Art.
210 – Direct Bribery
(1) G.R. No. L-56013 October 3, 1987
LIWANAG AGUIRRE, petitioner, vs. PEOPLE OF THE PHILIPPINES and
THE HONORABLE SANDIGANBAYAN (FIRST DIVISION), respondents.
CORTES, J:
Petitioner Liwanag Aguirre seeks a review of a Sandiganbayan decision
finding him guilty of the crime of direct bribery which is punishable under
Article 210 of the Revised Penal Code. The Information filed against him
reads:
THAT on or about November 24, 1978, in the City of Davao, Philippines,
and within the jurisdiction of this Honorable Court, the above-named
accused, being then an Acting Deputy Sheriff of the National Labor
Relations Commission (NLRC), did then and there wilfully, unlawfully and
feloniously demand and obtain from one Hermogenes Hanginon, an
employee of the business firm Guardsman Security Agency, the sum of
FIFTY (P50.00) PESOS, Philippine Currency, as a consideration for the said
accused refraining, as he did refrain, from immediately implementing a
Writ of Execution of a final judgment of the National Labor Relations
Commission (NLRC) Regional Branch XI against said security agency in
NLRC Case No. 905-MC-XI-78 that the accused, in the performance of his
office as such Deputy Sheriff, should have immediately implemented the
said writ of execution by then and there immediately seizing personal
property of the judgment-debtor Guardsman Security Agency, to satisfy
the judgment. (Rollo, pp. 33-34)
After petitioner had pleaded not guilty to the charge, the case proceeded
to trial. Thereafter, on the basis of the aforequoted Information and the
evidence adduced during the trial the Sandiganbayan convicted the
petitioner as principal of the crime charged. The lower court appreciated
the presence of the mitigating circumstance of voluntary surrender,
without any aggravating circumstance, in favor of the petitioner and
sentenced him to:
. . .Two (2) Months and One (1) Day of Arresto mayor; with the
accessories provided by law: to suffer special temporary disqualification
for Six (6) Years and One (1) Day; to pay a fine of Fifty Pesos (P50.00), with
subsidiary imprisonment in case of insolvency in accordance with Article
39 of the Revised Penal Code, as amended by Republic Act No. 5465; to
indemnify Hermogenes Hanginon in the same amount of Fifty Pesos
(P50.00); and, to pay the costs. (Rollo, p. 50)
Petitioner in this case assails the judgment of conviction upon the ground That the prosecution evidence consists of the testimony of a single
that the evidence presented failed to prove his guilt of the crime charged
beyond reasonable doubt. The main thrust of the Petition is that the
Sandiganbayan erred in giving weight to the uncorroborated testimony
of the lone prosecution witness.
In certiorari proceedings under Rule 45, the findings of fact of the lower
court as well as its conclusions on credibility of witnesses are generally
not disturbed, the question before the Court being limited to questions
of law (Rule 45, Sec. 2). Specifically, the conclusions of the trial court on
the credibility of witnesses are given considerable weight, since said court
is in the best position to observe the demeanor, conduct and attitude of
the witnesses at the trial [People v. Refuerzo, 82 Phil. 576 (1949); People
v. Gumahin 128 Phil. 728 (1967), 21 SCRA 729; People v. Mercado, L-
39511, April 28, 1980, 97 SCRA 2321]. However, this court may choose to
pass upon the credibility of a witness if it appears from the decision under
review that the trial court has plainly overlooked certain facts of
substance and value that, if considered, might affect the result of the case
[People v. Alban, L-15203, March 29, 1961, 1 SCRA 931; People v. Espejo,
L-27708, December 19, 1970, 36 SCRA 400, People v. Garcia, L-44364,
April 27, 1979; People vs. Mercado, supra People v. Dagangon, G.R. No.
62654-58, November 13,1986,145 SCRA 464].
In the instant case, the conviction is anchored upon the uncorroborated
testimony of a single prosecution witness. The Sandiganbayan justifies its
reliance upon said testimony, thus:
. . . (E)ven as witness Hanginon's version stands sans corroboration, the
same is sufficiently impeccable and carries the ring of truth. He could not
have been mistaken as to the time and circumstances of the visit of the
accused to the office of the Agency and nothing in his demeanor and
reactions during his sojourn on the witness stand tends to suggest that
the story he threshed exit in open Court was a fabrication . . . The
forthright and spontaneous manner with which the version of the
prosecution witness, as advanced by Hanginon, was diclosed and
recorded speaks well of the veracity thereof. More importantly, no
sufficient and compelling motive had been pointed to which could have
impelled witness Hanginon to deliberately perjure himself and
consciously impute the commission of a nefarious offense to an innocent
man and thus railroad him to a stretch in jail . . . (Rollo, pp. 40-41).
The constitutional presumption of innocence imposes upon this Court the
duty to ascertain in every case that no person is made to answer for a
crime without proof of his guilt beyond reasonable doubt [Constitution,
Article III, Sec. 14 (2)]. To overcome this constitutional presumption and
to justify a criminal conviction, there must exist in the record, "that
degree of proof which produces conviction in an unprejudiced mind"
[Rule 133, Sec. 2; Rule 131, Sec. 2].
witness does not necessarily indicate insufficiency of evidence to convict.
It is settled that the testimony of only one witness may be sufficient to
support a conviction if it convinces the court beyond reasonable doubt
that the accused committed the crime charged [U.S. v. Dacotan 1 Phil.
669 (1903); U.S. v. Olais, 36 Phil. 828 (1917); People v. Argana 119 Phil.
573 (1964), 10 SCRA 311; People v. Salazar, G.R. No. L-32858, Aug. 19,
1974, 58 SCRA 467; People v. Tan, Jr., G.R. No. 53834, November 24,
1986, 145 SCRA 614].
However, there are aspects of the testimony of the sole witness in this
case that do not inspire belief. It appears unnatural for the petitioner to
have demanded a bribe from him, a mere employee of the security
agency, without authority to accept any writ or legal paper and without
money. It is also doubtful if said employee could have voluntarily parted
with his personal funds without any expectation of refund. Furthermore,
no entrapment was employed in this situation where it could have been
quite easy to catch the petitioner red-handed with the bribe money. As
testified to by Hanginon, petitioner allegedly told him that the balance of
the P200 Pesos bribe money was to be delivered at the Davao Famous
Restaurant upon the arrival of the owner of the agency (Rollo, pp. 206-
207). If, according to this witness the owner had decided to press charges
and had gone to his legal counsel the day after his (the owner's) arrival
(Rollo, p. 207), why was the police not called in to entrap the petitioner
at the place indicated by him? That would have been a more logical and
usual procedure in preparing for the prosecution of a bribery case which
almost always suffers from a dearth of witnesses.
The petitioner, in his defense, asserts that there is serious dispute as to
the fact of the commission of the offense; that the uncorroborated
testimony of Hermogenes Hanginon fails to prove its commission and the
petitioner's guilt beyond reasonable doubt; and that notice of
garnishment had been served upon the bank for satisfaction of the
NLRC's judgment against the Guardsman Security Agency before the
alleged bribery took place
After careful examination of the decision under review, the pleadings
filed and the evidence relied on, the nagging doubt remains as to whether
the testimony of Hanginon, the sole witness for the prosecution, proves
the petitioner's guilt. As aptly observed in People v. Opida, "The scales of
justice must hang equal and, in fact should be tipped in favor of the
accused because of the constitutional presumption of innocence." [G. R.
No. L-46272, June 13, 1986, 142 SCRA 295, 303].
This Court finds that in the absence of evidence establishing the guilt of
1
the petitioner beyond reasonable doubt, the judgment of conviction
Page
under review must yield to the constitutional presumption of innocence.
WHEREFORE, the judgment of conviction of the respondent
Sandiganbayan (First Division) is REVERSED. Liwanag Aguirre is
ACQUITTED of the crime charged.
SO ORDERED.
(2) G.R. No. 156685 July 27, 2004
NAZARIO N. MARIFOSQUE, petitioner, vs.
PEOPLE OF THE PHILIPPINES, respondent.
YNARES-SANTIAGO, J.:
This is a petition for review on certiorari under Rule 45 of the 1997 Rules
of Civil Procedure which assails the decision dated September 23, 2002
and the Resolution dated January 3, 2003 of the Sandiganbayan in
Criminal Case No. 17030 finding petitioner Nazario Marifosque guilty
beyond reasonable doubt of the crime of direct bribery, defined and
penalized under the second paragraph of Article 210 of the Revised Penal
Code, as amended.
Petitioner was charged with direct bribery in an Information which reads:
That on or about October 13, 1990 in Legazpi City, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused a
public officer being a qualified member of the Police Force of Legazpi City,
now under the Philippine National Police, taking advantage of his
official/public position and committing the crime herein charged in
relation to his office, did then and there willfully, unlawfully, and
feloniously demand, obtain and/or receive directly from Yu Su Pong1 and
Hian Hian Sy2 the total amount of FIVE THOUSAND EIGHT HUNDRED
PESOS (P5,800.00) Philippine Currency in consideration for his recovery
from alleged robbers, eighteen Shellane gas filled cylinder/s tanks, to the
damage and prejudice of the aforementioned victims in the aforesaid
amount.
CONTRARY TO LAW.3
The antecedent facts as culled from the records are as follows:
On October 13, 1990 at around 5:00 in the afternoon, Hian Hian Yu Sy
and her husband, Arsenio Sy, went to the office of Captain Alberto Salvo,
Chief of the Intelligence and Operating Division stationed at the Criminal
Investigation Service (CIS) in Region 5, to report the robbery of Shellane
tanks at the gasoline station of her father, Yu So Pong, and the alleged
extortion attempt by petitioner, Police Sergeant Narciso Marifosque, in
exchange for the recovery of the lost items. Captain Salvo and his men
set up a plan to entrap the petitioner. Hian Hian Yu Sy prepared the pay-
off money in the amount of P4,800.00 and listed down the serial numbers
of the bills. The pay-off was scheduled at 7:00 in the evening of that day
in Golden Grace Department Store which was owned by Yu So Pong. At
around 6:15 p.m., Captain Calvo and his men arrived at the target area
and strategically positioned themselves outside the Golden Grace
Department Store to await the arrival of the suspect. Shortly thereafter,
petitioner Marifosque arrived on board a tricycle. He went inside the
store and demanded the money from Hian Hian Yu Sy and Yu So Pong.
The latter handed to him the marked money, which was wrapped in a
newspaper. When petitioner stepped out of the store, Arsenio Sy gave
the pre-arranged signal, whereupon the arresting operatives swooped
down upon the suspect and arrested him.
Hian Hian Yu Sy testified that petitioner demanded the amount of
P7,200.00 but she bargained for P4,800.00 only because that was all she
had at the time. She proposed that petitioner return the following
morning to pick up the balance.
By way of defense, petitioner Marifosque testified that in the morning of
October 13, 1990, a police asset came to his house and reported that he
witnessed a robbery at the gasoline station of Yu So Pong. Petitioner went
to the gasoline station of Yu So Pong and relayed to him the information.
Thereafter, petitioner and Yu So Pong proceeded to the police station to
report the robbery to the desk officer, PFC Jesus Fernandez, who then
dispatched petitioner and a certain Pat. Garcia to conduct an
investigation. As they were leaving the police station, the asset
approached petitioner asking if he could get P350.00 per cylinder tank as
his reward. Petitioner relayed the message to Yu So Pong, who said he
was amenable "if that [was] the only way to recover the cylinders and to
apprehend the robbers."4 Based on information furnished by the asset,
the police investigators proceeded to the house of Edgardo Arnaldo in
San Roque Legazpi City, where they found the stolen gas tanks. The group
loaded the gas tanks into the vehicle. Meanwhile, Arnaldo arrived.
Petitioner did not arrest him at that time because he promised to lead
them to the other stolen cylinder tanks.5 The group returned to the police
station where petitioner made a written report of the recovery of the gas
tanks.
Elmer Arnaldo testified that he worked as an asset of the Legazpi City
police force and occasionally received rewards from the police for any
information of the criminal activities. On October 13, 1990 at around 4:00
in the morning, he went out to buy bread and saw three individuals
stealing gas cylinder tanks in the nearby gasoline station. He later visited
petitioner and reported to him the robbery. He went back to his house to
feed the chickens. Sometime thereafter, he dropped by the police station
to discuss with petitioner the reward of P350.00 per cylinder tank
recovered. Petitioner gave him 1,000.00 and told him to return at 6:00
p.m. for the remainder. At 7:00 p.m., he and petitioner went to the store
of Yu So Pong to collect the balance of the reward money. Petitioner went
inside the store and Arnaldo, who was left outside, saw a woman giving
him a folded newspaper. Suddenly, armed men apprehended the
petitioner, so he ran away.
On September 23, 2002, the Sandiganbayan rendered a decision
convicting petitioner of direct bribery, the dispositive portion of which
reads:6
WHEREFORE, in view of the foregoing and considering that the agreed
act, which did not constitute a crime, was executed, judgment is hereby
rendered finding the accused NAZARIO MARIFOSQUE Y NUÑEZ GUILTY
beyond reasonable doubt of the crime of Direct Bribery, defined and
penalized under the second paragraph of Art. 210 of the Revised Penal
Code as amended. The accused is sentenced to an indeterminate penalty
of imprisonment of 3 years 6 months and 5 days of Prision
Correccional medium and maximum periods as the Minimum and 7 years,
8 months and 9 days of Prision Mayor minimum and medium periods as
the Maximum considering that there is no mitigating nor aggravating
circumstance and a fine in the amount of THREE THOUSAND PESOS
(P3,000.00). The accused shall also suffer the penalty of special
temporary disqualification.
SO ORDERED.7
His motion for reconsideration having been denied, petitioner interposes
the present appeal raising the following issues:
i. THE ACT OF PETITIONER – RECEIPT OF THE SUMS OF MONEY FOR
DELIVERY TO HIS ASSET – DOES NOT CONSITUTE AN OFFENSE DEFINED
AND PENALIZED UNDER SECOND PARAGRAPH OF ARTICLE 210 OF THE
REVISED PENAL CODE, AS AMENDED.
II. THE HONORABLE SANDIGANBAYAN COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF JURISDICTION IN FINDING THE
PETITIONER GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF
DIRECT BRIBERY. 8
In the first assigned error, petitioner contends that the testimonies of the
prosecution witnesses do not demonstrate with certainty that the receipt
of the alleged "bribe money" constitutes the act punishable by the
offense as defined by the Revised Penal Code. He draws attention to the
following findings of fact by the appellate court, namely: (1) that he was
2
not the one who asked for reward from private complainant Yu So Pong
Page
but the asset; and (2) that Hian Hian Yu Sy had no direct knowledge of
the alleged transaction, i.e., the demand for money in consideration of
the return/recovery of twenty-one Shellane gas tanks, between private
complainant Yu So Pong and the accused.
In the second assigned error, petitioner argues that the prosecution
failed to establish his guilt beyond reasonable doubt because there was
no competent evidence to prove that the amount was really intended for
him and not for his asset. He anchors his defense on the fact that: (1) he
merely relayed to Yu So Pong the asset’s request for a reward money; and
(2) Yu So Pong was agreeable to the request. He further contends that
the act of receiving money for the asset is not one of those punishable
under the law as direct bribery.
Petitioner cannot feign innocence and profess good faith since all the
indicia point to his guilt and malicious intent.
First, petitioner did not introduce his asset or mention his name to Yu So
Pong or his daughter at the time of the illegal transaction. His claim that
he previously gave P1,000.00 to his asset, which purportedly represented
a partial payment of the reward money, was not corroborated by his
asset. When he was arrested and interrogated at Camp Ibalon, he made
no attempt to present his asset to explain and justify his receipt of the
reward money. Instead, he accepted his arrest and investigation with an
air of resignation, which is characteristic of a culprit who is caught red-
handed. Captain Calvo, one of the arresting CIS officers, testified that
petitioner attempted to give back the money to Yu So Pong when they
were about to arrest him.9 This was a clear showing that he was well
aware of the illegality of his transaction. Had he been engaged in a
legitimate deal, he would have faced courageously the arresting officers
and indignantly protested the violation of his person, which is the normal
reaction of an innocent man. Instead, he meekly submitted to the
indignity of arrest and went along the eventual investigation with the
docility of a man at a loss for a satisfactory explanation.
Second, petitioner’s solicitous and overly eager conduct in pursuing the
robbery incident betrays an intention not altogether altruistic. On the
contrary, it denotes a corrupt desire on his part to obtain pecuniary
benefits from an illegal transaction. At the time petitioner was notified
by his asset of the robbery incident, he was no longer on duty, having
been assigned to the night shift the day before. He was too overzealous
to meet with Yu So Pong although the case was already assigned to
another police investigator. His justification that he wanted to encourage
the victim to pursue the case against the robbers rings hollow and untrue.
It is clearly an afterthought. As shown in the testimony of prosecution
witness Hian Hian Yu Sy, petitioner met with Yu So Pong for no apparent
reason than to demand money. There was no mention of any attempt by
him to investigate, much less encourage the victims to file charges against
the malefactors. More telling is petitioner’s persistence in obtaining the
monetary reward for the asset although the latter was no longer
complaining about the P1,000.00 he supposedly received earlier, thus:
Pros. Agcaoili:
Since the asset was not complaining at the time, you should not
have gone back anymore to Yu So Pong?
Accused Marifosque:
Why would I not go back? My purpose was to encourage him
to pursue the matter. If he would not pursue this matter, then
we would be the laughing stock of the thieves we arrested and
then we cannot charge them.
Q. So Mr. Witness, you went to Yu So Pong after you received the
P1,000.00 without any intention to receive additional amount for the
asset, am I right?
A: No, ma’am. That was not the purpose. In fact, Yu So Pong had told me
earlier to see him again in order to prepare for the cash and to see if an
additional amount would be needed for my asset.10
While petitioner supposedly supports the "reward system," yet he denied
that he previously gave incentives to the assets for the recovery of stolen
items, to wit:
PJ:
Sometimes you would ask for reward for your assets?
A: I myself voluntarily give them a reward.
Q: That is not the question. The question is, in the past when you would
recover stolen articles, would you ask the owner of the articles to give
some incentive or tip to your assets?
A: That has not happened, your Honor.
PJ:
Next question.
Pros. Agcaoili:
And, in fact, Mr. Witness, you did not give any incentive to your
asset on that incident that happened in the house of Yu So Pong
which is the subject matter of this case?
A. For that particular case alone, Mr. Yu so Pong gave me something and
I gave it to my asset.
xxx xxx xxx
Pros. Agcaoili
In fact, Mr. Witness, you said that these tips were just given as
an incentive?
A I would be the one to give the incentives to my asset. But in that
particular instance, the P1,000.00 which Mr. Yu So Pong gave me, I turned
it over to my own asset.
Q To your own assessment, Mr. Witness, is P1,000.00 not enough to serve
as an incentive to your asset?
A I do not know whether P1,000.00 is enough or not. The fact, is, that was
the amount I got from Yu So Pong which I gave to my asset.
PJ:
Was the asset complaining that was not enough?
A. No, Your Honor.11
Third, the conduct of the petitioner during the recovery of the stolen
articles leaves much to be desired. He did not apprehend Edgardo
Arnaldo or invite him for investigation although the cylinder tanks were
found in his possession. His flimsy excuse that the latter promised to
deliver additional cylinder tanks is unworthy of credence considering
that, as a police officer with years of experience, he should have known
that the proper action, under the circumstances, was to at least invite
him to the police precinct for investigation. Curiously, the prime suspect
Edgardo Arnaldo turned out to be the brother of petitioner’s police asset
who, we recall, directed the police officers to the location of the stashed
articles. This strange coincidence may well indicate a conspiracy between
the petitioner and the thieves to steal from the victim and later cash in
on the recovery of the lost items.
In the final analysis, this case boils down to an issue of credibility. In this
regard, the prosecution witnesses gave clear and straightforward
testimonies. The Sandiganbayan did not err in giving full weight and
credence to their version of the events. Petitioner’s conviction must be
affirmed.
The crime of direct bribery as defined in Article 210 of the Revised Penal
Code consists of the following elements: (1) that the accused is a public
officer; (2) that he received directly or through another some gift or
present, offer or promise; (3) that such gift, present or promise has been
given in consideration of his commission of some crime, or any act not
constituting a crime, or to refrain from doing something which it is his
official duty to do; and (4) that the crime or act relates to the exercise of
his functions as a public officer.
There is no question that petitioner was a public officer within the
contemplation of Article 203 of the Revised Penal Code, which includes
all persons "who, by direct provision of law, popular election or
appointment by competent authority, shall take part in the performance
of public functions in the Philippine Government, or shall perform in said
government or any of its branches, public duties as an employee, agent
or subordinate official or any rank or class." At the time of the incident,
petitioner was a police sergeant assigned to the Legazpi City Police
Station. He directly received the bribe money from Yu So Pong and his
daughter Hian Hian Yu Sy in exchange for the recovery of the stolen
cylinder tanks, which was an act not constituting a crime within the
meaning of Article 210 of the Revised Penal Code. The act of receiving
money was connected with his duty as a police officer.
3
The instant case falls within the second paragraph of Article 210 of the
Page
Revised Penal Code, which is quoted hereunder:
Art. 210. Direct Bribery. — Any public officer who shall agree to perform
an act constituting a crime, in connection with the performance of his
official duties, in consideration of any offer, promise, gift or present
received by such officer, personally or through the mediation of another,
shall suffer the penalty of prision mayor in its minimum and medium
periods and a fine of not less than three times the value of the gift, in
addition to the penalty corresponding to the crime agreed upon, if the
same shall have been committed.
If the gift was accepted by the officer in consideration of the execution of
an act which does not constitute a crime, and the officer executed said
act, he shall suffer the same penalty provided in the preceding paragraph;
and if said act shall not have been accomplished, the officer shall suffer
the penalties of prision correccional in its medium period and a fine of
not less than twice the value of such gift.
If the object for which the gift was received or promised was to make the
public officer refrain from doing something which it was his official duty
to do, he shall suffer the penalties of prision correccional in its maximum
period to prision mayor in its minimum period and a fine not less than
three times the value of the gift.
In addition to the penalties provided in the preceding paragraphs, the
culprit shall suffer the penalty of special temporary disqualification.
While the Sandiganbayan imposed the correct prison term in applying the
Indeterminate Sentence Law, the amount of the fine is erroneous.
Paragraph 1 of Article 210 of the Revised Penal Code, in relation to
paragraph 2 thereof, provides that if the act does not constitute a crime,
the fine shall not be less than three times the value of the amount
received. Evidence shows that petitioner received an aggregate amount
of P5,800.00.12 He should therefore be ordered to pay a fine not less than
3 times its value. Accordingly, a fine of P18,000.00 is deemed reasonable.
WHEREFORE, in view of the foregoing, the petition is DENIED. The
decision of the Sandiganbayan in Criminal Case No. 17030, finding
petitioner guilty beyond reasonable doubt of the crime of Direct Bribery
and imposing upon him the indeterminate prison term of 3 years, 6
months, and 5 days of prision correccional, as minimum, to 7 years, 8
months, and 9 days of prision mayor, as maximum, is AFFIRMED with the
MODIFICATION that the fine is increased to P18,000.00.
In addition, petitioner shall suffer the penalty of special temporary
disqualification.
SO ORDERED.
(3) G.R. Nos. 147578-85 January 28, 2008
ROLANDO L. BALDERAMA, petitioner, vs.
PEOPLE OF THE PHILIPPINES and JUAN S. ARMAMENTO, respondents.
x------------------------------------------x
G.R. Nos. 147598-605 January 28, 2008
ROLANDO D. NAGAL, petitioner, vs.
JUAN S. ARMAMENTO, private respondent and THE SPECIAL
PROSECUTOR, public respondent.
SANDOVAL-GUTIERREZ, J.:
Before us are two consolidated petitions for review on certiorari under
Rule 45 of the 1997 Rules of Civil Procedure, as amended, seeking to
reverse the Joint Decision1 of the Sandiganbayan dated November 17,
2000 in Criminal Cases Nos. 20669, 20670, 20672, 20674, 20675, 20676,
20677, and 20678; and its Resolution dated March 20, 2001.
Rolando L. Balderama, petitioner in G.R. Nos. 147578-85, and Rolando D.
Nagal, petitioner in G.R. Nos. 147598-605, were employed with the Land
Transportation Commission (LTO) assigned to the Field Enforcement
Division, Law Enforcement Services. Juan S. Armamento, respondent in
both cases, operates a taxi business with a fleet of ten (10) taxi units.
Acting on complaints that taxi drivers in the Ninoy Aquino International
Airport discriminate against passengers and would transport them to
their destinations only on a "contract" basis, the LTO created a team to
look into the veracity of the complaints. Petitioners in these cases were
members of the team, popularly known as "Flying Squad," together with
Cipriano L. Lubrica and Cresencio de Jesus.
On July 14, 1992, the team flagged down for inspection an "SJ Taxi"
owned by respondent. The team impounded the taxi on the ground that
its meter was defective. However, upon inspection and testing by the LTO
Inspection Division, the results showed that contrary to the report of the
team, the meter waiting time mechanism of the vehicle was not defective
and was functioning normally. The vehicle was released to respondent.
On December 2, 1992, respondent, feeling aggrieved of the malicious
impounding of his vehicle, filed with the Office of the Ombudsman a
complaint for bribery and violation of Section 3(e) of Republic Act (R.A.)
No. 3019, as amended,2 against herein petitioners as well as Lubrica and
de Jesus. He alleged that prior to the impounding of his taxi, the four LTO
officers had been collecting "protection money" from him. On February
15, 1992, they went to his office and proposed they would not apprehend
his drivers and impound his vehicles for violations of LTO rules, provided
he gives them the amount of P400.00 every 15th and 30th day of the
month. They agreed to the reduced amount of P300.00. On the same day,
he started giving them P300.00 and from then on, every 15th and 30th day
of the month until June 15, 1992. Thereafter, he failed to give them the
agreed amount because his business was not doing well.
Eventually, the Office of the Ombudsman filed with the Sandiganbayan
nine (9) Informations for violations of Article 210 of the Revised Penal
Code3 against petitioners and the other members of the team, docketed
as Criminal Cases Nos. 20669-20677. All the Informations were identically
worded, except the date of the commission of the crimes. For brevity, we
reproduce the Information in Criminal Case No. 20669 as sample, thus:
Criminal Case No. 20669
That on or about February 15, 1992 or for sometime prior thereto in
Makati, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused all public officers, being all
employees of the Land transportation Office assigned with the Field
Enforcement Division, Law Enforcement Services, committing the offense
in relation to their office and taking advantage of their position, did then
and there willfully, unlawfully and feloniously solicit, demand and receive
from Juan Armamento, a taxicab operator, the amount of P300.00 in
consideration for the said accused refraining from performing their
official duty of conducting inspections on the taxicab units being
operated by said Juan Armamento to determine any possible violation of
LTO rules and regulations, thereby causing Juan Armamento and the
public service damage and prejudice.
CONTRARY TO LAW.
They were also charged with violation of Section 3(e) of R.A. No. 3019, as
amended. The Information, docketed as Criminal Case No. 20678, reads:
That on or about July 14, 1992 or for sometime prior or subsequent
thereto, in Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, all accused public officers, being employees of the Land
transportation Office, assigned with the Field Enforcement Division, Law
Enforcement Services, while in the discharge of their official
administrative functions, did then and there willfully, unlawfully and
criminally cause undue injury to Juan Armamento, a taxicab operator,
through evident bad faith by apprehending and impounding one (1) unit
of his taxicab with Plate No. PKD-726 for alleged violation of LTO rules
and regulations, in that, its meter is defective (waiting time not
functioning), which was later on established to be not true, thereby
depriving said Juan Armamento of the use of his taxicab unit for about
three (3) days and to realize income thereon for the same period, as well
as incur unnecessary expenses in effecting the release of his impounded
4
unit from the impounding area of the LTO.
Page
CONTRARY TO LAW.
Upon arraignment on June 30, 1994, the accused, assisted by counsel,
pleaded not guilty. The cases were consolidated and tried jointly. Prior
thereto, they were suspended pendente lite from the service for a period
of ninety (90) days.
On March 5, 1999, accused de Jesus died. The cases against him were
dismissed. The hearing proceeded against petitioners and Lubrica.
In a Decision dated November 17, 2000, the Sandiganbayan found
petitioners and Lubrica guilty of direct bribery in seven (7) of the nine (9)
Informations filed against them and were sentenced in each count "to
suffer the indeterminate penalty of imprisonment of 4 years and 2
months, as minimum, to 5 years, 4 months and 20 days, as maximum,
within the range of prision correccional, and to suffer the penalty of
special temporary disqualification." They were further ordered to pay a
fine of P300.00 without subsidiary imprisonment in case of insolvency
and "to restitute the amount of P300.00 as alleged in the Informations."
They were acquitted in Criminal Cases Nos. 20671 and 20673 for failure
of the prosecution to establish their guilt beyond reasonable doubt.
Petitioners and Lubrica were also convicted in Criminal Case No. 20678
for violation of Section 3(e) of R.A. No. 3019, as amended, and were
sentenced to suffer imprisonment of six (6) years and one (1) month, as
minimum, to ten (10) years and one (1) day, as maximum. They were also
disqualified perpetually from holding public office and were ordered to
indemnify the respondent the amount of P1,500.00, representing his lost
income for the 3-day period that the taxi cab remained in the LTO
impounding unit.
Petitioners and Lubrica filed separate motions for reconsideration
arguing that they were not yet grouped as a team on February 15, 1992,
hence, there could be no conspiracy. While the motion was pending
resolution, both petitioners filed separate motions for new trial based on
an affidavit dated December 22, 2000 executed by respondent recanting
his previous testimony and pointing to Lubrica and de Jesus as the only
culprits.
On March 20, 2001, the Sandiganbayan denied the motions for
reconsideration and the motions for new trial. In denying the motions for
reconsideration, the Sandiganbayan ruled:
Anent the second argument, the Supreme Court has made these
pronouncements:
Direct proof is not essential to prove conspiracy, as it may be
shown by acts and circumstances from which may logically be
inferred the existence of a common design, or may be deduced
from the mode and manner in which the offense was
perpetuated. (see People v. Cabiling, 74 SCRA 785; People v.
Tingson, 47 SCRA 243; People v. Alonso, 73 SCRA 484).
Thus, for failure of the accused to controvert prosecution’s evidence that
all four of them went to the office of the private complainant on February
15, 1992 and offered him to refrain from subjecting his taxi units to
apprehension for notation of LTO rules, provided that he comes across
with the amount of P400.00 (later reduced to P300.00) to be delivered
twice a month and it was accused Nagal who received the P300.00 on
April 30, 1992, Balderama on May 30, in the presence of de Jesus, Lubrica
on February 15, February 28 together with Nagal, March 30 and June 15,
and that in fact, Manimtim witnessed the incident which occurred on
May 15 and February 15, 1992 and saw Balderama and de Jesus waiting
in the mobile car together with Nagal, this Court’s finding of conspiracy
holds.
In denying the motions for new trial, the Sandiganbayan held:
Retraction of testimonies previously given in Court are viewed with
disfavor. As a general rule, a motion for new trial will not be granted if
based on an affidavit of a witness where the effect is to free the appellant
from participation in the commission of the crime. The recantation made
by the private complainant after the conviction of the accused is
unreliable and deserves scant consideration.
In the case of People v. Soria, 262 SCRA 739, the Supreme Court declared:
Indeed, it would be dangerous rule to reject the testimony
taken before the Court of justice simply because the witness
later changed his mind for one reason or another, for such a
rule will make a solemn trial a mockery and will place the
investigation of truth at the mercy of unscrupulous witnesses.
It bears stressing that a testimony in court is made under
conditions calculated to discourage and forestall falsehood.
Both petitioners filed with this Court separate petitions for review
on certiorari, both arguing that the Sandiganbayan erred: (1) in finding
that they are guilty of the offenses charged; (2) in holding that petitioners
and their co-accused acted in conspiracy; and (3) in disregarding the
recantation made by respondent.
On January 4, 2003, Lubrica likewise filed with this Court a petition for
review on certiorari. In our Decision dated February 26, 2007, we denied
his petition for being late. Our Decision became final and was recorded
in the Book of Entries of Judgments on April 20, 2007.
The sole issue for our resolution is whether the guilt of the accused, now
petitioners, in these cases has been proved by evidence beyond
reasonable doubt.
The crime of direct bribery as defined in Article 210 of the Revised Penal
Code contains the following elements: (1) that the accused is a public
officer; (2) that he received directly or through another some gift or
present, offer or promise; (3) that such gift, present or promise has been
given in consideration of his commission of some crime, or any act not
constituting a crime, or to refrain from doing something which is his
official duty to do; and (4) that the crime or act relates to the exercise of
his functions as a public officer.4
The Sandiganbayan found the above elements of direct bribery present.
It was duly established that the accused demanded and received P300.00
as "protection money" from respondent on several dates. As against the
prosecution’s evidence, all that the accused could proffer was alibi and
denial, the weakest of defenses.
Anent Criminal Case No. 20678, to hold a person liable under Section 3(e)
of R.A. No. 3019, the concurrence of the following elements must be
established beyond reasonable doubt by the prosecution: (1) that the
accused is a public officer or a private person charged in conspiracy with
the former; (2) that the said public officer commits the prohibited acts
during the performance of his or her official duties or in relation to his or
her public positions; (3) that he or she causes undue injury to any party,
whether the government or a private party; and (4) that the public officer
has acted with manifest partiality, evident bad faith or gross inexcusable
negligence.5 The Sandiganbayan found that petitioners and Lubrica
participated directly in the malicious apprehension and impounding of
the taxi unit of respondent, causing him undue injury.6
Settled is the rule that findings of fact of the Sandiganbayan in cases
before this Court are binding and conclusive in the absence of a showing
that they come under the established exceptions, among them: 1) when
the conclusion is a finding grounded entirely on speculation, surmises and
conjectures; 2) the inference made is manifestly mistaken; 3) there is a
grave abuse of discretion; 4) the judgment is based on misapprehension
of facts; 5) said findings of facts are conclusions without citation of
specific evidence on which they are based; and, 6) the findings of fact of
the Sandiganbayan are premised on the absence of evidence on
record.7 We found none of these exceptions in the present cases.
5
Page
Petitioners’ prayer for complete acquittal on the strength of respondent’s
affidavit of recantation fails to impress us.
A recantation or an affidavit of desistance is viewed with suspicion and
reservation.8 The Court looks with disfavor upon retractions of
testimonies previously given in court. It is settled that an affidavit of
desistance made by a witness after conviction of the accused is not
reliable, and deserves only scant attention.9 The rationale for the rule is
obvious: affidavits of retraction can easily be secured from witnesses,
usually through intimidation or for a monetary consideration. Recanted
testimony is exceedingly unreliable. There is always the probability that
it will later be repudiated.10 Only when there exist special circumstances
in the case which when coupled with the retraction raise doubts as to the
truth of the testimony or statement given, can retractions be considered
and upheld.11 As found by the Sandiganbayan, "(t)here is indubitably
nothing in the affidavit which creates doubts on the guilt of accused
Balderama and Nagal."
WHEREFORE, we DENY the petition. The challenged Decision of the
Sandiganbayan dated November 17, 2000 in Criminal Cases Nos. 20669,
20670, 20672, 20674, 20675, 20676, 20677 and 20678 is AFFIRMED in
toto.
SO ORDERED.
(4) G.R. No. L-65952 July 31, 1984
LAURO G. SORIANO, JR., petitioner, vs. THE HONORABLE
SANDIGANBAYAN AND THE PEOPLE OF THE PHILIPPINES, respondents.
ABAD SANTOS, J.:
The principal issue in this petition to review a decision of the
Sandiganbayan is whether or not the preliminary investigation of a
criminal complaint conducted by a Fiscal is a "contract or transaction" so
as to bring it within the ambit of Section 3 (b) of Republic Act No. 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act.
The factual background is as follows:
Thomas N. Tan was accused of qualified theft in a complaint lodged with
the City Fiscal of Quezon City. The case was docketed as I.S. No. 82-2964
and assigned for investigation to the petitioner who was then an
Assistant City Fiscal. In the course of the investigation the petitioner
demanded P4,000.00 from Tan as the price for dismissing the case. Tan
reported the demand to the National Bureau of Investigation which set
up an entrapment. Because Tan was hard put to raise the required
amount only P2,000.00 in bills were marked by the NBI which had to
supply one-half thereof. The entrapment succeeded and an information
was filed with the Sandiganbayan in Criminal Case No. 7393 which reads
as follows:
The undersigned Tanodbayan Special Prosecutor accuses LAURO G.
SORIANO, for Violation of Section 3, paragraph (b) of Republic Act 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act, committed
as follows:
That on or about the 21st day of March 1983, at Quezon City, Philippines,
and within the jurisdiction of this Honorable Court, the above-named
accused, a public officer, being then and still is an Assistant City Fiscal of
the Quezon City Fiscal's Office, detailed as the Investigating Fiscal in the
case of MARIANNE Z. LACAMBRA versus THOMAS N. TAN, docketed as
I.S. No. 82-2964, for Qualified Theft, taking advantage of his official
position and with grave abuse of authority, did then and there wilfully,
unlawfully and feloniously demand and request from Thomas N. Tan the
amount of FOUR THOUSAND PESOS (P4,000.00) Philippine Currency, and
actually received from said Thomas N. Tan the amount of TWO
THOUSAND PESOS (P2,000.00) Philippine Currency, in consideration for a
favorable resolution by dismissing the abovementioned case, wherein
said accused has to intervene in his official capacity as such Investigating
Fiscal.
CONTRARY TO LAW.
Manila, Philippines, March 22, 1983.
After trial the Sandiganbayan rendered a decision with the following
dispositive portion:
WHEREFORE, the Court finds accused Lauro G. Soriano, Jr., GUILTY
beyond reasonable doubt, as Principal in the Information, for Violation of
Section 3, paragraph (b), of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt Practices Act, and hereby
sentences him to suffer the indeterminate penalty of imprisonment
ranging from SIX (6) YEARS and ONE (1) MONTH, as minimum, to NINE (9)
YEARS and ONE (1) DAY, as maximum; to suffer perpetual disqualification
from public office; to suffer loss of all retirement or gratuity benefits
under any law; and, to pay costs.
Of the sum of Two Thousand Pesos (P2,000.00) used in the entrapment
operations, and which was fully recovered from the accused, One
Thousand Pesos (P1,000.00) shall be returned to private complainant
Thomas N. Tan, and the other half, to the National Bureau of
Investigation, National Capital Region.
A motion to reconsider the decision was denied by the Sandiganbayan;
hence the instant petition.
The petitioner has raised several legal questions plus one factual
question. The latter is to the effect that the Sandiganbayan convicted him
on the weakness of his defense and not on the strength of the
prosecution's evidence. This claim is not meritorious not only because it
is not for Us to review the factual findings of the court a quo but also
because a reading of its decision shows that it explicitly stated the facts
establishing the guilt of the petitioner and the competence of the
witnesses who testified against him.
As stated above, the principal issue is whether or not the investigation
conducted by the petitioner can be regarded as a "contract or
transaction" within the purview of Sec. 3 (b) of R.A. No. 3019. On this
issue the petition is highly impressed with merit.
The afore-mentioned provision reads as follows:
SEC. 3. Corrupt practices of public officers. — In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:
(a) ...
(b) Directly or indirectly requesting or receiving any gift, present, share,
percentage, or benefit, for himself or for any other person, in connection
with any contract or transaction between the Government and any other
party, wherein the public officer in his official capacity has to intervene
under the law.
The petitioner states:
Assuming in gratia argumenti, petitioner's guilt, the facts make out a case
of Direct Bribery defined and penalized under the provision of Article 210
of the Revised Penal Code and not a violation of Section 3, subparagraph
(b) of Rep. Act 3019, as amended.
The evidence for the prosecution clearly and undoubtedly support, if at
all the offense of Direct Bribery, which is not the offense charged and is
not likewise included in or is necessarily included in the offense charged,
which is for violation of Section 3, subparagraph (b) of Rep. Act 3019, as
amended. The prosecution showed that: the accused is a public officer;
6
in consideration of P4,000.00 which was allegedly solicited, P2,000.00 of
Page
which was allegedly received, the petitioner undertook or promised to
dismiss a criminal complaint pending preliminary investigation before
him, which may or may not constitute a crime; that the act of dismissing
the criminal complaint pending before petitioner was related to the
exercise of the function of his office. Therefore, it is with pristine clarity
that the offense proved, if at all is Direct Bribery. (Petition, p. 5.)
Upon the other hand, the respondents claim:
A reading of the above-quoted provision would show that the term
'transaction' as used thereof is not limited in its scope or meaning to a
commercial or business transaction but includes all kinds of transaction,
whether commercial, civil or administrative in nature, pending with the
government. This must be so, otherwise, the Act would have so stated in
the "Definition of Terms", Section 2 thereof. But it did not, perforce
leaving no other interpretation than that the expressed purpose and
object is to embrace all kinds of transaction between the government and
other party wherein the public officer would intervene under the law.
(Comment, p. 8.)
It is obvious that the investigation conducted by the petitioner was not
a contract. Neither was it a transactionbecause this term must be
construed as analogous to the term which precedes it. A transaction, like
a contract, is one which involves some consideration as in credit
transactions and this element (consideration) is absent in the
investigation conducted by the petitioner.
In the light of the foregoing, We agree with the petitioner that it was error
for the Sandiganbayan to have convicted him of violating Sec. 3 (b) of R.A.
No. 3019.
The petitioner also claims that he cannot be convicted of bribery under
the Revised Penal Code because to do so would be violative of as
constitutional right to be informed of the nature and cause of the
accusation against him. Wrong. A reading of the information which has
been reproduced herein clearly makes out a case of bribery so that the
petitioner cannot claim deprivation of the right to be informed.
IN THE LIGHT OF THE FOREGOING, the judgment of the Sandiganbayan is
modified in that the petitioner is deemed guilty of bribery as defined and
penalized by Article 210 of the Revised Penal Code and is hereby
sentenced to suffer an indeterminate penalty of six (6) months of arresto
mayor, as minimum, to two (2) years of prision correccional as maximum,
and to pay a fine of Two Thousand (P2,000.00) Pesos. The rest of the
judgment is hereby affirmed. Costs against the petitioner.
SO ORDERED.
(5) G.R. No. L-58889 July 31, 1986
NATHANIEL S. MANIPON, JR., petitioner, vs.
SANDIGANBAYAN, Second Division composed of HON. BERNARDO P.
FERNANDEZ as Acting Presiding Justice and HON. BUENAVENTURA J.
GUERRERO and HON. MOISES C. KALLOS, as Associate
Justices, respondents.
FERNAN, J.:
This is a case of direct bribery penalized under Article 210 of the Revised
Penal Code.
In its decision dated September 30, 1981, the Sandiganbayan found
accused Nathaniel S. Manipon, Jr., 31, guilty of direct bribery, sentenced
him to four months and twenty days of arresto mayor with temporary
special disqualification for eight years and one day and a fine of P2,000.00
with subsidiary imprisonment in case of insolvency and to pay the costs.
Manipon came to this Court on petition for review on certiorari seeking
the reversal of the judgment of conviction. The Court dismissed the
petition, "the question raised being factual and for lack of
merit." 1 However, upon motion for reconsideration, the Court
reconsidered its resolution and gave due course to the petition. 2
The facts of this case are as follows:
Nathaniel S. Manipon, Jr., a deputy sheriff of the Court of First Instance
of Baguio City and Benguet, Branch IV, was assigned to enforce an order
of the Minister of Labor dated October 31, 1979 directing the Sheriff of
Baguio City or his deputy to execute the decision of the labor arbiter in
NLRC Case No. RB-1-C-1428-79 entitled "Longog Tabek, et al vs. Harry
Dominguez et al" and to make a return within thirty (30) days from said
date. 3 The labor arbiter's decision ordered Harry Dominguez, a building
contractor and the then municipal mayor of Tadian, to pay Longog Tabek
and the other judgment creditors the amount of P2,720.00 with interest,
as the balance of their work contract. 4
Pursuant to that assignment, Manipon on November 9, 1979 sent a
notice to the Commercial Bank and Trust branch [Comtrust] in Baguio City
garnishing the bank accounts of Dominguez. 5 The bank agreed to hold
the accounts. For one reason or another, Manipon did not inform the
labor arbiter of the garnishment nor did he exert efforts to immediately
satisfy the judgment under execution.
On November 12, 1979, Dominguez sought Manipon's help in the
withdrawal of the garnished account. Manipon told Dominguez that the
money could not be withdrawn.
However, on December 27, 1979 when the two met again at the Office of
the National Intelligence and Security Authority [NISA] in Baguio City,
Manipon told Dominguez that he "can remedy the withdrawal so they
will have something for the New Year." 6 Dominguez interpreted this to
mean that Manipon would withdraw the garnished amount for a
consideration. Dominguez agreed and they arranged to meet at the bank
later in the afternoon. After Manipon left, Dominguez confided the offer
to NISA Sub-Station Commander Luisito Sanchez. They then hatched up a
plan to entrap Manipon by paying him with marked money the next day.
Col. Sanchez and a Col. Aguana were able to put up P700.00 in fifty-peso
bills which were then authenticated, xeroxed and dusted with fluorescent
powder. 7
Thus, at about 4:00 o'clock in the afternoon of December 28, 1979,
Dominguez went to Comtrust as planned. Manipon showed up with two
companions, named Deputy Sheriff Crisanto Flora and Baltazar Pacis.
Manipon delivered his letter to the bank lifting the garnishment. 8 Then
Dominguez prepared a withdrawal slip for P2,500.00. 9 As soon as
Dominguez received the money from the teller, he took out P300.00
therefrom added it to the P 700.00 in marked bills and handed the total
amount of P l,000.00 to Manipon. Then they all left the bank. Dominguez
walked over to his car and drove off. Manipon and his two companions
walked down Session Road. Moments later, PC and NISA operatives
accosted them, seized the P1,000.00 from the left breast pocket of
Manipon and thereafter brought them to Camp Dangwa for questioning.
Manipon was subjected to an ultraviolet light test and found positive for
fluorescent powder. However, after executing a certification relative to
the money recovered, he refused to give any statement. 10 He filed his
sheriff's return unsatisfied on February 20, 1980 or after 114 days. 11
Originally, Manipon was charged with violation of Presidential Decree No.
46 for having demanded and received P l,000.00 from Dominguez, a
private individual, for a favor extended by him to the latter, i.e., by not
enforcing the garnishment order issued to Comtrust which was his official
duty. However, in an amended information dated February 16, 1981, the
charge was changed to direct bribery under the Revised Penal Code. 12
Manipon was released on bail. When arraigned, he pleaded not guilty. 13
In his brief, Manipon contends that the Sandiganbayan erred in
convicting him of direct bribery, in not giving credence to the defense
7
theory that there was novation of the money judgment and in admitting
Page
illegally-obtained evidence.
The crime of direct bribery as defined in Article 210 of the Revised Penal
Code consists of the following elements: (1) that the accused is a public
officer; (2) that he received directly or through another some gift or
present, offer or promise; (3) that such gift, present or promise has been
given in consideration of his commission of some crime, or any act not
constituting a crime, or to refrain from doing something which it is his
official duty to do, and (4) that the crime or act relates to the exercise of
his functions as a public officer.14 The promise of a public officer to
perform an act or to refrain from doing it may be express or implied. 15
It is not disputed that at the time of the commission of the crime Manipon
was the deputy sheriff of the Court of First Instance of Benguet and
Baguio assigned to implement the execution order issued in NLRC Case
No. RB-1-C-1428-79. It is also not disputed that Manipon garnished the
bank accounts of Dominguez at Comtrust and that he lifted the same on
December 28, 1979 after which he received P l,000.00 from Dominguez.
It is the theory of the defense that the P1,000.00 Manipon collected from
Dominguez on December 28, 1979 was not a bribe but a payment in
partial satisfaction of the judgment under execution to which the
judgment creditors headed by Longog Tabek had agreed.
Manipon narrates that during his meeting with Dominguez at the NISA
office on December 27, 1979, Dominguez requested Manipon to convey
to the creditors that he was only willing to pay for the time being a partial
amount of P1,000.00, the balance of P 1,720. 00 to be paid after the New
Year. 16 So he visited Longog Tabek who was the "lead man." Tabek, an
illiterate, consented to the lesser amount because he needed money
badly. 17 His arrangements with Tabek and Dominguez were all verbal. At
that time he found no reason to have some written memorandum for his
own protection.
At Comtrust after Dominguez had given him the P1,000.00 Manipon
made a move to hand him a temporary receipt but Dominguez brushed
it aside and said he was in a for not informing the labor arbiter of the novation. In fact he candidly
hurry. 18
Manipon maintains that Dominguez had framed him up because of a
grudge. He said that in 1978 he and Flora had levied execution against
several vehicles owned by Dominguez, an act which the latter had openly
resented. 19
The defense theory is so incredible that it leaves no doubt whatsoever in
the Court's mind that Manipon is guilty of the crime charged.
It is very strange indeed that for such an important agreement that would
modify a final judgment, no one took the bother of putting it down on
paper. Of course Manipon would have us believe that there was no need
for it because he trusted Dominguez and Tabek. And yet did he not also
claim that Dominguez had framed him up because of a grudge? And if
there was really an agreement to alter the judgment, why did he not
inform the labor arbiter about it considering that it was the labor arbiter
who had issued the order of execution? Manipon could not give
satisfactory explanations because there was no such agreement in the
first place.
The temporary receipt 20 adduced by Manipon, as correctly pointed out
by the Solicitor General, is a last-minute fabrication to provide proof of
the alleged agreement for the trial payment of the judgment debt.
Contrary to Manipon's claim, it is hard to believe that Dominguez was not
interested in getting said temporary receipt because precisely that was
the proof he needed to show that he had partially complied with his legal
obligation.
The testimonies of Crisanto Flora and Longog Tabek are of no help either
to the defense. Flora is Manipon's co-sheriff and is therefore biased. On
the other hand, Tabek, on several occasions on the witness stand,
answered with obvious hesitation, betraying himself to be a rehearsed
witness. While he claimed that he was the supposed headman of the
other creditors, he could not present any authority that would allow him
to speak for them, let alone agree to receive a lesser amount in their
behalf. He even admitted that he did not know their names. 21
Indeed, Manipon's behavior at the very outset, had been marked with
irregularities. As early as November 9, 1979, he had already garnished the
bank accounts of Dominguez at Comtrust, but he did not notify the labor
arbiter so that the corresponding order for the payment by the bank of
the garnished amount could be made and the sum withdrawn
immediately to satisfy the judgment under execution. His lame excuse
was that he was very busy in the sheriff's office, attending to voluminous
exhibits and court proceedings. That was also the same excuse he gave
admitted that he never communicated with the NLRC concerning the
garnishment. He returned the writ unsatisfied only on February 20, 1980
although by its express terms, it was returnable within thirty days from
October 29, 1979. 22 Clearly, Manipon had planned to get Dominguez to
acquiesce to a consideration for lifting the garnishment order.
Manipon was also asked about the affidavit he executed during the
preliminary investigation. 23 That affidavit contained two annexes but the
temporary receipt which he allegedly prepared on December 28, 1979
was not included. He said he misplaced it in his office and found it only
several weeks after he had made the affidavit. 24 This leads us to strongly
suspect there was actually no temporary receipt at all at the time of
payment on December 28 and that it was concocted by the defense as a
last-ditch effort to make the authorities believe that what had transpired
was not a payoff but a legitimate partial satisfaction of a judgment debt.
In the final analysis, it all boils down to credibility. In this regard, the
prosecution witnesses have acquitted themselves welt The
Sandiganbayan did not err in giving weight and credence to their version
instead of Manipon's. Indeed, Manipon's guilt for the crime of direct
bribery has been proved beyond reasonable doubt.
Dwelling on one last point, Manipon has pointed out that the P1,000.00
was illegally seized because there was no valid March warrant and
therefore inadmissible.
The argument is untenable. The rule that searches and seizures must be
supported by a valid warrant is not an absolute rule. There are at least
three exceptions to the rule recognized in this jurisdiction. These are: 1)
search incidental to an arrest, 2) search of a moving vehicle, and 3)
seizure of evidence in plain view. 25
In the case at bar, the records show that at about 2:00 p.m. on December
28,1979, NISA Sub-Station Commander Colonel Luisito Sanchez held a
final briefing among his men and some operatives from the Benguet
Philippine Constabulary concerning the planned entrapment. He had
earlier received word from Dominguez that the lifting of the garnishment
would be effected that afternoon and he informed them that Manipon
was asking money from Dominguez. 26 As Colonel Sanchez earlier
testified, part of the money to be withdrawn after lifting the garnishment
was to be given to the accused 27 for agreeing to lift the order of
garnishment. After the briefing which lasted from ten to fifteen minutes,
they an headed for the Comtrust bank.
NISA Agent Caesar Murla stationed himself near the door of the bank so
that he could observe what transpired inside the bank. 28 He testified that
he saw Dominguez give the marked money to Manipon which the latter
accepted and counted. Upon seeing Manipon take the money from
Dominguez, Agent Murla gave a signal to some of the agents positioned
nearby by placing his right hand on his head to indicate that the money
had changed hands. Immediately thereafter, Dominguez left the bank,
Manipon placed the money in his left breast pocket and followed suit. As
Manipon walked past Murla on his way out, the latter gave another signal
by putting his hand on his left breast to indicate that Manipon had placed
the money in his left breast pocket. 29
Upon noticing the second signal, the NISA agents and the PC operatives
approached Manipon and his two companions. After Identifying
8
themselves as peace officers, they retrieved the P l,000.00 from Manipon.
Page
Through it all, Manipon remained amazingly silent and voiced no
protest. 30
The search and seizure of the P1,000.00 from Manipon would therefore
fall within the first exception. The search was made as an incident to a
lawful arrest, in accordance with our pronouncement in Moreno v. Ago
Chi 12 Phil. 439, reiterated in Alvero v. Dizon 76 Phil. 637, to wit:
An officer making an arrest may take from the person arrested any
money or property found upon his person which was used in the
commission of the crime or was the fruit of the crime or which might
furnish the prisoner with the means of committing violence or escaping,
or which may be used in evidence in the trial of the case.
The evident purpose of this exception is both to protect the arresting
officer against physical harm from the person being arrested who might
be armed with a concealed weapon and also to prevent the person
arrested from destroying evidence within his
reach. 31
Since the other issues raised by Manipon are factual they need not be
discuss here.
WHEREFORE, in view of the foregoing, the instant petition is denied for
lack of merit, with costs against petitioner-accused Nathaniel Manipon,
Jr. The decision of the Sandiganbayan dated September 30, 1981 is
affirmed.
Art. 211- Indirect Bribery
(1) G.R. No. 75160 March 18, 1988
LEONOR FORMILLEZA, petitioner, vs. THE HONORABLE
SANDIGANBAYAN, First Division and PEOPLE OF THE
PHILIPPINES, respondents.
GANCAYCO, J.:
This is a Petition for review of a Decision of the Sandiganbayan.
The records of the case disclose that petitioner Leonor Formilleza has
been with the government service for around 20 years. She was the
personnel supervisor of the regional office of the National Irrigation
Administration (NIA) in Tacloban City, Leyte since October 1, 1982. Her
duties include the processing of the appointment papers of employees.
On the other hand, a certain Mrs. Estrella Mutia was an employee of the
NIA from February, 1978 up to March, 1985. Her appointment was
coterminous with a project of the NIA. On December 31, 1983, her
appointment wag terminated. This notwithstanding, she continued
working for the NIA pursuant to the verbal instructions of the regional
director of the Administration.
Mrs. Mutia testified that she took steps to obtain either a permanent or
at the least a renewed appointment; that when she approached the
regional director about the matter she was advised to see the petitioner
who was to determine the employees to be appointed or promoted; and
that the petitioner refused to attend to her appointment papers unless
the latter were given some money.
On February 27, 1984, Mrs. Mutia reported her problem to the Philippine
Constabulary (PC) authorities in the province. The PC officials told her
that steps were to be taken to entrap the petitioner. The entrapment
equipment consisted of marked paper money bills worth P100.00. The PC
officials concerned were colleagues of the husband of Mrs. Mutia in the
PC.
The first attempt to entrap the petitioner was on February 28, 1984. The
plan did not materialize as the petitioner did not show up at the
designated rendezvous at the NIA building canteen.
The second attempt was on February 29,1984, this time with results. That
morning, the petitioner and Mrs. Mutia met in their service bus on their
way to work. The two women supposedly agreed to meet at the canteen
later that morning at 9:00 o'clock. Thereafter, Mrs. Mutia notified the PC
authorities who were to arrange the entrapment. The PC soldiers
involved in the arrangement were Identified as Sergeants Eddie Bonjoc,
Efren Abanes and Ignacio Labong.
Everyone who was to participate in the entrapment was ready. Mrs.
Mutia went to see the petitioner in her office after which the two of them
proceeded to the canteen. Some of their officemates — Mrs. Florida
Sevilla and a certain Mrs. Dimaano — joined them in the canteen. They
occupied two squareshaped tables joined together. The petitioner sat at
the head of the table with Mrs. Mutia seated at her left, Mrs. Dimaano at
her (the petitioner's) right and Mrs. Sevilla at the right of Mrs. Dimaano.
Sergeants Bonjoc and Labong sat at another table while Sergeant Abanes
was alone in still another table. The latter brought along a camera in
order to take photographs of the entrapment. The marked money was
folded altogether.
Mrs. Mutia maintains that after they had finished taking their snacks, she
handed the marked money bills under the table with her right hand to
the petitioner who received the same with her left hand. At that moment,
Sergeant Bonjoc approached the petitioner and held her hand holding
the money bills. Sergeant Abanes brought out his camera and took photo.
graphs of the sequence of events. He was able to take seven
photographs. 1
The petitioner was arrested by the soldiers despite her objections to the
entrapment. She was brought to the PC crime laboratory in the locality
where she was found positive for ultra-violet powder. In the presence of
the corporate counsel of the NW the petitioner denied accepting any
bribe money from Mrs. Mutia.
The case was brought to the Sandiganbayan where it was docketed as
Criminal Case No. 9634. Arraigned on January 1 0, 1985, the petitioner
entered a plea of not guilty and went to trial on May 13, 1985.
In the proceedings before the Sandiganbayan, the prosecution argued
that the entrapment arranged by the PC operatives was n because the
petitioner was asking money from Mrs. Mutia in consideration for having
the appointment papers of the latter facilitated. On the other hand, the
petitioner maintains her innocence — that there was no entrapment; the
scenario was but a scheme set up by Mrs. Mutia and her husband's
colleagues in the PC. The petitioner denies having accepted the supposed
bribe money.
The Sandiganbayan relying on the theory of the prosecution observed in
a decision promulgated on July 14, 1986, 2as follows —
Upon consideration of the evidence. We find the petitions version
credible.
Two days before the entrapment, Mrs. Mutia complained to the PC
authorities about the inaction of the on her appointment papers due to
her failure to give Mm money. She executed a sworn statement to that
effect, ... It was the PC who planned the entrapment and supplied the
marked money. Sgt. Efren Abanes who dusted the money bills with
fluoresence powder and who was a member of the entrapment team,
witnessed the delivery and receipt of the money by the accused and the
complainant and he saw how the folded money was handed by Mrs.
Mutia with her right hand underneath the table and received by the with
her left hand. That was also how Mrs. Mutia described the manner she
delivered the money to the accused — the money bills were rolled winch
she handed to with her right hand underneath the table. Although Sgt.
Abanes had a camera with him to photograph the entrapment, he could
not prematurely expose the camera to allow a shot of the actual giving of
the money lest the notice his presence and intention and thereby thwart
the operation. But after the money had been delivered and received, he
9
immediately took out his camera and snapped pictures, one of them
Page
depicting the accused held by Sgt. Bonjoc and Labong on the left hand ...,
and another showing the accused also held on the left hand by one of the
PC men, and the complainant, Mrs. Mutia, drinking from a glass ...
The fact that Mrs. Mutia's husband is a PC -An himself does not detract
from the credibility of Sgt. Abanes who took part in the Sgt. Abanes
entrapment, took pictures, and testified about the incident in court. Sets.
Abanes Bonjoc and Labong were not the only public authorities privy to
the operation. Capt. Pedro Pates was the one to whom Mrs. Mutia
reported the accused demand for money; it was he who broached the
Idea of entrapping the accused; and it was Mador Fernando Pace who
supplied the money and caused it to be marked with powder. It is
inconceivable that an these commissioned and non-commissioned
officers had lent themselves to take part in an unholy cabal of falsely
incriminating a female government employee on the mere urging of one
of their associates.
Just as unreasonable is the insinuation that Mrs. Mutia had inveigled the
accused to the canteen and resorted to the insidious machination of
planting money in her hand in a simulated entrapment simply because
she thought the accused was not helping her in her application for
appointment to a regular item.
Mrs. Florida Sevilla's presence on the same table with the complainant
and the accused may be conceded. But her testimony that she did not
see anything that took place between the complainant and the accused
before the PC operative pounced upon the accused, and the latter angrily
asked the complainant what she was trying to do to her, does not
improve the cause of the defense. As portrayed by the accused, she was
at the head of the rectangular table with the complainant at her left: Mrs.
Dimaano at her right, and Mrs. Sevilla next to Mrs. Dimaano. Since the
money, according to the complainant and Sgt. Abanes was handed to and
received by the accused underneath the table, it is not surprising that
Mrs. Sevilla who was two seats away from the accused did not see it. 3
The respondent court ruled that the crime committed by the petitioner
was not Direct Bribery as defined in Article 210 of the Revised Penal Code
cited in the Information but Indirect Bribery as defined under Article 211
of the same code. Citing the case of People v. Abesamis, 4 the respondent
court was of the opinion that she could be convicted for Indirect Bribery
under the Information for Direct Bribery to which she pleaded and
entered into trial inasmuch as it is the allegation of facts rather than the
denomination of the offense by the provincial fiscal that determines the
crime charged.
Thus, the respondent court found the petitioner guilty of Indirect Bribery
and sentenced her to four months of arresto mayor, suspension from
public office, profession or calling, including the right of suffrage, and
public censure.
On August 23, 1986, the petitioner elevated the case to this Court by way
of the instant Petition for Review. The thrust of the Petition is that the
conclusions reached by the Sandiganbayan are not supported by the
evidence. Moreover, the petitioner disputes the applicability and/or
correctness of the ruling of this Court in People v. Abesamis relied upon
by the respondent court.
As instructed by this Court, the Office of the Solicitor General submitted
its Comment on the Petition. In opposing the Petition, the Solicitor
General maintains that only questions of law may be raised in the instant
case and the respondent court did not commit any error of law. The
Solicitor General also stresses therein that the findings of fact made by
the Sandiganbayan are supported by the evidence on record and deserve
full faith and credit. The Solicitor General adds that the question of
credibility is addressed mainly to the trier of facts, in this case, the
Sandiganbayan.
The parties submitted subsequent pleadings in support of their stand.
Thereafter, the case was deemed submitted for decision.
We find merit in the Petition.
Presidential Decree No. 1606, as amended, governs the procedure
through which cases originating from the Sandiganbayan are elevated to
this Court.5 Under Section 7 thereof, the decisions and final orders of the
Sandiganbayan are subject to review on certiorari by the Supreme Court
in accordance with Rule 45 of the Rules of Court. This Court has ruled that
only questions of law may be raised in a petition for certiorari under Rule
45, subject to certain rare exceptions. 6 Simply stated, one way 7 through
which a decision or final order of the Sandiganbayan can be elevated to
the Supreme Court is a Petition for certiorari under Rule 45 and, as a
general rule, only questions of law may be raised therein. The Solicitor
General cites the case of Peñaverde v. Sandiganbayan 8 in support of this
view.
Going now to the question of law raised in the instant Petition, We
believe that the ruling in People v. Abesamis, contrary to the contention
of the petitioner, is authority for the view that the allegation of facts, not
the denomination of the offense by the prosecutor, determines the crime
charged. Anent the argument on the correctness of the ruling, the
petitioner had not succeeded in showing any cogent basis for reversing
or modifying the same.
The remaining argument that the judgment of conviction is not
supported by the evidence raises a question of fact inasmuch as the
resolution of the issue would require this Court to sort out and re-
examine the evidence presented in the trial. Invoking the ruling of this
Court in Peñaverde v. Sandiganbayan, the Solicitor General moves for the
denial of the Petition. The Solicitor General adds that the credibility of
witnesses is a matter better left to the appreciation of the trial court, in
this case, the Sandiganbayan.
Indeed, the general rule is that only questions of law may be raised in a
petition of this character. The general rule admits exceptions, one of
which is when the findings of fact made by the trial court overlooked
certain facts of substance and value which, if considered, might affect the
result of the case. This observation was made by this court in Peñaverde
v. Sandiganbayan, cited by the Solicitor General, to wit —
With respect to the allegation that there was error on the part of
respondent Sandiganbayan in concluding that petitioners conspired in
the commission of the offense, suffice it to say that the basis of its finding
was the credibility of witnesses. Pursuant to Section 7 of Presidential
Decree No. 1606, in relation to Section 2, Rule 45 of the Rules of Court,
the findings of fact of the Sandiganbayan are entitled to great respect and
only questions of laws (sic) may be raised to the Supreme Court. Besides,
well settled is the rule that the findings of (the) trial court on credibility
of witnesses will not be disturbed unless much findings overlook certain
facts of substance and value which, if considered might affect (the)
results of (the) case. 9
We believe that the exception to the general rule calls for application in
this case.
The fundamental axiom underlying a criminal prosecution is that before
the accused may be convicted of any crime, his guilt must be proved
beyond reasonable doubt. Thus, if there are substantial facts which were
overlooked by the trial court but which could alter the results of the case
in favor of the accused, then such facts should be carefully taken into
account by the reviewing tribunal.
In the case before Us, there are substantial facts and circumstances
Which appear to be favorable to the accused but which were not carefully
considered by the Sandiganbayan. The failure to do so is most
unfortunate considering that the Sandiganbayan is the first and last
recourse of the accused before her case reaches the Supreme Court
where findings of fact are generally conclusive and binding.
10
The essential ingredient of indirect bribery as defined in Article 211 of the
Page
Revised Penal Code 10 is that the public officer concerned must have
accepted the gift or material consideration. There must be a clear
intention on the part of the public officer to take the gift so offered and
consider the same as his own property from then on, such as putting
away the gift for safekeeping or pocketing the same. Mere physical
receipt unaccompanied by any other sign, circumstance or act to show
such acceptance is not sufficient to lead the court to conclude that the
crime of indirect bribery has been committed. To hold otherwise will
encourage unscrupulous individuals to frame up public officers by simply
putting within their physical custody some gift, money or other property.
Did the petitioner accept the supposed bribe money?
The Sandiganbayan noted that the photographs of the entrapment show
that the petitioner was accosted by the PC soldiers after she accepted the
marked money. Against the evidence of the pro petition that the money
was handed to petitioner by Mrs. Mutia under the table is the assertion
of petitioner that it was when she stood up that Mrs. Mutia suddenly
placed something in her hand which she did not know to be money and
when she saw that it was money she threw it away. 11 An examination of
the seven photographs that were allegedly taken immediately after the
passing of the money shows that the petitioner was standing up when
the PC agents apprehended her. This corroborates petitioner's story.
There was no picture showing petitioner to be seated which should be
her position immediately after the money was handed to her under the
table, which should be the case according to the version of the
prosecution.12 None of the photographs show the petitioner in the
process of appropriating or keeping the money after it was handed to her.
Two of the seven photographs that were taken outside the canteen
appear to be of no relevance to the operation.
As the petitioner was admittedly handed the money, this explains why
she was positive for ultra-violet powder. It is possible that she intended
to keep the supposed bribe money or may have had no intention to
accept the same. These possibilities exist but We are not certain.
However, what is revealing is that Mrs. Sevilla and Mrs. Dimaano were
present around the table in the canteen with the petitioner and Mrs.
Mutia when the latter allegedly handed the money to the petitioner.
There were other persons in the premises like the PC agents whose
Identities petitioner possibly did not know. Under the circumstances and
in such a public place it is not probable that petitioner would have the
nerve to accept bribe money from Mrs. Mutia even under the table. If the
petitioner knew and was prepared to accept the money from Mrs. Mutia
at the canteen, the petitioner would not have invited her officemate Mrs.
Sevilla to join them. Mrs. Sevilla stated she did not see the alleged passing
of the money. She could not have seen the money as it was passed on
under the table or when, as petitioner said it was quickly placed in her
hand when she stood up. What Mrs. Sevilla is sure of is that when they
were about to leave the canteen, two (2) men approached petitioner, one
of whom took pictures, and the petitioner shouted at Mrs. Mutia, "What
are you trying to do to me?" 13 The reaction of petitioner is far from one
with a guilty conscience.
Moral certainty, not absolute certainty, is needed to support a judgment
of conviction, Moral certainty is a certainty that convinces and satisfies
the reason and conscience of those who are to act upon a given
matter. 14 Without this standard of certainty, it may not be said that the
guilt of the accused in a criminal proceeding has been proved beyond
reasonable doubt.
With all these circumstances taken into account altogether, We are left
at a loss as to the guilt of the accused. Overlooked by the Sandiganbayan,
these facts and circumstances make out a good case for the petitioner.
Accordingly, the Court holds that the guilt of the petitioner in Criminal
Case No. 9634 has not been proved beyond reasonable doubt. She is,
therefore, entitled to an acquittal.
WHEREFORE, in view of the foregoing, the Decision of the Sandiganbayan
in Criminal Case No. 9634 is hereby SET ASIDE. The petitioner Leonor
Formilleza is hereby ACQUITTED on the basis of reasonable doubt. We
make no pronouncement as to costs. This Decision is immediately
executory.
SO ORDERED.
G.R. No. 165835 June 22, 2005
MAJOR GENERAL CARLOS F. GARCIA VS SANDIGANBAYAN
TINGA, J.:
Petitioner Major General Carlos F. Garcia was the Deputy Chief of Staff
for Comptrollership, J6, of the Armed Forces of the Philippines. Petitioner
filed this Petition for certiorari and prohibition under Rule 65 to annul
and set aside public respondent Sandiganbayans Resolution[1] dated 29
October 2004 and Writ of Preliminary Attachment[2] dated 2 November
2004, and to enjoin public respondents Sandiganbayan and Office of the
Ombudsman from further proceeding with any action relating to the
enforcement of the assailed issuances.
On 27 September 2004, Atty. Maria Olivia Elena A. Roxas, Graft
Investigation and Prosecution Officer II of the Field Investigation Office of
the Office of the Ombudsman, after due investigation, filed a complaint
against petitioner with public respondent Office of the Ombudsman, for
violation of Sec. 8, in relation to Sec. 11 of Republic Act (R.A.) No.
6713,[3] violation of Art. 183 of the Revised Penal Code, and violation of
Section 52 (A)(1), (3) and (20) of the Civil Service Law. Based on this
complaint, a case for Violations of R.A. No. 1379,[4] Art. 183 of the Revised
Penal Code, and Sec. 8 in relation to Sec. 11 of R.A. No. 6713, docketed
as Case
No. OMB-P-C-04-1132-I, was filed against petitioner.[5] Petitioners wife
Clarita Depakakibo Garcia, and their three sons, Ian Carl, Juan Paolo and
Timothy Mark, all surnamed Garcia, were impleaded in the complaint for
violation of R.A. No. 1379 insofar as they acted as conspirators, conduits,
dummies and fronts of petitioner in receiving, accumulating, using and
disposing of his ill-gotten wealth.
On the same day, 27 October 2004, the Republic of the Philippines, acting
through public respondent Office of the Ombudsman, filed before the
Sandiganbayan, a Petition with Verified Urgent Ex Parte Application for
the Issuance of a Writ of Preliminary Attachment[6] against petitioner, his
wife, and three sons, seeking the forfeiture of unlawfully acquired
properties under Sec. 2 of R.A. No. 1379, as amended. The petition was
docketed as Civil Case No. 0193, entitled Republic of the Philippines vs.
Maj. Gen. Carlos F. Garcia, et al. It was alleged that the Office of the
Ombudsman, after conducting an inquiry similar to a preliminary
investigation in criminal cases, has determined that a prima facie case
exists against Maj. Gen. Garcia and the other respondents therein who
hold such properties for, with, or on behalf of, Maj. Gen. Garcia, since
during his incumbency as a soldier and public officer he acquired huge
amounts of money and properties manifestly out of proportion to his
salary as such public officer and his other lawful income, if any.[7]
Acting on the Republics prayer for issuance of a writ of preliminary
attachment, the Sandiganbayan issued the
questioned Resolution granting the relief prayed for. The corresponding
writ of preliminary attachment was subsequently issued on 2 November
2004 upon the filing of a bond by the Republic. On 17 November 2004,
petitioner (as respondent a quo) filed a Motion to Dismiss[8] in Civil Case
No. 0193 on the ground of lack of jurisdiction of the Sandiganbayan over
forfeiture proceedings under R.A. No. 1379. On even date, petitioner filed
the present Petition, raising the same issue of lack jurisdiction on the part
of the Sandiganbayan.
Petitioner argues in this Petition that the Sandiganbayan is without
jurisdiction over the civil action for forfeiture of unlawfully acquired
properties under R.A. No. 1379, maintaining that such jurisdiction
actually resides in the Regional Trial Courts as provided under Sec. 2[9] of
the law, and that the jurisdiction of the Sandiganbayan in civil actions
pertains only to separate actions for recovery of unlawfully acquired
11
property against President Marcos, his family, and cronies as can be
gleaned from Sec. 4 of Presidential Decree (P.D.) No. 1606,[10] as
Page
amended, and Executive Orders (E.O.) Nos. 14[11] and 14-A.[12]
Theorizing that the Sandiganbayan, under P.D. No. 1606 or the law
creating it, was intended principally as a criminal court, with no
jurisdiction over separate civil actions, petitioner points to President
Corazon C. Aquinos issuances after the EDSA Revolution, namely: (1) E.O.
No. 1 creating the Presidential Commission on Good Government (PCGG)
for the recovery of ill-gotten wealth amassed by President Ferdinand E.
Marcos, his family and cronies, (2) E.O. No. 14 which amended P.D. No.
1606 and R.A. No. 1379 by transferring to the Sandiganbayan jurisdiction
over civil actions filed against President Marcos, his family and cronies
based on R.A. No. 1379, the Civil Code and other existing laws, and (3)
E.O. No. 14-A whch further amended E.O. No. 14, P.D. No. 1606 and R.A.
No. 1379 by providing that the civil action under R.A. No. 1379 which may
be filed against President Marcos, his family and cronies, may proceed
independently of the criminal action.
Petitioner gathers from the presidential issuances that the
Sandiganbayan has been granted jurisdiction only over the separate civil
actions filed against President Marcos, his family and cronies, regardless
of whether these civil actions were for recovery of unlawfully acquired
property under R.A. No. 1379 or for restitution, reparation of damages or
indemnification for consequential damages or other civil actions under
the Civil Code or other existing laws. According to petitioner, nowhere in
the amendments to P.D. No. 1606 and R.A. No. 1379 does it provide that
the Sandiganbayan has been vested jurisdiction over separate civil
actions other than those filed against President Marcos, his family and
cronies.[13] Hence, the Sandiganbayan has no jurisdiction over any
separate civil action against him, even if such separate civil action is for
recovery of unlawfully acquired property under R.A. No. 1379.
Petitioner further contends that in any event, the petition for forfeiture
filed against him is fatally defective for failing to comply with the
jurisdictional requirements under Sec. 2, R.A. No. 1379, [14] namely: (a) an
inquiry similar to a preliminary investigation conducted by the
prosecution arm of the government; (b) a certification to the Solicitor
General that there is reasonable ground to believe that there has been
violation of the said law and that respondent is guilty thereof; and (c) an
action filed by the Solicitor General on behalf of the Republic of the
Philippines.[15] He argues that only informations for perjury were filed
and there has been no information filed against him for violation of R.A.
No. 1379. Consequently, he maintains, it is impossible for the Office of
the Ombudsman to certify that there is reasonable ground to believe that
a violation of the said law had been committed and that he is guilty
thereof. The petition is also supposedly bereft of the required
certification which should be made by the investigating City or Provincial
Fiscal (now Prosecutor) to the Solicitor General. Furthermore, he opines
that it should have been the Office of the Solicitor General which filed the
petition and not the Office of the Ombudsman as in this case. The petition
being fatally defective, the same should have been dismissed, petitioner
concludes.
In their Comment,[16] respondents submit the contrary, noting that the
issues raised by petitioner are not novel as these have been settled
in Republic vs. Sandiganbayan[17] which categorically ruled that there is
no issue that jurisdiction over violations of [R.A.] Nos. 3019 and 1379 now
rests with the Sandiganbayan.[18] Respondents argue that under the
Constitution[19] and prevailing statutes, the Sandiganbayan is vested with
authority and jurisdiction over the petition for forfeiture under R.A. No.
1379 filed against petitioner. Respondents point to Sec. 4.a (1) (d) of P.D.
1606, as amended, as the prevailing law on the jurisdiction of
the Sandiganbayan, thus:
Sec. 4. Jurisdiction.The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise
known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379,
and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code,
where one or more of the accused are officials occupying the following
positions in the government, whether in a permanent, acting or interim
capacity, at the time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of regional
director and higher, otherwise classified as Grade 27 and higher of the
Compensation and Position Classification Act of 1989 (Republic Act No.
6758), specifically including:
(d) Philippine army and air force colonels, naval captains, and all officers
of higher ranks;
As petitioner falls squarely under the category of public positions covered
by the aforestated law, the petition for forfeiture should be within the
jurisdiction of the Sandiganbayan.
Respondents also brush off as inconsequential petitioners argument that
the petition for forfeiture is civil in nature and the Sandiganbayan, having
allegedly no jurisdiction over civil actions, therefore has no jurisdiction
over the petition, since the same P.D. No. 1606 encompasses all cases
involving violations of R.A. No. 3019, irrespective of whether these cases
are civil or criminal in nature. The petition for forfeiture should not be
confused with the cases initiated and prosecuted by the PCGG pursuant
to E.O. Nos. 14 and 14-A, as these are dealt with under a separate
subparagraph of P.D. No. 1606, as amended, in particular Sec. 4.c
thereof.[20] Further, respondents stress that E.O. Nos. 14 and 14-A
exclusively apply to actions for recovery of unlawfully acquired property
against President Marcos, his family, and cronies. It would also not be
accurate to refer to a petition for forfeiture as a civil case, since it has
been held that petitions for forfeiture are deemed criminal or penal and
that it is only the proceeding for its prosecution which is civil in nature.[21]
The Office of the Ombudsman filed a separate Comment,[22] likewise
relying on Republic v. Sandiganbayan to argue that the Sandiganbayan
has jurisdiction over the petition for forfeiture filed against petitioner.
The Ombudsman explains that the grant to the Sandiganbayan of
jurisdiction over violations of R.A. No. 1379 did not change even under
the amendments of
R.A. No. 7975[23] and R.A. No. 8294[24], although it came to be limited to
cases involving high-ranking public officials as enumerated therein,
including Philippine army and air force colonels, naval captains, and all
other officers of higher rank, to which petitioner belongs.[25]
In arguing that it has authority to investigate and initiate forfeiture
proceedings against petitioner, the Office of the Ombudsman refers to
both the Constitution[26] and R.A. No. 6770.[27] The constitutional power
of investigation of the Office of the Ombudsman is plenary and
unqualified; its power to investigate any act of a public official or
employee which appears to be illegal, unjust, improper or inefficient
covers the unlawful acquisition of wealth by public officials as defined
under R.A. No. 1379. Furthermore, Sec. 15 (11)[28] of R.A. No. 6770
expressly empowers the Ombudsman to investigate and prosecute such
cases of unlawful acquisition of wealth. This authority of the Ombudsman
has been affirmed also in Republic vs. Sandiganbayan.[29]
The Office of the Ombudsman then refutes petitioners allegation that the
petition for forfeiture filed against him failed to comply with the
procedural and formal requirements under the law. It asserts that all the
requirements of R.A. No. 1379 have been strictly complied with. An
inquiry similar to a preliminary investigation was conducted by a
Prosecution Officer of the Office of the Ombudsman. The participation of
the Office of the Solicitor General, claimed by petitioner to be necessary,
is actually no longer required since the Office of the Ombudsman is
endowed with the authority to investigate and prosecute the case as
discussed above.[30]
In addition, the Office of the Ombudsman alleges that the
present Petition should be dismissed for blatant forum-shopping. Even as
petitioner had filed a Motion to Dismiss as regards the petition for
forfeiture (docketed as Civil Case No. 0193) before the Sandiganbayan on
the ground of the Sandiganbayans alleged lack of jurisdiction, he filed the
instant Petition raising exactly the same issue, even though the Motion to
Dismiss in Civil Case No. 0193 is still pending resolution. Worse, it appears
that the Motion to Dismiss and the instant Petition were filed on the
same day, 17 November 2004.
Petitioner refutes these arguments in his Reply[31] and enunciates that
the Sandiganbayans criminal jurisdiction is separate and distinct from its
12
civil jurisdiction, and that the Sandiganbayans jurisdiction over forfeiture
cases had been removed without subsequent amendments expressly
Page
restoring such civil jurisdiction. His thesis is that R.A. No. 1379 is a special
law which is primarily civil and remedial in nature, the clear intent of
which is to separate the prima facie determination in forfeiture
proceedings from the litigation of the civil action. This intent is further
demonstrated by Sec. 2 of R.A. No. 1379 which grants the authority to
make an inquiry similar to a preliminary investigation being done by the
City or Provincial Fiscal, and the authority to file a petition for forfeiture
to the Solicitor General.
Petitioner also points out in his Reply[32] to the Comment of the Office of
the Ombudsman, that the use of the phrase violations of [R.A.] Nos. 3019
and 1379 in P.D. No. 1606, as amended, implies jurisdiction over cases
which are principally criminal or penal in nature because the concept of
violation of certain laws necessarily carries with it the concept of
imposition of penalties for such violation. Hence, when reference was
made to violations of [R.A.] Nos. 3019 and 1379, the only jurisdiction that
can supposedly be implied is criminal jurisdiction, not civil jurisdiction,
thereby highlighting respondent Sandiganbayans lack of jurisdiction over
the civil case for forfeiture of ill-gotten wealth. Of course, petitioner does
not rule out cases where the crime carries with it the corresponding civil
liability such that when the criminal action is instituted, the civil action
for enforcement of the civil liability is impliedly instituted with it, and the
court having jurisdiction over the criminal action also acquires jurisdiction
over the ancillary civil action. However, petitioner argues that the action
for forfeiture subject of this case is not the ancillary civil action impliedly
instituted with the criminal action. Rather, the petition for forfeiture is an
independent civil action over which the Sandiganbayan has no
jurisdiction. Petitioner points to P.D. No. 1606, as amended, which treats
of independent civil actions only in the last paragraph of Sec. 4 thereof:
Any provisions of law or Rules of Court to the contrary notwithstanding,
the criminal action and the corresponding civil action for the recovery of
civil liability shall at all times be simultaneously instituted with, and jointly
determined in, the same proceeding by the Sandiganbayan or the
appropriate courts, the filing of the criminal action being deemed to
necessarily carry with it the filing of the civil action, and no right to
reserve the filing of such civil action separately from the criminal action
shall be recognized: Provided, however, That where the civil action had
heretofore been filed separately but judgment therein has not yet been
rendered, and the criminal case is hereafter filed with the Sandiganbayan
or the appropriate court, said civil action shall be transferred to the
Sandiganbayan or the appropriate court, as the case may be, for
consolidation and joint determination with the criminal action, otherwise
the separate civil action shall be deemed abandoned.
Petitioner however did not raise any argument to refute the charge of
forum-shopping.
The issues for resolution are: (a) whether the Sandiganbayan has
jurisdiction over petitions for forfeiture under R.A. No. 1379; (b) whether
the Office of the Ombudsman has the authority to investigate, initiate
and prosecute such petitions for forfeiture; and (c) whether petitioner is
guilty of forum-shopping.
The petition is patently without merit. It should be dismissed.
The seminal decision of Republic v. Sandiganbayan[33] squarely rules on
the issues raised by petitioner concerning the jurisdiction of the
Sandiganbayan and the authority of the Office of the Ombudsman. After
reviewing the legislative history of the Sandiganbayan and the Office of
the Ombudsman, the Court therein resolved the question of jurisdiction
by the Sandiganbayan over violations of R.A. No. 3019 and R.A. No. 1379.
Originally, it was the Solicitor General who was authorized to initiate
forfeiture proceedings before the then Court of First Instance of the city
or province where the public officer or employee resides or holds office,
pursuant to Sec. 2 of R.A. No. 1379. Upon the creation of the
Sandiganbayan pursuant to P.D. No. 1486,[34] original and exclusive
jurisdiction over such violations was vested in the said court.[35] P.D. No.
1606[36] was later issued expressly repealing P.D. No. 1486, as well as
modifying the jurisdiction of the Sandiganbayan by removing its
jurisdiction over civil actions brought in connection with crimes within
the exclusive jurisdiction of said court.[37] Such civil actions removed from
the jurisdiction of the Sandigabayan include those for restitution or
reparation of damages, recovery of instruments and effects of the crime,
civil actions under Articles 32 and 34 of the Civil Code, and forfeiture
proceedings provided for under R.A. No. 1379.[38]
Subsequently, Batas Pambansa Blg. 129[39] abolished the concurrent
jurisdiction of the Sandiganbayan and the regular courts and expanded
the exclusive original jurisdiction of the Sandiganbayan over the offenses
enumerated in Sec. 4 of P.D. No. 1606 to embrace all such offenses
irrespective of the imposable penalty. Since this change resulted in the
proliferation of the filing of cases before the Sandiganbayan where the
offense charged is punishable by a penalty not higher than prision
correccional or its equivalent, and such cases not being of a serious
nature, P.D. No. 1606 was again amended by P.D. No. 1860[40] and
eventually by P.D. No. 1861.[41]
On the foregoing premises alone, the Court in Republic v.
Sandiganbayan, deduced that jurisdiction over violations of R.A. No.
3019 and 1379 is lodged with the Sandiganbayan.[42] It could not have
taken into consideration R.A. No. 7975[43] and R.A. No. 8249[44] since both
statutes which also amended the jurisdiction of the Sandiganbayan were
not yet enacted at the time. The subsequent enactments only serve to
buttress the conclusion that the Sandiganbayan indeed has jurisdiction
over violations of R.A. No. 1379.
Under R.A. No. 8249, the Sandiganbayan is vested with exclusive original
jurisdiction in all cases involving violations of R.A. No. 3019, R.A. No.
1379, and Chapter II, Sec. 2, Title VII, Book II of the Revised Penal Code,
where one or more of the accused are officials occupying the following
positions whether in a permanent, acting or interim capacity, at the time
of the commission of the offense: (1) Officials of the executive branch
occupying the positions of regional director and higher, otherwise
classified as Grade '27' and higher, of the Compensation and Position
Classification Act of 989 (R.A. No. 6758), specifically including: (a)
Provincial governors, vice-governors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors, engineers, and other
city department heads; (b) City mayor, vice-mayors, members of the
sangguniang panlungsod, city treasurers, assessors, engineers, and other
city department heads; (c) Officials of the diplomatic service occupying
the position of consul and higher; (d) Philippine army and air force
colonels, naval captains, and all officers of higher rank; (e) Officers of the
Philippine National Police while occupying the position of provincial
director and those holding the rank of senior superintended or higher; (f)
City and provincial prosecutors and their assistants, and officials and
prosecutors in the Office of the Ombudsman and special prosecutor; (g)
Presidents, directors or trustees, or managers of government-owned or
controlled corporations, state universities or educational institutions or
foundations; (2) Members of Congress and officials thereof classified as
Grade '27' and up under the Compensation and Position Classification Act
of 1989; (3) Members of the judiciary without prejudice to the provisions
of the Constitution; (4) Chairmen and members of Constitutional
Commission, without prejudice to the provisions of the Constitution; and
(5) All other national and local officials classified as Grade '27' and higher
under the Compensation and Position Classification Act of 1989.[45]
In the face of the prevailing jurisprudence and the present state of
statutory law on the jurisdiction of the Sandiganbayan, petitioners
argumentthat the Sandiganbayan has no jurisdiction over the petition for
forfeiture it being civil in nature and the Sandiganbayan allegedly having
no jurisdiction over civil actionscollapses completely.
The civil nature of an action for forfeiture was first recognized in Republic
v. Sandiganbayan, thus: [T]he rule is settled that forfeiture proceedings
are actions in rem and, therefore, civil in nature.[46] Then, Almeda, Sr.
v. Perez,[47] followed, holding that the proceedings under R.A. No. 1379
do not terminate in the imposition of a penalty but merely in the
forfeiture of the properties illegally acquired in favor of the State. It
noted that the
procedure outlined in the law leading to forfeiture is that provided for in
a civil action.[48]
However, the Court has had occasion to rule that forfeiture of illegally
acquired property partakes the nature of a penalty. In Cabal v. Kapunan,
13
Jr.,[49] the Court cited voluminous authorities in support of its declaration
of the criminal or penal nature of forfeiture proceedings, viz:
Page
In a strict signification, a forfeiture is a divestiture of property without
compensation, in consequence of a default or an offense, and the term is
used in such a sense in this article. A forfeiture, as thus defined, is
imposed by way of punishment not by the mere convention of the
parties, but by the lawmaking power, to insure a prescribed course of
conduct. It is a method deemed necessary by the legislature to restrain
the commission of an offense and to aid in the prevention of such an
offense. The effect of such a forfeiture is to transfer the title to the
specific thing from the owner to the sovereign power. (23 Am. Jur. 599)
"In Black's Law Dictionary a 'forfeiture' is defined to be 'the incurring of a
liability to pay a definite sum of money as the consequence of violating
the provisions of some statute or refusal to comply with some
requirement of law.' It may be said to be a penalty imposed for
misconduct or breach of duty.'" (Com. vs. French, 114 S.W. 255.)
. public officer or employee has acquired during his incumbency an
"Generally speaking, informations for the forfeiture of goods that seek no
judgment of fine or imprisonment against any person are deemed to be
civil proceedings in rem. Such proceedings are criminal in nature to the
extent that where the person using the res illegally is the owner of rightful
possessor of it the forfeiture proceeding is in the nature of a punishment.
They have been held to be so far in the nature of
criminal proceedings that a general verdict on several counts in an
information is upheld if one count is good. According to the authorities
such proceedings, where the owner of the property appears, are so far
considered as quasicriminal proceedings as to relieve the owner from
being a witness against himself and to prevent the compulsory
production of his books and papers. . . ." (23 Am. Jur. 612)
. even more obvious when we consider that the respondent in such
Proceedings for forfeitures are generally considered to be civil and in the
nature of proceedings in rem. The statute providing that no judgment or
other proceedings in civil causes shall be arrested or reversed for any
defect or want of form is applicable to them. In some aspects, however,
suits for penalties and forfeitures are of quasi-criminal nature and within
the reason of criminal proceedings for all the purposes of . . . that portion
of the Fifth Amendment which declares that no person shall be
compelled in any criminal case to be a witness against himself. The
proceeding is one against the owner, as well as against the goods; for it
is his breach of the laws which has to be proved to establish the forfeiture
and his property is sought to be forfeited." (15 Am. Jur., Sec. 104, p.
368)[50]
Cabal v. Kapunan modified the earlier ruling in Almeda, Sr. v.
Perez.[51] The Court in Cabal held that the doctrine laid down
in Almeda refers to the purely procedural aspect of the forfeiture
proceedings and has no bearing on the substantial rights of respondents,
particularly their constitutional right against self-incrimination.[52] This
was reaffirmed and reiterated in
Republic v. Agoncillo[53] and Katigbak v. Solicitor General.[54]
The Sandiganbayan is vested with jurisdiction over violations of R.A. No.
1379, entitled An Act Declaring Forfeiture In Favor of the State Any
Property Found to Have Been Unlawfully Acquired By Any Public Officer
or Employee and Providing For the Proceedings Therefor. What acts
would constitute a violation of such a law? A reading of R.A. No. 1379
establishes that it does not enumerate any prohibited acts the
commission of which would necessitate the imposition of a penalty.
Instead, it provides the procedure for forfeiture to be followed in case a
amount of property manifestly out of proportion to his salary as such
public officer or employee and to his lawful income and income from
legitimately acquired property.[55] Section 12[56] of the law provides a
penalty but it is only imposed upon the public officer or employee who
transfers or conveys the unlawfully acquired property; it does not
penalize the officer or employee for making the unlawful acquisition. In
effect, as observed in Almeda, Sr. v. Perez, it imposes the penalty of
forfeiture of the properties unlawfully acquired upon the respondent
public officer or employee.[57]
It is logically congruent, therefore, that violations of R.A. No. 1379 are
placed under the jurisdiction of the Sandiganbayan, even though the
proceeding is civil in nature, since the forfeiture of the illegally acquired
property amounts to a penalty. The soundness of this reasoning becomes
forfeiture proceedings is a public officer or employee and the violation of
R.A. No. 1379 was committed during the respondent officer or employees
incumbency and in relation to his office. This is in line with the purpose
behind the creation of the Sandiganbayan as an anti-graft courtto address
the urgent problem of dishonesty in public service.[58]
Following the same analysis, petitioner should therefore abandon his
erroneous belief that the Sandiganbayan has jurisdiction only over
petitions for forfeiture filed against President Marcos, his family and
cronies.
We come then to the question of authority of the Office of the
Ombudsman to investigate, file and
prosecute petitions for forfeiture under R.A. No. 1379. This was the main
issue resolved in Republic v. Sandiganbayan.[59]
Under Sec. 2 of R.A. No. 1379, it was the Solicitor General who was
authorized to initiate forfeiture proceedings before the then Courts of
First Instance. P.D. No. Decree No. 1486 was later issued on 11 June 1978
vesting the Sandiganbayan with jurisdiction over R.A. No. 1379 forfeiture
proceedings. Sec. 12 of P.D. No. 1486 gave the Chief Special Prosecutor
the authority to file and prosecute forfeiture cases. This may be taken as
an implied repeal by P.D. No. 1486 of the jurisdiction of the former Courts
of First Instance and the authority of the Solicitor General to file a petition
for forfeiture under Sec. 2 of R.A. No. 1379 by transferring said
jurisdiction and authority to the Sandiganbayan and the Chief Special
Prosecutor, respectively.[60] An implied repeal is one which takes place
when a new law contains some provisions which are contrary to, but do
not expressly repeal those of a former law.[61] As a rule, repeals by
implication are not favored and will not be so declared unless it be
manifest that the legislature so intended. Before such repeal is deemed
to exist, it must be shown that the statutes or statutory provisions deal
with the same subject matter and that the latter be inconsistent with the
former. The language used in the latter statute must be such as to render
it irreconcilable with what had been formerly enacted. An inconsistency
that falls short of that standard does not suffice. What is needed is a
manifest indication of the legislative purpose to repeal.[62]
P.D. No. 1486 contains a repealing clause which provides that [A]ny
provision of law, order, rule or regulation inconsistent with the provisions
of this Decree is hereby repealed or modified accordingly.[63] This is not
an express repealing clause because it fails to identify or designate the
statutes that are intended to be repealed. Rather, it is a clause which
predicates the intended repeal upon the condition that a substantial
conflict must be found in existing and prior laws.[64]
The conflict between P.D. No. 1486 and R.A. No. 1379 refers to the
jurisdiction over the forfeiture proceeding and the authority to file the
petition for forfeiture. As P.D. No. 1486 grants exclusive jurisdiction and
authority to the Sandiganbayan and the Chief Special Prosecutor, the
then Courts of First Instance and Solicitor General cannot exercise
concurrent jurisdiction or authority over such cases. Hence, P.D. No. 1486
and Sec. 2, R.A. No. 1379 are inconsistent with each other and the former
should be deemed to have repealed the latter.
On 11 June 1978, the same day that P.D. No. 1486 was enacted, P.D. No.
1487[65] creating the Office of the Ombudsman (then known as the
Tanodbayan) was passed. The Tanodbayan initially had no authority to
prosecute cases falling within the jurisdiction of the Sandiganbayan as
provided in Sec. 4 of P.D. No. 1486, such jurisdiction being vested in the
Chief Special Prosecutor as earlier mentioned.
14
On 10 December 1978, P.D. No. 1606 was enacted expressly repealing
Page
P.D. No. 1486. Issued on the same date was P.D. No. 1607[66] which
amended the powers of the Tanodbayan to investigate administrative
complaints[67] and created the Office of the Chief Special
Prosecutor.[68]P.D. No. 1607 provided said Office of the Chief Special
Prosecutor with exclusive authority to conduct preliminary investigation
of all cases cognizable by the Sandiganbayan, file informations therefor,
and direct and control the prosecution of said cases.[69] P.D. No. 1607 also
removed from the Chief Special Prosecutor the authority to file actions
for forfeiture under R.A. No. 1379.[70]
The rule is that when a law which expressly repeals a prior law is itself
repealed, the law first repealed shall not be thereby revived unless
expressly so provided. From this it may fairly be inferred that the old rule
continues in force where a law which repeals a prior law, not expressly
but by implication, is itself repealed; and that in such cases the repeal of
the repealing law revives the prior law, unless the language of the
repealing statute provides otherwise.[71] Hence, the repeal of P.D. No.
1486 by P.D. No. 1606 necessarily revived the authority of the Solicitor
General to file a petition for forfeiture under R.A. No. 1379, but not the
jurisdiction of the Courts of First Instance over the case nor the authority
of the Provincial or City Fiscals (now Prosecutors) to conduct the
preliminary investigation therefore, since said powers at that time
remained in the Sandiganbayan and the Chief Special Prosecutor.[72]
The Tanodbayans authority was further expanded by P.D. No.
1630[73] issued on 18 July 1990. Among other things, the Tanodbayan was
given the exclusive authority to conduct preliminary investigation of all
cases cognizable by the Sandiganbayan, to file informations therefore
and to direct and control the prosecution of said cases.[74] The power to
conduct the necessary investigation and to file and prosecute the
corresponding criminal and administrative cases before the
Sandiganbayan or the proper court or administrative agency against any
public personnel who has acted in a manner warranting criminal and
disciplinary action or proceedings was also transferred from the Chief
Special Prosecutor to the Tanodbayan.[75]
Thereafter, P.D. No. 1606 was amended by P.D. Nos. 1860 and
1861[76] which granted the Tanodbayan the same authority. The present
Constitution was subsequently ratified and then the Tanodbayan became
known as the Office of the Special Prosecutor which continued to exercise
its powers except those conferred on the Office of the Ombudsman
created under the Constitution.[77] The Office of the Ombudsman was
officially created under R.A. No. 6770.[78]
At present, the powers of the Ombudsman, as defined by R.A. No. 6770,
corollary to Sec. 13, Art. XI of the Constitution, include the authority,
among others, to:
(1) Investigate and prosecute on its own or on complaint by any person,
any act or omission of any public officer or employee, office or agency,
when such act or omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this primary jurisdiction, may take
over, at any stage, from any investigatory agency of Government, the
investigation of such cases;[79]
(11) Investigate and initiate the proper action for the recovery of ill-
gotten and/or unexplained wealth amassed after 25 February 1986 and
the prosecution of the parties involved therein.[80]
Ostensibly, it is the Ombudsman who should file the petition for
forfeiture under R.A. No. 1379. However, the Ombudsmans exercise of
the correlative powers to investigate and initiate the proper action for
recovery of ill-gotten and/or unexplained wealth is restricted only to
cases for the recovery of ill-gotten and/or unexplained wealth
amassed after 25 February 1986.[81] As regards such wealth accumulated
on or before said date, the Ombudsman is without authority to
commence before the Sandiganbayan such forfeiture actionsince the
authority to file forfeiture proceedings on or before 25 February 1986
belongs to the Solicitor Generalalthough he has the authority to
investigate such cases for forfeiture even before 25 February 1986,
pursuant to the Ombudsmans general investigatory power under Sec. 15
(1) of R.A. No. 6770.[82]
It is obvious then that respondent Office of the Ombudsman acted well
within its authority in conducting the investigation of petitioners illegally
acquired assets and in filing the petition for forfeiture against him. The
contention that the procedural requirements under Sec. 2 of R.A. No.
1379 were not complied with no longer deserve consideration in view of
the foregoing discussion.
Now to the charge that petitioner is guilty of forum-shopping. Forum-
shopping is manifest whenever a party repetitively avail[s] of several
judicial remedies in different courts, simultaneously or successively, all
substantially founded on the same transactions and the same essential
facts and circumstances, and all raising substantially the same issues
either pending in, or already resolved adversely by, some other
court.[83] It has also been defined as an act of a party against whom an
adverse judgment has been rendered in one forum of seeking and
possibly getting a favorable opinion in another forum, other than by
appeal or the special civil action of certiorari, or the institution of two or
more actions or proceedings grounded on the same cause on the
supposition that one or the other court would make a favorable
disposition.[84] Considered a pernicious evil, it adversely affects the
efficient administration of justice since it clogs the court dockets, unduly
burdens the financial and human resources of the judiciary, and trifles
with and mocks judicial processes.[85] Willful and deliberate forum-
shopping is a ground for summary dismissal of the complaint or initiatory
pleading with prejudice and constitutes direct contempt of court, as well
as a cause for administrative sanctions, which may both be resolved and
imposed in the same case where the forum-shopping is found.[86]
There is ample reason to hold that petitioner is guilty of forum-shopping.
The present petition was filed accompanied by the requisite Verification
and Certification Against Forum Shopping[87] in which petitioner made
the following representation:
3.] As Petitioner, I have not heretofore commenced any other action or
proceeding in the Supreme Court, the Court of Appeals, or any other
tribunal or agency, involving the same issues as that in the above-
captioned case.
4.] To the best of my knowledge, no such action or proceeding is pending
in the Supreme Court, the Court of Appeals, or any other tribunal or
agency.
5.] If I should hereafter learn that such proceeding has been commenced
or is pending before the Supreme Court, the Court of Appeals, or any
other tribunal or agency, I undertake to report that fact to this Honorable
Court within five (5) days from knowledge thereof.
However, petitioner failed to inform the Court that he had filed a Motion
to Dismiss[88] in relation to the petition for forfeiture before the
Sandiganbayan. The existence of this motion was only brought to the
attention of this Court by respondent Office of the Ombudsman in
its Comment. A scrutiny of the Motion to Dismiss reveals that petitioner
raised substantially the same issues and prayed for the same reliefs
therein as it has in the instant petition. In fact, the Arguments and
Discussion[89] in the Petition of petitioners thesis that the Sandiganbayan
has no jurisdiction over separate civil actions for forfeiture of unlawfully
acquired properties appears to be wholly lifted from the Motion to
Dismiss. The only difference between the two is that in
the Petition, petitioner raises the ground of failure of the petition for
forfeiture to comply with the procedural requirements of R.A. No. 1379,
and petitioner prays for the annulment of the
Sandiganbayans Resolution dated 29 October 2004 and Writ of
Preliminary Attachment dated 2 November 2004. Nevertheless, these
differences are only superficial. Both Petition and Motion to Dismiss have
the same intent of dismissing the case for forfeiture filed against
petitioner, his wife and their sons. It is undeniable that petitioner had
failed to fulfill his undertaking. This is incontestably forum-shopping
which is reason enough to dismiss the petition outright, without
prejudice to the taking of appropriate action against the counsel and
party concerned.[90] The brazenness of this attempt at forum-shopping is
even demonstrated by the fact that both the Petition and Motion to
Dismiss were filed on the same day, 17 November 2004. Petitioner should
have waited for the resolution of his Motion to Dismiss before resorting
15
to the petition at hand.
Page
Petitioners counsel of record, Atty. Constantino B. De Jesus, needs to be
reminded that his primary duty is to assist the courts in the
administration of justice. As an officer of the court, his duties to the court
are more significant and important than his obligations to his clients. Any
conduct which tends to delay, impede or obstruct the administration
thereof contravenes his oath of office.[91] Atty. De Jesus failed to accord
due regard, as he must, the tenets of the legal profession and the mission
of our courts of justice. For this, he should be penalized. Penalties
imposed upon lawyers who engaged in forum-shopping range from
severe censure to suspension from the practice of law.[92] In the instant
case, we deem the imposition of a fine in the amount of P20,000.00 to be
sufficient to make Atty. De Jesus realize the seriousness of his naked
abuse of the judicial process.
WHEREFORE, in view of the foregoing, the Petition is DISMISSED. Atty.
Constantino B. De Jesus is DECLARED in CONTEMPT of this Court and
meted a fine of Twenty Thousand Pesos (P20,000.00) to be paid within
ten (10) days from the finality of this Decision. Costs against petitioner.
SO ORDERED.
(3) A.M. No. P-1597 March 1, 1978
EXECUTIVE JUDGE OSCAR R. VICTORIANO, CFI NEGROS
OCCIDENTAL, complainant, vs. ABRAHAM B. ALVIOR, CLERK III, OFFICE
OF THE CLERK OF COURT, CFI NEGROS OCCIDENTAL,respondent.
MAKASIAR, J.:
This is an administrative charge against Abraham B. Alvior, Clerk III,
Administrative Staff, Office of the Clerk of Court, CFI Negros Occidental
(hereinafter, referred to as respondent) for dishonesty, neglect of duty,
and misconduct in office, which was initiated by Executive Judge Oscar R.
Victoriano, CFI Negros Occidental (hereinafter referred to as
complainant) in a memorandum dated December 8, 1976.
The records of this case reveal that:
On July 28, 1976, upon instruction of Atty. Aquiles G. Java, officer-in-
charge of the Office of the Clerk of Court, Court of First Instance of Negros
Occidental, respondent prepared and signed Requisition and Issue
Voucher (RIV) No. 443, requisitioning various office supplies for use of the
administrative staff of the Court of First Instance. Said voucher, which
was presented to and approved by Atty. Aquiles G. Java, was thereafter
filed with the Office of the Provincial Canvass Committee. The latter body
failed to act immediately on the matter due to the absence of a complete
description opposite the items. As per testimony of Nelson Villaroza,
Rural Development Technician of the Provincial Barangay Secretariat
assigned to the Provincial Canvass Committee with specific duty to
examine items or articles delivered as to quantity, quality, specifications
and prices thereof, when RIV 443 was delivered to his office in July, 1976,
he could not take any action thereon as there was no specification of the
items in the voucher. Villaroza thereupon informed respondent through
a certain Mr. Caponpon of the omissions. Villaroza further declared that
someone got back the voucher for respondent sometime in the second
week of October, and that subsequently, the said voucher was brought
back to him (Villaroza) on October 19, 1976 by one Genaro Garbanzos,
duly accomplished, together with the different requests for quotations
already fined up, namely: request for quotation for Gella & Sons, for
Lopue's Mercantile Company, for Ernado Commercial, and for Twin
Supply.
After confirming the fact of delivery of the items covered by subject
requisition voucher by Ernado Commerce and the signing of the Abstract
Quotation of Price, an inspection was made, and it was discovered that
the 100 bundles of braided abaca twine (item No. 4) were overpriced at
P12.00 per unit; and that as a result, Atty. Java was directed to inquire
from the office of the Provincial Governor how such overpricing could
have been sanctioned by the Provincial Canvass Committee.
Accordingly, the civil security unit of the office of the pro. provincial
Governor of Negros Occidental conducted an investigation and
submitted its written report dated November 22, 1976, finding that a
possible substitution of inferior quality abaca twine may have been
effected by Genaro Garbanzos (a representative or middleman of Ernado
Commercial, in whose favor the award was made), and requesting
appropriate action with respect to herein respondent, who connived with
the former (Genaro Garbanzos) in the commission of the fraud.
On the basis of the abovementioned report, Executive Judge Oscar R.
Victorians, CFI Negros Occidental in a memorandum dated December 8,
1976, initiated an administrative charge against respondent for
dishonesty, neglect of duty and mis-conduct in office, giving him a period
of five (5) days from receipt within which to show cause in writing why
he should not be disciplined for his involvement in the transaction, with
option to have a formal administrative investigation. Respondent filed a
written answer and requested for a formal administrative hearing, which
Judge Victoriano conducted from January 17 until March 1, 1977.
In his answer, respondent denied having had any participation in the
canvass of prices of the items covered by such requisition and issue
voucher, claiming that it is the duty of the Provincial Canvass Committee
to determine the reasonableness of the prices; that the abaca twine
delivered by Garbanzos and accepted by him conformed to the
specification in RIV 443 which he submitted and with a sample he had
presented to Garbanzos before the delivery, and hence, there was no
substitution; that all the items were first inspected and accepted by the
representative of the Commission on Audit before they were received by
him; and that the charge of his having received P 200.00 Garbanzos is
absolutely false.
Investigation by Judge Victoriano revealed that Genaro Garbanzos
manipulated the canvass to insure that Ernado Commercial which he
represented would be declared the lowest bidder. Garbanzos admitted
that respondent gave him the requisition and issue voucher after his
assistance was requested together with the blank forms of the requests
for quotations asking him to make the canvass of prices. He then placed
the prices of the various items on the request for quotation for Ernado
Commercial and signed it in behalf of Ernado Commercial. He asked for
the prices of the items from Lopue's Mercantile Company which he
placed on the request for quotation and had it signed by one of the
salesgirls. He did the same thing with respect to the request for quotation
of Gella & Sons. After filling up the requests for quotation, he left them
on the table of Villaroza. Villaroza declared along the same lines, stating
that on the third week of October, 1976 the requisition and issue voucher
was returned to his office by Garbanzos with some of the items already
complete with specifications and attached thereto were the requests for
quotations of Lopue's Mercantile Company, Gella & Sons, Twin Supply,
and Ernado Commercial, as well as the abstract of quotation of prices. He
affixed his initial on the requests for quotations for Gella & Sons and
Lopue's Mercantile Company and on the abstract of quotations which
would indicate that the prices were exact and reasonable for the items
although the presence of his initials did not mean that he was the one
who had canvassed the prices of the various items. Ramonito Padilla, also
a member of the Provincial Canvass Committee as representative of the
Provincial Governor, declared that the requests for quotations were
referred to him by Villaroza, after which he called respondent Alvior who
allegedly informed him that he was the one who had made the canvass.
Relying on respondent Alvior, who explained to him that the requisition
was urgently needed, he (Padilla) directed Villaroza to scrutinize the
prices based on previous quotations on file in the office. As the canvass
was allegedly done by respondent who represented the requisitioner, a
member of the Provincial Committee on Canvass, and considering that
according to respondent the items had already been delivered, he
(Padilla) decided to affix his signature on the request for quotations as
well as on the abstract of quotations.
Investigation further revealed that Ramon Mayoga, Assistant Chief of
Division, Office of the Provincial Auditor, stated that between 11:00 and
12:00 o'clock in the morning of October 25, 1976. Garbanzos requested
him to inspect the items covered by RIV 443. The requisition and issue
voucher, the requests for quotations, the certificate of acceptance, the
abstract of bids on quotation of prices and taxpayer's certificate were
16
presented to him, and on the basis of these documents, he inspected the
items in the Office of the Clerk of Court in the presence of respondent
Page
Alvior and Genaro Garbanzos and found them to be in order as to
specifications, quality and quantity. He then certified on the requisition
and issue voucher and on the invoice of Ernado Commercial that the
items had been inspected as shown by the stamp mark duly initialed by
him. The same stamp mark appears on the certificate of acceptance
signed by respondent Alvior. He did not, however, check on the
reasonableness or the propriety of the prices as he claims that this was
the duty of the Provincial Canvass Committee, After the delivery of the
items, Garbanzos prepared the provincial voucher for the amount of
P4,128.00 in payment of the supplies delivered by Ernado Commerce duly
approved by Branch Clerk of Court Antonio Pura, since at that time the
officer- in-charge, Atty. Aquiles G. Java, was in Manila.
Considering the foregoing findings of facts, Judge Victoriano made the
following conclusions and recommendations:
1. There is no clear nor direct evidence of collusion or connivance
between Genaro Garbanzos and respondent Abraham Alvior or Ramonito
Padilla and Nelson Villaroza of the Provincial Canvass Committee or
Ramon Mayoga of the office of the Provincial Auditor in the overpricing
of the abaca twine from which Garbanzos admittedly obtained an
"overprice" of P800.00 on that item alone;
2. There was definite laxity bordering on negligence on the part of the
Provincial Canvass Committee of Negros Occidental, particularly
Ramonito Padilla as representative of the Provincial Government nor,
and Nelson Villaroza, detailed as Canvasser, and Ramon Mayoga,
Assistant Division Chief, Office of the Provincial Auditor of Negros
Occidental with duty to inspect deliveries of supplies, which made
possible and/or facilitated the subject "overpricing" of the abaca twine.
It is recommended that a copy of this report be authorized by the
Supreme Court to be furnished the Provincial Governor and the Provincial
Auditor of Negros Occidental for such remedial and disciplinary measures
they may doom proper to take warranted by the circumstances.
3. Respondent Abraham Alvior was likewise negligent or neglectful of
duty to a lesser degree in soliciting the assistance of Genaro Garbanzos,
a private person having no official connection with the provincial
government, and who represented a competing bidder or supplier, to
facilitate or expected approval of the requisition, and in accepting
delivery of the abaca twine notwithstanding he was chargeable with
knowledge that the price of the article was excessive or exorbitant. He is
also chargeable with misconduct in office for having received money from
Genaro Garbanzos as token of gratitude in connection with performance
of official duty. The charge of dishonesty is not borne out by the evidence.
Considering that evidence is wanting that he connived with Garbanzos in
the overpricing of the subject abaca twine and that he may have been
impelled only by a desire to expedite early approval and acquisition of
the supplies subject of the requisition urgently needed by the office of
the Clerk of Court, and considering that this is the first instance of official
misfeasance or malfeasance incurred by respondent who has thus far
been in the government service for fifteen (15) years, it is believed — and
the undersigned so recommends — that a penalty of suspension for thirty
(30) days without pay would be sufficient with admonition that in the
future he should observe greater care and prudence in the discharge of
his official duties.
4. With respect to Genaro Garbanzos and Ernado Commercial, it is
recommended that they be permanently debarred from transacting
business with the provincial government in the matter of procurement of
supplies and materials, without prejudice to considering the possible
prosecution of Genaro Garbanzos under existing law for fraudulent and
illegal acts committed by him (pp. 23-26, rec.).
WE agree with the findings of Judge Victoriano but not without
modification. Indeed, the overpricing of the abaca twine by Garbanzos
could not have been perpetrated were it not for the laxity or negligence
of the Provincial Canvass Committee, particularly Ramonito Padilla and
Nelson Villaroza. This is apparent from Section 13 of Presidential Decree
No. 526 which makes it incumbent on members of the Canvass
Committee to personally undertake the canvass of prices. The procedure
observed by Garbanzos, therefore, was not only highly irregular but
clearly contrary to law.
Respondent Alvior's responsibility, however, is more serious than mere
negligence. Respondent herein should be held liable for gross neglect of
duty notwithstanding that the evidence is wanting as to direct
connivance between him and Garbanzos. This is also a clear case of
misconduct in office as well as dishonesty, which warrant a criminal
prosecution for indirect bribery under Article 211 of the Revised Penal
Code.
Anent respondent's gross neglect of duty, even as arguendo that
respondent had no. actual participation in the canvass and thus, had
nothing to do with the manipulation of the price quotations effected by
Garbanzos, there is not a scintilla of doubt that it was not proper for him
(respondent Alvior) as requisitioner to have solicited the assistance of
Garbanzos to facilitate the approval of the requisition, thereby affording
the latter the opportunity to manipulate the prices to insure that Ernado
Commercial, which he represented, would be declared the lowest bidder.
Moreover, respondent Alvior perused the requests for quotations and
even signed the abstract of bids which admittedly showed the prices of
the items as awarded to Ernado Commercial. He could not have failed to
notice that the unit price of the abaca twine described as "big" was
patently excessive at P12.00 per unit for each bundle of the braided type,
which he actually received. He could not have shut his eyes to the reality
that is the apparent overpricing of the abaca twine on the mere excuse
that the primary responsibility for determination of the reasonableness
of the price lies with the Canvass Committee. Respondent could have
either refused acceptance of the items, or at the very least, he could have
called the attention of either the Provincial Auditor or the Canvass
Committee, His failure to resort to either manifested not the slightest
concern for the interests of the government.
The charge against respondent Alvior for misconduct in office for having
received money, in connection with the performance of his official duty,
from Garbanzos, as token of the latter's gratitude, is clearly meritorious.
Respondent's acceptance of money under the circumstances is a
dishonest act. In his report. after conducting the investigation (pp. 21-
22), Judge Victoriano stated:
... That he was chargeable with knowledge that Garbanzos would realize
no little profit from the transaction must also be assumed. For Garbanzos
declared under oath that he gave respondent P200.00 in token of his
gratitude. He was grateful because respondent gave him the opportunity
to make such a big profit when requested to help facilitate or expedite
the requisition. Or, probably because respondent did not make any fuss
regarding the price of the abaca twine. At any rate, it was improper for
respondent to have received any gift or any amount from Garbanzos in
connection with the performance of official duties. Respondent
vehemently insists that no credit should be accorded Garbanzos'
testimony on this score. But the record shows no plausible reason or
motive why Garbanzos would wittingly make such imputation against
respondent if it were not true, considering that in the course of his
testimony he also made damaging admissions against himself. The
suggestion that Garbanzos tried to implicate respondent in an attempt to
save himself can hardly merit credence. For, as already adverted to, his
having admitted giving sums of money as part of his "rapport", not only
to respondent but also to Villaroza and Mayoga, equally implicate him
and places him in a bad light. There is no evidence of misunderstanding,
previous altercation, or differences between respondent and Garbanzos
as to constitute sufficient motive for the latter to incriminate him. On the
contrary, Garbanzos gave the amount to respondent impelled by a feeling
of gratitude for him.
Being a public officer, and having accepted a gift in the form of money
which was offered to him by reason of his office, herein respondent Alvior
17
is chargeable with indirect bribery punishable under Article 211 of the
Revised Penal Code. The fact that the evidence is wanting as to direct
Page
connivance between Alvior and Garbanzos is of no moment since in
indirect bribery "it is not necessary that the officer should do any
particular act or even promise to do an act, as it is enough that he accepts
gifts offered to him by reason of his office" (See: L.B. Reyes, The Revised
Penal Code, Book II [Rev. Ed. 1971], p. 309; emphasis supplied).
WHEREFORE, RESPONDENT ABRAHAM B. ALVIOR IS HEREBY DISMISSED
FROM THE SERVICE WITH FORFEITURE OF ALL RETIREMENT PRIVILEGES
AND WITH PREJUDICE TO RE- INSTATEMENT IN THE NATIONAL AND
LOCAL GOVERNMENT AS WELL AS IN ANY GOVERNMENT
INSTRUMENTALITY OR AGENCY INCLUDING GOVERNMENT-OWNED OR
CONTROLLED CORPORATIONS.
A COPY OF THIS DECISION IS LIKEWISE HEREBY FURNISHED:
(A) THE OFFICE OF THE PROVINCIAL FISCAL FOR FURTHER INVESTIGATION
REGARDING THE CRIMINAL PROSECUTION OF RESPONDENT ALVIOR FOR
INDIRECT BRIBERY;
(B) THE HONORABLE PROVINCIAL GOVERNOR AS WELL AS THE
PROVINCIAL AUDITOR, PROVINCE OF NEGROS OCCIDENTAL, FOR
WHATEVER REMEDIAL AND DISCIPLINARY MEASURES THEY MAY DEEM
PROPER TO TAKE UNDER THE CIRCUMSTANCES; AND
(C) THE RECORDS SECTION TO BE ENTERED IN THE 201 FILE OF
RESPONDENT ABRAHAM B. ALVIOR.
SO ORDERED.
Castro, CJ., Fernando, Teehankee, Barredo, Antonio, Muñoz Palma,
Aquino, Concepcion, Jr., Santos, Fernandez, and Guerrero, JJ., concur.
Art. 212- Corruption of Public Officials
RA 3019 see also RA6173 and RA 1379
(1) G.R. Nos. 61776 to 61861, March 23, 1984
REYNALDO R. BAYOT, Petitioner, v. SANDIGANBAYAN (SECOND
DIVISION) and PEOPLE OF THE PHILIPPINES, Respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; EX POST FACTO LAW;
LAWS PROVIDING FOR SUSPENSION FROM OFFICE OF PUBLIC OFFICERS
PENDING TRIAL, NOT IN VIOLATION OF CONSTITUTION. — There is no
merit in petitioner’s contention that Section 13 of Republic Act 3019, as
amended by Batas Pambansa Blg. 195, which includes the crime of Estafa
thru Falsification of Public Document as among the crimes subjecting the
public officer charged therewith with suspension from office pending
action in court, is a penal provision which violates the constitutional
prohibition against the enactment of ex post facto law.
2. CRIMINAL LAW; CRIMES COMMITTED BY PUBLIC OFFICERS;
SUSPENSION FROM OFFICE PENDING TRIAL; APPLICABILITY THEREOF TO
ANY OFFICE WHICH THE OFFICER CHARGED MAY BE HOLDING CASE AT
BAR. — The claim of petitioner that he cannot be suspended because he
is presently occupying a position different from that under which he is
charged is untenable. The amendatory provision clearly states that any
incumbent public officer against whom any criminal prosecution under a
valid information under Republic Act 3019 or for any offense involving
fraud upon the government or public funds or property whether as a
simple or as a complex offense and in whatever stage of execution and
mode of participation, is pending in court, shall be suspended from office.
Thus, by the use of the word "office" the same applies to any office which
the officer charged may be holding, and not only the particular office
under which he was charged.
DECISION
RELOVA, J.:
Petitioner Reynaldo R. Bayot is one of the several persons accused in
more than one hundred (100) counts of Estafa thru Falsification of Public
Documents before the Sandiganbayan. The said charges stemmed from
his alleged involvement, as a government auditor of the Commission on
Audit assigned to the Ministry of Education and Culture, together with
some officers/employees of the said Ministry, the Bureau of Treasury and
the Teacher’s Camp in Baguio City, in the preparation and encashment of
fictitious TCAA checks for non-existent obligations of the Teacher’s Camp
resulting in damage to the government of several million pesos. The first
thirty-two (32) cases were filed on July 25, 1978.
In the meantime, petitioner ran for the post of municipal mayor of
Amadeo, Cavite in the local elections held in January 1980. He was
elected.
On May 30, 1980, the Sandiganbayan promulgated a decision convicting
herein petitioner and some of his co-accused in all but one of the thirty-
two (32) cases filed against them. Whereupon, appeals were taken to this
Court and the cases are now pending review in G.R. Nos. L-54645-76.
However, on March 16, 1982, Batas Pambansa Blg. 195 was passed
amending, among others, Section 13 of Republic Act No. 3019. The said
section, as amended, reads —
"Sec. 13. Suspension of and Loss of Benefits. — Any incumbent public
officer against whom any criminal prosecution under a valid information
under this Act or under Title 7, Book II of the Revised Penal Code or for
any offense involving fraud upon government or public funds or property
whether as a simple or as a complex offense and in whatever stage of
execution and mode of participation, is pending in court, shall be
suspended from office. Should he be convicted by final judgment he shall
lose all retirement or gratuity benefits under any law, but if acquitted, he
shall be entitled to reinstatement and to the salaries and benefits which
he failed to receive during suspension, unless in the meantime
administrative proceedings had been filed against him."cralaw virtua1aw
library
Thereafter, in other cases pending before the respondent court in which
herein petitioner is one of the accused, the prosecution filed a motion to
suspend all the accused-public officers pendente lite from their
respective offices or any other public office which they may be occupying
pending trial of their cases.chanrobles.com.ph : virtual law library
On July 22, 1982, respondent court issued an order directing the
suspension of all the accused including herein petitioner "from their
public positions or from any other public office that they may be holding
. . ." (p. 26, Rollo).
Herein petitioner filed a motion for reconsideration alleging that "to
apply the provision of Batas Pambansa Blg. 195 to the herein accused
would be violative of the constitutional guarantee of protection against
an ex post facto law" (p. 28, Rollo). The motion was denied by respondent
court in a resolution dated September 6, 1982. Hence, this petition for
certiorari.
It is the submission of petitioner that respondent court acted without
jurisdiction or in excess of jurisdiction amounting to lack of jurisdiction or
with grave abuse of discretion in suspending petitioner from office as
Mayor of Amadeo, Cavite, pendente lite because —
1. Republic Act 3019, otherwise known as the Anti-Graft and
Corrupt Practices Act, as amended by Batas Pambansa Blg. 195, is a penal
statute in which case the provision of said Act must be strictly construed
in favor of the accused and against the State;
2. A close perusal of Batas Pambansa Blg. 195, as well as the
proceedings therein of the Batas Pambansa is absent of the legislative
intent to have said Batas Pambansa Blg. 195 applied retroactively;
3. In the supposition that Batas Pambansa Blg. 195 is to be applied
retroactively, its application would violate the Constitutional provision
against enactment of ex post facto law; and,
18
4. Petitioner cannot be suspended to the position of which he was
Page
duly elected by the people of Amadeo, Cavite, based on an act which has
nothing to do with his present position.

