possession, custody and control 988.

85 grams of
SECOND DIVISION Methamphetamine Hydrochloride (shabu), a regulated
drug without the corresponding license.
THE PEOPLE OF THE PHILIPPINES, G.R. No. 175940 Contrary to law.[5]
Appellee, [Formerly G.R. Nos. 155361-62] Upon arraignment, appellant pleaded not guilty to both charges. A
Present: joint trial of the two cases ensued.

QUISUMBING, J., The operative facts are narrated by prosecution witnesses who comprised
- versus - Chairperson, members of the buy-bust team. Sometime in April 1997, Col. Zoila Lachica
CARPIO, (Lachica) was tipped off by a female walk-in informant that a group, led by a
CARPIO MORALES, Chinese national, was engaged in drug trafficking in Pasay City. Upon
TINGA, verification of said information, a meeting took place between Lachica and
and the informant where the latter was able to arrange a drug deal with appellant
ANSON ONG a.k.a. ALLAN CO, VELASCO, JR., JJ. in the vicinity of Heritage Hotel.[6] Lachica then instructed Investigator Oscar
Appellant. Coballes (Coballes) to prepare the boodle money consisting of four P500.00
Promulgated: bills and five P100.00 bills placed on top of nine (9) bundles of paper cut to
February 6, 2008 the size of the peso bills. These bills were then submitted to the PNP Crime
x----------------------------------------------------------------------------x Laboratory for ultraviolet powder dusting.[7] Before lunchtime on 21 April
DECISION 1997, Lachica organized a team and planned the conduct of a buy-bust
TINGA, J.: operation. The twelve-man team was composed of Lachica, Coballes, Police
In dubio pro reo.[1] Supt. Edgar Danao (Danao), P/Inspector Rolando Montes (Montes), PO3
Manuelito Lagradilla (Lagradilla), SPO2 Wilfredo Saballa (Saballa), SPO3
Subject of this automatic review is the Decision [2] of the Court of Appeals Pardo, SPO2 Pedro Tan, the confidential informant, and other civilian
dated 7 August 2006 which affirmed the Judgment[3] of agents. Danao acted as the team leader with Montes assisting him. Saballa
the Regional Trial Court of Pasay City, Branch 110, convicting appellant was designated as the poseur-buyer and the other members of the team were
Anson Ong alias Allan Co of illegal sale and possession of shabu. tasked to secure the area.[8]

Two separate Informations were filed before the trial court. In Criminal Case
No. 97-0017, appellant was accused of illegal sale of shabu, thus:
That on or about the 21 st day of [April] 1997, in Pasay
City, Metro Manila, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together and
mutually helping one another without authority of law,
did then and there willfully, unlawfully and feloniously
sell and deliver 989.05 grams of Methamphetamine
Hydrochloride (shabu), a regulated drug.
Contrary to law.[4]
In Criminal Case No. 97-0018, appellant was charged with illegal possession
of shabu allegedly committed as follows:
That on or about the 21 day of April 1997,
st
Pasay City, Metro Manila, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused, Anson Ong alias Allan Co, did then and
there willfully, unlawfully and feloniously have in his
Page 1 of 74
After lunch, the group proceeded to the parking lot of San Juan de Dios
Hospital onboard four (4) vehicles, including a motorcycle driven by
Lagradilla. At about 3:00 p.m., they reached the parking lot where Danao
conducted the final briefing and then deployed his men strategically between
the premises of Heritage Hotel and Copacabana Hotel. [9] At 4:00 pm, Saballa
and the informant went to Heritage Hotel while the other team members
strategically posted themselves within the hotel premises.[10]
Fifteen minutes later, Saballa and the informant left Heritage Hotel and
proceeded to the adjacent Copacabana Hotel where he waited at the main
entrance of the lobby. Suddenly, a black Honda Civic car with Plate No. ULN
766 arrived and parked along the driveway near the front entrance. [11] The
informant approached the car while Saballa was left behind holding the black
bag containing the boodle money.[12] Upon signal by the informant, Saballa
came up to the right front door. Saballa showed the contents of the bag to the
driver of the car, who was later identified as
appellant. He then handed the bag to him. Instantaneously,
[13]
a man
approached the car, took the boodle money from appellant and ran away.
[14]
Coballes ran towards the drivers side and poked his gun at appellant.
Appellant tried moving the car but Coballes stood in front and blocked
it.Appellant was then ordered to open the door. Coballes saw a red bag
containing white crystalline substance inside the car and took it into
custody. [15]
Meanwhile, Lagradilla chased the man who took the boodle
money around the parking area of Copacabana Hotel. [16]
Lagradilla saw the man throw the money inside a passing white Toyota car
driven by a certain Chito Cua (Cua). Instead of pursuing the man, Lagradilla
blocked the white Toyota car and arrested Cua. [17]
Appellant presented an entirely different account of the incident on 21 April
1997. Appellant, who apparently does not know English and Tagalog was
assisted by an interpreter, narrated that he is a resident of Chuan Chow,
Peoples Republic of China.Upon the suggestion of Lau Chan, appellant
decided to go to the Philippines to start a clothing business. In the morning
of 21 April 1997, appellant told Lau Chan that he wanted to go to
Baclaran. Lau Chan, who himself was planning to go to the casino at Heritage
Hotel, asked appellant to meet up with him. Appellant tried calling Lau Chan
on this cellphone but the latter was not answering. This prompted appellant to
go to Heritage Hotel to look for Lau Chan. At around 4:00 p.m., appellant
was walking along Epifanio Delos Santos Avenue towards the direction of the
Light Rail Transit when he noticed a commotion in front of the hotel and saw
some men carrying guns. Fearing for his safety, appellant decided to walk
faster but someone stopped him and poked a gun at him. He was made to
board a white car in which he met Cua for the first time. They were then
brought to Camp Crame for questioning. It was Cua who translated the
questions propounded by the police officers to appellant. He was informed by
Cua that he was arrested for failure to show any document regarding his stay
in the country.During arraignment however, he learned that he was being
charged of possession and sale of shabu.
Finding the testimonies of the prosecution witnesses credible as against the
bare and self-serving assertions of appellant, the trial court rendered a
decision finding appellant guilty as charged. The dispositive portion of the 11
February 2002 Decision reads:
WHEREFORE, in view of the foregoing,
the Court finds the herein accused ONG POK PIW
a.k.a. ANSON ONG a.k.a. ALLAN CO, GUILTY
beyond reasonable doubt of two (2) offenses for
Violations of Section 15 and 16, Article III of Republic
Act [No.] 6425, as amended in relation to Section 20
and 21 of Article IV of said law and hereby imposes on
him the penalty of two (2) RECLUSION
PERPETUAS in these cases and a fine in the total
amount of P200,000.00 in these cases
subsidiary imprisonment in case of insolvency.
The Methamphetamine Hydrochloride
or shabu in Criminal Case No. 97-0017 for Violation of
Section 15 of Republic Act [No.] 6425, as amended,
weighing 989.05 grams and the Methamphetamine
While on the run, Hydrochloride or shabu in Criminal Case No. 97-0018
weighing 988.85 grams are hereby declared
confiscated in favor of the government. The PNP
Crime Laboratory at Camp Crame, Quezon City or its
duly authorized representative which has custody and
possession of said regulated drugs are hereby directed
to immediately cause the delivery and transportation
thereof to the Dangerous Drugs Board for proper
disposition in accordance with law.The Chief of said
office is further directed to inform this Court within 20
days from receipt hereof of the action taken thereon.
The period during which the herein accused
was under detention during the pendency of these cases
shall be credited to him in full provided he agreed to
abide by strictly with the rules and regulations of the
City Jail.
SO ORDERED.[18]
An appeal was directed to this Court. However, in a Resolution[19]dated 20
February 2006, the case was transferred to the Court of Appeals in light of our
pronouncement in People v. Mateo.[20]
On 7 August 2006, the Court of Appeals rendered the assailed decision
affirming with modification the trial courts ruling, to wit:
WHEREFORE, premises considered, the
judgment rendered by the Regional Trial Court, Branch
110, Pasay City, in Criminal Case Nos. 97-0017 and
97-0018 is hereby AFFIRMED with modification. As
modified, the fine is increased to Five Hundred
Thousand Pesos (P500,000.00) for each offense or a
total of ONE MILLION PESOS (P1,000,000.00).
SO ORDERED.[21]
In finding appellant guilty, the appellate court strongly relied on the
testimonies of the police officers and dismissed the imputed inconsistencies in
their statements as being minor.
At the core of this appeal is the issue of whether the prosecution was able to
without prove beyond reasonable doubt the guilt of appellant.
Page 2 of 74
Appellant primarily questions the credibility of the prosecution witnesses. He
claims that their testimonies were tainted with inconsistencies which even the In People v. Ong[30] and Cabugao v. People[31] where the objective
trial court had noted in its decision. Appellant relies on said observation to test was also applied, chasmic deficiencies that similarly marked the
support his acquittal based on reasonable doubt. He asserts that his conviction prosecution evidence led to the absolution of the accused. In Ong, also
must rest on the strength of the prosecutions own evidence and not on the involving Chinese nationals as accused, the prosecution evidence on the buy-
weakness of the evidence for the defense. bust operation was outrageously
complete as the confidential informant who had sole knowledge of how the
The Office of the Solicitor General (OSG), in its Brief, [22]
insists that all the alleged illegal sale of shabu was initiated and how it was carried out was not
elements of sale and illegal possession of shabuwere duly established by the presented as a witness.[32] In Cabugao, the prosecution witnesses could not
prosecution. It avers that appellant was caught in flagrante agree on the reason that prompted them to conduct the buy-bust operation.
delicto selling shabu to the poseur-buyer in a legitimate buy-bust operation. While the first witness testified that the tip came from their informants, the
[23]
Moreover, when the poseur-buyer and Coballes opened the door of second witness maintained that no informer was involved in the operation.[33]
appellants car, they saw a red bag on the floor containing white crystalline In the case at bar, the evidence for the prosecution failed to prove
substances which were later tested and found positive for the presence all the material details of the buy-bust operation. The details of the meeting
of shabu. [24]
The OSG contends that the opinion of the trial court with respect with the informant, the alleged source of the information on the sale of illegal
to the actuations of the prosecution witnesses on the stand did not affect its drugs, appear hazy.Lachica declared that he met the informant for the first
judgment of conviction because the trial court lent full faith and credence to time a week before the buy-bust operation:
the collective testimonies of the police officers who are presumed to have
performed their duties in accordance with law.[25] Q Do you recall Mr. Witness when that
walk-in informant visited your office?
For the prosecution of illegal sale of drugs to prosper, the following elements A I cannot recall the exact date but as far as
must be proved: (1) the identity of the buyer and seller, the object, and the I can remember she visited before the
consideration; and (2) the delivery of the thing sold and the payment therefor. operation was conducted.
What is material is the proof that the transaction actually took place, coupled
with the presentation before the court of the corpus delicti.[26] FISCAL
And you are referring to the operation
The prosecution seeks to establish the presence of these elements through the on April 21, 1997?
testimonies of the police officers involved in the buy-bust operation. The A Yes, sir.
innocence or culpability of appellant thus hinges on the issue of credibility. It
is an oft-repeated rule that findings of facts of the trial court, as affirmed by COURT
the appellate court, are conclusive on this Court, absent any evidence that How many days prior to the date of
both courts ignored, misconstrued, or misinterpreted cogent facts and operation did that alleged walk-in informant
circumstances of substance which, if considered, would warrant a go to your office?
modification or reversal of the outcome of the case. [27]
This case falls under A I cannot remember the exact date but I
the exception. think more or less one week before. More
or less 1 week.[34]
In determining the credibility of prosecution witnesses regarding
the conduct of buy-bust operation, the objective test, as laid down in People v.
Doria,[28] is utilized. It has been held that it is the duty of the prosecution to But Coballes testified that the informant reports to their office every now and
present a complete picture detailing the buy-bust operationfrom the initial then, thus:
contact between the poseur-buyer and the pusher, the offer to purchase, the COURT
promise or payment of the consideration, until the consummation of the sale A moment counsel, this informant, was he
by the delivery of the illegal subject of sale.The manner by which the initial an employee of your office or an informant
contact was made, the offer to purchase the drug, the payment of the buy-bust working for your office?
money, and the delivery of the illegal drug must be the subject of strict WITNESS
scrutiny by courts to insure that law-abiding citizens are not unlawfully A He is an informant working from our office.
induced to commit an offense. [29]
COURT
Page 3 of 74
 When you say informant working in your
office, is he receiving salary from your
office as a regular employee or he reports or
he goes to your office every now and then?
A He reports in our office every now and then.[35]
Coballes related that the informant was present during the briefing held before
lunch on 21 April 1997:
Q Now when Col. Lachica called you, aside
from you and some members of your office,
are there any other persons present?
A Yes sir, our informant.
Q Now how do you know that this person is
an informant?
A He was introduced to us by our chief,
Col. Lachic[a], sir.[36]
while Lagradilla denied seeing the informant at the meeting:
COURT
In that briefing, was there a mention of an
informant or an asset?
WITNESS
A Col. Lachica mentioned of a certain asset.
COURT
Was that asset present during the briefing at
the headquarters?
A Asset was not present[,] sir. [37]
Despite being the designated poseur-buyer, Saballa testified that he
had no knowledge of how much shabu he was going to buy.
Q How much shabu are you going to purchase?
A One (1) kilo, Your Honor.
Q How much is one kilo worth?
A I am not aware of the price, Your Honor.
Q How much is one kilo worth?
A I do not know the price they have agreed, Your
Honor.
Page 4 of 74
Q You are supposed to be the poseur buyer
and you do not know how much shabu you
are going to buy?
A I do not know, Your Honor.[38]
The actual exchange of the bags containing shabu and the boodle
money was not clearly established. The presentation of shabu before the
Court could have shed light on the identity of the object of the
sale. Unfortunately, the presentation of the shabu purportedly confiscated
from appellant was dispensed with at the instance of the defense counsel. [39]
Coballes testified that he saw Saballa hand the boodle money to
appellant in exchange for a wrapped object presumed to be shabu.[40] On the
contrary, the ultraviolet dusting of the boodle money was conducted but
appellant was found negative for fluorescent powder. [41]
As between the prosecution witnesses account that it was appellant
to whom the boodle money was passed and who was driving the black Honda
Civic car during the alleged buy-bust operation and appellants denial that he
owned and drove said car, we are inclined to believe appellant. The
prosecution failed to present the purported drivers license confiscated from
appellant. In fact, they reasoned that it was missing. [42] On the other hand, the
defense presented a certification from the Land Transportation Office (LTO)
and the Philippine Motor Association stating that appellants name does not
exist in the LTOs file of licensed drivers and has not been issued a Philippine
International Driving Permit[43] by the Automobile Association of
the Philippines.
Further rendering the prosecutions version dubious is the escape of
another alleged cohort of appellant. Lagradilla, who was specifically tasked to
block or run after any escaping suspect, failed in this regard. During the
alleged buy-bust operation, he was positioned in such a manner that a firewall
was blocking his vantage point.[44] Instead of using his motorcycle, he chased
the suspect on foot.[45] Moreover, it is quite difficult to imagine how one
suspect can easily escape notwithstanding the presence of at least twelve (12)
police operatives in the vicinity.
The witnesses hesitation in answering questions on the stand, as
aptly observed by the trial court,[46] only compounded their lack of credibility.
Lachica, who was the Chief of the Criminal Investigation Division
of the NCR-CIDG, cannot seem to recall the vital parts of the buy-bust
operation such as the composition of the buy-bust team, the strategic location
of the team members, the presence of the name of the other accused, Cua,
[47]
and how much of the boodle money was recovered.[48]
Moreover, he denied any participation in the conduct of the buy-bust
operation:
 A Col. Lachica and the rest stayed at the
Q You said you supervised the planning of Heritage Hotel considering that the buy-
this operation. Did you not say that? bust operation was at the Heritage Hotel.
A No Your Honor[,] what I said is that I
gave instruction to Col. Danao and we Q And yet, Col. Lachica said that as lone
planned out the operation and our Chief of the Criminal Investigation Division
procedure, the [over-all] team leader will be he only gave instruction to Col. Danao. The
the one to provide or make some question is[:] do you still maintain despite
arrangement[s] pertaining to the police that [sic] testimony that Col. Lachica was
operation.[49] present during the operation?
A I do.[50]
However, Coballes insisted that Lachica was present all throughout the
operation, thus: Lachica denied having heard of the name of appellant until he was
arrested:
ATTY. ZULUETA
Q Will you tell the Court[,] do you know a
And so, in your testimony February 13, certain Anson Ong alias Allan Co?
2000[,] you narrated to the Court that Col. A During April?
Lachica led this operation?
A Yes, sir. Q Before April?
A No, I dont remember that I encountered a
Q He was with you on the parking lot to name Anson Ong but after the operation
brief you on your operation? conducted by Edgar Danao[,] I read the
A Yes. name of Anson Ong as the arrested person.
[51]

Q And he was with you all throughout the

operation? On the other hand, Montes alleged that the name of appellant was mentioned
A He was at the Heritage Hotel. Yes. during the briefing held in the office:

Q Mr. Witness[,] you as police officer[,] do FISCAL VIBANDOR

you know the penalty for perjury?
A I know that perjury is punishable but I Q Mr. Witness, on April 21, 1997, you said
dont know the penalty. that you will conduct a buy-bust operation
against whom?
Q Did you know that Col. Lachica appeared
before this Court and testified in this Hon. WITNESS
Court on July 29, 1999 and he testified that
he did not conduct the actual operation but A Against Anson Ong.
it was Col. Danao?
A He was with us and Col. Danao at the FISCAL VIBANDOR
Heritage Hotel at the time.
Q Now, when for the first time did you
Q Will you still maintain that, who is lying come to know that you are going to conduct
now, Col. Lachica or you? [buy-bust] operation against Anson Ong?
A During our briefing at the office.

xxx
Page 5 of 74
 Q And who were present during that
briefing?
A All of us except for Lagradilla because he
was sent out to get his motor bike, it was
only Col. Danao, myself, Coballes, Saballa,
Tan and [a] civilian asset.[52]
According to Coballes, he was instructed by Lachica to prepare the
boodle money to be submitted to the PNP Crime Laboratory for powder
dusting:
Q You want to impress us Mr. Witness, that
a week or before the day that you first met
the informant you were instructed by
Colonel Lachica to prepare buy-bust
money?
WITNESS
A Yes, sir. [53]
Lachicas million-peso estimate of the drug deal is certainly higher
than the P250,000.00 amount stated by Coballes.Ironically, Lachica cannot
recall the exact amount or denomination of the boodle money he himself had
provided for the operation:
Q According to you[,] there will be a drug
deal. Do you know how much shabu is
involved in this drug deal as arranged by
your lady informant?
A I cannot recall the exact amount or
quantity but the deal is more than one
million. x x x [54]
Q Who provided the buy bust money for
this buy-bust operation?
A I was the one who provided the buy-bust
money, the boodle money.
FISCAL
Q How much money did you provide?
A I cannot remember the exact amount
because the money used in that operation is
boodle money.
Page 6 of 74
Q And to whom did you give this money
that will be used in this [buy-bust]
operation?
A I think Agent Coballes.
Q Do you recall in what denomination were
these [buy-bust] money given?
A I cannot remember.[55]
While the presentation of the boodle money, as a general rule, is
not indispensable in the prosecution of a drug case, the material
inconsistencies in the testimonies of the prosecution witnesses and the non-
presentation of the buy-bust money raise reasonable doubts on the occurrence
of a buy-bust operation.[56] It is indeed suspicious that vital pieces of evidence,
such as the boodle money and the drivers license were lost while in the
custody of Coballes who unfortunately passed away during trial. Certainly,
the failure to present vital pieces of these evidence cast doubt on the veracity
of the buy-bust operation.
Another baffling point is the dismissal of the criminal case against
Cua, the alleged accomplice of appellant. The prosecution witnesses testified
that the boodle money was found in his possession. This fact was confirmed
by the presence of fluorescent powder on Cuas hands.
The Constitution mandates that an accused shall be presumed innocent until
the contrary is proven beyond reasonable doubt. While appellants defense
engenders suspicion that he probably perpetrated the crime charged, it is not
sufficient for a conviction that the evidence establishe a strong suspicion or
probability of guilt. It is the burden of the prosecution to overcome
the presumption of innocence by presenting the quantum of evidence
required.
In the case at bar, the basis of acquittal is reasonable doubt, the
evidence for the prosecution not being sufficient to sustain and prove the guilt
of appellants with moral certainty. By reasonable doubt is not meant that
which of possibility may arise but it is that doubt engendered by an
investigation of the whole proof and an inability, after such an investigation,
to let the mind rest easy upon the certainty of guilt. An acquittal based on
reasonable doubt will prosper even though the appellants' innocence may be
doubted, for a criminal conviction rests on the strength of the evidence of the
prosecution and not on the weakness of the evidence of the defense.[57] Suffice
it to say, a slightest doubt should be resolved in favor of the accused.[58]
 With the failure of the prosecution to present a complete picture of
the buy-bust operation, as highlighted by the disharmony and incoherence in
the testimonies of its witnesses, acquittal becomes ineluctable.
WHEREFORE, the Decision of the Court of Appeals in CA-G.R.
CR-H.C. No. 02256 is REVERSED and SET ASIDE. Anson Ong a.k.a.
Allan Co is ACQUITTED of the crime charged against him on the ground of
reasonable doubt. His immediate release from prison is ordered unless he is
being held for some other valid or lawful cause.
The Director of the Bureau of Corrections is ORDERED to
implement this Decision forthwith and to INFORM this Court, within five (5)
days from receipt hereof, of the date appellant was actually released from
confinement. Costs de oficio.
SO ORDERED.
G.R. No. 166980 April 4, 2007
CARMELO C. BERNARDO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES and F.T. YLANG-YLANG
MARKETING CORPORATION, Respondents.
DECISION
CARPIO MORALES, J.:
Petitioner Carmelo C. Bernardo assails the Resolutions of the Court of
1
Appeals (CA) dated July 30, 2004 and January 14, 2005 dismissing his
petition and denying reconsideration, respectively.
Petitioner was charged before the Metropolitan Trial Court (MeTC) of Manila
with six counts of violation of Batas Pambansa Blg. 22 (B.P. 22), otherwise
known as the Bouncing Checks Law, for issuing on December 3, 1997 six
postdated checks in equal amounts of ₱22,500. Save for the check numbers
and dates of maturity, four Informations under Criminal Case Nos. 320977 to
320980 were similarly worded as follows:
That on or about December 3, 1997, in the City of Manila, Philippines, the
said accused, did then and there wilfully, unlawfully, feloniously make or
Page 7 of 74
draw and issue to F.T. YLANG-YLANG MARKETING, CORP. rep. by
Dennis Tan to apply on account or for value PHILIPPINE SAVINGS BANK
check no. 0007806 [0007805, 0007804, 0007803] dated April 30, [March 30,
February 28, January 30] 1998 payable to YLANG-YLANG MFG. in the
amount of ₱22,500.00 said accused well knowing that at the time of issue she
did not have sufficient funds in or credit with the drawee bank for payment of
such check in full upon its presentment, which check when presented for
payment within ninety (90) days from the date thereof was subsequently
dishonored by the drawee bank for reason "Account Closed" and despite
receipt of notice of such dishonor, said accused failed to pay said F.T.
YLANG-YLANG MARKETING CORP. the amount of the check or to make
arrangement for full payment of the same within five (5) banking days after
receiving said notice.
Contrary to law.2
The two Informations under Criminal Case Nos. 320975-76 averred that
Check Nos. 0007808 and 0007807 respectively dated June 30, 1998 and May
30, 1998 "would be dishonored by the drawee bank for the reason ‘Account
Closed’ if presented for payment as the account against which it was drawn
ha[d] already been closed even before [their] said date[s]."3
Upon arraignment, petitioner, assisted by a counsel de oficio, pleaded "not
guilty" to the offenses charged. At the pre-trial conference on August 25,
1999, petitioner failed to appear despite notice, prompting Branch 24 of the
MeTC to issue a warrant of arrest against him and set the cases for trial in
absentia.
After the prosecution presented its first witness, petitioner filed a Waiver of
Appearance, a Motion to Lift Warrant of Arrest, and a Motion to Quash on the
ground that the facts charged in the Informations under Criminal Case Nos.
320975-76 do not constitute an offense.
By Order of April 5, 2000, the trial court lifted the warrant of arrest in view of
petitioner’s appearance but denied the Motion to Quash for lack of merit.
At the following trial date, petitioner failed to appear despite notice, drawing
the trial court to proceed with his trial in absentia and issue warrant of
arrest4 against him.
By Decision5 of October 23, 2001 promulgated in absentia on December 13,
2001, the trial court found petitioner guilty beyond reasonable doubt of
violating B.P. 22 in all the cases. He was, in each case, sentenced to suffer the
penalty of imprisonment of One (1) Year, to pay a fine of Twenty-Two
Thousand Five Hundred Pesos (₱22,500), and to indemnify private
complainant in the amount of Twenty-Two Thousand Five Hundred Pesos
(₱22,500).
Ten months following the promulgation of the judgment, petitioner posted a
bond before another branch of the court. Petitioner having been convicted and
no motion having been filed for his provisional liberty pending any appeal
from or motion for reconsideration of the Decision, the trial court cancelled
the bond and issued an alias warrant of arrest.6
Petitioner thereupon filed an Urgent Motion for New Trial and/or to Set Aside
Trial and Judgment (Motion for New Trial) which was, by Order of January
7
10, 2003, denied following his and his counsel’s failure to appear at the
hearing of the motion and comply with the rule on proper service of a
motion.8 Petitioner’s Urgent Motion for Reconsideration was likewise denied,
The Court of Appeals, by Resolution of June 21, 2004, granted petitioner an
extension, but only 15 days pursuant to Section 1 of Rule 42,12 to file his
Petition.
Apparently unaware of the above-said Resolution of June 21, 2004 under
which his petition would be filed not later than June 16, 2004, petitioner used
up the 30-day extension sought and filed his petition on July 1, 2004.
Petitioner in fact received the June 21, 2004 Resolution only on July 9,
2004.13
By Resolution14 of July 30, 2004, the appellate court denied petitioner’s

by Order9 of May 26, 2003.
Petitioner appealed the Orders dated January 10, 2003 and May 26, 2003 as
well as the Decision dated October 23, 2001 to the Regional Trial Court
(RTC) of Manila, Branch 26 of which, by Decision of December 22, 2003,
affirmed the judgment with modification as to the penalties imposed, thus:
10
petition due course for having been filed 15 days late and for failure to attach
the MeTC Decision and other pertinent and material documents. Petitioner’s
Motion for Reconsideration was likewise denied by Resolution 15 of January
14, 2005, the appellate court noting that the MeTC Decision attached to the
Motion for Reconsideration was a mere photocopy and uncertified.

