such Urgent Motion); and

findings for the reformation of its price policies; there was, e. [Complainant] was the one who
surreptitiously inserted the
in fact, an agreement between him and Villanueva to put aforesaid phrase (p. 3, Urgent
Motion).[11]
behind them the findings of the BIS; he called up

Villanueva at his office but failed to contact him despite

Villanueva also alleged that Von Sprengeisen made the
several attempts; suspecting that something amiss
following false statements in his Affidavit of Merit:
happened, he had the draft of the first compromise
a. [Complainant] invited him to a
agreement retrieved but his secretary failed to locate the conference for the purpose of
finding the best solution to the case;
same; it was only sometime later that his secretary found
b. [Complainant and he] agreed to put
behind [them] the findings and
the folder-file containing the draft and was appalled to recommendation of the BIS
submitted to the Secretary of
discover that Villanueva had substantially altered the first Finance;

draft of the compromise agreement; this made him c. We agreed to the amount of DM
1,050/ton as the normal value for all
conclude and confirm his suspicion that Villanueva, thru magnesite-based refractory bricks
from Germany;
deceit and fraud, induced him to sign the compromise
d. The original version of the
agreement to the prejudice of the HTC.[10] Compromise Agreement sent to him
was merely a draft; and

The RCP opposed the motion. But, in a parallel move, e. Through deceit and fraud,
[complainant] induced [respondent]
Villanueva, in his capacity as Senior Vice President and to sign the final Compromise
Agreement.[12]
Assistant General Manager of RCP, filed a criminal

complaint for perjury against Von Sprengeisen in the

In his Counter-Affidavit, Von Sprengeisen averred that
Office of the City Prosecutor of Manila. Appended thereto
whoever called the other for a conference was not a
was a complaint-affidavit executed by Villanueva wherein
material matter. Since the first draft of the Compromise
80
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. 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]
81
 On February 13, 2004, the CA dismissed the disquisitions of the Secretary of Justice in the assailed

petition and affirmed the resolution of the Justice resolution and concluded that the private respondent did

Secretary.[19] not, in the Affidavit of Merit, make a willful and deliberate

assertion of a falsehood.[21]
The CA declared that, as posited by the Office of

the Solicitor General in its comment on the petition, the Aggrieved, the petitioner filed a petition for review

parties had agreed to put behind them the findings and on certiorari with this Court against private respondent

recommendations of the BIS with respect to the anti- Von Sprengeisen and the Secretary of Justice, insisting

dumping protest. The appellate court stated that its finding that the CA committed grave abuse of discretion

is buttressed by the fact that the amount of DM 1,050 was amounting to excess or lack of jurisdiction in dismissing

not mentioned in the first compromise agreement and the petition and affirming the assailed resolution.

that, under such agreement, the HTC obliged itself to

The petitioner maintains that, during the preliminary
reform
investigation, he adduced substantial evidence to prove
its pricing policy and structure with respect to refractory
probable cause for perjury against the private respondent.
products being imported to and sold in the Philippines in
He maintains that probable cause does not mean actual
accordance with the provisions of R.A. No. 7843 and its
and positive causes; nor does it import absolute certainty.
implementing rules and requirements. The CA
It is merely based on opinion and reasonable belief. It is
emphasized that it was inclined to believe that there was
enough that it is believed that the act or omission
no meeting of the minds of the parties when the petitioner
complained of constitutes the offense charged. He avers
inserted the phrase based on the findings of the BIS in the
that, contrary to the claim of the private respondent in his
revised compromise agreement; hence, there could not
Affidavit of Merit, the meeting between him and Jesus
have been perjury when the private respondent executed
Borgonio, on the one hand, and the private respondent
the Affidavit of Merit and the Urgent Motion to Set Aside
and HTC Sales Manager Dennis Gonzales, on the other,
and/or Vacate Judgment. The CA also agreed with the
was arranged by the latter and not by him. As gleaned
findings of the Secretary of Justice that the insertion of the
from the draft and final copies of the compromise
condition in the compromise agreement that the parties
agreement, the parties made express reference to
would be bound by the BIS findings and recommendation
the prima facie findings of the BIS that the actual export
gave the private respondent reason to believe that he was
price of HTC was below the fair market value. By agreeing
deceived by the petitioner into signing the Agreement; as
that such findings of the BIS be included in the
such, the private respondents allegation in his Affidavit of
Compromise Agreement, the said private respondent
Merit, that he was induced to signing the Compromise
impliedly agreed to such findings as basis of the price for
Agreement through fraud and deceit, was not altogether
which HTC would sell the German-made magnesite-
false. Consequently, the CA ruled, the private respondent
based refractory bricks in the Philippines. The petitioner
did not make any willful and deliberate assertion of a
avers that the fact that the amount of DM 1,050 per metric
falsehood.[20] The appellate court conformed to the

82
ton was not specifically mentioned in the compromise In his Comment on the petition, the private respondent

agreement was of no importance, considering the parties avers that the issues raised by the petitioner are factual,

acceptance of such findings is based on R.A. No. 7843. hence, improper in a petition for

He points out that the private respondent could not have review on certiorari under Rule 45 of the Rules of Court.

failed to notice the difference between the first draft and The determination of the existence of a probable cause is

the final copy of the agreement before signing it because, primarily an administrative sanction of the Secretary of

as alleged by Lino Gutierrez in his reply affidavit, it took Justice. He insists that the findings of the Justice

the private respondent twenty minutes or so after Secretary should be accorded great respect, especially

receiving the agreement to review the final draft before since the same were upheld by the CA. He asserts that

signing it. Moreover, the Urgent Motion to Set Aside the petitioner failed to establish in the CA and in this Court

and/or Vacate Judgment signed by the private respondent that the Justice Secretary committed a grave abuse of

was filed more than 15 months from the execution of the discretion amounting to excess or lack of jurisdiction in

compromise agreement and after four months from the her resolution.