We find no merit in petitioner’s contention that Section 13 of Republic
Act 3019, as amended by Batas Pambansa Blg. 195, which includes the
crime of Estafa thru Falsification of Public Document as among the crimes
subjecting the public officer charged therewith with suspension from
office pending action in court, is a penal provision which violates the
constitutional prohibition against the enactment of ex post facto law.
Paragraph 3 of Article 24 of the Revised Penal Code clearly states that
suspension from the employment or public office during the trial or in
order to institute proceedings shall not be considered as penalty. It is not
a penalty because it is not imposed as a result of judicial proceedings. In
fact, if acquitted, the official concerned shall be entitled to reinstatement
and to the salaries and benefits which he failed to receive during
suspension. Those mentioned in paragraph Nos. 1, 3 and 4 of said Article
24 are merely preventive measures before final judgment. Not being a
penal provision, therefore, the suspension from office, pending trial, of
the public officer charged with crimes mentioned in the amendatory
provision committed before its effectivity does not violate the
constitutional provision on ex post facto law. Further, the claim of
petitioner that he cannot be suspended because he is presently
occupying a position different from that under which he is charged is
untenable. The amendatory provision clearly states that any incumbent
public officer against whom any criminal prosecution under a valid
information under Republic Act 3019 or for any offense involving fraud
upon the government or public funds or property whether as a simple or
as a complex offense and in whatever stage of execution and mode of
participation, is pending in court, shall be suspended from office. Thus,
by the use of the word "office" the same applies to any office which the
officer charged may be holding, and not only the particular office under
which he was charged.
ACCORDINGLY, instant petition for certiorari is hereby DISMISSED for lack
of merit.
SO ORDERED.
(2) G.R. No. 86899-903 May 15, 1989
GOVERNOR AMOR D. DELOSO, petitioner, vs THE SANDIGANBAYAN,
THE PEOPLE OF THE PHILIPPINES, and THE SECRETARY OF THE
DEPARTMENT OF LOCAL GOVERNMENT AND COMMUNITY
DEVELOPMENT, respondents.
GUTIERREZ, JR., J.:
This petition for certiorari seeks to annul and set aside the resolution of
the Sandiganbayan dated February 10, 1989 in Criminal Cases Nos. 9200
to 9204 which preventively suspended petitioner Amor D. Deloso
(accused in the criminal cases) pendente lite from his position as
provincial governor of Zambales and from any office that he may be
holding.
The petitioner was the duly elected mayor of Botolan, Zambales in the
local elections of November 1971. While he occupied the position of
mayor, a certain Juan Villanueva filed a letter complaint with the
Tanodbayan accusing him of having committed acts in violation of the
Anti-Graft Law (Republic Act 3019) in relation to the award of licenses to
operate fish corrals in the municipal waters of Botolan, Zambales during
the period 1976 to 1978 and the issuance of five (5) tractors of the
municipality to certain individuals allegedly without any agreement as to
the payment of rentals.
The complaint with respect to the award of licenses to operate fish
corrals was dismissed. As regards the other complaint, the Tanodbayan
filed five (5) separate informations, all dated May 30, 1984 accusing the
petitioner of violation of Section 3(e), of the Anti-Graft Law with the
Sandiganbayan. The cases were docketed as Criminal Cases Nos. 9200-
9204. Except for the names of the individuals who were allegedly favored
by the petitioner and the dates when these favors were made, the
informations uniformly alleged:
That on or about 3 February 1978 in the Municipality of Botolan,
Zambales, Philippines and within the jurisdiction of this Honorable Court,
accused AMOR D. DELOSO, a public officer being then the Municipal
Mayor of the Municipality of Botolan, Zambales, taking advantage of his
public and official position, did then and there wilfully, unlawfully and
feloniously give unwarranted benefits to Daniel Ferrer thru manifest
partiality and evident bad faith in the discharge of his official functions by
issuing to him a tractor purchased by the Municipality of Botolan thru a
loan financed by the Land Bank of the Philippines for lease to local
farmers at reasonable cost, without any agreement as to the payment of
rentals for the use of tractor by Daniel Ferrer thereby causing undue
injury to the Municipality of Botolan. (Rollo, p. 30)
A motion to quash the informations was denied by the Sandiganbayan. A
motion for reconsideration was likewise denied.
The petitioner then filed a petition before us (G.R. Nos. 69963-67) to
annul the Sandiganbayan's resolutions denying the petitioner's motion to
quash and motion for reconsideration.
In a resolution dated July 28,1988, we dismissed the petition for lack of
merit. The resolution became final and executory on October 17, 1988.
The petitioner was arraigned on January 6, 1989 before the
Sandiganbayan. He pleaded NOT GUILTY to the charges against him.
The Office of the Special Prosecutor then filed a motion to suspend the
petitioner pendente lite pursuant to Section 13 of Republic Act No. 3019.
On February 10, 1989, the Sandiganbayan issued the questioned
resolution, the dispositive portion of which reads:
IN VIEW OF THE FOREGOING, the accused Amor D. Deloso is
suspended pendente lite from his position as Provincial Governor of
Zambales and from any other office that he may now be holding.
Let a copy of this Resolution be furnished to the Secretary of the
Department of Local Government for implementation and for him to
inform this Court of the action he has taken thereon within five (5) days
from receipt hereof. (Rollo, p. 94)
The day following his receipt of the resolution, or on February 16, 1989,
the petitioner filed the instant petition.
On February 17, 1989, the petitioner filed an urgent motion with the
Sandiganbayan requesting that the execution and implementation of the
February 10, 1989 suspension order be held in abeyance pending
determination of the merits of the petition. The motion was denied
prompting the petitioner to ask the Court for an earlier setting of the trial
of the cases which was denied in an order dated February 22, 1989.
In denying the plea for an earlier schedule of the trial of the cases, the
Sandiganbayan said:
The Court notes that these cases have already been set for May 15, 16
and 17 as well as June 5, 6 and 7, 1989 at 8:00 o'clock in the morning and
2:00 o'clock in the afternoon. While the accused claims that this period is
ordinately far, the Court must also be contend with its own calendar. It
will be easy enough for this Court to give the accused an earlier setting.
However, such a setting will be best a pretence since other cases have
already been set between now and May 15 where in many instances the
accused themselves are also under suspension by reason of the same
provision of law. Under the above circumstances, no other earlier setting
can be granted to the accused without making that setting merely a sham
since other cases which have been set earlier will naturally have a right
to expect priority. (Rollo, p. 135)
19
In view of this development, the petitioner filed an urgent supplemental
Page
application for temporary restraining order and/ or writ of preliminary
injunction to enjoin the Sandiganbayan, the Secretary of Local
Government and Community Development, and all those acting in their
behalf from executing and implementing the February 10, 1989
resolution of the Sandiganbayan.
We treat the respondent's Comment as an answer and decide this
petition on its merits.
The petitioner questions the constitutionality of the suspension provision
of Section 13 of the Anti-Graft Law (Republic Act No. 3019).
This same issue was raised in the case of Layno v. Sandiganbayan (136
SCRA 536 [1985]). After considering the facts as well as the merits of the
case, the Court ruled that the petition need not be resolved through a
ruling on the validity of the provision on mandatory suspension. We
instead, decided the case in relation to the principles of due process and
equal protection of the law.
Faced with similar factual circumstances in the instant petition, we apply
anew the ruling in the Layno case and decide the instant petition in
relation to the principles of due process and equal protection without
having to declare categorically whether or not the suspension provision
of Republic Act 3019 should be struck down as invalid. We limit ourselves
to ascertaining whether or not, under the circumstances of this case, an
indefinite suspension becomes unreasonable.
As early as 1974, then Justice Fred Ruiz Castro expressed in a separate
opinion the mischief which would result if the Court allows the indefinite
suspension of elective local officials charged with violations of the Anti
Graft and Corrupt Practices Act:
The central point of Senator Padilla's position is that the penalty of
suspension is definitely much lower than that of removal and it would be
incongruous if we give to the penalty of suspension more serious
consequences than are attached to the penalty of removal. Senator
Padilla opted for the immediate restoration of the respondent to his
position once the favorable result of the election is known.
Parenthetically, it must be stated that while there was an exchange of
views between Senator Ganzon and Senator Manglapus on the Anti-Graft
Law, the exchange was limited to the matter of the commencement of
the investigation of the charges, which, according to Senator Ganzon,
cannot be made within one year prior to an election.
And so it is that, on the basis of my discussion above, I bewail the apathy
of the majority of the Court toward efforts to seek enlightenment on legal
issues of grave importance from the deliberations of Congress upon the
said issues. It is not quite becoming of judicial magistrates to shunt aside
a suggestion that the interplay of legal provisions be carefully studied and
analyzed.
In the deliberations of the Court on this case, I suggested that we examine
the possible delimiting effects of the provisions of the first sentence of
section 5 of the Decentralization Act on the provisions of the Anti-Graft
and Corrupt Practices Act insofar as the suspension from office of an
elective local official is concerned. In no uncertain words did I focus the
attention of the Court on the serious ever-present possibility of
harassment of an elective local official taking the form of the filing of a
valid information against him under the provisions of the Anti-Graft and
Corrupt Practices Act after his exoneration in an administrative case
involving the same offense.
I also pointedly brought out the matter of the notorious delay in the
courts of justice which could effectively frustrate an elected or re-elected
local official from discharging the duties of his office for the entire term
of his office, and thus nullify the will of the people who elected him. I
likewise asked the Court to consider the situation where an elective local
official runs for the National Assembly and is elected despite the fact that
he is under suspension under the authority of the provisions of the Anti-
Graft and Corrupt Practices Act, and sought a definitive answer to the
question. What then would happen to the suspension meted out to him
since it is the National Assembly that determines whether he should
assume and continue in office?
All these and other germane questions were brushed aside by the
majority of the Court with the sweeping statement that the provisions of
the Decentralization Act apply only to administrative cases. It is the ex
cathedra attitude, this kind of slothful thinking, that I find abhorrent and
therefore deplore " (Oliveros v. Villaluz, 57 SCRA 163, 197-198 [1974])
Petitioner Deloso was elected governor of the Province of Zambales in
the January 18, 1988 local elections. The regular term of a governor is
only 3 years although he shall serve until noon of June 30, 1992 by special
provision of the Constitution. (Section 8, Article X, Section 2, Article XVIII,
Constitution). He was, however, ordered suspended from performing his
duties as governor by the Sandiganbayan pursuant to Section 13 of
Republic Act No. 3019 by virtue of the criminal charges filed against him.
The order of suspension does not have a definite period so that the
petitioner may be suspended for the rest of his term of office unless his
case is terminated sooner. An extended suspension is a distinct possibility
considering that the Sandiganbayan denied the petitioner's plea for
earlier dates of trial of his cases on the ground that there are other cases
set earlier which have a right to expect priority.
Under these circumstances the preventive suspension which initially may
be justified becomes unreasonable thus raising a due process question.
As we ruled in Layno, Sr. v. Sandiganbayan, (supra):
Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur. His
term of office does not expire until 1986. Were it not for this information
and the suspension decreed by the Sandiganbayan according to the Anti-
Graft and Corrupt Practices Act, he would have been all this while in the
full discharge of his functions as such municipal mayor. He was elected
precisely to do so. As of October 26, 1983, he has been unable to. It is a
basic assumption of the electoral process implicit in the right of suffrage
that the people are entitled to the services of elective officials of their
choice. For misfeasance or malfeasance, any of them could, of course, be
proceeded against administratively or, as in this instance, criminally. In
either case, his culpability must be established. Moreover, if there be a
criminal action, he is entitled to the constitutional presumption of
innocence. A preventive suspension may be justified. Its continuance,
however, for an unreasonable length of time raises a due process
question. For even if thereafter he were acquitted, in the meanwhile his
right to hold office had been nullified. Clearly, there would be in such a
case an injustice suffered by him. Nor is he the only victim. There is
injustice inflicted likewise on the people of Lianga. They were deprived of
the services of the man they had elected to serve as mayor. In that sense,
to paraphrase Justice Cardozo, the protracted continuance of this
preventive suspension had outrun the bounds of reason and resulted in
sheer oppression. A denial of due process is thus quite manifest. It is to
avoid such an unconstitutional application that the order of suspension
should be lifted.
Moreover, in the earlier case of Garcia v. The Executive Secretary, (6 SCRA
1 [1962]) we ruled on the issue as to whether the preventive suspension
beyond the maximum period of 60 days, provided in Section 35 of the
Civil Service Act of 1959 (Republic Act 2260) is illegal and void. Paulino
Garcia, the petitioner in the cited case was the Chairman of the National
Science Development Board appointed by the President of the
Philippines. He was charged with electioneering and dishonesty in office.
Pending investigation of the administrative charges against him, he was
suspended by the Executive Secretary by authority of the President. In
view of his indefinite suspension, he filed a petition praying in effect that
the 60-day period prescribed in the Civil Service Law for preventive
suspension having already expired, he be reinstated in the service
pursuant to Section 35 of the said Act. The respondents opposed the
petition on the ground that the petitioner was a presidential appointee
and therefore not covered by the 60-day preventive suspension limit
under Section 35 of the then Civil Service Act. The respondents
20
maintained that the petitioner could be indefinitely suspended. In ruling
in favor of the petitioner, the Court stated:
Page
To adopt the theory of respondents that an officer appointed by the
President, facing administrative charges can be preventively suspended
indefinitely, would be to countenance a situation where the preventive
suspension can, in effect, be the penalty itself without a finding of guilt
after due hearing, contrary to the express mandate of the Constitution
(No officer or employee in the Civil Service shall be removed or
suspended except for cause as provided by law. [Art. XII, Sec. 4,
Constitution of the Philippines]) and the Civil Service Law (No officer or
employee in the Civil Service shall be removed or suspended except for
cause as provided by law and after due process). ... In the guise of a
preventive suspension, his term of office could be shortened and he
could, in effect, be removed without a finding of a cause duly established
after due hearing, in violation of the Constitution ... (at pp. 8-9)
The question that now arises is whether or not the ruling in the Garcia
case where the suspension was ordered by no less than the President of
the Philippines is applicable to an elective official facing criminal charges
under the Anti-Graft Law and suspended under Section 13, thereof.
The guarantee to an equal protection of the law necessitates the
application of the ruling in the Garcia v. Executive Secretary. Thus, we
explained in the Layno case, to wit:
... If the case against petitioner Layno were administrative in character
the Local Government Code would be applicable. It is therein clearly
provided that while preventive suspension is allowable for the causes
therein enumerated, there is this emphatic limitation on the duration
thereof; 'In all cases, preventive suspension shall not extend beyond sixty
days after the start of said suspension.' (Batas Pambansa Blg. 337, Section
63 (2), last sentence. The first sentence reads as follows: 'Preventive
suspension may be imposed at any time after the issues are joined, when
there is reasonable ground to believe that the respondent has committed
the act or acts complained of, when the evidence of culpability is strong,
when the gravity of the offense so warrants, or when the continuance in
office of the respondent influence the witnesses or pose a threat to the
safety and integrity of the records and other evidence'). It may be recalled
that the principle against indefinite suspension applies equally to national
government officials. So it was held in the leading case of Garcia v. Hon.
Secretary (116 Phil. 348 [1962]). According to the opinion of Justice
Barrera: 'To adopt the theory of respondents that an officer appointed by
the President, facing administrative charges, can be preventively
suspended indefinitely, would be to countenance a situation where the
preventive suspension can, in effect, be the penalty itself without a
finding of guilt after due hearing, contrary to the express mandate of the
Constitution and the Civil Service Law.' (Ibid. 351-352) Further: 'In the
guise of a preventive suspension, his term of office could be shortened
and he could in effect, be removed without a finding of a cause duly
established after due hearing, in violation of the Constitution.' (Ibid. 352)
Clearly then, the policy of the law mandated by the Constitution frowns
at a suspension of indefinite duration. In this particular case, the mere
fact that petitioner is facing a charge under the Anti-Graft and Corrupt
Practices Act does not justify a different rule of law. To do so would be to
negate the safeguard of the equal protection guarantee. (at p. 542)
The application of the Garcia injunction against preventive suspensions
for an unreasonable period of time applies with greater force to elective
officials and especially to the petitioner whose term is a relatively short
one. The interests of the sovereign electorate and the province of
Zambales cannot be subordinated to the heavy case load of the
Sandiganbayan and of this Court.
It would be most unfair to the people of Zambales who elected the
petitioner to the highest provincial office in their command if they are
deprived of his services for an indefinite period with the termination of
his case possibly extending beyond his entire term simply because the big
number of sequestration, ill-gotten wealth, murder, malversation of
public finds and other more serious offenses plus incidents and
resolutions that may be brought to the Supreme Court prevents the
expedited determination of his innocence or guilt.
The order dated February 10, 1989 suspending the petitioner without a
definite period can not be sanctioned. We rule that henceforth a
preventive suspension of an elective public officer under Section 13 of
Republic Act 3019 should be limited to the ninety (90) days under Section
42 of Presidential Decree No. 807, the Civil Service Decree, which period
also appears reasonable and appropriate under the circumstances of this
case.
The petitioner also questions the applicability of Section 13 of Republic
Act 3019 as amended by Batasan Pambansa Blg. 192 to him. He opines
that the suspension provision as amended which qualifies the public
officer as incumbent does not apply to him since he is now occupying the
position of governor and not mayor, the position wherein he was charged
under the Anti-Graft Law.
This argument is untenable. The issue was settled in the case of Bayot v.
Sandiganbayan (128 SCRA 383 (1984), in this wise:
... Further, the claim of petitioner that he cannot be suspended because
he is presently occupying a position different from that under which he is
charged is untenable. The amendatory provision clearly states that any
incumbent public officer against whom any criminal prosecution under a
valid information under Republic Act 3019 or for any offense involving
fraud upon the government or public funds or property whether as a
simple or as a complex offense and in whatever stage or execution and
mode of participation, is pending in court, shall be suspended from office.
Thus, by the use of the word office the same applies to any office which
the officer charged may be holding, and not only the particular office
under which he was charged.
One last point. Should the purposes behind preventive suspensions such
as preventing the abuse of the prerogatives of the office, intimidation of
witnesses, etc., become manifest, the respondent court is not bereft of
remedies or sanctions. The petitioner may still be suspended but for
specifically expressed reasons and not from an automatic application of
Section 13 of the Anti-Graft and Corrupt Practices Act.
WHEREFORE, the instant petition is GRANTED. The preventive suspension
imposed on petitioner Amor D. Deloso by virtue of the February 10, 1989
resolution of the Sandiganbayan should be limited to only ninety (90)
days after which Deloso will assume once again the functions of governor
of Zambales, without prejudice to the continuation of the trial of the
pending cases against him in the Sandiganbayan. This decision is
immediately executory. No costs.
SO ORDERED.
(3) G.R. No. 129913 September 26, 1997
DINDO C. RIOS, petitioner, vs. THE SECOND DIVISION OF THE
SANDIGANBAYAN, THE PEOPLE OF THE PHILIPPINES, THE DEPARTMENT
OF INTERIOR AND LOCAL GOVERNMENT, and THE PROVINCIAL
GOVERNOR OF ROMBLON, respondents.
ROMERO, J.:
This is a petition for certiorari to set aside the resolution of the
Sandiganbayan, dated March 24, 1997, granting the motion of the Office
of the Special Prosecutor (OSP) to suspend petitioner Dindo C.
Rios pendente lite, and its resolution dated June 25, 1997 denying his
Motion for Reconsideration.
On March 6, 1996, an information was filed against petitioner who is the
incumbent Mayor of the Municipality of San Fernando, Romblon for
alleged unauthorized disposition of confiscated lumber, in violation of
Republic Act No. 3019, otherwise known as Anti-Graft and Corrupt
Practices Act. The information alleged:
That on or about May 16, 1994, in San Fernando, Romblon, and within
the jurisdiction of this Honorable Court, the above named accused, a
21
public officer, . . . while in the performance and taking advantage of his
official functions, and with evident bad faith, did then and there willfully,
Page
unlawfully and criminally cause the disposition of confiscated, assorted
and sawn tanguile lumber consisting of 1,319 pieces without proper
authority therefor, thus, causing undue injury to the Government.
Before his arraignment, petitioner filed a "Motion to Quash Information
and Recall Warrant of Arrest," dated August 4, 1996, on the ground that
the information was invalid as there was no probable cause to hold him
liable for violation of Section 3(e), R.A. No. 3019.1
On September 16, 1996, the OSP filed a "Motion to Suspend Accused
(herein petitioner) Pendente Lite," to which petitioner filed an
"Opposition," reiterating the same ground stated in his motion to quash.
The Sandiganbayan overruled the argument in its resolution of October
14, 1996. Thereupon, petitioner filed a verified petition with this Court
which was docketed as G.R. No. 126771. Among the issues raised was the
alleged invalidity of the information. The Court resolved to deny this
petition on December 4, 1996 on the ground that the Sandiganbayan
committed to grave abuse of discretion in rendering the questioned
judgment.
When the petitioner was arraigned on January 20, 1997, he entered a
plea of "not guilty" no longer questioning the validity of the information
against him.
On March 24, 1997, the Sandiganbayan granted the OSP's motion to
suspend petitioner in an order which provides in part:
WHEREFORE, accused Dindo C. Rios is ordered suspended from his
position as Mayor of the Municipality of San Fernando, Romblon and
from any other public position he may be holding for a period of ninety
(90) days counted from receipt of this Resolution. The Honorable
Secretary of the Department of Interior and Local Government, Quezon
City, and the Provincial Governor of Romblon, Romblon are ordered
furnished with copies of this Resolution so that they may implement the
same and report on their actions thereon. SO ORDERED.
Petitioner filed a motion for reconsideration which was subsequently
denied in a resolution dated June 25, 1997. Hence, this petition.
In support of his petition, petitioner posits the following arguments:
I. THE SANDIGANBAYAN COMMITTED A GRAVE ABUSE OF DISCRETION
WHEN IT RULED THAT THE FACTS CHARGED IN THE INFORMATION
CONSTITUTE A VIOLATION OF REPUBLIC ACT 3019.
II. THE SANDIGANBAYAN COMMITTED A GRAVE ABUSE OF DISCRETION
WHEN IT PROVIDED FOR SUSPENSION OF NINETY (90) DAYS IN CLEAR
DISREGARD OF THE PROVISION OF THE LOCAL GOVERNMENT CODE.
The first argument propounded by petitioner has already been passed
upon by this Court when it held that the act of disposing of confiscated
lumber without prior authority from DENR and the Sangguniang Bayan
constituted a violation of Sec. 3(e) of R.A. 3019.2 Therefore, there is
probable cause to hold petitioner liable for such act, for which the
information was validly filed. Although any further discussion of this issue
would be unnecessary, the Sandiganbayan's ruling is herein reiterated as
a reminder to public officials of their crucial role in society and the trust
lodged upon them by the people.
The act complained of in this case is "the disposition (by petitioner) of
confiscated, assorted and sawn lumber consisting of 1,319 pieces without
proper authority therefor, thus causing undue injury to the Government."
Petitioner maintains that the mere fact that he acted beyond the scope
of his authority by selling the confiscated lumber without the prior
approval of the DENR through its Community Environment and Natural
Resources Offices and without a resolution from the Sangguniang Bayan,
does not constitute a violation of Section 3(e) of R.A. No. 3019. What
renders the disposition of lumber contrary to law is any resulting "undue
injury" which, however, is absent in this case because the proceeds of the
dispositions went to the coffers of the Municipal Government.
The Sandiganbayan, however, asserted:
First, any act or omission that is not in consonance with the prescribed
norms of conduct inflicts injury to the Government, for the reason that it
is a disturbance of law and order. This is more so when, as in this case,
the alleged offender is the highest officer in the Municipal Government,
because he sets a reprehensible example to his constituents.
Second, the assertion that no undue injury was caused because the
proceeds of the disposition of confiscated lumber went to the Municipal
Government gratuitously assumes that the price at which the lumber was
disposed of was the reasonable market value thereof and that all the
proceeds were paid to the local government. The assertion is further
based on the wrong assumption that the lumber belonged to the
municipality of which the accused was mayor. It was the National
Government, as distinguished to (sic) local governments, the owned it,
(Sec. 2(a), RA 3019) there being no evidence that the National
Government had disposed of the lumber in any manner.3
We cannot agree more with the Sandiganbayan. This Court would like to
stress adherence to the doctrine that public office is a public trust. Public
officers and employees must at all times be accountable to the people,
serve them with utmost responsibility, integrity, loyalty and efficiency,
act with patriotism and justice, and lead modest lives. Public servants
must bear in mind this constitutional mandate at all times to guide them
in their actions during their entire tenure in the government
service.4 "The good of the service and the degree of morality which every
official and employee in the public service must observe, if respect and
confidence are to be maintained by the Government in the enforcement
of the law, demand that no untoward conduct on his part, affecting
morality, integrity and efficiency while holding office should be left
without proper and commensurate sanction, all attendant circumstances
taken into account."5
The suspension pendente lite meted out by the Sandiganbayan is,
without doubt, a proper and commensurate sanction against petitioner.
Having ruled that the information filed against petitioner is valid, there
can be no impediment to the application of Section 13 of R.A. No. 3019
which states, inter alia:
Sec. 13. Suspension and loss of benefits. — Any incumbent public officer
against whom any criminal prosecution under a valid information under
this Act of under Title 7, Book II of the Revised Penal Code or for any
offenses involving fraud upon government or public funds or property,
whether as a simple or as a complex offense and in whatever stage of
execution and mode of participation, is pending in court, shall be
suspended from office.
It is settled jurisprudence that the aforequoted provision makes it
mandatory for the Sandiganbayan to suspend any public officer who has
been validly charged with a violation of R.A. No. 3019, Book II, Title 7 of
the Revised Penal Code, or any offense involving fraud upon government
or public funds or property.6
"The court trying a case has neither discretion nor duty to determine
whether preventive suspension is required to prevent the accused from
using his office to intimidate witnesses or frustrate in prosecution or
continue committing malfeasance in office."7 This is based on the
presumption that unless the public officer is suspended, he may
frustrated his prosecution or commit further acts of malfeasance or both.
On the other hand, we find merit in petitioner's second assigned error.
The Sandiganbayan erred in imposing a 90 day suspension upon
22
petitioner for the single case filed against him. Under Section 63 (b) of
the Local Government Code, "any single preventive suspension of local
Page
elective officials shall not extend beyond sixty (60) days."8
WHEREFORE, the appealed decision of the Sandiganbayan is AFFIRMED
subject to the MODIFICATION that the suspension be reduced to 60 days.
Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur.
(4) G.R. No. 148560 November 19, 2001
JOSEPH EJERCITO ESTRADA, petitioner, vs.
SANDIGANBAYAN (Third Division) and PEOPLE OF THE
PHILIPPINES, respondents.
BELLOSILLO, J.:
JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his
pen in defense of the rights of the individual from the vast powers of the
State and the inroads of societal pressure. But even as he draws a
sacrosanct line demarcating the limits on individuality beyond which the
State cannot tread - asserting that "individual spontaneity" must be
allowed to flourish with very little regard to social interference - he
veritably acknowledges that the exercise of rights and liberties is imbued
with a civic obligation, which society is justified in enforcing at all cost,
against those who would endeavor to withhold fulfillment. Thus he says
- purview of Section Two (2) hereof, acquired by him directly or indirectly
The sole end for which mankind is warranted, individually or collectively,
in interfering with the liberty of action of any of their number, is self-
protection. The only purpose for which power can be rightfully exercised
over any member of a civilized community, against his will, is to prevent
harm to others.
Parallel to individual liberty is the natural and illimitable right of the State
to self-preservation. With the end of maintaining the integrity and
cohesiveness of the body politic, it behooves the State to formulate a
system of laws that would compel obeisance to its collective wisdom and
inflict punishment for non-observance.
The movement from Mill's individual liberalism to unsystematic
collectivism wrought changes in the social order, carrying with it a new
formulation of fundamental rights and duties more attuned to the
imperatives of contemporary socio-political ideologies. In the process,
the web of rights and State impositions became tangled and obscured,
enmeshed in threads of multiple shades and colors, the skein irregular
and broken. Antagonism, often outright collision, between the law as the
expression of the will of the State, and the zealous attempts by its
members to preserve their individuality and dignity, inevitably followed.
It is when individual rights are pitted against State authority that judicial
conscience is put to its severest test.
Petitioner Joseph Ejercito Estrada, the highest-ranking official to be
prosecuted under RA 7080 (An Act Defining and Penalizing the Crime of
Plunder),1 as amended by RA 7659,2 wishes to impress upon us that the
assailed law is so defectively fashioned that it crosses that thin but
distinct line which divides the valid from the constitutionally infirm. He
therefore makes a stringent call for this Court to subject the Plunder Law
to the crucible of constitutionality mainly because, according to him, (a)
it suffers from the vice of vagueness; (b) it dispenses with the "reasonable
doubt" standard in criminal prosecutions; and, (c) it abolishes the
element of mens rea in crimes already punishable under The Revised
Penal Code, all of which are purportedly clear violations of the
fundamental rights of the accused to due process and to be informed of
the nature and cause of the accusation against him.
Specifically, the provisions of the Plunder Law claimed by petitioner to
have transgressed constitutional boundaries are Secs. 1, par. (d), 2 and 4
which are reproduced hereunder:
Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property,
business, enterprise or material possession of any person within the
through dummies, nominees, agents, subordinates and/or business
associates by any combination or series of the following means or similar
schemes:
(1) Through misappropriation, conversion, misuse, or malversation of
public funds or raids on the public treasury;
(2) By receiving, directly or indirectly, any commission, gift, share,
percentage, kickbacks or any other form of pecuniary benefit from any
person and/or entity in connection with any government contract or
project or by reason of the office or position of the public office
concerned;
(3) By the illegal or fraudulent conveyance or disposition of assets
belonging to the National Government or any of its subdivisions, agencies
or instrumentalities, or government owned or controlled corporations
and their subsidiaries;
(4) By obtaining, receiving or accepting directly or indirectly any shares of
stock, equity or any other form of interest or participation including the
promise of future employment in any business enterprise or undertaking;
(5) By establishing agricultural, industrial or commercial monopolies or
other combinations and/or implementation of decrees and orders
intended to benefit particular persons or special interests; or
(6) By taking advantage of official position, authority, relationship,
connection or influence to unjustly enrich himself or themselves at the
expense and to the damage and prejudice of the Filipino people and the
Republic of the Philippines.
Section 2. Definition of the Crime of Plunder, Penalties. - Any public
officer who, by himself or in connivance with members of his family,
relatives by affinity or consanguinity, business associates, subordinates or
other persons, amasses, accumulates or acquires ill-gotten wealth
through a combination or series of overt or criminal acts as described in
Section 1 (d) hereof, in the aggregate amount or total value of at least
fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder
and shall be punished by reclusion perpetua to death. Any person who
participated with the said public officer in the commission of an offense
contributing to the crime of plunder shall likewise be punished for such
offense. In the imposition of penalties, the degree of participation and the
attendance of mitigating and extenuating circumstances as provided by
the Revised Penal Code shall be considered by the court. The court shall
declare any and all ill-gotten wealth and their interests and other incomes
and assets including the properties and shares of stocks derived from the
deposit or investment thereof forfeited in favor of the State (underscoring
supplied).
Section 4. Rule of Evidence. - For purposes of establishing the crime of
plunder, it shall not be necessary to prove each and every criminal act
done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable doubt a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy (underscoring
supplied).
On 4 April 2001 the Office of the Ombudsman filed before the
Sandiganbayan eight (8) separate Informations, docketed as: (a) Crim.
Case No. 26558, for violation of RA 7080, as amended by RA 7659; (b)
Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3, par.
(a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 (Anti-Graft and Corrupt
Practices Act), respectively; (c) Crim. Case No. 26563, for violation of Sec.
7, par. (d), of RA 6713 (The Code of Conduct and Ethical Standards for
Public Officials and Employees); (d) Crim. Case No. 26564, for Perjury (Art.
183 of The Revised Penal Code); and, (e) Crim. Case No. 26565, for Illegal
23
Use Of An Alias (CA No. 142, as amended by RA 6085).
Page
On 11 April 2001 petitioner filed an Omnibus Motion for the remand of
the case to the Ombudsman for preliminary investigation with respect to
specification "d" of the charges in the Information in Crim. Case No.
26558; and, for reconsideration/reinvestigation of the offenses under
specifications "a," "b," and "c" to give the accused an opportunity to file
counter-affidavits and other documents necessary to prove lack of
probable cause. Noticeably, the grounds raised were only lack of
preliminary investigation, reconsideration/reinvestigation of offenses,
and opportunity to prove lack of probable cause. The purported
ambiguity of the charges and the vagueness of the law under which they
are charged were never raised in that Omnibus Motion thus indicating
the explicitness and comprehensibility of the Plunder Law.
On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution
in Crim. Case No. 26558 finding that "a probable cause for the offense of
PLUNDER exists to justify the issuance of warrants for the arrest of the
accused." On 25 June 2001 petitioner's motion for reconsideration was
denied by the Sandiganbayan.
On 14 June 2001 petitioner moved to quash the Information in Crim. Case
No. 26558 on the ground that the facts alleged therein did not constitute
an indictable offense since the law on which it was based was
unconstitutional for vagueness, and that the Amended Information for
Plunder charged more than one (1) offense. On 21 June 2001 the
Government filed its Opposition to the Motion to Quash, and five (5) days
later or on 26 June 2001 petitioner submitted his Reply to the Opposition.
On 9 July 2001 the Sandiganbayan denied petitioner's Motion to Quash.
As concisely delineated by this Court during the oral arguments on 18
September 2001, the issues for resolution in the instant petition for
certiorari are: (a) The Plunder Law is unconstitutional for being vague; (b)
The Plunder Law requires less evidence for proving the predicate crimes
of plunder and therefore violates the rights of the accused to due
process; and, (c) Whether Plunder as defined in RA 7080 is a malum
prohibitum, and if so, whether it is within the power of Congress to so
classify it.
Preliminarily, the whole gamut of legal concepts pertaining to the validity
of legislation is predicated on the basic principle that a legislative
measure is presumed to be in harmony with the Constitution.3 Courts
invariably train their sights on this fundamental rule whenever a
legislative act is under a constitutional attack, for it is the postulate of
constitutional adjudication. This strong predilection for constitutionality
takes its bearings on the idea that it is forbidden for one branch of the
government to encroach upon the duties and powers of another. Thus it
has been said that the presumption is based on the deference the judicial
branch accords to its coordinate branch - the legislature.
If there is any reasonable basis upon which the legislation may firmly rest,
the courts must assume that the legislature is ever conscious of the
borders and edges of its plenary powers, and has passed the law with full
knowledge of the facts and for the purpose of promoting what is right
and advancing the welfare of the majority. Hence in determining whether
the acts of the legislature are in tune with the fundamental law, courts
should proceed with judicial restraint and act with caution and
forbearance. Every intendment of the law must be adjudged by the
courts in favor of its constitutionality, invalidity being a measure of last
resort. In construing therefore the provisions of a statute, courts must
first ascertain whether an interpretation is fairly possible to sidestep the
question of constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon4 we held that as long as
there is some basis for the decision of the court, the constitutionality of
the challenged law will not be touched and the case will be decided on
other available grounds. Yet the force of the presumption is not sufficient
to catapult a fundamentally deficient law into the safe environs of
constitutionality. Of course, where the law clearly and palpably
transgresses the hallowed domain of the organic law, it must be struck
down on sight lest the positive commands of the fundamental law be
unduly eroded.
Verily, the onerous task of rebutting the presumption weighs heavily on
the party challenging the validity of the statute. He must demonstrate
beyond any tinge of doubt that there is indeed an infringement of the
constitution, for absent such a showing, there can be no finding of
unconstitutionality. A doubt, even if well-founded, will hardly suffice. As
tersely put by Justice Malcolm, "To doubt is to sustain."5 And petitioner
has miserably failed in the instant case to discharge his burden and
overcome the presumption of constitutionality of the Plunder Law.
As it is written, the Plunder Law contains ascertainable standards and
well-defined parameters which would enable the accused to determine
the nature of his violation. Section 2 is sufficiently explicit in its
description of the acts, conduct and conditions required or forbidden,
and prescribes the elements of the crime with reasonable certainty and
particularity. Thus -
1. That the offender is a public officer who acts by himself or in connivance
with members of his family, relatives by affinity or consanguinity, business
associates, subordinates or other persons;
2. That he amassed, accumulated or acquired ill-gotten wealth through a
combination or series of the following overt or criminal acts: (a) through
misappropriation, conversion, misuse, or malversation of public funds or
raids on the public treasury; (b) by receiving, directly or indirectly, any
commission, gift, share, percentage, kickback or any other form of
pecuniary benefits from any person and/or entity in connection with any
government contract or project or by reason of the office or position of
the public officer; (c) by the illegal or fraudulent conveyance or disposition
of assets belonging to the National Government or any of its subdivisions,
agencies or instrumentalities of Government owned or controlled
corporations or their subsidiaries; (d) by obtaining, receiving or accepting
directly or indirectly any shares of stock, equity or any other form of
interest or participation including the promise of future employment in
any business enterprise or undertaking; (e) by establishing agricultural,
industrial or commercial monopolies or other combinations and/or
implementation of decrees and orders intended to benefit particular
persons or special interests; or (f) by taking advantage of official position,
authority, relationship, connection or influence to unjustly enrich himself
or themselves at the expense and to the damage and prejudice of the
Filipino people and the Republic of the Philippines; and,
3. That the aggregate amount or total value of the ill-gotten wealth
amassed, accumulated or acquired is at least ₱50,000,000.00.
As long as the law affords some comprehensible guide or rule that would
inform those who are subject to it what conduct would render them liable
to its penalties, its validity will be sustained. It must sufficiently guide the
judge in its application; the counsel, in defending one charged with its
violation; and more importantly, the accused, in identifying the realm of
the proscribed conduct. Indeed, it can be understood with little difficulty
that what the assailed statute punishes is the act of a public officer in
amassing or accumulating ill-gotten wealth of at least ₱50,000,000.00
through a series or combination of acts enumerated in Sec. 1, par. (d), of
the Plunder Law.
In fact, the amended Information itself closely tracks the language of the
law, indicating with reasonable certainty the various elements of the
offense which petitioner is alleged to have committed:
"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office
of the Ombudsman, hereby accuses former PRESIDENT OF THE REPUBLIC
OF THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a. 'ASIONG SALONGA'
and a.k.a. 'JOSE VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie
'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN
DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe
a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime of Plunder,
defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A.
No. 7659, committed as follows:
24
That during the period from June, 1998 to January 2001, in the
Page
Philippines, and within the jurisdiction of this Honorable Court, accused
Joseph Ejercito Estrada, THEN A PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his
co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY
AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES
AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS
OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR
INFLUENCE, did then and there willfully, unlawfully and criminally amass,
accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-
gotten wealth in the aggregate amount or TOTAL VALUE of FOUR
BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND
ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS (₱4,097,804,173.17), more or less, THEREBY UNJUSTLY
ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE
DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE
PHILIPPINES, through ANY OR A combination OR Aseries of
overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as
follows:
(a) by receiving OR collecting, directly or indirectly, on SEVERAL
INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE
HUNDRED FORTY-FIVE MILLION PESOS (₱545,000,000.00),
MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF
GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF
PECUNIARY BENEFIT, BY HIMSELF AND/OR in connection with
co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada,
Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND
JANE DOES, in consideration OF TOLERATION OR PROTECTION
OF ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating,
converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR
THEIR PERSONAL gain and benefit, public funds in the amount
of ONE HUNDRED THIRTY MILLION PESOS (₱130,000,000.00),
more or less, representing a portion of the TWO HUNDRED
MILLION PESOS (₱200,000,000.00) tobacco excise tax share
allocated for the province of Ilocos Sur under R.A. No. 7171, by
himself and/or in connivance with co-accused Charlie 'Atong'
Ang, Alma Alfaro, JOHN DOE a.k.a.Eleuterio Ramos Tan or Mr.
Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES & JANE
DOES; (italic supplied).
(c) by directing, ordering and compelling, FOR HIS PERSONAL
GAIN AND BENEFIT, the Government Service Insurance System
(GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS, MORE
OR LESS, and the Social Security System (SSS),
329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE
CORPORATION IN THE AMOUNT OF MORE OR LESS ONE
BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY
FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY
CENTAVOS (₱1,102,965,607.50) AND MORE OR LESS SEVEN
HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE
THOUSAND AND FOUR HUNDRED FIFTY PESOS
(₱744,612,450.00), RESPECTIVELY, OR A TOTAL OF MORE OR
LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION
FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN
PESOS AND FIFTY CENTAVOS (₱1,847,578,057.50); AND BY
COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY
HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND
JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON OF
SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF
ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED
THOUSAND PESOS (₱189,700,000.00) MORE OR LESS, FROM
THE BELLE CORPORATION WHICH BECAME PART OF THE
DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT
NAME 'JOSE VELARDE;'
(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS,
SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF
PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES
AND JANE DOES, in the amount of MORE OR LESS THREE
BILLION TWO HUNDRED THIRTY THREE MILLION ONE
HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE
PESOS AND SEVENTEEN CENTAVOS (₱3,233,104,173.17) AND
DEPOSITING THE SAME UNDER HIS ACCOUNT NAME 'JOSE
VELARDE' AT THE EQUITABLE-PCI BANK."
We discern nothing in the foregoing that is vague or ambiguous - as there
is obviously none - that will confuse petitioner in his defense. Although
subject to proof, these factual assertions clearly show that the elements
of the crime are easily understood and provide adequate contrast
between the innocent and the prohibited acts. Upon such unequivocal
assertions, petitioner is completely informed of the accusations against
him as to enable him to prepare for an intelligent defense.
Petitioner, however, bewails the failure of the law to provide for the
statutory definition of the terms "combination" and "series" in the key
phrase "a combination or series of overt or criminal acts" found in Sec. 1,
par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions,
according to petitioner, render the Plunder Law unconstitutional for
being impermissibly vague and overbroad and deny him the right to be
informed of the nature and cause of the accusation against him, hence,
violative of his fundamental right to due process.
The rationalization seems to us to be pure sophistry. A statute is not
rendered uncertain and void merely because general terms are used
therein, or because of the employment of terms without defining
them;6 much less do we have to define every word we use. Besides, there
is no positive constitutional or statutory command requiring the
legislature to define each and every word in an enactment. Congress is
not restricted in the form of expression of its will, and its inability to so
define the words employed in a statute will not necessarily result in the
vagueness or ambiguity of the law so long as the legislative will is clear,
or at least, can be gathered from the whole act, which is distinctly
expressed in the Plunder Law.
Moreover, it is a well-settled principle of legal hermeneutics that words
of a statute will be interpreted in their natural, plain and ordinary
acceptation and signification,7 unless it is evident that the legislature
intended a technical or special legal meaning to those words.8 The
intention of the lawmakers - who are, ordinarily, untrained philologists
and lexicographers - to use statutory phraseology in such a manner is
always presumed. Thus, Webster's New Collegiate Dictionary contains
the following commonly accepted definition of the words "combination"
and "series:"
Combination - the result or product of combining; the act or process of
combining. To combine is to bring into such close relationship as to
obscure individual characters.
Series - a number of things or events of the same class coming one after
another in spatial and temporal succession.
That Congress intended the words "combination" and "series" to be
understood in their popular meanings is pristinely evident from the
legislative deliberations on the bill which eventually became RA 7080 or
the Plunder Law:
DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May
1991
REP. ISIDRO: I am just intrigued again by our definition of plunder. We say
THROUGH A COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS
MENTIONED IN SECTION ONE HEREOF. Now when we say combination, we
actually mean to say, if there are two or more means, we mean to say that
number one and two or number one and something else are included, how
about a series of the same act? For example, through misappropriation,
conversion, misuse, will these be included also?
REP. GARCIA: Yeah, because we say a series.
REP. ISIDRO: Series.
REP. GARCIA: Yeah, we include series.
25
REP. ISIDRO: But we say we begin with a combination.
REP. GARCIA: Yes.
Page
REP. ISIDRO: When we say combination, it seems that -
REP. GARCIA: Two.
REP. ISIDRO: Not only two but we seem to mean that two of the
enumerated means not twice of one enumeration.
REP. GARCIA: No, no, not twice.
REP. ISIDRO: Not twice?
REP. GARCIA: Yes. Combination is not twice - but combination, two acts.
REP. ISIDRO: So in other words, that’s it. When we say combination, we
mean, two different acts. It cannot be a repetition of the same act.
REP. GARCIA: That be referred to series, yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
REP. GARCIA: A series.
REP. ISIDRO: That’s not series. Its a combination. Because when we say
combination or series, we seem to say that two or more, di ba?
REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is
why, I said, that is a very good suggestion because if it is only one act, it
may fall under ordinary crime but we have here a combination or series of
overt or criminal acts. So x x x x
REP. GARCIA: Series. One after the other eh di....
SEN. TANADA: So that would fall under the term "series?"
REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....
REP. GARCIA: Its not... Two misappropriations will not be combination.
Series.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two different?
REP. GARCIA: Yes.
SEN. TANADA: Two different.
REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...
DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989
SENATOR MACEDA: In line with our interpellations that sometimes "one"
or maybe even "two" acts may already result in such a big amount, on line
25, would the Sponsor consider deleting the words "a series of overt or," to
read, therefore: "or conspiracy COMMITTED by criminal acts such as."
Remove the idea of necessitating "a series." Anyway, the criminal acts are
in the plural.
SENATOR TANADA: That would mean a combination of two or more of the
acts mentioned in this.
THE PRESIDENT: Probably two or more would be....
SENATOR MACEDA: Yes, because "a series" implies several or many; two or
more.
SENATOR TANADA: Accepted, Mr. President x x x x
THE PRESIDENT: If there is only one, then he has to be prosecuted under
the particular crime. But when we say "acts of plunder" there should be, at
least, two or more.
SENATOR ROMULO: In other words, that is already covered by existing
laws, Mr. President.
Thus when the Plunder Law speaks of "combination," it is referring to at
least two (2) acts falling under different categories of enumeration
provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1, par.
(d), subpar. (1), and fraudulent conveyance of assets belonging to the
National Government under Sec. 1, par. (d), subpar. (3).
On the other hand, to constitute a series" there must be two (2) or more
overt or criminal acts falling under the same category of enumeration
found in Sec. 1, par. (d), say, misappropriation, malversation and raids on
the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1).
Verily, had the legislature intended a technical or distinctive meaning for
"combination" and "series," it would have taken greater pains in
specifically providing for it in the law.
As for "pattern," we agree with the observations of the
Sandiganbayan9 that this term is sufficiently defined in Sec. 4, in relation
to Sec. 1, par. (d), and Sec. 2 -
x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a
combination or series of overt or criminal acts enumerated in subsections
(1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern
of overt or criminal acts is directed towards a common purpose or goal
which is to enable the public officer to amass, accumulate or acquire ill-
gotten wealth. And thirdly, there must either be an 'overall unlawful
scheme' or 'conspiracy' to achieve said common goal. As commonly
understood, the term 'overall unlawful scheme' indicates a 'general plan
of action or method' which the principal accused and public officer and
others conniving with him follow to achieve the aforesaid common goal.
In the alternative, if there is no such overall scheme or where the schemes
or methods used by multiple accused vary, the overt or criminal acts must
form part of a conspiracy to attain a common goal.
Hence, it cannot plausibly be contended that the law does not give a fair
warning and sufficient notice of what it seeks to penalize. Under the
circumstances, petitioner's reliance on the "void-for-vagueness" doctrine
is manifestly misplaced. The doctrine has been formulated in various
ways, but is most commonly stated to the effect that a statute
establishing a criminal offense must define the offense with sufficient
definiteness that persons of ordinary intelligence can understand what
conduct is prohibited by the statute. It can only be invoked against that
specie of legislation that is utterly vague on its face, i.e., that which
cannot be clarified either by a saving clause or by construction.
A statute or act may be said to be vague when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its
meaning and differ in its application. In such instance, the statute is
repugnant to the Constitution in two (2) respects - it violates due process
for failure to accord persons, especially the parties targeted by it, fair
notice of what conduct to avoid; and, it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing
of the Government muscle.10 But the doctrine does not apply as against
legislations that are merely couched in imprecise language but which
nonetheless specify a standard though defectively phrased; or to those
that are apparently ambiguous yet fairly applicable to certain types of
activities. The first may be "saved" by proper construction, while no
challenge may be mounted as against the second whenever directed
against such activities.11 With more reason, the doctrine cannot be
invoked where the assailed statute is clear and free from ambiguity, as in
this case.
The test in determining whether a criminal statute is void for uncertainty
is whether the language conveys a sufficiently definite warning as to the
proscribed conduct when measured by common understanding and
practice.12It must be stressed, however, that the "vagueness" doctrine
merely requires a reasonable degree of certainty for the statute to be
upheld - not absolute precision or mathematical exactitude, as petitioner
seems to suggest. Flexibility, rather than meticulous specificity, is
permissible as long as the metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely because it might have
been more explicit in its wordings or detailed in its provisions, especially
where, because of the nature of the act, it would be impossible to provide
all the details in advance as in all other statutes.
Moreover, we agree with, hence we adopt, the observations of Mr.
Justice Vicente V. Mendoza during the deliberations of the Court that the
allegations that the Plunder Law is vague and overbroad do not justify a
facial review of its validity -
The void-for-vagueness doctrine states that "a statute which either
forbids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ as
to its application, violates the first essential of due process of law."13 The
overbreadth doctrine, on the other hand, decrees that "a governmental
purpose may not be achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected freedoms."14
A facial challenge is allowed to be made to a vague statute and to one
which is overbroad because of possible "chilling effect" upon protected
speech. The theory is that "[w]hen statutes regulate or proscribe speech
and no readily apparent construction suggests itself as a vehicle for
rehabilitating the statutes in a single prosecution, the transcendent value
26
to all society of constitutionally protected expression is deemed to justify
allowing attacks on overly broad statutes with no requirement that the
Page
person making the attack demonstrate that his own conduct could not be
regulated by a statute drawn with narrow specificity."15 The possible
harm to society in permitting some unprotected speech to go unpunished
is outweighed by the possibility that the protected speech of others may
be deterred and perceived grievances left to fester because of possible
inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if
facial challenge is allowed for this reason alone, the State may well be
prevented from enacting laws against socially harmful conduct. In the
area of criminal law, the law cannot take chances as in the area of free
speech.
The overbreadth and vagueness doctrines then have special application
only to free speech cases. They are inapt for testing the validity of penal
statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice
Rehnquist, "we have not recognized an 'overbreadth' doctrine outside
the limited context of the First Amendment." 16 In Broadrick v.
Oklahoma,17 the Court ruled that "claims of facial overbreadth have been
entertained in cases involving statutes which, by their terms, seek to
regulate only spoken words" and, again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary
criminal laws that are sought to be applied to protected conduct." For
this reason, it has been held that "a facial challenge to a legislative act is
the most difficult challenge to mount successfully, since the challenger
must establish that no set of circumstances exists under which the Act
would be valid."18 As for the vagueness doctrine, it is said that a litigant
may challenge a statute on its face only if it is vague in all its possible
applications. "A plaintiff who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as applied to the
conduct of others."19
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are
analytical tools developed for testing "on their faces" statutes in free
speech cases or, as they are called in American law, First Amendment
cases. They cannot be made to do service when what is involved is a
criminal statute. With respect to such statute, the established rule is that
"one to whom application of a statute is constitutional will not be heard
to attack the statute on the ground that impliedly it might also be taken
as applying to other persons or other situations in which its application
might be unconstitutional."20 As has been pointed out, "vagueness
challenges in the First Amendment context, like overbreadth challenges
typically produce facial invalidation, while statutes found vague as a
matter of due process typically are invalidated [only] 'as applied' to a
particular defendant."21 Consequently, there is no basis for petitioner's
claim that this Court review the Anti-Plunder Law on its face and in its
entirety.
Indeed, "on its face" invalidation of statutes results in striking them down
entirely on the ground that they might be applied to parties not before
the Court whose activities are constitutionally protected.22 It constitutes
a departure from the case and controversy requirement of the
Constitution and permits decisions to be made without concrete factual
settings and in sterile abstract contexts.23 But, as the U.S. Supreme Court
pointed out in Younger v. Harris24
[T]he task of analyzing a proposed statute, pinpointing its deficiencies,
and requiring correction of these deficiencies before the statute is put
into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact
on the legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line analysis of
detailed statutes, . . . ordinarily results in a kind of case that is wholly
unsatisfactory for deciding constitutional questions, whichever way they
might be decided.
For these reasons, "on its face" invalidation of statutes has been
described as "manifestly strong medicine," to be employed "sparingly
and only as a last resort,"25 and is generally disfavored.26 In determining
the constitutionality of a statute, therefore, its provisions which are
alleged to have been violated in a case must be examined in the light of
the conduct with which the defendant is charged.27
In light of the foregoing disquisition, it is evident that the purported
ambiguity of the Plunder Law, so tenaciously claimed and argued at
length by petitioner, is more imagined than real. Ambiguity, where none
exists, cannot be created by dissecting parts and words in the statute to
furnish support to critics who cavil at the want of scientific precision in
the law. Every provision of the law should be construed in relation and
with reference to every other part. To be sure, it will take more than
nitpicking to overturn the well-entrenched presumption of
constitutionality and validity of the Plunder Law. A fortiori, petitioner
cannot feign ignorance of what the Plunder Law is all about. Being one of
the Senators who voted for its passage, petitioner must be aware that
the law was extensively deliberated upon by the Senate and its
appropriate committees by reason of which he even registered his
affirmative vote with full knowledge of its legal implications and sound
constitutional anchorage.
The parallel case of Gallego v. Sandiganbayan28 must be mentioned if
only to illustrate and emphasize the point that courts are loathed to
declare a statute void for uncertainty unless the law itself is so imperfect
and deficient in its details, and is susceptible of no reasonable
construction that will support and give it effect. In that case,
petitioners Gallego and Agoncillo challenged the constitutionality of Sec.
3, par. (e), of The Anti-Graft and Corrupt Practices Actfor being vague.
Petitioners posited, among others, that the term "unwarranted" is highly
imprecise and elastic with no common law meaning or settled definition
by prior judicial or administrative precedents; that, for its vagueness, Sec.
3, par. (e), violates due process in that it does not give fair warning or
sufficient notice of what it seeks to penalize. Petitioners further argued
that the Information charged them with three (3) distinct offenses, to wit:
(a) giving of "unwarranted" benefits through manifest partiality; (b)
giving of "unwarranted" benefits through evident bad faith; and, (c)
giving of "unwarranted" benefits through gross inexcusable negligence
while in the discharge of their official function and that their right to be
informed of the nature and cause of the accusation against them was
violated because they were left to guess which of the three (3) offenses,
if not all, they were being charged and prosecuted.
In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-
Graft and Corrupt Practices Act does not suffer from the constitutional
defect of vagueness. The phrases "manifest partiality," "evident bad
faith," and "gross and inexcusable negligence" merely describe the
different modes by which the offense penalized in Sec. 3, par. (e), of the
statute may be committed, and the use of all these phrases in the same
Information does not mean that the indictment charges three (3) distinct
offenses.
The word 'unwarranted' is not uncertain. It seems lacking adequate or
official support; unjustified; unauthorized (Webster, Third International
Dictionary, p. 2514); or without justification or adequate reason
(Philadelphia Newspapers, Inc. v. US Dept. of Justice, C.D. Pa., 405 F.
Supp. 8, 12, cited in Words and Phrases, Permanent Edition, Vol. 43-A
1978, Cumulative Annual Pocket Part, p. 19).
The assailed provisions of the Anti-Graft and Corrupt Practices Act
consider a corrupt practice and make unlawful the act of the public officer
in:
x x x or giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross
inexcusable negligence, x x x (Section 3 [e], Rep. Act 3019, as amended).
It is not at all difficult to comprehend that what the aforequoted penal
provisions penalize is the act of a public officer, in the discharge of his
official, administrative or judicial functions, in giving any private party
benefits, advantage or preference which is unjustified, unauthorized or
without justification or adequate reason, through manifest partiality,
27
evident bad faith or gross inexcusable negligence.
Page
In other words, this Court found that there was nothing vague or
ambiguous in the use of the term "unwarranted" in Sec. 3, par. (e), of The
Anti-Graft and Corrupt Practices Act, which was understood in its primary
and general acceptation. Consequently, in that case, petitioners'
objection thereto was held inadequate to declare the section
unconstitutional.
On the second issue, petitioner advances the highly stretched theory that
Sec. 4 of the Plunder Law circumvents the immutable obligation of the
prosecution to prove beyond reasonable doubt the predicate acts
constituting the crime of plunder when it requires only proof of a pattern
of overt or criminal acts showing unlawful scheme or conspiracy -
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of
plunder, it shall not be necessary to prove each and every criminal act
done by the accused in furtherance of the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth, it being sufficient to establish
beyond reasonable doubt a pattern of overt or criminal acts indicative of
the overall unlawful scheme or conspiracy.
The running fault in this reasoning is obvious even to the simplistic mind.
In a criminal prosecution for plunder, as in all other crimes, the accused
always has in his favor the presumption of innocence which is guaranteed
by the Bill of Rights, and unless the State succeeds in demonstrating by
proof beyond reasonable doubt that culpability lies, the accused is
entitled to an acquittal.29 The use of the "reasonable doubt" standard is
indispensable to command the respect and confidence of the community
in the application of criminal law. It is critical that the moral force of
criminal law be not diluted by a standard of proof that leaves people in
doubt whether innocent men are being condemned. It is also important
in our free society that every individual going about his ordinary affairs
has confidence that his government cannot adjudge him guilty of a
criminal offense without convincing a proper factfinder of his guilt with
utmost certainty. This "reasonable doubt" standard has acquired such
exalted stature in the realm of constitutional law as it gives life to the Due
Process Clause which protects the accused against conviction except
upon proof beyond reasonable doubt of every fact necessary to
constitute the crime with which he is charged.30 The following exchanges
between Rep. Rodolfo Albano and Rep. Pablo Garcia on this score during
the deliberations in the floor of the House of Representatives are
elucidating -
DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9
October 1990
MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law
that what is alleged in the information must be proven beyond reasonable
doubt. If we will prove only one act and find him guilty of the other acts
enumerated in the information, does that not work against the right of
the accused especially so if the amount committed, say, by falsification is
less than ₱100 million, but the totality of the crime committed is ₱100
million since there is malversation, bribery, falsification of public
document, coercion, theft?
MR. GARCIA: Mr. Speaker, not everything alleged in the information
needs to be proved beyond reasonable doubt. What is required to be
proved beyond reasonable doubt is every element of the crime charged.
For example, Mr. Speaker, there is an enumeration of the things taken by
the robber in the information – three pairs of pants, pieces of jewelry.
These need not be proved beyond reasonable doubt, but these will not
prevent the conviction of a crime for which he was charged just because,
say, instead of 3 pairs of diamond earrings the prosecution proved two.
Now, what is required to be proved beyond reasonable doubt is the
element of the offense.
MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the
crime of plunder the totality of the amount is very important, I feel that
such a series of overt criminal acts has to be taken singly. For instance, in
the act of bribery, he was able to accumulate only ₱50,000 and in the
crime of extortion, he was only able to accumulate ₱1 million. Now, when
we add the totality of the other acts as required under this bill through
the interpretation on the rule of evidence, it is just one single act, so how
can we now convict him?
MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an
essential element of the crime, there is a need to prove that element
beyond reasonable doubt. For example, one essential element of the
crime is that the amount involved is ₱100 million. Now, in a series of
defalcations and other acts of corruption in the enumeration the total
amount would be ₱110 or ₱120 million, but there are certain acts that
could not be proved, so, we will sum up the amounts involved in those
transactions which were proved. Now, if the amount involved in these
transactions, proved beyond reasonable doubt, is ₱100 million, then there
is a crime of plunder (underscoring supplied).
It is thus plain from the foregoing that the legislature did not in any
manner refashion the standard quantum of proof in the crime of plunder.
The burden still remains with the prosecution to prove beyond any iota
of doubt every fact or element necessary to constitute the crime.
The thesis that Sec. 4 does away with proof of each and every component
of the crime suffers from a dismal misconception of the import of that
provision. What the prosecution needs to prove beyond reasonable
doubt is only a number of acts sufficient to form a combination or series
which would constitute a pattern and involving an amount of at least
₱50,000,000.00. There is no need to prove each and every other act
alleged in the Information to have been committed by the accused in
furtherance of the overall unlawful scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth. To illustrate, supposing that the
accused is charged in an Information for plunder with having committed
fifty (50) raids on the public treasury. The prosecution need not prove all
these fifty (50) raids, it being sufficient to prove by pattern at least two
(2) of the raids beyond reasonable doubt provided only that they
amounted to at least ₱50,000,000.00.31
A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical
conclusion that "pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy" inheres in the very acts of accumulating,
acquiring or amassing hidden wealth. Stated otherwise, such pattern
arises where the prosecution is able to prove beyond reasonable doubt
the predicate acts as defined in Sec. 1, par. (d). Pattern is merely a by-
product of the proof of the predicate acts. This conclusion is consistent
with reason and common sense. There would be no other explanation for
a combination or series of
overt or criminal acts to stash ₱50,000,000.00 or more, than "a scheme
or conspiracy to amass, accumulate or acquire ill gotten wealth." The
prosecution is therefore not required to make a deliberate and conscious
effort to prove pattern as it necessarily follows with the establishment of
a series or combination of the predicate acts.
Relative to petitioner's contentions on the purported defect of Sec. 4 is
his submission that "pattern" is "a very important element of the crime
of plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule of
evidence and a substantive element of the crime," such that without it
the accused cannot be convicted of plunder -
JUSTICE BELLOSILLO: In other words, cannot an accused be convicted
under the Plunder Law without applying Section 4 on the Rule of Evidence
if there is proof beyond reasonable doubt of the commission of the acts
complained of?
ATTY. AGABIN: In that case he can be convicted of individual crimes
enumerated in the Revised Penal Code, but not plunder.
JUSTICE BELLOSILLO: In other words, if all the elements of the crime are
proved beyond reasonable doubt without applying Section 4, can you not
have a conviction under the Plunder Law?
28
Page
ATTY. AGABIN: Not a conviction for plunder, your Honor.
JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in
convicting an accused charged for violation of the Plunder Law?
ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a
substantive element of the law x x x x
JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when
there is proof beyond reasonable doubt on the acts charged constituting
plunder?
ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it
contains a rule of evidence and it contains a substantive element of the
crime of plunder. So, there is no way by which we can avoid Section 4.
JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar
as the predicate crimes charged are concerned that you do not have to go
that far by applying Section 4?
ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very
important element of the crime of plunder and that cannot be avoided by
the prosecution.32
We do not subscribe to petitioner's stand. Primarily, all the essential
elements of plunder can be culled and understood from its definition in
Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of them.
Moreover, the epigraph and opening clause of Sec. 4 is clear and
unequivocal:
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of
plunder x x x x
It purports to do no more than prescribe a rule of procedure for the
prosecution of a criminal case for plunder. Being a purely procedural
measure, Sec. 4 does not define or establish any substantive right in favor
of the accused but only operates in furtherance of a remedy. It is only a
means to an end, an aid to substantive law. Indubitably, even without
invoking Sec. 4, a conviction for plunder may be had, for what is crucial
for the prosecution is to present sufficient evidence to engender that
moral certitude exacted by the fundamental law to prove the guilt of the
accused beyond reasonable doubt. Thus, even granting for the sake of
argument that Sec. 4 is flawed and vitiated for the reasons advanced by
petitioner, it may simply be severed from the rest of the provisions
without necessarily resulting in the demise of the law; after all, the
existing rules on evidence can supplant Sec. 4 more than enough. Besides,
Sec. 7 of RA 7080 provides for a separability clause -
Sec. 7. Separability of Provisions. - If any provisions of this Act or the
application thereof to any person or circumstance is held invalid, the
remaining provisions of this Act and the application of such provisions to
other persons or circumstances shall not be affected thereby.
Implicit in the foregoing section is that to avoid the whole act from being
declared invalid as a result of the nullity of some of its provisions,
assuming that to be the case although it is not really so, all the provisions
thereof should accordingly be treated independently of each other,
especially if by doing so, the objectives of the statute can best be
achieved.
As regards the third issue, again we agree with Justice Mendoza that
plunder is a malum in se which requires proof of criminal intent. Thus, he
says, in his Concurring Opinion -
x x x Precisely because the constitutive crimes are mala in se the element
of mens rea must be proven in a prosecution for plunder. It is noteworthy
that the amended information alleges that the crime of plunder was
committed "willfully, unlawfully and criminally." It thus alleges guilty
knowledge on the part of petitioner.
In support of his contention that the statute eliminates the requirement
of mens rea and that is the reason he claims the statute is void, petitioner
cites the following remarks of Senator Tañada made during the
deliberation on S.B. No. 733:
SENATOR TAÑADA . . . And the evidence that will be required to convict
him would not be evidence for each and every individual criminal act but
only evidence sufficient to establish the conspiracy or scheme to commit
this crime of plunder.33
However, Senator Tañada was discussing §4 as shown by the succeeding
portion of the transcript quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is
contained in Section 4, Rule of Evidence, which, in the Gentleman's view,
would provide for a speedier and faster process of attending to this kind
of cases?
SENATOR TAÑADA: Yes, Mr. President . . .34
Senator Tañada was only saying that where the charge is conspiracy to
commit plunder, the prosecution need not prove each and every criminal
act done to further the scheme or conspiracy, it being enough if it proves
beyond reasonable doubt a pattern of overt or ciminal acts indicative of
the overall unlawful scheme or conspiracy. As far as the acts constituting
the pattern are concerned, however, the elements of the crime must be
proved and the requisite mens rea must be shown.
Indeed, §2 provides that -
Any person who participated with the said public officer in the
commission of an offense contributing to the crime of plunder shall
likewise be punished for such offense. In the imposition of penalties, the
degree of participation and the attendance of mitigating and extenuating
circumstances, as provided by the Revised Penal Code, shall be
considered by the court.
The application of mitigating and extenuating circumstances in the
Revised Penal Code to prosecutions under the Anti-Plunder Law indicates
quite clearly that mens rea is an element of plunder since the degree of
responsibility of the offender is determined by his criminal intent. It is
true that §2 refers to "any person who participates with the said public
officer in the commission of an offense contributing to the crime of
plunder." There is no reason to believe, however, that it does not apply
as well to the public officer as principal in the crime. As Justice Holmes
said: "We agree to all the generalities about not supplying criminal laws
with what they omit, but there is no canon against using common sense
in construing laws as saying what they obviously mean."35
Finally, any doubt as to whether the crime of plunder is a malum in
se must be deemed to have been resolved in the affirmative by the
decision of Congress in 1993 to include it among the heinous crimes
punishable by reclusion perpetua to death. Other heinous crimes are
punished with death as a straight penalty in R.A. No. 7659. Referring to
these groups of heinous crimes, this Court held in People v. Echegaray:36
The evil of a crime may take various forms. There are crimes that are, by
their very nature, despicable, either because life was callously taken or
the victim is treated like an animal and utterly dehumanized as to
completely disrupt the normal course of his or her growth as a human
being . . . . Seen in this light, the capital crimes of kidnapping and serious
illegal detention for ransom resulting in the death of the victim or the
victim is raped, tortured, or subjected to dehumanizing acts; destructive
arson resulting in death; and drug offenses involving minors or resulting
in the death of the victim in the case of other crimes; as well as murder,
rape, parricide, infanticide, kidnapping and serious illegal detention,
where the victim is detained for more than three days or serious physical
injuries were inflicted on the victim or threats to kill him were made or
29
the victim is a minor, robbery with homicide, rape or intentional
mutilation, destructive arson, and carnapping where the owner, driver or
Page
occupant of the carnapped vehicle is killed or raped, which are penalized
by reclusion perpetua to death, are clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the
significance and implications of the subject criminal acts in the scheme of
the larger socio-political and economic context in which the state finds
itself to be struggling to develop and provide for its poor and
underprivileged masses. Reeling from decades of corrupt tyrannical rule
that bankrupted the government and impoverished the population, the
Philippine Government must muster the political will to dismantle the
culture of corruption, dishonesty, greed and syndicated criminality that
so deeply entrenched itself in the structures of society and the psyche of
the populace. [With the government] terribly lacking the money to
provide even the most basic services to its people, any form of
misappropriation or misapplication of government funds translates to an
actual threat to the very existence of government, and in turn, the very
survival of the people it governs over. Viewed in this context, no less
heinous are the effects and repercussions of crimes like qualified bribery,
destructive arson resulting in death, and drug offenses involving
government officials, employees or officers, that their perpetrators must
not be allowed to cause further destruction and damage to society.
The legislative declaration in R.A. No. 7659 that plunder is a heinous
offense implies that it is a malum in se. For when the acts punished are
inherently immoral or inherently wrong, they are mala in se37 and it does
not matter that such acts are punished in a special law, especially since
in the case of plunder the predicate crimes are mainly mala in se. Indeed,
it would be absurd to treat prosecutions for plunder as though they are
mere prosecutions for violations of the Bouncing Check Law (B.P. Blg. 22)
or of an ordinance against jaywalking, without regard to the inherent
wrongness of the acts.
To clinch, petitioner likewise assails the validity of RA 7659, the
amendatory law of RA 7080, on constitutional grounds. Suffice it to say
however that it is now too late in the day for him to resurrect this long
dead issue, the same having been eternally consigned by People v.
Echegaray38 to the archives of jurisprudential history. The declaration of
this Court therein that RA 7659 is constitutionally valid stands as a
declaration of the State, and becomes, by necessary effect, assimilated in
the Constitution now as an integral part of it.
Our nation has been racked by scandals of corruption and obscene
profligacy of officials in high places which have shaken its very
foundation. The anatomy of graft and corruption has become more
elaborate in the corridors of time as unscrupulous people relentlessly
contrive more and more ingenious ways to bilk the coffers of the
government. Drastic and radical measures are imperative to fight the
increasingly sophisticated, extraordinarily methodical and economically
catastrophic looting of the national treasury. Such is the Plunder Law,
especially designed to disentangle those ghastly tissues of grand-scale
corruption which, if left unchecked, will spread like a malignant tumor
and ultimately consume the moral and institutional fiber of our nation.
The Plunder Law, indeed, is a living testament to the will of the legislature
to ultimately eradicate this scourge and thus secure society against the
avarice and other venalities in public office.
These are times that try men's souls. In the checkered history of this
nation, few issues of national importance can equal the amount of
interest and passion generated by petitioner's ignominious fall from the
highest office, and his eventual prosecution and trial under a virginal
statute. This continuing saga has driven a wedge of dissension among our
people that may linger for a long time. Only by responding to the clarion
call for patriotism, to rise above factionalism and prejudices, shall we
emerge triumphant in the midst of ferment.
PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known
as the Plunder Law, as amended by RA 7659, is CONSTITUTIONAL.
Consequently, the petition to declare the law unconstitutional is
DISMISSED for lack of merit.
SO ORDERED.
PLEASE SEE DISSENTING OPINION
(5) G.R. No. 124067 March 27, 1998
PERLA A. SEGOVIA, REYNALDO C. SANTIAGO and WINIFREDO SM.
PANGILINAN, petitioners vs. The SANDIGANBAYAN, PEOPLE OF THE
PHILIPPINES, and the PRESIDENT of the NATIONAL POWER
CORPORATION, respondents.
NARVASA, C.J.:
The special civil action of certiorari and prohibition at bar seeks
nullification of two (2) Resolutions of the Second Division of the
Sandiganbayan issued in Criminal Case No. 21711 -- in which petitioners
are prosecuted for violation of the Anti-Graft and Corrupt Practices Act :
Republic Act No. 3019, as amended. The resolution assailed are:
1) that dated February 1, 1996, which ordered petitioners preventive
suspension for ninety (90) days in accordance with Section 13 of said R.A
3019; and
2) that dated February 23, 1996, which denied petitioners motion for
reconsideration of the suspension order.
The primary issue raised is whether it is mandatory or discretionary for
the Sandiganbayan to place under preventive suspension public officers
who stand accused before it, pursuant to said Section 13 of the law.
Section 13 reads:
Sec. 13 Suspension and Loss of benefits. -- Any incumbent public officer
against whom any criminal prosecution under a valid information under
this Act or under Title 7, Book II of the Revised Penal Code or for any
offense involving fraud upon government or public funds or propertty,
whether as a simple or as a complex offense in whatever stage of
execution and mode of participation, is pending in court, shall be
suspended from office. ** **
It is petitioners' submission that preventive suspension under this section
rest in the sound discretion of the Sandiganbayan despite the ostensibly
mandatory language of the statute, and that that discretion was gravely
abused by the Sandiganbayan, or it exceeded its jurisdiction, when it
decreed their suspension.
Petitioners -- Perla Segovia, Reynaldo Santiago, and Winifredo SM
Pangilinan -- all hold regular executive positions in the National Power
Corporation (NPC). They -- together with two other officers who have
since resigned from the NPC, namely: Gilberto A. Pastoral and Cecilia D.
Vales -- were designated by the NPC Board to compose the Contracts
Committee for said NPCs Mindanao Grid LDC & SCADA/EMS System
Operation Control Center and Facilities Project.
The Contracts Committee thus constituted conducted the
prequalification and bidding procedures for the project. The lowest and
second lowest bidders were the Joint Venture of INPHASE and T & D, and
Urban Consolidated Constructors, Inc., respectively. The Technical Task
Force on Bid Evaluation of the NPC reviewed all the bids submitted and
recommended approval of the results. The contracts Committee,
however, declared the lowest bidder (Joint Venture) disqualified after
verification from the Philippines Contractors Accredition Board that that
group, as well as the second lowest bidder (Urban) had been
downgraded, thereby rending both ineligible as bidders.
The Contracts Committee also stated that since a review of relevant
factors disclosed that the other bids had exceeded the Approved Agency
Estimates and the Allowable Government Estimates for Options A and B
of the Project, it was was needful for the NPC Board to declare a failure
of bidding and direct a re-bidding. The recommendation was
unanimously approved by the NPC Board; but for reasons not appearing
30
on record (and, in any event, not relevant to the inquiry), the project was
eventually cancelled.
Page
Obviously feeling aggrieved by the turn of events, Urban filed a complaint
with the Office of the Ombudsman against the Chairman and Members
of the Board of Directors of NPC; the Chairman (Gilberto Pascual) and
Members of the NPC Contracts Awards Committee; the Chairman (Perla
Segovia) of the Pre-Qualification Bids & Awards Committee; the Manager
(Cecilia D. Vales) of the Contracts Management Office, and two others.[1]
Urban alleged that before the bidding, Joint Venture had been
disqualified, but the Contracts Committee, without basis and in order to
favor it, reconsidered its disqualification and thus enabled it to take part
in the bidding and in fact to submit the lowest bid; that the NPC was
already poised to award the contract to Joint Venture but because Urban
protested, it was compelled to "post-disqualify" the former; however,
intead of awarding the contract for the project to Urban as the second
lowest bidder, the Committee and the NPC Board declared a failure of
bidding and ultimately cancelled the project. These acts, it is claimed,
constituted a violation of the Anti-Graft and Corrupt Practices Act.
A preliminary investigation was conducted by the Ombudsmans Office
after which Graft Investigation Officer A.A. Amante submitted a
Resolution dated August 2, 1994[2]recommending, among others, that:
1) petitioners Perla Segovia, Reynaldo Santiago, Winifredo SM Pangilinan,
as well as Gilberto Pastoral and Cecilia Vales be charged with a violation
of Section 3 (e) of RA 3019 of having in one way or the other extended
undue advantage to Joint Venture through manifest partiality, evident
bad faith and gross inexcusable negligence; and
2) the NPC President, NPC charman and Members of the Board of
Directors be cleared of the ** complaint as their official actuation of
sustaining a failure of bidding and the consequent re-bidding is supported
by factual and legal basis.
Assistant Ombudsman Abelardo L. Aportadera, Jr., favorably endorsed
the recommendation which was eventually approved on December 6,
1994 by Hon. Conrado M. Vasquez, then the Ombudsman.[3]
An information was accordingly filed with the Sandiganbayan against
petitioners Segovia, Santiago, and Pangilinan, as well as Pastoral and
Vales, docketed as Criminal Case No. 21711. They were charged with
infringement of Section 3 (e) of RA 3019: i,e., causing undue injury to any
party, including the Government, or giving any party any unwarranted
benefits, advantage or preference in the discharge of his official,
administrative or judicial function through manifest partiality, evident
bad faithy or gross inexcusable negligence.
Petioners sought and obtained a reinvestigation of their case but gained
no benefit thereby. For although the reinvestigating officer made a
recommendation on March 7, 1995 that the information against
petitioners be withdrawn -- because the prima facie case had already
been overthrown, considering that, as it now stands, the evidence at
hand cannot stand judicial scrunity[4] -- and that recommendation met
with the aprroval of the Special Prosecutor, it was ultimately turned down
by the chief Special Prosecutor[5] on April 18, 1995, and on April 20, 1995,
by the Ombudsman himself.[6]
The case thus proceeded in the Sandiganbayan. The accused were
arraigned and entered pleas of not guilty; and a pre-trial was held which
resulted in stipulation of facts embodied in an order dated January 11,
1996.[7]
Earlier, the People had filed a Motion to Suspend Accused Pendente Lite
dated October 24, 1995, invoking Section 13 of RA 3019., as amended,
and relevant jurisprudence, and alleging that the information/s is /are
valid.[8]
Petitioner opposed the motion.[9] In their pleading dated November 28,
1995, the theorized that the explicit terms of the law notwithstanding,
their suspension was not mandatory in the premises. They claimed that
the admissions at the pre-trial show that the transactions in question
resulted in no unwarranted benefits, advantage or preference, or injury,
to anyone; that two of the five accused were no longer employees of the
NPC; that two of the five accused were no longer employees of the NPC;
that the positions that Segovia, Pangilinan and Santiago continued to
occupy in the NPC were quite sentitive and had no relation to
prequalification of contractors, biddings or awards -- which was an
additional function temporarily assigned to them and for which the
received no compensation at all -- and their suspension might cause delay
of vital projects of the NPC; and that under the circumstances obtaining,
they were in no position to tamper with any evidence.
Petitioners opposition was overruled. On January 31, 1996 the
Sandiganbayan[10] handed down its Resolution suspending them for a
period of ninety (90) days.[11] The Sandiganbayan held that the
suspension was mandated under the law upon a finding that a proper
preliminary investigation had been conducted , the information was
valid, and the accused were charged with any of the crimes specified in
the law; and stressed that its authority and power to suspend the accused
had been repeatedly upheld in several precedents. It subsequently
denied petitioners motion for reconsideration dated February 14, 1996,
(c)onsidering the paucity of the(ir) arguments ** and in the light of the
mass of jurisprudence involving the power and authority of this Court to
issue orders for preventive suspension of the accused **.[12]
Petitioners would now have this Court strike down these resolution
because supposedly rendered in excess of jurisdiction or with grave
abuse of discretion. The court will not do so. In no sense may the
challeged resolutions be stigmatized as so clearly capricious, whimsical,
oppressive, egregiously erroneous or wanting in logic as to call for
invalidation by the extraordinary writ of certiorari. On the contrary, in
promulgating those resolution, the Sandiganbayan did but adhere to the
clear command of the law and what it calls a mass of jurispudence
emanating from this Court, sustaining its authority to decree suspension
of public officials and employees indicted before it. Indeed, that the
theory of discretionary suspension should still be advocated to this late
date, despite the mass of jurisprudence relevant to the issue, it little short
of amazing, bordering on contumacious disregard of the solemn
magisterial pronouncements of the Highest court of the land.
Republic Act no. 3019 was enacted by Congress more than 37 years ago,
on August 17, 1960, becoming effective on the same date. The law was
later amended by Republic Act No. 3047, Presidential Decree 677 and
Presidential Decree No. 1288. The last amendment -- to Section 13
thereof -- was introduced by Batas Pambansa Bilang 195, approved on
March 16, 1972.
The validity of Section 13, R.A. 3019, as amended -- treating of the
suspension pendente lite of an accused public officer -- may no longer be
put at issue, having been repeatedly upheld by this Court. As early as
1984, in Bayot v. Sandiganbayan,[13] the Court held by this Court. As
suspension was not penal in character but merely a preventive measure
before final judgement; hence, the suspension of a public officer charged
with one of the crimes listed in the amending law, committed before said
amendment, does not violate the constitutional provision against an ex
post facto law. The purpose of suspension is to prevent the accused
public officer from frustrating or hampering his prosecution by
intimidating or influencing witnesses or tampering with documentary
evidence, or from committing further acts of malfeasance while in
office.[14] Substantially to the same effect was the Courts holding in
1991, in Gonzaga v. Sandiganbayan,[15] that preventive suspension is not
violative suspension remains entitled to the constitutional presumption
of innocence since his culpability must still be established.
The Anti-Graft and Corrupt Practices Act implicitly recognizes that the
power of preventive suspension lies in the court in which the criminal
charge is filed; once a case is filed in court, all other acts connected with
the discharge of court functions -- including preventive suspension --
should be aknowledged as within the competence of the court that has
taken cognizance thereof, no violation of the doctrine of separation of
powers being perceivable in that acknowledgment.[16]
The provision of suspension pendente lite applies to all persons indicated
upon a valid information under Act, whether they be appointive or
elective officials; or permenent or temporary employees, or pertaining to
31
the career or non-career service.[17] It appears to a Public High School
Principal;[18] a Municipal Mayor;[19] a Governor;[20] a
Page
Congressman;[21] a Department of Science and Technology (DOST) non-
career Project Manager;[22] a Commissioner of the Presidential
Commission on Good Government (PCGG).[23] The term office in Section
13 of the law applies to any office in relation to which he is charged.[24]
It is mandatory for the court to place under preventive suspension a
public officer accused before it.[25] Imposition of suspension, however,
is not automatic or self-operative. A precondition therefor is the
existence of a valid information, determined at a pre-suspension hearing.
Such a hearing is in accord with the spirit of the law, considering the
serious and far-reaching consequences of a suspension of a public official
even before his conviction, and the demands of public interest for speedy
determination of the issues involved in the case.[26] The purpose of the
pre-suspension hearing is basically to detrmine the validity of the
information and thereby furnish the court with a basis to either suspend
the accused and proceed with the trial on the merits of the case, or refuse
suspension of the latter and dismiss the case, or correct any part of the
proceeding which impairs its validity.27 The accused should be given
adequate oppurtunity to challege the validity or regularity of the criminal
proceedings against him; e.g. that he has not been afforded the right to
due preliminary investigation; that he has not been afforded the right to
due preliminary investigation; that the acts imputed to him do not
constitute a specific crime (under R.A. 3019 or the Revised Penal Code)
warranting his mandatory suspension from office under Section 13 of the
Act; or that the information is subject to quashal on any of the grounds
set out in Rule 117 of the Rules of Court.28 But once a proper
determination of the validity of the Information has been made, it
becomes the ministerial duty of the court to forthwith issue the order of
preventive suspension of the accused official on the pretext that the
order denying the latters motion to quash is pending review before the
appellate courts.29
However, the preventive suspension may not be of indefinite duration or
for an unreasonable length of time; it would be constitutionally
proscribed otherwise as it raises, at the very least, questions of denial of
due process and equal protection of the laws.30 The Court has thus laid
down the rule that preventive suspension may not exceed the maximum
period of ninety (90) days in consonance with Presidential Decree No. 807
(the Civil Service Decree), noew Section 52 of the Administrative Code of
1987.31
While petitioners concede that this Court has almost consistently ruled
that the preventive suspension contemplated in Section 13 of RA 3019 is
mandantory in character, they nonetheless urge the Court to consider
their case an exception because of the peculiar circumstances thereof.
They assert that the evils sought to be avoidedby seperating a public
official from the scene of his alleged misfeasance while the same is being
investigated32 -- e.g., to preclude the abuse of the prerogative of ** (his)
office, such as through intimidation of witnesses,33 or the tampering
with documentary evidence -- will not occur in the present situation
where:
1. The Project has been cancelled.
2. (Their) ** official duties no longer pertain, in any manner, to the
prequalification of contractors dealing with the NPC. Neither are they
now involved in any bidding for or awarding of contracts, ** it (being)
emphasized (in this connection) that they were merely designated as ad
hoc members of the Committee without additional compensation for
their additional duties.
3. All the relevant documentary evidence had been submitted either to
the Ombudsman or the Honorable Sandiganbayan.
They conclude that their preventive suspension at this point would
actually be purposeless, as there is no more need for precautionary
measures against their abuse of the prerogatives of their office.
The arguments are not new. They have been advanced and rejected in
earlier cases. They will again be so rejected in this case.
The Courts pronouncements in Bolastig v. Sandiganbayan, supra.,34 are
germane:
Our holding that, upon the filing of a valid information charging violation
of Republic Act No. 30 19, Book II, Title 7 of the Revised Penal Code, or
fraud upon government or public property, it is the duty of the court to
place the accused under preventive suspension disposes of petitioners
other contention that since the trial in the Sandiganbayan is now over
with respect to the presentation of evidence for the prosecution there is
no longer any danger that petitioner would intimidate prosecutions
witnesses. The fact is that the possibility that the accused would
intimidate witnesses or otherwise hamper his prosecution is just one of
the grounds for preventive suspension. The other one is, ** to prevent
the accused from committing further acts of malfeasance while in office.
Bolastig also disposes of the other contention that vital projects of NPC
may be delayed by their preventive suspension, viz.:35
Finally, the fact that petitioners preventive suspension may deprive the
people of Samar of the services of an official elected by them, at least
temporarily, is not a sufficient basis for reducing what is otherwise a
mandatory period prescribed by law. The vice governor, who has likewise
been elected by them, will act as governor. (The Local Government Code
of 1991, sec. 46[a]) Indeed, even the Constitution authorizes the
suspension for not more than sixty days of members of Congress found
guilty of disorderly behavior, (Art. VI, sec. 16[3]) thus rejecting the view
expressed in one case (Alejandrino v. Quezon. 46 Phil. 83, 96 [1924]) that
members of the legislature could not be suspended because in the case
of suspension, unlike in the case of removal, the seat remains filled but
the constitutents are deprived of reprensation.
The firmly entrenched doctrine is that under Section 13 of the Anti-Graft
and Corrupt Practices Law, the suspension of a public officer is mandatory
after a determination has been made of the validity of the information in
a pre-suspension hearing conducted for that purpose.
In Socrates v. Sandiganbayan, et al.,36 decided fairly recently, the Court
again expatiated on the mandatory character of suspension pendente lite
under Section 13 of R.A. No. 3019 and the nature of the pre-suspension
hearing.
This Court has ruled that under Section 13 of the anti-graft law, the
suspension of a public officer is mandatory after the validity of the
information has been upheld in a pre-suspension hearing conducted for
that purpose. This pre-suspension hearing is conducted to determine
basically the validity of the information, from which the Court can have a
basis to either suspend the accused and proceed with the trial on the
merits of the case, or withhold the suspension of the latter and dismissed
the case, or correct any part of the proceeding which impairs its validity.
That hearing may be treated in the same manner as a challenge to the
validity of the information by way of a motion to quash (See People vs.
Albano, etc., et. al., L-45376-77, July 28, 1988, 163 SCRA 511)
In the leading case of Luciano, et al. vs. Mariano, et al. (L-32950, July 30,
1971, 40 SCRA 187), we have set out the guidelines to be followed by the
lower courts in the exercise of the power of suspension under Section 13
of the law, to wit:
(c) By way of broad guidelines for the lower courts in the exercise of the
power of suspension from office of public officers charged under a valid
information under the provisions of Republic Act No. 3019 or under the
provisions of the Revised Penal Code on bribery, pursuant to section 13
of said Act, it may be briefly stated that upon the filing of such
information, the trial court should issue an order with proper notice
requiring the accused officer to show cause at a specific date of hearing
why he shoud not be ordered suspended from office pursuant to the
cited mandatory provisions of the Act. Where either the prosecution
seasonably files a motion for an order of suspension or the accused in
turn files a motion to quash the information or challenges the validity
thereof, such show-cause order of the trial court would no longer be
necessary. What is indispensable is that the trial court duly hear the
parties at a hearing held for determining the validity of the information,
and thereafter hand down its ruling, issuing the corresponding order of
32
suspension should it uphold the validity of the information or withhold
such suspension in the contrary case.
Page
(d) No specific rules need be laid down for such pre-suspension hearing.
Suffice it to state that the accused should be given a fair and adequate
opportunity to challenge the validity of the criminal proceedings against
him, e.g., that he has not been afforded the right of due preliminary
investigation, the act for which he stands charged do not constitute a
violation of the provisions of Republic Act No. 3019 or of bribery
provisions of the Revised Penal Code which would warrant his mandatory
suspension from office under Section 13 of the Act, or he may present a
motion to quash the information on any of the grounds provided in the
Rule 117 of the Rules of Court. The mandatory suspension decreed by the
act upon determination of the pendency in court or crimianl prosecution
for violation of the Anti-Graft Act or for bribery under a valid information
requires at the same time that the hearing be expeditious, and not unduly
protracted such as to thwart the prompt suspension envisioned by the
Act. Hence, if the trial court, say, finds the ground alleged in the quashal
motion not to be indubitable, then it shall be called upon to issue the
suspension order upon its upholding the validity of the information and
setting the same for trial on the merits.
With the aforequoted jurisrudential authority as the basis, it is evident
that upon a proper determination of the validity of the information, it
bacomes mandatory for the court to immmediately issue the suspension
order. The rule on the matter is specific and categorical. It leaves no room
for interpretation. It is not within the courts discretion to hold in
abeyance the suspension of the accused officer on the pretext that the
order denying the motion to quash is pending review before the appellate
courts. Its discretion lies only during the pre-suspension hearing where it
is required to ascertain whether or not (1) the accused had been afforded
due preliminary investigation prior to the filling of the information
against him, (2) the acts for which he was charged constitute a violation
of the provisions of Republic Act. No. 3019 or of the provisions of title 7,
Book II of the revised Penal Code, or (3) the information against him can
be quashed, under any of the grounds provided in Section 2, Rules 117 of
the Rules of Court. (People vs. Albana, etc., at al. Supra, fn. 26)
Once the information is found to be sufficient in form and substance,
then the court must issue the order of suspension as a matter of course.
There are no ifs and buts about it. This is because a preventive suspension
is not penalty. It is not imposed as a result of judicial proceedings. In fact,
if acquitted, the official concerned shall be entitled to reinstatement and
to the salaries and benefits which he failed to receive during suspension.
In view of this latter provisions, the accused elective public officer does
not stand to be prejudiced by the immediate enforcement of the
suspension order in the event that the information is subsequently
declared null and void on appeal and the case dismissed as against him.
Taking into consideration the public policy involved in preventively
suspending a public officer charged under a valid information, the
protection of public interest will definitely have to prevail over the private
interest of the accused. (Bayot vs. Sandiganbayan, et al., G.R. Nos. 61776-
61861, March 23, 1984, 128 SCRA 383)
To further emphasize the ministerial duty of the court under Section 13
of Republic Act No. 3019, it is said that the court trying the case has
neither discretion nor duty to determine whether or not a preventive
suspension is required to prevent the accused from using his office to
intimidate witnesses or frustrate his prosecution or continue commiting
malfeasance in office. The presumption is that unless the accused is
suspended, he may frustrate his prosecution or commit further acts of
malfeasance or do both, in same way that upon a finding that there is
probable cause to believe that a crime has been committed and that the
accused is probably guilty thereof, the law requires the judge to issue a
warrant for the arrest of the accused. The law does not require the court
to determine whether the accused is likely to escape or evade the
jurisdiction of the court.
The Court is satisfied that the Second Division of the Sandiganbayan, after
upholding the validity of the information against petitioners, correctly
ordered their preventive suspension from any public office for period of
ninety (90) days.
As was stressed in Libanan v. Sandiganbayan 37
** When the statute is clear and explicit, there is hardly room for any
extended court ratiocination or rationalization of the law. Republic Act
No. 3019 unequivocally mandates the suspension of a public official from
office pending a criminal prosecution against him. This Court has
repeatedly held that such preventive suspension is mandatory **, and
there are no ifs and buts about it.
WHEREFORE, the petition in this case is hereby DISMISSED for lack of
merit. Cost against petitioners.
SO ORDERED.
(6) G.R. Nos. 169823-24 September 11, 2013
HERMINIO T. DISINI, Petitioner, vs. THE HON. SANDIGANBAYAN, FIRST
DIVISION, AND THE PEOPLE OF THE PHILIPPINES, Respondents.
G.R. Nos. 174764-65
HERMINIO T. DISINI, Petitioner, vs. SANDIGANBAYAN, FIRST DIVISION,
AND THE PEOPLE OF THE PHILIPPINES, Respondents.
BERSAMIN, J.:
The Sandiganbayan has exclusive original jurisdiction over the criminal
action involving petitioner notwithstanding that he is a private individual
considering that his criminal prosecution is intimately related to the
recovery of ill-gotten wealth of the Marcoses, their immediate family,
subordinates and close associates.
The Case
Petitioner Herminio T. Disini assails via petition for certiorari there
solutions promulgated by the Sandiganbayan in Criminal Case No.
28001and Criminal Case No. 28002, both entitled People v. Herminio T.
Disini, on January 17, 2005 (denying his motion to quash the
informations)1 and August 10, 2005 (denying his motion for
reconsideration of the denial of his motion to quash),2 alleging that the
Sandiganbayan (First Division) thereby committed grave abuse of
discretion amounting to lack or excess of jurisdiction.
Antecedents
The Office of the Ombudsman filed two informations dated June 30,2004
charging Disini in the Sandiganbayan with corruption of public officials,
penalized under Article 212 in relation to Article 210 of the Revised Penal
Code (Criminal Case No. 28001), and with a violation of Section 4(a) of
Republic Act 3019 (R.A. No. 3019), also known as the Anti-Graft and
Corrupt Practices Act (Criminal Case No. 28002).
The accusatory portions of the informations read as follows:
Criminal Case No. 28001
That during the period from 1974 to February 1986, in Manila,
Philippines, and within the jurisdiction of this Honorable Court, accused
HERMINIO T. DISINI, conspiring together and confederating with the then
President of the Philippines Ferdinand E. Marcos, did then and there,
willfully, unlawfully and feloniously offer, promise and give gifts and
presents to said Ferdinand E. Marcos, consisting of accused DISINI’s
ownership of two billion and five hundred (2.5 billion) shares of stock in
Vulcan Industrial and Mining Corporation and four billion (4 billion)shares
of stock in The Energy Corporation, with both shares of stock having then
a book value of ₱100.00 per share of stock, and subcontracts, to
Engineering and Construction Company of Asia, owned and controlled by
said Ferdinand E. Marcos, on the mechanical and electrical construction
work on the Philippine Nuclear Power Plant Project("Project") of the
33
National Power Corporation at Morong, Bataan, all for and in
consideration of accused Disini seeking and obtaining for Burns and Roe
Page
and Westinghouse Electrical Corporation (Westinghouse), the contracts
to do the engineering and architectural design and to construct,
respectively, the Project, as in fact said Ferdinand E. Marcos, taking
undue advantage of his position and committing the offense in relation
to his office and in consideration of the aforesaid gifts and presents, did
award or cause to be awarded to said Burns and Roe and Westinghouse,
the contracts to do the engineering and architectural design and to
construct the Project, respectively, which acts constitute the crime of
corruption of public officials.
CONTRARY TO LAW.3
Criminal Case No. 28002
That during the period 1974 to February 1986, in Manila, Philippines, and
within the jurisdiction of the Honorable Court, accused HERMINIO T.
DISINI, conspiring together and confederating with the then President of
the Philippines, Ferdinand E. Marcos, being then the close personal friend
and golfing partner of said Ferdinand E. Marcos, and being further the
husband of Paciencia Escolin-Disini who was the first cousin of then First
Lady Imelda Romualdez-Marcos and family physicianof the Marcos
family, taking advantage of such close personal relation, intimacy and
free access, did then and there, willfully, unlawfully and criminally, in
connection with the Philippine Nuclear Power Plant (PNPP)Project
("PROJECT") of the National Power Corporation (NPC) at Morong, Bataan,
request and receive from Burns and Roe, a foreign consultant, the total
amount of One Million U.S. Dollars ($1,000,000.00),more or less, and also
from Westinghouse Electric Corporation(WESTINGHOUSE), the total
amount of Seventeen Million U.S. Dollars($17,000,000.00), more or less,
both of which entities were then having business, transaction, and
application with the Government of the Republic of the Philippines, all
for and in consideration of accused DISINI securing and obtaining, as
accused Disini did secure and obtain, the contract for the said Burns and
Roe and Westinghouse to do the engineering and architectural design,
and construct, respectively, the said PROJECT, and subsequently, request
and receive subcontracts for Power Contractors, Inc. owned by accused
DISINI, and Engineering and Construction Company of Asia (ECCO-Asia),
owned and controlled by said Ferdinand E. Marcos, which stated
amounts and subcontracts constituted kickbacks, commissions and gifts
as material or pecuniary advantages, for securing and obtaining, as
accused DISINI did secure and obtain, through the direct intervention of
said Ferdinand E. Marcos, for Burns and Roe the engineering and
architectural contract, and for Westinghouse the construction contract,
for the PROJECT.
CONTRARY TO LAW.4
On August 2, 2004, Disini filed a motion to quash,5 alleging that the
criminal actions had been extinguished by prescription, and that the
informations did not conform to the prescribed form. The Prosecution
opposed the motion to quash.6
On September 16, 2004, Disini voluntarily submitted himself for
arraignment to obtain the Sandiganbayan’s favorable action on his
motion for permission to travel abroad.7 He then entered a plea of not
guilty to both informations.
As stated, on January 17, 2005, the Sandiganbayan (First Division)
promulgated its first assailed resolution denying the motion to quash.8
Disini moved for the reconsideration of the resolution dated January 17,
2005,9 but the Sandiganbayan (First Division) denied his motion on
August 10, 2005 through the second assailed resolution.10
Issues
Undaunted, Disini commenced this special civil action for certiorari,
alleging that:
A. THE RESPONDENT COURT HAS NO JURISDICTION OVER
THEOFFENSES CHARGED.
1. THE RESPONDENT COURT GRAVELY ERRED WHEN
ITRULED THAT SECTION 4, PARAGRAPHS (A) AND (B)
OFREPUBLIC ACT NO. 8249 DO NOT APPLY SINCE
THEINFORMATIONS WERE "FILED PURSUANT TO E.O.
NOS. 1,2, 14 AND 14-A".
2. THE RESPONDENT COURT GRAVELY ERRED WHEN
ITASSUMED JURISDICTION WITHOUT HAVING MET
THEREQUISITE UNDER SECTION 4 OF R.A. 8249 THAT
THEACCUSED MUST BE A PUBLIC OFFICER.
B. THE RESPONDENT COURT ACTED WITH SUCH GRAVEABUSE
OF DISCRETION WHEN IT EFFECTIVELY IGNORED,
DISREGARDED, AND DENIED PETITIONER’SCONSTITUTIONAL
AND STATUTORY RIGHT TOPRESCRIPTION.
1. THE RESPONDENT COURT GRAVELY ERRED
INDETERMINING THE APPLICABLE PRESCRIPTIVE
PERIOD.
2. THE RESPONDENT COURT GRAVELY ERRED
INDETERMINING THE COMMENCEMENT OF
THEPRESCRIPTIVE PERIOD.
3. THE RESPONDENT COURT GRAVELY ERRED
INDETERMINING THE POINT OF INTERRUPTION OF
THEPRESCRIPTIVE PERIOD.
C. BY MERELY ASSUMING THE PRESENCE OF
GLARINGLYABSENT ELEMENTS IN THE OFFENSES CHARGED
TOUPHOLD THE ‘SUFFICIENCY’ OF THE INFORMATIONS
INCRIMINAL CASE NOS. 28001 AND 28002, THE
RESPONDENTCOURT DEMONSTRATED ITS PREJUDGMENT
OVER THE SUBJECT CASES AND ACTED WITH GRAVE ABUSE OF
ITSDISCRETION.
D. THE RESPONDENT COURT ACTED WITH GRAVE ABUSE
OFDISCRETION IN REFUSING TO QUASH THE
INFORMATIONSDESPITE THEIR UTTER FAILURE TO COMPLY
WITH THEPRESCRIBED FORM, THUS EFFECTIVELY DENYING
THEACCUSED HIS CONSTITUTIONAL AND STATUTORY RIGHTTO
BE INFORMED OF THE NATURE AND CAUSE OF
THEACCUSATION AGAINST HIM.11
Ruling
The petition for certiorari has no merit.
1.Preliminary Considerations
To properly resolve this case, reference is made to the ruling of the Court
in G.R. No. 175730 entitled Herminio Disini v. Sandiganbayan,12 which
involved the civil action for reconveyance, reversion, accounting,
restitution, and damages (Civil Case No. 0013 entitled Republic v.
HerminioT. Disini, et al.) filed by the Presidential Commission on Good
Government(PCGG) against Disini and others.13 The amended complaint
in Civil Case No. 0013 alleged that Disini had acted in unlawful concert
with his co-defendants in acquiring and accumulating ill-gotten wealth
through them is appropriation of public funds, plunder of the nation’s
wealth, extortion, embezzlement, and other acts of corruption, 14 as
follows:
4. Defendant HERMINIO T. DISINI is a close associate of defendant
Ferdinand E. Marcos and the husband of the first cousin of Defendant
Imelda R. Marcos. By reason of this relationship xxx defendant Herminio
Disini obtained staggering commissions from the Westinghouse in
exchange for securing the nuclear power plant contract from the
34
Philippine government.
Page
xxxx
13. Defendants Herminio T. Disini and Rodolfo Jacob, by themselves
and/or in unlawful concert, active collaboration and willing participation
of defendants Ferdinand E. Marcos and Imelda R. Marcos, and taking
undue advantage of their association and influence with the latter
defendant spouses in order to prevent disclosure and recovery of ill-
gotten assets, engaged in devices, schemes, and stratagems such as:
xxxx
(c) unlawfully utilizing the Herdis Group of Companies and Asia Industries,
Inc. as conduits through which defendants received, kept, and/or
invested improper payments such as unconscionably large commissions
from foreign corporations like the Westinghouse Corporation; (d)
secured special concessions, privileges and/or benefits from defendants
Ferdinand E. Marcos and Imelda R. Marcos, such as a contract awarded
to Westinghouse Corporation which built an inoperable nuclear facility in
the country for a scandalously exorbitant amount that included
defendant’s staggering commissions – defendant Rodolfo Jacob executed
for HGI the contract for the aforesaid nuclear plant;15
Through its letter dated April 8, 1991,16 the PCGG transmitted the records
of Criminal Case No. 28001 and Criminal Case No. 28002 to then
Ombudsman Conrado M. Vasquez for appropriate action, to wit:
In line with the decision of the Supreme Court in the case of EduardoM.
Cojuangco, Jr. versus the PCGG (G.R. Nos. 92319–92320) dated October
2, 1990, we are hereby transmitting to your Office for appropriate action
the records of the attached criminal case which we believe is similar to
the said Cojuangco case in certain aspects, such as: (i) some parts or
elements are also parts of the causes of action in the civil complaints[-
]filed with the Sandiganbayan; (ii) some properties or assets of the
respondents have been sequestered; (iii) some of the respondents are
also party defendants in the civil cases.
Although the authority of the PCGG has been upheld by the Supreme
Court, we are constrained to refer to you for proper action the herein-
attached case in view of the suspicion that the PCGG cannot conduct an
impartial investigation in cases similar to that of the Cojuangco case. x x
x
Ostensibly, the PCGG’s letter of transmittal was adverting to the ruling in
Cojuangco, Jr. v. Presidential Commission on Good Government
(Cojuangco, Jr.),17 viz:
x x x The PCGG and the Solicitor General finding a prima facie basis filed
a civil complaint against petitioner and intervenors alleging substantially
the same illegal or criminal acts subject of the subsequent criminal
complaints the Solicitor General filed with the PCGG for preliminary
investigation. x x x.
Moreover, when the PCGG issued the sequestration and freeze orders
against petitioner’s properties, it was on the basis of a prima facie finding
that the same were ill-gotten and/or were acquired in relation to the
illegal disposition of coconut levy funds. Thus, the Court finds that the
PCGG cannot possibly conduct the preliminary investigation of said
criminal complaints with the "cold neutrality of an impartial judge," as it
has prejudged the matter. x x x18
xxxx
The Court finds that under the circumstances of the case, the PCGG
cannot inspire belief that it could be impartial in the conduct of the
preliminary investigation of the aforesaid complaints against petitioner
and intervenors. It cannot possibly preside in the said preliminary
investigation with an even hand.
The Court holds that a just and fair administration of justice can be
promoted if the PCGG would be prohibited from conducting the
preliminary investigation of the complaints subject of this petition and
the petition for intervention and that the records of the same should be
forwarded to the Ombudsman, who as an independent constitutional
officer has primary jurisdiction over cases of this nature, to conduct such
preliminary investigation and take appropriate action.19 (Bold emphasis
supplied)
It appears that the resolutions of the Office of the Ombudsman, following
its conduct of the preliminary investigation on the criminal complaints
thus transmitted by the PCGG, were reversed and set aside by the Court
in Presidential Commission on Good Government v. Desierto,20
with the Court requiring the Office of the Ombudsman to file the
informations that became the subject of Disini’s motion to quash in
Criminal Case No.28001 and Criminal Case No. 28002.
2.
Sandiganbayan has exclusive and
original jurisdiction over the offenses charged
Disini challenges the jurisdiction of the Sandiganbayan over the offenses
charged in Criminal Case No. 28001 and Criminal Case No. 28002.He
contends that: (1) the informations did not allege that the charges were
being filed pursuant to and in connection with Executive Order (E.O.)
Nos.1, 2, 14 and 14-A; (2) the offenses charged were not of the nature
contemplated by E.O. Nos. 1, 2, 14 and 14-A because the allegations in
the informations neither pertained to the recovery of ill-gotten wealth,
nor involved sequestration cases; (3) the cases were filed by the Office of
the Ombudsman instead of by the PCGG; and (4) being a private
individual not charged as a co-principal, accomplice or accessory of a
public officer, he should be prosecuted in the regular courts instead of in
the Sandiganbayan.
The Office of the Solicitor General (OSG) counters that the Sandiganbayan
has jurisdiction over the offenses charged because Criminal Case No.
28001 and Criminal Case No. 28002 were filed within the purview of
Section 4 (c) of R.A. No. 8249; and that both cases stemmed from the
criminal complaints initially filed by the PCGG pursuant to its mandate
under E.O. Nos. 1, 2, 14 and 14-A to investigate and file the appropriate
civil or criminal cases to recover ill-gotten wealth not only of the
Marcoses and their immediately family but also of their relatives,
subordinates and close associates.
We hold that the Sandiganbayan has jurisdiction over Criminal Case No.
28001 and Criminal Case No. 28002.
Presidential Decree (P.D.) No. 1606 was the law that established the
Sandiganbayan and defined its jurisdiction. The law was amended by R.A.
No. 7975 and R.A. No. 8249. Under Section 4 of R.A. No. 8249, the
Sandiganbayan was vested with original and exclusive jurisdiction over all
cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise
known as the Anti-Graft and Corrupt Practices Act, Republic Act
No.1379, and Chapter II, Section 2, Title VII, Book II of the
Revised Penal Code, where one or more of the accused are
officials occupying the following positions in the government
whether in a permanent, acting or interim capacity, at the time
of the commission of the offense:
xxxx
b. Other offenses or felonies whether simple or complexed with
other crimes committed by the public officials and employees
mentioned in subsection (a) of this section in relation to their
office.
35
c. Civil and criminal cases filed pursuant to and in connection
Page
with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.
(Bold emphasis supplied)
In cases where none of the accused are occupying positions
corresponding to salary grade ‘27’ or higher, as prescribed in the said
Republic Act No. 6758, or military or PNP officers mentioned above,
exclusive original jurisdiction thereof shall be vested in the proper
regional trial court, metropolitan trial court, municipal trial court and
municipal circuit trial court, as the case may be, pursuant to their
respective jurisdiction as provided in Batas Pambansa Blg. 129, as
amended.
xxxx
In case private individuals are charged as co-principals, accomplices or
accessories with the public officers or employees, including those
employed in government-owned or controlled corporations, they shall be
tried jointly with said public officers and employees in the proper courts
which shall exercise exclusive jurisdiction over them. x x x x
It is underscored that it was the PCGG that had initially filed the criminal
complaints in the Sandiganbayan, with the Office of the Ombudsman
taking over the investigation of Disini only after the Court issued in
Cojuangco, Jr. the directive to the PCGG to refer the criminal cases to the
Office of the Ombudsman on the ground that the PCGG would not be an
impartial office following its finding of a prima facie case being
established against Disini to sustain the institution of Civil Case No. 0013.
Also underscored is that the complaint in Civil Case No. 0013 and the
informations in Criminal Case No. 28001 and Criminal Case No.
28002involved the same transaction, specifically the contracts awarded
through the intervention of Disini and President Marcos in favor of Burns
& Roe to do the engineering and architectural design, and Westinghouse
to do the construction of the Philippine Nuclear Power Plant Project
(PNPPP). Given their sameness in subject matter, to still expressly aver in
Criminal Case No.28001 and Criminal Case No. 28002 that the charges
involved the recovery of ill-gotten wealth was no longer
necessary.21 With Criminal Case No.28001 and Criminal Case No. 28002
being intertwined with Civil Case No.0013, the PCGG had the authority to
institute the criminal prosecutions against Disini pursuant to E.O. Nos. 1,
2, 14 and 14-A.
That Disini was a private individual did not remove the offenses charged
from the jurisdiction of the Sandiganbayan. Section 2 of E.O. No.1, which
tasked the PCGG with assisting the President in "the recovery of all ill-
gotten wealth accumulated by former President Ferdinand E. Marcos, his
immediate family, relatives, subordinates and close associates, whether
located in the Philippines or abroad, including the takeover or
sequestration of all business enterprises and entities owned or controlled
by them, during his administration, directly or through nominees, by
taking undue advantage of their public office and/or using their powers,
authority, influence, connections or relationship," expressly granted the
authority of the PCGG to recover ill-gotten wealth covered President
Marcos’ immediate family, relatives, subordinates and close associates,
without distinction as to their private or public status.
Contrary to Disini’s argument, too, the qualifying clause found in Section
4 of R.A. No. 824922
applied only to the cases listed in Subsection 4aand Subsection 4b of R.A.
No. 8249, the full text of which follows:
xxxx
a. Violations of Republic Act No. 3019, as amended, otherwise known as
the Anti-Graft and Corrupt Practices Act, Republic Act No.1379, and
Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where
one or more of the accused are officials occupying the following positions
in the government whether in a permanent, acting or interim capacity, at
the time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of
regional director and higher, otherwise classified as Grade ‘27’
and higher, of the Compensation and Position Classification Act
of 1989(Republic Act No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of
the sangguniang panlalawigan and provincial
treasurers, assessors, engineers and other provincial
department heads;
(b) City mayors, vice-mayors, members of the
sangguniang panlungsod, city treasurers, assessors
engineers and other city department heads;
(c) Officials of the diplomatic service occupying the
position of consul and higher;
(d) Philippine army and air force colonels, naval
captains, and all officers of higher rank;
(e) Officers of the Philippine National Police while
occupying the position of provincial director and
those holding the rank of senior superintendent or
higher;
(f) City and provincial prosecutors and their
assistants, and officials and prosecutors in the Office
of the Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or managers of
government-owned or -controlled corporations,
state universities or educational institutions or
foundations;
(2) Members of Congress and officials thereof classified as
Grade‘27’ and up under the Compensation and Position
Classification Act of 1989;
(3) Members of the judiciary without prejudice to the
provisions of the Constitution;
(4) Chairmen and members of Constitutional Commissions,
without prejudice to the provisions of the Constitution; and
(5) All other national and local officials classified as Grade
‘27’and higher under the Compensation and Position
Classification Act of 1989. b. Other offenses or felonies whether
simple or complexed with other crimes committed by the
public officials and employees mentioned in subsection a of this
section in relation to their office. (bold emphasis supplied)
xxxx
Unquestionably, public officials occupying positions classified as Grade 27
or higher are mentioned only in Subsection 4a and Subsection
4b,signifying the plain legislative intent of limiting the qualifying clause to
such public officials. To include within the ambit of the qualifying clause
the persons covered by Subsection 4c would contravene the exclusive
mandate of the PCGG to bring the civil and criminal cases pursuant to and
in connection with E.O. Nos. 1, 2, 14 and 14-A. In view of this, the
Sandiganbayan properly took cognizance of Criminal Case No. 28001 and
Criminal Case No. 28002 despite Disini’s being a private individual, and
despite the lack of any allegation of his being the co-principal, accomplice
or accessory of a public official in the commission of the offenses charged.
3.
The offenses charged in the
36
informations have not yet prescribed
Page
In resolving the issue of prescription, the following must be considered,
namely: (1) the period of prescription for the offense charged;(2) the time
when the period of prescription starts to run; and (3) the time when the
prescriptive period is interrupted.23
The information in Criminal Case No. 28001 alleged that Disini had
offered, promised and given gifts and presents to Ferdinand E. Marcos;
that said gifts were in consideration of Disini obtaining for Burns & Roe
and Westinghouse Electrical Corporation (Westinghouse) the contracts,
respectively, to do the engineering and architectural design of and to
construct the PNPPP; and that President Marcos did award or cause to be
awarded the respective contracts to Burns & Roe and Westinghouse,
which acts constituted the crime of corruption of public officials.24
The crime of corruption of public officials charged in Criminal Case No.
28001 is punished by Article 212 of the Revised Penal Code with the"
same penalties imposed upon the officer corrupted."25 Under the second
paragraph of Article 210 of the Revised Penal Code (direct bribery),26 if
the gift was accepted by the officer in consideration of the execution of
an act that does not constitute a crime, and the officer executes the act,
he shall suffer the penalty of prision mayor in its medium and minimum
periods and a fine of not less than three times the value of the gift.
Conformably with Article 90 of the Revised Penal Code,27 the period of
prescription for this specie of corruption of public officials charged
against Disini is 15 years.
As for Criminal Case No. 28002, Disini was charged with a violation of
Section 4(a) of R.A. No. 3019. By express provision of Section 11 of R.A.
No. 3019, as amended by Batas Pambansa Blg. 195, the offenses
committed under R.A. No. 3019 shall prescribe in 15 years. Prior to the
amendment, the prescriptive period was only 10 years. It became settled
in People v. Pacificador,28 however, that the longer prescriptive period of
15years would not apply to crimes committed prior to the effectivity of
Batas Pambansa Blg. 195, which was approved on March 16, 1982,
because the longer period could not be given retroactive effect for not
being favorable to the accused. With the information alleging the period
from 1974 to February1986 as the time of the commission of the crime
charged, the applicable prescriptive period is 10 years in order to accord
with People v. Pacificador .
For crimes punishable by the Revised Penal Code, Article 91 thereof
provides that prescription starts to run from the day on which the crime
is discovered by the offended party, the authorities, or their agents. As to
offenses punishable by R.A. No. 3019, Section 2 of R.A. No. 332629 states:
Section 2. Prescription shall begin to run from the day of the commission
of the violation of the law, and if the same be not known at the time, from
the discovery thereof and the institution of judicial proceedings for its
investigation and punishment.
The prescription shall be interrupted when proceedings are instituted
against the guilty person, and shall begin to run again if the proceedings
are dismissed for reasons not constituting double jeopardy.
The ruling on the issue of prescription in Presidential Ad Hoc Fact-Finding
Committee on Behest Loans v. Desierto30 is also enlightening, viz:
Generally, the prescriptive period shall commence to run on the day the
crime is committed. That an aggrieved person "entitled to an action has
no knowledge of his right to sue or of the facts out of which his right
arises," does not prevent the running of the prescriptive period. An
exception to this rule is the "blameless ignorance" doctrine, incorporated
in Section 2 of Act No. 3326. Under this doctrine, "the statute of
limitations runs only upon discovery of the fact of the invasion of a right
which will support a cause of action. In other words, the courts would
decline to apply the statute of limitations where the plaintiff does not
know or has no reasonable means of knowing the existence of a cause of
action." It was in this accord that the Court confronted the question on
the running of the prescriptive period in People v. Duque which became
the cornerstone of our 1999 Decision in Presidential Ad Hoc Fact-Finding
Committee on Behest Loans v. Desierto (G.R. No. 130149), and the
subsequent cases which Ombudsman Desierto dismissed, emphatically,
on the ground of prescription too. Thus, we held in a catena of cases, that
if the violation of the special law was not known at the time of its
commission, the prescription begins to run only from the discovery
thereof, i.e., discovery of the unlawful nature of the constitutive act or
acts.
Corollary, it is safe to conclude that the prescriptive period for the crime
which is the subject herein, commenced from the date of its discovery in
1992 after the Committee made an exhaustive investigation. When the
complaint was filed in 1997, only five years have elapsed, and, hence,
prescription has not yet set in. The rationale for this was succinctly
discussed in the 1999 Presidential Ad Hoc Fact-Finding Committee on
Behest Loans, that "it was well-high impossible for the State, the
aggrieved party, to have known these crimes committed prior to the
1986EDSA Revolution, because of the alleged connivance and conspiracy
among involved public officials and the beneficiaries of the loans." In yet
another pronouncement, in the 2001 Presidential Ad Hoc Fact-Finding
Committee on Behest Loans v. Desierto (G.R. No. 130817), the Court held
that during the Marcos regime, no person would have dared to question
the legality of these transactions. (Citations omitted)31
Accordingly, we are not persuaded to hold here that the prescriptive
period began to run from 1974, the time when the contracts for the PNPP
Project were awarded to Burns & Roe and Westinghouse. Although the
criminal cases were the offshoot of the sequestration case to recover ill-
gotten wealth instead of behest loans like in Presidential Ad Hoc Fact-
Finding Committee on Behest Loans v. Desierto, the connivance and
conspiracy among the public officials involved and the beneficiaries of the
favors illegally extended rendered it similarly well-nigh impossible for the
State, as the aggrieved party, to have known of the commission of the
crimes charged prior to the EDSA Revolution in 1986. Notwithstanding
the highly publicized and widely-known nature of the PNPPP, the
unlawful acts or transactions in relation to it were discovered only
through the PCGG’s exhaustive investigation, resulting in the
establishment of a prima facie case sufficient for the PCGG to institute
Civil Case No. 0013 against Disini. Before the discovery, the PNPPP
contracts, which partook of a public character, enjoyed the presumption
of their execution having been regularly done in the course of official
functions.32
Considering further that during the Marcos regime, no person would
have dared to assail the legality of the transactions, it would be
unreasonable to expect that the discovery of the unlawful transactions
was possible prior to 1986.
We note, too, that the criminal complaints were filed and their records
transmitted by the PCGG to the Office of the Ombudsman on April 8,
1991for the conduct the preliminary investigation.33 In accordance with
Article 91 of the
Revised Penal Code34 and the ruling in Panaguiton, Jr. v. Department of
Justice,35 the filing of the criminal complaints in the Office of the
Ombudsman effectively interrupted the running of the period of
prescription. According to Panaguiton:36
In Ingco v. Sandiganbayan and Sanrio Company Limited v. Lim, which
involved violations of the Anti-Graft and Corrupt Practices Act(R.A. No.
3019) and the Intellectual Property Code (R.A. No. 8293),which are both
special laws, the Court ruled that the prescriptive period is interrupted by
the institution of proceedings for preliminary investigation against the
accused. In the more recent case of Securities and Exchange Commission
v. Interport Resources Corporation, the Court ruled that the nature and
purpose of the investigation conducted by the Securities and Exchange
Commission on violations of the Revised Securities Act, another special
law, is equivalent to the preliminary investigation conducted by the DOJ
37
in criminal cases, and thus effectively interrupts the prescriptive period.
Page
The following disquisition in the Interport Resources case is instructive,
thus:
While it may be observed that the term "judicial proceedings" in Sec. 2 of
Act No. 3326 appears before" investigation and punishment" in the old
law, with the subsequent change in set-up whereby the investigation of
the charge for purposes of prosecution has become the exclusive
function of the executive branch, the term "proceedings" should now be
understood either executive or judicial in character: executive when it
involves the investigation phase and judicial when it refers to the trial and
judgment stage. With this clarification, any kind of investigative
proceeding instituted against the guilty person which may ultimately lead
to his prosecution should be sufficient to toll prescription.
Indeed, to rule otherwise would deprive the injured party the right to
obtain vindication on account of delays that are not under his control.
The prevailing rule is, therefore, that irrespective of whether the offense
charged is punishable by the Revised Penal Code or by a special law, it is
the filing of the complaint or information in the office of the public
prosecutor for purposes of the preliminary investigation that interrupts
the period of prescription. Consequently, prescription did not yet set in
because only five years elapsed from 1986, the time of the discovery of
the offenses charged, up to April 1991, the time of the filing of the
criminal complaints in the Office of the Ombudsman.
The informations were sufficient in form and substance
It is axiomatic that a complaint or information must state every single fact
necessary to constitute the offense charged; otherwise, a motion to
dismiss or to quash on the ground that the complaint or information
charges no offense may be properly sustained. The fundamental test in
determining whether a motion to quash may be sustained based on this
ground is whether the facts alleged, if hypothetically admitted, will
establish the essential elements of the offense as defined in the
law.37 Extrinsic matters or evidence aliunde are not considered.38
The test does not require absolute certainty as to the presence of the
elements of the offense; otherwise, there would no longer be any need
for the Prosecution to proceed to trial.
The informations in Criminal Case No. 28001 (corruption of public
officials) and Criminal Case No. 28002 (violation of Section 4(a) of RA
No.3019) have sufficiently complied with the requirements of Section 6,
Rule110 of the Rules of Court, viz:
Section 6. Sufficiency of complaint or information. — A complaint or
information is sufficient if it states the name of the accused; the
designation of the offense given by the statute; the acts or omissions
complained of as constituting the offense; the name of the offended
party; the approximate date of the commission of the offense; and the
place where the offense was committed.
When the offense is committed by more than one person, all of them
shall be included in the complaint or information.
The information in Criminal Case No. 28001 alleging corruption of public
officers specifically put forth that Disini, in the period from 1974 to
February 1986 in Manila, Philippines, conspiring and confederating with
then President Marcos, willfully, unlawfully and feloniously offered,
promised and gave gifts and presents to President Marcos, who, by taking
undue advantage of his position as President, committed the offense in
relation to his office, and in consideration of the gifts and presents
offered, promised and given by Disini, President Marcos caused to be
awarded to Burns & Roe and Westinghouse the respective contracts to
do the engineering and architectural design of and to construct the
PNPPP. The felonious act consisted of causing the contracts for the PNPPP
to be awarded to Burns & Roe and Westinghouse by reason of the gifts
and promises offered by Disini to President Marcos.
The elements of corruption of public officials under Article 212 of the
Revised Penal Code are:
1. That the offender makes offers or promises, or gives gifts or
presents to a public officer; and
2. That the offers or promises are made or the gifts or presents
are given to a public officer under circumstances that will make
the public officer liable for direct bribery or indirect bribery.
The allegations in the information for corruption of public officials, if
hypothetically admitted, would establish the essential elements of the
crime. The information stated that: (1) Disini made an offer and promise,
and gave gifts to President Marcos, a public officer; and (2) in
consideration of the offers, promises and gifts, President Marcos, in
causing the award of the contracts to Burns & Roe and Westinghouse by
taking advantage of his position and in committing said act in relation to
his office, was placed under circumstances that would make him liable
for direct bribery.39
The second element of corruption of public officers simply required the
public officer to be placed under circumstances, not absolute certainty,
that would make him liable for direct or indirect bribery. Thus, even
without alleging that President Marcos received or accepted Disini’s
offers, promises and gifts – an essential element in direct bribery – the
allegation that President Marcos caused the award of the contracts to
Burns & Roe and Westinghouse sufficed to place him under
circumstances of being liable for direct bribery.
The sufficiency of the allegations in the information charging the violation
of Section 4(a) of R.A. No. 3019 is similarly upheld. The elements of the
offense under Section 4(a) of R.A. No. 3019 are:
1. That the offender has family or close personal relation with
a public official;
2. That he capitalizes or exploits or takes advantage of such
family or close personal relation by directly or indirectly
requesting or receiving any present, gift, material or pecuniary
advantage from any person having some business, transaction,
application, request or contract with the government;
3. That the public official with whom the offender has family or
close personal relation has to intervene in the business
transaction, application, request, or contract with the
government.
The allegations in the information charging the violation of Section 4(a)
of R.A. No. 3019, if hypothetically admitted, would establish the elements
of the offense, considering that: (1) Disini, being the husband of Paciencia
Escolin-Disini, the first cousin of First Lady Imelda Romualdez-Marcos,
and at the same time the family physician of the Marcoses, had close
personal relations and intimacy with and free access to President Marcos,
a public official; (2) Disini, taking advantage of such family and close
personal relations, requested and received $1,000,000.00 from Burns &
Roe and $17,000,000.00 from Westinghouse, the entities then having
business, transaction, and application with the Government in
connection with the PNPPP; (3) President Marcos, the public officer with
whom Disini had family or close personal relations, intervened to secure
and obtain for Burns & Roe the engineering and architectural contract,
and for Westinghouse the construction of the PNPPP.
WHEREFORE, the Court DISMISSES the petition for certiorari; AFFIRMS
the resolutions promulgated on January 17, 2005 and August 10, 2005 by
the Sandiganbayan (First Division) in Criminal Case No. 28001 and
Criminal Case No. 28002; and DIRECTS petitioner to pay the costs of suit.
SO ORDERED.
38
Page
(7) G.R. No. 70332-43 November 13, 1986
GENEROSO TRIESTE, SR., petitioner, vs. SANDIGANBAYAN (SECOND
DIVISION), respondent.
ALAMPAY, J.:
The present case relates to an appeal by way of a Petition for Review of
the decision promulgated on November 6, 1984, by the Sandiganbayan
convicting the herein petitioner, Generoso Trieste, Sr., of twelve (12)
separate violations of Section 3 paragraph (h) of Republic Act 3019,
otherwise known as the Anti-Graft and Corrupt Practices - Act, which
petitioner were accused of in Criminal Cases Nos. 6856-6867 of said
Court. Petitioner's motion for reconsideration and/or new trial was
denied by the respondent Sandiganbayan under its Resolution of March
11, 1985.
The twelve (12) separate Informations filed by the Tanodbayan against
the herein petitioner for violation of Section 3 (h) of the Anti-Graft Law
are all similarly worded as the information presented in Criminal Case No.
6856 which is hereunder quoted:
That on or about the month of July, 1980 and some
time subsequent thereto, in the municipality of
Numancia, Aklan, Philippines, and within the
jurisdiction of this Honorable Court, the abovenamed
accused, being then the Municipal Mayor and
member of the Committee on Award of the
Municipality of Numancia, Aklan and as such, had
administrative control of the funds of the
municipality and whose approval is required in the
disbursements of municipal funds, did then and there
wilfully and unlawfully have financial or pecuniary
interest in a business, contract or transaction in
connection with which said accused intervened or
took part in his official capacity and in which he is
prohibited by law from having any interest, to wit the
purchases of construction materials by the
Municipality of Numancia, Aklan from Trigen Agro-
Industrial Development Corporation, of which the
accused is the president, incorporator, director and
major stockholder paid under Municipal Voucher No.
211-90-10-174 in the amount of P558.80 by then and
there awarding the supply and delivery of said
materials to Trigen Agro-Industrial Development
Corporation and approving payment thereof to said
corporation in violation of the Anti-Graft and corrupt
Practices Act.
except only as to the dates of the commission of the offense, voucher
numbers, and amounts involved.
Criminal Cases Nos. 6856, 6857, 6858, 6859, 6860. 6861, and 6862 were
allegedly committed in July, 1980; Criminal Cases Nos. 6863 and 6864, in
August, 1980; and Criminal Cases Nos. C-865, 6866 and 6867 in October,
1980. The separate vouchers involved in the twelve (12) cases are said to
be the following:
Crim. Case #6856, Vchr #211-90-10-174 at P558.80
Crim. Case #6857, Vchr #211-80-10-187 at 943.60
Crim. Case #6858, Vchr #211-80-10-189 at 144.00
Crim. Case #6859, Vchr #211-80-10-190 at 071.30
Crim. Case #6860, Vchr #211-80-10-191 at 270.00
Crim. Case #6861, Vchr #211-80-10-232 at 1,820.00
Crim. Case #6862, Vchr #211-80-10-239 at 1,085.80
Crim. Case #6863, Vchr #211-80-10-407 at 150.00
Crim. Case #6864, Vchr #211-80-12-494 at 500.00
Crim. Case #6865, Vchr #211-81-04-61 at 840.00
Crim. Case #6866, Vchr #211-81-04-62 at 787.00
Crim. Case #6867, Vchr #211-81-04-63 at 560.0
(Consolidated Comment, pg. 4; Rollo, 325)
After trial, the Sandiganbayan rendered the challenged decision dated
November 6, 1984, convicting the petitioner in all the twelve (12) criminal
cases, (Rollo, pp. 324-325) and in each case he was sentenced,"...to suffer
the indeterminate penalty of imprisonment ranging from THREE (3)
YEARS and ONE (1) DAY as the minimum, to SIX (6) YEARS and ONE (1)
DAY as the maximum, to further suffer perpetual disqualification from
the public office, and to pay the cost of the action." (pp. 37-40, Decision;
Rollo, 322).
After the petition for review was filed in this case and pending the
submission by respondent of its comment to the petition, herein
petitioner presented to this Court on June 7, 1985, an urgent petition to
lift the order of the Sandiganbayan dated September 12, 1983,
suspending him from Office as the elected Municipal Mayor of Numancia,
Aklan. His term was to expire in 1986. No objection to the petition for the
lifting of the suspension order was interposed by the Solicitor General.
Accordingly, and pursuant to the resolution of this Court dated October
1, 1985, petitioner's preventive suspension was lifted and his
reinstatement as Municipal Mayor of Numancia, Aklan was ordered to
take effect immediately.
A supplemental petition, dated October 10, 1985, was later filed by
petitioner's new counsel in collaboration with the original counsel on
record of petitioner. In this supplemental pleading, it was vigorously
stressed that the petitioner did not, in any way, intervene in making the
awards and payment of the purchases in question as he signed the
voucher only after all the purchases had already been made, delivered
and paid for by the Municipal Treasurer. It was further pointed out that
there was no bidding at all as erroneously adverted to in the twelve
informations filed against herein petitioner because the transactions
involved were emergency direct purchases by personal canvass.
Upon leave of the Court given, the former Solicitor General filed a
consolidated comment dated November 4, 1984, to the original petition
filed in this case dated April 30, 1985 as well as on the supplemental
petition dated October 10, 1985. He argued the dismissal of the petition
on the ground that the same raise factual issues which are, therefore,
non-reviewable (Consolidated Comment, pg. 20; Rollo, 341). The
submission made by the Office of the Solicitor General in the
Consolidated Comment dated November 4, 1986, are hereunder quoted:
xxx xxx xxx
The impugned decision convicted petitioner for
violation of Section 3 (h), paragraph (h) of the Anti-
Graft and Corrupt Practices Act which reads as
follows:
SEC. 3. Corrupt Practices of Public Officers. - In
addition to acts or omissions of public officers already
penalized by existing laws, the following shall
constitute corrupt practices of any public officer and
are hereby declared to be unlawful:
xxx xxx xxx
(h) Directly or indirectly having financial or pecuniary
interest in any business, contract or transaction in
connection with which he intervenes or takes part in
his official capacity, or in which he is prohibited by the
Constitution or by any law from having any interest.
The elements essential in the commission of the
crime are:
39
a) The public officer has financial or pecuniary
Page
interest in a business, contract or transaction;
 b) In connection with which he intervenes in his
official capacity.
Concurrence of both elements is necessary as the
absence of one will not warrant conviction. (Rollo, pp.
338-339).
The earlier view taken by the Solicitor General's Office was that
petitioner's evidence of divestment of interest in Trigen 'Corporation,
which is said to have been effected on February 25, 1980, before the
petitioner assumed the Mayorship, should have been presented at the
earliest opportunity before the Tanodbayan and because this was not
done by him the resolution of the Tanodbayan finding a prima facie case
against petitioner should be sustained. Furthermore, petitioner was
faulted because the transfer of his interest in the corporate stock of
Trigen Corporation should have been recorded in the Securities and
Exchange Commission but no evidence of this sort, was presented. The
consolidated comment also played up the advertisement of Trigen
Corporation in the program of the Rotary Club of Kalibo, Aklan, showing
the printed name of petitioner as the President-Manager of the said
corporation. (Consolidated Comment; Rollo, pp. 340-341)
Petitioner filed a Reply controverting the allegations and arguments
recited in the aforestated Consolidated Comment of the Solicitor
General.
After considering the pleadings filed and deliberating on the issues raised
in the petition and supplemental petition for review on certiorari of the
decision of the Sandiganbayan, as well as the consolidated comment and
the reply thereto filed by petitioner's counsel, the Court in its resolution
of January 16, 1986, gave due course to the petition and required the
parties to file their respective briefs.
Petitioner's exhaustive and well-reasoned out Brief which was filed with
the Court on April 14, 1986, raised the following legal questions.
xxx xxx xxx
From the foregoing recital of facts, the following legal questions
arise:
1. Does the mere signing by a Municipal Mayor of municipal
vouchers and other supporting papers covering purchases of
materials previously ordered by the Municipal Treasurer
without the knowledge and consent of the former,
subsequently delivered by the supplier, and, thereafter paid by
the same Municipal Treasurer also without the knowledge and
consent of the Municipal Mayor, constitute a violation of the
provisions of Section 3 (h) of Rep. Act No. 3019 otherwise
known as the Anti-Graft and Corrupt Practices Act?
2. Does the mere signing of the mere documents above
constitute the kind of intervention of taking part in (his) official
capacity within the context of the above-mentioned law?
3. Was damage or prejudice, as an element of the offense
under Section 3 (h) of the said law, caused to the Government
or the Municipality of Numancia as a result of the contracts in
question and as a corollary thereto, was undue advantage and
gained by the transacting corporation?
4. Was there divestment on the part of the herein petitioner of
his shares in Trigen Agro-Industrial Development Corporation
long before the questioned transactions? (Appellant's Brief,
page 15)
It was then discus and argued by the petitioner that the prosecution
failed to establish the presence of all the elements of the offense, and
more particularly to adduce proof that petitioner has, directly or
indirectly, a financial or pecuniary interest in the imputed business
contracts or transactions.
Discussion of petitioner's arguments in this regard will not however, be
recited anymore as this was obviated when a new Solicitor General, after
seeking and obtaining several extensions of time to file its Brief in this
case at bar, filed on October 7, 1986, a "Manifestation For Acquittal" (in
lieu of the People's Brief). Rollo, 293).
The new Solicitor General's Office after adopting the statement of facts
recited in the consolidated comment of the former Solicitor General's
Office moved for the acquittal of the petitioner, upon acknowledging and
concluding that:
xxx xxx xxx
Petitioner has divested his interest with Trigen
Petitioner sought to establish that before he assumed office as
mayor on March 3, 1980, he had already sold his shares with
Trigen to his sister Mrs. Rosene Trieste-Tuason. The sale was
made by corresponding indorsements to her stock certificate
which was duly recorded in the stock and transfer book of the
corporation.
Respondent Sandiganbayan however doubts the sale because
the same was not reported to the SEC. SEC records, as the
prosecution evidence show, do not reflect the sale and
petitioner still appears as the firm's President.
The prosecution's evidence to establish non-divestment of
petitioner's interest with Trigen is weak. Anyway, Trigen has
not updated its reports to the SEC since 1976. It have not even
submitted its financial annual report ever since. Absence of the
sales report in the SEC does not mean that the sale did not take
place. Reporting the sale is not a mandatory requirement.
Sales of stocks need not be reported to SEC
In any event, the law only requires submission of annual
financial reports, not sales or disposal of stocks (Section 141,
Corporation Code of the Philippines).
Upholding the evidence of petitioner's divestment of his
interest with Trigen would necessarily allow him to act freely in
his official capacity in the municipality's dealings or
transactions with Trigen. That in itself is sufficient to acquit him
of the crimes charged. (Rollo, pp. 299-300).
In the matter of the alleged intervention of petitioner, the Office of the
Solicitor General itself subscribes to and on its own volition place on
record the following observations:
Prosecution failed to prove charges; evidence discloses absence of
bidding and award
The prosecution's lone witness, Treasurer Aniceto Vega,
testified that there never was a public bidding conducted
because all the transactions were made by direct purchases
from Trigen.
Q. In other words, in all these transactions
there never really was any public bidding?
40
A. Yes, Sir. There was no public bidding.
Page
 Q. And these purchases were made by
direct purchases from the establishment of
Trigen?
A. Yes, Sir. (pp. 36-37, Tsn., Oct. 26, 1983)
In the absence of a public bidding and as emphatically declared
by the prosecution's sole witness Vega that all the transactions
were on direct purchases from Trigen, how can one ever
imagine that petitioner has awarded the supply and delivery of
construction materials to Trigen as specifically charged in the
twelve (12) informations? The charges are of course baseless
and even contradict the evidence of the prosecution itself.
Even the respondent Court finally found that petitioner did not
intervene during the bidding and award, which of course is a
false assumption because of Vega's testimony that there was
no public bidding at all. Respondent Court said:
. . . . In short, accused's intervention may not be present during
the bidding and award, but his liability may also come in when
he took part in said transactions such as signing the vouchers
under certifications 1, 2 and 3 thereof, to make it appear that
the transactions were regular and proper. (Resolution dated
March 11, 1985 denying petitioner's motion for
reconsideration/new trial, page 7).
No evidence to prove petitioner approved payment
Now, did petitioner intervene by approving payments to Trigen
as also charged in the information? Can there be intervention
after payment.
Vega testified that petitioner signed the twelve (12) municipal
vouchers (Exhibits A to L) for the purchase and payment of
construction materials. It was sometime after delivery of the
construction materials that he (Vega) signed and paid the
twelve (12) -municipal vouchers (pages 5 to 7), decision of
respondent Sandiganbayan dated November 2, 1984). The
prosecution has not presented evidence to show as to when
petitioner signed the twelve (12) municipal vouchers. But it can
safely be assumed as a matter of procedure that petitioner had
signed the voucher after Treasurer Vega signed and paid them.,
(Rello, pp. 301-303)
xxx xxx xxx
Testimonial and documentary evidence confirms that
petitioner signed vouchers after payment
xxx xxx xxx
Additional facts which respondent Court failed to consider and
which could have altered the outcome of the case in the
following uncontroverted testimony of Josue Maravilla:
Q. When these municipal vouchers were prepared by
the municipal treasurer, as you said, and then
presented to Mayor Trieste for his signature, were
the purchases in question already paid?
A. They had already been paid for, sir.
Q. Previously, prior to the signature of Mayor Trieste?
A. Yes, sir.
A.J. ESCAREAL:
Q. Under what authority were they paid?
A. Under official receipt issued by Trigen.
Q. Who authorized the payment?
A. The municipal treasurer who paid the materials.
ATTY. CONSULTA:
Q. You said they had already been paid for. Do you
know of any receipts issued by Trigen to indicate that
at the time these municipal vouchers were signed by
Mayor Trieste, the materials had already been
delivered and paid by the municipality to Trigen?
xxx xxx xxx
A. Yes, sir
Q. Now, what exhibits particularly do you know were
issued
by Trigen to indicate that payments were made prior
to the signing of the municipal vouchers by Mayor
Trieste?
A. Exhibits A, G, B, F, C, D, Exhibit I and Exhibit H.
Q. Now, Mr. Maravilla, aside from these
prosecution's exhibits which are Trigen receipts
showing payments long before the municipal
vouchers were prepared, what can you say about the
other municipal vouchers in this case in reference to
payments made by Trigen to the municipality?
ESCAREAL:
Payment made by Trigen?
ATTY. CONSULTA:
I am sorry, Your Honor, made to Trigen by the
municipality?
A. Official receipts issued by Trigen also indicate that
when municipal vouchers marked Exhibits E, B, C, D,
F, G, H, I were prepared, they had already been
delivered and the amounts indicated therein were
already prepared by the municipal treasurer.
Q. Did you say already made by the municipal
treasurer-the amounts were already paid by the
municipal treasurer?
A. Already paid.
Q. Who disbursed the funds evidenced by the Trigen
official receipts?
A. The municipal treasurer, then Mr. Vega.
Q. Now, do you know why Mr. Vega asked that those
municipal vouchers be nevertheless signed in spite of
the fact that he knew that the amounts had already
been disbursed and paid by him to Trigen?
41
A. He said that the municipal vouchers for record
purposes is necessary to be signed by the mayor.
Page
(Tsn., Mar. 5, 1984, pp. 19-49).
 Inasmuch as Treasurer Vega signed and paid the vouchers after
the materials were delivered, petitioner's signature on the
vouchers after payment is not, we submit the kind of
intervention contemplated under Section 3(h) of the Anti-Graft
Law.
xxx xxx xxx
What is contemplated in Section 3(h) of the anti-graft law is
the actual intervention in the transaction in which one has
financial or pecuniary interest in order that liability may attach.
(Opinion No. 306, Series 1961 and Opinion No. 94, Series 1972
of the Secretary of Justice). The official need not dispose his
shares in the corporation as long as he does not do anything for
the firm in its contract with the office. For the law aims to
prevent the don-tenant use of influence, authority and power
(Deliberation on Senate Bill 293, May 6, 1959, Congressional
Record, Vol. 11, page 603).
There is absolutely no evidence that petitioner had, in his
capacity as Mayor, used his influence, power, and authority in
having the transactions given to Trigen. He didn't ask anyone-
neither Treasurer Vega nor Secretary Maravilla for that matter,
to get the construction materials from Trigen.
Trigen did not gain any undue advantage in the transaction
Petitioner should not be faulted for Trigen's transaction with
the municipality, which by the way, has been dealing with it
even before petitioner had assumed the mayorship on March
3, 1980. Personal canvasses conducted found that Trigen's
offer was the lowest, most reasonable, and advantageous to
the municipality. . . . (Rollo, pp. 307-308; Emphasis supplied).
It is also an acknowledged fact that there was no complaint for non-
delivery, underdelivery or overpricing regarding any of the transactions.
Considering the correct facts now brought to the attention of this Court
by the Solicitor General and in view of the reassessment made by that
Office of the issues and the evidence and the law involved, the Court
takes a similar view that the affirmance of the decision appealed from
cannot be rightfully sustained. The conscientious study and thorough
analysis made by the Office of the Solicitor General in this case truly
reflects its consciousness of its role as the People's Advocate in the
administration of justice to the end that the innocent be equally
defended and set free just as it has the task of having the guilty punished.
This Court will do no less and, therefore, accepts the submitted
recommendation that the decision and resolution in question of the
respondent Sandiganbayan be reversed and that as a matter of justice,
the herein petitioner be entitled to a judgment of acquittal.
WHEREFORE, the decision rendered by the Sandiganbayan, dated
November 2, 1984, in Criminal Cases Nos. 6856 to 6867, finding the
herein petitioner, Generoso Trieste, Sr. guilty of the violations of Section
3 paragraph (h) of Republic Act 3019, as amended, is hereby set aside and
reversing the appealed judgment, a new judgment is now rendered
ACQUITTING Generoso Trieste, Sr., of said offenses charged against him
with costs de oficio.
SO ORDERED.
(8) G.R. Nos. L-51065-72
ARTURO A. MEJORADA, petitioner, vs. THE HONORABLE
SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents.
CORTES, J.:
This petition for certiorari seeks to reverse the May 23, 1979 decision of
the Sandiganbayan finding the accused Arturo A. Mejorada in Criminal
Cases Nos. 002-009 guilty beyond reasonable doubt of violating Section
3(E) of Republic Act No. 3019, otherwise known as the Anti-Graft and
Corrupt Practices Act.
Eight informations were filed by the Provincial Fiscal against the
petitioner and jointly tried before the Sandiganbayan. The eight
informations substantially allege the same set of circumstances
constituting the offense charged, Criminal Case No. 002 reads as follows:
That in (sic) or about and during the period comprised from
October 1977 to February 1978, in the municipality of Pasig,
Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, being employed
in the Office of the Highway District Engineer, Pasig, Metro
Manila, as Right-of-Way-Agent conspiring and confederating
together with two (2) other John Does whose true Identities
and present whereabouts are still unknown, with evident bad
faith, and for personal gain, did then and there wilfully,
unlawfully and feloniously, directly intervene, work for, and
facilitate the approval of one Isagani de Leon's claim for the
payment in the removal and reconstruction of his house and a
part of his land expropriated by the government having been
affected by the proposed Pasig-Sta Cruz-Calamba Road. 2nd
IBRD Project at Binangonan, Rizal, while the accused, Arturo A.
Mejorada is in the discharge of his official and/or administrative
functions and after said claim was approved and the
corresponding PNB Check No. SN 5625748 was issued and
encashed in the amount of P7,200.00 given only P1,000.00 to
claimant (Isagani de Leon), appropriating, applying and
converting to themselves the amount of P6,200.00, thereby
causing damage and prejudice to Isagani de Leon and the
government in the aforementioned amount of P6,200.00.
Contrary to law.
Except for the date of the commission of the offense, the name of the
aggrieved private party, the PNB Check number, the amount involved and
the number or John Does, the seven other informations are verbatim
repetitions of the above.
The facts are found by the respondent Sandiganbayan are as follows:
Arturo A. Mejorada was a public officer who was first employed as a
temporary skilled laborer in the Bureau of Public Works on March 16,
1947, and then as right-of-way agent in the Office of the Highway District
Engineer, Pasig, Metro Manila, from February, 1974 up to December 31,
1978. As a right-of-way agent, his main duty was to negotiate with
property owners affected by highway constructions or improvements for
the purpose of compensating them for the damages incurred by said
owners.
Among those whose lots and improvements were affected by the
widening of the proposed Pasig-Sta. Cruz-Calamba Road. 2nd IBRD
Project, at Binangonan, Rizal were Isagani de Leon, Isaac Carlos,
Napoleon Maybituin, Dominga Villaroza, Florentino de la Cruz, Cipriano
Aran, Celestina S. Mallari and Rodolfo Rivera, all residents of Mambog,
Binangonan, Rizal.
Sometime in October or November 1977, petitioner contacted the
aforenamed persons and informed them that he could work out their
claims for payment of the values of their lots and/or improvements
affected by the widening of said highway. In the process, Mejorada
required the claimants to sign blank copies of the "Sworn Statement on
the Correct and Fair Market Value of Real Properties" and "Agreement to
Demolish, Remove and Reconstruct improvements" pertinent to their
claims. The claimants complied without bothering to find out what the
42
documents were all about as they were only interested in the payment
of damages.
Page
In said "Sworn Statements" and "Agreements to Demolish", the value of
the respective properties of the claimants were made to appear very
much higher than the actual value claimed by them. Likewise, the said
"Agreements to Demolish" reflected the value of the improvements as
per assessor" which on the average was only P2,000.00 lower than the
value declared by the owners in their sworn statements. The value as per
assessor was, in turn, supported by the Declarations of Real Property in
the names of the claimants containing an assessed value exactly the same
as that stated in the Agreements to Demolish "as per assessor", except
the claims of De la Cruz and Aran where there is only a difference of
P400.00 and P200.00, respectively. It turned out, however, that said
Declarations of Property are not really intended for the claimants as they
were registered in the names of other persons, thus showing that they
were all falsified.
A few months after processing the claims, accused accompanied the
claimants to the Office of the Highway District Engineer at the provincial
capitol of Pasig, Metro Manila, to receive payments and personally
assisted the claimants in signing the vouchers and encashing the checks
by certifying as to their Identities and guaranteeing payment.
Right after the claimants had received the proceeds of their checks,
accused accompanied them to his car which was parked nearby where
they were divested of the amounts paid to them leaving only the sum of
P1,000.00 to each, except Isaac Carlos to whom P5,000.00 was left,
explaining to them that there were many who would share in said
amounts. All the claimants were helpless to complaint because they were
afraid of the accused and his armed companion.
The claimants, through the assistance of counsel, filed their complaints
with the Provincial Fiscal's Office of Pasig, Metro Manila, narrating in their
supporting sworn statements what they later testified to in court.
Five issues are raised in this petition to review the decision of the
Sandiganbayan:
I. Whether or not the essential elements constituting the offense
penalized by section 3(e) of Republic Act No. 3019, otherwise known as
the Anti-Graft and Corrupt Practices Act have been clearly and
convincingly proven by the prosecution;
II. Whether or not the Sandiganbayan is a court of competent jurisdiction
duly constituted in accordance with Pres. Dec. No. 1606;
III. Whether or not the penalty imposed upon the petitioner is excessive
and contrary to the three-fold rule as provided for by Article 70 of the
Revised Penal Code;
IV. Whether or not there is a variance between the offense charged in the
information and the offense proved;
V. Whether or not the conclusion drawn from the record of the
Sandiganbayan in arriving at a verdict of conviction of petitioner is correct
is a question of law which this Honorable Court is authorized to pass
upon.
I. Petitioner contends that the eight informations filed against him before
the Sandiganbayan are fatally defective in that it failed to allege the
essential ingredients or elements constituting the offense penalized by
Section 3(e) of Rep. Act No. 3019.
The section under which the accused-petitioner was charged provides:
Sec. 3. Corrupt practices of public officers. In addition to acts or
omissions of public officers already penalized by existing law,
the following shall constitute corrupt practices of any public
officer and are hereby declared to be unlawful.
xxx xxx xxx
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his official
administrative or judicial functions through manifest partiality,
evident bad faith or gross inexcusable negligence. This
provision shall apply to officers and employees of offices or
government corporations charged with the grant of licenses or
permits or other concessions.
Petitioner enumerated three elements which, in his opinion, constitute a
violation of Section 3(e).
First, that the accused must be a public officer charged with the duty of
granting licenses or permits or other concessions. Petitioner contends
that inasmuch as he is not charged with the duty of granting licenses,
permits or other concessions, then he is not the officer contemplated by
Section 3 (e).
Section 3 cited above enumerates in eleven subsections the corrupt
practices of any public officers declared unlawful. Its reference to "any
public officer" is without distinction or qualification and it specifies the
acts declared unlawful. We agree with the view adopted by the Solicitor
General that the last sentence of paragraph (e) is intended to make clear
the inclusion of officers and employees of officers or government
corporations which, under the ordinary concept of "public officers" may
not come within the term. It is a strained construction of the provision to
read it as applying exclusively to public officers charged with the duty of
granting licenses or permits or other concessions.
The first element, therefore, of Section 3 (e) is that the accused must be
a public officer. This, the informations did not fail to allege.
Second, that such public officer caused undue injury to any party,
including the Government, or gave any private party unwarranted
benefits, advantage or preference in the discharge of his official
administrative or judicial functions.
Petitioner denies that there was injury or damage caused the
Government because the payments were allegedly made on the basis of
a document solely made by the Highway District Engineer to which
petitioner had no hand in preparing. The fact, however, is that the
government suffered undue injury as a result of the petitioner's having
inflated the true claims of complainants which became the basis of the
report submitted by the Highway District Engineer to the Regional
Director of the Department of Highways and which eventually became
the basis of payment. His contention that he had no participation is belied
by the fact that as a right-of-way-agent, his duty was precisely to
negotiate with property owners who are affected by highway
constructions for the purpose of compensating them.
On the part of the complainants, the injury caused to them consists in
their being divested of a large proportion of their claims and receiving
payment in an amount even lower than the actual damage they incurred.
They were deprived of the just compensation to which they are entitled.
Third, the injury to any party, or giving any private party any unwarranted
benefits, advantage or preference was done through manifest, partiality,
evident bad faith or gross inexcusable negligence.
Petitioner argues that for the third element to be present, the alleged
injury or damage to the complainants and the government must have
been caused by the public officer in the discharge of his official,
administrative or judicial functions and inasmuch as when the damage
was caused to the complainants, he was no longer discharging his official
administrative functions, therefore, he is not liable for the offense
charged.
43
The argument is devoid of merit. The Sandiganbayan established the fact
that the petitioner took advantage of his position as a right-of-way-agent
Page
by making the claimants sign the aforementioned agreements to
demolish and sworn statements which contained falsified declarations of
the value of the improvements and lots. There was evident bad faith on
the part of the petitioner when he inflated the values of the true claims
and when he divested the claimants of a large share of the amounts due
them.
In view of the above holding. We also dispose of the fourth issue which
relates to the allegation that petitioner cannot be convicted for a
violation of the Anti-Graft Law because the evidence adduced by the
prosecution is not the violation of Section 3 (e) but the crime of robbery.
Contrary to the petitioner averment. We find no variance between the
offense charged in the information and the offense proved. The
prosecution was able to establish through the corroborating testimonies
of the witnesses presented how through evident bad faith, petitioner
caused damage to the claimants and the Government. The manner by
which the petitioner divested the private parties of the compensation
they received was part of' the scheme which commenced when the
petitioner approached the claimants and informed them that he could
work out their claims for payment of the values of their lots and/or
improvements affected by the widening of the Pasig-Sta. Cruz-Calamba
Road. The evidence presented by the prosecution clearly establish a
violation of Section 3(e).
II. The petitioner also assails the competency of the Sandiganbayan to
hear and decide this case. He argues that before the Sandiganbayan could
legally function as a judicial body, at least two (2) divisions, or majority of
the justices shall have been duly constituted and appointed.
We previously ruled on this matter in the case of De Guzman v.
People (G.R. No. 54288, December 15, 1982, 119 SCRA 337). In that case,
the petitioner De Guzman questioned the authority of the Sandiganbayan
to hear and decide his case on the same ground that herein petitioner
assails its jurisdiction. The Court upheld the authority of the
Sandiganbayan saying that:
Although the Sandiganbayan is composed of a Presiding Justice,
and eight Associate Justices, it does not mean that it cannot
validly function without all of the Divisions constituted. Section
3 of P.D. 1606 provides that the "Sandiganbayan shall sit in
three divisions of three justices each" while Section 5 thereof
provides that the unanimous vote of three justices of a division
shall be necessary for the pronouncement of a judgment.
Thus the Sandiganbayan functions in Divisions of three Justices
each and each Division functions independently of the other.
As long as a division has been duly constituted it is a judicial
body whose pronouncements are binding as judgments of the
Sandiganbayan.
The judgment convicting petitioner was a unanimous Decision
of the First Division duly constituted. It thus met the
requirement for the pronouncement of a judgment as required
by Section 5 of P.D. 1606 supra.
III. The third issue raised by the petitioner concerns the penalty imposed
by the Sandiganbayan which totals fifty-six (56) years and eight (8) days
of imprisonment. Petitioner impugns this as contrary to the three-fold
rule and insists that the duration of the aggregate penalties should not
exceed forty (40) years.
Petitioner is mistaken in his application of the three-fold rule as set forth
in Article 70 of the Revised Penal Code. This article is to be taken into
account not in the imposition of the penalty but in connection with the
service of the sentence imposed (People v. Escares, 102 Phil. 677 [1957]).
Article 70 speaks of "service" of sentence, "duration" of penalty and
penalty "to be inflicted". Nowhere in the article is anything mentioned
about the "imposition of penalty". It merely provides that the prisoner
cannot be made to serve more than three times the most severe of these
penalties the maximum of which is forty years.
The Sandiganbayan, therefore, did not commit any error in imposing
eight penalties for the eight informations filed against the accused-
petitioner. As We pointed out in the case of People v. Peralta, (No. L-
19069, October 29, 1968, 25 SCRA 759, 783-784):
... Even without the authority provided by Article 70, courts can
still impose as many penalties as there are separate and distinct
offenses committed, since for every individual crime
committed, a corresponding penalty is prescribed by law. Each
single crime is an outrage against the State for which the latter,
thru the courts of justice, has the power to impose the
appropriate penal sanctions.
In the light of the above reasons, petitioner cannot assail the penalty
imposed upon him as harsh, cruel and unusual (See Veniegas v. People,
G.R. No. 57601-06 July 20, 1982, 115 SCRA 790, 792).
We deem it unnecessary to pass upon the fifth issue raised in view of the
foregoing discussion.
WHEREFORE, the petition is denied for lack of merit.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr.,
Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin and Sarmiento, JJ., concur.
(9) G.R. No. 109991 May 22, 1995
ELIAS C. QUIBAL AND ANTONIO U. DENIEGA, petitioners,
vs.
THE HON. SANDIGANBAYAN (Second Division) and PEOPLE OF THE
PHILIPPINES, respondents.
PUNO, J.:
Petitioners ELIAS C. QUIBAL and ANTONIO U. DENIEGA, the mayor and
treasurer, respectively, of the municipality of Palapag, Northern Samar,
and Eduardo C. Guevarra, a private individual, were charged with
violation of Section 3 (e) of Republic Act No. 3019, as amended, otherwise
known as the Anti-Graft and Corrupt Practices Act.
The Information 1 against them reads:
That on or about February 16, 1988, or sometime
prior or subsequent thereto, in Palapag, Northern
Samar, within the jurisdiction of this Honorable
Court, the accused public officers, namely, ELIAS C.
QUIBAL, Municipal Mayor of Palapag, Northern
Samar, and ANTONIO U. DENIEGA, then Municipal
Treasurer of Palapag, Northern Samar, while in the
discharge of their public functions, through evident
bad faith and manifest partiality in conspiracy with
EDUARDO C. GUEVARRA, a private contractor
representing Floters Construction, did then and there
wilfully and unlawfully cause undue injury, by
effecting payment in the amount of P650,000.000
when the actual cost of the public market of Palapag,
Northern Samar, was only P301,754.65, thereby
giving unto the said private contractor unwarranted
benefits to the damage and prejudice of the
government in the total amount of P348,345.35.
Only accused Elias C. Quibal and Antonio U. Deniega were arrested, tried
and convicted. Accused Eduardo C. Guevarra remains at large.
The evidence on record established the following:
44
On November 27, 1987, the municipality of Palapag, Northern Samar,
Page
represented by its OIC vice-mayor Teodoro C. Bello, entered into a
contract2 with the Floters Construction Company, represented by
accused Eduardo C. Guevarra, for the Construction of the municipal
public market. The period for the completion of the project was one
hundred (100) days. The price was P652,562.60.
From February 16, 1988 to April 12, 1988, accused Mayor Quibal and
Municipal Treasurer Deniega, issued four (4) PNB checks in favor of the
contractor in the total amount of P650,000.00. However, sometime in
June 1988, after receipt of said payments, the contractor abandoned the
project.
On August 31, 1988, a COA Special Audit Team composed of Provincial
Auditor Marissa Bayona and Engineers Bienvenido Bayani and Robert
Bajar inspected the progress of the construction of the Palapag municipal
market.3 It discovered several irregularities. It found out that only about
36.24% of the construction of the municipal market has been completed
despite the lapse of the contract period of 100 days. The actual cost of the
finished work on the project was only P301,746.65. Unfinished work on
the municipal market, as evaluated, cost P348,235.35. It was also
established that the contractor had already been paid P650,000.00
despite the non-completion of the building. The vouchers accompanying
said payments were not properly filled-up and the required supporting
documents were not attached. The disbursement vouchers (Exhibits "E"
to "E-3") submitted by municipal treasurer Deniega to Provincial Auditor
Bayona were unsigned. Likewise, the payment to the contractor in the
amount of P340,000.00 was not accompanied by any Certificate of
Acceptance issued by the COA. COA rules require such certificate of
acceptance if the disbursement involves more than P200, 000.00.
In a letter4 dated January 26, 1989, Provincial Auditor Marissa Bayona
submitted an inspection report to the COA Regional Director
recommending that appropriate legal action be taken against the
municipal mayor, treasurer and the contractor in connection with the
construction of the Palapag public market. In a letter5 dated April 7, 1989,
the Ombudsman informed Mayor Quibal of the charges filed against him
by the COA. On May 12, 1989, Mayor Quibal requested the COA Regional
Director for a re-audit of the cost valuation of the said construction
project.6 His request was denied.
Sometime in November 1989, petitioners still continued the construction
of the municipal market using the stockpile of materials previously
purchased by the contractor and the contractor's retention fee. They
completed the construction at the end of December 1989. The municipal
government then started leasing the market stalls in January 1990.
The two (2) accused public officers testified in their defense. Accused
Deniega, municipal treasurer, admitted that he disbursed the total
amount of P650,000.00 to the contractor, viz:
a) P340,000.00, released on February 16, 1988, based on the
voucher (Exhibit "F-3") presented to him by the contractor,
which was duly approved by the mayor.
b) P60,000.00, released on February 26, 1988; based on the
voucher presented to him by the contractor (Exh- "F-2");
c) P200,000.00, released on March 14, 1988, also based on a
voucher (Exh. "F"); and
d) P50,000.00, released on April 22, 1988 (Exh. "F-1"), also
based on a similar voucher.
But he claimed that he submitted complete and signed vouchers and the
required supporting documents to the Office of the Provincial Auditor. He
insisted that the unsigned vouchers presented in court by the
prosecution were not the vouchers which supported the payments they
made.
For his part, accused mayor Quibal explained that he paid the contractor
more than his accomplished work to enable the latter to immediately
purchase construction materials which were then selling at a low price.
He further maintained that the audit team should have included the value
of these construction materials (still unused at the time of audit) in its
evaluation of the project. He urged that these unused materials were
worth approximately P348,235.35, which would justify his payments to
the contractor in the total amount of P650,000.00.
After trial on the merits, the Sandiganbayan (Second Division)
promulgated, a Decision7 finding accused public officials guilty beyond
reasonable doubt as co-principals of the crime charged. The dispositive
portion reads:
WHEREFORE, premises considered, the Court finds accused
Elias Quibal y Capati and Antonio Deniega y Ubas GUILTY
beyond reasonable doubt as co-principals for violation of
Section 3, paragraph (e) of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt Practices Act, in
relation to Section 9 (a) thereof, and applying Act No. 4103, as
amended, otherwise known as the Indeterminate Sentence
Law, the Court imposes upon each accused the penalties of
imprisonment ranging from SIX (6) YEARS and ONE (1) MONTH
to TEN (10) YEARS and ONE (1) DAY; perpetual disqualification
from public office; and, to indemnify the Municipality of
Palapag, Northern Samar, jointly and severally, the amount of
P348,345.35 without subsidiary imprisonment in case of
insolvency.
With costs.
Considering that their co-accused Eduardo C. Guevarra has not
yet been brought within the jurisdiction of this Court up to this
date, let this case be archived as against him without prejudice
to its revival in the event of his arrest or voluntary submission
to the jurisdiction of this Court.
SO ORDERED.8
The two (2) accused moved for a reconsideration. It was denied. Hence
this petition.
Petitioners contend that:
I
RESPONDENT SANDIGANBAYAN (SECOND DIVISION) ERRED IN NOT
UPHOLDING THE CONSTITUTIONAL RIGHT OF PETITIONERS TO "DUE
PROCESS" BY NOT ALLOWING RE-EXAMINATION AND RE-AUDIT OF THE
PROJECT WHICH HAS ALREADY BEEN COMPLETED AND UTILIZED FOR
PUBLIC USE.
II
RESPONDENT SANDIGANBAYAN (SECOND DIVISION) ERRED IN NOT
RESOLVING THAT THE GUILT OF THE PETITIONERS HAS NOT BEEN
PROVEN BEYOND REASONABLE DOUBT BECAUSE —
a) NO UNDUE INJURY HAS BEEN CAUSED TO THE GOVERNMENT WITH
THE FULL COMPLETION OF THE PROJECT.
b) PETITIONERS DID NOT ACT WITH MANIFEST PARTIALITY, EVIDENT BAD
FAITH AND GROSS INEXCUSABLE NEGLIGENCE.
We affirm petitioners' conviction.
Petitioners were charged with a violation of Section 3 (e) of R.A. 3019, viz:
Sec. 3. Corrupt practices by public officers. — In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practice of any public officer and are
hereby declared to be unlawful:
45
xxx xxx xxx
Page
 (e) Causing any undue injury to any party, including
the Government, or giving any private party any
unwarranted benefits, advantage or preference in
the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad
faith or gross inexcusable negligence. This provision
shall apply to officers and employees of offices of
government corporations charged with the grant of
licenses or permits or other concessions.
Violation of Section 3 (e) of R.A. 3019 requires proof of the following
facts, viz:
1. The accused is a public officer discharging administrative or
official functions or private persons charged in conspiracy with
them;
2. The public officer committed the prohibited act during the
performance of his official duty or in relation to his public
position
3. The public officer acted with manifest partiality, evident bad
faith or gross, inexcusable negligence; and
4. His action caused undue injury to the Government or any
private party, or gave any party any unwarranted benefit,
advantage or preference to such parties.9
Petitioners insist that their guilt has not been proved beyond reasonable
doubt for they did not act with manifest partiality, evident bad faith or
gross, inexcusable negligence nor did they cause any injury or damage to
the municipal government for the construction of the municipal market
was eventually completed.
We reject these contentions.
The construction of the municipal market should have been finished on
March 7, 1988. At the time of the audit on August 31, 1988, however,
only 36.24% of the construction of the market has been completed .Yet,
out of the contract price of P652,562.60, petitioners already raid the
contractor a total of P650,000.00. In so doing, petitioners disregarded the
provision in the contract that payment should be based on the
percentage of work accomplishment. Moreover, the contract provided
that in case of delay in the completion of the project, the contractor shall
be liable for liquidated damages at the rate of 1/10 of 1% of the contract
price per day of delay. 10 Petitioners did not impose this provision against
the contractor. By their acts, petitioners clearly acted with manifest
partiality and evident bad faith relative to the construction of the
municipal market.
Petitioners' acts and omissions are, to say the least, grossly
negligent. Gross negligence is the pursuit of a course of conduct which
would naturally and reasonably result in injury. It is an utter disregard of
or conscious indifference to consequences. 11 In cases involving public
officials, there is gross negligence when a breach of duty is flagrant and
palpable. 12
In the case at bench, petitioners' acts and omissions demonstrated an
utter lack of care in enforcing the contract for the construction of the
public market and a reckless disregard of the COA rules and regulations
regarding disbursement of municipal funds. Petitioners contend that they
released P650,000.00 of the contract price to enable the contractor to
take advantage of the low cost of construction materials prevailing at that
time. Plainly, petitioners' act violates the provision of the contract
requiring that payment shall be made on the basis of the percentage of
completion of the project. Moreover, as correctly pointed out by the
Sandiganbayan:
. . . The escalation of prices of construction materials
which allegedly prompted Quibal to pay the
contractor prematurely is not a justification that
would absolve the accused public officers from
criminal liability. The parties could have included an
escalation clause in the contract. . . . Moreover, there
is a law which authorizes the adjustment of contract
price (R. A. 5979, as amended by PD No. 454).
xxx xxx xxx
Petitioners also insist that no undue injury or damage or caused to the
municipal government considering the later completion of the public
market.
We cannot share this myopic view. The construction of the municipal
market was completed only at the end of December 1989 when it should
have been finished by March 7, 1988. This unnecessary delay of almost
two (2) years caused considerable monetary loss to the municipal
government in the form of monthly rentals. The least that petitioners
should have done was to enforce the penalty clause of the contract
(providing for payment of liquidated damages in case of breach) when
the contractor failed to meet his deadline on March 7, 1988. Instead of
doing so, petitioners even made two (2) additional payments to the
contractor (on March 14 and April 22, 1988) in the total sum of
P250,000.00. Thus, it cannot be the successfully argued that the acts and
omissions of petitioners did not cause damage injury to the municipal
government.
Finally, to bolster their claim of denial of due process, petitioners cite the
case of Tinga v. People of the Philippines. 13 Petitioners' reliance on the
Tinga case is misplaced. In said case, we ruled that Tinga was denied due
process when the Commission on Audit refused to conduct a re-
evaluation of the accountabilities of Tinga. The ruling was based on the
Court's finding that COA's evaluation of Tinga's accountabilities was
replete with errors, thus:
The Sandiganbayan Decision is replete with findings
of errors in the audit made of petitioner's
accountability. Thus, it said: (a) "We are not prepared
to repeat the same mistake as the audit team and
prefer to credit Catalino Y. Tinga for said sum of
P12,654.80 deductible from his alleged shortage" . . .
; (b) the claim of the defense that Tinga was a victim
of robbery is fully supported . . . resulting in a total
loss of P10,708.14 . . . . The COA auditing team ought
to have credited the accused in this amount in his
total accountability for the accused never
pocketed to his benefit this amount lost . . . ; (c) Court
records indubitably attest to the fact that Laurencio
R. Masong, collection clerk of the Municipal
Treasurer's office of Bogo, Cebu, failed to turn over
to the accused collections in the total sum of
P7,398.30 in October 1976, for which reason said
employee was charged and convicted of the crime of
Malversation of Public Funds . . . . Why then should
the COA auditors include the said sum in the
accountability of Tinga? . . . ; (d) "We find it relevant
to observe that a careful examination of Exh. "L-1"
shows that the entry for withdrawal of voucher no. .
. . has two circles with a cross inside before and after
the entry, indicating a cancellation or mistake thereat
. . . . Thus, the sum of P30,000 appears to be honestly
disputed, which also served as basis for the accused
to insist on a review or re-audit" . . . ; (e) "Such
conclusion of the COA arose from many errors
committed during the audit examination. . . .
xxx xxx xxx
46
By the denial of the re-audit, petitioner was, as
Page
claimed by him, not given the right to be fully heard
before the charge was filed against him at a time
 when the records were still available and past
transactions still fresh in the memory of all
concerned. He was given the chance to defend before
the Sandiganbayan yes, but as said Court itself
observed "Tinga continued to pursue his quest for a
re-audit in his honest belief that he had not
malversed any government funds. In the process,
many but not all disbursement vouchers were
located in the office of the Municipal Treasurer of
Bogo, Cebu, . . . ." Perhaps, if he had been re-audited
and his accountability reviewed, a different result
may have been produced.
Petitioners also claim that considering the value of the unused stockpile
of construction materials and supplies, a re-audit would prove that the
payment they made was justified and that the actual cost of the project
at the time of the initial inspection is indeed P650,000.00. We hold that
the suggested re-audit would not exonerate the petitioners. The re-audit
cannot blur the fact that undue damage has already been caused to the
municipal government in view of the delay in the construction of the
municipal market and the failure of the petitioners to enforce the penalty
clause in the construction contract.
IN VIEW WHEREOF, the appealed Decision is hereby AFFIRMED in toto.
Costs against petitioners.
SO ORDERED.
Narvasa, C.J., Regalado and Mendoza, JJ., concur.
PLUNDER
(1) G.R. No. 148560 November 19, 2001
JOSEPH EJERCITO ESTRADA, petitioner, vs. SANDIGANBAYAN (Third
Division) and PEOPLE OF THE PHILIPPINES, respondents.
(2) G.R. No. 220598
GLORIA MACAPAGAL ARROYO, Petitioner, vs. PEOPLE OF THE
PHILIPPINES AND THE SANDIGANBAYAN, (First Division), Respondents
BERSAMIN,, J.:
On July 19, 2016, the Court promulgated its decision, disposing:
WHEREFORE, the Court GRANTS the petitions
for certiorari; ANNULS and SETS ASIDE the resolutions issued in Criminal
Case No. SB-12-CRM-0174 by the Sandiganbayan on April 6, 2015 and
September 10, 2015; GRANTSthe petitioners' respective demurrers to
evidence; DISMISSES Criminal Case No. SB-12-CRM-0174 as to the
petitioners GLORIAMACAPAGAL-ARROYO and BENIGNOAGUAS for
insufficiency of evidence; ORDERS the immediate release from detention
of said petitioners; and MAKES no pronouncements on costs of suit.
SO ORDERED. 1
On August 3, 2016, the State, through the Office of the Ombudsman, has
moved for the reconsideration of the decision, submitting that:
I. THIS HONORABLE COURT'S GIVING DUE COURSE TO A CERTIORARI
ACTION ASSAILING AN INTERLOCUTORY ORDER DENYING DEMURRER
TO EVIDENCE VIOLA TES RULE 119, SECTION 23 OF THE RULES OF
COURT, WHICH PROVIDES THAT AN ORDER DENYING THE DEMURRER
TO EVIDENCE SHALL NOT BE REVIEWABLE BY APPEAL OR BY
CERTIORARI BEFORE JUDGMENT.
II. THE HONORABLE COURT COMMITTED GRAVE ERRORS WHICH
AMOUNT TO A VIOLATION OR DEPRIVATION OF THE STATE'S
FUNDAMENTAL RIGHT TO DUE PROCESS OF LAW.
A. THE DECISION REQUIRES ADDITIONAL ELEMENTS IN THE
PROSECUTION OF PLUNDER, VIZ. IDENTIFICATION OF THE
MAIN PLUNDERER AND PERSONAL BENEFIT TO
HIM/HER, BOTH OF WHICH ARE NOT PROVIDED IN THE TEXT
OF REPUBLIC ACT (R.A.) NO. 7080.
B. THE EVIDENCE PRESENTED BY THE PROSECUTION WAS NOT
FULLY TAKEN INTO ACCOUNT, INCLUDING BUT NOT LIMITED
TO THE IRREGULARITIES IN THE CONFIDENTIAL/INTELLIGENCE
FUND (CIF) DISBURSEMENT PROCESS, QUESTIONABLE
PRACTICE OF CO-MINGLING OF FUNDSAND AGUAS'
REPORTS TO THE COMMISSION ON AUDIT (COA) THAT BULK
OF THE PHP365,997,915.00 WITHDRAWN FROM THE
PHILIPPINE CHARITY SWEEPSTAKES OFFICE'S (PCSO) CIF
WERE DIVERTED TO THE ARROYO-HEADED OFFICE OF THE
PRESIDENT.
C. ARROYO AND AGUAS, BY INDISPENSABLE COOPERATION,
IN CONSPIRACY WITH THEIR COACCUSED IN SB-12-CRM-0174,
COMMITTED PLUNDER VIA· A COMPLEX ILLEGAL SCHEME
WHICH DEFRAUDED PCSO IN HUNDREDS OF MILLIONS OF
PESOS.
D. EVEN ASSUMING THAT THE ELEMENTS OF PLUNDER WERE
NOT PROVEN BEYOND REASONABLE DOUBT, THE EVIDENCE
PRESENTED BY THE PEOPLE SHOWS, BEYOND REASONABLE
DOUBT, THAT ARROYO, AGUAS AND THEIR COACCUSED IN SB-
12-CRM-0174 ARE GUILTY OF MALVERSATION.2
In contrast, the petitioners submit that the decision has effectively barred
the consideration and granting of the motion for reconsideration of the
State because doing so would amount to the re-prosecution or revival of
the charge against them despite their acquittal, and would thereby
violate the constitutional proscription against double jeopardy.
Petitioner Gloria M. Macapagal-Arroyo (Arroyo) points out that the State
miserably failed to prove the corpus delicti of plunder; that the Court
correctly required the identification of the main plunderer as well as
personal benefit on the part of the raider of the public treasury to enable
the successful prosecution of the crime of plunder; that the State did not
prove the conspiracy that justified her inclusion in the charge; that to
sustain the case for malversation against her, in lieu of plunder, would
violate her right to be informed of the accusation against her because the
information did not necessarily include the crime of malversation; and
that even if the information did so, the constitutional prohibition against
double jeopardy already barred the re-opening of the case for that
purpose.
Petitioner Benigno B. Aguas echoes the contentions of Arroyo in urging
the Com1 to deny the motion for reconsideration.
In reply, the State avers that the prohibition against double jeopardy does
not apply because it was denied its day in court, thereby rendering the
decision void; that the Court should re-examine the facts and pieces of
evidence in order to find the petitioners guilty as charged; and that the
allegations of the information sufficiently included all that was necessary
to fully inform the petitioners of the accusations against them.
Ruling of the Court
The Court DENIES the motion for reconsideration for its lack of merit.
To start with, the State argues' that the consolidated petitions
for certiorari were improper remedies in light of Section 23, Rule 119 of
the Rules of Court expressly prohibiting the review of the denial of their
demurrer prior to the judgment in the case either by appeal or
47
by certiorari; that the Court has thereby limited its own power, which
should necessarily prevent the giving of due course to the petitions
Page
for certiorari, as well as the undoing of the order denying the petitioners'
demurrer to evidence; that the proper remedy under the Rules of
Court was for the petitioners to proceed to trial and to present their
evidence-in-chief thereat; and that even if there had been grave abuse of
discretion attending the denial, the Court's certiorari powers should be
exercised only upon the petitioners' compliance with the stringent
requirements of Rule 65, particularly with the requirement that there be
no plain, speedy or adequate remedy in the ordinary course of law, which
they did not establish.
Section 23, Rule 119 of the Rules of Court, pertinently provides:
Section 23. Demurrer to evidence. – xxx
xxxx
The order denying the motion for leave of court to file demurrer to
evidence or the demurrer itself shall not be reviewable by appeal or
by certiorari before judgment. (n)
The argument of the State, which is really a repetition of its earlier
submission, was squarely resolved in the decision, as follows:
The Court holds that it should take cognizance of the petitions
for certiorari because the Sandiganbayan, as shall shortly be
demonstrated, gravely abused its discretion amounting to lack or excess
of jurisdiction.
The special civil action for certiorari is generally not proper to assail such
an interlocutory order issued by the trial court because of the availability
of another remedy in the ordinary course of law. Moreover, Section 23,
Rule 119 of the Rules of Court expressly provides that "the order denying
the motion for leave of court to file demurrer to evidence or the
demurrer itself shall not be reviewable by appeal or by certiorari before
judgment." It is not an insuperable obstacle to this action, however, that
the denial of the demurrers to evidence of the petitioners was an
interlocutory order that did not terminate the proceedings, and the
proper recourse of the demurring accused was to go to trial, and that in
case of their conviction they may then appeal the conviction, and assign
the denial as among the errors to be reviewed. Indeed, it is doctrinal that
the situations in which the writ of certiorari may issue should not be
limited, because to do so -
x x x would be to destroy its comprehensiveness and usefulness. So wide
is the discretion of the com1 that authority is not wanting to show
that certiorari is more discretionary than either prohibition
or mandamus. In the exercise of oursuperintending control over other
courts, we are to be guided by all the circumstances of each particular
case 'as the ends of justice may require.' So it is that the writ will be
granted where necessary to prevent a substantial wrong or to do
substantial justice.
The Constitution itself has imposed upon the Court and the other courts
of justice the duty to correct errors of jurisdiction as a result of capricious,
arbitrary, whimsical and despotic exercise of discretion by expressly
incorporating in Section 1 of Article VIII the following provision:
Section 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government. The exercise
of this power to correct grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government cannot be thwarted by rules of procedure to the contrary
or for the sake of the convenience of one side. This is because the Court
has the bounden constitutional duty to strike down grave abuse of
discretion whenever and wherever it is committed. Thus,
notwithstanding the interlocutory character and effect of the denial of
the demurrers to evidence, the petitioners as the accused could avail
themselves of the remedy of certiorari when the denial was tainted
with grave abuse of discretion. As we shall soon show,
the Sandiganbayan as the trial court was guilty of grave abuse of
discretion when it capriciously denied the demurrers to evidence
despite the absence of competent and sufficient evidence to sustain the
indictment for plunder, and despite the absence of the factual bases to
expect a guilty verdict.3
We reiterate the foregoing resolution, and stress that the prohibition
contained in Section 23, Rule 119 of the Rules of Court is not an
insuperable obstacle to the review by the Court of the denial of the
demurrer to evidence through certiorari. We have had many rulings to
that effect in the past. For instance, in Nicolas v. Sandiganbayan,4the
Court expressly ruled that the petition for certiorari was the proper
remedy to assail the denial of the demurrer to evidence that was tainted
with grave abuse of discretion or excess of jurisdiction, or oppressive
exercise of judicial authority.
Secondly, the State submits that its right to due process was violated
because the decision imposed additional elements for plunder that
neither ' Republic Act No. 7080 nor jurisprudence had theretofore
required, i.e., the identification of the main plunderer, and personal
benefit on the part of the accused committing the predicate crime of raid
on the public treasury. The State complains that it was not given the
opportunity to establish such additional elements; that the imposition of
new elements fu1iher amounted to judicial legislation in violation of the
doctrine of separation of powers; that the Court nitpicked on the
different infirmities of the information despite the issue revolving only
around the sufficiency of the evidence; and that it established all the
elements of plunder beyond reasonable doubt.
The State cites the plain meaning rule to highlight that the crime of
plunder did not require personal benefit on the part of the raider of the
public treasury. It insists that the definition of raids on the public
treasury, conformably with the plain meaning rule, is the taking of public
money through fraudulent or unlawful means, and such definition does
not require enjoyment or personal benefit on the part of plunderer or on
the part of any of his co-conspirators for them to be convicted for
plunder.
The submissions of the State are unfounded.
The requirements for the identification of the main plunderer and for
personal benefit in the predicate act of raids on the public treasury have
been written in R.A. No. 7080 itself as well as embedded in pertinent
jurisprudence. This we made clear in the decision, as follows:
A perusal of the information suggests that what the Prosecution sought
to show was an implied conspiracy to commit plunder among all of the
accused on the basis of their collective actions prior to, during and after
the implied agreement. It is notable that the Prosecution did not allege
that the conspiracy among all of the accused was by express agreement,
or was a wheel conspiracy or a chain conspiracy.
This was another fatal flaw of the Prosecution.
In its present version, under which the petitioners were charged, Section
2 of Republic Act No. 7080 (Plunder Law) states:
Section 2. Definition of the Crime of Plunder: Penalties. - Any public officer
who, by himself or in connivance with members of his family, relatives by
affinity or consanguinity, business associates, subordinates or other
persons, amasses, accumulates or acquires ill-gotten wealth through a
combination or series of overt criminal acts as described in Section 1 (d)
hereof in the aggregate amount or total value of at least Fifty million
48
pesos (₱50,000,000.00) shall be guilty of the crime of plunder and shall
be punished by reclusion perpetua to death. Any person who participated
Page
with the said public officer in the commission of an offense contributing
to the crime of plunder shall likewise be punished for such offense. In the
imposition of penalties, the degree of participation and the attendance
of mitigating and extenuating circumstances, as provided by the Revised
Penal Code, shall be considered by the court. The court shall declare any
and all ill-gotten wealth and their interests and other incomes and assets
including the properties and shares of stocks derived from the deposit or
investment thereof forfeited in favor of the State. [As Amended by
Section 12, Republic Act No. 7659 (The Death Penalty Law)]
Section l(d) of Republic Act No. 7080 provides:
Section 1. Definition of terms. - As used in this Act, the term:
xxxx
d. "Ill-gotten wealth" means any asset, property, business enterprise or
material possession of any person within the purview of Section two (2)
hereof, acquired by him directly or indirectly through dummies,
nominees, agents, subordinates and/or business associates by any
combination or series of the following means or similar schemes:
1. Through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public treasury;
2. By receiving, directly or indirectly, any commission, gift,
share, percentage, kickbacks or any/or entity in connection
with any government contract or project or by reason of the
office or position of the public officer concerned;
3. By the illegal or fraudulent conveyance or disposition of
assets belonging to the National Government or any of its
subdivisions, agencies or instrumentalities or government-
owned or controlled corporations and their subsidiaries;
4. By obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or
participation including the promise of future employment in
any business enterprise or undertaking;
5. By establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation of
decrees and orders intended to benefit particular persons or
special interests; or
6. By taking undue advantage of official positi0n, authority,
relationship, connection or influence to unjustly enrich himself
or themselves at the expense and to the damage and prejudice
The law on plunder requires that a particular public officer must be
identified as the one who amassed, acquired or accumulated ill-gotten
wealth because it plainly states that plunder is committed by any public
officer who, by himself or in connivance with members of his family,
relatives by affinity or consanguinity, business associates, subordinates
or other persons, amasses, accumulates or acquires ill-gotten wealth in
the aggregate amount or total value of at least ₱50,000,000.00 through
a combination or series of overt criminal acts as described in Section
l(d) hereof. Surely, the law requires in the criminal charge for plunder
against several individuals that there must be a main plunderer and her
co-conspirators, who may be members of her family, relatives by
affinity or consanguinity, business associates, subordim1tes or other
persons. In other words, the allegation of the wheel conspiracy or
express conspiracy in the information was appropriate because the
main plunderer would then be identified in either manner. Of course,
implied conspiracy could also identify the main plunderer, but that fact
must be properly alleged and duly proven by the Prosecution.
This interpretation is supported by Estrada v. Sandiganbayan, where the
Court explained the nature of the conspiracy charge and the necessity for
the main plunderer for whose benefit the amassment, accumulation and
acquisition was made, thus:
There is no denying the fact that the "plunder of an entire nation resulting
in material damage to the national economy" is made up of a complex
and manifold network of crimes. In the crime of plunder, therefore,
different parties may be united by a common purpose. In the case at bar,
the different accused and their different criminal acts have a
commonality - to help the former President amass, accumulate or acquire
ill-gotten wealth. Sub-paragraphs (a) to (d) in the Amended Information
alleged the different participation of each accused in the conspiracy. The
gravamen of the conspiracy charge, therefore, is not that each accused
agreed to receive protection money from illegal gambling, that each
misappropriated a portion of the tobacco excise tax, that each accused
ordered the GSIS and SSS to purchase shares of Belle Corporation and
receive commissions from such sale, nor that each unjustly enriched
himself from commissions, gifts and kickbacks; rather, it is that each of
them, by their individual acts, agreed to participate, directly or
indirectly, in the amassing, accumulation and acquisition of ill-gotten
wealth of and/or for former President Estrada. 5 [bold underscoring
supplied for emphasis]
Indeed, because plunder is a crime that only a public official can commit
by amassing, accumulating, or acquiring ill-gotten wealth in the
aggregate amount or total value of at least ₱50,000,000.00, the
identification in the information of such public official as the main
plunderer among the several individuals thus charged is logically
necessary under the law itself. In particular reference to Criminal Case
No. SB-12-CRM-0174, the individuals charged therein - including the
petitioners - were 10 public officials; hence, it was only proper to identify
the main plunderer or plunderers among the 10 accused who herself or
himself had amassed, accumulated, or acquired ill-gotten wealth with the
total value of at least ₱50,000,000.00.
The phrase raids on the public treasury as used in Section 1 (d) of R. A.
No. 7080 is itself ambiguous. In order to ascertain the objective meaning
of the phrase, the act of raiding the public treasury cannot be divided into
parts. This is to differentiate the predicate act of raids on the public
treasury from other offenses involving property, like robbery, theft,
or estafa. Considering that R.A. No. 7080 does not expressly define this
predicate act, the Court has necessarily resorted to statutory
construction. In so doing, the Court did not adopt the State's submission
that personal benefit on the part of the accused need not be alleged and
shown because doing so would have defeated the clear intent of the law
itself,6 which was to punish the amassing, accumulating, or acquiring of
ill-gotten wealth in the aggregate amount or total value of at least
₱150,000,000.00 by any combination or series of acts of
misappropriation, conversion, misuse, or malversation of public funds or
raids on the public treasury.
As the decision has observed, the rules of statutory construction as well
as the deliberations of Congress indicated the intent of Congress to
require personal benefit for the predicate act of raids on the public
treasury, viz.:
The phrase raids on the public treasury is found in Section 1 (d) of R.A.
No. 7080, which provides:
Section l .Definition of Terms. – xxx
xxxx
d) Ill-gotten wealth means any asset, prope1iy, business enterprise or
material possession of any person within the purview of Section Two (2)
hereof, acquired by him directly or indirectly through dummies,
nominees, agents, subordinates and/or business associates by any
combination or series of the following means or similar schemes:
1) Through misappropriation, conversion, misuse, or malversation of
public funds or raids on the public treasury;
49
xxxx
Page
To discern the proper import of the phrase raids on the public
treasury, the key is to look at the accompanying
words: misappropriation, conversion, misuse or malversation of public
funds. This process is conformable with the maxim of statutory
construction noscitur a sociis, by which the correct construction of a
particular word or phrase that is ambiguous in itself or is equally
susceptible of various meanings may be made by considering the
company of the words in which the word or phrase is found or with
which it is associated. Verily, a word or phrase in a statute is always
used in association with other words or phrases, and its meaning may,
therefore, be modified or restricted by the latter.
To convert connotes the act of using or disposing of another's property
as if it were one's own; to misappropriate means to own, to take
something for one's own benefit; misuse means "a good, substance,
privilege, or right used improperly, unforcsccably, or not as intended;"
and malversation occurs when "any public officer who, by reason of the
duties of his office, is accountable for public funds or property, shall
appropriate the same or shall take or misappropriate or shall consent,
through abandonment or negligence, shall permit any other person to
take such public funds, or property, wholly or partially." The common
thread that binds all the four terms together is that the public
officer used the property taken. Considering that raids on the public
treasury is in the company of the four other terms that require the use of
the property taken, the phrase raids on the public treasury similarly
requires such use of the property taken. Accordingly,
the Sandiganbayan gravely erred in contending that the mere
accumulation and gathering constituted the forbidden act of raids on the
public treasury. Pursuant to the maxim of noscitur a sociis, raids on the
public treasury requires the raider to use the property taken impliedly for
his personal benefit.7
The Prosecution asserts that the Senate deliberations removed personal
benefit as a requirement for plunder. In not requiring personal benefit,
the Sandiganbayan quoted the following exchanges between Senator
Enrile and Senator Tafiada, viz.:
Senator Enrile. The word here, Mr. President, "such public officer or
person who conspired or knowingly benefited". One does not have to
conspire or rescheme. The only element needed is that he "knowingly
benefited". A candidate for the Senate for instance, who received a
political contribution from a plunderer, knowing that the contributor is a
plunderer and therefore, he knowingly benefited from the plunder,
would he also suffer the penalty, Mr. President, for life imprisonment?
Senator Tafiada. In the committee amendments, Mr. President, we have
deleted these lines 1 to 4 and part of line 5, on page 3. But, in a way, Mr.
President, it is good that the Gentleman is bringing out these questions,
I believe that under the examples he has given, the Court will have to...
Senator Enrile. How about the wife, Mr. President, he may not agree with
the plunderer to plunder the country but because she is a dutiful wife or
a faithful husband, she has to keep her or his vow of fidelity to the spouse.
And, of course, she enjoys the benefits out of the plunder. Would the
Gentleman now impute to her or him the crime of plunder simply
because she or he knowingly benefited out of the fruits of the plunder
and, therefore, he must suffer or he must suffer the penalty of life
imprisonment?
The President. That was stricken out already in the Committee
amendment.
Senator Tañada. Yes, Mr. President. Lines 1 to 4 and part of line 5 were
stricken out in the Committee amendment. But, as I said, the examples
of the Minority Floor Leader are still worth spreading the Record. And, I
believe that in those examples, the Court will have just to take into
consideration all the other circumstances prevailing in the case and the
evidence that will be submitted.
The President. In any event, 'knowingly benefited' has already been
stricken off."
The exchanges between Senator Enrile and Senator Tañada reveal,
therefore, that what was removed from the coverage of the bill and the
final version that eventually became the law was a person who was not
the main plunderer or a co-conspirator, but one who personally
benefited from the plunderers' action. The requirement of personal
benefit on the part of the main plunderer or his co-conspirators by virtue
of their plunder was not removed.
As a result, not only did the Prosecution fail to show where the money
went but, more importantly, that GMA and Aguas had personally
benefited from the same. Hence, the Prosecution did not prove the
predicate act of raids on the public treasury beyond reasonable doubt. 8
Thirdly, the State contends that the Court did not appreciate the totality
of its evidence, particularly the different irregularities committed in the
disbursement of the PCSO funds, i.e., the commingling of funds, the non-
compliance with LOI No. 1282, and the unilateral approval of the
disbursements. Such totality, coupled with the fact of the petitioners'
indispensable cooperation in the pilfering of public funds, showed the
existence of the conspiracy to commit plunder among all of the accused.
The contention lacks basis.
As can be readily seen from the decision, the Court expressly granted the
petitioners' respective demurrers to evidence and dismissed the plunder
case against them for insufficiency of evidence because:
x x x the Sandiganbayan as the trial court was guilty of grave abuse of
discretion when it capriciously denied the demurrers to evidence despite
the absence of competent and sufficient evidence to sustain the
indictment for plunder, and despite the absence of the factual bases to
expect a guilty verdict. 9
Such disposition of the Court fully took into consideration all the
evidence adduced against the petitioners. We need not rehash our
review of the evidence thus adduced, for it is enough simply to stress that
the Prosecution failed to establish the corpus delicti of plunder - that any
or all of the accused public officials, particularly petitioner Arroyo, had
amassed, accumulated, or acquired ill-gotten wealth in the aggregate
amount or total value of at least ₱50,000,000.00.
Fourthly, in accenting certain inadequacies of the allegations of the
information, the Court did not engage in purposeless nitpicking, and did
not digress from the primary task of determining the sufficiency of the
evidence presented by the State against the petitioners. What the Court
thereby intended to achieve was to highlight what would have been
relevant in the proper prosecution of plunder and thus enable itself to
discern and determine whether the evidence of guilt was sufficient or
not. In fact, the Court categorically clarified that in discussing the
essential need for the identification of the main plunderer it was not
harping on the sufficiency of the information, but was only enabling itself
to search for and to find the relevant proof that unequivocally showed
petitioner Arroyo as the "mastermind" - which was how the
Sandiganbayan had characterized her participation - in the context of the
implied conspiracy alleged in the information. But the search came to
naught, for the information contained nothing that averred her
commission of the overt act necessary to implicate her in the supposed
conspiracy to commit the crime of plunder. Indeed, the Court assiduously
searched for but did not find the sufficient incriminatory evidence against
the petitioners. Hence, the Sandiganbayan capriciously and oppressively
denied their demurrers to evidence.
Fifthly, the State posits that it established at least a case for malversation
against the petitioners.
50
Malversation is defined and punished under Article 217 of the Revised
Penal Code, which reads thusly:
Page
Article 217. Malversation of public funds or property; Presumption of
malversation. - Any public officer who, by reason of the duties of his
office, is accountable for public funds or property, shall appropriate the
same or shall take or misappropriate or shall consent, through
abandonment or negligence, shall permit any other person to take such
public funds, or property, wholly or partially, or shall otherwise be guilty
of the misappropriation or malversation of such funds or property, shall
suffer:
1. The penalty of prision correccional in its medium and
maximum periods, if the amount involved in the
misappropriation or malversation does not exceed two
hundred pesos.
2. The penalty of prision mayor in its minimum and medium
periods, if the amount involved is more than two hundred
pesos but does not exceed six thousand pesos.
3. The penalty of prision mayor in its maximum period to
reclusion temporal in its minimum period, if the amount
involved is more than six thousand pesos but is less than twelve
thousand pesos.
4. The penalty of reclusion temporal, in its medium and
maximum periods, if the amount involved is more than twelve
thousand pesos but is less than twenty-two thousand pesos. If
the amount exceeds the latter, the penalty shall be reclusion
temporal in its maximum period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty of
perpetual special disqualification and a fine equal to the amount of the
funds malversed or equal to the total value of the property embezzled.
The failure of a public officer to have duly forthcoming any public funds
or property with which he is chargeable, upon demand by any duly
authorized officer, shall be prima facie evidence that he has put such
missing funds or property to personal use. (As amended by RA 1060).
The elements of malversation are that: (a) the offender is an accountable
public officer; (b) he/she is responsible for the misappropriation of public
funds or property through intent or negligence; and (c) he/she has
custody of and received such funds and property by reason of his/her
office. 10
The information in Criminal Case No. SB-12-CRM-017411 avers:
The undersigned Assistant Ombudsman and Graft Investigation and
Prosecution Officer III, Office of the Ombudsman, hereby accuse GLORIA
MACAPAGAL-ARROYO, ROSARIO C. URIARTE, SERGIO O. VALENCIA,
MANUEL L. MORATO, JOSE R. TARUC V, RAYMUNDO T. ROQUERO, MA.
FATIMA AS. VALDES, BENIGNO B. AGUAS, REYNALDO A. VILLAR and
NILDA B. PLARAS, of the crime of PLUNDER, as defined by, and penalized
under Section 2 of Republic Act (R.A.) No. 7080, as amended by R.A. No.
7659, committed, as follows:
That during the period from January 2008 to June 2010 or sometime prior
or subsequent thereto, in Quezon City, Philippines, and within the
jurisdiction of this Honorable Court, accused GLORIA MACAPAGAL-
ARROYO, then the President of the Philippines, ROSARIO C. URIARTE,
then General Manager and Vice Chairman, SERGIO 0. VALENCIA, then
Chairman of the Board of Directors, MANUEL L. MORA TO, JOSE R. TARUC
V, RAYMUNDO T. ROQUERO, MA. FATIMA AS. VALDES, then members of
the Board of Directors, BENIGNO B. AGUAS, then Budget and Accounts
Manager, all of the Philippine Charity Sweepstakes Office (PCSO),
REYNALDO A. VILLAR, then Chairman, and NILDA B. PLARAS, then Head
of Intelligence/Confidential Fund Fraud Audit Unit, both of the
Commission on Audit, all public officers committing the offense in
relation to their respective offices and taking undue advantage of their
respective official positions, authority, relationships, connections or
influence, conniving, conspiring and confederating with one another, did
then and there willfully, unlawfully and criminally 'amass,, accumulate
and/or acquire directly or indirectly, ill-gotten wealth in the aggregate
amount or total value of THREE HUNDRED SIXTY FIVE MILLION NINE
HUNDRED NINETY SEVEN THOUSAND NINE HUNDRED FIFTEEN PESOS
(PHP365,997,915.00), more or less, through any or a combination or a
series of overt or criminal acts, or similar schemes or means, described as
follows:
(a) diverting in several instances, funds from the operating
budget of PCSO to its Confidential/Intelligence Fund that could
be accessed and withdrawn at any time with minimal
restrictions, and converting, misusing, and/or illegally
conveying or transferring the proceeds drawn from said fund in
the aforementioned sum, also in several instances, to
themselves, in the guise of fictitious expenditures, for their
personal gain and benefit;
(b) raiding the public treasury by withdrawing and receiving, in
several instances, the above-mentioned amount from the
Confidential/Intelligence Fund from PCSO's accounts, and or
unlawfully transferring or conveying the same into their
possession and control through irregularly issued disbursement
vouchers and fictitious expenditures; and
(c) taking advantage of their respective official positions,
authority, relationships, connections or influence, in several
instances, to unjustly enrich themselves in the aforementioned
sum, at the expense of, and the damage and prejudice of the
Filipino people and the Republic of the Philippines.
CONTRARY TO LAW.
In thereby averring the predicate act of malversation, the State did not
sufficiently allege the aforementioned essential elements of
malversation in the information. The omission from the information of
factual details descriptive of the aforementioned elements of
malversation highlighted the insufficiency of the allegations.
Consequently, the State's position is entirely unfounded.
Lastly, the petitioners insist that the consideration and granting of the
motion for reconsideration of the State can amount to a violation of the
constitutional prohibition against double jeopardy because their
acquittal under the decision was a prior jeopardy within the context of
Section 21, Article III (Bill of Rights) of the 1987 Constitution, to wit:
Section 21. No person shall be twice put in jeopardy of punishment for
the same offense. If an act is punished by a law and an ordinance,
conviction or acquittal under either shall constitute a bar to another
prosecution for the same act.
The insistence of the petitioners is fully warranted. Indeed, the
consideration and granting of the motion for reconsideration of the State
will amount to the violation of the constitutional guarantee against
double jeopardy.
The Court's consequential dismissal of Criminal Case No. SB-12- CRM-
0174 as to the petitioners for insufficiency of evidence amounted to
their acquittal of the crime of plunder charged against them. In People v.
Tan, 12the Court shows why:
In People v. Sandiganbayan, this Com1 explained the general rule that
the grant of a demurrer to evidence operates as an acquittal and is, thus,
final and unappealable, to wit:
The demurrer to evidence in criminal cases, such as the one at bar,
is ''filed after tile prosecution had rested its case," and when the same
is granted, it calls "for an appreciation of the evidence adduced by the
51
prosecution and its sufficiency to warrant conviction beyond
reasonable doubt, resulting in a dismissal of the case on the merits,
Page
tantamount to an acquittal of the accused." Such dismissal of a criminal
case by the grant of demurrer to evidence may not be appealed, for to
do so would be to place the accused in double jeopardy. The verdict
being one of acquittal, the case ends there.
xxxx
The rule on double jeopardy, however, is not without exceptions.
In People v. Laguio, Jr., this Court stated that the only instance when
double jeopardy will not attach is when the RTC acted with grave abuse
of discretion, thus:
... The only instance when double ,jeopardy will not attach is when the
trial court acted with grave abuse of discretion amounting to lack or
excess of jurisdiction, such as where the prosecution was denied the
opportunity to present its case or where the trial was a sham. However,
while certiorari may be availed of to correct an erroneous acquittal, the
petitioner in such an extraordinary proceeding must clearly demonstrate
that the trial court blatantly abused its authority to a point so grave as to
deprive it of its very power to dispense justice. 13
The constitutional prohibition against placing a person under double
jeopardy for the same offense bars not only a new and independent
prosecution but also an appeal in the same action after jeopardy had
attached. 14 As such, every acquittal becomes final immediately upon
promulgation and cannot be recalled for correction or amendment. With
the acquittal being immediately final, granting the State's motion for
reconsideration in this case would violate the Constitutional prohibition
against double jeopardy because it would effectively reopen the
prosecution and subject the petitioners to a second jeopardy despite
their acquittal.
It is cogent to remind in this regard that the Constitutional prohibition
against double jeopardy provides to the accused three related
protections, specifically: protection against a second prosecution for the
same offense after acquittal; protection against a second prosecution for
the same offense after conviction; and protection against multiple
punishments for the same offense. 15The rationale for the three
protections is expounded in United States v. Wilson: 16
The interests underlying these three protections arc quite similar. When
a defendant has been once convicted and punished for a particular
crime, principles of fairness and finality require that he not be subjected
to the possibility of further punishment by being again tried or
sentenced for the same offense.Ex pa rte Lange, 18 Wall 163 (1874); In
re Nielsen, 131 U.S. 176 (1889). When a defendant has been acquitted
of an offense, the Clause guarantees that the State shall not be
permitted to make repeated attempts to convict him,
"thereby subjecting him to embarrassment, expense and ordeal, and
compelling him to live in a continuing state of anxiety and insecurity, as
well as enhancing the possibility that, even though innocent, he may be
found guilty."
Green v. United States, 355 U.S. 184, 187-188 (1957).
The policy of avoiding multiple trials has been regarded as so important
that exceptions to the principle have been only grudgingly allowed.
Initially, a new trial was thought to be unavailable after appeal,
whether requested by the prosecution or the defendant. See United
States v. Gibert, 25 F. Cas. 1287 (No. 15,204) (CCD Mass. 1834) (Story,
J.). It was not until 1896 that it was made clear that a defendant could
seek a new trial after conviction, even though the Government enjoyed
no similar right. United States v. Ball, 163 U.S. 662. (Bold underscoring
supplied for emphasis)
WHEREFORE, the Court DENIES the motion for reconsideration for lack
of merit.
SO ORDERED.
RA 7080
Art. 217 – Malversation
(1) G.R. No. 82067 April 10, 1992
LUCILYN T. ZAMBRANO, petitioner, vs. SANDIGANBAYAN (Second
Division) and the PEOPLE OF THE PHILIPPINES, respondents.
PARAS J.:
This is a petition for review on certiorari of the decision * dated January
8, 1986 of the respondent Sandiganbayan in Crim. Case No. 2559 entitled
"People of the Philippines v. Lucilyn Zambrano y Tesoro" which convicted
petitioner of malversation of public funds.
The petitioner was charged before the Sandiganbayan with malversation
of public funds, allegedly committed as follows:
That on or about and during the period from January
20, 1976 to January 24, 1980, in Cotabato and within
the jurisdiction of this Honorable Court the accused
LUCILYN T. ZAMBRANO, being then employed at the
National Grains Authority, now the National Food
Authority as Cashier I and designated as Special
Disbursing Officer at Cotabato City and as such,
accountable for the public funds collected and
received by reason of her position, did then and there
willfully, unlawfully and feloniously and with grave
abuse of confidence, misappropriate, misapply and
embezzle and convert to her own personal use and
benefit from said funds the sum of ONE MILLION
TWO HUNDRED SEVEN THOUSAND EIGHT HUNDRED
THIRTY FIVE PESOS AND NINETEEN CENTAVOS
(P1,207,835.19), Philippine Currency to the damage
and prejudice of the National Grains Authority, now
the National Food Authority,
ALL CONTRARY TO LAW. (Original Record, p. 1; Rollo,
pp. 6-7)
On August 28, 1986, the Sandiganbayan rendered a decision convicting
petitioner for malversation of public funds, (Original Record, pp. 301-341)
but Petitioner filed a motion for new trial (Ibid., pp. 348-350) and said
motion was granted in a resolution issued by the Sandiganbayan, on
October 13, 1986 (Ibid., pp. 363-366).
Upon arraignment, the accused-petitioner Lucilyn T. Zambrano entered a
plea of not guilty to the crime charged (Ibid., pp. 28; 30-31).
The trial of the case ensued.
The prosecution's lone witness, Carlito Capinpin, an auditor of the COA
assigned in National Food Authority (NFA) whose duties were to pre-
audit, and post-audit claims and disbursements of accountable officers in
said office, declared that he conducted an audit examination of the
accounts and accountabilities of the accused comprising the period from
January 20, 1976 to January 24, 1980 after receipt of a copy of "Cash on
Hand Per Count Report" made by the resident auditor. He and together
with the other members of the special audit team created by NFA who
conducted the investigation, divided the work by the assignment of a
particular account to audit to each of them and came up with a report,
the results of which may be summarized in the following manner:
The cash advances of herein petitioner under the Cereal Procurement
Fund (CPF) as Special Disbursement Officer have a total of
P10,543,165.56 while her cash disbursements amounted to
P10,115,620.49, leaving a shortage of P427,545.07. Her operational
funds from January 20, 1976 to January 24, 1980 amounted to
52
P13,019,344.78 while credits to her accountability totalled
P12,442,951.82, thus leaving a shortage of P576,392.96. Her record of
Page
collections and deposits for the same period shows that she had debits
to her accountability in the total amount of P13,305,659.18, whereas the
credits thereto amounted to P13,101,762.02. Thus, there is a shortage of
P203,897.16. All these shortages reached a total of P1,207,835.19
(Hearing of August 3, 1981, TSN, pp. 9-21; Hearing of February 28, 1984,
TSN, pp., 93-97).
When asked to explain the entries in the Audit Examination Report,
Capinpin clarified each and every item under investigation such as: Cereal
Procurement Fund which is the summary of the accountabilities of the
accused as special disbursing officer for the period covered, July 30, 1977
to January 24, 1980. Debit to accountability refers to the cash advances
and replenishments made by the special disbursing officer to serve as her
fund for the purchase of palay in connection with the procurement
operation of the NFA. The advances were in the form of cash supported
by cash vouchers, replenishment vouchers which are also supported by
purchase receipts. These purchase receipts were the actual expenses or
disbursements made by the special disbursing officer for the procured
palay in her capacity as special disbursing officer (Hearing of February 28,
1984, TSN, pp. 66-68).
In view of the shortage found, a demand letter was sent to Lucilyn
Zambrano dated July 2, 1980 requiring her to restitute or pay the said
shortage. To date no restitution has been made by the accused (Hearing
of August 3, 1981, TSN, pp. 9-21).
On clarificatory questions made by the Court, Capinpin admitted that the
report submitted by the team does not contain references or cross
references to the pertinent supporting documents. What was embodied
in the transmittal letter was the total accountability on the net shortage
of the accused. The summary of accountability of the accused both as
disbursing officer and as special collecting officer are duly supported by
general schedules with references to their respective amount (Decision,
Crim. Case No. 2559, Rollo, p. 24).
He claimed that he personally examined all the entries contained in the
cash books, despite the absence of his signature to show that he had
actually made examinations thereon. In going over the cash books he
counter-checked them with entries made by the accused herself, under
the columns "Treasury Warrant", "Journal Voucher" or "Official Receipts"
as against the documents themselves, and found that all the entries
appearing in the cash books have their corresponding vouchers (Hearing
of November 26, 1984, TSN, pp. 155-156).
Capinpin further declared that (a) the number of the vouchers
representing cash advances or replenishments to the accused are all
reflected in the schedules attached to the audit report; (b) all vouchers
recorded in the registers were obtained by the team and duly accounted
for; (c) the vouchers were not only checked but the audit team saw to it
that the supporting papers were complete; and (d) the audit team
followed COA standard procedures in conducting their examination
(Decision, Criminal Case No. 2559, Rollo, p. 62).
On the other hand, the defense presented Cesario Mateo as an expert
witness, who is a Certified Public Accountant (CPA) and private
practitioner. Long before he became a free lancer, he was connected with
the government, employed as Auditing Clerk of the Rice and Corn
Administration (RCA) now NFA, then as a proof clerk of the First United
Bank, then with the COA as Assistant Auditor until he worked abroad as
Assistant Account of Bauchi State Investment and Development
Corporation in Nigeria which is a government corporation.
Mateo claimed that he, together with a former COA Auditor and
personnel of the Sandiganbayan, started examining and reviewing ten
(10) boxes of exhibits of the prosecution late in September and ended
early in January 2, 1986. Thereafter, he submitted a written report to
Atty. Ontimare, with a summary of his findings and observations (Hearing
of January 29, 1986, TSN, pp. 163-171).
Cross-examined on his report, particularly on his statement that the cash
advances amounting to P1 million pesos were neither supported by cash
vouchers nor check vouchers, he explained that nowhere in the
documents submitted by the prosecution was he able to find the
particular vouchers in support thereof and hence should not be included
as cash advances. Confronted with Exhibits "YYYYY-1" to "YYYYY-20"
pertaining to twenty (20) check vouchers in the amount of P50.000.00
each with a total of P1 million pesos, he denied having seen them.
However, his examination shows that the accused made disbursements
amounting to more or less P1 million pesos but he could not determine
the total amount of disbursements as well as the total accountability of
the accused. According to his report, more than P800,000.00 was
overstated.
Specifically, Mateo pointed out that the accused instead of having a
shortage of P1,207,835.19 as determined by the audit team, should be
credited with an average of P1,912,065.00 as follows:
P 1,000,000.00 — not supported with cash vouchers
and check
vouchers;
180,004.20 — overstatement of cash advances for
Acct. No. 805
(SDO)
113,652.36 — disallowed cash items
24,200.00) —
1,143.45) — no official receipts and Abstract of
Collections or
Report of Collections
592,964.99 — over deposits for Acct. No. 805 (CPF)
—————
P1,912,065.00
Otherwise stated, the government owes the accused P704,229.81
(Hearing of April 14, 1966, TSN, pp. 191-197; Decision, Criminal Case No.
2559, pp. 48-49; Rollo, p. 62).
As previously stated, accused's testimony was taken during the new trial
granted by the Court after she had waived her right to testify in her
defense.
Luctlyn T. Zambrano declared that since September 1, 1966 she occupied
various positions in the defunct RCA, now NFA, during which time she was
never charged administratively or criminally nor was her attention ever
called to any anomaly or irregularities in the discharge of her duties.
On February 6, 1975, she was appointed Cashier I on a permanent basis
at the NGA National Branch, allegedly offered to her by Director Juanito
Cabalu, despite the fact that she had no units in accounting but only in
nursing. Nevertheless, she accepted the position as an opportunity for
promotion (Hearing of February 5, 1987, TSN, pp., 224-227).
As Cashier I, her duties were to collect and disburse funds. While her
actual station was in Cotabato City, Regional Office, her area of
responsibility includes Maguindanao province.
As a collecting officer, she collects the proceeds of the sale of cereals like
rice, corn and sorgum. Although she did not actually participate in the
selling of cereals, the proceeds of the sale were turned over to her which
were evidenced by proper receipts and these receipts together with the
amounts that she received were entered by her in the cash books. She
pre-signed the receipts she issued especially in the remote areas in the
53
different buying stations and then she collected the proceeds from her
aides as against the receipts issued by her. The transactions made were
Page
paid either in cash by direct retailers or consumers or in checks by
government agencies or offices. These checks were placed in the
collection report, made payable to the NGA, main office, and deposited
in the Philippine National Bank (PNB) on the following day.
As Special Disburing Officer (SDO), she went out to Cotabato City and to
Maguindanao for the purpose of disbursing funds in her accountability.
She submitted her periodic report weekly to the accounting section.
These reports were denominated as Collection and Disbursement
reports. The former included the sales of cereals while the latter was
divided into many accounts. During this period, she was also audited in
her accountabilities and there was no shortage found (Hearing of
February 5, 1987, TSN, pp. 233-243).
During the fiscal year 1978, Auditor Abundo of the NGA, called her to his
office and he told her that her account was liquidated by him and he
found a shortage of ten thousand (P10,000.00) pesos in the Cereal
Procurement Funds. Aside from the fact that she was still under
liquidation at that time, the finding of Abundo was not reflected in any
report nor was any official action taken thereon.
Nevertheless, Abundo offered to help her with the shortage, for a certain
amount. And so she gave him P5,000.00 from her personal funds and
later for cash advances of P200,000,00 from the office funds for which
Abundo did not sign receipts nor did he liquidate them.
Aside from Abundo, she gave also cash advances to Regional Director
Juanito Cabalu amounting to P80,000.00 for his representation expenses,
salaries, fish to be sent to Malacañang and also personal expenses. These
cash advances were covered by receipts but Cabalu was able to liquidate
the amount of P70,000.00 only which she turned over to Imelda
Marquez, Cashier of the NGA, after she was investigated by the MSD and
she did not know if the MSD was aware of the unliquidated cash advances
of Cabalu. She was informed later that the investigation conducted by
MSD revealed that she incurred a shortage of P500,000.00, more or less
(Hearing of February 6, 1987. TSN, pp., 253-270).
She also admitted that she has a cash advance of one million pesos in one
voucher only but she did not use this amount for her own personal use.
This cash advance was given to Manager Serio Pituc of Sultan Kudarat on
the instructions of Director Cabalu. The one million pesos cash advance
was recorded in her name, then it was given to Manager Pituc, who
signed the original of the voucher in the presence of the cashier of Sultan
Kudarat and Mrs. Marquez. Although she was furnished a cory of the
report of the audit team finding her short of one million plus, she was not
given a chance to explain her position (Hearing of May 28, 1987, TSN, pp.
285-291).
On cross-examination, she admitted that she cannot validly disburse an
amount of P1 million pesos because her disbursement ceiling was only
P150,000.00 (Hearing of May 29, 1987, TSN, pp. 296-302),
On re-direct, she explained that the cash advances given to Cabalu were
not credited in her favor and that the cash advance of P1 million pesos in
one single transaction despite her cash disbursement ceiling of
P150,000.00 was approved by the Regional Director and it passed
through accounting procedures leading her to presume that the voucher
was in order (Hearing of May 29, 1987, TSN, pp. 303-306).
In reply to the questions asked by the Court, she said that she gave cash
advances to Abundo and Cabalu, Regional Auditor and Regional Director
of the NGA respectively ranging from the amount of P200,000.00 to P1
million pesos despite their failure to execute the proper documents or
receipts out of fear, that she might be kicked out of her job or transferred
to another station. On the other hand, she believes that she will not be
held liable for the shortage because these are circumstances that would
justify or exempt her from criminal liability (Hearing of May 29, 1987,
TSN, pp. 307-312).
On January 8, 1968, the Sandiganbayan rendered its decision, the
decretal portion of which reads as follows:
WHEREFORE, judgment is hereby rendered finding
accused Lucilyn Zambrano y Tesoro GUILTY beyond
reasonable doubt as Principal in the offense of
Malversation of Public Funds as defined and
penalized in Article 217, paragraph 4, of the Revised
Penal Code, and there being no modifying
circumstance in attendance, after applying the
Indeterminate Sentence Law, hereby sentences her
to suffer the indeterminate penalty ranging from
TWELVE (12) YEARS, FIVE (5) MONTHS and ELEVEN
(11) DAYS of reclusion temporal as the minimum, to
EIGHTEEN (18) YEARS, EIGHT (8) MONTHS and ONE
(1) DAY, likewise of reclusion temporal as the
maximum; to pay a fine of P1,207,835.19 equal to the
funds malversed; to indemnify the Government of
the Republic of the Philippines in the same amount of
P1,207,835.19 and to pay the costs of this action.
SO ORDERED. (Rollo, p. 70)
Hence, this petition.
The Court En Banc of this Court in its resolution dated November 15, 1988
gave due course to the petition and considered this case submitted for
decision (Rollo, Resolution, p. 109).
The main issue in this case is whether or not the guilt of the accused-
petitioner had been established beyond reasonable doubt.
The petition is devoid of merit.
After a careful study of the records of this case, including the detailed
testimony of the witnesses, no cogent reason can be found to depart
from the conclusion reached by the Sandiganbayan that petitioner had
indeed been negligent in the handling of the funds which had been
turned over to her.
In the crime of malversation, all that is necessary for conviction is proof
that the accountable officer had received the public funds and that he did
not have them in his possession when demand therefor was made and
he could not satisfactorily explain his failure so to account. An
accountable public officer may be convicted for malversation even if
there is no direct evidence of personal misappropriation, where he has
not been able to explain satisfactorily the absence of the public funds
involved (De Guzman v. People, 119 SCRA 337 [1982]; Bacasnot y Callao
v. Sandiganbayan, 155 SCRA 379 [l987]).
Under Article 217 of the Revised Penal Code, there is prima
facie evidence of malversation where the accountable public officer fails
to have duly forthcoming any public funds with which he is chargeable
upon demand by duly authorized officer. As this Court has pointed out,
this presumption juris tantum is founded upon human experience
(Estepa v. Sandiganbayan, 182 SCRA 269 [l990]) and shall be prima
facie evidence that he/she has put such missing funds or property to
personal use (Corpuz v. People, 194 SCRA 73 [1991]).
In the case at bar, petitioner was neither able to produce the missing
amount of P1,207,835.19 nor adequately explain her failure to produce
that amount.
Petitioner failed to offer any convincing evidence to support her
alternative claims that she did not incur any shortage in her
accountabilities. She even tried to exculpate herself but in vain, by
throwing blame on others for her failure to account for the missing
money, making it appear that she was either acting under orders of her
54
superiors or that she acted out of fear or duress, but as correctly found
by the Sandiganbayan her testimonial evidence does not clearly or
Page
positively establish the legal or factual bases thereof. Among others, she
knew that the supposed orders of her superior were not for a lawful
purpose or even if lawful, as she claimed them to be, the means used to
carry out said orders were not lawful. She admitted she did not use the
proper official forms or procedures in doling out funds belonging to the
government and more importantly she exceeded her cash disbursement
ceiling for the disbursement of funds amounting to P150,000.00.
Her defense witness Mateo while pointing out that the missing cash
advances including the P1,000,000.00 were not duly supported by check
or cash voucher, failed or omitted to explain why they were posted in the
cash books of the accused, in her own handwriting if she really did not
receive them (Decision, Criminal Case No. 2559, pp. 49-52; Rollo, pp. 62-
65).
Conversely, the audit examination made was based on petitioner's own
cash books and all the checks and vouchers were duly checked and
verified. In fact the People's witness declared that (a) the numbers of
vouchers representing cash advances or replenishments to the petitioner
are all reflected in the schedules attached to the audit report; (b) all
vouchers recorded in the registers were obtained by the team and duly
accounted for; (c) the vouchers were not only checked but the audit team
saw to in that their supporting papers were complete; and (d) the audit
team followed COA standard procedures in conducting their
examination. As found by respondent court, the evidence presented by
the prosecution in its totality is overwhelming and conclusive (Decision,
Criminal Case No. 2559, p. 52; Rollo, p. 65).
Verily, the elements of the crime imputed to the petitioner in the
information were duly established not only by the testimony of the
prosecution's only witness but also by the documentary evidence
offered.
Under the foregoing circumstances, it is evident that the defense has not
successfully rebutted the prima faciepresumption of malversation. The
evidence of the prosecution is overwhelming and has not been overcome
by the petitioner. The presumed innocence of the accused must yield to
the positive finding that she malversed the sum of P1,207,835.19 to the
prejudice of the public whose confidence she has breached.
PREMISES CONSIDERED, the petition is DENIED and the assailed decision
of the Sandiganbayan is AFFIRMED in all respects,
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Cruz, Padilla, Bidin, Griño-
--------------------
(2) G.R. No. 101978. April 7, 1993.
EDUARDO P. PILAPIL, petitioner,
vs.
SANDIGANBAYAN, FRANCIS E. GARCHITORENA and PEOPLE OF THE
PHILIPPINES, respondents.
Ramon A. Gonzales for petitioner.
The Solicitor General for public respondents.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION TO QUASH;
ABSENCE OF PRELIMINARY INVESTIGATION, NOT A GROUND. — The
absence of a preliminary investigation is not a ground to quash a
complaint or information under Section 3, Rule 117 of the Rules of Court.
2. ID.; ID.; PRELIMINARY INVESTIGATION; ABSENCE THEREOF DOES NOT
AFFECT JURISDICTION OF COURTS NOR IMPAIR VALIDITY OF
INFORMATION. — The absence of preliminary investigation does not
affect the court's jurisdiction over the case. Nor do they impair the
validity of the information or otherwise render it defective, but, if there
were no preliminary investigations and the defendants, before entering
their plea, invite the attention of the court to their absence, the court,
instead of dismissing the Information, should conduct such investigation,
order the fiscal to conduct it or remand the case to the inferior court so
that the preliminary investigation may be conducted . . . (Sanciangco, Jr.
vs. People, G.R. No. 72830, 149 SCRA 1 [1987] and reiterated in Doromal
vs. Sandiganbayan, G.R. No. 85468, 177 SCRA 354 [1989]).
3. ID.; ID.; MOTION TO QUASH; LACK OF JURISDICTION BY THE COURT AS
A GROUND, CONSTRUED. — The lack of jurisdiction contemplated in
Section 3(b), Rule 117 of the Revised Rules of Court refers to the lack of
any law conferring upon the court the power to inquire into the facts, to
apply the law and to declare the punishment for an offense in a regular
course of judicial proceeding. When the court has jurisdiction, as in this
case, any irregularity in the exercise of that power is not a ground for a
motion to quash.
4. ID.; JURISDICTION; ABSENCE THEREOF, NOT SUBJECT TO WAIVER. —
Lack of jurisdiction is not waivable but absence of preliminary
investigation is waivable. In fact, it is frequently waived.
5. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; NOT DENIED
WHERE PETITIONER WAS REQUIRED TO ANSWER THE CHARGES AGAINST
HIM. — The facts on record show that in an order dated October 3, 1990,
Deputy Ombudsman Domingo required petitioner to answer the charges
against him as stated in the affidavits-complaints and supporting
documents thereto. Petitioner fully complied with said order and filed his
and his witnesses' affidavits. In other words, petitioner was properly
apprised of the act complained of and given ample opportunity to rebut
the same. Thus, petitioner could not validly raise violation of his right to
due process because the bases for the information filed by the
Ombudsman were all reflected in the complaint and the evidence
supporting it.
6. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY
INVESTIGATION; NOTHING MORE THAN THE SUBMISSION OF THE
PARTIES' AFFIDAVITS AND COUNTER-AFFIDAVITS. — In Cinco vs.
Sandiganbayan, (G.R. Nos. 92362-67, 202 SCRA 727 [1991]) this Court
held that preliminary investigation is nothing more than the submission
of the parties' respective affidavits, counter-affidavits and evidence to
buttress their separate allegations.
7. ID.; ID.; ID.; MERELY INQUISITORIAL. — Preliminary investigation is
merely inquisitorial, and it is often the only means of discovering whether
a person may be reasonably charged with a crime, to enable the
prosecutor to prepare his complaint or information.
8. ID.; ID.; NATURE OF CRIMINAL CHARGES DETERMINED BY ACTUAL
RECITAL OF FACTS. — The real nature of the criminal charge is
determined not from the caption or preamble of the information nor
from the specification of the provision of law alleged to have been
violated, they being conclusions of law, but by the actual recital of facts
in the complaint or information. . . . it is not the technical name given by
the Fiscal appearing in the title of the information that determines the
character of the crime but the facts alleged in the body of the
Information.
9. ID.; ID.; PRELIMINARY INVESTIGATION; DEEMED WAIVED BY FAILURE
TO SEASONABLY INVOKED RIGHT THERETO. — The right to a preliminary
investigation is not a fundamental right and may be waived expressly or
by silence. Failure of accused to invoke his right to a preliminary
investigation constituted a waiver of such right and any irregularity that
attended it. The right may be forfeited by inaction and can no longer be
invoked for the first time at the appellate level.
10. ID.; ID.; ID.; MAY BE AVAILED OF EVEN AFTER THE CASE HAS BEEN
FILED. — Under the last paragraph of Section 7, Rule 112 of 1985 Rules
55
on Criminal Procedure, the right to ask for preliminary investigation is
recognized even after the case has already been filed.
Page
11. ID.; ID.; PROBABLE CAUSE, DEFINED. — Probable cause has been
defined in the leading case of Buchanan vs. Vda. de Esteban (32 Phil. 365)
as the existence of such facts and circumstances as would excite the
belief, in a reasonable mind, acting on the facts within the knowledge of
the prosecutor, that the person charged was guilty of the crime for which
he was prosecuted. Probable cause is a reasonable ground of
presumption that a matter is, or may be, well founded, such a state of
facts in the mind of the prosecutor as would lead a person of ordinary
caution and prudence to believe, or entertain an honest or strong
suspicion, that a thing is so.
12. ID.; SPECIAL CIVIL ACTION; CERTIORARI; FINDING BY THE
SANDIGANBAYAN OF PROBABLE CAUSE FOR VIOLATION OF ANTI-GRAFT
AND PRACTICES ACT, NOT IN EXCESS OF JURISDICTION NOR WITH GRAVE
ABUSE OF DISCRETION. — Having found that respondent court has not
acted in excess of jurisdiction nor with grave abuse of discretion in finding
the existence of probable cause in the case at bar and consequently, in
denying the motion to quash and motion for reconsideration of
petitioner, We dismiss as clearly unfounded the insinuations of petitioner
that Presiding Justice Francis Garchitorena used the influence of his office
in initiating the complaint against him. We agree with respondent court
that the act of bringing to the attention of appropriate officials possible
transgression of the law is as much an obligation of the highest official of
the land as it is the responsibility of any private citizen.
DECISION
NOCON, J p:
In this petition for certiorari and mandamus, petitioner seeks to annul the
resolutions of respondent Sandiganbayan in Criminal Case No. 16672,
entitled "People of the Philippines vs. Eduardo P. Pilapil" dated June 27,
1991 denying his motion to quash the information for Violation of Section
3(e) of Republic Act No. 3019, as amended. as well as the resolution dated
September 5, 1991 denying his motion for reconsideration. Petitioner
predicated his motion to quash on the ground of lack of jurisdiction over
his person because the same was filed without probable cause. In
addition thereto, petitioner cites the fact that the information for
violation of the Anti-Graft Law was filed although the complaint upon
which the preliminary investigation was conducted is for malversation.
The antecedent facts of the case are as follows:
On October 16, 1987, the Philippine Charity Sweepstakes Office (PCSO)
donated one ambulance (a Mitsubishi L-300) to the Municipality of
Tigaon, Camarines Sur. Petitioner, who is the Congressman of the 3rd
District of Camarines Sur, received the ambulance in behalf of the
municipality. However, he did not deliver the ambulance to said
municipality.
Unaware of the donation, the Sangguniang Bayan of the municipality
passed a resolution (Resolution No. 16, Series of 1988) requesting PCSO
for an ambulance. Said request was reiterated in their Resolution No.
117, Series of 1988. The mayor of the municipality, Eleanor P. Lelis,
thereafter sought the intercession of Sandiganbayan Presiding Justice
Francis Garchitorena, who is from the said municipality, regarding said
request. Thereafter, Justice Garchitorena contacted the PCSO and
learned about the ambulance previously donated by the latter to Tigaon
through petitioner. He accordingly informed Mayor Lelis that the
municipality's request cannot be favorably acted upon in view of the
previous donation.
Mayor Lelis reiterated the municipality's request for an ambulance
making reference to the certification of the municipal treasurer that no
vehicle from the PCSO or from anyone has been received.
Upon verification of the whereabouts of the Mitsubishi L-300 by the PCSO
from the petitioner, the latter indicated his willingness to return the
ambulance. In a letter dated December 22, 1988, he requested that said
vehicle be donated instead to the Municipality of Tinambac, same
province. Finally, on December 26. 1988, he personally returned the
ambulance, then already painted to cover the logo of the PCSO and the
other markings thereon.
With the return of the Mitsubishi L-300 to the PCSO, the Municipality of
Tigaon, through Mayor Lelis, finally received a brand new Besta Kia
Ambulance unit complete with all accessories.
On January 2, 1989, Justice Garchitorena wrote the then Chief Justice
Marcelo B. Fernan relating to him the whole story of the ambulance.
On January 25, 1989, Justice Garchitorena also sent Deputy Ombudsman
Jose C. Colayco a letter-complaint against petitioner regarding said
ambulance. Said letter-complaint was referred by Ombudsman Conrado
M. Vasquez to the Deputy Ombudsman for Luzon, Manuel C. Domingo,
for appropriate action. Thereupon, Deputy Ombudsman Domingo
required Justice Garchitorena to submit all relevant records and
documents, as well as his affidavit and those of his witnesses. Failing in
this regard, Justice Garchitorena was requested anew to comply. In his
stead, Anthony D. Jamora, the Regional manager of the Special Projects
Department of the PCSO and Mayor Lelis of Tigaon, Camarines Sur,
submitted their respective affidavits.
On October 3, 1990, Deputy Ombudsman Domingo issued an order
requiring petitioner to submit his counter-affidavit, affidavits of his
witnesses and other controverting evidence. This order was captioned as
Case No. OMB-1-89-0168 for "Malversation of Public Property under
Article 217 of the Revised Penal Code."
On October 22, 1990, petitioner submitted his counter-affidavit denying
the imputation of said offense claiming that the vehicle was not equipped
with any medical attachments or facilities so he was constrained to
request PAGCOR for assistance to finance its conversion into a medical
ambulance which is evidenced by his letter dated November 15, 1987 to
Mrs. Alice Reyes. He claimed that it was only on April 28, 1988 that
PAGCOR acted on his request, but in lieu of financial assistance, said
office donated accessories, which can be installed at an estimated cost of
P5,000.00. Thus, he allegedly made personal representations with
PAGCOR for the latter to shoulder the expenses of the installation. While
awaiting for the financial assistance, petitioner claimed, in explanation
why the logo of PCSO and the other markings on the vehicle were
removed, that he acceded to the suggestion of his staff to include the
name of PAGCOR on the sides of the ambulance in view of the substantial
contribution of the latter.
On December 5, 1990, Ombudsman Investigator Isaac D. Tolentino issued
a resolution finding no probable cause for malversation and
recommended that the case be dismissed, which recommendation was
approved by Deputy Ombudsman Domingo.
On January 5, 1991, Assistant Ombudsman Abelardo Aportadera, Jr.
recommended the disapproval of the aforesaid resolution and instead,
suggested the filing of criminal information for violation of Article 217 of
the Revised Penal Code. This was followed by another resolution to the
same effect by Special Prosecution Officer Wilfredo Orencia dated
February 14, 1991.
On April 1, 1991, Ombudsman Conrado Vasquez issued a resolution
sustaining the finding of Ombudsman Investigator Tolentino that there is
no malversation but found in the same resolution, a prima facie case for
violation of Section 3(e) of Republic Act No. 3019, the dispositive part of
which states:
"WHEREFORE, it is hereby directed that the information to be filed
against the respondent should be for a violation of Section 3(e) of R.A.
3019." 1
56
On April 3, 1991, an information for violation of Section 3(e) of Republic
Act No. 3019, docketed as Criminal Case No. 16672, against petitioner
Page
was filed, to wit:
"The undersigned Special Prosecution Officer III accuses EDUARDO P.
PILAPIL of the crime for 'Violation of Section 3(e) of Republic Act No.
3019, as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act, committed as follows:
'That on or about October 16, 1987 and subsequent thereto, in the
Municipality of Tigaon, Province of Camarines Sur and within the
jurisdiction of this Honorable Court, the accused is a public officer, he
being the Congressman of the Third Congressional District of Camarines
Sur, while in the discharge of his official functions and taking advantage
of his public position, acted with manifest partiality and evident bad faith,
did then and there willfully cause undue injury to the Municipality of
Tigaon, Camarines Sur, when he failed to deliver the ambulance,
Mitsubishi Van L-300, received by him on behalf of the said municipality
in a Deed of Donation executed by the Philippine Charity Sweepstakes
Office in its favor, to the prejudice and damage of the said municipal
government.
CONTRARY TO LAW." 2
On April 12, 1991, a warrant of arrest was issued against petitioner. On
April 18, 1991, he was allowed to deposit the sum of P15,000.00 in court
to be considered as bail bond and the warrant of arrest was recalled.
On May 2, 1991, petitioner filed a motion to quash on the ground that
respondent Sandiganbayan has no jurisdiction over his person because
the information was filed without probable cause since there is
absolutely no proof adduced in the preliminary investigation of any of the
elements of the crime defined in Section 3(e) of Republic Act No. 3019.
On June 27, 1991, respondent court denied the said motion to quash
holding that the factual and legal issues and/or questions raised are
evidentiary in nature and are matters of defense, the validity of which
can be best passed upon after a full-blown trial on the merits. On
September 5, 1991, respondent court denied petitioner's motion for
reconsideration of the said resolution and set the arraignment of
petitioner on October 21, 1991 at 8:30 a.m.
On October 12, 1991, petitioner filed the present petition and by reason
of such filing, respondent court ordered that the arraignment be held in
abeyance.
Petitioner enumerates the following as his reasons for filing the petition:
"I. THAT RESPONDENT COURT IS ACTING WITHOUT OR IN EXCESS OF
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN DENYING THE
MOTION TO QUASH.
II. THAT RESPONDENT COURT IS NEGLECTING A LEGAL DUTY IN NOT
QUASHING THE INFORMATION OR DISMISSING THE CASE.
III. THAT PETITIONER HAS NO PLAIN, SPEEDY AND ADEQUATE REMEDY IN
THE ORDINARY COURSE OF LAW EXCEPT THE PRESENT PETITION." 3
Stated otherwise, the issue in this case is whether or not the
Sandiganbayan committed grave abuse of discretion in denying
petitioner's motion to quash and motion for reconsideration.
Petitioner harps on the lack of preliminary investigation on the specific
charge of violation of Sec. 3(e), Republic Act No. 3019, as amended, filed
before the Sandiganbayan. He alleges that the preliminary investigation
was conducted for the charge of malversation.
At the outset, this Court bears mention of the rudimentary rule that the
absence of a preliminary investigation is not a ground to quash a
complaint or information under Section 3, Rule 117 of the Rules of Court.
The proper procedure in case of lack of preliminary investigation is to
hold in abeyance the proceedings upon such information and the case
remanded to the Office of the Provincial Fiscal or the Ombudsman, for
that matter, for him or the Special Prosecutor to conduct a preliminary
investigation. 4 Thus, We enunciated in Sanciangco, Jr. vs. People, 5 and
reiterated in Doromal vs. Sandiganbayan, 6 that:
"The absence of preliminary investigation does not affect the court's
jurisdiction over the case. Nor do they impair the validity of the
information or otherwise render it defective, but, if there were no
preliminary investigations and the defendants, before entering their plea,
invite the attention of the court to their absence, the court, instead of
dismissing the Information, should conduct such investigation, order the
fiscal to conduct it or remand the case to the inferior court so that the
preliminary investigation may be conducted . . ."
Petitioner takes exception to the doctrine and urges this Court to take a
second look arguing that lack of preliminary investigation affects the
court's jurisdiction because it is violative of due process. He reasons out
that jurisprudence abounds with the rule that denial of due process is
grave jurisdictional defeat rendering the judgment void.
We are not persuaded. The lack of jurisdiction contemplated in Section
3(b), Rule 117 of the Revised Rules of Court refers to the lack of any law
conferring upon the court the power to inquire into the facts, to apply
the law and to declare the punishment for an offense in a regular course
of judicial proceeding. When the court has jurisdiction, as in this case, any
irregularity in the exercise of that power is not a ground for a motion to
quash. Reason is not wanting for this view. Lack of jurisdiction is not
waivable but absence of preliminary investigation is waivable. In fact, it
is frequently waived.
We now come to the question of whether there was no preliminary
investigation conducted in this case necessitating the suspension of the
proceedings in the case until after the outcome of such preliminary
investigation.
The facts on record show that in an order dated October 3, 1990, Deputy
Ombudsman Domingo required petitioner to answer the charges against
him as stated in the affidavits-complaints and supporting documents
thereto. Petitioner fully complied with said order and filed his and his
witnesses' affidavits. In other words, petitioner was properly apprised of
the act complained of and given ample opportunity to rebut the same.
Thus, petitioner could not validly raise violation of his right to due process
because the bases for the information filed by the Ombudsman were all
reflected in the complaint and the evidence supporting it. In Cinco vs.
Sandiganbayan, 7 this Court held that preliminary investigation is nothing
more than the submission of the parties' respective affidavits, counter-
affidavits and evidence to buttress their separate allegations.
Petitioner attaches significance to the fact that the preliminary
investigation conducted by the Ombudsman against him was under the
title of "malversation." According to him, this is not sufficient to justify
the filing of the charge of violation of Anti-Graft and Corrupt Practices
Law.
Petitioner loses sight of the fact that preliminary investigation is merely
inquisitorial, and it is often the only means of discovering whether a
person may be reasonably charged with a crime, to enable the prosecutor
to prepare his complaint or information. The preliminary designation of
the offense in the directive to file a counter-affidavit and affidavits of
one's witnesses is not conclusive. Such designation is only a conclusion of
law of Deputy Ombudsman Domingo. The Ombudsman is not bound by
the said qualification of the crime. Rather, he is guided by the evidence
presented in the course of a preliminary investigation and on the basis of
which, he may formulate and designate the offense and direct the filing
of the corresponding information. In fact, even, the designation of the
offense by the prosecutor in the information itself has been held
inconclusive, to wit:
". . . the real nature of the criminal charge is determined not from the
caption or preamble of the information nor from the specification of the
provision of law alleged to have been violated, they being conclusions of
57
law, but by the actual recital of facts in the complaint or information . . .
it is not the technical name given by the Fiscal appearing in the title of
Page
the information that determines the character of the crime but the facts
alleged in the body of the Information." 8
Petitioner cites the case of Luciano vs. Mariano, 9 in support of its view
that a new preliminary investigation is needed. In said case, however, the
original charge for falsification was dismissed for being without any
factual or legal basis and the category of the offense was raised as the
alleged violation of the Anti-Graft Law was a graver charge. In the case at
bar, there is no dismissal to speak of because under the rules of
procedure of the office of the Ombudsman, a complaint may be
dismissed only upon the written authority or approval of the
Ombudsman. Besides, even the petitioner admits that the violation of the
Anti-Graft law did not raise the category of the offense of malversation.
The case of Doromal vs. Sandiganbayan, 10 also cited by petitioner as
another authority, is likewise inapplicable as in said case, the information
was annulled as the then incumbent Tanodbayan was without authority
to conduct preliminary investigations and to direct the filing of criminal
cases with the Sandiganbayan, except upon orders of the Ombudsman.
With the annulment of the information, this Court held that a new
preliminary investigation of the charge was in order not only because the
first was a nullity but also because the accused demands it as his right. In
the case at bar, there is no old or new information. Only one information
was filed as a result of the preliminary investigation conducted by the
office of the Ombudsman.
Even on the assumption that no preliminary investigation was conducted
for the information filed, petitioner waived his right thereto for failure to
ask the Sandiganbayan or the Ombudsman for a new preliminary
investigation. On this score again, petitioner's case is different from the
Luciano and Doromal cases where the attention of the lower court was
called to the lack of a new preliminary investigation. Petitioner bewailed
the absence of a new preliminary investigation only before this Court. It
is noteworthy that his only basis for quashing the information is the
alleged lack of jurisdiction of the court over his person because there is
no probable cause for the filing of the information.
It is well-settled that the right to a preliminary investigation is not a
fundamental right and may be waived expressly or by silence. 11 Failure
of accused to invoke his right to a preliminary investigation constituted a
waiver of such right and any irregularity that attended it. 12 The right may
be forfeited by inaction and can no longer be invoked for the first time at
the appellate level. 13
Petitioner's argument that he could not have asked for a new preliminary
investigation in the Office of the Ombudsman since he came to know
about the charge only after the information was filed in the
Sandiganbayan, is not tenable. Under the last paragraph of Section 7,
Rule 112 of 1985 Rules on Criminal Procedure, the right to ask for
preliminary investigation is recognized even after the case has already
been filed, to wit:
"If the case has been filed in court without a preliminary Investigation
having been first conducted, the accused may within five (5) days from
the time he learns of the filing of the information, ask for a preliminary
investigation with the same right to adduce evidence to his favor in the
manner prescribed in this Rule."
Clearly, the alleged lack of a valid preliminary investigation came only as
an afterthought to gain a reversal of the denial of the motion to quash.
Sad to say, this last ditch effort came a bit late. His failure to invoke this
right below constituted a waiver of such right.
As aforesaid, what was submitted for consideration below was the
motion to quash of petitioner on the ground of want of jurisdiction by the
trial court over his person because of the filing of an information without
probable cause. There being no probable cause, according to petitioner,
then there could be no basis to issue a warrant of arrest and hence, the
respondent court had no jurisdiction over his person.
Contesting the findings of respondent court that probable cause exists in
this case, petitioner insists that there is no competent proof that all the
elements of Section 3(e) of the Anti-Graft law are present, namely: that
an act was done (1) causing undue injury to the government, (2) with
manifest partiality or evident bad faith, and (3) by a public officer in the
discharge of his official duties.
Petitioner argues that the injury contemplated under the law is real or
actual damage and since there is absolutely no proof of real or actual
damages suffered by the municipality, the finding of undue injury by the
Ombudsman has no factual basis. Concomitantly, he says that since there
is no undue injury, then, there can be no bad faith, as bad faith is
inseparable from undue injury for undue injury must be through bad
faith. He claims that failure to inform the mayor of the donation, that he
returned the vehicle after one year; that he kept the vehicle in storage;
and that he caused the repainting to erase the words PCSO are not
evidence of bad faith since they cannot manifest a deliberate intent to do
wrong or cause damage.
Finally, petitioner claims that the element of "public office in the
discharge of official duties" is also absent as his acceptance of the vehicle
in question from PCSO and its non-delivery to the municipality of Tigaon
was not done in the discharge of his duty as a congressman tasked with
enacting laws. If at all, he admits, the act was done in his private capacity
as political leader in his district.
We agree with respondent court that the presence or absence of the
elements of the crime are evidentiary in nature and are matters of
defense, the truth of which can best be passed upon after a full-blown
trial on the merits.
Probable cause has been defined in the leading case of Buchanan vs. Vda.
de Esteban 14 as the existence of such facts and circumstances as would
excite the belief, in a reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person charged was guilty of the
crime for which he was prosecuted.
Probable cause is a reasonable ground of presumption that a matter is,
or may be, well founded, such a state of facts in the mind of the
prosecutor as would lead a person of ordinary caution and prudence to
believe, or entertain an honest or strong suspicion, that a thing is so" 15
The term does not mean "actual and positive cause" nor does it import
absolute certainty. It is merely based on opinion and reasonable belief.
Thus, a finding of probable cause does not require an inquiry into
whether there is sufficient evidence to procure a conviction. It is enough
that it is believed that the act or omission complained of constitutes the
offense charged. Precisely, there is a trial for the reception of evidence of
the prosecution in support of the charge.
Whether an act was done causing undue injury to the government and
whether the same was done with manifest partiality or evident bad faith
can only be made out by proper and sufficient testimony. Necessarily, a
conclusion can be arrived at when the case has already proceeded on
sufficient proof.
At the moment, in passing on a motion to set aside an information on the
ground that the accused has been charged without probable cause, the
court should not be guided by the rule that accused must be shown to be
guilty beyond a reasonable doubt, but rather whether there is sufficient
evidence which inclines the mind to believe, without necessarily leaving
room for doubt, that accused is guilty thereof.
Having thus found that respondent court has not acted in excess of
jurisdiction nor with grave abuse of discretion in finding the existence of
probable cause in the case at bar and consequently, in denying the
motion to quash and motion for reconsideration of petitioner, We
dismiss as clearly unfounded the insinuations of petitioner that Presiding
58
Justice Francis Garchitorena used the influence of his office in initiating
the complaint against him. We agree with respondent court that the act
Page
of bringing to the attention of appropriate officials possible transgression
of the law is as much an obligation of the highest official of the land as it
is the responsibility of any private citizen.
WHEREFORE, the instant petition for certiorari and mandamus is hereby
DISMISSED for lack of merit.
SO ORDERED.
(3) G.R. No. L-54288 December 15, 1982
ARTURO DE GUZMAN, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and THE SANDIGANBAYAN, respondents.
MELENCIO-HERRERA, J.:
An appeal by certiorari from the Decision of respondent
Sandiganbayan 1 in Criminal Case No. 190 convicting petitioner, Arturo de
Guzman, of Malversation of Public Funds.
We resolved to "(a) give due course to the petition and (b) require the
parties to file their respective Memoranda on the constitutional
questions raised."
1. Petitioner assails the rule-making power of the Sandiganbayan as
violative of Article X, section 5(5) of the Constitution, which vests on the
Supreme Court the power to promulgate rules concerning pleading,
practice and procedure in all Courts.
It is true that Section 9 of Presidential Decree No. 1606, the law creating
the Sandiganbayan vests it with rule-making power, thus:
Sec. 9. Rule-making Power. — The Sandiganbayan
shall have the power to promulgate its own rules of
procedure and, pending such promulgation, the
Rules of Court shall govern its proceedings.
However, since the Sandiganbayan is a Court, its rule-making power
must be construed, out of "constitutional necessity" as being subject to
the approval of the Rules by the Supreme Court. Mr. Justice Antonio
Barredo had expressed this view in his Concurring Opinion in "Nuñez
vs. Sandiganbayan 111 SCRA 433, 455 (January 30, 1982), when he said:
... the rule-making power granted to it (the
Sandiganbayan) by P.D. 1606 must of constitutional
necessity be understood as signifying that any rule it
may promulgate cannot have force and effect unless
approved by the Supreme Court, as if they have
originated therefrom.
The "Rules of the Sandiganbayan" were promulgated on January 10,
1979, and Rule XVIII thereof expressly provides that they "shall take
effect upon approval." The approval referred to can only refer to approval
by the Supreme Court. The Sandiganbayan has submitted its Rules to this
Court. In the absence of any action of approval or disapprobation from
this Court the Sandiganbayan has to be guided by the Rules of
Court. 2 We have reviewed the proceedings before
the Sandiganbayan and we have not found any indication therein of
contravention of the Rules of Court.
2. Petitioner also impugns the authority of the First Division of
the Sandiganbayan to hear and decide his case contending that
inasmuch as it was the only division which had been constituted, it could
not legally function as a judicial body and, consequently, he was placed
in a "precarious predicament".
This argument must also fail. Although the Sandiganbayan is composed
of a Presiding Justice and eight Associate Justices 3, it does not mean that
it cannot validly function without all of the Divisions constituted. Section
3 of PD 1606 provides that "the Sandiganbayan shall sit in three divisions
of three Justices each". While Section 5 thereof provides that "the
unanimous vote of the three justices in a division shall be necessary for
the pronouncement of a judgment."
Thus, the Sandiganbayan functions in Divisions of three Justices each and
each Division functions independently of the other. As long as a Division
has been duly constituted it is a judicial body whose pronouncements are
binding as judgments of the Sandiganbayan.
The judgment convicting petitioner was a unanimous Decision of the First
Division duly constituted. It thus met the requirement for the
pronouncement of a judgment as required by Section 5 of PD 1606 supra.
We find no substance to the argument that no member could be
expected to dissent because no special Division of five Justices could then
be formed, considering that the Decision was a unanimous one and there
was no indication that any one of the three Justices had intended to
dissent.
3. Petitioner's contention that there is a dilution of his right to appeal
inasmuch as Decisions of the Sandiganbayan are subject to review by this
Court only by certiorari under Rule 45 of the Rules of Court 4 and,
consequently, he is deprived of his right to appeal on questions of fact, is
neither meritorious. On this point, this Court, speaking through Chief
Justice Enrique M. Fernando, stressed in the Nuñez case:
Even from the standpoint then of the American decisions relied
upon, it cannot be successfully argued that there is a dilution of
the right to appeal. Admittedly, under Presidential Decree No.
1486, there is no recourse to the Court of Appeals, the review
coming from this Court. ... Would the omission of the Court of
Appeals as an intermediate tribunal deprive petitioner of a
right vital to the protection of his liberty? The answer must be
in the negative. In the first place, his innocence or guilt is passed
upon by the three-judge court of a division of respondent
Court. Moreover, a unanimous vote is required, failing which
'the Presiding Justice shall designate two other justices from
among the members of the Court to sit temporarily with them,
forming a division of five justices and the concurrence of a
majority of such division shall be necessary for rendering
judgment. Then if convicted, this Court has the duty if he seeks
a review to see whether any error of law was committed to
justify a reversal of the judgment. Petitioner makes much,
perhaps excessively so as to the wont of advocates, of the fact
that there is no review of the facts. What cannot be sufficiently
stressed is that this Court in determining whether or not to give
due course to the petition for review must be convinced that
the constitutional presumption of innocence has been
overcome. In that sense, it cannot be said that on the appellate
level there is no way of scrutinizing whether the quantum of
evidence required for a finding of guilt has been satisfied. The
standard as to when there is proof of such weight to justify a
conviction is set forth in People vs. Dramayo. 5
Justice Barredo, in his Concurring Opinion also observed:
... I believe that the accused has a better guarantee of a real
and full consideration of the evidence and the determination of
the facts where there are three judges actually seeing and
observing the demeanor and conduct of the witnesses. It is Our
constant jurisprudence that the cases where pivotal points are
shown to have been overlooked by them. With more reason
should this rule apply to the review of the decision of a
59
collegiate trial court. Moreover, when the Court of Appeals
passes on an appeal in a criminal case, it has only the records
Page
to rely on, and yet the Supreme Court has no power to reverse
its findings of fact, with only the usual exceptions already
 known to all lawyers and judges. I strongly believe that the
review of the decisions of the Sandiganbayan whose three
justices have actually seen and observed the witnesses as
provided for in P.D. 1606 is a more iron-clad guarantee that no
person accused before such special court will ever be finally
convicted without his guilt appearing beyond reasonable doubt
as mandated by the Constitution. 6
4. Petitioner's argument that he was deprived of his right to a preliminary
investigation as the same was conducted ex parte has much less to
recommend it. Petitioner failed to appear at said investigation despite
notice thereof received by a member of his family, in the same way that
the formal administrative investigation against him for dishonesty,
conduct prejudicial to the best interest of the service, and for violation of
civil service rules and regulations was similarly conducted ex
parte because of petitioner's failure to appear despite due notice served
upon and received by his wife, where he was found guilty as charged and
dismissed from the service effect following his last day of service, with
pay (Exhibit "C").
Besides, an ex parte preliminary investigation is authorized under section
11 of PD 911, reading:
... If respondent cannot be subpoenaed, or if
subpoenaed he does not appear before the
investigating fiscal or state prosecutor, the
preliminary investigation shall proceed without him.
...
It should also be recalled that the statutory right to a preliminary
investigation may be waived expressly or impliedly. Petitioner waived it
when he failed to appear for such investigation despite notice. The denial
of his petition for reinvestigation by the Tanodbayan was a matter of
discretion with the latter.
5. Finally, petitioner's contention that his conviction is not in accord with
the law and jurisprudence is unmeritorious. The judgment against
petitioner sentenced him as follows:
WHEREFORE, judgment is hereby rendered finding accused
Arturo de Guzman guilty beyond reasonable doubt as principal
of the crime of Malversation of Public Funds, as defined and
penalized in Article 217, paragraph 4, of the Revised Penal
Code; and in default of any modifying circumstance in
attendance, sentencing him to an indeterminate penalty
ranging from Twelve (12) Years and one (1) Day, as minimum,
to Eighteen (18) Years, Eight (8) Months and One (1) Day, as
maximum, both of reclusion temporaral, with the accessories
provided by law and with credit for preventive imprisonment
undergone, if any, in accordance with the provision of Article
29 of the Revised Penal Code, as amended by Republic Act
6127; to suffer perpetual special disqualification; to pay a fine
in the amount of Seventy Six Thousand Five Hundred Twenty
One and 37/100 Pesos P 76,521.37); to indemnify the City of
Manila, Republic of the Philippines, in the same amount of
Seventy Six Thousand Five Hundred Twenty One and 37/100
Pesos (P76,521.37) representing the amount malversed and, to
pay the costs.
We find that the Sandiganbayan has not committed any error of law in
convicting petitioner. For the period from May 22, 1978 to June 7, 1978,
petitioner, as Travelling Collector and an accountable officer, collected
the total amounhat his conviction is not in accord with law and
jurisprudence is unmeritorious. The judgmt of P 204,319.32 from various
agencies (Veterinary Inspection Board, Public Health Laboratory, North
Cemetery, among others) but remitted to the General Teller (Mr. Gerardo
Verder now retired), Cash Division Department of Finance, City of Manila,
only P 127,797.95, thus resulting in a shortage of P 76,521.37. Said
shortgage pertained to collections of petitioner from the Veterinary
Inspection Board (Exhibits "H-1-i" to "H-1-n").
Petitioner's contention that his accountability was not proven
considering that the audit examination was conducted in his absence and
after he had signed the Report of Examination (Exhibit "H") in blank
presented to him by Auditing Examiner Maximo Pielago, thus making said
procedure irregular, is neither persuasive. If he was not present during
the audit examination, petitioner himself was to blame for he should
have known that when he received a demand letter from Pielago to
produce his accountabilities (Exhibit "G") on June 5, 1978 an examination
would be forthcoming. Upon petitioner's assurance that he had no more
existing accountabilities as he had ceased to make collections due to his
expected promotion, and his promise to produce his accountabilities on
June 7 or 8, 1978, Pielago presented said Report of Examination to
petitioner for signature. On this point, we are in full agreement with the
findings of respondent Court:
Neither is there any merit in the accused's asseverations that
his accountability has not been proved. It is true that as
candidly admitted by Auditing Examiner Pielago himself, he
made the accused sign the Report of Examination (Exhibit H) in
blank even before any examination could be conducted. But,
this rather irregular procedure is not altogether without any
reasonable explanation. As uncontradictedly explained by
Pielago, he resorted to that course of action because, upon his
first demand to the accused for the production of his cash and
cash items, the latter already told him that he had nothing to
account for anymore because he had since ceased making
collection in anticipation of his then supposed pending
promotion. Evidently, because of this assurance from the
accused, Pielago may have thought that the projected
examination would be merely proforma and could not possibly
result in anything but a zero-zero balance as far as the accounts
of the accused were concerned. 7
It must be emphasized that petitioner did not report - for work anymore
beginning June 9, 1978, despite a demand from Pielago for the
production of his accountabilities (Exhibit "M"), a reminder of his criminal
liability, and the fact that administrative charges had been filed against
him for violation of civil service rules and regulations and conduct
prejudicial to the best interests of the service (Exhibit "F"). Pielago thus
proceeded with the audit examination of petitioner's accountability from
the official records available namely:
... Official Receipts issued by him to collection agents from
whom he received public funds (Exhibits H-1-a to H-1-n); Daily
Statements of Collections Exhibits I, I-1 to I-7) and Official
Receipts (Exhibits L, L-1 to L-8) covering remittances made by
him of his collection to the General Teller, the Ledger reflecting
entries of collections made by him from the Veterinary
Inspection Board (Exhibits Q, Q-1, Q-1-a to Q-1-f, Q-2, Q-2-a to
Q-2-e); and the Cashbooks also recording his remittances of his
collections to the General Teller (Exhibits J, J-1, J-1-a, J-2, J-2-a,
K, K-1, K-I-a K-2-a, and K-2-b) 8
As against the above documentary evidence, petitioner's posture that he
had turned over his collections everyday to Mr. Gerardo Verder the
General Teller then, who had assured him that he would do the
explaining, is lame, indeed. Besides, he could not but admit his
accountability for receipts, with serial nos. 155901 to 155990, issued by
him, but under the accountability of Gregorio Sano a travelling collector,
because of petitioner's own pending request for transfer of
accountability. 9
In the face of the evidence presented, petitioner failed to overcome the
presumption under Art. 217 of the Revised Penal Code that the failure of
a public officer to have duly forthcoming any public funds or property
with which he is chargeable, upon demand by any public officer, shall
be prima facie evidence that he has put such missing funds to personal
use. In Malversation, all that is necessary to prove is that the defendant
60
received in his possession public funds, that he could not account for
them and did not have them in his possession and that he could not give
Page
a reasonable excuse for the disappearance of the same. An accountable
public officer may be convicted of Malversation even if there is no direct
evidence of misappropriation and the only evidence is that there is a
shortage in his accounts which he has not been able to explain
satisfactorily. 10
Neither do we find tenable petitioner's contention that his accountability
was not established as the Report of Examination was denominated by
Pielago as "preliminary". As held by respondent Court:
True, the report of the audit aforesaid was denominated as
'preliminary'. But, this does not imply that the same may not be
taken as basis for determining the extent of the accountability
of the accused as of the date of said audit. If there was anything
tentative about the finding made, it was only because
collections of the accused under official receipts known to be
still in his possession and the stubs of which had not yet been
submitted, were not yet accounted for. Hence, the only
meaning that the term 'preliminary' had in the premises was
that the amount of shortage could still be increased if all said
receipts are eventually found and taken into account. But, on
the basis of the records available to the auditor, the amount of
shortage established could not but be considered final.
All told, we are convinced that the constitutional presumption of
innocence in petitioner's favor has been overcome and his guilt
established beyond reasonable doubt.
WHEREFORE, the judgment appealed from, convicting petitioner of the
crime of Malversation of Public Funds, is hereby affirmed. Costs against
petitioner, Arturo de Guzman.
SO ORDERED.
(4) G.R. No. L-61442 May 9, 1989
MODESTO A. MAHINAY, petitioner, vs.
THE SANDIGANBAYAN AND THE PEOPLE OF THE
PHILIPPINES, respondents.
PARAS, J.:
The petitioner, Modesto Mahinay, was employed as Cashier I of the
Butuan General Hospital from July 1, 1973 to October 31, 1977 (Decision,
Criminal Case No. 2628, p. 3; Rollo, p. 27).
On October 13, 1977, Antonio T. Martirez, Resident Auditor of the Butuan
General Hospital examined in the presence of Modesto Mahinay, the
cash and accounts of Modesto Mahinay covering the period from July 1,
1973 to October 31, 1977. Antonio Martirez found Modesto Mahinay to
have incurred a shortage of P 20,619.40. Consequently, Antonio Martirez
prepared his report of examination which was signed by the petitioner
(Decision, Criminal Case No. 2628, pp. 3 and 9; Rollo, pp. 27 & 33).
Subsequently, a letter of demand was sent by Antonio Martirez to the
petitioner requiring the latter to produce the missing funds and to submit
an explanation on how the shortages had been incurred. The petitioner
submitted his reply letter dated January 25, 1979 (Ibid, p. 3, Rollo, p. 27).
The petitioner was charged with the crime of Malversation of Public
Funds before the Sandiganbayan. The information states:
That on or about and during the period comprised between July
1, 1973 to October 13, 1977, in the City of Butuan, Philippines,
and within the jurisdiction of this Honorable Court the above
named accused, being an employee of the Butuan General
Hospital, Butuan City as Cashier and as such is responsible and
accountable for the public finds collected and received by him
in trust by reason of his position did then and there wilfully,
unlawfully and feloniously and fraudulently and with grave
abuse of confidence, misappropriate, misapply, embezzle,
malverse and take away from said funds the sum of TWENTY
THOUSAND SIX HUNRED NINETEEN PESOS AND FORTY
CENTAVOS (P20,619.40.) Philippine Currency which he
appropriated and converted to his own personal use and
benefit and inspite of repeated demands to restitute said
amount he failed and refused and still fails and refuses to do so
to the great damage and detriment of the Philippine
Government and the public interest.
CONTRARY TO LAW. (Rollo, p. 1-34)
When arraigned, the accused duly assisted by counsel de parte pleaded
"not guilty". (Decision, Criminal Case No. 2628, p. 2, Rollo, p. 26).
After trial on the merits, the Court found Modesto Mahinay guilty as
charged.
The dispositive portion of the decision reads:
IN THE LIGHT OF THE FOREGOING CIRCUMSTANCES, the Court
finds accused Modesto Mahinay y Azura, GUILTY, beyond
reasonable doubt as Principal of the crime of Malversation of
Public Funds, defined and penalized under Art. 217, paragraph
4 of the Revised Penal Code. In the absence of any modifying
circumstance, since none was appreciated, the Court hereby
sentences the said I accused to suffer an indeterminate penalty
ranging from TEN (10) YEARS, and ONE (1) DAY
of Prision Mayor as minimum, to SIXTEEN (16) YEARS, FIVE (5)
MONTHS and ELEVEN (11) DAYS of ReclusionTemporal as
maximum, to suffer the penalty of Special Perpetual
Disqualification, to pay a fine of P20,619.40, to indemnify the
Government of the Republic of the Philippines in the said
amount of P20,619.40 and to pay the costs.
SO ORDERED. (Rollo, p. 42).
A motion for reconsideration of the decision filed by the petitioner was
denied. Hence, this petition with the following assignments of error:
I
THE SANDIGANBAYAN ERRED IN LEANING HEAVILY ON THE LAST
PARAGRAPH OF ARTICLE 217 OF THE REVISED PENAL CODE IN ORDER TO
CONVICT PETITIONER.
II
THE SANDIGANBAYAN ERRED IN RELYING TO SUPPORT ITS DECISION OF
CONVICTION, ON CASES WHICH ARE NOT ON ALL FOURS WITH, AND
THEREFORE NOT APPLICABLE TO, THE CASE AT BAR. (Rollo, pp. 12-13)
In the resolution of September 14, 1982, the Court required the Solicitor
General to comment on the petition within ten (10) days from notice
(Rollo, p. 68) which was complied with on October 25,1982 (Rollo, p. 73).
In the resolution of November 4, 1982, the Court required the petitioner
to file a reply to the Solicitor General's comment (Rollo, p. 83). On
December 10, 1982, the petitioner filed his reply to the comment of the
Solicitor General (Rollo, p. 86).
In the resolution of March 12, 1985, the petition was given due course
(Rollo, p. 98). The brief for the petitioner was filed on May 14, 1985 (Rollo,
p. 111) while the brief for the respondents was filed on September 23,
1985 (Rollo, p. 169).
61
Page
The sole issue in this case is whether or not the petitioner has committed
malversation of public finds under Article 217 of the Revised Penal Code.
The petitioner contends that the presumption established by Article 217
of the Revised Penal Code that a public officer has put missing funds or
property to personal use in the event of his failure to have duly
forthcoming any such public funds or property, with which he is
chargeable, upon demand by any duly authorized officer, is merely prima
facie and may be rebutted or overcome by proof to the contrary. Since
he presented at the trial "vale" slips signed by Audit Aide Pacifica Alcordo
thereby showing that he has not put said funds or property to personal
use, and the cash advances in question extended by him in good faith and
in the honest belief that it was his duty to do so, the prima
facie presumption is destroyed and the mere absence of funds is not
sufficient proof of conversion.
It is further argued by the petitioner that the mode of extending cash
advances by mere "vale" slips was one of long standing, in existence well
ahead of the time he became the cashier of the Butuan General Hospital
and never heretofore questioned by the Commission on Audit.
The contention of the petitioner is without merit.
Article 217 of the Revised Penal Code provides that any public officer
who, by reason of the duties of his office, is accountable for public funds
or property, shall appropriate the same, or shall take or misappropriate
or shall consent, or through abandonment or negligence, shall permit any
other person to take such public funds or property, wholly or partially,
shall be guilty of the misappropriation or malversation of such funds or
property. (Emphasis supplied).
There is no dispute that the presumption of malversation under Article
217 of the Revised Penal Code is merely prima facie and rebuttable, so
that if the accountable officer has satisfactorily proven that not a single
centavo of the missing funds was used by him for his own personal
interest but extended as cash advances to co-employees in good faith,
with no intent to gain and borne out of goodwill considering that it was a
practice tolerated in the office, the presumption of guilt is overthrown
(Quizo v. Sandiganbayan, 149 SCRA 108). However, the circumstances
obtaining in the Quizo case are not obtaining in the case at bar. Among
others, in the Quizo case, there was full restitution made within a
reasonable time, while in the instant case there was none.
But more importantly, in the instant case, the petitioner admitted that
the total shortage of P20,619.40 represents the "vales" of Mr. Alcordo for
travels, telegrams, mails, for entertainment of his superiors, newspapers
and salary differentials from 1971 to 1976, and Alcordo did not give him
reimbursement receipts representing the "vales" (Decision, Criminal Case
No. 2628, p. 5, Rollo, p. 29).
Moreover, the respondent court found: (a) that the petitioner continued
to disburse funds from his collection to issue "vales" to Alcordo despite
the latter's transfer to another place of assignment and inability to submit
the required vouchers that could have established the legality of the
disbursements or "vales" (Decision, Criminal Case No. 2628, pp. 10-11;
Rollo, pp. 34-35); and (b) that per findings of the Resident Auditor, the
petitioner juggled or manipulated the cash book entries and made it
appear that he made deposits to conceal the "vales" or amounts loaned
which were never redeemed by Alcordo and/or other employees
concerned, and which deposits in turn, were verified by the Auditing
Examiner to be fictitious since the said deposits were not supported by
any slips nor could said deposits be traced to the bank statements
(Decision, Criminal Case No. 2628; p. 13; Rollo, p. 37).
It is therefore, apparent that the petitioner, in violation of Article 217 of
the Revised Penal Code, negligently consented or permitted Alcordo to
take public funds for which he is accountable.
The petitioner's claim of good faith in extending the cash advances in
question is belied by his admission that he was aware of existing COA
regulations prohibiting the extension of cash advances by way of "vales"
to government employees (Decision, Criminal Case No. 2628, p. 5; Rollo,
p. 29).
In addition, per findings of the Resident Auditor, the petitioner never
remitted his collections to the National Treasury regularly, thus, enabling
him to accumulate collections as much as P20,000.00 or more. The
petitioner also withheld part of the collections amounting to as much as
P15,000.00 or more everytime a deposit is made in contravention of the
provisions of General Circular Nos. 82 and 82-A which require that
collections of National Funds as a general rule should be remitted to the
National Treasury at anytime it reaches P500.00 or more, at least once a
month regardless of the amount (Decision, Criminal Case No. 2628, p. 12;
Rollo, p. 36).
Under the foregoing circumstances, it is evident that the defense has not
successfully rebutted the prima faciepresumption of malversation.
PREMISES CONSIDERED, the petition for review is DENIED and the
decision of the respondent Sandiganbayan is AFFIRMED.
SO ORDERED.
(5) G.R. No. 100625 May 20, 1994
EMILIA M. MENESES, petitioner, vs. SANDIGANBAYAN and PEOPLE OF
THE PHILIPPINES, respondents.
QUIASON, J.:
This is a petition for review on certiorari under Rule 45 of the Revised
Rules of Court to reverse and set aside the decision of the Sandiganbayan
(Second Division) in Criminal Case No. 14254, finding petitioner guilty of
Malversation of Public Funds.
We deny the petition.
I
The Amended Information filed against petitioner reads as follows:
That during the period from May to June, 1988 in Legaspi City,
Philippines and within the jurisdiction of this Honorable Court,
the above- named accused, a public officer, having (sic) duly
appointed and qualified as Cashier of the Treasurer's Office of
the Province of Albay and as such is accountable and
responsible for public funds entrusted to her by reason of her
position, with grave abuse of confidence and taking advantage
of her position as such, did then and there willfully and
unlawfully misappropriate, embezzle and take away from said
public funds the total amount of TWO MILLION FIVE HUNDRED
TWO THOUSAND ONE PESO and THIRTY THREE CENTAVOS
(P2,502,001.33), Philippine Currency, which she
misappropriated and converted to her personal use, to the
damage and prejudice of the government in the aforestated
amount (Rollo, p. 25).
Upon arraignment, petitioner entered a plea of not guilty.
On June 17, 1991, the Sandiganbayan rendered a decision, finding
petitioner guilty of the offense charged. The dispositive portion of the
decision reads as follows:
WHEREFORE, judgment is hereby rendered finding accused
Emilia Meneses y Molod GUILTY beyond reasonable doubt as
principal in the offense of Malversation of Public Funds, as
defined and penalized under Article 217, paragraph 4, of the
Revised Penal Code and favorably appreciating the mitigating
62
circumstance of voluntary surrender, without any aggravating
circumstance in offset and after applying the Indeterminate
Page
Sentence Law, she is hereby sentenced to suffer the
 indeterminate penalty ranging from TEN (10) YEARS and ONE
(1) DAY of prison mayor as the minimum to SEVENTEEN (17)
YEARS, FOUR (4) MONTHS and ONE (1) DAY OF reclusion
temporal as the maximum; to further suffer perpetual special
disqualification, to pay a fine of P2,502,001.33 equal to the
amount malversed; to indemnify the Government of the
Republic of the Philippines in the amount of P2,442,809.33
representing the amount malversed and unrestituted and to
pay the costs of this action (Rollo, pp. 47-48).
Hence this petition.
II
Petitioner does not dispute, as a matter of fact, she adopted, (Rollo,
p. 95) the findings of facts of the Sandiganbayan, which are reproduced
as follows:
There being no dispute as to the accused's public position, said
fact having been established by her appointment as Cashier VI
of the Provincial Treasurer's Office of Albay, then all that
remain (sic) to be resolved is whether the shortage of
P2,502,001.33 in her accountabilities found after the audit
examination conducted by State Auditor Ernesto Ala had been
duly proven by the prosecution's evidence and, contrariwise,
whether the accused's explanation thereon is satisfactory
enough to absolve her from any criminal liability therefor.
From the prosecution's evidence, the Court finds the following
facts to have been clearly and indubitably established:
1. Under Office Orders dated June 7, 1988 and August 5, 1988,
issued by Provincial Auditor Virgilio T. Verdadero, an audit
team, composed of Auditor Ernesto Ala, Norman Devora, Alex
Amoranto and Adenda Buan, was directed to conduct the audit
examination of the cash and accounts of the accused.
2. Audit examination revealed that, as of June 22, 1988, the
accused had a shortage of P2,517,250.60, as determined from
her cash book. However, said shortage was increased by
P5,411.33 which was found to be due to a double entry of
disbursement (Voucher NM. 211-8805-190), dated May 31,
1988, hence, total shortage reached P2,522,661.93.
3. During the audit examination, no cash and valid cash items
were produced by the accused to effect the shortage found in
her accountabilities.
4. On June 28, 1988, Auditor Ala sent a letter of demand to the
accused, which the latter received on July 4, 1988, per
certification of Asst. Provincial Treasurer Astrid G. Natividad.
5. In her reply, dated October 14, 1988, accused made the
following explanation:
"This refers to your letter of June 28, 1988 as
reiterated by the Officer-in-Charge, Provincial
Treasurer's Office, in his letter of September 27,
1988.
The amount demanded consists of various chits of
several employees of the province. However, the
process of recovering from them the amount involve
needs patience, time, humanitarian consideration. I
have approached each of them and they were willing
to pay their accounts in installment and by doing so,
I was not able to submit my explanation as required
due to the time consumed. As a matter of fact, the
amount of P12,860.00 was remitted this month and
it is hoped we will be able to recuperate (sic) a
substantial amount in the days ahead. This will show
our sincere intention and desire to settle the account.
It is hoped we will be given time and a responsive
chord of consideration and understanding in your
heart to help and save us from this predicament.
It is also informed that undersigned has no intention
to refuse and disobey reasonable office regulations.
It is only by force of circumstances that she could not
comply with them immediately."
6. On November 28, 1988, the audit team submitted their
Memorandum to the COA Regional Director, containing a
narration of the steps taken in the course of their audit
examination and the results thereof, with the recommendation
to institute criminal and administrative charges against the
accused for failure to account for the shortage of
P2,502,006.33.
7. Pursuant to said recommendations, the corresponding
complaint for Malversation of Public Funds was filed by
Provincial Auditor Verdadero with the Tanodbayan on January
26, 1989, supported by the Joint Affidavit of Auditors Ala,
Devora, Amoranto and Buan, with annexes.
8. On separate occasions, commencing from June 6, 1988 up to
November 28, 1988, the accused made partial restitutions
amounting to P20,660.60 (Rollo, pp. 38-41).
Petitioner's defense, relying on Quizo v. Sandiganbayan, 149 SCRA 108
(1987) is that she had not benefitted a single centavo from the missing
funds; rather, said funds were disbursed as cash advances to her co-
employees in good faith and in continuance of a practice tolerated in her
office.
Petitioner's theory need not detain us. The practice of disbursing public
funds, under the "vale" system as a defense in malversation cases, was
advanced, briefed and argued in Cabello v. Sandiganbayan, 197 SCRA 94
(1971), and found not meritorious.
In Cabello, we held that the giving of "vales" by public officers out of their
accountable funds is prohibited by P.D. No. 1145, otherwise known as the
Government Auditing Code of the Philippines and Memorandum Circular
No. 570, dated June 24, 1968 of the General Auditing Office.
Article 217 of the Revised Penal Code provides that any public officer
who, by reason of the duties of his office, is accountable for public funds
or property, shall appropriate the same, or shall take or misappropriate
or shall consent, or through abandonment or negligence, shall permit any
other person to take such public funds or property, wholly or partially,
shall be guilty of the misappropriation or malversation of such funds or
property (Underlining supplied).
Section 105 of the Government Auditing Code of the Philippines provides:
(1) Every officer accountable for government property shall be
liable for its money value in cases of improper or unauthorized
use or misappropriation thereof, by himself or any person for
whose acts he may be responsible. He shall likewise be liable
for all losses, damages, or deterioration occasioned by
negligence in the keeping or use of the property whether or not
it be at the time in his actual custody.
(2) Such Officer accountable for government funds shall be
liable for all losses resulting from the unlawful deposit, use or
application thereof and for all losses attributable to negligence
in the keeping of the funds (Emphasis supplied).
63
The grant of loans through the "vale" system is a clear case of an
accountable officer consenting to the improper or unauthorized use of
Page
public funds by other persons, which is punishable by the law. To tolerate
a such practice is to give a license to every disbursing officer to conduct a
lending operation with the use of public funds.
There is no law or regulation allowing accountable officers to extend
loans to anyone against "vales" or chits given in exchange by the
borrowers. On the other hand, the General Auditing Office (now the
Commission on Audit) time and again, through repeated office
memoranda and rulings had warned against the acceptance of "vales" or
chits by any disbursing officer because such transactions are really forms
of loans (Memorandum Circular No. 570, June 24, 1968, General Auditing
Office).
To put an end to the unauthorized practice of the "vale" system, the
General Auditing Office laid down the following rules for the observance
of all concerned:
1. A vale, IOU, chit or other form of promissory note, is not
acceptable credit to the cash account of any accountable
officer, and is at once excluded during the cash examination
from among the cash items.
2. The yellow reimbursement receipt properly used only as
receipt or proof of petty expenses in the field, should not be
used to replace the general voucher for drawing amounts
which need the approval of several officials before payment,
and require adequate description of the goods or services being
paid for.
3. Cash advance asked by any auditing personnel requires the
prior approval of the Auditor General, Deputy Auditor General,
or the proper department manager (Memorandum Circular No.
570, June 24, 1968; General Auditing Officer).
Assuming that we accept petitioner's claim of good faith in giving loans
to her co-employees, the amount of said loans totalled only
P1,099,073.34 by her own admission and this amount already
included the loans allegedly covered by "vales" or chits that had been
lost during the flood brought about by the typhoon that visited Legaspi
City. Petitioner claims that she was able to trace the loans and the
amounts given as advances by referring to her notebook with her
handwritten entries (Exhs. "4" to "4-K"; Rollo, pp. 15-16). According to
the audit report of petitioner's cash accountability, the cash shortage
as of June 22, 1988 totalled P2,522,661.93, consisting of the General
Fund, Infrastructure Fund, Special Education Fund and Trust Fund
(Exh. "C").
So even if petitioner would be credited with the amount of P1,099,073.34
disbursed in exchange of the "vales," she still has to account for the
amount of P1,423,588.59.
(6) G.R. No. 77120 April 6, 1987
ARTURO QUIZO, petitioner, vs.
The HON. SANDIGANBAYAN, represented by HON. FRANCIS E.
GARCHITORENA, LUCIANO A. JOSON, RAMON V. JABSON, respondents.
FERNAN, J.:
In this petition for certiorari, petitioner Arturo Quizo assails the
resolution of the respondent Sandiganbayan in Criminal Case No. 9777
promulgated on September 23, 1986 which denied the motion to dismiss
filed by the Tanodbayan as well as the resolution of October 22, 1986
which denied the motion for reconsideration thereto. Petitioner
contends that said resolutions were rendered without or in excess of
jurisdiction and/or with grave abuse of discretion.
It appears that after an audit conducted by the Commission on Audit on
September 13, 1983, petitioner, the Money Order Teller of Cagayan de
Oro Post Office, was found to have incurred a shortage in his cash and
other accounts of P17,421.74, as follows:
On the same day, petitioner reimbursed the amount of P406.18; three
days thereafter, P10,515.56; and on September 19, 1983, the balance of
P6,500.00.
Vales granted
to various
employees but P16,720.00
disallowed
Accommodated 700.00
private checks
Actual cash 1.74
shortage
P17,421.74
Notwithstanding full restitution, an information for malversation of
public funds against petitioner was filed by the Tanodbayan before the
Sandiganbayan. On a motion for reinvestigation and/or reconsideration,
the Tanodbayan filed a motion to dismiss on the following grounds:
1. No damage was inflicted on the government as
there was full restitution of the malversed funds
within a reasonable time;
2. The accused never pocketed the money, the
shortages, it is admitted, being 'vales' of his co-
employees. (Annex A, p. 14, Rollo).
On September 23, 1986, the Sandiganbayan denied the prosecutor's
motion to dismiss. It ruled that damage to the government is not an
essential element of the crime of malversation and that restitution of the
malversed funds before the filing of a complaint is neither a defense that
would exempt the offender from criminal liability nor a valid ground for
dismissal. A motion for reconsideration was filed but it was denied on
October 22, 1986. Hence this petition.
Petitioner questions the propriety and advisability of the
Sandiganbayan's actuation in seeming to substitute its judgment on
matters within the discretion of the prosecution. Petitioner further
argues that there are sufficient and compelling reasons for the dismissal
of the criminal case, namely:
1. There was no criminal intent, no malice or any animus
lucrandi;
2. If there was negligence,the same was noti nexcusable;
3. There was full restitution made within a reasonable time; and
4. Similar cases were dismissed at the Sandiganbayan and
Tanodbayan level on the ground of restitution.
The petition is impressed with merit.
In the case of People vs. Pineda, 20 SCRA 748, the Court ruled:
A prosecuting attorney, by the nature of his office, is under no
compulsion to file a particular criminal information where he is
not convinced that he has evidence to prop up the averments
64
thereof, or that the evidence at hand points to a different
conclusion. This is not to discount the possibility of the
Page
commission of abuses on the part of the prosecutor. But we
must have to recognize that a prosecuting attorney should not
 be unduly compelled to work against his conviction. In case of
doubt, we should give him the benefit thereof. A contrary rule
may result in our courts being unnecessarily swamped with
unmeritorious case. Worse stilt a criminal suspect's right to due
process — the sporting idea of fair play — may be transgressed.
... The question of instituting a criminal charge is one
addressed to the sound discretion of the investigating
Fiscal. The information he lodges in court must have to be
supported by facts brought about by an inquiry made by him It
stands to reason then to say that in a clash of views between
the judge who did not investigate and the fiscal who did or
between the fiscal and the offended party or the
defendant, those of the Fiscal's should normally prevail ...
(Emphasis supplied.)
In Alberto vs. de la Cruz, 98 SCRA 406, reiterated in Bautista vs. City
Fiscal of Dagupan 131 SCRA 132, the Court further held:
It is the rule that a fiscal by the nature of his office, is under no
compulsion to file a particular criminal information where he is
not convinced that he has evidence to support the allegrations
thereof. Although this power and prerogative of the FiscaL to
determine whether or not the evidence at hand is sufficient to
form a reasonable belief that a person committed an offense,
is not absolute and subject to judicial review, it would be
embarrassing for the prosecuting attorney to be compelled to
prosecute a case when he is in no position to do so, because in
his opinion he does not have the necessary evidence to secure
a conviction, or he is not convinced of the merits of the case.
Against the foregoing and considering that after a reinvestigation
conducted by a prosecutor, no less than the Tanodbayan himself directed
the dismissal of the case based on findings that "it is clear that the
accused never pocketed the money" and that "the shortage were vales
of co-employees" (Annex "D," p. 39, Rollo), the Court is inclined to sustain
petitioner's contention that the Sandiganbayan gravely abused its
discretion when it refused to grant the motion to dismiss. It is not fair to
compel the prosecutor to secure the conviction of an accused on
evidence which in his opinion, is insufficient and weak to establish even
a prima facie case.
Besides, the Court is convinced that there is no sufficient evidence to
show a prima facie case against petitioner.
Article 217 of the Revised Penal Code provides that the failure of a public
officer to have duly forthcoming any public funds or property with which
he is chargeable, upon demand by any duly authorized officer, shall be SO ORDERED.
prima facie evidence that he has put such missing funds or property to
personal uses. Hence, an accountable public officer may be convicted of
(7) G.R. Nos. 103501-03 February 17, 1997
malversation even if there is no direct evidence of misappropriation and
the only evidence is that there is a shortage in his accounts which he has
not been able to explain satisfactorily (De Guzman vs. People, 119 SCRA LUIS A. TABUENA, petitioner,
337). This is because the law establishes a presumption that mere failure vs.
of an accountable officer to produce public funds which have come into HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE
his hands on demand by an officer duly authorized to examine his PHILIPPINES, respondents.
accounts is prima facie evidence of conversion. However, the
presumption is merely prima facie and a rebuttable one. The accountable G.R. No. 103507 February 17, 1997
officer may overcome the presumption by proof to the contrary. If he
adduces evidence showing that, in fact, he has not put said funds or ADOLFO M. PERALTA, petitioner,
property to personal use, then that presumption is at an end and vs.
the prima facie case destroyed (US vs. Catolico, 18 Phil. 504). HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE
PHILIPPINES, represented by the OFFICE OF THE SPECIAL
In the case at bar, petitioner successfully overthrew the presumption of PROSECUTOR, respondents.
guilt. He satisfactorily proved that not a single centavo of the missing
funds was used by him for his own personal interest, a fact conceded by
the Tanodbayan 'the bulk of the reported shortage actually referred to FRANCISCO, J.:
the items disallowed by the Audit Team representing cash advances
extended to co-employees. In fact, evidence disclosed that the itemized
Through their separate petitions for review,1 Luis A. Tabuena and Adolfo
list of the cash advances (Annex "B " of Motion for Re-Investigation
M. Peralta (Tabuena and Peralta, for short) appeal the Sandiganbayan
and/or Reconsideration, p. 31, Rollo) was verified and found to be correct
decision dated October 12, 1990,2 as well as the Resolution dated
by an Auditing Examiner, Petitioner explained that the granting of the
December 20. 19913denying reconsideration, convicting them of
cash advances was done in good faith, with no intent to gain and borne
malversation under Article 217 of the Revised Penal Code. Tabuena and
out of goodwill considering that it was a practice tolerated in the office.
Peralta were found guilty beyond reasonable doubt Of having malversed
Such being the case, negligence evidentiary of malice or intent to defraud
the total amount of P55 Million of the Manila International Airport
the government cannot be imputed to him. Also to be considered is the
Authority (MIAA) funds during their incumbency as General Manager and
circumstance that the actual cash shortage was only P1.74 which,
Acting Finance Services Manager, respectively, of MIAA, and were thus
together with the disallowed items, was fully restituted within a
meted the following sentence:
reasonable time from date of audit,
(1) In Criminal Case No. 11758, accused Luis A. Tabuena is
Significantly, in the recent case of Villacorta vs. People, G.R. No. 68268,
sentenced to suffer the penalty of imprisonment of seventeen
November 12, 1986, the Court acquitted the accused. the municipal
(17) years and one (1) day of reclusion temporal as minimum to
treasurer of Pandan, Catanduanes. of the crime of malversation of public
twenty (20) years of reclusion temporal as maximum, and to
funds on grounds that he did not put the missing funds to personal uses,
pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00),
that his having "allowed others to freely participate of the
the amount malversed. He shall also reimburse the Manila
chits/vouchers" was a practice which seemed to have been tolerated
International Airport Authority the sum of TWENTY-FIVE
even during the time of his predecessor and that there was no negligence
MILLION PESOS (P25,000,000.00).
approximating malice or fraud because the wrong payments were made
in good faith.
In addition, he shall suffer the penalty of perpetual special
disqualification from public office,
WHEREFORE, the writ of certiorari is granted and the resolutions of the
65
respondent Sandiganbayan dated September 23, 1986 and October 22,
1986 are SET ASIDE. Criminal Case No. 9777, entitled "People of the (2) In Criminal Case No. 11759, accused Luis A. Tabuena is
sentenced to suffer the penalty of imprisonment of seventeen
Page
Philippines vs. Arturo C. Quizo" is hereby DISMISSED. No costs.
(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:
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 manager's check for said amount in the name of
accused Luis A. Tabuena chargeable against MIAA's 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
manager's 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 xxx 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 manager.s check for said amount in the name of
accused Luis A. Tabuena chargeable against MIAA's 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
manager's 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 xxx xxx
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 Honorable Court, accused Luis
A. Tabuena and Adolfo M. Peralta, both public officers, being
then the General Manager and Acting Manager, Financial
Services Department, 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 FIVE
MILLION PESOS (P5,000,000.00) from MIAA funds by applying
for the issuance of a manager's check for said amount in the
name of accused Luis A. Tabuena chargeable against MIAA's
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 manager's 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.
Gathered from the documentary and testimonial evidence are the
following essential antecedents:
Then President Marcos instructed Tabuena over the phone to pay directly
to the president's 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:
66
Page
 Office of the President 1. Supplemental Contract No. 12 — Submitted by PNCC directly to PEC
of the Philippines Package Contract No. 2 P11,106,600.95 and currently under evaluation 66.5 million
Malacanang ——————
2. Supplemental Contract No. 13 Total P99.1 million
January 8, 1986 5,758,961.52
There has been no funding allocation for any of the above escalation
MEMO TO: The General Manager 3. Supplemental Contract No. 14 claims due to budgetary constraints.
Manila International Airport Authority Package Contract No. 2 4,586,610.80
The MIA Project has been completed and operational as far back as 1982
You are hereby directed to pay immediately the 4. Supplemental Contract No. 15 and yet residual amounts due to PNCC have not been paid, resulting in
Philippine National Construction Corporation, thru 1,699,862.69 undue burden to PNCC due to additional cost of money to service its
this Office, the sum of FIFTY FIVE MILLION obligations for this contract.
(P55,000,000.00) PESOS in cash as partial payment of 5. Supplemental Contract No. 16
MIAA's account with said Company mentioned in a Package Contract No. 2 233,561.22 To allow PNCC to collect partially its billings, and in consideration of its
Memorandum of Minister Roberto Ongpin to this pending escalation billings, may we request for His Excellency's approval
Office dated January 7, 1985 and duly approved by for a deferment of the repayment of PNCC's advances to the extent of
6. Supplemental Contract No. 17
this Office on February 4, 1985. P30 million corresponding to about 30% of P99.1 million in escalation
Package Contract No. 2 8,821,731.08
claims of PNCC, of which P32.5 million has been officially recognized by
Your immediate compliance is appreciated. MIADP consultants but could not be paid due to lack of funding.
7. Supplemental Contract No. 18
Package Contract No. 2 6,110,115.75
(Sgd.) FERDINAND MARCOS.4 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
8. Supplemental Contract No. 3 gross billings of PNCC of P98.4 million over the undeferred portion of the
The January 7, 1985 memorandum of then Minister of Trade Package Contract No. II 16,617,655.49 repayment of advances of P63.9 million.
and Industry Roberto Ongpin referred to in the MARCOS
Memorandum, reads in full:
(xerox copies only; original memo was submitted to (Sgd.) ROBERTO V. ONGPIN
the Office of the President on May 28, 1984) Minister5
MEMORANDUM
In this connection, please be informed that Philippine National In obedience to President Marcos' verbal instruction and memorandum,
For: The President Construction Corporation (PNCC), formerly CDCP, has accomplishment Tabuena, with the help of Dabao and Peralta, caused the release of P55
billings on the MIA Development Project aggregating P98.4 million, Million of MIAA funds by means of three (3) withdrawals.
From: Minister Roberto V. Ongpin inclusive of accomplishments for the aforecited contracts. In accordance
with contract provisions, outstanding advances totalling P93.9 million are
The first withdrawal was made on January 10, 1986 for P25 Million,
Date: 7 January 1985 to be deducted from said billings which will leave a net amount due to
following a letter of even date signed by Tabuena and Dabao requesting
PNCC of only P4.5 million.
the PNB extension office at the MIAA — the depository branch of MIAA
Subject: Approval of Supplemental Contracts and funds, to issue a manager's check for said amount payable to Tabuena.
Request for Partial Deferment of Repayment of At the same time, PNCC has potential escalation claims amounting to P99 The check was encashed, however, at the PNB Villamor Branch. Dabao
PNCC's Advances for MIA Development Project million in the following stages of approval/evaluation: and the cashier of the PNB Villamor branch counted the money after
which, Tabuena took delivery thereof. The P25 Million in cash were then
May I request your approval of the attached — Approved by Price Escalation Committee placed in peerless boxes and duffle bags, loaded on a PNB armored car
recommendations of Minister Jesus S. Hipolito for (PEC) but pended for lack of funds P1.9 million and delivered on the same day to the office of Mrs. Gimenez located at
eight (8) supplemental contracts pertaining to the Aguado Street fronting Malacanang. Mrs. Gimenez did not issue any
MIA Development Project (MIADP) between the — Endorsed by project consultants and receipt for the money received