Hence, the instant petition faulting the appellate court:

WHEREFORE PREMISES CONSIDERED, the appealed decision is hereby
affirmed with modification. This Court finds accused/appellant Carmelo C. A. . . . IN RECKONING THE PERIOD OF 15 DAYS

Bernardo GUILTY beyond reasonable doubt for Violation of Batas Pambansa EXTENSION FROM THE EXPIRY DATE OF THE

Bilang 22 but set [sic] aside the penalty of imprisonment and ORIGINAL PERIOD OF 15 DAYS FROM RECEIPT

hereby sentences her [sic] to pay a fine of ₱22,500.00 in each case, with OF THE DECISION OF THE REGIONAL TRIAL

subsidiary imprisonment in case of insolvency or non-payment not to exceed COURT OR FINAL ORDER APPEALED FROM,

six (6) months, and, to pay private complainant F.T. YLANG-YLANG INSTEAD OF FROM DATE OF THE RECEIPT OF

MARKETING CORPORATION the total amount of ₱113,500.00 by way of THE ORDER GRANTING EXTENSION;

indemnity.
B. . . . IN APPLYING THE RULES OF PROCEDURE

Meanwhile, the alias warrant of arrest issued against accused x x x VERY STRICTLY AND IN UTTER DISREGARD OF
ITS INTERNAL RULES WHICH LIBERALLY
is hereby ordered lifted and set aside. ALLOW COMPLETION OF PORTIONS OF
RECORDS IN COMPLIANCE WITH THE RULES
No pronouncement as to costs. (Underscoring supplied) AND THE SETTLED JURISPRUDENCE APPLYING
LIBERALLY THE RULES OF PROCEDURE;
SO ORDERED.11

C. . . . [IN NOT] CONSIDER[ING] THE MERITS OF

Petitioner filed a Motion for Partial Reconsideration of the RTC decision but THE PETITION FOR REVIEW.16 (Underscoring
it was denied. supplied)

Unsatisfied, petitioner elevated the case to the CA.
Petitioner filed with the appellate court a Motion for Extension of Time to
File Petition for Review within 30 days from June 1, 2004, the 15th day from
his counsel’s receipt of the RTC Order denying his Motion for Partial
Reconsideration.
Petitioner argues that the 15-day extension granted to him by the appellate
court should be reckoned from his date of receipt of its June 21, 2004
Resolution.
The argument fails. A.M. No. 00-2-14-SC 17 issued on February 29, 2000 is
clear. It provides that "[a]ny extension of time to file the required pleading
should . . . be counted from the expiration of the period . . ." The extension
should thus be tacked to the original period, to commence immediately after

Page 8 of 74
the expiration of such period. The court has no discretion to reckon the
commencement of the extension from a date later than the expiration of such
original period, not even if the expiry date is a Saturday, Sunday, or a legal
holiday.18
Petitioner’s reliance on the 1989 case of Vda. de Capulong v. Workmen’s
Insurance Co., Inc. on this point does not thus lie. Parenthetically, the
19
factual milieus in Vda. de Capulong and the present case are dissimilar. The
respondent in Vda. de Capulong specifically moved that it be given an
additional period "from receipt of the order" of the court allowing extension,
and the court granted an extension of time without indicating when it would
commence. In the present case, petitioner prayed for a period of extension to
be counted from the expiration of the original period or "from June 1, 2004,"
which date the appellate court correctly used in reckoning the extension. 20
Petitioner goes on to fault the appellate court in not resolving his motion for
extension before the expiration of the 15-day extension so that he would have
known that his request for 30 days was not granted.
Petitioner’s position does not lie too.
Section 1 of Rule 42 is clear. The Court of Appeals may grant an "additional
period of 15 days only" within which to file the petition for review. Albeit
under the same section, a "further extension" not to exceed 15 days may be
granted "for the most compelling reason," petitioner had no basis to assume
that his request for a 30-day extension is meritorious and would be granted. 21
Motions for extension are not granted as a matter of right but in the sound
discretion of the court, and lawyers should never presume that their motions
for extension or postponement would be granted or that they would be
granted the length of time they pray for.22
Petitioner claims, however, that his motion for extension presented a
compelling reason for the grant of a further extension. Justifying the 30-day
period sought, petitioner explains that he was implicitly seeking both a 15-day
extension and a further extension of 15 days.
The wording of the rule with respect to further extension is couched in
restrictive terms. Section 1 of Rule 42 provides that "[n]o further
extension shall be granted except for the most compelling reason and in no
case to exceed fifteen (15) days."
Petitioner’s motion for extension was anchored on a lone ground, his
counsel’s being "pre-occupied in the preparation of petitions, memoranda,
briefs, and other lengthy pleadings in cases as important as this case" and in
"daily court appearance and personal commitments." Sustaining petitioner’s
lone ground would obliterate the distinguishing essence of a further extension
Page 9 of 74
for it would do away with the necessity of presenting compelling grounds
addressed to the sound discretion of the court.
But crediting arguendo petitioner’s "implicit" justification, this Court sees no
reason to disturb the exercise by the appellate court of its discretion in
denying a "cumulative" extension and in effectively ruling that heavy
workload of counsel is not a most compelling reason.
Respecting the second assigned error, the CA correctly dismissed petitioner’s
appeal for failure to comply with Section 2 (d) of Rule 42, which specifically
requires that both lower courts’ judgments or final orders must be attached to
the petition in the required form – clearly legible duplicate originals or
certified true copies. Indeed, petitioner fell short in his compliance. He
attached to his petition only the RTC Decision of December 22, 2003 and its
Order of May 4, 2004. He did not attach thereto the MeTC Orders dated
January 10, 2003 and May 26, 2003, and the Decision dated October 23, 2001
which were appealed23 to the RTC and which were likewise adverse to
him.24 While to his Motion for Reconsideration, he attached the October 23,
2001 Decision, it was not in the required form, and while he attached a
duplicate original of the May 26, 2003 Order, he failed to submit the January
10, 2003 Order.
There is no cogent reason to deviate from such requirement under Section
2(d) of Rule 42, the mandatory tenor of which has been held to be discernible
and well settled.25
Petitioner having failed to perfect his appeal, the RTC judgment had become
final and executory.26 This leaves it unnecessary to dwell on petitioner’s
assertion that he was denied due process of law and the right to counsel
before the trial court.
Suffice it to state that the requisites of a valid trial in absentia, viz, (1) the
accused has already been arraigned, (2) he has been duly notified of the trial,
and (3) his failure to appear is unjustifiable, are, as reflected above, present in
the case.27
Estrada v. People28 should, under the facts and circumstances attendant to the
case, dispel any lingering doubts of petitioner on the validity of the trial
court’s proceedings.
The holding of trial in absentia is authorized under Section 14 (2), Article III
of the 1987 Constitution which provides that "after arraignment, trial may
proceed notwithstanding the absence of the accused provided that he has been
duly notified and his failure to appear is unjustifiable." x x x
x x x Conformably with our decision in People v. Salas, [the] escape
should have been considered a waiver of their right to be present at their
trial, and the inability of the court to notify them of the subsequent
hearings did not prevent it from continuing with their trial. They were
deemed to have received notice. The same fact of their escape made their
failure to appear unjustified because they have, by escaping, placed
themselves beyond the pale and protection of the law. This being so, then
Since the prosecution did not raise the matter as an issue and, at any rate,
there is no showing of repeated violation or wanton bad faith on the part of
petitioner, the non-imposition of the penalty of imprisonment is in order.
WHEREFORE, in light of the foregoing, the petition is DENIED.

pursuant to Gimenez v. Nazareno, the trial against the fugitives, just like those
of the others, should have been brought to its ultimate SO ORDERED.

conclusion. Thereafter, the trial court had the duty to rule on the evidence
presented by the prosecution against all the accused and to render its
judgment accordingly. It should not wait for the fugitives’ re-appearance
or re-arrest. They were deemed to have waived their right to present
evidence on their own behalf and to confront and cross-examine the
witnesses who testified against them.29 (Emphasis and italics in the
original)

As for the promulgation of judgment in absentia, the following pertinent

provision of Section 6 of Rule 120 should likewise put to rest any doubts on
its validity:

The judgment is promulgated by reading it in the presence of the accused and

any judge of the court in which it was rendered. However, if the conviction is
for a light offense, the judgment may be pronounced in the presence of his
counsel or representative. When the judge is absent or outside the province or
city, the judgment may be promulgated by the clerk of court. G.R. No. 103501-03. February 17, 1997]

xxxx LUIS A. TABUENA, petitioner, vs. HONORABLE

SANDIGANBAYAN, and THE PEOPLE OF THE

The proper clerk of court shall give notice to the accused personally or PHILIPPINES, respondents.

through his bondsman or warden and counsel, requiring him to be present at

the promulgation of the decision. If the accused was tried in [G.R. No. 103507. February 17, 1997]

absentiabecause he jumped bail or escaped from prison, the notice to him

ADOLFO M. PERALTA, petitioner, vs. HON.
shall be served at his last known address.
SANDIGANBAYAN (First Division), and THE PEOPLE OF

In case the accused fails to appear at the scheduled date of promulgation THE PHILIPPINES, represented by the OFFICE OF THE

of judgment despite notice, the promulgation shall be made by recording SPECIAL PROSECUTOR, respondents.

the judgment in the criminal docket and serving him a copy thereof at his
DECISION
last known address or thru his counsel.

FRANCISCO, J.:
x x x x (Italics in the original; emphasis supplied)

Through their separate petitions for review,[1] Luis A. Tabuena and

A word on the modified penalty imposed by the RTC. Contrary to its
Adolfo M. Peralta (Tabuena and Peralta, for short) appeal the Sandiganbayan
reasoning, the penalty of imprisonment in cases of violation of B.P. 22 was
decision dated October 12, 1990,[2] as well as the Resolution dated December
not deleted. As clarified by Administrative Circular 13-2001, the clear tenor
20, 1991[3] denying reconsideration, convicting them of malversation under
and intention of Administrative Circular 12-2000 is not to remove
Article 217 of the Revised Penal Code. Tabuena and Peralta were found guilty
imprisonment as an alternative penalty, but to lay down a rule ofpreference in
beyond reasonable doubt of having malversed the total amount of P55 Million
the application of the penalties provided for in B.P. 22.30
of the Manila International Airport Authority (MIAA) funds during their

Page 10 of 74
incumbency as General Manager and Acting Finance Services Manager,
respectively, of MIAA, and were thus meted the following sentence:
(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to
suffer the penalty of imprisonment of seventeen (17) years and one (1) day
of reclusion temporal as minimum to twenty (20) years of reclusion
temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION
PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the
Manila International Airport Authority the sum of TWENTY-FIVE MILLION
PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification
from public office.
(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to
suffer the penalty of imprisonment of seventeen (17) years and one (1) day
of reclusion temporal as minimum, and twenty (20) years of reclusion
temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION
PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the
Manila International Airport Authority the sum of TWENTY-FIVE MILLION
PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification
from public office.
(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M.
Peralta are each sentenced to suffer the penalty of imprisonment of seventeen
(17) years and one (1) day of reclusion temporal as minimum and twenty (20)
years of reclusion temporal as maximum and for each of them to pay
separately a fine of FIVE MILLION PESOS (P5,000,000.00) the amount
malversed. They shall also reimburse jointly and severally the Manila
International Airport Authority the sum of FIVE MILLION PESOS
(P5,000,000.00).
In addition, they shall both suffer the penalty of perpetual special
disqualification from public office.
A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then
Assistant General Manager of MIAA, has remained at large.
There were three (3) criminal cases filed (nos. 11758, 11759 and
11760) since the total amount of P55 Million was taken on three (3) separate
dates of January, 1986. Tabuena appears as the principal accused - he being
charged in all three (3) cases. The amended informations in criminal case nos.
11758, 11759 and 11760 respectively read:
Page 11 of 74
That on or about the 10th day of January, 1986, and for sometime subsequent
thereto, in the City of Pasay, Philippines, and within the jurisdiction of this
Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both
public officers, being then the General Manager and Assistant General
Manager, respectively, of the Manila International Airport Authority (MIAA),
and accountable for public funds belonging to the MIAA, they being the only
ones authorized to make withdrawals against the cash accounts of MIAA
pursuant to its board resolutions, conspiring, confederating and confabulating
with each other, did then and there wilfully, unlawfully, feloniously, and with
intent to defraud the government, take and misappropriate the amount of
TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by
applying for the issuance of a managers check for said amount in the name of
accused Luis A. Tabuena chargeable against MIAAs Savings Account
No. 274-500-354-3 in the PNB Extension Office at the Manila International
Airport in Pasay City, purportedly as partial payment to the Philippine
National Construction Corporation (PNCC), the mechanics of which said
accused Tabuena would personally take care of, when both accused well knew
that there was no outstanding obligation of MIAA in favor of PNCC, and after
the issuance of the above-mentioned managers check, accused Luis A.
Tabuena encashed the same and thereafter both accused misappropriated and
converted the proceeds thereof to their personal use and benefit, to the
damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.
xxx
That on or about the 16th day of January, 1986, and for sometime subsequent
thereto, in the City of Pasay, Philippines and within the jurisdiction of this
Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both
public officers, being then the General Manager and Assistant General
Manager, respectively, of the Manila International Airport Authority (MIAA),
and accountable for public funds belonging to the MIAA, they being the only
ones authorized to make withdrawals against the cash accounts of MIAA
pursuant to its board resolutions, conspiring, confederating and confabulating
with each other, did then and there wilfully, unlawfully, feloniously, and with
intent to defraud the government, take and misappropriate the amount of
TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by
applying for the issuance of a managers check for said amount in the name of
accused Luis A. Tabuena chargeable against MIAAs Savings Account
No. 274-500-354-3 in the PNB Extension Office at the Manila International
Airport in Pasay City, purportedly as partial payment to the Philippine
National Construction Corporation (PNCC), the mechanics of which said
accused Tabuena would personally take care of, when both accused well knew
that there was no outstanding obligation of MIAA in favor of PNCC, and after
the issuance of the above-mentioned managers check, accused Luis A.
Tabuena encashed the same and thereafter both accused misappropriated and
converted the proceeds thereof to their personal use and benefit, to the Malacaang
damage and prejudice of the government in the aforesaid amount.
January 8, 1986
CONTRARY TO LAW.
MEMO TO: The General Manager
xxx
Manila International Airport Authority
That on or about the 29th day of January, 1986, and for sometime subsequent
thereto, in the City of Pasay, Philippines, and within the jurisdiction of this You are hereby directed to pay immediately the Philippine National

Honorable Court, accused Luis A. Tabuena and Adolfo M. Peralta, both public Construction Corporation, thru this Office, the sum of FIFTY FIVE

officers, being then the General Manager and Acting Manager, Financial MILLION (P55,000,000.00) PESOS in cash as partial payment of MIAAs

Services Department, respectively, of the Manila International Airport account with said Company mentioned in a Memorandum of Minister

Authority (MIAA), and accountable for public funds belonging to the MIAA, Roberto Ongpin to this Office dated January 7, 1985 and duly approved by

they being the only ones authorized to make withdrawals against the cash this Office on February 4, 1985.

accounts of MIAA pursuant to its board resolutions, conspiring, confederating

and confabulating with each other, did then and there wilfully, unlawfully, Your immediate compliance is appreciated.

feloniously, and with intent to defraud the government, take and

(Sgd.) FERDINAND MARCOS.[4]
misappropriate the amount of FIVE MILLION PESOS (P5,000,000.00) from
MIAA funds by applying for the issuance of a managers check for said
The January 7, 1985 memorandum of then Minister of Trade and
amount in the name of accused Luis A. Tabuena chargeable against MIAAs
Industry Roberto Ongpin referred to in the MARCOS Memorandum, reads in
Savings Account No. 274-500-354-3 in the PNB Extension Office at the
full:
Manila International Airport in Pasay City, purportedly as partial payment to
the Philippine National Construction Corporation (PNCC), the mechanics of
MEMORANDUM
which said accused Tabuena would personally take care of, when both
accused well knew that there was no outstanding obligation of MIAA in favor
F o r : The President
of PNCC, and after the issuance of the above-mentioned managers check,
accused Luis A. Tabuena encashed the same and thereafter both accused
F r o m : Minister Roberto V. Ongpin
misappropriated and converted the proceeds thereof to their personal use and
benefit, to the damage and prejudice of the government in the aforesaid D a t e : 7 January 1985
amount.

Subject : Approval of Supplemental Contracts and

CONTRARY TO LAW.

Request for Partial Deferment of Repayment of PNCCs Advances for MIA

Gathered from the documentary and testimonial evidence are the Development Project
following essential antecedents:

May I request your approval of the attached recommendations of Minister

Then President Marcos instructed Tabuena over the phone to pay directly to
the presidents office and in cash what the MIAA owes the Philippine National
Construction Corporation (PNCC), to which Tabuena replied, Yes, sir, I will
do it. About a week later, Tabuena received from Mrs. Fe Roa-Gimenez, then
private secretary of Marcos, a Presidential Memorandum dated January 8,
1986 (hereinafter referred to as MARCOS Memorandum) reiterating in black
and white such verbal instruction, to wit:
Jesus S. Hipolito for eight (8) supplemental contracts pertaining to the MIA
Development Project (MIADP) between the Bureau of Air Transport (BAT)
and Philippine National Construction Corporation (PNCC), formerly CDCP,
as follows:
1. Supplemental Contract No. 12

Office of the President Package Contract No. 2 P11

of the Philippines

Page 12 of 74
2. Supplemental Contract No. 13 Approved by Price Escalation Committee (PEC) but pended for lack of P 1.9 mill
funds

3. Supplemental Contract No. 14

Endorsed by project consultants and currently being evaluated by PEC 30.7 milli
Package Contract No. 2

Submitted by PNCC directly to PEC and currently under evaluation 66.5 milli
4. Supplemental Contract No. 15

Total P99.1 mil

5. Supplemental Contract No. 16

Package Contract No. 2 There has been no funding allocation for any of the above escalation claims
due to budgetary constraints.

6. Supplemental Contract No. 17 The MIA Project has been completed and operational as far back as 1982 and
yet residual amounts due to PNCC have not been paid, resulting in undue
Package Contract No. 2 burden to PNCC due to additional cost of money to service its obligations for
this contract.

7. Supplemental Contract No. 18

To allow PNCC to collect partially its billings, and in consideration of its
pending escalation billings, may we request for His Excellencys approval for
Package Contract No. 2
a deferment of the repayment of PNCCs advances to the extent of P30 million
corresponding to about 30% of P99.1 million in escalation claims of PNCC,
of which P32.5 million has been officially recognized by MIADP consultants
8. Supplemental Contract No. 3
but could not be paid due to lack of funding.Korte

Package Contract No. II

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of
existing MIA Project funds. This amount represents the excess of the gross

(xerox copies only; original memo was submitted to the Office of the billings of PNCC of P98.4 million over the undeferred portion of the

President on May 28, 1984) repayment of advances of P63.9 million.

In this connection, please be informed that Philippine National Construction (Sgd.) ROBERTO V. ONGPIN

Corporation (PNCC), formerly CDCP, has accomplishment billings on the

Minister[5]
MIA Development Project aggregating P98.4 million, inclusive of
accomplishments for the aforecited contracts. In accordance with contract
In obedience to President Marcos verbal instruction and memorandum,
provisions, outstanding advances totalling P93.9 million are to be deducted
Tabuena, with the help of Dabao and Peralta, caused the release of P55
from said billings which will leave a net amount due to PNCC of only P4.5
Million of MIAA funds by means of three (3) withdrawals.
million.