Tariff Commissions approval thereof.

The petition has no merit.

The petitioner argues that it is incredible that

The pivotal issue in this case is factual whether or
during the interregnum of 19 months, the private
not, based on the records, there was probable cause for
respondent failed to discover the revisions/insertions in
the private respondents indictment for perjury.
the final draft of the compromise agreement. Considering

the premises, the petitioner submits, the private Rule 45 of the Rules of Court provides that only

respondents filing of the Urgent Motion for and in behalf questions of fact may be raised in a petition for review

of HTC was merely an afterthought, to enable the latter to on certiorari. Findings of facts of a quasi-judicial agency,

escape compliance with the terms and conditions of the as affirmed by the CA, are generally conclusive on the

Agreement. Court, unless cogent facts and circumstances of such a

nature warranting the modification or reversal of the

The petitioner further insists that the insertion of the
assailed decision were ignored, misunderstood or
contested phrase in the final draft of the compromise
misinterpreted. Thus, the Court may delve into and
agreement was necessary although it may not be in the
resolve factual issues in exceptional cases. The petitioner
best interest of HTC. He posits that the falsehoods made
has failed to establish that any such circumstance is
by the private respondent in his Urgent Motion and
present in the case at bar.[22]
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 The Court finds that the public respondent did not

executed by the parties. 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

83
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 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.
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
84
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
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.
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
the
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
85
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
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.
a
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
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,
86
barren of any legal effect. In this case, the compromise recommended base

agreement prepared by Borgonia had the petitioners value and agreed for HTC to base the normal value of the

imprimatur. Borgonia was merely a witness to the importation per metric ton under R.A. No. 7843 and the

agreement. For all legal intents and purposes, the rules issued implementing the law. This is gleaned from

petitioner had the compromise agreement prepared the affidavit of Borgonia:

under his supervision and control. It cannot thus be 13. During the meeting, Mr. von
Sprengeisen suggested that the value of
concluded that the private respondent made a deliberate DM 1,050/ton be applied as the price at
which Hamburg Trading would sell
falsehood when he alleged that the agreement was German-made magnesite-based
refractory bricks in the Philippines. Mr.
prepared by the petitioner. 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
The Court is not persuaded by the petitioners
provisions of Republic Act No. 7843 and
its implementing rules and
claim that, during the conference, he and the private
regulations. [44]
respondent agreed that, based on the BIS report, the

normal value of the imported refractory bricks per metric Borgonia prepared the first compromise
ton was DM 1,200, and that such report would be used as agreement and incorporated therein the agreement of the
basis for the revision of the price policy and structure of petitioner and the private respondent arrived at during the
HTC. conference, thus:

1. For the purpose of buying peace and

It bears stressing that, during the conference, the by way of concession in order to end
litigation, the SECOND PARTY
petitioner and the private respondent had agreed on three undertakes and commits to reform
its pricing policy and structure with
aspects of the case: (1) based on the prima facie findings respect to refractory products being
imported interest sold in the
of the BIS, the normal value of the goods per meter ton Philippines in accordance with the
provisions of Republic Act 7843 and
was DM 1,200 and that the actual export price of HTC was its implementing rules and
regulations.[45]
below the fair market value; (2) to terminate the case,

HTC will have to adjust and revise its price policy and
If, as claimed by the petitioner in his Affidavit-
structure for imported refractory bricks to conform to R.A.
Complaint, he and the private respondent had agreed that
No. 7843 and rules and regulations implementing the law;
HTC will use as basis for its price policy and structural
and (3) if HTC fails or refuses to comply with its
revision, the BIS report, for sure, Borgonia would have
undertaking, RCP will be entitled to a writ of execution
incorporated the said agreement in the first compromise
without need of demand. However, the petitioner and the
agreement. He did not, and Borgonia has not offered any
private respondent could not have agreed on such base
explanation for such failure. The petitioner signed the
price; the petitioner insisted on the amount recommended
draft of the agreement without any plaint or revision. It
by the BIS (DM 1,200) while the private respondent
was only in the second compromise agreement that was
insisted on DM 950. There was an impasse. By way of a
later signed by the petitioner and the private respondent
compromise, the parties agreed to do away with the BIS
that Borgonia incorporated the phrase

87
 In the event that the Special Committee
based on the findings of the BIS. Borgonia and the fails to decide within the period
prescribed herein, the recommendation
petitioner made the insertion on their own, without the a of the Commission shall be deemed
approved and shall be final and
priori consent of the private respondent. executory.[46]

The Court is not convinced by the petitioners

On the matter of the revision or adjustment of the
contention (and that of Borgonia in his Affidavit) that the
price policy and structure of HTC, the parties had agreed
petitioner and the private respondent had agreed to leave
to accomplish the same in due time. It goes without saying
the final determination of the base value or price of
that the RCP retained the right to object to or protest to
importation per metric ton to a third party (BIS). The
the price policy and structure revision of HTC.
private respondent could not have agreed to the use of

the BIS report because, as mentioned, he had The agreement of the petitioner and the private

strenuously objected to its use as basis for the revision of respondent not to be bound by the base value in the BIS

its price policy and structure. For HTC to admit that the report for the revision of its price policy and structure is