67
Bureau of Air Transport (BAT) and Philippine National currently being evaluated by PEC 30.7 million
Construction Corporation (PNCC), formerly CDCP, as Similar circumstances surrounded the second withdrawal/encashment

Page
follows: 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 Tabuena's co-signatory to the letter- request for a
manager's 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 Tabuena's 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:
Malacanang
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 — P 25,000,000.00
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 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 MIAA's 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) errors6 committed by the Sandiganbayan for this
Court's 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:
. . . accused . . . conspiring, confederating and other, then and
there wilfully, unlawfully, feloniously, and with intent to
defraud the government, take and misappropriated the
amount of . . . .
But it would appear that they were convicted of malversation by
negligence. In this connection, the Court's attention is directed to p. 17
of the December 20, 1991 Resolution (denying Tabuena's and Peralta's
motion for reconsideration) wherein the Sandiganbayan said:
xxx xxx xxx
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.
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. (Emphasis 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" 9where 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:
. . . 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. . . .
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
68
negligent. This is a case covered by the rule when there is a
variance between the allegation and proof, and is similar to
Page
some of the cases decided by this Tribunal.
 xxx xxx xxx
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. . . .
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
significantmalversation cases of "US v. Catolico" 10 and "US v.
Elvina," 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 evidence
of the MARCOS Memorandum we are swayed to give credit to his 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 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, and to argue otherwise is something easier said than done.
Marcos was undeniably Tabuena's superior — the former being then the
President of the Republic who unquestionably exercised control over
government agencies such as the MIAA and PNCC.15 In other words,
Marcos had a say in matters involving inter-government agency affairs
and transactions, such as for instance, directing payment of liability of
one entity to another and the manner in which it should be carried out.
And as a recipient of such kind of a directive coming from the highest
official of the land no less, good faith should be read on Tabuena's
compliance, without hesitation nor any question, with the MARCOS
Memorandum. Tabuena therefore is entitled to the justifying
circumstance of "Any person who acts in obedience to an order issued by
a superior for some lawful purpose."16 The subordinate-superior
relationship between Tabuena and Marcos is clear. And so too, is the
lawfulness of the order contained in the MARCOS Memorandum, as it has
for its purpose partial payment of the liability of one government agency
(MIAA) to another (PNCC). However, the unlawfulness of the MARCOS
Memorandum was being argued, on the observation, for instance, that
the Ongpin Memo referred to in the presidential directive reveals a
liability of only about P34.5 Million. The Sandiganbayan in this connection
said:
Exhibits "2" and "2-a" (pages 1 and 2 of the memorandum of
Min. Ongpin to the President dated January 7, 1985) were
mainly:
a.) for the approval of eight Supplemental Contracts; and
b.) a request for partial deferment of payment by PNCC for
advances made for the MIAA Development Project, while at the
same time recognizing some of the PNCC's escalation billings
which would result in making payable to PNCC the amount of
P34.5 million out of existing MIAA Project funds.
Thus:
"xxx xxx xxx
To allow PNCC to collect partially its
billings, and in consideration of ifs pending
escalation billings, may we request for His
Excellency's approval for a deferment of
repayment of PNCC's advances to the
extent of P30 million corresponding to
about 30% of P99.1 million in escalation
claims of PNCC, of which P32.6 million has
been officially recognized by MIADP
consultants but could not be paid due to
lack of funding.
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 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 the PNCC to MIAA to the extent of P99.1
million (Exhibit 2a), a substantial portion thereof was still in the
stages of evaluation and approval, with only P32.6 million
having been officially recognized by the MIADP consultants.
If any payments were, therefore, due under this memo for Min.
Ongpin (upon which President Marcos' Memo was based) they
would only be for a sum of up to P34.5 million. 17
xxx xxx xxx
V. Pres. Marcos' order to Tabuena dated January 8, 1986
69
baseless.
Page
 Not only was Pres. Marcos' Memo (Exhibit "1") for Tabuena to
pay P55 million irrelevant, but it was actually baseless.
This is easy to see.
Exhibit "1" purports to refer itself to the Ongpin Memorandum
(Exhibit "2", "2-a"); 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 of P55 million
exceeded the approved payment of P34.5 million by P20.5
million. Min. Ongpin's Memo of January 7, 1985 could not
therefore serve as a basis for the President's order to withdraw
P55 million. 18
Granting this to be true, it will not nevertheless affect Tabuena's goad
faith so as to make him criminally liable. What is more significant to
consider is that the MARCOS Memorandum is patently legal (for on its
face it directs payment of an outstanding liability) and that Tabuena acted
under the honest 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 witness Francis Monera who, on direct
examination, testified that:
ATTY ANDRES
Q Can you please show us in this Exhibit "7" and "7-a" where it
is indicated the receivables from MIA as of December 31, 1985?
A As of December 31, 1985, the receivables from MIA is shown
on page 2, marked as Exhibit "7-a", sir, P102,475.392.35
xxx xxx xxx 19
ATTY. ANDRES
Q Can you tell us, Mr. Witness, what these obligations
represent?
WITNESS
A These obligations represent receivables on the basis of our
billings to MIA as contract-owner of the project that the
Philippine National Construction Corporation constructed.
These are billings for escalation mostly, sir.
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.
xxx xxx xxx 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
Thus, even if the order is illegal if it is patently legal and the
subordinate is not aware of its illegality, the subordinate is not
liable, for then there would only be a mistake of fact committed
in good faith.22 Such is the ruling in "Nassif v. People"23 the facts
of which, in brief, are as follows:
Accused was charged with falsification of commercial document. A mere
employee of R.J. Campos, he inserted in the commercial document
alleged to have been falsified the word "sold" by order of his principal.
Had he known or suspected that his principal was committing an
improper act of falsification, he would be liable either as a co-principal or
as an accomplice. However, there being no malice on his part, he was
exempted from criminal liability as he was a mere employee following the
orders of his principal. 24
Second. There is no denying that the disbursement, which Tabuena
admitted as "out of the ordinary", did not comply with certain auditing
rules and regulations such as those pointed out by the Sandiganbayan, to
wit:
a) [except for salaries and wages and for commutation of leaves] all
disbursements above P1,000.00 should be made by check (Basic
Guidelines for Internal Control dated January 31, 1977 issued by COA)
b) payment of all claims against the government had to be supported with
complete documentation (Sec. 4, P.D. 1445, "State Auditing Code of the
Philippines). In this connection, the Sandiganbayan observed that:
There were no vouchers to authorize the disbursements in
question. There were no bills to support the disbursement.
There were no certifications as to the availability of funds for
an unquestionably staggering sum of P55 Million. 25
c) failure to protest (Sec. 106, P.D. 1445)
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 President's 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 petitioner. If he made wrong payments, they were in Good
faith mainly to government personnel, some of them working
at the provincial auditor's and the provincial treasurer's offices
And if those payments ran counter to auditing rules and
regulations, they did not amount to a criminal offense and he
should only be held administratively or civilly liable.
Likewise controlling is "US v. Elvina" 27 where it was held that payments
in good faith do not amount to criminal appropriation, although they
were made with insufficient vouchers or improper evidence. In fact, the
Dissenting Opinion's reference to certain provisions in the revised
Manual on Certificate of Settlement and Balances — apparently made to
underscore Tabuena's personal 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 295 expressly and solely speak of
"civilly liable," describe the kind of 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 . . . 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
70
same to Mrs. Gimenez and not to the PNCC, proceeding from the
following definitions/concepts of "conversion":
Page
"Conversion", as necessary element of offense of
embezzlement, being the fraudulent "appropriation to one's
own use' of another's property which does not necessarily
mean to one's 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 owner 's 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.
xxx xxx xxx
The words "convert" and "misappropriate" connote an act of
using or disposing of another's property as if it were one's own.
They presuppose that the thing has been devoted to a purpose
or use different from that agreed upon. To appropriate to one's
own use includes not only conversion to one's 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.
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 President's 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.
xxx xxx xxx
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 P5 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 Acebedo's 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 Court's observation
therein, that:
The petitioner's 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
71
acted in good faith when he, upon the directive of Tabuena,
helped facilitate the withdrawal of P5 Million of the P55 Million
Page
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:
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 accused's basic constitutional right to due process.
"Respect for the Constitution", to borrow once again Mr. Justice Cruz's
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 Tabuena's turn on the witness stand. Questions from the court
after Tabuena's 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 Peralta's 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 don't 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 don't 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.
*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 an 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
72
payments were made before the entry of our President, your Honor.
Actually, the payment was in the form of: assignments to State
Page
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 made on this P102
million, only P2 million had been payments in cash ?
A Yes, your Honor.
*Q The rest had been adjustments of accounts, assignments of accounts,
or offsetting of accounts?
A Yes, your Honor.
*Q This is as of December 31, 1985?
A The P102 million was as of December 31, 1985, your Honor, but the
balances is as of August 1987.
*Q We are talking now about the P44 million, more or less, by which the
basic account has been reduced. These reductions, whether by
adjustment or assignment or actual delivery of cash, were made after
December 31, 1985?
WITNESS
A Yes, your Honor.
*Q And your records indicate when these adjustments and payments
were made?
A Yes, your Honor.
*AJ AMORES
*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 How were these payments made before February 1986, in case or *PJ GARCHITORENA
check, if there were payments made?
*Q Subsequent thereto, we are talking merely of about P44 million?
A The P44 million payments was in the form of assignments, your Honor.
A Yes, your Honor, as subsequent settlements.
*PJ GARCHITORENA
*Q After December 31, 1985?
*Q The question of the Court is, before December 31, 1985, were there
any liquidations made by MIA against these escalation billings? A Yes, your Honor.
A I have not reviewed the details of the record, your Honor. But the ledger *Q And they have liquidated that, as you described it, by way of
card indicates that there were collections on page 2 of the Exhibit earlier assignments, adjustments, by offsets and by P2 million of cash payment?
presented. It will indicate that there were collections shown by credits
indicated on the credit side of the ledger.
A Yes, your Honor.
*AJ AMORES
*AJ AMORES
*Q Your ledger does not indicate the manner of giving credit to the MIA
*Q Your standard operating procedure before December 31, 1985 in
with respect to the escalation billings. Was the payment in cash or just
connection with or in case of cash payment, was the payment in cash or
credit of some sort before December 31, 1985?
check?
A Before December 31, 1985, the reference of the ledger are official
A I would venture to say it was by check, your Honor.
receipts and I suppose these were payments in cash, your Honor.
*Q Which is the safest way to do it?
*Q Do you know how the manner of this payment in cash was made by
MIA?
A Yes, your Honor.
A I do not know, your Honor.
"PJ GARCHITORENA
*PJ GARCHITORENA
*Q And the business way?
*Q But your records will indicate that?
A Yes, your Honor.
A The records will indicate that, your Honor.
PJ GARCHITORENA
*Q Except that you were not asked to bring them?
Continue.
A Yes, your Honor.
PROS VIERNES
*Q At all events, we are talking of settlement or partial liquidation prior
to December 31, 1985? Q You mentioned earlier about the letter of former Minister Ongpin to
73
the former President Marcos, did you say that letter concurs with the
escalation billings reflected in Exhibits "7" and "7-a"?
A Yes, your Honor.
Page
WITNESS A Yes, sir. *Q The earliest payment, whether by delivery of cash equivalent or of
adjustment of account, or by assignment, or by offsets, when did these
A The Company or the management is of the opinion that this letter, a Q And neither was the amount of P22 million remitted to PNCC by MIA? payments begin?
copy of which we were able to get, is a confirmation of the acceptance of
our billings, sir. A Yes, sir. A Per ledger card, there were payments in 1985, prior to December 31,
1985, your Honor.
Q This letter of Minister Ongpin is dated January 7, 1985, whereas the PROS VIERNES
entries of escalation billings as appearing in Exhibit "7" are dated June 30, *Q After December 31, 1985?
1985, would you still insist that the letter of January 1985 confirms the
That will be all, your Honor.
escalation billings as of June 1985? A There appears also P23 million as credit, that is a form of settlement,
your Honor.
PJ GARCHITORENA
A The entries started June 30 in the ledger card. And as of December 31,
1985, it stood at P102 million after payments were made as shown on the *Q This is as of September 25?
credit side of the ledger. I suppose hat the earlier amount, before the Redirect?
payment was made, was bigger and therefore I would venture to say that
A Yes, your Honor. There were subsequent settlements P23 million is just
the letter of January 7, 1985 contains an amount that is part of the ATTY ANDRES
part of the P44 million.
original contract account. What are indicated in the ledger are escalation
billings. No redirect, your Honor.
*Q And what you are saying is that, PNCC passed the account to State
Investment. In other words, State Investment bought the credit of MIA?
*PJ GARCHITORENA *PJ GARCHITORENA
A Yes, your Honor.
*Q We are talking about the letter of Minister Ongpin? Questions from the Court.
*Q And the amount of credit or receivables sold by PNCC to State
A The letter of Minister Ongpin refers to escalation billings, sir. *AJ AMORES Investment is P23 million?