The first withdrawal was made on January 10, 1986 for P25 Million,
At the same time, PNCC has potential escalation claims amounting to P99
following a letter of even date signed by Tabuena and Dabao requesting the
million in the following stages of approval/evaluation:
PNB extension office at the MIAA - the depository branch of MIAA funds, to
issue a managers check for said amount payable to Tabuena. The check was
encashed, however, at the PNB Villamor Branch. Dabao and the cashier of the
PNB Villamor branch counted the money after which, Tabuena took delivery

Page 13 of 74
thereof. The P25 Million in cash were then placed in peerless boxes and
duffle bags, loaded on a PNB armored car and delivered on the same day to
the office of Mrs. Gimenez located at Aguado Street fronting Malacaang. Mrs.
Gimenez did not issue any receipt for the money received.
Similar circumstances surrounded the second withdrawal/encashment
and delivery of another P25 Million, made on January 16, 1986.
The third and last withdrawal was made on January 31, 1986 for P5
Million. Peralta was Tabuenas co-signatory to the letter- request for a
managers check for this amount. Peralta accompanied Tabuena to the PNB
Villamor branch as Tabuena requested him to do the counting of the P5
Million. After the counting, the money was placed in two (2) peerless boxes
which were loaded in the trunk of Tabuenas car. Peralta did not go with
Tabuena to deliver the money to Mrs. Gimenez office at Aguado Street. It was
only upon delivery of the P5 Million that Mrs. Gimenez issued a receipt for
all the amounts she received from Tabuena. The receipt, dated January 30,
1986, reads:
Malacaang
Manila
January 30, 1986
RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY
FIVE MILLION PESOS (P55,000,000.00) as of the following dates:
Jan. 10 - P25,000,000.00
Jan. 16 - 25,000,000.00
Jan. 30 - 5,000,000.00
(Sgd.) Fe Roa-Gimenez
The disbursement of the P55 Million was, as described by Tabuena and
Peralta themselves, out of the ordinary and not based on the normal
procedure. Not only were there no vouchers prepared to support the
disbursement, the P55 Million was paid in cold cash.Also, no PNCC receipt
for the P55 Million was presented. Defense witness Francis Monera, then
Senior Assistant Vice President and Corporate Comptroller of PNCC, even
affirmed in court that there were no payments made to PNCC by MIAA for
the months of January to June of 1986.
The position of the prosecution was that there were no outstanding
obligations in favor of PNCC at the time of the disbursement of the P55
Million. On the other hand, the defense of Tabuena and Peralta, in short, was
Page 14 of 74
that they acted in good faith. Tabuena claimed that he was merely complying
with the MARCOS Memorandum which ordered him to forward immediately
to the Office of the President P55 Million in cash as partial payment of
MIAAs obligations to PNCC, and that he (Tabuena) was of the belief that
MIAA indeed had liabilities to PNCC. Peralta for his part shared the same
belief and so he heeded the request of Tabuena, his superior, for him (Peralta)
to help in the release of P5 Million.
With the rejection by the Sandiganbayan of their claim of good faith
which ultimately led to their conviction, Tabuena and Peralta now set forth a
total of ten (10) errors[6] committed by the Sandiganbayan for this Courts
consideration. It appears, however, that at the core of their plea that we acquit
them are the following:
1) the Sandiganbayan convicted them of a crime not charged in the amended
informations, and
2) they acted in good faith.
Anent the first proposition, Tabuena and Peralta stress that they were
being charged with intentional malversation, as the amended informations
commonly allege that:
x x x accused x x x conspiring, confederating and confabulating with each
other, did then and there wilfully, unlawfully, feloniously, and with intent to
defraud the government, take and misappropriated the amount of x x x.
But it would appear that they were convicted of malversation by
negligence. In this connection, the Courts attention is directed to p. 17 of the
December 20, 1991 Resolution (denying Tabuenas and Peraltas motion for
reconsideration) wherein the Sandiganbayan said:
xxxxxxxxx
On the contrary, what the evidence shows is that accused Tabuena delivered
the P55 Million to people who were not entitled thereto, either as
representatives of MIAA or of the PNCC.Sclaw
It proves that Tabuena had deliberately consented or permitted
through negligence or abandonment, some other person to take such public
funds.Having done so, Tabuena, by his own narration, has categorically
demonstrated that he is guilty of the misappropriation or malversation of P55
Million of public funds. (Underscoring supplied.)
To support their theory that such variance is a reversible flaw, Tabuena and
Peralta argue that:
1) While malversation may be committed intentionally or by negligence, both
modes cannot be committed at the same time.
2) The Sandiganbayan was without jurisdiction to convict them of
malversation of negligence where the amended informations charged them
with intentional malversation.[7]
3) Their conviction of a crime different from that charged violated their
constitutional right to be informed of the accusation. [8]
We do not agree with Tabuena and Peralta on this point. Illuminative
and controlling is Cabello v. Sandiganbayan[9] where the Court passed upon
similar protestations raised by therein accused-petitioner Cabello whose
conviction for the same crime of malversation was affirmed, in this wise:
x x x 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 the mode proved, the same
offense of malversation is involved and conviction thereof is proper. x x x.
In Samson vs. Court of Appeals, et. al., we held 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, G.R. No. L-6641, July
28, 1995, but a distinct crime in our Penal Code, 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.
xxx
Page 15 of 74
Moreover, Section 5, Rule 116, of the Rules of Court does not require that all
the essential elements of the offense charged in the information be proved, it
being sufficient that some of said essential elements or ingredients thereof be
established to constitute the crime proved. x x x.
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.
Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated
rationale and arguments also apply to the felony of malversation, that is, that
an accused charged with willful malversation, in an information containing
allegations similar to those involved in 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.
Going now to the defense of good faith, it is settled that this is a valid
defense in a prosecution for malversation for it would negate criminal intent
on the part of the accused. Thus, in the two (2) vintage, but significant
malversation cases of US v. Catolico[10] and US v. Elvia,[11] the Court stressed
that:
To constitute a crime, the act must, except in certain crimes made such by
statute, be accompanied by a criminal intent, or by such negligence or
indifference to duty or to consequences as, in law, is equivalent to criminal
intent. The maxim is actus non facit reum, nisi mens sit rea - a crime is not
committed if the mind of the person performing the act complained of is
innocent.
The rule was reiterated in People v. Pacana,[12] although this case
involved falsification of public documents and estafa:
Ordinarily, evil intent must unite with an unlawful act for there to be a
crime. Actus non facit reum, nisi mens sit rea. There can be no crime when the
criminal mind is wanting.
American jurisprudence echoes the same principle. It adheres to the
view that criminal intent in embezzlement is not based on technical mistakes
as to the legal effect of a transaction honestly entered into, and there can be no
embezzlement if the mind of the person doing the act is innocent or if there is
no wrongful purpose.[13] The accused may thus always introduce evidence to
show he acted in good faith and that he had no intention to convert. [14] And
this, to our mind, Tabuena and Peralta had meritoriously shown.
 In so far as Tabuena is concerned, with the due presentation in of which P32.6 million has been officially recognized by MIADP consultants
evidence of the MARCOS Memorandum, we are swayed to give credit to his but could not be paid due to lack of funding.
claim of having caused the disbursement of the P55 Million solely by reason
of such memorandum. From this premise flows the following reasons and/or Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of

considerations that would buttress his innocence of the crime of malversation.
First. Tabuena had no other choice but to make the withdrawals, for
that was what the MARCOS Memorandum required him to do.He could not
be faulted if he had to obey and strictly comply with the presidential directive,
existing MIA Project funds. This amount represents the excess of the gross
billings of PNCC of P98.4 million over the undeferred portion of the
repayment of advances of P63.9 million.
While Min. Ongpin may have, therefore recognized the escalation claims of

and to argue otherwise is something easier said than done. Marcos was the PNCC to MIAA to the extent of P99.1 million (Exhibit 2a), a substantial

undeniably Tabuenas superior the former being then the President of the portion thereof was still in the stages of evaluation and approval, with

Republic who unquestionably exercised control over government agencies only P32.6 million having been officially recognized by the MIADP

such as the MIAA and PNCC.[15] In other words, Marcos had a say in matters consultants.

involving inter-government agency affairs and transactions, such as for

instance, directing payment of liability of one entity to another and the If any payments were, therefore, due under this memo for Min. Ongpin (upon

manner in which it should be carried out. And as a recipient of such kind of a which President Marcos Memo was based) they would only be for a sum of

directive coming from the highest official of the land no less, good faith up to P34.5 million.[17]

should be read on Tabuenas compliance, without hesitation nor any question,

xxxxxxxxx
with the MARCOS Memorandum.Tabuena therefore is entitled to the
justifying circumstance of Any person who acts in obedience to an order
V. Pres. Marcos order to Tabuena dated January 8, 1986 baseless.
issued by a superior for some lawful purpose.[16] The subordinate-superior
relationship between Tabuena and Marcos is clear. And so too, is the
Not only was Pres. Marcos Memo (Exhibit 1) for Tabuena to pay P55 million
lawfulness of the order contained in the MARCOS Memorandum, as it has for
irrelevant, but it was actually baseless.
its purpose partial payment of the liability of one government agency (MIAA)
to another (PNCC). However, the unlawfulness of the MARCOS
This is easy to see.
Memorandum was being argued, on the observation, for instance, that the
Ongpin Memo referred to in the presidential directive reveals a liability of
Exhibit 1 purports to refer itself to the Ongpin Memorandum (Exhibit 2, 2-a);
only about P34.5 Million. The Sandiganbayan in this connection said:
Exhibit 1, however, speaks of P55 million to be paid to the PNCC while
Exhibit 2 authorized only P34.5 million. The order to withdraw the amount
Exhibits 2 and 2-a (pages 1 and 2 of the memorandum of Min. Ongpin to the
of P55 million exceeded the approved payment of P34.5 million by P20.5
President dated January 7, 1985) were mainly:
million. Min. Ongpins Memo of January 7, 1985 could not therefore serve as
a basis for the Presidents order to withdraw P55 million.[18]
a.) for the approval of eight Supplemental Contracts; and

Granting this to be true, it will not nevertheless affect Tabuenas good faith so
b.) a request for partial deferment of payment by PNCC for advances made
as to make him criminally liable. What is more significant to consider is that
for the MIAA Development Project, while at the same time recognizing some
the MARCOS Memorandum is patently legal (for on its face it directs
of the PNCCs escalation billings which would result in making payable to
payment of an outstanding liability) and that Tabuena acted under the honest
PNCC the amount of P34.5 million out of existing MIAA Project funds.
belief that the P55 million was a due and demandable debt and that it was just
a portion of a bigger liability to PNCC. This belief is supported by defense
Thus:
witness Francis Monera who, on direct examination, testified that:

xxx
ATTY ANDRES

To allow PNCC to collect partially its billings, and in consideration of its

Q Can you please show us in this Exhibit 7 and 7-a where
pending escalation billings, may we request for His Excellencys approval for
it is indicated the receivables from MIA as of December
a deferment of repayment of PNCCs advances to the extent of P30 million
31, 1985?
corresponding to about 30% of P99.1 million in escalation claims of PNCC,

Page 16 of 74
 A As of December 31, 1985, the receivables from MIA is Second. There is no denying that the disbursement, which Tabuena
shown on page 2, marked as Exhibit 7-a, admitted as out of the ordinary, did not comply with certain auditing rules and
sir, P102,475,392.35. regulations such as those pointed out by the Sandiganbayan, to wit:

x x x x x x x x x.[19] a) [except for salaries and wages and for commutation of leaves] all
disbursements above P1,000.00 should be made by check (Basic Guidelines
ATTY. ANDRES for Internal Control dated January 31, 1977 issued by COA)

Q Can you tell us, Mr. Witness, what these obligations b) payment of all claims against the government had to be supported with
represent? complete documentation (Sec. 4, P.D. 1445, State Auditing Code of the
Philippines). In this connection, the Sandiganbayan observed that:
WITNESS

There were no vouchers to authorize the disbursements in question. There

A These obligations represent receivables on the basis of were no bills to support the disbursement. There were no certifications as to
our billings to MIA as contract-owner of the project that the availability of funds for an unquestionably staggering sum of P55 Million.
the Philippine National Construction Corporation [25]

constructed. These are billings for escalation mostly, sir.

c) failure to protest (Sec. 106, P.D. 1445)

Q What do you mean by escalation?

A Escalation is the component of our revenue billings to
the contract-owner that are supposed to take care of price
increases, sir.
x x x x x x x x x.[20]
ATTY ANDRES
Q When you said these are accounts receivable, do I
understand from you that these are due and demandable?
A Yes, sir.[21]
But this deviation was inevitable under the circumstances Tabuena was in. He
did not have the luxury of time to observe all auditing procedures of
disbursement considering the fact that the MARCOS Memorandum enjoined
his immediate compliance with the directive that he forward to the Presidents
Office the P55 Million in cash. Be that as it may, Tabuena surely cannot
escape responsibility for such omission. But since he was acting in good faith,
his liability should only be administrative or civil in nature, and not
criminal. This follows the decision in Villacorta v. People[26] where the Court,
in acquitting therein accused municipal treasurer of Pandan, Catanduanes of
malversation after finding that he incurred a shortage in his cash
accountability by reason of his payment in good faith to certain government
personnel of their legitimate wages, leave allowances, etc., held that:

Nor can negligence approximating malice or fraud be attributed to

Thus, even if the order is illegal if it is patently legal and the subordinate is
petitioner. If he made wrong payments, they were in good faith mainly
not aware of its illegality, the subordinate is not liable, for then there would
togovernment personnel, some of them working at the provincial auditors and
only be a mistake of fact committed in good faith.[22] Such is the ruling
the provincial treasurers offices. And if those payments ran counter to
in Nassif v. People[23] the facts of which, in brief, are as follows:
auditing rules and regulations, they did not amount to a criminal offense and
he should only be held administratively or civilly liable.
Accused was charged with falsification of commercial document. A mere
employee of R.J. Campos, he inserted in the commercial document alleged to
Likewise controlling is US v. Elvia[27] where it was held that payments in good
have been falsified the word sold by order of his principal. Had he known or
faith do not amount to criminal appropriation, although they were made with
suspected that his principal was committing an improper act of falsification,
insufficient vouchers or improper evidence. In fact, the Dissenting Opinions
he would be liable either as a co-principal or as an accomplice. However,
reference to certain provisions in the revised Manual on Certificate of
there being no malice on his part, he was exempted from criminal liability as
Settlement and Balances - apparently made to underscore Tabuenas personal
he was a mere employee following the orders of his principal.[24]
accountability, as agency head, for MIAA funds - would all the more support
the view that Tabuena is vulnerable to civil sanctions only. Sections 29.2 and
29.5 expressly and solely speak of civilly liable to describe the kind of

Page 17 of 74
sanction imposable on a superior officer who performs his duties with bad
faith, malice or gross negligence and on a subordinate officer or employee
who commits willful or negligent acts x x x which are contrary to law,
morals, public policy and good customs even if he acted under order or
instructions of his superiors.
Third. The Sandiganbayan made the finding that Tabuena had already
converted and misappropriated the P55 Million when he delivered the same to
Mrs. Gimenez and not to the PNCC, proceeding from the following
definitions/concepts of conversion:
Conversion, as necessary element of offense of embezzlement, being the
fraudulent appropriation to ones own use of anothers property which does not
necessarily mean to ones personal advantage but every attempt by one person
to dispose of the goods of another without right as if they were his own is
conversion to his own use. (Terry v. Water Improvement Dist. No. 5 of Tulsa
County, 64 p. 2d 904, 906, 179 Okl. 106)
- At p. 207, Words and Phrases,
Permanent Edition 9A.
Conversion is any interference subversive of the right of the owner of
personal property to enjoy and control it. The gist of conversion is the
usurpation of the owners right of property, and not the actual damages
inflicted. Honesty of purpose is not a defense. (Ferrera v. Parks, 23 p. 883,
885 19 Or. 141)
- At page 168, id.
xxxxxxxxx
The words convert and misappropriate connote an act of using or disposing
of anothers property as if it were ones own. They presuppose that the thing
has been devoted to a purpose or use different from that agreed upon. To
appropriate to ones own use includes not only conversion to ones personal
advantage but every attempt to dispose of the property of another without
right.
People vs. Webber, 57 O.G.
p. 2933, 2937
By placing them at the disposal of private persons without due authorization
or legal justification, he became as guilty of malversation as if he had
personally taken them and converted them to his own use.
People vs. Luntao, 50 O.G.
Page 18 of 74
p. 1182, 1183[28]
We do not agree. It must be stressed that the MARCOS Memorandum
directed Tabuena to pay immediately the Philippine National Construction
Corporation, thru this office, the sum of FIFTY FIVE MILLION...., and that
was what Tabuena precisely did when he delivered the money to Mrs.
Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the
President inasmuch as Mrs. Gimenez was Marcos secretary
then. Furthermore, Tabuena had reasonable ground to believe that the
President was entitled to receive the P55 Million since he was certainly aware
that Marcos, as Chief Executive, exercised supervision and control over
government agencies. And the good faith of Tabuena in having delivered the
money to the Presidents office (thru Mrs. Gimenez), in strict compliance with
the MARCOS Memorandum, was not at all affected even if it later turned out
that PNCC never received the money. Thus, it has been said that:
Good faith in the payment of public funds relieves a public officer from the
crime of malversation.
xxxxxxxxx
Not every unauthorized payment of public funds is malversation. There is
malversation only if the public officer who has custody of public funds should
appropriate the same, or shall take or misappropriate or shall consent, or
through abandonment or negligence shall permit any other person to take such
public funds. Where the payment of public funds has been made in good faith,
and there is reasonable ground to believe that the public officer to whom the
fund had been paid was entitled thereto, he is deemed to have acted in good
faith, there is no criminal intent, and the payment, if it turns out that it is
unauthorized, renders him only civilly but not criminally liable.[29]
Fourth. Even assuming that the real and sole purpose behind the
MARCOS Memorandum was to siphon-out public money for the personal
benefit of those then in power, still, no criminal liability can be imputed to
Tabuena. There is no showing that Tabuena had anything to do whatsoever
with the execution of the MARCOS Memorandum. Nor is there proof that he
profited from the felonious scheme. In short, no conspiracy was established
between Tabuena and the real embezzler/s of the P55 Million. In the cases
of US v. Acebedo[30] and Ang v. Sandiganbayan,[31] both also involving the
crime of malversation, the accused therein were acquitted after the Court
arrived at a similar finding of non-proof of conspiracy. In Acebedo, therein
accused, as municipal president of Palo, Leyte, was prosecuted for and found
guilty by the lower court of malversation after being unable to turn over
certain amounts to the then justice of the peace. It appeared, however, that
said amounts were actually collected by his secretary Crisanto Urbina. The
Court reversed Acebedos conviction after finding that the sums were
converted by his secretary Urbina without the knowledge and participation of
Acebedo. The Court said, which we herein adopt:
No conspiracy between the appellant and his secretary has been shown in this
case, nor did such conspiracy appear in the case against Urbina. No guilty
knowledge of the theft committed by the secretary was shown on the part of
the appellant in this case, nor does it appear that he in any way participated in
the fruits of the crime. If the secretary stole the money in question without the
knowledge or consent of the appellant and without negligence on his part,
then certainly the latter can not be convicted of embezzling the same money
or any part thereof. [32]
In Ang, accused-petitioner, as MWSS bill collector, allowed part of his
collection to be converted into checks drawn in the name of one Marshall Lu,
a non-customer of MWSS, but the checks were subsequently dishonored. Ang
was acquitted by this Court after giving credence to his assertion that the
conversion of his collections into checks were thru the machinations of one
Lazaro Guinto, another MWSS collector more senior to him. And we also
adopt the Courts observation therein, that:
The petitioners alleged negligence in allowing the senior collector to convert
cash collections into checks may be proof of poor judgment or too trusting a
nature insofar as a superior officer is concerned but there must be stronger
evidence to show fraud, malice, or other indicia of deliberateness in the
conspiracy cooked up with Marshall Lu. The prosecution failed to show that
the petitioner was privy to the conspirational scheme. Much less is there any
proof that he profited from the questioned acts. Any suspicions of conspiracy,
no matter how sincerely and strongly felt by the MWSS, must be converted
into evidence before conviction beyond reasonable doubt may be imposed.[33]
The principles underlying all that has been said above in exculpation of
Tabuena equally apply to Peralta in relation to the P5 Million for which he is
being held accountable, i.e., he acted in good faith when he, upon the
directive of Tabuena, helped facilitate the withdrawal of P5 Million of the P55
Million of the MIAA funds.
This is not a sheer case of blind and misguided obedience, but
obedience in good faith of a duly executed order. Indeed, compliance to a
patently lawful order is rectitude far better than contumacious disobedience.
In the case at bench, the order emanated from the Office of the President and
bears the signature of the President himself, the highest official of the land. It
carries with it the presumption that it was regularly issued. And on its face,
the memorandum is patently lawful for no law makes the payment of an
obligation illegal. This fact, coupled with the urgent tenor for its execution
constrains one to act swiftly without question. Obedientia est legis
essentia. Besides, the case could not be detached from the realities then
prevailing. As aptly observed by Mr. Justice Cruz in his dissenting opinion:
Page 19 of 74
We reject history in arbitrarily assuming that the people were free during the
era and that the judiciary was independent and fearless. We know it was not;
even the Supreme Court at that time was not free. This is an undeniable fact
that we can not just blink away. Insisting on the contrary would only make
our sincerity suspect and even provoke scorn for what can only be described
as our incredible credulity.[34]
But what appears to be a more compelling reason for their acquittal is
the violation of the accuseds basic constitutional right to due process. Respect
for the Constitution, to borrow once again Mr. Justice Cruzs words, is more
important than securing a conviction based on a violation of the rights of the
accused.[35] While going over the records, we were struck by the way the
Sandiganbayan actively took part in the questioning of a defense witness and
of the accused themselves. Tabuena and Peralta may not have raised this as an
error, there is nevertheless no impediment for us to consider such matter as
additional basis for a reversal since the settled doctrine is that an appeal
throws the whole case open to review, and it becomes the duty of the
appellate court to correct such errors as may be found in the judgment
appealed from whether they are made the subject of assignments of error or
not.[36]
Simply consider the volume of questions hurled by the
Sandiganbayan. At the taking of the testimony of Francis Monera, then Senior
Assistant Vice President and Corporate Comptroller of PNCC, Atty. Andres
asked sixteen (16) questions on direct examination.Prosecutor Viernes only
asked six (6) questions on cross-examination in the course of which the court
interjected a total of twenty-seven (27) questions (more than four times
Prosecutor Viernes questions and even more than the combined total of direct
and cross-examination questions asked by the counsels). After the defense
opted not to conduct any re-direct examination, the court further asked a total
of ten (10) questions.[37] The trend intensified during Tabuenas turn on the
witness stand. Questions from the court after Tabuenas cross-examination
totalled sixty-seven (67).[38] This is more than five times Prosecutor Viernes
questions on cross-examination (14), and more than double the total of direct
examination and cross-examination questions which is thirty-one (31) [17
direct examination questions by Atty. Andres plus 14 cross-examination
questions by Prosecutor Viernes]. In Peraltas case, the Justices, after his cross-
examination, propounded a total of forty-one (41) questions.[39]
But more importantly, we note that the questions of the court were in
the nature of cross examinations characteristic of confrontation, probing and
insinuation.[40] (The insinuating type was best exemplified in one question
addressed to Peralta, which will be underscored.) Thus we beg to quote in
length from the transcripts pertaining to witness Monera, Tabuena and
Peralta. (Questions from the Court are marked with asterisks and italicized for
emphasis.)
 (MONERA)
(As a background, what was elicited from his direct examination is that
the PNCC had receivables from MIAA totalling P102,475,392.35, and
although such receivables were largely billings for escalation, they were
nonetheless all due and demandable.What follows are the cross-examination
of Prosecutor Viernes and the court questions).
CROSS-EXAMINATION BY PROS. VIERNES
Q You admit that as shown by these Exhibits 7 and 7-a,
the items here represent mostly escalation billings. Were
those escalation billings properly transmitted to MIA
authorities?
A I dont have the documents right now to show that they
were transmitted, but I have a letter by our President, Mr.
Olaguer, dated July 6, 1988, following up for payment of
the balance of our receivables from MIA, sir.
*AJ AMORES
*Q This matter of escalation costs, is it not a matter
for a conference between the MIA and the PNCC for
the determination as to the correct amount?
A I agree, your Honor. As far as we are concerned, our
billings are what we deemed are valid receivables. And,
in fact, we have been following up for payment.
*Q This determination of the escalation costs was it
accepted as the correct figure by MIA?
A I dont have any document as to the acceptance by MIA,
your Honor, but our company was able to get a document
or a letter by Minister Ongpin to President Marcos, dated
January 7, 1985, with a marginal note or approval by
former President Marcos.
*PJ GARCHITORENA
*Q Basically, the letter of Mr. Ongpin is to what
effect?
A The subject matter is approval of the supplementary
contract and request for partial deferment of payment for
MIA Development Project, your Honor.
Page 20 of 74
*Q It has nothing to do with the implementation of the
escalation costs?
A The details show that most of the accounts refer to our
escalations, your Honor.
*Q Does that indicate the computation for escalations
were already billed or you do not have any proof of
that?
A Our subsidiary ledger was based on billings to MIA
and this letter of Minister Ongpin appears to have
confirmed our billings to MIA, your Honor.
*AJ AMORES
*Q Were there partial payments made by MIA on
these escalation billings?
A Based on records available as of today, the P102
million was reduced to about P56.7 million, if my
recollection is correct, your Honor.
*PJ GARCHITORENA
*Q Were the payments made before or after February
1986, since Mr. Olaguer is a new entrant to your
company?
WITNESS
A The payments were made after December 31, 1985 but
I think the payments were made before the entry of our
President, your Honor.Actually, the payment was in the
form of: assignments to State Investment of about P23
million; and then there was P17.8 million application
against advances made or formerly given; and there were
payments to PNCC of about P2.6 million and there was a
payment for application on withholding and contractual
stock of about P1 million; that summed up to P44.4
million all in all. And you deduct that from the P102
million, the remaining balance would be about P57
million.
*PJ GARCHITORENA
*Q What you are saying is that, for all the payments *Q The question of the Court is, before December 31,
made on this P102 million, only P2 million had been 1985, were there any liquidations made by MIA
payments in cash? against these escalation billings?