BIS finding of DM 1,200 per metric ton was the normal not unexpected because: (1) the findings of the BIS are

value of the refractory bricks from Germany for the only prima facie, meaning to say, not conclusive, and

purpose of resolving the anti-dumping case is one thing; HTC was accorded a chance to base its price policy and

but for HTC to agree to be bound by the BIS structure on evidence and informations other than those

recommendation for the purpose of revising its price contained in the BIS report; (2) the normal value of the

policy and structure is completely a different matter. imported refractory bricks may fluctuate from time to time,

hence, the need for any importer to revise its price policy
With the petitioner and the private respondents
and structure from time to time; and (3) the base value to
admission of the prima facie findings of the BIS, the
be used by HTC in revising its price policy would be
Commission can prepare its recommendation to the
scrutinized and resolved initially by the Commission, by
Special Committee on the protest of the RCP to the HTC
the Special Committee and by the Court of Tax Appeals
importation subject of the case. Thereafter:
on appeal.
D. The Special Committee shall, within
fifteen (15) days after receipt of the report
of the Commission, decide whether the The process agreed upon by the petitioner and
article in question is being imported in
violation of this section and shall give due the private respondent was not only practical and fair, but
notice of such decision. In case the
decision of dumping is in the affirmative, in accord with law as well.
the special committee shall direct the
Commissioner of Customs to cause the
dumping duty, to be levied, collected and In fine, the private respondent did not commit any
paid, as prescribed in this section, in
addition to any other duties, taxes and falsehood in the Urgent Motion and his Affidavit of Merit
charges imposed by law on such article,
and on the articles of the same specific when he declared that he and the
kind or class subsequently imported
under similar circumstances coming from
petitioner put behind them the BIS report, and agreed to
the specific country.
use R.A. No. 7843 and the rules and regulations

88
 that complainant-appellee had agreed to
implementing the same to determine the base price for such a compromise. The transmittal of
the hard copy Compromise Agreement,
the revision of the price policy and structure of HTC. without any notice or mention by
complainant-appellee or complainant-
appellees office that it contained
Admittedly, the respondent did not object to the insertions or wording different from the
fax Compromise Agreement, and on
offending phrase before and after signing the agreement respondent-appellants understanding
that the wording of the hard copy
Compromise Agreement would be
and for a considerable stretch period until HTC filed its
exactly the same as the fax Compromise
Agreement, constitutes the fraud or
motion. However, we do not agree with the contention of
deceit allegedly by respondent-
appellant.[47]
the petitioner that such failure of the respondent to object

to the offending phrase for such period of time amounted

In his rejoinder-affidavit, the private respondent
to an admission that, indeed, the private respondent was
explained that:
aware of the offending phrase in the Agreement, and to
2. Again, contrary to the allegations in the
his agreement thereto; and estopped the private Reply-Affidavits, I was unable to
review the Compromise Agreement
respondent from alleging that he was deceived by the delivered by Mr. Gutierrez on 22
April 1997 as I was busy with
petitioner into signing the Compromise Agreement. In his numerous calls and business at the
time it was delivered. Also, I had
appeal to the DOJ, the private respondent declared that: been led to believe in our meetings
with Mr. Villanueva and Mr.
3.9 True, respondent-appellant Borgonia that I could trust them. So,
may have been remiss and lacking in after having seen the fax
circumspect in failing to review the hard Compromise Agreement and being
copy Compromise Agreement and notice amenable to it, I trusted that they
the insertion. Being in the trading would send a genuine hard copy. As
business, respondent-appellant it turned out, I was mistaken.[48]
personally handles hundreds of
documents daily and is on the telephone
for most of the day communicating with Moreover, even before filing the Urgent Motion
suppliers and customers. And he had no
reason to believe that either complainant- and signing the Affidavit of Merit, the private respondent
appellee or Mr. Borgonia would make
such an insertion, especially after tried for several times to contact the petitioner, but the
respondent-appellant had accepted the
fax Compromise Agreement wording and latter failed to return his calls. This reinforced the
conveyed such acceptance to
complainant-appellees office.
suspicion of the private respondent that the insertion of
Respondent-appellant also had to
reason to even think that such a
surreptitious insertion would be made; the offending phrase was not, after all, inadvertent but
after all, he had a very warm and friendly
meeting with complainant-appellee and deliberate, calculated to deceive him to the prejudice of
Mr. Borgonia and came out of it with a
feeling that he could trust complainant- HTC. The private respondent may be blamed for putting
appellee (p. 4, Annex C).
too much trust and confidence on the petitioner, but he
3.10 Hence, when respondent-
appellant alleges that he was induced to certainly cannot be indicted for perjury for lack of probable
sign the hard copy Compromise
Agreement through fraud and deceit, cause.
respondent-appellant honestly believes
that he was misled into signing it. He was
misled by the fact that he had been sent The petitioner failed to append to his petition
the fax Compromise Agreement by
complainant-appellee, that he had records of the Commission that the private respondent
conveyed its acceptability to
complainant-appellee and now appeared for HTC, on May 9, 1997, before the
requested for the hard copy for
execution, that he had been led to trust Commission for the hearing on the Compromise
that the findings and recommendation of
the BIS were being put behind them and
89

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.
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 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,
90
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 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 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
91
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.
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 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.
92
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."
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 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
93
 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 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.
94

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 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,
95
 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
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."16 But, Kottinger hastened to say that whether
a picture is obscene or 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:
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
96
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 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.
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.
97
Furthermore, when he preferred not to present contrary ABAD,
evidence, the things which he possessed were
presumptively his.36 PEREZ,* and

Petitioner Estorninos is likewise liable as the store - versus - MENDOZA, JJ.