*Q As of what date? *Q From your records, for the month of January 1986, there was no A Yes, your Honor.
payment of this escalation account by MIA?
A The letter is dated January 7, 1985, your Honor.
*Q Is there a payback agreement?
WITNESS
PJ GARCHITORENA
A I have a copy of the assignment to State Investment but I have not yet
A Yes, your Honor. But on page 2 of Exhibit "7" there appears an reviewed the same, your Honor.
Continue. assignment of P23 million, that was on September 25, 1986.
*AJ AMORES
PROS. VIERNES *Q But that is already under the present administration?
*Q As of now, is this obligation of MIA, now NAIA, paid to PNCC?
Q In accordance with this letter marked Exhibit "7" and "7-a", there were A After February 1986, your Honor.
credits made in favor of MIA in July and November until December 1985.
A There is still a balance of receivables from MIA as evidenced by a
These were properly credited to the account of MIA? *Q But before February, in January 1986, there was no payment collection letter by our President dated July 6, 1988, your Honor. The
whatsoever by MIA to PNCC? amount indicated in the letter is P55 million.
WITNESS
A Per record there is none appearing, your Honor. PJ GARCHITORENA

74
A Yes, sir.
*PJ GARCHITORENA Any clarifications you would like to make Mr. Estebal?

Page
Q In 1986. from your records as appearing in Exhibit "7-a", there were no
payments made to PNCC by MIA for the months of January to June 1986?
ATTY ESTEBAL *PJ GARCHITORENA Q This receipt was typewritten in Malacañang stationery. Did you see
who typed this receipt?
None, your Honor. *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
PJ GARCHITORENA A I remember it was on the 31st of January, your Honor What happened came out she gave me that receipt.
is that, I did not notice the date placed by Mrs. Gimenez.
Mr. Viernes? *PJ GARCHITORENA
Q Are you telling us that this Exhibit "3" was incorrectly dated
PROS VIERNES Q What you are saying is, you do not know who typed that receipt?
A Yes, your Honor.
No more, your Honor. WITNESS
*Q Because the third delivery was on January 31st and yet the receipt
PJ GARCHITORENA was dated January 30? A Yes, your Honor.

The witness is excused. Thank you very much Mr. Monera. . . .41 A Yes, your Honor. *Q Are you making an assumption that she typed that receipt?

(TABUENA) *Q When was Exhibit "3" delivered actually by Mrs. Gimenez? A Yes, your Honor, because she knows how to type.

(In his direct examination, he testified that he caused the A January 31st, your Honor. *Q Your assumption is that she typed it herself?
preparation of the checks totalling P55 Million pursuant to the
MARCOS Memorandum and that he thereafter delivered said PJ GARCHITORENA A Yes, your Honor.
amount in cash on the three (3) dates as alleged in the
information to Marcos' private secretary Mrs. Jimenez at her Continue. PJ GARCHITORENA
office at Aguado Street, who thereafter issued a receipt.
Tabuena also denied having used the money for his own
PROS VIERNES Proceed.
personal use.)

Q You did not go to Malacañang on January 30, 1986? PROS. VIERNES

CROSS-EXAMINATION BY PROS. VIERNES

A Yes, sir, I did not. Q This receipt was prepared on January 31, although it is dated January
Q The amount of P55 million as covered by the three (3) checks Mr.
30?
Tabuena, were delivered on how many occasions?
Q Do you know at whose instance this Exhibit "3" was prepared?
A Yes, sir, because I was there on January 31st.
A Three times, sir.
A I asked for it, sir.
Q In what particular place did Mrs. Gimenez sign this Exhibit "3"?
Q And so, on the first two deliveries, you did not ask for a receipt from
Mrs. Gimenez? Q You asked for it on January 31, 1986 when you made the last delivery?
A In her office at Aguado, sir.
A Yes, sir. A Yes, sir.
Q Did you actually see Mrs. Gimenez signing this receipt Exhibit "3"?
Q It was only on January 30, 1986 that this receipt Exhibit "3" was issued Q Did you see this Exhibit "3" prepared in the Office of Mrs. Gimenez?
by Mrs. Gimenez? A No, sir, I did not. She was inside her room.

75
A Yes, sir.
A Yes, sir. Q So, she was in her room and when she came out of the room, she

Page
handed this receipt to you already typed and signed?
A Yes, sir. A Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This "Q From whom did you receive the President's memorandum marked
should be January 31st, sir. Exhibit "1"? Or more precisely, who handed you this memorandum?
*AJ HERMOSISIMA
PROS VIERNES A Mrs. Fe Roa Gimenez, your Honor.
*Q So, how did you know this was the signature of Mrs. Gimenez?
That will be all, your Honor. Q Did you ask Mrs, Fe Gimenez for what purpose the money was being
WITNESS asked?
PJ GARCHITORENA
A Because I know her signature, your Honor. I have been receiving letters A The money was in payment for the debt of the MIA Authority to PNCC,
from her also and when she requests for something from me. Her writing Redirect? your Honor.
is familiar to me.
ATTY. ANDRES *Q If it was for the payment of such obligation why was there no voucher
So, when the Presiding Justice asked you as to how you knew that this prepared to cover such payment? In other words, why was the delivery
was the signature of Mrs. Gimenez and you answered that you saw Mrs. of the money not covered by any voucher?
No redirect, your Honor.
Gimenez signed it, you were not exactly truthful?
A The instruction to me was to give it to the Office of the President, your
*PJ GARCHITORENA
A What I mean is, I did not see her sign because she went to her room Honor.
and when she came out, she gave me that receipt, your Honor.
Questions from the Court.
*PJ GARCHITORENA
PJ GARCHITORENA
*AJ HERMOSISIMA
*Q Be that as it may, why was there no voucher to cover this particular
That is why you have to wait for the question to be finished and listen to disbursement?
*Q Why did you not ask for a receipt on the first and second deliveries?
it carefully. Because when I asked you, you said you saw her signed it. Be
careful Mr. Tabuena. A I was just told to bring it to the Office of the President, your Honor.
A Because I know that the delivery was not complete yet, your Honor.
WITNESS *AJ DEL ROSARIO
*PJ GARCHITORENA
Yes, your Honor. *Q Was that normal procedure for you to pay in cash to the Office of the
*Q So you know that the total amount to be delivered was P55 million') President for obligations of the MIAA in payment of its obligation to
PJ GARCHITORENA another entity?
A Yes, your Honor.
Continue. WITNESS
PJ GARCHITORENA
PROS VIERNES A No, your Honor, I was just following the Order to me of the President.
Response by Mr. Peralta to the testimony of Mr. Tabuena.
Was there another person inside the office of Mrs. Gimenez when she *PJ GARCHITORENA
gave you this receipt Exhibit "3"? ATTY. ESTEBAL
*Q So the Order was out of the ordinary?
A Nobody, sir. We are adopting the testimony of Mr. Tabuena and we will also present
the accused, your Honor. A Yes, your Honor.
Q I noticed in this receipt that the last delivery of the sum of P55 million

76
was made on January 30. Do we understand from you that this date *AJ DEL ROSARIO *AJ DEL ROSARIO
January 30 is erroneous?

Page
Did you file any written protest with the manner with which such
payment was being ordered?
A No, your Honor.
*Q Why not?
A Because with that instruction of the President to me, I followed, your
Honor.
*Q Before receiving this memorandum Exhibit "1", did the former
President Marcos discuss this maitter with you?
A Yes, your Honor.
*Q When was that?
A He called me up earlier, a week before that, that he wants to me pay
what I owe the PNCC directly to his office in cash, your Honor.
*PJ GARCHITORENA
*Q By "I OWE ", you mean the MIAA?
WITNESS
A Yes, your Honor.
*AJ DEL ROSARIO
*Q And what did you say in this discussion you had with him?
A I just said, "Yes, sir, I will do it/"
*Q Were you the one who asked for a memorandum to be signed by him?
A No, your Honor.
*Q After receiving that verbal instruction for you to pay MIAA's obligation
with PNCC, did you not on your own accord already prepare the
necessary papers and documents for the payment of that obligation?
A He told me verbally in the telephone that the Order for the payment of
that obligation is forthcoming, your Honor. I will receive it.
*Q Is this the first time you received such a memorandum from the *Q Is the PNCC a private corporation or government entity?
President?
A I think it is partly government, your Honor.
A Yes, your Honor.
*PJ GARCHITORENA
*Q And was that the last time also that you received such a
memorandum? *Q That is the former CDCP?
A Yes, your Honor. A Yes, your Honor.
*Q Did you not inquire, if not from the President, at least from Mrs. *AJ HERMOSISIMA
Gimenez why this procedure has to be followed instead of the regular
procedure?
*Q Why were you not made to pay directly, to the PNCC considering that
you are the Manager of MIA at that time and the PNCC is a separate
A No, sir. corporation, not an adjunct of Malacañang?
*AJ DEL ROSARIO WITNESS
*Q Why did you not ask? A I was just basing it from the Order of Malacanang to pay PNCC through
the Office of the President, your Honor.
A I was just ordered to do this thing, your Honor.
*Q Do you know the President or Chairman of the Board of PNCC?
*AJ HERMOSISIMA
A Yes, your Honor.
*Q You said there was an "I OWE YOU"?
"Q How was the obligation of MIAA to PNCC incurred. Was it through the
A Yes, your Honor. President or Chairman of the Board?
*Q Where is that "I OWE YOU" now? A PNCC was the one that constructed the MIA, your Honor.
A All I know is that we owe PNCC the amount of P99.1 million, your Honor. *Q Was the obligation incurred through the President or Chairman of the
MIAA owes PNCC that amount. Board or President of the PNCC? In other words, who signed the contract
between PNCC and MIAA?
*Q Was this payment covered by receipt from the PNCC?
A Actually, we inherited this obligation, your Honor. The one who signed
A It was not covered, your Honor. for this was the former Director of BAT which is General Singzon. Then
when the MIA Authority was formed, all the obligations of BAT were
transferred to MIAA. So the accountabilities of BAT were transferred to
*Q So the obligation of MIAA to PNCC was not, for the record, cancelled
MIAA and we are the ones that are going to pay, your Honor.
by virtue of that payment?
*Q Why did you agree to pay to Malacañang when your obligation was
A Based on the order to me by the former President Marcos ordering me
77
with the PNCC?
to pay that amount to his office and then the mechanics will come after,
your Honor.
Page
A I was ordered by the President to do that, your Honor.
*Q You agreed to the order of the President notwithstanding the fact that
this was not the regular course or Malacañang was not the creditor?
A I saw nothing wrong with that because that is coming, from the
President, your Honor.
*Q The amount was not a joke, amounting to P55 million, and you agreed
to deliver money in this amount through a mere receipt from the private
secretary?
A I was ordered by the President, your Honor.
*PJ GARCHITORENA
*Q So, is it correct for us to say that your joining the MIA in 1968 as its
Manager was your first employment ,with the government?
A Yes, your Honor.
*Q While you were Manager of MIA, did you have other subsequent
concurrent positions in the government also?
A I was also the Chairman of the Games and Amusement Board, your
Honor.
*Q But you were not the executive or operating officer of the Games and
Amusement Board?
A No more, your Honor.
*Q As far as you can recall, besides being the Manager of the MIA and
later the MIAA for approximately 18 years, you also ran the Games and
Amusement Board as its executive officer?
A Yes, your Honor.
*Q And you were a commissioner only of the Came Fowl Commission?
A Yes, your Honor.
*Q Who was running the commission at that time?

*Q There is no question and it can be a matter of judicial knowledge that A I was, your Honor. A I forgot his name, but he retired already, your Honor.
you have been with the MIA for sometime?
*Q As Chairman you were running the Games and Amusement Board? *Q All of us who joined the government, sooner or later, meet with our
A Yes, your Honor. Resident COA representative?
A Yes, your Honor.
*Q Prior to 1986? A Yes, your Honor.
*Q What else, what other government positions did you occupy that
A Yes, your Honor. time? *PJ GARCHITORENA

*Q Can you tell us when you became the Manager of MIA? A I was also Commissioner of the Game Fowl Commission, your Honor. *Q And one of our unfortunate experience (sic) is when the COA
Representative comes to us and says: "Chairman or Manager, this cannot
A I became Manager of MIA way back, late 1968, your Honor. *PJ GARCHITORENA be". And we learn later on that COA has reasons for its procedure and we
learn to adopt to them?
*Q Long before the MIA was constituted as an independent authority? *Q That is the cockfighting?
WITNESS
A Yes, your Honor. WITNESS
A Yes, your Honor.
*PJ GARCHITORENA A Yes, your Honor.
*Q As a matter of fact, sometimes we consider it inefficient, sometimes
*Q And by 1986, you have been running the MIA for 18 years? *Q Here, you were just a member of the Board? we consider it foolish, but we know there is reason in this apparent
madness of the COA and so we comply?
WITNESS A Yes, your Honor.
A Yes, your Honor.
A Yes, your Honor. *Q So you were not running the commission?
*Q And more than anything else the COA is ever anxious for proper
documentation and proper supporting papers?
*Q And prior to your Joining the MIA, did you ever work for the A Yes, your Honor.
government?

78
A Yes, your Honor.
*Q Any other entity?

Page
A No, your Honor.
*Q Sometimes, regardless of the amount?
A Yes, your Honor.
*Q Now, you have P55 million which you were ordered to deliver in cash,
not to the creditor of the particular credit, and to be delivered in armored
cars to be acknowledged only by a receipt of a personal secretary. After
almost 18 years in the government service and having had that much time
in dealing with COA people, did it not occur to you to call a COA
representative and say, "What will I do here?"
A I did not, your Honor.
*PJ GARCHITORENA
*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 Manager's checks and
you were accommodated by the PNB Office at Nichols without any
internal documentation to justify your request for Manager's 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
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
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
Thank you very much, Mr. Tabuena. You are excused. . . . 42
(PERALTA)
(He testified on direct examination that he co-signed with Tabuena a
memorandum request for the issuance of the Manager's Check for P5
Million 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 affirmed having accompanied Tabuena at the PNB Villamor
Branch to withdraw the P5 Million, but denied having misappropriated
for his own benefit said amount or any portion thereof.)
CROSS-EXAMINATION BY PROS VIERNES
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 Manager's check
in the amount of P5 million?
A At that time I was the Acting Financial Services Manager of MIAA, sir,
and all withdrawals of funds should have my signature because I was one
of the signatories at that time.
Q As Acting Financial Services Manager of MIAA, you always co-sign with
Mr. Tabuena in similar requests for the issuance of Manager's checks by
the PNB?
A That is the only occasion I signed, sir.
Q Did you say you were ordered by Mr. Tabuena to sign the request?
79
A Yes, sir, and I think the order is part of the exhibits and based on that
Page
order, I co-signed in the request for the issuance of Manager's check in
favor of Mr. Luis Tabuena.
PROS VIERNES A Yes, sir, it was a normal procedure for the MIAA to prepare the Financial Q You also stated that you were with Mr. Tabuena when you withdrew
Statement on or before the 4th Friday of the month because there will the amount of P5 million from the PNB Extension Office at Villamor?
Q Was there a separate written order for you to co-sign with Mr. be a Board of Directors Meeting and the Financial Statement of the prior
Tabuena? month will be presented and discussed during the meeting. A Yes, sir.

WITNESS *PJ GARCHITORENA Q Why was it necessary for you to go with him on that occasion?

A Yes, sir, an order was given to me by Mr. Tabuena. *Q This matter of preparing Financial Statement was not an annual A Mr. Tabuena requested me to do the counting by million, sir. So what I
activity but a monthly activity? did was to bundle count the P5 million and it was placed in two (2)
*PJ GARCHITORENA peerless boxes.
A Yes, your Honor.
Was that marked in evidence? Q Did you actually participate in the counting of the money by bundles?
*Q This Financial Statement you prepared in January of 1986
recapitulated the financial condition as of the end of the year? A Yes, sir.
WITNESS

A Yes, your Honor. Q Bundles of how much per bundle?

Yes, your Honor.

PJ GARCHITORENA A If I remember right, the bundles consisted of P100s and P50s, sir.
*PJ GARCHITORENA

Continue. Q No P20s and P10s?

What exhibit?

PROS VIERNES A Yes, sir, I think it was only P100s and P50s.
WITNESS

Q You made mention of a request for Escalation Clause by former *PJ GARCHITORENA
I have here a copy, your Honor. This was the order and it was marked as
Minister Ongpin. Did you personally see that request?
exhibit "N".
*Q If there were other denominations, you can not recall?
A When this order coming from Mr. Tabuena was shown to me, I was
PROS VIERNES
shown a copy, sir. I have no file because I just read it.
A Yes, your Honor.
It was marked as Exhibit "M", your Honor.
Q It was Mr. Tabuena who showed you the letter of Minister Ongpin?
PROS VIERNES
Q How did you know there was an existing liability of MIAA in favor of
A Yes, sir.
PNCC at that time? Q In how many boxes were those bills placed?

*PJ GARCHITORENA
A Because prior to this memorandum of Mr. Tabuena, we prepared the A The P5 million were placed in two (2) peerless boxes,
financial statement of MIAA as of December 31, 1985 and it came to my
attention that there was an existing liability of around P27,999,000.00, And that will be Exhibit?
Q And you also went with Mr. Tabuena to Aguado?
your Honor.
ATTY. ANDRES
A No, sir, I was left behind at Nichols. After it was placed at the trunk of
Q When was that Financial Statement prepared? the car of Mr. Tabuena, I was left behind and I went back to my office at
Exhibit "2" and "2-A", your Honor. MIA.
A I prepared it around January 22 or 24, something like that, of 1986, sir.

80
PROS VIERNES Q But the fact is that, this P5 million was withdrawn at passed 5:00 o'clock

Page
Q Is it your usual practice to prepare the Financial Statement after the in the afternoon?
end of the year within three (3) weeks after the end of the year?
A I started counting it I think at around 4:30, sir. It was after office hours. *AJ DEL ROSARIO *Q There are no other separate documents as part of the application for
But then I was there at around 4:00 o'clock and we started counting at Manager's Check?
around 4:30 p.m. because they have to place it in a room, which is the *Q Did you not consider it as odd that your obligation with the PNCC had
office of the Manager at that time. to be paid in cash? A Yes, your Honor, there was none.

Q And Mr. Tabuena left for Malacañang after 5:00 o'clock in the WITNESS
afternoon of that date?
A Based on the order of President Marcos that we should pay in cash, it
A Yes, sir. After we have counted the money, it was placed in the peerless was not based on the normal procedure, your Honor.
boxes and Mr. Tabuena left for Malacanang.
*Q And, as Acting Financial Services Manager, you were aware that all
PROS VIERNES disbursements should be covered by vouchers?
Q And you yourself, returned to your office at MIA? 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
WITNESS this can be covered by Journal Voucher also.
A Yes, sir. *Q Was such payment of P5 million covered by a Journal Voucher?
*AJ DEL ROSARIO
*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?

Q Until what time do you hold office at the MIA? A Yes, your Honor. A Your Honor, a Journal Voucher was prepared for that.

A Usually I over-stayed for one (1) or two (2) hours just to finish the paper *Q Did you present that Journal Voucher here in Court? *Q How about a disbursement voucher?
works in the office, sir.
A We have a copy, your Honor. A Inasmuch as this was a request for Manager's check, no disbursement
Q So, even if it was already after 5:00 o'clock in the afternoon, you still voucher was prepared, your Honor.
went back to your office at MIA? *Q Do you have a copy or an excerpt of that Journal Voucher presented
in Court to show that payment? *AJ DEL ROSARIO
A Yes, sir.
A We have a copy of the Journal Voucher, your Honor. *Q Since the payment was made on January 31, I986, and that was very
PROS VIERNES close to the election held in that year, did you not entertain any doubt
that the amounts were being used for some other purpose?
*Q Was this payment of P5 million ever recorded in a cashbook or other
That will be all, your Honor. accounting books of MIAA ?
ATTY. ESTEBAL
PJ GARCHITORENA A The payment of P5 million was recorded in a Journal Voucher, your
Honor. With due respect to the Honorable Justice, we are objecting to the
question on the ground that it is improper.
Redirect?
*PJ GARCHITORENA
*AJ DEL ROSARIO
ATTY. ESTEBAL
*Q In other words, the recording was made directly to the Journal?
I will withdraw the question.
No redirect, your Honor.
WITNESS

81
*PJ GARCHITORENA
*PJ GARCHITORENA
A Yes, your Honor.

Page
What is the ground for impropriety?
Questions from the Court.
ATTY. ESTEBAL
This is not covered in the direct examination, and secondly, I don't think
there was any basis, your Honor.
*PJ GARCHITORENA
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 Manager's 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 A Yes, your Honor.
With due respect to the Honorable Justice, the question calls for a *Q Therefore, when you said that a Journal Voucher here is proper, you
conclusion of the witness. are saying it is proper only because of the exceptional nature of the
transactions?
*PJ GARCHITORENA
A Yes, your Honor.
Considering that tire witness is an expert, witness may answer.
*Q In other words, as an Accountant, you would not normally authorize
WITNESS such a movement of money unless it is properly documented?
A The order of president Marcos was legal at that time because the order ATTY. ESTEBAL
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 With due respect to the Honorable Presiding Justice, I think the question
know for a fact also that there was an existing P.D. wherein the President is misleading because what the witness stated is. . .
of the Republic of the Philippines can transfer funds from one office to
another and the PNCC is a quasi government entity at that time. *PJ GARCHITORENA
*AJ HERMOSISIMA Be careful in your objection because the witness understands the
language you are speaking, and therefore, you might be coaching him.
*Q Are you saying that this transaction was made on the basis of that P.D.
which you referred to? ATTY. ESTEBAL
A I am not aware of the motive of the President, but then since he is the No, your Honor. I am also an accountant that is why I could say that. . .
President of the Philippines, his order was to pay the PNCC through the
Office of the President, your Honor.
*PJ GARCHITORENA
*Q As Financial Manager, why did you allow a payment in cash when
Please be simple in your objection.
ordinarily payment of an obligation of MIAA is supposed to be paid in
check?
ATTY. ESTEBAL
A I caused the payment through the name of Mr. Tabuena because that
was the order of Mr. Tabuena and also he received an order coming from The question is misleading on the ground that what the witness stated
the President of the Philippines at that time, your Honor. earlier is that the Journal Voucher in this particular case was supported,
your Honor.
*PJ GARCHITORENA
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals
to correct certain statements of accounts earlier made in the same Overruled, may answer.
journal?
WITNESS
In other words, really what you are telling us is that, a Journal Voucher is
82
to explain a transaction was otherwise not recorded. A The transaction was fully documented since we have the order of the
General Manager at that time and the order of President Marcos, your
Page
WITNESS Honor.
*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?
WITNESS
A As far as I am concerned, your Honor, inasmuch as we have a liability ATTY. ESTEBAL
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 Yes, your Honor.
Marcos, and also the memorandum of Minister Ongpin are sufficient to
cause the payment of P5 million.
*PJ GARCHITORENA
*PJ GARCHITORENA
*Q It is true that President Marcos was the President, but he was not an
officer of the MIAA, was he?
*Q This Presidential Decree which authorizes the President to transfer
funds from one department to another, is this not the one that refers to
A No, your Honor.
the realignment of funds insofar as the Appropriation Act is concerned?
*Q In fact, for purposes of internal control, you have different officers
WITNESS
and different officials in any company either government or private,
which are supposed to check and balance each other, is it not?
A Because at that time, your Honor, I have knowledge that the President
is authorized through a Presidential Decree to transfer government funds
A Yes, your Honor.
from one office to another.
*Q So that when disbursements of funds are made, they are made by
*PJ GARCHITORENA
authority of not only one person alone so that nobody will restrain him?
*Q Under the Appropriation Act. Are payments of debts of the MIAA
A Yes, your Honor.
covered by the Appropriation Act?
*Q These checks and balances exist in an entity so that no one person can
A I think the liability was duly recorded and appropriations to pay the
dispose of funds in any way he likes?
amount is. . . . (interrupted)
A Yes, your Honor.
*PJ GARCHITORENA
*Q And in fact, the purpose for having two (2) signatories to documents
*Q Tell me honestly, is your answer responsive to the question or are you
and negotiable documents is for the same purpose?
just throwing words at us in the hope that we will forget what the
question is?
A Yes, your Honor.
A No, your Honor.
*PJ GARCHITORENA
*Q Are you telling us that the debts incurred by MIAA ate covered by the
*Q In other words, the co-signatories counter check each other?
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? WITNESS
A I was aware of that Decree, your Honor. A Yes, your Honor.
*PJ GARCHITORENA *Q In your case, you would be the counter check for Mr. Tabuena?
83
Page
Mr. Estebal, will you include in your memorandum what are the Decrees A Yes, your Honor.
authorizing this movement of funds?
*Q In the 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?
A Yes, your Honor.
*Q Therefore, as a co-signatory, you expected to exercise your judgment
as to the propriety of a particular transactions?
A Yes, your Honor.
*Q And this is something you know by the nature of your position and
because you are a Certified Public Accountant?
A Yes, your Honor.
*AJ DEL ROSARIO
*Q You admit that the payment of P5 million and P50 million were
unusual in the manner with which they were disposed?
A Yes, your Honor.
*Q Did you submit a written protest to the manner in which such amount
was being disposed of?
A A written protest was not made, your Honor, but I called the attention
of Mr. Tabuena that since this payment was upon the order of President
Marcos, then I think as President he can do things which are not ordinary.
*Q If you did not prepare a written protest, did you at least prepare a
memorandum for the record that this was an extra-ordinary transaction?
A I called the attention of Mr. Tabuena that this was an extra-ordinary
transaction and no written note, your Honor.
PJ GARCHITORENA
43
Thank you very much Mr. Peralta, you are excused. . . .
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 examples. Based on the evidence on record, and on the admission of
"clarificatory" questions, 45 the right should be sparingly and judiciously Tabuena himself, the P55 million was delivered to the President's Office
used; for the rule is that the court should stay out of it as much as thru Mrs. Gimenez, in obedience to the Presidential directive. One
possible, neither interfering nor intervening in the conduct of the Sandiganbayan Justice, however, hurled the following questions to
trial.46 Here, these limitations were not observed. Hardly in fact can one Peralta:
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 AJ DEL ROSARIO
case against Tabuena and Peralta when the Justices cross-examined the Q: Since the payment was made on January 31, 1986, and that was very
witnesses, their cross- examinations supplementing those made by close to the election held in that year, did you not entertain any doubt
Prosecutor Viernes and far exceeding the latter's questions in length. The that the amounts were being used for some other purposes?
"cold neutrality of an impartial judge" requirement of due process was ATTY. ESTEBAL
certainly denied Tabuena and Peralta when the court, with its With due respect to the Honorable Justice, We are objecting to the
overzealousness, assumed the dual role of magistrate and advocate. In question on the ground that it is improper.
this connection, the observation made in the Dissenting Opinion to the AJ DEL ROSARIO
effect that the majority of this Court was "unduly disturbed" with the I will withdraw the question.
number of court questions alone, is quite inaccurate. A substantial PJ GARCHITORENA
portion of the TSN was incorporated in the majority opinion not to focus What is the ground for impropriety?
on "numbers" alone, but more importantly to show that the court ATTY. ESTEBAL
questions were in the interest of the prosecution and which thus depart This is not covered in the direct examination, and secondly, I don't think
from that common standard of fairness and impartiality. In fact, it is very there was any basis, Your Honor.
difficult to be, upon review of the records, confronted with "numbers" PJ GARCHITORENA
without necessarily realizing the partiality of the Court. In "US v. De Sisto" Considering the withdrawal of the question, just make the objection on
(2 Cir., 1961, 289 F 2d 833), for example, a new trial was required because record.
the trial judge, as in this case, indulged in extensive questioning of Nothing from the preceding questions of counsels or of the
defendant and his witnesses, and the reviewing court also had to amplify court would serve as basis for this question. How then, can this
on "numbers" to bolster this. It was pointed out in the "De Sisto" case be considered even relevant? What is the connection between
that the judge asked 3,115 questions of all witnesses, the prosecutor the payment made to the President's office and the then
asked but 1,381, defense counsel 3,330. The judge's questions to the forthcoming presidential "snap election"? In another instance,
defendant De Sisto totalled 306, the prosecutor's 347, and the defense consider the following questions of Presiding Justice
counsel's, 201. After referring to these figures, the court stated: Garchitorena:
. . . It is indeed an impressive proportion, but no such *PJ GARCHITORENA
mathematical computation is of itself determinative. However,
taking all this in conjunction with the long and vigorous
*Q Mr. Peralta, are not Journal
examination of the defendant himself by the judge, and the
Vouchers merely entries in the
repeated belittling by the judge of defendant's efforts to
Journals to correct certain
establish the time that Fine left the pier, we fear that in its zeal
statements of accounts earlier
for arriving at the facts the court here conveyed to the jury too
made in the same journal?
strong an impression of the court's belief in the defendant's
probable guilt to permit the jury freely to perform its own
function of independent determination of the facts. . . . xxx xxx xxx
The majority believes that the interference by the Sandiganbayan Justices *Q In other words, really what
was just too excessive that it cannot be justified under the norm applied you are telling us is that, a Journal
to a jury trial, or even under the standard employed in a non-jury trial Voucher is to explain a
84
where the judge is admittedly given more leeway in propounding transaction was otherwise not
recorded.
questions to clarify points and to elicit additional relevant evidence. At
Page
the risk of being repetitious, we will amplify on this via some specific
xxx xxx xxx WITNESS
*Q Therefore, when you said that a Journal Voucher A The transaction was fully documented since we
here is proper, you are saying it is proper only have the order of the General Manager at that time
because of the exceptional nature of the and the order of President Marcos, your Honor.
transactions?
*Q Are you saying the Order of the General Manager
xxx xxx xxx is an adequate basis for the movement of money?
*Q In other words, as an Accountant, you would not *Q We are not talking of whether or not there was a
normally authorize such a movement of money liability. What we are saying is, is the order of the
unless it is properly documented? General Manager by itself adequate with no other
supporting papers, to justify the movement of funds?
ATTY. ESTEBAL
*PJ GARCHITORENA
With due respect to the Honorable Presiding Justice,
I think the question is misleading because what the You keep flooding us with details we are not asking
witness stated is . . . for. We are not asking you whether or not there was
valid obligation. We are not asking you about the
*PJ GARCHITORENA 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?
Be careful in your objection because the witness
understands the language you are speaking, and
therefore, you might be coaching him. *PJ GARCHITORENA
ATTY. ESTEBAL 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
No, your Honor. I am also an accountant that is why I
to protect yourself. We are aware of your statement
could say that . . .
that there are all of these memoranda.
*PJ GARCHITORENA
*Q By your disbursement of such amount, you are
saying that the order of Mr. Tabuena by itself is
Please be simple in your objection. adequate?
ATTY. ESTEBAL
*PJ GARCHITORENA
The question is misleading on the ground that what *Q This Presidential Decree which authorizes the
the witness stated earlier is that the Journal Voucher
President to transfer funds from one department to
in this particular case was supported, your Honor.
another, is this not the one that refers to the
realignment of funds insofar as the Appropriation Act
*PJ GARCHITORENA is concerned?
Overruled may answer. *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 xxx 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 in 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?
*Q These checks and balances exist in an entity so
85
that no one person can dispose of funds in any way
he likes?
Page
 *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 Opinion's focus on the distinction between the two
kinds of trial to justify the Sandiganbayan's 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
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 people's 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 petitioner's 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
86
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
Page
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.
(8) G.R. No. 132926 July 20, 2001
ELVIRA AGULLO, petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE
PHILIPPINES, respondents.
BUENA, J.:
Charged with, tried and convicted in Criminal Case No. 13579 for
malversation of public funds, herein petitioner Elvira Agullo, erstwhile
Disbursing Officer of the then Ministry of Public Works and Highways
(MPWH), Regional Office No. VIII, Candahug, Palo, Leyte, now comes
before the High Court to assail the Decision1 of the Sandiganbayan
promulgated on 16 March 1992, and its Resolution dated 11 March 1998,
denying petitioner’s motion for reconsideration2 but reducing the
penalty imposed on petitioner as follows:
"WHEREFORE, the Court finds the accused Elvira S. Agullo
guilty beyond reasonable doubt of the crime of Malversation of
Public Funds, defined and penalized under Article 217,
paragraph 4 of the Revised Penal Code. [There being neither
mitigating nor aggravating circumstances, no evidence having
been adduced respecting partial or full restitution of the
amount malversed,] Considering the absence of any
aggravating circumstances and her full restitution by salary
deduction, the accused Elvira S. Agullo should be, as she is,
hereby sentenced to the indeterminate penalty of, from TEN
(10) YEARS and ONE (1) DAY of PRISION MAYOR, as MINIMUM;
to [EIGHTEEN (18) YEARS, EIGHT (8) MONTHS AND ONE (1) DAY
OF RECLUSION TEMPORAL] SEVENTEEN (17) YEARS, FOUR (4)
MONTHS and ONE (1) DAY of RECLUSION TEMPORAL, AS
MAXIMUM, with the accessory penalties of the law; to pay a
fine in the sum of P26,404.26 without subsidiary imprisonment
in case of insolvency; to suffer the penalty of Perpetual Special
Disqualification and to pay the costs." (Emphasis ours)
In an information3 dated 30 September 1988, herein petitioner was
charged with the crime of malversation of public funds, committed as
follows:
"That on or about the period October 22, 1985 to July 14, 1986,
inclusive or within said dates in the Municipality of Palo,
Province of Leyte, Philippines, and within the jurisdiction of the
Honorable Court, the above-named accused, being then the
disbursing officer of then Ministry of Public Works and
Highways, Regional Office No. VIII, Candahug, Palo, Leyte,
charged with the official custody of public funds thus paid,
collected and received by her in her official capacity, and by
reason of which duties she is accountable thereof, taking
advantage of her official position, did then and there wilfully,
unlawfully and feloniously take, convert and misappropriate for
her own personal use and benefit the public funds she had in
her possession in the amount of Twenty Six Thousand Four
Hundred Four Pesos and 26/100 (P26,404.26), belonging to the
government of the Republic of the Philippines, to the damage
and prejudice of the latter in the aforestated amount.
"Contrary to law."
Upon arraignment, herein petitioner Agullo, assisted by counsel de
officio Antonio Manzano, pleaded not guilty4 to the charge, after which
the Sandiganbayan conducted a pre-trial on 11 February 1990 and issued
the following Pre-Trial Order:5
"When this case was called for pre-trial, the accused personally
and through her counsel Atty. Antonio Manzano of the CLAO
readily entered into stipulations insofar as her official position
in government as well as the fact of audit of her accounts are
concerned, including therewith the admission that, in all
respects the Cash Production Notice and the Examination of
her Cash and Accounts which the government marked as
Exhibit ‘A’ was faithful reproduction of the original, and insofar
as the contents thereof are concerned, are correct. The
accused likewise admitted that she had received a letter of
demand, said letter dated July 14, 1986 marked as exhibit ‘B’.
With this the accused stated that her defense was premised on
her having suffered a stroke on October 22, 1985 as a result of
which the amount subject of the shortage found in her audit
had been lost.
"The accused also indicated that not only had she immediately
replied to the letter by various communications by her or in her
behalf protesting the withholding of various amounts due her
by way of salaries on the premise that the loss of the amount
subject matter of the Information was not chargeable to her as
a personal liability. The accused has likewise informed the
Court that prior to the incident on October 22, 1985, she had
been audited on May 27, 1985 and, after the incident, on
December 23, 1985 although she concedes she was also
audited on July 14, 1986.
"Considering that all the documents necessary for the defense
of the accused are still to be organized, Atty. Manzano is given
ten (10) days from today within which to prepare a proposal for
stipulations of facts and, if that is not possible, at least a
complete outline of his case together with the marking of the
documents he wishes to present which the prosecution might
not admit as to the substance thereof though the genuineness
of the documents presented might be conceded.
"With the above, the prosecution may now rest its case and the
presentation of the evidence for the defense may take place on
April 5 and 6, and May 17 and 18, 1990, at 8:00 o’ clock in the
morning and 2:00 o’ clock in the afternoon.
"The setting for tomorrow is cancelled.
"SO ORDERED." (Emphasis ours)
As borne by the records, the charge of malversation against petitioner
germinated from an audit conducted on 14 July 1986 by Ignacio Gerez,
Auditing Examiner III, as a result of which a P26,404.26 cash shortage was
discovered on petitioner’s accountability. On the same date, Gerez
informed petitioner of said finding of cash shortage and required the
latter, through a letter of demand,6 to "produce immediately the missing
funds." Further, petitioner was required to submit within 72 hours from
receipt a written explanation of the cash shortage.
In a letter7 dated 25 August 1986, addressed to the Resident Auditor of
the MPWH, petitioner complied with the directive by explaining that the
cash shortage was, in effect, due to a "fortuitous event" where the
amount could have been stolen/taken by somebody on the day she
suffered a stroke on 22 October 1985, near the corner of Juan Luna Street
and Imelda Avenue, Tacloban City.
In the course of the pre-trial, petitioner Agullo conceded the fact of audit
87
and admitted8 the findings in the Report of Cash Examination and the
facts set forth in the Letter of Demand. In effect, she admitted the fact of
Page
shortage in the amount stated in the Information. Notwithstanding,
petitioner Agullo, at all stages of the criminal indictment, persistently
professed her innocence of the charge and categorically denied having
malversed or converted the public funds in question for her own personal
use or benefit.9
With petitioner’s admission of the fact of cash shortage, the prosecution
then rested its case.10 For its part, the defense, in its bid to overturn the
presumption of malversation and shatter the prima facie evidence of
conversion, offered the testimony of the following witnesses: petitioner
Elvira Agullo; Rene Briones Austero, Cashier III of the Department of
Public Works and Highways (DPWH), Region VIII; and Engracia
Camposano-Camaoy, Barangay Captain of Hinabuyan, Dagame, Leyte.
During trial, the defense offered to present the testimony of witness
Austero for the purpose of proving that an amount equal
to P26,722.0511 was withheld from the salary and other compensation of
petitioner Agullo. Further, the defense offered the testimony of witness
Barangay Captain Camaoy for the purpose of establishing that "the
accused suffered a heart attack (stroke) on October 22, 1985; that on
June 30, 1986, the accused informed her that the accused lost the money
for which she (was being) subjected to criminal prosecution x x x; and that
between October 22, 1985 and June 30, 1986, there had been no demand
upon the accused to produce the money for which she was declared
short."12
Additionally, the defense presented the following documentary
evidence,13 all of which were admitted by the Sandiganbayan:
"Exhibit ‘1’ – Letter dated 25 August 1986 by accused to the
Resident Auditor MPWH, Regional Office No. 8, Candahug,
Palo, Leyte;
"Exhibit ‘2’ – Letter dated 22 August 1987 by accused to Engr.
Alfredo P. Torres, Regional Director;
"Exhibit ‘3’ – Medical Certificate dated 05 August 1986, issued
by Dr. Juan T. Abando, M.D., St. Paul’s Hospital, Tacloban City;
"Exhibit ‘3-A’ – Verified Medical Certificate dated 19 January
1986, issued by Dr. Juan Abando, notarized on page 02;
"Exhibit ‘4’ – Letter dated 26 December 1986 by accused to the
Regional Director;
"Exhibit ‘5’ – Letter dated 19 February 1987 to the Regional
Director by Atty. Eric T. De Veyra;
"Exhibit ‘6’ – Letter dated 15 April 1987 by accused to the
Regional Director;
"Exhibit ‘7’ – Letter dated 01 September 1987 of Director
Alfredo Torres of DPWH to the Regional Director COA;
"Exhibit ‘8’ – Letter of Accused dated 26 November 1987;
"Exhibit ‘9’ – Affidavit of accused Elvira Agullo;
"Exhibit ‘10’ – Affidavit of witness Engracia Camaoy;
"Exhibit ‘11’ – Letter-Request dated 04 May 1988 of accused to
the Regional Director;
"Exhibit ‘12’ – Certification by Mauricio Pacatang;
"Exhibit ‘13’ – Protest of accused against the appointment of
Sylvia de la Rosa;
"Exhibit ‘14’ – Letter dated 25 February 1987 to the Manager,
Employees Compensation Department, GSIS, Metro Manila;
"Exhibit ‘15’ – Initial Approval of the Employees Compensation
Department, GSIS;
"Exhibit ‘16’ – Hospitalization Claim for payment of accused;
"Exhibit ‘17’ – Report of Injury signed and approved by Pablo P.
Burgos, Regional Engineering Coordinator and Head of Office;
"Exhibit ‘18’ – Certification issued by PNB Tacloban, thru its
Asst. Manager B.L. Telmo;
"Exhibit ‘19’ – Memorandum to accused dated 02 April 1984;
"Exhibit ‘20’ – Memorandum dated 05 May 1990."
At the witness stand, petitioner Agullo unrelentingly maintained her
innocence and vehemently denied the accusation against her. Thus,
according to petitioner, in the morning of 21 October 1985, she reported
for work and prepared an inventory of her cash accountability14 as
Disbursing Officer15 of the MPWH Regional Office, Candahug, Palo, Leyte.
On the same day, petitioner received around thirteen (13) checks in the
form of cash advances in her name totaling P26,076.87,16 which amount
represented salaries of MPWH officials and employees.
Around 1:30 PM, petitioner, together with Benjamin Veridiano, driver of
MPWH Finance and Management Division, proceeded to the Philippine
National Bank (PNB) Tacloban City Branch, on board the MPWH official
vehicle, to encash the aforesaid checks. Upon encashment of the checks,
petitioner then put the money inside a PNB envelope which she further
placed in her bag. From the PNB, petitioner-- who boarded the official
vehicle driven by Veridiano for the purpose of proceeding further to the
MPWH Regional Office—felt dizziness, chest pain and nausea. As a result
of her condition, petitioner Agullo requested driver Veridiano to drop her
off at petitioner’s residence located at 109 Juan Luna Street-- about half
a kilometer away from the PNB.17
In the morning of the following day, 22 October 1985, petitioner – upon
realizing that it was then the third-week payday of the month, and
burdened with the thought that she failed to give the salary of the
permanent employees – strove to report for work despite her weak
physical condition. Petitioner Agullo testified that she left her residence
alone and brought with her the bag containing the money which she
encashed the previous day from the PNB.18
Upon leaving the house with the money inside her bag, she walked the
stretch of Juan Luna Street and was able to reach almost the corner of
Juan Luna and Imelda Avenue19 a distance of around 50 meters away
from her residence20 when she was stricken with deep chest pain21 and
experienced dizziness; her vision blurred and "the right part of (her) body
(became) heavy" to the point that she "could not move anymore." At this
point, she collapsed and lost consciousness.22
In the afternoon of the same day, she found herself in a hospital bed of
St. Paul’s Hospital located about a block away from petitioner’s
residence. Upon inquiry, she was informed that a certain Metro Tacloban
Aide by the name of Teresa Lorenzo came to her rescue when she fainted,
assisted in rushing her to the hospital, and informed her family about
Agullo’s dire condition and the unfortunate event that befell
her.23 Petitioner was confined in St. Paul’s Hospital for over a week – from
22 October 1985 to 01 November 198524 - under the care of her attending
physician, Dr. Juan Abando, who issued the corresponding Medical
Certificate pregnant with the following findings:
"X X X Hypertension complicated with Cerebro Vascular
Accident (CVA), Rt. Hemiparesis and Urinary Infection.
"Condition started apparently 20 hrs. before admission as
moderate headache and dizziness, associated with blurring of
vision and nausea. Fifteen hrs. prior to admission, she felt
weakness of her right half of her body and slurring of speech.
Had history of high blood pressure taken last April 1985. B/P=
190/120. On admission B/P= was 230/120; PR= 83/min.; RR=
20/min.
"Pertinent findings: conscious, coherent, slurred speech, rt.
Hemiplegia.
"Diagnosis: = Malignant hypertension.
= CVA with Right Hemiplegia.
= Urinary Tract Infection."
As to petitioner’s medical history and physical condition after her stroke,
the Sandiganbayan, in its decision, observed from the records:
"X X X In the past, the accused had likewise suffered a stroke
and had undergone medical treatment. A medical certificate,
marked as Exhibits "3" and "3-A", attest(s) to the fact that she
had a history of high blood pressure and had been undergoing
88
treatment for the said malady. Since her sudden breakdown on
October 22, 1985, the right part of her body became paralyzed
Page
and her speech has been impaired. She was advised by her
 doctor to undergo physical therapy and to take medicine
regularly. She was advised not to report for work during such
time that she was under recuperation. Only on February 2,
1986 did she start to report for work, although at irregular
intervals, until the date of the audit, July 14, 1986."
Striking down the defense as "incredible and without basis," the
Sandiganbayan rendered its assailed decision, convicting petitioner
Agullo of the crime of malversation of public funds, ratiocinating
principally that "no evidence has been presented linking the loss of the
government funds with the alleged sudden heart attack of the accused
(herein petitioner)."
We do not agree.
By and large, the pieces of evidence presented against petitioner in this
case do not fulfill the test of moral certainty and may not be deemed
sufficient to support a conviction.25 Records reveal that evidence for the
prosecution consisted solely of the Report of Cash Examination,26 dated
14 July 1986, which was presented by the prosecution to prove the cash
shortage in the amount of P26,404.26, on petitioner Agullo’s
accountability as Disbursing Officer of the then MPWH. Likewise, the
prosecution presented the Letter of Demand27 dated 14 July 1986 signed
by Auditing Examiner III Ignacio Gerez.
Aside from the aforementioned documents, the prosecution opted not
to present a single witness to buttress its bid for conviction and relied
merely on the prima facie evidence of conversion or presumption of
malversationunder Article 217, paragraph (4) of the Revised Penal Code,
to wit:
"ART. 217. Malversation of public funds or property—
Presumption of malversation—
X X X "The failure of a public officer to have duly forthcoming
any public funds or property with which he is chargeable, upon
demand by any duly authorized officer, shall be prima facie
evidence that he has put such missing funds or property to
personal uses."
Stated otherwise, the evidence for the prosecution, upon which the
Sandiganbayan riveted its judgment of conviction, was limited to
documents to wit, the Report of Cash Examination and Letter of Demand.
As could be readily gleaned from the assailed decision, the verdict
adjudging herein petitioner guilty of the crime of malversation was
anchored solely on the presumption provided under Article 217,
paragraph 4 of the Revised Penal Code, which prima facie evidence, in
turn, was rooted loosely on the documentary evidence presented by the
prosecution, to wit; the Report of Cash Examination and Letter of
Demand—pieces of evidence which the defense concededly admitted,
but which, to our mind, do not suffice to convict the petitioner beyond
reasonable doubt of the crime charged.
Thus, in a string of categorical pronouncements, this Court has
consistently and emphatically ruled that the presumption of
conversion incarnated in Article 217, paragraph (4) of the Revised Penal
Code is — by its very nature — rebuttable. To put it differently, the
presumption under the law is not conclusive but disputable
by satisfactory evidence to the effect that the accused did not utilize the
public funds or property for his personal use, gain or benefit.
Accordingly, if the accused is able to present adequate evidence that
can nullify any likelihood that he had put the funds or property to
personal use, then that presumption would be at an end and the prima
facie case is effectively negated. This Court has repeatedly said that when
the absence of funds is not due to the personal use thereof by the
accused, the presumption is completely destroyed; in fact, the
presumption is never deemed to have existed at all.28
Applying the foregoing principle, the prosecution in the instant case upon
whose burden, as in Diaz vs. Sandiganbayan,29 was laden the task of
establishing by proof beyond reasonable doubt that petitioner had
committed the offense charged, mainly relied on the statutory
presumption aforesaid and failed to present any substantial piece of
evidence to indicate that petitioner had used the funds for personal
gain.
Worth noting is that the Sandiganbayan, in its impugned decision,
admitted that "conversion or the placing of malversed government
funds to personal uses has, indeed, not been proven in the case at
bar.30" Perhapsrealizing such gaping hole, the Sandiganbayan
nonetheless leaped into the conclusion, albeit erroneous, that herein
petitioner was just the same guilty of malversation invoking the prima
facie evidence stated in Article 217, paragraph (4) of the Revised Penal
Code.
On this score, the rule of general application is that the factual findings
of the Sandiganbayan are conclusive on this court. However, such rule
admits of settled exceptions, among others: (1) the conclusion is a finding
grounded entirely on speculation, surmise and conjectures; (2) the
inference made is manifestly mistaken; (3) there is grave abuse of
discretion; (4) the judgment is based on misapprehension of facts; and
(5) the findings of fact of the Sandiganbayan are premised on a want of
evidence and are contradicted by evidence on record.31
On this matter, the Sandiganbayan’s conclusion that "there is no
evidence to show that the accused was then carrying the sum of
P26,404.26 in her person when she allegedly collapsed at Juan Luna
Street, Tacloban City," is to say the least, without factual basis and not
duly supported by evidence. On the stark contrary, the records are
extant, as petitioner Agullo, in fact, testified on the witness stand that she
had the money with her when she suffered a stroke and collapsed on the
streets of Tacloban City on 22 October 1985. Records likewise reveal that
the amount of P327.39, which is the difference between
P26,404.2632 and P26,076.87,33 represents the salary of Mr. Alcober, Jr.,
Administrative Officer of the DPWH in Candahug, who made a telephone
call to petitioner for the latter to bring the sum of P327.39, together with
the payroll.
In the case before us, the Sandiganbayan undoubtedly disregarded or
overlooked certain evidence of substance which, to a large extent, bear
considerable weight in the adjudication of petitioner’s guilt or the
affirmation of her constitutional right to be presumed innocent until
proven otherwise.
Upon thorough scrutiny of the evidence adduced by both prosecution
and defense, we hold that petitioner Agullo has satisfactorily overcome
and rebutted by competent proof, the prima facie evidence of
conversion so as to exonerate her from the charge of malversation. To
this end, petitioner presented evidence that satisfactorily prove that not
a single centavo of the missing funds was used for her own personal
benefit or gain.
True enough, the evidence adduced by the defense reveals sufficient
circumstances to establish the strongest degree of probability that the
public funds subject of the criminal indictment for malversation was lost
during that fateful day of 22 October 1985, where petitioner Agullo
suffered a stroke on the streets of Tacloban City as she was then on her
way to the MPWH Regional Office.
In fact, the records though insensate, clearly reveal that the prosecution
admitted that petitioner suffered a stroke on the streets of Tacloban on
22 October 1985. As to the prosecution’s allegation that no evidence
exists regarding loss of the public funds, this postulation is belied by the
records as petitioner herself testified on the stand that she had the
money subject of inquiry when she collapsed and lost consciousness as a
result of the stroke.
To us, this circumstance – coupled with the other peculiarities attendant
89
in the instant case and further considering the palpable failure of the
prosecution to adduce other evidence to clearly
Page
establish conversion – "suffice to make the mind uneasy as
to Agullo’s guilt, notwithstanding the prima facie evidence established by
law against herein petitioner, which by no means dispenses with the need
of proving guilt beyond reasonable doubt."34 After all, mere absence of
funds is not sufficient proof of conversion. Neither is the mere failure of
the accused to turn over the funds at any given time sufficient to make
even a prima facie case. Conversion must be affirmatively proved, either
by direct evidence or by the production of facts from which conversion
necessarily follows.35
Truly, these serve as strong considerations that seriously impair the basis
upon which is founded the legal presumption of personal
misappropriation of money or property of accountable officers who fail
to have forthcoming, such money or property when so demanded by a
duly authorized official.36 Verily, a finding of prima facie evidence of
accountability does not shatter the presumptive innocence the accused
enjoys because, before prima facieevidence arises, "certain facts [have
still to be] proved"; the trial court cannot depend alone on such an
evidence, because precisely, it is merely prima facie. It must still satisfy
that the accused is guilty—beyond reasonable doubt—of the offense
charged. Neither can it rely on the weak defense the latter may adduce.37
Notably, the Sandiganbayan, in convicting petitioner, obviously relied
more on the flaws and deficiencies in the evidence presented by the
defense, not on the strength and merit of the prosecution’s
evidence.38 This course of action is impermissible for the evidence of the
prosecution clearly cannot sustain a conviction "in an unprejudiced
mind."39
All told, this Court, through the scholarly ponencia of Mr. Justice Isagani
Cruz in People vs. De Guzman,40 inked in vivid prose the premium
accorded to the right of an accused to be presumed innocent until the
contrary is proved, to wit:
"The constitutional presumption of innocence is not an empty
platitude meant only to embellish the Bill of Rights. Its purpose
is to balance the scales in what would otherwise be an uneven
contest between the lone individual pitted against the People
of the Philippines and all the resources at their command. Its
inexorable mandate is that, for all the authority and influence
of the prosecution, the accused must be acquitted and set free
if his guilt cannot be proved beyond the whisper of doubt."
Hence, in light of the satisfactory explanation proffered by the defense
and in view of the impotency of the prosecution’s evidence, petitioner’s
constitutional right to be presumed innocent necessarily thrives.
Corollarily, the prima facie evidence of conversion in the instant case,
withers, so to speak, like a petrified twig wilted in the scorching heat of
the noonday sun.
WHEREFORE, premises considered, the instant petition is
granted. ACCORDINGLY, the decision of respondent Sandiganbayan
dated 16 March 1992 and its Resolution dated 18 March 1998, are
hereby REVERSED and SETASIDE. Petitioner Elvira Agullo is
hereby ACQUITTED on grounds of reasonable doubt.
MOREOVER, the DPWH is hereby directed to refund petitioner the sum
of Three Hundred Seventeen Pesos and Seventy Nine Centavos (P317.79)
representing the amount overdeducted from petitioner’s salary, cost of
living allowance and other emoluments.
(9) G.R. No. 121099 February 17, 1999
FIDEL T. SALAMERA, petitioner, vs. SANDIGANBAYAN, FIRST
DIVISION, respondent.
PARDO, J.:
The case is an appeal via certiorari taken by petitioner from a decision of
the Sandiganbayan and its resolution convicting him of malversation of
public property defined and penalized in Article 217 in relation to Article
217 of the Revised Penal Code, and appreciating the mitigating
circumstance of full restitution, imposing upon him the indeterminate
sentence of two (2) years four (4) months and one (1) day of prision
correccional, as maximum; to six (6) years and one (1) day of prision
mayor, as maximum; the penalty of perpetual special disqualification,
and a fine of P5,000.00, the value of the .38 Cal. Smith & Wesson revolver,
with Serial No. 879886.
We reverse.
The facts may be related as follows:
On February 2, 1988, petitioner was elected to and assumed the position
of mayor of the municipality of Casiguran, province of Aurora.
Later that month, he received from Casiguran Barangay Captain 1 Antonio
Benavidez one .38 Caliber Smith & Wesson Revolver, with Serial No.
879886. The gun was owned by and licensed to Ponciano Benavidez, an
uncle of Antonio, who mortgaged it to him. Petitioner placed the gun in
an attache case.
After about a week, petitioner together with his security men, went to
Manila, and brought with them the attache case with the gun in it. On
their return to the province, their car was stopped at a spot checkpoint
in Quezon City, where Pat. Alfredo B. Villanueva of the Quezon City Police
saw the revolver. On petitioner's instruction, his security men
surrendered the gun to police officer Villanueva.
Back in the municipality of Casiguran, Ponciano Benavidez, the licensed
owner of the gun claimed it from petitioner. The latter informed
Ponciano that the gun was confiscated by the Quezon City Police.
On September 30, 1988, Ponciano Benavidez filed with the office of the
Provincial Prosecutor of Aurora a complaint for theft against petitioner
and Antonio Benavidez.
On December 13, 1988, Ponciano Benavidez filed with the Department of
Local Government, an administrative complaint against petitioner for
abuse of authority, ignorance of the law and conduct unbecoming of a
public servant.
On January 20, 1989, the Provincial Prosecutor of Aurora dismissed the
case for theft.
On April 6, 1989, complainant Ponciano Benavidez filed a complaint for
theft against petitioner with the Office of the Ombudsman in Manila.
On August 21, 1990, during the investigation of the administrative case
by the Sangguniang Panlalawigan of Aurora, complainant Ponciano
Benavidez executed an affidavit of desistance acknowledging that
petitioner had paid the value of the gun, and withdrawing the
administrative case and the criminal case he filed against petitioner with
the Ombudsman.
On August 22, 1990, the Sangguniang Panlalawigan approved a resolution
dismissing the administrative case against petitioner.
On March 9, 1992, the Ombudsman approved the filing by Special
Prosecution Officer Prospero G. Pelayo of an information against
petitioner for malversation of public funds, which was duly filed on March
12, 1992, with the Sandiganbayan, Manila.
On March 30, 1992, the Sandiganbayan issued a warrant of arrest. On
March 30, 1992, petitioner posted a cash bail of P20,000.00, which he
90
deposited with the provincial treasurer of Aurora, duly approved by
Regional Trial Court Judge Filemon N. Tan of Baler, Aurora. 2
Page
Upon arraignment on June 1, 1992, before the Sandiganbayan, First
Division, petitioner entered a plea of not guilty, and accordingly, the court
scheduled the case for pre-trial conference.
Meantime, on or about August 14, 1992, petitioner was able to contact
Pat. Villanueva in Camp Karingal, Quezon City. The latter said that he
returned the gun to Patrolman Orgas, one of petitioner's security men on
the very next day after he had confiscated it. Unfortunately, Pat. Orgas
did not inform petitioner about the recovery of the gun, and, at the time
Villanueva so informed petitioner, Pat. Orgas had died.
At the pre-trial conference held on August 28, 1992, the prosecution and
the accused (petitioner herein) assisted by counsel de parte, entered into
a stipulation of facts signed by them, as follows:
1. At all times relevant to this case, the accused was the Mayor of the
Municipality of Casiguran, Aurora;
2. That in the exercise of his functions as Mayor, the accused had the
occasion to confiscate one .38 caliber Smith & Wesson revolver with
Serial No. 879886 from Barangay Captain Antonio Benavidez;
3. This weapon was actually owned by Ponciano Benavidez, the value of
which the parties have not agreed upon;
4. That the accused confiscated this weapon in the performance of his
official functions and was, therefore, in custody thereof in his capacity as
such;
5. That demand was made from the accused by Ponciano Benavidez
sometime in June of 1988 to produce the above-mentioned firearm but
the accused failed to do so;
6. That at a subsequent time, the accused and Ponciano Benavidez went
to the offices of the Quezon City Police Department in search of this
weapon;
7. That there has been restitution of the value of the firearm by the
accused to the complaining witness Ponciano Benavidez although there
is disagreement as to the amount of the restitution;
8. That the following affidavits were executed:
a. By complaining witness Ponciano Benavidez indicating his desistance
from further prosecution thereof for reasons stated therein;
b. By Alfredo Villanueva of the Quezon City Police Department purporting
to describe the circumstances under which he allegedly confiscated the
weapon in question from the accused Mayor.
Further to the above stipulations, the Government now marks the
following exhibit which is admitted by the accused:
Exhibit "A" — a xerox copy of the License to Carry Firearm No. 0188490,
issued by Necesitas Katigbak of the Firearm and Explosives Unit, to
Ponciano Benavidez involving .38 caliber Smith & Wesson revolver with
SN 879886.
The accused for his part has marked the following exhibits:
Exhibit "1" — The Order of the Fiscal dated January 20, 1989, dismissing
the charge of Theft, which is Annex "1" to the Supplemental Affidavit;
Exhibit "2" — The administrative complaint filed by the complaining
witness dated December 13, 1988, which is Annex "2" to the
Supplemental Affidavit;
Exhibit "3" — The Complaint for the filing of the case before the
Ombudsman on April 6, 1989, which is Annex "3" to the Supplemental
Affidavit;
Exhibit "4" — The investigation before the Sangguniang Panlalawigan
dated August 21, 1990 at Baler, Aurora, wherein the owner of the gun
submitted his affidavit of desistance and admitting therein that he was
paid for the loss of the gun, which is Annex "4" to the Supplemental
Affidavit;
Exhibit "5" — the Affidavit of Desistance executed by the owner of the
gun dated August 21, 1990, marked as Annex "5" to the Supplemental
Affidavit, wherein the owner of the gun admitted that he verified the loss
of the gun to be true and also admitted that the equivalent amount in
cash and in kind for the .38 caliber revolver was paid to him, for which he
promised to dismiss the criminal case and the administrative case.
Exhibit "6" — the Minutes of the Sanggunian Panlalawigan of Aurora
dated August 22, 1990, which decided to dismiss the administrative case,
which is marked as Annex "6" to the Supplemental Affidavit;
Exhibit "7" — the Resolution of the Investigating Fiscal for the
Ombudsman dated February 24, 1992, which is marked as Annex "7" to
the Supplemental Affidavit;
Exhibit "8" — the Resolution of the Ombudsman, which is marked as
Annex "8" to the Supplemental Affidavit;
Exhibit "9" — a copy of the Order of Arrest issued by the Sandiganbayan,
marked as Annex "9" to the Supplemental Affidavit;
Exhibit "10" — the payment of the Bond for the provisional release of the
accused, marked as Annex "10" to the Supplemental Affidavit;
Exhibit "11" — the Joint Affidavit of the Chairman of the Sangguniang
Panlalawigan and a certain Angelito Salamera stating that they were
present when payment was made for the gun to the owner, which is
marked as Annex "11" to the Supplemental Affidavit;
Exhibit "12" — the Affidavit executed by Alfonso Villanueva dated August
14, 1992, wherein he admitted that he had confiscated the gun at a
checkpoint in Quezon City, which is marked as Annex "12" to the
Supplemental Affidavit;
Exhibit "13" — the Affidavit executed by Antonio Benavidez dated July
30, 1989, which is marked as Annex "13" to the Supplemental Affidavit.
On June 30, 1993, the prosecution formally presented as its evidence
Exhibit "A" 3 and upon the admission thereof, rested its case.
On the other hand, the defense presented two (2) witnesses including
petitioner.
After the testimony of the witnesses on July 21, 1993, the court gave the
defense counsel ten (10) days to formally offer his evidence in writing. In
time, the defense formally offered its exhibits, and on Septepber 6, 1993,
the court admitted all exhibits except Exhibits 11 and 13, which were
rejected for being hearsay.
On February 17, 1995, more than a year after the case was submitted for
decision, the Sandiganbayan promulgated its decision, the decretal
portion of which narrated in the opening paragraph of this opinion.
On March 3, 1995, petitioner filed a motion for reconsideration of the
decision; However, on July 5, 1995, the Sandiganbayan denied the
motion.
91
Hence, this appeal.
Page
On October 4, 1995, the Court required respondent to file its comment
on the petition. On January 4, 1996, the Office of the Special Prosecutor
filed its comment on the petition for review. On January 30, 1996, the
Solicitor General also filed his comment.
We give due course to the petition.
To begin with, petitioner is charged with malversation under Article 217
in relation to Article 222 of the Revised Penal Code, providing as follows:
Art. 217. Malversation of public funds or property — Presumption of
malversation. — Any public officer who, by reason of the duties of his
office, is accountable for public funds or property, shall appropriate the
same, or shall take or misappropriate or shall consent, or through
abandonment or negligence, shall permit any other person to take such
public funds or property, wholly or partially, or shall otherwise be guilty
of the misappropriation of malversation of such funds or property, shall
suffer:
1. The penalty of prision correccional in its medium and maximum
periods, if the amount involved in the misappropriation or malversation
does not exceed two hundred pesos.
2. The penalty of prision mayor in its minimum and medium periods, if
the amount involved is more than 200 pesos but does not exceed 6,000
pesos.
3. The penalty of prision mayor in its maximum period to reclusion
temporal in its minimum period, if the amount involved is more than
6,000 pesos but is less than 12,000 pesos.
4. The penalty of reclusion temporal in its medium and maximum periods,
if the amount involved is more than 12,000 pesos but is less than 22,000
pesos. If the amount exceeds the latter, the penalty shall be reclusion
temporal in its maximum period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty of
perpetual special disqualification and a fine equal to the amount of the
funds malversed or equal to the total value of the property embezzled.
The failure of a public officer to duly forthcoming any public funds or
property with which he is chargeable, upon demand by any duly
authorized officer, shall be prima facie evidence that he has put such
missing funds or property to personal uses. (As amended by Rep. Act No.
1060, approved June 12, 1954).
Art. 222. Officers included in the preceding provisions. — The provisions
of this chapter shall apply to private individuals who, in any capacity
whatever, have charge of any insular, provincial or municipal funds,
revenues, or property and to any administrator or depository of funds or
property attached, seized or deposited by public authority, even if such
property belongs to a private individuals.
One essential element of the crime of malversation is that a public officer
must take public funds, money or property, and misappropriate it to his
own private use or benefit. There must be asportation of public funds
money or property, akin to the taking of another's property in theft. The
funds money or property taken must be public funds or private funds
impressed with public attributes or character for which the public officer
is accountable.
In this case, Antonio Benavidez voluntarily turned over the gun, a .38
caliber Smith & Wesson revolver, to petitioner mayor of the town of
Casiguran, Aurora. Antonio surrendered the gun to the mayor. The gun
was duly licensed. It was not seized or confiscated. Antonio obtained
possession of the gun from Ponciano Benavidez, an uncle of his, who was
the owner and licensee of the gun. Ponciano mortgaged it to Antonio.
The elements of malversation, essential for the conviction of an accused,
under the above penal provisions are that —
(a) the offender is a public officer;
(b) he has the custody or control of funds or property by reason of the
duties of his office;
(c) the funds or property involved are public funds or property for which
he is accountable; and
(d) he has appropriated, taken or misappropriated, or has consented to,
or through abandonment or negligence permitted, the taking by another
person of, such funds or property. 4
The question may be asked: Did Antonio's surrender of the gun to
petitioner mayor invest the gun with public character sufficient to
consider the gun as public property for which the mayor is accountable?
There was no reason to surrender or confiscate the gun. It was duly
licensed to Ponciano Benavidez. The license is not transferable. Antonio
could not validly possess the gun. He should have returned the gun to
Ponciano, the licenced owner or surrendered it to the local police or to
the Constabulary Provincial Commander. By turning over the gun to
petitioner mayor, the gun did not become public property because it was
not intended for public use or purpose nor was it lawfully sized. The gun
continued to be private property, that is why the gun owner rightfully
asked for its return to him, not to be turned over to the public coffer or
treasury. Petitioner's failure to return the gun after demand by the
private owner did not constitute a prima facie evidence of malversation.
The property was private and the one who demanded its return was a
private person, not a person in authority. The presumption of conversion
will not apply.
A respected author in Criminal Law wrote "Malversation can only be
committed by a public official who has charge of public funds or property
by virtue of his official position. A public official not responsible for public
funds or property and without authority to safeguard the same can not
be convicted of malversation." 5
What is more, the gun was confiscated by a police officer at a checkpoint
in Quezon City. The policeman should have turned over the confiscated
gun to the Constabulary Firearm and Explosive Unit, in Camp Crame,
Quezon City. Instead, he returned the gun to a security aide of petitioner
mayor, as a "favor" to the mayor. The security aide died in the meantime,
and, apparently, the gun got lost. Assuming that the loss was due to
petitioner's fault or negligence, he is not criminally liable for malversation
through negligence because there was no evidence of public funds or
property to the use or benefit of the accused. The legal presumption of
malversation created by a demand for restitution of public funds or
property is not applicable because the gun was private property and a
public officer entitled to its possession did not make the demand for its
return.
The presumption takes the place of affirmative proofs showing the actual
conversation. It obviates the necessity of proving acts of conversation; a
thing most extremely difficult to do. If in a particular case a demand was
made upon an accountable public official to produce the funds in his
custody and he failed to do so, the presumption thereby arising would
render unnecessary further proof of conversation. The disappearance of
public funds in the hands of the accountable public officer is prima
facie evidence of its conversation. Here, there is no presumption of
conversion nor evidence of actual conversion.
Nevertheless, petitioner made restitution of the value of the value of the
gun to the private owner, Ponciano Benavidez. Obviously, petitioner did
not malverse the gun by dolo or culpa to his private use or benefit.
One more point. Admittedly, there was no evidence submitted to the
92
court of the value of the gun to enable the court to fix the penalty to be
imposed on the accused. Assuming that petitioner malversed the gun, in
Page
malversation, the penalty for the offense is defendent on the value of the
public funds, money or property malversed. In this case, the
Sandiganbayan did not base the penalty on the minimum value of the gun
in the absence of evidence of its true worth. It took judicial notice of its
market value and estimated its "reasonable value" at P5,000.00. This is a
grievous error.
The Sandiganbayan could not take judicial notice of the value of the gun.
It must be duly proved in evidence as a fact. The court can not take
judicial notice of a disputed fact. The court may take judicial notice of
matters of public knowledge, or which are capable of unquestionable
demonstration, or ought to be known to judges because of of their
judicial functions. Otherwise, the court must receive evidence of
disputeds facts with notice to the parties. This is an innovation introduced
in the Revised Rules of Evidence the Supreme Court adopted on July 1,
1989, which should not be unknown to the lower
courts. 9 The new rule of evidence governs this case, since it was decided
in 1995, six years after its effectivity.
WHEREFORE, the Court hereby REVERSES the appealed decision and
resolution of the Sandiganbayan in its Criminal Case No. 17563, and
ACQUITS the accused Fidel Salamera y Torres, with costs de oficio.
The Court orders the Sandiganbayan to forthwith cancel the cash bail of
the accused, and immediately reimburse the amount to him.
(10) G.R. No. 129064 November 29, 2000
JUAN A. RUEDA, JR., petitioner, vs. HONORABLE SANDIGANBAYAN and
PEOPLE OF THE PHILIPPINES, respondents.
PARDO, J.:
The Case
The case is an appeal via certiorari from the decision of the
Sandiganbayan1 finding petitioner Juan A. Rueda, Jr. guilty of
malversation of public funds, and sentencing him to an indeterminate
penalty of ten (10) years and one (1) day of prision mayor, as minimum,
to seventeen (17) years, four (4) months and one (1) day of reclusion
temporal,as maximum, to pay a fine of P107,299.02 with subsidiary
imprisonment in case of insolvency,2 and to suffer perpetual
disqualification from holding any public office, and to pay the costs, and
resolution3 denying reconsideration.
The Charge
On April 19, 1991, Special Prosecution Officer I Gregorio G. Pimentel, Jr.,
Office of the Ombudsman filed with the Sandiganbayan an information
charging petitioner Juan A. Rueda, Jr., with malversation of public funds,
defined and penalized under Article 217 of the Revised Penal Code, to
wit:
"That on or about the period of February 8, 1989 to September 20, 1989,
in Tigaon, Camarines Sur, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, a public officer, being then
the Municipal Treasurer of Tigaon, Camarines Sur, and as such was
accountable for all public funds collected and received by him by reason
of the duties of his office, taking advantage of his official position and
with grave abuse of confidence, did then and there, willfully, unlawfully
and feloniously misappropriate, embezzle and convert to his own
personal use and benefit the total sum of P107,299.02, Philippine
Currency, to the damage and prejudice of the Philippine government in
the amount aforesaid."4
Upon arraignment on November 29, 1991, petitioner entered a plea of
not guilty.5 Trial ensued.
The facts, as found by the Sandiganbayan,6 are as follows:
At times material hereto, petitioner Rueda was the municipal treasurer
of Tigaon, Camarines Sur. On September 20, 1989, a team of state
auditors, headed by Amparo O. Albeus, conducted an audit examination
of the accountabilities of petitioner Rueda as municipal treasurer of
Tigaon, Camarines Sur, covering the period February 8, 1989 to
September 20, 1989. As a result of the audit, it was assumed that
petitioner had a "cash shortage" of P107,299.02 (Exh. "A-2"). The
corresponding report of cash examination was thereafter accomplished.
When confronted therewith, petitioner affixed his signature (Exh. "A-1")
on the certification on the dorsal portion of the report to the effect that
his accountability for the funds of the municipal government of Tigaon,
Camarines Sur was correctly stated.
On October 3, 1989, the auditors sent a formal written demand to
petitioner Rueda, requiring him to immediately produce the sum of
P107,299.02, representing the "shortage" on his accountabilities as
municipal treasurer of Tigaon, Camarines, Sur, and to explain in writing
within seventy-two (72) hours why the shortage occurred (Exh. "B").
Notwithstanding receipt of the letter (Exh. "B-1"), petitioner failed to
have the said amount forthcoming or to tender his written explanation
why the shortage occurred.
In his defense, petitioner Rueda disclaimed any criminal liability on the
ground that the assumed "shortage" was the result of unliquidated cash
advances made by several municipal officials and employees of Tigaon,
Camarines Sur, spanning the period covered by the audit as evidenced by
various "chits" or "vales" (Exhs. 11-15), and expenses of the municipal
government of Tigaon as evidenced by several disbursement vouchers
(Exhs. 16, 17, 18, 20, 21, 25, 26, 27,28, 29 and 30).
Petitioner Rueda declared that the municipal officials and employees
took the cash advances from the cash collections of the municipal
collectors before the cash collections, in the total amount of P41,234.71,
were turned over to him as municipal treasurer. What they turned over
to him were the "chits" and "vales" evidencing such cash advances.
Although he never tolerated the practice and had verbally warned the
municipal officials and employees from making those cash advances, they
continued to do so.7
Petitioner Rueda stressed that the cash advances were made with the
consent of the municipal mayor, and had been the practice in the
municipality of Tigaon long before he assumed office as municipal
treasurer. He would later on deduct the cash advances made from their
respective salaries in installment, and after they were paid, he would turn
over the amount to the office of the municipal treasurer. With respect to
the subject "chits" and "vales", petitioner Rueda declared that after the
same were paid, he turned over the amount to the office of the municipal
treasurer who then credited those payments as "restitution" of the
shortage on his total cash accountability.8 Thus, the "debtors" themselves
liquidated the cash advances and petitioner’s accountabilities had been
fully restituted before the start of the preliminary investigation in the
office of the Ombudsman.
A day before the state auditors from the Commission on Audit conducted
an audit examination of his cash accountabilities, the internal auditors
from the provincial treasurer’s office conducted a similar examination.
This group of internal auditors advised him not to bring the matter about
"vales" or cash advances to the COA audit team because they would only
disallow them for lack of supporting documents. This is the reason why
he did not present the disbursement vouchers in the course of the audit
conducted by the State Auditors on September 20, 1989.
After the audit of September 20, 1989, petitioner Rueda began
completing the supporting documents of those disbursement vouchers.
Upon completion of those "vales" and "chits" as supporting documents,
he submitted the same together with the disbursement vouchers to the
in-charge-of office of the municipal treasurer, who credited the amounts
reflected on those disbursement vouchers as "restitution" of the
93
shortage on his total accountability.
Page
Consequently, petitioner Rueda stated that as of July 11, 1990, before the
start of the preliminary investigation in the Office of the Ombudsman, all
his financial accountabilities had been fully restituted. The cash advances,
in the form of "chits" and "vales" amounting to P41,234.71, had been
wholly paid or redeemed by their respective debtors. The disbursement
vouchers of P53,700.00 representing various legitimate expenses of the
municipality of Tigaon, Camarines Sur and the collection deposits in the
amount of P12,384.06 were all liquidated. The in-charge-of office of the
municipal treasurer of Tigaon, Camarines Sur issued eight official
receipts, for various amounts received from petitioner Rueda, to wit:
1. Official Receipt No. 0382089 dated
P65,000.00
12/14/89 for
2. Official Receipt No. 0129158 (O) dated
P618.56
12/29/89 for
3. Official Receipt No. 0382090 (N) dated
P6,000.00
1/08/90 for
4. Official Receipt No. 0382091 (N) dated
P12,000.00
1/08/90 for
5. Official Receipt No. 0382095 (N) dated
P15,000.00
4/02/90 for
6. Official Receipt No. 0382100 (N) dated
P3,000.00
5/31/90 for
7. Official Receipt No. 4846890 (P) dated
P666.40
7/09/90 for
8. Official Receipt No. 4833595 (P) dated
P5,014.06
7/11/90 for
Total P107,299.02
A certification dated July 11, 1990, signed by Mr. Francisco N. Briguera,
in-charge-of office of the municipal treasurer of Tigaon, Camarines Sur,
and verified and found correct by Melanio C. Alarcon, state auditing
examiner (Exh. "9"), showed that petitioner Rueda had fully restituted
the cash shortage discovered during the cash examination. As such,
petitioner claimed innocence and therefore must be acquitted.9
On March 19, 1996, the Sandiganbayan (Third Division) promulgated its
decision finding petitioner Rueda guilty beyond reasonable doubt of
malversation of public funds, defined and penalized under Article 217 (4)
of the Revised Penal Code, the dispositive portion of which reads as
follows:
"WHEREFORE, judgment is hereby rendered, finding the accused GUILTY
beyond reasonable doubt, of the crime of Malversation of Public Funds,
under paragraph 4 of Article 217 of the Revised Penal Code and
considering the mitigating circumstance of full restitution of the amount
malversed, and applying the Indeterminate Sentence Law, this Court
hereby sentences the accused to suffer an indeterminate penalty of
imprisonment for a period of TEN (10) YEARS and ONE (1) DAY of prision
mayor, as minimum, to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and
ONE (1) DAY reclusion temporal, as maximum; to pay a fine of
P107,299.02 with subsidiary imprisonment in case of insolvency, and to
suffer perpetual special disqualification from holding any public office;
and to pay the costs.
"SO ORDERED.
"Manila, Philippines, January 25, 1996."10
On March 29, 1996, petitioner filed with the Sandiganbayan a motion for
reconsideration of the decision.11
However, on May 07, 1997, the Sandiganbayan found the motion not
meritorious and denied the same.12
The Appeal
Hence, this appeal.13
Issues
(1) Is petitioner liable for malversation of public funds due to a
"shortage" of P107,299.02 which consisted of "chits" and
"vales" evidencing cash advances from cash collections of the
municipal collectors before these were turned over to
petitioner municipal treasurer as part of his accountability?
(2) Is he presumed to have put the "missing" public funds to his
personal use or allowed others to take such funds when it is an
admitted fact that the cash advances were given by the
municipal collectors from their cash collections, not from funds
in the custody of petitioner?
Petitioner submits that the Sandiganbayan erred:
(1) In finding that the rulings in Villacorta v. People, 145 SCRA
425 [1986] and Quizo v. Sandiganbayan, 149 SCRA 108 [1987]
do no apply to the case at bar as they have been reversed by
the pronouncement in Meneses v. Sandiganbayan, 232 SCRA
441 [1994] which relied on the ruling in Cabello v.
Sandiganbayan, 197 SCRA 94 [1991];
(2) In rejecting petitioner’s submission that the evidence must
be appreciated under the rulings in Villacorta and Quizo, as the
events occurred when the prevailing doctrines were the rulings
in Villacorta and Quizo;
(3) In not finding that he succeeded to overthrow the prima
facie evidence of conversion/misappropriation under Article
217 of the Revised Penal Code;
(4) In rejecting petitioner’s explanation as regards the
disbursement vouchers and collection deposits such that they
do not make out a criminal offense.14
Actually, the issues really boil down to whether or not petitioner has
incurred a "shortage" in his cash accountability as municipal treasurer of
the municipality of Tigaon, Camarines Sur.
The Court’s Ruling
We sustain petitioner’s submissions primarily because he did not take or
misappropriate or through abandonment or negligence, permit any other
person to take or malverse public funds or property in his custody for
which he is accountable. He did not put public funds to his "personal use".
He was able to properly explain and account fully for his cash
accountability of public funds upon demand by the auditors. The
assumed "shortage" does not exist and in any event has been restituted
in full.
Generally, the factual findings of the Sandiganbayan are conclusive on
the Court. However, there are established exceptions to that rule, such
as, sans preclusion, when (1) the conclusion is a finding grounded entirely
on speculation, surmise and conjecture; (2) the inference made is
manifestly an error or founded on a mistake; (3) there is grave abuse of
discretion; (4) the judgment is based on misapprehension of facts; and
(5) the findings of fact are premised on the absence of evidence and are
contradicted by evidence on record.15 In these instances, this Court is
bound to review the facts in order to avoid a miscarriage of justice.16 The
instant case falls within such exceptions.
94
Considering the evidence on record, we find that the Sandiganbayan
convicted petitioner on probabilities and conjecture, not on hard facts
Page
duly established.17 We are thus justified to re-examine, as we do, the
evidence.
After an assiduous scrutiny, we find petitioner not guilty of malversation
of public finds. The Sandiganbayan found that petitioner admitted his
accountability and failed to have duly forthcoming his cash shortage in
the amount of P107,299.02 with which he is chargeable, and that he did
not tender the required written explanation as to why the shortage was
incurred. His failure to do so instantly created a prima facie evidence
pursuant to the last paragraph of Article 217 of the Revised Penal Code
that he had put such missing funds to personal use.
We disagree. Petitioner did not admit any shortage. The mere fact that
he signed the dorsal side of the report of cash examination is not an
admission of "shortage". His signature was only evidence that
he received a copy of the report. Thus, it is incorrect to say that
petitioner admitted his shortage when he signed the audit report
prepared by the audit team.18 For one thing, he was made to sign it right
away; for another, his signature only meant an acknowledgment that a
demand from him to produce all his cash, money and paid vouchers had
been made. It did not mean that he admitted any shortage. In fact,
subsequent events showed that he had fully explained his accountability.
Thus, he satisfactorily explained the shortage.19 In other words, there was
no direct evidence or proof that he put public funds to personal
use.20 When absence of funds was not due to personal use, the
presumption is completely destroyed.21 The taking or conversion of
public funds for personal use must be affirmatively proved.22When there
is no shortage, taking, appropriation, conversion or loss, there is no
malversation.23
The crime of malversation of public funds is defined and penalized as
follows:
ART. 217. Malversation of public funds or property - Presumption of
malversation.- Any public officer who, by reason of the duties of his
office, is accountable for public funds or property, shall appropriate the
same, or shall take or misappropriate or shall consent, or through
abandonment or negligence, shall permit any other person to take such
public funds or property, wholly or partially, or shall otherwise be guilty
of the misappropriation or malversation of such funds or property, xxx."
xxx xxx xxx
"The failure of the public officer to have duly forthcoming such public
funds or property, upon demand by a duly authorized officer, "shall be
prima facie evidence that he has put such missing funds or property to
personal use."24
The elements of malversation, essential for the conviction of an accused, In Salamera v. Sandiganbayan,29 we emphatically declared that the 4th
under the above penal provision are that: element requires "that a public officer must take public funds, money or
property, and misappropriate it to his own private use or benefit. There
(a) the offender is a public officer; must be asportation of public funds or property, akin to the taking of
another’s property in theft. The funds, money or property taken must be
public funds or private funds impressed with public attributes or
(b) he has the custody or control of funds or property by reason
character for which the public officer is accountable."
of the duties of his office;
We are convinced that the evidence in this case has not proved beyond
(c) the funds or property involved are public funds or property
reasonable doubt that petitioner is guilty of malversation of public funds.
for which he is accountable; and
We explain why. To begin with, there was no evidence of cash "shortage."
(d) he has appropriated, taken or misappropriated, or has
The letter of demand dated October 3, 1989 (Exh. "B-1") to petitioner for
consented to, or through abandonment or negligence
him to produce immediately the "missing" funds in the total amount of
permitted, the taking by another person of, such funds or
P107,299.02 and to submit within seventy-two hours why the shortage
property.25
occurred, states:
"The felony involves breach of public trust, and whether it is committed
"x x x It was found that your cash was short of P107,229.02.
through dolo or culpa the law makes it punishable and prescribes a
uniform penalty therefor. Even when the information charges willful
malversation, conviction for malversation through negligence may still be "This shortage was arrived at as follows:
adjudged if the evidence ultimately proves that mode of commission of
the offense."26 "Accountability:
"Concededly, the first three elements are present in this case. It is the last Balance per audit as of Sept. 20, 1989
element, i.e., whether or not petitioner really has misappropriated public
funds, where the instant petition focuses itself. In convicting petitioner, Certified correct by you.
the Sandiganbayan cites the presumption in Article 217 of the Revised
Penal Code that the "failure of a public officer to have duly forthcoming
General Fund P165,078.78
any public funds with which he is chargeable, upon demand by any duly
authorized officer, shall be prima facie evidence that he has put such
missing funds or property to personal uses." The presumption is, of Infrastructure Fund 39,904.77
course, rebuttable. Accordingly, if the accused is able to present
adequate evidence that can nullify any likelihood that he had put the Special Education
funds or property to personal use, then that presumption would be at an
end and the prima facie case is effectively negated. This Court has Fund 28,398.29
repeatedly said that when the absence of funds is not due to the personal
use thereof by the accused, the presumption is completely destroyed; in
Trust Fund 10,983.84
fact, the presumption is deemed never to have existed at all."27
"The prosecution, upon whose burden was laden the task of establishing Balgu Fund 33,128.60 P277,494.28
by proof beyond reasonable doubt that petitioner had committed the
offense charged, mainly relied on the statutory presumption aforesaid Credit to accountability:
and failed to present any substantial piece of evidence to indicate that
95
petitioner had used the funds for personal gain. The evidence submitted, Cash and valid cash items produced
just to the contrary, would point out that not a centavo of the so-called
Page
"missing funds" was spent for personal use x x x."28
by you and counted by us P170,195.26
 Shortage P107,229.02"30
The auditor’s finding of a "cash shortage" is definitely wrong. In fact and
under accounting principles, there is no cash shortage. The cash and
other valid cash items were produced by petitioner and counted by the
auditors in the total amount of P170,195.26. The amount is intact in cash.
The assumed shortage of P107,229.02 represented "vales", "chits" and
"disbursement vouchers" considered as part of the general fund. This is
an auditing error. It is a generally accepted auditing principle that cash
means "cash on hand or in bank." Standard text in accounting defines
"Cash" as consisting of those items that serve as a medium of exchange
and provide a basis for accounting measurement. To be reported as
"cash," an item must be readily available and not restricted for use in the
payment of current obligations. A general guideline is whether an item is
acceptable for deposit at face value by a bank or other financial
institution.
"Items that are classified as cash include coin and currency on hand, and
unrestricted funds available on deposit in a bank, which are often called
demand deposits since they can be withdrawn upon demand. Petty cash
funds or change funds and negotiable instruments, such as personal
checks, travelers’ checks, cashiers’ checks, bank drafts, and money orders
are also items commonly reported as cash. The total of these items plus
undeposited coin and currency is sometimes called cash on hand.
Interest-bearing accounts, or time deposits, also are usually classified as
cash, even though a bank legally can demand prior notification before a
withdrawal can be made. In practice, banks generally do not exercise this
legal right.
"Deposits that are not immediately available due to withdrawal or other
restrictions require separate classification as ‘restricted cash’ or
‘temporary investments.’ They are not ‘cash’."31
In short, there was no shortage on petitioner’s cash accountability.
"Evidence of shortage is necessary before there could be any taking,
appropriation, conversion, or loss of public funds that would amount to
malversation."32 The law requires that the shortage must be clearly
established as a fact that over and above the funds found by the auditors
in the actual possession of the accountable officers, there is an additional
amount which could not be produced or accounted for at the time of
audit.
In this case, there was absolutely no shortage as to petitioner’s cash
accountability. The auditors mistakenly included as cash items
collectibles in the form of "vales" and "chits" and "disbursement
vouchers" for legitimate expenses of the municipality.
An accountable officer under Article 217 of the Revised Penal Code
must receive money or property of the government which he is bound
to account for. It is the nature of the duties of, not the nomenclature
used for, or the relative significance of the title to, the position, which
controls in that determination.33
Based on this definition, to be held accountable the public officer
must receive the money or property, and later fails to account for
it. When a public officer is asked to account for the cash in his
accountability, this necessarily means that he has to produce the cash in
bills and coins and other cash items that he received. It does not include
collectibles and receivables or even promissory notes.
Petitioner Rueda did not receive the money (cash), which he was
supposed to produce or account for at the time of the audit.34 In fact, the
audit team found that sum of P170,195.26 intact in bills and notes.
Nonetheless, the auditors declared a "shortage" because petitioner
Rueda could not produce as cash items the collectibles and receivables in
the form of "chits and vales" and disbursement vouchers for legitimate
expenses of the municipality. This is an auditing error because the
collectibles and receivables are not cash items. The money did not reach
the hands of petitioner. Therefore, it is not part of his cash accountability.
The amount of P107,299.02, was divided as follows: (1) P41,234.71
representing the "chits and vales" taken by the municipal officials and
employees from the municipal collections prior to the remittance of
these cash collections to petitioner; (2) P53,700.00 representing the
legitimate expenses of the municipality subject to liquidation; and (3)
P12,384.06 unsettled cash collections.
With regard to the P41,234.71 cash advances, petitioner did not receive
the cash nor gave the cash advances for they were taken from the cash
collections of the municipal collectors before the cash collections were
turned over to him.
"Q: The cash collections of the municipal collectors from which the chits
and vales, from which the amount represented by the chits and vales are
made by the municipal employees and officials, from the amount covered
by those chits and vales were already turned over to you or not yet, when
the chits and vales were made?
"A: They were not yet turned over to me, sir. The employees have their
cash advances from the municipal collectors before their cash collections
were turned over to me. So, I got only the chits or vales; the cash was not
yet turned over to me."35
Clearly, petitioner Rueda did not receive the above-mentioned amount
at the time of the audit.36 In fact, no cash was ever given or turned over
to petitioner. At any rate, the respective debtors, not the petitioner,
wholly redeemed the cash advances and "vales" amounting to
P41,234.71, to wit:37
"Q: Where are now those chits and/or vales covering those cash
advances?
A: Those chits and vales were redeemed by the employees and then,
some of them were redeemed by the employees and then, as I
accumulated the amount, I turned it over, the cash, I turned it over to the
In-Charge of Office and then, issued an official receipt for the amount and
credited against my shortage as restitution.38
As heretofore stated, in Salamera vs. Sandiganbayan,39 we ruled that one
essential element of malversation is that a public officer must take public
funds, money or property, and misappropriate it to his own private use
or benefit. There must be asportation of public funds or property, akin to
the taking of another’s property in theft. Hence, how can there be taking
or misappropriation when the funds did not even reach the hands or
custody of petitioner Rueda?
As regards the amount of P P53,700.00, these referred to legitimate
expenses of the municipality.1âwphi1 At the time of the audit, petitioner
failed to present the vouchers for these legitimate expenses because they
lacked documents in support of the vouchers, to wit:
"Q: You mentioned about these vouchers. What are these vouchers that
you mentioned?
A: May I refer to my list, Your Honor.
AJ DEL ROSARIO:
The witness may refresh his memory.
"WITNESS: These vouchers, there are 11 of them, from the Will Print, one
voucher from the printing realty taxes, tax declaration, I mean; and,
another two vouchers from the same Will Print, for printing also the Real
Tax Declaration; third voucher is from Angel Bongulto, cash advance for
Manila to get the law books and references from the Supreme Court for
the RTC, Branch 30, at Tigaon, Cam. Sur; one voucher is for Kagawad
96
Redito Clariño, cash advance for seminar workshop for the municipal
kagawad at Los Baños, Laguna; another voucher is for Orlando Asiado,
Page
cash advance for supporting the athletic uniform of the municipal team
for the Summer Basketball Tournament; next voucher is for Hector
Bongat, cash advance for constructing 50 pieces market stalls, and, next
is Leo Cea, a cash advance for the summer basketball tournament
referees; next voucher is for Mayor Eleonor Lelis, cash advance in going
to Manila, with the INP Station Commander and 3 Patrolmen to get our
Fire truck for the municipality; next voucher is for Leonida Peñaflor, a
cash advance for the terminal leave of her deceased husband, my
assistant municipal treasurer, Domingo Peñaflor; next voucher is for
Arturo Pascua, cash advance for delivering sand and gravel for the
cementing of a municipal street and the last is for Iñigo Zape, cash
advance for COLA. These were the unsubmitted vouchers, sir.
Q: You said, you did not present these vouchers during the audit by the
COA team because these lack supporting documents and you were
advised by the internal audit team not to present them anymore because
there will be, for sure, is lacking. [sic] Can you still recall what supporting
documents were lacking to these vouchers, for which reason you did not
present them, if you can still recall the supporting documents lacking?
A: Some of them lacks the canvass paper; some of them were partially
paid but also lacking supporting papers, sir."40
After the audit, petitioner prepared the supporting documents that these
vouchers lacked and turned them over to the in-charge-of office who
replaced him, Mr. Francisco Briguera.41
Petitioner satisfactorily explained the unsettled cash collection deposits
in the amount of P12,384.06. This amount represented the cash
collections of the market collectors, which had been turned over to the
invoicing officer of the treasury, Mrs. Delicias Galvante. During the audit
examination, this amount had been reflected as unaccounted because it
lacked some requirements, such as the labor payroll. It was only after the
audit examination that the invoicing officer turned over the labor payroll
corresponding to the amount of P6,000.00. The remainder of the
P12,384.06 was given as cash advances in the form of "chits and vales,"
which had been taken from the collections, again, prior to its remittance
to petitioner.
Hence, petitioner satisfactorily explained the cash "shortages" found in
his accountability at the time of the audit examination. No portion of his
cash accountability has been malversed by him or put to his personal
use.42
In Meneses vs. Sandiganbayan,43 the Court reiterated an earlier ruling
in Cabello v. Sandiganbayan,44 that the practice of disbursing public funds
under the "vale" system is not a meritorious defense in malversation
cases. The grant of loans through the "vale" system is a clear case of an
accountable officer consenting to the improper or unauthorized use of
public funds by other persons, which is punishable by law. To tolerate
such a practice is to give a license to every disbursing officer to conduct a
lending operation with the use of public funds.
However, the ruling in Cabello and Meneses cannot be applied to the
case at bar. The circumstances obtaining in those cases are not present
in the case at bar. An important moiety in the instant case is that
petitioner did not grant the cash advances or "vales" to the municipal
officials. They took the cash advances from the collections of the
municipal collectors. However, they restored or "liquidated" the amounts
prior to the conduct of preliminary investigation before the office of the
Ombudsman. The liquidation was done, not by petitioner, but by the
respective debtors. "Liquidation simply means the settling of
indebtedness."45
"Liquidation does not necessarily signify payment, and to liquidate an
account, can mean to ascertain the balance due, to whom it is due, and
to whom it is payable; hence, an account that has been liquidated can
also mean that the item has been made certain as to what, and how
much, is deemed to be owing."46
Neither can petitioner Rueda be considered guilty of passive
malversation. He did not tolerate the practice of making cash advances
by the municipal officials and employees. He warned them about the
illegality of such practice. However, he was helpless about the situation
because it was done with the consent of the municipal mayor. They were
not indicted for malversation. Why? The prosecution did not explain. The
Sandiganbayan did not even inquire. Instead of the cash collections being
remitted to petitioner, pieces of paper called "chits or "vales" were given
as evidence of the cash advances. He never had the opportunity to
disburse public funds under the "vale" system, for in the first place, the
public funds were not turned over to him.
Consequently, the prima facie evidence that public funds have been put
to the personal use of petitioner has been obliterated by the fact that he
did not receive the money as municipal treasurer.
In Zambrano v. Sandiganbayan,47we said that if the accused did not
receive the public funds, there was no malversation. In Diaz vs.
Sandiganbayan,48 we held that when the absence of funds is not due to
the personal use thereof by the accused, the presumption is completely
destroyed; in fact, the presumption is deemed never to have existed at
all.
In malversation, it is necessary to prove that the accused received public
funds, and that he could not account for them and did not have them in
his possession and that he could not give a reasonable excuse for the
disappearance of the same.49 In this case, the prosecution failed to
establish this important element of malversation. In fact, it did not really
exist. Petitioner gave a reasonable and satisfactory explanation of his
cash accountability of public funds that were duly liquidated. The Court
must not reject arbitrarily an explanation consistent with the
presumption of innocence.50
In Narciso v. Sandiganbayan,51 we said that where "there is no evidence
whatever that over and above the funds found by the auditors in his
actual possession, Narciso had received the additional amount of
P14,500.00, which he could no longer produce or account for at the time
of the audit, there being no shortage, there has been no taking,
appropriation, conversion, or loss of public funds; there is no
malversation." We could very well be speaking of the case of petitioner
Rueda.
In our criminal justice system, the overriding consideration is not whether
the court doubts the innocence of the accused but whether it entertains
a reasonable doubt as to his guilt. This determinant, with the
constitutional presumption of innocence which can be overthrown only
by the strength of the prosecution’s own evidence proving guilt beyond
reasonable doubt, irresistibly dictate an exoneration in this case.52
The evidence against petitioner is not enough to engender moral
certainty of his guilt. This moral certainly is that which convinces and
satisfies the conscience of those who are to act upon it.53
Accordingly, the presumption of innocence which the Constitution
guarantees the petitioner has remained untarnished in this case for want
of proof to the contrary. It is safely entrenched in our jurisprudence that
unless the prosecution discharges its burden to prove the guilt of an
accused beyond reasonable doubt, the latter need not even offer
evidence in his behalf.54
The prosecution must overthrow the presumption of innocence with
proof of guilt of the accused beyond reasonable doubt. The proof against
him must survive the test of reason; the strongest suspicion must not be
permitted to sway judgment.55 Even if the defense is weak, the case
against the accused must fail if the prosecution is even weaker, for the
conviction of the accused must rest not on the weakness of the defense
but on the strength of the prosecution.56
In order to convict an accused, the circumstances of the case must
exclude all and each and every hypothesis consistent with his
97
innocence.57
Page
In conclusion, we find that the guilt of the petitioner has not been proved
beyond reasonable doubt. The petitioner must be acquitted. "Every
accused is presumed innocent until the contrary is proved; that
presumption is solemnly guaranteed by the Bill of Rights. The contrary
requires proof beyond reasonable doubt, or that degree of proof, which
produces conviction in an unprejudiced mind. Short of this, it is not only
the right of the accused to be freed; it is even the constitutional duty of
the court to acquit him.58
The Fallo
WHEREFORE, the petition is GRANTED and the decision of respondent
SANDIGANBAYAN promulgated on March 19, 1996 and the resolution
adopted on May 7, 1997 are REVERSED and SET ASIDE. Petitioner JUAN
A. RUEDA, JR. is hereby ACQUITTED on reasonable doubt of the charge of
malversation of public funds, defined and penalized under Article 217 (4)
of the Revised Penal Code. His bail bond is ordered cancelled.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Quisumbing, Buena, Gonzaga-Reyes, and Ynares-Santiago,
JJ., concur.
De Leon, Jr., No part. Ponente of Sandiganbayan decision.
Art. 220- Illegal Use of Public Funds
(1) G.R. No. 96025 May 15, 1991
OSCAR P. PARUNGAO, petitioner, vs. SANDIGANBAYAN and PEOPLE
OF THE PHILIPPINES, respondents.
GUTIERREZ, JR., J.:
May the Sandiganbayan, after finding that a municipal treasurer charged
with malversation of public funds is not guilty thereof, nevertheless
convict him, in the same criminal case, for illegal use of public funds?
The petitioner, a former municipal treasurer of Porac, Pampanga, was
charged with malversation of public funds allegedly committed as
follows:
That on or about the month of September, 1980, or sometime
subsequent thereto, in the Municipality of Porac, Province of
Pampanga, Philippines, and within the jurisdiction of this
Honorable Court, OSCAR PARUNGAO, Municipal Treasurer of
Porac, Pampanga, hence a public officer having been appointed
and qualified as such, having custody or control of and
accountable for the public funds collected and received by him
by reason of the duties of his office, did then and there wilfully,
unlawfully, feloniously and with abuse of confidence, take,
appropriate and convert to his own personal use and benefit
the amount of ONE HUNDRED EIGHTY-FIVE THOUSAND TWO
HUNDRED FIFTY PESOS (P185,250.00), Philippine Currency, to
the damage and prejudice of the government in the said
amount. (Rollo, p. 26)
The petitioner entered a plea of not guilty. During the pretrial conference,
he admitted that on September 29, 1980, as municipal treasurer of Porac,
Pampanga, he received from the Ministry of Public Works and Highways
the amount of P185,250 known as the fund for construction,
rehabilitation, betterment and improvement (CRBI) for the concreting of
Barangay Jalung Road located in Porac, Pampanga.
The prosecution presented six witnesses and tried to establish that the
petitioner misappropriated the fund for his personal use because while
the fund was already completely exhausted, the concreting of Barangay
Jalung Road remained unfinished.
In his defense, the petitioner accounted for the P185,250 fund as follows:
1. P126,095.59 was disbursed for materials delivered by the contractor
under Voucher Numbers 41-80-12-440 and 41-80-12-441 for P86,582.50
and P39,513.09 respectively.
2. P59,154.41 was used to pay, upon the insistence of the then Porac
Mayor Ceferino Lumanlan, the labor payrolls of the different barangays
in the municipality.
After hearing, the respondent Sandiganbayan rendered a decision
acquitting the petitioner of the crime of malversation of public funds but
convicting him of the crime of illegal use of public funds. The relevant
parts of the decision are set forth below:
The Certificate of Settlement (Exh. 5) issued to the accused
certified that his money, property and accountable forms as
Municipal Treasurer of Porac, Pampanga for the period from
February 6,1980 to December 31, 1980, have been audited and
found correct. It was signed by Auditor 1 Rolando A. Quibote
and approved by Provincial Auditor Jose C. de Guzman. Being
public officers with official duties to perform in the exercise of
the functions of their office, the presumption is in favor of the
lawful exercise of their functions and the regular performance
of their duties. (Sec. 5, par. m, Rule 131, Rules of Court). And
quite apart from that presumption of regularity in the
performance of official duty which necessarily extends to the
correctness of the said certificate issued in the course of the
discharge of such duty, there exists no serious ground to
impugn the aforesaid document in the context of the admission
of prosecution witnesses Homer Mercado and District Engineer
Lacsamana regarding the delivery of materials and the grading
thereof on the project site by the contractor, the findings of
investigating NBI Agent Azares, that accused Parungao had
submitted disbursement vouchers and supporting documents
from the CRBI barangay Jalung fund to the Provincial Auditor's
Office which were audited and found in order by Auditor
Quibote, and the acknowledgments of Emerenciana Tiongco
and auditing examiner Jose Valencia that the disbursements of
P86,582.50 and P39,513.09 under vouchers 4180-12-440 and
4180-12-441 were duly entered in accused Parungao's
Treasurer's Journal of Cash Disbursements and Cashbook. The
foregoing considerations, and the presumption of innocence
accorded to every accused in a criminal prosecution, would not
allow a finding that the accused appropriated the P185,250.00
fund for his personal use and benefit.
But while the accused could be deemed to have fully accounted
for the amount in question, the fact sticks out from the
evidence like a sore thumb that he allowed the use of part of
the funds for a purpose other than what it was intended. The
said amount of P185,250.00 was specifically allotted for the
concreting of the barangay Jalung road in Porac, Pampanga.
Instead of applying it fully to that particular project, he gave
P59,154.41 of it to the municipal mayor of Porac to pay the
labor payrolls of the different barangays of the municipality,
resulting in the non-completion of the project. He thereby
violated the following provision of Article 220 of the Revised
Penal Code. (Rollo, pp. 48-49)
The petitioner filed a motion for reconsideration which was denied by the
Sandiganbayan, hence this petition for review. The petitioner raises the
following issues:
98
I. RESPONDENT SANDIGANBAYAN GRAVELY ABUSED ITS
DISCRETION AMOUNTING TO LACK OF JURISDICTION AND/OR
Page
IN EXCESS OF JURISDICTION IN DENYING PETITIONER'S
MOTION FOR RECONSIDERATION AND IN AFFIRMING ITS
 DECISION FINDING PETITIONER GUILTY OF TECHNICAL
MALVERSATION.
II. RESPONDENT SANDIGANBAYAN GRAVELY ABUSED ITS
DISCRETION AMOUNTING TO LACK OF JURISDICTION AND/OR
IN EXCESS OF JURISDICTION IN NOT CONSIDERING IN FAVOR OF
THE PETITIONER DOCUMENTS WHICH ARE MUTE BUT
ELOQUENT PROOF OF HIS INNOCENCE. (Rollo, p. 14)
The petitioner argues that he cannot be convicted of a crime different
and distinct from that charged in the information.
The petitioner is correct. As recommended by the Solicitor General in his
manifestation, the Court grants the petition.
The 1987 Constitution mandates that the accused, in all criminal
prosecutions, shall enjoy the right to be informed of the nature and cause
of accusation against him. (Article III, Section 14 [21) From this
fundamental precept proceeds the rule that the accused may be
convicted only of the crime with which he is charged.
An exception to this rule, albeit constitutionally permissible, is the rule on
variance in Section 4, Rule 120 of the Rules on Criminal Procedure which
provides:
Sec. 4. Judgment in case of variance between allegation and
proof.— When there is variance between the offense charged
in the complaint or information, and that proved or established
by the evidence, and the offense as charged is included in or
necessarily includes the offense proved, the accused shall be
convicted of the offense proved included in that which is
charged, or of the offense charged included in that which is
proved. (4a)
Section 5 of the same Rule indicates when an offense includes or is
included in another:
Sec. 5. When an offense includes or is included in another.—An
offense charged necessarily includes that which is proved,
when some of the essential elements or ingredients of the
former, as this is alleged in the complaint or information,
constitute the latter. And an offense charged is necessarily
included in the offense proved, when the essential ingredients
of the former constitute or form a part of those constituting the
latter. (5)
Is the decision of the Sandiganbayan convicting the petitioner of the
crime of illegal use of public funds justified by the rule on variance? Does
the crime of malversation of public funds include the crime of illegal use
of public funds, or is the former included in the latter?
To both questions, the Court answers in the negative.
As gleaned from the information, the petitioner, a public officer, was
accused of wilfully, unlawfully, feloniously and with abuse of confidence,
taking, appropriating or converting to his own personal use, public funds
for which he was accountable. The alleged acts constitute malversation
of public funds punishable under Article 217 of the Revised Penal Code,
which reads:
Art. 217. Malversation of public funds or
property.— Presumption of malversation.—Any public officer
who, by reason of the duties of his office, is accountable for
public funds or property, shall appropriate the same, or shall
take or misappropriate or shall consent, or through
abandonment or negligence, shall permit any other person to
take such public funds or property, wholly or partially, or shall
otherwise be guilty of the misappropriation or malversation of
such funds or property, shall suffer: . . .
The essential elements of this crime are:
(a) the offender is a public officer; (b) by reason of his duties he is
accountable for public funds and property; and (c) he appropriates, takes,
or misappropriates, or permits other persons to take such public funds or
property, or otherwise is guilty of misappropriation or malversation of
such funds or property.
On the other hand, Article 220 of the Revised Penal Code, for which the
petitioner was convicted, reads:
Art. 220. Illegal use of public funds or property. — Any public
officer who shall apply any public fund or property under his
administration to any public use other than that for which such
fund or property were appropriated by law or ordinance shall
suffer the penalty of prision correccional in its minimum period
or a fine ranging from one-half to the total of the sum
misapplied, if by reason of such misapplication, any damage or
embarrassment shall have resulted to the public service. In
either case, the offender shall also suffer the penalty of
temporary special disqualification.
The essential elements of this crime, more commonly known as technical
malversation, are:
(a) the offender is an accountable public officer; (b) he applies public
funds or property under his administration to some public use; and (c)
the public use for which the public funds or property were applied is
different from the purpose for which they were originally appropriated
by law ordinance.
A comparison of the two articles reveals that their elements are entirely
distinct and different from the other. In malversation of public funds, the
offender misappropriates public funds for his own personal use or allows
any other person to take such public funds for the latter's personal use.
In technical malversation, the public officer applies public funds under his
administration not for his or another's personal use, but to a public use
other than that for which the fund was appropriated by law or ordinance.
Technical malversation is, therefore, not included in nor does it
necessarily include the crime of malversation of public funds charged in
the information.
Since the acts constituting the crime of technical malversation were not
alleged in the information, and since technical malversation does not
include, or is not included in the crime of malversation of public funds, he
cannot resultantly be convicted of technical malversation.
The Sandiganbayan found that the petitioner had not taken,
appropriated nor converted the CRBI fund for his personal use and
benefit. It, however, was of the belief that based on the evidence given
during trial, the petitioner was guilty of technical malversation. What the
respondent court should have done was to follow the procedure laid
down in Section 11, Rule 119 of the Rules on Criminal Procedure.
Sec. 11. When mistake has been made in charging the proper
offense — When it becomes manifest at any time before
judgment, that a mistake has been made in charging the proper
offense, and the accused cannot be convicted of the offense
charged, or of any other offense necessarily included therein,
the accused shall not be discharged, if there appears to be good
cause to detain him. In such case, the court shall commit the
accused to answer for the proper offense and dismiss the
original case upon the filing of the proper information.(12a)
99
The Sandiganbayan therefore erred in not ordering the filing of the
proper information against the petitioner, and in convicting him of
Page
technical malversation in the original case for malversation of public
funds.
Ordinarily, the Court's recourse would be to acquit the petitioner of the
crime of illegal use of public funds without prejudice, but subject to the
laws on prescription, to the filing of a new information for such offense.
Considering however that all the evidence given during the trial in the
malversation case is the same evidence that will be presented and
evaluated to determine his guilt or innocence in the technical
malversation case in the event that one is filed and in order to spare the
petitioner from the rigors and harshness compounded by another trial,
not to mention the unnecessary burden on our overloaded judicial
system, the Court deems it best to pass upon the issue of whether or not
the petitioner indeed is guilty of illegal use of public funds.
The petitioner alleged that the amount of P59,154.41, which was actually
intended for the concreting of the Barangay Jalung Road, was used to
defray the labor payrolls of the different barangays of the municipality of
Porac and presented documents fully supporting the disbursement. This
allegation was not rebutted by the prosecution.
The Sandiganbayan found him guilty of technical malversation.
However, Article 220 of the Revised Penal Code provides that for
technical malversation to exist it is necessary that public funds or
properties had been diverted to any public use other than that provided
for by law or ordinance.(Emphasis supplied. See Palma Gil v. People of the
Philippines, 177 SCRA 229 [1989])
The testimony of the prosecution witness Armando Lacsamana, as
summarized by the Sandiganbayan, is as follows:
. . . The Province of Pampanga receives an annual CRBI
(Construction, Rehabilitation, Betterment and Improvement)
fund. In 1980, Barangay Jalung, Porac, was one of the recipients
of the fund in the amount of P185,250.00. CRBI funds are
released to the provincial treasurer and withdrawn by the
municipal treasurer of the municipality where a project is to be
implemented. With regard to the CRBI fund for Barangay
Jalung, their office, through Engr. Anselmo Fajardo, conferred
with the barangay captain on what project the barangay
wanted to undertake. It was agreed that the fund be utilizied
for concreting the barangay Jalung road. (TSN May 9, 1989, pp.
3-5). The project to be implemented having been determined,
their office prepared a program of work (Exh. 1-10) which
included the following supporting documents:
1. Chart for an item of work (Exh. I-11);
2. Schedule of equipment (Exh. I-12)
3. Schedule of equipment and labor (Exhs. I-13, I-14, I-15);
4. Working schedule for laborers and technical men (Exh. I-16);
5. Schedule of materials (Exh. I-17);
6. Schedule of equipment (I-18);
7. Summary of the project (Exh. I-1 9). (TSN May 9, 1989, pp. 6-
7). (Rollo, pp. 38-39)
Lacsamana's testimony shows that the CRBI fund is a general fund, and
the utilization of this fund specifically for the concreting of the Barangay
Jalung Road was merely an internal arrangement between the
Department of Public Works and Highways and the barangay captain and
was not particularly provided for by law or ordinance. There is no dispute
that the money was spent for a public purpose—payment of the wages
of laborers working on various projects in the municipality. It is pertinent
to note the high priority which laborers' wages enjoy as claims against
the employers' funds and resources. In the absence of a law or ordinance
appropriating the CRBI fund for the concreting of the Barangay Jalung
Road, the petitioner cannot be declared guilty of the crime of illegal use
of public funds.
WHEREFORE, the petition is hereby GRANTED. The decision of the
Sandiganbayan is REVERSED. The petitioner is ACQUITTED of the crime of
illegal use of public funds.
SO ORDERED.
Fernan C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Gancayco, Padilla,
Bidin, Sarmiento, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ.,
concur.
Separate Opinions
FELICIANO, J., concurring and dissenting:
I concur in the result reached in this case, to the extent that the Court is
setting aside the decision of the public respondent Sandiganbayan. I
agree that the Sandiganbayan cannot legally convict petitioner Parungao
for violation of Article 220 of the Revised Penal Code, considering that
the information filed in this case was for violation of Article 217 of the
Revised Penal Code. It appears from an examination of the elements of
the offenses penalized respectively by Articles 217 and 220 of the Revised
Penal Code, that malversation of public funds under Article 217 is not
necessarily included in, and does not necessarily include, the illegal use
of public funds under Article 220 of the same Code, and vice versa.
At the same time, I have great difficulty with the position taken by Mr.
Justice Gutierrez who, instead of setting aside the Sandiganbayan
decision without prejudice to the filing of an information under Article
220 of the Revised Penal Code, undertook to determine the merits of the
case as if such an information had in fact been filed. As I understand it,
the decision of the Court acquits petitioner Parungao of the crime of
illegal use of public funds for the reason that there appears no law or
ordinance which dedicates the funds involved in this case to "the
concreting of the Barangay Jalung Road:"
Lacsamana's testimony shows that the CRBI fund is a general
fund, and the utilization of this fund specifically for the
concreting of the Barangay Jalung Road is merely an internal
arrangement between the Department of Public Works and
highways and the Barangay Captain and was not particularly
provided for by law or ordinance. . . . In the absence of a law or
ordinance appropriating the CRBI fund for the concreting of the
Barangay Jalung Road, the petitioner cannot be declared guilty
of the crime of illegal use of public fund.
If there was indeed no law or ordinance appropriating the CRBI fund for
the concreting of Barangay Jalung Road, then it appears to me that there
was here a violation of the constitutional provision that "[n]o money shall
be paid out of the Treasury except in pursuance of an appropriation made
by law," (Article VI [29] [1], 1987 Constitution). If there were no
appropriation by law or ordinance stating (however generally) that
P185,250.00 of the CRBI funds shall or may be devoted to the concreting
of the Barangay Jalung Road, then legally no part of the CRBI fund (and
not just P59,154.41 [out of the P185,250.00] which was used to defray
labor payrolls of different barangays for different projects) could be
disbursed for that particular purpose.
I would suggest that the People of the Philippines be given an
opportunity, in a new prosecution under an appropriate information for
violation of Article 220 of the Revised Penal Code, to prove that there was
100
in fact statutory authority for the disbursement of the CRBI funds
indicating, in terms which may be more or less general in character, that
such funds may be devoted to the concreting of the Barangay Jalung
Page
Road. That possibility appears to be foreclosed by the decision here being
reached by the Court.
Examination of our statute books shows that, prima facie, there was a
law appropriating the CRBI funds (including the P185,250.00 here
involved) for the construction or improvement or repair of barangay
roads including the Barangay Jalung Road here involved.
P.D. No. 702, promulgated on 16 May 1975, created the Bureau of
Barangay Roads under the Department of Public Highways.1âwphi1 The
Bureau of Barangay Roads includes—
the Construction, Rehabilitation, Betterment and Improvement
CRBI Division which was given the responsibility for exercising
technical supervision over all the activities relating to
construction, rehabilitation, betterment and improvement of
feeder roads and bridges, establish[ing] policy guidelines;
extend[ing] consultative services and set[ting] standards and
procedures for construction, rehabilitation, betterment and
improvement works. (Section 4 [3], P.D. No. 702)
Section 5 of this statute provides as follows:
Sec. 5. Appropriations.— All national funds appropriated and
programmed by the Department of Public Highways for the
construction, rehabilitation, betterment, improvement and
maintenance of barangay roads and bridges including the
shares of provinces, cities, municipalities and the allocation for
the maintenance of farm-to-market or feeder roads and
bridges within a barangay area, from the Highway Special
Fund, shall be released to the Department of Public
Highways which shall then sub-allot them to the barangays but
construction and maintenance shall be under the supervision
of the Department of Public Highways through the Bureau of
Barangay Roads. (Emphasis supplied)
It appears that the CRBI fund referred to in the decision of the Court
formed part of the "Highway Special Fund" which in turn formed part of
the legislative appropriations pertaining to the Department of Public
Highways "for the construction, etc. of barangay roads and bridges."
In Batas Pambansa Blg. 40, the General Appropriations Act, January 1-
December 31, 1980, there were included in the appropriations for the
then Ministry of Public Highways the following items:
Current Operating Expenditures
xxx xxx xxx
3.0. Maintenance and Repair. For maintenance and repair of
national roads and bridges, toll roads, operation of quarries,
asphalt and batching plants, aid to provincial, city, and
municipal roads and bridges, and barangay roads and bridges
P1,250,156,000
xxx xxx xxx
3.6. Barangay Roads P397,232,000
xxx xxx xxx
Capital Outlays
5.0. Construction, Rehabilitation and Improvement. For
construction, rehabilitation and improvement of national roads
and bridges, aid to provincial, city and municipal roads and
bridges, barangay roads and bridges P810,467,000
xxx xxx xxx
5.4. Barangay Roads and Bridges P239,288,000
xxx xxx xxx
(Emphasis supplied)
The lump-sum of P397,232,000 for maintenance and repair of barangay
roads is broken down into sub-sums for each of the several Regions: for
Region I (which includes Pampanga), the amount of P55,442,000 was
appropriated (General Appropriations Act, CY 1980, p. 366). The lump-
sum of P239,288,000 for construction, rehabilitation and improvement
of barangay roads and bridges was similarly broken down on a region-to-
region basis, Region I being allocated the sum of P1,889,040 (Ibid., p. 368-
369).
It appears to me that the CRBI fund for barangay roads referred to in the
decision of the Court formed part of the above items of appropriation.
I am aware that the Solicitor General has recommended acquittal of
accused Parungao in this case. However, the Solicitor General
did not distinguish between setting aside the decision of the
Sandiganbayan as insupportable under the information actually filed in
this case, on the one hand, and, on the other hand, treating this case
as if an information for violation of Article 220 of the Revised Penal Code
had in fact been filed and acquitting Parungao thereunder on the merits.
I, therefore, dissent from the majority opinion to the extent that it acquits
petitioner Parungao on the merits of an information for violation of
Article 220 of the Revised Penal Code, which information has not yet in
fact been filed.
In sum, I believe the decision of the Sandiganbayan should be set aside
without prejudice to the right of the Government to file another
information this time for violation of Article 220 of the Revised Penal
Code. As shown above, that there was a violation of Article 220 is clear,
at least prima facie, from the record, even though there was no evil intent
(Understood as conversion of public funds to personal uses) on the part
of petitioner Parungao. Such an evil intent is not an element of the
offense of illegal use of public funds defined and penalized in Article 220
of the Revised Penal Code.
(2) G.R. No. 156427 January 20, 2006
AMANDO TETANGCO, Petitioner vs. THE HON. OMBUDSMAN and
MAYOR JOSE L. ATIENZA, JR., Respondents.
QUISUMBING, J.:
This petition for certiorari seeks to annul and set aside the Order,1 dated
April 16, 2002, of public respondent Ombudsman in OMB-CC-02-0151-C
which dismissed the Complaint of petitioner Amando Tetangco against
private respondent Mayor Jose L. Atienza, Jr., for violation of Article
2202 of the Revised Penal Code (RPC). Also assailed is the Order,3 dated
August 1, 2002, denying the motion for reconsideration.
On March 8, 2002, petitioner filed his Complaint before the Ombudsman
alleging that on January 26, 2001, private respondent Mayor Atienza
gave P3,000 cash financial assistance to the chairman and P1,000 to
each tanod ofBarangay 105, Zone 8, District I. Allegedly, on March 5,
2001, Mayor Atienza refunded P20,000 or the total amount of the
financial assistance from the City of Manila when such disbursement was
not justified as a lawful expense.
In his Counter-Affidavit, Mayor Atienza denied the allegations and sought
101
the dismissal of the Complaint for lack of jurisdiction and for forum-
shopping. He asserted that it was the Commission on Elections
(COMELEC), not the Ombudsman that has jurisdiction over the case and
Page
the same case had previously been filed before the COMELEC.
Furthermore, the Complaint had no verification and certificate of non-
forum shopping. The mayor maintained that the expenses were legal and
justified, the same being supported by disbursement vouchers, and these
had passed prior audit and accounting.
The Investigating Officer recommended the dismissal of the Complaint
for lack of evidence and merit. The Ombudsman adopted his
recommendation.
The Office of the Ombudsman, through its Over-all Deputy Ombudsman,
likewise denied petitioner’s motion for reconsideration.
Before us, petitioner assigns for resolution a single issue:
WHETHER OR NOT THE RESPONDENT OMBUDSMAN COMMITTED GRAVE
ABUSE OF DISCRETION WHEN IT DISMISSED THE CRIMINAL CHARGE
AGAINST RESPONDENT MAYOR ATIENZA FOR VIOLATION OF ART. 220 OF
THE RPC DESPITE THE EXISTENCE OF A PRIMA FACIE CASE AND PROBABLE
CAUSE TO INDICT HIM FOR THE CRIME CHARGED OR, AT THE VERY LEAST,
FOR VIOLATION OF SEC. 3(e) OF R.A. NO. 3019 (ANTI-GRAFT AND
CORRUPT PRACTICES ACT).4
The sole issue is, did the Ombudsman commit grave abuse of discretion
in dismissing the Complaint?
Petitioner insists that Mayor Atienza illegally disbursed public funds when
he gave the aforementioned financial assistance to the chairman
and tanods of Barangay 105 since the disbursement was not authorized
by law or ordinance, which the Ombudsman did not consider when it
dismissed the Complaint of petitioner. According to petitioner, the
dismissal by the Ombudsman was capricious since the evidence on record
was clear that the mayor was guilty of graft and corruption.5
The Ombudsman, through the Solicitor General, contends that it did not
abuse its discretion and there was also no probable cause against private
respondent for violation of Art. 220 of the RPC.6
For his part, Mayor Atienza avers that there was no grave abuse of
discretion on the part of the Ombudsman when it dismissed the
Complaint.7
After considering the submissions of the parties, we find that the petition
lacks merit. No grave abuse of discretion is attributable to the
Ombudsman.
It is well-settled that the Court will not ordinarily interfere with the
Ombudsman’s determination of whether or not probable cause exists
except when it commits grave abuse of discretion.8 Grave abuse of
discretion exists where a power is exercised in an arbitrary, capricious,
whimsical or despotic manner by reason of passion or personal hostility
so patent and gross as to amount to evasion of positive duty or virtual
refusal to perform a duty enjoined by, or in contemplation of law.9 Thus,
we held in Roxas v. Vasquez,10
… this Court’s consistent policy has been to maintain non-interference in
the determination of the Ombudsman of the existence of probable cause,
provided there is no grave abuse in the exercise of such discretion. This
observed policy is based not only on respect for the investigatory and
prosecutory powers granted by the Constitution to the Office of the
Ombudsman but upon practicality as well. Otherwise, the functions of
the Court will be seriously hampered by innumerable petitions assailing
the dismissal of investigatory proceedings conducted by the Office of the
Ombudsman with regard to complaints filed before it, in much the same
way that the courts would be extremely swamped with cases if they could
be compelled to review the exercise of discretion on the part of the fiscals
or prosecuting attorneys each time they decide to file an information in
court or dismiss a complaint by a private complainant.
In this case, the action taken by the Ombudsman cannot be characterized
as arbitrary, capricious, whimsical or despotic. The Ombudsman found no
evidence to prove probable cause. Probable cause signifies a reasonable
ground of suspicion supported by circumstances sufficiently strong in
themselves to warrant a cautious man’s belief that the person accused is
guilty of the offense with which he is charged.11 Here, the Complaint
merely alleged that the disbursement for financial assistance was neither
authorized by law nor justified as a lawful expense. Complainant did not
cite any law or ordinance that provided for an original appropriation of
the amount used for the financial assistance cited and that it was diverted
from the appropriation it was intended for.
The Complaint charges Mayor Atienza with illegal use of public funds. On
this matter, Art. 220 of the Revised Penal Code provides:
Art. 220. Illegal use of public funds or property. – Any public officer who
shall apply any public fund or property under his administration to any
public use other than that for which such fund or property were
appropriated by law or ordinance shall suffer the penalty of prision
correccional in its minimum period or a fine ranging from one-half to the
total of the sum misapplied, if by reason of such misapplication, any
damages or embarrassment shall have resulted to the public service. In
either case, the offender shall also suffer the penalty of temporary special
disqualification.
If no damage or embarrassment to the public service has resulted, the
penalty shall be a fine from 5 to 50 percent of the sum misapplied.
The elements of the offense, also known as technical malversation, are:
(1) the offender is an accountable public officer; (2) he applies public
funds or property under his administration to some public use; and (3)
the public use for which the public funds or property were applied is
different from the purpose for which they were originally appropriated
by law or ordinance. It is clear that for technical malversation to exist, it
is necessary that public funds or properties had been diverted to any
public use other than that provided for by law or ordinance. 12 To
constitute the crime, there must be a diversion of the funds from the
purpose for which they had been originally appropriated by law or
ordinance.13 Patently, the third element is not present in this case.
Conformably then with Section 2, Rule II of the Rules of Procedure of the
Office of the Ombudsman,14 the Investigating Officer may recommend
the outright dismissal of a complaint if he finds the same devoid of
merit.15That is exactly what happened in this case. Thus, no abuse of
discretion, much less grave abuse, may be attributed to the respondent
Ombudsman.
WHEREFORE, the instant petition is DISMISSED for lack of merit. No
pronouncement as to costs.
(3) G.R. No. 192330 November 14, 2012
ARNOLD JAMES M. YSIDORO, Petitioner, vs.
PEOPLE OF THE PHILIPPINES, Respondent.
ABAD, J.:
This case is about a municipal mayor charged with illegal diversion of food
intended for those suffering from malnutrition to the beneficiaries of
reconsideration projects affecting the homes of victims of calamities.
The Facts and the Case
The Office of the Ombudsman for the Visayas accused Arnold James M.
Ysidoro before the Sandiganbayan in Criminal Case 28228 of violation of
illegal use of public propertry (technical malversation) under Article 220
102
of the Revised Penal Code.1
Page
The facts show that the Municipal Social Welfare and Development Office
(MSWDO) of Leyte, Leyte, operated a Core Shelter Assistance Program
(CSAP) that provided construction materials to indigent calamity victims
with which to rebuild their homes. The beneficiaries provided the labor
needed for construction.
On June 15, 2001 when construction for calamity victims in Sitio Luy-a,
Barangay Tinugtogan, was 70% done, the beneficiaries stopped reporting
for work for the reason that they had to find food for their families. This
worried Lolita Garcia (Garcia), the CSAP Officer-in-Charge, for such
construction stoppage could result in the loss of construction materials
particularly the cement. Thus, she sought the help of Cristina Polinio
(Polinio), an officer of the MSWDO in charge of the municipality’s
Supplemental Feeding Program (SFP) that rationed food to malnourished
children. Polinio told Garcia that the SFP still had sacks of rice and boxes
of sardines in its storeroom. And since she had already distributed food
to the mother volunteers, what remained could be given to the CSAP
beneficiaries.
Garcia and Polinio went to petitioner Arnold James M. Ysidoro, the Leyte
Municipal Mayor, to seek his approval. After explaining the situation to
him, Ysidoro approved the release and signed the withdrawal slip for four
sacks of rice and two boxes of sardines worth P3,396.00 to CSAP.2 Mayor
Ysidoro instructed Garcia and Polinio, however, to consult the accounting
department regarding the matter. On being consulted, Eldelissa Elises,
the supervising clerk of the Municipal Accountant’s Office, signed the
withdrawal slip based on her view that it was an emergency situation
justifying the release of the goods. Subsequently, CSAP delivered those
goods to its beneficiaries. Afterwards, Garcia reported the matter to the
MSWDO and to the municipal auditor as per auditing rules.
On August 27, 2001 Alfredo Doller, former member of the Sangguniang
Bayan of Leyte, filed the present complaint against Ysidoro. Nierna Doller,
Alfredo's wife and former MSWDO head, testified that the subject SFP
goods were intended for its target beneficiaries, Leyte’s malnourished
children. She also pointed out that the Supplemental Feeding
Implementation Guidelines for Local Government Units governed the
distribution of SFP goods.3 Thus, Ysidoro committed technical
malversation when he approved the distribution of SFP goods to the CSAP
beneficiaries.
In his defense, Ysidoro claims that the diversion of the subject goods to a
project also meant for the poor of the municipality was valid since they
came from the savings of the SFP and the Calamity Fund. Ysidoro also
claims good faith, believing that the municipality’s poor CSAP
beneficiaries were also in urgent need of food. Furthermore, Ysidoro
pointed out that the COA Municipal Auditor conducted a comprehensive
audit of their municipality in 2001 and found nothing irregular in its
transactions.
On February 8, 2010 the Sandiganbayan found Ysidoro guilty beyond
reasonable doubt of technical malversation. But, since his action caused
no damage or embarrassment to public service, it only fined him
P1,698.00 or 50% of the sum misapplied. The Sandiganbayan held that
Ysidoro applied public property to a pubic purpose other than that for
which it has been appropriated by law or ordinance. On May 12, 2010 the
Sandiganbayan denied Ysidoro’s motion for reconsideration. On June 8,
2010 Ysidoro appealed the Sandiganbayan Decision to this Court.
The Questions Presented
In essence, Ysidoro questions the Sandiganbayan’s finding that he
committed technical malversation. He particularly raises the following
questions:
1. Whether or not he approved the diversion of the subject
goods to a public purpose different from their originally
intended purpose;
2. Whether or not the goods he approved for diversion were in
the nature of savings that could be used to augment the other
authorized expenditures of the municipality;
3. Whether or not his failure to present the municipal auditor
can be taken against him; and
4. Whether or not good faith is a valid defense for technical
malversation.
The Court’s Rulings
One. The crime of technical malversation as penalized under Article 220
of the Revised Penal Code4 has three elements: a) that the offender is an
accountable public officer; b) that he applies public funds or property
under his administration to some public use; and c) that the public use
for which such funds or property were applied is different from the
purpose for which they were originally appropriated by law or
ordinance.5 Ysidoro claims that he could not be held liable for the offense
under its third element because the four sacks of rice and two boxes of
sardines he gave the CSAP beneficiaries were not appropriated by law or
ordinance for a specific purpose.
But the evidence shows that on November 8, 2000 the Sangguniang
Bayan of Leyte enacted Resolution 00-133 appropriating the annual
general fund for 2001.6 This appropriation was based on the executive
budget7 which allocated P100,000.00 for the SFP and P113,957.64 for the
Comprehensive and Integrated Delivery of Social Services8 which covers
the CSAP housing projects.9 The creation of the two items shows the
Sanggunian’s intention to appropriate separate funds for SFP and the
CSAP in the annual budget.
Since the municipality bought the subject goods using SFP funds, then
those goods should be used for SFP’s needs, observing the rules
prescribed for identifying the qualified beneficiaries of its feeding
programs. The target clientele of the SFP according to its manual10 are: 1)
the moderately and severely underweight pre-school children aged 36
months to 72 months; and 2) the families of six members whose total
monthly income is P3,675.00 and below.11 This rule provides assurance
that the SFP would cater only to the malnourished among its people who
are in urgent need of the government’s limited resources.
Ysidoro disregarded the guidelines when he approved the distribution of
the goods to those providing free labor for the rebuilding of their own
homes. This is technical malversation. If Ysidoro could not legally
distribute the construction materials appropriated for the CSAP housing
beneficiaries to the SFP malnourished clients neither could he distribute
the food intended for the latter to CSAP beneficiaries.
Two. Ysidoro claims that the subject goods already constituted savings of
the SFP and that, therefore, the same could already be diverted to the
CSAP beneficiaries. He relies on Abdulla v. People12 which states that
funds classified as savings are not considered appropriated by law or
ordinance and can be used for other public purposes. The Court cannot
accept Ysidoro’s argument.
The subject goods could not be regarded as savings. The SFP is a
continuing program that ran throughout the year. Consequently, no one
could say in mid-June 2001 that SFP had already finished its project,
leaving funds or goods that it no longer needed. The fact that Polinio had
already distributed the food items needed by the SFP beneficiaries for the
second quarter of 2001 does not mean that the remaining food items in
its storeroom constituted unneeded savings. Since the requirements of
hungry mouths are hard to predict to the last sack of rice or can of
sardines, the view that the subject goods were no longer needed for the
remainder of the year was quite premature.
In any case, the Local Government Code provides that an ordinance has
to be enacted to validly apply funds, already appropriated for a
determined public purpose, to some other purpose. Thus:
103
SEC. 336. Use of Appropriated Funds and Savings. – Funds shall be
available exclusively for the specific purpose for which they have been
Page
appropriated. No ordinance shall be passed authorizing any transfer of
appropriations from one item to another. However, the local chief
executive or the presiding officer of the sanggunian concerned may, by
ordinance, be authorized to augment any item in the approved annual
budget for their respective offices from savings in other items within the
same expense class of their respective appropriations.
The power of the purse is vested in the local legislative body. By requiring
an ordinance, the law gives the Sanggunian the power to determine
whether savings have accrued and to authorize the augmentation of
other items on the budget with those savings.
Three. Ysidoro claims that, since the municipal auditor found nothing
irregular in the diversion of the subject goods, such finding should be
respected. The SB ruled, however, that since Ysidoro failed to present the
municipal auditor at the trial, the presumption is that his testimony
would have been adverse if produced. Ysidoro argues that this goes
against the rule on the presumption of innocence and the presumption
of regularity in the performance of official functions.
Ysidoro may be right in that there is no basis for assuming that had the
municipal auditor testified, his testimony would have been adverse to the
mayor. The municipal auditor’s view regarding the transaction is not
conclusive to the case and will not necessarily negate the mayor’s liability
if it happened to be favorable to him. The Court will not, therefore, be
drawn into speculations regarding what the municipal auditor would
have said had he appeared and testified.
Four. Ysidoro insists that he acted in good faith since, first, the idea of
using the SFP goods for the CSAP beneficiaries came, not from him, but
from Garcia and Polinio; and, second, he consulted the accounting
department if the goods could be distributed to those beneficiaries.
Having no criminal intent, he argues that he cannot be convicted of the
crime.1âwphi1
But criminal intent is not an element of technical malversation. The law
punishes the act of diverting public property earmarked by law or
ordinance for a particular public purpose to another public purpose. The
offense is mala prohibita, meaning that the prohibited act is not
inherently immoral but becomes a criminal offense because positive law
forbids its commission based on considerations of public policy, order,
and convenience.13 It is the commission of an act as defined by the law,
and not the character or effect thereof, that determines whether or not
the provision has been violated. Hence, malice or criminal intent is
completely irrelevant.14
Dura lex sed lex. Ysidoro’s act, no matter how noble or miniscule the
amount diverted, constitutes the crime of technical malversation. The
law and this Court, however, recognize that his offense is not grave,
warranting a mere fine.
WHEREFORE, this Court AFFIRMS in its entirely the assailed Decision of
the Sandiganbayan in Criminal Case 28228 dated February 8, 2010.
(4) G.R. No.166680 July 7, 2014
ALOYSIUS DAIT LUMAUIG, Petitioner, vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DEL CASTILLO, J.:
A prior notice or demand for liquidation of cash advances is not a
condition sine qua non before an accountable public officer may be held
liable under Article 2181 of the Revised Penal Code.
Before us is a Petition for Review on Certiorari filed under Rule 45 of the
Rules of Court of the September 10, 2004 Decision2 of the Sandiganbayan
in Criminal Case No. 26528 and its January 11, 2005 Resolution3 denying
reconsideration thereof.
The Information4 dated January 25, 2001 under which petitioner Aloysius
Dait Lumauig (petitioner) was tried and convicted has this accusatory
portion:
That in or about August 1994 or immediately prior or subsequent thereto,
in Alfonso Lista, Ifugao and within the jurisdiction of this Honorable Court,
the above-named accused then Municipal Mayorof Alfonso Lista, Ifugao,
and as such accountable public officer, and responsible for the amount
of ₱101,736.00 which the accused received by way of cashadvance for
payment of the insurance coverage of the twelve (12) motorcycle[s]
purchased by the Municipality, and, hence with the corresponding duty
under the law to account for the same, did then and there, willfully and
feloniously fail to liquidate and account for the same to the damage and
prejudice of the Government.5
The facts are matters of recordor otherwise undisputed.
Sometime in January 1998, Commission on Audit (COA) Auditor Florence
L. Paguirigan examined the year-end reports involving the municipal
officials of Alfonso Lista, Ifugao. During the courseof her examination of
the records and related documents of the municipality, she came across
a disbursement voucher6 for ₱101,736.00 prepared for petitioner, a
former mayor of the municipality, as cash advance for the payment of
freight and other cargo charges for 12 units of motorcycles supposed to
be donated to the municipality. The amount was covered by Land Bank
Check No. 118942007 dated August 29, 1994 wherein the payee is
petitioner. Her further investigation of the accounting records revealed
that no payment intended for the charge was made to Royal Cargo
Agencies for the month of August 1994. Thus, she issued a
certification8 to this effect on November 29, 2001. She likewise claimed
that she prepared two letters to inform the petitioner of his unliquidated
cash advance but the same were not sent to him because she could not
get his exact address despite efforts exerted. She averred that on June 4,
2001, petitioner paid the subject cash advance before the treasurer of
the municipality, for which reason, incumbent Mayor Glenn D.
Prudenciano executed an Affidavit of Desistance.9
Petitioner admitted having obtained the cash advance of ₱101,736.00
during his incumbency as municipal mayor of Alfonso Lista, Ifugao.10 This
amount was intended for the payment of freight and insurance coverage
of 12 units of motorcycles to bedonated to the municipality by the City of
Manila. However, instead of motorcycles, he was able to secure two
buses and five patrol cars. He claimed that it never came to his mind to
settle or liquidate the amount advanced since the vehicles were already
turned over to the municipality. He alleged that he was neither informed
nor did he receive any demand from COA to liquidate his cash advances.
It was only in 2001 while he was claiming for separation pay when he
came to know that he still has an unliquidated cash advance. And so as
not toprolong the issue, he paidthe amount of ₱101,736.00 to the
municipal treasurer on June 4, 2001.
From the same facts stemmed an Information for violation of Section 3
of Republic Act (RA) No. 301911 docketed as CriminalCase No. 26527
against petitioner for having allegedly utilized the cash advance for a
purpose other than for which it was obtained.
On September 10, 2004, after a joint trial, the Sandiganbayanrendered a
consolidated Decision12 disposing thusly:
WHEREFORE, premises consideredthe Court rules as follows:
1. In Criminal Case No. 26527, accused ALOYSIUS DAIT
LUMAUIG is hereby ACQUITTED. No civil liability shall be
imposed there being no basis for its award. The cash
bondposted for his provisional liberty is ordered returned to
him, subject to the usual accounting and auditing procedure;
104
and
2. In Criminal Case No. 26528, accused ALOYSIUS DAIT
Page
LUMAUIG is hereby CONVICTED of the felony of Failure of
 Accountable Officer to Render Accounts under Article 218 of
the Revised Penal Code. He is hereby sentenced to a straight
penalty of six months and one (1) day and a fine of
Php1,000.00.
SO ORDERED.13
On January 11, 2005, the Sandiganbayanpromulgated its
Resolution14 denying petitioner’s UrgentMotion for Reconsideration.15
Hence, this Petition.
(3) That he or she causes undue injury toany party, whether the
government or a private party;
(4) That such injury is caused by giving unwarranted benefits,
advantage or preference to such parties; and
(5) That the public officer has acted withmanifest partiality,
evident bad faith or gross inexcusable negligence.17
On the other hand, the elements of the felony punishable under Article
218 of the Revised Penal Code are:
x x x [W]e are asked to resolve whether demand is necessary for a
conviction of a violation of Article 218 of the Revised Penal Code.
Citing United States v. Saberon, petitioner contends that Article 218
punishes the refusal of a public employee to render an account of funds
in his charge when duly required by a competent officer. He argues that
he cannot be convicted of the crime unless the prosecution has proven
that there was a demand for him to render an account. Petitioner asserts
that COA Circular No. 90-331 provides that the public officer shall be
criminally liable for failure to settle his accounts after demand had been
made. Moreover, petitioner asserts that the case had become moot and
academic since he already submitted his liquidation report.