A Yes, your Honor. A I have not reviewed the details of the record, your
Honor. But the ledger card indicates that there were
*Q The rest had been adjustments of accounts, collections on page 2 of the Exhibit earlier presented. It
assignments of accounts, or offsetting of accounts? will indicate that there were collections shown by credits
indicated on the credit side of the ledger.
A Yes, your Honor.

*AJ AMORES
*Q This is as of December 31, 1985?

*Q Your ledger does not indicate the manner of giving

A The P102 million was as of December 31, 1985, your credit to the MIA with respect to the escalation
Honor, but the balances is as of August 1987. billings. Was the payment in cash or just credit of
some sort before December 31, 1985?
*Q We are talking now about the P44 million, more or
less, by which the basic account has been A Before December 31, 1985, the reference of the ledger
reduced. These reductions, whether by adjustment or are official receipts and I suppose these were payments in
assignment or actual delivery of cash, were made after cash, your Honor.
December 31, 1985?

*Q Do you know how the manner of this payment in

WITNESS cash was made by MIA?

A Yes, your Honor. A I do not know, your Honor.

*Q And your records indicate when these adjustments *PJ GARCHITORENA

and payments were made?

*Q But your records will indicate that?

A Yes, your Honor.

A The records will indicate that, your Honor.

*AJ AMORES

*Q Except that you were not asked to bring them?

*Q You said there were partial payments before of
these escalation billings. Do we get it from you that
there was an admission of these escalation costs as
computed by you by MIA, since there was already
partial payments?
A Yes, your Honor.
*Q At all events, we are talking of settlement or
partial liquidation prior to December 31, 1985?

A Yes, your Honor. A Yes, your Honor.

*Q How were these payments made before February *PJ GARCHITORENA

1986, in case or check, if there were payments made?
*Q Subsequent thereto, we are talking merely of
A The P44 million payments was in the form of about P44 million?
assignments, your Honor.
A Yes, your Honor, as subsequent settlements.
*PJ GARCHITORENA

Page 21 of 74
*Q After December 31, 1985? that the letter of January 1985 confirms the escalation
billings as of June 1985?
A Yes, your Honor.
A The entries started June 30 in the ledger card. And as
*Q And they have liquidated that, as you described it, of December 31, 1985, it stood at P102 million after
by way of assignments, adjustments, by offsets and payments were made as shown on the credit side of the
by P2 million of cash payment? ledger. I suppose hat the earlier amount, before the
payment was made, was bigger and therefore I would
A Yes, your Honor. venture to say that the letter of January 7, 1985 contains
an amount that is part of the original contract
*AJ AMORES
account. What are indicated in the ledger are escalation
billings.
*Q Your standard operating procedure before
December 31, 1985 in connection with or in case of
*PJ GARCHITORENA
cash payment, was the payment in cash or check?

*Q We are talking about the letter of Minister

A I would venture to say it was by check, your Honor.
Ongpin?

*Q Which is the safest way to do it?

A The letter of Minister Ongpin refers to escalation
billings, sir.
A Yes, your Honor.

*Q As of what date?
*PJ GARCHITORENA

A The letter is dated January 7, 1985, your Honor.

*Q And the business way?

PJ GARCHITORENA
A Yes, your Honor.

Continue.
PJ GARCHITORENA

PROS. VIERNES
Continue.

Q In accordance with this letter marked Exhibit 7 and 7-a,

PROS VIERNES
there were credits made in favor of MIA in July and
November until December 1985. These were properly
Q You mentioned earlier about the letter of former
credited to the account of MIA?
Minister Ongpin to the former President Marcos, did you
say that that letter concurs with the escalation billings
WITNESS
reflected in Exhibits 7 and 7-a?

A Yes, sir.
WITNESS

Q In 1986, from your records as appearing in Exhibit 7-a,

A The Company or the management is of the opinion that
there were no payments made to PNCC by MIA for the
this letter, a copy of which we were able to get, is a
months of January to June 1986?
confirmation of the acceptance of our billings, sir.

A Yes, sir.
Q This letter of Minister Ongpin is dated January 7, 1985,
whereas the entries of escalation billings as appearing in
Q And neither was the amount of P22 million remitted to
Exhibit 7 are dated June 30, 1985, would you still insist
PNCC by MIA?

Page 22 of 74
A Yes, sir. A Per ledger card, there were payments in 1985, prior to
December 31, 1985, your Honor.
PROS VIERNES
*Q After December 31, 1985?
That will be all, your Honor.
A There appears also P23 million as credit, that is a form
PJ GARCHITORENA of settlement, your Honor.

Redirect? *Q This is as of September 25?

ATTY ANDRES A Yes, your Honor. There were subsequent

settlements. P23 million is just part of the P44 million.
No redirect, your Honor.

*Q And what you are saying is that, PNCC passed the

*PJ GARCHITORENA account to State Investment. In other words, State
Investment bought the credit of MIA?
Questions from the Court.

A Yes, your Honor.

*AJ AMORES

*Q And the amount of credit or receivables sold by

*Q From your records, for the month of January
PNCC to State Investment is P23 million?
1986, there was no payment of this escalation account
by MIA? A Yes, your Honor.

WITNESS *Q Is there a payback agreement?

A Yes, your Honor. But on page 2 of Exhibit 7 there A I have a copy of the assignment to State Investment but
appears an assignment of P23 million, that was on I have not yet reviewed the same, your Honor.
September 25, 1986.

*AJ AMORES
*Q But that is already under the present
administration? *Q As of now, is this obligation of MIA, now NAIA,
paid to PNCC?
A After February 1986, your Honor.

A There is still a balance of receivables from MIA as

*Q But before February, in January 1986, there was evidenced by a collection letter by our President dated
no payment whatsoever by MIA to PNCC? July 6, 1988, your Honor.The amount indicated in the
letter is P55 million.
A Per record there is none appearing, your Honor.

PJ GARCHITORENA
*PJ GARCHITORENA

Any clarifications you would like to make Mr. Estebal?

*Q The earliest payment, whether by delivery of cash
equivalent or of adjustment of account, or by ATTY ESTEBAL
assignment, or by offsets, when did these payments
begin? None, your Honor.

PJ GARCHITORENA

Page 23 of 74
 Mr. Viernes? A Yes, your Honor.

PROS VIERNES *Q Because the third delivery was on January 31st

and yet the receipt was dated January 30?
No more, your Honor.
A Yes, your Honor.
PJ GARCHITORENA
*Q When was Exhibit 3 delivered actually by Mrs.
The witness is excused. Thank you very much Mr. Gimenez?
Monera. x x x. [41]

A January 31st, your Honor.

(TABUENA)
PJ GARCHITORENA
(In his direct examination, he testified that he caused the preparation of
the checks totalling P55 Million pursuant to the MARCOS Memorandum and Continue.
that he thereafter delivered said amount in cash on the three (3) dates as
alleged in the information to Marcos private secretary Mrs. Jimenez at her PROS VIERNES

office at Aguado Street, who thereafter issued a receipt. Tabuena also denied
having used the money for his own personal use.) Q You did not go to Malacaang on January 30, 1986?

CROSS-EXAMINATION BY PROS. VIERNES A Yes, sir, I did not.

Q The amount of P55 million as covered by the three (3) Q Do you know at whose instance this Exhibit 3 was

checks Mr. Tabuena, were delivered on how many prepared?

occasions?
A I asked for it, sir.

A Three times, sir.

Q You asked for it on January 31, 1986 when you made

Q And so, on the first two deliveries, you did not ask for the last delivery?

a receipt from Mrs. Gimenez?

A Yes, sir.

A Yes, sir.
Q Did you see this Exhibit 3 prepared in the Office of

Q It was only on January 30, 1986 that this receipt Mrs. Gimenez?

Exhibit 3 was issued by Mrs. Gimenez?

A Yes, sir.

A Yes, sir.
Q This receipt was typewritten in Malacaang

*PJ GARCHITORENA stationery. Did you see who typed this receipt?

*Q So January 30 is the date of the last delivery? A No, sir. What happened is that, she went to her room
and when she came out she gave me that receipt.

A I remember it was on the 31st of January, your

Honor. What happened is that, I did not notice the date *PJ GARCHITORENA

placed by Mrs. Gimenez.

*Q What you are saying is, you do not know who typed

*Q Are you telling us that this Exhibit 3 was that receipt?

incorrectly dated?
WITNESS
Page 24 of 74
A Yes, your Honor. *Q So, when the Presiding Justice asked you as to how
you knew that this was the signature of Mrs. Gimenez
*Q Are you making an assumption that she typed that and you answered that you saw Mrs. Gimenez signed it,
receipt? you were not exactly truthful?

A Yes, your Honor, because she knows how to type. A What I mean is, I did not see her sign because she went
to her room and when she came out, she gave me that
*Q Your assumption is that she typed it herself? receipt, your Honor.

A Yes, your Honor. PJ GARCHITORENA

PJ GARCHITORENA That is why you have to wait for the question to be

finished and listen to it carefully. Because when I asked
Proceed.
you, you said you saw her signed it. Be careful Mr.
Tabuena.
PROS. VIERNES

WITNESS
Q This receipt was prepared on January 31, although it is
dated January 30?
Yes, your Honor.

A Yes, sir, because I was there on January 31st.

PJ GARCHITORENA

Q In what particular place did Mrs. Gimenez sign this

Continue.
Exhibit 3?

PROS VIERNES
A In her office at Aguado, sir.

Q Was there another person inside the office of Mrs.

Q Did you actually see Mrs. Gimenez signing this receipt
Gimenez when she gave you this receipt Exhibit 3?
Exhibit 3?

A Nobody, sir.
A No, sir, I did not. She was inside her room.

Q I noticed in this receipt that the last delivery of the sum

Q So, she was in her room and when she came out of the
of P55 million was made on January 30. Do we
room, she handed this receipt to you already typed and
understand from you that this date January 30 is
signed?
erroneous?

A Yes, sir.
A Yes, sir, that January 30 is erroneous. I noticed it only
afterwards. This should be January 31st, sir.
*AJ HERMOSISIMA

PROS VIERNES
*Q So, how did you know this was the signature of Mrs.
Gimenez?
That will be all, your Honor.

WITNESS
PJ GARCHITORENA

A Because I know her signature, your Honor. I have been

Redirect?
receiving letters from her also and when she requests for
something from me.Her writing is familiar to me. ATTY. ANDRES

Page 25 of 74
No redirect, your Honor. A The instruction to me was to give it to the Office of the
President, your Honor.
*PJ GARCHITORENA
*PJ GARCHITORENA
Questions from the Court.
*Q Be that as it may, why was there no voucher to cover
*AJ HERMOSISIMA this particular disbursement?

*Q Why did you not ask for a receipt on the first and A I was just told to bring it to the Office of the President,
second deliveries? your Honor.

A Because I know that the delivery was not complete yet, *AJ DEL ROSARIO
your Honor.
*Q Was that normal procedure for you to pay in cash to
*PJ GARCHITORENA the Office of the President for obligations of the MIAA in
payment of its obligation to another entity?
*Q So you know that the total amount to be delivered
was P55 million? WITNESS

A Yes, your Honor. A No, your Honor, I was just following the Order to me
of the President.
PJ GARCHITORENA

*PJ GARCHITORENA
Response by Mr. Peralta to the testimony of Mr. Tabuena.

*Q So the Order was out of the ordinary?

ATTY. ESTEBAL

A Yes, your Honor.

We are adopting the testimony of Mr. Tabuena and we
will also present the accused, your Honor. *AJ DEL ROSARIO

*AJ DEL ROSARIO *Q Did you file any written protest with the manner with
which such payment was being ordered?
*Q From whom did you receive the Presidents
memorandum marked Exhibit 1? Or more precisely, who A No, your Honor.
handed you this memorandum?
*Q Why not?
A Mrs. Fe Roa Gimenez, your Honor.
A Because with that instruction of the President to me, I
*Q Did you ask Mrs. Fe Gimenez for what purpose the followed, your Honor.
money was being asked?
*Q Before receiving this memorandum Exhibit 1, did the
A The money was in payment for the debt of the MIA former President Marcos discuss this matter with you?
Authority to PNCC, your Honor.
A Yes, your Honor.
*Q If it was for the payment of such obligation why was
there no voucher prepared to cover such payment? In *Q When was that?
other words, why was the delivery of the money not
covered by any voucher?Calrky

Page 26 of 74
A He called me up earlier, a week before that, that he *AJ DEL ROSARIO
wants to me pay what I owe the PNCC directly to his
office in cash, your Honor. *Q Why did you not ask?

*PJ GARCHITORENA A I was just ordered to do this thing, your Honor.

*Q By I OWE, you mean the MIAA? *AJ HERMOSISIMA

WITNESS *Q You said there was an I OWE YOU?

A Yes, your Honor. A Yes, your Honor.

*AJ DEL ROSARIO *Q Where is that I OWE YOU now?

*Q And what did you say in this discussion you had with A All I know is that we owe PNCC the amount of P99.1

him? million, your Honor. MIAA owes PNCC that amount.

A I just said, Yes, sir, I will do it/ *Q Was this payment covered by receipt from the PNCC?

*Q Were you the one who asked for a memorandum to be A It was not covered, your Honor.

signed by him?
*Q So the obligation of MIAA to PNCC was not, for the

A No, your Honor. record, cancelled by virtue of that payment?

*Q After receiving that verbal instruction for you to pay A Based on the order to me by the former President

MIAAs obligation with PNCC, did you not on your own Marcos ordering me to pay that amount to his office and

accord already prepare the necessary papers and then the mechanics will come after, your Honor.

documents for the payment of that obligation?

*Q Is the PNCC a private corporation or government

A He told me verbally in the telephone that the Order for entity?

the payment of that obligation is forthcoming, your

Honor. I will receive it. A I think it is partly government, your Honor.

*Q Is this the first time you received such a memorandum *PJ GARCHITORENA

from the President?

*Q That is the former CDCP?

A Yes, your Honor.

A Yes, your Honor.

*Q And was that the last time also that you received such
*AJ HERMOSISIMA
a memorandum?

*Q Why were you not made to pay directly to the PNCC

A Yes, your Honor.
considering that you are the Manager of MIA at that time

*Q Did you not inquire, if not from the President, at least and the PNCC is a separate corporation, not an adjunct of

from Mrs. Gimenez why this procedure has to be Malacaang?

followed instead of the regular procedure?

WITNESS

A: No, sir.

Page 27 of 74
A I was just basing it from the Order of Malacaang to pay *Q There is no question and it can be a matter of judicial
PNCC through the Office of the President, your Honor. knowledge that you have been with the MIA for
sometime?
*Q Do you know the President or Chairman of the Board
of PNCC? A Yes, your Honor.

A Yes, your Honor. *Q Prior to 1986?

*Q How was the obligation of MIAA to PNCC A Yes, your Honor.

incurred. Was it through the President or Chairman of the
Board?
A PNCC was the one that constructed the MIA, your
Honor.
*Q Was the obligation incurred through the President or
Chairman of the Board or President of the PNCC? In
*Q Can you tell us when you became the Manager of
MIA?
A I became Manager of MIA way back, late 1968, your
Honor.
*Q Long before the MIA was constituted as an

other words, who signed the contract between PNCC and independent authority?

MIAA?
A Yes, your Honor.

A Actually, we inherited this obligation, your Honor. The

one who signed for this was the former Director of BAT *PJ GARCHITORENA

which is General Singzon. Then when the MIA Authority

*Q And by 1986, you have been running the MIA for 18
was formed, all the obligations of BAT were transferred
years?
to MIAA. So the accountabilities of BAT were transferred
to MIAA and we are the ones that are going to pay, your
WITNESS
Honor.

A Yes, your Honor.

*Q Why did you agree to pay to Malacaang when your
obligation was with the PNCC?
*Q And prior to your joining the MIA, did you ever work
for the government?
A I was ordered by the President to do that, your Honor.

A No, your Honor.

*Q You agreed to the order of the President
notwithstanding the fact that this was not the regular
*Q So, is it correct for us to say that your joining the MIA
course or Malacaang was not the creditor?
in 1968 as its Manager was your first employment with
the government?
A I saw nothing wrong with that because that is coming
from the President, your Honor.
A Yes, your Honor.

*Q The amount was not a joke, amounting to P55

*Q While you were Manager of MIA, did you have other
million, and you agreed to deliver money in this amount
subsequent concurrent positions in the government also?
through a mere receipt from the private secretary?

A I was also the Chairman of the Games and Amusement

A I was ordered by the President, your Honor.
Board, your Honor.

*PJ GARCHITORENA

Page 28 of 74
*Q But you were not the executive or operating officer of A I forgot his name, but he retired already, your Honor.
the Games and Amusement Board?
*Q All of us who joined the government, sooner or later,
A I was, your Honor. meet with our Resident COA representative?

*Q As Chairman you were running the Games and A Yes, your Honor.
Amusement Board?
*PJ GARCHITORENA
A Yes, your Honor.
*Q And one of our unfortunate experience (sic) is when
*Q What else, what other government positions did you the COA Representative comes to us and says: Chairman
occupy that time? or Manager, this cannot be. And we learn later on that
COA has reasons for its procedure and we learn to adopt
A I was also Commissioner of the Game Fowl to them?
Commission, your Honor.
WITNESS
*PJ GARCHITORENA
A Yes, your Honor.
*Q That is the cockfighting?
*Q As a matter of fact, sometimes we consider it
WITNESS inefficient, sometimes we consider it foolish, but we
know there is reason in this apparent madness of the COA
A Yes, your Honor. and so we comply?

*Q Here, you were just a member of the Board? A Yes, your Honor.

A Yes, your Honor. *Q And more than anything else the COA is ever anxious
for proper documentation and proper supporting papers?
*Q So you were not running the commission?

A Yes, your Honor.

A Yes, your Honor.

*Q Sometimes, regardless of the amount?

*Q Any other entity?

A Yes, your Honor.

A No more, your Honor.

*Q Now, you have P55 million which you were ordered

*Q As far as you can recall, besides being the Manager of
to deliver in cash, not to the creditor of the particular
the MIA and later the MIAA for approximately 18 years,
credit, and to be delivered in armored cars to be
you also ran the Games and Amusement Board as its
acknowledged only by a receipt of a personal
executive officer?
secretary. After almost 18 years in the government
service and having had that much time in dealing with
A Yes, your Honor.
COA people, did it not occur to you to call a COA
representative and say, What will I do here?
*Q And you were a commissioner only of the Game Fowl
Commission?
A I did not, your Honor.

A Yes, your Honor.

*PJ GARCHITORENA

*Q Who was running the commission at that time?

Page 29 of 74
*Q Did you not think that at least out of prudence, you
should have asked the COA for some guidance on this
matter so that you will do it properly?
WITNESS
A What I was going to do is, after those things I was
going to tell that delivery ordered by the President to the
COA, your Honor.
*Q That is true, but what happened here is that you and
Mr. Dabao or you and Mr. Peralta signed requests for
issuance of Managers checks and you were
accommodated by the PNB Office at Nichols without any
internal documentation to justify your request for
Managers checks?
A Yes, your Honor.
*Q Of course we had no intimation at that time that Mr.
Marcos will win the elections but even then, the Daily
Express, which was considered to be a newspaper
friendly to the Marcoses at that time, would occasionally
come with so-called expose, is that not so?
A Yes, your Honor.
*Q And worst, you had the so-called mosquito press that
would always come out with the real or imagined scandal
in the government and place it in the headline, do you
recall that?
A Yes, your Honor.
*PJ GARCHITORENA
*Q Under these circumstances, did you not entertain
some apprehension that some disloyal employees might
leak you out and banner headline it in some mosquito
publications like the Malaya at that time?
WITNESS
A No, your Honor.
*PJ GARCHITORENA
Page 30 of 74
I bring this up because we are trying to find out different
areas of fear. We are in the government and we in the
government fear the COA and we also fear the press. We
might get dragged into press releases on the most
innocent thing. You believe that?
A Yes, your Honor.
*Q And usually our best defense is that these activities
are properly documented?
A Yes, your Honor.
*Q In this particular instance, your witnesses have told us
about three (3) different trips from Nichols to Aguado
usually late in the day almost in movie style fashion. I
mean, the money being loaded in the trunk of your
official car and then you had a back-up truck following
your car?
A Yes, your Honor.
*Q Is that not quite a fearful experience to you?
A I did not think of that at that time, your Honor.
*PJ GARCHITORENA
*Q You did not think it fearful to be driving along Roxas
Boulevard with P25 million in the trunk of your car?
WITNESS
A We have security at that time your Honor.
ATTY. ANDRES
Your Honor, the P25 million was in the armored car;
only P5 million was in the trunk of his car.
*PJ GARCHITORENA
Thank you for the correction. Even P1 million only. How
much more with P5 million inside the trunk of your car,
was that not a nervous experience?
A As I have said, your Honor, I never thought of that.
 PJ GARCHITORENA A Yes, sir, an order was given to me by Mr. Tabuena.

Thank you very much, Mr. Tabuena. You are excused. x x *PJ GARCHITORENA
x.[42]

Was that marked in evidence?

(PERALTA)
WITNESS
(He testified on direct examination that he co-signed with Tabuena a
memorandum request for the issuance of the Managers Check for P5 Million Yes, your Honor.

upon order of Tabuena and that he [Peralta] was aware that MIAA had an
existing obligation with PNCC in the amount of around P27 Million. He *PJ GARCHITORENA

affirmed having accompanied Tabuena at the PNB Villamor Branch to

What exhibit?
withdraw the P5 Million, but denied having misappropriated for his own
benefit said amount or any portion thereof.)
WITNESS

CROSS-EXAMINATION BY PROS VIERNES

I have here a copy, your Honor. This was the order and it
was marked as exhibit N.
Q Will you please tell the Honorable Court why was it
necessary for you to co-sign with Mr. Tabuena the request
for issuance of Managers check in the amount of P5
million?
PROS VIERNES

A At that time I was the Acting Financial Services

It was marked as Exhibit M, your Honor.
Manager of MIAA, sir, and all withdrawals of funds
should have my signature because I was one of the
Q How did you know there was an existing liability of
signatories at that time.
MIAA in favor of PNCC at that time?

Q As Acting Financial Services Manager of MIAA, you

A Because prior to this memorandum of Mr. Tabuena, we
always co-sign with Mr. Tabuena in similar requests for
prepared the financial statement of MIAA as of December
the issuance of Managers checks by the PNB?
31, 1985 and it came to my attention that there was an
existing liability of around P27,999,000.00, your Honor.
A That is the only occasion I signed, sir.

Q When was that Financial Statement prepared?

Q Did you say you were ordered by Mr. Tabuena to sign
the request?
A I prepared it around January 22 or 24, something like
that, of 1986, sir.
A Yes, sir, and I think the order is part of the
exhibits. And based on that order, I co-signed in the
Q Is it your usual practice to prepare the Financial
request for the issuance of Managers check in favor of
Statement after the end of the year within three (3) weeks
Mr. Luis Tabuena.
after the end of the year?

PROS VIERNES
A Yes, sir, it was a normal procedure for the MIAA to
prepare the Financial Statement on or before the 4th
Q Was there a separate written order for you to co-sign
Friday of the month because there will be a Board of
with Mr. Tabuena?
Directors Meeting and the Financial Statement of the
prior month will be presented and discussed during the
WITNESS
meeting.

Page 31 of 74
*PJ GARCHITORENA Q Why was it necessary for you to go with him on that
occasion?
*Q This matter of preparing Financial Statement was not
an annual activity but a monthly activity? A Mr. Tabuena requested me to do the counting by
million, sir. So what I did was to bundle count the P5
A Yes, your Honor. million and it was placed in two (2) peerless boxes.

*Q This Financial Statement you prepared in January of Q Did you actually participate in the counting of the
1986 recapitulated the financial condition as of the end of money by bundles?
the year?
A Yes, sir.
A Yes, your Honor.
Q Bundles of how much per bundle?
PJ GARCHITORENA
A If I remember right, the bundles consisted of P100s
Continue. and P50s, sir.

PROS VIERNES Q No P20s and P10s?

Q You made mention of a request for Escalation Clause A Yes, sir, I think it was only P100s and P50s.
by former Minister Ongpin. Did you personally see that
request? *PJ GARCHITORENA

A When this order coming from Mr. Tabuena was shown *Q If there were other denominations, you can not recall?
to me, I was shown a copy, sir. I have no file because I
just read it. A Yes, your Honor.