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. PEOPLE OF
Lastly, this Court accords great respect to and treats with THE PHILIPPINES and PRES
finality the findings of the trial court on the matter of IDING JUDGE TITA
credibility of witnesses, absent any palpable error or
BUGHAO ALISUAG, Branch
arbitrariness in their findings.38 In our view, no reversible
error was committed by the appellate court as well as the 1, Regional Trial
trial court in finding the herein petitioners guilty as Court, Manila,
charged.
Respondents.
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.

Promulgated:

November 21,
2011

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

DECISION

THIRD DIVISION
MENDOZA, J.:

FREDRIK FELIX P. G.R. No. 191080

NOGALES, GIANCARLO P.
NOGALES, ROGELIO P.
NOGALES, MELINDA P. At bench is a petition for certiorari under Rule 65
NOGALES, PRISCILA B. Present:
CABRERA, PHIL-PACIFIC of the Rules of Court filed by petitioners Fredrik Felix P.
OUTSOURCING SERVICES Nogales, Giancarlo P. Nogales, Rogelio P. Nogales,
CORPORATION and 3 X 8
Melinda P. Nogales, Priscila B. Cabrera, Phil-Pacific
INTERNET, represented by
VELASCO,
its proprietorMICHAEL Outsourcing Services Corp. and 3 x 8 Internet,
JR., J., Chairper
CHRISTOPHER A.
son, represented by its proprietor Michael Christopher A.
NOGALES,
Nogales (petitioners) against respondents People of the
PERALTA,
Petitioners, Philippines and Presiding Judge Tita Bughao

98
 5. Pornographic Films and
Alisuag (Judge Alisuag) of Branch 1, Regional Trial
other Pornographic
Court, Manila (RTC). Materials

6. Web Cameras
The petition challenges the August 19, 2009
Decision[1] of the Court of Appeals (CA), in CA-G.R. SP 7. Telephone Sets

No. 105968, which affirmed with modification the August 8. Photocopying Machines
6, 2008 Order[2] of Judge Alisuag of the RTC; and its 9. List of clients and
January 25, 2010 Resolution,[3] which denied petitioners 10. Other tools and materials
motion for reconsideration. used or intended to be used
in the commission of the
crime.

THE FACTS:

On July 30, 2007, Special Investigator Garry The application for Search Warrant No. 07-11685
Meez (SI Meez) of the National Bureau of of SI Meez was acted upon by Judge Alisuag. On August
Investigation (NBI) applied for a search warrant before 3, 2007, a hearing was conducted wherein Judge Alisuag
the RTC to authorize him and his fellow NBI agents or any personally examined SI Meez and two other witnesses in
peace officer to search the premises of petitioner Phil- the form of searching questions and their answers thereto
Pacific Outsourcing Services Corporation (Phil- were duly recorded by the court. The witnesses affidavits
Pacific) and to seize/confiscate and take into custody the were also submitted and marked as supporting evidence
items/articles/objects enumerated in his application. The to the application for the issuance of a search warrant. On
sworn application, docketed as Search Warrant the same date of the hearing, the application was granted
Proceedings No. 07-11685,[4] partially reads: and the corresponding Search Warrant,[5] issued. The
SWORN APPLICATION FOR A said search warrant is quoted as follows:
SEARCH WARRANT

xxxxxxxxx
SEARCH WARRANT

That he has been informed, verily

believes and personally verified that JUN TO: ANY PEACE OFFICER
NICOLAS, LOREN NUESTRA,
FREDRICK FELIX P. NOGALES,
MELINDA P. NOGALES, PRISCILA B. It appearing to the satisfaction of the
CABRERA and/or occupants PHIL- undersigned, after examining under oath
PACIFIC OUTSOURCING SERVICES applicant SI III GARY I. MEEZ of the
CORP. located at Mezzanine Flr., Special Task Force Division, National
Glorietta De Manila Building, 776 San Bureau of Investigation, and his
Sebastian St., University Belt, witnesses, ISABEL CORTEZ y
Manila have in their possession/control ANDRADE of 167 5th Avenue, Caloocan
and are concealed in the above- City and MARK ANTHONY C.
mentioned premises various material[s] SEBASTIAN of No. 32 Arlegui Street,
used in the creation and selling of San Miguel Quiapo, Manila that there are
pornographic internet website, to wit: good reasons to believe that VIOLATION
OF ARTICLE 201 OF THE 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)
1. Computer Sets
FELIX P. NOGALES, GIAN CARLO P.
2. Television Sets NOGALES, ROGELIO P. NOGALES,
MELINDA P. NOGALES, PRISCILA B.
3. Internet Servers CABRERA and/or OCCUPANTS OF
PHIL. PACIFIC OUTSOURCING
4. Fax Machines
99
SERVICES CORPORATION located at direct. You are further directed to submit a return
Mezzanine Floor, Glorietta De Manila within ten (10) days from today.
Building, 776 San Sebastian St.,
University Belt, Manila, have in their
possession and control of the following:

On August 8, 2007, SI Meez submitted a Return

of Search Warrant[6] to the RTC manifesting that in the
1. Computer Sets
morning of August 7, 2007, the operatives of the Special
2. Television Sets
Task Force of the NBI implemented the said search
3. Internet Servers
warrant in an orderly and peaceful manner in the
4. Fax Machines presence of the occupants of the described premises and
5. Pornographic Films and that the seized items were properly inventoried in the
other Pornographic
Receipt/Inventory of Property Seized. The items seized
Materials
were the following:
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. 1. Ten (10) units of Central Processing Units
(CPUs);

2. Ten (10) units of monitors;

You are hereby commanded to make an 3. Ten (10) units of keyboard;
immediate search any time of the DAY of the
premises mentioned above which is Mezzanine 4. Ten (10) units of mouse; and
Floor, Glorietta De Manila Building, 776 San
5. Ten (10) units of AVRs.
Sebastian St., University Belt, Manila and take
possession of the following:

The RTC then issued an order granting the prayer

1. Computer Sets
of SI Meez to keep the seized items in the NBI evidence
2. Television Sets
room and under his custody with the undertaking to make
3. Internet Servers
said confiscated items available whenever the court
4. Fax Machines
would require them.
5. Pornographic Films and
other Pornographic
Materials
Aggrieved by the issuance of the said order, the
6. Web Cameras
named persons in the search warrant filed a Motion to
7. Telephone Sets
Quash Search Warrant and Return Seized
8. Photocopying Machines
Properties.[7] In the said motion, petitioners cited the
9. List of clients and following grounds:
10. Other tools and materials
used or intended to be used
in the commission of the A. Respondents do not have
crime. programmers making, designing,
maintaining, editing, storing, circulating,
distributing, or selling said websites or
the contents thereof;
and bring to this Court the said properties and
persons to be dealt with as the law may

100
 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.
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.
101

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.
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 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]
102

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 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.
6.2. Since the case involves
pornography accessible in the internet,
this is a case of first impression and
current importance.[17] [Emphases ours]
103
ISSUE The CA is correct in stating that the removal

of the hard disk from the CPU is a reliable way of

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.
permanently removing the obscene or pornographic
files. Significantly, Presidential Decree (PD) No. 969
is explicit. Thus:

Sec. 2. Disposition of the Prohibited

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
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:

hard disks in their computers are not illegal per a. Upon conviction of the
offender, to be forfeited in
se unlike shabu, opium, counterfeit money, or favor of the government to be
destroyed.
pornographic magazines, said merchandise are

lawful as they are being used in the ordinary course b. Where the criminal case
of business, the destruction of which would violate not against any violator of this
decree results in an acquittal, the
only procedural, but substantive due process. [18] obscene/immoral literature,
films, prints, engravings,
sculpture, paintings or other
The argument of petitioners is totally materials and other articles
involved in the violation referred
misplaced considering the undisputed fact that to in Section 1 hereof shall
nevertheless be forfeited in favor
the seized computer units contained obscene of the government to
be destroyed, after forfeiture
materials or pornographic files. Had it been
proceedings conducted by the
otherwise, then, petitioners argument would have Chief of Constabulary.
[Emphasis and underscoring
been meritorious as there could be no basis for supplied]
destroying the hard disks of petitioners computer

units.
Clearly, the provision directs the forfeiture

of all materials involved in violation of the subject law.

While it may be true that the criminal case for
The CA was lenient with petitioners in modifying the
violation of Article 201 of the Revised Penal Code was
ruling of the RTC in that the CPUs and softwares,
dismissed as there was no concrete and strong
which were initially ordered to be retained by the NBI,
evidence pointing to them as the direct source of the
should be released in their favor with only the hard
subject pornographic materials, it cannot be used as
disk removed from the CPUs and destroyed. If the
basis to recover the confiscated hard disks. At the risk
softwares are determined to be violative of Article 201
of being repetitious, it appears undisputed that the
of the RPC, unlicensed or pirated, they should also
seized computer units belonging to them contained
be forfeited and destroyed in the manner allowed by
obscene materials or pornographic files. Clearly,
law. The law is clear. Only licensed softwares that can
petitioners had no legitimate expectation of protection
be used for legitimate purposes should be returned to
of their supposed property rights.
petitioners.

104

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 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.
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
105
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 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 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
106
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.
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:
107
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 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,
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.
108
 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.
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]
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.
109
 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?
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 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:
110
 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 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?
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.
111
 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 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?
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?
112
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.
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.
113
Q When you were still inside the bakeshop, will
you please inform the Hon. Court if the
envelope was already opened or not?
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?
Q How did that incident in front of that street
came to close?
A I stayed calm but I was afraid of them.
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]

A It is a big lie. The testimonies of Velez and the petitioner were

corroborated by the Initial Laboratory Report of Forensic
Q Why do you say that it is a big lie? Chemist Rea Villavicencio that the petitioners right arm
tested positive for ultraviolet powder. The Report and
A It will be subject of the evidence in the Police Sketch drawn by Villavicencio did not show that any of the
Laboratory. It was only shown that there fingers of the petitioner were positive for ultraviolet
was fluorescent powder. powder.
(Witness, at this juncture is pointing to his right In sum then, the Court rules that the prosecution
arm.) failed to prove the guilt of petitioner Rubin Tad-y of the
Q You are referring to Exhibit 4-A? crime charged. Consequently, the Petition is GRANTED.
The decisions of the Municipal Trial Court in Cities, the
A Yes, Sir. Regional Trial Court and the Court of Appeals are
REVERSED and SET ASIDE. The petitioner is
ATTY. SERFINO:
ACQUITTED of the crime charged in the Information.
I would like to manifest, your Honor that on
SO ORDERED.
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.