After a thorough review of the records of the case and a judicious (1) That the offender is a public officer whether in the service
For the People, the Office of the Special Prosecutor (OSP) counters that
consideration of the arguments of the petitioner, the Court does not find or separated therefrom;
demand is not an element of the offense and that it is sufficient that there
sufficient basis to reverse the judgment of conviction. From the prevailing
is a law or regulation requiring the public officer to render an account.
facts, we entertain no doubt on the guilt of petitioner. (2) That he must be an accountable officer for public funds or The OSP insists that Executive Order No. 292, Presidential Decree No.
property; 1445, the COA Laws and Regulations, and even the Constitution mandate
The acquittal of petitioner in the anti- that public officers render an account of funds in their charge. It
graft case is not a bar to his conviction (3) That he is required by law or regulation to render accounts maintains that the instant case differs from Saberonwhich involved a
for failure to render an account in the to the COA or to a provincial auditor; and, violation of Act No. 1740 where prior demand was required. In this case
present case. involving a violation of Article 218, prior demand is not required.
(4) That he fails to do so for a period oftwo months after such Moreover, the OSP points out that petitioner even admitted his failure to
Petitioner stakes the present Petition on the assertion that since the account should be rendered.18 liquidate the funds within the prescribed period, hence, he should be
cases for which he was indicted involve the same subject cash advance in convicted of the crime.
the amount of ₱101,736.00, his exoneration in the anti-graft case should
The glaring differences between the elements of these two offenses
likewise exculpate him from further liability in the present case. We shall now resolve the issue at hand.
necessarily imply that the requisite evidence to establish the guilt or
innocence of the accused would certainly differ in each case. Hence,
We are not persuaded. petitioner’s acquittal in the anti-graft case provides no refuge for him Article 218 consists ofthe following elements:
inthe present case given the differences between the elements ofthe two
It is undisputed that the two charges stemmed from the same incident. offenses. 1. that the offender is a public officer, whether in the service or
"However, [we have] consistently held thatthe same act may give rise to separated therefrom;
two or more separate and distinct charges."16 Further, because there is a Prior demand to liquidate is not a
variance between the elements of the two offenses charged, petitioner requisite for conviction under Article 2. that he must be an accountable officer for public funds or
cannot safely assume that his innocence in one case will extend to the 218 of the Revised Penal Code. property;
other case even if both cases hinge on the same set of evidence.
The central aspect of petitioner’s next argument is that he was not 3. that he is required by law or regulation to render accounts to
To hold a person criminally liable under Section 3(e)of RA 3019, the reminded of his unliquidated cash advances. The Office of the Special the Commission on Audit, or to a provincial auditor; and
following elements must be present: Prosecutor countered that Article 218 does not require the COA orthe
provincial auditor to first make a demand before the public officer should
4. that he fails to do so for a period of two months after such
(1) That the accused is a public officer or a private person render an account. It is sufficient that there is a law or regulation
accounts should be rendered. Nowhere in the provision does it
charged in conspiracy with the former; requiring him to render an account. The question has been settled in
require that there first be a demand before an accountable

(2) That said public officer commitsthe prohibited acts during
the performance of his or her official duties or in relation to his
105
Manlangit v. Sandiganbayan19 where we ruled that prior demand to
officer is held liable for a violation of the crime. The law is very
liquidate is not necessary to hold an accountable officer liable for
clear. Where none is provided, the court may not introduce
violation of Article 218 of the Revised Penal Code:
exceptions or conditions, neither may it engraft into the law

Page
or her public positions; qualifications not contemplated. Where the law is clear and
 unambiguous, it must be taken to mean exactly what it says and
the court has no choice but to see to it that its mandate is
obeyed. There is no room for interpretation, but only
application.
Petitioner’s reliance on Saberonis misplaced. As correctly pointed out by
the OSP, Saberoninvolved a violation of Act No. 1740 whereas the
present case involves a violation of Article 218 of the Revised Penal Code.
Article 218 merely provides that the public officer berequired by law and
regulation to render account. Statutory construction tells us that in the
revision or codification of laws, all parts and provisions of the old laws
that are omitted in the revised statute or code are deemed repealed,
unless the statute or code provides otherwise.20
Petitioner is liable for violation of Article 218 of the Revised Penal Code.
Section 5 of COA Circular No. 90-331, the circular in force at the time
petitioner availed of the subject cash advance, pertinently provides:
5. LIQUIDATION OFCASH ADVANCES
5.1 The AO (Accountable Officer) shall liquidate his cash advance as
follows:
xxxx
5.1.2 Petty Operating Expenses and Field Operating Expenses - within 20
days after the end of the year; subject to replenishment during the year.
Since petitioner received the subject cash advance sometime in 1994, he
was, thus, required to liquidate the same on or before January 20, 1995.
Further, to avoid liability under Article 218, he should have liquidated the
cash advance within two months from the time it was due, or on or before
March 20, 1995. In the case at bar, petitioner liquidated the subject cash
advance only on June 4, 2001. Hence, as correctly found by the
Sandiganbayan,petitioner was liable for violation of Article 218 because
it took him over six years before settling his accounts.
The penalty imposed on petitioner should be modified.
Petitioner argues that assuming that he is liable for violation of Article
218, he should be meted a lesser penalty considering that (1) he
subsequently liquidated the subject cash advance when he later
discovered and was confronted with his delinquency, and (2) the COA did
not immediately inform him of his unliquidated cash advance.
On this point, we partially agree with petitioner.
In sentencing petitioner to a straight penalty of six months and one day
of prisión correccionaland a fine of ₱1,000.00, the Sandiganbayan
correctly considered the mitigating circumstance of voluntary surrender,
as borne by the records,21 in favor of petitioner.However, it failed
toconsider the mitigating circumstance of return or full restitution of the
funds that were previously unliquidated.
In malversation of public funds, the payment, indemnification, or
reimbursement of the funds misappropriated may be considered a
mitigating circumstance being analogousto voluntary
surrender.22 Although this case does not involve malversation ofpublic
funds under Article 217 of the Revised Penal Code but rather failure to
render an account under Article 218 (i.e., the succeeding Article found in
the same Chapter), the same reasoning may be applied to the return or
full restitution ofthe funds that were previously unliquidated in
considering the same as a mitigating circumstance in favor of petitioner.
The prescribed penalty for violation of Article 218 is prisión correccionalin
its minimum period or six months and one day to two years and four
months, or by a fine ranging from 200to 6,000 pesos, orboth. Considering
that there are two mitigating circumstances and there are no aggravating
circumstances, under Article 64 (5)23 of the Revised Penal Code, the
imposable penalty is the penalty next lower to the prescribed penalty
which, in this case, is arresto mayorin its maximum period or four months
and one day to six months.1âwphi1
The Indeterminate Sentence Law, under Section 2,24 is not applicable to,
among others, cases where the maximum term of imprisonment does not
exceed one year. In determining "whether an indeterminate sentence
and not a straight penalty is proper, what is considered is the penalty
actually imposed by the trial court, after considering the attendant
circumstances, and not the imposable penalty."25 In the case at bar, since
the maximum of the imposable penalty is six months, then the possible
maximum term that can be actually imposed is surely less than one year.
Hence, the Indeterminate Sentence Law is notapplicable to the present
case. As a result, and in view of the attendant circumstances in this case,
we deem it proper to impose a straight penalty of four months and one
day of arresto mayorand delete the imposition of fine.
WHEREFORE, the Petition is GRANTED IN PART. The Decision of the
Sandiganbayanin Criminal Case No. 26528 dated September 10, 2004
convicting petitioner of the felony of Failure of Accountable Officer to
Render Accounts under Article 218 of the Revised Penal Code is
AFFIRMEDwith the following MODIFICATIONS:
1. Petitioner is sentenced to a straight penalty of four months and one
day of arresto mayor, and 2. The imposition of finein the amount of
₱1,000.00 is deleted.
R.A 3019, The Anti-Graft and Corrupt Practices Act
(1) G.R. Nos. 147026-27 September 11, 2009
CAROLINA R. JAVIER, Petitioner, vs. THE FIRST DIVISION OF THE
SANDIGANBAYAN and the PEOPLE OF THE PHILIPPINES, Respondents.
DEL CASTILLO, J.:
Before the Court is a petition for certiorari1 under Rule 65 of the Rules of
Court filed by petitioner Carolina R. Javier in Criminal Case Nos. 25867
and 25898, entitled "People of the Philippines, Plaintiff versus Carolina R.
Javier, Accused," seeking to nullify respondent Sandiganbayan's: (1)
Order2 dated November 14, 2000 in Criminal Case No. 25867, which
denied her Motion to Quash Information; (2) Resolution3 dated January
17, 2001 in Criminal Case No. 25898, which denied her Motion for
Reconsideration and Motion to Quash Information; and (3) Order4 dated
February 12, 2001, declaring that a motion for reconsideration in Criminal
Case No. 25898 would be superfluous as the issues are fairly simple and
straightforward.
The factual antecedents follow.
On June 7, 1995, Republic Act (R.A.) No. 8047,5 or otherwise known as
the "Book Publishing Industry Development Act", was enacted into law.
Foremost in its policy is the State's goal in promoting the continuing
development of the book publishing industry, through the active
participation of the private sector, to ensure an adequate supply of
affordable, quality-produced books for the domestic and export market.
To achieve this purpose, the law provided for the creation of the National
Book Development Board (NBDB or the Governing Board, for brevity),
which shall be under the administration and supervision of the Office of
the President. The Governing Board shall be composed of eleven (11)
members who shall be appointed by the President of the Philippines, five
106
(5) of whom shall come from the government, while the remaining six (6)
shall be chosen from the nominees of organizations of private book
publishers, printers, writers, book industry related activities, students
Page
and the private education sector.
On February 26, 1996, petitioner was appointed to the Governing Board
as a private sector representative for a term of one (1) year.6 During that
time, she was also the President of the Book Suppliers Association of the
Philippines (BSAP). She was on a hold-over capacity in the following year.
On September 14, 1998, she was again appointed to the same position
and for the same period of one (1) year.7 Part of her functions as a
member of the Governing Board is to attend book fairs to establish
linkages with international book publishing bodies. On September 29,
1997, she was issued by the Office of the President a travel authority to
attend the Madrid International Book Fair in Spain on October 8-12,
1997.8 Based on her itinerary of travel,9 she was paid ₱139,199.0010 as
her travelling expenses.
Unfortunately, petitioner was not able to attend the scheduled
international book fair.
On February 16, 1998, Resident Auditor Rosario T. Martin advised
petitioner to immediately return/refund her cash advance considering
that her trip was canceled.11 Petitioner, however, failed to do so. On July
6, 1998, she was issued a Summary of Disallowances12 from which the
balance for settlement amounted to ₱220,349.00. Despite said notice, no
action was forthcoming from the petitioner.
On September 23, 1999, Dr. Nellie R. Apolonio, then the Executive
Director of the NBDB, filed with the Ombudsman a complaint against
petitioner for malversation of public funds and properties. She averred
that despite the cancellation of the foreign trip, petitioner failed to
liquidate or return to the NBDB her cash advance within sixty (60) days
from date of arrival, or in this case from the date of cancellation of the
trip, in accordance with government accounting and auditing rules and
regulations. Dr. Apolonio further charged petitioner with violation of
Republic Act (R.A.) No. 671313 for failure to file her Statement of Assets
and Liabilities.
The Ombudsman found probable cause to indict petitioner for violation
of Section 3(e) of R.A. No. 3019,14 as amended, and recommended the
filing of the corresponding information.15 It, however, dismissed for
insufficiency of evidence, the charge for violation of R.A. No. 6713.
In an Information dated February 18, 2000, petitioner was charged with
violation of Section 3(e) of R.A. No. 3019 before the Sandiganbayan, to
wit:
That on or about October 8, 1997, or for sometime prior or subsequent
thereto, in the City of Quezon, Philippines and within the jurisdiction of
this Honorable Court, the aforenamed accused, a public officer, being
then a member of the governing Board of the National Book
Development Board (NBDB), while in the performance of her official and
administrative functions, and acting with evident bad faith or gross
inexcusable negligence, did then and there willfully, unlawfully and
criminally, without any justifiable cause, and despite due demand by the
Resident Auditor and the Executive Director of NBDB, fail and refuse to
return and/or liquidate her cash advances intended for official travel
abroad which did not materialize, in the total amount of ₱139,199.00 as
of September 23, 1999, as required under EO No. 248 and Sec. 5 of COA
Circular No. 97-002 thereby causing damage and undue injury to the
Government.
CONTRARY TO LAW.16
The case was docketed as Criminal Case No. 25867 and raffled to the First
Division.
Meanwhile, the Commission on Audit charged petitioner with
Malversation of Public Funds, as defined and penalized under Article 217
of the Revised Penal Code, for not liquidating the cash advance granted
to her in connection with her supposed trip to Spain. During the conduct
of the preliminary investigation, petitioner was required to submit her
counter-affidavit but she failed to do so. The Ombudsman found
probable cause to indict petitioner for the crime charged and
recommended the filing of the corresponding information against her. 17
Thus, an Information dated February 29, 2000 was filed before the
Sandiganbayan, which was docketed as Criminal Case No. 25898, and
raffled to the Third Division, the accusatory portion of which reads:
That on or about and during the period from October 8, 1997 to February
16, 1999, or for sometime prior or subsequent thereto, in Quezon City,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, a high ranking officer, being a member of the
Governing Board of the National Book Development Board and as such,
is accountable for the public funds she received as cash advance in
connection with her trip to Spain from October 8-12, 1997, per LBP Check
No. 10188 in the amount of ₱139,199.00, which trip did not materialize,
did then and there willfully, unlawfully and feloniously take, malverse,
misappropriate, embezzle and convert to her own personal use and
benefit the aforementioned amount of ₱139,199.00, Philippine currency,
to the damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.18
During her arraignment in Criminal Case No. 25867, petitioner pleaded
not guilty. Thereafter, petitioner delivered to the First Division the money
subject of the criminal cases, which amount was deposited in a special
trust account during the pendency of the criminal cases.
Meanwhile, the Third Division set a clarificatory hearing in Criminal Case
No. 25898 on May 16, 2000 in order to determine jurisdictional issues.
On June 3, 2000, petitioner filed with the same Division a Motion for
Consolidation19of Criminal Case No. 25898 with Criminal Case No. 25867,
pending before the First Division. On July 6, 2000, the People filed
an Urgent Ex-Parte Motion to Admit Amended Information20 in Criminal
Case No. 25898, which was granted. Accordingly, the Amended
Information dated June 28, 2000 reads as follows:
That on or about and during the period from October 8, 1997 to February
16, 1999, or for sometime prior or subsequent thereto, in Quezon City,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, a high ranking officer, being a member of the
Governing Board of the National Book Development Board equated to
Board Member II with a salary grade 28 and as such, is accountable for
the public funds she received as case advance in connection with her trip
to Spain from October 8-12, 1997, per LBP Check No. 10188 in the
amount of ₱139,199.00, which trip did not materialize, did then and there
willfully, unlawfully and feloniously take, malverse, misappropriate,
embezzle and convert to her own personal use and benefit the
aforementioned amount of ₱139,199.00, Philippine currency, to the
damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.21
In its Resolution dated October 5, 2000, the Third Division ordered the
consolidation of Criminal Case No. 25898 with Criminal Case No. 25867. 22
On October 10, 2000, petitioner filed a Motion to Quash
Information,23 averring that the Sandiganbayan has no jurisdiction to
hear Criminal Case No. 25867 as the information did not allege that she
is a public official who is classified as Grade "27" or higher. Neither did
the information charge her as a co-principal, accomplice or accessory to
a public officer committing an offense under the Sandiganbayan's
jurisdiction. She also averred that she is not a public officer or employee
and that she belongs to the Governing Board only as a private sector
representative under R.A. No. 8047, hence, she may not be charged
under R.A. No. 3019 before the Sandiganbayan or under any statute
which covers public officials. Moreover, she claimed that she does not
perform public functions and is without any administrative or political
107
power to speak of – that she is serving the private book publishing
industry by advancing their interest as participant in the government's
book development policy.
Page
In an Order24 dated November 14, 2000, the First Division25 denied the
motion to quash with the following disquisition:
The fact that the accused does not receive any compensation in terms of
salaries and allowances, if that indeed be the case, is not the sole
qualification for being in the government service or a public official. The
National Book Development Board is a statutory government agency and
the persons who participated therein even if they are from the private
sector, are public officers to the extent that they are performing their
duty therein as such.
Insofar as the accusation is concerned herein, it would appear that
monies were advanced to the accused in her capacity as Director of the
National Book Development Board for purposes of official travel. While
indeed under ordinary circumstances a member of the board remains a
private individual, still when that individual is performing her functions as
a member of the board or when that person receives benefits or when
the person is supposed to travel abroad and is given government money
to effect that travel, to that extent the private sector representative is a
public official performing public functions; if only for that reason, and not
even considering situation of her being in possession of public funds even
as a private individual for which she would also covered by provisions of
the Revised Penal Code, she is properly charged before this Court.
On November 15, 2000, the First Division accepted the consolidation of
the criminal cases against petitioner and scheduled her arraignment on
November 17, 2000, for Criminal Case No. 25898. On said date, petitioner
manifested that she is not prepared to accept the propriety of the
accusation since it refers to the same subject matter as that covered in
Criminal Case No. 25867 for which the Sandiganbayan gave her time to
file a motion to quash. On November 22, 2000, petitioner filed a Motion
to Quash the Information26 in Criminal Case No. 25898, by invoking her
right against double jeopardy. However, her motion was denied in open
court. She then filed a motion for reconsideration.
On January 17, 2001, the Sandiganbayan issued a Resolution27 denying
petitioner’s motion with the following disquisition:
The accused is under the jurisdiction of this Court because Sec. 4 (g) of
P.D. 1606 as amended so provides, thus:
Sec. 4. Jurisdiction. – The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
xxxx
(g) Presidents, directors or trustees, or managers of government-owned
or controlled corporations, state universities or educational institutions
or foundations;
xxxx
The offense is office-related because the money for her travel abroad was
given to her because of her Directorship in the National Book
Development Board.
Furthermore, there are also allegations to hold the accused liable under
Article 222 of the Revised Penal Code which reads:
Art. 222. Officers included in the preceding provisions. – The provisions
of this chapter shall apply to private individuals who, in any capacity
whatever, have charge of any insular, provincial or municipal funds,
revenues, or property and to any administrator or depository of funds or
property attached , seized or deposited by public authority, even if such
property belongs to a private individual.
Likewise, the Motion to Quash the Information in Criminal Case No.
25898 on the ground of litis pendencia is denied since in this instance,
these two Informations speak of offenses under different statutes, i.e.,
R.A. No. 3019 and the Revised Penal Code, neither of which precludes
prosecution of the other.
Petitioner hinges the present petition on the ground that the
Sandiganbayan has committed grave abuse of discretion amounting to
lack of jurisdiction for not quashing the two informations charging her
with violation of the Anti-Graft Law and the Revised Penal Code on
malversation of public funds. She advanced the following arguments in
support of her petition, to wit: first, she is not a public officer, and second,
she was being charged under two (2) informations, which is in violation
of her right against double jeopardy.
A motion to quash an Information is the mode by which an accused
assails the validity of a criminal complaint or Information filed against him
for insufficiency on its face in point of law, or for defects which are
apparent in the face of the Information.28
Well-established is the rule that when a motion to quash in a criminal
case is denied, the remedy is not a petition for certiorari, but for
petitioners to go to trial, without prejudice to reiterating the special
defenses invoked in their motion to quash. Remedial measures as regards
interlocutory orders, such as a motion to quash, are frowned upon and
often dismissed. The evident reason for this rule is to avoid multiplicity of
appeals in a single action.29
The above general rule, however admits of several exceptions, one of
which is when the court, in denying the motion to dismiss or motion to
quash, acts without or in excess of jurisdiction or with grave abuse of
discretion, then certiorari or prohibition lies. The reason is that it would
be unfair to require the defendant or accused to undergo the ordeal and
expense of a trial if the court has no jurisdiction over the subject matter
or offense, or is not the court of proper venue, or if the denial of the
motion to dismiss or motion to quash is made with grave abuse of
discretion or a whimsical and capricious exercise of judgment. In such
cases, the ordinary remedy of appeal cannot be plain and adequate.30
To substantiate her claim, petitioner maintained that she is not a public
officer and only a private sector representative, stressing that her only
function among the eleven (11) basic purposes and objectives provided
for in Section 4, R.A. No. 8047, is to obtain priority status for the book
publishing industry. At the time of her appointment to the NDBD Board,
she was the President of the BSAP, a book publishers association. As such,
she could not be held liable for the crimes imputed against her, and in
turn, she is outside the jurisdiction of the Sandiganbayan.
The NBDB is the government agency mandated to develop and support
the Philippine book publishing industry. It is a statutory government
agency created by R.A. No. 8047, which was enacted into law to ensure
the full development of the book publishing industry as well as for the
creation of organization structures to implement the said policy. To
achieve this end, the Governing Board of the NBDB was created to
supervise the implementation. The Governing Board was vested with
powers and functions, to wit:
a) assume responsibility for carrying out and implementing the
policies, purposes and objectives provided for in this Act;
b) formulate plans and programs as well as operational policies
and guidelines for undertaking activities relative to promoting
book development, production and distribution as well as an
incentive scheme for individual authors and writers;
c) formulate policies, guidelines and mechanisms to ensure that
editors, compilers and especially authors are paid justly and
promptly royalties due them for reproduction of their works in
108
any form and number and for whatever purpose;
Page
d) conduct or contract research on the book publishing industry
including monitoring, compiling and providing data and
information of book production;
e) provide a forum for interaction among private publishers,
and, for the purpose, establish and maintain liaison will all the
segments of the book publishing industry;
f) ask the appropriate government authority to ensure effective
implementation of the National Book Development Plan;
g) promulgate rules and regulations for the implementation of
this Act in consultation with other agencies concerned, except
for Section 9 hereof on incentives for book development, which
shall be the concern of appropriate agencies involved;
h) approve, with the concurrence of the Department of Budget
and Management (DBM), the annual and supplemental
budgets submitted to it by the Executive director;
i) own, lease, mortgage, encumber or otherwise real and
personal property for the attainment of its purposes and
objectives;
j) enter into any obligation or contract essential to the proper
administration of its affairs, the conduct of its operations or the
accomplishment of its purposes and objectives;
k) receive donations, grants, legacies, devices and similar
acquisitions which shall form a trust fund of the Board to
accomplish its development plans on book publishing;
l) import books or raw materials used in book publishing which
are exempt from all taxes, customs duties and other charges in
behalf of persons and enterprises engaged in book publishing
and its related activities duly registered with the board;
m) promulgate rules and regulations governing the matter in
which the general affairs of the Board are to be exercised and
amend, repeal, and modify such rules and regulations
whenever necessary;
n) recommend to the President of the Philippines nominees for
the positions of the Executive Officer and Deputy Executive
Officer of the Board;
o) adopt rules and procedures and fix the time and place for
holding meetings: Provided, That at least one (1) regular
meeting shall be held monthly;
p) conduct studies, seminars, workshops, lectures,
conferences, exhibits, and other related activities on book
development such as indigenous authorship, intellectual
property rights, use of alternative materials for printing,
distribution and others; and
q) exercise such other powers and perform such other duties
as may be required by the law.31
A perusal of the above powers and functions leads us to conclude that
they partake of the nature of public functions. A public office is the right,
authority and duty, created and conferred by law, by which, for a given
period, either fixed by law or enduring at the pleasure of the creating
power, an individual is invested with some portion of the sovereign
functions of the government, to be exercised by him for the benefit of
the public. The individual so invested is a public officer.32
Notwithstanding that petitioner came from the private sector to sit as a
member of the NBDB, the law invested her with some portion of the
sovereign functions of the government, so that the purpose of the
government is achieved. In this case, the government aimed to enhance
the book publishing industry as it has a significant role in the national
development. Hence, the fact that she was appointed from the public
sector and not from the other branches or agencies of the government
does not take her position outside the meaning of a public office. She was
appointed to the Governing Board in order to see to it that the purposes
for which the law was enacted are achieved. The Governing Board acts
collectively and carries out its mandate as one body. The purpose of the
law for appointing members from the private sector is to ensure that they
are also properly represented in the implementation of government
objectives to cultivate the book publishing industry.
Moreover, the Court is not unmindful of the definition of a public officer
pursuant to the Anti-Graft Law, which provides that a public officer
includes elective and appointive officials and employees, permanent or
temporary, whether in the classified or unclassified or exempt service
receiving compensation, even nominal, from the government.33
Thus, pursuant to the Anti-Graft Law, one is a public officer if one has
been elected or appointed to a public office. Petitioner was appointed by
the President to the Governing Board of the NDBD. Though her term is
only for a year that does not make her private person exercising a public
function. The fact that she is not receiving a monthly salary is also of no
moment. Section 7, R.A. No. 8047 provides that members of the
Governing Board shall receive per diem and such allowances as may be
authorized for every meeting actually attended and subject to pertinent
laws, rules and regulations. Also, under the Anti-Graft Law, the nature of
one's appointment, and whether the compensation one receives from
the government is only nominal, is immaterial because the person so
elected or appointed is still considered a public officer.
On the other hand, the Revised Penal Code defines a public officer as any
person who, by direct provision of the law, popular election, popular
election or appointment by competent authority, shall take part in the
performance of public functions in the Government of the Philippine
Islands, or shall perform in said Government or in any of its branches
public duties as an employee, agent, or subordinate official, of any rank
or classes, shall be deemed to be a public officer.34
Where, as in this case, petitioner performs public functions in pursuance
of the objectives of R.A. No. 8047, verily, she is a public officer who takes
part in the performance of public functions in the government whether
as an employee, agent, subordinate official, of any rank or classes. In fact,
during her tenure, petitioner took part in the drafting and promulgation
of several rules and regulations implementing R.A. No. 8047. She was
supposed to represent the country in the canceled book fair in Spain.
In fine, We hold that petitioner is a public officer. The next question for
the Court to resolve is whether, as a public officer, petitioner is within the
jurisdiction of the Sandiganbayan.
Presently,35 the Sandiganbayan has jurisdiction over the following:
Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
A. Violations of Republic Act No. 3019, as amended, other known as the
Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter
II, Section 2, Title VII, Book II of the Revised Penal Code, where one or
more of the accused are officials occupying the following positions in the
government, whether in a permanent, acting or interim capacity, at the
time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of
regional director and higher, otherwise classified as Grade "27"
109
and higher, of the Compensation and Position Classification Act
of 989 (Republic Act No. 6758), specifically including:
Page
xxxx
 (2) Members of Congress and officials thereof classified as
Grade "Grade '27'" and up under the Compensation and
Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the
provisions of the Constitution;
(4) Chairmen and members of Constitutional Commission,
without prejudice to the provisions of the Constitution; and
(5) All other national and local officials classified as Grade
"Grade '27'" and higher under the Compensation and Position
Classification Act of 1989.
xxxx
Notably, the Director of Organization, Position Classification and
Compensation Bureau, of the Department of Budget and management
provided the following information regarding the compensation and
position classification and/or rank equivalence of the member of the
Governing Board of the NBDB, thus:
Per FY 1999 Personal Services Itemization, the Governing Board of NDBD
is composed of one (1) Chairman (ex-officio), one (1) Vice-Chairman (ex-
officio), and nine (9) Members, four (4) of whom are ex-officio and the
remaining five (5) members represent the private sector. The said five
members of the Board do not receive any salary and as such their position
are not classified and are not assigned any salary grade.
For purposes however of determining the rank equivalence of said
positions, notwithstanding that they do not have any salary grade
assignment, the same may be equated to Board Member II, SG-28.36
Thus, based on the Amended Information in Criminal Case No. 25898,
petitioner belongs to the employees classified as SG-28, included in the
phrase "all other national and local officials classified as ‘Grade 27' and
higher under the Compensation and Position Classification Act of 1989."
Anent the issue of double jeopardy, We can not likewise give in to the
contentions advanced by petitioner. She argued that her right against
double jeopardy was violated when the Sandiganbayan denied her
motion to quash the two informations filed against her.1avvphi1
We believe otherwise. Records show that the Informations in Criminal
Case Nos. 25867 and 25898 refer to offenses penalized by different
statues, R.A. No. 3019 and RPC, respectively. It is elementary that for
double jeopardy to attach, the case against the accused must have been
dismissed or otherwise terminated without his express consent by a court
of competent jurisdiction, upon valid information sufficient in form and
substance and the accused pleaded to the charge.37 In the instant case,
petitioner pleaded not guilty to the Information for violation of the Anti-
Graft Law. She was not yet arraigned in the criminal case for malversation
of public funds because she had filed a motion to quash the latter
information. Double jeopardy could not, therefore, attach considering
that the two cases remain pending before the Sandiganbayan and that
herein petitioner had pleaded to only one in the criminal cases against
her.
It is well settled that for a claim of double jeopardy to prosper, the
following requisites must concur: (1) there is a complaint or information
or other formal charge sufficient in form and substance to sustain a
conviction; (2) the same is filed before a court of competent jurisdiction;
(3) there is a valid arraignment or plea to the charges; and (4) the accused
is convicted or acquitted or the case is otherwise dismissed or terminated
without his express consent.38The third and fourth requisites are not
present in the case at bar.
In view of the foregoing, We hold that the present petition does not fall
under the exceptions wherein the remedy of certiorari may be resorted
to after the denial of one's motion to quash the information. And even
assuming that petitioner may avail of such remedy, We still hold that the
Sandiganbayan did not commit grave abuse of discretion amounting to
lack of or in excess of jurisdiction.
WHEREFORE, the Petition is DISMISSED. The questioned Resolutions and
Order of the Sandiganbayan are AFFIRMED. Costs against petitioner.
(2) G.R. Nos. 175045-46 March 3, 2010
ENGR. RICARDO L. SANTILLANO, Petitioner, vs.
PEOPLE OF THE PHILIPPINES, Respondent.
VELASCO, JR., J.:
This is an appeal from the October 13, 2006 Decision of the
Sandiganbayan entitled People of the Philippines v. Ecleo, Jr., et al.
(Criminal Case Nos. 24467-24468) and People of the Philippines v. Ecleo,
Jr. and Orejas (Criminal Case No. 24469), finding petitioner Ricardo
Santillano guilty of three counts of violation of Section 3(e) of Republic
Act No. (RA) 3019 or the Anti-Graft and Corrupt Practices Act.
Santillano was charged along with three others in the following
Informations:
Criminal Case No. 24467
That on or about the period September 23, 1991 to March 4, 1993, or
sometime prior or subsequent thereto, in the municipality of San Jose,
Surigao del Norte, Philippines and within the jurisdiction of this
Honorable Court, accused Ruben B. Ecleo, Jr., Arsenia N. Orejas and
Anadelia N. Navarra, all public officers being then the Municipal Mayor,
Municipal Treasurer and Municipal Planning and Development
Coordinator and designated Municipal Engineer, respectively, of San
Jose, Surigao del Norte, with salary grades below 27, except for accused
Ecleo with salary grade 27 and therefore a high ranking officer; while in
the discharge of their official duties and functions, in conspiracy with
accused Ricardo L, Santillano, proprietor of PBMA Builders, San Jose,
Surigao del Norte, through manifest partiality, evident bad faith or gross
inexcusable negligence, did then and there, willfully, unlawfully, and
criminally, cause the approval and release of funds in the total amount of
P4,008,005.00 as payment to accused Ricardo L. Santillano for the
construction of a public market, despite the fact that the project
accomplishment was only equivalent to P3,563,247.83 thereby giving
unwarranted benefits, advantage or preference to Ricardo L. Santillano
and causing undue injury to the government in the total amount of
P444,575.17.
CONTRARY TO LAW.1
Criminal Case No. 24468
That on or about the period June 21, 1993 to July 22, 1993, or sometime
prior or subsequent thereto, in the municipality of San Jose, Surigao del
Norte, Philippines and within the jurisdiction of this Honorable Court,
accused Ruben B. Ecleo, Jr., Arsenia N. Orejas, and Anadelia N. Navarra,
all public officers, being then the Municipal Mayor, Municipal Treasurer,
and Municipal Planning and Development Coordinator and designated
Municipal Engineer, respectively, of San Jose, Surigao del Norte, with
salary grades below grade 27, except for accused Ecleo with salary grade
27 and therefore a high ranking officer; while in the discharge of their
official duties and functions, in conspiracy with accused Ricardo L.
Santillano, proprietor of PBMA Builders, San Jose, Surigao del Norte,
through manifest partiality, evident bad faith or gross inexcusable
negligence, did then and there, willfully, unlawfully and criminally, cause
110
the approval and release of funds in the total amount of P3,949,664.00
as payment to accused Ricardo L. Santillano for the construction of a
municipal building, despite the fact that the contract price was only
Page
P3,684,575.00, and despite the fact that the project accomplishment was
only 37.38% or equivalent to P1,437,024.30, thereby giving unwarranted
benefits, advantage or preference to Ricardo L. Santillano and causing
undue injury to the government in the total amount of P2,412,639.70.
CONTRARY TO LAW.2
Criminal Case No. 24469
That on or about the year 1994, or sometime prior or subsequent thereto,
in the municipality of San Jose, Surigao del Norte, Philippines and within
the jurisdiction of this Honorable Court, accused Ruben B. Ecleo, Jr., and
Arsenia N. Orejas, all public officers, being then the Municipal Mayor with
salary grade above grade 27, and Municipal Treasurer, with salary grade
below 27, respectively of San Jose, Surigao del Norte; while in the
discharge of their official duties and functions, in conspiracy with one
another, through manifest partiality, evident bad faith or gross
inexcusable negligence, did then and there, willfully, unlawfully and
criminally, cause the approval and release of funds in the total amount of
P300,000.00 for the repair and rehabilitation of a building owned by the
PBMA Women’s League, a private organization, thereby giving
unwarranted benefits, advantage or preference to the PBMA Women’s
League and causing undue injury to the government in the total amount
of P300,000.00.
CONTRARY TO LAW.3
At the arraignment on August 16, 1998, only Ruben Ecleo, Jr. and
Anadelia Navarra appeared. They pleaded not guilty to all the charges
against them.
Santillano surrendered to the trial court while the defense was
presenting evidence at the ensuing trial. He was arraigned on December
6, 1999 under the Informations covering Criminal Case Nos. 24467 and
24468. He entered a plea of not guilty and the proceedings against Ecleo,
Jr. and Navarra were held in abeyance.4 A joint trial was subsequently
ordered by the trial court.1avvphi1
The prosecution had for its witnesses State Auditors Carlo Miagao
Galenzoga and Marcos Torralba of the Commission on Audit (COA). Based
on their testimonies, it was established that in 1994, a request for audit
was addressed to the COA by a San Jose, Surigao del Norte Sangguniang
Bayan member by the name of Leo Durano. A special audit team was
formed to investigate irregularities committed in violation of COA rules.
It was composed of State Auditors Torralba, Galenzoga, and Victor
Azote.5
An examination of the books, records, and related documents of the
municipality of San Jose, Surigao del Norte was undertaken. At the time
of the investigation, the municipality was headed by Mayor Ecleo, Jr.
Arsenia Orejas was the municipal treasurer, while Navarra was the
municipal planning and development coordinator. An ocular inspection
of infrastructure projects such as the public market, a municipal building,
and a guest house was likewise made. The team reported its findings in
an audit report submitted to the COA Regional Office, as follows:
(1) Public market. The construction was undertaken by a contractor,
Philippine Benevolent Missionaries Association (PBMA) Builders,
represented by Santillano under a negotiated contract involving three
phases (Phases II to IV). Phase I had earlier been directly carried out by
the municipality at a cost of PhP 346,639. The rates for the remaining
phases were:
Phase II: PhP 1,469,500
Phase III: PhP 1,274,000
Phase IV: PhP 1,300,000
Total: PhP 4,043,500
Santillano submitted programs of work detailing the project’s costs and
expenses. He submitted billings and included the progress of the
construction. Navarra certified that she inspected the implementation of
the project and that the progress of the work as certified by Santillano
was correct. Navarra and Ecleo, Jr. both consequently recommended
payment be made to Santillano. Additionally, Ecleo, Jr. made requests for
obligation of allotment and ordered and approved disbursements of
funds for payment of billings from Santillano. Orejas certified to the
availability of funds, and payment was made to Santillano amounting to
PhP 4,008,005, evidenced by PBMA Builders official receipts.
According to State Auditor Galenzoga, an inspection of the project site
revealed discrepancies between what was declared in project documents
and the actual status of the structures. There were items of work that
were included in the contract but not actually executed. It was found out
that some items constructed were not part of the contract and would
have needed a supplemental contract to be valid. Santillano also claimed
payment for items under Phase II that were not included in the contract.
A comparative cost analysis yielded an overpricing of PhP 444,757.17 of
the project cost.6
(2) Municipal building. The construction of the municipal building was
also awarded to PBMA Builders per contract for two phases, negotiated
as follows:
Phase I: PhP 1,119,575
Phase II: PhP 2,565,000
Total: PhP 3,684,575
Navarra, however, estimated the individual program of work for Phase I
at PhP 2,051,387.55. As with the public market project, Ecleo, Jr. and
Navarra approved Santillano’s billing for the construction. Requests for
obligation of allotment were prepared by Ecleo, Jr., which was followed
by Orejas’ certification of availability of funds. The mayor then signed and
approved the disbursement vouchers for payments to be made to
Santillano via checks. Santillano acknowledged payment through PBMA
official receipts. The total payment made amounted to PhP 3,849,664, of
which the audit team noted an overpayment of PhP 165,089.7
An ocular inspection of the municipal building made the audit team
conclude that contrary to the reported accomplishment rate of 100%,
only 37.33% of the construction was actually finished. Payment had been
made on activities that had not yet been started. The comparative cost
analysis prepared by Galenzoga showed that the cost of the project was
PhP 1,437,024.30, which meant that there was an overpayment of PhP
2,412,639.70.
(3) Municipal guest house. The special audit team also discovered an
allotment of PhP 300,000 from the Countrywide Development Fund for
the repair and rehabilitation of the municipality’s guest house. A cash
advance for the said amount was approved by Ecleo, Jr. given to Navarra
for the expenses of the project. State Auditor Torralba learned, however,
that the funds were not spent for the repair of the municipal guest house
but that of a private building owned by PBMA. Records with Orejas as
well as a ledger of fixed assets disclosed that the municipality did not
even have its own guest house.
The defense proffered alibi and denial in claiming innocence. Navarra
testified that in Janury 1991, she was a municipal project development
assistant. Her position, she reasoned, showed that she had no
responsibility to sign official documents. Her leave of absence from July
to November 1991 also foreclosed any opportunity for her to sign the
certificates of work for Phases II to IV of the construction of the public
market. She claimed that her signatures on the certificates had been
forged. She did, however, admit that she signed the programs of work,
certificates of work, and disbursement vouchers for the construction of
the municipal building.8
Ecleo, Jr. denied the charges against him by claiming that he signed the
pertinent documents in good faith as he relied on Navarra’s certification.
He admitted indorsing Santillano’s request for a supplemental contract
111
and recommended its approval. He also added that the vice-mayor was
acting mayor for a time and he signed collection requests and
disbursement vouchers also based on Navarra’s certification of the
Page
necessity and lawfulness of the expenses incurred.
Ecleo, Jr. buttressed his claim of innocence by saying that he
recommended the immediate prosecution of Santillano when the audit
team finished its findings. He stated that the San Jose Sangguniang Bayan
passed Resolution No. 30, Series of 1995 in order to file a civil case against
Santillano. He represented the municipal government of San Jose,
Surigao del Norte in its civil case for breach of contract and damages
against Santillano. A compromise agreement was allegedly reached, with
Santillano acknowledging PhP 2,856,396.87. The Regional Trial Court of
Surigao City rendered judgment on the basis of the said agreement.9
Santillano testified that when PBMA Builders started work on Phase II of
the public market, they had to relocate the site as it was too close to the
sea and could get flooded in high tide. The relocation purportedly had the
approval of the municipal development and planning coordinator. He
asserted that the variance between the audit’s valuation of both the
public market project and the municipal building and what he actually
received was justified because of the additional work done on Phase I. He
invoked Presidential Decree No. (PD) 1594 in explaining the excess in
expense, as the said law allowed adjustments in billings by as much as
25%.10 He likewise justified collecting additional amount of PhP 165,089
for the construction of the municipal building by saying that it was
approved by the municipal planning and development coordinator.11
On the matter of the compromise agreement between him and the
municipality of San Jose, Santillano denied entering into one and said he
never admitted to any liability. He stated that he even filed a petition with
the Court of Appeals to nullify the judicially-approved compromise
agreement.
Deciding against Santillano, the Sandiganbayan found that all the
elements of the offense charged were present in the three cases on
appeal. In Criminal Case No. 24467 (construction of public market), it
found the prosecution’s evidence sufficient to show that: (1) Ecleo, Jr.
entered into contracts with Santillano for Phases II to IV of the project;
(2) Ecleo, Jr. and Navarra approved and released funds to Santillano
worth PhP 4,008,005; and (3) there was an overpayment of PhP
444,575.17 to Santillano.1avvphi1
In Criminal Case No. 24468 (construction of municipal building), the
evidence adduced showed that: (1) Ecleo, Jr. entered into an agreement
with Santillano for the construction of a municipal building for PhP
3,684,575; (2) payments approved and released by Ecleo, Jr. and Navarra
amounted to PhP 3,849,664; and (3) there was an overpayment of PhP
2,412,639.70.
In Criminal Case No. 24469 (repair and rehabilitation of municipality
guest house), it was adequately shown that: (1) funds amounting to PhP
300,000 were approved by Ecleo, Jr. and Orejas for the repair of the
municipality guest house; (2) the funds were actually used for the guest
house of a private building owned by PBMA; and (3) in reality the
municipality did not have a guest house. The appellate court, however,
ruled that there was not enough evidence showing that Orejas conspired
with Ecleo, Jr. to use public funds for the repair of a private building.
The Sandiganbayan rejected the argument of Santillano that he was
justified in collecting additional payments because of additional work he
undertook. The law he invoked, PD 1594, requires the government to
direct the performance of additional works through written orders and
within limits set within the contract. The Sandiganbayan noted that
Santillano’s authority to undertake additional work per his testimony was
merely verbal. On Santillano’s claim that the state auditor was not
qualified to estimate the projects’ cost analysis, the Sandiganbayan held
that the audit team’s conclusions were based on substantial evidence;
therefore, it upheld the principle that factual findings of administrative
agencies are generally respected and given finality.
On October 13, 2006, the Sandiganbayan made a Decision, the dispositive
portion of which reads:
WHEREFORE, judgment is rendered in the following:
(1) In Criminal Case No. 24467, the Court finds the accused
Ruben B. Ecleo, Jr., Anadelia Naluan Navarra and Ricardo L.
Santillano GUILTY beyond reasonable doubt of violation of
Section 3(e) of Republic Act No. 3019 and they are each
sentenced to suffer the penalty of imprisonment of six (6) years
and one (1) month to ten (10) years and six (6) months. In
addition, they shall each suffer the penalty of perpetual
disqualification from public office. They are likewise ordered to
return, jointly and solidarily, to the municipality of San Jose,
Surigao del Norte the amount of P444,575.17.
(2) In Criminal Case No. 24468, the Court finds the accused
Ruben B. Ecleo, Jr., Anadelia Naluan Navarra and Ricardo L.
Santillano GUILTY beyond reasonable doubt of violation of
Section 3(e) of Republic Act No. 3019 and they are each
sentenced to suffer the penalty of imprisonment of six (6) years
and one (1) month to ten (10) years and six (6) months. In
addition, they shall each suffer the penalty of perpetual
disqualification from public office. They are likewise ordered to
return, jointly and solidarily, to the municipality of San Jose,
Surigao del Norte the amount of P2,412,639.70.
(3) In Criminal Case No. 24469, the Court finds the accused
Ruben B. Ecleo, Jr., GUILTY beyond reasonable doubt of
violation of Section 3(e) of Republic Act No. 3019 and he is
hereby sentenced to suffer the penalty of imprisonment of six
(6) years and one (1) month to ten (10) years and six (6) months
and to suffer perpetual disqualification from public office.
Considering that accused Arsenia Orejas, who is charged in Criminal [Case
Nos.] 24467-24469, has not been brought to the jurisdiction of this Court
to answer the charges herein, let warrant of arrest issue against her.
The cash bonds posted by accused Ruben Ecleo, Jr. and Anadelia Naluan
Navarra are hereby ordered cancelled in view of their conviction.
SO ORDERED.12
Thus, on October 27, 2006, Santillano filed the instant petition.
On December 4, 2006, this Court issued a Resolution13 requiring
Santillano to submit the following: (1) a statement of material dates
showing when notice of the assailed judgment was received, pursuant to
Sections 4(b) and 5, Rule 45 in relation to Sec. 5(d), Rule 56 of the Rules
of Court; and (2) proof of service of the petition on the lower court
concerned pursuant to Sec. 5(d), Rule 56 and Sec. 13, Rule 13 of the Rules.
On February 5, 2007, the People, through the Office of the Special
Prosecutor, filed its Comment on the Petition.
On February 28, 2007, this Court required Santillano to file a reply to the
People’s Comment. Santillano filed his Reply on May 15, 2007.
Santillano raised the issue of:
WHETHER THE DECISION OF THE SANDIGANBAYAN PROMULGATED ON
OCTOBER 13, 2006 IS CONTRARY TO LAW BECAUSE PETITIONER-
ACCUSED ENGR. RICARDO L. SANTILLANO IS A PRIVATE PERSON AND NOT
A PUBLIC OFFICER
Our ruling is to deny the appeal.
In the procedural aspect of the petition, Santillano failed to complete the
112
requirements of a petition under Rule 45, despite our resolution requiring
him to submit a statement of material dates and proof of service of the
petition on the Sandiganbayan. The aforementioned requirement on
Page
proof of service may be found under Supreme Court Circular No. 19-91
dated August 13, 1991, which states:
2. Form and Service of Petition. —
A petition filed under Rule 45, or under Rule 65, or a motion for extension
may be denied outright if it is not clearly legible, or there is no proof of
service on the lower court, tribunal, or office concerned and on the
adverse party in accordance with Sections 3, 5 and 10 of Rule 13, attached
to the petition or motion for extension when filed.
Effective September 15, 1991, henceforth, a petition or motion for
extension filed before this Court shall be dismissed/denied outright if
there is no such proof of service in accordance with Sections 3 and 5 in
relation to Section 10 of Rule 13 of the Rules of Court attached to the
petition/motion when filed. (Emphasis supplied.)
The People, through the Office of the Special Prosecutor, observed in its
Comment14 on the Petition, "Verily, Petitioner fatally failed to implead
the Court a quo (Sandiganbayan) and to serve a copy of his Petition to the
said court."
While the Rules of Court does not require that the lower court be
impleaded, proof of service of the petition on the lower court is
mandated. The People, thus, correctly maintains that service of the
petition upon the Sandiganbayan should have been made.
There have been exceptional cases where we have set aside procedural
defects to correct a patent injustice. To justify a relaxation of the Rules,
however, there should be an effort on the part of the party invoking
liberality to at least explain its failure to comply with the
Rules.15 Jurisprudence holds that the utter disregard of the Rules cannot
be justified by harking to substantial justice and the policy of liberal
construction of the Rules. Technical rules of procedure are not meant to
frustrate the ends of justice. Rather, they serve to effect the proper and
orderly disposition of cases and, thus, effectively prevent the clogging of
court dockets.16
In the instant case, while Santillano filed a Reply to the Comment of the
Special Prosecutor, no explanation whatsoever was made on why he
failed to comply with the requirements on material dates and proof of
service. The Reply tackled substantial matters, but did not touch on why
no compliance was made with regard to proof of service. We, thus, find
no reason to give due course to the present petition.
But even if we entertain the petition, we must still affirm the conviction
of Santillano.
Santillano claims that the Sandiganbayan added an element to the crime
charged. The Sandiganbayan allegedly added the phrase "or a private
person charged in conspiracy with the public officer" to the law in order
to have a legal basis in holding him liable. The assertion completely lacks
merit.
The relevant provision of RA 3019 states:
Section 3. Corrupt practices of public officers.––In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:
xxxx
(e) Causing any undue injury to any party, including the Government, or
giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official administrative or judicial
functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant
of licenses or permits or other concessions. x x x
While the afore-quoted provision does not contain a reference to private
individuals, it must be read in conjunction with the following sections also
of RA 3019:
Section 4. Prohibition on private individuals.––
xxxx
(b) It shall be unlawful for any person knowingly to induce or cause any
public official to commit any of the offenses defined in Section 3 hereof.
Section 9. Penalties for violations.––(a) Any public officer or private
person committing any of the unlawful acts or omissions enumerated in
Sections 3, 4, 5 and 6 of this Act shall be punished with imprisonment for
not less than one year nor more than ten years, perpetual disqualification
from public office, and confiscation or forfeiture in favor of the
Government of any prohibited interest and unexplained wealth
manifestly out of proportion to his salary and other lawful income.
(Emphasis supplied.)
Clearly, the law punishes not only public officers who commit prohibited
acts enumerated under Sec. 3, but also those who induce or cause the
public official to commit those offenses. This is supported by Sec. 9, which
includes private persons as liable for violations under Secs. 3, 4, 5, and 6.
Santillano’s argument echoes the issue raised in Go v. Fifth Division,
Sandiganbayan,17 where the appellant was also a private person.
Affirming his conviction, we held that appellant’s assertion was at odds
with the policy and spirit behind RA 3019, which was "to repress certain
acts of public officers and private persons alike which constitute graft or
corrupt practices or which may lead thereto."18 Go went on to explain:
The fact that one of the elements of Section 3(g) of RA 3019 is "that the
accused is a public officer" does not necessarily preclude its application
to private persons who, like petitioner Go, are being charged with
conspiring with public officers in the commission of the offense
thereunder.
Go, citing Luciano v. Estrella,19 Singian, Jr. v. Sandiganbayan,20 and
Domingo v. Sandiganbayan, laid to rest the debate on a private person’s
culpability in cases involving RA 3019 by unequivocally stating that
private persons found acting in conspiracy with public officers may be
held liable for the applicable offenses found in Sec. 3 of the law.
Santillano argues too that there was no evidence that he conspired with
his co-accused. He cites as basis the Sandiganbayan’s statement that
there was no proof of actual agreement among the accused to commit
violations of RA 3019.
Proof of conspiracy need not be direct or actual. Indeed, prosecutors
would be hard-pressed to secure a conviction for those charged under RA
3019 if direct evidence were required to be established. Rule 133 of the
Rules of Court on circumstantial evidence applies to this case. It states:
SEC. 4. Circumstantial evidence, when sufficient.––Circumstantial
evidence is sufficient for conviction if:
(a) There is more than one circumstance;
(b) The facts from which the inferences are derived are proven;
and (c) The combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt.
A judgment of conviction based on circumstantial evidence can be upheld
only if the circumstances proved constitute an unbroken chain that leads
to one fair and reasonable conclusion pointing to the accused, to the
exclusion of all others, as the guilty person, that is, the circumstances
113
proved must be consistent with each other, consistent with the
hypothesis that the accused is guilty, and at the same time inconsistent
with any other hypothesis except that of guilty.21
Page
In petitioner’s case, the finding of conspiracy is not unfounded. In all
three criminal cases, the prosecution was able to establish that Ecleo, Jr.
and Navarra approved of overpayments made to Santillano. The
Sandiganbayan did not give much weight to their weak defense of alibi.
What is more, it correctly ruled that the doctrine in Arias v.
Sandiganbayan22 could not be used by Ecleo, Jr. to escape liability, as the
documents he had to approve were not so voluminous so as to preclude
him from studying each one carefully. On the contrary, if he had the best
interest of his constituents in mind, he should have examined all the
project documents, as a good deal of taxpayers’ money was involved.
Navarra’s alibi was also not enough to acquit her. She was not precluded
from signing the documents relating to the subject projects while she was
on leave. She also did not establish any proof that her signatures were
forged. Worse, both Ecleo, Jr. and Navarra were parties to an agreement
that approved disbursement of funds for a bogus municipal guest house
and they could not come up with a plausible justification for such a gaffe.
Santillano, on the other hand, was indisputably on the receiving end of
the overpayments and even issued receipts for them. He was unable to
justify the excessive payments by showing a written agreement with the
municipality pursuant to the Implementing Rules and Regulations of PD
1594. All these undeniable circumstances lead to the logical conclusion
that all three accused acted in a concerted effort to, as the
Sandiganbayan put it, deprive the government of its much-needed funds.
Also worthy to note is the futile attempt of Ecleo, Jr. to evade liability by
initiating a suit against Santillano in 1995. The case was allegedly settled
through a compromise agreement covering PhP 2,856,396.87, but
Santillano denied being a party to it. It appears that Ecleo, Jr. sought to
cover up his role in the irregular disbursement of government funds by
trying to belatedly have Santillano prosecuted. We agree with the
Sandiganbayan that this only proved that the audit team correctly made
a finding of overpayment, a finding Ecleo, Jr. could not dispute.
The factual findings of the Sandiganbayan are conclusive on this Court,
subject to established exceptions, among them: (1) the conclusion is a
finding grounded entirely on speculations, surmises, and conjectures; (2)
the inference made is manifestly mistaken; (3) there is grave abuse of
discretion; (4) the judgment is based on misapprehension of facts; and
(5) the findings of fact of the Sandiganbayan are premised on the absence
of evidence and are contradicted by evidence on record. 23 None of these
exceptions being present, we affirm the appealed judgment.
On the penalty imposed, RA 3019 lays down the penalty for a violation
committed under its Secs. 3, 4, 5, and 6. To recapitulate:
Section 9. Penalties for violations.––(a) Any public officer or private
person committing any of the unlawful acts or omissions enumerated in
Sections 3, 4, 5 and 6 of this Act shall be punished with imprisonment for
not less than one year nor more than ten years, perpetual disqualification
from public office, and confiscation or forfeiture in favor of the
Government of any prohibited interest and unexplained wealth
manifestly out of proportion to his salary and other lawful income.
We find the penalty imposed in all three criminal cases within that
prescribed by law. The Sandiganbayan was correct in applying Sec. 1 of
the Indeterminate Sentence Law. Said law provides that in offenses
punishable by a law, other than the Revised Penal Code, the maximum
term of the penalty should "not exceed the maximum fixed by said law
and the minimum (should) not be less than the minimum term prescribed
by the same."24
WHEREFORE, the appeal is DENIED. The Decision of the Sandiganbayan in
Criminal Case Nos. 24467 to 24469 finding Ricardo L. Santillano guilty of
three counts of violation of Sec. 3(e), RA 3019 is AFFIRMED.
(3) G.R. No. 109266 December 2, 1993
MIRIAM DEFENSOR SANTIAGO, petitioner, vs. HON. JUSTICE FRANCIS
GARCHITORENA, SANDIGANBAYAN (First Division) and PEOPLE OF THE
PHILIPPINES, respondents.
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court
to set aside: (a) the Resolution dated March 3, 1993 in Criminal Case
No. 16698 of the Sandiganbayan (First Division) and to declare Presiding
Justice Francis Garchitorena of the Sandiganbayan, disqualified from
acting in said criminal case; and (b) the Resolution of said court
promulgated on
March 14, 1993, which deemed as "filed" the 32 Amended Informations
against petitioner (Rollo, pp. 2-35 and pp. 36-94).
On May 1, 1991, petitioner was charged in Criminal Case No. 16698 of
the Sandiganbayan with violation of Section 3(e) of R.A. No. 3019, as
amended, otherwise known as the Anti-Graft and Corrupt Practices Act,
allegedly committed by her favoring "unqualified" aliens with the
benefits of the Alien Legalization Program (Rollo, p. 36).
On May 24, 1991, petitioner filed with us a petition for certiorari and
prohibition, docketed as G.R. No. 99289-99290 (Santiago v. Vasquez, 205
SCRA 162 [1992]), to enjoin the Sandiganbayan from proceeding with
Criminal Case No. 16698 on the ground that said case was intended solely
to harass her as she was then a presidential candidate. She alleged that
this was in violation of Section 10, Article IX-C of the Constitution which
provides that "(b)ona fide candidates for any public office shall be free
from any form of harassment and discrimination." The petition was
dismissed on January 13, 1992.
On October 16, 1992, petitioner filed a motion for inhibition of Presiding
Justice Garchitorena, which motion was set for hearing on November 13,
1992 at 8:00 A.M. (Rollo, pp. 38-41).
On October 27, 1992, the Sandiganbayan (First Division), of which
Presiding Justice Garchitorena is a member, set the criminal case for
arraignment on November 13, 1992 at 8:00 A.M. (Rollo, p. 42)
On November 6, 1992, petitioner moved to defer the arraignment on the
grounds that there was a pending motion for inhibition, and that
petitioner intended to file a motion for a bill of particulars (Rollo, pp. 43-
44).
On November 9, 1992, the Sandiganbayan (First Division) denied the
motion to defer the arraignment (Rollo, p. 45).
On November 10, 1992, petitioner filed a motion for a bill of particulars
(Rollo, pp. 47-48). The motion stated that while the information alleged
that petitioner had approved the application or legalization of "aliens"
and gave them indirect benefits and advantages it lacked a list of the
favored aliens. According to petitioner, unless she was furnished with the
names and identities of the aliens, she could not properly plead and
prepare for trial.
On November 12, 1992 and upon motion of petitioner in G.R.
No. 107598 (Miriam Defensor Santiago v. Sandiganbayan, et al.), we
directed the Sandiganbayan (First Division) to reset the arraignment to a
later date and to dispose of the two incidents pending before it (Re:
disqualification of Presiding Justice Garchitorena and the motion for the
bill of particulars).
At the hearing on November 13, 1992 on the motion for a bill of
particulars, the prosecution stated categorically that they would file only
one amended information against petitioner.
114
However, on December 8, 1992, the prosecution filed a motion to
admit the 32 Amended Informations (Criminal Cases Nos. 18371 to
18402; Rollo, pp. 61-126).
Page
On March 3, 1993, Presiding Justice Garchitorena issued the questioned
Resolution dated March 11, 1993, denying the motion for his
disqualification (Rollo, pp. 151-164).
On March 14, 1993, the Sandiganbayan (First Division) promulgated a
resolution, admitting the 32 Amended Informations and ordering
petitioner to post the corresponding bail bonds within ten days from
notice (Rollo, pp. 165-185). Petitioner's arraignment on the 32 Amended
Informations was set for
April 12, 1993 at 8:00 A.M. (Rollo, p. 186).
Hence, the filing of the instant petition.
Acting on the petition for the issuance of a restraining order, we issued
the Resolution dated March 25, 1993, ordering Presiding Justice
Garchitorena "to CEASE and DESIST from sitting in the case until the
question of his disqualification is finally resolved by this Court and from
enforcing the resolution dated March 11, 1993, ordering petitioner to
post bail bonds for the 32 Amended Informations and from proceeding
with the arraignment on
April 12, 1993" (Rollo, p. 194).
Re: Disqualification of the Sandiganbayan Presiding Justice
The petition for disqualification of Presiding Justice Garchitorena is based
on the publication of is letter in the July 29, 1992 issue of the Philippine
Star, which to petitioner "prejudged" the validity of the information filed
against her. Petitioner claims that Presiding Justice Garchitorena "cannot
be expected to change the conclusions he has subconsciously drawn in
his public statements . . . when he sits in judgment on the merits of the
case . . ." (Rollo, pp. 16-17).
The letter in question was written in response to an item in Teodoro
Benigno's column in the July 22, 1992 issue of the Philippine Star,
criticizing the Sandiganbayan for issuing on July 11, 1992 a hold-
departure order against petitioner. Benigno wrote that said order
reflected a "perverse morality" of the Sandiganbayan and the lack of
"legal morality" of its Presiding Justice, thus:
I cannot, for example accept the legal morality of
Sandiganbayan Justice Francis Garchitorena who
would stop Miriam Defensor Santiago from going
abroad for a Harvard scholarship because of graft
charges against her. Some of the most perfidious
Filipinos I know have come and gone, left and
returned to these shores without Mr. Garchitorena
kicking any kind of rumpus. Compared to the
peccadilloes of this country's outstanding felons,
what Miriam is accused of is kindergarten stuff. The
Sandiganbayan Supremo got a lot of headlines for
stopping Miriam but I contend this is the kind of
perverse morality we can do without (Rollo, p. 156).
The portion of the letter of Presiding Justice Garchitorena, which
petitioner finds objectionable, reads as follows:
(c) Mrs. Santiago has never informed any court where
her cases are pending of her intention to travel,
whether the Regional Trial Court where she is
charged with soliciting donations from people
transacting with her office at Immigration or before
the Sandiganbayan where she is charged with having
favored unqualified aliens with the benefits of the
Alien Legalization Program nor even the Supreme
Court where her petition is still pending (Rollo, p.
158).
In particular, petitioner considered as prejudgment the statement of
Presiding Justice Garchitorena that petitioner had been charged before
the Sandiganbayan "with having favored unqualified aliens with the
benefits of the Alien Legalization Program."
The statement complained of was just a restatement of the Information
filed against petitioner in Criminal Case No. 16698 in connection with
which the hold-departure order was issued. Said Information specified
the act constituting the offense charged, thus:
That on or about October 17, 1988, or for sometime
prior or subsequent thereto, in Manila, Philippines,
and within the jurisdiction of this Honorable Court,
accused Miriam Defensor-Santiago, being then the
Commissioner of the Commission on Immigration
and Deportation, with evident bad faith and manifest
partiality, did then and there willfully, unlawfully and
criminally approve the application for legalization of
aliens who arrived in the Philippines after January 1,
1984 in violation of Executive Order No. 324 dated
April 13, 1988 which does not allow the legalization
of the same, thereby causing undue injury to the
government and giving unwarranted benefits and
advantages to said aliens in the discharge of the
official and administrative functions of said accused
(Rollo, p. 36).
It appears that petitioner tried to leave the country without first securing
the permission of the Sandiganbayan, prompting it to issue the hold-
departure order which Benigno viewed as uncalled for. The letter of
Presiding Justice Garchitorena, written in defense of the dignity and
integrity of the Sandiganbayan, merely stated that all persons facing
criminal charges in court, with no exception, have to secure permission
to leave the country. Nowhere in the letter is the merit of the charge
against petitioner ever touched. Certainly, there would have been no
occasion for the letter had Benigno not written his diatribe, unfair at that,
against the Sandiganbayan.
Notwithstanding petitioner's misgiving, it should be taken into
consideration that the Sandiganbayan sits in three divisions with three
justices in each division. Unanimity among the three members is
mandatory for arriving at any decision of a division (P.D. No. 1606, Sec.
5). The collegiate character of the Sandiganbayan thus renders baseless
petitioner's fear of prejudice and bias on the part of Presiding Justice
Garchitorena (Paredes v. Gopengco, 29 SCRA 688 [1969] ).
Re: Claim of denial of due process
Petitioner cannot complain that her constitutional rights to due process
were violated by reason of the delay in the termination of the preliminary
investigation. According to her, while the offense was allegedly
committed "on or before October 17, 1988", the information was filed
only on May 9, 1991 and the amended informations on December 8, 1992
(Rollo, p. 14).
Tatad v. Sandiganbayan, 159 SCRA 70 [1988] is inapplicable to
petitioner's case. In Tatad, there indeed was an unexplained inaction on
the part of the public prosecutors inspite of the simplicity of the legal and
factual issues involved therein.
In the case at bench, there was a continuum of the investigatory process
but it got snarled because of the complexity of the issues involved. The
act complained of in the original information came to the attention of the
Ombudsman only when it was first reported in the January 10, 1989 issue
of the Manila Standard. Immediately thereafter, the investigatory
process was set in motion. The investigation was first assigned to Special
Prosecutor Gualberto dela Llana but on request of petitioner herself the
investigation was first assigned to Special Prosecutor Gualberto dela
Llana but on request of petitioner herself the investigation was re-
assigned to the Office of the Deputy Ombudsman for Luzon. The case was
115
handled by a panel of four prosecutors, who submitted a draft resolution
for the filing of the charges on March 29, 1990. The draft resolution had
to undergo the hierarchy of review, normal for a draft resolution with a
Page
dissenting vote, until it reached the Ombudsman in March 1991.
We note that petitioner had previously filed two petitions before us
involving Criminal Case No. 16698 (G.R. Nos. 99289-99290; G.R.
No. 107598). Petitioner has not explained why she failed to raise the issue
of delay in the preliminary investigation and the filing of the information
against her in those petitions. a piece-meal presentation of issues, like
the splitting of causes of action, is self-defeating.
Petitioner next claims that the Amended Informations did not charge any
offense punishable under Section 3 (e) of R.A. No. 3019 because the
official acts complained of therein were authorized under Executive
Order No. 324 and that the Board of Commissioners of the Bureau of
Investigation adopted the policy of approving applications for legalization
of spouses and unmarried, minor children of "qualified aliens" even
though they had arrived in the Philippines after December 31, 1983. she
concludes that the Sandiganbayan erred in not granting her motion to
quash the informations (Rollo, pp. 25-31).
In a motion to quash, the accused admits hypothetically the allegations
of fact in the information (People v. Supnad, 7 SCRA 603 [1963] ).
Therefore, petitioner admitted hypothetically in her motion that:
(1) She was a public officer;
(2) She approved the application for legalization of
the stay of aliens, who arrived in the Philippines after
January 1, 1984;
(3) Those aliens were disqualified;
(4) She was cognizant of such fact; and
(5) She acted in "evident bad faith and manifest
partiality in the execution of her official functions."
The foregoing allegations of fact constitute the elements of the offense
defined in Section 3 (e) of R.A. No. 3019.
The claims that the acts complained of were indeed authorized under
Executive Order No. 324, that petitioner merely followed in good faith
the policy adopted by the Board of Commissioners and that the aliens
were spouses or unmarried minor children of persons qualified for
legalization of stay, are matters of defense which she can establish at the
trial.
Anent petitioner's claim that the Amended Informations did not allege
that she had caused "undue injury to any party, including the
Government," there are two ways of violating Section 3 (e) of R.A. No.
3019. These are: (a) by causing undue injury to any party, including the
Government; and (b) by giving any private party any unwarranted
benefit, advantage or preference.
In Uy v. Sandiganbayan, G.R. No. 100334, December 5, 1991, we held:
The use of the distinctive term "or" connotes that
either act qualifies as a violation of Section 3 (a). In
other words the act of giving any private party any
unwarranted benefit, advantage or preference is not
an indispensable element of the offense of "causing
any undue injury to any party" as claimed by
petitioners although there may be instances where
both elements concur.
Re: Delito continuado
Be that as it may, our attention was attracted by the allegation in the
petition that the public prosecutors filed 32 Amended Informations
against petitioner, after manifesting to the Sandiganbayan that they
would only file one amended information (Rollo, pp. 6-61). We also noted
that petitioner questioned in her opposition to the motion to admit the
32 Amended Informations, the splitting of the original information (Rollo,
pp. 127-129). In the furtherance of justice, we therefore proceed to
inquire deeper into the validity of said plant, which petitioner failed to
pursue with vigor in her petition.
We find that, technically, there was only one crime that was committed
in petitioner's case, and hence, there should only be one information to
be file against her.
The 32 Amended Informations charge what is known as delito
continuado or "continued crime" and sometimes referred to as
"continuous crime."
In fairness to the Ombudsman's Office of the Special Prosecutor, it should
be borne in mind that the concept of delito continuado has been a vexing
problem in Criminal Law — difficult as it is to define and more difficult to
apply.
According to Cuello Calon, for delito continuado to exist there should be
a plurality of acts performed during a period of time; unity of penal
provision violated; and unity of criminal intent or purpose, which means
that two or more violations of the same penal provisions are united in
one and same instant or resolution leading to the perpetration of the
same criminal purpose or aim
(II Derecho Penal, p. 520; I Aquino, Revised Penal Code, 630, 1987 ed.).
According to Guevarra, in appearance, a delito continuado consists of
several crimes but in reality there is only one crime in the mind of the
perpetrator (Commentaries on the Revised Penal Code, 1957 ed., p. 102;
Penal Science and Philippine Criminal Law, p. 152).
Padilla views such offense as consisting of a series of acts arising from one
criminal intent or resolution (Criminal Law, 1988 ed. pp. 53-54).
Applying the concept of delito continuado, we treated as constituting
only one offense the following cases:
(1) The theft of 13 cows belonging to two different
owners committed by the accused at the same time
and at the same period of time (People v. Tumlos, 67
Phil. 320 [1939] ).
(2) The theft of six roosters belonging to two different
owners from the same coop and at the same period
of time (People v. Jaranillo, 55 SCRA 563 [1974] ).
(3) The theft of two roosters in the same place and on
the same occasion (People v. De Leon, 49 Phil. 437
[1926] ).
(4) The illegal charging of fees for services rendered
by a lawyer every time he collects veteran's benefits
on behalf of a client, who agreed that the attorney's
fees shall be paid out of said benefits (People v.
Sabbun, 10 SCRA 156 [1964] ). The collection of the
legal fees were impelled by the same motive, that of
collecting fees for services rendered, and all acts of
collection were made under the same criminal
impulse (People v. Lawas, 97 Phil. 975 [1955] ).
On the other hand, we declined to apply the concept to the following
cases:
(1) Two estafa cases, one of which was committed
during the period from January 19 to December 1955
116
and the other from January 1956 to July 1956 (People
v. Dichupa, 113 Phil. 306 [1961] ). The said acts were
committed on two different occasions.
Page
 (2) Several malversations committed in May, June
and July, 1936, and falsifications to conceal said
offenses committed in August and October 1936. The
malversations and falsifications "were not the result
of only one purpose or of only one resolution to
embezzle and falsify . . ." (People v. Cid, 66 Phil. 354
[1938] ).
(3) Two estafa cases, one committed in December
1963 involving the failure of the collector to turn over
the installments for a radio and the other in June
1964 involving the pocketing of the installments for a
sewing machine (People v. Ledesma, 73 SCRA 77
[1976] ).
(4) 75 estafa cases committed by the conversion by
the agent of collections from customers of the
employer made on different dates (Gamboa v. Court
of Appeals, 68 SCRA 308 [1975]).
The concept of delito continuado, although an outcry of the Spanish Penal
Code, has been applied to crimes penalized under special laws,
e.g. violation of R.A. No. 145 penalizing the charging of fees for services
rendered following up claims for war veteran's benefits (People v.
Sabbun, 10 SCRA 156 [1964] ).
Under Article 10 of the Revised Penal Code, the Code shall be
supplementary to special laws, unless the latter provide the contrary.
Hence, legal principles developed from the Penal Code may be applied in
a supplementary capacity to crimes punished under special laws.
The question of whether a series of criminal acts over a period of time
creates a single offense or separate offenses has troubled also American
Criminal Law and perplexed American courts as shown by the several
theories that have evolved in theft cases.
The trend in theft cases is to follow the so-called "single larceny" doctrine,
that is, the taking of several things, whether belonging to the same or
different owners, at the same time and place constitutes but one larceny.
Many courts have abandoned the "separate larceny doctrine," under
which there is a distinct larceny as to the property of each victim. Also
abandoned was the doctrine that the government has the discretion to
prosecute the accused or one offense or for as many distinct offenses as
there are victims (annotation, 37 ALR 3rd 1407, 1410-1414).
The American courts following the "single larceny" rule, look at the
commission of the different criminal acts as but one continuous act
involving the same "transaction" or as done on the same "occasion"
(State v. Sampson, 157 Iowa 257, 138 NW 473; People v. Johnson, 81
Mich. 573, 45 NW 1119; State v. Larson, 85 Iowa 659, 52 NW 539).
An American court held that a contrary rule would violate the
constitutional guarantee against putting a man in jeopardy twice for the
same offense (Annotation, 28 ALR 2d 1179). Another court observed that
the doctrine is a humane rule, since if a separate charge could be filed for
each act, the accused may be sentenced to the penitentiary for the rest
of his life (Annotation, 28 ALR 2d 1179).
In the case at bench, the original information charged petitioner with
performing a single criminal act — that of her approving the application
for legalization of aliens not qualified under the law to enjoy such
privilege.
The original information also averred that the criminal act : (i) committed
by petitioner was in violation of a law — Executive Order No. 324 dated
April 13, 1988, (ii) caused an undue injury to one offended party, the
Government, and (iii) was done on a single day, i.e., on or about October
17, 1988.
The 32 Amended Informations reproduced verbatim the allegation of the
original information, except that instead of the word "aliens" in the
original information each amended information states the name of the
individual whose stay was legalized.
At the hearing of the motion for a bill of particulars, the public
prosecutors manifested that they would file only one amended
information embodying the legalization of stay of the 32 aliens. As stated
in the Order dated November 12, 1992 of the Sandiganbayan (First
Division):
On the matter of the Bill of Particulars, the
prosecution has conceded categorically that the
accusation against Miriam Defensor Santiago consists
of one violation of the law represented by the
approval of the applications of 32 foreign nationals
for availment (sic) of the Alien Legalization Program.
In this respect, and responding directly to the
concerns of the accused through counsel, the
prosecution is categorical that there will not be 32
accusations but only one . . . (Rollo, p. 59).
The 32 Amended Informations aver that the offenses were committed on
the same period of time, i.e., on or about October 17, 1988. The strong
probability even exists that the approval of the application or the
legalization of the stay of the 32 aliens was done by a single stroke of the
pen, as when the approval was embodied in the same document.
Likewise, the public prosecutors manifested at the hearing the motion for
a bill of particulars that the Government suffered a single harm or injury.
The Sandiganbayan in its Order dated November 13, 1992 stated as
follows:
. . . Equally, the prosecution has stated that insofar as
the damage and prejudice to the government is
concerned, the same is represented not only by the
very fact of the violation of the law itself but because
of the adverse effect on the stability and security of
the country in granting citizenship to those not
qualified (Rollo, p. 59).
WHEREFORE, the Resolution dated March 3, 1993 in Criminal Case No.
16698 of the Sandiganbayan (First Division) is AFFIRMED and its
Resolution dated March 11, 1993 in Criminal Case No. 16698 is MODIFIED
in the sense that the Office of the Special Prosecutor of the Office of the
Ombudsman is directed to consolidate the 32 Amended Informations
(Criminal Cases Nos. 18371 to 18402) into one information charging only
one offense under the original case number, i.e., No. 16698. The
temporary restraining order issued by this Court on March 25, 1993 is
LIFTED insofar as to the disqualification of Presiding Justice Francis
Garchitorena is concerned.
SO ORDERED.
Narvasa, C.J., Cruz, Padilla, Bidin, Regalado, Davide, Jr., Nocon, Bellosillo,
Melo and Puno, JJ., concur.
Separate Opinions
VITUG, J., concurring and dissenting:
While I share the view expressed by Mr. Justice Florentino P. Feliciano in
his dissent from the majority opinion in Miriam Defensor-Santiago
vs. Conrado Vasquez, et al. (205 SCRA 162), the decision in said case,
however, having become final, has, in my view, the effect of foreclosing
the issues there involved.
117
Accordingly, in this petition now at bench (G.R. No. 109266, I vote with
the majority in simply directing, for the reasons expressed for the Court
by
Page
Mr. Justice Camilo D. Quiason, the consolidation of the thirty-two
Amended Informations into a single Information.
FELICIANO, J., dissenting:
I dissent from the opinion written for the majority by Mr. Justice Quiason,
to the extent that that opinion directed the Office of the Special
Prosecutor of the Office of the Ombudsman to consolidate the thirty-two
(32) Amended Informations (Criminal Cases Nos. 18371 and 18402) into
one Information under the original case number, i.e., No. 16698.
I believe that the Court should order the Sandiganbayan to dismiss the
thirty-two (32) Amended Informations, for that court seriously erred in
not granting petitioner's Motion to Quash those Informations. The
grounds for my submission in this respect were spelled out in detail in my
dissenting opinion 1 in Miriam Defensor-Santiago v.Conrado M. Vasquez,
Ombudsman, et al. (205 SCRA 162 at 174-180 [1992] ), which I beg leave
to reproduce here:
The information filed before the Sandiganbayan in Criminal Case No.
16698 charges the petitioner as follows:
That on or about October 17, 1988, or for sometime
prior or subsequent thereto, in Manila, Philippines,
and within the jurisdiction of this Honorable Court,
accused Miriam Defensor-Santiago, being the
Commissioner of the Commission on Immigration
and Deportation, with evident bad faith and manifest
partiality, did then and there, willfully, unlawfully and
criminally approve the application for legalization of
aliens who arrived in the Philippines after January 1,
1984 in violation of Executive Order No. 324 dated
April 13, 1988 which does not allow the legalization
of the same, thereby causing undue injury to the
government and giving unwarranted benefits and
advantage to the said aliens in the discharge of the
official and administrative functions of said accused.
Contrary to law.
Essentially, the above information charges that petitioner had, in
violation of the provisions of Executive Order No. 324 approved
applications for legalization of the stay of aliens who had arrived in the
Philippines after January 1, 1984. The information takes the position that
the Executive Order "does not allow the legalization of the same."
Executive Order No. 324 entitled "Waiving Passport Requirements for
Immigrants under Certain Conditions," dated April 13, 1988, was
promulgated pursuant to section 47 (A)(3) of C.A. No. 613, as amended,
the Philippine Immigration Act of 1940, which provides that
Notwithstanding the provisions of this Act, the President is
authorized:
(a) when the public interest to warrants:
xxx xxx xxx
(3) to waive the passport requirements for immigrants, under
such conditions as he may prescribe.
Executive Order No. 324 provides that an alien may apply with the
Commissioner of Immigration and Deportation for waiver of passport
beginning on a date to be designated by the Commissioner. The Order
provides, among other things, that the alien "must establish that he
entered the Philippines before January 1, 1984 and that he has resided
continuously in the Philippines in an unlawful status from such date to
the filing of his application."
Petitioner is charged with having unlawfully waived the passport
requirements of certain aliens who arrived after January 1, 1984. It is
clear from the record of this case, especially of the preliminary
investigation conducted by the Office of the Special Prosecutor, that
petitioner herself stated that she had allowed aliens who had arrived in
the Philippines after January 1, 1984, but who were the spouses or minor
children of qualified aliens — the latter being alien spouses or parents
who had entered the Philippines before January 1, 1984 and who were
themselves qualified for waiver of passport requirements under Executive
Order No. 324 — to apply for waiver of passport requirements and, after
compliance with requirements of Executive Order No. 324, approved
such "legalization."
Executive Order No. 324 is not itself a statute prescribing penal sanctions
for certain acts. Thus, disregard of Executive Order No. 324 would not, by
itself, give rise to criminal liability. The criminal information in this case in
effect links up Executive Order No. 324 with Section 3(e) of Republic Act
No. 3019, known as the Anti-Graft and Corrupt Practices Act. Section 3(e)
of the Anti-Graft Act reads as follows:
xxx xxx xxx
It must be noted, firstly, that petitioner, as the then Commissioner of
Immigration and Deportation, was expressly authorized and obliged by
Executive Order No. 324 to apply and administer and enforce its
provisions. Indeed, petitioner was authorized to issue rules and
regulations to implement that Executive Order (paragraph 16). Secondly,
the application and administration of Executive Order No. 324 involve,
not ministerial or mechanical acts, but rather the exercise of judgment
and discretion, adjudicatory and hence quasi-judicial in nature. Thirdly,
and perhaps most notably, paragraphs 11 and 12 of the Executive Order
provide as follows:
11. Except as provided in Paragraph 12, herein, the
Commissioner of Immigration and Deportation may
waive exclusion grounds under the Immigration Act
in the cases of individual aliens for humanitarian
purposes to assure family unity or for the public
interest.
12. The following grounds for exclusion may not be
waived by the Commissioner of Immigration and
Deportation, namely, (a) those relating to criminals;
(b) those relating to aliens likely to become public
charges; (c) those relating to drug offenses, except
for so much of those provisions as relates to a single
offense of simple possession of marijuana; and (d)
those relating to national security and members of
subversive organization.
xxx xxx xxx
(Emphasis supplied)
Paragraph 11, it will be seen, expressly authorizes petitioner to waive
grounds for exclusion of aliens under the Immigration Act in two (2)
cases: (a) "for humanitarian purposes to assure family unity;" and (b) "for
the public interest." Under Section 29 (a) of the Philippine Immigration
Act of 1940, as amended, the classes of aliens excluded from entry into
the Philippines include:
(17) Persons not properly documented for admission
as may be required under the provisions of this Act.2
118
Upon the other hand, paragraph 12 specifies the categories of persons in
whose cases no waiver of grounds of exclusion may be granted.
Page
It will be seen that the acts of petitioner, which the information assumes
to be criminal in nature, constituted official acts of petitioner done in the
course of applying, interpreting and construing Executive Order No. 324.
There is no question that the applications for waiver of passport
requirements by the spouses and minor children of qualified aliens were
admitted and approved by petitioner "for humanitarian purposes to
assure family unity." It is also not disputed that the said alien spouses and
minor children did not fall under any of the (non-waivable) excluded
classes listed in paragraph 12 of Executive Order No. 324. It is similarly
undisputed that no one has pretended that petitioner
had anypersonal or corrupt interest in any of the cases of alien spouses
and minor children of qualified aliens she had acted upon. No one has
suggested, for instance that the fees specified in paragraph 9 of Executive
Order No. 324 either were not collected by petitioner and converted to
her own use. It may be noted, incidentally, that paragraph 9 expressly
authorizes the Commissioner "in her discretion, [to] charge a lower fee
for the spouse and minor children below 21 years old of the applicant."
The criminal information, as noted above, included an allegation of
"evident bad faith and manifest partiality." It is clear, however, that the
facts brought out in the preliminary investigation offered absolutely no
basis for such an allegation which actually a conclusion offered by the
Special Prosecutor, much like the words "wilfully, unlawfully and
criminally" which are recited redundantly in the criminal information
here. Again, the facts disclosed in the preliminary investigation showed
no undue injury, "to the Government and no unwarranted benefit or
advantage" to the aliens outside of the simple acceptance and approval
of the applications for waiver of passport requirements (so called
"legalization") by petitioner. In other words, if the interpretation or
construction given by petitioner to Executive Order
No. 324 is correct — i.e., that applications for waiver of passport
requirements by alien wives and minor children, arriving after January 1,
1984, of qualified aliens who had themselves arrived in the
Philippines before January 1, 1984 and who were otherwise eligible
under the terms and conditions of Executive Order No. 324 may be
granted for humanitarian purposes in the interest of allowing or restoring
family unity — there would be no "injury," let alone an "undue injury," to
the Government. Neither can the benefit of waiver of passport
requirements in the cases of such spouses and minor children of qualified
aliens be deemed to be an "unwarranted" benefit to such aliens if
petitioner's interpretation of Executive Order
No. 324 be held to be correct.
It is a rule too firmly established to require documentation that
contemporaneous interpretations of a statute or implementing
regulation by the executive or administrative officials precisely charged
with the implementation of such a stature or regulation, are entitled to
great weight and respect from the courts. This Court itself has in many
instances deferred to such interpretations rendered by such
administrative officers. (See, e.g., Ramos v. Court of Industrial Relations,
21 SCRA 1282 [1967]; Salavaria v. Buenviaje, 81 SCRA 722 [1978]; Asturias
Sugar Central, Inc. v. Commissioner of Customs, 29 SCRA 617 [1969];
University of the Philippines v. Court of Appeals, 37 SCRA 54 [1971]; Lim
Hao Ting v. Central Bank, 104 Phil. 573 [1958] ). But even if an
administrative interpretation be ultimately found to be incorrect as a
matter of law by this Court, the official responsible for such
interpretation is not, for that reason alone, to be held liable personally,
whether civilly or criminally or administratively. It is just as firmly settled
that to impose liability upon the public officer who has so acted,
something far graver that error of law or error of judgment must be
clearly shown and that is corrupt personal intentions, personal malice or
bad faith. (See generally Marcelo v. Sandiganbayan, 185 SCRA 346
[1990]). As noted above, no such allegations were made during the
preliminary investigation in Criminal Case No. 16698.
My submission, with respect, is that whether the acts admittedly done by
petitioner were criminal in nature, is a legal question, on which petitioner
in effect asks us to rule in this Petition. I believe, further, that there is
nothing to prevent this Court from addressing and ruling on this legal
issue. There is no real need for proof of any additional essential facts
apart from those already admitted by petitioner. It seems to me that a
public officer is entitled to have legal questions like that before this Court
resolved at the earliest possible opportunity, that a public officer should
not be compelled to go through the aggravation, humiliation and expense
of the whole process of criminal trial, if the legal characterization of the
acts charged as criminal is the very issue at stake.
I respectfully submit, still further, that the acts charged do not, as a
matter of law, constitute a crime.Indeed, if the acts which petitioner
admits having done constitute a criminal offense, very serious
consequences would follow for the administration of law and government
rules and regulations in general. For the thrust of the criminal information
here would appear to be that public officers interpret and apply statutory
and regulatory provisions at their own peril and at the risk of criminal
liability, notwithstanding the absence of any corrupt intent to profit
personally by any such interpretation and application. (Emphasis in the
penultimate and ultimate paragraphs supplied)
The Information, quoted internally above, was filed in Criminal Case
No. 16698 back in 1 May 1991. approximately two-and-a-half (2-1/2)
years later, the proceedings before the Sandiganbayan are still going on,
and indeed appear to me to be back where the case was at the time the
original Information was filed. Had this Court ruled on the legal
question which petitioner in effect had asked us to rule in Santiago
v. Vasquez (supra), the case should be terminated by now, one way or
the other. Once more, I respectfully submit that a public officer should
not be compelled to go through the aggravation, humiliation and expense
of the whole process of criminal trial, if the legal nature of the acts
charged as criminal is the very issue at stake.
I vote to grant the Petition for Certiorari and to require the
Sandiganbayan to dismiss the thirty-two (32) Amended Informations.
Romero, J., concurs.
# Separate Opinions
VITUG, J., concurring and dissenting:
While I share the view expressed by Mr. Justice Florentino P. Feliciano in
his dissent from the majority opinion in Miriam Defensor-Santiago
vs. Conrado Vasquez, et al. (205 SCRA 162), the decision in said case,
however, having become final, has, in my view, the effect of foreclosing
the issues there involved.
Accordingly, in this petition now at bench (G.R. No. 109266, I vote with
the majority in simply directing, for the reasons expressed for the Court
by Mr. Justice Camilo D. Quiason, the consolidation of the thirty-two
Amended Informations into a single Information.
FELICIANO, J., dissenting:
I dissent from the opinion written for the majority by Mr. Justice Quiason,
to the extent that that opinion directed the Office of the Special
Prosecutor of the Office of the Ombudsman to consolidate the thirty-two
(32) Amended Informations (Criminal Cases Nos. 18371 and 18402) into
one Information under the original case number, i.e., No. 16698.
I believe that the Court should order the Sandiganbayan to dismiss the
thirty-two (32) Amended Informations, for that court seriously erred in
not granting petitioner's Motion to Quash those Informations. The
grounds for my submission in this respect were spelled out in detail in my
dissenting opinion 1 in Miriam Defensor-Santiago v.Conrado M. Vasquez,
Ombudsman, et al. (205 SCRA 162 at 174-180 [1992] ), which I beg leave
to reproduce here:
The information filed before the Sandiganbayan in Criminal Case No.
16698 charges the petitioner as follows:
119
That on or about October 17, 1988, or for sometime
prior or subsequent thereto, in Manila, Philippines,
Page
and within the jurisdiction of this Honorable Court,
accused Miriam Defensor-Santiago, being the
 Commissioner of the Commission on Immigration
and Deportation, with evident bad faith and manifest
partiality, did then and there, willfully, unlawfully and
criminally approve the application for legalization of
aliens who arrived in the Philippines after January 1,
1984 in violation of Executive Order No. 324 dated
April 13, 1988 which does not allow the legalization
of the same, thereby causing undue injury to the
government and giving unwarranted benefits and
advantage to the said aliens in the discharge of the
official and administrative functions of said accused.
Contrary to law.
Essentially, the above information charges that petitioner had, in
violation of the provisions of Executive Order No. 324 approved
applications for legalization of the stay of aliens who had arrived in the
Philippines after January 1, 1984. The information takes the position that
the Executive Order "does not allow the legalization of the same."
Executive Order No. 324 entitled "Waiving Passport Requirements for
Immigrants under Certain Conditions," dated April 13, 1988, was
promulgated pursuant to section 47 (A)(3) of C.A. No. 613, as amended,
the Philippine Immigration Act of 1940, which provides that
Notwithstanding the provisions of this Act, the
President is authorized:
(a) when the public interest to warrants:
xxx xxx xxx
(3) to waive the passport requirements for
immigrants, under such conditions as he may
prescribe.
Executive Order No. 324 provides that an alien may apply with the
Commissioner of Immigration and Deportation for waiver of passport
beginning on a date to be designated by the Commissioner. The Order
provides, among other things, that the alien "must establish that he
entered the Philippines before January 1, 1984 and that he has resided
continuously in the Philippines in an unlawful status from such date to
the filing of his application."
Petitioner is charged with having unlawfully waived the passport
requirements of certain aliens who arrived after January 1, 1984. It is
clear from the record of this case, especially of the preliminary
investigation conducted by the Office of the Special Prosecutor, that
petitioner herself stated that she had allowed aliens who had arrived in
the Philippines after January 1, 1984, but who were the spouses or minor
children of qualified aliens — the latter being alien spouses or parents
who had entered the Philippines before January 1, 1984 and who were
themselves qualified for waiver of passport requirements under Executive
Order No. 324 — to apply for waiver of passport requirements and, after
compliance with requirements of Executive Order No. 324, approved
such "legalization."
Executive Order No. 324 is not itself a statute prescribing penal sanctions
for certain acts. Thus, disregard of Executive Order No. 324 would not, by
itself, give rise to criminal liability. The criminal information in this case in
effect links up Executive Order No. 324 with Section 3(e) of Republic Act
No. 3019, known as the Anti-Graft and Corrupt Practices Act. Section 3(e)
of the Anti-Graft Act reads as follows:
xxx xxx xxx
It must be noted, firstly, that petitioner, as the then Commissioner of
Immigration and Deportation, was expressly authorized and obliged by
Executive Order No. 324 to apply and administer and enforce its
provisions. Indeed, petitioner was authorized to issue rules and
regulations to implement that Executive Order (paragraph 16). Secondly,
the application and administration of Executive Order No. 324 involve,
not ministerial or mechanical acts, but rather the exercise of judgment
and discretion, adjudicatory and hence quasi-judicial in nature. Thirdly,
and perhaps most notably, paragraphs 11 and 12 of the Executive Order
provide as follows:
11. Except as provided in Paragraph 12, herein, the
Commissioner of Immigration and Deportation may
waive exclusion grounds under the Immigration Act
in the cases of individual aliens for humanitarian
purposes to assure family unity or for the public
interest.
12. The following grounds for exclusion may not be
waived by the Commissioner of Immigration and
Deportation, namely, (a) those relating to criminals;
(b) those relating to aliens likely to become public
charges; (c) those relating to drug offenses, except
for so much of those provisions as relates to a single
offense of simple possession of marijuana; and (d)
those relating to national security and members of
subversive organization.
xxx xxx xxx
(Emphasis supplied)
Paragraph 11, it will be seen, expressly authorizes petitioner to waive
grounds for exclusion of aliens under the Immigration Act in two (2)
cases: (a) "for humanitarian purposes to assure family unity;" and (b) "for
the public interest." Under Section 29 (a) of the Philippine Immigration
Act of 1940, as amended, the classes of aliens excluded from entry into
the Philippines include:
(17) Persons not properly documented for admission
as may be required under the provisions of this Act.2
Upon the other hand, paragraph 12 specifies the categories of persons in
whose cases no waiver of grounds of exclusion may be granted.
It will be seen that the acts of petitioner, which the information assumes
to be criminal in nature, constituted official acts of petitioner done in the
course of applying, interpreting and construing Executive Order No. 324.
There is no question that the applications for waiver of passport
requirements by the spouses and minor children of qualified aliens were
admitted and approved by petitioner "for humanitarian purposes to
assure family unity." It is also not disputed that the said alien spouses and
minor children did not fall under any of the (non-waivable) excluded
classes listed in paragraph 12 of Executive Order No. 324. It is similarly
undisputed that no one has pretended that petitioner
had anypersonal or corrupt interest in any of the cases of alien spouses
and minor children of qualified aliens she had acted upon. No one has
suggested, for instance that the fees specified in paragraph 9 of Executive
Order No. 324 either were not collected by petitioner and converted to
her own use. It may be noted, incidentally, that paragraph 9 expressly
authorizes the Commissioner "in her discretion, [to] charge a lower fee
for the spouse and minor children below 21 years old of the applicant."
The criminal information, as noted above, included an allegation of
"evident bad faith and manifest partiality." It is clear, however, that the
facts brought out in the preliminary investigation offered absolutely no
basis for such an allegation which actually a conclusion offered by the
Special Prosecutor, much like the words "wilfully, unlawfully and
criminally" which are recited redundantly in the criminal information
here. Again, the facts disclosed in the preliminary investigation showed
no undue injury, "to the Government and no unwarranted benefit or
advantage" to the aliens outside of the simple acceptance and approval
120
of the applications for waiver of passport requirements (so called
"legalization") by petitioner. In other words, if the interpretation or
construction given by petitioner to Executive Order
Page
No. 324 is correct — i.e., that applications for waiver of passport
requirements by alien wives and minor children, arriving after January 1,
1984, of qualified aliens who had themselves arrived in the
Philippines before January 1, 1984 and who were otherwise eligible
under the terms and conditions of Executive Order No. 324 may be
granted for humanitarian purposes in the interest of allowing or restoring
family unity — there would be no "injury," let alone an "undue injury," to
the Government. Neither can the benefit of waiver of passport
requirements in the cases of such spouses and minor children of qualified
aliens be deemed to be an "unwarranted" benefit to such aliens if
petitioner's interpretation of Executive Order
No. 324 be held to be correct.
It is a rule too firmly established to require documentation that
contemporaneous interpretations of a statute or implementing
regulation by the executive or administrative officials precisely charged
with the implementation of such a stature or regulation, are entitled to
great weight and respect from the courts. This Court itself has in many
instances deferred to such interpretations rendered by such
administrative officers. (See, e.g., Ramos v. Court of Industrial Relations,
21 SCRA 1282 [1967]; Salavaria v. Buenviaje, 81 SCRA 722 [1978]; Asturias
Sugar Central, Inc. v. Commissioner of Customs, 29 SCRA 617 [1969];
University of the Philippines v. Court of Appeals, 37 SCRA 54 [1971]; Lim
Hao Ting v. Central Bank, 104 Phil. 573 [1958] ). But even if an
administrative interpretation be ultimately found to be incorrect as a
matter of law by this Court, the official responsible for such
interpretation is not, for that reason alone, to be held liable personally,
whether civilly or criminally or administratively. It is just as firmly settled
that to impose liability upon the public officer who has so acted,
something far graver that error of law or error of judgment must be
clearly shown and that is corrupt personal intentions, personal malice or
bad faith. (See generally Marcelo v. Sandiganbayan, 185 SCRA 346
[1990]). As noted above, no such allegations were made during the
preliminary investigation in Criminal Case No. 16698.
My submission, with respect, is that whether the acts admittedly done by
petitioner were criminal in nature, is a legal question, on which petitioner
in effect asks us to rule in this Petition. I believe, further, that there is
nothing to prevent this Court from addressing and ruling on this legal
issue. There is no real need for proof of any additional essential facts
apart from those already admitted by petitioner. It seems to me that a
public officer is entitled to have legal questions like that before this Court
resolved at the earliest possible opportunity, that a public officer should
not be compelled to go through the aggravation, humiliation and expense
of the whole process of criminal trial, if the legal characterization of the
acts charged as criminal is the very issue at stake.
I respectfully submit, still further, that the acts charged do not, as a
matter of law, constitute a crime.Indeed, if the acts which petitioner
admits having done constitute a criminal offense, very serious
consequences would follow for the administration of law and government
rules and regulations in general. For the thrust of the criminal information
here would appear to be that public officers interpret and apply statutory
and regulatory provisions at their own peril and at the risk of criminal
liability, notwithstanding the absence of any corrupt intent to profit
personally by any such interpretation and application. (Emphasis in the
penultimate and ultimate paragraphs supplied)
The Information, quoted internally above, was filed in Criminal Case
No. 16698 back in 1 May 1991. approximately two-and-a-half (2-1/2)
years later, the proceedings before the Sandiganbayan are still going on,
and indeed appear to me to be back where the case was at the time the
original Information was filed. Had this Court ruled on the legal
question which petitioner in effect had asked us to rule in Santiago
v. Vasquez (supra), the case should be terminated by now, one way or
the other. Once more, I respectfully submit that a public officer should
not be compelled to go through the aggravation, humiliation and expense
of the whole process of criminal trial, if the legal nature of the acts
charged as criminal is the very issue at stake.
I vote to grant the Petition for Certiorari and to require the
Sandiganbayan to dismiss the thirty-two (32) Amended Informations.
(4) G.R. No. 126995 October 6, 1998
IMELDA R. MARCOS, petitioner, vs.
The Honorable SANDIGANBAYAN (First Division), and THE PEOPLE OF
THE PHILIPINES, respondents.
PURISIMA, J.:
This scenic Philippine archipelago is a citadel of justice, due process and
rule of law. Succinst and clear is the provision of the constitution of this
great Republic that every accused is presumed innocent until the
contrary is proved. [Art. 111, Sec. 14(2)]. As held in People of the
Philippines vs. Ellizabeth Ganguso y Decena (G.R. No. 115430, November
23, 1995, 250 SCRA 268, 274-275):
An accused has in his favor the presumption of innocence
which the Bill of Rights guarantees. Unless his guilt is shown
beyond reasonable doubt, he must be acquitted. This
reasonable doubt standard is demanded by the due process
clause of the Constitution which protects the accused from
conviction except upon proof beyond reasonable doubt of
every fact necessary to constitute the crime with which he is
charged. The burden of proof is on the prosecution, and unless
it discharges that burden the accused need not even offer
evidence in his behalf, and he would be entitled to an acquittal.
Proof beyond reasonable doubt does not, of course, mean such
degree of proof as, excluding the possibility of error, produce
absolute certainty. Moral certainty only is required, or that
degree of proof which produces conviction in an unprejudiced
mind. The conscience must be satisfied that the accused is
responsible for the offense charged.
So also, well settled, to the point of being elementary, is the doctrine that
when inculpatory facts are susceptible to two or more interpretations,
one of which is consistent with the innocence of the accused, the
evidence does not fulfill or hurdle the test of moral certainty required for
conviction. (People of the Philippines vs. Eric F. Timtiman, G.R. No.
101663, November 4, 1992, 215 SCRA 364, 373 citing People vs.
Remorosa, 200 SCRA 350, 360 [1991]; People vs. Raquel, 265 SCRA 248;
People vs. Aranda, 226 SCRA 562; People vs. Maongco, 230 SCRA 562;
People vs. Salangga, 234 SCRA 407).
Mindful of and guided by the aforecited constitutional and legal precepts,
doctrines and principles prevailing in this jurisdiction, should petitioner's
Motion for Reconsideration be granted?
Docketed as Criminal Case No. 17450 before the Sandiganbayan, the
Information indicting Imelda R. Marcos and Jose P. Dans, Jr. for a violation
of Section 3(9) of Republic Act No. 3019, as amended, otherwise known
as the Anti-Graft and Corrupt Practices Act, alleges:
That on or about June 8, 1984, and for sometime prior or
subsequent thereto, in Makati, Metro-Manila, Philippines, and
within the jurisdiction of this Honorable Court, the accused
IMELDA R. MARCOS and JOSE P. DANS, JR., public officers, being
then Chairman and Vice-Chairman, respectively, of the Light
Rail Transit Authority (LRTA), a government corporate entity
created under Executive Order No. 603 of the former President
Ferdinand Marcos, while in the performance of their official
functions, taking advantage of their positions and committing
the crime in relation to their offices, did then and there wilfully,
unlawfully and criminally conspiring with one another, enter on
behalf of the aforesaid government corporation into a Lease
Agreement covering LRTA property located in Pasay City, with
the Philippines General Hospital Foundation, Inc. (PGHFI), a
private enterprise, under terms and conditions manifestly and
121
grossly disadvantageous to the government.
CONTRARY TO LAW.
Page
The case was raffled off to the First Division of the Sandiganbayan, with
Presiding Justice Francis E. Garchitorena, as Chairman and Justices Jose S.
Balajadia and Narciso T. Atienza, as members. On September 15, 1993,
when the First Division failed to comply with the legal requirement of
unanimity of its three members due to the dissent of Justice Narciso T.
Atienza, Presiding Justice Garchitorena issued Administrative Order No.
288-93 constituting a Special Division of five and designating Justices
Augusto M. Amores and Cipriano A. Del Rosario, as additional members.
On September 21, 1993, Justice Amores wrote Presiding Justice
Garchitorena requesting that he be given fifteen (15) days to send in his
Manifestation. However, on the same day, September 21, 1993, when
Justice Balajadia and Presiding Justice Garchitorena agreed with the
opinion of Justice Del Rosario, Presiding Justice Garchitorena issued
Administrative Order No. 293-93, dissolving the Special Division of Five,
without waiting for Justice Amores' manifestation. Justice Garchitorena
considered the said request of Justice Amores as "pointless because of
the agreement of Justice Balajadia and the undersigned to the conclusion
reached by Justice Atienza". Thus, on September 24, 1993, the now
assailed decision was handed down by the First Division of the
Sandiganbayan.
Under the aforequoted Information charging accused Imelda R. Marcos
and Jose P. Dans, Jr. with a violation of Section 3(g) of RA 3019, the
following elements of the offense charged must be proved beyond
reasonable doubt, to wit: 1] that the accused acted as a public officer; 2]
that subject Contract or transaction entered into by the latter is
manifestly and grossly disadvantageous to the government.
There is no dispute that sometime in the year 1984, the herein petitioner,
Imelda R. Marcos, was Minister of Human Settlement while Jose P. Dans,
Jr. was the Minister of Transportation and Communication. The two
served as ex oficio Chairman and Vice-Chairman, respectively, of the Light
Rail Transport Authority (LRTA). Petitioner Marcos was also Chairman of
the Board of Trustees of the Philippine General Hospital Foundation, Inc.
(PGHFI).
On June 8, 1984, petitioner, in her capacity as Chairman of PGHFI, and
Jose P. Dans, Jr. as Vice Chairman of LRTA, signed the Lease Agreement
(Exhibit "B") by virtue of which LRTA leased to PGHFI subject lot with an
area of 7.340 square meters, at a monthly rental of P102,760.00 for a
period of twenty-five (25) years.
On June 27, 1984, the PGHFI, represented by its Chairman Imelda R.
Marcos, and Transnational Construction Corporation, represented by its
President Ignacio B. Gimenez, signed the Sublease Agreement (Exhibit
"D"), wherein said lessee rented the same area of 7.340 square meters
for P734,000.00 a month, for a period of twenty-five (25) years.
For executing the aforesaid Lease Agreement (Exhibit "B"), petitioner and
Jose P. Dans, Jr. were indicted in the said Information, for conspiring and
confederating with each other in entering into subject Lease Agreement
alleged to be manifestly and grossly disadvantageous to the government.
After trial, as earlier alluded to, the Sandiganbayan convicted the
petitioner and Jose P. Dans, Jr. of the offense charged.
On June 29, 1998, the Third Division of this court came out with its
decision affirming the judgment, as against petitioner Imelda R. Marcos
in G.R. No. 126995, but reversing the same judgment, as against Joe P.
Dans, Jr., in G.R. No. 127073.
In affirming the judgment of conviction against petitioner, the Third
Division found the rental price stipulated in the Lease Agreement, (Exhibit
"B") unfair and unreasonably low, upon a comparison with the rental rate
in the Sub-lease Agreement (Exhibit "D"), which contract petitioner
subsequently signed on behalf of PGHFI, with TNCC. Undaunted, the
petitioner interposed the present Motion for Reconsideration.
The pivot of inquiry here is whether all the elements of the offense
charged have been duly substantiated. As regards the first element, did
petitioner Imelda R. Marcos enter into the Lease Agreement marked
Exhibit "B" as a public officer? As clearly stated on the face of the subject
contract under scrutiny, it petitioner signed the same in her capacity as
Chairman of PGHFI and not as Human Settlement Minister nor as ex-
officio Chairman of LRTA. It was Jose P. Dans, Jr. who signed said Contract,
as ex-officio Vice Chairman of LRTA. Although petitioner was the ex-
officio Chairman of LRTA, at the time, there is no evidence to show that
she was present when the Board of Directors of LRTA authorized and
approved the Lease Agreement sued upon.
In light of the foregoing antecedent facts and circumstances, the
irresistible conclusion is that petitioner did not sign subject Lease
Agreement as a public officer, within the contemplation of RA 3019 and,
therefore, the first element of the offense charged is wanting.
It bears stressing, in this connection, that Jose P. Cans, Jr., the public
officer who signed the said Lease Agreement (Exhibit "B") for LRTA, was
acquitted.
As regards the second element of the offense — that such Lease
Agreement is grossly and manifestly disadvantageous to the government,
the respondent court based its finding thereon against the petitioner and
Jose P. Dans, Jr., on a ratiocination that while the rental price under the
Lease Agreement is only P102,760.00 a month, the monthly rental rate
under the Sub-lease Agreement is P734,000.00. After comparing the two
rental rates aforementioned, the respondent court concluded that the
rental price of P102,760.00 a month is unfair, unreasonable and
disadvantageous to the government.
But Exhibit "B" does not prove that the said contract entered into by
petitioner is "manifestly and grossly disadvantageous to the
government." There is no established standard by which Exhibit "B"'s
rental provisions could be adjudged prejudicial to LRTA or the entire
government. Exhibit "B" standing alone does not prove any offense.
Neither does Exhibit "B" together with the Sub-lease Agreement (Exhibit
"D") prove the offense charged.
At most, it creates only a doubt in the mind of the objective readers as to
which (between the lease and sub-lease rental rates) is the fair and
reasonable one, considering the different circumstances as well as parties
involved. It could happen that in both contracts, neither the LRTA nor the
Government suffered any injury. There is, therefore, insufficient evidence
to prove petitioner's guilt beyond reasonable doubt.
Verily, it is too obvious to require an extended disquisition that the only
basis of the respondent court for condemning the Lease Agreement
(Exhibit "B") as "manifestly and grossly disadvantageous to the
government" was a comparison of the rental rate in the Lease
Agreement, with the very much higher rental price under the Sub-lease
Agreement (Exhibit "D"). Certainly, such a comparison is purely
speculative and violative of due process. The mere fact that the Sub-lease
Agreement provides a monthly rental of P734,000.00 does not
necessarily mean that the rental price of P102,760.00 per month under
the Lease Agreement (Exhibit "B") is very low, unreasonable and
manifestly and grossly disadvantageous to the government. There are
many factors to consider in the determination of what is a reasonable
rate of rental.
What is more, as stressed by Jose P. Dans Jr., when subject Lease
Agreement was inked, the rental rate thereinprovided was based on a
study conducted in accordance with generally accepted rules of rental
computation. On this score, Mr. Ramon F. Cuervo, Jr., the real estate
appraiser who testified in the case as an expert witness and whose
impartiality and competence were never impugned, assured the court
122
that the rental price stipulated in the Lease Agreement under scrutiny
was fair and adequate. According to him, witness, the reasonable rental
for subject property at the time of execution of Exhibit "B" was only
Page
P73,000.00 per month.
That the Sub-lease Agreement (Exhibit "D") was for a very much higher
rental rate of P734,000.00 a month is of no moment. This circumstance
did not necessarily render the monthly rental rate of P102,760.00
manifestly and grossly disadvantageous to the lessor. Evidently, the
prosecution failed to prove that the rental rate of P102,760.00 per month
was manifestly and grossly disadvantageous to the government. Not even
a single lease contract covering a property within the vicinity of the said
leased premises was offered in evidence The disparity between the rental
price of the Lease Agreement and that of the Sublease Agreement is no
evidence at all to buttress the theory of the prosecution, "that the Lease
Agreement in question is manifestly and grossly disadvantageous to the
government". "Gross" is a comparative term. Before it can be considered
"gross", there must be a standard by which the same is weighed and
measured.
All things viewed in proper perspective, it is decisively clear that there is
a glaring absence of substantiation that the Lease Agreement under
controversy is grossly and manifestly disadvantageous to the
government, as theorized upon by the prosecution.
Furthermore, that the lessee, PGHFI, succeeded in obtaining a high rental
rate of P734,000.00 a month, did not result in any disadvantage to the
government because obviously, the rental income realized by PGHFI from
the Sub-lease Agreement (Exhibit "D"), augmented the financial support
for and improved the management and operation of the Philippine
General Hospital, which is, after all, a government hospital of the people
and for the people.
Another sustainable ground for the granting of petitioner's motion for
reconsideration is the failure and inability of the prosecution to prove
that petitioner was present when the Board of Directors of LRTA
authorized and approved the Lease Agreement complained of. Albeit,
petitioner was ex oficio chairman of the Board of Directors of LRTA when
the said Lease Agreement was entered into, there is no evidence
whatsoever to show that she attended the board meeting of LRTA which
deliberated and acted upon subject Lease Agreement (Exhibit "B"). It is
thus beyond cavil that petitioner signed the said Lease Agreement as
Chairman of the PGH Foundation, Inc., a private charitable foundation,
and not as a public officer.
Neither can petitioner be considered as in conspiracy with Jose P. Dans,
Jr., who has been found without any criminal liability for signing the same
Lease Agreement. Absent any conspiracy of petitioner with Dans, the act
of the latter cannot be viewed as an act of the former. Petitioner is only
answerable for her own individual act. Consequently, petitioner not
having signed Exhibit "B" as a Public officer, there is neither legal nor
factual basis for her conviction under Section 3(g) of Rep Act 3019.
It beers repeating that apart from the Lease Agreement and Sub-lease
Agreement marked Exhibits "B" and "D", respectively, the prosecution
offered no other evidence to prove the accusation at bar.
What makes petitioner's stance the more meritorious and impregnable is
the patent violation of her right to due process, substantive and
procedural, by the respondent court. Records disclose that: (a) the First
Division of the Sandiganbayan composed of Presiding Justice
Garchitorena and Associate Justices Balajadia and Atienza could not
agree on whether to convict or acquit the petitioner in the five (5)
criminal cases pending against her. Justice Atienza was in favor of
exonerating petitioner in Criminal Case Nos. 17449, 17451 and 17452.
Justices Garchitorena and Balajadia wanted to convict her in Criminal
Case Nos. 17450, 17451, 17452 and 17453. As there was no unanimity of
votes in Criminal Case Nos. 17451 and 17452; (b) on September 15, 1993,
in accordance with Sec. 5 of P.D. No. 1606, Presiding Justice Garchitorena
issued Adm. Order No. 288-93 constituting a Special Division of five (5)
justices, and naming thereto, Justices Augusto M. Amores and Cipriano
A. del Rosario; (c) on September 21, 1993, Justice Amores sent a written
request to Presiding Justice Garchitorena asking that he be given fifteen
(15) days to submit his Manifestation; (d) on the same day, September
21, 1993, however, Presiding Justice Garchitorena and Justices Balajadia
and del Rosario, after attending a hearing of the Committee of Justice of
the House of Representatives, lunched together in a Quezon City
restaurant where they discussed petitioner's cases in the absence of
Justices Atienza and Amores and in the presence of a non-member of the
Special Division. Thereat, Presiding Justice Garchitorena, and Justices,
Balajadia and del Rosario agreed with the position of Justice Atienza to
acquit petitioner in Criminal Case Nos. 17449, 17451 and 17452 and to
convict her in the other cases; and (e) when the Justices returned to the
official workplace of Sandiganbayan, Presiding Justice Garchitorena
issued Adm. Order No. 293-93 dissolving the Special Division.
Such prodedural flaws committed by respondent Sandiganbayan are fatal
to the validity of its "decision" convicting petitioner for the following
reasons, viz:
First. Section 4, Rule VI categorically provides that "sessions of the
Sandiganbayan, whether en banc or division, shall be held in its principal
office in the Metropolitan Manila where it shall try and determine all
cases filed with it . . .." This rule reiterates Sec. 2 of P.D. No. 1606, as
amended, creating the Sandiganbayan.
Second. The rules of Sandiganbayan do not allow unscheduled discussion
of cases. We take judicial notice of the procedure that cases in all courts
are carefully calendared and advance notices are given to judges and
justices to enable them to study and prepare for deliberation. The
calendaring cases cannot be the subject of anybody's whims and caprices.
Third. The rules of Sandiganbayan do not also allow informal discussion
of cases. The deliberations in case at bar did not appear on record. The
informal discussion of the three justices came to light only when
petitioner moved to inhibit Presiding Justice Garchitorena after her
conviction by the resuscitated First Division. Presiding Justice
Garchitorena, in a paper entitled "Response," revealed for the first time
the informal discussion of petitioner's cases at an unnamed restaurant in
Quezon City. There is no way to know how the discussion was conducted
as it was not minuted.
Fourth. The rules of the Sandiganbayan do not allow the presence of a
non-member in the deliberation of cases. In the case at bar a certain
justice was present when Presiding Justice Garchitorena, Justice
Balajadia, and Justice del Rosario discussed petitioner's cases while taking
their lunch in a Quezon City restaurant.
Fifth. The rules of the Sandiganbayan do not allow the exclusion of a
member of a Division, whether regular or special, in the deliberation of
cases. Justices Atienza and Amores were members of the Special Division
but were not present when petitioner's cases were discussed over lunch
in a Quezon City restaurant. They ware not notified of the informal,
unscheduled meeting. In fact, Justice Amores had a pending request for
15 days to study petitioner's cases. In effect, Atienza and Amores were
disenfranchised. They were denied their right to vote for the conviction
or acquittal of petitioner.
These irregularities violated the right of petitioner to be tried by a
collegial court. Under PD No. 1606, as amended, and pursuant to the
rules of Sandiganbayan, petitioner cannot be convicted except upon the
vote of three justices, regardless of whether her cases are before a
regular division of three (3) justices or a Special Division of five (5)
justices. But more important than the vote of three (3) justices is the
process by which they arrive at their vote. It is indispensable that their
vote be preceded by discussion and deliberation by all the members of
the division. Before the deliberation by all, any opinion of a justice is but
tentative and could be changed. It is only after all the justices have been
heard should the justices reach a judgment. No one opinion can be
denigrated in importance for experience shows that an opinion that
starts as a minority opinion could become the majority opinion after the
collision of views of the justices. The right of the petitioner, therefore, is
the right to be heard by all the five justices of the Special Division. She is
entitled to be afforded the opinion of all its members.
123
In the case at bar, Presiding Justice Garchitorena had already created the
Special Division of five (5) justices in view of the lack of unanimity of the
three (3) justices in the First Division. At that stage, petitioner had a
Page
vested right to be heard by the five (5) justices, especially the new justices
in the persons of Justices Amores and del Rosario who may have a
different view of the cases against her. At that point, Presiding Justice
Garchitorena and Justice Balajadia may change their mind and agree with
the original opinion of Justice Atienza but the turnaround cannot deprive
petitioner of her vested right to the opinion of justices Amores and del
Rosario. It may be true that Justice del Rosario had already expressed his
opinion during an informal, unscheduled meeting in the unnamed
restaurant but as aforestated, that opinion is not the opinion
contemplated by law. But what is more, petitioner was denied the
opinion of Justice Amores for before it could be given, Presiding Justice
Garchitorena dissolved the Special Division.
We reject the rationalization that the opinion of Justice Amores was of de
minimis importance as it cannot overturn the votes of the three justices
convicting the petitioner. This is a mere guesswork. The more reasonable
supposition is that said opinion could have changed the opinions of the
other justices if it is based on an unbiased appreciation of facts and an
undistorted interpretation of pertinent laws. For we cannot unreasonably
suppose that Presiding Justice Garchitorena and Justices Balajadia and
Atienza are bigots who will never change their opinions about the guilt of
the petitioner despite a better opinion.
Yet, that is not all the value of the aborted opinion of Justice Amores. If it
were an opinion for the acquittal of the petitioner, that opinion will have
an added value when petitioner appeals her conviction to this Court.
Again, depending on its scholarship, that minority opinion could sway the
opinion of this Court towards the acquittal of petitioner.
Prescinding from those premises, it is indisputable that the decision of
the First Division of the respondent Sandiganbayan convicting the
petitioner is void for violating her right to substantive and procedural due
process of law.
It is opined, however, that this case should be remanded to the
respondent Sandiganbayan for re-decision by a Special Division of 5. As a
general rule, a void decision will not result in the acquittal of an accused.
The case ought to be remanded to the court of origin for further
proceedings for a void judgment does not expose an accused to double
jeopardy. But the present case deserves a different treatment
considering the great length of time it has been pending with our courts.
Records reveal that petitioner was first indicted in Criminal Case No.
17450 in January 1992. More than six (6) years passed but petitioner's
prosecution is far from over. To remand the case to the Sandiganbayan
will not sit well with her constitutional right to its speedy disposition.
Section 16, Article III of the Constitution assures "all persons shall have
the right to a speedy disposition of their cases before all judicial, quasi-
judicial, or administrative bodies." This right expands the right of an
accused "to have a speedy, impartial, and public trial . . ." in criminal case
guaranteed by Section 14(2) of Article III of the Constitution. It has a
broadening effect because Section 16 covers the periods before, during
and after trial whereas Section 14(2) covers only the trial
period.1 Heretofore, we have held that an accused should be acquitted
when his right to speedy trial has been violated. Thus, in the early 1936
case of People vs. Castañeda, et al., 63 Phil 480, 485, 486, a ponencia of
Mr. Justice Laurel, we held:
A strict regard for the constitutional rights of the accused would demand,
therefore, that the case be remanded to the court below for new
trial before an impartial judge. There are vital considerations, however,
which in the opinion of this court render this step unnecessary. In the first
place, the Constitution, Article III, section 1, paragraph 17, guarantees to
every accused person the right to a speedy trial. This criminal proceeding
has been dragging on for almost five (5) years now. The accused have
twice appealed to this court for redress from the wrong that they have
suffered at the hands of the trial court. At least one of them, namely,
Pedro Fernandez (alias Piro), had been confined in prison from July 20,
1932 to November 27, 1934 for inability to post the required bond of
P3,000 which was finally reduced to P300. The Government should be the
last to set an example of delay and oppresson in the administration of
justice and it is the moral and legal obligation of this court to see that the
criminal proceedings against the accused to come to an end and that they
be immediately discharged from the custody of the law. (Conde vs. Rivera
and Unson, 45 Phil., 650).
We reiterated this rule in Acebedo vs. Sarmiento, viz: 2
2. More specifically, this Court has consistently adhered to the view thatb
a dismissal based on the denial of the right to a speedy trial amounts to
an acquittal. Necessarily, any further attempt at continuing the
prosecution or starting a new one would fall within the prohibition
against an accused being twice put in jeopardy. The extensive opinion of
Justice Castro in People vs. Obsania noted earlier made reference to four
Philippine decisions. People vs. Diaz, People vs. Abaño, People vs. Robles,
and People vs. Cloribel. In all of the above case, this Court left no doubt
that a dismissal of the case, though at the instance of the defendant
grounded on the disregard of his right to a speedy trial was tantamount
to an acquittal. In People vs. Diaz, it was shown that the case was set for
hearing twice and the prosecution without asking for postponement or
giving any explanation failed to appear. In People vs. Abaño, the facts
disclosed that there were three postponements. Thereafter, at the time
the resumption of the trial was scheduled, the complaining witness as in
this case was absent, this Court held that respondent Judge was justified
in dismissing the case upon motion of the defense and that the
annulment or setting aside of the order of dismissal would place the
accused twice in jeopardy of punishment for the same offense. People vs.
Robles likewise presented a picture of witnesses for the prosecution not
being available, with the lower court after having transferred the
hearings on several occasions denying the last plea for postponement
and dismissing the case. Such order of dismissal, accordirig to this Court
"is not provisional in character but one which is tantamount to acquittal
that would bar further prosecution of the accused for the same offense."
This is a summary of the Cloribel case as set forth in the above opinion of
Justice Castro. "In Cloribel, the case dragged for three years and eleven
months, that is, from September 27, 1958 when the information was filed
to August 15, 1962 when it was called for trial, after numerous
postponements, mostly at the instance of the prosecution. On the latter
date, the prosecution failed to appear for trial, and upon motion of
defendants, the case was dismissed. This Court held, "that the dismissal
here complained of was not truly a "dismissal" but an acquittal. For it was
entered upon the defendants" insistence on their constitutional right to
speedy trial and by reason of the prosecution's failure to appear on the
date of trial." (Emphasis supplied)" There is no escaping the conclusion
then that petitioner here has clearly made out a case of an acquittal
arising from the order of dismissal given in open court.
The rationale for both Section 14(2) and section 16 of Article III of the
Constitution is the same, "justice delayed is justice denied." Violation of
either section should therefore result in the acquittal of the accused.
There are other reasons why the case should not be remanded to the
court a quo. Three justices of the Special Division, namely Justice Atienza,
Balajadia and Amores have already retired. Presiding Justice
Garchitorena is still with the respondent court but his impartiality has
been vigorously assailed by the petitioner. Mr. Justice Francisco of the
Third Division of this Court noted that Presiding Justice Garchitorena's
undue interference in the examination of witness Cuervo relealed his bias
and prejudice against petitioner. 3 As Mr. Justice Francisco observed "the
court questions were so numerous which as per petitioner Dans count
totaled 179 compared to prosecutor Querubin's questions which
numbered merely 73. More noteworthy, however, is that the court
propounded leading, misleading, and baseless hypothetical questions
rolled into one."4 Mr. Justice Francisco's opinion was concurred by Mr.
Justice Melo. Truly, even Mr. Chief Justice Narvasa, Madam Justice
Romero and Mr. Justice Panganiban who voted to convict petitioner did
not refute Mr. Justice Francisco's observations on the lack of impartiality
of Presiding Justice Garchitorena. They disregarded Mr. Ramon F.
Cuervo's testimony and based the conviction of petitioner purely on the
documentary evidence submitted by the People. Moreover, all the
evidence in the case at bar are now before this Court and to avoid further
delay, we can evaluate the evidence. In fact, the same evidence has been
passed upon by the Third Division of this Court in formulating its
124
judgment of affirmance sought to be reconsidered. Certainly, it will be
sheer rigmarole for this Court to still remand the case for a Special
Division of five of the Sandiganbayan to render another decision in the
Page
case, with respect to the herein petitioner.
I consider this opinion incomplete without quoting herein the following the cash and accounts kept by Nolasco. The COA audit disclosed that as 76 2/20/ Dina 1469 2/18/ 10,00
portion of the concurring and dissenting opinion of former Associate financial custodian of said court, Nolasco had undeposited collections in 96 2004 Hipon 9298 2002 0.00
Justice Ricardo J. Francisco dated January 29, 1998: the amount of P563,683.35, and undocumented/unauthorized ia
withdrawals from the Fiduciary Fund Account (FFA) amounting to 69 2/12/ Marie 1180 02/15 2,000 60,000 27,800
Thus, purely from the legal standpoint, with the evident weakness of the P128,317.64.1 Upon advice of the COA Audit Team, Judge Misajon 83 2003 ta De 7178 /00 .00 .00 .00
prosecution's case and the procedural aberrations that marred the trial, relieved Nolasco of her duties as financial custodian on February 14, 2005 Guzm
it is simply unsound and impossible to treat differently each petitioner and designated Court Interpreter Arlyn Minguez in her stead.2 an
who found themselves in one and the same situation. Indeed, our 69 8/12/ Lynlyn 1255 6/22/ 6,000
regained democracy, creditably, is successfully bailing us out from the Acting on the reported financial irregularities in the MTC-San Jose, the 34 2004 Ziga 7461 04 .00
ruins of the authoritarian regime, and it expects that government efforts Office of the Court Administrator (OCA) sent an audit team to conduct its 83 8/19/ Ricky 1619 3/12/ 10,00 44,000 28,000
in going after the plunderers of that dark past remain unrelenting and own investigation on the matter. Relative to Nolasco’s accountabilities, 22 2004 Gutier 6862 04 0.00 .00 .00
decisive. But let us not, in our anxiety to carry out this duty, for a moment the audit team discovered that she incurred shortages in the following rez
forget that our criminal justice system is not a popularity contest where amounts: 83 8/19/ Ricky 1619 3/12/ 10,00 14,000 4,000.
freedom and punishment are determined merely by the fame or infamy 22 2004 Gutier 6862 04 0.00 .00 00
of the litigants. "The scales of justice", it has been aptly said,5 "must hang Special Allowance for the Judiciary Fund (SAJF) P 49,265.60 rez
equal and, in fact, should even be tipped in favor of the accused because General Fund (GF) 3,187.00 Total 67,20 148,00 80,800
of the constitutional presumption of innocence. Needless to stress, this 0.00 0.00 .00
Judiciary Development Fund (JDF) 113,428.04
right is available to every accused, whatever his present circumstance ===========================================================
Sheriff Trust Fund (STF) 7,000.00
and no matter how dark and repellent his past." Culpability for crimes ==========
Fiduciary Fund (FF) 614,999.95
Must always take its bearing from evidence and universal precepts of due
GRAND TOTAL 787,880.59
process — lest we sacrifice in mocking shame once again the very liberties Withdrawal Without Supporting Documents
With respect to the FFA, the audit team found that Nolasco had
we are defending.
undeposited collections in the amount of P441,199.95, and unauthorized
withdrawals specified as follows:3 Cas Bondsma Date Cour Acknowledgme Amount
IN VIEW OF THE FOREGOING, the Motion for Reconsideration under e n Withdraw t Or. nt Withdraw
consideration is hereby GRANTED and petitioner Imelda R. Marcos is No. n Receipt n
hereby ACQUITTED of the offense charged. Costs de oficio. Over Withdrawal of Cash Bonds:
7/2/2004
x X 60,000.00
757 Rochie 1/31/200
x X 3,000.00
SO ORDERED. Ca Court Bonds OR OR Amou Amou Over
4 Gutierrez 5
se Or. man No. Date nt nt Withdr
No Date Withd awal 671 Delia 1/31/200
x X 2,000.00
(5) A.M. No. P-06-2148 March 4, 2009 7 Noble 5
. rawn
Total 65,000.00
68 6/7/2 Renita 7685 9/10/ 6,000
OFFICE OF THE COURT ADMINISTRATOR, Complainant, vs. 37 002 Gabo 287 99 .00 ===========================================================
JINGKEY NOLASCO, Clerk of Court, Municipal Trial Court, San Jose, ======
77 6/7/2 Daniel 1469 5/27/ 3,000 30,000 21,000
Antique, Respondent. 74 002 G. 9310 00 .00 .00 .00
Rafil Withdrawal of Bail Bond not Deposited with SA NO-0771-0101-33
PER CURIAM: 62 2/7/2 Azuen 4987 03/03 6,000
30 003 a 422 /97 .00 Case Court Or. Bondsma Court Or. Date Amount
Parre No. Date n Withdraw
This administrative matter arose from an examination conducted by the
no n
Commission on Audit (COA) on the cash and accounts of respondent
57 2/5/2 Emilie 3853 09/28 4,200 793 1/20/200 Ma. Bella 5611841 4/14/00
12,000.0
Jingkey B. Nolasco, Clerk of Court II, Municipal Trial Court (MTC)-San Jose,
49 003 Pelag 607 /94 .00 9 3 Lim 0
Antique.
o 623 3/24/200 Raymund1130716 12/24/02 16,000.0