Q It was Mr. Tabuena who showed you the letter of PROS VIERNES

Minister Ongpin?
Q In how many boxes were those bills placed?

A Yes, sir.
A The P5 million were placed in two (2) peerless boxes,

*PJ GARCHITORENA sir.

And that will be Exhibit? Q And you also went with Mr. Tabuena to Aguado?

ATTY. ANDRES A No, sir, I was left behind at Nichols. After it was placed
at the trunk of the car of Mr. Tabuena, I was left behind
Exhibit 2 and 2-A, your Honor. and I went back to my office at MIA.

PROS VIERNES Q But the fact is that, this P5 million was withdrawn at
passed 5:00 oclock in the afternoon?
Q You also stated that you were with Mr. Tabuena when
you withdrew the amount of P5 million from the PNB A I started counting it I think at around 4:30, sir. It was
Extension Office at Villamor? after office hours. But then I was there at around 4:00
oclock and we started counting at around 4:30 p.m.
A Yes, sir. because they have to place it in a room, which is the
office of the Manager at that time.

Page 32 of 74
Q And Mr. Tabuena left for Malacaang after 5:00 oclock
in the afternoon of that date?
A Yes, sir. After we have counted the money, it was
placed in the peerless boxes and Mr. Tabuena left for
Malacaang.
PROS VIERNES
Q And you yourself, returned to your office at MIA?
WITNESS
A Based on the order of President Marcos that we should
pay in cash, it was not based on the normal procedure,
your Honor.
*Q And, as Acting Financial Services Manager, you were
aware that all disbursements should be covered by
vouchers?
A Yes, your Honor, the payments should be covered by
vouchers. But then, inasmuch as what we did was to
prepare a request to the PNB, then this can be covered by
Journal Voucher also.

A Yes, sir. *Q Was such payment of P5 million covered by a Journal

Voucher?
Q Until what time do you hold office at the MIA?

A Yes, your Honor.

A Usually I over-stayed for one (1) or two (2) hours just
to finish the paper works in the office, sir. *Q Did you present that Journal Voucher here in Court?

Q So, even if it was already after 5:00 oclock in the A We have a copy, your Honor.
afternoon, you still went back to your office at MIA?

*Q Do you have a copy or an excerpt of that Journal

A Yes, sir. Voucher presented in Court to show that payment?

PROS VIERNES A We have a copy of the Journal Voucher, your Honor.

That will be all, your Honor. *Q Was this payment of P5 million ever recorded in a
cashbook or other accounting books of MIAA?
PJ GARCHITORENA

A The payment of P5 million was recorded in a Journal

Redirect?
Voucher, your Honor.

ATTY. ESTEBAL
*PJ GARCHITORENA

No redirect, your Honor.

*Q In other words, the recording was made directly to the
Journal?
*PJ GARCHITORENA

WITNESS
Questions from the Court.

A Yes, your Honor.

*AJ DEL ROSARIO

*Q There are no other separate documents as part of the

*Q Did you not consider it as odd that your obligation
application for Managers Check?
with the PNCC had to be paid in cash?

A Yes, your Honor, there was none.

WITNESS

*AJ DEL ROSARIO

Page 33 of 74
*Q After the payment was made, did your office receive
any receipt from PNCC?
A I was shown a receipt by Mr. Tabuena, the receipt
given by Mrs. Fe Roa Gimenez, your Honor. Inasmuch as
the payment should be made through the Office of the
president, I accepted the receipt given by Mrs. Fe
Gimenez to Mr. Tabuena.
*Q After receiving that receipt, did you prepare the
necessary supporting documents, vouchers, and use that
receipt as a supporting document to the voucher?
A Your Honor, a Journal Voucher was prepared for that.
*Q How about a disbursement voucher?
A Inasmuch as this was a request for Managers check, no
disbursement voucher was prepared, your Honor.
*AJ DEL ROSARIO
*Q Since the payment was made on January 31, 1986,
and that was very close to the election held in that year,
did you not entertain any doubt that the amounts were
being used for some other purpose?
ATTY. ESTEBAL
With due respect to the Honorable Justice, we are
objecting to the question on the ground that it is improper.
*AJ DEL ROSARIO
I will withdraw the question.
*PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct examination, and
secondly, I dont think there was any basis, your Honor.
*PJ GARCHITORENA
Page 34 of 74
Considering the withdrawal of the question, just make the
objection on record.
*AJ HERMOSISIMA
*Q As a Certified Public Accountant and Financial
Manager of the MIAA, did you not consider it proper that
a check be issued only after it is covered by a
disbursement voucher duly approved by the proper
authorities?
A Your Honor, what we did was to send a request for a
Managers check to the PNB based on the request of Mr.
Tabuena and the order of Mr. Tabuena was based on the
Order of President Marcos.
*PJ GARCHITORENA
*Q In your capacity as Financial Services Manager of the
MIAA, did you not think it proper to have this transaction
covered by a disbursement voucher?
WITNESS
A Based on my experience, payments out of cash can be
made through cash vouchers, or even though Journal
Vouchers, or even through credit memo, your Honor.
*AJ HERMOSISIMA
*Q This was an obligation of the MIAA to the
PNCC. Why did you allow a disbursement by means of
check in favor of Mr. Luis Tabuena, your own manager?
A We based the payment on the order of Mr. Tabuena
because that was the order of President Marcos to pay
PNCC through the Office of the President and it should
be paid in cash, your Honor.
*Q You are supposed to pay only on legal orders. Did you
consider that legal?
ATTY. ESTEBAL
With due respect to the Honorable Justice, the question
calls for a conclusion of the witness.
*PJ GARCHITORENA
Considering that the witness is an expert, witness may
answer.
WITNESS
A The order of president Marcos was legal at that time
because the order was to pay PNCC the amount of P5
million through the Office of the President and it should
be paid in cash, your Honor. And at that time, I know for
a fact also that there was an existing P.D. wherein the
President of the Republic of the Philippines can transfer
*Q Therefore, when you said that a Journal Voucher here
is proper, you are saying it is proper only because of the
exceptional nature of the transactions?
A Yes, your Honor.
*Q In other words, as an Accountant, you would not
normally authorize such a movement of money unless it
is properly documented?
ATTY. ESTEBAL

funds from one office to another and the PNCC is a quasi

government entity at that time. With due respect to the Honorable Presiding Justice, I
think the question is misleading because what the witness

*AJ HERMOSISIMA stated is...

*Q Are you saying that this transaction was made on the *PJ GARCHITORENA

basis of that P.D. which you referred to?

Be careful in your objection because the witness

A I am not aware of the motive of the President, but then understands the language you are speaking, and therefore,

since he is the President of the Philippines, his order was you might be coaching him.

to pay the PNCC through the Office of the President,

your Honor. ATTY. ESTEBAL

*Q As Financial Manager, why did you allow a payment No, your Honor. I am also an accountant that is why I

in cash when ordinarily payment of an obligation of could say that...

MIAA is supposed to be paid in check?

*PJ GARCHITORENA

A I caused the payment through the name of Mr. Tabuena

Please be simple in your objection.
because that was the order of Mr. Tabuena and also he
received an order coming from the President of the
ATTY. ESTEBAL
Philippines at that time, your Honor.

The question is misleading on the ground that what the

*PJ GARCHITORENA
witness stated earlier is that the Journal Voucher in this
particular case was supported, your Honor.
*Q Mr. Peralta, are not Journal Vouchers merely entries in
the Journals to correct certain statements of accounts
*PJ GARCHITORENA
earlier made in the same journal?

Overruled, may answer.

In other words, really what you are telling us is that, a
Journal Voucher is to explain a transaction was otherwise
WITNESS
not recorded.

A The transaction was fully documented since we have

WITNESS
the order of the General Manager at that time and the
order of President Marcos, your Honor.
A Yes, your Honor.

Page 35 of 74
*Q Are you saying the Order of the General Manager is
an adequate basis for the movement of money?
A Yes, your Honor, because at that time we have also a
recorded liability of P27 million.
*Q We are not talking of whether or not there was a
liability. What we are saying is, is the order of the
General Manager by itself adequate with no other
supporting papers, to justify the movement of funds?
A Yes, your Honor. The order of Mr. Luis Tabuena was
based on our existing liability of P27,931,000.00,
inasmuch as we have that liability and I was shown the
order of President Marcos to pay P5 million through the
Office of the President, I considered the order of Mr. Luis
Tabuena, the order of President Marcos and also the
existing liability of P27 million sufficient to pay the
amount of P5 million. Inasmuch as there is also an
escalation clause of P99.1 million, the payment of P5
million is fully covered by those existing documents.
*PJ GARCHITORENA
You keep flooding us with details we are not asking
for. We are not asking you whether or not there was valid
obligation. We are not asking you about the escalation
clause. We are asking you whether or not this particular
order of Mr. Tabuena is an adequate basis to justify the
movement of funds?
WITNESS
When we pay, your Honor, we always look for the
necessary documents and at that time I know for a fact
that there was this existing liability.
*PJ GARCHITORENA
When we ask questions and when we answer them, we
must listen to the question being asked and not to
whatever you wanted to say. I know you are trying to
protect yourself. We are aware of your statement that
there are all of these memoranda.
*Q By your disbursement of such amount, you are saying
that the order of Mr. Tabuena by itself is adequate?
Page 36 of 74
WITNESS
A As far as I am concerned, your Honor, inasmuch as we
have a liability and I was shown the Order of President
Marcos to pay PNCC through his office, I feel that the
order of the General Manager, the order of President
Marcos, and also the memorandum of Minister Ongpin
are sufficient to cause the payment of P5 million.
*PJ GARCHITORENA
*Q This Presidential Decree which authorizes the
President to transfer funds from one department to
another, is this not the one that refers to the realignment
of funds insofar as the Appropriation Act is concerned?
WITNESS
A Because at that time, your Honor, I have knowledge
that the President is authorized through a Presidential
Decree to transfer government funds from one office to
another.
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are payments of debts
of the MIAA covered by the Appropriation Act?
AI think the liability was duly recorded and
appropriations to pay the amount is.....
(interrupted)
*PJ GARCHITORENA
*Q Tell me honestly, is your answer responsive to the
question or are you just throwing words at us in the hope
that we will forget what the question is?
A No, your Honor.
*Q Are you telling us that the debts incurred by MIAA
are covered by the Appropriations Act so that the
payment of this debt would be in the same level as the
realignment of funds authorized the President? Or are you
telling as you did not read the Decree?
A I was aware of that Decree, your Honor.
*PJ GARCHITORENA *Q In your case, you would be the counter check for Mr.
Tabuena?
Mr. Estebal, will you include in your memorandum what
are the Decrees authorizing this movement of funds? A Yes, your Honor.

ATTY. ESTEBAL *Q In other words, even if Mr. Tabuena is the Manager,

you as Financial Services Manager and as counter
Yes, your Honor. signatory are in a position to tell Mr. Tabuena, I am sorry,
you are my superior but this disbursement is not proper
*PJ GARCHITORENA and, therefore, I will not sign it., if in your opinion the
disbursement is not proper?
*Q It is true that President Marcos was the President, but
he was not an officer of the MIAA, was he? A Yes, your Honor.

A No, your Honor. *Q Therefore, as co-signatory, you are expected to

exercise your judgment as to the propriety of a particular
*Q In fact, for purposes of internal control, you have
transaction?
different officers and different officials in any company
either government or private, which are supposed to A Yes, your Honor.
check and balance each other, is it not?

*Q And this is something you know by the nature of your

A Yes, your Honor. position and because you are a Certified Public
Accountant?
*Q So that when disbursements of funds are made, they
are made by authority of not only one person alone so A Yes, your Honor.
that nobody will restrain him?

*AJ DEL ROSARIO

A Yes, your Honor.

*Q You admit that the payment of P5 million and P50

*Q These checks and balances exist in an entity so that no million were unusual in the manner with which they were
one person can dispose of funds in any way he likes? disposed?

A Yes, your Honor. A Yes, your Honor.

*Q And in fact, the purpose for having two (2) signatories *Q Did you submit a written protest to the manner in
to documents and negotiable documents is for the same which such amount was being disposed of?
purpose?

A A written protest was not made, your Honor, but I

A Yes, your Honor. called the attention of Mr. Tabuena that since this
payment was upon the order of President Marcos, then I
*PJ GARCHITORENA
think as President he can do things which are not
ordinary.
*Q In other words, the co-signatories counter check each
other?
*Q If you did not prepare a written protest, did you at
least prepare a memorandum for the record that this was
WITNESS
an extra-ordinary transaction?

A Yes, your Honor.

Page 37 of 74
 A I called the attention of Mr. Tabuena that this was an
extra-ordinary transaction and no written note, your
Honor.
PJ GARCHITORENA
Thank you very much Mr. Peralta, you are excused. x x x.
[43]
This Court has acknowledged the right of a trial judge to question
witnesses with a view to satisfying his mind upon any material point which
presents itself during the trial of a case over which he presides. [44] But not only
should his examination be limited to asking clarificatory questions,[45] the
right should be sparingly and judiciously used; for the rule is that the court
should stay out of it as much as possible, neither interfering nor intervening in
the conduct of the trial. [46]
Here, these limitations were not observed. Hardly
in fact can one avoid the impression that the Sandiganbayan had allied itself
with, or to be more precise, had taken the cudgels for the prosecution in
proving the case against Tabuena and Peralta when the Justices cross-
examined the witnesses, their cross-examinations supplementing those made
by Prosecutor Viernes and far exceeding the latters questions in
length. The cold neutrality of an impartial judge requirement of due process
in the defendants probable guilt to permit the jury freely to perform its own
function of independent determination of the facts. x x x
The majority believes that the interference by the Sandiganbayan
Justices was just too excessive that it cannot be justified under the norm
applied to a jury trial, or even under the standard employed in a non-jury trial
where the judge is admittedly given more leeway in propounding questions to
clarify points and to elicit additional relevant evidence. At the risk of being
repetitious, we will amplify on this via some specific examples. Based on the
evidence on record, and on the admission of Tabuena himself, the P55 million
was delivered to the Presidents Office thru Mrs. Gimenez, in obedience to the
Presidential directive. One Sandiganbayan Justice, however, hurled the
following questions to Peralta:
AJ DEL ROSARIO
Q: Since the payment was made on January 31, 1986,
and that was very close to the election held in that year,
did you not entertain any doubt that the amounts
were being used for some other purposes?
ATTY. ESTEBAL

was certainly denied Tabuena and Peralta when the court, with its
overzealousness, assumed the dual role of magistrate and advocate. In this With due respect to the Honorable Justice, We are objecti

connection, the observation made in the Dissenting Opinion to the effect that ng to the question on the ground that it is

the majority of this Court was unduly disturbed with the number of court
improper.
questions alone, is quite inaccurate. A substantial portion of the TSN was
incorporated in the majority opinion not to focus on numbers alone, but more
AJ DEL ROSARIO
importantly to show that the court questions were in the interest of the
prosecution and which thus depart from that common standard of fairness and
I will withdraw the question.
impartiality. In fact, it is very difficult to be, upon review of the records,
confronted with numbers without necessarily realizing the partiality of the
PJ GARCHITORENA
Court. In US v. De Sisto (2 Cir., 1961, 289 F 2d 833), for example, a new trial
was required because the trial judge, as in this case, indulged in extensive
What is the ground for impropriety?
questioning of defendant and his witnesses, and the reviewing court also had
to amplify on numbers to bolster this. It was pointed out in the De Sisto case ATTY. ESTEBAL
that the judge asked 3,115 questions of all witnesses, the prosecutor asked but
1,381, defense counsel 3,330. The judges questions to the defendant De Sisto This is not covered in the direct examination,
totalled 306, the prosecutors 347, and the defense counsels, 201. After and secondly, I dont think there was any basis,
referring to these figures, the court stated: Your Honor.

. . . It is indeed an impressive proportion, but no such mathematical PJ GARCHITORENA

computation is of itself determinative. However, taking all this in conjunction
with the long and vigorous examination of the defendant himself by the judge, Considering the withdrawal of the question, just make the objection on

and the repeated belittling by the judge of defendants efforts to establish the record.

time that Fine left the pier, we fear that in its zeal for arriving at the facts the
court here conveyed to the jury too strong an impression of the courts belief

Page 38 of 74
 Nothing from the preceding questions of counsels or of the court would Please be simple in your objection.
serve as basis for this question. How then, can this be considered even
relevant? What is the connection between the payment made to the Presidents ATTY. ESTEBAL

office and the then forthcoming presidential snap election? In another

instance, consider the following questions of Presiding Justice Garchitorena: The question is misleading on the ground that what the
witness stated earlier is that the Journal Voucher in this

*PJ GARCHITORENA particular case was supported, your Honor.

*Q Mr. Peralta, are not Journal Vouchers merely entries in *PJ GARCHITORENA

the Journals to correct certain statements of accounts

earlier made in the same journal? Overruled, may answer.

xxx WITNESS

*Q In other words, really what you are telling us is that, a A The transaction was fully documented since we have

Journal Voucher is to explain a transaction was otherwise the order of the General Manager at that time and the

not recorded. order of President Marcos, your Honor.

xxx *Q Are you saying the Order of the General Manager is

an adequate basis for the movement of money?

*Q Therefore, when you said that a Journal Voucher here

is proper, you are saying it is proper only because of the *Q We are not talking of whether or not there was a

exceptional nature of the transactions? liability. What we are saying is, is the order of the
General Manager by itself adequate with no other

xxx supporting papers, to justify the movement of funds?

*Q In other words, as an Accountant, you would not *PJ GARCHITORENA

normally authorize such a movement of money unless it

is properly documented? You keep flooding us with details we are not asking
for. We are not asking you whether or not there was valid

ATTY. ESTEBAL obligation. We are not asking you about the escalation
clause. We are asking you whether or not this particular
With due respect to the Honorable Presiding Justice, I order of Mr. Tabuena is an adequate basis to justify the
think the question is misleading because what the witness movement of funds?
stated is...
*PJ GARCHITORENA
*PJ GARCHITORENA
When we ask questions and when we answer them, we
Be careful in your objection because the witness must listen to the question being asked and not to
understands the language you are speaking, and therefore, whatever you wanted to say. I know you are trying to
you might be coaching him. protect yourself. We are aware of your statement that
there are all of these memoranda.
ATTY. ESTEBAL
*Q By your disbursement of such amount, you are saying
No, your Honor. I am also an accountant that is why I that the order of Mr. Tabuena by itself is adequate?
could say that...
*PJ GARCHITORENA
*PJ GARCHITORENA

Page 39 of 74
*Q This Presidential Decree which authorizes the
President to transfer funds from one department to
another, is this not the one that refers to the realignment
of funds insofar as the Appropriation Act is concerned?
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are payments of debts
of the MIAA covered by the Appropriation Act?
*PJ GARCHITORENA
*Q Tell me honestly, is your answer responsive to the
question or are you just throwing words at us in the hope
that we will forget what the question is?
xxx
*Q Are you telling us that the debts incurred by MIAA
are covered by the Appropriations Act so that the
payment of this debt would be in the same level as the
realignment of funds authorized the President? Or are you
telling as you did not read the Decree?
*PJ GARCHITORENA
Mr. Estebal, will you include in your memorandum what
are the Decrees authorizing this movement of funds?
ATTY. ESTEBAL
Yes, your Honor.
*PJ GARCHITORENA
*Q It is true that President Marcos was the President, but
he was not an officer of the MIAA, was he?
*Q In fact, for purposes of internal control, you have
different officers and different officials in any company
either government or private, which are supposed to
check and balance each other, is it not?
*Q So that when disbursements of funds are made, they
are made by authority of not only one person alone so
that nobody will restrain him?
Page 40 of 74
*Q These checks and balances exist in an entity so that no
one person can dispose of funds in any way he likes?
*Q And in fact, the purpose for having two (2) signatories
to documents and negotiable documents is for the same
purpose?
*PJ GARCHITORENA
*Q In other words, the co-signatories counter check each
other?
*Q In your case, you would be the counter check for Mr.
Tabuena?
*Q In other words, even if Mr. Tabuena is the Manager,
you as Financial Services Manager and as counter
signatory are in a position to tell Mr. Tabuena, I am sorry,
you are my superior but this disbursement is not proper
and, therefore, I will not sign it., if in your opinion the
disbursement is not proper?
*Q Therefore, as co-signatory, you are expected to
exercise your judgment as to the propriety of a particular
transaction?
*Q And this is something you know by the nature of your
position and because you are a Certified Public
Accountant?[47]
How can these questions be considered clarificatory when they clearly
border more on cross-examination questions? Thus, the Dissenting Opinions
focus on the distinction between the two kinds of trial to justify the
Sandiganbayans active participation in the examination of petitioners Tabuena
and Peralta and witness Monera, with due respect, appears insignificant to this
case. Let it, therefore, be emphasized anew that:
A trial judge should not participate in the examination of witnesses as to
create the impression that he is allied with the prosecution. [48]
We doubt not that the sole motive of the learned judge was to ascertain the
truth of the transaction, but it is never proper for a judge to discharge the
duties of a prosecuting attorney. However anxious a judge may be for the
enforcement of the law, he should always remember that he is as much judge
in behalf of the defendant accused of crime, and whose liberty is in jeopardy,
as he is judge in behalf of the state, for the purpose of safeguarding the
interests of society.[49]
Ordinarily it is not good practice for the presiding judge himself to examine
witnesses at length. The circumstances may be such in a given case as to
justify the court in so doing....This court, however, has more than once said
that the examination of witnesses is the more appropriate function of counsel,
and the instances are rare and the conditions exceptional which will justify the
presiding judge in conducting an extensive examination. It is always
embarrassing for counsel to object to what he may deem improper questions
by the court. Then, in conducting a lengthy examination, it would be almost
impossible for the judge to preserve a judicial attitude. While he is not a mere
figurehead or umpire in a trial, and it is his duty to see that justice is done, he
will usually not find it necessary to conduct such examinations. The extent to
which this shall be done must largely be a matter of discretion, to be
determined by the circumstances of each particular case, but in so doing he
must not forget the function of the judge and assume that of an advocate....[50]
While it is true that the manner in which a witness shall be examined is
largely in the discretion of the trial judge, it must be understood that we have
not adopted in this country the practice of making the presiding judge the
chief inquisitor. It is better to observe our time-honored custom of orderly
judicial procedure, even at the expense of occasional delays....The judge is an
important figure in the trial of a cause, and while he has the right, and it is
often his duty, to question witnesses to the end that justice shall prevail, we
can conceive of no other reason, for him to take the trial of the cause out of
the hands of counsel.[51]
The examination of witnesses is the more appropriate function of counsel, and
it is believed the instances are rare and the conditions exceptional in a high
degree which will justify the presiding judge in entering upon and conducting
an extended examination of a witness, and that the exercise of a sound
discretion will seldom deem such action necessary or advisable.[52]
He [the judge] may properly intervene in a trial of a case to promote
expedition, and prevent unnecessary waste of time, or to clear up some
obscurity, but he should bear in mind that his undue interference, impatience,
or participation in the examination of witnesses, or a severe attitude on his
part toward witnesses, especially those who are excited or terrified by the
unusual circumstances of a trial, may tend to prevent the proper presentation
of the cause, or the ascertainment of the truth in respect thereto. [53]
The impartiality of the judge his avoidance of the appearance of becoming the
advocate of either one side or the other of the pending controversy is a
fundamental and essential rule of special importance in criminal cases....[54]
Our courts, while never unmindful of their primary duty to administer justice,
without fear or favor, and to dispose of these cases speedily and in as
inexpensive a manner as is possible for the court and the parties, should
refrain from showing any semblance of one-sided or more or less partial
Page 41 of 74
attitude in order not to create any false impression in the minds of the
litigants. For obvious reasons, it is the bounden duty of all to strive for the
preservation of the peoples faith in our courts.[55]
Time and again this Court has declared that due process requires no less than
the cold neutrality of an impartial judge. Bolstering this requirement, we have
added that the judge must not only be impartial but must also appear to be
impartial, to give added assurance to the parties that his decision will be
just. The parties are entitled to no less than this, as a minimum guaranty of
due process.[56]
We are well aware of the fear entertained by some that this decision
may set a dangerous precedent in that those guilty of enriching themselves at
the expense of the public would be able to escape criminal liability by the
mere expedient of invoking good faith. It must never be forgotten, however,
that we render justice on a case to case basis, always in consideration of the
evidence that is presented. Thus, where the evidence warrants an acquittal, as
in this case, we are mandated not only by the dictates of law but likewise of
conscience to grant the same. On the other hand, it does not follow that all
those similarly accused will necessarily be acquitted upon reliance on this
case as a precedent. For the decision in this case to be a precedent, the
peculiar circumstances and the evidence that led to the petitioners acquittal
must also be present in subsequent cases.
Furthermore, as between a mere apprehension of a dangerous
precedent and an actual violation of constitutionally enshrined rights, it is
definitely the latter that merits our immediate attention. For the most
dangerous precedent arises when we allow ourselves to be carried away by
such fears so that it becomes lawful to sacrifice the rights of an accused to
calm the fearful. In our eagerness to bring to justice the malefactors of the
Marcos regime, we must not succumb to the temptation to commit the
greatest injustice of visiting the sins of the wrongdoers upon an innocent.
WHEREFORE, in view of the foregoing, herein petitioners Luis A.
Tabuena and Adolfo M. Peralta are hereby ACQUITTED of the crime of
malversation as defined and penalized under Article 217 of the Revised Penal
Code. The Sandiganbayan Decision of October 12, 1990 and the Resolution
dated December 20, 1991 are REVERSED and SET ASIDE.
SO ORDERED.
 Based on the findings of the RTC, in the morning of June 13, 1992
some police officers from the Lagao Police Sub-Station requested police
officer Jaime Tabucon of the Central Police Station of General Santos City
homicide division to take the statement of accused Alex Aleman regarding the
slaying of a certain Dondon Cortez. On his arrival at the sub-station, Tabucon
noted the presence of Atty. Ruperto Besinga, Jr. of the Public Attorneys Office
(PAO) who was conversing with those taken into custody for the
PEOPLE OF THE PHILIPPINES, G.R. No. 185710 offense. When queried if the suspects would be willing to give their
statements, Atty. Besinga said that they were.
Appellee,

Some other police officer first took the statement of accused

Present: Jeffrey Datulayta. Officer Tabucon next took the statement of accused
Aleman, whom he observed to be in good physical shape.
Carpio, J., Chairperson,

Before anything else, officer Tabucon informed accused Aleman in

- versus - Brion,
Cebuano of his constitutional right to remain silent and to the assistance of
D
counsel of his own choice and asked him if he was willing to give a
el Castillo,
statement. Aleman answered in the affirmative. When asked if he had any
A
complaint to make, Aleman said that he had none. When Aleman said that he
bad, and
had no lawyer, Tabucon pointed to Atty. Besinga who claimed that he was
P
assisting all the suspects in the case. Tabucon warned Aleman that anything
erez, JJ.
he would say may be used against him later in court. Afterwards, the police
ROMULO TUNIACO, JEFFREY
officer started taking down Alemans statement.
DATULAYTA and ALEX ALEMAN,
Accused.
Accused Aleman said that in the course of a drinking bout with
Promulgated:
accused Datulayta and Tuniaco at around 9 p.m. on June 6, 1992, Dondon
ALEX ALEMAN,
Cortez threatened to report his drinking companions illegal activities to the
Appellant. January 19, 2010
police unless they gave him money for his forthcoming marriage. According
x ---------------------------------------------------------------------------------------- x
to Aleman, Datulayta and Tuniaco had already planned to kill Cortez in
Tupi, South Cotabato, for making the same threats and now they decided to
do it. They got Cortez drunk then led him out supposedly to get the money he
DECISION
needed.