114

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 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
115
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 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.
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
116
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
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
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.
117
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.
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
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
118
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 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.
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
119
the depository wherein the funds are actually placed. to order is concerned, its value is the same whether he
Furthermore, as a result of the peculiar qualities of a has actually endorsed it, or has yet to do so before
check as a commercial instrument, the lawful holder, so demanding payment.
long as he retains possession, has not only the right to
the funds against which it is drawn, but a claim against the We find no prejudicial error in the proceedings in the court
drawer and previous endorsers in the event of a failure of below; the judgment of conviction and the sentence based
these funds in whole or in part; provided, however, there thereon should therefore be affirmed, with the costs of this
is due diligence on his part in asserting his claim, and in instance against the appellant. So ordered.
case of endorsers in protesting the check in the event of
nonpayment. The loss of possession of a check deprives
Torres, Mapa, Johnson, Moreland and Trent, JJ., concur.
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 FIRST DIVISION
agreement with manual delivery would have been
sufficient for that purpose: as between the assignor and
assignee, such an assignment would be complete and PEOPLE OF THE PHILIPPINES, G.R. No. 157399
effectual, and the holder of a check thus assigned could Appellee,
enforce his right therein by appropriate legal proceedings. Present:
So far, therefore, as the lawful holder of a check payable
120
 D and Foreign Trader Analyst, respectively,
avide, also of NAPOCOR, and accused Raul
Jr., C.J Gutierrez, alias Raul Nicolas, alias
. George Aonuevo, alias Mara Aonuevo, a
(Chair private individual being a foreign
man), exchange trader, said public officers
- versus - Quisumbing, taking advantage of their official
Ynares-Santiago, positions, with grave abuse of authority
C and committing the offense in relation to
a their office, conspiring, confederating
r and mutually helping one another, with
p their private co-accused, did then and
i there willfully, unlawfully and feloniously
o falsify or cause to be falsified the NPCs
, application for managers checks with the
a Philippine National Bank (PNB), NPC
n Branch in the total amount of ONE
d HUNDRED EIGHTY THREE MILLION
A EIGHT HUNDRED FIVE THOUSAND
zcuna, TWO HUNDRED NINETY ONE PESOS
JJ. and TWENTY FIVE CENTAVOS
JOSE TING LAN UY, JR. (Acquitted), (P183,805,291.25), Philippine Currency,
ERNESTO GAMUS y SOTELO, intended for the purchase of US dollars
JAIME OCHOA, all of the National from the United Coconut Planters Bank
Power Corporation, and RAUL (UCPB), by inserting the account number
GUTIERREZ alias Raul Nicolas, of Raul Gutierrez SA-111-121204-4,
Alias George Aonuevo, alias when in truth and in fact as the accused
Mara Aonuevo (At large), well knew that the Payment Instructions
Accused. Promulgated: (PI) when signed by the NAPOCOR
authorities did not indicate the account
JAIME OCHOA, number of Raul Gutierrez, thereby
Appellant. November 17, 2005 making alteration or intercalation in a
x ------------------------------------------------------------------------- genuine document which changes its
--------------- x meaning, and with the use of the said
falsified commercial documents,
DECISION accused succeeded in diverting,
collecting and receiving the total amount
YNARES-SANTIAGO, J.: of ONE HUNDRED EIGHTY THREE
MILLION EIGHT HUNDRED FIVE
THOUSAND TWO HUNDRED NINETY
ONE PESOS AND TWENTY FIVE
For allegedly diverting and collecting funds of the National CENTAVOS (P183,805,291.75),
Philippine Currency from the National
Power Corporation (NPC) intended for the purchase of
Power Corporation, which they thereafter
US Dollars from the United Coconut Planters Bank malverse, embezzle, misappropriate and
convert to their own personal use and
(UCPB), Jose Ting Lan Uy, Jr., Ernesto Gamus,[1] Jaime benefit to the damage and prejudice of
the National Power Corporation in the
Ochoa and Raul Gutierrez were indicted before the aforementioned sum.

Sandiganbayan for the complex crime of Malversation CONTRARY TO LAW.

through Falsification of Commercial Documents defined

and penalized under Articles 217 and 171 (8), in relation Upon arraignment, Gamus, Uy and Ochoa pleaded not
to Article 48 of the Revised Penal Code, in an amended guilty to the charge, while Gutierrez has remained at
Information,[2] docketed as Criminal Case No. 19558, large.
which alleges

On pre-trial, the prosecution and the defense stipulated

That sometime in July 1990, or for
sometime prior or subsequent thereto, in
Quezon City, Philippines, and within the 1. That accused Uy at the time stated in
jurisdiction of this Honorable Court, the information was a Treasurer
accused Jose Ting Lan Uy, Jr., a public at the NPC;
accountable officer, being the Treasurer
of National Power Corporation 2. That accused Ernesto Gamus was at
(NAPOCOR), Ernesto Gamus and Jaime the time mentioned in the
Ochoa, both public officers being the information was (sic) the
Manager of the Loan Management and Manager of Loan Management
Foreign Exchange Division (LOMAFED)
121
 and Foreign Exchange Division Ermita, Manilaor Suite 603 VIP
(LOMAFED); Building, Roxas Boulevard, Manila.