125
66 2/12/ Ricard 9128 12/14 10,00 8 4 o Jungco
7 0
On March 21, 2005, the Fiscal Monitoring Division of the Court 42 2003 o 867 /98 0.00 Total 28,000.0
Management Office (FMD-CMO) received a letter from Judge Monina S. Britan 0
Misajon, Presiding Judge, MTC-San Jose, Antique, informing then Chief ia

Page
===========================================================
Justice Hilario G. Davide, Jr. of the initial results of a COA examination of
=====
The audit team further observed that the withdrawal slips and passbook
indicating the foregoing withdrawals from the FFA, under Land Bank of
the Philippines (LBP) Savings Account (SA) No. 0771-0107-33, were signed
by Judge Misajon and countersigned by Nolasco.
On August 12, 2005, the OCA issued a Memorandum4 directing Judge
Misajon to explain why the foregoing withdrawals from the FFA were
allowed. Likewise, the OCA directed respondent Nolasco to:
A. EXPLAIN in writing why she should not be administratively
charged with incurring the total initial shortage of SEVEN
HUNDRED EIGHTY SEVEN THOUSAND EIGHT HUNDRED EIGHTY
& 59/100 (P787,880.59) x x x.
B. PAY/DEPOSIT the initial shortages in the SAJF, GF, JDF, STF
and FF amounting to P49,265.60, P3,187.00, P113,428.04,
P7,000.00 and P614,999.95 respectively and SUBMIT to the
FMD-CMO the proof of remittance thereof.
C. EXPLAIN why withdrawals from the Fiduciary Fund were
made:
1. In excess of the cash bond deposited;
2. Without the court orders/acknowledgment
receipts; and
3. (Why some ) Cash bonds (were) not deposited with
SA No. 0771-0107-33.5
In compliance with the OCA directive, Nolasco sent an undated letter to
then Court Administrator Presbitero J. Velasco, Jr., reporting on her
efforts to restitute the shortages, thus:
With regards the Special Allowance for the Justices Fund (SAJF) as well as
the General Fund (GF), I have already restituted the amount of
P56,274.30. It was so because on the initial findings of the Commission
on Audit-Region VI, there was a shortage of P45,342.30 for the SAJF and
P9,748.00 for the STF, supposedly SGF or Sheriff's General Fund which is
also remitted in the SAJF account which totals to P55,090.30 but lately
Miss Bonifacia Lee informed me that my total shortage for the SAJF
account amounted to P56,272.30 hence; an additional remittance was
made. I could no longer deposit Your Honor, the amount of P3,187.00 for
the General Fund (GF) in the account of the Treasurer of the Philippines
considering that there was a Circular to remit the collections from the
Treasurer of the Philippines to SAJF Fund, so I would humbly beg that the
same be credited Your Honor since the total accountability I have as per
findings of the Supreme Court Audit Team amounted to P52,452.60. As
to Judiciary Development Fund (JDF), please find attached deposit slip as
to the restitution of P73,910.40. Again, Your Honor, in the COA findings,
I was short of P77,431.00 which prompted me to remit additional amount
of P4,520.60. As to the interest income of P39,517.64, that need to be
deposited with the JDF account, could it be possible Your Honor that the
over remittance I have with the JDF account in the amount of P4,520.60
and SAJF account in the amount of P3,821.70 for a total sum of P8,342.30
be offset and/or deducted to the amount of P39,517.64 so that I will only
remit P31,175.34 instead?
The Sheriff's Trust Fund (STF) Your Honor in the amount of P7,000.00 was
received by Ms. Arlyn Minguez, Court Interpreter and Designated
Financial Custodian from the undersigned on April 22, 2005 and the same
was deposited on even date at the account of STF-MTC, San Jose,
Antique.6
With regard to the undeposited collections in the FFA, Nolasco stated
that, during a chamber conference held on May 4, 2005, she already
admitted her failure to deposit collections amounting to more than
P400,000.00 before then Deputy Court Administrator Zenaida Elepaño,
Atty. Thelma Bahia and Judge Misajon. She expressed willingness to
restitute the amount if given ample time.7
On the other hand, Nolasco explained the unauthorized withdrawals
from the FFA, as follows:
As to OVERWITHDRAWALS, in the amount of P80,800.00, please be
informed Your Honor that in the withdrawn amount of P30,000.00, the
amount was withdrawn per instruction of Judge Ma. Monina S. Misajon,
for that time she needed the money in going home to Cebu City, her
native town to partition her properties. Indeed, I have knowledge and
consented to said withdrawal even though I knew it was wrong since the
authorized amount to be withdrawn is only P9,000.00, but I was ordered
by her, who am I to refuse a judge, Your Honor? Nonetheless, the
Supreme Court Audit Team must have noted that the amount of
P21,000.00 excess of the authorized amount withdrawn, it was restituted
on June 18, 2002 because even the COA-Regional Office findings would
reveal that there was an over deposit of P21,000.00 for the year 2002.
Vivid perusal of Annex 12 would show that said amount was
deposited/restituted by Judge Misajon herself because the penmanship
in the amount of P21,000.00 was hers, she let me sign the deposit slip
that I was the depositor and place the total amount of P21,000.00 but it
was her handwriting on the amount of 42 pieces of 500 bills and the
figures P21,000.00 and she personally deposited the amount at Land
Bank of the Philippines, San Jose, Antique branch. x x x
On the second amount of P60,000.00, Your Honor, the authorized
amount to be withdrawn is only P32,200 for it represents the forfeited
bonds to be deposited to the JDF Account but again, I extended another
favor for Judge Misajon since she told me that she badly needed the
money to be used for the cremation of her sister who died in Cebu City.
x x x she paid me P32,200.00 on June 18, 2004 to be deposited to the JDF
account for I told her, I need to make a report thereon. The remaining
amount of P27,800 was never returned by her Your Honor.
In another withdrawal of P44,000.00, the authorized amount to be
withdrawn is only P12,000.00 representing the cash bond of Ricky
Gutierez and Consolita Veñegas in the amount of P6,000.00 each. The
amount of P32,000.00 representing the cash bond of the Licanda family
was withdrawn because their cases were dismissed by the Court but the
prosecution filed an appeal to the Order of dismissal, hence, said amount
should have been returned to the Fiduciary Fund, but I wasn’t able to
redeposit the same Your Honor for again, I used said amount. x x x In
effect, the OVERWITHDRAWAL of cash bond in the amount of P80,800.00
should be reduced to P59,800 for that is the total amount not restituted
Your Honor.8
Nolasco alleged that the P60,000.00 withdrawal on July 4, 2004 which the
audit team found to be unsupported by any documents was again made
at the instance of Judge Misajon. Even though she knew that the same
was unauthorized, Nolasco consented to the withdrawal since it was her
superior who asked her to do so. She also admitted that she had a
personal interest in granting Judge Misajon’s request because she was
then aiming for a promotion and was courting the judge’s favor. As for
the other withdrawals without supporting documents amounting to
P5,000.00, the same were actually covered by court orders and
acknowledgment receipts which Nolasco attached as annexes to her
letter.
With respect to the withdrawal of bail bonds not deposited in the FFA,
Nolasco stated that the P16,000.00 cash bond in the Jungco case was
withdrawn and turned over to the bondsman upon dismissal of the same
by Judge Sylvia Jurao of Branch 10, RTC-San Jose, Antique. On the other
hand, the cash bond in the amount of P12,000.00 in the Lim case was
erroneously withdrawn together with the bond posted by the same
accused in another case that was dismissed at the same time. At any rate,
the amount is covered by an acknowledgment receipt issued by the
accused-bondsman.91awphi1
126
Meanwhile, Judge Misajon explained in a letter10 dated September 23,
2005, that she did not allow the unauthorized withdrawals and asserted
that Nolasco schemed and deliberately withdrew the amounts to pay for
Page
her debts and maintain an affluent lifestyle. Judge Misajon surmised that
the amounts in the withdrawal slips she signed must have been altered
by Nolasco, as shown by an examination of the withdrawal slips. She
asserted that she signed the withdrawal slips in good faith, as she had full
trust and confidence in Nolasco.
In a Memorandum11 dated January 16, 2006, the OCA recommended that
the report be docketed as a regular administrative matter against
Nolasco, and that the same be referred to Judge Rudy Castrojas for
further investigation, report and recommendation, in view of the
conflicting allegations of Judge Misajon and Nolasco.
On March 14, 2006, Judge Misajon wrote the OCA requesting that steps
be taken by the Court to prevent Nolasco from leaving the country and
evading her accountabilities.12 On March 28, 2006, the Court thus issued
a resolution immediately suspending Nolasco from office and ordering
the issuance of a hold departure order against her.13
On June 5, 2007, the Court adopted the recommendation of the OCA and
docketed the audit report as A.M. No. P-06-2148. The administrative
matter was then referred to Judge Rudy Castrojas of Branch 12, RTC-San
Jose, Antique, for further investigation.
In the meantime, Judge Misajon compulsorily retired from the service on
June 12, 2007.
After conducting several hearings in which respondent Nolasco and Judge
Misajon were allowed to testify and present their respective witnesses,
Judge Castrojas terminated his investigation and submitted his report
and recommendation14 to this Court on October 30, 2007. The
investigating judge found that there were three unauthorized
withdrawals from the FFA that were allegedly made at the instance of
Judge Misajon, thus:
1. The amount of P30,000.00 was withdrawn from the Fiduciary
Fund on June 14, 2002, as shown by the withdrawal slip marked
Exh. "A"–Misajon, and Exh. "1"–Nolasco.
2. P60,000.00 was also withdrawn from the same fund on June
11, 2004, evidenced by Exh. "C"–Misajon which is also Exh. "3"–
Nolasco.
3. Another P60,000.00 was withdrawn on July 2, 2004, as
reflected in a withdrawal slip marked Exh. "5"–Nolasco.
4. All the said withdrawal slips were signed by Judge Ma.
Monina S. Misajon and Jingkey Nolasco.15
With regard to the first withdrawal on June 14, 2002, Nolasco claimed
that only P9,000.00 was authorized to be withdrawn, but she nonetheless
withdrew P30,000.00 because Judge Misajon allegedly borrowed
P21,000.00 out of the said amount. To prove her allegation, Nolasco
presented a deposit slip on which Judge Misajon supposedly wrote the
figures "21,000.00" and "42", the latter being the number of five hundred
peso bills which Judge Misajon personally deposited with the LBP as
payment for the borrowed amount. Judge Misajon strongly denied that
it was her handwriting appearing on the said deposit slip.
As for the withdrawals made on June 11, 2004 and July 2, 2004, Judge
Misajon offered several theories to justify why she signed the withdrawal
slips. First, she surmised that Nolasco probably added the letters "ty" to
the word "six" and a "0" to "6,000.00" to make it appear that the amount
to be withdrawn was P60,000.00 instead of only P6,000.00. It was also
possible that Nolasco presented four copies of withdrawal slips for her
signature, with two copies left blank. As Judge Misajon was always busy
or under time constraint, Nolasco most likely took advantage of the
situation and had her sign blank or incomplete forms. Finally, Judge
Misajon speculated that Nolasco could have used withdrawal slips that
were signed in connection with other criminal cases, but remained
unused and kept by Nolasco for future fraudulent use.
For her part, Nolasco claimed that she withdrew the amount of
P60,000.00 on June 11, 2004 after she was told by Judge Misajon that the
latter needed money for the cremation of her sister who passed away in
Cebu City. At that time, Nolasco had to withdraw P32,200.00 in forfeited
cash bonds from the FFA and transfer the same to the Judiciary
Development Fund (JDF) Account. Believing that Judge Misajon would
need P60,000.00, Nolasco withdrew P60,000.00 and gave the entire
amount to Judge Misajon. Since Nolasco had to make a report on the JDF
Account by the end of the month, Judge Misajon returned the amount of
P32,200.00 on June 18, 2004, but never returned the balance of
P27,800.00.
As for the last withdrawal on July 4, 2004, Nolasco maintained that she
withdrew P60,000.00 at Judge Misajon’s behest, but she never knew
what the judge did with the money.
Between the conflicting accounts of the parties regarding the
unauthorized withdrawals from the FFA, the investigating judge gave
more credence to the version of Nolasco. On the first withdrawal, Judge
Castrojas made the following findings:
In order to be guided who between the two contending parties tell the
truth on the issue, Judge Misajon was requested to write twice on a piece
of paper the figure P21,000.00 x x x. It was observed that Judge Misajon
tried to differ the figures she wrote from figure P21,000.00 appearing on
the deposit slip dated June 18, 2002 x x x by not connecting the zeroes.
This notwithstanding, it is noted that the way or manner the numbers
"2", "1" and the last zeroes (0s) written by her on the piece of paper have
distinct similarities on the "2", "1" and "0" in the P21,000.00 appearing
on the deposit slip x x x.
It is observed that in one of the copies of the cash deposit slip x x x the
lower end of figure 1 in the 21,000.00 allegedly written by Judge Misajon
goes beyond the lower portion of figure 2. And, in the four 21,000.00
written by Judge Misajon during the investigation x x x three out of four
numbers one (1) also exceed the lower portions of the three twos (2s).
Considering the marked similarities on how they were written, it appears
that the contention of Jingkey Nolsaco that it was Judge Misajon who
wrote the 21,000.00 in the deposit slips x x x and deposited the said
amount with the Land Bank in payment for what she borrowed from the
Fiduciary Fund on June 14, 2002, seems to be credible.
xxxx
To strengthen her stand that she was not the one who wrote the figure
21,000.00 on the cash deposit slip x x x Judge Misajon testified that it was
her staff, Caroline Magno, who wrote the same. Unfortunately for her,
when Caroline Magno was called to testify, she (Magno) denied that the
21,000.00 was her handwriting.16
Judge Castrojas also observed that the withdrawal slips for the two other
transactions in the amount of P60,000.00 each were regular on their
faces. Contrary to Judge Misajon’s assertion, no modifications or
intercalations appeared to have been made in the figures written
thereon. Judge Misajon’s other theory that she may have signed
incomplete or blank withdrawal slips while she was busy or under time
constraint was also unacceptable, considering that it was incumbent
upon her to be cautious about these matters, as she was dealing with
court funds. Thus, even assuming Judge Misajon’s theory to be true, it did
not render her unaccountable, since she failed to exercise ordinary
diligence in the discharge of her duties.
Nevertheless, Judge Castrojas concluded that Nolasco was undeserving
of any sympathy. She was motivated by personal ambition when she
acceded to Judge Misajon’s instructions even if she knew that the
withdrawals were unauthorized. In fine, Judge Misajon and Nolasco
cooperated with each other in effecting the unauthorized withdrawals
127
and should both be faulted for the same.
Consequently, the investigating judge recommended that Judge Misajon
Page
and Nolasco be ordered to jointly and severally pay the amount of
P87,800.00. He also recommended that Nolasco be dismissed from the Nolasco is administratively liable for the shortages which she incurred in Balance of Accountability
service in view of the seriousness of her offense. However, since Judge her cash collections. She failed to immediately deposit the various funds ____
Misajon had already compulsorily retired while the investigation was still collected with the authorized government depository bank, in violation Fiduciary Fund (May 1, 2001 to February 13, 2005)
pending, her dismissal from the service was no longer possible.1awphi1 of pertinent court circulars19 which direct the same. She also admitted
that she misappropriated the money for her personal use without
Unwithdrawn Fiduciary Fund, 5/4/2001 P 775,810.35
On November 13, 2007, the Court referred the investigation report to the specifically explaining the reasons for her actions, and has yet to restitute
Add: Collections 2,526,299.40
OCA for further evaluation. In a Memorandum17 to this Court dated the total amount of P625,175.29,20 broken down as follows:
Total
August 4, 2008, the OCA adopted the factual findings of Judge Castrojas P 3,302,109.75
except for the recommended penalty, thus: Judiciary Development Fund (May 1, 2001 to February 13, 2005) Less: Withdrawals 2,089,409.75
Unwithdrawn Fiduciary Fund, 2/13/05
IN VIEW OF THE FOREGOING, it is respectfully recommended to the Collections P 572,775.64 P 1,212,700.00
Honorable Court that: Less: Deposits 459,347.60
Reported Balance of Accountability Less: Balance of Fiduciary Fund Bank
A. Respondent Jingkey Nolasco, Clerk of Court, MTC, San Jose, P 113,428.04 Net of Unwithdrawn Interest- P 649,826.11
Antique be DISMISSED from the service for dishonesty and Less: Restitutions 78,431.00 Account Balance, 2/13/05
grave misconduct and directed to restitute the amount of Balance of Accountability Less: Deposit, 2/21/05 2,000.00
P595,999.95 representing the amount of shortages in her P 34,997.04 Total
collections. The Office of Administrative Services, OCA be Special Allowance for the Judiciary Fund P 651,826.11
directed to compute respondent’s leave credits and forward Less: Unwithdrawn Interest 33,126.06
the same to the Finance Division, Fiscal Management Office- (November 11, 2003 to February 13, 2005) Total
OCA which shall compute the money value of the same, the Collections P 128,185.60 P 618,700.05
amount as well as other benefits she may be entitled to, Less: Deposits 78,920.00
dispensing with the usual documentary requirements and to Reported Balance of Accountability P 593,999.95
Balance of Accountability
apply the same to the shortages in the following order of Less: Restitution ____
P 49,265.60
preference: Fiduciary Fund, Judiciary Development Fund, Balance of Accountability
Less: Restitutions 56,274.30
Special Allowance for the Judiciary and Clerk of Court General P 593,999.95
Balance of Accountability
Fund;
(Excess Deposit) (7,008.70)
General Fund (May 1, 2001 to November 10, 2003) TOTAL BALANCE OF ACCOUNTABILITY P 625,175.2921
B. Legal Office, OCA (be) directed to file criminal charges
against respondent Jingkey Nolasco before the appropriate As clerk of court, Nolasco was duty-bound to use reasonable skill and
court. Collections P 60,639.00
diligence in the performance of her duties. She was an accountable
Less: Deposits 57,452.00
officer entrusted with the responsibility of collecting and depositing
Reported Balance of Accountability
C. Appropriate graft and corruption case be initiated by the money belonging to the court.22 She obviously failed to fulfill this
P 3,187.00
Legal Office, OCA against Judge Ma. Monina Misajon before the responsibility and even converted the court’s funds for her personal use.
Less: Restitutions ____
Office of the Ombudsman.18 Her failure to account for the money entrusted to her, and to adequately
Balance of Accountability explain and present evidence thereon, constitutes gross dishonesty,
3,187.00 grave misconduct and even malversation of public funds which this Court
According to the OCA, while Judge Misajon could no longer be held Sheriff’s Trust Fund (May 1, 2001 to February 13, 2005)
administratively liable due to her compulsory retirement from the will never countenance.23
service, a criminal case may nonetheless be initiated against her based
on the findings in these administrative proceedings. On the other hand, Collections P 38,000.00 Clerks of Court must be individuals of competence, honesty and probity,
apart from being dismissed from the service on the grounds of dishonesty Less: Withdrawals 31,000.00 charged as they are with safeguarding the integrity of the court and its
and grave misconduct, a criminal case may likewise be brought against Unwithdrawn Sheriff’s Trust Fund proceedings. They perform a delicate function as designated custodians
Nolasco whose acts amount to malversation of public funds under Article P 7,000.00 of the court’s funds, revenues, records, properties and premises. As such,

128
217 of the Revised Penal Code. Less: Cash Presented ____ they are responsible for ensuring that the court’s funds are promptly
Reported Balance of Accountability deposited with an authorized government depositary bank. They are thus
P 7,000.00 liable for any loss, shortage, destruction or impairment of such funds and

Page
We agree with the recommendations of the OCA.
Less: Restitution 7,000.00 property.24
Indeed, no position demands greater moral righteousness and
uprightness from the occupant than does the judicial office. The
safekeeping of funds and collections is essential to the goal of an orderly
administration of justice, and no protestation of good faith can override
the mandatory nature of the circulars designed to promote full
accountability for government funds. The failure to remit the funds in due
time amounts to dishonesty and grave misconduct, which the Court
cannot tolerate for they diminish the people’s faith in the judiciary. The
act of misappropriating judiciary funds constitutes dishonesty and grave
misconduct which are punishable by dismissal from the service, even if
committed for the first time.25
As for Judge Misajon, we find no reason to depart from the findings of
the OCA and Judge Castrojas that she instructed Nolasco to withdraw
unauthorized amounts from the FFA so that she could borrow the same.
By simply comparing the deposit slip pertaining to the first withdrawal
with her sample handwriting, this Court is left without any doubt that the
penmanship on the deposit slip is in fact Judge Misajon’s, as asserted by
Nolasco. Judge Misajon even had the temerity to point to one of her
other staff members as having filled up the deposit slip, which said staff
member denied. It is thus evident that Judge Misajon was not forthright
about the matter and did not tell the truth during her testimony before
the investigating judge.
At this point, it is well to state that the function of evaluating the
credibility of witnesses in administrative cases is primarily lodged in the
investigating judge. The rule which concedes due respect, and even
finality, to the assessment of credibility of witnesses by trial judges in civil
and criminal cases where preponderance of evidence and proof beyond
reasonable doubt, respectively, are required, applies a fortiori in
administrative cases where the quantum of proof required is only
substantial evidence. The investigating judge is in a better position to
pass judgment on the credibility of witnesses, having personally heard
them when they testified and observed their deportment and manner of
testifying.26 In the case of Judge Misajon, we simply find no reason to
disregard this rule.
Needless to say, Judge Misajon had the responsibility of seeing to it that
Nolasco, as clerk of court, performed her duties and complied with
circulars issued by the Supreme Court on the handling and safekeeping
of court funds.27Had she supervised and managed her court in the
manner that was expected of her as a judge, she could have discovered
earlier that Nolasco was misappropriating funds and prevented the
misappropriated amount from ballooning to such a large sum. It is even
probable that Nolasco was emboldened to convert court collections for
her personal use, as Judge Misajon herself dipped her hands into the
court funds. By "borrowing" money from the collections of the court, she
knowingly made the clerk of court violate circulars on the proper
administration of court funds28 and, in the process, became complicit in
Nolasco’s own wrongdoing.
Judge Misajon compulsorily retired from the service without any formal
administrative charges brought against her. Despite the clear misconduct
which she committed, the Court cannot impose administrative sanctions
against her, since she no longer falls within the administrative supervision
of the Court. The Court, however, is not without recourse. As pointed out
by the OCA, her act of inducing or persuading respondent Nolasco to
violate duly promulgated rules on the administration of court funds may
well constitute a violation of Section 3(a), Republic Act No. 3019.29 Thus,
a criminal case may be initiated against Judge Misajon on the basis of the
findings in this administrative matter.
Time and again, this Court has stressed that those charged with the
dispensation of justice – from the presiding judge to the lowliest clerk –
are circumscribed with a heavy burden of responsibility. Their conduct at
all times must not only be characterized by propriety and decorum but,
above all else, must be beyond suspicion. Every employee of the judiciary
should be an example of integrity, uprightness and honesty. Sadly,
respondent Nolasco and Judge Misajon failed to live up to these stringent
standards.30
WHEREFORE, in view of the foregoing, respondent Jingkey B. Nolasco is
found GUILTY of gross dishonesty and grave misconduct and is
hereby DISMISSED from the service with forfeiture of retirement and all
other benefits, and with prejudice to reemployment in any branch,
agency or instrumentality of the government, including government-
owned and controlled corporations. She is directed to RESTITUTE the
amount of P625,175.29 representing the amount of shortages in her
collections. The Office of Administrative Services (OAS)-OCA is directed
to compute her leave credits and forward the same to the Finance
Division, FMO-OCA which shall compute the money value of the same,
and to apply the same to her accountabilities in the following order of
preference: Fiduciary Fund, Judiciary Development Fund, Special
Allowance for the Judiciary and Clerk of Court General Fund.
The Legal Office-OCA is further directed to INITIATE the filing of criminal
charges against respondent Nolasco and (Ret.) Judge Ma. Monina S.
Misajon before the appropriate court or body.
(6) G.R. No. 167278 February 27, 2008
ATTY. GIL A. VALERA, CPA-LCB, Deputy Commissioner, Revenue
Collection Monitoring Group, Bureau of Customs, petitioner, vs.
OFFICE OF THE OMBUDSMAN, rep. by Hon. ORLANDO C. CASIMIRO,
Deputy Ombudsman for the and Military Other Law Enforcement
Offices (MOLEO), in his capacity as Acting Ombudsman; PNP-CIDG, rep.
by Director General Eduardo S. Matillano (public complainant); ATTY.
ADOLFO CASARENO (private complainant); Hon. CESAR V. PURISIMA,
Secretary of Finance, Department of Finance; Hon. ALBERTO D. LINA,
Commissioner of Customs, Bureau of Customs; Hon. ROBERTO D.
GEOTINA, Deputy Commissioner for Internal Administration Group,
Bureau of Customs; and HONORABLE COURT OF APPEALS(Fourth
Division), respondents.
DECISION
PUNO, C.J.:
Public office is a public trust.1 Public officers and employees must at all
times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty and efficiency, and act with patriotism
and justice, and lead modest lives.2 With the numerous ills and negative
perception surrounding the revenue collection agencies of the
government, this mandate of our fundamental law becomes all the more
relevant to the present petition. Petitioner, a Deputy Commissioner of
the Bureau of Customs, seeks to reverse and set aside the
Decision3 rendered by the Court of Appeals which affirmed the
Decision4 of the Office of the Deputy Ombudsman for the Military and
other Law Enforcement Offices (OMB-MOLEO) finding him guilty of grave
misconduct, and decreeing his dismissal from the service with all the
accessory penalties appertaining thereto.
The records show that petitioner Gil A. Valera was appointed by President
Gloria Macapagal Arroyo as Deputy Commissioner of Customs in charge
of the Revenue Collection Monitoring Group on July 13, 2001. He took his
oath of office on August 3, 2001, and assumed his post on August 7 of the
same year.
On December 21, 2001, he filed in the Regional Trial Court (RTC) of
Manila, for and on behalf of the Bureau of Customs, a collection case with
prayer for the issuance of a writ of preliminary attachment for the
collection of P37,195,859.00 in unpaid duties and taxes against Steel Asia
Manufacturing Corporation (SAMC), which utilized fraudulent tax credit
certificates in the payment of its duties. The case, docketed as Civil Case
No. 01-102504, was raffled off to Branch 39 of the RTC of Manila.
On January 16, 2002, a writ of preliminary attachment was issued against
SAMC in the aforementioned case. The writ was duly implemented and
129
the raw materials, finished products and plant equipment of SAMC were
subsequently attached. Petitioner and SAMC entered into a compromise
agreement wherein the latter offered to pay on a staggered basis through
Page
thirty (30) monthly equal installments the P37,195,859.00 duties and
taxes sought to be collected in the civil case.
On August 20, 2003, the Director of the Criminal Investigation and
Detention Group of the Philippine National Police, Eduardo Matillano,
filed a letter-complaint against petitioner with the Ombudsman, which
reads:
Investigation conducted disclosed that Atty. Gil A. Valera was
appointed as Deputy Commissioner, Bureau of Customs by the
President on July 13, 2001, took his oath on August 03, 2001
and assumed his post on August 07, 2001.
The administrative aspect of the complaint was docketed as OMB-C-A-
03-0379-J. On November 12, 2003, then Ombudsman Simeon V. Marcelo
issued a Memorandum6 to Special Prosecutor Dennis M. Villa-Ignacio,
inhibiting himself from the cases against the petitioner, and directing the
latter to act in his stead and place. Acting pursuant to this authority,
Special Prosecutor Villa-Ignacio made the finding that by entering into the
compromise agreement, petitioner may have made concessions that may
be deemed highly prejudicial to the government, i.e., waiver of the legal
interest and the penalty charges imposed by law, as well as the virtual
exoneration of SAMC of its fraudulent act of using spurious tax credit
certificates. He issued an Order7 placing petitioner on preventive
suspension for six (6) months without pay pending administrative
investigation on the matter.
(i) compromising the case against SAMC in Civil Case No. 01-
102504 before Branch 39, RTC Manila, without proper
authority from the Commissioner of the Bureau of Customs in
violation of Section 231611 of the Tariff and Customs Code, and
without the approval of the President in violation of Section
4(d) of Executive Order (E.O.) No. 156 as amended by E.O. No.
38;12
(ii) causing the employment of his brother-in-law with the
Cactus Cargoes Systems, Inc. whose principal business involves
transactions with the Bureau of Customs in violation of Section
3(d) of Republic Act (R.A.) No. 3019;13 and

On January 30, 2002, while in the performance of his official
functions, Atty. Gil A. Valera had compromised the case against
the Steel Asia Manufacturing Corporation in Civil Case No. 01-
102504 before Branch 39, RTC Manila without proper authority
from the Commissioner of the Bureau of Customs in violation
of Section 2316 TCCP (Authority of the Commission to make
Compromise) and without the approval of the President, in
violation of Executive Order No. 156 and Executive Order No.
38. Such illegal acts of Atty. Gil A. Valera indeed caused undue
injury to the government by having deprived the government
of its right to collect the legal interest, surcharges, litigation
expenses and damages and gave the Steel Asia unwarranted
benefits in the total uncollected amount of FOURTEEN
MILLION SEVEN HUNDRED SIXTY TWO THOUSAND FOUR
HUNDRED SIXTY SEVEN PESOS AND SEVENTY
CENTAVOS (P14,762,467.70),which is violative of Sections 3(e)
and (g) respectively of RA 3019.
Further investigation disclosed that Atty. Gil A. Valera while
being a Bureau of Customs official directly and indirectly had
financial or pecuniary interest in the CACTUS CARGOES
SYSTEMS a brokerage whose line of business or transaction, in
connection with which, he intervenes or takes part in his official
capacity by way of causing the employment of his brother-in-
law, Ariel Manongdo, thus, violating 3(h) of RA 3019 and RA
6713 and Section 4, RA 3019 as against Ariel Manongdo.
Finally, investigation also disclosed that on April 21, 2002 Atty.
Gil A. Valera traveled to Hongkong with his family without
proper authority from the office of the President in violation of
(iii) traveling to Hongkong without conforming with the
On March 19, 2004, the petitioner filed his motion for reconsideration of guidelines on the application to travel abroad for private
the preventive suspension order. Upon the lapse of the period 8 within purposes of public officials.14
which the Special Prosecutor, as acting Ombudsman, should have
resolved the motion for reconsideration, petitioner filed a Petition
The petitioner questioned this decision before the Court of Appeals, via
for Certiorari and Prohibition before the Court of Appeals on March 29,
a petition for review, and the case was raffled off to the 4 th Division and
2004, docketed as CA-G.R. SP No. 83091 and raffled off to the Special First
docketed as CA G.R. SP. No. 86281.
Division.
The 4th Division of the Court of Appeals refrained from ruling on the first
On June 14, 2004, Special Prosecutor Villa-Ignacio inhibited himself from
charge against the petitioner in deference to this Court in G.R. No.
the cases of herein petitioner in view of a complaint filed by the latter
164250. It however found enough evidence to substantiate the second
against him. OMB-C-A-03-0379-J was next assigned to the OMB-MOLEO,
and third charges and issued and promulgated its assailed decision
represented by respondent Orlando C. Casimiro.
affirming the decision of respondent Deputy Ombudsman finding
petitioner guilty of grave misconduct. It held as follows:
On June 25, 2004, the Special First Division of the Court of Appeals
rendered a Decision9 setting aside the preventive suspension order of
After careful consideration of the matter, this Court finds it
Special Prosecutor Villa-Ignacio and directing him to desist from taking
more prudent to defer from deciding the matters raised in
any further action in OMB-C-A-03-0379-J. In so ruling, the appellate court
connection with the first ground raised by petitioner in
held mainly that Special Prosecutor Villa-Ignacio was not authorized by
deference to the Supreme Court which is now tackling the very
law to sign and issue preventive suspension orders.
same issues. Respondents themselves argued that:
The OMB-MOLEO perfected an appeal from this decision on July 16, 2004.
"Needless to state, the Office of the Ombudsman lost
The appeal, docketed as G.R. No. 164250, was raffled off to the Second
no time in bringing the foregoing matters to the
Division of this Court, and was eventually elevated motu proprio to the
attention of the Honorable Supreme Court in a
Court En Banc.
petition for review (G.R. No. 164250). Since then, the
Supreme Court has motu proprio elevated the case
In the meantime, the adjudication of OMB-C-A-03-0379-J continued and from the Second Division to the Court En
the respondent Deputy Ombudsman issued a Decision10 finding the Banc,apparently because of the serious nature of the
petitioner administratively liable for grave misconduct and decreeing his issues raised against the honorable Special First
dismissal from the service, with all the accessory penalties appertaining Division." (Rollo, p. 292)

Executive Order No. 298 (foreign travel of government
personnel) dated May 19, 1995, thus, he committed an
administrative offense of Grave Misconduct.5
130
thereto. It was found that petitioner committed grave misconduct based
on the following charges:
It should also be considered that a ruling of the Supreme Court

Page
on the applicability of Section 2316 of the TCC is determinative
of the existence of a basis to the charges made against
petitioner.
Coming now to the second ground raised, petitioner asserted
that the respondents erred in finding him liable for the
employment of his brother-in-law Ariel N. Manongdo with
CCSI, claiming that there is no evidence that he had any
participation in the employment of said brother-in-law, to wit:
"But, nothing is contained in the decision under
review, particularly under the heading 'evidence for
the complainant', which shows that petitioner did
anything or performed any act or participated in any
way, directly or indirectly, in the employment of his
brother-in-law, Ariel N. Manongdo, with CCSI. Simply
put, the finding of fact is also a conclusion of law with
no fact or iota of evidence to support the discussion
and conclusion in the decision under review." (Rollo,
p. 48)
Respondents countered that petitioner not only used his
"official ascendancy" (Rollo, p. 348) to cause the employment
of his brother-in-law with CCSI, but they further claimed that
the joint-affidavit (Rollo, pp. 88-93) of the elements of the
Criminal Investigation Detection Group (CIDG) showed that
petitioner was a co-owner of CCSI as shown by the fact that he
invited his close friends and relatives to the blessing of the
brokerage firm. The relevant portion of said joint-affidavit
stated that:
"12. Further, during the conduct of our surveillance on the
lifestyle of Atty. Valera, we received information that he has
sent text messages to his close friends and relatives for the
blessing of his brokerage. The text of the message is as follows"
'ON WED, INVITE KO KAYO SA BLESSING NG BROKERAGE KO.
ROOM 604, GLC Bldg., TM KALAW cor MABINI 6 TO 8 PM.'
13. Atty. Gil A. Valera's visitors were mostly his classmates from
Ramon Magsaysay Cubao High School. He gave our asset his
professional card (Annex '35');
14. Our investigation disclosed that the GLC Bldg. is owned by
a certain Mr. GERARDO L. CONTRERAS. According to Ms.
JENNIE ESGUERRA, the building administrator, party on the
6th Floor was the inauguration of the CACTUS CARGOES
SYSTEMS represented by its Marketing Coordinator, Mr. ARIEL
MONONGDO (sic). Our information was that Monongdo is the
brother-in-law of Atty. Valera. Attached are the SEC
Registration of Cactus Cargo Inc., (Annex '36') and the Contract
of Lease signed by Mr. Ariel Monongdo the Marketing Manager
of Cactus with the building administrator (Annex '37')." (Rollo,
pp. 91-92)
Respondents also asserted that CCSI is a customs brokerage
firm which necessarily deals on a regular basis with petitioner's
office, more particularly:
"The Code of Conduct and Ethical Standards (R.A. No. 6713),
under Section 7, subpar. (b)(3) thereof, is very specific in
criminalizing the act of '(r)ecommend(ing) any person to any
position in a private enterprise which has a regular or pending
official transaction with their office.' On the other hand, Section
3 (d) of the Anti Graft and Corrupt Practices Act (sic) (R.A. No.
3019) punishes as criminal offense a public officer's act of
'(a)ccepting or having any member of his family accept
employment in a private enterprise which has pending official
business with him during the pendency thereof or within one
year after its termination." (Rollo, pp. 349-350)
Parenthetically, petitioner also argued that this charge was also
held by the Special First Division to be "too trivial". However,
the Court considers that statement to have been made in
relation to the question of whether or not the deputy
ombudsman had the power to order petitioner's preventive
suspension. That is, that statement should not be read to be a
disposition of the question on the merits.
Now, to dispose of the matter, it should be noted that the
findings of the respondent Deputy Ombudsman regarding the
second charge was based on two (2) grounds: first, the alleged
act of using petitioner's influence to obtain employment for his
brother-in-law and, second, the mere fact of employment of his
brother-in-law in a company which has regular business with
petitioner's office.
While the evidence regarding the alleged use of influence by
the petitioner to cause the employment of his brother-in-law
maybe a little tenuous, the Court finds basis to the second
ground. The Court notes that petitioner did not deny that CCSI
has regular transactions with his office. Neither did he deny
that Ariel Monongdo is his brother-in-law. Under Section 3(d)
of R.A. No. 3019, as amended, mere acceptance by a member
of his family of employment with a private enterprise which has
pending official business with the official involved is considered
a corrupt practice. It is clear, therefore, that mere acceptance
by Ariel Manongdo, a family member, of the employment with
CCSI rendered petitioner liable under the law. The Court,
therefore, agrees with respondent Deputy Ombudsman when
he held that:
"Moreover, the Anti-Graft and Corrupt Practices Act
(R.A. 3019) prohibits the public officer's act of
accepting or having any member of his family accept
employment in a private enterprise which has
pending official business with him during the
pendency thereof or within one year after its
termination. Ariel N. Manongdo, as brother-in-law of
respondent Valera falls squarely within the definition
of family under Section 4 of the same law." (Rollo, p.
70)
Coming now to the matter of his travel to Hongkong which is
the subject matter of the third objection raised by petitioner,
he first argued that his constitutional right to be informed of
the charges against him had been violated. He asserted that
while the Matillano Complaint charged him with violating E.O.
No. 278, the questioned Decision was based on E.O. No. 39.
The Court does not agree with this assertion. It should be
remembered that the present case is an administrative case
while Section 14 of Art. 3 of the 1987 Constitution refers strictly
to criminal prosecution. Said Constitutional provision reads:
"SECTION 14. (1) No person shall be held to answer
for a criminal offense without due process of law. (2)
In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and
shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of
the accusation against him, to have a speedy,
impartial, and public trial, to meet the witnesses face
to face, and to have compulsory process to secure the
attendance of witnesses and the production of
evidence in his behalf. However, 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."
131
It is well-settled that in an administrative case, due process is
served when the respondent was given an opportunity to be
Page
heard (Utto v. Comelec, 375 SCRA 523 [2002]). In the instant
case, petitioner cannot deny that he was given all the
opportunity to present his side of the story. Thus, the Court
agrees with respondents when they argued:
"It is, thus, unfortunate that instead of
demonstrating that he either complied with the
requirement of presidential authority to travel that
petitioner, as a lawyer, presumably knows to have
existed (sic), or that he was legitimately exempted
therefrom, petitioner instead resorted to the
unavailing technicality that the complaint did not
properly identify by the correct number [the] EO in
point. Petitioner invokes the right to be informed of
charges against an accused which, needless to state,
has specific application to criminal charges.
Needlessly, however, even in criminal cases, what
matters is not the title of the law violated but rather
the allegations of acts constituting a crime. In his
case, the allegation in the complaint was simply that
petitioner did not comply with the requirement for
presidential authority to travel abroad. It certainly
fully informed him of his infraction. After the issue
was joined on such factual allegation, identifying and
enforcing the applicable law by the public respondent
simply followed as part and parcel of its quasi-judicial
function." (Rollo, p. 35)
Turning now to his defense that his foreign travel should not be
taken against him because at the time he made the travel with
his family, he was a private citizen because he was prevented
by a temporary restraining order issued by this Court in CA-G.R.
SP No. 69855 (in the case entitled Rosqueta versus Hon. Judge
Juan Nabong) from assuming office and from dispossessing
then Deputy Commissioner Rosqueta of the position of Deputy
Commissioner.
The Court cannot subscribe to this argument. Under the theory
proposed by petitioner, there was in effect an interegnum as to
his government service during the effectivity of the TRO. But it
cannot be denied that once CA-G.R. SP No. 69855 was decided
and petitioner was allowed to assume his position, the
effectivity of his appointment retroacted to the original date of
appointment. While the temporary restraining order was in
effect, he nevertheless continued to assert on his right to the
office. The Court also notes that petitioner did not even present
any evidence to show that he had dissociated himself from the
office at the time in question. As pointed out by the
respondents' Comment:
"For that matter, petitioner cannot claim that he
suffered a gap in his public service during the period
covered by the so-called TRO. He certainly was not
dissociated from office during such period. He
continued to be a public officer, notwithstanding,
such that the application on him of the presidential
authority to travel can not be deemed to have been
then suspended." (Rollo, p. 356)
xxx
In fine, while the Court refrained from tackling the first charge
against petitioner, the Court finds that as to the second and
third charges, respondent Deputy Ombudsman did not err in
finding petitioner guilty of grave misconduct.15
On September 30, 2005, without going into the issue of petitioner's guilt,
the Court En Banc rendered a decision in G.R. No. 164250 ruling that the
power to place a public officer or employee under preventive suspension
pending an investigation is lodged only with the Ombudsman or the
Deputy Ombudsmen and affirmed the nullification and setting aside by
the appellate court of the preventive suspension order of the Special
Prosecutor.
Petitioner now comes before us praying that he be absolved of the
charges against him and that the decision of the 4th Division of the Court
of Appeals which effectively affirmed the decision of the OMB-MOLEO be
annulled and set aside.
We shall now put a finis to this controversy that has raged bitterly for the
past several months and shun further delay so as to ensure that this case
would really attain finality and resolve whether petitioner is guilty of
grave misconduct in connection with administrative case OMB-C-A-03-
0379-J.
First, we discuss the definition of grave misconduct as established by
jurisprudence:
Misconduct is a transgression of some established and definite rule of
action, more particularly, unlawful behavior or gross negligence by a
public officer.16 The misconduct is grave if it involves any of the additional
elements of corruption, willful intent to violate the law or disregard of
established rules, which must be proved by substantial evidence.17
At the onset, the Court would like to point out that in an administrative
proceeding, the quantum of proof required for a finding of guilt is only
substantial evidence, that amount of relevant evidence which a
reasonable mind might accept as adequate to justify a conclusion. 18 We
reiterate the well-settled rule that, when supported by substantial
evidence and absent any clear showing of abuse, arbitrariness or
capriciousness, findings of fact of administrative agencies, especially
when affirmed by the Court of Appeals, are binding and conclusive upon
this Court.19 After a thorough examination of the evidence on record, we
find no reason to depart from this rule.
With respect to the second and third charges against the petitioner, the
4th Division of the Court of Appeals agreed with the findings of the OMB-
MOLEO. The petitioner utterly failed to show that the factual findings of
the respondent, affirmed by the appellate court, were attended with
arbitrariness or abuse. The Matillano letter-complaint as well as its
supporting affidavits made clear allegations under oath that petitioner
recommended his brother-in-law, Ariel Manongdo, for employment with
Cactus Cargoes Systems, Inc. (CCSI), a customs brokerage firm which
necessarily deals on a regular basis with petitioner's office. Further, the
Matillano letter-complaint also categorically asserted that petitioner
traveled to Hongkong without obtaining the proper clearance. These
allegations under oath constitute substantial evidence required in
administrative proceedings.
On the other hand, petitioner did not deny that Ariel Manongdo is his
brother-in-law or that CCSI has regular transactions with his office.
Neither did he deny that he failed to comply with the requirement of
presidential authority to travel abroad. It is thus unfortunate that instead
of demonstrating that he is innocent of the charges, the petitioner
instead resorted to unavailing technicalities to disprove the allegations.
The Supreme Court cannot weigh once more the evidence submitted not
only before the Office of the Ombudsman but also before the Court of
Appeals. All told, we are convinced that there is substantial evidence to
hold petitioner liable for the second and third charges against him.
Be that as it may, petitioner raises some legal issues regarding these
charges which we shall settle.
Anent the second charge, petitioner contends that under Section 3(d) of
R.A. No. 3019,20 a brother-in-law is not included within the scope of the
word "family" and therefore, he cannot be found liable under the said
law. In arguing so, petitioner refers to the definition of the word "family"
found under Section 3(g) of R.A. No. 6713, which states:
132
SEC. 3. Definition of Terms. - As used in this Act, the term:
xxx
Page
 (g) "Family of public officials or employees" means their
spouses and unmarried children under eighteen (18) years of
age.
This contention deserves scant consideration.
Section 3 of R.A. No. 6713 is unequivocal in that its definition of terms is
limited to as used in the Act. Under R.A. No. 6713, the term "family" was
used only once under Section 4, par. (h),21 which implores public officials
and employees and their families to observe "simple living." The
restrictive definition accorded to the word "family" under the law is
logical since children of public officials and employees who are above
eighteen and already emancipated by law and freed from parental
authority should not be bound by this standard where their emancipation
may lead them to an otherwise private lifestyle or one which is not
beholden to the public trust.
This otherwise perfect logic would result in irrationality if we follow the
contention of petitioner that the definition of "family" under R.A. No.
6713 should also apply to R.A. No. 3019. It makes no rhyme nor reason
to suppose that public officials and employees are prohibited from having
their children under eighteen years accept employment in a private
enterprise having pending official business before their office, and yet are
allowed to have their children over eighteen years, which is the
employable age, to do so.
What petitioner fails to mention is that R.A. No. 6713 itself prohibits the
act of public officials and employees during their incumbency to
recommend any person to any position in a private enterprise which has
a regular or pending official transaction with their office.22 Certainly, the
definition of the word "family" under said law would unduly limit and
render meaningless Section 3(d) of R.A. No. 3019 if applied to the latter.
In fact, family relation is defined under Section 4 of R.A. No. 301923 which,
according to the said section, "shall include the spouse or relatives by
consanguinity or affinity in the third civil degree." Thus, we need not look
beyond the provisions of R.A. No. 3019 to hold that a brother-in-law falls
within the definition of family under Section 3(d) thereof.
Proceeding now to the legal issue with respect to the third charge, it is
advanced by petitioner that a public official reverts to his quo ante status
as a private citizen upon being subjected to a temporary restraining order
directing him to refrain from holding his office. Hence, he need not
comply with the requirements for traveling abroad during said period.
We are not persuaded.
We agree with the appellate court that petitioner suffered no gap in his
public service while the temporary restraining order was in effect. The
nature of a temporary restraining order which would have the effect of
preventing a public officer from discharging his office is provisional until
a preliminary injunction is issued by the court hearing the case. Because
of its temporary character, it would not have the effect of divesting such
officer of the public character of his office.
It cannot be denied that once CA-G.R. SP No. 69855 was decided and
petitioner was allowed to re-assume his office, the effectivity of his
appointment retroacted to the original date of his appointment. He
certainly remained as a public officer during such period and it was
incumbent upon him, especially since he was continuously asserting his
right to the office, to comply with the guidelines on the application to
travel abroad for private purposes24 of public officials.
We now come to the pivotal first charge facing petitioner that was left
unresolved by the Court of Appeals in deference to this Court - that of
compromising the case against SAMC without prior authorization from
the Commissioner of Customs in violation of Section 231625 of the Tariff
and Customs Code, and without prior approval of the President as
required by Section 4(d)26 of E.O. No. 156 as amended by E.O. No. 38.
Prefatorily, we emphasize that violations or disregard of regulations
governing the collection of government funds are administratively
sanctionable. Intended to raise revenue for government operations,
these regulations must be followed strictly.
On the first provision of the special law alleged to have been violated by
petitioner, Title VI Book II of the Tariff and Customs Code entitled
"ADMINISTRATIVE AND JUDICIAL PROCEEDINGS" is divided as follows:
1. Part 1 - Search, Seizure and Arrest,
2. Part 2 - Administrative Proceedings,
3. Part 3 - Judicial Proceedings,
4. Part 4 - Surcharges, Fines and Forfeitures,
5. Part 5 - Disposition of Property in Customs Custody, and
6. Part 7 - Fees and Charges. (Note: No Part 6)
According to petitioner, Sections 2301 up to 2316 are provisions found
under Part 2 and pertain to administrative proceedings, while Sections
2401 and 2402 are provisions found under Part 3 and pertain to judicial
proceedings. Section 2316 provides:
Section 2316. Authority of Commissioner to make
Compromise.-Subject to the approval of the Secretary of
Finance, the Commissioner of Customs may compromise any
case arising under this Code or other laws or part of laws
enforced by the Bureau of Customs involving the imposition of
fines, surcharges and forfeitures unless otherwise specified by
law.
While Section 2401 as amended, which was made by petitioner as basis
for his entering into the compromise agreement, provides:
Section 2401. Supervision and Control over Criminal and Civil
Proceedings.-Civil and criminal actions and proceedings
instituted in behalf of the government under the authority of
this Code or other law enforced by the Bureau shall be brought
in the name of the government of the Philippines and shall be
conducted by customs officers but no civil or criminal action
for the recovery of duties or the enforcement of any fine,
penalty or forfeiture under this Code shall be filed in court
without the approval of the Commissioner.
Thus, for petitioner, since the case wherein the compromise agreement
was entered into was already pending before a regular court, the
requirement of prior authority of the Commissioner of Customs to enter
into a compromise is not necessary.
This contention must fail.
Basic is the maxim in statutory construction that a statute must be read
or construed as a whole or in its entirety. All parts, provisions, or sections,
must be read, considered or construed together, and each must be
considered with respect to all others, and in harmony with the whole.27
A reading of the provisions cited by the petitioner will show that there is
really no conflict between them. Section 2401 covers the matter of the
institution and filing of civil and criminal actions by customs officers,
which is subject to the approval of the Commissioner if filed for the
recovery of duties or the enforcement of any fine, penalty or forfeiture
under the Code. It does not cover the compromise of such civil or criminal
actions, while Section 2316 is the provision that deals with such a
situation. In fact, the latter is categorical in providing an encompassing
scope for the strict conditions for any compromise. Its coverage
includes "any case arising under this code or other laws or part of laws
enforced by the Bureau of Customs involving the imposition of fines,
surcharges and forfeitures unless otherwise specified by
law." Doubtless, civil cases for collection of customs taxes and duties,
including the one in the case at bar, would fall under this coverage.
133
To be sure, the adoption of petitioner's interpretation of these provisions
Page
would result in absurdity that could not have been intended by Congress.
Following his logic, the Commissioner of Customs has to actively
participate and seek the approval of the Secretary of Finance in
compromising administrative collection cases; whereas, customs officers
without even seeking authority from the Commissioner or approval from
the Secretary of Finance can proceed to bargain off much larger collection
cases in courts. Clearly, the Court cannot countenance the abuse and
corruption engendered by this misreading of the law.
Petitioner next claims that there was no violation of Section 4(d)28 of E.O.
No. 156 as amended by E.O. No. 38, when he entered into the
compromise agreement without the express approval of the President.
E.O. No. 156, as amended by E.O. No. 38, created a Special Task Force to
investigate and prosecute the irregularities relative to the "tax credit
scam" committed at the center of the Department of Finance and to
recover and collect revenues lost by the government through the "scam."
Section 4(d) thereof provides:
Section 4. Powers, Duties and Functions. The Task Force shall
have the following powers, duties and functions:
xxx
d) To recommend the settlement of cases for approval of the
President, subject to appropriate rules on the settlement of
claims by the government;
In the case at bar, and during the time relevant to this case,29 specifically
on May 10, 2002, the then Chairman of the Task Force, Department of
Finance Undersecretary Cornelio Gison, reported to the then Department
of Finance Secretary Jose Isidro Camacho the successful collection by
petitioner of P37,195,859.00 in the SAMC case. On October 3, 2002, in
his Memorandum,30 Department of Finance Undersecretary Innocencio
P. Ferrer, Jr., who succeeded Undersecretary Gison, also congratulated
petitioner for his accomplishment in the said case.
Petitioner invokes the principle of qualified political agency wherein
these acts of the Special Task Force Chairmen - who both approved the
compromise agreement and lauded him for his accomplishment in the
recovery efforts against the original grantees and buyers of fraudulently
secured tax credit certificates - should be considered as approval by the
President herself, especially since she did not disapprove of nor
reprobate their acts.
This argument is likewise unavailing.
E.O. No. 156, as amended by E.O. No. 38, is clear in its requirement that in
cases involving tax credit scams the favorable recommendation for
approval by the Special Task Force and the approval by the President of
the Republic are both required. The approval by the Chairmen of the
Special Task Force is still subject to approval of the President. Prior
presidential approval is the highest form of check and balance within the
Executive branch of government and cannot be satisfied by mere failure
of the President to reverse or reprobate the acts of subordinates. To
sanction otherwise would be to ask the Court to reward passivity and
render nugatory the fundamental safeguard required under the law.
The Court notes that in Civil Case No. 01-102504, SAMC defrauded the
government of the amount of P37,195,859.00 in unpaid duties and taxes
with the use of fraudulent tax credit certificates that were directly and
originally procured by its officials on the basis of inexistent supporting
documents. The legal interest, surcharges, litigation expenses and
damages of this principal amount totaled a staggering P14,762,467.70,
which petitioner effectively waived through his entering into a
compromise agreement with SAMC. We find lamentable the utter
disregard of the legal requirements for entering into a compromise
displayed by petitioner which is further aggravated by the fact that there
were already sufficient properties of SAMC that were attached in the said
case to satisfy not only the principal amount owed but also the penalties,
surcharges and interests.
No amount of reasoning can infuse an empty plea to justify this
bloodletting. Fundamental it is in law that taxes being the lifeblood of the
government,31 such must be continuously replenished and carefully
preserved-and no public official should maintain a standard lower than
utmost diligence in keeping our revenue system flowing. It is not for any
government official to deem it within his complete control to let precious
blood flow to the private sphere where it would have been rightfully and
lawfully collected by the public through the government.
Persons appointed to the revenue collection agencies of the government,
like petitioner, ought to live up to the strictest standards of honesty and
integrity in the public service and must at all times be above suspicion.
Because of the nature of their office, the officials and employees of the
Bureau of Customs should serve as the primary role models in the faithful
observance of the constitutional canon that public office is a public trust.
Petitioner, being a Deputy Commissioner of the Revenue Collection
Monitoring Group, should know that his actuations reflect adversely on
the integrity and efficiency of his office and erode the faith and
confidence of our people in its daily administration. We find that the
totality of petitioner's acts constitutes flagrant disregard of established
rules constitutive of grave misconduct.
One final note. It appears that petitioner is no longer a Deputy
Commissioner of Customs.32 This fact, however, does not render this
petition moot and academic. As held in Gallo v. Cordero:
. . . [T]he jurisdiction that was ours at the time of the filing of
the administrative complaint was not lost by the mere fact that
the respondent public official had ceased to be in office during
the pendency of his case. The Court retains its jurisdiction
either to pronounce the respondent official innocent of the
charges or declare him guilty thereof. A contrary rule would be
fraught with injustices and pregnant with dreadful and
dangerous implications. For what remedy would the people
have against a judge or any other public official who resorts to
wrongful and illegal conduct during his last days in office? xxx If
innocent, respondent official merits vindication of his name
and integrity as he leaves the government which he has served
well and faithfully; if guilty, he deserves to receive the
corresponding censure and a penalty proper and imposable
under the situation.33
WHEREFORE, premises considered, the petition is DENIED. The assailed
Decision dated February 28, 2005 of the Court of Appeals in CA G.R. SP.
No. 86281 is hereby AFFIRMED.
(7) G.R. Nos. 170339, 170398-403 March 9, 2010
ROLANDO E. SISON, Petitioner, vs. PEOPLE OF THE
PHILIPPINES, Respondent.
CORONA, J.:
The requirements of the law on government procurements should never
be taken for granted because grave consequences await those who
violate them.
Petitioner Rolando E. Sison was the municipal mayor of Calintaan,
Occidental Mindoro, a fourth-class municipality,1from July 1, 1992 to
June2 30, 1995, while Rigoberto de Jesus was the municipal treasurer. On
July 18, 1994, state auditor Elsa E. Pajayon conducted a post-audit
investigation which revealed that during petitioner’s incumbency, no
public bidding was conducted for the purchase of a Toyota Land Cruiser,
119 bags of Fortune cement, an electric generator set, certain
134
construction materials, two Desert Dueler tires, and a computer and its
accessories. Pajayon also found out that there were irregularities in the
documents supporting the acquisitions.
Page
Thus, on June 4, 1998, petitioner and de Jesus were indicted before the
Sandiganbayan in seven separate Informations3 for seven counts of
violation of Section 3(e) of Republic Act (RA) 3019.4
On June 24, 1999, petitioner pleaded not guilty to all the Informations.
Accused de Jesus has remained at large.
Trial on the merits ensued. Pajayon was the lone witness for the
prosecution. She narrated the State’s version of the facts as above stated.
The prosecution thereafter rested its case and formally offered its
exhibits.
When it was the turn of the defense to present evidence, petitioner was
called to the witness stand where he admitted that indeed, no public
bidding was conducted insofar as the purchases he was being accused of
were concerned. When asked how the purchases were made, he
answered that they were done through personal canvass. When prodded
why personal canvass was the method used, he retorted that no public
bidding could be conducted because all the dealers of the items were
based in Manila. It was therefore useless to invite bidders since nobody
would bid anyway. The defense thereafter rested its case and formally
offered its exhibits.
On November 14, 2005, the Sandiganbayan found petitioner guilty as
charged.5 As such, he was meted in each Information an imprisonment
term ranging from six years and one month as minimum to ten years as
maximum and perpetual disqualification from holding public office. The
Sandiganbayan also ordered that an alias warrant of arrest be issued
against accused de Jesus.
Petitioner appealed6 to this Court, praying for an acquittal because his
guilt was allegedly not proven beyond reasonable doubt.
We dismiss the appeal.
Non-Compliance with the Requirements of Personal Canvass
RA 71607 explicitly provides that, as a rule, "acquisitions of supplies by
local government units shall be through competitive bidding."8 By way of
exception, no bidding is required in the following instances:
(1) personal canvass of responsible merchants;
(2) emergency purchase;
(3) negotiated purchase;
(4) direct purchase from manufacturers or exclusive
distributors and
(5) purchase from other government entities.9
Since personal canvass (the method availed of by petitioner) is an
exception to the rule requiring public bidding, Section 367 of RA 7160
provides for limitations on the resort to this mode of procurement:
Sec. 367. Procurement through Personal Canvass.—Upon approval by the
Committee on Awards, procurement of supplies may be affected after
personal canvass of at least three (3) responsible suppliers in the locality
by a committee of three (3) composed of the local general services officer
or the municipal or barangay treasurer, as the case may be, the local
accountant, and the head of office or department for whose use the
supplies are being procured. The award shall be decided by the
Committee on Awards.
Purchases under this Section shall not exceed the amounts specified
hereunder for all items in any one (1) month for each local government
unit:
xxx
Municipalities:
First Class First —One hundred fifty thousand pesos
Class (P150,000.00)
Second and Third —Forty thousand pesos (P40,000.00)
Class
Fourth Class and Below —Twenty thousand pesos (P20,000.00)
(emphasis supplied)
In relation thereto, Section 364 of RA 7160 mandates:
Section 364. The Committee on Awards.—There shall be in every
province, city or municipality a Committee on Awards to decide the
winning bids and questions of awards on procurement and disposal of
property.
The Committee on Awards shall be composed of the local chief executive
as chairman, the local treasurer, the local accountant, the local budget
officer, the local general services officer, and the head of office or
department for whose use the supplies are being procured, as
members. In case a head of office or department would sit in a dual
capacity a member of the sanggunian elected from among its members
shall sit as a member. The Committee on Awards at the barangay level
shall be the sangguniang barangay. No national official shall sit as
member of the Committee on Awards. (emphasis supplied)
Note that the law repeatedly uses the word "shall" to emphasize the
mandatory nature of its provisions.
This Court is not a trier of facts. The resolution of factual issues is a
function exercised by lower courts, whose findings on these matters are
received with respect and are in fact binding on the Court except only
where it is shown that the case falls under the accepted
exceptions.10 Petitioner failed to establish that his case falls under those
exceptions. Hence, we have no other option but to uphold the
Sandiganbayan’s factual findings.
Insofar as the purchase of the Toyota Land Cruiser11 is concerned, the
Sandiganbayan found that the personal canvass was effected solely by
petitioner, without the participation of the municipal accountant and
petitioner’s co-accused de Jesus, the municipal treasurer. Worse, there
was no showing that that the award was decided by the Committee on
Awards. Only an abstract of canvass supported the award, signed by
petitioner and de Jesus, without the required signatures of the municipal
accountant and budget officer.
To reiterate, RA 7160 requires that where the head of the office or
department requesting the requisition sits in a dual capacity, the
participation of a Sanggunian member (elected from among the
members of the Sanggunian) is necessary. Petitioner clearly disregarded
this requirement because, in all the purchases made, he signed in a dual
capacity—as chairman and member (representing the head of office for
whose use the supplies were being procured). That is strictly prohibited.
None of the regular members of the Committee on Awards may sit in a
dual capacity. Where any of the regular members is the requisitioning
party, a special member from the Sanggunian is required. The prohibition
is meant to check or prevent conflict of interest as well as to protect the
use of the procurement process and the public funds for irregular or
unlawful purchases.
The same flaws attended the procurement of 119 bags of Fortune
cement,12 electric power generator set,13 various construction
materials,14 two Desert Dueler tires15 and a computer and its
accessories.16
With the kind of items purchased by petitioner, he also clearly spent more
135
than ₱20,000—or beyond the threshold amount per month allowed by
Section 367 of RA 7160 as far as purchases through personal canvass by
fourth-class municipalities (like Calintaan) are concerned.
Page
Violation of Section 3(e) of RA 3019
Section 3(e) of RA 3019 provides:
Section 3. Corrupt practices of public officers—In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:
xxx
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted benefits,
advantage or preference in the discharge of his official, administrative or
judicial functions through manifest impartiality, evident bad faith or gross
inexcusable negligence. xxx. (emphasis supplied)
To be found guilty under said provision, the following elements must
concur:
(1) the offender is a public officer;
(2) the act was done in the discharge of the public officer’s
official, administrative or judicial functions;
(3) the act was done through manifest partiality, evident bad
faith, or gross inexcusable negligence; and
(4) the public officer caused any undue injury to any party,
including the Government, or gave any unwarranted benefits,
advantage or preference.17 (emphasis supplied)
It is undisputed that the first two elements are present in the case at bar.
The only question left is whether the third and fourth elements are
likewise present. We hold that they are.
The third element of Section 3 (e) of RA 3019 may be committed in three
ways, i.e., through manifest partiality, evident bad faith or gross
inexcusable negligence. Proof of any of these three in connection with
the prohibited acts mentioned in Section 3(e) of RA 3019 is enough to
convict.18
Explaining what "partiality," "bad faith" and "gross negligence" mean, we
held:
"Partiality" is synonymous with "bias" which "excites a disposition to see
and report matters as they are wished for rather than as they are." "Bad
faith does not simply connote bad judgment or negligence; it imputes a
dishonest purpose or some moral obliquity and conscious doing of a
wrong; a breach of sworn duty through some motive or intent or ill will;
it partakes of the nature of fraud." "Gross negligence has been so defined
as negligence characterized by the want of even slight care, acting or
omitting to act in a situation where there is a duty to act, not
inadvertently but wilfully and intentionally with a conscious indifference
to consequences in so far as other persons may be affected. It is the
omission of that care which even inattentive and thoughtless men never
fail to take on their own property." 19 (citations omitted)
In the instant case, petitioner was grossly negligent in all the purchases
that were made under his watch. Petitioner’s admission that the canvass
sheets sent out by de Jesus to the suppliers already contained his
signatures because he pre-signed these forms20 only proved his utter
disregard of the consequences of his actions. Petitioner also admitted
that he knew the provisions of RA 7160 on personal canvass but he did
not follow the law because he was merely following the practice of his
predecessors.21 This was an admission of a mindless disregard for the law
in a tradition of illegality. This is totally unacceptable, considering that as
municipal mayor, petitioner ought to implement the law to the letter. As
local chief executive, he should have been the first to follow the law and
see to it that it was followed by his constituency. Sadly, however, he was
the first to break it.
Petitioner should have complied with the requirements laid down by RA
7160 on personal canvass, no matter how strict they may have
been. Dura lex sed lex. The law is difficult but it is the law. These
requirements are not empty words but were specifically crafted to ensure
transparency in the acquisition of government supplies, especially since
no public bidding is involved in personal canvass. Truly, the requirement
that the canvass and awarding of supplies be made by a collegial body
assures the general public that despotic, irregular or unlawful
transactions do not occur. It also guarantees that no personal preference
is given to any supplier and that the government is given the best possible
price for its procurements.1avvphi1
The fourth element is likewise present. While it is true that the
prosecution was not able to prove any undue injury to the government
as a result of the purchases, it should be noted that there are two ways
by which Section 3(e) of RA 3019 may be violated—the first, by causing
undue injury to any party, including the government, or the second, by
giving any private party any unwarranted benefit, advantage or
preference. Although neither mode constitutes a distinct offense, 22 an
accused may be charged under either mode or both.23 The use of the
disjunctive "or" connotes that the two modes need not be present at the
same time. In other words, the presence of one would suffice for
conviction.24
Aside from the allegation of undue injury to the government, petitioner
was also charged with having given unwarranted benefit, advantage or
preference to private suppliers.25 Under the second mode, damage is not
required.
The word "unwarranted" means lacking adequate or official support;
unjustified; unauthorized26 or without justification or adequate
reason.27 "Advantage" means a more favorable or improved position or
condition; benefit, profit or gain of any kind; benefit from some course of
action.28 "Preference" signifies priority or higher evaluation or
desirability; choice or estimation above another.29
In order to be found guilty under the second mode, it suffices that the
accused has given unjustified favor or benefit to another, in the exercise
of his official, administrative or judicial functions. Petitioner did just that.
The fact that he repeatedly failed to follow the requirements of RA 7160
on personal canvass proves that unwarranted benefit, advantage or
preference was given to the winning suppliers. These suppliers were
awarded the procurement contract without the benefit of a fair system
in determining the best possible price for the government. The private
suppliers, which were all personally chosen by respondent, were able to
profit from the transactions without showing proof that their prices were
the most beneficial to the government. For that, petitioner must now
face the consequences of his acts.
Propriety of the Penalty
Any person guilty of violating Section 3 (e) of RA 3019 is punishable with
imprisonment for not less than six years and one month nor more than
fifteen years and perpetual disqualification from public office.30 Thus, the
penalty imposed by the Sandiganbayan which is an imprisonment term
ranging from six years and one month as minimum to ten years as
maximum and perpetual disqualification from holding public office for
each count of the offense, is in accord with law.
WHEREFORE, the petition is hereby DENIED. Petitioner Rolando E. Sison
is hereby found guilty of seven counts of violation of Section 3(e) of RA
3019. As such, he is hereby sentenced for each count of the offense with
imprisonment of six years and one month as minimum to ten years as
maximum and perpetual disqualification from holding public office. Costs
136
against petitioner.
Page
(8) G.R. No. 176546 September 25, 2009
FELICITAS P. ONG, Petitioner, vs. THE PEOPLE OF THE
PHILIPPINES, Respondent.
YNARES-SANTIAGO, J.:
Assailed in this petition for review is the Decision1 of the Sandiganbayan
dated November 13, 2006 in Criminal Case No. 24416, finding petitioner
Felicitas P. Ong guilty beyond reasonable doubt of violation of Sec. 3 (e)
of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt
Practices Act. Also assailed is the Resolution2 dated February 2, 2007
denying the motion for reconsideration.
On August 12, 1996 petitioner in her capacity as Mayor of Angadanan,
Isabela, bought3 an Isuzu dump truck4 for P750,000.00 from Josephine
Ching for the use of the municipality.
On March 26, 1997, a letter-complaint5 was filed against petitioner by her
successor, Mayor Diosdado Siquian6 and several other Sangguniang
Bayan members7 before the Office of the Ombudsman, accusing her of
malversation of public funds and property in connection with several
alleged irregularities committed during her term as Mayor of Angadanan,
including the purchase of the dump truck for being grossly overpriced.
On August 14, 1997, Graft Investigation Officer I Germain G. Lim found
no probable cause to hold petitioner liable for the charges. Upon
reconsideration however, she was indicted for violation of Sec. 3 (e) of
RA No. 3019, as amended, with respect to the acquisition of the dump
truck.
The Information8 reads:
That on or about August 1996, or sometime prior or subsequent thereto
in the Municipality of Angadanan, Isabela, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, Felicitas
P. Ong, a public official, being the Municipal Mayor of Angadanan,
Isabela, taking advantage of her official position and committing the
offense in relation to her office, acting with manifest partiality, evident
bad faith or gross inexcusable negligence, did then and there willfully,
unlawfully and feloniously cause injury to the Municipality of Angadanan
by causing and approving, without public bidding, the acquisition of an
Isuzu dump truck with Plate Number T-BBB-206 from J.C. Trucking in the
amount of SEVEN HUNDRED FIFTY THOUSAND PESOS (P750,000.00)
when the same or similar type of dump truck could have been bought at
a much lower price of not more than FIVE HUNDRED THOUSAND PESOS
(P500,000.00), to the damage and prejudice of the Municipality of
Angadanan in the amount of TWO HUNDRED AND FIFTY THOUSAND
PESOS (P250,000.00).
CONTRARY TO LAW.
On January 12, 1999, petitioner was arraigned and entered a plea of "Not
guilty."9
During trial, Ramon De Guzman Sevilla, Sales Manager of Christian Motor
Sales in Cabanatuan City, Nueva Ecija, testified that the cost of a ten
wheeler-front drive, military type Isuzu dump truck ranges from
P190,000.00-P490,000.00.10
Sangguniang Bayan members and complainants Ruben P. Lappay and
Mirasol P. Lappay both testified that the dump truck was bought without
conducting a public bidding or a resolution by the Sangguniang Bayan;
that the truck was merely reconditioned and not brand new as can be
seen from its deplorable condition, worn tires and old battery; 11 and that
a subsequent canvass of other suppliers showed that better quality dump
trucks cost no more than P500,000.00.12
In her defense, petitioner testified that in 1996, the municipality
appropriated the amount of P1,000,000.00 for the purchase of a dump
truck;13 that pursuant to said appropriation, the subject vehicle was
purchased on August 12, 1996 for P750,000.00 through a negotiated
purchase from Josephine Ching of J.C. Trucking; that the public bidding
and prior Sangguniang Bayan resolution were dispensed with pursuant to
Commission on Audit (COA) Resolution Nos. 95-24414 and 95-244-
A15 which do not require the conduct of a public bidding on any
negotiated purchase in amounts not exceeding P10,000,000.00;16 that
the truck was not in disrepair as the same was inspected by the Regional
Engineer from COA who declared it fit and in good running
condition;17 and that the purchase was allowed by COA because it did not
issue a notice of disallowance.18
On November 13, 2006, the Sandiganbayan rendered its Decision finding
petitioner guilty beyond reasonable doubt of violation of Sec. 3 (e) of RA
No. 3019. The dispositive portion thereof reads:
WHEREFORE, the Court finds accused Felicitas P. Ong, GUILTY beyond
reasonable doubt, for violation of Sec. 3 (e) of RA No. 3019, and is hereby
sentenced to suffer the penalty of:
(A) Imprisonment of, after applying the Indeterminate
Sentence Law, six years and one month as minimum, up to ten
years, as maximum; and
(B) Perpetual disqualification from Public Office.
Accused is hereby ordered to RETURN to the Municipality of Angadanan
the amount of P250,000.00.
SO ORDERED.19
The Sandiganbayan found that as Mayor of Angadanan, there is no
dispute that petitioner was a public officer discharging administrative and
official functions; that there is no merit to petitioner’s claim that the
purchase of the dump truck without public bidding was justified by COA
Resolution Nos. 95-244 and 95-244-A; and that the prosecution was able
to prove that had petitioner observed the proper procurement
procedure, the municipality could have acquired a dump truck similar to,
if not better than that which she bought, for a much lesser price.
Hence, this appeal where petitioner contends that the Sandiganbayan
erred in finding her guilty of violation of Section 3 (e) of RA No. 3019. In
particular, petitioner denies causing injury or giving anybody any
unwarranted benefits, advantage or preference in the discharge of her
official or administrative functions, or that she is guilty of any manifest
partiality, evident bad faith or gross negligence.
We are not persuaded.
It is a well-entrenched rule that factual findings of the Sandiganbayan are
conclusive upon the Supreme Court except where: (1) the conclusion is a
finding grounded entirely on speculation, surmise and conjectures; (2)
the inference made is manifestly mistaken; (3) there is grave abuse of
discretion; (4) the judgment is based on misapprehension of facts and the
findings of fact of the Sandiganbayan are premised on the absence of
evidence and are contradicted by evidence on record.20 None of the
above exceptions obtains in this case.
Section 3 (e) of RA No. 3019, as amended, provides:
Section 3. Corrupt practices of public officers.- In addition to acts or
omissions of public officers already penalized by existing law, the
137
following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful
Page
xxxx
(e) Causing any undue injury to any party, including the Government, or
giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant
of licenses or permits or other concessions.
The following essential elements must be present:
1. The accused must be a public officer discharging
administrative, judicial or official functions;
2. He must have acted with manifest partiality, evident bad
faith or gross inexcusable negligence; and
3. His action caused any undue injury to any party, including the
government, or gave any private party unwarranted benefits,
advantage or preference in the discharge of his functions. 21
We find that all the elements of the offense charged have been duly
established beyond reasonable doubt. Petitioner, being then the Mayor
of Angadanan, Isabela is a public officer discharging administrative and
official functions. The act of purchasing the subject truck without the
requisite public bidding and authority from the Sangguniang Bayan
displays gross and inexcusable negligence. Undue injury was caused to
the Government because said truck could have been purchased at a much
lower price.
The contention that the acquisition through a negotiated purchase was
valid the same being pursuant to COA Resolution Nos. 95-244 and 95-
244-A, is untenable. Petitioner’s reliance on said COA Resolutions is
misplaced. COA Resolution No. 95-244 as amended by Resolution No. 95-
244-A states that there is no necessity of prescribing the limit of
purchases not subject to public bidding since Executive Order No.
30122 authorizes the heads of an agency with the approval of the
Department Heads to enter into a negotiated purchase as long as the
same is advantageous to the government.
Both resolutions are implementing guidelines which must be read and
applied in conjunction with Title VI,23 Book II, of Republic Act No. 7160
otherwise known as the Local Government Code of 1991. Section 356
thereof states the general rule that the acquisition of supplies by the local
government units shall be through competitive bidding. The only
instances when public bidding requirements can be dispensed with are
provided under Section 366, to wit:
Section 366. Procurement without Public Bidding. - Procurement of
supplies may be made without the benefit of public bidding under any of
the following modes:
<="" p=""><="" p="">Negotiated purchase;
<="" p=""><="" p="">
negotiated purchase is further qualified by Section 369 thereof which
states:
Section 369. Negotiated Purchase.- (a) In cases where public biddings
have failed for two (2) consecutive times and no suppliers have qualified
to participate or win in the biddings, local government units may, through
the local chief executive concerned, undertake the procurement of
supplies by negotiated purchase, regardless of amount, without public
bidding: provided, however, that the contract covering the negotiated
purchase shall be approved by the Sanggunian concerned x x x.
Thus, a local chief executive could only resort to a negotiated
purchase under Section 366 of RA No. 7160 and COA Resolution Nos. 95-
244 and 95-244-A, if the following two requisites are present: (1) public
biddings have failed for at least two consecutive times and; (2) no
suppliers have qualified to participate or win in the biddings.
The Sandiganbayan correctly ruled that by procuring the subject truck
through a negotiated purchase without public bidding, petitioner failed
to comply with the above stated procedure. Indeed, as the local chief
executive, petitioner is not only expected to know the proper procedure
in the procurement of supplies, she is also duty bound to follow the same
and her failure to discharge this duty constitutes gross and inexcusable
negligence.
Price quotations obtained from several suppliers24 as well as the
testimonies of Ramon de Guzman Sevilla, Ruben Lappay and Mirasol
Lappay proved that the dump truck purchased by petitioner was over-
priced. Hence, had petitioner observed the proper procurement
procedure, the municipality of Angadanan could have acquired a dump
truck similar to, if not better than the one originally bought, at a much
lower price of not more than P500,000.00. Without doubt, petitioner’s
negligence caused undue injury to the government while at the same
time gave unwarranted benefits to Josephine Ching.
The penalty for violation of Section 3(e) of RA 3019 is "imprisonment for
not less than six years and one month nor more than fifteen years, and
perpetual disqualification from public office."25 Under the Indeterminate
Sentence Law, if the offense is punished by special law, as in the present
case, an indeterminate penalty shall be imposed on the accused, the
maximum term of which shall not exceed the maximum fixed by the law,
and the minimum not less than the minimum prescribed therein.26
In view of the circumstances obtaining in the instant case, the
Sandiganbayan correctly imposed the indeterminate prison term of six
(6) years and one (1) month, as minimum, to ten (10) years and one (1)
day, as maximum, with perpetual disqualification from public office.
WHEREFORE, the petition is DENIED. The Decision of the Sandiganbayan
dated November 13, 2006 finding petitioner Felicitas P. Ong guilty
beyond reasonable doubt of violation of Section 3 (e) of Republic Act No.
3019 and sentencing her to suffer the penalty of six (6) years and one (1)
month, as minimum, to ten (10) years and one (1) day, as maximum, with
perpetual disqualification from holding public office and with order to
return the amount of P250,000.00, is AFFIRMED.
(9) G.R. No. 180363 April 28, 2009
EDGAR Y. TEVES, Petitioner, vs. THE COMMISSION ON ELECTIONS and
HERMINIO G. TEVES, Respondents.
YNARES-SANTIAGO, J.:
The issue for resolution is whether the crime of which petitioner Edgar Y.
Teves was convicted in Teves v. Sandiganbayan1 involved moral
turpitude.
The facts of the case are undisputed.
Petitioner was a candidate for the position of Representative of the 3rd
legislative district of Negros Oriental during the May 14, 2007 elections.
On March 30, 2007, respondent Herminio G. Teves filed a petition to
disqualify2petitioner on the ground that in Teves v. Sandiganbayan,3 he
was convicted of violating Section 3(h), Republic Act (R.A.) No. 3019, or
the Anti-Graft and Corrupt Practices Act, for possessing pecuniary or
financial interest in a cockpit, which is prohibited under Section 89(2) of
the Local Government Code (LGC) of 1991, and was sentenced to pay a
fine of P10,000.00. Respondent alleged that petitioner is disqualified
from running for public office because he was convicted of a crime
involving moral turpitude which carries the accessory penalty of
perpetual disqualification from public office.4 The case was docketed as
SPA No. 07-242 and assigned to the COMELEC’s First Division.
On May 11, 2007, the COMELEC First Division disqualified petitioner from
running for the position of member of House of Representatives and
138
ordered the cancellation of his Certificate of Candidacy.5
Page
Petitioner filed a motion for reconsideration before the COMELEC en
banc which was denied in its assailed October 9, 2007 Resolution for
being moot, thus:
It appears, however, that [petitioner] lost in the last 14 May 2007
congressional elections for the position of member of the House of
Representatives of the Third district of Negros Oriental thereby rendering
the instant Motion for Reconsideration moot and academic.
WHEREFORE, in view of the foregoing, the Motion for Reconsideration
dated 28 May 2007 filed by respondent Edgar Y. Teves challenging the
Resolution of this Commission (First Division) promulgated on 11 May
2007 is hereby DENIED for having been rendered moot and academic.
SO ORDERED.6
Hence, the instant petition based on the following grounds:
I.
THERE WAS ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF
JURISDICTION, WHEN THE COMELEC EN BANC DEMURRED IN RESOLVING
THE MAIN ISSUE RAISED IN PETITIONER’S MOTION FOR
RECONSIDERATION, WHETHER PETITIONER IS DISQUALIFIED TO RUN FOR
PUBLIC OFFICE TAKING INTO CONSIDERATION THE DECISION OF THE
SUPREME COURT IN G.R. NO. 154182.
II.
THE MAIN ISSUE IS NOT RENDERED MOOT AND ACADEMIC AS THE
RESOLUTION THEREOF WILL DETERMINE PETITIONER’S QUALIFICATION
TO RUN FOR OTHER PUBLIC POSITIONS IN FUTURE ELECTIONS.
III.
THERE WAS ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF
JURISDICTION, WHEN THE COMELEC EN BANC IN EFFECT AFFIRMED THE
FINDINGS OF THE FIRST DIVISION WHICH RULED THAT PETITIONER’S
CONVICTION FOR VIOLATION OF SECTION 3(H) OF R.A. 3019 AND THE
IMPOSITION OF FINE IS A CONVICTION FOR A CRIME INVOLVING MORAL
TURPITUDE.
A.
THE ISSUE OF WHETHER PETITIONER WAS CONVICTED OF A CRIME
INVOLVING MORAL TURPITUDE SHOULD BE RESOLVED TAKING INTO
CONSIDERATION THE FINDINGS OF THE SUPREME COURT IN G.R. NO.
154182.
B.
THERE IS NOTHING IN THE DECISION OF THE SUPREME COURT THAT
SUPPORTS THE FINDINGS OF THE FIRST DIVISION OF THE COMELEC, THAT
BASED ON THE "TOTALITY OF FACTS" DOCTRINE, PETITIONER WAS
CONVICTED OF A CRIME INVOLVING MORAL TURPITUDE.7
The petition is impressed with merit.
The fact that petitioner lost in the congressional race in the May 14, 2007
elections did not effectively moot the issue of whether he was
disqualified from running for public office on the ground that the crime
he was convicted of involved moral turpitude. It is still a justiciable issue
which the COMELEC should have resolved instead of merely declaring
that the disqualification case has become moot in view of petitioner’s
defeat.
Further, there is no basis in the COMELEC’s findings that petitioner is
eligible to run again in the 2010 elections because his disqualification
shall be deemed removed after the expiration of a period of five years
from service of the sentence. Assuming that the elections would be held
on May 14, 2010, the records show that it was only on May 24, 2005 when
petitioner paid the fine of P10,000.00 he was sentenced to pay in Teves
v. Sandignbayan.8 Such being the reckoning point, thus, the five-year
disqualification period will end only on May 25, 2010. Therefore he would
still be ineligible to run for public office during the May 14, 2010 elections.
Hence, it behooves the Court to resolve the issue of whether or not
petitioner’s violation of Section 3(h), R.A. No. 3019 involves moral
turpitude.1avvphi1
Section 12 of the Omnibus Election Code reads:
Sec. 12. Disqualifications. - Any person who has been declared by
competent authority insane or incompetent, or has been sentenced by
final judgment for subversion, insurrection, rebellion, or for any offense
for which he has been sentenced to a penalty of more than eighteen
months, or for a crime involving moral turpitude, shall be disqualified to
be a candidate and to hold any office, unless he has been given plenary
pardon or granted amnesty.lawphil.net
The disqualifications to be a candidate herein provided shall be deemed
removed upon the declaration by competent authority that said insanity
or incompetence had been removed or after the expiration of a period of
five years from his service of sentence, unless within the same period he
again becomes disqualified. (Emphasis supplied)
Moral turpitude has been defined as everything which is done contrary
to justice, modesty, or good morals; an act of baseness, vileness or
depravity in the private and social duties which a man owes his
fellowmen, or to society in general.9
Section 3(h) of R.A. 3019 of which petitioner was convicted, reads:
Sec. 3. Corrupt practices of public officers. — In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:
xxxx
(h) Directly or indirectly having financial or pecuniary interest in any
business, contract or transaction in connection with which he intervenes
or takes part in his official capacity, or in which he is prohibited by the
Constitution or by any law from having any interest.
The essential elements of the violation of said provision are as follows: 1)
The accused is a public officer; 2) he has a direct or indirect financial or
pecuniary interest in any business, contract or transaction; 3) he either:
a) intervenes or takes part in his official capacity in connection with such
interest, or b) is prohibited from having such interest by the Constitution
or by law.10
Thus, there are two modes by which a public officer who has a direct or
indirect financial or pecuniary interest in any business, contract, or
transaction may violate Section 3(h) of R.A. 3019. The first mode is when
the public officer intervenes or takes part in his official capacity in
connection with his financial or pecuniary interest in any business,
contract, or transaction. The second mode is when he is prohibited from
having such an interest by the Constitution or by law.11
In Teves v. Sandiganbayan,12 petitioner was convicted under the second
mode for having pecuniary or financial interest in a cockpit which is
prohibited under Sec. 89(2) of the Local Government Code of 1991. The
Court held therein:
However, the evidence for the prosecution has established that
petitioner Edgar Teves, then mayor of Valencia, Negros Oriental, owned
the cockpit in question. In his sworn application for registration of cockpit
filed on 26 September 1983 with the Philippine Gamefowl Commission,
Cubao, Quezon City, as well as in his renewal application dated 6 January
1989 he stated that he is the owner and manager of the said cockpit.
Absent any evidence that he divested himself of his ownership over the
cockpit, his ownership thereof is rightly to be presumed because a thing
once proved to exist continues as long as is usual with things of that
nature. His affidavit dated 27 September 1990 declaring that effective
January 1990 he "turned over the management of the cockpit to Mrs.
139
Teresita Z. Teves for the reason that [he] could no longer devote a full
time as manager of the said entity due to other work pressure" is not
sufficient proof that he divested himself of his ownership over the
Page
cockpit. Only the management of the cockpit was transferred to Teresita
Teves effective January 1990. Being the owner of the cockpit, his interest
over it was direct.
Even if the ownership of petitioner Edgar Teves over the cockpit were
transferred to his wife, still he would have a direct interest thereon
because, as correctly held by respondent Sandiganbayan, they remained
married to each other from 1983 up to 1992, and as such their property
relation can be presumed to be that of conjugal partnership of gains in
the absence of evidence to the contrary. Article 160 of the Civil Code
provides that all property of the marriage is presumed to belong to the
conjugal partnership unless it be proved that it pertains exclusively to the
husband or to the wife. And Section 143 of the Civil Code declares all the
property of the conjugal partnership of gains to be owned in common by
the husband and wife. Hence, his interest in the Valencia Cockpit is direct
and is, therefore, prohibited under Section 89(2) of the LGC of 1991,
which reads:
Section 89. Prohibited Business and Pecuniary Interest. – (a) It shall be
unlawful for any local government official or employee, directly or
indirectly, to:
xxxx
(2) Hold such interests in any cockpit or other games licensed by a local
government unit…. [Emphasis supplied].
The offense proved, therefore, is the second mode of violation of Section
3(h) of the Anti-Graft Law, which is possession of a prohibited interest.13
However, conviction under the second mode does not automatically
mean that the same involved moral turpitude. A determination of all
surrounding circumstances of the violation of the statute must be
considered. Besides, moral turpitude does not include such acts as are
not of themselves immoral but whose illegality lies in their being
positively prohibited, as in the instant case.
Thus, in Dela Torre v. Commission on Elections,14 the Court clarified that:
Not every criminal act, however, involves moral turpitude. It is for this
reason that "as to what crime involves moral turpitude, is for the
Supreme Court to determine." In resolving the foregoing question, the
Court is guided by one of the general rules that crimes mala in se involve
moral turpitude, while crimes mala prohibita do not, the rationale of
which was set forth in "Zari v. Flores," to wit:
"It (moral turpitude) implies something immoral in itself, regardless of
the fact that it is punishable by law or not. It must not be merely mala
prohibita, but the act itself must be inherently immoral. The doing of the
act itself, and not its prohibition by statute fixes the moral turpitude.
Moral turpitude does not, however, include such acts as are not of
themselves immoral but whose illegality lies in their being positively
prohibited."
This guideline nonetheless proved short of providing a clear-cut solution,
for in "International Rice Research Institute v. NLRC, the Court admitted
that it cannot always be ascertained whether moral turpitude does or
does not exist by merely classifying a crime as malum in se or as malum
prohibitum. There are crimes which are mala in se and yet but rarely
involve moral turpitude and there are crimes which involve moral
turpitude and are mala prohibita only. In the final analysis, whether or
not a crime involves moral turpitude is ultimately a question of fact and
frequently depends on all the circumstances surrounding the violation of
the statute. (Emphasis supplied)1awphi1
Applying the foregoing guidelines, we examined all the circumstances
surrounding petitioner’s conviction and found that the same does not
involve moral turpitude.
First, there is neither merit nor factual basis in COMELEC’s finding that
petitioner used his official capacity in connection with his interest in the
cockpit and that he hid the same by transferring the management to his
wife, in violation of the trust reposed on him by the people.
The COMELEC, in justifying its conclusion that petitioner’s conviction
involved moral turpitude, misunderstood or misapplied our ruling in
Teves v. Sandiganbayan. According to the COMELEC:
In the present case, while the crime for which [petitioner] was convicted
may per se not involve moral turpitude, still the totality of facts evinces
[his] moral turpitude. The prohibition was intended to avoid any conflict
of interest or any instance wherein the public official would favor his own
interest at the expense of the public interest. The [petitioner] knew of
the prohibition but he attempted to circumvent the same by holding out
that the Valencia Cockpit and Recreation Center is to be owned by a
certain Daniel Teves. Later on, he would aver that he already divested
himself of any interest of the cockpit in favor of his wife. But the Supreme
Court saw through the ruse and declared that what he divested was only
the management of the cockpit but not the ownership. And even if the
ownership is transferred to his wife, the respondent would nevertheless
have an interest thereon because it would still belong to the conjugal
partnership of gains, of which the [petitioner] is the other half.
[Petitioner] therefore maintained ownership of the cockpit by deceit. He
has the duty to divest himself but he did not and instead employed means
to hide his interests. He knew that it was prohibited he nevertheless
concealed his interest thereon. The facts that he hid his interest denotes
his malicious intent to favor self-interest at the expense of the public.
Only a man with a malevolent, decadent, corrupt and selfish motive
would cling on and conceal his interest, the acquisition of which is
prohibited. This plainly shows his moral depravity and proclivity to put
primacy on his self interest over that of his fellowmen. Being a public
official, his act is also a betrayal of the trust reposed on him by the people.
Clearly, the totality of his acts is contrary to the accepted rules of right
and duty, honesty and good morals. The crime, as committed by the
[petitioner], plainly involves moral turpitude.15
On the contrary, the Court’s ruling states:
The Sandiganbayan found that the charge against Mayor Teves for
causing the issuance of the business permit or license to operate the
Valencia Cockpit and Recreation Center is "not well-founded." This it
based, and rightly so, on the additional finding that only the Sangguniang
Bayan could have issued a permit to operate the Valencia Cockpit in the
year 1992. Indeed, under Section 447(3) of the LGC of 1991, which took
effect on 1 January 1992, it is the Sangguniang Bayan that has the
authority to issue a license for the establishment, operation, and
maintenance of cockpits. Unlike in the old LGC, Batas Pambansa Blg. 337,
wherein the municipal mayor was the presiding officer of the
Sangguniang Bayan, under the LGC of 1991, the mayor is not so anymore
and is not even a member of the Sangguniang Bayan. Hence, Mayor Teves
could not have intervened or taken part in his official capacity in the
issuance of a cockpit license during the material time, as alleged in the
information, because he was not a member of the Sangguniang Bayan.16
Thus, petitioner, as then Mayor of Valencia, did not use his influence,
authority or power to gain such pecuniary or financial interest in the
cockpit. Neither did he intentionally hide his interest in the subject
cockpit by transferring the management thereof to his wife considering
that the said transfer occurred before the effectivity of the present LGC
prohibiting possession of such interest.
As aptly observed in Teves v. Sandiganbayan:
As early as 1983, Edgar Teves was already the owner of the Valencia
Cockpit. Since then until 31 December 1991, possession by a local official
140
of pecuniary interest in a cockpit was not yet prohibited. It was before
the effectivity of the LGC of 1991, or on January 1990, that he transferred
the management of the cockpit to his wife Teresita. In accordance
Page
therewith it was Teresita who thereafter applied for the renewal of the
cockpit registration. Thus, in her sworn applications for renewal of the
registration of the cockpit in question dated 28 January 1990 and 18
February 1991, she stated that she is the Owner/Licensee and
Operator/Manager of the said cockpit. In her renewal application dated
6 January 1992, she referred to herself as the Owner/Licensee of the
cockpit. Likewise in the separate Lists of Duly Licensed Personnel for
Calendar Years 1991 and 1992, which she submitted on 22 February 1991
and 17 February 1992, respectively, in compliance with the requirement
of the Philippine Gamefowl Commission for the renewal of the cockpit
registration, she signed her name as Operator/Licensee.17 (Emphasis
supplied)
Second, while possession of business and pecuniary interest in a cockpit
licensed by the local government unit is expressly prohibited by the
present LGC, however, its illegality does not mean that violation thereof
necessarily involves moral turpitude or makes such possession of interest
inherently immoral. Under the old LGC, mere possession by a public
officer of pecuniary interest in a cockpit was not among the prohibitions.
Thus, in Teves v. Sandiganbayan, the Court took judicial notice of the fact
that:
x x x under the old LGC, mere possession of pecuniary interest in a cockpit
was not among the prohibitions enumerated in Section 41 thereof. Such
possession became unlawful or prohibited only upon the advent of the
LGC of 1991, which took effect on 1 January 1992. Petitioner Edgar Teves
stands charged with an offense in connection with his prohibited interest
committed on or about 4 February 1992, shortly after the maiden
appearance of the prohibition. Presumably, he was not yet very much
aware of the prohibition. Although ignorance thereof would not excuse
him from criminal liability, such would justify the imposition of the lighter
penalty of a fine of P10,000 under Section 514 of the LGC of
1991.18 (Italics supplied)
The downgrading of the indeterminate penalty of imprisonment of nine
years and twenty-one days as minimum to twelve years as maximum to
a lighter penalty of a fine of P10,000.00 is a recognition that petitioner’s
violation was not intentionally done contrary to justice, modesty, or good
morals but due to his lack of awareness or ignorance of the prohibition.
Lastly, it may be argued that having an interest in a cockpit is detrimental
to public morality as it tends to bring forth idlers and gamblers, hence,
violation of Section 89(2) of the LGC involves moral turpitude.
Suffice it to state that cockfighting, or sabong in the local parlance, has a
long and storied tradition in our culture and was prevalent even during
the Spanish occupation.19 While it is a form of gambling, the morality
thereof or the wisdom in legalizing it is not a justiciable issue. In Magtajas
v. Pryce Properties Corporation, Inc., it was held that:
The morality of gambling is not a justiciable issue. Gambling is not illegal
per se. While it is generally considered inimical to the interests of the
people, there is nothing in the Constitution categorically proscribing or
penalizing gambling or, for that matter, even mentioning it at all. It is left
to Congress to deal with the activity as it sees fit. In the exercise of its
own discretion, the legislature may prohibit gambling altogether or allow
it without limitation or it may prohibit some forms of gambling and allow
others for whatever reasons it may consider sufficient. Thus, it has
prohibited jueteng and monte but permits lotteries, cockfighting and
horse-racing. In making such choices, Congress has consulted its own
wisdom, which this Court has no authority to review, much less reverse.
Well has it been said that courts do no sit to resolve the merits of
conflicting theories. That is the prerogative of the political departments.
It is settled that questions regarding the wisdom, morality, or
practicability of statutes are not addressed to the judiciary but may be
resolved only by the legislative and executive departments, to which the
function belongs in our scheme of government. That function is exclusive.
Whichever way these branches decide, they are answerable only to their
own conscience and the constituents who will ultimately judge their acts,
and not to the courts of justice.
WHEREFORE, the petition is GRANTED. The assailed Resolutions of the
Commission on Elections dated May 11, 2007 and October 9, 2007
disqualifying petitioner Edgar Y. Teves from running for the position of
Representative of the 3rd District of Negros Oriental, are REVERSED and
SET ASIDE and a new one is entered declaring that the crime committed
by petitioner (violation of Section 3(h) of R.A. 3019) did not involve moral
turpitude.
(10) G.R. No. 166510 April 29, 2009
PEOPLE OF THE PHILIPPINES, Petitioner, vs. BENJAMIN "KOKOY"
ROMUALDEZ, and SANDIGANBAYAN, Respondent.
TINGA, J.:
The relevant antecedent facts are stated in the Decision of the Court
dated 23 July 20081 . We reproduce them, to wit:
The Office of the Ombudsman (Ombudsman) charged Romualdez before
the Sandiganbayan with violation of Section 3 (e) of Republic Act No. 3019
(R.A. 3019), as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act. The Information reads:
That on or about and during the period from 1976 to February 1986 or
sometime prior or subsequent thereto, in the City of Manila, Philippines,
and within the jurisdiction of this Honorable Court, accused Benjamin
"Kokoy" Romualdez, a public officer being then the Provincial Governor
of the Province of Leyte, while in the performance of his official function,
committing the offense in relation to his Office, did then and there
willfully, unlawfully and criminally with evident bad faith, cause undue
injury to the Government in the following manner: accused public officer
being then the elected Provincial Governor of Leyte and without
abandoning said position, and using his influence with his brother-in-law,
then President Ferdinand E. Marcos, had himself appointed and/or
assigned as Ambassador to foreign countries, particularly the People's
Republic of China (Peking), Kingdom of Saudi Arabia (Jeddah), and United
States of America (Washington D.C.), knowing fully well that such
appointment and/or assignment is in violation of the existing laws as the
Office of the Ambassador or Chief of Mission is incompatible with his
position as Governor of the Province of Leyte, thereby enabling himself
to collect dual compensation from both the Department of Foreign
Affairs and the Provincial Government of Leyte in the amount of Two
Hundred Seventy-six Thousand Nine Hundred Eleven Dollars and 56/100
(US $276,911.56), US Currency or its equivalent amount of Five Million
Eight Hundred Six Thousand Seven Hundred Nine Pesos and 50/100
(P5,806,709.50) and Two Hundred Ninety-three Thousand Three
Hundred Forty-eight Pesos and 86/100 (P293,348.86) both Philippine
Currencies, respectively, to the damage and prejudice of the Government
in the aforementioned amount of P5,806,709.50.
CONTRARY TO LAW.
Romualdez moved to quash the information on two grounds, namely: (1)
that the facts alleged in the information do not constitute the offense
with which the accused was charged; and (2) that the criminal action or
liability has been extinguished by prescription. He argued that the acts
imputed against him do not constitute an offense because: (a) the cited
provision of the law applies only to public officers charged with the grant
of licenses, permits, or other concessions, and the act charged —
receiving dual compensation — is absolutely irrelevant and unrelated to
the act of granting licenses, permits, or other concessions; and (b) there
can be no damage and prejudice to the Government considering that he
actually rendered services for the dual positions of Provincial Governor
of Leyte and Ambassador to foreign countries.
To support his prescription argument, Romualdez posited that the 15-
141
year prescription under Section 11 of R.A. 3019 had lapsed since the
preliminary investigation of the case for an offense committed on or
about and during the period from 1976 to February 1986 commenced
Page
only in May 2001 after a Division of the Sandiganbayan referred the
matter to the Office of the Ombudsman. He argued that there was no
interruption of the prescriptive period for the offense because the
proceedings undertaken under the 1987 complaint filed with the
Presidential Commission on Good Government (PCGG) were null and void
pursuant to the Supreme Court's ruling in Cojuangco, Jr. v. PCGG and
Cruz, Jr. [sic]. He likewise argued that the Revised Penal Code provision
that prescription does not run when the offender is absent from the
Philippines should not apply to his case, as he was charged with an
offense not covered by the Revised Penal Code; the law on the
prescription of offenses punished under special laws (Republic Act No.
3326) does not contain any rule similar to that found in the Revised Penal
Code.
The People opposed the motion to quash on the argument that
Romualdez is misleading the court in asserting that Section 3 (e) of R.A.
3019 does not apply to him when Section 2 (b) of the law states that
corrupt practices may be committed by public officers who include
"elective and appointive officials and employees, permanent or
temporary, whether in the classified or unclassified or exempt service
receiving compensation, even nominal, from the government." On the
issue of prescription, the People argued that Section 15, Article XI of the
Constitution provides that the right of the State to recover properties
unlawfully acquired by public officials or employees, from them or from
their nominees or transferees, shall not be barred by prescription, laches
or estoppel, and that prescription is a matter of technicality to which no
one has a vested right. Romualdez filed a Reply to this Opposition.
The Sandiganbayan granted Romualdez' motion to quash in the first
Resolution assailed in this petition. The Sandiganbayan stated:
We find that the allegation of damage and prejudice to the Government
in the amount of P5,806,709.50 representing the accused's
compensation is without basis, absent a showing that the accused did not
actually render services for his two concurrent positions as Provincial
Governor of the Province of Leyte and as Ambassador to the People's
Republic of China, Kingdom of Saudi Arabia, and United States of
America. The accused alleges in the subject Motion that he actually
rendered services to the government. To receive compensation for actual
services rendered would not come within the ambit of improper or illegal
use of funds or properties of the government; nor would it constitute
unjust enrichment tantamount to the damage and prejudice of the
government.
Jurisprudence has established what "evident bad faith" and "gross
negligence" entail, thus:
In order to be held guilty of violating Section 3 (e), R.A. No. 3019, the act
of the accused that caused undue injury must have been done with
evident bad faith or with gross inexcusable negligence. But bad faith per
se is not enough for one to be held liable under the law, the "bad faith"
must be "evident".
xxx xxx xxx
. . . . "Gross negligence" is characterized by the want of even slight care,
acting or omitting to act in a willful or omitting to act in a willful or
intentional manner displaying a conscious indifference to consequences
as far as other persons may be affected. (Emphasis supplied)
The accused may have been inefficient as a public officer by virtue of his
holding of two concurrent positions, but such inefficiency is not enough
to hold him criminally liable under the Information charged against him,
given the elements of the crime and the standards set by the Supreme
Court quoted above. At most, any liability arising from the holding of both
positions by the accused may be administrative in nature.
xxx xxx xxx
However, as discussed above, the Information does not sufficiently aver
how the act of receiving dual compensation resulted to undue injury to
the government so as to make the accused liable for violation of Section
3 (e) of R.A. No. 3019.
The Sandiganbayan found no merit in Romualdez' prescription argument.
The People moved to reconsider this Resolution, citing "reversible errors"
that the Sandiganbayan committed in its ruling. Romualdez opposed the
People's motion, but also moved for a partial reconsideration of the
Resolution's ruling on prescription. The People opposed Romualdez'
motion for partial reconsideration.
Thereafter, the Sandiganbayan denied via the second assailed Resolution
the People's motion for reconsideration under the following terms —
The Court held in its Resolution of June 22, 2004, and so maintains and
sustains, that assuming the averments of the foregoing information are
hypothetically admitted by the accused, it would not constitute the
offense of violation of Section 3 (e) of R.A. 3019 as the elements of (a)
causing undue injury to any party, including the government, by giving
unwarranted benefits, advantage or preference to such parties, and (b)
that the public officer acted with manifest partiality, evident bad faith or
gross inexcusable negligence, are wanting.
As it is, a perusal of the information shows that pertinently, accused is
being charged for: (a) having himself appointed as ambassador to various
posts while serving as governor of the Province of Leyte and (b) for
collecting dual compensation for said positions. As to the first, the Court
finds that accused cannot be held criminally liable, whether or not he had
himself appointed to the position of the ambassador while concurrently
holding the position of provincial governor, because the act of
appointment is something that can only be imputed to the appointing
authority.
Even assuming that the appointee influenced the appointing authority,
the appointee only makes a passive participation by entering into the
appointment, unless it is alleged that he acted in conspiracy with his
appointing authority, which, however, is not so claimed by the
prosecution in the instant case. Thus, even if the accused's appointment
was contrary to law or the constitution, it is the appointing authority that
should be responsible therefor because it is the latter who is the doer of
the alleged wrongful act. In fact, under the rules on payment of
compensation, the appointing authority responsible for such unlawful
employment shall be personally liable for the pay that would have
accrued had the appointment been lawful. As it is, the appointing
authority herein, then President Ferdinand E. Marcos has been laid to
rest, so it would be incongruous and illogical to hold his appointee, herein
accused, liable for the appointment.
Further, the allegation in the information that the accused collected
compensation in the amounts of Five Million Eight Hundred Six Thousand
Seven Hundred Nine Pesos and 50/100 (P5,806,709.50) and Two Hundred
Ninety-three Thousand Three Hundred Forty Eight Pesos and 86/100
(P293,348.86) cannot sustain the theory of the prosecution that the
accused caused damage and prejudice to the government, in the absence
of any contention that receipt of such was tantamount to giving
unwarranted benefits, advantage or preference to any party and to acting
with manifest partiality, evident bad faith or gross inexcusable
negligence. Besides receiving compensation is an incident of actual
services rendered, hence it cannot be construed as injury or damage to
the government.
It likewise found no merit in Romualdez' motion for partial
reconsideration.2
Petitioner filed a Petition for Certiorari under Rule 65, imputing grave
abuse of discretion on the part of the Sandiganbayan in quashing the
142
subject information. Private respondent responded with a Motion to
Dismiss with Comment Ad Cautelam, wherein he argued that the proper
remedy to an order granting a motion to quash a criminal information is
Page
by way of appeal under Rule 45 since such order is a final order and not
merely interlocutory. Private respondent likewise raised before this Court
his argument that the criminal action or liability had already been
extinguished by prescription, which argument was debunked by the
Sandiganbayan.
The Court granted the petition in its 23 July 2008 Decision. While the
Court acknowledged that the mode for review of a final ruling of the
Sandiganbayan was by way of a Rule 45 petition, it nonetheless allowed
the Rule 65 petition of petitioners, acceding that such remedy was
available on the claim that grave abuse of discretion amounting to lack or
excess of jurisdiction had been properly and substantially alleged. The
Decision then proceeded to determine that the quashal of the
information was indeed attended with grave abuse of discretion, the
information having sufficiently alleged the elements of Section 3(e) of
Rep. Act No. 3019, the offense with which private respondent was
charged. The Decision concluded that the Sandiganbayan had committed
grave abuse of discretion by premising its quashal of the information "on
considerations that either not appropriate in evaluating a motion to
quash; are evidentiary details not required to be stated in an Information;
are matters of defense that have no place in an Information; or are
statements amounting to rulings on the merits that a court cannot issue
before trial."
Private respondent filed a Motion for Reconsideration, placing renewed
focus on his argument that the criminal charge against him had been
extinguished on account of prescription. In a Minute Resolution dated 9
September 2008, the Court denied the Motion for Reconsideration. On
the argument of prescription, the Resolution stated:
We did not rule on the issue of prescription because the Sandiganbayan's
ruling on this point was not the subject of the People's petition for
certiorari. While the private respondent asserted in his Motion to Dismiss
Ad Cautelam filed with us that prescription had set in, he did not file his
own petition to assail this aspect of the Sandiganbayan ruling, he is
deemed to have accepted it; he cannot now assert that in the People's
petitionthat sought the nullification of the Sandiganbayan ruling on some
other ground, we should pass upon the issue of prescription he raised in
his motion.
Hence this second motion for reconsideration, which reiterates the
argument that the charges against private respondent have already
prescribed. The Court required the parties to submit their respective
memoranda on whether or not prescription lies in favor of respondent.
The matter of prescription is front and foremost before us. It has been
raised that following our ruling in Romualdez v. Marcelo,3 the criminal
charges against private respondent have been extinguished by
prescription. The Court agrees and accordingly grants the instant motion.
Private respondent was charged with violations of Rep. Act No. 3019, or
the Anti-Graft and Corrupt Practices Act, committed "on or about and
during the period from 1976 to February 1986". However, the subject
criminal cases were filed with the Sandiganbayan only on 5 November
2001, following a preliminary investigation that commenced only on 4
June 2001. The time span that elapsed from the alleged commission of
the offense up to the filing of the subject cases is clearly beyond the
fifteen (15) year prescriptive period provided under Section 11 of Rep.
Act No. 3019.4
Admittedly, the Presidential Commission on Good Government (PCGG)
had attempted to file similar criminal cases against private respondent on
22 February 1989. However, said cases were quashed based on prevailing
jurisprudence that informations filed by the PCGG and not the Office of
the Special Prosecutor/Office of the Ombudsman are null and void for
lack of authority on the part of the PCGG to file the same. This made it
necessary for the Office of the Ombudsman as the competent office to
conduct the required preliminary investigation to enable the filing of the
present charges.
The initial filing of the complaint in 1989 or the preliminary investigation
by the PCGG that preceded it could not have interrupted the fifteen (15)-
year prescription period under Rep. Act No. 3019. As held in Cruz, Jr. v.
Sandiganbayan,5 the investigatory power of the PCGG extended only to
alleged ill-gotten wealth cases, absent previous authority from the
President for the PCGG to investigate such graft and corruption cases
involving the Marcos cronies. Accordingly, the preliminary investigation
conducted by the PCGG leading to the filing of the first information is void
ab initio, and thus could not be considered as having tolled the fifteen
(15)-year prescriptive period, notwithstanding the general rule that the
commencement of preliminary investigation tolls the prescriptive period.
After all, a void ab initio proceeding such as the first preliminary
investigation by the PCGG could not be accorded any legal effect by this
Court.
The rule is that for criminal violations of Rep. Act No. 3019, the
prescriptive period is tolled only when the Office of the Ombudsman
receives a complaint or otherwise initiates its investigation. 6 As such
preliminary investigation was commenced more than fifteen (15) years
after the imputed acts were committed, the offense had already
prescribed as of such time.
Further, the flaw was so fatal that the information could not have been
cured or resurrected by mere amendment, as a new preliminary
investigation had to be undertaken, and evidence had again to be
adduced before a new information could be filed. The rule may well be
that the amendment of a criminal complaint retroacts to the time of the
filing of the original complaint. Yet such rule will not apply when the
original information is void ab initio, thus incurable by amendment.
The situation herein differs from that in the recent case of SEC v.
Interport,7 where the Court had occasion to reexamine the principles
governing the prescription of offenses punishable under special laws.
Therein, the Court found that the investigative proceedings conducted by
the Securities and Exchange Commission had tolled the prescriptive
period for violations of the Revised Securities Act, even if no subsequent
criminal cases were instituted within the prescriptive period. The basic
difference lies in the fact that no taint of invalidity had attached to the
authority of the SEC to conduct such investigation, whereas the
preliminary investigation conducted herein by the PCGG is simply void ab
initio for want of authority.
Indeed the Court in 2006 had the opportunity to favorably rule on the
same issue of prescription on similar premises raised by the same
respondent. In Romualdez v. Marcelo8 , as in this case, the original
preliminary investigation was conducted by the PCGG, which then acted
as complainant in the complaint filed with the Sandiganbayan. Given that
it had been settled that such investigation and information filed by the
PCGG was null and void, the Court proceeded to rule that "[i]n
contemplation of the law, no proceedings exist that could have merited
the suspension of the prescriptive periods." As explained by Justice
Ynares-Santiago:
Besides, the only proceeding that could interrupt the running of
prescription is that which is filed or initiated by the offended party before
the appropriate body or office. Thus, in the case of People v. Maravilla,
this Court ruled that the filing of the complaint with the municipal mayor
for purposes of preliminary investigation had the effect of suspending the
period of prescription. Similarly, in the case of Llenes v. Dicdican, this
Court held that the filing of a complaint against a public officer with the
Ombudsman tolled the running of the period of prescription.
In the case at bar, however, the complaint was filed with the wrong body,
the PCGG. Thus, the same could not have interrupted the running of the
prescriptive periods.9
Clearly, following stare decisis, private respondent’s claim of prescription
has merit, similar in premises as it is to the situation in Marcelo.
Unfortunately, such argument had not received serious consideration
from this Court. The Sandiganbayan had apparently rejected the claim of
143
prescription, but instead quashed the information on a different ground
relating to the elements of the offense. It was on that point which the
Court, in its 23 July 2008 Decision, understandably focused. However,
Page
given the reality that the arguments raised after the promulgation of the
Decision have highlighted the matter of prescription as well as the
precedent set in Marcelo, the earlier quashal of the information is,
ultimately, the correct result still.
It would be specious to fault private respondent for failing to challenge
the Sandiganbayan’s pronouncement that prescription had not arisen in
his favor. The Sandiganbayan quashed the information against
respondent, the very same relief he had sought as he invoked the
prescription argument. Why would the private respondent challenge
such ruling favorable to him on motion for reconsideration or in a
separate petition before a higher court? Imagine, for example, that the
People did not anymore challenge the Sandiganbayan rulings anymore.
The dissent implies that respondent in that instance should nonetheless
appeal the Sandiganbayan’s rulings because it ruled differently on the
issue of prescription. No lawyer would conceivably give such advise to his
client. Had respondent indeed challenged the Sandiganbayan’s ruling on
that point, what enforceable relief could he have obtained other than
that already granted by the Anti-Graft Court?
Our 2004 ruling in Romualdez v. Sandiganbayan10 cannot be cited against
the position of private respondent’s. The Sandiganbayan in that case
denied the Motion to Quash filed based on prescription, and so it was
incumbent on petitioner therein to file an appropriate remedial action to
reverse that ruling and cause the quashal of the information. Herein,
even as the Sandiganbayan disagreed with the prescription argument, it
nonetheless granted the Motion to Quash, and it would be ridiculous for
the petitioner to object to such action.
Notably, private respondent had already raised the issue of prescription
in the very first responsive pleading he filed before the Court – the
Motion to Dismiss with Comment Ad Cautelam11 dated 14 April 2005. The
claim that private respondent should be deemed as having accepted the
Sandiganbayan’s ruling on prescription would have been on firmer
ground had private respondent remained silent on that point at the first
opportunity he had before the Court.
The fact that prescription lies in favor of private respondent posed an
additional burden on the petitioner, which had opted to file a Rule 65
petition for certiorari instead of the normal recourse to a Rule 45.
Prescription would have been considered in favor of private respondent
whether this matter was raised before us in a Rule 45 or a Rule 65
petition. Yet the bar for petitioner is markedly higher under Rule 65 than
under Rule 45, and its option to resort to Rule 65 instead in the end
appears needlessly burdensome for its part, a burden not helped by the
fact that prescription avails in favor of private respondent.
WHEREFORE, the Second Motion for Reconsideration is GRANTED. The
Decision dated 23 July 2008 and the Resolution dated 9 September 2008
in the instant case are REVERSED and SET ASIDE. The Petition is HEREBY
DISMISSED. No pronouncements as to costs.
(11) G.R. No. 160772 July 13, 2009
HILARIO P. SORIANO, Petitioner, vs. OMBUDSMAN SIMEON V.
MARCELO, HON. MARILOU B. ANCHETA-MEJIA, Graft Investigation
Officer II, and ATTY. CELEDONIO P. BALASBAS, Respondents.
CARPIO, J.:
The Case
Before this Court is a petition for certiorari under Rule 65 filed by Hilario
P. Soriano (petitioner) seeking to set aside the Resolution dated 29 July
2002,1 which dismissed the complaint against Assistant City Prosecutor
Celedenio P. Balasbas (Balasbas), and the Order dated 14 July
2003,2 which denied the motion for reconsideration, both issued by the
Office of the Ombudsman in OMB-C-C-02-0246-E.
The Antecedent Facts
On 1 June 2001, petitioner filed an affidavit-complaint against Mely S.
Palad (Palad), a bank examiner of the Bangko Sentral ng Pilipinas, for
Falsification of Public Documents and Use of Falsified Document
punishable under Article 172 of the Revised Penal Code. The complaint
was filed with the Office of the City Prosecutor of Manila and was
docketed as I.S. No. 01-F-22547. Acting on the complaint, Balasbas issued
a Resolution on 27 August 2001 recommending that Palad be charged in
court with Falsification of Public Documents and that the charge of Use
of Falsified Document be dropped for lack of merit.
The Resolution of 27 August 2001 was forwarded to 2nd Assistant City
Prosecutor Leoncia R. Dimagiba (Dimagiba) who recommended the filing
of the information. This Resolution was forwarded to the City Prosecutor
for approval.
Meanwhile, on 25 January 2002, Palad filed a Motion to Re-Open Case on
the ground that she was not given a copy of the subpoena or any notice
regarding the complaint filed against her.
On 27 February 2002, Dimagiba recommended the reopening of the case.
City Prosecutor Ramon R. Garcia (City Prosecutor) approved the
recommendation. Thus, on 26 March 2002, Balasbas issued a subpoena
to the parties setting the case for investigation.
The reopening of the case prompted petitioner to file on 18 April 2002
with the Office of the Ombudsman a criminal complaint against Balasbas
for violation of Section 3(e) of Republic Act No. 3019 (RA 3019), otherwise
known as the Anti-Graft and Corrupt Practices Act. Petitioner alleged that
in the reopening of I.S. No. 01-F-22547, Palad received an unwarranted
advantage or preference, through manifest partiality, evident bad faith
and gross inexcusable negligence, causing undue injury to petitioner.
In the Resolution dated 29 July 2002, Graft Investigation Officer Charity
Grace A. Rico of the Office of the Ombudsman recommended the
dismissal of petitioner’s complaint for want of sufficient basis. This
recommendation was approved by Ombudsman Simeon V. Marcelo. The
Motion for Reconsideration was denied in the Order of 14 July 2003,3 for
lack of merit.
Hence, the present petition for certiorari.
The Issue
Petitioner raises the sole issue of whether or not the Office of the
Ombudsman acted with grave abuse of discretion, amounting to lack or
in excess of jurisdiction, in dismissing the complaint against Balasbas.
The Court’s Ruling
The instant petition is a special civil action for certiorari which is a remedy
meant to correct only errors of jurisdiction, not errors of judgment.
Petitioner assails the resolution of the Office of the Ombudsman
dismissing the criminal case against Balasbas. Petitioner claims that the
subordinates were not supposed to blindly follow illegal orders of their
superiors. He insists that Balasbas is still liable for the reopening of the
case without lawful reasons, for no law gives his superiors the right to
indiscriminately order the reopening of a case. Petitioner argues that
Balasbas could have opted not to issue a subpoena knowing that the
directive of the City Prosecutor to reopen the case of Palad was not
warranted. Thus, for giving unwarranted advantage or preference to
Palad that caused undue injury to petitioner, Balasbas must be held liable
for violation of Section 3(e) of RA 3019.
144
The arguments raised by petitioner are not errors involving jurisdiction
but one of judgment, which is beyond the province of the extraordinary
remedy of certiorari. As we have ruled in First Corporation v. Former Sixth
Page
Division of the Court of Appeals,4 to wit:
It is a fundamental aphorism in law that a review of facts and evidence is
not the province of the extraordinary remedy of certiorari, which is extra
ordinem - beyond the ambit of appeal. In certiorari proceedings, judicial
review does not go as far as to examine and assess the evidence of the
parties and to weigh the probative value thereof. It does not include an
inquiry as to the correctness of the evaluation of evidence. Any error
committed in the evaluation of evidence is merely an error of judgment
that cannot be remedied by certiorari. An error of judgment is one which
the court may commit in the exercise of its jurisdiction. An error of
jurisdiction is one where the act complained of was issued by the court
without or in excess of jurisdiction, or with grave abuse of discretion,
which is tantamount to lack or in excess of jurisdiction and which error is
correctible only by the extraordinary writ of certiorari. Certiorari will not
be issued to cure errors of the trial court in its appreciation of the
evidence of the parties, or its conclusions anchored on the said findings
and its conclusions of law. It is not for this Court to re- examine conflicting
evidence, re-evaluate the credibility of the witnesses or substitute the
findings of fact of the court a quo.1avvphi1
This notwithstanding, may this Court review the findings of the Office of
the Ombudsman? The general rule has been that the courts will not
interfere with the discretion of the prosecutor or the Ombudsman, in the
exercise of his investigative power, to determine the specificity and
adequacy of the averments of the offense charged. 5 As we have
explained in Esquivel v. Ombudsman:6
The Ombudsman is empowered to determine whether there exists
reasonable ground to believe that a crime has been committed and that
the accused is probably guilty thereof and, thereafter, to file the
corresponding information with the appropriate courts. Settled is the
rule that the Supreme Court will not ordinarily interfere with the
Ombudsman’s exercise of his investigatory and prosecutory powers
without good and compelling reasons to indicate otherwise. Said exercise
of powers is based upon the constitutional mandate and the court will
not interfere in its exercise. The rule is based not only upon respect for
the investigatory and prosecutory powers granted by the Constitution to
the Office of the Ombudsman, but upon practicality as well. Otherwise,
innumerable petitions seeking dismissal of investigatory proceedings
conducted by the Ombudsman will grievously hamper the functions of
the office and the courts, in much the same way that courts will be
swamped if they had to review the exercise of discretion on the part of
public prosecutors each time they decided to file an information or
dismiss a complaint by a private complainant.
In Presidential Commission on Good Government v. Desierto,7 we
discussed the value of the Ombudsman’s independence, thus:
Case law has it that the determination of probable cause against those in
public office during a preliminary investigation is a function that belongs
to the Office of the Ombudsman. The Ombudsman has the discretion to
determine whether a criminal case, given its attendant facts and
circumstances, should be filed or not. It is basically his call. He may
dismiss the complaint forthwith should he find it to be insufficient in form
or substance, or he may proceed with the investigation if, in his view, the
complaint is in due and proper form and substance. We have consistently
refrained from interfering with the constitutionally mandated
investigatory and prosecutorial powers of the Ombudsman. Thus, if the
Ombudsman, using professional judgment, finds the case dismissible, the
Court shall respect such findings, unless the exercise of such discretionary
powers is tainted by grave abuse of discretion.
The Ombudsman has the full discretion to determine whether or not a
criminal case should be filed. Nonetheless, this Court is not precluded
from reviewing the Ombudsman’s action when there is a charge of grave
abuse of discretion. Grave abuse of discretion implies a capricious and
whimsical exercise of judgment tantamount to lack of jurisdiction. The
Ombudsman’s exercise of power must have been done in an arbitrary or
despotic manner which must be so patent and gross as to amount to an
evasion of a positive duty or a virtual refusal to perform the duty enjoined
or to act at all in contemplation of law.8 An examination of the records
would show that the Office of the Ombudsman did not act with grave
abuse of discretion, amounting to lack or in excess of jurisdiction, in
dismissing the complaint against Balasbas.
Balasbas, as Assistant City Prosecutor, was charged with violation of
Section 3(e) of the Anti-Graft and Corrupt Practices Act which provides,
thus:
SEC. 3. Corrupt practices of public officers. — In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:
xxx
(e) Causing any undue injury to any party, including the Government, or
giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant
of licenses or permits or other concessions.
The elements of the offense of violation of Section 3(e) of RA 3019, as
amended, are as follows:
1) The accused must be a public officer discharging
administrative, judicial or official functions;
2) He must have acted with manifest partiality, evident bad
faith or inexcusable negligence; and
3) That his action caused undue injury to any party, including
the government, or gave any private party unwarranted
benefits, advantage or preference in the discharge of his
functions.9
In Albert v. Sandiganbayan,10 we discussed the second element, to wit:
There is "manifest partiality" when there is a clear, notorious, or plain
inclination or predilection to favor one side or person rather than
another. "Evident bad faith" 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.
"Evident bad faith" contemplates a state of mind affirmatively operating
with furtive design or with some motive or self-interest or ill will or for
ulterior purposes. "Gross inexcusable negligence" 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 to consequences
insofar as other persons may be affected.
And, as we explained in Collantes v. Marcelo,11
Well-settled is the rule that good faith is always presumed and the
Chapter on Human Relations of the Civil Code directs every person, inter
alia, to observe good faith which springs from the fountain of good
conscience. Specifically, a public officer is presumed to have acted in
good faith in the performance of his duties. Mistakes committed by a
public officer are not actionable absent any clear showing that they were
motivated by malice or gross negligence amounting to bad faith. "Bad
faith" does not simply connote bad moral judgment or negligence. There
must be some dishonest purpose or some moral obliquity and conscious
doing of a wrong, a breach of a sworn duty through some motive or intent
or ill will. It partakes of the nature of fraud. It contemplates a state of
145
mind affirmatively operating with furtive design or some motive of self-
interest or ill will for ulterior purposes.
Page
The law also requires that the public officer’s action caused undue injury
to any party, including the government, or gave any private party
unwarranted benefits, advantage or preference in the discharge of his
functions. x x x
Petitioner failed to show that Balasbas acted with manifest partiality,
evident bad faith or inexcusable negligence in issuing the subpoena. As
further pointed out by the Office of the Ombudsman in its Resolution of
29 July 2002, there was no undue injury because petitioner "had suffered
no actual damage."
Although Balasbas initially recommended the filing of a criminal case
against Palad, this recommendation was still subject to the approval of
his superiors, Dimagiba and the City Prosecutor. Balasbas, as
investigating prosecutor, had no power or control over the final
disposition of Palad’s motion to reopen the case. Conducting a
preliminary investigation for the purpose of determining whether there
exists probable cause to prosecute a person for the commission of a
crime, including the determination of whether to conclude, reopen or
dismiss the criminal complaint subject of the preliminary investigation, is
a matter that rests within the sound discretion of the provincial or city
prosecutor. This is clear from the provision of Section 4, Rule 112 of the
Revised Rules on Criminal Procedure which specifically states that no
complaint or information may be filed or dismissed by an investigating
fiscal without the prior written authority of the provincial or city fiscal or
chief state prosecutor or the Ombudsman or his deputy, thus:
SEC. 4. Resolution of investigating prosecutor and its review. If the
investigating prosecutor finds cause to hold the respondent for trial, he
shall prepare the resolution and information. He shall certify under oath
in the information that he, or as shown by the record, an authorized
officer, has personally examined the complainant and his witnesses; that
there is reasonable ground to believe that a crime has been committed
and that the accused is probably guilty thereof; that the accused was
informed of the complaint and of the evidence submitted against him;
and that he was given an opportunity to submit controverting evidence.
Otherwise, he shall recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record of the
case to the provincial or city prosecutor or chief state prosecutor or to
the Ombudsman or his deputy in cases of offenses cognizable by
the Sandiganbayan in the exercise of its original jurisdiction. They shall
act on the resolution within ten (10) days from their receipt thereof and
shall immediately inform the parties of such action.
No complaint or information may be filed or dismissed by an
investigating prosecutor without the prior written authority or approval
of the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the
complaint but his recommendation is disapproved by the provincial or
city prosecutor or chief state prosecutor or the Ombudsman or his deputy
on the ground that a probable cause exists, the latter may, by himself, file
the information against the respondent, or direct another assistant
prosecutor or state prosecutor to do so without conducting another
preliminary investigation.
If upon petition by a proper party under such rules as the Department of
Justice may prescribe or motu proprio, the Secretary of Justice reverses
or modifies the resolution of the provincial or city prosecutor or chief
state prosecutor, he shall direct the prosecutor concerned either to file
the corresponding information without conducting another preliminary
investigation, or to dismiss or move for dismissal of the complaint or
information with notice to the parties. The same Rule shall apply in
preliminary investigations conducted by the officers of the Office of the
Ombudsman. (Emphasis supplied)
Palad filed a motion to reopen the case because she was not given any
notice or subpoena relative to the criminal case filed against her, invoking
her basic constitutional right to due process of law. When asked to
comment on Palad’s motion to reopen, Balasbas even objected to the
reopening of the case as this would "only result to the delay in the final
disposition of the case."12 It was Dimagiba, his superior, who
recommended that the motion to reopen be granted "in the interest of
justice and considering that only 1 subpoena containing 2 scheduled
dates was sent to respondent, and there being no return thereof,
attached to the records." Dimagiba’s recommendation was approved by
the City Prosecutor.13 Consonant with Section 4, Rule 112, Balasbas had
no other recourse but to follow the recommendation of his superior. The
subpoena he issued to the parties setting the case for investigation was
in pursuance to that recommendation which was finally approved by the
City Prosecutor.
As regards petitioner’s claim that Balasbas "blindly followed the illegal
orders of his superiors," it is worthy to note that petitioner filed a similar
case for violation of Section 3(e) of RA 3019, as amended, this time
against Dimagiba involving the same Resolution dated 27 August 2001
submitted by Balasbas. This Court, in Soriano v. Marcelo,14dismissed that
petition for lack of merit and held that petitioner was not able to show
that Dimagiba was motivated by self-interest or ill-will in reopening the
preliminary investigation stage of Palad’s case. The Court further ruled
that Dimagiba acted in good faith, as he believed that a denial of the
motion to reopen the preliminary investigation due to the accused’s
failure to submit her counter-affidavit would only lead to more delays.
We reiterate the ruling in Collantes,15 thus:
Agencies tasked with the preliminary investigation and prosecution of
crimes should never forget that the purpose of a preliminary
investigation is to secure the innocent against hasty, malicious and
oppressive prosecution, and to protect one from an open and public
accusation of crime, from the trouble, expense and anxiety of a public
trial, and also to protect the State from useless and expensive trials. It is,
therefore, imperative upon such agencies to relieve any person from the
trauma of going through a trial once it is ascertained that the evidence is
insufficient to sustain a prima facie case or that no probable cause exists
to form a sufficient belief as to the guilt of the accused.
We find that the Office of the Ombudsman, acting within the bounds of
its constitutionally mandated duty, did not commit grave abuse of
discretion in dismissing the complaint against Balasbas.
WHEREFORE, we DISMISS the petition. We AFFIRM the Resolution dated
29 July 2002 and the Order dated 14 July 2003 of the Office of the
Ombudsman in OMB-C-C-02-0246-E. Costs against petitioner.
ON INFIDELITY IN THE CUSTODY OF PRISONERS
(1) G.R. No. L-58652 May 20, 1988
ALFREDO RODILLAS Y BONDOC, petitioner vs.
THE HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE
PHILIPPINES, respondents.
GUTIERREZ, JR., J.:
This is a petition brought by Alfredo Rodillas y Bondoc asking for the
reversal of a decision of the Sandiganbayan which found him guilty
beyond reasonable doubt of the crime of Infidelity in the Custody of
Prisoner Thru Negligence (Art. 224, RPC). The dispositive portion of the
decision reads:
WHEREFORE, judgment is hereby rendered finding
accused Alfredo Rodillas y Bondoc GUILTY beyond
reasonable doubt as principal in the crime of Evasion
through Negligence, as defined and penalized under
146
Article 224 of the Revised Penal Code, and there
being no modifying circumstance to consider, hereby
sentences him to suffer the straight penalty of FOUR
Page
(4) MONTHS and ONE (1) DAY of arresto mayor, to
 suffer eight (8) years and one (1) day of temporary
special disqualification and to pay the costs of this
action.
SO ORDERED. (Rollo, p. 30)
Petitioner Rodillas was charged with having committed the said crime in
an information which reads as follows:
That on or about the 27th day of March, 1980, in the City of
Caloocan, Philippines, and within the jurisdiction of this
Honorable Court, said accused, being then a policeman duly
appointed and qualified as such, hence a public officer,
specially charged with the duty of keeping under his custody
and vigilance and of conducting and delivery from the City Jail,
Caloocan City to the Court of First Instance, Branch XXXIV,
Caloocan City and return, one Zenaida Sacris Andres, a
detention prisoner being tried for violation of Section 4, R.A.
No. 6425, otherwise known as the Dangerous Drugs Act of
1972, under Crim. Case No. C-12888, did then and there with
great carelessness and unjustifiable negligence, allow and
permit said Zenaida Sacris Andres to have snacks and enter the
comfort room at the second floor of the Genato Building, Rizal
Avenue, Caloocan City after the hearing of said case, v,,ithout
first ascertaining for himself whether said comfort room is safe
and without any egress by which the said detention prisoner
could escape, thereby enabling said Zenaida Sacris Andres, to
run away and escape thru the window inside the comfort room,
as in fact she did run away and escape from the custody of said
accused.
CONTRARY TO LAW. (Rollo, p. 6)
The prosecution's evidence upon which the court based its finding of guilt
is summarized as follows:
... accused herein is a Patrolman of the Integrated National
Police Force of Caloocan City and assigned with the jail section
thereof. On March 27, 1980, when he reported for work, he
was directed by his superior, Corporal Victor Victoriano, officer-
in-charge in assigning police officers to escort prisoners, to
escort Zenaida Sacris deadline Andres, a detention prisoner,
before the sala of Judge Bernardo Pardo of the Court of First
Instance, Br.XXXIV, located at the Genato Building, Caloocan
City, to face trial for an alleged Violation of the Dangerous
Drugs Act of 1972, as the policewoman officer who was
supposed to escort the said detainee was then sick. He and the
detainee proceeded to the court building and arrived thereat
between 8:30 and 9:00 o'clock in the morning. while waiting for
the arrival of the judge at the courtroom, Pat. Orlando Andres,
who happened to be in the court and a relative of the husband
of said detention prisoner Zenaida, approached the accused
and requested the latter if he could permit Zenaida to talk to
her husband. The accused consented and Zenaida Andres had
a short talk with her husband. After a short while, the presiding
judge deferred the decision against her because of a new
Presidential Decree revising some provisions regarding
violations of the Dangerous Drugs Act.
After the court had already adjourned, the husband of Zenaida
requested the accused to allow them to have lunch as they
were already very hungry. He consented to the request and
they proceeded to the canteen located at the mezzanine floor
of the court building (Exhibit 1).<äre||anº•1àw> He took a seat
beside Zenaida and Pat. Andres while the relatives of said
detainee were seated at a separate table. While eating, the
husband of Zenaida asked him if he could accompany his wife
to the comfort room as she was not feeling well and felt like
defecating. The accused accompanied Zenaida and a lady
companion to the ladies' comfort room located at the second
floor of the building (Exibit 2). Zenaida and her lady companion
entered the comfort room, while he stood guard along the alley
near the ladies' comfort room facing the door thereof (Exhibit
5). Not long after, the lady companion of Zenaida came out of
the comfort room and told him that she was going to buy
sanitary napkins for Zenaida as the latter was then bleeding and
had a menstruation and could not go out of the comfort room.
After ten minutes elapsed without the lady companion of
Zenaida coming back, the accused became suspicious and
entered the comfort room. To his surprise, he found Zenaida no
longer inside the comfort room. He noticed that the window of
said comfort room was not provided with window grills. He
tried to peep out of the window by stepping on the flush tank
which is just about 3 feet from the window and noticed that
outside of the window there was a concrete eave extending
down to the ground floor of the building which he presumed
that Zenaida might have used as a passage in escaping (Exhibits
2-A, 3 and 4 to 4-C). He immediately went out to look for the
escapee inside the building with the help of Pat. Andres but
they were not able to see her. Pat. Andres advised him to go to
Zenaida's house as she might be there, which home is located
at Bagong Barrio, Caloocan City. Pat. Andres having told him
that the husband of the escapee is from Rizal, Nueva Ecija, the
accused borrowed the car of his brother-in-law and proceeded
to said town. Upon arrival thereat, they contacted the relatives
of Zenaida and asked for information as to her whereabouts,
but they answered in the negative. They went back to Caloocan
City and went again directly to Bagong Barrio to the house of
Zenaida, arriving thereat at around 8:00 o'clock in the evening.
While at the residence of Zenaida, Cpl. Victoriano arrived and
the accused related to him about the escape of Zenaida. He
formally reported the matter of his superior officer at the City
Jail Capt. Leonardo Zamora. The accused declared further that
as a jailer, he never had any training nor lecture by his superiors
regarding the manner of delivering prisoners. However, he
admitted that he did not inspect first the comfort room before
he allowed Zenaida to enter because there were many females
going in and out of said comfort room, and that he did not
promptly report the escape earlier because they were then
pressed for time to intercept Zenaida at the highway. (Rollo, pp.
18-21).
The petitioner assigns the following errors:
I
WHETHER PETITIONER'S CONVICTION BY THE
SANDIGANBAYAN BASED ONLY ON HIS ADMISSIONS WITHOUT
THE PROSECUTION HAVING PRESENTED EVIDENCE TO PROVE
HIS NEGLIGENCE WILL LIE.
II
WHETHER THE ACTS OF PETITIONER COULD BE QUALIFIED AS
DEFINITE LAXITY AMOUNTING TO DELIBERATE NON-
PERFORMANCE OF DUTY TO SUSTAIN HIS CONVICTION. (Brief
for the petitioner, p. 5)
In essence, the sole question to be resolved in the case at bar is whether,
under the foregoing facts and circumstances, the respondent
Sandiganbayan committed a reversible error in holding the petitioner
guilty of infidelity in the custody of a prisoner through negligence
penalized under Art. 224 of the Revised Penal Code.
The petitioner specifically alleges that his conviction by the
Sandiganbayan was based merely on his admissions without the
prosecution presenting evidence to prove his negligence.
Sec. 22, Rule 130 of the Rules of Court states that "the act, declaration,
or omission of a party as to a relevant fact may be given in evidence
147
against him. The admissions and declarations in open court of a person
charged with a crime are admissible against him. (See U.S. v. Ching Po, 23
Phil. 578).
Page
The records show that the elements of the crime for which the petitioner
was convicted are present. Article 224 of the Revised Penal Code states:
ART. 224. Evasion through negligence. If the evasion of the
prisoner shall have taken place through the negligence of the
officer charged with the conveyance or custody of the escaping
prisoner, said officer shall suffer the penalties of arresto mayor
in its maximum period to prision correccional in its minimum
period and temporary special disqualification.
The elements of the crime under the abovementioned article are: a) that
the offender is a public officer; b) that he is charged with the conveyance
or custody of a prisoner, either detention prisoner or prisoner by final
judgment; and c) that such prisoner escapes through his negligence (See
Reyes, L.B., Revised Penal Code, Book II, 1977 ed., p. 407).
There is no question that the petitioner is a public officer. Neither is there
any dispute as to the fact that he was charged with the custody of a
prisoner who was being tried for a violation of the Dangerous Drugs Act
of 1972.
The only disputed issue is the petitioner's negligence resulting in the
escape of detention prisoner Zenaida Andres. The negligence referred to
in the Revised Penal Code is such definite laxity as all but amounts to a
deliberate non-performance of duty on the part of the guard (Id., p. 408).
It is evident from the records that the petitioner acted negligently and
beyond the scope of his authority when he permitted his charge to create
the situation which led to her escape. The petitioner contends that
human considerations compelled him to grant Zenaida Andres requests
to take lunch and to go to the comfort room to relieve herself.
As a police officer who was charged with the duty to return the prisoner
directly to jail, the deviation from his duty was clearly a violation of the
regulations.
In the first place, it was improper for the petitioner to take lunch with the
prisoner and her family when he was supposed to bring his charge to the
jail. He even allowed the prisoner and her husband to talk to each other
at the request of a co-officer.
It is the duty of any police officer having custody of a prisoner to take
necessary precautions to assure the absence of any means of escape. A
failure to undertake these precautions will make his act one of definite
laxity or negligence amounting to deliberate non-performance of duty.
His tolerance of arrangements whereby the prisoner and her companions
could plan and make good her escape should have aroused the suspicion
of a person of ordinary prudence.
The request for lunch and the consequent delay was an opportunity for
the prisoner to learn of a plan or to carry out an earlier plan by which she
could escape. The plan was in fact carried out with the help of the lady
who accompanied his prisoner inside the comfort room. The use of a
toilet is one of the most familiar and common place methods of escape.
It is inconceivable that a police officer should fall for this trick. The
arrangement with a lady friend should have aroused the petitioner's
suspicion because the only pretext given by the petitioner was that she
was going to answer the call of nature. It was, therefore, unnecessary for
her to be accompanied by anyone especially by someone who was not
urgently in need of a toilet if the purpose was merely to relieve herself.
Despite this, the petitioner allowed the two to enter the comfort room
without first establishing for himself that there was no window or door
allowing the possibility of escape. He even allowed the prisoner's
companion to leave the premises with the excuse that the prisoner was
having her monthly period and that there was a need to buy sanitary
napkins. And he patiently waited for more than ten minutes for the
companion to return. This was patent negligence and incredible naivette
on the part of the police officer.
Contrary to what the petitioner claims, the escape was not a confluence
of facts and,circumstances which were not foreseen and were not
unnatural in the course of things. Not only should they have been
foreseen but they should have been guarded against.
Considering that the city jail was only a kilometer away and it was only
11:30 a.m., it would not have been inhuman for the petitioner to deny
the prisoner's request to first take lunch. Neither would it have been
inhuman if he cleared the toilet of female occupants and checked all
possible exists first and if he did not allow the lady companion to go with
Zenaida Andres to the comfort room. These human considerations,
however, are immaterial because the fact remains that as a police officer,
he should have exercised utmost diligence in the performance of his duty.
The supposed confluence of facts does not alter his liability. That he was
not trained in escorting women prisoners is likewise unacceptable as
there are no hard and fast rules of conduct under all conceivable
situations for police officers acting as guards. However, they are expected
to use prudence, diligence, and common sense. That Judge Pardo did not
immediately pronounce judgment so the petitioner could have
immediately brought Zenaida back to jail is inconsequential. In the first
place, the escape would not have materialized had he immediately
escorted her back to jail after the hearing. That he cannot follow the
prisoner inside the comfort room because it would create a commotion,
he being a male, is a lame excuse. There is nothing wrong in asking the
ladies for permission so he could check the comfort room first to insure
that the prisoner cannot escape. The fact that the building is made of
concrete and the outside windows covered with grills should not make a
police officer complacent especially because well-planned escapes are
not uncommon. Escapes are, in fact, even presumed so much so that two
(2) guards are usually assigned to a prisoner. (Tsn, August 4, 1981, p. 40)
There appears to have been no genuine effort on the part of the
petitioner to recapture the escapee. Instead of promptly reporting the
matter so that an alarm could immediately be sent out to all police
agencies and expert procedures followed, he allegedly tried to look for
her in the latter's house in Caloocan and failing in this, proceeded to
Nueva Ecija. It was only later in the evening that he formally reported the
matter to his superior. This even gave the escapee greater opportunity to
make good her escape because the chances of her being recaptured
became much less. Such action requires concerted police effort, not a
one-man job which petitioner should have been or was probably aware
of.
The petitioner further contends that he cannot be convicted because
there was no connivance between him and the prisoner. In support of his
claim, he cites the case of Alberto v. dela Cruz, (98 SCRA 406). The
citation, however, is erroneous. It creates the impression that for one to
be held liable under Art. 224, there must be a showing that he first
connived with the prisoner. This was not the ruling in said case. Conniving
or consenting to evasion is a distinct crime under Art. 223 of the Revised
Penal Code.
The petitioner here is not being charged with conniving under Art. 223
but for evasion through negligence under Art. 224 of the same Code. It is,
therefore, not necessary that connivance be proven to hold him liable for
the crime of infidelity in the custody of prisoners.
We quote the Solicitor General that the Sandiganbayan's observation
regarding escaped prisoners is relevant and timely. The Court stated:
It is high time that the courts should take strict measures
against law officers to whom have been entrusted the custody
and detention of prisoners, whether detention prisoners or
prisoners serving sentence. Laxity and negligence in the
performance of their duties resulting in the mysterious escapes
of notorious criminals have become common news items,
involving as it does the suspicion that monetary considerations
148
may have entered into the arrangements which led to the
successful escape of such notorious criminals even from
military custody. No quarters should be extended to such kind
Page
of law officers who, deliberately or otherwise, fail to live up to
 the standard required of their duties, thus directly contributing
not only to the clogging of judicial dockets but also to the
inevitable deterioration of peace and order. (Brief for
Respondents, pp. 17-18)

WHEREFORE, the petition is hereby DISMISSED. The questioned decision

of the Sandiganbayan is AFFIRMED.