The three accused brought Cortez to Apopong near the dump site
ABAD, J.:
and, as they were walking, accused Aleman turned on Cortez and stabbed him
on the stomach. Accused Datulayta, on the other hand, drew out his single
shot homemade M16 pistol[1] and shot Cortez on the head, causing him to
This case is about the requirements of a valid extrajudicial confession and the
fall. Datulayta handed over the gun to Aleman who fired another shot on
establishment of the existence of corpus delicti in murder cases.
Cortezs head. Accused Tuniaco used the same gun to pump some bullets into
Cortezs body. Then they covered him with rice husks.
The Facts and the Case

After taking down the statement, Tabucon explained the substance

The city prosecutor of General Santos City charged the accused
of it to accused Aleman who then signed it in the presence of Atty. Besinga.
Romulo Tuniaco, Jeffrey Datulayta, and Alex Aleman with murder before the
Regional Trial Court (RTC) of General Santos City in Criminal Case 8370.
On June 15, 1992 the police brought Aleman to the City
Prosecutors Office where he swore to his statement before an assistant city
prosecutor. In the afternoon, accused Datulayta and Aleman led Tabucon, the
Page 42 of 74
city prosecutor, and a police inspector, to the dump site where they left their
victims body. After some search, the group found a spot covered with burnt
rice husks and a partially burnt body of a man. About a foot from the body,
they found the shells of a 5.56 caliber gun and an armalite rifle.
On being arraigned, all three accused, assisted by Atty. Besinga,
pleaded not guilty to the murder charge. After the prosecution rested its case,
accused Tuniaco filed a demurrer to evidence which the Court granted,
resulting in the dismissal of the case against him. On being re-arraigned at his
request, accused Datulayta pleaded guilty to the lesser offense of
Homicide.The trial court sentenced him to imprisonment of six years and one
day and to pay P50,000.00 to the victims family.
For some reason, the trial court had Aleman subjected to psychiatric
examination at the Davao Mental Hospital. But, shortly after, the hospital sent
word that Aleman had escaped. He was later recaptured. When trial in the
case resumed, Alemans new PAO lawyer raised the defense of insanity. This
prompted the court to require the Provincial Jail Warden to issue a
certification regarding Alemans behavior and mental condition while in jail to
determine if he was fit to stand trial. The warden complied, stating that
Aleman had been observed to have good mental condition and did not commit
any infraction while in jail.
Although the prosecution and defense stipulated that Atty. Besinga assisted
accused Aleman during the taking of his extrajudicial confession, the latter,
however, recanted what he said to the police during the trial. He testified that
sometime in 1992, some police officers took him from his aunts house in
Purok Palen, Labangal, General Santos City, and brought him to the Lagao
police station. He was there asked to admit having taken part in the murder of
Cortez. When he refused, they tortured him until he agreed to sign a
document admitting his part in the crime.
Accused Aleman also testified that he could not remember having
been assisted by Atty. Besinga during the police investigation. He even denied
ever knowing the lawyer. Aleman further denied prior association with
accused Tuniaco and Datulayta. He said that he met them only at the city jail
where they were detained for the death of Cortez.
On October 8, 2001 the RTC rendered judgment, finding accused Aleman
guilty beyond reasonable doubt of the crime charged, and sentenced him to
suffer the penalty of reclusion perpetua. The court also ordered him to pay
death indemnity of P70,000.00 and moral damages of P50,000.00 to the heirs
of Cortez.
On appeal to the Court of Appeals (CA) in CA-G.R. CR-HC 00311, the court
rendered judgment on January 21, 2008, affirming the decision of the RTC
with the modification that directed accused Aleman and Datulayta to
indemnify the heirs of Cortez, jointly and severally, in the amounts
Page 43 of 74
of P50,000.00 as civil indemnity; P50,000.00 as moral damages; P25,000.00
as temperate damages; and P25,000.00 as exemplary damages. Aleman
appealed to this Court.
The Issues Presented
Accused Aleman raises two issues: a) whether or not the
prosecution was able to present evidence of corpus delicti; and b) whether or
not accused Alemans extrajudicial confession is admissible in evidence.
The Rulings of the Court
1. Corpus delicti has been defined as the body, foundation, or
substance of a crime. The evidence of a dead body with a gunshot wound on
its back would be evidence that murder has been committed.[2] Corpus
delicti has two elements: (a) that a certain result has been established, for
example, that a man has died and (b) that some person is criminally
responsible for it.[3] The prosecution is burdened to prove corpus
delicti beyond reasonable doubt either by direct evidence or by circumstantial
or presumptive evidence.[4]
The defense claims that the prosecution failed to prove corpus
delicti since it did not bother to present a medical certificate identifying the
remains found at the dump site and an autopsy report showing such remains
sustained gunshot and stab wounds that resulted in death; and the shells of the
guns used in killing the victim.
But corpus delicti need not be proved by an autopsy report of the
dead victims body or even by the testimony of the physician who examined
such body.[5] While such report or testimony is useful for understanding the
nature of the injuries the victim suffered, they are not indispensable proof of
such injuries or of the fact of death. [6] Nor is the presentation of the murder
weapons also indispensable since the physical existence of such weapons is
not an element of the crime of murder.[7]
Here, the police authorities found the remains of Cortez at the
place pointed to by accused Aleman. That physical confirmation, coming after
his testimony of the gruesome murder, sufficiently establishes the corpus
delicti of the crime. Of course, that statement must be admissible in evidence.
2. There is no reason for it not to be. Confession to be admissible
must be a) voluntary; b) made with the assistance of a competent and
independent counsel; c) express; and d) in writing. [8] These requirements were
met here. A lawyer, not working with or was not beholden to the police, Atty.
Besinga, assisted accused Aleman during the custodial investigation.Officer
Tabucon testified that he saw accused Aleman, before the taking of his
statement, conversing with counsel at the police station. Atty. Besinga did not IN LIGHT OF THE FOREGOING, the Court AFFIRMS the Court of
dispute this claim. Appeals judgment in CA-G.R. CR-HC 00311 dated January 21, 2008 against
accused Alex Aleman. The Court, however, DELETES from such judgment
Aleman alleges torture as the reason for the execution of the the portion increasing the civil liability of accused Jeffrey Datulayta who did
confession. The appellate court is correct in ruling that such allegation is not appeal from the RTC decision against him.
baseless. It is a settled rule that where the defendant did not present evidence
of compulsion, where he did not institute any criminal or administrative SO ORDERED.
action against his supposed intimidators, where no physical evidence of PEOPLE OF THE PHILIPPINES, G.R. No. 18182
violence was presented, all these will be considered as indicating Appellee,
voluntariness.[9] Here, although Aleman claimed that he bore torture marks on
his head, he never brought this to the attention of his counsel, his relatives, or Present:
the prosecutor who administered his oath.

CORONA, C. J
Accused Aleman claims, citing People v. Galit,[10] that long - versus - VELASCO, JR
questions followed by monosyllabic answers do not satisfy the requirement LEONARDO-D
that the accused is amply informed of his rights. But this does not apply DEL CASTILL
here. Tabucon testified that he spoke to Aleman clearly in the language he
PEREZ, JJ.
knew. Aleman, joined by Atty. Besinga, even signed a certification that the
investigator sufficiently explained to him his constitutional rights and that he
SATURNINO VILLANUEVA, Promulgated:
was still willing to give his statement.
Appellant. September 1, 20

x----------------------------------------------------
Further, Aleman asserts that he was lacking in education and so he
-------x
did not fully realize the consequences of a confession. But as the CA said, no
law or jurisprudence requires the police officer to ascertain the educational
DECISION
attainment of the accused. All that is needed is an effective communication
between the interrogator and the suspect to the end that the latter is able to
DEL CASTILLO, J.:
understand his rights.[11] This appears to have been done in this case.

Moreover, as the lower court noted, it is improbable that the police

On appeal is the November 5, 2007 Decision [1] of the Court of Appeals (CA)
fabricated Alemans confession and just forced him to sign it. The confession
in CA-G.R. CR-H.C. No. 02210 which affirmed with modification the
has details that only the person who committed the crime could have possibly
November 28, 2003 Decision[2] of the Regional Trial Court (RTC) of Tayug,
known.[12] What is more, accused Datulaytas confession corroborate that of
Pangasinan, Branch 51. The CA found appellant Saturnino Villanueva guilty
Aleman in important details. Under the doctrine of interlocking confessions,
beyond reasonable doubt of three counts of qualified rape and sentenced him
such corroboration is circumstantial evidence against the person implicated in
to suffer the penalty of reclusion perpetua and to pay his victim the amounts
it.[13]
of P75,000.00 as civil indemnity, P75,000.00 as moral damages,
and P25,000.00 as exemplary damages, for each count.
The Court notes that, when it modified the award of civil damages to the heirs
of Cortez, the CA made both accused Aleman and Datulayta, jointly and
severally liable, for the damages as modified. But the appeal by one or more
of several accused cannot affect those who did not appeal, except if the
Factual Antecedents:
judgment of the appellate court is favorable and applicable to them. [14]Here
accused Datulayta pleaded guilty to the lesser offense of homicide and the
On November 6, 2002, three Informations were filed against
trial court ordered him to pay only P50,000.00 in civil indemnity to the heirs
appellant for the crime of rape. The accusatory portions of the Informations
of Cortez. The CA erred in expanding that liability when he did not appeal
read:
from his conviction.[15]

Crim. Case No. T-3157:

Page 44 of 74

That on or about the 9 day of June, 2002,
th
at dawn, x x x, province of Pangasinan, Philippines,
and within the jurisdiction of this Honorable Court, the
above-named accused who is the father of complainant,
armed with a bladed weapon, by means of force, threat
and intimidation, did then and there willfully,
unlawfully and feloniously have sexual intercourse
with one AAA,[3] a minor 12 years of age, against her
will and consent, to the damage and prejudice of said
AAA.
CONTRARY to Article 335 of the Revised
Penal Code, as amended by Republic Act 8353. [4]
Crim. Case No. T-3158:
That on or about the 27 day of September, 1999, in the
th
evening, at x x x, province of Pangasinan, Philippines,
and within the jurisdiction of this Honorable Court, the
above-named accused who is the father of complainant,
armed with a bladed weapon, by means of force, threat
and intimidation, did then and there willfully,
unlawfully and feloniously have sexual intercourse
with one AAA, a minor 9 years of age, against her will
and consent, to the damage and prejudicie of said AAA.
CONTRARY to Article 335 of the Revised Penal Code,
as amended by Republic Act 8353.[5]
Crim. Case No. T-3159:
That on or about the 28 day of September, 1999, at
th
dawn, at x x x, province of Pangasinan, Philippines,
and within the jurisdiction of this Honorable Court, the
above-named accused who is the father of complainant,
armed with a bladed weapon, by means of force, threat
and intimidation, did then and there willfully,
unlawfully and feloniously have sexual intercourse
with one AAA, a minor 9 years of age, against her will
and consent, to the damage and prejudice of said AAA.
CONTRARY to Article 335 of the Revised Penal Code,
as amended by Republic Act 8353. [6]
Page 45 of 74
When arraigned on November 14, 2002, appellant pleaded not
guilty to all charges.[7]
During pre-trial, the parties stipulated that the appellant is the
father of AAA. It was likewise agreed that AAA was below 12 years of age
when the rape incidents happened.[8] AAAs birth and medical certificates were
likewise marked as Exhibits A and C, respectively.[9]
Thereafter, the cases were tried jointly.[10]
Version of the Prosecution
The prosecution presented AAA as its witness. AAA narrated that when she
was about 4 years old, her mother left her in the care of her father, herein
appellant. Since then, she had been living with her father.
AAA claimed that appellant sexually abused her on September 27
and 28, 1999 and on June 9, 2002. During her testimony, AAA narrated that:
PROS. ULANDAY:
Q Will you please state your name, age and other
personal circumstances?
WITNESS:
A I am AAA, 13 years old, out-of-school
youth, presently residing at x x x[11]
xxxx
PROS. ULANDAY:
Q Madam Witness, do you still remember September
27, 1999?
A Yes, sir.
Q Why do you remember that particular date?
A That was the birthday of my father and the date when
he touched me, sir.
xxxx
Q Who rape[d] you?
A My papa, sir. Witness pointed to the accused.
xxxx
PROS. ULANDAY:
 Q You claimed that your father touched and Q How long a time did your father [insert] his penis
used you. How did he begin in touching into your vagina?
you? A About two minutes, sir.
A He tied me, sir.
Q At early dawn of September 28, 1999,
xxxx what happened if any, between you and your
father?
Q What part of your body was x x x tied by A The same, sir.
your father?
A My mouth, sir. Q What do you mean by the same?
A That he inserted his penis into my vagina, sir.
Q What other parts of your body, if there
[are] any? Q Before your father inserted his penis into
A My hands and my feet, sir. your vagina, what did he do, if there was
any?
PROS. ULANDAY: A He first undressed me, sir.
My witness is crying, your Honor. [12]

Q While he was undressing you what were

xxxx you doing, if any?
A I failed to do any, sir.
Q Now, after your father tied you on
September 27, 1999, what did he do, if Q Why did you fail to do any?
theres any? A Because I was afraid, sir.
A He raped me, sir.
Q Why were you afraid at the time?
COURT: A Because he threatened me, sir.
Q What do you mean by x x x saying he raped you?
Q How did he [threaten] you?
xxxx A That if I would report the matter to
anyone he would kill the person to whom I
A He undressed me, sir. will report, sir.

xxxx Q Do you remember June 9, 2002 at 3:00

oclock dawn?
COURT: A Yes, sir.
And we make of record that [witness is now]
in tears. [13]
Q Why do you remember that particular
date?
xxxx A Because he again raped me, sir.

Q Who raped you?

PROS. ULANDAY: A My father, sir.
Q Madam Witness, during the last hearing
you uttered the word incua na. What do you Q In what particular place [were] you
mean by that? raped?
A He inserted his penis into my vagina, sir. A In our house, sir.

Page 46 of 74
 xxxx The defense next presented Marcelino Villanueva (Marcelino) who testified
that he is the father of the appellant.[18] He claimed that AAA filed the rape
Q You claimed that you were raped by your cases against appellant because the latter forbade her to entertain suitors.
father, how did he rape you? [19]
Marcelino also alleged that after appellant was incarcerated, AAA eloped
A He undressed me, sir. with her 20-year old boyfriend and that AAA only separated from her
boyfriend when she was brought under the care of the Department of Social
Q What else did he do aside from Welfare and Development.[20] When asked how old AAA was when she
undressing you? allegedly eloped with her boyfriend, Marcelino answered that AAA was only
A He poked a knife at me, sir. 13 years old.[21]

Q And after poking a knife at you, what
happened next, if any?
A Then he touched (kinuti) me, sir.
Q What part of your body was touched by
your father?
A My vagina, sir.
Q How did he touch your vagina?
A He inserted his penis into my vagina, sir.
Ruling of the Regional Trial Court
The trial court lent credence to the testimony of AAA. However, it noted that
although it was agreed upon during the pre-trial that AAA was a minor below
12 years of age, the fact remains that AAA was 12 years, six months and 19
days when she was ravished by the appellant on June 9, 2002. [22] The court
below also observed that AAA has always been a pathetic child of oppression,
abuse and neglect and that [h]er innocence, tender age, dependence [on
appellant] for survival, and her virtual orphanhood sufficed to qualify every
sexual molestation perpetrated by her father as rape x x x.[23]