3. That accused Jaime Ochoa was the SO ORDERED.[5]

Senior Financial Analyst,
LOMAFED, at the time
mentioned in the information;
Aggrieved, Ochoa interposed this appeal alleging that the
4. That accused Gamus does
Sandiganbayan erred in
not have any custody to (sic)
public funds;
1. convicting him based on the
5. That accused Ochoas allegations in the information;
position as Sr. Financial Analyst
did not require him to take 2. admitting and considering his alleged
custody or control of public sworn statements;
funds;
3. considering the alleged transcripts of
6. That the application forms stenographic notes and the NBI
for cashiers check or Managers Report.[6]
check are not accountable forms
of the NAPOCOR.[3]

The factual antecedents of the case, as summed by the

Trial on the merits thereafter ensued. On May 28, Sandiganbayan, are not disputed by the parties:
2002, the Sandiganbayan rendered its Decision, [4] the In July of 1990, the National Power
Corporation (NPC) became embroiled in
dispositive portion of which reads:
a controversy involving the
disappearance of P183,805,291.25 of its
WHEREFORE, premises considered,
funds which were originally on deposit
accused Jaime B. Ochoa is hereby found
with the Philippine National Bank, NPC
GUILTY beyond reasonable doubt of the
Branch (PNB) but were subsequently
crime of Malversation thru falsification of
used to purchase two (2)
Commercial Documentand is sentenced
managers/cashiers checks (the first
to suffer the penalty of reclusion
check was in the amount of
perpetua and to pay a fine equal to the
P70,000,000.00 while the second was for
amount malversed which is ONE
P113,805,291.25) in order to comply with
HUNDRED EIGHTY THREE MILLION
its loan obligations to the Asian
EIGHT HUNDRED FIVE THOUSAND
Development Bank (ADB). As NPCs debt
TWO HUNDRED NINETY ONE PESOS
in favor of ADB was in yen, NPC was
AND TWENTY FIVE CENTAVOS
obligated to follow an intricate and
(P183,805,291.25) solidarily with
circuitous procedure of buying US dollars
accused Jose Ting Lan Uy, Jr. Accused
from a local bank (in this case, United
Ochoa shall also suffer the penalty of
Coconut Planters Bank or UCPB T.M.
perpetual disqualification. Costs against
Kalaw Branch), which local bank was
the accused.
supposed to remit the US dollars to an
off-shore bank. This off-shore bank (in
On the ground of reasonable doubt,
this case, the Credit Lyonnais, New York)
accused JOSE TING LAN UY, Jr. is
was then supposed to remit the yen
hereby ACQUITTED of Malversation of
equivalent of the US dollars to a third
Public Funds thru Falsification of
bank (in this case, the Bank of Japan,
Commercial Document. However,
Tokyo Branch) which would then credit
because of preponderance of evidence,
the funds to the account of the ADB. The
he is CIVILLY LIABLE for the damages
contracts of NPC with the concerned
suffered by the NPC in the amount of
banks (embodied in three [3] Payment
ONE HUNDRED EIGHTY THREE
Instructions) included a value date (which
MILLION EIGHT HUNDRED FIVE
was July 13, 1990), the mere arrival of
THOUSAND TWO HUNDRED NINETY
which would trigger the above-mentioned
ONE PESOS AND TWENTY FIVE
procedure, culminating in the payment to
CENTAVOS (P183,805,291.25)
ADB of the NPC obligation in the foreign
solidarily with accused Jaime Ochoa.
currency agreed upon.
The Hold Departure Order against the
accused embodied in this Courts
On value date, per routing procedure,
Resolution dated April 18, 2002 is
Credit Lyonnais (the second bank)
recalled.
remitted Japanese Yen
1,143,316,130.00 to the Bank of Japan,
Let an alias warrant of arrest be issued
Tokyo Branch. Likewise, per routing
against Raul Gutierrez, alias Raul
procedure, UCPB T.M. Kalaw Branch
Nicolas, alias George Aonuevo, alias
was supposed to have remitted on said
Mara Aonuevo with last known address
value date the amount of
at 1348 A. Mabini Street,
US$7,740,799.80. UCPB T.M. Kalaw,
122
 however, despite the fact that the PNB
had already issued two (2) To be found guilty of malversation, the prosecution must
managers/cashiers checks (Managers
check for brevity) for such purpose, did prove the following essential elements:
not make the agreed remittance to Credit
Lyonnais, so Credit Lyonnais received no
a.] The offender is a public officer;
payment for the funds it had remitted to
the Bank of Japan, Tokyo. Both the State
b.] He has the custody or control of funds
and the accused have offered
or property by reason of the
explanations for the failure of UCPB,
duties of his office;
T.M. Kalaw Branch to remit the dollar
equivalent of P183,805,291.25 to
c.] The funds or property involved are
Credit Lyonnais. Both explanations,
public funds or property for which
naturally, were diametrically opposed.[7]
he is accountable; and

d.] He has appropriated, taken or

The prosecution theorizes that the accused diverted the misappropriated, or has
consented to, or through
funds covered by the two PNB Managers checks by abandonment or negligence,
permitted the taking by another
falsifying a commercial document called an Application for person of, such funds or
property.[8]
Cashiers Check (ACC) by inserting an account number