SO ORDERED.

Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano,

Gancayco, Padilla, Bidin, Sarmiento, Cortes, and Griño-Aquino, JJ., concur.

149
Page
VII. CRIMES AGAINST PUBLIC INTEREST (Art. 161-189) PX626388 1 500.00 WW164152 1 500.00 to a Certification dated August 7, 2007, Acting Assistant Manager Loida
Marcega Cruz of the Bangko Sentral ng Pilipinas examined and found the
Art. 168- Illegal Possesion of False Treasury/ Bank Notes BR666774 1 500.00 BR666774 1 500.00 following bills as counterfeit, viz: one (1) P500.00 bill with Serial Number
BB020523; six (6) P500.00 bills with Serial Number BR666774; nine (9)
UU710062 1 500.00 PX626388 1 500.00
P500.00 bills with Serial Number CC077337; five (5) P500.00 bills with
(1) G.R. No. 194367 June 15, 2011
CC077337 1 500.00 PX626388 1 500.00 Serial Number PX626388; one (1) P500.00 bill with Serial Number
UU710062; and two (2) P500.00 bills with Serial Number WW164152.
MARK CLEMENTE y MARTINEZ @ EMMANUEL DINO, Petitioner, Which are false and falsified.
vs.
For the defense, appellant was the lone witness presented on the stand.
PEOPLE OF THE PHILIPPINES, Respondent. Contrary to law.

Appellant simply raised the defense of frame-up. He testified that in the

DECISION Upon arraignment, petitioner entered a plea of not guilty. Trial thereafter
ensued.
VILLARAMA, JR., J.:
The version of the prosecution and the defense, as summarized by the
Before us is a petition for review on certiorari under Rule 45 of the 1997 CA, are as follows:6
Rules of Civil Procedure, as amended, seeking to reverse the March 29,
2010 Decision1 of the Court of Appeals (CA) which denied petitioner's The prosecution presented three (3) witnesses, namely: Jail Officer 1
appeal and affirmed the November 3, 2008 Judgment2 of the Regional (JO1) Michael Michelle Passilan, the Investigator of the Manila City Jail;
Trial Court (RTC) of Manila, Branch 7, convicting petitioner of illegal JO1 Domingo David, Jr.; and Loida Marcega Cruz, the Assistant Manager
possession and use of false bank notes under Article 168 3 of the Revised of the Cash Department of the Bangko Sentral ng Pilipinas.
Penal Code (RPC), as amended. Also assailed is the CA Resolution dated
October 14, 20104 denying petitioner's motion for reconsideration. [Their testimonies established the following:]
Petitioner was charged before the RTC with violation of Article 168 of the
Appellant is a detainee at the Manila City Jail. On August 7, 2007, at
RPC under an Information5 which reads:
around 3:30 pm, an informant in the person of inmate Francis dela Cruz
approached JO1s Domingo David, Jr. and Michael Passilan. The informant
That on or about August 5, 2007, in the City of Manila, Philippines, the narrated that he received a counterfeit P500.00 bill from appellant with
said accused, with intent to use, did then and there willfully, unlawfully, orders to buy a bottle of soft drink from the Manila City Jail Bakery. The
feloniously and knowingly have in his possession and under his custody bakery employee, however, recognized the bill as a fake and refused to
and control twenty[-]four (24) pcs. [of] P500.00 bill with Markings ["] IIB- accept the same. Consequently, JO1s David and Passilan, along with the
1" to "IIB-24", respectively and specifically enumerated, to wit: informant, proceeded to appellant's cell for a surprise inspection.
Pursuant to their agreement, the informant entered the cubicle first and
found appellant therein, lying in bed. The informant returned to
SERIAL NO. PCS. AMOUNT SERIAL NO. PCS. AMOUNT appellant the latter's P500.00 bill. The jail guards then entered the cell
and announced a surprise inspection. JO1 Passilan frisked appellant and
PX626388 1 P500.00 CC077337 1 ₱500.00
recovered a black wallet from his back pocket. Inside the wallet were
CC077337 1 500.00 CC077337 1 500.00 twenty-three (23) pieces of P500.00, all of which were suspected to be
counterfeit. They confiscated the same and marked them sequentially
CC077337 1 500.00 CC077337 1 500.00
with "IIB-2" to "II-B24". They likewise marked the P500.00 bill that was
BR666774 1 500.00 CC077337 1 500.00 returned by informant to appellant with "IIB-1". Appellant was
consequently arrested and brought out of his cell into the office of the
CC077337 1 500.00 BR666774 1 500.00 Intelligence and Investigation Branch (IIB) of the Manila City jail for
afternoon of August 5, 2007, he was inside his room located at Dorm 1 of
the Manila City Jail. At around 3:00 pm, JO1 Michael Passilan entered
appellant's room while JO1 Domingo David, Jr. posted himself outside.
Without any warning, JO1 Passilan frisked appellant and confiscated his
wallet containing one (1) P1,000.00 bill. JO1s David and Passilan left
immediately thereafter. Appellant was left with no other choice but to
follow them in order to get back his wallet. Appellant followed the jail
officers to the Intelligence Office of the Manila City Jail where he saw JO1
Passilan place the P500.00 bills inside the confiscated black wallet.
Appellant was then told that the P500.00 bills were counterfeit and that
he was being charged with illegal possession and use thereof. Appellant
also added that JO1 Passilan bore a grudge against him. This was because
appellant refused to extend a loan [to] JO1 Passilan because the latter
cannot offer any collateral therefor. Since then, JO1 Passilan treated him
severely, threatening him and, at times, putting him in isolation.
After trial, the RTC found petitioner guilty beyond reasonable doubt of
the crime charged. The RTC gave credence to the prosecution's witnesses
in finding that the counterfeit money were discovered in petitioner's
possession during a surprise inspection, and that the possibility that the
counterfeit money were planted to incriminate petitioner was almost nil
considering the number of pieces involved.7 The RTC also did not find that
the jail officers were motivated by improper motive in arresting
petitioner,8 and applied in their favor the presumption of regularity in the
performance of official duties considering the absence of contrary
evidence. As to petitioner’s defense of frame-up, the RTC held that the
purported frame-up allegedly staged by JO1 Passilan would not affect the
prosecution's evidence since the testimony of JO1 David could stand by
itself. The RTC likewise found that it was strange that petitioner did not
remonstrate despite the fact that he was allegedly being framed.9
As to the elements of the crime, the RTC held that the fact that the

150
BB020523 1 500.00 BR666774 1 500.00 interrogation. ₱500.00 bills found in petitioner’s possession were forgeries was
confirmed by the certification issued by the Cash Department of
PX626388 1 500.00 CC077337 1 500.00 Meanwhile, the twenty-four (24) P500.00 bills confiscated from appellant the Bangko Sentral ng Pilipinas, which was testified into by Acting

Page
were turned over to the Bangko Sentral ng Pilipinas for analysis. Pursuant Assistant Manager Loida A. Cruz.10 The RTC also ruled that petitioner
BR666774 1 500.00 WW164152 1 500.00
knew the bills were counterfeit as shown by his conduct during the
surprise search and his possession of the bills. As to the element of
intention to use the false bank notes, the RTC ruled that the fact that
petitioner intended to use the bills was confirmed by the information
received by the jail officers from another inmate.11
Aggrieved, petitioner sought reconsideration of the judgment. Petitioner
argued that the evidence used against him was obtained in violation of
his constitutional right against unreasonable searches and seizures.
Petitioner also argued that the prosecution failed to prove his guilt
beyond reasonable doubt because of the non-presentation of the
informant-inmate, Francis dela Cruz, who could have corroborated the
testimonies of the jail officers.
Unconvinced, the RTC denied petitioner’s motion for reconsideration.
The RTC, however, only ruled that there was no violation of petitioner’s
constitutional right against unreasonable searches and seizures because
the seizure was done pursuant to a valid arrest for violation of Article 168
of the RPC. The trial court pointed out that prior to the search, a crime
was committed and the criminal responsibility pointed to petitioner.12
On appeal before the CA, petitioner argued that the RTC erred in finding
him guilty beyond reasonable doubt for violating Article 168 of the RPC.
Petitioner contended that one of the elements of the crime which is
intent to use the counterfeit bills was not established because the
informant Francis dela Cruz did not take the witness stand.13
The CA, however, found the appeal unmeritorious and denied
petitioner’s appeal.14 The appellate court found that the fact the
petitioner was caught in possession of twenty-four (24) pieces of fake
₱500.00 bills already casts doubt on his allegation that he was merely
framed by the jail guards. The CA agreed with the RTC that even without
the testimony of JO1 Passilan, the testimony of JO1 David was already
sufficient to establish petitioner’s guilt since petitioner did not impute
any ill motive on the latter except to point out that JO1 David was JO1
Passilan’s friend.151avvphi1
Regarding the element of intent to use, the CA found that there are
several circumstances which, if taken together, lead to the logical
conclusion that petitioner intended to use the counterfeit bills in his
possession. The CA pointed out that jail officers were informed by inmate
Francis dela Cruz that he received a fake ₱500.00 bill from petitioner who
told him to buy soft drinks from the Manila City jail bakery. After Francis
dela Cruz identified petitioner as the person who gave him the fake
money, the jail officers conducted a surprise inspection. Said inspection
yielded twenty-three (23) pieces of counterfeit ₱500.00 bills inside
petitioner's black wallet, which was taken from his back pocket. The CA
further held that the non-presentation of Francis dela Cruz would not
affect the prosecution's case because even without his testimony,
petitioner’s intent to use the counterfeit bills was established. The CA
added that the matter of which witnesses to present is a matter best left
to the discretion of the prosecution.16
Petitioner sought reconsideration of the above ruling, but the CA denied
petitioner’s motion for reconsideration in the assailed Resolution dated
October 14, 2010.17 Hence, the present appeal.
Petitioner raises the following assignment of errors, to wit:
I.
THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION
OF THE REGIONAL TRIAL COURT, CONVICTING PETITIONER OF
THE CRIME CHARGED, DESPITE THE FAILURE OF THE
PROSECUTION TO PROVE AN ELEMENT OF THE OFFENSE.
II.
THE COURT OF APPEALS ERRED IN NOT EXCLUDING THE
COUNTERFEIT BILLS SINCE THEY WERE DERIVED FROM
UNREASONABLE SEARCH AND SEIZURE.18
The petition is meritorious.
Generally, the trial court’s findings are accorded finality, unless there
appears in the record some fact or circumstance of weight which the
lower court has overlooked, misunderstood or misappreciated, and
which, if properly considered, would alter the result of the case. The
exception applies when it is established that the trial court has ignored,
overlooked, misconstrued or misinterpreted cogent facts and
circumstances which, if considered, will change the outcome of the
case.19
Here, the Court finds that the RTC and the CA had overlooked certain
substantial facts of value to warrant a reversal of its factual assessments.
While petitioner's denial is an intrinsically weak defense which must be
buttressed by strong evidence of non-culpability to merit credence, said
defense must be given credence in this case as the prosecution failed to
meet its burden of proof.
Article 168 of the RPC, under which petitioner was charged, provides:
ART. 168. Illegal possession and use of false treasury or bank notes and
other instruments of credit. — Unless the act be one of those coming
under the provisions of any of the preceding articles, any person who
shall knowingly use or have in his possession, with intent to use any of
the false or falsified instruments referred to in this section, shall suffer
the penalty next lower in degree than that prescribed in said articles.
[Emphasis supplied.]
The elements of the crime charged for violation of said law are: (1) that
any treasury or bank note or certificate or other obligation and security
payable to bearer, or any instrument payable to order or other document
of credit not payable to bearer is forged or falsified by another person;
(2) that the offender knows that any of the said instruments is forged or
falsified; and (3) that he either used or possessed with intent to use any
of such forged or falsified instruments.20 As held in People v.
Digoro, 21 possession of false treasury or bank notes alone, without
anything more, is not a criminal offense. For it to constitute an offense
under Article 168 of the RPC, the possession must be with intent to use
said false treasury or bank notes.221avvphi1
In this case, the prosecution failed to show that petitioner used the
counterfeit money or that he intended to use the counterfeit bills. Francis
dela Cruz, to whom petitioner supposedly gave the fake ₱500.00 bill to
buy soft drinks, was not presented in court. According to the jail officers,
they were only informed by Francis dela Cruz that petitioner asked the
latter to buy soft drinks at the Manila City jail bakery using a fake ₱500.00
bill. In short, the jail officers did not have personal knowledge that
petitioner asked Francis dela Cruz use the ₱500.00 bill.23 Their account,
however, is hearsay and not based on the personal knowledge.24
This Court, of course, is not unaware of its rulings that the matter of
presentation of prosecution witnesses is not for the accused or, except in
a limited sense, for the trial court to dictate. Discretion belongs to the city
or provincial prosecutor as to how the prosecution should present its
case.25 However, in this case, the non-presentation of the informant as
witness weakens the prosecution's evidence since he was the only one
who had knowledge of the act which manifested petitioner's intent to use
a counterfeit bill. The prosecution had every opportunity to present
Francis dela Cruz as its witness, if in fact such person existed, but it did
not present him. Hence, the trial court did not have before it evidence of
an essential element of the crime. The twenty-three (23) pieces of
counterfeit bills allegedly seized on petitioner is not sufficient to show
intent, which is a state of mind, for there must be an overt act to manifest
such intent.
151
WHEREFORE, the petition for review on certiorari is GRANTED. The
Decision dated March 29, 2010 and Resolution dated October 14, 2010
of the Court of Appeals in CA-G.R. CR No. 32365 are REVERSED and SET-
Page
ASIDE. Petitioner Mark Clemente y Martinez alias Emmanuel Dino is
hereby ACQUITTED of the crime of Illegal possession and use of false bank
notes defined and penalized under Article 168 of the Revised Penal Code,
as amended.
With costs de oficio.
SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice
WE CONCUR
Footnotes
2
Id. at 47-58. Penned by Judge Ma.Theresa Dolores C. Gomez-
Estoesta. The dispositive portion of the RTC decision reads:
WHEREFORE, this Court finds accused Mark
Clemente y Martinez a.k.a. Emmanuel Dino GUILTY
beyond reasonable doubt of a violation of Article 168
of the Revised Penal Code for Illegal Possession and
Use of False Bank Notes which is penalized under
Article 168 of the same Code.
There being neither mitigating nor aggravating
circumstance alleged nor proven, pursuant to the
provisions of the Indeterminate Sentence Law, this
Court imposes upon said Mark Clemente y Martinez
a.k.a. Emmanuel Dino an indeterminate penalty of
EIGHT (8) YEARS and ONE (1) DAY of prision mayor in
its medium period as minimum to TEN (10) YEARS,
EIGHT (8) MONTHS and ONE (1) DAY of prision
mayor in its medium period as maximum and to pay
a FINE OF FIVE THOUSAND PESOS (P5,000.00).
The preventive imprisonment accused has
undertaken shall be CREDITED to the service of his
sentence.
In contemplation of Circular No. 61, Series of 1995,
issued by the Bangko Sentral ng Pilipinas, the Branch
Sheriff of this Court is directed to TRANSMIT the
twenty[-four] (24) pieces of P500.00 bills found to be
counterfeit to the Cash Department of the Bangko
Sentral ng Pilipinas for proper disposition.
With costs de oficio against the accused.
SO ORDERED.
3 Article 168. Illegal possession and use of false treasury or bank
notes and other instruments of credit.—Unless the act be one
of those coming under the provisions of any of the preceding
articles, any person who shall knowingly use or have in his
possession, with intent to use any of the false or falsified
instruments referred to in this section, shall suffer the penalty
next lower in degree than that prescribed in saidarticles.
(2) G.R. No. 113218 November 22, 2001
ALEJANDRO TECSON, petitioner,
vs.
HON. COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
DE LEON, JR., J.:
Before us on appeal by certiorari is the Decision1 of the Court of Appeals
in CA-G. R. No. 11744 promulgated on August 31, 1993, and its Resolution
dated December 23, 1993, denying petitioner's motion for
reconsideration.
This case stemmed from a charge of illegal possession and use of
counterfeit US dollar notes, as defined and penalized under Article 168 of
the Revised Penal Code, against herein petitioner Alejandro Tecson y
Florencio. The Information reads:
That on or about April 28, 1990, in the City of Manila,
Philippines, the said accused did then and there wilfully,
unlawfully, feloniously and knowingly have in his possession
and under his custody and control, with intent to use and pass,
as in fact he did use and pass ten (10) pieces of 100-US dollar
notes of the Federal Reserve Note, or a sum of $1,000.00 (US
Dollar) to Pedro C. Labita, a confidential assistant of the Central
Bank of the Philippines, which bills were in the resemblance
and similitude of the dollar bills issued by the United States
Government, the said accused knowing, as he did, that the said
US dollar bills were forged and falsified.
Contrary to law.
Upon being arraigned on July 20, 1990, the petitioner entered the plea of
"Not guilty" to the charge.
After trial on the merits, the trial court rendered a Decision2 dated May
6, 1991, the dispositive portion of which reads:
WHEREFORE, the Court finds and declares accused ALEJANDRO
F. TECSON, GUILTY beyond reasonable doubt of the offense as
defined in Art. 168 and penalized in Art. 166 paragraph 1 of the
Revised Penal Code; and hereby sentenced him to suffer an
indeterminate penalty of from EIGHT (8) YEARS and ONE (1)
DAY of prision mayor in its medium period as minimum to TEN
(10) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of prision
mayor in its medium period as maximum; to pay a fine of
P5,000.00; and to pay the cost.
The Branch Clerk of Court is directed to burn the ten (10) pieces
of 100 US dollar notes subject of the offense.
SO ORDERED.
Aggrieved by the decision of the trial court, the petitioner filed an appeal
with the Court of Appeals which affirmed the judgment of the trial
court in toto on August 31, 1993. Petitioner sought a reconsideration of
the decision of the appellate court but it was denied on December 23,
1993.3
Hence, the instant petition.
From the evidence adduced by the prosecution, it appears that a civilian
informer personally informed the Cash Department of the Central Bank
of the Philippines that a certain Mang Andy was involved in a syndicate
engaging in the business of counterfeit US dollar notes. On April 26, 1990
a test-buy operation was ordered by Atty. Pio Chan, Jr., Chief of the
Investigation Staff of the Central Bank, which resulted in the purchase
from Mang Andy of one (1) US dollar note for Two Hundred Pesos
(P200.00) that was found to be counterfeit by the Currency Analysis and
Redemption Division of the Central Bank. Consequently, Atty. Chan
formed a team to conduct a buy-bust operation composed of prosecution
witnesses Pedro Labita, Confidential Assistant of the Investigation Staff
of the Central Bank, and Cpl. Johnny Marqueta, a representative of the
US Secret Service, together with William Pasive, Warren Castillo and
152
Carlos Toralde, Jr. also of the Investigation Staff of the Central Bank.4
On April 28, 1990, at about 11:30 o'clock in the morning, the team
Page
proceeded to the Jollibee restaurant in Rizal Ave., Sta. Cruz, Manila. Three
(3) members of the team namely: William Pasive, Carlos Toralde, Jr., and
Warren Castillo positioned themselves outside the Jollibee restaurant
while Pedro Labita and Johnny Marqueta proceeded inside.
Subsequently, the civilian informer arrived inside the restaurant and
approached a man who was seated two (2) tables away from where
Labita and Marqueta were positioned. The informer introduced to Mang
Andy the said Pedro Labita and Johnny Marqueta as the persons
interested in buying US dollar notes. Apparently convinced, the man drew
ten (10) pieces of US $100 dollar notes from his wallet. At that moment,
and upon a pre-arranged signal from the informer, Labita and Marqueta
introduced themselves as Central Bank operatives and apprehended the
man called Mang Andy whom they later identified as the herein
petitioner Alejandro Tecson.5
During the investigation at the Central Bank, the petitioner affixed his
initial on the dorsal portion of each of the ten (10) pieces of US $100
dollar notes6 and signed the corresponding receipt7 for the said US dollar
notes seized from him. He also executed a "Pagpapatunay"8 attesting to
the proper conduct of the investigation by the Central Bank operatives
on the petitioner. Subsequent examination by the Currency Analysis and
Redemption Division of the Central Bank shows that the ten (10) pieces
of US $100 dollar notes confiscated from the petitioner are indeed
counterfeit.9
The defense denied any liability of the petitioner for the crime of illegal
possession and use of counterfeit US dollar notes. Petitioner testified that
he was inside the Jollibee restaurant in Sta. Cruz, Manila on April 28, 1990
to meet a certain Nora Dizon, wife of his friend, Reynaldo de Guzman,
who previously sought his assistance in securing insurance payment
bond. After Nora's arrival at the restaurant, she handed to him a sealed
envelope which he accepted thinking that it contained the documents
pertaining to the insurance payment bond. Upon receipt of the sealed
envelope, however, two (2) male persons approached and immediately
handcuffed him. They dragged him outside the restaurant where three
(3) other persons were waiting. After boarding a taxi, they blindfolded
the petitioner and took him to the Central Bank building in F. B. Harrison
St., Manila where he was investigated.10
The investigators inquired from the petitioner about the source of the
fake US dollar notes. Petitioner vehemently denied having possession nor
any knowledge as to the source of the fake US dollar notes and claimed
that the same were merely planted by the arresting officers. Petitioner
also claimed that he was tortured into initialing the dorsal portions of the
ten (10) counterfeit US $100 dollar notes and into signing the Receipt and
Inventory for Property/Articles Seized as well as the ''Pagpapatunay".11
The instant appeal by certiorari12 reveals the following assignment of
errors:
I While respondents, through counsel, conceded that the "Pagpapatunay"
RESPONDENT COURT OF APPEALS FAILED TO FIND THAT THE
PROSECUTION'S EVIDENCE IS NOT SUFFICIENT TO SUPPORT
PETITIONER'S CONVICTION OF THE CRIME CHARGED.
II
RESPONDENT COURT OF APPEALS GRAVELY ERRED IN NOT FINDING THAT
THE EVIDENCE PRESENTED BY THE PROSECUTION IS NOT ADMISSIBLE IN
LAW.
In essence, petitioner claimed that no buy-bust operation took place
inside the Jollibee restaurant in Rizal Ave., Sta. Cruz, Manila on April 28,
1990 inasmuch as there was no haggling as to the price between him and
the poseur buyers, and that no money changed hands. He was merely
framed up by the Central Bank operatives by planting fake US dollar notes
inside the envelope which was handed to him by the wife of his friend
who earlier asked for his assistance regarding insurance payment bond.
He accepted the envelope thinking that it contained the documents
pertaining to the insurance payment bond.
Assuming arguendo that a buy-bust operation was conducted, the
petitioner claimed that the testimony of prosecution witness Pedro
Labita to the effect that the civilian informer had to convince the
petitioner negated any alleged intent on his part to sell counterfeit US
dollar notes to the poseur buyers. In addition, he averred that
prosecution witnesses Labita and Marqueta had no personal knowledge
as to petitioner's alleged possession of counterfeit US dollar notes as they
merely relied on the predetermined signal of the civilian informer before
making the arrest. Hence, the ten (10) counterfeit US $100 dollar notes
allegedly confiscated from him (petitioner) incidental to his arrest are
inadmissible in evidence. Likewise, his initial on the dorsal portion of the
said US dollar notes and his signature on the "Pagpapatunay" are
inadmissible for having been obtained without the aid of counsel. That is
the version of the petitioner.
The respondents, represented by the Office of the Solicitor General
(OSG), countered in their Comment that the absence of haggling among
the parties to the buy-bust operation did not negate petitioner's actual
possession and use of the ten (10) counterfeit US $100 dollar notes,
which fact of possession is punishable by law. Prosecution witnesses
Pedro Labita and Johnny Marqueta, who acted as poseur buyers, testified
that they saw the petitioner drew the subject fake US dollar notes from
his wallet13 in order to sell the same to them.
and the "Receipt and Inventory for Property/Articles Seized" which were
signed by the petitioner during his custodial investigation are
inadmissible in evidence for having been obtained in the absence of his
counsel, they maintained that there are sufficient independent evidence
on record to prove his guilt beyond reasonable doubt.14
By way of reply,15 the petitioner, who is now 70 years of age,16 contends
that possession should be coupled with intent to use the counterfeit US
dollar bills in order to hold him liable under the provision of Article 168
of the Revised Penal Code.
Article 168 of the Revised Penal Code provides that:
ART. 168. Illegal possession and use of false treasury or bank
notes and other instruments of credit. — Unless the act be one
of those coming under the provisions of any of the preceding
articles, any person who shall knowingly use or have in his
possession, with intent to use any of the false or falsified
instruments referred to in this section, shall suffer the penalty
next lower in degree than that prescribed in said articles.
The elements of the crime charged for violation of Article 168 of the
Revised Penal Code, are: 1 ) that any treasury or bank note or certificate
or other obligation and security payable to bearer, or any instrument
payable to order or other document of credit not payable to bearer is
forged or falsified by another person; 2) that the offender knows that any
of the said instruments is forged or falsified; and 3) that he either used
or possessed with intent to use any of such forged or falsified
instruments.17 Hence, possession of fake dollar notes must be coupled
with the act of using or at least with intent to use the same as shown by
a clear and deliberate overt act in order to constitute a crime, 18 as was
sufficiently proven in the case at bar.
We find no cogent reason to overturn the decision of respondent Court
of Appeals which affirmed the judgment of the trial court finding the
petitioner guilty beyond reasonable doubt of the crime charged in the
case at bar. The prosecution established, through the testimonies of
Pedro Labita and Johnny Marqueta, that a buy-bust operation was
conducted by the combined agents of the Central Bank of the Philippines
and the US Secret Service, and that the petitioner was therein caught in
flagrante delicto in the possession of and in the act of offering to sell
counterfeit US dollar notes. During the buy-bust operation, prosecution
153
witnesses Labita and Marqueta were introduced by the civilian informer
to the petitioner as interested buyers of fake US dollar notes. When the
petitioner was in the act of drawing the ten (10) pieces of fake US $100
Page
dollar notes from his wallet, he was immediately placed under arrest by
Labita and his team.
The testimony of Pedro Labita which was corroborated by Johnny
Marqueta and the presentation during the trial of the ten (10) counterfeit
US $100 dollar notes, which were confiscated from the petitioner when
he was arrested, proved beyond reasonable doubt the guilt of the
petitioner for the crime of illegal possession and use of fake US dollar
notes under Article 168 of the Revised Penal Code. The trial court in its
decision characterized the respective testimonies of prosecution
witnesses Labita and Marqueta as "clear, straightforward, impartial and
(thus) convincing".19 We fail to discern any ill motive on the part of the
said prosecution witnesses in testifying against the petitioner whom they
met for the first time only on April 28, 1990. Petitioner himself admitted
during the trial that he was not aware of any ill motive on the part of the
prosecution witnesses to implicate him in the crime of counterfeiting US
dollar notes.20 The settled rule is that the testimony of even a lone
prosecution witness as long as it is positive and clear and not arising from
an improper motive to impute a serious offense to the accused, deserves
full credit.21
The absence of haggling as to the price of the subject fake US dollar notes
between the petitioner and the poseur buyers did not negate the fact of
the buy-bust operation. Significantly, the transaction for the purchase of
fake US dollar notes was only at its inception when the Central Bank
operatives at that point decided to apprehend the petitioner. Mere
possession coupled with intent to use the counterfeit US dollar notes, as
proven in the case at bar, is sufficient to constitute the crime under
Article 168 of the Revised Penal Code.
The facts, as established by the evidence adduced, show that the civilian
informer introduced prosecution witnesses Labita and Marqueta to the
petitioner as the persons interested in buying fake US dollar notes.
Having been thus convinced, petitioner removed his wallet from his
pocket and drew the ten (10) pieces of fake US $100 dollar notes to show
the same to the supposed buyers. Petitioner's natural reaction to the
seeming interest of the poseur buyers to buy fake US dollar notes
constitutes an overt act which clearly showed his intention to use or sell
the counterfeit US dollar notes. In any event, what we have here is a case
of entrapment which is allowed, and not instigation.
Petitioner cannot validly claim that he had no intention of committing the
crime by citing the testimony of Pedro Labita to the effect that he
(petitioner) was merely convinced by the civilian informer that Labita and
Marqueta were interested to buy fake US dollar notes. The pertinent
portion of Labita's testimony reads, thus:
ASST. CITY PROSECUTOR:
Q: All right, let me clarify this, Mr. Witness. This informant
or informer that you mentioned, he also arrived there at the
Jollibee Restaurant, Mr. Witness?
A: Yes, sir, but he arrived late.
Q: So, he arrived late. Now, after the arrival of this informant
at the Jollibee Restaurant, what did this informant do inside the
Jollibee restaurant while you were there, Mr. Witness?
A: Our informer tried to convince the accused and after
convincing that we are the buyers of said counterfeit notes, he
immediately draws (sic) from his wallet that (sic) counterfeit
notes, and upon pre-signal of our informer, we immediately
apprehended the accused, sir.22
The above-quoted testimony of prosecution witness Labita negates the
petitioner's claim that he was merely instigated into committing the
crime by the civilian informer. It appears that prior to the buy-bust
operation, the petitioner already had the intention to sell counterfeit US
dollar notes as he, in fact, had an agreement with the civilian informer to
arrange for a meeting with interested buyers. In other words, the civilian
informer did not have to convince the petitioner to sell fake US dollar
notes during the buy-bust operation on April 28, 1990 inside the Jollibee
restaurant in Rizal Ave., Sta Cruz, Manila. What the informer actually did
during the buy-bust operation was simply to convince the petitioner that
prosecution witnesses Labita and Marqueta were interested buyers of
counterfeit US dollar notes.
The petitioner cannot validly impugn the admissibility of the subject ten
(10) counterfeit US $100 dollar notes confiscated from him when he was
thus arrested. It is clear from the testimony of prosecution witness Pedro
Labita that he saw the petitioner drew several pieces of fake US dollar
notes from his wallet to show to them after they were introduced by the
civilian informer as the interested buyers while they were inside the
Jollibee restaurant, thus:
ASST. CITY PROSECUTOR:
Q: Now, Mr. Witness, after this Johnny Marqueta and you
were introduced to the accused, what did the accused do after
the introduction?
A: He immediately drew his counterfeit dollar notes from
his wallet and right after that we identified ourselves as agents
of the Central Bank, sir.23
When the arrest of the petitioner was made, Labita did not have to rely
on the prearranged signal of the informer inasmuch as he (Labita) had
unhindered view and appreciation of what was then taking place right
before his eyes. Hence, the ten (10) counterfeit US $100 dollar notes are
admissible in evidence for the reason that the petitioner was caught
in flagrante delicto by the prosecution witnesses during the said buy-bust
operation. In other words, this is a case of a legally valid warrantless
arrest and seizure of the evidence of the crime.
In view of the foregoing, petitioner's allegation that he was framed-up by
the Central Bank agents does not deserve any consideration. This
hackneyed defense of alleged frame-up of the accused caught
in flagrante delicto during a buy-bust operation has been viewed with
disdain by the courts for it is easy to concoct and difficult to
prove.24Besides, there is a legal presumption that public officers,
including arresting officers, regularly perform their official duties. 25 That
legal presumption was not overcome by any credible evidence to the
contrary.
Apparently clutching at the last straws, as it were, petitioner also alleged
that he was tortured into signing the dorsal portions of the fake ten (10)
US $100 dollar notes confiscated from him by the arresting officers and
the "i". Other than his self-serving testimony, the petitioner failed to
prove his allegation of torture. Also, he did not file any criminal or
administrative action against his alleged tormentors. Suffice it to state
that petitioner's conviction for the crime charged in the information is
not anchored on the evidence obtained during his custodial investigation
which were disregarded by respondent appellate court for having been
obtained without the assistance of his counsel.
In sum, there is no reversible error in the subject Decision of the Court of
Appeals.
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. No. 11744
is hereby AFFIRMED. No costs.
SO ORDERED.
154
Bellosillo, Mendoza, Quisumbing and Buena, JJ., concur.
On FORGERY
Page
G.R. No. L-16806 December 22, 1961
SERGIO DEL ROSARIO, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
P. N. Stuart del Rosario for petitioner.
Office of the Solicitor General for respondent.
CONCEPCION, J.:
Accused of counterfeiting Philippine treasury notes, Sergio del Rosario,
Alfonso Araneta and Benedicto del Pilar were convicted by the Court of
First Instance of Davao of illegal possession of said forged treasury notes
and sentenced to an indeterminate penalty ranging from 8 years and 1
day to 10 years and 1 day of prision mayor, and pay a fine of P5,000,
without subsidiary imprisonment in case of insolvency, as well as a
proportionate part of the costs. On appeal, the judgment was affirmed
by the Court of Appeals, except insofar as the maximum of said
indeterminate penalty which was increased to 10 years, 8 months and 1
day of prision mayor. The case is before us on appeal by certiorari taken
by Sergio del Rosario.
It appears that, after showing to complainant Apolinario del Rosario the
Philippine one-peso bills Exhibits C, E and G and the Philippine two-peso
bill Exhibit H, and inducing him to believe that the same were counterfeit
paper money manufactured by them, although in fact they were genuine
treasury notes of the Philippine Government one of the digits of each of
which had been altered and changed, the aforementioned defendants
had succeeded in obtaining P1,700.00 from said complainant, in the City
of Davao, on June 23, 1955, for the avowed purpose of financing the
manufacture of more counterfeit treasury notes of the Philippines. The
only question raised in this appeal is whether the possession of said
Exhibits C, E, G and H constitutes a violation of Article 168 of the Revised
Penal Code. Appellant maintains that, being genuine treasury notes of
our government, the possession thereof cannot be illegal. We find no
merit in this pretense.lawphil.net
It is not disputed that a portion of the last digit 9 of Serial No. F-79692619
of Exhibit C, had been erased and changed so as to read 0 and that similar
erasures and changes had been made in the penultimate digit 9 in Serial
No. F-79692691 of Exhibit E, in the last digit in Serial No. D-716326 of
Exhibit G, and in the last digit 9 of Serial No.
D-716329 of Exhibit H.
Articles 160 and 169 of the Revised Penal Code read:
ART. 168. Illegal possession and use of false treasury or bank
notes and other instruments of credit. — Unless the act be one
of those coming under the provisions of any of the preceding
articles, any person who shall knowingly use or have in his
possession, with intent to use any of the false or falsified
instruments referred to in this section, shall suffer the penalty
next lower in degree than that prescribed in said articles.
ART. 169. How forgery is committed. — The forgery referred to
in this section may be committed by any of the following
means;
1. By giving to a treasury or bank note or any instrument
payable to bearer or to order mentioned therein, the
appearance of a true and genuine document.
2. By erasing, substituting, counterfeiting or altering by any
means the figures, letters, words or signs contained therein.
It is clear from these provisions that the possession of genuine treasury
notes of the Philippines any of "the figures, letters, words or signs
contained" in which had been erased and or altered, with knowledge of
such notes, as they were used by petitioner herein and his co-defendants
in the manner adverted to above, is punishable under said Article 168, in
relation to Article 166, subdivision (1), of the Revised Penal Code (U.S. vs.
Gardner, 3 Phil., 398; U.S. vs. Solito, 36 Phil., 785).
Being in accordance with the facts and the law, the decision appealed
from is, accordingly, affirmed, with costs against petitioner Sergio del
Rosario. It is so ordered.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera,
Dizon and De Leon, JJ., concur.
Paredes, J., took no part.
Art. 171 Falsification by Public Officer
(1) G.R. No. 107041 May 15, 1996
FELICIANO MALIWAT, petitioner,
vs.
HON. COURT OF APPEALS, Former Special First Division, and the
REPUBLIC OF THE PHILIPPINES, respondents.
PADILLA, J.:p
Assailed in this petition for review on certiorari under Rule 45 of the Rules
of Court is the decision1 of public respondent Court of Appeals (CA) dated
29 November 1991 in CA-G.R. Nos. 09428-09429, entitled People of the
Philippines versus Feliciano Maliwat, as well as the resolution dated 17
September 1992 which denied petitioner's motion for reconsideration.
The CA decision and resolution affirmed the decision of the Regional Trial
Court of Cavite City which convicted herein petitioner of falsification of
public documents as defined and penalized under Article 172 par. 1 of the
Revised Penal Code.
In a resolution dated 16 November 1992, this Court denied the present
petition for review for failure to comply with the Rules of Court and
Circular 28-91.2 Petitioner fried a motion for reconsideration which the
Court denied with finality on 18 January 1993.3 Petitioner followed with
a second motion for reconsideration which the Court noted without
action in its 3 March 1993 resolution.4
On 21 June 1993, petitioner filed a motion for declaration of mistrial,
pleading for the first time that his constitutional right to due process was
impaired when Judge Rolando Diaz rendered the judgment of conviction
in Criminal Cases Nos. 158-77 and 159-77, knowing fully well that he
(Judge Diaz) previously testified against the petitioner (then accused) in
said cases, while then the Clerk of Court of the Court of First Instance (CFI)
Branches 2 and 3 of Cavite City.
The Court issued a resolution5 on 7 July 1993 requiring Judge Diaz to
comment on the said motion for declaration of mistrial. On 14 July 1993,
petitioner filed a motion for the issuance of a temporary restraining order
and inhibition order against Judge Diaz. On 21 July 1993, the Court issued
a temporary restraining order enjoining Judge Diaz from conducting
further proceedings in Criminal Cases Nos. 158-77 and 159-77 (entitled
People of the Philippines vs. Feliciano Maliwat, Regional Trial Court,
Branch 17).6
Judge Diaz filed his comment on petitioner's motion.7 After careful
deliberations, the Court resolved on 14 March 1994 to lift the entry of
final judgment dated 3 February 1993 and to reinstate and give due
course to this petition for review. The parties were required to file their
respective memoranda as the Court ordered the RTC of Cavite City to
forward the records of the cases to the Court.8
155
The antecedent facts of the case may be summarized as follows:
Page
On 18 November 1977, two (2) separate informations were filed before
the then CFI of Cavite, Branch 3 (now RTC, Branch 17) charging petitioner
with the crime of Falsification of Public and Official Documents.
The first information, docketed as Criminal Case No. 158-77, reads as
follows:
That on or about the first week of November 1975, in
the City of Cavite, Republic of the Philippines and
within the jurisdiction of this Honorable Court, the
above-named accused, a private person, having
somehow obtained possession of a blank form of a
transfer certificate of title with Serial No. 1403456,
which is a public and official document, did, then and
there, wilfully, unlawfully and feloniously commit
acts of falsification, by then and there, filling, typing
and inserting on the blank spaces therein or causing
to be filled, typed and inserted on said public and
official document, the technical descriptions of a
parcel of land, Lot No. 5825 of the Imus Estate
Subdivision, Province of Cavite, with an area of
553,853 sq. meters including the corresponding title
number, and making it appear that the same is the
owner's reconstituted copy of Transfer Certificate of
Title No. RT-11850 of the Register of Deeds of the
Province of Cavite, with the herein accused as the
registered owner and that the said public and official
document was reconstituted by virtue of the order of
the Court of First Instance of Cavite dated November
13, 1963 and causing it to appear further that the
then Register of Deeds of the Province of Cavite,
Escolastico Cuevas had participated in the
preparation and signing of the said falsified Owner's
copy of TCT No. RT-11850, when in truth and in fact,
the said accused well knew that said parcel of land is
already registered in the name of Green Valley Realty
Corporation and that then Register of Deeds
Escolastico Cuevas never intervened in the
preparation and signing of said falsified document
much less did he authorize anybody to write his name
or affix his signature therein nor was there any
judicial proceedings for reconstitution nor order from
the Court regarding TCT RT-11850, and thereafter,
the above-named accused presented the said
falsified owner's duplicate copy of Transfer
Certificate of Title No. RT-11850, in the office of the
Register of Deeds of Cavite, for the purpose of
reconstituting the original thereof.
Contrary to law.9
The second information was docketed as Criminal Case No. 159-77 and
recited the same allegations as in the first information, except that the
number of the TCT involved in the second information was TCT No. RT-
11854 with serial no. 1403457, allegedly covering lot no. 5826 of the Imus
Estate Subdivision, with an area of 299,403 sq. meters.
Petitioner was arraigned on 2 August 1978 at which, he pleaded not guilty
to each charge. Thereafter, joint trial of the two (2) cases ensued.
On 12 February 1986, the trial court rendered a decision, later amended
on 28 June 1988, the dispositive part of which, as amended, reads as
follows:
WHEREFORE, in view of the foregoing, the Court finds
the accused Feliciano Maliwat guilty beyond
reasonable doubt of Falsification of Public
Documents as defined and penalized par. 1, Article
172 of the Revised Penal Code and he is hereby
sentenced to — in Crim. Case No. 158-77 to an
indeterminate prison term of from six (6) months
of arresto mayor as minimum, to four (4) years and
two (2) months of prision correccional as maximum
and to pay a fine of P5,000.00; in Crim. Case No. 159-
77 to an indeterminate [prison] term of from six (6)
months of arresto mayor as minimum, to four (4)
years and two (2) months of prision coreccional as
maximum and to pay a fine of P5,000.00 without
subsidiary imprisonment in case of insolvency and to
pay the costs in both instances.
SO ORDERED.10
The evidence for the prosecution sought to establish that sometime in
October 1975, Maliwat, accompanied by two (2) other persons, went to
the office of Atty. Milagros Santiago, then the acting Register of Deeds of
Cavite, to inquire about the originals of TCT Nos. T-11850 and T-11854
covering lots 5825 and 5826 of the Imus Estate Subdivision. The original
copies of said titles, however, could not be located by the vault keeper of
the office. Meanwhile, Atty. Santiago examined the owner's duplicate
copies presented to her by Maliwat and upon closer scrutiny, she noticed
the annotations on the lower part of the two (2) titles which read:
"reconstituted as per order of CFI/Cavite City dated November 13, 1963
Sgd. Escolastico Cuevas." The same annotation on the two (2) titles
aroused her suspicion because she was familiar with the customary
signature of Escolastico Cuevas, and the signatures of Cuevas appearing
in the two (2) titles,11 appeared to be forged.
Atty. Santiago did not confront Maliwat about the said signatures,
instead, she referred the latter to the Clerk of Court (of the CFI) to verify
the existence of such an order from the court records. Maliwat allegedly
obliged but did not return to the office of the Register of Deeds. That
same afternoon, Atty. Santiago went to see the Clerk of Court, Atty.
Rolando Diaz, who informed her that the court had no record of the said
orders.
On 6 November 1975, Atty. Santiago wrote a letter to the NBI Director to
report the existence of the alleged dubious certificates of title in
Maliwat's possession and requested for an investigation of the
matter. 12 The following year, Atty. Santiago went on sick leave and Atty.
Jorge Gutierrez was designated by the Land Registration Commission
Head Office to act in her stead from 26 January-17 February 1976. When
Atty. Santiago resumed her position on 17 February, she received a
letter13 from Atty. Gutierrez informing her that during her absence,
Feliciano Maliwat had applied for administrative reconstitution of title
and that he (Gutierrez) approved the same, based on the owner's
duplicate certificates of title submitted to him.
Concerned with these developments, Atty. Santiago informed the NBI
about the reconstitution of the two (2) alleged fake titles and requested
for an immediate investigation. The NBI acted swiftly and sent subpoenas
to Feliciano Maliwat, Atty. Gutierrez, Atty. Santiago and Atty. Cuevas who
all appeared and testified before NBI agent Tobias Lozada.
Agent Tobias Lozada's investigation14 revealed that on his first day in
office as acting Register of Deeds (of Cavite), Atty. Gutierrez met a person
in his office who introduced himself as Feliciano Maliwat. Maliwat
inquired why certain titles he had presented for reconstitution as early as
14 January 1976 had not been acted upon. Atty. Gutierrez had the papers
located and seeing no formal defects and believing them to be in order,
reconstituted the titles. Due to some typing errors, however, only one
title was delivered to Maliwat on that day.
The following day, when the deputy Register of Deeds Atty. Alejandro
Villanueva reported for work, Atty. Gutierrez recounted to him the events
of the previous day including the fact that he had reconstituted the titles
belonging to Feliciano Maliwat.
156
Atty. Villanueva informed Atty. Gutierrez that he should not have
reconstituted the titles since Atty. Santiago believed that they were
spurious and had in fact requested the NBI to look into the matter. Atty.
Page
Villanueva also informed Atty. Gutierrez that Maliwat had been
previously convicted for estafa thru falsification of public document and
was generally believed to be part of a criminal syndicate operating in
Cavite.
With this information, Atty. Gutierrez told the NBI that he made his own
investigation and discovered that Maliwat had subsequently tried to
obtain a tax declaration from the Provincial Assessor's Office (PAO) but
this was denied because the PAO personnel doubted the authenticity of
his titles. Upon verification with the LRC main office, he (Gutierrez) was
further informed that no such titles were originally issued to Maliwat. A
similar verification with the Bureau of Lands yielded the same results.
Atty. Gutierrez alleged that the formal requisites presented by Maliwat
for reconstitution were the following:
(a) a verified petition for issuance of new titles under R.A. 26 signed and
sworn to by Feliciano Maliwat before Salvador R. Aguinaldo, a notary
public for Manila and recorded in the latter's notarial book as Document
No. 1215 on Page 3 of Book No. 116 Series of 1976 (Annex D).
(b) Transfer Certificate of Title No. RT-11850 on Form
No. 1403456 (Annex E) and TCT No. RT-11854 on Form
No. 1403457 (Annex E-2).
Atty. Gutierrez properly identified these documents before the NBI.
Atty. Escolastico Cuevas, retired Register of Deeds of Cavite Province,
whose signatures on the certificates of title were allegedly forged,
testified before the court a quo denying his alleged signature appearing
on the two (2) titles, i.e. TCT No. RT-11850 on form no. 1403456 and TCT
No. RT-11854 on form no. 1403457. He also stated that he executed a
sworn statement15 before the NBI where he similarly made the same
denial. In that affidavit, he recalled that as witness for the prosecution in
a certain criminal case before Judge Coquia (of the CFI Manila) several
years before the present incident, he encountered the very same titles in
open court, and he testified that the signatures attributed to him in the
two (2) titles were not his, but were plain forgeries.
Maliwat, for his part, denied authorship of the two (2) forged titles and
claimed that he bought the two (2) parcels of land from a certain Benigno
T. Aseo as evidenced by a Deed of Absolute Sale16 dated 2 January 1963.
He registered the same and surrendered Aseo's titles to the Register of
Deeds for cancellation, after which he was issued two (2) new titles,
namely: TCT No. RT-11850 with Serial No. 603461 and RT-11854 with
Serial number 603462.17 Maliwat further claimed that he witnessed
Escolastico Cuevas, the then Register of Deeds, actually sign his name
over the said titles before they were issued to him.18
Thus, from the issuance of his titles in 1963 up to 1975, Maliwat averred
that he took physical possession of the lands covered thereby, and paid
real estate taxes thereon except in 1974 when he went to Canada. He
was not aware of any title adverse to his own titles and that he was
informed only during the trial that a certain Green Valley Corporation had
titles to said property and had been paying the real estate taxes thereon.
Although he had a location plan over the said properties, he did not have
them relocated anymore to determine whether or not there was an
overlap of titles.
In 1975, Maliwat alleged that certain buyers were interested in his
property. Together with a friend named Judge Alejo, they went to the
Register of Deeds to have his titles verified but the Register of Deeds
allegedly could not locate the original file copy of Maliwat's owner's
duplicate TCTs in their records. Maliwat was then informed that since the
Registry of Deeds was burned twice in the past, the file (original) titles
were presumably destroyed.
Maliwat admitted that in January 1976, he filed two (2) petitions for
reconstitution of the titles before the Register of Deeds, after which he
received a letter from then acting Register of Deeds Gutierrez requiring
him to submit the owner's duplicate copies before the Register of Deeds
as basis for the reconstitution of title. Maliwat claimed that Atty.
Gutierrez got back the letter19 when his wife and his lawyer, Moreno
Gaid, went to the office of Atty. Gutierrez to surrender the owner's
duplicate copies — which bore Serial Nos. 603461 and 603462
respectively, and not Serial Nos. 1403456 and 1403457 as evidenced by
a receipt20 issued by Atty. Gutierrez. Maliwat denied having any
knowledge of the existence of TCT-11850 RT and T-11854 RT with serial
nos. 1403456 and 1403457 which found their way into the Register of
Deeds of Cavite and maintained that what were surrendered to Atty.
Gutierrez were genuine owner's duplicate copies of TCT 11850-RT and T-
11854 RT bearing serial numbers 603461 and 603462.
After giving due course to the petition at bar, the Court painstakingly
reviewed the records to inquire and determine whether or not petitioner
was given a fair trial in the lower court.
The Court notes that from the time of petitioner's arraignment on 2
August 1978 up to the time the prosecution offered its evidence, and
rested, the hearings were either reset or cancelled no less than thirty (30)
times owing to a variety of reasons proffered by petitioner. As early as 20
May 1982, the case was set for hearing of the evidence for the defense,
but the case was reset for another eight (8) times, again owing to
petitioner's absences. Within said period, the defense also failed to file
any written objections to the prosecution's formal offer of evidence.
When Judge Diaz took over the case on 12 April 1983, Maliwat moved to
postpone for yet another eight (8) times, prompting Judge Diaz to issue
an order on 17 October 1983 declaring Maliwat to have waived his right
to present further evidence.
This was not, however, the end of the trial court's leniency in Maliwat's
favor. Owing to Maliwat's manifestation that he was suffering from
chronic malaria, Judge Diaz reconsidered21 and set the case for hearing
on 26 March 1984. When Maliwat and counsel still failed to appear on
said date, Judge Diaz deemed the case submitted for decision, but again
reconsidered and set another hearing on 11 June 1984 to allow the
defense to present additional evidence. When both accused and counsel
still failed to appear, Judge Diaz deemed the case submitted for decision
and required the parties to file their respective memoranda. Maliwat's
lawyer appealed this order to the Court of Appeals but the appeal was
deemed abandoned and dismissed on 24 October 1987.22
Maliwat's absences continued up to the promulgation of judgment by the
trial court which also had to be reset four (4) times. It was only after then
that Maliwat's counsel filed a motion for new trial before the trial court.
When the motion was denied on 14 September 1988, Maliwat appealed
the decision to the appellate court. Maliwat could have filed another
motion for new trial before the appellate court on the ground of newly
discovered evidence material to his defense under Rule 124 Sec 14 of the
new Rules of Criminal Procedure, but he did not. Instead he sought
affirmative relief by prosecuting his appeal from the judgment of
conviction until the Court of Appeals promulgated its decision affirming
the judgment of conviction of the court a quo.
Under the foregoing facts and circumstances, Maliwat certainly cannot
claim that he was denied due process. The records show that he did
testify on his own behalf and was cross-examined by the prosecution.
Admittedly, he was unable to adduce additional documentary evidence
that he claims would establish his innocence and which he now attaches
as annexes in his petition for review and memorandum of law before the
Court. But as noted earlier, it was Maliwat who had sought the
postponements and cancellations of the hearings for no less than forty
(40) times, from the date of his arraignment to the promulgation of
judgment, a fact that spanned almost a decade (1978 to 1988).
Although admittedly a belated plea, petitioner argues that there was a
mistrial since a vital prosecution witness, then Clerk of Court Rolando
Diaz, became the judge of the case and had no choice but to render a
judgment of conviction against him.
157
The records show that Rolando Diaz, then Clerk of Court of the CFI of
Cavite City, indeed testified for the prosecution. But as explained by the
Solicitor General, his testimony was limited to certain facts directly
Page
connected with or arising from the performance of his official duties as
Clerk of Court, without any reference to or pronouncement as to the
innocence or guilt of the accused. And as explained by Judge Diaz himself
in his comment before this Court dated 19 January 1994,
That the only participation of the undersigned Judge
as [then] Clerk of Court was to issue a certification
and the only testimony given in this case was, while
still a Clerk of Court of the Court of First Instance of
Cavite with station at Cavite City, he saw the accused
Feliciano Maliwat in his office after he was referred
to him by the Acting Register of Deeds of Cavite
Province, Atty. Milagros Santiago and who presented
to him two certificates of title and requested for the
production of the order annotated at the bottom of
the face of said certificates of title wherein it was
shown that the same had been reconstituted as per
order of the Court of First Instance dated November
30, 1983 and which after diligent search he could not
produce, as either the said order or a copy of the
petition were actually inexistent (sic) and he noticed
further that the signature of Escolastico Cuevas,
Register of Deeds of the Province of Cavite at the
time said order was issued was not the signature of
Atty. Cuevas with which he was familiar;
That the undersigned did not consider said testimony
as bias on his part against the herein accused and he
based his conviction of the accused in these cases not
on his prejudgment but rather on the over-all
evidence presented before the Court;
That accused did not question his actuations in these
cases during the trial and instead opted for the
continuation thereof thus perhaps believing that the
undersigned would render judgment according to the
evidence presented;
That he did not likewise question the actuations of
the Judge in his appeal to the Court of Appeals nor
on certiorari to this Honorable Court which denied
his petition for review for failure to comply the Rules
of Court in circular No. 28-91 in a resolution of
November 13, 1992 whereby entry of Judgment was
issued on February 3, 1993 by the Deputy Clerk of
Court and Chief Judicial Records Office and it was
only on June 21, 1993 did he file the instant motion
so as to hold in abeyance the promulgation of
judgment on the ground of mistrial;23
The guiding rule is that a judge must not only render a just, correct and
impartial decision but should do so in such a manner as to be free from
any suspicion as to his fairness, impartiality and integrity. As applied to
the case at bar, the attitude exhibited by Judge Diaz speaks more of
extraordinary leniency to the accused in granting all his requests for
postponements, even to the extent of reconsidering his orders declaring
the accused as having waived his right to present further evidence.
Under Rule 137, Sec. 1 of the Rules of Court, Judge Diaz' previous
actuations did not render him legally disqualified from sitting and
deciding the case. The suggestion that he is not wholly free, disinterested
and independent could have been buttressed by the exercise of his sound
discretion in voluntarily disqualifying himself. Yet, the manner in which
he exhibited himself during the trial negates any suspicion of
prejudgment in the case.
The only remaining issue then is whether or not petitioner's guilt has
been proven beyond reasonable doubt. In the interest of justice, the
Court treated the annexes attached to the petition which had been
marked as exhibits in the course of the trial but were not formally offered,
to form part of the records of this case. And after close scrutiny thereof,
the Court is of the considered opinion, and so holds, that petitioner
was correctly convicted of having committed the crime of falsification of
public documents. As clearly observed by the trial court which was
evidently in the best position to weigh and evaluate the evidence:
From the evidence submitted, there is no question
that the two certificates of title RT-11850 with serial
no. 1403456 and RT-11854 with Serial No. 1403457
Exhibits A and B are falsified; that as per finding of the
NBI, testified to by then Senior Agent Toribio
Lozada the same were among those intended for the
province of Cotabato but which were lost in transit as
per certification issued by Fortunato T. Pascual of the
Land Registration Commission (Exhs. Q and Q-2); and
a memorandum circular of the loss was issued by
then Acting Commissioner Gregorio Bilog Jr. of the
LRC (Exh. O) and the titles found their way into the
office of the Register of Deeds of Cavite Province
pursuant to a petition for reconstitution filed by the
herein accused on January 8, 1976 (Exh, R) and the
same were administratively reconstituted by then
Acting Register of Deeds of Cavite province Atty.
Jorge V. Gutierrez and for which the said owners
duplicate were surrendered to the office of the
Register of Deeds of Cavite province and new owner's
duplicates issued to the herein accused. The Court
cannot give credence thereto over the positive
identification made by Atty. Santiago in open Court
together with the confirmation made by the NBI
agent on the case, Atty. Tobias Lozada and the
former Register of Deeds, Atty. Escolastico Cuevas
whose signature thereon was forged. (emphasis
supplied).
Moreover, a closer scrutiny of the numbering of the
titles in question which accused alleges to have
gotten from the office of the Register of Deeds of
Cavite Province when he registered the sale executed
in his favor by Benigno T. Aseo shows the letters "RT"
precedes the number which the Court can take
judicial notice of that the letters RT stand for
reconstituted title and these initials with the
corresponding number follow the original number of
the title issued, but in this case the same is missing
and does not state the original number of the title
which is out of the ordinary procedure of the Register
of Deeds.
Likewise, it is quite absurd to see that Exhibits "A" and
"B" which are accountable forms bearing consecutive
serial numbers (1403456 and 1403457) respectively
would have been given nonconsecutive title numbers
(RT-11850 and RT-11854) and would have been
issued ten months apart (RT-11850) was issued on
November 15, 1983 while RT-11854 was issued on
January 18, 1963.
Moreover, RT-11850 does not beat the number of the
certificate of titles from which it was transferred
whereas TCT No. RT-11854 is supposed to have
canceled T-8331 and which apparently conflicts with
the allegation of the accused that he acquired these
two parcels of land from Benigno T. Aseo whose
ownership was evidenced by TCT No. T-2474 and T-
2475. If that were the case then, the said title number
would have appeared on Exhibits "A" and "B".
Anent, the testimony of the accused that the
certificate of title, the owner's duplicate of TCT No.
RT-11850 and RT-11854 which he presented for
158
reconstitution bore the serial Nos. 603461 and
663462 it will be noted that he only presented xerox
copies of the said titles without producing the
Page
originals and during the investigation at the NBI as
per report marked as Exhibits H and H-4 he never
 submitted the originals thereof. Whichever serial
numbers they bore, it appears that said title forms
were falsified in view of the attestations of the Land
Registration Commission that they were never
intended for the Register of Deeds of Cavite Province.
(emphasis supplied)24
Additionally, the Court observes that the titles presented by Maliwat for
reconstitution were allegedly owner's duplicate reconstituted titles, since
the numbers were preceded by the letters RT. This fact, assuming it to be
true, negates petitioner's allegation that these titles were obtained from
the Registry of Deeds by canceling Aseo's (the vendor's) titles which were
not reconstituted titles. It also bears stressing that there must have been
a petition for reconstitution, whether judicial or administrative, before
Maliwat could be issued said reconstituted titles. But no such petition
was produced. From Maliwat's testimony, he averred that he obtained
the said titles when Aseo's titles were canceled by virtue of a deed of
absolute sale between him and Aseo.
The Court also observes that Exh. 1-A, which is TCT Nos. RT-11850 and
Exh. 4-A which is TCT No. RT-1185425were made to appear by accused as
reconstituted titles. Thus, whether or not what were issued to the
accused bore SN 603461 and 603462 or SN 1403456 and 1493457 is of
no moment — because both titles should never have been reconstituted
titles in the first place. More so, because the evidence 26 shows that
Judicial Forms with SN 603461 and 603462 were issued to the Registry of
Deeds of Cotabato province in May 1963. Hence, the titles in Maliwat's
possession cannot be genuine.
The Court further notes that the signatures of Escolastico Cuevas in SN-
1403456; SN-1403457 and SN-603461 and SN-603462 were not the same
and, as plain to the naked eye, very different from the specimen signature
of Register of Deeds Escolastico Cuevas27 executed before the NBI. It is
ineluctable, therefore, that these titles were falsified and the evidence
points to Maliwat as the author of the falsification under par. 1 of Article
172 in relation to Article 171 of the Revised Penal Code.
As correctly observed by the Court of Appeals:
When Judicial forms 109-D, with Serial Nos. 1403456
and 1403457 were filled up, issued and made to
appear in form, as Transfer Certificates of Titles Nos.
RT-11850 and RT-11854, respectively, both in the
name of Feliciano Maliwat to show his ownership of
lots Nos. 5825 and 5826 which are included in the
Imus Estate Subdivision although they were not,
falsification as defined in paragraph 7 of Article 171
of the Revised Penal Code was committed.
Again, when in the same forms it was made to appear
that they were signed and issued by Register of Deeds
Escolastico Cuevas, although in truth and in fact he
has neither signed, issued nor filled up the same,
falsification penalized under paragraphs 1, 2, 3 and 4
of the same Article of the Revised Penal Code has also
been committed.
The fact that no proof was introduced to prove or
show as to who committed the falsification
abovementioned, does not exempt or exculpate the
herein accused-appellant from liability. The accused-
appellant is the person who stood to benefit by the
falsification of the documents in question as such, "it
is presumed that he is the material author of the
falsifications." (Sarep vs. Sandiganbayan, 177 SCRA
440; 449).28
The settled rule is that in the absence of satisfactory explanation, one
found in possession of and who used a forged document is the forger and
therefore guilty of falsification.29
If a person had in his possession a falsified document and he made use of
it (uttered it), taking advantage of it and profiting thereby, the clear
presumption is that he is the material author of the falsification.30
WHEREFORE, the petition is hereby DENIED and the decision of the Court
of Appeals in CA G.R. Nos. 09428-29 dated 29 November 1991, which
upholds the amended decision of the Court of First Instance of Cavite
dated 28 June 1988 in Criminal Cases Nos. 158-77 and 159-77 is hereby
AFFIRMED in toto. Costs against petitioner.
SO ORDERED.
Bellosillo, Vitug and Hermosisima, Jr., JJ., concur.
Kapunan, J., is on leave.
(2) G.R. No. L-42557 December 7, 1935
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
LORENZO REODICA and SINFOROSO CORDERO, defendants.
LORENZO REODICA, appellant.
Claudio R. Sandoval for appellant.
Office of the Solicitor-General Hilado for appellee.
AVANCEÑA, C.J.:
The appellant was sentenced by the Court of First Instance of Palawan,
for the falsification of a public document, to an indeterminate penalty of
from two years of prision correccional, as the minimum, to eight years
and one day ofprision mayor, as the maximum.
About the month of July, 1931, the appellant was municipal treasurer of
Bacuit, Province of Palawan. The information alleges that he falsified the
municipal payroll corresponding to that month by making it appear
therein that one, Sinforoso Cordero, rendered services as municipal
secretary from July 23 to July 31, which was not true, for said Sinforoso
Cordero was absent from the municipality of Bacuit from July 23, 1931,
and did not return until 1933.
The evidence discloses that this municipal payroll was submitted to the
appellant by the municipal president, already prepared, together with a
latter (Exhibit 3) authorizing him to pay Sinforoso Cordero's salary for the
second said Sinforoso Cordero was granted a leave of eight days from July
23 to July 31. When this payroll was received by the appellant on July 23,
it was already signed and payment thereof approved by the president,
with the latter's certification that the services therein mentioned were
rendered.
This being the case, the appellant is not guilty of the falsification of this
pay roll, as alleged in the information, because the president and not he
is the one who certifies that the services of the officers mentioned
therein were in fact rendered.
However, in view of the leave granted to Sinforoso Cordero from July 23
to July 31, for the purpose of the payment of his salary, this amounted to
his having rendered services during this period.1awphil.net
While the information likewise states that the appellant certified in the
payroll that paid Sinforoso Cordero's salary on July 31, 1931, it does not
allege, however, that this was not true, and although it appears that the
159
appellant made this payment on July 23, he was not charged Cordero
having been in fact paid, it was immaterial whether this was done on July
23 of July 31.
Page
Such alterations, even granting that the appellant was responsible
therefor, do not effect either the veracity of the document of the effects
thereof, and do not constitute the crime of falsification. (Decisions of the
Supreme Court of Spain of February 25, 1885, and June 21, 1886.)
For the foregoing considerations, the appealed judgment is reversed, and
the appellant acquitted, with costs de oficio. So ordered.
Abad Santos, Hull, Vickers, and Recto JJ., concur.
(3) G.R. No. L-67472 July 3, 1987
DARIO CABIGAS Y CACHO, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
PARAS, J.:
Under separate informations both dated September 20, 1982, the Office
of the Tanodbayan charges Dario Cabigas y Cacho and Benedicto Reynes
y Lopez on two (2) counts, with the crime of Falsification of Official
Documents allegedly committed in the following manner:
(1) Criminal Case No. 6529
That on or about March 29, 1982, in the Municipality of Makati,
Metro Manila, and within the jurisdiction of this Honorable
Court, accused Dario Cabigas y Cacho and Benedicto Reynes y
Lopez, both public officers being then employed as Securities
Custodian and Securities Receiving Clerk, respectively, of the
Land Bank of the Philippines, Makati Branch, a government-
owned and/or controlled corporation, conspiring together,
taking advantage of their official position and committing the
crime herein charged in relation to their Office, did then and
there willfully, unlawfully and feloniously falsify ... Securities
Delivery Receipt dated March 9, 1982 ... evidencing, among
others, receipt by them in their official capacity of Treasury Bills
bearing Serial No. A-000064 up to A000082 of the 795th series,
by then and there making alterations and/or intercalations
thereon to the effect that only treasury bills bearing SN-A-
000064 to A-000076 were received by them on March 9, 1982,
for the purpose of hiding or concealing the loss while in their
custody of six (6) treasury bills bearing SN-A-000077 to A-
000082 of the 795th series, thereby changing the meaning of
said Securities Delivery Receipt.
(2) Criminal Case No. 6938
That on or about March 30, 1982 in the Municipality of Makati,
Metro Manila, and within the jurisdiction of this Honorable
Court, accused Dario Cabigas y Cacho and Benedicto Reynes y
Lopez, both public officers, being then employed as Securities
Custodian and Securities Receiving Clerk, respectively, of the
Land Bank of the Philippines, Makati Branch, a government-
owned and/or controlled corporation, conspiring together, and
taking advantage of their official positions and committing the
crime herein charged in relation to their office, did then and
there willfully, unlawfully and feloniously falsify the Daily
Report of Securities/Documents under custody dated March
30, 1982, which is an official document evidencing the
securities transactions and/or operations of the Makati Branch
of the aforenamed bank, and which it was their official duty to
prepare and submit to their superiors, by then and there
indicating in said document, for the purpose of hiding the loss
or disappearance while in their custody of six (6) treasury bills
of the 795th series, with face value of P500,000.00 each, that
the beginning balance of securities under their custody as to
volume was 1,533 pieces, when, the ending balance as to
volume in the previous day's report was 1,539 pieces and that
the beginning balance as to face value in the previous day's
report was P610,095,000.00 and thereafter falsely stating in
the footnote of the same document that the reduction was due
to "Adjustment on Erroneous Entry (incoming) dated 3/09/82"
the truth being that the six (6) pieces of treasury bills with
aggregate face value of P3,000,000.00 were not erroneously
entered in either the Securities Delivery Receipt or the Daily
Report of Securities /Documents under Custody, both dated
March 9, 1982, but were discovered to have been missing after
an inventory conducted by accused on March 20, 1982, thereby
making an untruthful statement in a narration of facts in
violation of par. 4 of Articles 171 of the Revised Penal Code.
After arraignment and trial, the Sandiganbayan rendered its decision in
both cases, the dispositive portion of which reads as follows:
WHEREFORE, in view of the foregoing, judgment is hereby
rendered:
1. In Criminal Case No. 6529 ACQUITTING the accused Dario
Cabigas y Cacho and Benedicto Reynes y Lopez, with costs de
officio and ordering their bail bonds in the said case cancelled.
2. In Criminal Case No. 6938:
a) Finding the accused Dario Cabigas y Cacho GUILTY
beyond reasonable doubt as principal of the crime of
Falsification of a Public or Official Document defined
and penalized under Article 171, paragraph No. 6 of
the Revised Penal Code without any mitigating or
aggravating circumstances; and applying the
indeterminate Sentence Law, hereby sentencing him
to an indeterminate penalty ranging from TWO (2)
YEARS, FOUR (4) MONTHS and ONE (1) DAY of prision
correccional as minimum, to EIGHT (8) YEARS and
ONE (1) DAY of prision mayor, as maximum, to pay a
fine of P2,000.00 without subsidiary imprisonment in
case of insolvency, and to pay the costs.
b) ACQUITTING accused Benedicto Reynes y Lopez,
with costs de officio, an ordering his bail bond
cancelled.
SO ORDERED.
The instant petition is an appeal, interposed by herein
petitioner Dario Cabigas y Cacho from the foregoing decision in
Criminal Case No. 6938.
The following pertinent facts are not disputed: Petitioner Dario
Cabigas is the Securities Custodian of the Securities Section of
the Land Bank of the Philippines assigned to its branch at
Makati, Metro Manila. Assisting him in his work is Benedicto
Reynes, the securities receiving clerk. The Fund Management
Department (FMD) of the Land Bank of the Philippines is
engaged in money market and securities trading transactions.
The securities which are in the form of treasury notes and bills
are in turn deposited with the Securities Section of the Land
Bank of the Philippines, Makati Branch.
On March 9, 1982, the Fund Management Department,
160
delivered to the Securities Section, Makati Branch of the Land
Bank of the Philippines, for safekeeping, 112 pieces of treasury
notes and treasury bills worth P46,000,000.00 and for which a
Page
copy of the Securities Delivery Receipt (SDR) Exh. D, was issued
to the Fund Management Dept. while the original of the same
was retained by the Securities Section. Included in the
securities received on March 9, 1982 are 19 pieces of treasury
bills with Serial Nos. A-000064 to A-000082, 795th series, in the
denomination of P500,000.00 each, or a total amount of
P9,500,000.00. After receiving the securities, the accused
would prepare the Daily Report on Securities/Documents
Under Custody (DR SDUC) evidencing the securities
transactions and operations of the Makati Branch of the Land
Bank of the Philippines. This has been the routine procedure
being adopted by the accused in the performance of his duty as
a Security Custodian.
On March 29, 1982, in the course of their inventory of treasury
notes and bills deposited with them, Cabigas and Reynes
discovered the loss of six (6) treasury bills of the 795th series
with a total value of P3,000,000.00. Upon verification that
Securities Delivery Receipt (SDR) dated March 9, 1982, Exhibit
C, was the source document of the missing securities which
were delivered to them for safekeeping, accused Reynes
crossed out with a red ink in the said document the last two
digits "82" and the addition after them of the figure "76" on the
serial numbers A-000064 to A-000082 of the 19 treasury bills of
the 795th series with a total maturity value of P9,500,000.00.
Then at the bottom of the SDR Cabigas placed the notation "For
adjustment" and below it the date "3/29/82." Then upon
Cabigas' suggestion, Reynes reported the incident to their
branch manager, Aurora Pigram When the DR SDUC for March
29, 1982 was prepared, the number of treasury bills of the
795th series stood at 1,539 pieces with a total face value of
P610,095,000.00.
The following day, Reynes prepared a draft report for March
30, 1982 by Carrying forward the ending balance of the treasury
bills of the 795th series reflected in the DR SDUC dated March
29, 1982. However, instead of following the draft prepared by
Reynes, Cabigas prepared his own report-DR SDUC (Exh. "G ")
dated March 30, 1982 wherein he indicated 1,533 pieces of
treasury bills of the 795th series with a total amount of
P607,095,000.00 which the latter claimed to be the number of
securities of the 795th series in his possession at the time of
the preparation of said report. At the bottom of DR SDUC (Exh.
"G") Cabigas place the notation "Adjustment on Erroneous
Entry (incoming) dated March 9, 1982" as legend of the asterisk
(*) sign which appears after the figure "1,533."
On May 20, 1982, a certain Rosie Chua was found to be
authenticating with the Central Bank of the Philippines a
treasury bill of the 795th series with Serial No. A-000082 in the
amount of P500,000.00. Upon investigation by NBI agents, it
was discovered that the Land Bank of the Philippines Makati
Branch Manager, Aurora Pigram was the one who negotiated
the said treasury bill with the Gainsbo Commodities. Further
investigation revealed that the five (5) missing treasury bills
with series numbers A-000077 to A-000081 were negotiated by
Pigram with the Home Savings Bank to secure a loan. The Land
Bank immediately sought the assistance of the NBI in
investigating the case. On May 24, 1982, Cabigas and Reynes
were investigated by NBI agents. After the investigation,
Cabigas and Reynes were arrested for having allegedly
conspired together in falsifying the Securities Delivery Receipt
(SDR) dated March 9, 1982 (Exh. "C") and the Daily Report on
Securities/Documents under custody (DR SDUC) Exh. G dated
March 30, 1982 and for which the corresponding informations
were filed with the Sandiganbayan. Both accused were
acquitted in Criminal Case No. 6529. However, accused Dario
Cabigas y Cacho was convicted in Criminal Case No. 6938, while
his co-accused was acquitted therein.
In convicting accused Dario Cabigas y Cacho, the
Sandiganbayan stated in its now assailed Decision that
In the case of Exhibit "G", the Daily Report on
Securities/Documents Under Custody (DR SDUC) for
March 30, 1982, the alleged falsification consists of
the following entries (figures) pertaining to treasury
bills: "1,533", "607,095,000.00", "1,533 and
607,095,000.00 "marked on the document as Exhibit
G-1, and the legend of the asterisk (*) sign at the
bottom portion reading, "Adjustment on erroneous
entry (incoming) dated 3/09/82" marked as Exhibit G-
2. The numbers "1,533" and "607,095,000.00"
represent the volume and the total face/maturity
value, respectively, of the treasury bills supposedly in
the custody of the Securities Section as of March 30,
1982. Those entries were falsifications, the
prosecution maintains, because the correct number
of treasury bills deposited with the Securities Section
as of that date was 1,539 valued at P610,095,000.00;
that the said figures were altered to "1,533 and
607,095,000.00," respectively, to conceal the loss or
disappearance of 6 treasury bills worth
P3,000,000.00, and that the footnote at the bottom
portion of the document (Exh. G-2) was written to
attribute the reduction in the number of treasury bills
from "1,539" to "1,533" to mistake or error in the
entries in the Securities Delivery Receipt of March 9,
1982 (Exh. C).
The discrepancy in the figures is indeed apparent. In
the DR SDUC for March 29, 1982 (Exh. F), the ending
balance on the number of treasury bills at the close
of office hours on that day was 1,539 pieces with a
total face/maturity value of P610,095,000.00 (Exh. F-
1). Accordingly, the beginning balance on the number
of the same treasury bills on the following day, March
30, 1982, must also be 1,539 pieces with a total
face/Maturity value of P610,095,000.00. But as it was
made to appear in the DR SDUC for March 30, 1982
(Exhs. G and G-1), the beginning and ending balances
on the number and value of treasury bills for that
date were 1,533 pieces and P607,095,000.00
maturity value.1avvphi1
The question now is, who caused the alterations and
what was caused the alteration and what was the
purpose behind them.
xxx xxx xxx
By changing the original figures in the draft of the DR
SDUC from "1,539" and "610" to "1,533" and "607"
respectively, and causing Reynes to type the final
copy of the DR SDUC on the basis of the corrected
draft Cabigas caused the document to show that the
treasury bills in their custody as of March 30, 1982
were 1,533 pieces with a total face/maturity value of
P607,095,000.00. By placing, likewise, an asterisk (*)
sign after the figure "1,533" and writing the words
"Adjustment on erroneous entry (incoming) dated
3/09/82" as legend of the asterisk (*) sign, Cabigas
caused to make it appear that the discrepancy of 6
treasury bills valued at P3,000,000.00 was due to
error in the entries in the Securities Delivery Receipt
of March 9, 1982(Exh. C). Considering that the said
SDR of March 9, 1982 (Exh. C) did not contain any
error but reflected the number of securities received
by them on that day, it is obvious that Cabigas made
the alterations in Exhibit G and the misleading
161
footnote (Exh. G-2) in order to suppress, hide or
conceal the fact that the 6 treasury bills comprising
the discrepancy were lost while in their custody.
Page
 The alterations amounted to falsification of Exhibit G,
a public or official document, under paragraph No. 4,
Article 171, of the Revised Penal Code, by making
untruthful statements in a narration of facts. As
Securities Custodian, Cabigas was under obligation to
disclose in the said document the correct number
and total maturity value of the securities under his
official custody as of March 30, 1982.
It is a settled doctrine that in falsification by an employee under
par. No. 4 of Article 171, which reads-"by making untruthful
statements in a narration of facts,"-the following elements
must concur-
(a) That the offender makes in a document untruthful
statements in a narration of facts;
(b) That he has a legal obligation to disclose the truth
of the facts narrated by him;
(c) That the facts narrated by the offender are
absolutely false; and
(d) That the perversion of truth in the narration of
facts was made with the wrongful intent of injuring a
third person.
Herein petitioner contends that the foregoing elements are not
present in the case at bar. The correction of the figure from
1,539 to 1,533 pieces to conform to the actual number of
treasury under custody is not falsification because it was made
to speak the truth (US vs. Mateo, 25 Phil. 324). The placing of
an asterisk (*) sign after the figure "1,533" and writing the
words, "Adjustment on erroneous entry (incoming) dated
3/09/82" as legend of the asterisk sign, contrary to the ruling of
the respondent court, was not effected to hide or conceal the
fact that the missing 6 treasury bills were lost. It would be far
more difficult to detect or discover the loss if there was no
asterisk or footnote in the DR SDUC Exh. G. In fact, the evidence
discloses that immediately upon discovery of the loss on March
29, 1982, petitioner reported the matter to his immediate
supervisor, Estela L. Espiritu and Branch Manager of the
Securities Section, Aurora Pigram. This shows good faith and
lack of motive on the part of petitioner to conceal the said loss.
Petitioner further argues that the Daily Report on
Securities/Documents under Custody (DR SDUC) is a form
purely devised and adopted by him. This form was never
required, neither was it introduced nor prescribed by the Land
Bank. Petitioner, therefore, was not under "legal obligation" to
disclose in the DR SDUC or SDR, the correct number and total
maturity value of the securities under their official custody as
of a given date. It is purely optional on the part of petitioner to
use the said forms.
The Honorable Solicitor General recommends that the accused
be acquitted because —
There is nothing to show the DR SDUC dated March 30, 1982,
Exh. G, for the alleged falsification of which petitioner was
convicted in Criminal Case No. 6938 is a form the submission of
which was or is required by law. In the petition for review,
petitioner points out that as testified by him the form was not
an official form of the Land Bank. The form was his own
initiative adopted "for our own convenience and also for
reference purposes." Petitioner therefore, was not under legal
obligation to disclose or reveal the truth by said DR SDUC. In
the absence of such obligation and of the alleged wrongful
intent, defendant cannot be legally convicted of the crime of
falsification of public document with which he is charged.
(People vs. Quasha, 93 Phil. 333).
WHEREFORE, on ground of reasonable doubt, the decision of the
Sandiganbayan in Criminal Case No. 6938 is hereby REVERSED and
another one rendered ACQUITTING the petitioner, Dario Cabigas y Cacho.
Cost de oficio.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr.,
Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ.,
concur.
(4) G.R. No. L-33254 & G.R. No. L-33253 January 20, 1978
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LICERIO P. SENDAYDIEGO, JUAN SAMSON and ANASTACIO
QUIRIMIT, defendants. JUAN SAMSON and defendant-appellant.
PROVINCE OF PANGASINAN, offended party-appellee,
vs.
HEIRS OF LICERIO P. SENDAYDIEGO, defendants-appellants. *
Norberto J. Quisumbing for appellant Sendaydiego.
Donato & Rillera for appellant Samson.
Office of the Solicitor General for appellee.
AQUINO, J.:
In these three cases of malversation through falsification, the
prosecution's theory is that in 1969 Licerio P. Sendaydiego, the provincial
treasurer of Pangasinan, in conspiracy with Juan Samson y Galvan, an
employee of a lumber and hardware store in Dagupan City, and with
Anastacio Quirimit, the provincial auditor, as an accomplice, used six (6)
forged provincial vouchers in order to embezzle from the road and bridge
fund the total sum of P57,048.23.
The provincial voucher in these cases has several parts. In the upper part
with the legend "ARTICLE OR SERVICE" the nature of the obligation
incurred is indicated. That part is supposed to be signed by two officials
of the provincial engineer's office and by the governor's representative.
The middle part of the voucher contains five numbered printed
paragraphs. Paragraph 1 is a certificate to be signed by the creditor. It is
stated therein that the creditor vouches that the expenses "were actually
and necessarily incurred". In the instant cases paragraph 1 was not signed
presumably because it is not relevant to the purchase of materials for
public works projects.
Paragraph 2 is a certification that the expenses are correct and have been
lawfully incurred. It is signed by the provincial engineer.
Paragraph 3 contains these words: "Approved for pre-audit and payment,
appropriations and funds being available therefore." This is signed by the
provincial treasurer.
Paragraph 4 is a certification which, as filed up in Exhibit K, Voucher No.
10724 dated February 28, 1969, reads:
162
I certify that this voucher has been pre-audited and
same may be paid in the amount of sixteen thought
Page
seven hundred twenty-seven and 52/100
 (P16,727.52) in cash or in check, provided there is
sufficient fund cover the payment.
This is signed by the auditor.
Paragraph 5 is a certification signed by the provincial treasurer that the
account mentioned in the provincial engineer's certification "was paid in
the amount and on the date shown below and is chargeable as shown in
the summary hereof. ... ." It may be noted that the provincial treasurer
signs two part of the voucher.
Following paragraph 5, and as referred to therein, is the receipt of the
signed by the creditor. As accomplished in Exhibit K, the receipt reads (it
was signed according to the prosecution by Juan Samson, a point which
is disputed by him):
Received this 31st day of March, 1969, from L P.
Sendaydiego, Province of Pangasinan the sum of
seven hundred twenty-seven pesos & 52/100
(16,727.52) in full payment of the above stated
account, which I hereby certify to be correct. Paid by
Check No. .................................
CARRIED CONSTR. SUPPLY CO. By: (Sgd.) JUAN
SAMSON
According to the prosecution, Samson also signed on the left margin of
the six vouchers below the stamped words: "Presented to Prov.
Treasurer. By Juan Samson."
Voucher No. 10724 (Exh. K). — This Provincial voucher, dated February
28, 1969, evidences the payment of PI 6,727.52 to the Carried
Construction Supply Co. of Dagupan City for lumber and hardware
materials supposedly used in the repair of the bridge in Barrio Libertad at
the Umingan-Tayug road in Pangasinan along the Nueva Ecija boundary
(Exh. K). The voucher makes reference to invoice No. 3327 and other
supporting papers.
The falsity of that provincial voucher is proven by the following intances:
(a) That there was no project for the repair of the bridge at Barrio Libertad
(P. 1; Exh. Z).
(b) That the amount of P16,727.52 was never received by the Carried
Construction Supply Co The alleged official receipt No. 3025 of the
company dated March, 1969 (Exh. K-6) is forged.
(c) That the lumber and materials mentioned in Exhibit K were never
delivered by the company to the provincial government
(d) That in the provincial voucher, Exhibit K, and in the supporting
requisition and issue voucher (RIV) No. 2206 dated January 29, 1969 (Exh.
A), covering the same lumber and hardware ma the signatures of the
following office were forged: Salvador F. Oropilla senior civil engineer;
Rodolfo P. Mencias, supervising civil engineer Victoriano M. Sevilleja,
acting provincial engineer, and Ricardo B. Probincias, chief of equipment
of the governor's office. These four office denied that their signatures in
the two vouchers, Exhibits A and B, are their genuine signatures.
(e) That the imprint of the rubber stamp on Exhibits A and B, containing
the words "Approved: For and By Authority of the Governor (signed)
Ricardo B. Primicias, Chief of Equipment", is not the imprint of the
genuine rubber stamp used in Primicias office.
(f) That charge invoice No. 3327 of the Carried Construction Supply Co.
dated February 18, 1969, containing a description and the prices of the
lumber and hardware material (Exh. B), is fake because, according to
Ambrosio Jabanes, the company's assistant manager, the company's
invoice No. 3327 was issued to the Mountain Agricultural College (Exh. II-
1). Oropilla denied that his alleged signature on Exhibit B is his signature.
(g) That three other documents, supporting the provincial voucher (Exh.
K), were also forged. Those documents are the taxpayer's cate dated
February 10, 1969 (Exh. C) stating that no tax is due on the goods sold in
the fake invoice No. 3327 and the two certificates as to the samples of
lumber allegedly purchased from the Carried Construction Supply Co.,
(Exh. D and E). Narciso P. Martinez, a district forester, denied that his
signatures in Exhibits D and E are his signatures.
(h) That Angelo C. Manuel the checker of the provincial auditor's office,
denied that his signature on the left margin is his signature (Exh. A-10).
The forged character of provincial voucher No. 10724 (Exh. K) is
incontrovertible.
Other five forged voucher. — Five other provincial vouchers evidencing
supposed payments of certain amounts to the Carried Construction
Supply Co. for lumber and hardware materials supposingly used in the
repair of other bridges were also falsified. These five vouchers are the
following:
(1) Voucher No. 11995 dated April 29, 1969
evidencing the payment of P14,571.81 for number
and hardware materials allegedly used in the repair
of Bayaoas bridge at the Urbiztondo-Pasibi Road
(Exh. O).
(2) Voucher No. 11869 dated April 15, 1969
evidencing the payment of P5,187.28 'or lumber and
hardware materials allegedly used in the repair of the
Panganiban bridge at the UminganTayug Road (Exh.
P)
(3) Voucher No. 11870 dated April 28, 1969
evidencing the payment of P6,290.60 for lumber and
hardware materials allegedly used in the repair of the
Cabatuan bridge at the Umingan-Guimba Road (Exh.
Q).
(4) Voucher No. 11871 dated April 15, 1969
evidencing the payment of P9,769.64 for lumber and
hardware materials allegedly used in the repair of the
Casabar bridge at the Binalonan-San Manuel Road
(Exh. R).
(5) Voucher No. 11872 dated April 15, 1969
evidencing the Payment of P4,501.38 for lumber and
hardware materials allegedly used in the repair of the
Baracbac bridge at the Umingan-Guimba Road (Exh.
S).
As in the case of voucher No. 10724 (Exh. K), Oropilla, Mencias, and
Primicias declared that their signatures in the said five vouchers are not
their genuine signatures. Samson, who hand-carried the said vouchers for
processing, did not turn over to the provincial auditor's office the papers
supporting the said vouchers after the vouchers had been pre-audited.
Hence, those supporting papers could not be presented in evidence.
Jabanes, the aforementioned assistant manager of the Carried
Construction Supply Co., testified that the lumber and hardware
materials mentioned in the five vouchers were never delivered by his
company to the provincial government. The charge invoices mentioned
in the said vouchers were cancelled invoices issued to the Mountain
Agricultural College. The projected repairs of the bridges were fictitious.
163
The company's cashier testified that the company never received the
payments for the lumber and hardware materials. The receipts
evidencing payments (Exh. K-6, KK to KK-4 are fake official receipts. The
Page
cashier produced in court the genuine official receipts (Exh. LL to LL-7)
bearing the serial numbers of the fake receipts. The genuine receipts do
not refer to transactions with the provincial government.
Samson played a stellar role in the processing of the six vouchers. He used
to be an employee of the pro treasurer's office. He resigned and worked
with several firms doing business with the provincial government. In 1969
he was the collector of the Carried Construction Supply Co. He
represented that firm in its dealings with the offices of the governor,
provincial auditor, provincial engineer and provincial treasurer. He was
personally known to those provincial officials and the employees of their
offices (21-22 Sendaydiego's brief).
The six (6) forged provincial vouchers, with their respective supporting
papers, were hand-carried by Samson. He delivered the papers to
Carmencita Castillo, the ledger clerk in the provincial engineer's office,
for recording and for her signature (Ekh. DD).
Thereafter, Samson brought the papers to the provincial treasurer's
office. Marcelo Crusade, a laborer in that office who performed the chore
of recording the vouchers and payrolls, recorded Vouchers Nos. 11869,
11871 and 11872 (Exh. P, R and S). Crusadas initials appear on the upper
lefthand corner of the said vouchers with the date 4/17/69.
Samson signed on the left margin of the vouchers to indicate that he
presented them to the provincial t r's office. Crusade said that after
Samson had presented the said papers to him, Samson brought them to
Ricardo Baraan, the book-keeper of the provincial treasurer's office for
processing and for the latter's signature (Exh. WW).
From Baraan's office, Samson hand-carried the vouchers to the provincial
auditor's office. He asked Virginia Cruz, a clerk to record the same (Exh.
CC).
Afterwards, Samson asked Donato Rosete the assistant provincial
treasurer, to initialled the voucher After Rosete had initialled the
vouchers, Samson went to the provincial treasurer's office where the
amounts covered by the voucher were paid by Sendaydiego to him in
cash (instead of by check) as representative of the Carried Construction
Supply Co. (Exh. EE). He received the payments on March 31 and April 29
and 28 (four payments on that date) as shown on the face of the
vouchers.
The signature of Sendaydiego and Quirimit, the auditor, on the said six
vouchers are admittedly authentic. Sendaydiego signed the vouchers
ahead of Rosete, his assistant. Sendaydiego's defense is that he signed
the vouchers in the honest belief that the signatures therein of the
provincial office concerned were genuine because the voucher had been
pre-audited and approved by the auditor.
Samson denied the authenticity of his two signatures on each of the six
vouchers showing that he received from Sendaydiego the amounts
covered thereby as representative of the lumber and hardware firm (Exh.
OO to TT) and that he presented the vouchers to the provincial s treasurer
's office (Exh. 6-12 — Samson). Sendaydiego testified that Samson's
signatures are genuine.
In connection with the six vouchers, Sendaydiego, Samson and Quirimit
were charged with malversation through falsification in three docketed
as follows:
1. Criminal Case No. 23349 involving provincial
voucher No. 10724 dated February 28, 1969 in the
sum of P16,7Z7.52 (Exh. X), L-33252.
2. Criminal Case No. 23350 involving provincial
vouchers Nos. 11869, 11870, 11871 dated April 15
(two dates) 28 and 15, 1969 for the respective
amounts of P5,187.28, P6,290.60, P9,769-64 and
P4,501.38 (four vouchers, Exh. P, Q, R and S), now L-
33253.
3. Criminal Case No. 23351 involving provincial
voucher No. 11955 dated April 29, 1969 in the sum of
P14,571.81 (Exh. O), now L-33254.
After trial the lower court acquitted the auditor, Quirimit and found
Sendaydiego and Samnson guilty of malversation through falsification of
public or official documents imposing each of the following penalties:
(1) In Criminal Case No. 23349, an indeterminate
sentence of twelve years, ten months and twenty-
one-days, as minimum, to eighteen years, two
months and twenty-one days of reclusion temporal,
as maximum, and a fine of P16,727.52 and to
indemnify solidarity the provincial government of
Pangasinan in the same amount;
(2) In Criminal Case No. 23350, the penalty
of reclusion perpetua and a fine of P29,748.90 and to
indemnify solidarily the provincial government of
Pangasinan in the same amount; and
(3) In Criminal Case No. 23351, an indeterminate
sentence of twelve years, ten months and twenty-
one days, as minimum, to eighteen year two months
and twenty-one days of reclusion temporal as
maximum , and a fine of P14,571.81 and to indemnify
solidarity the provincial government of Pangasinan in
the same amount.
Sendaydiego and Samson appealed to this Court.
Sendaydiego died on October 5, 1976. His appeal as to his criminal
liability was dismissed. Death extinguished his criminal liability remained.
The resolution of July 8, 1977 dismissing Sendaydiego's appeal read s
follows:
The death of appellant Sendaydiego during the
pendency of his appeal or before the judgment of
conviction rendered against him by the lower court
became final and executory extinguished his criminal
liability meaning his obligation to serve the personal
or imprisonment penalties and his liability to pay the
fines or pecuniary penalties (Art. 89[1], Revised Penal
Code; 1 Viada, Codigo Penal, 4th Ed., 565).
The claim of complainant Province of Pangasinan for
the civil liability survived Sendaydiego because his
death occurred after final judgment was rendered by
the Court of First Instance of Pangasinan, which
convicted him of three complex crimes of
malversation through falsification and ordered him
to indemnify the Province in the total sum of
P61,048.23 (should be P57,048.23).
The civil action for the civil liability is deemed
impliedly instituted with the criminal action in the
absence of express waiver or its reservation in a
separate action (Sec. 1, Rule 111 of the Rules of
court). The civil action for the civil liability is separate
and distinct from the criminal action (People and
Manuel vs. Coloma, 105 Phil. 1287; Roa vs. De la Cruz,
107 Phil. 8).
When the action is for the recovery of money and the
164
defendant dies before final judgment in the Court of
First Instance, it shall be dismissed to be prosecuted
in the manner especially provided' in Rule 87 of the
Page
Rules of Court (Sec. 21, Rule 3 of the Rules of Court).
 The implication is that, if the defendant dies after a
money judgment had been rendered against him by
the Court of First Instance, the action survives him. It
may be continued on appeal (Torrijos vs. Court of
Appeals, L-40336, October 24, 1975; 67 SCRA 394).
The accountable public officer may still be civilly
liable for the funds improperly disbursed although he
has no criminal liability (U S. vs. Elvina, 24 Phil. 230;
Philippine National Bank vs. Tugab, 66 Phil. 583).
In view of the foregoing, notwithstanding the
dismissal of the appeal of the deceased Sendaydiego
insofar as his criminal liability is concerned, the Court
Resolved to continue exercising appellate jurisdiction
over his possible civil liability for the money claims of
the Province of Pangasinan arising from the alleged
criminal acts complained of, as if no criminal case had
been instituted against him, thus making applicable,
in determining his civil liability, Article 30 of the Civil
Code (Note: The lower court had issued an order of
attachment against him on January 13, 1970 for the
sum of P36,487 and in the brief for said appellant,
there is no specific assignment of error affecting the
civil liability fixed by the trial court.) and, for that
purpose, his counsel is directed to inform this Court
within ten (10) days of the names and addresses of
the decedent's heirs or whether or not his estate is
under administration and has a duly appointed
judicial administrator. Said heirs or administrator will
be substituted for the deceased insofar as the civil
action for the civil liability is concerned (Secs. 16 and
17, Rule 3, Rules of Court). According to
Sendaydiego's brief, he had a wife and ten children
named Arturo, Licerio, Jr., Prospero, Regulo,
Eduardo, Cesar, Nola, Aida, Wilfredo and Manolo
(deceased).
The title of this case should be amended to show its
civil aspect by adding thereto the following. Province
of Pangasinan vs. Heirs of Licerio P. Sendaydiego.
Sendaydiego's appeal will be resolved only for the purpose of showing his
criminal liability which is the basis of the civil liability for which his estate
would be liable for which his estate would be liable.
Sendaydiedo's appeal; civil liability of his estate. — In view of
Sendaydiego's death, it is not necessary to resolve his first two
assignments of error, wherein he assails the imposition of reclusion
perpetua as a cruel and unusual penalty and wherein it is argued that
there is no complex crime of malversation through falsification
committed by negligence.
In the third assignment of error, it is contended that the trial court erred
in allowing private prosecutors Millora and Urbiztondo to prosecute the
case thereby allegledly subjecting the accused to proceedings marked by
undue publicity, pre-judgment, bias and political self-interest.
Atty. Vicente D. Millora, a senior member of the provincial board actually
handled the prosecution of the case from the preliminary investigation,
which started on June 5, 1969, up to the termination of the trial on July
29, 1970.
At the commencement of the preliminary investigation, the counsel for
the accused auditor inquired whether Atty. Millora was authorized by the
provincial board to act as private prosecutor in representation of the
province of Pangasinan, the offended party. Atty. Millora replied that
there was a board resolution designating him as a private prosecutor.
The acting provincial commander, who filed the complaints manifested
to the trial court that he had authorized Atty. Millora to act as private
prosecutor (4-8 tsn June 5, 1969).
Another defense counsel filed a written motion to inhibit Millora and the
others as private prosecutors. The lower court denied the motion in its
order of June 18, 1969 (p. 40, Record of Criminal Case No. 23350).
After the termination of the p investigation conducted by the lower court,
the provincial fiscal of Pangasinan and the city final of Dagupan City filed
three informations against the accused all dated November 4, 1969.
At the commencement of the trial on February 23, 1970 the city fiscal, an
assistant provincial fiscal and Atty. Millora, the private prosecutor,
appeared for the prosecution. The city fiscal moved "that the private
prosecutor (Millora) be authorized to conduct the examination subject to
our (the fiscal's) control and supervision". The trial court granted the
motion (7 tsn).
At the hearing on April 23, 1970 the same city fiscal moved that Atty.
Urbiztondo be authorized to examine the prosecution witnesses under
his supervision and control The trial court granted the motion (155 tsn).
The record shows that at every hearing the provincial fiscal, the city fiscal
or an assistant fiscal were present together with the private prosecutor.
Under the foregoing circumstances, we believe that there was substantial
compliance with the rule that the criminal action should be "prosecuted
under the direction and control of the fiscal" and that "the provincial
fiscal shall represent the province" in any court (Sec.4, Rule 110, Rules of
Court; sec. 1683, Revised Administrative Code).
The observation of Sendaydiego's counsel, that the imposition
of reclusion perpetua "could have been the result of the undue publicity,
prejudgment, bias and political interest which attended the proceedings
", is not well-founded. The trial court's decision dispels any doubt as to
its impartiality. The evidence in the three cases is mainly documentary.
The unassailable probative value of the documents involved rather than
bias and prejudice, was the decisive factor on which the trial court
anchored the judgment of conviction.
Moreover, as already adverted to, Sendaydiego's death had rendered
moot the issue as to the propriety of the imposition of reclusion perpetua.
And, as will be shown later, reclusion perpetua cannot be imposed in
these cases because the crimes committed were not complex.
The other seven assigmments of error made by Sendaydiego's counsel
refer to the trial court's conclusion that Sendaydiego and Samson are
guilty beyond reasonable doubt of malversation through falsification or,
specifically, that the provincial treasurer, in signing the six vouchers,
evinced "malice or fraud and that there must have been connivance
between" the two.
Several lances indicate that Sendaydiego conspired with Samson. Donato
N. Rosete, the assistant provincial treasurer, testified that, contrary to
the usual procedure, he affixed his initial to paragraph 3 of the vouchers
after Sendaydiego had signed it. Rosete adhered to that unusual
procedure because the interested party, Samson who hand-carried the
vouchers, approached Rosete after he (Samson) had conferred with the
provincial treasurer and Samson told Rosete to initial the voucher
because it was areglado na (already settled) since the treasurer had
already signed the voucher (54 tsn July 3, 1969).
Rosete's testimony and affidavit confute appellant Sendaydiego's
contention that the trial court erred in finding that he signed the
questioned vouchers before Rosete had placed his initial in them. After
165
the treasurer had signed the voucher, Rosete's duty to initial it was only
ministerial (75 tsn July 3, 1969).
Page
The bookkeeper in the treasurer's office testified that he indicated in the
vouchers that the amounts covered thereby should be paid in cash. That
indication was made by means of the symbol "A-1-1" placed at the
bottom of the vouchers under the column "Account Number". The
bookkeeper was in. instructed by Samson to place that symbol Samson
told him that he (Samson) had an understanding with Treausrer
Sendaydiego that the payment should be made in cas. There were
instances when the treasurer insisted on payment by check to creditors
other than Juan Samson.
The cash payments were made to Samson in the inner office of the
provincial treasurer where the cashier was summoned to make the cash
payments (11-12 ton July 9, 1969; p. 11, Exh. EE). As noted by the trial
court, it was unusual that the payments should be made in the treasurer's
office when that was a ministerial chore of the cashier.
The cash payments were made to Samson even if Samson had no power
of attorney from the Carried Construction Supply Co. authorizing him to
receive the payments. The space in the vouchers for the signature of the
witness, who should be present when the payments were received, was
blank. The treasurer did not bother to have a witness to attest to the
payments or to require the exhibition of Samson's residence certificate.
Another apt observation of the trial court is that the forged character of
the six vouchers would have been unmasked by the supposed creditor,
Carried Construction Supply Co., if the payments had been made by
means of checks. The company on receiving the checks would have
returned them to the treasurer because it knew that there was no reason
to make any payments at all. The trial court said that the cash payments
prove Sendaydiego's collusion with Samson.
Sendaydiego's counsel assails the lower court's finding that there was a
conspiracy between the provincial and Samson as shown by the fact that
the amounts covered by the vouchers were paid to Samson by the cashier
in the treasurer's inner office. That point was testified to by Rosete, the
assistant provincial treasurer.
The cashier, Napoleon Ulanday, would have been the beet witness on
how and where the payments were made. However, Ulanday died before
the preliminary investigation was started. On May 27, 1969, after the
anomalies were unearthed, he wrote a letter to the provincial , stating
that he paid to Samson the amounts covered by five vouchers in the of
Salazar K. Misal and Josefina E. Pulido (Exh. 13).
Rosete was in a position to state that the cash payments were made to
Samson in the treasurers inner office because his table was near the main
door of the treasurers office or was about fifteen meters away (18 tsn).
Rosete always knew when the cashier went to the treasurers office
because the cashier was oned by means of a buzzer (long buzz), and when
the cashier came out of the treasurer's office, he would be holding the
voucher (12-13 tsn).
Sendaydiego's counsel that no gross negligence can be imputed to the
treasurer (malversation is a crime which can be committed by means
of dolo or culpa and the penalty in either case is the same). This
argument does not deserve serious consideration because the facts
proven by the prosecution show that he had a tieup with Samson and
that he acted maliciously in signing the six questioned vouchers.
The last contention put forward for Sendaydiego is that, because the trial
court acquitted the auditor, then the treasurer's exoneration follows as a
matter of course. We see no merit in that contention because the
evidence for the prosecution against Sendaydiego is not the same as its
evidence against the auditor. For that reason the auditor was charged
only as an accomplice, whereas, the treasurer was charged as a principal.
The auditor based his defense on the undeniable fact that the treasurer
had approved the six vouchers "for pre-audit and payment" before they
were passed upon by the auditor. In short, the auditor was misled by the
treasurer's certification which the auditor apparently assumed to have
been made in good faith when in truth it was made in bad faith.
We are convinced after a minutiose examination of the documentary and
oral evidence and an unprejudiced consideration of the arguments of
Sendaydiego's counsel that his criminal liability was established beyond
reasonable doubt and, therefore, the civil liability fo his estate for the
amounts malversed was duly substantial.
Samson's appeal. — Samson's brief has no statement of facts. He
contends that the trial court erred in disregarding the expert testimony
that his signatures on the vouchers are not his signature; in finding that
he forged the vouchers and received the proceeds thereof, and in relying
on circumstantial evidence as proof of conspiracy.
As a preliminary issue, Samson argues that Judge Eloy B. Bello should
have inhibited himself "in fairness to the accused, in the interest of
justice, and as a gesture of delivadeza" because he had conducted the
preliminary investigation.
Our searching study of the recrod fails to sustain Samson's insinuation
that he was prejudiced by the fact that Judge, who conducted the
preliminary investigation, was the one who tried the case and convicted
him. Judge Bello tried the case fairly. His conduct of the trial does not
show that he had already prejudged their guilt.
Section 13, Rule 112 of the Rules of court, in allowing a Court of First
Instance to conduct a preliminary investigation, does not disqualify it
from trying the case after it had found probable cause and after the fiscal,
as directed by the Court, had filed the corresponding information. The
rule assumes that the Judge, who conducted the preliminary
investigation, could impartially try the case on the merits.
We cannot assume that judges as a rule are opinionated and narrow-
minded insomuch that they would invariably be iron-bound by their
findings at the preliminary investigation.
The case of a Judge of the Court of First Instance, who conducts a
preliminary investigation and then tries the case on the merits, is similar
to a situation where an inferior court conducts a preliminary investigation
of a grave or less grave offense falling within the concurrent jurisdiction
of the Court of First Instance and tghe inferior court. In such a case, the
inferior court after terminating the preliminary investigation is not
obligated (por delivadeza) to remand the case to the Court of First
Instance for trial. The inferior court has the option to try the case on the
merits (People vs. Palmon, 86 Phil. 350; Natividad vs. Robles, 87 Phil. 834;
People vsw. Colicio, 88 Phil. 196). The assumption is that the inferior
court can try the case without any ingrained bias or undue prejudice.
Samson sought to prove, through Lieutenant Colonel Jose G. Fernandez,
retired chief of the Constabulary crime laboratory, a handwriting expert,
that his signatures on the vouchers are not his signatures.
Fernandez found that the questioned signatures and the alleged genuine
signatures (exemplars) of Samson have fundamental differences. The
expert concluded that the questioned signatures and the exemplar
signatures of Samson were not written by one and the same person (Exh.
20).
After examining the questioned and genuine signatures and analysing the
evidence and contentions of the parties, we find that the expert is correct
in declaring that (as admitted by the trial court) there are radical
differences between the questioned and authentic signatures.
But the expert is in error in concluding that Samson did not forge the
questioned signatures or in implying that Samson had no hand in the
writing thereof.
166
The truth is that Samson used two forms of signature. His supposed
genuine signatures found in his residence certificates, income tax returns
and the genuine office receipt of the Carried Construction Supply Co. are
Page
"in an arcade form or rounded form of writing". The surname Samson is
encircled.
On the other hand, the questioned signatures used in Samson's
transactions with the provincial government are in angular form; his
surname is not encircled, and the questioned signatures terminate in
angular and horizontal strokes.
Samson was consistent in his fakeries. Knowing that the six vouchers
evidenced fictitious transactions, he used therein his fake signature, or
the signature which is different from his signature in genuine documents.
He used his forged signatures in the six fake official receipts of the Carried
Construction Supply Co., stating that the amounts covered by the six
vouchers were received by him (Exh. K-6, KK to KK-4). the expert admitted
that a person may have two forms of signature (186 tsn July 16, 1970).
Signatures may be deliberately disguised with the dishonest intention of
denying the same as and when necessary (Mehta, Identification of
Handwriting and Cross Examination of Experts, pp. 4th Ed., 1970, p. 224;
Harrison, Suspect Documents 418-419).
Sendaydiego himself testified that the questioned signatures of Samson
in the six vouchers were Samson's signatures (94-99 tsn July 31, 1969).
Fernandez, the handwriting expert, declared that the questioned
signatures of Samson in the vouchers were written by only one person
(264-265 tsn July 16, 1970).
The evidence conclusively proves that Samson, as the representative or
collector of the supposed creditor, Carried Construction Supply Co.,
hand-carried the vouchers in question to the offices of the provincial
engineer, treasurer and auditor and then back to the treasurer's office
for payment. He actually received the cash payments. Under those
circumstances, Samson is presumed to be the forger of the vouchers.
The rule is that if a person had in his possession a falsified document and
be made use of it (uttered it), taking advantage of it and profiting thereby,
the presumption is that he is the material author of the falsification. This
is especially true if the use or uttering of the forged documents was so
closely connected in time with the forgery that the user or possessor may
be proven to have the capacity of committing the forgery, or to have close
connection with the forgers, and therefore, had complicity in the forgery.
(U.S. vs. Castillo, 6 Phil., 453; People vs. De Lara, 45 Phil. 754; People vs.
Domingo, 49 Phil. 28; People vs. Astudillo, 60 Phil. 338 People vs.
Manansala, 105 Phil. 1253).
In the absence of a satisfactory explanation, one who is found in
possession of a forged document and who used or uttered it is presumed
to be the forger (Alarcon vs. Court of Appeals, L-21846, March 31, 1967,
19 SCRA 688; People vs.Caragao, L-28258, December 27, 1969, 30 SCRA
993).
Samson's use of one form of signature for his crooked transactions with
the provincial government and another form of signatures of his valid
transactions or papers shows the deviousness of the falsifications
perpetrated in these cases. (Note that Sendaydiego signed the
certification in the first voucher, Exhibit K, stating that proceeds thereof
were paid to
Samson but Sendaydiego did not sign the same certification in the other
five forged vouchers, Exhibits O, P, Q, R and S).
As to the question of conspiracy, the statement of Samson's on page 19
of his brief, that "the trial court made absolutely no finding of any
supposed conspiracy' between Samson and Sendaydiego, is not correct.
We have already noted that the trial court explicitly stated that the
circumstance that Sendaydiego signed the six vouchers ahead of his
assistant shows that there was "malice or fraud" on the part of
Sendaydiego and that there was conivance between Samson and
Sendaydiego when the proceeds of the vouchers were paid to Samson in
Sendaydiego's inner office, instead of in the cashier's office (p. 23, 26,
Decision, Appendix to Samson's brief). The trial court said that the fact
that Sendaydiego allowed payment in cash shows "his collission with
Samson (Ibid, p. 26).
Samson's contention that the trial court merely conjectured that he had
received the proceeds of the vouchers is not well taken. The trial court's
finding on that point is based on very strong circumstantial evidence
(assuming that it was not proven that Samson signed the vouchers).
Samson vehemently argues that there is no evidence that the total sum
of P57,048. 23 paid under the six vouchers "was really misappropriated".
He asserts that the six vouchers are genuine (although he contends that
his signatures thereon are forgeries) and that there is no proof that the
amounts covered thereby were not paid for the construction materials
shown in the six vouchers were never delivered by the company (Exh.
HH).
These contentions appear to be untenable in thelight of the declaration
of Jabanes, the assistant manager of Carried Construction Supply Co., the
alleged supplier, that the materials shown in the six vouchers were never
delivered by the company (Exh. HH).
And Leticia Sevilleja (wife of the provincial engineer), who was employed
as cashier of the carried Construction Supply Co., denied that Samson
turned over to the company the proceeds of the six vouchers which he
was supposed to have collected for the company from Sendaydiego. The
six vouchers appear to be fake principally because they evidence fictitious
sales of construction materials.
Under the said circumstances, it cannot be contended that there was no
malversation after Sendaydiego admtte that Samson acknowledged in
the six vouchers that he received from Treasurer Sendaydiego the total
sum of P57,048.23.
The assertion of Samson's counsel on pgae 29 of his brief, that the finding
as to his guilt is based on a shaky foundation or is predicated on
circumstances which wre not proven, is not correct.
Recapitulations. — In resume, it appears that the provincial treasurer
wants to base his exculpation on his belief that in the six vouchers the
signatures of Samson and the officials in the provincial engineer's office
appeared to be genuine and on the fact that the auditor had approved
the vouchers. The tresurer claimed that he acted in good faith in
approving the payments of the proceeds of the vouchers to Samson as
the representative of the supplier, Carried Construction Co.
On the other hand, Samson, by impugning his signatures in the vouchers,
denied that he received the said amounts from the cashier of the
treasurer's office.
These conflicting versions of the treasurer and Samson have to be
resolved in the light of the inexpugnable fact that Samson had hand-
carried the voucehrs and followed up their processing in the offices of the
provicial government the construction materials described in the six
vouchers and denied having received from Samson the prices of the
alleged sales.
The result is the Samson's denial of his signatures in the six vouchers and
in the six receipts (Exh. K-6 and KK to KK-4) and the provicial treasurer's
pretension of having acted in good faith or having committed an honest
mistake have to be disbelieved.
The unavoidable conclusion is that Sendaydiego and Samson were in
cahoots to defraud the provincial government and to camouflage the
167
defraudation by means of the six vouchers which have some genuine
features and which appear to be extrinsically authentic but which were
intrinsically fake.
Page
Penalties. — The trial court and the assumed that three complex crimes
of malversation through falsification of public documents were
committed in this case. That assumption is wrong.
The crimes committed in these three cases are not complex. Separate
crimes of falsification and malversation were committed. These are not
cases where the execution of a single act constitutes two grave or less
grave felonies or where the falsification was used as a means to commit
malversation.
In the six vouchers the falsification was used to conceal the malversation.
It is settled that if the falsification was resorted to for the purpose of
hiding the malversation, the falsification and malversation are separate
offenses (People vs. Cid, 66 Phil 354; People vs. Villanueva, 58 Phil. 671;
People vs. Geralde 52 Phil. 1000; People vs. Regis, 67 Phil. 43).
In the Regis case, supra where the modus operandi is similar to the
instant cases, the municipal treasurer made it appear in two official
payrolls dated April .30 and May 2, 1931 that some persons worked as
laborers in a certain street project at Pinamungahan, Cebu. In that way,
the two amounts covered by the payrolls, P473.70 and P271.60, were
appropriated and taken from the municipal funds. As a matter of fact, no
such work was done in the said street project and the persons mentioned
in both payrolls had not performed any labor.
It was held in the Regis case, that the falsification and malversation did
not constitute a complex crime because the falsifications were not
necessary means for the co on of the malversations. Each falsification and
each malversation constituted independent offenses which must be
punished separately.
The municipal treasurer was convicted of two falsifications and two
malversations. Four distinct penalties were imposed.
In the instant cases, the provincial , as the custodian than of the money
forming part of the road and bridge could have malversed or
misappropriated it without falsifiying any voucher. The falsification was
used as a device to prevent detection of the malversation.
The falsifications cannot be regarded as constituting one continuing
offense impelled by a single criminal impulse.
Each falsification of a voucher constitutes one crime. The falsification of
six vouchers constitutes six separate or distinct offenses (People vs.
Madrigal-Gonzales, 117 Phil. 956).
And each misappropriation as evidenced by a provincial voucher
constitutes a separate crimes of malversation were committed. Appellant
Samson is a co-principal in each of the said twelve offenses.
As already stated, he is presumed to be the author of the falsification
because he was in possession of the forged vouchers and he used them
in order to receive public monies from the provincial treasurer.
He is a co-principal in the six crimes of malversation because he conspired
with the provincial treasurer in committing those offenses. The trial court
correctly ruled that a private person conspiring with an accountable
public officer in committing malversation is also guilty of malversation
(People vs. Rodis, 105 Phil. 1294; U.S. vs. Ponte, 20 Phil. 379; U.S. vs. Dato
and Lustre, 37 Phil. 359; U.S. vs. Dowdell, 11 Phil. 4; People vs. Caluag, 94
Phil. 457).
Note that a different rule prevails with respect to a stranger taking part
in the commission of parricide or qualified theft. In such cases, the
stranger is not guilty of parricide or qualfied theft but only of murder or
homicide, as the case may be, and simple theft, by reason of paragraph
3, article 62 of the Revised Penal Code (People vs. Patricio, 46 Phil. 245).
Falsification of a public document committed by a private person is
punished in article 172(1) of the Revised Penal Code by prision
correccional in its medium and maximum periods and a fine of not more
than P5,000.
For the malversation of the sum of P5,187.28 and P4,501.38, respectively
covered by vouchers Nos. 11869 and 11872 (Exh. P and S), the penalty
provided in paragraph 2 of article of the Revised Penal Code is prision
mayorminimum and medium.
For the malversation of the sums of P6,290.60 andP9,769.64, respectively
covered by vouchers Nos. 1187 and11871 (Exh. Q and R) the penalty
provided in paragraph 3 of article 217 is prision mayor maximum
to reclusion temporal minimum.
For the malversation of the sums of P16,727.52 and 10995 (Exh. K and O),
the penalty provided in paragraph 4 of article 217 is reclusion
temporal medium and maximum.
In each of the malversation cases, a fine equal to the amount malversed
should be added to the imprisonment penalty.
In the twelve cases the penalty should be imposed in the medium peiod
since there are no modifying circumstances (Arts. 64[1] and 685, Revised
Penal Code). Samson is entitled to an indeterminate sentence.
WHEREFORE, Samson is convicted of six crimes of falsification of a public
document and six crimes of malversation.
In lieu of the penalties imposed by the trial court, he is sentenced to the
following penalties:
For each of the six falsification of the vouchers (Exh. K, O, P, Q, R and S),
Samson is sentenced to an indeterminate penalty of two (2) years
of prison correccional minimum, as minimum, to four (4) years of prision
correccionalmedium, as maximum, and to pay a fine of three thousand
pesos.
For the malversation of the sum of P16,727.52 covered by voucher No.
10724 (Exh. K), Samson is sentenced to an indeterminate penalty of
twelve (12) years of prision mayor maximum, as minimum, to seventeen
(17) years of reclusion temporal medium, as maximum; to pay a fine in
the amount of P16,727.52, and to indemnify the province of Pangasinan
in the same amount (Criminal Case NO. 23349, L-33252).
For the malversation of the sum of P14,571.81 covered by voucher No.
11995 (Exh. O), Samson is sentenced to an indeterminate penalty of
twelve (12) years of prision mayor maximum, as minimum, to seventeen
(17) years of reclusion temporal medium, as maximum; to pay a fine in
the sum of P14,571.81, and to indemnify the province of Pangasinan in
the same amount (Criminal Case No. 23351, L-33254).
For the malversation of the sum of P6,290.60 covered by voucher No.
11870 (Exh. Q), Samson is sentenced to an indertiminate penalty of nine
(9) years of prision mayor medium, as minimum, to thirteen (13) years
of reclusion temporal minimum, as maximum; to pay a fine of P6,290.60,
and to indemnify the province of Pangasinan in the same amount
(Criminal Case No. 23350, L-33253).
For the malversation of the sum of P9,769.64 covered by voucher No.
11871 (Exh. R), Samson is sentenced to an indeterminate penalty of nine
(9) years of prision mayor medium, as minimum, to thirteen (13) years
of reclusion temporal minimum, as maximum; to pay a fine of P9,769.64,
and to indemnify the province of Pangasinan in the same amount
168
(Criminal Case No. 23350, L-33253).
For the malversation of the sum of P5,187.28, covered by voucher No.
Page
11869 (Exh. P), Samson is sentenced to an indeterminate penalty of five
(5) years of prision correccional maximum, as minimum, to eight (8)
of prision mayor minimum, as maximum; to pay a fine of P5,187.28, and
to indemnify the province of Pangasinan in the same amount (Criminal
Case No. 23350, L-33253).
For the malversation of the sum of P4,501.38 covered by voucher no.
11872 (Exh. S), Samson is sentenced to an indeterminate penalty of five
(5) years of prision correccional maximum, as minimum, to eight (8) years
of prision mayor minimum, as maximum; to pay a fine of P4,501.38, and
to indemnify the province of Pangasinan in the same amount (Criminal
Case No. 23350, L-33253).
In the service of the twelve penalties meted to Samson, the threefold
limit provided for in article 70 of the Revised Penal Code should be
observed (People vs. Escares, 102 Phil. 677), meaning that the maximum
penalty that he should serve is three times the indeterminate sentence
of twelve (12) years to seventeen (17) years, the severest penalty
imposed on him, or thirty-six (36) years to fifty-one (51) years (see People
vs. Peñas, 68 Phil. 533).
The maximum duration of his sentences should not exceed forty (40)
years (Penultimate par. of art. 70; People vs. Alisub, 69 Phil. 362; People
vs. Concepcion, 59 Phil. 518, 68 Phil. 530 and 69 Phil. 58).
The estate of the late Licerio P. Sendaydiego is ordered to indemnify the
province of Pangasinan in the sum of P57,048.23.
Samson and the said estate are sojidarily liable for the said indemnity
(Art. 110, Revised Penal Code). Samson should pay one-half of the costs.
SO ORDERED.
Antonio, Concepcion, Jr., and Santos, JJ., concur.
Fernando, J., took no part.
Separate Opinions
BARREDO, J., concurring:
While I concur in the judgment finding the accused-appellant Juan
Samson guilty of six separate crimes each of falsification and
malversation as elucidated in the very well studied and ably prepared
main opinion of our distinguished colleague, Mr. Justice Aquino, and
while I further agree that said appellant and the estate of the deceased
Licerio P. Sendaydiego are lointtv and solidarity liable to the Province of
Pangasinan for the amounts stated ir. the dispositive portion of the
decision herein, I have my own legal basis for holding that the estate of
Sendaydiego is indeed liable for the, said amount&
To start with, I find it difficult to share the view that "notwithstanding the
dismissal of the appeal of the deceased Sendaydiego (he died during the
pendency of this appeal) insofar as his liability is concerned, ...
Sendaydiego's appeal will (nevertheless) be resolved only for the purpose
of showing his liability which is the basis of the civil liability for which his
estate is liable." It seems to me that there is some degree of irreconcilable
incontency in dismissing a case, thereby acquitting the accused therein
of criminal liability because of death or any other cause not amounting to
a finding that he had not committed the act complaint of and at the same
nine holding that he or his estate has in civil liability based on his criminal
liability. It is to me clearly obvious that the dismiss of an appml due to
death of the appellant, from a judgment of conviction by a trial court does
not result in the affirmance of sruch conviction contrary to the general
rule when an appeal in a case is dismissed but, on the contrary, it
amounts to an acquittal of the appellant based on the constitutionally
mandated presumption of innocence in his favor that can be overcome
only by a finding of guilt, something that his death prevents the court
from making. In a sense, the death of an accused-appellant has the effect
of his total absolution by God from any earthly responsibility for the
offense as such, a divine act of clemency no human court can reverse,
qualify, much less disregard. It is an inherent inalienable human right of
every individual not to be subject to imputation of criminal liability in any
sense, unless his guilt of the crime charged against him has been duly
proven beyond reasonable doubt in a duly held criminal proceeding. The
intervention of death of the accused in any case is an injunction by fate
itself that no criminal liability whatsoever should be imposed on him, not
only because from the very nature of the situation, it is impossible to do
so but also because it would be a juridical absurdity to contemplate such
a legal concept. In short, death ex-anguishes the crime, and, corollarily,
all its consequences.
Indeed, it is but logical to hold that the civil liability resulting from criminal
liability under Artide 100 of the Revised Penal Code would have no basis
unless criminal responsibih"ly is fixed or exists. It has been said that civil
liabilitv under this provision "is rooted in the criminal liability". 1 In this
connection and adjectively, Section 1 of Rule 111 stipulates that "when a
criminal action is instituted, the civil action for recovery of civil liability
arising from the offense charged is impliedly instituted with the criminal
action, etc." But it must be emphasized that these legal precepts refer
exclusively to the civil liability consequent of the offense in its juridical
essence as a crime, it being elementary on our legal system that the same
act my give rise to civil responsibility independent of that resulting from
the commission of the act as a crime.
Thus it is entirely possible for one to be fee from civil ability directly
rooted in the act viewed as a violation of the penal law and still be liable
civilly for it considered otherwise as an infringement of a right based on
a created by contract or by laws other than the criminal law. A consistent
host of jurisprudence, too to the bench and bar to need particular citation
hem exists upholding the right of a party aggrieved by an act in nature to
indemnity, restitution or reparation, notwithstanding the absence or
failure of the usual prosecution, in view of the provisions of the pertinent
articles of the Civil Code on Human Relations and Section 2 of Rule III.
Stated the same act or got Of facts can be the subject of obligations arise
at the same time thru the different modes contemplated in Article 1157
of the Civil Code providing that "obligations arise from (1) lave, (2)
contracts; (3) quasi-contracts; (4) acts or omissions punished by law, and
(5) quasi-delicts." Thus, that an act or omission is punished by law,
thereby making the actor civilly liable therefor, does not exclude
simultaneous liability of the for the same act viewed also as one giving
rise to an obligation under the another law, and/or under a contract,
quasi-contract or quasi-delict, with the sole qualification that the
aggrieved party cannot recover damages more than once for the same
act or omission. (See Art. 2177, Civil Code.)
I am confident that the points I have just discussed are beyond debate.
And as I see it my learned colleagues in the majority and I are agreed that
in the light of the legal Principles I have stated, there can be no doubt
that the estate of Sendaydiego could be held liable for the acts of the d
that can be proven to have damaged the Province of Pangasinan in spite
of the of Sendaydiego's appeal by reason of his death. Our possible
disagreement relates only to the procedural aspect of the matter.
The main opinion justifies the imposition of civil liability upon said estate
within this appeal proceedings, thereby sing with the filing of a separate
civil action for the In my view, the dismissal of Sendaydiego's appeal
amounts, as I have said to his acquittal This acquittal to my mind is
different juridically from one based on liable doubt bemuse as I have only
intimated earlier, it is a total absolution by fate itself which carries with it
y, exemption from or extinction of the civil liability as if the Court had
hold that the act from which the civil (action) might arise did not exist
169
(Section 2 (e), Rule 111.) But this is not to say that the state is already
exonerated altogether from another kind of civil liability for indemnity,
restitution or reparation, for under the unbroken line of precedents I
Page
have already referred to, the pertinent provisions on Human Relations of
the Civil Code, particularly Article 30, come into play, for under this cited
provision, the total absolution of Sendaydiego based on his death
becomes virtually immaterial, since ths provision contemplates
prosecution of the civil liability arising from a criminal offense without
the need of any criminal proceeding to prove the commission of the crime
as such, that is, without having to prove the criminal liability of the
defendant so long as his act causign damage or prejudice to the offended
party is proven by a preponderance of evidence. This article provides,
"when a seperate civil action is brought to demand civil liability arising
from a criminal offense, and no criminal proceedings, are instituted
during the pendency of the civil case, a preponderance of evidence shall
likewise be sufficient to prove the act complained of."
My reading of the existing jurisprudence is that the civil liability not based
on the act as crime has to be prosecuted in a te civil action and not within
the same criminal proceedings wherein the accused has been acquitted
or the case against him is terminated with exonerative consequence. If
there is any jurisprudence to the contrary, it is still isolated and is not
binding precedent. Worse, in my opinion, it is based on what I consider
to be the erroneous premise that Article 29 of the Civil Code does not
mean literally what it says. Textually, this article states:
When the accused in a criminal prosecution is
acquitted on the ground that his guilt has not been
beyond reasonable doubt, a civil action for damages
for the same act or omission may be instituted. Such
action requires only a preponderance of evidence.
Upon motion of the defendant, the court may require
the plaintiff to file a bond to answer for damages in
case the complaint should be found to be malicious.
If in a criminal case the judgment of acquittal is based
upon reasonable doubt, the court shall so declare. In
the absence of any declaration to that effect, it may
be inferred from the text of the decision whether or
not the acquittal is due to that ground.
Definitely and unequivocally, what it authorizes is that "a civil action for
damages for the same act or omission may be instituted." It does not say
that the civil action joined with the criminal action, as provided for in
Section 1 of Rule 111, shall survive and be the one continued. I reiterate
that what is left to the offended party after the death of an accused
before conviction is the right to institute a civil action for damages for the
same act or omission pursuant to Articles 29 and 30 of the Civil Code and
Sections 2 and 3 (c) of Rule 111 of the Rules of Court.
All these notwithstanding, for the purposes of the instant case, I am
willing to take the position that since the point I am pressing on is more
or less procedural or remedial in nature, and perhaps, the failure of the
parties concerned to seriously object to the procedure pursued in the
main opinion could be a sufficient excuse for not following what I feel is
the proper way of dealing with the civil liability incurred by the estate of
the deceased Sendaydiego, hence my concurrence, in the qualified sense
implicit in this separate opinion, in the dispositive portion of the decision
herein.
May I add here that the foregoing reasons explain why I have always
insisted that when appeals in criminal cases before us have to be
dismissed by reason of the death of the appellant, it is not proper to
qualify such dismissal as limited to that of the criminal liability of the
appellant. It is my humble view that the dismissal should be unqualified
and that the offended parties concerned should be left to pursue their
remedies, if they so desire, in the appropriate separate civil action
contemplated both in the Civil Code and in Rule 111, as explained above.
I admit this view might entail the institution of what is virtually a
repetitive proceeding, but I cannot see any way of avoiding what the
unequivocal language of the pertinent legal provisions mandate, unless I
make myself a party to judicial legislation, which I believe it is not
constitutionally permissible for me to do, no matter how practical the
procedure might be.
Separate Opinions
BARREDO, J., concurring:
While I concur in the judgment finding the accused-appellant Juan
Samson guilty of six separate crimes each of falsification and
malversation as elucidated in the very well studied and ably prepared
main opinion of our distinguished colleague, Mr. Justice Aquino, and
while I further agree that said appellant and the estate of the deceased
Licerio P. Sendaydiego are lointtv and solidarity liable to the Province of
Pangasinan for the amounts stated ir. the dispositive portion of the
decision herein, I have my own legal basis for holding that the estate of
Sendaydiego is indeed liable for the, said amount&
To start with, I find it difficult to share the view that "notwithstanding the
dismissal of the appeal of the deceased Sendaydiego (he died during the
pendency of this appeal) insofar as his liability is concerned, ...
Sendaydiego's appeal will (nevertheless) be resolved only for the purpose
of showing his liability which is the basis of the civil liability for which his
estate is liable." It seems to me that there is some degree of irreconcilable
incontency in dismissing a case, thereby acquitting the accused therein
of criminal liability because of death or any other cause not amounting to
a finding that he had not committed the act complaint of and at the same
nine holding that he or his estate has in civil liability based on his criminal
liability. It is to me clearly obvious that the dismiss of an appml due to
death of the appellant, from a judgment of conviction by a trial court does
not result in the affirmance of sruch conviction contrary to the general
rule when an appeal in a case is dismissed but, on the contrary, it
amounts to an acquittal of the appellant based on the constitutionally
mandated presumption of innocence in his favor that can be overcome
only by a finding of guilt, something that his death prevents the court
from making. In a sense, the death of an accused-appellant has the effect
of his total absolution by God from any earthly responsibility for the
offense as such, a divine act of clemency no human court can reverse,
qualify, much less disregard. It is an inherent inalienable human right of
every individual not to be subject to imputation of criminal liability in any
sense, unless his guilt of the crime charged against him has been duly
proven beyond reasonable doubt in a duly held criminal proceeding. The
intervention of death of the accused in any case is an injunction by fate
itself that no criminal liability whatsoever should be imposed on him, not
only because from the very nature of the situation, it is impossible to do
so but also because it would be a juridical absurdity to contemplate such
a legal concept. In short, death ex-anguishes the crime, and, corollarily,
all its consequences.
Indeed, it is but logical to hold that the civil liability resulting from criminal
liability under Artide 100 of the Revised Penal Code would have no basis
unless criminal responsibih"ly is fixed or exists. It has been said that civil
liabilitv under this provision "is rooted in the criminal liability". 1 In this
connection and adjectively, Section 1 of Rule 111 stipulates that "when a
criminal action is instituted, the civil action for recovery of civil liability
arising from the offense charged is impliedly instituted with the criminal
action, etc." But it must be emphasized that these legal precepts refer
exclusively to the civil liability consequent of the offense in its juridical
essence as a crime, it being elementary on our legal system that the same
act my give rise to civil responsibility independent of that resulting from
the commission of the act as a crime.
Thus it is entirely possible for one to be fee from civil ability directly
rooted in the act viewed as a violation of the penal law and still be liable
civilly for it considered otherwise as an infringement of a right based on
a created by contract or by laws other than the criminal law. A consistent
host of jurisprudence, too to the bench and bar to need particular citation
hem exists upholding the right of a party aggrieved by an act in nature to
170
indemnity, restitution or reparation, notwithstanding the absence or
failure of the usual prosecution, in view of the provisions of the pertinent
articles of the Civil Code on Human Relations and Section 2 of Rule III.
Page
Stated the same act or got Of facts can be the subject of obligations arise
at the same time thru the different modes contemplated in Article 1157
of the Civil Code providing that "obligations arise from (1) lave, (2)
contracts; (3) quasi-contracts; (4) acts or omissions punished by law, and
(5) quasi-delicts." Thus, that an act or omission is punished by law,
thereby making the actor civilly liable therefor, does not exclude
simultaneous liability of the for the same act viewed also as one giving
rise to an obligation under the another law, and/or under a contract,
quasi-contract or quasi-delict, with the sole qualification that the
aggrieved party cannot recover damages more than once for the same
act or omission. (See Art. 2177, Civil Code.)
I am confident that the points I have just discussed are beyond debate.
And as I see it my learned colleagues in the majority and I are agreed that
in the light of the legal Principles I have stated, there can be no doubt
that the estate of Sendaydiego could be held liable for the acts of the d
that can be proven to have damaged the Province of Pangasinan in spite
of the of Sendaydiego's appeal by reason of his death. Our possible
disagreement relates only to the procedural aspect of the matter.
The main opinion justifies the imposition of civil liability upon said estate
within this appeal proceedings, thereby sing with the filing of a separate
civil action for the In my view, the dismissal of Sendaydiego's appeal
amounts, as I have said to his acquittal This acquittal to my mind is
different juridically from one based on liable doubt bemuse as I have only
intimated earlier, it is a total absolution by fate itself which carries with it
y, exemption from or extinction of the civil liability as if the Court had
hold that the act from which the civil (action) might arise did not exist
(Section 2 (e), Rule 111.) But this is not to say that the state is already
exonerated altogether from another kind of civil liability for indemnity,
restitution or reparation, for under the unbroken line of precedents I
have already referred to, the pertinent provisions on Human Relations of
the Civil Code, particularly Article 30, come into play, for under this cited
provision, the total absolution of Sendaydiego based on his death
becomes virtually immaterial, since ths provision contemplates
prosecution of the civil liability arising from a criminal offense without
the need of any criminal proceeding to prove the commission of the crime
as such, that is, without having to prove the criminal liability of the
defendant so long as his act causign damage or prejudice to the offended
party is proven by a preponderance of evidence. This article provides,
"when a seperate civil action is brought to demand civil liability arising
from a criminal offense, and no criminal proceedings, are instituted
during the pendency of the civil case, a preponderance of evidence shall
likewise be sufficient to prove the act complained of."
My reading of the existing jurisprudence is that the civil liability not based
on the act as crime has to be prosecuted in a te civil action and not within
the same criminal proceedings wherein the accused has been acquitted
or the case against him is terminated with exonerative consequence. If
there is any jurisprudence to the contrary, it is still isolated and is not
binding precedent. Worse, in my opinion, it is based on what I consider
to be the erroneous premise that Article 29 of the Civil Code does not
mean literally what it says. Textually, this article states:
When the accused in a criminal prosecution is
acquitted on the ground that his guilt has not been
beyond reasonable doubt, a civil action for damages
for the same act or omission may be instituted. Such
action requires only a preponderance of evidence.
Upon motion of the defendant, the court may require
the plaintiff to file a bond to answer for damages in
case the complaint should be found to be malicious.
If in a criminal case the judgment of acquittal is based
upon reasonable doubt, the court shall so declare. In
the absence of any declaration to that effect, it may
be inferred from the text of the decision whether or
not the acquittal is due to that ground.
Definitely and unequivocally, what it authorizes is that "a civil action for
damages for the same act or omission may be instituted." It does not say
that the civil action joined with the criminal action, as provided for in
Section 1 of Rule 111, shall survive and be the one continued. I reiterate
that what is left to the offended party after the death of an accused
before conviction is the right to institute a civil action for damages for the
same act or omission pursuant to Articles 29 and 30 of the Civil Code and
Sections 2 and 3 (c) of Rule 111 of the Rules of Court.
All these notwithstanding, for the purposes of the instant case, I am
willing to take the position that since the point I am pressing on is more
or less procedural or remedial in nature, and perhaps, the failure of the
parties concerned to seriously object to the procedure pursued in the
main opinion could be a sufficient excuse for not following what I feel is
the proper way of dealing with the civil liability incurred by the estate of
the deceased Sendaydiego, hence my concurrence, in the qualified sense
implicit in this separate opinion, in the dispositive portion of the decision
herein.
May I add here that the foregoing reasons explain why I have always
insisted that when appeals in criminal cases before us have to be
dismissed by reason of the death of the appellant, it is not proper to
qualify such dismissal as limited to that of the criminal liability of the
appellant. It is my humble view that the dismissal should be unqualified
and that the offended parties concerned should be left to pursue their
remedies, if they so desire, in the appropriate separate civil action
contemplated both in the Civil Code and in Rule 111, as explained above.
I admit this view might entail the institution of what is virtually a
repetitive proceeding, but I cannot see any way of avoiding what the
unequivocal language of the pertinent legal provisions mandate, unless I
make myself a party to judicial legislation, which I believe it is not
constitutionally permissible for me to do, no matter how practical the
procedure might be.
(5) G.R. Nos. 5426 and 5427 March 7, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
LINO SUMANGIL, defendant-appellant.
Isauro Gabaldon, for appellant.
Attorney-General Villamor, for appellee.
CARSON, J.:
These are two separate proceedings against the same defendant for two
separate offenses, in each of which the accused was convicted and
sentenced to fourteen years eight months and one day of cadena
temporal, together with the accessory penalties prescribed by law, and
in each of which separate appeal was taken to this court.
For reason of convenience, and especially on account of the
recommendation of clemency hereinafter set out, the separate appeals
in these cases are taken up together and decided in a single opinion.
The information in case No. 5426 charges the defendant with the
commission of the crime of falsification of a public document, committed
as follows:
On or about the 16th day of May, of the year 1908, the said
defendant, being the municipal treasurer of Cuyapo,
maliciously and criminally abused his office by issuing an official
document as a voucher for certain expenses, in which was set
forth a payment of P3.50 made to Tomas Daprosa for the
transportation, from Paniqui to Cuyapo, of certain boxes
belonging to the municipality, when the sum actually paid was
P0.60 and not that hereinbefore stated, making such false
171
statement of facts for the purpose of appropriating the
balance. The act was committed in the municipality of Cuyapo,
Province of Nueva Ecija, P. I., in violation of the law.
Page
The information in case No. 5427 charges the defendant with the
commission of the crime of falsification of public document, committed
as follows:
On or about the 19th day of May, of the year 1908, the said
defendant, being the municipal treasurer of Cuyapo,
maliciously and criminally abused his office by issuing an official
voucher for expenses in which was set forth a payment of P1.50
made to Vicente Defiesta, for the transportation of these cases
of oil belonging to the municipality from Paniqui to Cuyapo, this
not being the true amount paid, which was P0.50, making such
false statement of facts for the purpose of appropriating the
balance. The act took place in the municipality of Cuyapo,
Province of Nueva Ecija, Philippine Islands, contrary to law.
The evidence of record in both fully sustains the findings of fact by the
trial court and establishes the guilt of the defendant of the crime with
which he was charged in each case beyond the peradventure of doubt.
We find no error in the proceedings in either case prejudicial to the
substantial interests of the accused, and the judgments of conviction and
the sentences imposed in both cases should, therefore, be affirmed, with
the costs of this instance against the appellant.
Under the provisions of article 2 of the Penal Code, and in view of what
seems to us to be the excessive penalty ("taking into consideration the
degree of malice and the injury caused by the crime" of which defendant
was convicted in each case), which it was the duty of the court below,
under strict application of the provisions of the code, to impose in both
cases, and which it now becomes our duty to affirm, we deem it proper
to invite the attention of the Chief Executive to the nature and character
of the two separate offenses committed by the accused and the severe
penalties necessarily imposed upon him upon conviction thereof, for
such action as shall be deemed proper in the premises. So ordered.
Arellano, C.J., Torres, Mapa, Johnson and Moreland, JJ., concur.
(6) G.R. No. 82197 March 13, 1989
MANUEL L. SIQUIAN petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES, and THE COURT OF
APPEALS, respondents.
Cortes & Reyna Law Firm for petitioner.
The Solicitor General for respondents.
CORTES, J.:
The information charging petitioner Manuel L. Siquian, the then
municipal mayor of Angadanan, Isabela, of the crime of falsification of
public document under Art. 171, p. 4 of the Revised Penal Code filed by
Second Assistant Provincial Fiscal before Branch XX of the Regional Trial
Court of Cauayan, Isabela reads as follows:
That on or about the lst day of July, 1975, in the Municipality of
Angadanan, Province of Isabela, and within the preliminary jurisdiction of
this Honorable court, the accused Manuel L. Siquian, being then the
Municipal Mayor of Angadanan, Isabela, taking advantage of his position
as such Municipal Mayor did then and there wilfully, unlawfully and
feloniously prepare and, sign a false document, knowing it to be false, to
wit. An official communication to the Civil Service Commissioner, dated
July 1, 1975, which is required by law in order to support the appointment
of a certain Jesusa B. Carreon to the position of clerk in the Office of the
Municipal Secretary which (sic) he appointed as such by stating and
making it appear in said document that there was such a position existing
and that funds therefore were available. When in truth and in fact, as said
accused well-know (sic), there was no such position or item and no funds
were available for said position in the Fiscal Budget of Angadanan for
1975-76, nor was there any special ordinance creating said position and
appropriating the necessary funds therefor.
xxx
[Rollo, pp. 23-24.]
Upon arraignment, petitioner pleaded not guilty to the offense charged
and the trial of the case ensued. The facts as found by the Regional Trial
Court (RTC) are as follows:
It appears from the evidence that sometime in June 1975, Jesusa Carreon,
20 years old, single and a resident of Ilagan, Isabela, went to the accused
Manuel L. Siquian, Mayor of the Municipality of Angadanan, Province of
Isabela, to apply for employment in the office of the Mayor. Earlier, she
and her friends went to the Municipal Hall of Angadanan to ask
information if there was any vacancy. When she was informed that there
was, she went to see the accused in his house.
The accused must have agreed to appoint her because he accompanied
her to the office of the Municipal Secretary, Emilio Valenzuela. The latter,
however, was not there. Even so, the accused told Jesusa Carreon to
report for work the following day and that she should be included in the
budget. The accused then accompanied her to the Office of the Municipal
Treasurer, Calo Battung the treasurer agreed that she could report for
work.
One week after, Jesusa Carreon went alone to the Office of the Municipal
Secretary. He was there. When she went to the accused, she was told to
go back to the Municipal Secretary to work for her appointment papers.
She was appointed clerk to the Municipal Secretary in the Office of the
Municipal Secretary, on July 1, 1975 by the accused.
xxx
Accompanying her appointment is the certification, among others, of the
availability of funds CS Form No. 203) dated July 1, 1975, issued by the
accused Manuel L. Siquian, pursuant to the requirements of
Memorandum Circular No. 5, Series of 1975, addressed to the
Commissioner of Civil Service, Manila (Exh. "C").
xxx
Jesusa Carreon took her oath of Office (Exh. "A-l") on July 1, 1975, and
promptly began to work on the same day. Her monthly salary was P
120.00. She rendered services for the months of July, August, September,
October, November and December 1975 (Exhibits "B", "B-l" to "B-5"). She
was not, however, paid. As early as October 1975, she went to the
Municipal Treasurer to receive her salary, but she was told that there was
no money yet. In November 1975, she went to see the accused, but the
latter told her to see the treasurer. She went to the treasurer who told
her that there was no money. because of this, she went to the
Sangguniang Panlalawigan at the Provincial Capitol in Ilagan, Isabela, to
ask (sic) information regarding her unpaid salaries. She was interviewed
by Atty. Efren Ambrosia Provincial Administrator. Atty. Ambrosio asked
her if she had complete appointment papers. hereafter, she filed her
verified complaint dated April 20, 1976, against the accused. Her
complaint is addressed to Governor Faustino N. Dy (Exhibit "G" and "G-
1").
172
It also appears from the evidence that the Municipal council of
Angadanan, Isabela, failed to enact the annual budget for the
municipality for the Fiscal Year 1975-1976 (Exhs. "H", "H-l", and "H-2").
Page
Accordingly, and pursuant to PD No. 477, the annual budget for the
previous Fiscal Year 1974-1975, was deemed re-enacted (Exh. "H- l").
Thus, the Municipal Plantilla of Personnel for the Fiscal Year 1975-1976 is
the same as the Plantilla of Personnel for the Fiscal Year 1975-1976. No
supplemental budget was enacted by the municipal council of
Angadanan.
In the Plantilla of Personnel for 1974-1975, which was deemed re-
enacted for the Fiscal Year 1975-1976, there was no new item or
appropriation for the position of clerk in the Office of the Municipal
Secretary of Angadanan, Isabela. The new position of clerk in the office
of the Municipal Council appearing in the Municipal Plantilla for
Personnel (Exhibit "H-2") for 1974- 1975, was filled up as early as October
16, 1974 by the accused when he appointed Clarita G. Ramirez to that
position (Exhibits "J" and "J-2"). With respect to the new position of a
Clerk to the office of the Municipal Mayor in the Plantilla for 1974-1975,
it was already filled-up by the appointment of Miss Marivic A. Tallod on
June 16, 1975, by the accused (Exhibits "K" and "K-4"). As early as June
28, 1974, the same position was held by Miss Felicidad Visitacion who
was appointed by the accused, but she resigned (Exhs. "K" and "K-l").
xxx
[Rollo, pp. 26, 28, 29-30.]
After trial, the Court found the petitioner guilty beyond reasonable doubt
of the crime charged and decreed:
WHEREFORE, finding the accused Manuel L. Siquian guilty beyond
reasonable doubt of the crime of falsification of public document as
charged in the information, the Court hereby sentences said accused to
suffer an indeterminate penalty of from FIVE (5) YEARS, EIGHT (8)
MONTHS and ONE (1) DAY of prision correctional (sic) as minimum to
SEVEN YEARS of prision mayor as maximum and to pay a fine of THREE
THOUSAND (P 3,000.00) PESOS.
SO ORDERED. [Rollo, p. 35.]
On appeal, the respondent Court of Appeals ruled as follows:
WHEREFORE, the decision appealed from is in accordance with law and
the evidence and is hereby therefore affirmed. Costs against the accused-
appellant.
SO ORDERED. [Rollo, p. 42.]
Hence, this petition for review seeking reversal of the CA decision and the
acquittal of petitioner Manuel L. Siquian. Petitioner contends that the
respondent court has decided a question of substance not in accord with
law and jurisprudence when it affirmed the decision of the trial court
convicting him of the crime of falsification despite the following
A. The evidence on record which consists of the testimony of the
prosecution's principal witness, shows the absence of criminal intent on
the part of the accused.
B. There is no evidence that the accused took advantage of his position
as Municipal Mayor when he made the allegedly falsified certification.
C. The statement that "Funds for the position are available" is not a
narration of facts but a conclusion of law.
D. The petitioner was deprived of his right to due process of law when
the trial court proceeded with the trial in his absence despite a pending
petition for change of venue with the Supreme Court. [Rollo, p. 13.]
Petitioner's arguments, however, are bereft of any merit.
The offense of falsification by a public officer under Article 171 of the
Revised Penal Code is committed by "any public officer, employee or
notary who, taking advantage of his official position, shall falsify a
document by committing any of the following acts: . . . 4. Making
untruthful statements in a narration of fact; . . .' It is settled that in this
fourth kind of falsification, the following requisites must concur:
(a) That the offender makes in a document untruthful statements in a
narration of facts;
(b) hat he has a legal obligation to disclose the truth of the facts narrated
by him; and
(c) That the facts narrated by the offender are absolutely false Cabigas v.
People, G.R. No. 67472, July 3, 1987, 152 SCRA 18.
All these requisites had been fully met in the case at bar. Petitioner, a
public officer, being then the mayor of the municipality of Angadanan,
Isabela, made an untruthful statement in the narration of facts contained
in the certification which he issued in connection with the appointment
of complainant Jesusa Carreon. The certification, having been issued by a
public official in the exercise of the function of his office is a public
document [U.S. v. Asensi, 34 Phil. 765 (1915)]. It is immaterial whether or
not the Civil Service Commissioner to whom the certification was
addressed received the document issued by petitioner. Since the
certification was prepared by petitioner in accordance with the standard
forms prescribed by the government (specifically the Civil Service
Commission) pursuant to law, the certification was invested with the
character of a public document [People v. Asensi, supra citing U.S. v. Vy
Guico, 12 Phil. 209 (1908)] falsification of which is punishable under
Article 171 of the Revised Penal Code. Here, falsification of such
document was committed when the petitioner stated that funds were
available for the position to which Jesusa Carreon was appointed when
he knew that, in reality, the position itself did not even exist and no funds
had been appropriated therefor.
Petitioner's stance that the certification which he issued contained no
narration of facts but rather a conclusion of law is not meritorious. The
respondent court, upholding the Solicitor General's arguments, correctly
ruled as follows:
Conclusion of law" is defined as a proposition not arrived at by any
process of natural reasoning from a fact or combination of facts stated
but by the application of the artificial rules of law to the facts pleaded
[Levins v. Rovegno, 71 Cal. 273, 12 p. 161; Black's Law Dict., p. 362].
From the above-cited definition, it can be deduced that the certification
by the appellant that 'funds for the position are available' does not
require the application of the artificial rules of law. To certify that funds
are available for the position what one should do was (sic) to refer to the
budget and plantilla of personnel of the applicable fiscal year and
ascertain if such item exists and funds are allocated therefor.
In the present case, despite the presence of the records which shows that
there is no position and funds therefor referred to in the certification, the
appellant, fully aware of the data provided by the records, certified falsely
that "funds for the position are available" [Rollo, p. 41).
It is undisputed that the Municipal Council of Angadanan failed to enact
the annual budget of the municipality for the Fiscal Year 1975-1976 and
therefore, the annual budget for the last fiscal year, 1974-1975, was
deemed re-enacted under P.D. No. 477. In the Municipal Plantilla of
Personnel (Exh. "B-2") accompanying the Annual Budget for the
Municipality of Angadanan, Isabela for the Fiscal Year 1974-1975, there
is no such position as Clerk to the Municipal Secretary in the Office of the
Municipal Secretary, the position to which Jesusa Carreon was appointed.
Accordingly, there is no appropriation made in the Annual Budget for the
Fiscal Year 1974-1975 for such position, thus rendering petitioner's
statement in his certification utterly false. The requisite of absolute falsity
173
of the statement made in the document is met when there exists not
even an iota of colorable truth in what is declared in the narration of facts
[U.S. v. Bayot, 10 Phil. 518 (1908)], as in this case. From the foregoing, it
Page
can be seen that the first and third requirements laid down in
the Cabigas case, supra, are fully satisfied.
The second element of the offense is likewise present. Under the civil
service rules and regulations, specifically the Guidelines in the
Preparation of Appointment for Original Appointment (Exhs. "D" and "D-
3"), a certification of the availability of funds for the position to be filled
up is required to be signed by the head of office or any officer who has
been delegated the authority to sign. As an officer authorized by law to
issue this certification which is designated as Civil Service Form No. 203,
as revised, the petitioner has a legal obligation to disclose the truth of the
facts narrated by him in said certification which includes information as
to the availability of the funds for the position being filled up.
Contrary to petitioner's claim, the existence of a wrongful intent to injure
a third person is not necessary when the falsified document is a public
document. This has already been authoritatively decreed in the 1955 case
of People v. Po Giok To [96 Phil. 913 (1955)]. The Court in the
aforementioned case explicitly stated that wrongful intent on the part of
the accused to injure a third person is not an essential element of the
crime of falsification of public document. The rationale for this principal
distinction between falsification of public and private documents has
been stated by the Court in this wise: "In the falsification of public or
official documents, whether by public officials or private persons, it is
unnecessary that there be present the Idea of gain or the intent to injure
a third person, for the reason that, in contradistinction to private
documents, the principal thing punished is the violation of the public faith
and the destruction of truth as therein solemnly proclaimed" [People v.
Po Giok To, supra at 918, citing People v. Pacana, 47 Phil. 48 (1924)]. In
falsification of public documents therefore, the controlling consideration
is the public character of a document and the existence of any prejudice
caused to third persons or, at least, the intent to cause such damage
becomes immaterial [People v. Pacana, supra].
Petitioner's plea for acquittal on the ground that the evidence for the
prosecution shows the absence of criminal intent on his part must be
denied. While this Court has declared good faith as a valid defense to
falsification of public documents by making untruthful statements in a
narration of facts [U.S. v. San Jose, 7 Phil. 604 (1907)], such defense
cannot serve to exonerate the petitioner since the element of good faith
has not clearly been shown to exist in the case at bar.
Under the applicable law at the time, petitioner, as municipal mayor of
Angadanan, Isabela presides at all meetings of the municipal council
[Section 2621 (d), Revised Administrative Code] and signs all ordinances
and resolutions passed by the municipal council [Section 2624 (c),
Revised Administrative Code]. He was thus aware that (1) for failure to
enact a budget for the Fiscal Year 1975-1976, Ordinance No. V of the
Municipal Council of Angadanan, Isabela which was the Municipal Annual
Budget of Angadanan, Isabela for Fiscal Year 1974-1975 was re-enacted
and (2) that under the Municipal Plantilla of Personnel for that fiscal year,
there were no funds appropriated for the position of clerk to the
municipal secretary. His knowledge of these facts is shown by the fact
that he even affixed his signature in attestation to the correctness of
these documents; i.e. Ordinance No. V and Municipal Plantilla of
Personnel. [See Exhs. "H-1" and "H-2", Folder of Exhibits, pp. 27-32]. He
cannot claim good faith in issuing a certification of the availability of funds
for the questioned position since at the time he issued such certification
on July 1, 1975, the fiscal year 1975- 1976 had already commenced and
no new ordinance creating the new position to which he appointed
Jesusa Carreon had been enacted by the municipal council.
In view of the foregoing considerations, petitioner must be held
criminally liable for his act of issuing the absolutely false certification as
to the availability of funds for the subject position. The law considers his
act criminal since it amounts to an untruthful statement in a narration of
facts in a public document [Article 171 (4), Revised Penal Code]. Criminal
intent and the will to commit a crime are presumed to exist on the part
of the person who executes an act which the law punishes, unless the
contrary shall appear [United States v. Apostol, 14 Phil. 92 (1909)]. In this
case, the presumption that petitioner committed the act with criminal
intention, which arose from proof of his commission of the unlawful act,
stands unrebutted.
Petitioner's claim that there was no showing that he took advantage of
his official position in falsifying the document should likewise be rejected.
This essential element of falsification of a public document by public
officer requires that the offender "abuse his office or use the influences
prestige or ascendancy which his office gives him, in committing the
crime" [U.S. v. Rodriguez, 19 Phil. 150 (1911)]. Abuse of public office is
considered present when the offender falsifies a document in connection
with the duties of his office which consist of either making or preparing
or otherwise intervening in the preparation of a document [U.S. v.
Inosanto 20 Phil. 376 (1911); People v. Santiago Uy, 101 Phil. 159 (1957)],
as in the case of petitioner who was charged with the duty of issuing the
certification necessary for the appointment of Jesusa Carreon.
Finally, the alleged denial of due process of law committed by the trial
court when it proceeded with the trial of the case in the absence of the
petitioner despite a pending petition for change of venue with the
Supreme Court is totally unfounded. A careful and thorough review of the
record reveals that petitioner had been afforded due process when the
trial court, in view of the absence of petitioner, granted continuances to
enable the defense to present its evidence although the prosecution had
rested its case as early as December 7, 1978. [See Original Records, p.
253, et seq.]
It is a basic postulate in law that what is repugnant to due process is not
lack of previous notice but absolute lack of opportunity to be heard
[Tajonera v. Lamaroza, G.R. Nos. L-48097 & 49035, December 19, 1981,
110 SCRA 438]. Hence, this Court laid down this criterion to determine
whether an accused in a criminal case has been properly accorded due
process of law:
. . . (I)f an accused has been heard in a court of
competent jurisdiction and proceeded against under
the orderly processes of law, and only punished after
inquiry and investigation, upon notice to him, with an
opportunity to be heard, and a judgment awarded
within the authority of a constitutional law, then he
has had due process of law. . . . [People v. Muit G.R.
No. L-48875, October 21, 1982, 117 SCRA 696 citing
People v. Castillo, 776 Phil. 73 (1946); Emphasis
supplied.]
Thus, there is no denial of due process when an accused is afforded the
chance to present evidence on his behalf but due to his repeated,
unjustifiable failure to appear at the hearings, the trial court ordered the
case to be deemed submitted upon the evidence presented by the
prosecution. For under such circumstances, he will be deemed to have
waived his right to be present during the trial [Section 1 (c), Rule 115 of
the Revised Rules of Court] and his right to adduce evidence on his behalf
[People v. Angco, 103 Phil. 33 (1958).]
It is true that he filed a petition for change of venue with the Supreme
Court. However, on the date set for the hearing of the petitioner's urgent
motion to suspend the proceedings in the trial court due to the pendency
of the petition for change of venue, he also failed to appear [See Order
dated January 18, 1985, Original Records, p. 428]. In fact, Atty. Romeo
Calixto, one of the counsel for the petitioner, manifested before the trial
court that he was - withdrawing as counsel for his client for the reason
that he has lost contact with the latter who already went abroad
[See Original Records, p. 435]. Hence, the trial court cannot be faulted for
rendering its decision on the basis solely of the evidence presented by
the prosecution.
WHEREFORE, the appealed decision being in conformity with law and
settled jurisprudence, the same is AFFIRMED and the instant petition is
hereby DENIED.
174
SO ORDERED.
Fernan, C.J., Feliciano and Bidin, JJ., concur.
Page