Q What happened when he inserted his
penis into your vagina?
A I cried, sir.[14]
After the presentation of AAAs testimony, the prosecution rested
its case.
Version of the Defense
The defense presented appellant as its first witness. In his testimony, appellant
admitted that AAA is his daughter. [15]
He also admitted that on September 27
and 28, 1999 and June 9, 2002, he was living in the same house as AAA.
[16]
However, when asked regarding the rape charges filed against him by his
daughter, appellant denied the same. Thus:
Q And this daughter of your[s] now charge
you [with] rape in Crim. Case Nos. T-
3157/3158/3159 for allegedly having sexual
intercourse with her against her will and
consent. What can you say against these
charges by your daughter?
A [Those are] not true, sir. [17]
Page 47 of 74
The dispositive portion of the Decision reads:
WHEREFORE, finding the accused SATURNINO
VILLANUEVA guilty beyond reasonable doubt of
three counts of rape, defined and penalized by Article
266-A of the Revised Penal Code, perpetrated against
[his] daughter on September 27, 1999, September 28,
1999 and June 9, 2002, x x x and as mandated by
Article 266-B, same Code, the Court hereby sentences
him to suffer the penalty of DEATH for each offense, to
indemnify the complainant AAA for damages in the
amount of P50,000.00 per [count], and to pay the costs.
SO ORDERED.[24]
Ruling of the Court of Appeals
In his brief filed before the appellate court, appellant claimed that the
prosecution failed to present evidence that would overcome the presumption
of his innocence. Appellant also alleged that the trial court erred in lending
credence to the unrealistic and unnatural testimony of AAA.[25] He claimed
that it was unusual for AAA not to offer any resistance to the advances
allegedly made by him considering that he was unarmed. According to the
appellant, AAA should have struggled or at least offered some resistance
because she was not completely helpless. [26] Appellant also suggested that
AAA must have been coached because initially, she did not know the acts
which constitute rape. However, during the succeeding hearings, AAA
allegedly testified in detail the bestial acts committed against her. [27]
Moreover, appellant argued that the prosecution failed to formally offer in
evidence the medical certificate and to present the doctor who conducted the
medical examination to testify on his findings. [28] Likewise, AAAs birth
certificate was not formally offered.Neither did the Municipal Civil Registrar
who allegedly prepared the same take the witness stand. Thus appellant
claimed that assuming he was indeed guilty of the crimes charged, he should
only be held liable for simple rape and not qualified rape because the minority
of the victim was not duly established. [29]
Further, with the passage of
Republic Act No. 9346, appellant should not be sentenced to death. [30]
On the other hand, appellee maintained that AAAs credibility was beyond
doubt [31]
and that it was unnecessary to offer proof of resistance where the
assailant exercised moral ascendancy against his victim, as in this case.
[32]
Appellee insisted that the crimes committed were three counts of qualified,
and not simple, rape considering that AAA was a minor and the offender was
her father,[33]and that the parties had already stipulated during pre-trial as
regards the age of the victim. [34]
On November 5, 2007, the appellate court rendered its Decision disposing
thus:
WHEREFORE, premises considered, the Decision
dated 28 November 2003 of the Regional Trial Court of
Tayug, Pangasinan, Branch 51 in Crim. Case Nos. T-
3157, T-3158 and T-3159 finding accused-appellant
Saturnino Villanueva guilty beyond reasonable doubt of
three (3) counts of qualified rape under Articles 266-A
and 266-B is AFFIRMED with
the MODIFICATION that pursuant to Republic Act
No. 9346, the penalty of death imposed on appellant is
reduced to reclusion perpetua for each count of
qualified rape, without eligibility for parole under Act
No. 4103, as amended. Further, accused-appellant is
ordered to pay the private complainant/victim [AAA],
for each count of qualified rape, the amounts of Php
75,000.00 as civil indemnity, Php 75,000.00 as moral
damages and Php 25,000.00 as exemplary damages.
SO ORDERED. [35]
The appellate court found no reason to reverse the findings of the trial court
on the credibility of AAA. [36]
Although there were occasions when AAA
Page 48 of 74
would not immediately answer the questions propounded to her, the CA
opined that it was because she was either distressed in recounting her horrible
experiences or in tears.[37] The appellate court likewise considered the fact that
AAA was only 13 years old when she testified on her harrowing experiences.
[38]
The appellate court likewise brushed aside appellants contention that AAA
did not offer any resistance. According to the CA, appellants moral
ascendancy over AAA substitutes for violence or intimidation.[39]
The CA also concluded that even without the medical certificate, appellant
could still be held liable for three counts of rape. His conviction could rest
exclusively on the credible testimony of AAA and the medical certificate
would only be corroborative evidence.[40] Anent the birth certificate, the CA
recalled that during pre-trial, the minority of the victim and her relationship
with the appellant had already been stipulated upon. Hence, the said elements
have been sufficiently alleged in the Informations and proven during trial. [41]
Finally, the CA held that appellants denial is intrinsically weak and self-
serving especially considering AAAs credible and straightforward testimony.
[42]
Our Ruling
Both the appellant and the appellee opted not to file their supplemental briefs.
[43]
The appeal is partly meritorious.
At the outset, we must state that we entertain no doubt that appellant thrice
raped his daughter, AAA. We examined the records and we find AAAs
testimony convincing and straightforward. We therefore have no reason to
reverse or modify the findings of the trial court on the credibility of the
victims testimony, more so in this case where the said findings were affirmed
by the CA.
We also agree with the ruling of the appellate court that appellant could be
convicted of rape even without the medical certificate. In rape cases, the
accused may be convicted solely on the testimony of the victim, provided the
testimony is credible, natural, convincing, and consistent with human nature
and the normal course of things.[44] As stated above, AAAs testimony was
credible and convincing.As such, appellants conviction could rest solely on
it. The medical certificate would only serve as corroborative evidence.
We, however, agree with the appellant that both the medical certificate and
AAAs birth certificate, although marked as exhibits during the pre-trial,
should not have been considered by the trial court and the CA because they
were not formally offered in evidence. Section 34, Rule 132 of the Rules of
Court explicitly provides: The court shall consider no evidence which has not
been formally offered. The purpose for which the evidence is offered must be
specified.
In this case, we note that after the marking of the exhibits during pre-trial, the
prosecution did not formally offer the said medical certificate or birth
certificate in evidence. In fact, the prosecution rested its case after presenting
the testimony of AAA without formally offering any documentary exhibit at
all.
Our ruling in Heirs of Pedro Pasag v. Parocha [45]
is instructive, thus:
The rule on formal offer of evidence is not a
trivial matter. Failure to make a formal offer within a
considerable period of time shall be deemed a waiver to
submit it. Consequently, as in this case, any evidence
that has not been offered shall be excluded and
rejected.
xxxx
The Rules of Court [provide] that the court
shall consider no evidence which has not been formally
offered. A formal offer is necessary because judges are
mandated to rest their findings of facts and their
judgment only and strictly upon the evidence offered
by the parties at the trial.Its function is to enable the
trial judge to know the purpose or purposes for which
the proponent is presenting the evidence. On the other
hand, this allows opposing parties to examine the
evidence and object to its admissibility. Moreover, it
facilitates review as the appellate court will not be
required to review documents not previously
scrutinized by the trial court.
xxxx
Thus, the trial court is bound to consider
only the testimonial evidence presented and exclude the
documents not offered. Documents which may have
been identified and marked as exhibits during pre-
trial or trial but which were not formally offered in
evidence cannot in any manner be treated as
evidence. Neither can such unrecognized proof be
assigned any evidentiary weight and value. It must
be stressed that there is a significant distinction
between identification of documentary evidence and its
Page 49 of 74
formal offer. The former is done in the course of the
pre-trial, and trial is accompanied by the marking of the
evidence as an exhibit; while the latter is done only
when the party rests its case. The mere fact that a
particular document is identified and marked as an
exhibit does not mean that it has already been offered
as part of the evidence. It must be emphasized that any
evidence which a party desires to submit for the
consideration of the court must formally be offered by
the party; otherwise, it is excluded and rejected.[46]
We reiterated the above ruling in Dizon v. Court of Tax
Appeals [47]
where one of the issues presented was whether the Court of Tax
Appeals and the CA gravely abused their discretion in allowing the admission
of the pieces of evidence which were not formally offered by the Bureau of
Internal Revenue.[48] In finding the case impressed with merit, the Court held
that:
Under Section 8 of RA 1125, the CTA is
categorically described as a court of record. As cases
filed before it are litigated de novo, party-litigants shall
prove every minute aspect of their cases. Indubitably,
no evidentiary value can be given the pieces of
evidence submitted by the BIR, as the rules on
documentary evidence require that these documents
must be formally offered before the CTA. x x x
xxxx
x x x [T]he presentation of the BIRs
evidence is not a mere procedural technicality which
may be disregarded considering that it is the only
means by which the CTA may ascertain and verify the
truth of BIRs claims against the Estate. The BIRs
failure to formally offer these pieces of evidence,
despite CTAs directives, is fatal to its cause. Such
failure is aggravated by the fact that not even a single
reason was advanced by the BIR to justify such fatal
omission. This, we take against the BIR.[49]
We are not unaware that there is an exception to the above-stated
rule. In People v. Mate,[50] Silvestre Mate (Mate) was charged with the crime
of Kidnapping for Ransom with Murder and Frustrated Murder. [51] During
arraignment, he entered a plea of guilty. The court then propounded
clarificatory questions to determine whether the accused understood the
consequences of his plea. Immediately thereafter, the trial court promulgated
its decision finding the accused guilty as charged and sentenced him to death.
[52]
It was only after the rendition of the judgment that the trial court
conducted hearings for the reception of the prosecutions evidence. [53]
From the prosecutions evidence, it would appear that during the investigation,
Mate voluntarily made extra-judicial statements as contained in Exhibits A, B,
and J. Also, after his conviction, he appeared as witness for the prosecution
against his co-accused where he affirmed his extra-judicial statements in
Exhibits A, B, and J. However, the state prosecutor failed to formally offer
said exhibits.
In debunking the defenses contentions that the trial court erred in
rendering a judgment of conviction on Mate even before the prosecution
could present its evidence, and in considering the exhibits which were not
formally offered, the Court held thus:
The defense contends that the trial court committed a
serious error in rendering judgment of conviction
immediately after Mate had pleaded guilty to the crime
charged on the basis of his plea of guilty and before
receiving any evidence. While the trial court committed
an error in rendering judgment immediately after the
accused had pleaded guilty, and, thereafter, conducted
hearings for the reception of the evidence for the
prosecution, such an irregularity, is insufficient to
justify the setting aside of the judgment of conviction,
considering that it is supported by the judicial and
extra-judicial confessions of the accused and by other
evidence. x x x
xxxx
The defense questions also the failure of the state
prosecutor Cornelio Melendres to make a formal offer
of his exhibits, although they have been marked and
identified. Such an oversight appears trivial because the
entire evidence for the prosecution is recorded. Even
without the exhibits which have been incorporated into
the records of the case, the prosecution can still
establish the case because the witnesses properly
identified those exhibits and their testimonies are
recorded.
Exhibits A, B, and J are all admissible against Mate
because it appears with clarity that he voluntarily and
spontaneously gave those narrations without
Page 50 of 74
compulsion from anybody. In fact, . . . when he
testified against Ben Bohol he affirmed those narrations
again.[54]
In Mato v. Court of Appeals,[55] we concretized the above ruling by
holding that evidence, although not formally offered in evidence, may be
admitted and considered by the trial court provided the following
requirements are present, viz: first, the same must have been duly identified
by testimony duly recorded and, second, the same must have been
incorporated in the records of the case.[56]In Ramos v. Dizon,[57] we deemed the
exhibits to have been incorporated into the records because they had been
presented and marked during the pre-trial of the case. [58] Likewise, the first
requisite was deemed satisfied because one of the parties therein explained
the contents of the exhibits when interrogated by the respondents counsel.[59]
In the instant case, we find the rulings espoused in People v. Mate,
[60]
Mato v. Court of Appeals,[61] and Ramos v. Dizon[62]not applicable. Thus,
we find that both the trial court and the CA erred in allowing the admission of
AAAs medical certificate and birth certificate. The records would show that
the lone witness for the prosecution did not identify the said exhibits or
explain their contents.When AAA was placed on the witness stand, she
merely stated that she was 13 years old. No reference was ever made to her
birth certificate. The same is true with the medical certificate. After the
marking during the pre-trial, the prosecution did not refer to it in any stage of
the proceedings. Neither did it present the doctor who prepared the same.
Moreover, appellants admission during the pre-trial that AAA was
a minor below 12 years of age [63] would not help the prosecutions case. First,
the trial court found this admission inaccurate as in fact, AAA was already
above 12 years of age when the rape incident transpired on June 9,
2002. Second and more important, appellants admission during pre-trial is not
admissible as it violates Section 2, Rule 118 of the Rules of Court which
explicitly provides that: All agreements or admissions made or entered during
the pre-trial conference shall be reduced in writing and signed by the accused
and his counsel, otherwise they cannot be used against the accused. x x
x. In People v. Chua Uy,[64] we held that:
Even granting for the sake of argument that
RAMON admitted during the pre-trial that Exhibits D
to D-4, inclusive, and Exhibit E contained
methamphetamine hydrochloride, the admission cannot
be used in evidence against him because the Joint
Order was not signed by RAMON and his
counsel. Section 4 of Rule 118 of the Rules of Court
expressly provides:
 SEC. 4. Pre-trial
agreements must be signed. No WHEREFORE, we find appellant Saturnino
agreement or admission made or Villanueva GUILTY of three counts of simple rape and accordingly sentence
entered during the pre-trial him to suffer the penalty of reclusion perpetua and to indemnify his victim
conference shall be used in AAA the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral
evidence against the accused damages, and P30,000.00 as exemplary damages, for each count.
unless reduced to writing and
signed by his counsel. SO ORDERED.

Put in another way, to bind the accused the

pre-trial order must be signed not only by him but his
counsel as well. The purpose of this requirement is to
further safeguard the rights of the accused against
improvident or unauthorized agreements or admissions
which his counsel may have entered into without his
knowledge, as he may have waived his presence at the
pre-trial conference; eliminate any doubt on the
conformity of the accused of the facts agreed upon.

WILFRED* A. NICOLAS, G.R. Nos. 175930-3

In this case, records would show that the Pre-trial Order was not Petitioner,
signed by both appellant and his counsel.

In view of the foregoing, we find that the prosecution did not -versus-
present any satisfactory evidence to prove AAAs minority. In the prosecution
of criminal cases, x x x, nothing but proof beyond reasonable doubt of every
fact necessary to constitute the crime with which an accused is charged must HON. SANDIGANBAYAN, Third Division and the OFFICE OF
be established. Qualifying circumstances or special qualifying circumstances THE SPECIAL PROSECUTOR,
must be proved with equal certainty and clearness as the crime itself; Respondents.
otherwise, there can be no conviction of the crime in its qualified form. As a
qualifying circumstance of the crime of rape, the concurrence of the victims x- - - - - - - - - - - - - - - - - - - - - - - - - x
minority and her relationship to the accused-appellant must be both alleged
and proven beyond reasonable doubt.[65] JOSE FRANCISCO ARRIOLA,
Petitioner, G.R. Nos. 176010-1
In view of the foregoing, we find appellant guilty only of three
counts of simple rape[66] the penalty for which is reclusion perpetua for each Present:
count. Accordingly, the awards of civil indemnity must be reduced - versus -
to P50,000.00 and moral damages to P50,000.00.Finally, the award of QUISUMBING, C
exemplary damages is proper. Exemplary damages may be awarded in CARPIO,
criminal cases as part of civil liability if the crime was committed with one or THE HON. SANDIGANBAYAN (THIRD DIVISION) and CARPIO MORAL
more aggravating circumstances. Relationship as an alternative circumstance PEOPLE OF THE PHILIPPINES, TINGA, and
under Article 15 of the Revised Penal Code is considered aggravating in the Respondents. VELASCO, JR., J
crime of rape. [67]
In this case, the aggravating circumstance of relationship was
duly established. Appellant himself admitted when he testified in open court
that he is AAAs father. However, the award of P25,000.00 as exemplary Promulgated:
damages must be increased to P30,000.00 in line with prevailing
jurisprudence.[68] February 11, 2008
Page 51 of 74
x-------------------------------------------------- x the Authority for the withdrawal of the van; (2) Romeo Allan Rosales, chief
of the Informal Entry Division-Manila International Container Port (IED-
DECISION MICP); (3) Ruel Pantaleon (Pantaleon), chief of the Supply Section of the
General Services Division (GSD) of the Bureau of Customs; and (4) Alejo
CARPIO MORALES, J.: Acorda (Acorda) of the LOGCOM who signed as a witness in the
Certification of Withdrawal of the van.
In the present consolidated petitions for certiorari and prohibition
with prayer for issuance of a Temporary Restraining Order (TRO) or Writ of Through its testimonial and documentary evidence, the
Preliminary Injunction, petitioners, Wilfred A. Nicolas (Nicolas) and Jose prosecution attempted to show that the withdrawal of the van from the
Francisco Arriola (Arriola), attribute to public respondent, LOGCOM compound was based on a Notice of Withdrawal signed by
Sandiganbayan, grave abuse of discretion in issuing its Resolutions of August Nicolas, and on the Authority for the withdrawal of the van which, though it
31, 2006 and December 7, 2006 denying their Demurrer to Evidence and
[1] [2]
appeared to have been issued by Uy, was not actually signed by him.
their motions for reconsideration, respectively. The prosecution likewise attempted to establish that the
documents, including Official Receipts allegedly presented to show payment
Nicolas and Arriola, former Commissioner and Deputy of customs duties and taxes, were all spurious.
Commissioner, respectively, of the Economic Intelligence and Investigation
Bureau (EIIB), stand charged before public respondent in Criminal Case Nos. After concluding the presentation of its evidence, the prosecution
26267 and 26268, [3]
for violation of Section 3604 of the Tariff and Customs
[4]
filed on February 16, 2006 a Formal Offer of Evidence/Exhibits[6] to which
Code in the first case, and Section 3(e) [5] of the Anti-Graft and Corrupt petitioner Arriola filed a Comment/Opposition.[7]
Practices Act or Republic Act (R.A.) No. 3019 in the second.
By Resolution of March 30, 2006,[8] public respondent admitted
Culled from the records are the following material facts: the following documentary evidence for the prosecution:

On April 16, 1999, a 40-footer container van bearing Serial (

Number TRIU-576078-1 and Plate Number PKN 290, which was suspected 1
to be carrying undeclared goods, was seized by EIIB operatives under the )
command of Arriola, then chief of the Special Operations Group. The van
was turned over for safekeeping to the Armed Forces of the Philippines E
Logistics Command (LOGCOM) compound in Quezon City on April 19, x
1999. h
i
On May 6, 1999, however, the van was released by military police b
from the LOGCOM compound to representatives of the EIIB and Trinity i
Brokerage. While the van was heading to the docks for shipment to the t
alleged consignee, it surreptitiously exited at the North harbor with its
cargo. It has since been missing. “
A
For purportedly allowing the release of the goods, Nicolas and ”
Arriola were indicted for conspiring with one John Doe who took possession
of the goods without proper documentation and payment of customs duties
and taxes in the alleged amount of P656,950, thereby depriving the
government of revenue.

Both Nicolas and Arriola pleaded not guilty to the charges.

The prosecution presented four witnesses: (1) Commodore George

T. Uy (Uy), former commander of the LOGCOM whose signature appeared in
Page 52 of 74
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Page 63 of 74
 indictment. These import entry declarations were not even presented as
o documentary evidence, they added.
f
On the prosecution’s submission that customs duties were not
C paid, petitioners’ contended that the same is visited by a similar failure to link
u the allegedly fraudulent Official Receipt [18] Nos. 75071606, 7501609, and
s 75071603 to the cargo.
t
o Respecting the second Information, petitioners’ Demurrer
m maintained that the prosecution failed to establish each and every material
s element thereof.
[

1
In the main, petitioners thus argued that the prosecution was not
6
only unable to show that they were the perpetrators of the crimes charged or
]
that they committed any prohibited act; it was also not able to prove that
undue injury was caused the government.

The rest of the Exhibits for the prosecution, being mere
photocopies, were not admitted by public respondent. The excluded evidence
consisted of Mission Order No. 04-105-99 dated April 19,1999 for the
inventory of the contents of the van (Exhibit “B”); the Inventory List of the
van (Exhibits “C” to “C-3”); the Notice of Withdrawal dated May 6, 1999
(Exhibit “D”); and portions of No. 4 Ledger Series-99, the official logbook of
the IED-MICP (Exhibits “J-3” and “J-4”).
Petitioners separately filed motions for Leave of Court to File
Demurrer to Evidence with Motion to Admit Attached Demurrer to Evidence.
[17]
Respecting the first Information, petitioners’ respective
Demurrer maintained that the evidence admitted by public respondent failed
to identify and prove that they were the perpetrators of the crimes charged, for
there was no showing that they caused, approved or acted in any manner
relative to the release of the goods.
Petitioners went on to contend that none of the documentary
evidence bore their names or signatures. And neither was there any
testimonial evidence that they acted towards the release of the shipment.
Additionally, petitioners contended that the shipment was not
shown to be imported, or for export, or otherwise subject of coastwise trade as
to be subject to customs duties; and that even assuming that customs duties
were due, there was no evidence that the same were not paid.
Regarding Import Entry Declaration Nos. 5000-99, 5001-99 and
5002-99 which, the prosecution maintained, were used for the release of the
goods but were not processed through the IED-MICP, petitioners contended
that the same were not shown to have a bearing on the shipment or to their
Finally, as to both Informations, petitioners submitted that the
existence of conspiracy between them and/or John Doe was not established.
To petitioners’ motions to File Demurrer to Evidence [19] and their
Demurrer to Evidence,[20] the prosecution filed a Comment/Opposition.
By the first questioned Resolution of August 31, 2006, public
respondent denied petitioners’ respective Demurrer to Evidence. In denying
the Demurrer, public respondent held that, inter alia, the prosecution was able
to establish that the goods apprehended by the EIIB for non-payment of
customs duties were deposited at the LOGCOM in Quezon City and while
there they were inventoried and found to be computer spare parts and not
“parts of a rock crusher” as they were allegedly originally declared; and that
on May 6, 1999, the goods were withdrawn from the LOGCOM compound
on the strength of a Notice of Withdrawal purportedly signed by then
LOGCOM Commander Uy who did not actually issue it as he was then in the
United States on official travel nor by the then deputy LOGCOM commander,
one Colonel Romero.
Public respondent concluded that petitioners should not have
allowed the withdrawal of the goods from the LOGCOM compound by
persons other than the real consignee and without obtaining proof that the
customs duties were fully and correctly paid. In doing so, public respondent
ruled, petitioners “can be deemed to have conspired or colluded with one
another or others to defraud the customs revenue or otherwise violated the
law.”[21]
Petitioners filed their respective motions for reconsideration.
[22]
The prosecution filed an Opposition[23] which merited petitioners’ Reply.
[24]

Page 64 of 74

By the second questioned Resolution of December 7, 2006,
[25]
public respondent denied petitioners’ motions for reconsideration.
Hence, these consolidated petitions.
As stated early on, petitioners jointly ascribe grave abuse of
discretion to public respondent for denying their Demurrer given what they
submit is the absence or lack of evidence to sustain the cases against them.
Nicolas additionally submits that public respondent grievously
abused its discretion when it disregarded this Court’s December 16, 2004
Decision in G.R. No. 154668 [26]
“Wilfred A. Nicolas v. Aniano A. Desierto,” in
which he was absolved of administrative liability for gross neglect of duty
and dishonesty arising from the same incident subject of the criminal charges
against him.
Invoking the doctrines of res judicata and stare decisis, Nicolas
contends that public respondent particularly failed to abide by this Court’s
ruling in the said administrative case that he had acted in good faith in relying
upon the apparently valid and genuine documents submitted to him when he
requested for the release of the van from the LOGCOM compound.
It appears that Nicolas had, by way of a Manifestation, [27]
informed
public respondent of this Court’s Decision in the administrative case. Public
respondent merely noted it, however, together with the pleadings that were
subsequently filed after the Manifestation. [28]
On the basis of the same
Decision in the administrative case, Nicolas filed a Motion to Dismiss [29]
the
criminal cases against him but public respondent denied it.[30]
Before delving on the substantive issues, this Court must first
address the propriety of the availment of a petition for certiorari and
prohibition in assailing a denial of a demurrer to evidence. Then, too, it must
determine if the present petitions have been rendered moot and academic by
the continuation of the trial – for reception of evidence for the defense. As to
the latter issue, the Court notes that public respondent had cancelled the initial
presentation of defense evidence upon the filing of the present petitions to
afford the Court time to act on petitioners’ applications for TRO or Writ of
Preliminary Injunction.
By Order given in open court on March 27, 2007, public
respondent subsequently cancelled and reset the hearing scheduled on even
date and on March 28, 2007. [31]
It directed the initial presentation of evidence
for Arriola on June 27, 2007 if no TRO was issued by this Court.
The Court did not issue a TRO or a Writ of Preliminary Injunction
to stop public respondent from continuing the proceedings in the cases. There
Page 65 of 74
is no information if the defense has started or concluded the presentation of its
evidence.
Be that as it may, the continuation of the trial should not stand in
the way of this Court’s ruling on the present petitions. Suffice it to stress that
should the denial of petitioners’ Demurrer be found to be tainted with grave
abuse of discretion, whatever proceedings were conducted before public
respondent during the pendency of the present petitions are void.
Moreover, it bears stressing that the evidence for the prosecution is
the yardstick for determining the sufficiency of proof necessary to
convict; and that the prosecution must rely on the strength of its own
evidence rather than on the weakness of the evidence for the defense.[32]
On whether certiorari is the proper remedy in the consolidated
petitions, the general rule prevailing is that it does not lie to review an order
denying a demurrer to evidence, which is equivalent to a motion to dismiss,
filed after the prosecution has presented its evidence and rested its case.[33]
Such order, being merely interlocutory, is not appealable; neither
can it be the subject of a petition for certiorari.[34] The rule admits of
exceptions, however. Action on a demurrer or on a motion to dismiss rests on
the sound exercise of judicial discretion. [35] In Tadeo v. People,[36] this
Court declared that certiorari may be availed of when the denial of a demurrer
to evidence is tainted with “grave abuse of discretion or excess of jurisdiction,
or oppressive exercise of judicial authority.” And so it did declare in Choa v.
Choa[37] where the denial is patently erroneous.
Indeed, resort to certiorari is expressly recognized and allowed
under Rules 41 and 65 of the Rules of Court, viz:
Rule 41:
SEC. 1. Subject of appeal. – x x x
No appeal may be taken from:
xxxx
(c) An interlocutory order;
xxxx
In all the above instances where the
judgment or final order is not appealable, the
aggrieved party may file an appropriate special civil
action under Rule 65.
 Rule 65:
SEC. 1. Petition for certiorari -- When any
tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in
excess of its or his jurisdiction, or with grave abuse
of discretion amounting to lack or excess of
jurisdiction,and there is no appeal, nor any plain,
speedy, and adequate remedy in the ordinary course of
law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered
annulling or modifying the proceedings of such
tribunal, board or officer, and granting such incidental
reliefs as law and justice may require. (Emphasis
supplied)
Did public respondent commit grave abuse of discretion in
denying petitioners’ Demurrer? The Court finds that it did.
Section 15, Rule 119 of the Revised Rules of Court provides:
Sec. 15. Demurrer to evidence. – After the
prosecution has rested its case, the court may dismiss
the case on the ground of insufficiency of evidence: (1)
on its own initiative after giving the prosecution an
opportunity to be heard; or (2) on motion of the
accused with prior leave of court.
If the court denies the motion for dismissal,
the accused may adduce evidence in his defense. When
the accused files such motion without the express leave
of court, he waives the right to present evidence and
submits the case for judgment on the basis of the
evidence for the prosecution.
A demurrer to evidence is an objection by one of the parties in an
action to the effect that the evidence which his adversary produced is
insufficient in point of law to make out a case or sustain the issue.
The party filing the demurrer in effect challenges the sufficiency
of the prosecution’s evidence.[39] The Court is thus tasked to ascertain if there
is competent or sufficient evidence to establish a prima facie case to sustain
the indictment or support a verdict of guilt.[40]
Alleged Violation of the Tariff and Customs Code
With respect to petitioners’ indictment for violation of Section
3604 of the Tariff and Customs Code, the prosecution needed to prove that:
(1) at the time material to the case, petitioners were officials or employees of
the Bureau of Customs or of any other agency of the government charged
with the provisions of the Code; and (2) they either conspired or colluded
with another or others to defraud the customs revenue or otherwise violate the
law (paragraph d), or willfully made an opportunity for any person to defraud
the customs revenue or failed to do any act with intent to enable any person to
defraud the customs revenue (paragraph e).
Fraud contemplated by law must be intentional – that which is
actual and not constructive, and consists of deception willfully and
deliberately dared or resorted to in order to give up some right.[41]
Conspiracy, on the other hand, must be established by the same
quantum of evidence as the elements of the offense charged. It must be
shown by overt acts indicating not only unity of purpose but also unity in
execution of the unlawful objective by the alleged conspirators.[42]
From the testimonial and documentary evidence of the
prosecution admitted by public respondent, the Court gathers that apart from
establishing that petitioners were government officials, the prosecution was
only able to establish that: (1) the van was turned over to the LOGCOM on
April 19, 1999; (2) the same van was withdrawn from the LOGCOM
compound on May 6, 1999; (3) the signature appearing above the name of
prosecution witness, then LOGCOM commander Uy, in the Authority for the
withdrawal of the van was not his; (4) Import Entry Nos. 5000-99 to 5002-99
were not filed with the IED-MICP; and (5) Bureau of Customs O.R. Nos.
75071606, 7501609, and 75071603 are spurious.
There is no competent or sufficient evidence of particular overt
acts that would tend to show that petitioners colluded with each other or with
another person or others to defraud the customs revenue or to otherwise
violate the law, or that they willfully made it possible for John Doe to defraud
the customs revenue.
Not one of the prosecution witnesses identified, mentioned or even
[38] alluded to either of petitioners as having personally interceded or been present
during the release of the cargo from the LOGCOM compound, or testified as
Page 66 of 74
to any act or omission that may be construed to be in furtherance of the Q: Okay. Now, Mr. Witness, who
alleged conspiracy to defraud the customs revenue. were the persons to whom you divulged
this formula?
The Notice of Withdrawal (Exhibit “D”), the only document
bearing the name and signature of petitioner Nicolas, was not even admitted A: Sa akin po at saka sa Hepe ng
by respondent court. Division na nagretiro. To me and to the
Chief Division that [sic] ha[s] retired.
It may not be amiss to mention further that while Uy testified that
he did not sign the Authority to release the van, he admitted during cross- Q: Aside from the two (2) of you,
examination that the signature above his printed name appeared to be that of nobody knows the formula?
his deputy commander, Col. Romero, who was authorized to sign “for” him in
his absence.[43] A: The printing office, Sir.