(A/C #111-1212-04) of a private individual after the name

Appellant insists that he could not be convicted under the
of the payee, UCPB, T.M. Kalaw Branch. It claims that
allegations in the information without violating his
NPC did not authorize the insertion considering that the
constitutional right to due process and to be informed of
Payment Instruction (PI) issued by NPC instructing PNB
the accusation against him. He points out that the
to prepare a Managers check to be charged to NPCs
information alleges willful and intentional commission of
savings account did not contain any account number.
the acts complained of while the judgment found him
Through the insertion, the accused allegedly succeeded
guilty of inexcusable negligence amounting to malice.
in diverting the funds from the UCPB, T.M. Kalaw Branch

in favor of Raul Gutierrez @ Raul Nicolas @ George

Appellants contention lacks merit. Malversation may be
Aonuevo @ Mara Aonuevo, who is still at large.
committed either through a positive act of

misappropriation of public funds or property or passively

In his defense, appellant asserts that there was no
through negligence by allowing another to commit such
evidence that he committed any of the acts alleged in the
misappropriation.[9] To sustain a charge of malversation,
information, particularly the intercalation on the ACC; that
there must either be criminal intent or criminal
he deposited the checks subsequently issued or that he
negligence[10] and while the prevailing facts of a case may
received the proceeds thereof; or that he conspired with
not show that deceit attended the commission of the
any of his co-accused. He claims that his conviction was
offense, it will not preclude the reception of evidence to
based on the alleged sworn statement and the transcript
prove the existence of negligence
of stenographic notes of a supposed interview with
because both are equally punishable in Article 217 of the
appellant by the NPC personnel and the report of the
Revised Penal Code.
National Bureau of Investigation (NBI). Appellant

maintains that he signed the sworn statement while

More pointedly, the felony involves breach of
confined at the Philippine Heart Center and upon
public trust, and whether it is committed through deceit or
assurance that it would not be used against him. He was
negligence, the law makes it punishable and prescribes a
not assisted by counsel nor was he apprised of his
uniform penalty therefor. Even when the information
constitutional rights when he executed the affidavit.
charges willful malversation, conviction for malversation

123
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]
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.
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
124
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
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 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
a 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
125
the time, whatever degree of compulsion may have confession or information by any means serving to

existed went beyond the borders of the unobjectionable overcome his power of resistance, or making the

where impermissible levels of duress would force him into confession or admission involuntary.[33] In this case, we

making false and incriminating declarations against his find nothing on record to support appellants claim that his

interest. While he may have been persuaded into doing statements were extorted from him.

so, he cannot feign that he was intimidated in such a way

as to bring his statements within the ambit of the Furthermore, while indeed Galman taken

exclusionary constitutional provision. together with the 1986 deliberations on what was later to

become Section 12 (1) of the 1987 Constitution may lead

The fact that an NBI investigation was being
to the conclusion that the rights are available when the
contemporaneously conducted at the time the sworn
person is already in custody as a suspect, or if the person
statement was taken will not extricate appellant from his
is a suspect even if he is not yet deprived in any significant
predicament. The essence of the constitutional safeguard
way of his liberty, Fr. Bernas[34] qualified this statement by
is protection from coercion. The interview where the
saying that [J]urisprudence under the 1987 Constitution,
sworn statement is based was conducted by NPC
however, has consistently held, following Escobedo, the
personnel for the NPCs administrative investigation. Any
stricter view, that the rights begin to be available only
investigation conducted by the NBI is a proceeding
when the person is already in custody.[35]
separate, distinct and independent from the NPC inquiry
Appellant next advances the argument that even
and should not be confused or lumped together with the
if his sworn statement were admissible in evidence, the
latter.
contents thereof may not be sufficient to sustain a

conviction. He contends that although his statement was

Appellant invokes Galman v. Pamaran[30] in
supposedly gathered from the transcript of stenographic
insisting that the constitutional safeguard should have
notes of the conversation between him and Atty. Bagcal,
been applied notwithstanding that he was not yet arrested
neither Atty. Bagcal nor the person who actually prepared
or under detention at the time. He also invites our
the sworn statement was presented. Therefore, the sworn
attention to the pronouncements of Fr. Joaquin G.
statement is hearsay.
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

The argument is puerile. It bears stressing that
in custody but he is a suspect.
the prosecution presented as witness Atty. Lamberto P.

Melencio who saw appellant at the hospital to show him

The contention is tenuous. Although we held
the prepared statement and to verify from him the truth of
in Galman that the constitutional protection covers not
its contents.[36] Atty. Melencio testified that he asked
only confessions but admissions as well, we qualified the
appellant to go over the document before affixing his
ruling with the statement that what is being eschewed is
signature thereto.[37]He also inquired whether or not
the evil of extorting a confession from the mouth of the
appellant was coerced or intimidated by anybody when
person being interrogated. As defined, extortion is an act
the statement was taken.[38] Appellant denied that he was
or practice of taking or obtaining anything from a person
coerced or intimidated,[39]affirmed the contents of the
by illegal use of fear, whether by force, threats or any
document as a true reflection of his
undue exercise of power.[32] In the context of obtaining an
statements,[40] and signed the same.[41] It need not be
admission, extorting means compelling or coercing a
126
overemphasized that the sworn statement is a duly and due execution of the NBI Investigation report albeit

notarized document which has in its favor the without admitting the truth of its contents. If at all, the

presumption of regularity and, thus, it can be contradicted admission of the reports existence is an acknowledgment

only by clear and convincing evidence. Without that sort that it is neither spurious nor counterfeit.

of evidence, the presumption of regularity, the evidentiary

weight conferred upon such public document with respect All told, given the paucity of substance in the

to its execution, as well as the statements and the arguments advanced by appellant to prop up his cause,

authenticity of the signatures thereon, stand.[42] his appeal must fall.

WHEREFORE, the May 28, 2002 Decision of the

In disclaiming the authenticity of his sworn Sandiganbayan is hereby AFFIRMED in all respects.

statement, appellant insists that at the time he signed the

document, he was confined in the hospital and therefore SO ORDERED.

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

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