Respecting the purported failure of petitioners to note the fraudulent xxxx

nature of O.R. Nos. 75071606, 7501609 and 75071603, the Court notes the
testimony of Pantaleon, then chief of the Supply Section of the GSD of the Q: Now, in performing your duties with
Bureau of Customs, which is quoted in the Petition [44]
of Nicolas, and which respect to the formula and the printing of
merited no refutation from the prosecution in its Consolidated Comment. the official receipts, do you inform other
government offices of the formula?
Thus, during cross-examination, Pantaleon stated that only the
Printing Office, his Division chief and he were privy to the formula used in A: No, Sir.
the printing of BC Forms No. 38, and that other government offices including Q: So, you did not inform the EIIB in 1999
the EIIB have not been informed of this formula. about this formula?
Q: Now, Mr. Witness you made A: Hindi po. No, Sir.
mention of [the] formula used in Q: So they wouldn’t know by just
determining the series number of official looking at the official receipt whether the
receipts. Now, could you tell us: Does this official receipt is fake or not because they
formula change every year or is it constant? do not know the formula, would that be a
fair statement?
A: Constant, sir.
A: They don’t know the series, Sir.
Q: So, the same formula in 1999 is the Q: Now my question is, you wouldn’t
same formula for this year? know whether the official receipts would
be fake?
A: Yes, Sir.
A: Hindi ko po alam kung paano nila
Q: Okay, now Mr. Witness, who i-determine. I don’t know how they will
determined this formula? determine it.[45] (Italics and emphasis
supplied)
A: I myself, Sir.

Q: You determined the formula? Clearly then, petitioners were not in a position to detect any fraud.
As to the allegations in the Informations that petitioners failed to turn
A: Yes, Sir. over the goods to the Bureau of Customs pursuant to Memorandum No. 225
and the Joint Guidelines, this Court reiterates its observations in the
administrative case against Nicolas subject of G.R. No. 154668:[46]

Page 67 of 74
 x x x. Under its standard operating procedure, [the
EIIB] normally did the inventory in the presence of
representatives of the AFP Logistics Command (which
was the depository of apprehended container vans), the
Bureau of Customs, the broker or importer, and the
Commission on Audit. If there was any irregularity,
only then would the EIIB turn over the cargo to the
Bureau of Customs.
The aforementioned procedure was
consistent with Memorandum Order No. 225, which
required the turnover of seized articles to the Bureau of
Customs. For practical considerations, the EIIB could
not be expected to forward to the Bureau of Customs
all cargoes immediately upon apprehension. The EIIB
still needed to determine whether there was any
irregularity in the importation. Memorandum Order
No. 225 itself did not require the immediate forwarding
of apprehended cargoes to the Bureau of Customs.
Believing in good faith that the taxes and duties had
already been paid, petitioner [Nicolas] cannot be
faulted for not sending the cargo to the Bureau. [47]
Alleged Violation of R.A. No. 3019
To sustain the indictment or to support a guilty verdict against
petitioners for violation of Section 3(e) of R.A. No. 3019, the prosecution
must establish all the foregoing elements of the offense:
1. The accused is a public officer or a private
person charged in conspiracy with the former;
2. That he or she causes undue injury to any
party, whether the government or a private party;
3. The public officer commits the prohibited
acts during the performance of his or her official
duties or in relation to his or her public functions;
4. Such undue injury is caused by giving
unwarranted benefits, advantage or preference to
such parties; and
Page 68 of 74
5. That the public officer has acted with
manifest partiality, evident bad faith, or gross
inexcusable negligence.[48]
The prosecution attempted to build its case for violation of R.A.
No. 3019 upon the theory that Nicolas and Arriola, as EIIB commissioner and
deputy commissioner, respectively, and in connection with their official duties
as such, were responsible for the release of the goods from the LOGCOM
compound without the actual payment of customs duties and taxes, thereby
causing injury to the government.
The prosecution proffered that the withdrawal of the van from the
LOGCOM based on what turned out to be fictitious documents and the
subsequent loss of its cargo, which they attributed to petitioners, were
motivated by manifest partiality, evident bad faith or gross inexcusable
neglect.
The evidence for the prosecution failed to sustain its case,
however. In addition to this Court’s earlier observations about the missing
links in the prosecution’s evidence, it failed to show by what particular acts
petitioners had discharged their functions with manifest partiality, evident bad
faith or gross inexcusable neglect.
Sistoza v. Desierto[49] stressed that for culpability to attach under
Section 3(e) of R.A. No. 3019, it is not enough to show mere bad faith,
partiality or negligence because the law requires the bad faith or partiality to
be evident or manifest, respectively, and the negligent deed to be gross and
inexcusable. And that the acts indicating any of these modalities of
committing the violation must be determined with certainty.[50] Thus held the
Court:
Simply alleging each or all of these methods
is not enough to establish probable cause, for it is well
settled that allegation does not amount to proof. Nor
can we deduce any or all of the modes from mere
speculation or hypothesis since good faith on the part
of the petitioner as with any other person is
presumed. The facts themselves must
demonstrate evident bad faith which connotes not
only bad judgment but also palpably and patently
fraudulent and dishonest purpose to do moral
obliquity or conscious wrongdoing for some
perverse motive or ill will.
On the other hand, gross inexcusable
negligence does not signify mere omission of duties
 nor plainly the exercise of less than the standard
degree of prudence. Rather, it refers to negligence
characterized by the want of even the slightest care,
acting or omitting to act in a situation where there is
a duty to act, not inadvertently but willfully and
intentionally, with conscious indifference
consequences insofar as other persons may be
affected. It entails the omission of care that even
inattentive and thoughtless men never fail to take on
their own property, and in cases involving public
officials it takes place only when breach of duty is
flagrant and devious. [51]
(Italics in
original; Emphasis and underscoring supplied)
In the case of Nicolas, he was exonerated of administrative
liability in G.R. No. 154668[52] by this Court. In said case, the Court noted
that while he requested the release of the cargo, he did so in good faith as he
relied on the records before him and the recommendation of Arriola. And it
noted that there was nothing to indicate that he had foreknowledge of any
irregularity about the cargo. [53]
Thus Nicolas was absolved of having acted
with gross neglect of duty, viz:
Arias v. Sandiganbayan [G.R. Nos. 81563 &
82512, December 19, 1989, 180 SCRA 309] ruled that
heads of office could rely to a reasonable extent on
their subordinates. x x x
xxxx
Without proof that the head of office was
negligent, no administrative liability
attach. Indeed, the negligence of subordinates cannot
always be ascribed to their superior in the absence of
evidence of the latter’s own negligence. While Arriola
might have been negligent in accepting the spurious
documents, such fact does not automatically imply that
Nicolas was also. As a matter of course, the latter relied
on the former’s recommendation. Petitioner [Nicolas]
is not mandated or even expected to verify personally
from the Bureau of Customs — or from wherever else
it originated — each receipt or document that appears
on its face to have been regularly issued or executed.
[54]
This Court is not unmindful of its rulings that the dismissal of an
administrative case does not bar the filing of a criminal prosecution for the
same or similar acts subject of the administrative complaint and that the
disposition in one case does not inevitably govern the resolution of the other
case/s and vice versa.[55] The applicability of these rulings, however, must be
to distinguished in the present cases.
In Ocampo v. Office of the Ombudsman [56] and the other
cases[57] cited by the prosecution in its Consolidated Comment, [58] it was the
dismissal of the criminal cases that was pleaded to abate the administrative
cases filed against the therein petitioners.
the
More importantly, the quantum of proof required to sustain
administrative charges is significantly lower than that necessary for criminal
actions. To this effect was the ruling in Ocampo:
The dismissal of the criminal case will not
foreclose administrative action filed against petitioner
or give him a clean bill of health in all respects. The
Regional Trial Court, in dismissing the criminal
complaint, was simply saying that the prosecution was
unable to prove the guilt of petitioner beyond
reasonable doubt, a condition sine qua non for
conviction. The lack or absence of proof beyond
reasonable doubt does not mean an absence of any
evidence whatsoever for there is another class of
evidence which, though insufficient to establish guilt
beyond reasonable doubt, is adequate in civil cases;
this is preponderance of evidence. Then, too, there
is the “substantial evidence” rule in administrative
proceedings which merely requires such relevant
may evidence as a reasonable mind might accept as
adequate to support a conclusion. Thus, considering
the difference in the quantum of evidence, as well as
the procedure followed and the sanctions imposed in
criminal and administrative proceedings, the findings
and conclusion in one should not necessarily be
binding on the other.[59] (Emphasis supplied)
Where, as in this case, the administrative complaint was dismissed
for failing to satisfy the degree of proof which is merely substantial
evidence, a fortiori the criminal case based on the same facts and evidence
cannot but falter and fall against the highest quantum of proof – proof beyond
reasonable doubt.
Page 69 of 74
 The present cases must be distinguished likewise from those property be released, and if it is
involving the prior dismissal of administrative cases. Unlike in the cases
[60]
approved by our boss, it
cited by the prosecution, this Court’s Decision in the administrative case
against Nicolas ruled squarely that the he was not guilty of bad faith and gross will be released, sir.

neglect of duty, which constitute an essential element of the crime under

Section 3(e) of R.A. No. 3019. Under the doctrine of stare decisis, such
ruling should be applied to the criminal case for violation of Section 3(e),
ATTY. SABADO
R.A. No. 3019, the facts and evidence being substantially the same.[61]

Q : So, you only

In fine, absent the element of evident bad faith and gross neglect
knew that there was a request
of duty, not to mention want of proof of manifest partiality on the part of
and that Captain Uy and Major
Nicolas, the graft case against him cannot prosper.
Rasay allowed this request?

Like in the case of Nicolas, no act or conduct on the part of Arriola

was established that would tend to show that he had acted in evident bad faith,
manifest partiality or gross inexcusable negligence in the performance of his
WITNESS
functions, as then deputy commissioner of the EIIB and head of the Special
Operations Group, relative to the release of the van.
A : Yes, sir.[63]

Turning once more to the evidence in the present criminal cases,

no documentary or testimonial evidence linking Arriola to the withdrawal of
the van, much more, the loss of the goods it contained, is appreciated.
To stress, not one of the documents admitted for the prosecution
contained Arriola’s name, initials or signature. Neither did any of the
prosecution witnesses, not even Acorda who was present during the deposit
and withdrawal of the van from the LOGCOM compound, mention or refer to
Arriola in any manner or testify on his probable complicity or involvement in
the crimes charged. For that matter, nothing in the entire testimony of
Acorda[62] supports the submission that it was upon Arriola’s request that the
van was withdrawn from the LOGCOM.
ATTY. SABADO [On cross-examination]
Even granting arguendo Arriola made a recommendation for the
withdrawal of the van as the prosecution suggested, this alone does not prove
that he acted in bad faith. The presumption of law being in favor of good
faith, it was incumbent upon the prosecution to prove bad faith.
Even on the purported spurious receipts that prosecution witness
Pantaleon testified on, there is no showing that Arriola was instrumental or
participated in their preparation or that he knew of their fraudulent nature.
It bears emphasis that references to petitioner Arriola in the
Decision on the administrative case against Nicolas were made only for the
purpose of determining the culpability of the latter. These statements,
therefore, are in no way binding on Arriola.

Q : Do you know the reason

Given that the evidence presented by the prosecution against petitioners
why Major Rasay and Captain Uy
does not prima facie prove petitioners’ culpability beyond reasonable doubt,
the burden of evidence did not shift to the defense. The Court thus finds that
allowed the shipment or the van
public respondent gravely abused its discretion in denying their Demurrer to
to be taken out of the Logcom?
Evidence.

WITNESS
WHEREFORE, the consolidated Petitions for certiorari and
prohibition are GRANTED. The Sandiganbayan’s assailed Resolutions
A : For us, sir, when there is a request from
dated August 31, 2006 and December 7, 2006 are ANNULLED and SET
the EIIB that the
ASIDE for having been issued with grave abuse of discretion. The separate

Page 70 of 74
Demurrer to Evidence of petitioners are accordingly GRANTED and the
cases against them DISMISSED. Before the Court is a petition for review on certiorari, assailing the Court of
Appeals (CA) Decision of August 4, 2008 [1] and Resolution of October 28,
SO ORDERED. 2008[2] in CA-G.R. SP 100431 that affirmed the August 31, 2006 Order [3] of
the Regional Trial Court (RTC) of Quezon City.

The facts are not disputed.

On June 23, 2000 the public prosecutor accused petitioner Antonio Cabador
before the RTC of Quezon City in Criminal Case Q-00-93291 of murdering,
in conspiracy with others, Atty. Jun N. Valerio. [4] On February 13, 2006, after
presenting only five witnesses over five years of intermittent trial, the RTC
declared at an end the prosecutions presentation of evidence and required the
prosecution to make a written or formal offer of its documentary evidence
within 15 days from notice.[5] But the public prosecutor asked for three
ANTONIO CABADOR, G.R. No. 186001 extensions of time, the last of which was to end on July 28, 2006. Still, the
prosecution did not make the required written offer.
Petitioner,

On August 1, 2006 petitioner Cabador filed a motion to dismiss the case,

Present: [6]
complaining of a turtle-paced proceeding in the case since his arrest and
detention in 2001 and invoking his right to a speedy trial. Further, he claimed
Ynares-Santiago, J.,*
that in the circumstances, the trial court could not consider any evidence
against him that had not been formally offered. He also pointed out that the
- versus - Carpio Morales,**
prosecution witnesses did not have knowledge of his alleged part in the crime
A
charged.
cting
Chairpers
Unknown to petitioner Cabador, however, four days earlier or on July 28,
on,
2006 the prosecution asked the RTC for another extension of the period for its
B
formal offer, which offer it eventually made on August 1, 2006, the day
rion,
Cabador filed his motion to dismiss.[7]
D
el Castillo,
On August 31, 2006 the RTC issued an Order treating petitioner Cabadors
and
August 1, 2006 motion to dismiss as a demurrer to evidence. And, since he
A
filed his motion without leave of court, the RTC declared him to have waived
bad, JJ.
his right to present evidence in his defense. The trial court deemed the case
PEOPLE OF THE PHILIPPINES,
submitted for decision insofar as he was concerned. Cabador filed a motion
Respondent. Promulgated:
for reconsideration of this Order but the RTC denied it on February 19, 2007.
[8]
Cabador questioned the RTCs actions before the CA but on August 4, 2008
October 2, 2009
the latter denied his petition and affirmed the lower courts actions.
x ---------------------------------------------------------------------------------------- x [9]
With the CAsdenial of his motion for reconsideration, on October 28, 2008
petitioner came to this Court via a petition for review on certiorari.

DECISION
The issue in this case is whether or not petitioner Cabadors motion to dismiss
before the trial court was in fact a demurrer to evidence filed without leave of
court, with the result that he effectively waived his right to present evidence
ABAD, J.:
in his defense and submitted the case for decision insofar as he was
concerned.
Page 71 of 74
The trial proper in a criminal case usually has two stages: first, the
prosecutions presentation of evidence against the accused and, second, the
accuseds presentation of evidence in his defense. If, after the prosecution has
presented its evidence, the same appears insufficient to support a conviction,
the trial court may at its own initiative or on motion of the accused dispense
with the second stage and dismiss the criminal action. [10]
There is no point for
the trial court to hear the evidence of the accused in such a case since the
prosecution bears the burden of proving his guilt beyond reasonable
doubt. The order of dismissal amounts to an acquittal.
5. On February 10, 2006, the Honorable
Court terminated the presentation of evidence for the
prosecution considering that the case has been going on
for 5 years already and during that period the
prosecution has only presented 5 witnesses. Moreover,
xxx there had been numerous postponements due to
failure of the prosecution to ensure the presence of its
witnesses.

But because some have in the past used the demurrer in order to delay the
proceedings in the case, the remedy now carries a caveat. When the accused 6. In an order dated March 31, 2006, the

files a demurrer without leave of court, he shall be deemed to have waived the Honorable court required the public prosecutor to

right to present evidence and the case shall be considered submitted for submit its formal offer of evidence within fifteen (15)

judgment.[11] On occasions, this presents a problem such as when, like the days from receipt of such order.

situation in this case, the accused files a motion to dismiss that, to the RTC,
had the appearance of a demurrer to evidence. Cabador insists that it is not
one but the CA, like the lower court, ruled that it is.
7. On April 17, 2006, the public prosecutor
was again absent so the presentation of evidence for the
This Court held in Enojas, Jr. v. Commission on Elections[12] that, to determine
accused was reset to June 6, 2006.
whether the pleading filed is a demurer to evidence or a motion to dismiss, the
Court must consider (1) the allegations in it made in good faith; (2) the stage
of the proceeding at which it is filed; and (3) the primary objective of the
party filing it.
8. During the same hearing, the Prosecution
Here, the pertinent portions of petitioner Cabadors motion to dismiss read as
was again granted an additional fifteen (15) days within
follows:
which to file their formal offer of evidence.

2. On November 9, 2001, the accused was

9. On June 6, 2006, the public prosecutor
arrested and subsequently brought to the Quezon
again failed to appear and to file their formal offer of
City jail through a commitment order dated November
evidence. In an order, the Honorable Court again
21, 2001 where he had been detained during the course
extended to the prosecution an additional fifteen (15)
of this case.
days from receipt of the order within which to file their
formal offer of evidence.

3. The accused was arraigned on January 8,

2002 and trial began soon after.
10. On June 28, 2006, the Honorable Court
issued an order granting the prosecution a thirty-day
extension, or until July 28, 2006 within which to file
their formal offer of evidence since the public
4. UP-OLA entered its appearance as counsel for the
prosecutor was on leave.
accused on January 20, 2005.

Page 72 of 74
 11. Upon the expiration of the extension
granted by the Honorable Court, the prosecution failed
to file their formal offer of evidence.
10. (Sic) Despite three (3) extensions, the
prosecution failed to file formal offer of evidence.
11. (Sic) Sec. 34, Rule 132 of the Rules of
Court provides that the court shall consider no evidence
which has not been formally offered. A formal offer is
necessary, since judges are required to base their
findings of fact and their judgment solely and strictly
upon the evidence offered by the parties at the trial
(Ong vs. CA, GR No. 117103). Hence, without any
formal offer of evidence, this Honorable Court has no
evidence to consider.
12. The charge against the accused has no
leg to stand on. The witnesses that had been presented
by the prosecution testified mainly on the occurrences
on the night of the incident and had no knowledge of
any connection with or any participation by the accused
in the incident.
13. The hearings of the case have been
delayed since 2001 through no fault of the defense to
the prejudice of the rights of the accused to a speedy
trial, mandated by no less than Art. III, Sec. 16 of the
Constitution.
14. Since UP-OLA had entered its
appearance in 2005, the case had been reset for twelve
(12) times, most of which are due to the fault or
absence of the prosecution. For the five year duration
of the case, the prosecution still has not presented any
evidence to prove the guilt of the accused beyond
reasonable doubt. Meanwhile, the accused has been
Page 73 of 74
unduly stripped of this liberty for more than five (5)
years upon an unsubstantiated charge.
15. The accused was injured and debilitated
in the course of his arrest which resulted in the
amputation of his left leg. His movement is severely
hampered and his living conditions are less
adequate. To subject him to further delays when there is
no substance to the charge against him would
tantamount to injustice.[13]
It can be seen from the above that petitioner Cabador took pains to point out
in paragraphs 2, 3, 5, 6, 7, 8, 9, 10, 11, 10 (sic), 13, 14, and 15 above how trial
in the case had painfully dragged on for years. The gaps between proceedings
were long, with hearings often postponed because of the prosecutors
absence. This was further compounded, Cabador said, by the prosecutions
repeated motions for extension of time to file its formal offer and its failure to
file it within such time. Cabador then invoked in paragraph 13 above his right
to speedy trial. But the RTC and the CA simply chose to ignore these
extensive averments and altogether treated Cabadors motion as a demurrer to
evidence because of a few observations he made in paragraphs 11 (sic) and 12
regarding the inadequacy of the evidence against him.
In criminal cases, a motion to dismiss may be filed on the ground of denial of
the accuseds right to speedy trial.[14] This denial is characterized by
unreasonable, vexatious, and oppressive delays without fault of the accused,
or by unjustified postponements that unreasonably prolonged the trial. [15] This
was the main thrust of Cabadors motion to dismiss and he had the right to
bring this up for a ruling by the trial court.
Cabador of course dropped a few lines in his motion to dismiss in paragraphs
11 (sic) and 12, saying that the trial court has no evidence to consider, the
charge has no leg to stand on, and that the witnesses x x x had no knowledge
of any connection with or any participation by the accused in the incident. But
these were mere conclusions, highlighting what five years of trial had
accomplished.
The fact is that Cabador did not even bother to do what is so fundamental in
any demurrer. He did not state what evidence the prosecution had presented
against him to show in what respects such evidence failed to meet the
elements of the crime charged. His so-called demurrer did not touch on any
particular testimony of even one witness. He cited no documentary
exhibit. Indeed, he could not because, he did not know that the prosecution
finally made its formal offer of exhibits on the same date he filed his motion
to dismiss.[16] To say that Cabador filed a demurrer to evidence is equivalent
to the proverbial blind man, touching the side of an elephant, and exclaiming
that he had touched a wall.

Besides, a demurrer to evidence assumes that the prosecution has already

rested its case. Section 23, Rule 119 of the Revised Rules of Criminal
Procedure, reads:

Demurrer to evidence. After the

prosecution rests its case, the court may dismiss the
action on the ground of insufficiency of evidence (1) on
its own initiative after giving the prosecution the
opportunity to be heard or (2) upon demurrer to the
evidence filed by the accused with or without leave of
court. (Emphasis supplied)

Here, after the prosecution filed its formal offer of exhibits on August 1,
2006, the same day Cabador filed his motion to dismiss, the trial court still
needed to give him an opportunity to object to the admission of those
exhibits. It also needed to rule on the formal offer. And only after such a
ruling could the prosecution be deemed to have rested its case. Since Cabador
filed his motion to dismiss before he could object to the prosecutions formal
offer, before the trial court could act on the offer, and before the prosecution
could rest its case, it could not be said that he had intended his motion to
dismiss to serve as a demurrer to evidence.
In sum, tested against the criteria laid down in Enojas, the Court
finds that petitioner Cabador filed a motion to dismiss on the ground of
violation of his right to speedy trial, not a demurrer to evidence. He cannot be
declared to have waived his right to present evidence in his defense.

On a final note, a demurrer to evidence shortens the proceedings in

criminal cases. Caution must, however, be exercised[17] in view of its
pernicious consequence on the right of the accused to present evidence in his
defense, the seriousness of the crime charged, and the gravity of the penalty
involved.

WHEREFORE, the petition is GRANTED, the August 4, 2008 Decision and

the October 28, 2008 Resolution of the Court of Appeals in CA-G.R. SP
100431 are REVERSED and SET ASIDE, and the August 31, 2006 Order of
the Regional Trial Court of Quezon City, Branch 81 is NULLIFIED. The
latter court is DIRECTED to resolve petitioner Antonio Cabadors motion to
dismiss based on the circumstances surrounding the trial in the case.

SO ORDERED.

Page 74 of 74