Separate Opinions
GUTIERREZ, JR., J.:, concurring.
I agree with the precedent rulings applied by the Court to the facts as
found by both the trial court and the Court of Appeals. I believe, however,
that a too literal application of the rules may blur the line between
deliberate intent to commit a crime and the unwitting commission,
through negligence, of an act which would otherwise be criminal if
intentionally committed.
It is a well-known fact that many top officials both national and local,
usually rely on the initials of lower echelon employees on such routine
matters as prior compliance with regular procedures. When a
government executive sees the required initials below his typewritten
name, he confidently affixes his signature to certifications, clearances,
and approvals of permits or licenses. He is technically guilty of
falsification if what he signed turns out to be false but should we require
him to personally go over every step and procedure which he ordinarily
leaves to subordinates? In this case, of course, there is evidence that the
accused was aware that the position to which Carreon was appointed is
non-existent.
There is likewise an indication in this case that the petitioner could not
present evidence in his defense because he was in the United States
hiding from political enemies. However, his counsel was here and his
main plea was for change of venue. If the venue had been changed, there
would have been presentation of evidence. I agree with the ponente that
the due process argument has not been presented adequately, sufficient
to reverse the findings of both the trial court and the appellate court.
Separate Opinions
GUTIERREZ, JR., J.:, concurring.
I agree with the precedent rulings applied by the Court to the facts as
found by both the trial court and the Court of Appeals. I believe, however,
that a too literal application of the rules may blur the line between
deliberate intent to commit a crime and the unwitting commission,
through negligence, of an act which would otherwise be criminal if
intentionally committed.
It is a well-known fact that many top officials both national and local,
usually rely on the initials of lower echelon employees on such routine
matters as prior compliance with regular procedures. When a
government executive sees the required initials below his typewritten
name, he confidently affixes his signature to certifications, clearances,
and approvals of permits or licenses. He is technically guilty of
falsification if what he signed turns out to be false but should we require
him to personally go over every step and procedure which he ordinarily
leaves to subordinates? In this case, of course, there is evidence that the
accused was aware that the position to which Carreon was appointed is
non-existent.
There is likewise an indication in this case that the petitioner could not
present evidence in his defense because he was in the United States
hiding from political enemies. However, his counsel was here and his
main plea was for change of venue. If the venue had been changed, there
would have been presentation of evidence. I agree with the ponente that
the due process argument has not been presented adequately, sufficient
to reverse the findings of both the trial court and the appellate court.
(7) G.R. No. 31012 September 10, 1932
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
ESTELA ROMUALDEZ and LUIS MABUNAY, defendants-appellants.
Courtney Whitney, Vicente Nepomuceno and Julio Llorente for appellant
Romualdez.
Vicente J. Francisco and Claro M. Recto for appellant Mabunay.
Attorney-General Jaranilla for appellee.
VICKERS, J.:
This is an appeal from the following decision of the Honorable E. P.
Revilla, Judge of the Court of First Instance of Manila:
Estela Romualdez and Luis Mabunay are charged with the crime
of falsification of public and official documents, committed,
according to the information, as follows:
Upon arraignment the accused pleaded not guilty.
That in or about the month of February, 1927, in the
City of Manila, Philippine Islands, the accused Estela
Romualdez, who, by appointment of the Supreme
Court of the Philippine Islands, was then taking part
in the discharge of public functions as secretary to
the Honorable Norberto Romualdez, one of the
Justices of the Supreme Court, and by reason of said
duty had under her care the compositions and other
papers and documents having reference to the
examinations for the admission of candidates to the
bar held in the months of August and September,
1926, which were then kept in the archives of the said
court, confabulating with her coaccused, Luis
Mabunay, and acting in common accord with him,
who was then one of the candidates who took the
said Bar Examinations, willfully, illegally, and
criminally extracted from the said archives of the
Supreme Court certain public and official documents,
to wit: the compositions, which were written,
prepared and submitted by the accused, Luis
Mabunay in that examination. Once in possession of
the same, the said accused Estela Romualdez and Luis
Mabunay, conspiring together and acting in common
accord, willfully, illegally, and criminally erased the
grade of fifty-eight (58%) given by the correctors
Alfonso Felix and M. Guevara to the composition in
Remedial Law, which was written and prepared by
the accused Luis Mabunay, and in its place wrote
sixty-four (64%); and also erased the grade of sixty-
three (63%) given by correctors Jeronimo Samson
and Amado del Rosario to the composition in Civil
Law written and prepared by the said Luis Mabunay,
and in its place wrote seventy-three (73%), and by
means of these alterations the said accused Estela
Romualdez and Luis Mabunay were able to change
the relative merits of those compositions, thereby
attributing to the said correctors, statements and
declarations contrary to what they really made, and
the accused Estela Romualdez and Luis Mabunay thus
succeeded by means of falsifications made by them
in the aforesaid public and official documents in
making it appear that Luis Mabunay obtained the
general average required by the rules of the Supreme
Court, and in securing the latter's admission to the
175
practice of law, as in fact he was admitted, to the
great prejudice of the public.
Page
 Both the prosecution and the defense produced an abundance
of evidence, oral and documentary, the presentation of which
consumed considerable of the court's time.
UNDISPUTED FACTS
There is no question whatsoever as to the following facts which
are not disputed either by the prosecution or by the defense:
The accused Estela Romualdez was appointed upon the
recommendation of Justice Norberto Romualdez of the
Supreme Court of the Philippine Islands as his secretary on
November 1, 1921, and continued as such until September 15,
1928.
The accused Luis Mabunay was one of the candidates duly
admitted to the bar examinations held in 1926.
The clerk of the Supreme Court, Mr. Vicente Albert, who was
appointed to that office on July 11, 1912, acts every year as the
secretary ex oficio of the examination committee for admission
to the bar.
The Supreme Court of the Philippine Islands designated Justice
Norberto Romualdez as chairman of the examination
committee for admission to the bar in the year 1926, and upon
recommendation of Clerk Vicente Albert, he appointed the
following as members of the examination committee, with
their respective subjects: Attorney Francisco Ortigas, Civil Law;
Judge Vicente Nepomuceno, Mercantile Law; Attorney
Godofredo Reyes, Criminal Law; Judge Jose Abreu, Remedial
Law; Attorney C. A. DeWitt, International Law; Attorney-
General Delfin Jaranilla, Political Law; and Attorney Carlos
Ledesma, Legal Ethics.
Upon recommendation also of clerk of court Mr. Vicente
Albert, a committee of correctors was appointed, composed of
the following attorneys: Amado del Rosario, Assistant Director
of Civil Service, and Jeronimo Samson, deputy clerk of the
Supreme Court, as correctors in Civil Law; Rafael Amparo,
Secretary of Justice Johnson, and Fulgencio Vega, Secretary of
Justice Malcolm, as correctors in Mercantile Law; Cecilio
Apostol, Assistant City Fiscal, and Remo, of the Bureau of
Audits, as correctors in Penal Law; Marciano Guevara, of the
Bureau of Audits and Alfonso Felix, Assistant City Fiscal, as
correctors in Remedial law; Juan Lantin, of the Executive
Bureau, and the accused Estela Romualdez, as correctors in
Political Law; Rufino Luna, of the Executive Bureau, and Zoilo
Castrillo, of the Bureau of Lands, as correctors in International
Law; and Anatalio Mañalac, of the Bureau of Lands, and
Jeronimo Samson as correctors in Legal Ethics. On account of
illness, Mr. Remo was substituted by Jeronimo Samson as
corrector in Penal Law. All said correctors were designated by
clerk of court Albert with the approval of the chairman of the
examination committee.
The work of the members of the examination committee was
limited to the preparation of the questions in their respective
subjects and of a memorandum or note of the articles, legal
provisions and jurisprudence showing the sources from which
the questions were taken. The work of reviewing and grading
the compositions was entrusted to the correctors designated
for each subject. Each corrector was furnished with this note or
memorandum, and a set of rules, patterned after those of the
Authority of the accused Estela Romualdez to alter or change the grades
Civil Service, was prepared by corrector Amado del Rosario to
guide the correctors in grading the examination papers.
The correctors worked separately in reviewing and grading the
papers on the subject assigned to them, noting the grades given
to each answer, not on the composition, but in a separate note
book, which were later checked with the grades given by the
other corrector in the same subject, for the purpose of
determining the general average to be given to the
composition.
The report of the examination committee on the final result of
the bar examination for the year 1926 was submitted, under
date of March 2, 1927, to the Supreme Court and was published
on the fifth of said month. In the list of successful candidates
(Exhibit C-5) there appeared the name of candidate Luis
Mabunay with a general average of 75%. The grades of
Mabunay in each subject, according to the list Exhibit C-2,
which was prepared after the publication of the result of the
examination, are: 73 in Civil Law, 77 in Mercantile Law, 69 in
Penal Law, 76 in Political Law, 86 in International Law, 64 in
Remedial Law, 80 in Legal Ethics and Practical Exercises.
However, a later revision of the composition of Luis Mabunay
showed that the grades of seventy-three (73 in Civil Law
(Exhibit B-1), and sixty-four (64) in Remedial Law (Exhibit B-2)
had been written on the first page of said compositions after
striking out the grades of sixty-three (63) therefore given to the
composition in Civil Law, Exhibit B-1, and fifty-eight (58)
theretofore given to the composition in Remedial Law, Exhibit
B-2. The investigation of this irregularity by the City Fiscal of
Manila led to the filing of the information in this case.
Admission of the accused Estela Romualdez
Before the prosecuting attorney had finished presenting his
evidence tending to show the identity of the person who
altered the grades appearing on the first pages of the
compositions Exhibits-B-1 and B-2, the accused Estela
Romualdez spontaneously and with the conformity of her
attorneys made of record an admission as follows (p. 395, s. n.):
"In Exhibit B-1 the words seventy-three and the
figures 73% inclosed in parenthesis are in my regular
handwriting, and in Exhibit B-2 the words sixty-four
and the figures 64% inclosed in parenthesis
appearing in said composition are also in my regular
handwriting."
In view of the admission made by the accused Estela
Romualdez that she was the person who wrote on the
compositions Exhibits B-1 and B-2 the words and figures alleged
to have been falsified, it now appears that the burden of
establishing the authority under which said changes and
alterations were made is on the accused. On this point the
evidence for the defense tended to show that the accused
Estela Romualdez, both in her capacity as private secretary of
the chairman of the examination committee and as corrector
and at the same time supervisor of the correctors, was
authorized by said chairman to revise the compositions already
reviewed by the other correctors and to change the grades
given by them.
Justice Romualdez, testifying as a witness for the defense, said
that he considered the accused Estela Romualdez and Deputy
Clerk Samson as supervisors of the correctors; and explaining
the powers of the former he said (page 721, s. n.):
"As such supervisor I think there was on occasion
when I gave her to understand that in order to do
justice to the compositions, she could review the
compositions already graded by the other correctors;
provided, I want to add, that the new revision was
done in order to do justice to the compositions and
176
before the names of the candidates were known."
Page
Referring to the alterations made by the accused Estela
Romualdez to the grades given by the corresponding correctors
 to compositions Exhibits B-1 and B-2, this same witness
testified that said alterations were made within the limits of the
powers he had given to said accused (pages 723, 726, s. n.).
For her part the accused Estela Romualdez, testifying as a
witness in her own behalf, said that the chairman of the
examining committee, gave her to understand that she "was
authorized to correct any composition in any subject" in the bar
examinations of the year 1926 and that she had never
corrected any composition after the name of the corresponding
candidate was identified (pages 782, 783, s. n.). She denied
having known Luis Mabunay, and said that the first time she
saw him was on the first day of the trial of this case (page 783,
s. n.).
Theory of the Defense
Contention of the Prosecuting Attorney
The contention of the prosecuting attorney with respect to the
accused Estela Romualdez may be summarized in two following
propositions: 1st — that Justice Romualdez, as chairman of the
examination committee, did not have authority to delegate to
his secretary, the accused Estela Romualdez, the power to
revise compositions in subjects in which she was not a corrector
and which had already been graded by the other correctors,
and much less the power to alter or change the grades given to
and written on said compositions; 2nd — that granting that the
chairman of the examination committee had such authority,
the accused Estela Romualdez did not exercise the same in the
manner prescribed by said chairman, namely, in order to do
justice to the compositions and on the condition that the
revision and the changes of grades should be made before the
names of the candidates, to whom the compositions belonged,
were known.
In support of the first proposition, the prosecuting attorneys
maintains that Justice Romualdez was appointed by the
Supreme Court as chairman of the bar examination committee
of the year 1926, so that he would supervise the examinations
in accordance with law and the rules, and that precisely, in
accordance with the rules the chairman can not by himself
exercise the individual powers of the committee, among which
were the powers to review, and to change or alter the grades
given to the compositions.
As to the second proposition, the prosecuting attorney
maintains that the evidence adduced by the prosecution,
specially the testimony of the Deputy Clerk Samson, shows that
the accused Estela Romualdez made the changes in the grades
given by the correctors to compositions Exhibits B-1 and B-2, in
order to favor the accused Luis Mabunay, to whom she knew
said compositions belonged, thus violating the conditions
imposed upon her by the chairman of the examination
committee when she was given said authority.
As to the accused Luis Mabunay, the prosecuting attorney also
maintains that the evidence for the prosecution shows that he
was in connivance with the accused Estela Romualdez in the
alteration by the latter of his grades in Civil Law and Remedial
Law for the purpose of raising to 75% the general average of
72.8 which he had obtained.
In reply to the contention of the prosecuting attorney, the
defense argues that the power of supervision given by Justice
Romualdez to his secretary, the accused Estela Romualdez, is
not contrary to law, rules or precedents. This assertion is based
on the testimony of said Justice that the appointment of a
committee of attorneys in accordance with section 2 of the
rules had not been followed by the Supreme Court for a
number of years prior to 1926, and that when said court
designated Justice Romualdez as chairman of the examination
committee without designating the examiners, it left that
function to said chairman, and conferred upon him ample
powers to do what in his judgment was most in line with justice
and the law, and that no Court of First Instance has jurisdiction
to determine the propriety or illegality of the procedure
employed by the chairman of the examination committee, or
of the powers conferred by him upon his secretary, inasmuch
as said chairman was responsible only to the Supreme Court for
his acts.
The defense also claims that the accused Estela Romualdez
could not have known to whom compositions Exhibits B-1 and
B-2 belonged at the time of making the alteration of the grades
appearing on the first pages thereof, because, according to the
testimony of said accused, corroborated by that of Catalina
Pons, who was one of those who helped in the preparation of
the list of candidates Exhibit C-1, the envelopes containing the
names and the identification numbers of the candidates were
opened just one day before the publication of the result of the
examination, and that in order to finish this work and to place
the names of the candidates on said list, they had to work
continuously from 8 o'clock in the morning until 8 o'clock in the
evening on the day prior to the publication of the result of the
examinations.
Considerations on the evidence and contentions of both parties
Upon an examination of the testimony of Justice Romualdez, as
a witness for the defense, the court finds that the accused
Estela Romualdez, as secretary of the chairman of the
examination committee, and Jeronimo Samson, as deputy clerk
of the Supreme Court were considered by said chairman not
only as correctors in the subjects assigned to them but also as
supervisors of the correctors (page 721, s. n.), both of them
with equal powers and authority so that neither could consider
himself superior to the other (page 727, s. n.). It appears,
however, that while the chairman of the committee gave his
secretary, the accused Estela Romualdez, to understand that
she "was authorized to revise the compositions already graded
by the other correctors provided the new revisions were made
for the purpose of doing justice to the compositions and that
the same were mad before the names of the candidates were
known" (pages 721, 722, s. n.), he did not do the same with
respect to Deputy Clerk Jeronimo Samson, to whom he said
nothing about this matter (page 768, s. n.). It also appears that
the accused Estela Romualdez had never informed the
chairman of the committee about the corrections or alterations
made by her in compositions Exhibits B-1 and B-2; neither did
the latter examine said compositions to determine whether or
not their merits justified the changes so made, and he only
knew of said changes upon the filing of the information against
his said secretary (page 728, s. n.). For her part, she made no
report to the chairman of the examination committee of any
error or injustice committed by any corrector, and she only told
him during the progress of the work of grading the papers that
they were being graded very strictly and that "she feared that
some injustice might be committed" (page 729, s. n.), and for
that reason Justice Romualdez told his secretary, Estela
Romualdez, that "should a case of the kind come to her
knowledge, she should take special notice of the same in order
to do justice," that is to say, if any person should bring to her
attention any such case in which, in her opinion, some injustice
had been committed, she was authorized to put things in order
(page 781, s. n.), and the revision in such cases was left to the
judgment of his secretary (page 780, s. n.).
177
The powers conferred in the manner above stated, by Justice
Romualdez as chairman of the examination committee upon
Page
his secretary, Estela Romualdez, gave her so ample a
discretionary power of supervision that in its exercise she
should act independently, not only of the correctors and of her
cosupervisor Jeronimo Samson, but also of the examination
committee. Now, granting that Justice Romualdez, as a
chairman of the committee appointed by the Supreme Court to
conduct the bar examinations of 1926, was authorized to
confer such power of supervision upon his secretary Estela
Romualdez, in what manner did she exercise that power when
she made the changes in the compositions in question?
The accused Estela Romualdez who, according to her own
admission, made the alterations of the grades originally given
by the correctors to compositions of Exhibits B-1 and B-2, is the
only person who could give an account of and explain the
circumstances under which said alterations were made. But
said accused, testifying as a witness in her own behalf, was not
able to explain how and under what circumstances she made
those alterations. When pressed by the fiscal during the cross-
examination to state the circumstances under which she came
across those compositions Exhibits B-1 and B-2 the accused
Estela Romualdez said: "If I were to make any statement with
reference to the circumstances under which I came across
these compositions, you would compel me to tell a lie, because
I do not really remember" (page 823, s. n.). Neither does the
accused remember why she did not put her initials under or at
the side of those alterations she made on compositions Exhibits
B-1 and B-2, limiting herself to say, when she saw the other
compositions (Exhibits 3-1, X, X-1 and X-2) bearing her initials
which were exhibited to her by the fiscal, that she placed her
initials on said compositions because she graded them as
corrector, and she did not put her initials on compositions
Exhibits B-1 and B-2 because she revised them in her capacity
as supervisor (pages 824- 832, s. n.). She also said, that, as
corrector, she had instructions to put her initials when writing
the original grade on any composition, but as supervisor "she
was under no obligation" to put her initials (page 830, s. n.) and
that the chairman of the examination committee "has not gone
into such minor details" (page 831, s. n.). Upon being
questioned by the fiscal as to why she wrote the altered grade
on composition Exhibit B-2 on the same line and immediately
before the initials of the correctors she said: "Because on that
occasion it pleased me to do so" (page 836, s. n.). Neither does
the accused remember whether or not she exercised her
supervisory authority with respect to the other five
compositions forming part of those marked as Exhibits B-1 and
B-2 (page 840, s. n.); and when asked by the fiscal for an
explanation as to why the increase given by her to the grades
originally given to said compositions had the effect of raising
the general average of the compositions of the same candidate
to 75%, the accused answered that "the fiscal ought to know
that in this life there are happy coincidences" (page 848, s. n.).
With these answers and others appearing in her testimony, the
accused instead of giving a satisfactory explanation of her
conduct, has demonstrated that with the encouragement given
by Justice Romualdez to the effect that the new revision of the
compositions was left to her discretion (page 780, s. n.) she
assumed that the powers exercised by her in the bar
examinations of 1926 were such that she could revise any
composition in any subject already graded and increase or
decrease the grades given by the correctors; in other words,
that she could, at her pleasure, do or undo the work done by
the correctors without the necessity of accounting to anybody
for it (page 834, s. n.), or of keeping a note or memorandum of
the compositions so revised and the alteration of the grades.
The evidence, however, shows that Justice Romualdez himself
in reviewing, in his capacity as chairman of the examination
committee, the compositions of the candidates who filed
motions for reconsideration of the grades given them, after the
publication of the result of the examinations, performed his
work with such diligence and zeal that he noted in a
memorandum book (Exhibit F) not only the grades given to
each answer of the candidate, but also the total grade obtained
by the candidate in the revision, together with such other data
which would explain the increase of the grades of this or that
candidate.
The court is loath to believe that Justice Romualdez had given
his secretary to understand that she had such unlimited
powers, or that the Supreme Court in designating said Justice
as chairman of the bar examination committee of the year
1926, authorizing him to confer such powers upon his
secretary, because it is an undisputed fact that his designation
was made so that he should conduct the examinations in
accordance with law and the rules.
But, even granting that when the accused Estela Romualdez
altered the grades given by the correctors to compositions
Exhibits B-1 and B-2 she acted in the exercise of the powers
conferred upon her by the chairman of the examination
committee, is there any ground in support of her claim that she
made those alterations only to do justice to the compositions,
and without knowing the name of the candidate to whom they
belonged?
Without giving any weight to the testimony of the witness for
the prosecution, Juan Villaflor, which, according to the defense
is not worthy of credit because of the contradictions and
inconsistencies therein noted, the record contains other
evidence establishing certain facts from which such knowledge
can be inferred.
It has been proved that after the revision and grading of all the
compositions numbering over 8,000, a list, Exhibit C-1, was
prepared in pencil. This list was prepared with the intervention
of the said Jeronimo Samson and Josephine Stevens, assisted
by Catalina Pons, Juan Villaflor and the accused Estela
Romualdez. However, before the preparation of this list,
sometime during the first day of February, 1927, the sealed
envelopes containing the identification numbers attached to
each composition were opened. Said numbers were written
either on the upper part of each envelope or on the first page
of the composition, and that work lasted several days (pages
162, 163, s. n.). In the list Exhibit C-1 the numbers of the
candidates contained in the envelopes attached to the
compositions were first written (page 166, s. n.), and then the
grades in each subject, followed by the general average (pages
71, 184, s. n.), leaving in the blank the space intended for the
names (page 166, s. n.). Deputy Clerk Samson wrote on an
adding machine the grades in each composition as they were
read out by one of the helpers, and then the corresponding
general average as computed by him (page 71, s. n.), and, at the
same time, Josephine Stevens wrote said grades in the space
corresponding to each subject (page 188, s. n.). The roll of
paper used by Deputy Clerk Samson on the adding machine was
presented as Exhibit C-6.
After the list Exhibit C-1 containing the grades in each subject
and the general average of each candidate, who was
theretofore known by his identification number only, was
prepared, the envelopes containing the names corresponding
to the identification numbers written on said list were taken
from the safe of the office of the clerk, and the names of the
candidates were inserted in said list by those who assisted in
the preparation thereof (pages 166, 167, s. n.) among whom
was the accused Estela Romualdez, who admitted, upon cross-
examination, having written many of the names appearing on
several pages of said list (pages 859-861, s. n.). After said list
Exhibit C-1 was prepared the examination committee
submitted to the Supreme Court a report recommending the
admission to the bar and not only for those candidates with a
178
general average of 75% or more, but also of those who had
obtained a general average of 70 or more but below 75%, and
said automatic increase was ordered noted on said list Exhibit
Page
C-1. However, this recommendation was not approved by the
Supreme Court on the ground that said automatic increase was
arbitrary (pages 73, 74, s. n.), and for that reason the clerk of
court, Mr. Albert, instructed his deputy, Mr. Samson, to
prepare another list containing only the names of the
candidates who had originally obtained a general average of
75% without having obtained less than 60% in any subject, and
in pursuance thereof the typewritten list Exhibit C-5 was
prepared (page 77, s. n.), which was approved by the Supreme
Court and published on March 5, 1927. In this list Luis Mabunay
is included with an average of 75%.
Eight or ten days after the publication of the result of the
examinations the list Exhibit C-2 was prepared in the same form
as Exhibit C-1 taking the grades directly from the compositions;
while one of the helpers read them, Deputy Clerk Samson listed
them on the adding machine and computed the general
average of each candidate. The roll of paper used by Deputy
Samson on this occasion was also presented and marked as
Exhibit C-7.
Both rolls, Exhibits C-6 and C-7, as well as the lists Exhibits C-1
and C-2, were kept in the office of Justice Romualdez and were
only taken out when the investigation of the irregularities in the
examinations of 1926 was commenced (page 81, s. n.). And
only in the course of that investigation it was discovered that
the grades of candidate Luis Mabunay, identified with number
898 in roll Exhibit C-6 and in the list Exhibit C-1, which had been
prepared simultaneously, did not agree, because, while roll
Exhibit C-6 shows that the grade in Civil Law of candidate No.
898 is 63, the list Exhibit C-1 shows that the grade of the same
candidate is 73; and while roll Exhibit C-6 shows that the grade
of candidate No. 898 was 58 (in Remedial Law), his grade in the
list Exhibit C-1 is 64 (in the same subject), a difference also
being noted between the general average of candidate No. 898
in Exhibit C-6, which is 72.8%, and his general average on
Exhibit C-1, which is 75% (pages 73, 74, s. n.). This discovery led
to the revision of the compositions of Luis Mabunay in the
examinations of 1926, which were united to his personal record
(Exhibit B), which showed that the grades given to, and written
by the respective correctors on the compositions of said
candidate in Civil Law Exhibit B-1 and Remedial Law Exhibit B-2
had been altered, and further, that the grades that appeared
on said compositions before the alterations were identical with
those that appeared on the roll, Exhibit C-6. An ocular
inspection of page 29 of said Exhibit C-1 shows at first glance
that the numbers 73, 64, and 75 in the columns corresponding
to Civil Law, Remedial Law and General Average, respectively,
were written after erasing with rubber what was there
originally written. It may also be noted, upon an examination
of the alterations appearing on the first pages of compositions
Exhibits B-1 and B-2, that the grades originally written by the
correctors, authenticated by their initials, had been stricken
out in such a way that it is difficult to make out said original
grades, leaving, however, intact, the initials of the correctors.
From these facts it is inferred: First, that the person who erased
and altered the grades written by the correctors on the first
pages of compositions Exhibits B-1 and B-2 wished to make it
appear that said alterations had been made by the correctors
themselves; second, that said alterations were made after the
grades written by the correctors had been noted on the adding
machine in roll Exhibit C-6 and on the list Exhibit C-1 which were
prepared simultaneously; third, that after said alterations had
been made, and in order that the grades so altered should
agree with the grades already written on the list Exhibit C-1, the
grades in Civil Law and Remedial Law were erased with rubber,
and in place thereof were written the grades now appearing in
said compositions. The accused Estela Romualdez having
admitted that she was the author of such alterations, the only
logical inference from her admission and the facts above set
out, is that she was also the person who erased not only the
grades originally written by the correctors on the compositions
Exhibits B-1 and B-2 but also those appearing in the columns
corresponding to Civil Law and Remedial Law on the list Exhibit
C-1, and the same person who wrote the grades now appearing
in said columns, and which agree with those written by her on
compositions Exhibits B-1 and B-2. Now, if the accused Estela
Romualdez erased in the manner stated the grades originally
written, and substituted for them the grades now appearing in
said compositions Exhibits B-1 and B-2 as well as in the columns
corresponding to Civil Law and Remedial Law in the list Exhibit
C-1, it cannot be doubted that in making such erasures and
alterations she not only acted with the intent of concealing her
identity, but she also knew the number and the name of the
candidate to whom said composition belonged, because at that
time the numbers and the names of the candidates were
already written on the list Exhibit C-1, and that list was kept in
the office of Justice Romualdez (page 83, s. n.), were she had
complete and absolute control as private secretary and
supervisor of the examinations.
Participation of the accused Luis Mabunay
Discarding the testimony of witness Juan Villaflor in which he
says that one Luis Mabunay called up the accused Estela
Romualdez on the telephone a few days before the publication
of the results of the examinations, there is, indeed, no direct
proof in the record showing the participation of the accused
Luis Mabunay. However, there is other evidence for the
prosecution establishing certain facts which show strong
indications that he operated in the act before or at the time of
its execution by his coaccused. It has been proved beyond a
reasonable doubt that the accused Luis Mabunay was one of
the candidates who took the bar examinations in 1926; that the
general average obtained by him, according to the computation
appearing on the roll Exhibit C-6 of the adding machine and that
originally written in the list Exhibit C-1 was 72.8%; that after the
Supreme Court denied the recommendation of the
examination committee that all grades from and between 70%
and 75% be automatically raised to 75%, his name,
nevertheless, appeared in the list of successful candidates
which was published on March 5, 1927 (Exhibit C-5), and that
said inclusion was due to the increase of these grades in Civil
Law (Exhibit B-1) and Remedial Law (Exhibit B-2), which was
made by his coaccused by erasing and altering the grades
theretofore given by the correctors.
It is true that the accused Estela Romualdez, in her desire to
show that she had no motive whatsoever for favoring his
coaccused Luis Mabunay, testified that she did not know him
and that the first time she saw him was on the first day of the
trial of this case. However, in view of her inability to explain
why precisely the compositions of said Luis Mabunay had been
benefited by the revision, and in view of the admission of
Justice Romualdez that the power to revise conferred upon
Estela Romualdez could be exercised by her in the compositions
already graded by the correctors in all cases of injustice which
came to her knowledge, or which might be brought to her
attention (page 781, s. n.), her testimony lacks foundation,
because it is absurd to believe that her revision of the
compositions of her coaccused Luis Mabunay was due only and
solely to a happy coincidence.
Furthermore, the accused Mabunay made no effort to
contradict the evidence for the prosecution with reference to
his withdrawal of the amount of P600 from his savings account
in the Philippine Trust Company on the second day of March,
1927, or three days before the publication of the result of the
examinations (Exhibit I) which, when correlated with the
deposit of the sum of P400 made by the accused Estela
179
Romualdez in her current account (Exhibit H) with the Bank of
the Philippine Islands on the seventh day of said March, 1927,
may, perhaps, give an explanation of the motive of said accused
Page
for increasing the grades of Mabunay with just the necessary
 points to reach the lowest passing general average. It is also
true that Estela Romualdez testified that said amount had been
sent to her by her cousin named Prisca Magpayo Redona from
the province for the purchase of merchandise for sale at the
latter's store (page 791, s. n.), but the testimony in that respect
was not corroborated either by her said cousin, or by any other
persons mentioned by her as the bearers of said amount, or by
the corresponding check or postal money order, as she had
done when referring other deposits in the bank.
Conclusion
In view of the foregoing considerations, the court finds that the
allegations of the information are sufficiently supported by the
evidence and that the accused, Estela Romualdez and Luis
Mabunay are guilty beyond a reasonable doubt; the former as
principal and the latter as accomplice, of the crime of
falsification of official documents with which they are charged
and, therefore, a judgment is rendered sentencing Estela
Romualdez, who was a Government employee at the time of
the commission of the crime, to suffer, in accordance with
article 300 of the Penal Code, as amended by section 1 of Act
No. 2712, six years and one day of prision mayor with the
accessory penalties of the law, to pay a fine of 1,000 pesetas,
without subsidiary imprisonment in view of the nature of the
penalty, and also to suffer the penalty of perpetual
disqualification from public office; and her coaccused Luis
Mabunay, who was a private individual with respect to said
examination, to suffer, under the provisions of article 301 as
amended by section 2 of Act No. 2712 and article 67 of the
Penal Code, the penalty of four months and one day of arresto
mayor, with the accessory penalties of the law, and to pay a
fine of 250 pesetas, with subsidiary imprisonment in case of
insolvency, and each to pay one-half part of the costs.
The appellant Estela Romualdez through her attorneys makes the
following assignments of error:
I. The trial court erred in finding the accused, Estela Romualdez,
guilty of the crime of "falsification of public and official
documents" and in sentencing her to suffer imprisonment
without due process of law, contrary to section 3, Act of
Congress of August 29, 1916, entitled "An Act to Declare the
Purpose of the People of the United States as to the future
Political Status of the People of the Philippine Islands, and to
Provide a More Autonomous Government for those Islands".
II. The trial court erred in not finding, that the accused, Estela
Romualdez, was fully authorized to make the alterations she in
fact made on the composition papers of Luis Mabunay, Exhibits
B-1 and B-2 of the Government, and in denying full credit to the
uncontradicted testimony of Mr. Justice Norberto Romualdez,
chairman of the bar examining committee for the year 1926,
concerning the authority granted her.
III. The trial court erred in failing to extend to the accused Estela
Romualdez a fair and impartial trial.
The attorneys for the appellant Luis Mabunay allege that the trial court
committed the following errors:
I. The trial court erred in not crediting the uncontradicted
testimony of Justice Romualdez with reference to his authority
as chairman of the bar examination committee of the year
1926, to confer upon the accused Estela Romualdez, the
powers he in fact conferred upon her, in connection with said
examination.
II. It also erred in not crediting the uncontradicted testimony of
Justice Romualdez as to the fact that he, as chairman of the bar
examination committee of 1926, really and truly conferred
upon the accused Estela Romualdez the powers which she
exercised in that examination.
III. It also erred in concluding that the accused Estela
Romualdez did not exercise the powers conferred upon her by
the chairman of the bar examination committee of 1926, within
the limits fixed by said chairman, to wit: that the new revision
and grading of the compositions be made in order to do justice
thereto, and before the names of the corresponding candidates
were known.
IV. It likewise erred in concluding that the accused Estela
Romualdez changed the general average and the grades of
candidate Luis Mabunay in Civil Law and Remedial law on the
list Exhibit C-1.
V. The lower court erred in not admitting the expert testimony
of Wm. J. Rhode, Felicisimo Feria, and Claro M. Recto, as well
as Exhibits 26 and 27, containing the opinion of said lawyers as
to the grades to which said compositions Exhibits B-1 and B-2
were justly entitled.
VI. It also erred in not concluding that Jeronimo Samson used
the same powers exercised by the accused in the bar
examination of 1926.
VII. Granting that the accused Estela Romualdez knew that
compositions Exhibits B-1 and B-2 belonged to her coaccused
Luis Mabunay when she reviewed and regraded them, the
court erred in concluding that said act constitutes the offense
charged in the information.
VIII. Granting that Justice Romualdez, as chairman of the bar
examination committee of 1926, was not authorized by the
Supreme Court to confer upon Estela Romualdez the powers
which she exercised in that examination, the court erred in
concluding that she altered the grades of said compositions
willfully and feloniously.
IX. The lower court also erred in concluding that Estela
Romualdez intended to conceal her identity when she revised
and regraded compositions Exhibits B-1 and B-2.
X. It also erred in concluding that the accused Estela
Romualdez, in exercising her powers as supervisor of the
correctors in said bar examinations, revised compositions
Exhibits B-1 and B-2 only, in order to regrade them.
XI. It also erred in suggesting that her motive, in revising and
regrading said compositions Exhibits B-1 and B-2, was the fact
that she had received from her coaccused Luis Mabunay the
sum of P400.
XII. Granting that the accused Estela Romualdez committed the
offense of falsification with which she is charged, the lower
court erred in concluding that Luis Mabunay participated in its
commission.
In addition to the usual brief for each of the accused, the attorneys for
the appellants filed a joint memorandum on July 10, 1929. The Attorney-
General filed a brief on behalf of the People of the Philippine Islands and
a reply to the memorandum for the defense.
The court at that time consisted of nine members, one of whom, Justice
180
Romualdez, was disqualified to sit in this case. Upon a consideration of
the case on its merits, four justices were in favor of affirming the decision
of the trial court and the same number were in favor of acquitting the
Page
defendants. The court being unable to reach a decision in the usual
course, an attempt was made on February 11, 1930 to break the
deadlock, as is evidenced by the following resolution:
The court having under consideration again the case of People
vs. Romualdez, et al., No. 31012, those participating being all
the members of the court, except Mr. Justice Romualdez, who
was disqualified, it was moved that following precedents
elsewhere, particularly in the United States Supreme Court, to
the effect that when there is an equal division in the court and
there is no prospect of a change in the vote the judgment
appealed from stand affirmed, and in accordance with the
action taken in the case of Nacionalista Party vs.Municipal
Board of Manila, No. 21265 — the judgment in the case at bar
be affirmed. Mr. Chief Justice Avanceña and Messrs. Justices
Malcolm, Ostrand, and Johns voted in favor of the motion.
Messrs. Justices Johnson, Street, Villamor, and Villa-Real voted
against the motion. Mr. Justice Johnson based his dissent on
the peculiar statutory provisions in force in the Philippine
Islands. For want of a majority, the motion was lost.
The court thereupon directed that the clerk retain the record in
the case until the further order of the court.
On January 12, 1931 Luis Mabunay filed a motion praying that the case
against him be considered separately and he be absolved from the
complaint. This motion was denied by the court. He renewed his motion
on August 1, 1931. This motion was also denied on the ground that no
severance had been asked for in the lower court, and for the further
reason that there was a prospect that the membership of the court would
soon be increased.
The membership of the court was finally increased to eleven, and due to
the death or retirement of three justices only six of the former members
remained. On June 23, 1932 Courtney Whitney as attorney for Estela
Romualdez filed a petition praying that this case be set for a rehearing
before the court as newly constituted. This motion was granted. On July
2, 1932 he filed a motion for the dismissal of the information, alleging
that because of the inability of the court to reach a determination from
the facts as to the guilt or innocence of the defendant-appellant Estela
Romualdez, she had been denied her right to a speedy trial. This motion
was denied.
After a reargument of the case, the attorney for Estela Romualdez filed
an additional memorandum, to which the Attorney-General filed a reply.
Under the first assignment of error, the attorneys for Estela Romualdez
maintain that even if the lower court's findings of fact be justified by the
evidence of record, "they fail to sustain that any criminal offense,
recognized under the laws of the Philippine Islands, has been
committed." They contend that the appointment of the committee of
attorneys by Justice Romualdez to read and grade the examination
papers was not warranted by law, and that therefore the alteration by
the defendant Estela Romualdez, under the circumstances alleged in the
information, of the grades in question did not constitute a crime.
The testimony of Justice Romualdez, who was a witness for the defense,
completely refutes this contention. He testified that the bar examining
committee was composed of two groups of attorneys: Those that were
appointed to prepare the questions, and those that were appointed to
grade the papers. He further testified that the court was informed of the
way in which the examination was conducted and that it approved
thereof. There were more than a thousand candidates and some eight
thousand papers. According to the contention of appellant's attorneys
only the seven attorneys appointed to prepare the questions or the court
itself could lawfully grade these papers. Such a contention is clearly
untenable. The attorneys that prepared the questions did not intervene
in the grading of the papers, but they prepared a key to the questions,
which served the other group of attorneys, the readers or "correctors",
as a guide in grading the papers. The intervention of the "correctors" was
just as legal as that of the attorneys that prepared the questions, and the
intervention of the two groups of attorneys was perfectly regular and
valid.
It is also contended that the examination papers which the defendant
Estela Romualdez altered were not public or official documents. That
contention is likewise without merit. As stated by her attorneys, the
examination of candidates for admission to the bar is a judicial function.
It cannot therefore be maintained with any show of reason that the
papers submitted by the candidates in the course of the examination
were not public and official documents, or that the alteration, under the
circumstances alleged in the information, of the grades given to such
papers by the "correctors" was not a crime. (In re Del Rosario, 52 Phil.,
399, where this court refers to the falsification of his examination papers
as "falsification of public documents"; People vs. Castro and Doe, 54 Phil.,
41, where the conviction of Castro for the falsification of his examination
papers was affirmed.)
In accordance with the established practice of the court to have one of
its members each year make all the necessary arrangements for the bar
examination, the Chief Justice in 1926 designated Justice Romualdez for
that purpose, and in pursuance thereof he appointed one group of
attorneys to prepare the questions and another group to grade the
papers. If any of these attorneys were designated by the clerk of the
court, it was with the advice and consent and on the authority of Justice
Romualdez.
The phrase "falsification of a document" is not used in articles 300 and
301 of the Penal code in the ordinary acceptation of the words. It has a
technical meaning, and according to article 300 may be committed in the
following eight ways:
1. By counterfeiting or imitating any handwriting, signature, or
rubric.
2. By causing it to appear that persons have participated in any
act or proceeding when they did not in fact so participate.
3. By attributing to persons who have participated in an act or
proceeding statements other than those in fact made by them.
4. By making untruthful statements in a narration of facts.
5. By altering true dates.
6. By making any alteration or intercalation in a genuine
document which changes its meaning.
7. By issuing in authenticated form a document purporting to
be a copy of an original document when no such original exists,
or by including in such a copy a statement contrary to, or
different from, that of the genuine original.
8. By intercalating any instrument or note relative to the
issuance thereof in a protocol, registry or official book.
The acts of the accused are covered by paragraphs 2, 3, and 6. She made
the alterations in the grades in such a way as to make it appear that the
"correctors" had participated therein, because she blotted out the grades
of the "correctors" and wrote new and increased grades opposite their
initials, without indicating by her own initials that she had made the
alterations. She in that way attributed to the "correctors" statements
other than those in fact made by them. Her only explanation of why she
altered the grades in that way was that it pleased her to do so.
A decision in point has just come to hand. It is reported in 180 N. E., 725,
and is referred to in the American Bar Association Journal for August,
1932, p. 497. A bill was presented in the Massachusetts Senate
181
prohibiting the marking of the examination papers of applicants for
admission to the bar by any person not a member of the board of bar
examiners. The Senate wished to know whether such a bill, if enacted,
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would be an unconstitutional interference with the functions of the
Judicial Department, and asked the Justices of the Supreme Judicial Court
for an advisory opinion. They replied that such a law would be
unconstitutional. In the course of the opinion they said: "If the judicial
department decides that the marking of the written examinations may
be performed by competent persons not members of the board but
acting under the direction of such members, that pertains directly to the
ascertainment of the qualifications of applicants. It is a definite attribute
of the judicial department and not an immaterial incident." It was also
stated that the plan of employing assistants to aid the bar examiners in
marking the papers had been approved by the Supreme Judicial Court.
In the second assignment of error, the attorney for Estela Romualdez
maintains that the trial court erred in not finding that she was fully
authorized to make the alterations she in fact made on the examination
papers of Luis Mabunay, Exhibits B-1 and B-2, and in denying full credit
to the uncontradicted testimony of Justice Norberto Romualdez,
chairman of the bar examining committee for the year 1926, concerning
the authority granted her.
In the first place, we find it difficult to believe that Justice Romualdez ever
gave the accused the authority which she claims to have received; and in
the second place, even if it be assumed that he gave her the alleged
authority, she did not exercise it in accordance with the terms thereof.
The defense would have us believe that Justice Romualdez regarded his
secretary, Estela Romualdez, and the deputy clerk, Jeronimo Samson,
who were themselves "correctors" as supervisors of the other
"correctors", and that he authorized Estela Romualdez to revise any
grade to correct an injustice, without consulting or notifying the other
supervisor, Samson, or the "correctors' who had graded the paper,
without requiring her to initial the alteration, or to make any record
thereof or any report to him or to anybody else.
Justice Romualdez was designated by the Chief Justice to conduct the
examination in accordance with the law and the Rules of Court. He
himself had no such authority as he is alleged to have given his secretary.
He is presumed to have discharged his duties in accordance with the law,
and it is inconceivable that he would without any warrant of law give or
attempt to give his secretary the unlimited authority which she claims to
have received, thereby enabling her to alter at will any grade or any
paper, without making any record thereof or any report to anybody. The
mere statement of such a claim shows that it is preposterous.
No such authority was given to Samson, who according to Justice
Romualdez was regarded by him as a supervisor of equal rank with Estela
Romualdez. Samson was never notified that he was regarded as a
supervisor, and he never acted in that capacity.
Let us notice how this unlimited authority is alleged to have been granted
to the accused Estela Romualdez.
It was not in writing or evidenced by any memorandum. It was not even
a positive statement. Justice Romualdez testified that he believed that on
a certain occasion he gave his secretary to understand that if a case
should be brought to her attention she might revise any grade to prevent
an injustice, so long as she did not know the name of the candidate to
whom the paper belonged. When asked where she was when the
pretended authority was given to her, the accused could not remember.
There was according to the theory of the defense nothing to prevent
Samson from revising the revision of Estela Romualdez, because she did
not initial the changes made by her, and he was supposed to be a
supervisor of equal rank.
If it be admitted for the sake of argument that the accused Estela
Romualdez was given the authority which she claims to have received,
nevertheless she was not authorized to change the grades now in
question, because when she made the changes she already knew that the
papers belonged to her coaccused Luis Mabunay. The evidence fully
sustaining that conclusion is carefully set forth by the trial court, and it is
unnecessary for us to review it. The testimony of Justice Romualdez to
the effect that the accused acted within the authority granted her in
changing the grades in question was a mere expression of opinion. It was
clearly inadmissible and not binding on the court. The accused Estela
Romualdez did not even attempt to explain under what circumstances
she raised the grades of her coaccused so as to enable him to obtain the
necessary general average of 75 per cent. She did not confer with the
"correctors" who had graded the papers in question. She di not attempt
to explain how she arrived at the increased grades, or how she came to
revise the grades in question, how she happened to pick these two papers
out of eight thousand. She could not point to any other grades that had
been altered by her.
Under the second assignment of error the attorney for Estela Romualdez
also alleges that she freely and voluntarily admitted from the start of the
trial of her case that the alterations had been made by her, and concludes
therefrom that she acted in good faith. We cannot agree either with the
statement of fact or the conclusion. The accused Estela Romualdez did
not admit that the alterations were made by her until after the
prosecuting attorney had presented three hundred and fifty pages of
testimony and announced his readiness to prove by three handwriting
experts that the alterations were in the handwriting of the accused. The
evidence shows that before the trial defendant's attorney from the
fiscal's office a photograph that had been made for the purpose of
comparing a specimen of defendant's handwriting and that of the altered
grades. The fact that the defendant Estela Romualdez made the
alterations under the circumstances which we have mentioned, when she
already knew that the papers belonged to Mabunay, disproves any
contention that she acted in good faith.
In the case of the United States vs. Ballesteros (25 Phil., 634), this court
said:
When the unlawful acts charged against an accused are
established by competent evidence, criminal intent may be and
will be presumed, unless such intent is rebutted by the
introduction of evidence sufficient to overcome this
presumption, and satisfactorily disclosing the absence of such
criminal intent.
The third assignment of error made by the appellant Estela Romualdez is
that the trial court erred in failing to extend to her a fair and impartial
trial. We shall not waste much time on this assignment of error, which is
utterly without merit. The record itself completely refutes any such
contention. If the learned trial judge erred, it was in permitting the
attorneys for the defendants too great latitude in arguing their
objections. Arguments four and five pages long were incorporated into
the stenographic record of the evidence. The record shows a most
unjustifiable attack on the good faith of the fiscal and a persistent effort
to embarrass him in presenting his evidence against the accused.
The appellant Luis Mabunay makes twelve assignments of error. They are
for the most part embraced in the assignments of error of his coaccused
which we have already considered. These remain only his fifth, eleventh,
and twelfth assignments of error. In his fifth assignment of error it is
alleged that the lower court erred in not admitting the expert testimony
of attorneys Wm. J. Rhode, Felicisimo Feria, and Claro M. Recto, and in
rejecting Exhibits 26 and 27, which contain the opinion of said attorneys
as to the correct grades which the examination papers Exhibits B-1 and
B-2 deserved.
The lower court sustained the objection to the admission of the
testimony of these three attorneys on the ground that it was not the best
evidence, and suggested that the defense might call the members of the
examining committee that prepared the questions in Remedial Law and
Civil Law and the key thereto. The attorneys for the defense did not see
fit to adopt the suggestion of the court. It is not true therefore that the
lower court deprived the accused of an opportunity of showing that the
examination papers in question deserved the increased grades which the
182
defendant Estela Romualdez gave them. The attorneys that prepared the
questions and the key to the answers were certainly the persons best
qualified to decide whether or not the questions were correctly
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answered. The opinion of other attorneys, who had nothing to do with
the examination, would only lead to confusion. We find no merit in this
assignment of error.
The eleventh assignment of error is that the trial court erred in
insinuating that the motive of the accused Estela Romualdez in reviewing
and regrading the examination papers Exhibits B-1 and B-2 was the fact
that she had received four hundred pesos from her co-accused Luis
Mabunay.
The twelfth assignment of error is that if it be assumed that the accused
Estela Romualdez committed the crime of falsification imputed to her in
the information, the court erred in concluding that the accused Luis
Mabunay participated in its commission.
For the sake of convenience we shall consider these two assignments of
error together.
In the first place we should like to say that there is no evidence to show
that Estela Romualdez ever reviewed the examination papers of her
coaccused. So far as the evidence shows, she merely raised his grades in
two subjects, thus giving him by "a happy coincidence", to use her own
words, a passing mark. She could not or would not enlighten the court as
to why she raised the grades of Luis Mabunay so as to enable him to be
admitted to the bar. As already stated, the record does not show that she
raised the grades of any other candidate.
The evidence shows that Luis Mabunay had failed in two previous
examinations, and that he failed in the examination in question, receiving
a general average of only 72.8%. The bar examining committee
recommended that not only those having the required general average
of 75 per cent be admitted, but also that those who had received
between 70 and 75 per cent. This is referred to in the record as "an
automatic increase". It was not automatic but arbitrary, and was
disapproved by the Supreme Court, and the committee was directed to
prepare a new list and to include therein only those who had obtained a
general average of 75 per cent. The name of Luis Mabunay was included
in the new list submitted three days later, notwithstanding the fact that
he had obtained a general average of only 72.8 per cent, precisely
because Estela Romualdez had in the meantime raised the grades now in
question so that he appeared to have obtained the general average
required for admission to the bar.
The evidence shows that on March 2, 1927 Luis Mabunay withdrew P600
from the Philippine Trust Co., and that on March 7, 1927 Estela
Romualdez deposited P510 in the Bank of the Philippine Islands. Luis
Mabunay did not testify, and he did not present any evidence to show for
what purpose he withdrew P600 from the bank immediately after the
first list was disapproved.
In the case of United States vs. Tria (17 Phil., 303, 307), Justice Moreland
speaking for the court said:
An accused person sometimes owes a duty to himself if not to
the State. If he does not perform that duty he may not always
expect the State to perform it for him. If he fails to meet the
obligation which he owes to himself, when to meet it is the
easiest of easy things, he is hardy indeed if he demand and
expect the same full and wide consideration which the State
voluntarily gives to those who by reasonable effort seek to help
themselves. This is particularly so when he not only declines to
help himself but actively conceals from the State the very
means by which it may assist him.
In the famous case of the Commonwealth vs. Webster (5 Cushing, 295,
316), Chief Justice Shaw laid down the following rule:
When pretty stringent proof of circumstances is produced,
tending to support the charge, and it is apparent that the
accused is so situated that he could offer evidence of all the
facts and circumstances as they existed, and show, if such was
the truth, that the suspicious circumstances can be accounted
for consistency with his innocence, and he fails to offer such
proof, the natural conclusion is, that the proof, if produced,
instead of rebutting, would tend to sustain the charge. But this
is to be cautiously applied, and only in cases where it is manifest
that proofs are in the power of the accused, not accessible to
the prosecution.
Estela Romualdez showed that of the sum of P510 P100 was paid to her
by her mother and only P10 by her brother, but she could not
satisfactorily prove where the remaining P400 came from. She said it was
sent to her by her cousin, Prisca Magpayo Redona, for the purchase of
goods, but she could not name the person that brought the money to her,
or explain why she deposited it in the bank. She did not attempt to show
that she had paid it out by means of checks for the purchase of goods for
her cousin. She did not call her cousin as a witness.
An accused person runs the risk of an inference against him
because of failure to produce evidence. The inference, unless
the failure to produce evidence is explained away, is that the
tenor of the specific unproduced evidence would not support
the party's case. (U. S. vs. Sarikala, 37 Phil., 486.)
In the case just cited the court quoted with approval the following rules
as stated by Dean Wigmore in his work on Evidence, Vol. IV, p. 3148:
The failure to produce evidence, in general, other than his own
testimony, is open to inference against a party accused, with
the same limitations applicable to civil parties. Here the effect
of the burden of proof has sometimes tended to confuse. It is
true that the burden is on the prosecution, and that the
accused is not required by any rule of law to produce evidence;
but nevertheless he runs the risk of an inference from
nonproduction. This seeming paradox, which has been already
sufficiently noticed in treating of the general principle, has
misled a few courts to deny that any inference may be drawn.
The alterations in the grades made by Estela Romualdez were made for
the sole use and benefit of her coaccused Luis Mabunay. They were made
willfully and illegally, and after the Supreme Court had rejected those
candidates that had received less than 75 per cent. The alterations were
therefore made after Mabunay had failed, and he withdrew the money
after he had time to learn from his coaccused that he had failed. It was
under those circumstances incumbent upon the accused Mabunay to
present evidence to show for what purpose he withdrew the six hundred
pesos from the bank. As this court said in the case of Worcester vs.
Ocampo (22 Phil., 42):
When the circumstances in proof tend to fix the liability on a
party who has it in his power to offer evidence of all the facts
as they existed and rebut the inferences which the
circumstances in proof tend to establish, and he fails to offer
such proof, the natural conclusion is that the proof, if
produced, instead of rebutting would support the inferences
against him, and the court is justified in acting upon that
conclusion.
The case of In re Del Rosario (52 Phil., 399), is directly on point. Felipe del
Rosario failed for the third time in the bar examination of 1926. He then
filed a motion for the revision of his grades, based on an alleged mistake
in computation. This motion was granted, and he was admitted to the
bar. It was subsequently found that alterations had been made in his
examination papers, and he and Juan Villaflor were prosecuted for the
falsification of a public document. Villaflor assumed full responsibility for
the commission of the crime, and testified that Del Rosario did not know
anything about the making of the alterations. The trial court acquitted
183
Del Rosario, but upon a view of the case for the purpose of taking
disciplinary actin against him Justice Malcolm, speaking for the court in
banc, said:
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 It is asking a great deal of the members of the court to have
them believe that Felipe del Rosario was totally unaware of the
illegal machinations culminating in the falsification of public
documents, of which he was the sole beneficiary.
The attorney's certificate of Felipe del Rosario was cancelled.
In the case of People vs. Bella Bautista (53 Phil., 158), the accused was
charged with the falsification of a public document. The evidence showed
that in the Register of Attorneys the name of an attorney had been
erased, and that the accused had written his own name in that space,
although he had not admitted to the bar. The accused contended that he
wrote his name in the register under the direction of an employee of the
court, and that he acted in good faith. He was convicted, and on appeal
the decision was affirmed. This court in its decision said: "The trial court
suggests in the opinion that the offense committed required the
participation of some unfaithful employee of the court. But this fact, as
the court found, did not lessen the criminal responsibility of the
appellant."
It is alleged in the information that the accused conspired together and
acted in common accord in the commission of the crime. As the Attorney-
General says, a conspiracy can seldom be proved except by circumstantial
evidence, but once it is proved, the acts of one of the conspirators are
the acts of all. (U. S. vs. Ipil., 27 Phil., 530.)
The existence of the assent of minds which is involved in a
conspiracy may be, and, from the secrecy of the crime, usually
must be, inferred by the jury from proof of facts and
circumstances which, taken together, apparently indicate that
they are merely parts of some complete whole. If it is proved
that two or more persons aimed by their acts towards the
accomplishment of the same unlawful object, each doing a part
so that their acts, though apparently independent, were in fact
connected and cooperative, indicating a closeness of personal
association and a concurrence of sentiment, a conspiracy may
be inferred though no actual meeting among them to concert
means is proved. Evidence of actual participation, rather than
of passive acquiescence, is desirable. But proof of acquiescence
in, or consent to, the actions of others is relevant to show the
criminal intention of the passive party, and generally the
smallest degree of consent or collusion among parties lets in
the act or words of one against the others. (Underhill on
Criminal Evidence, pp. 795, 796.)
For the foregoing reasons, we find that the conclusions of the trial court
are fully justified by the evidence.
As the accused Estela Romualdez took advantage of her official position
in committing the crime, the trial court found her guilty of a violation of
article 300 of the Penal Code, as amended by Act No. 2712, and
sentenced her to suffer six years and one day of prision mayor, and the
accessory penalties provided by law, to pay a fine of 1,000 pesetas, and
to suffer perpetual disqualification to hold any public office.
The penalty provided by the Penal Code is prision mayor in full extent, or
from six years and one day to twelve years, and the penalty under the
Revised Penal Code being the same, and there being no aggravating or
mitigating circumstance present in the commission of the crime, the
penalty should be imposed in the medium degree, which is from eight
years and one day to ten years. The penalty imposed on the appellant
Estela Romualdez is therefore increased to eight years and one day
of prision mayor.
The trial court found the defendant Luis Mabunay guilty as an accomplice
under article 301 of the Penal Code, the crime not being connected with
the performance of his duties as an employee of the Government, and
sentenced him to suffer four months and one day of arresto mayor, and
the accessory penalties provided by law, and to pay a fine of 250 pesetas,
with subsidiary imprisonment in case of insolvency. The defendants were
each sentenced to pay one-half of the costs.
We find that the lower court erred in holding that Luis Mabunay was
merely an accomplice. He was a conspirator and coprincipal of Estela
Romualdez. The penalty provided by article 301 of the Penal Code, as
amended by Act No. 2712, is prision correccional in the maximum degree,
but that has been changed by the Revised Penal Code toprision
correccional in the medium and maximum degrees, and the medium
degree of that penalty is from three years, six months, and twenty-one
days to four years, nine months and ten days. The prison sentence of Luis
Mabunay is therefore increased to three years, six months, and twenty-
one days of prision correccional.
The decision of the trial court is modified as hereinabove stated. In all
other respects it is affirmed, with the costs against the appellants.
Ostrand, Abad Santos, Hull, Imperial and Butte, JJ., concur.
Separate Opinions
AVANCEÑA, C.J., concurring:
I agree with the majority opinion. My vote regarding the defendant,
Estela Romualdez, is based on the ground that she did not act under
authority alleged to have been given her by Justice Norberto Romualdez.
She made the alteration after the candidates' names were already
known. She did not act in the interests of justice, inasmuch as among the
compositions of 1,056 candidates she examined those of her coaccused
Luis Mabunay only, and she failed to show or to allege that before
examining his compositions she had reasons for believing that Mabunay's
case was meritorious.
MALCOLM, J., concurring:
I concur with the comprehensive opinion of the majority in its principal
features, but more especially am I in accord with the views expressed by
the Chief Justice. My position will bear a word of explanation.
The charge is that of falsification of a public document by the accused
Estela Romualdez, secretary to Justice Romualdez, acting in conspiracy
with Luis Mabunay, a candidate in the 1926 bar examinations, by altering
the grades of the candidate so that it was feloniously made to appear that
he had passed the bar examinations. The finding was of guilt in a decision
by the trial judge, concerned almost entirely with questions of fact.
Speaking to these questions, since this case should be considered exactly
in the same manner as any other case, these findings are entitled to our
most respectful consideration. Not desiring to enlarge upon the findings,
it is only necessary to observe that the changes made in the papers of the
candidate Mabunay have been admitted by the accused Estela
Romualdez to have been made by her in her ordinary handwriting. Added
to this we have the testimony of Justice Romualdez as follows: "As
supervisor, I believe that there were occasions when I made her
understand that in order to do justice to the candidates, she could revise
papers already graded by the other correctors, provided that the new
revision was made before the name of the candidate concerned was
known." In this connection it has been demonstrated beyond civil by a
series of damaging and fatal circumstances that during the three-day
interval between the making of the first report of the bar examinations
and the second report when the names of the candidates were known,
the accused Estela Romualdez made changes in the grades of Luis
Mabunay in express contravention of the authority alleged to have been
given her by Justice Romualdez and in bad faith. Not alone were the
erasures on the papers made in a manner difficult to be deciphered,
leaving below the erasures the initials of the readers; not alone did the
accused fail to place her own initials over the changes; not alone was
184
there no attempt to show why the grades were increased to give exactly
a general average of 75 per cent, but there are two other circumstances
entirely inconsistent with innocence. The first is that two of the readers,
Page
namely, Jeronimo Samson, the deputy clerk of court, and Estela
Romualdez were supposed to have identical authority, yet Samson never
understood that he had any right to change grades without the
knowledge of the readers in the particular subject; when Samson acted
as a substitute reader, changes were made with the knowledge and
consent of the other reader and Samson placed his initials under the new
grades. The second question is how Estela Romualdez could remember
having made erasures in the grades in two papers out of eight thousand
to the advantage of one candidate out of more than one thousand, but
could not recall any other similar incident and could not offer any
explanation of why the grades of the one candidate merited an increase.
I am, therefore, constrained to conclude that the findings of fact, along
the line above indicated, made in the trial court and here confirmed by
other judges who have minutely examined the record, must be taken as
conclusively established.
The legal features of the case offer no particular difficulties. Articles 300
and 301 of the old Penal Code were violated. Examination papers leading
to admission to the bar constitute a part of judicial proceedings and are
in the nature of public documents. These documents were altered and
their meaning changed to permit a candidate in the bar examinations
illegally to be admitted at the bar.
A number of cases growing out of the bar scandal of 1926 have reached
this court and have resulted in convictions. Basically there is no difference
in fact and in law between the principles governing those cases and the
principles governing the case before us. If the accused in those cases
merited punishment, the accused Estela Romualdez and Luis Mabunay
are equally guilty.
STREET, J., dissenting:
It is the opinion of the undersigned that the acts imputed to Estela
Romualdez do not constitute the crime of falsification of a public
document, and with respect to Luis Mabunay there is no proof
connecting him in any way whatever with the acts of Romualdez. As a
preliminary to the demonstration of these conclusions it appears
desirable to give few words of explanation to show how the situation
arose with which the court is here confronted.
Under the American occupation, prior to the year 1921, high school
graduates were eligible to take the course in law in any accredited law in
the Philippine Islands. In that year, however, the court decided to require
two years of college work as a prerequisite to matriculation in a law
school, thereby materially raising the standard of education of lawyers.
But inorder not to affect adversely the rights of those who were already
qualifying under the prior rule, the requirement for two years of college
work was made effective beginning with the examinations in 1927. It
resulted that 1926 was the last year in which examinations could be taken
under the old rule, and there were nearly 1,100 candidates who
presented themselves for examination in that year.
It has been the usage of this court to place the bar examinations for each
year in the hands of a member of the court designated by the Chief
Justice; and it is made the duty of this member to appoint the examiners
and to superintend the giving of the examinations. In the year 1926
Justice Norberto Romualdez was named to conduct the examinations,
and he appointed the requisite number of members of the bar to prepare
the questions in the several subjects of examination. In view of the great
number of papers to be read in that year, it was quite evident that able
lawyers could not be expected to read so many papers, as the work, as
could be foreseen, would undoubtedly have taken up months of their
time. Justice Romualdez, therefore, upon the suggestion of our clerk,
decided to adopt the plan followed in the Bureau of Civil Service, which
is, to appoint readers (referred to in the record as "correctors") to read
and grade the examination papers in conformity with the written guides
prepared by the examiners. These readers (as we shall call them) were
qualified lawyers chosen from the Government service, chiefly from the
personnel of the Supreme Court and of the Bureau of Justice.
The reading of the papers occupied a period of about six months, and the
report presented by the examiners was not finally passed upon by the
court until March 5, 1927. The questions in the examination in Civil Law
were prepared by Francisco Ortigas, and the questions in Remedial Law
were prepared by Judge J. C. Abreu. The two readers primarily chosen to
read and grade the papers in Civil Law were Jeronimo Samson and Amado
del Rosario, and the readers in Remedial Law were Alfonso Felix and
Marciano Guevara.
As Justice Romualdez had general charge of the examinations, his niece,
Estela Romualdez, who was also his secretary and who had been
admitted to the bar in 1925, was selected as one of the readers. In
addition to her duties as mere reader, Justice Romualdez confided to her
the custody of the examination papers and other apparatus of
examination, which were kept under key in his office when not in issue.
Samson was at this time a deputy clerk of this court, and because of his
official position he and Miss Romualdez were charged with the
supervision of the clerical work connected with the examinations.
In the conduct of the bar examinations it is important that the examiner
or reader of papers should have no knowledge of the personality of the
author of any composition when the same is read and graded, and a
device had been adopted in the clerk's office which was supposed to
accomplish this end. This was that the name of the candidate was not
permitted to appear on the composition. Instead, there was assigned in
the clerk's office a number to each candidate, and this number was
written on the outside of small envelope affixed to the composition when
it was turned in by the candidate. Sealed within the same envelope was
a small slip of paper containing the corresponding name of the candidate.
A record of the names and numbers was also kept in the clerk's office.
Every step in the reading, grading, and collating of the examination
papers was therefore supposedly taken before the names of the different
candidates were known.
When the work of the various readers in this case had been collated in
the latter part of February, but before the names of the various
candidates had yet been written in the list showing the results, the
committee of the bar examiners was called together. Upon assembling
the committee found that the percentage of candidates passing was
exceedingly low, being around ten per centum of the total number of
candidates. This result was no doubt partly due to the hasty way in which
a great number of immature candidates had rushed in the hope of being
admitted to the bar before the standards of the examination were raised,
and in part also doubtless to the fact that the readers had applied the
straight-edge pretty firmly in judging the grades. The committee of the
bar examiners therefore thought it proper to suggest to the court the
propriety of admitting all the candidates who had made as much as 70
per centum, and a recommendation to this effect was submitted to the
court. With this suggestion the court did not agree, and a new list had to
be made up, showing as passing the names only of those who had made
the requisite average of 75 per centum in all subjects without falling
below 60 per centum in any.
Among the candidates in these examinations was the accused Luis
Mabunay, to whom, at the examinations, was assigned number 898. In
the list submitted by the bar examiners recommending that all be
admitted who had made a general average of 70, Luis Mabunay appeared
as receiving 72.8 per centum; and when the court decided that the
passing grade could not be lowered, the result was naturally fatal to him
as a candidate. But in the list later submitted to the court containing only
the names of those who had made an average of 75 the same Luis
Mabunay appeared as having received the requisite per cent. Upon the
showing his name was therefore passed as a successful candidate.
The explanation is that, in the interval between the submission of the first
recommendation of the bar examiners and the submission of the later
list, the grades corresponding to Luis Mabunay were raised by Miss
Romualdez in an amount sufficient to give him a general average of 75
per centum. In this connection it appears that in the subject of Civil Law
Jeronimo Samson and Amado del Rosario had assigned to Luis Mabunay
185
63 per centum as the value of his composition in that subject, and this
number was written on the composition cover and accredited by the
initials of the two examiners. This credit was raised by Miss Romualdez
Page
to 73. Likewise in Remedial Law the readers Alfonso Felix and Marciano
Guevara had given 58 as the value of the paper. This credit was changed
by Miss Romualdez to 64. In effecting these changes Miss Romualdez in
each case obliterated the original grades by the use of pen and ink, and
wrote thereunder in her own hand "73" and "64" in words and figures.
She did not sign her name to this alteration but left intact the initials of
the original graders. No attempt was made by her to imitate the script
used by the graders, and the making of these changes was admitted by
her.
Justice Romualdez, testifying as a witness in the case, stated that he
authorized Miss Romualdez, upon finding any error made by the readers,
to correct it, provided that this should be done before the names of the
candidates should be known. Miss Romualdez testified that the changes
effected by her in the papers of her coaccused were made under this
authority. Furthermore, at the trial of the case, she offered to prove by
three able lawyers of the Manila bar that the grades actually assigned by
her to the papers referred to were fully merited by the answers given.
The trial court refused to admit this testimony, and there is nothing
before us to show whether the changes made were in conformity with
the merit of the papers or not.
The case for the prosecution supposes that the changes above referred
to were made by Miss Romualdez in bad faith and that she was corrupted
by Luis Mabunay to make the changes in his papers for the purpose of
securing his successful completion of the examinations when in fact he
had failed. In this connection proof was submitted showing that on March
7, 1927, Luis Mabunay withdrew from his savings account in the
Philippine Trust Co. the sum of P600, and that on March 7, 1927, Miss
Romualdez deposited a sum of money to her credit in the Bank of the
Philippine Islands, among the items of which deposit was the sum of
P400.
It appears that there are two persons bearing the name of Luis Mabunay
in the City of Manila. The individual who was candidate in the bar
examinations of 1926, and who is one of the two accused in this case,
was, at the time with which we are here concerned, assistant chief of the
administrative division of the Executive Bureau. The other Luis Mabunay
was, at the same time, a clerk in the law office of Vicente Romualdez, who
is a brother of Miguel Romualdez, father of the accused Estela
Romualdez. In the early stages of this prosecution confusion existed
concerning these two individuals. So much so that the fiscal, when this
proceeding was begun, was under the impression that the Luis Mabunay
who was joined as codefendant in this case was the Luis Mabunay who
was employed in the office of Vicente Romualdez. On the other hand
Estela Romualdez says that prior to his appearance in court, she had
never seen her codefendant Luis Mabunay and had never known that
there was such a person in existence. This point of the confusion over
these two individuals has a bearing on the case against Luis Mabunay, but
is not otherwise important.
An incident connected with the examinations now under consideration is
found in certain corrections made by our then deputy clerk, Jeronimo
Samson, in the grades given by a reader named Remo who was relieved
from duty as a reader. Samson has the complete confidence of the court,
and nobody has called in question the good faith of his work throughout.
Well, after Remo was relieved, Samson took the papers in hand that
Remo had already graded and in a number of cases changed his grades in
precisely the same way in which Miss Romualdez changed the two papers
of Luis Mabunay. In some of these corrections Samson did not append his
own initials, and although in one of the corrections made by Miss
Romualdez the obliteration of the original grade was more complete than
in the case of the grades obliterated by Samson, the manner of correction
was substantially the same.
The dominating question in the case against Miss Romualdez is, in our
opinion, whether Justice Romualdez gave her authority to revise the
grades in the two papers marked "898". If that authority was in fact given,
no case of falsification is made out against this accused; for, although she
may have abused the authority and increased the grades in question for
a corrupt purpose, her delinquency would have the character of an abuse
of authority only. That this authority was given we do not entertain the
slightest doubt, and the reason for crediting Justice Romualdez'
statement on this point rests not only upon his character but upon the
circumstances under which that statement was made in court. Of course
a person will sometimes testify falsely or distort the truth for the purpose
of assisting another; but experience shows that the most powerful
motive which operates upon people as witnesses is the motive of self-
protection. When the testimony of Justice Romualdez was delivered in
court, the full extent of the irregularities attendant upon the examination
of 1926 were generally known; and the slightest consideration of self-
interest would have indicated to Justice Romualdez that he would do
himself a service by not testifying as a witness. However, in the face of all
these considerations, Justice Romualdez, in the interest of truth, did not
hesitate to go into court and state that he in fact gave his niece authority
to revise the grades. and what necessity can there be for us to debate the
question of the truthfulness of Justice Romualdez when the fiscal who
prosecuted this case more than once stated in open court that he had
never doubted the veracity of the witness in this case?
Upon this point we quote textually from the transcript of the proceedings
in the lower court:
FISCAL GUEVARA. We have never doubted the veracity of the
witness.
xxx xxx xxx
FISCAL GUEVARA. On the other hand, as we have already
stated, we do not doubt the veracity of the witness in this case.
But it is said that the authority granted by Justice Romualdez
contemplated a revision of the grades in good faith and was coupled with
the condition that the revision to be effected by her should be
accomplished before the names of the candidates should be known. But
the fact that the authority may have been coupled with this condition
could not alter the character of the authority. She was made judge of the
conditions under which the revision should be entered upon, as well as
judge of the extent of the revision, and the violation of her by Justice
Romualdez' directions on these points could not have the effect of
obliterating the authority. However gross may have been her
delinquency the offense could be nothing more than an abuse of
authority.
In the course of these proceedings the evidence has been thoroughly
combed by the prosecution to discover indications that Miss Romualdez
acted in bad faith. Thus it is said that bad faith is shown in circumstances
such as these: That she did not affix her initials to her corrections; that
she used black ink to obliterate the grade that had been altered, and that
she confessed her inability to recall the exact considerations which led
her to increase the grades allowed by the original reader. All these
considerations, and others equally trivial, as it seems to us, come with
very poor grace from a court that had refused to permit the accused to
prove by the testimony of experts that the examination papers whose
grades were altered by her were in fact entitled at least to the grades
which she affixed to them, if not more. What circumstance could possibly
show more effectually the good faith of Miss Romualdez in increasing the
grades than the fact, if it be a fact, that the papers merited the higher
grades given by her to the candidate. But the merit of the grades must
remain, by the action of the court in this case, like the location of the
grave of Moses, forever unknown; and this long drawn-out litigation will
shed no light upon what seems to the undersigned to be the most vital
question with which the court should have concerned itself, namely,
whether the grades assigned by Miss Romualdez to two of the papers of
Luis Mabunay were right or wrong. One of the reasons suggested for
sustaining the objection against the proffered testimony of experts to
show the propriety of the grades given is that the court itself could judge
of the true value of the papers without the assistance of expert
testimony, but no attempt had been made by the prosecution or by the
court to demonstrate from the papers themselves that the grades
assigned to them by Miss Romualdez were unmerited. Why should the
court concern itself so meticulously with the circumstances indicative of
186
possible bad faith when the grades raised are before us, affording the
best evidence of their character.
Page
In United States vs. Michelena (4 Phil., 492), it was held by this court that
a person who makes a false statement in a certificate of merit in an
application for an examination by the Civil Service Board cannot be
convicted of the falsification of a public document, but of an offense
punishable by arresto mayor under article 311 of the Penal Code. This
decision was repeated in United States vs. Dumandan (8 Phil., 61). These
decisions apparently attracted the attention of our lawmakers as
indicating that the penalties affixed by the Spanish Code to certain
offenses against the Civil Service were too light; and on August 26, 1907,
the Philippine Commission adopted a law now incorporated in section
2674 of the Administrative Code. One of the provisions of this section
punishes any person who shall falsely rate, grade, estimate, or report
upon the examination or standing of any person examined by the Bureau
of Civil Service. But that provision is limited to Civil Service examinations,
and cannot be applied to bar examinations. Therefore, when confronted
with the irregularity, or supposed irregularity, presented in this case, the
fiscal's office was unable to proceed with the prosecution under section
2674 of the Administrative Code, and was compelled to fall back upon
article 300 of the Penal Code which deals with the falsification of public
documents.
The suggestion contained in the opinion of the court to the effect that
Justice Romualdez had no authority to authorize Miss Romualdez to
revise grades is in our opinion wholly untenable. He had as much
authority to authorize her to revise grades as he had to authorize her to
read and grade papers in the first place, there being no difference
whatever in point of principle between the two acts. Now, the alteration
of a grade by one authorized to revise is on exactly the same footing in
law, under No. 6 of article 300 of the Penal Code, as the giving of a false
grade, under No. 4 of the same article, by one who is authorized to grade.
Does the court mean to suggest by this decision that the assigning of an
untrue grade in bad faith by any reader authorized to grade examination
papers constitutes a falsification of a public document? Legal literature
does not furnish the slightest hint that would afford a basis for such a
ruling. But this would be no more untenable than the conclusion reached
by the court in this case that the alteration of a grade in bad faith by a
person authorized to revise constitutes falsification of the document. A
person charged with the duty of grading or revising examination papers
exercises a power involving judgment and discretion. Such duty is
evidently of a quasi-judicial nature; and a violation of such duty
constitutes an abuse of authority rather than the falsification of a public
document. And if the law in its present state, as thus interpreted, should
appear to be inadequate, the Legislature might safely be relied upon to
extend to bar examiners and readers the provisions already applicable to
examiners under the Civil Service Law. This court is not called upon to
legislate, and it should not distort the severe provisions relating to
falsification for the purpose of covering delinquencies not fairly included
therein.
With respect to the connection of Luis Mabunay with this case, we do not
hesitate emphatically to say that, in our opinion, there is no item of proof
connecting this accused with the irregularity imputed to Miss Romualdez.
It is true that Luis Mabunay was the person whose interests were
primarily served by Miss Romualdez in raising the grades above
mentioned; and if there were independent proof connecting him with the
offense, the fact that his interests were so served would supply the
explanation of the acts committed. But in the absence of adequate proof,
this circumstance supplies no basis upon which to convict him. The only
fact supposedly pointing to him as the guilty suborner of Estela
Romualdez is that he drew out six hundred pesos from a savings account
on March 2, 1927; but there is no proof that any of this money ever
reached Miss Romualdez or that he was ever in communication with her
in any way.
The fact that Luis Mabunay did not testify as a witness in his own behalf
cannot be used as an affirmative admission, and the logical propriety of
his assumed guilt is no substitute for proof. It is true that some authority
can be cited for the proposition, always guardedly advanced, that where
there is some evidence, showing an incriminatory fact, and the accused
is in a position to dissipate the inference drawn from that evidence, his
failure to do so may be used as an admission of the injurious inference.
But the application of that rule presupposes the existence of some
incriminatory evidence; and in this case, to the mind of the undersigned,
there is no proof, even weak, connecting this accused with the offense
charged.
To present in a few words the legal basis of this dissent, we are unable to
agree with the court in extending the concept of falsification to cover an
abuse of authority on the part of a reviser of examination papers, a
person who is clothed with a discretion in appraising the work revised.
The circumstance that the cases against Felipe del Rosario and Jose
Bautista should be cited as authority in the opinion of the court merely
shows that there is no legal warrant in past jurisprudence for the decision
now made; for the acts of falsification in those cases were not done by
an examiner, reader, or reviser, but by the individual who was prosecuted
or by some unauthorized individual acting at his instance. Moreover, the
falsifications there accomplished were effected after the examinations
had been concluded and the documents falsified had been committed to
the archives of the court.
In the infancy of jurisprudence a sentiment had its birth in the mind of
some jurist-poet which is still thought fit to be inscribed over the Temple
of Justice: Fiat Justitia Ruat Coelum. The decision of the court in this case
is a reminder that junctures sometimes occur in human affairs when even
courts of last resort are constrained to ignore the suggestion expressed
in this motto. Fortunately such occasions are rare; and we are unable to
see any necessity in the present case requiring a departure from accepted
doctrines.
For the reasons stated we dissent from the decision in this case.
Villa-real and Villamor, JJ., concur.
RESOLUTION
October 5, 1932
VICKERS, J.:
The attorney for the appellant Estela Romualdez submits in support of his
motion for reconsideration the following propositions:
First Proposition
The court has erred in finding defendant guilty of falsification
of public and official documents in view of the authority to
revise the examination papers extended by Mr. Justice
Romualdez.
Second Proposition
The court has erred in finding with respect to Mr. Justice
Romualdez that "he himself had no such authority as is alleged
to have been given his secretary," in view of the inconsistency
of such finding with its other findings.
Third Proposition
The court has erred in not extending any consideration to the
question as to the true merit of the examination papers of Luis
Mabunay Exhibits B-1 and B-2.
Fourth Proposition
The court has erred in finding as a fact that "the accused Estela
Romualdez did not admit that the alterations were made by her
187
until after the prosecuting attorney had presented 350 pages
of testimony and announced his readiness to prove by three
handwriting experts that the alterations were in the
Page
handwriting of the accused."
Fifth Proposition
The court has erred in finding as a fact that the defendant
"when she made the changes already knew that the papers
belonged to her co-accused, Luis Mabunay."
Sixth Proposition
The court has erred in finding the existence of a conspiracy
between defendants, Estela Romualdez and Luis Mabunay.
Seventh Proposition
The court has erred in ignoring the statutory provisions of
section 16 of the Code of Civil Procedure, prescribing the
manner of conducting bar examinations.
Eighth Proposition
The court has erred in failing to recognize the right of defendant
at least to the benefit of a reasonable doubt and by its
judgment it has apparently nullified the principle that a person
accused of crime is presumed innocent until his guilt is
established beyond a reasonable doubt.
Ninth Proposition
The court has erred in failing to extend to the defendant her
constitutional and statutory right to a speedy trial.
Tenth Proposition
During the period from the time this cause was submitted on
appeal to this Honorable Court, defendant has suffered
punishment neither ordained, recognized nor authorized by
any law on our statute books.
Eleventh Proposition
The court has erred in imposing upon the defendant a sentence
of punishment above and beyond such as is authorized under
our Revised Penal Code.
The first ten propositions raise the questions which were discussed in the
arguments and duly considered in the decision of this case. No reason has
been adduced that would justify us in changing our decision.
In support of his eleventh proposition, the attorney for the appellant
points out that the penalty of perpetual disqualification from public office
is not included in article 171 of the Revised Penal Code, which
corresponds to article 300 of the Penal Code. He overlooks the fact,
however, that the penalty of prision mayor under the Revised Penal
Code, as well as under the Penal Code, carries with it certain accessory
penalties.
The penalty provided in article 300 of the Penal Code, as amended by
section 1 of Act No. 2712, for a public officer or employee or notary, who
by taking advantage of his official position shall be guilty of the
falsification of a document, is prision mayor and a fine in a sum not less
than 250 and more than 12,500 pesetas, and in addition thereto
perpetual disqualification from any public office.
Article 61 of the Penal Code provides that the penalties of prision
mayor, prision correccional, and arresto mayor shall carry with them
suspension of the right to hold public office and the right of suffrage
during the term of the sentence.
Article 42 of the Revised Penal Code provides that the penalty of prision
mayor shall carry with it that of temporary absolute disqualification and
that of perpetual special disqualification from the right of suffrage which
the offender shall suffer although pardoned as to the principal penalty,
unless the same shall have seen expressly remitted in the pardon.
According to article 32 of the Revised Penal Code, the perpetual or the
temporary special disqualification for the exercise of the right of suffrage
shall deprive the offender perpetually or during the term of the sentence,
according to the nature of said penalty, of the right to vote in any popular
election for any public office or to be elected to such office. Moreover,
the offender shall not be permitted to hold any public office during the
period of his disqualification.
In other words article 42 of the Revised Penal Code perpetually
disqualifies the offender from the right of suffrage, and article 32
provides that the offender shall not be permitted to hold any public office
during the period of his disqualification; whereas under article 300 of the
Penal Code the offender is perpetually disqualified from holding public
office, but under article 61 his right of suffrage is only suspended during
the term of the sentence. Under both the Penal Code and the Revised
Penal Code the offender is perpetually disqualified from holding public
office. The provisions of the Revised Penal Code are, therefore, not
favorable to the appellant.
For the foregoing reasons, the motion of the appellant Estela Romualdez
is denied.
Avanceña, C.J., Malcolm, Ostrand, Abad Santos, Hull, Imperial and Butte,
JJ., concur.
STREET, J., dissenting:
I adhere to my views expressed in my dissenting opinion in the main case.
Villamor and Villa-Real, JJ., dissent.
RESOLUTION
October 5, 1932
VICKERS, J.:
On September 22, 1932, the attorney for the appellant Estela Romualdez
filed a motion for a new trial on the following grounds:
(a) That the defendant-appellant Estela Romualdez, has just
discovered new evidence material to the defense in this case,
which could not have been discovered and produced at the trial
below with reasonable diligence;
(b) That the judgment of this court is contrary to law.
Affidavits of Godofredo Reyes and of appellant's attorney are attached to
the motion. The evidence which the appellant wishes to present is the
testimony of Godofredo Reyes, who was a member of the bar
examination committee in 1926.
After considering the motion and the affidavits presented in support
thereof, we find that it is without merit. In the first place the evidence
which it is proposed to present is not newly discovered evidence within
188
the technical meaning of that phrase, and in the second place this
evidence, if admitted, would not affect the result of this case.
Page
In the case of United States vs. Luzon (4 Phil., 343) and United
States vs. Quijano (11 Phil., 368), it was held that a motion for a new trial,
based upon newly discovered evidence, will not be granted unless the
following conditions exist: (1) The evidence must have been discovered
since the trial; (2) it must be such that with the use of reasonable
diligence on part of the defendant it could not have been secured at the
former trial; (3) it must be material, and not merely collateral, or
cumulative, or corroborative, or impeaching; (4) it must be such as ought
to produce a different result on the merits of another trial; and (5) it must
go to the merits and not rest on a merely technical defense.
For the foregoing reasons, the appellant's motion for a new trial is
denied.
Avanceña, C.J., Malcolm, Ostrand, Abad Santos, Hull, Imperial and Butte,
JJ., concur.
STREET, J., concurring:
While not questioning the propriety of the resolution I adhere to the
views expressed in the dissenting opinion in the main case.
Villamor and Villa-Real, JJ., concur.
RESOLUTION
October 5, 1932
VICKERS, J.:
The appellant Luis Mabunay asks for the reconsideration of the decision
of this court of September 10, 1932 for the following reasons:
(1) The court relied on mere suspicion and conjecture in convicting
Mabunay.
(2) From the fact that the accused Mabunay did not testify at the trial of
this case, nothing against his innocence should be inferred.
The motion for reconsideration raises only questions which have been
carefully considered and decided, and it is unnecessary to restate our
findings and conclusions.
The attorney for the appellant calls attention to the Spanish text of
section 59 of General Orders No. 58 reading as follows:
En todas las causas criminales las pruebas admitidas deberan
ser concluyentes para demostrar el hecho que se trata de
probar. Al querellante correspondera proponer y practicar las
pruebas que demuestren la culpabilidad, y debera ser
presentada la prueba mas concluyente de que sea susceptible
la causa.
This does not seem to us an exact translation of the original of this section
in English, which should prevail. It is as follows:
In all criminal prosecutions the evidence admitted must be
relevant to the fact at issue, the burden of proof of guilt shall
be upon the prosecution, and the best evidence must be
produced of which the case is susceptible.
With respect to the second ground of the motion for reconsideration,
based upon paragraph 3 of section 15 of General Orders No. 58 which
provides that the neglect or refusal of a defendant to be a witness shall
not in any manner prejudice or be used against him, it is sufficient to refer
to the decision in question. The attorney for the appellant appears to
make no distinction between the failure of the defendant to testify and
explain a certain fact and the failure of the defendant to present any
other witness in explanation of that fact.
After having elected not to testify in his own behalf or to present any
other witness to explain for what purpose he withdrew the money in
question from the Philippine Trust Company, the appellant Mabunay,
now that he has been convicted by the lower court and his conviction has
been affirmed by this court, prays that he be granted a new trial in order
that he may testify himself and present other witnesses to testify as to
that fact. The appellant is clearly not entitled to a new trial for such
reason.
For the foregoing reasons, the motion of the appellant, Luis Mabunay is
hereby denied.
Avanceña, C.J., Malcolm, Ostrand, Abad Santos, Hull, Imperial and Butte,
JJ., concur.
Street, Villamor and Villa-Real, JJ., dissent.
(8) G.R. No. 186030 March 21, 2012
NORMA DELOS REYES VDA. DEL PRADO, EULOGIA R. DEL PRADO,
NORMITA R. DEL PRADO and RODELIA R. DEL PRADO, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
REYES, J.:
Before us is a petition for review on certiorari under Rule 45 of the Rules
of Court, which seeks to assail and set aside the following issuances of
the Court of Appeals (CA) in the case docketed as CA-G.R. CR No. 31225
and entitled "Norma Delos Reyes Vda. Del Prado, Eulogia R. Del Prado,
Normita R. Del Prado and Rodelia R. Del Prado v. People of the
Philippines":
1) the Decision1 dated September 15, 2008 affirming with
modification the decision and order of the Regional Trial Court
(RTC), Branch 38, Lingayen, Pangasinan in Criminal Case No. L-
8015; and
2) the Resolution2 dated January 6, 2009 denying the motion
for reconsideration of the Decision of September 15, 2008.
The Factual Antecedents
This petition stems from an Information for falsification under Article
172, in relation to Article 171(4), of the Revised Penal Code filed against
herein petitioners Norma Delos Reyes Vda. Del Prado (Norma), Normita
Del Prado (Normita), Eulogia Del Prado (Eulogia) and Rodelia3 Del Prado
(Rodelia) with the Municipal Trial Court (MTC) of Lingayen, Pangasinan,
allegedly committed as follows:
That on or about the 19th day of July, 1991, in the [M]unicipality of
Lingayen, [P]rovince of Pangasinan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping one another, did then
and there wil[l]fully, unlawfully and feloniously falsified, execute[d] and
cause[d] the preparation of the DEED OF SUCCESSION, by stating and
making it appear in said document that they were the only heirs of the
late Rafael del Prado, when in truth and in fact, all the accused well knew,
that Ma. Corazon Del Prado-Lim is also an heir who is entitled to inherit
189
from the late Rafael Del Prado, and all the accused deliberately used the
DEED OF SUCCESSION to claim ownership and possession of the land
mentioned in the DEED OF SUCCESSION to the exclusion of the
Page
complainant Ma. Corazon Del Prado-Lim to her damage and prejudice.
Contrary to Art. 172 in relation to Art. 171, par. 4 of the Revised Penal
Code.4
Upon arraignment, the accused therein entered their plea of "not guilty".
After pre-trial conference, trial on the merits ensued.
The prosecution claimed that Ma. Corazon Del Prado-Lim (Corazon),
private complainant in the criminal case, was the daughter of the late
Rafael Del Prado (Rafael) by his marriage to Daisy Cragin (Daisy). After
Daisy died in 1956, the late Rafael married Norma with whom he had five
children, namely: Rafael, Jr., Antonio, Eulogia, Normita and Rodelia.
The late Rafael died on July 12, 1978. On October 29, 1979, Corazon, as a
daughter of the late Rafael, and Norma, as the late Rafael’s surviving
spouse and representative of their five minor children, executed a "Deed
of Extra-Judicial Partition of the Estate of Rafael Del Prado" to cover the
distribution of several properties owned by the late Rafael, including the
parcel of land covered by Original Certificate of Title (OCT) No. P-22848,
measuring 17,624 square meters, more or less, and situated at Libsong,
Lingayen, Pangasinan.
Per agreement of the heirs, Corazon was to get a 3,000-square meter
portion of the land covered by OCT No. P-22848. This right of Corazon
was also affirmed in the Deed of Exchange dated October 15, 1982 and
Confirmation of Subdivision which she executed with Norma.
Corazon, however, later discovered that her right over the subject parcel
of land was never registered by Norma, contrary to the latter’s
undertaking. The petitioners instead executed on July 19, 1991 a Deed of
Succession wherein they, together with Rafael, Jr. and Antonio,
partitioned and adjudicated unto themselves the property covered by
OCT No. P-22848, to the exclusion of Corazon. The deed was notarized by
Loreto L. Fernando (Loreto), and provides in part:
WHEREAS, on the 12[th] day of July 1978, RAFAEL DEL PRADO[,] SR., died
intestate in the City of Dagupan, leaving certain parcel of land, and more
particularly described and bounded to wit:
ORIGINAL CERTIFICATE OF TITLE NO. P-22848
"A certain parcel of land (Lot No. 5518, Cad-373-D) Lingayen Cadastre,
situated in Poblacion, Lingayen, Pangasinan, Island of Luzon. Bounded on
the NE., by Lots Nos. 5522, 5515; and 6287; on the SE., by Lots Nos. 5516,
5517, 55 and Road; on the SW., by Road, and Lots Nos. 5521, 5510, and
5520; and on the NW., by Road; x x x containing an area of SEVENTEEN
THOUSAND SIX HUNDRED TWENTY-FOUR (17,624) Square Meters, more
or less. Covered by Psd-307996 (LRC), consisting of two lots. Lot No. 5510-
A and Lot 5518-B."
WHEREAS, the parties hereto are the only heirs of the decedent, the first
name, is the surviving spouse and the rest are the children of the
decedent;
xxx
NOW, THEREFORE, for and in consideration of the premises and invoking
the provisions of Rule 74, Sec. 1 of the Rules of Court, the parties hereto
do by these presents, agree to divide and partition the entire estate
above[-]described and accordingly adjudicate, as they do hereby
adjudicate the same among themselves, herein below specified to wit:
x x x5
By virtue of the said Deed of Succession, OCT No. P-22848 was cancelled
and several new titles were issued under the names of Corazon’s co-heirs.
When Corazon discovered this, she filed a criminal complaint against now
petitioners Norma, Eulogia, Normita and Rodelia. Antonio and Rafael, Jr.
had both died before the filing of said complaint.
Among the witnesses presented during the trial was Loreto, who
confirmed that upon the request of Norma and Antonio, he prepared and
notarized the deed of succession. He claimed that the petitioners
appeared and signed the document before him.
For their defense, the petitioners denied having signed the Deed of
Succession, or having appeared before notary public Loreto. They also
claimed that Corazon was not a daughter, but a niece, of the late Rafael.
Norma claimed that she only later knew that a deed of succession was
prepared by her son Antonio, although she admitted having executed a
deed of real estate mortgage in favor of mortgagee Prudential Bank over
portions of the subject parcel of land already covered by the new titles.
The Ruling of the MTC
The MTC rejected for being unsubstantiated the petitioners’ denial of any
participation in the execution of the deed of succession, further noting
that they benefited from the property after its transfer in their names.
Thus, on August 9, 2006, the court rendered its decision 6 finding
petitioners Norma, Eulogia, Normita and Rodelia guilty beyond
reasonable doubt of the crime charged, sentencing them to suffer an
indeterminate penalty of four months and one day of arresto mayor as
minimum to two years and four months and one day of prision
correccional as maximum. They were also ordered to pay a fine of
₱5,000.00 each, with subsidiary imprisonment in case of non-payment of
fine.
Considering the minority of Rodelia at the time of the commission of the
crime, she was sentenced to suffer the penalty of four months of arresto
mayor, plus payment of fine of ₱5,000.00, with subsidiary imprisonment
in case of non-payment.
All the petitioners were ordered to indemnify Corazon in the amount of
₱10,000.00 as attorney’s fees, and to pay the costs of suit.
Unsatisfied with the MTC’s ruling, the petitioners filed a motion for new
trial on the grounds of alleged gross error of law, irregularities during the
trial, and new and material evidence. To prove that they did not intend
to exclude Corazon from the estate of the late Rafael, the petitioners
cited their recognition of Corazon’s right to the estate in the deed of
extra-judicial partition, confirmation of subdivision, deed of exchange,
joint affidavit and petition for guardianship of minors Rafael, Jr., Eulogia,
Antonio and Normita, which they had earlier executed. 7 Again, the
petitioners denied having signed the deed of succession, and instead
insisted that their signatures in the deed were forged.
The motion was denied by the MTC via a resolution8 dated December 21,
2006, prompting the filing of an appeal with the RTC.
The Ruling of the RTC
On August 10, 2007, the RTC rendered its decision9 affirming the MTC’s
decision, with modification in that the case against Rodelia was dismissed
in view of her minority at the time of the commission of the crime. The
decretal portion of the decision reads:
WHEREFORE, premises considered, the appealed Decision of the
Municipal Trial Court of Lingayen, Pangasinan dated August 9, 2006 is
hereby AFFIRMED, but modified as to accused Rodelia R. Del Prado as the
case against her is hereby DISMISSED on account of her minority at the
time of the commission of the offense.
SO ORDERED.10
A motion for reconsideration was denied for lack of merit by the RTC via
190
its resolution11 dated October 31, 2007. Hence, Norma, Eulogia and
Normita filed a petition for review with the CA.
Page
The Ruling of the CA
On September 15, 2008, the CA rendered its decision12 dismissing the
petition and affirming the RTC’s ruling, with modification as to the
imposable penalty under the Indeterminate Sentence Law. The decretal
portion of the decision reads:
WHEREFORE, premises considered, the appeal is DISMISSED. The
appealed Decision dated August 10, 2007 and Order dated October 31,
2007 of the Regional Trial Court, Branch 38, Pangasinan, in Crim. Case No.
L-8015 are AFFIRMED with MODIFICATION that appellants Norma delos
Reyes Vda. Del Prado, Eulogia R. Del Prado and Normita R. Del Prado are
hereby sentenced to suffer an indeterminate penalty of one (1) year and
one (1) day of arresto mayor, as minimum, to three (3) years, six (6)
months and twenty-one (21) days of prision correccional, as maximum.
SO ORDERED.13
The motion for reconsideration filed by the petitioners was denied by the
CA in its resolution14 dated January 6, 2009. Feeling aggrieved, the
petitioners appealed from the decision and resolution of the CA to this
Court, through a petition for review on certiorari15 under Rule 45 of the
Rules of Court.
The Present Petition
The petitioners present the following assignment of errors to support
their petition:
A. WITH DUE RESPECT, THE LOWER COURT CLEARLY ERRED IN
FINDING THAT COMPLAINANT MA. CORAZON DEL PRADO-LIM
WAS EXCLUDED AS AN HEIR OF THE LATE RAFAEL DEL PRADO.
B. WITH DUE RESPECT, THE LOWER COURT CLEARLY ERRED IN
NOT APPRECIATING THE FACT THAT IN SEVERAL
DOCUMENTS/INSTRUMENTS EXECUTED BY THE PETITIONERS
WITH THE PARTICIPATION OF COMPLAINANT MS. CORAZON
DEL PRADO-LIM, SHE WAS SPECIFICALLY NAMED AS AN HEIR
WITH CORRESPONDING SHARES/INHERITANCE IN THE ESTATE
OF THE LATE RAFAEL DEL PRADO.
C. WITH DUE RESPECT, THE LOWER COURT CLEARLY ERRED IN
FAILING TO APPRECIATE THE GOOD FAITH OF THE PETITIONERS
WHICH NEGATES THE COMMISSION OF THE OFFENSE OF
FALSIFICATION ON THEIR PART.
D. WITH DUE RESPECT, THE LOWER COURT CLEARLY ERRED IN
CONVICTING THE PETITIONERS WITHOUT ANY FACTUAL AND
LEGAL BASIS, THE PRESUMPTION OF INNOCENCE OF THE
PETITIONERS NOT HAVING BEEN OVERCOME BY THE
PROSECUTION’S EVIDENCE.
E. WITH DUE RESPECT [THE LOWER COURT ERRED] IN NOT
HOLDING THAT THE CASE IS PURELY CIVIL ONE[,] NOT
CRIMINAL.16
To support their assigned errors, the petitioners invoke the existence and
contents of the several documents which they had presented before the
MTC, including the deed of extrajudicial partition of the estate of Rafael
Del Prado dated October 29, 1979, confirmation of subdivision, deed of
exchange and petition in the guardianship proceedings for the minor Del
Prado children filed by Norma, in which documents they claim to have
indicated and confirmed that Corazon is also an heir of the late Rafael.
Given these documents, the petitioners insist that they cannot be
charged with falsification for having excluded Corazon as an heir of their
decedent.
In sum, the issue for this Court’s resolution is whether or not the CA erred
in affirming the petitioners’ conviction for falsification, notwithstanding
the said petitioners’ defense that they never intended to exclude private
complainant Corazon from the estate of the late Rafael.
This Court’s Ruling
The petition is bound to fail.
Only questions of law may be raised in petitions for review on certiorari
under Rule 45 of the Rules of Court.
First, the questions being raised by the petitioners refer to factual
matters that are not proper subjects of a petition for review under Rule
45. Settled is the rule that in a petition for review under Rule 45, only
questions of law may be raised. It is not this Court’s function to analyze
or weigh all over again evidence already considered in the proceedings
below, our jurisdiction being limited to reviewing only errors of law that
may have been committed by the lower court. The resolution of factual
issues is the function of the lower courts, whose findings on these
matters are received with respect. A question of law which we may pass
upon must not involve an examination of the probative value of the
evidence presented by the litigants.17 This is clear under Section 1, Rule
45 of the Rules of Court, as amended, which provides:
Section 1. Filing of petition with Supreme Court. – A party desiring to
appeal by certiorari from a judgment, final order or resolution of the
Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the
Regional Trial Court or other courts, whenever authorized by law, may
file with the Supreme Court a verified petition for review on certiorari.
The petition may include an application for a writ of preliminary
injunction or other provisional remedies and shall raise only questions of
law, which must be distinctly set forth. The petitioner may seek the same
provisional remedies by verified motion filed in the same action or
proceeding at any time during its pendency. (Emphasis supplied)
The distinction between a question of law and a question of fact is
settled. There is a question of law when the doubt or difference arises as
to what the law is on a certain state of facts. Such a question does not
involve an examination of the probative value of the evidence presented
by the litigants or any of them. On the other hand, there is a question of
fact when the doubt arises as to the truth or falsehood of the alleged facts
or when the query necessarily invites calibration of the whole evidence,
considering mainly the credibility of witnesses, existence and relevancy
of specific surrounding circumstances, their relation to one another and
to the whole, and the probabilities of the situation.18
Contrary to these rules, the petitioners ask us to review the lower courts’
factual finding on Carmen’s exclusion in the subject deed of succession,
to reconsider its contents and those of the other documentary evidence
which they have submitted with the court a quo, all of which involve
questions of fact rather than questions of law. In their assignment of
errors, petitioners even fully question the factual basis for the courts’
finding of their guilt. However, as we have explained in Medina v. Asistio,
Jr.:19
Petitioners’ allegation that the Court of Appeals "grossly disregarded"
their Exhibits "A", "B", "C", "D" and "E", in effect, asks us to re-examine
all the [evidence] already presented and evaluated – as well as the
findings of fact made – by the Court of Appeals. Thus, in Sotto v. Teves
(86 SCRA 154 [1978]), [w]e held that the appreciation of evidence is
within the domain of the Court of Appeals because its findings of fact are
not reviewable by this Court (Manlapaz v. CA, 147 SCRA 236 [1987];
Knecht v. CA, 158 SCRA 80 [1988] and a long line of cases).
It is not the function of this Court to analyze or weigh such evidence all
over again. Our jurisdiction is limited to reviewing errors of law that may
have been committed by the lower court. (Nicolas[,] et al., v. CA, 154
SCRA 635 [1987]; Tiongco v. de la Merced, 58 SCRA 89 [1974]).
191
There are recognized exceptions to this rule on questions of law as
subjects of petitions for review, to wit: (1) when the findings are
grounded entirely on speculation, surmises or conjectures, (2) when the
Page
inference made is manifestly mistaken, absurd or impossible, (3) when
there is grave abuse of discretion, (4) when the judgment is based on
misapprehension of facts, (5) when the findings of fact are conflicting, (6)
when in making its findings, the CA went beyond the issues of the case,
or its findings are contrary to the admissions of both the appellant and
the appellee, (7) when the CA’s findings are contrary to those by the trial
court, (8) when the findings are conclusions without citation of specific
evidence on which they are based, (9) when the acts set forth in the
petition as well as in the petitioner’s main and reply briefs are not
disputed by the respondent, (10) when the findings of fact are premised
on the supposed absence of evidence and contradicted by the evidence
on record, or (11) when the CA manifestly overlooked certain relevant
facts not disputed by the parties, which, if properly considered, would
justify a different conclusion.20 After a consideration of the petitioners’
arguments, this Court holds that the present appeal does not fall under
any of these exceptions.
xxx
Art. 172. Falsification by private individual and use of falsified documents.
– The penalty of prision correccional in its medium and maximum periods
and a fine of not more than ₱5,000 pesos shall be imposed upon:
1. Any private individual who shall commit any of the falsifications
enumerated in the next preceding article in any public or official
document or letter of exchange or any other kind of commercial
document; and
2. Any person who, to the damage of a third party, or with the intent to
cause such damage, shall in any private document commit any of the acts
of falsification enumerated in the next preceding article.
their statement in the deed of succession. The petitioners’ alleged good
faith is disputed by their prior confirmation and recognition of Corazon’s
right as an heir, because despite knowledge of said fact, they included in
the deed a statement to the contrary. The wrongful intent to injure
Corazon is clear from their execution of the deed, showing a desire to
appropriate only unto themselves the subject parcel of land. Corazon was
unduly deprived of what was due her not only under the provisions of the
law on succession, but also under contracts that she had previously
executed with the petitioners.1âwphi1
WHEREFORE, premises considered, the petition for review on certiorari
is hereby DENIED. The Decision dated September 15, 2008 and
Resolution dated January 6, 2009 of the Court of Appeals in CA-G.R. CR
No. 31225 are hereby AFFIRMED.

There can be no good faith on the part of the petitioners since they knew
of the untruthful character of statements contained in their deed of
succession.
Even granting that the present petition may be admitted, we find no
cogent reason to reverse the CA decision appealed from, considering that
the elements of the crime of falsification under Art. 171, par. 4 of the
Revised Penal Code, in relation to Art. 172 thereof, were duly proved
during the proceedings below. Said elements are as follows:
(a) The offender makes in a public document untruthful
statements in a narration of facts;
(b) The offender has a legal obligation to disclose the truth of
the facts narrated by him; and
(c) The facts narrated by the offender are absolutely false.21
These elements are based on the provisions of Art. 172, in relation to Art.
171, par. 4, of the Revised Penal Code, which reads:
Art. 171. Falsification by public officer, employee or notary or
ecclesiastical minister. – The penalty of prision mayor and a fine not to
exceed ₱5,000 pesos shall be imposed upon any public officer, employee,
or notary who, taking advantage of his official position, shall falsify a
document by committing any of the following acts:
SO ORDERED.
xxx
BIENVENIDO L. REYES
The material document claimed to be falsified in this case is the Deed of
Associate Justice
Succession dated July 19, 1991, the presentation of which before the
Register of Deeds and other government agencies allowed the
cancellation of OCT No. P-22848, and the issuance of several new titles in WE CONCUR:
its stead. The first and third elements were committed by the inclusion in
the subject deed of the clause that states, "(w)hereas, the parties hereto
are the only heirs of the decedent, the first name, is the surviving spouse
and the rest are the children of the decedent."22 The untruthfulness of (9) G.R. Nos. 174730-37 February 9, 2011
said statement is clear from the several other documents upon which,
ironically, the petitioners anchor their defense, such as the deed of
ROSALIO S. GALEOS, Petitioner,
extrajudicial partition dated October 29, 1979, the parties’ confirmation
vs.
of subdivision, deed of exchange and Norma’s petition for guardianship
PEOPLE OF THE PHILIPPINES, Respondent.
of her then minor children. Specifically mentioned in these documents is
the fact that Corazon is also a daughter, thus an heir, of the late Rafael.
x - - - - - - - - - - - - - - - - - - - - - - -x
The obligation of the petitioners to speak only the truth in their deed of
succession is clear, taking into account the very nature of the document G.R. Nos. 174845-52
falsified. The deed, which was transformed into a public document upon
acknowledgement before a notary public, required only truthful PAULINO S. ONG, Petitioner,
statements from the petitioners. It was a legal requirement to effect the vs.
cancellation of the original certificate of title and the issuance of new PEOPLE OF THE PHILIPPINES, Respondent.
titles by the Register of Deeds. The false statement made in the deed
greatly affected the indefeasibility normally accorded to titles over DECISION
properties brought under the coverage of land registration, to the injury
of Corazon who was deprived of her right as a landowner, and the clear
prejudice of third persons who would rely on the land titles issued on the VILLARAMA, JR., J.:

192
basis of the deed.
xxx The consolidated petitions at bar seek to reverse and set aside the
Decision1 promulgated on August 18, 2005 by the Sandiganbayan

Page
We cannot subscribe to the petitioners’ claim of good faith because
4. Making untruthful statements in narration of facts; convicting petitioners Paulino S. Ong (Ong) of eight counts and Rosalio S.
several documents prove that they knew of the untruthful character of
Galeos (Galeos) of four counts of falsification of public documents under
Article 171, paragraph 4 of the Revised Penal Code, as amended.
The facts are as follows:
Ong was appointed Officer-in-Charge (OIC)-Mayor of the Municipality of
Naga, Cebu on April 16, 1986. He was elected Mayor of the same
municipality in 1988 and served as such until 1998.2
On June 1, 1994, Ong extended permanent appointments to Galeos and
Federico T. Rivera (Rivera) for the positions of Construction and
Maintenance Man and Plumber I, respectively, in the Office of the
Municipal Engineer.3 Prior to their permanent appointment, Galeos and
Rivera were casual employees of the municipal government.
In their individual Statement of Assets, Liabilities and Net Worth (SALN)
for the year 1993, Galeos answered "No" to the question: "To the best of
your knowledge, are you related within the fourth degree of
consanguinity or of affinity to anyone working in the government?" while
Rivera indicated "n/a" on the space for the list of the names of relatives
referred to in the said query.4 The boxes for "Yes" and "No" to the said
query were left in blank by Galeos in his 1994 and 1995 SALN.5 Rivera in
his 1995 SALN answered "No" to the question on relatives in
government.6 In their 1996 SALN, both Galeos and Rivera also did not fill
up the boxes indicating their answers to the same query.7Ong’s signature
appears in all the foregoing documents as the person who administered
the oath when Galeos and Rivera executed the foregoing documents.
In a letter-certification dated June 1, 1994 addressed to Ms. Benita O.
Santos, Regional Director, Civil Service Commission (CSC), Regional Office
7, Cebu City, it was attested that:
This is to certify that pursuant to the provisions of R.A. 7160, otherwise
known as the Local Government Code of 1991, all
restrictions/requirements relative to creation of positions, hiring and
issuance of appointments, Section 325 on the limitations for personal
services in the total/supplemental appropriation of a local government
unit; salary rates; abolition and creation of positions, etc.; Section 76,
organizational structure and staffing pattern; Section 79 on nepotism;
Section 80, posting of vacancy and personnel selection board; Section 81
on compensation, etc. have been duly complied with in the issuance of
this appointment.
This is to certify further that the faithful observance of these
restrictions/requirements was made in accordance with the
requirements of the Civil Service Commission before the appointment
was submitted for review and action.8(Emphasis supplied.)
The above certification was signed by Ong and HR Officer-Designate
Editha C. Garcia.
On October 1, 1998, the members of the Sangguniang Bayan of Naga,
Cebu filed a letter-complaint9 before the Office of the Ombudsman
(OMB)-Visayas against Ong (then incumbent Vice-Mayor of Naga), Galeos
and Rivera for dishonesty, nepotism, violation of the Code of Conduct
and Ethical Standards for Public Officials and Employeesand Anti-Graft
and Corrupt Practices Act, and for the crime of falsification of public
documents.
On August 11, 2000, Ombudsman Aniano Desierto approved the
recommendation of OIC-Deputy Ombudsman for the Visayas that
criminal charges be filed against Ong, Galeos and Rivera for falsification
of public documents under Article 171 of the Revised Penal Code, as
amended, in connection with the Certification dated June 1, 1994 issued
by Ong and the false statements in the 1993, 1995 and 1996 SALN of
Rivera and the 1993, 1994, 1995 and 1996 SALN of Galeos.10
On August 16, 2000, the following Informations11 were filed against the
petitioners:
Criminal Case No. 26181
That on or about the 14th day of February, 1994, in the Municipality of
Naga, Province of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, above-named [Paulino S. Ong and Rosalio S. Galeos]
accused, public officers, being the former Municipal Mayor and
Construction and Maintenance Man of the Office of the Municipal
Engineer, Municipality of Naga, Cebu, in such capacity and committing
the offense in relation to office, conniving and confederating together
and mutually helping with each other, with deliberate intent, with intent
to falsify, did then and there willfully, unlawfully and feloniously falsify a
public document, consisting of a Sworn Statement of Assets and
Liabilities, Disclosure of Business Interests and Financial Connections and
Identification of Relatives In the Government Service, as of December
31, 1993, filed by accused Rosalio S. Galeos and subscribed and sworn to
before accused Paulino S. Ong, wherein accused made it appear therein
that they are not related within the fourth degree of consanguinity or
affinity thereby making untruthful statements in a narration of facts,
when in truth and in fact, accused very well k[n]ew that they are related
with each other, since accused Rosalio S. Galeos is related to accused
Paulino S. Ong within the fourth degree of consanguinity, the mother of
accused Rosalio S. Galeos [being] the sister of the mother of accused
Paulino S. Ong.
CONTRARY TO LAW. (Emphasis supplied.)
Criminal Case No. 26182
That on or about the 15th day of February 1994, in the Municipality of
Naga, Province of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, above-named [Paulino S. Ong and Federico T. Rivera]
accused, public officers, being the former Municipal Mayor and Plumber
I of the Office of the Municipal Engineer, Municipality of Naga, Cebu, in
such capacity and committing the offense in relation to office, conniving
and confederating together and mutually helping with each other, with
deliberate intent, with intent to falsify, did then and there willfully,
unlawfully and feloniously falsify a public document, consisting of a
Sworn Statement of Assets and Liabilities, Disclosure of Business Interests
and Financial Connections and Identification of Relatives In the
Government Service as of December 31, 1993, filed by accused Federico
T. Rivera and subscribed and sworn to before accused Paulino S. Ong,
wherein accused Federico T. Rivera made it appear therein that he has
no relatives within the fourth degree of consanguinity or affinity working
in the government, thereby making untruthful statements in a narration
of facts, when in truth and in fact, as accused very well knew that they
are related with each other, since accused Federico T. Rivera is related to
accused Paulino S. Ong within the fourth degree of affinity, the mother
of Federico T. Rivera’s wife being the sister of the mother of Paulino S.
Ong.
CONTRARY TO LAW. (Emphasis supplied.)
Criminal Case No. 26183
That on or about the 1st day of February, 1996, in the Municipality of
Naga, Province of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, above-named [Paulino S. Ong and Rosalio S. Galeos]
accused, public officers, being the former Municipal Mayor and
Construction and Maintenance Man of the Office of the Municipal
Engineer, Municipality of Naga, Cebu, in such capacity and committing
the offense in relation to office, conniving and confederating together
and mutually helping with each other, with deliberate intent, with intent
to falsify, did then and there willfully, unlawfully and feloniously falsify a
public document, consisting of a Sworn Statement of Assets and
Liabilities, Disclosure of Business Interests and Financial Connections and
Identification of Relatives In the Government Service, as of December
31, 1995, filed by accused Rosalio S. Galeos and subscribed and sworn to
before accused Paulino S. Ong, wherein accused made it appear therein
that they are not related within the fourth degree of consanguinity or
193
affinity thereby making false statements in a narration of facts, when in
truth and in fact, as accused very well k[n]ew that they are related with
each other, since accused Rosalio S. Galeos is related to accused Paulino
Page
S. Ong within the fourth degree of consanguinity, the mother of accused
Rosalio S. Galeos being the sister of the mother of accused Paulino S. Ong.
CONTRARY TO LAW. (Emphasis supplied.)
Criminal Case No. 26184
That on or about the 1st day of February 1996, in the Municipality of
Naga, Province of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, above-named [Paulino S. Ong and Federico T. Rivera]
accused, public officers, being the former Municipal Mayor and Plumber
I of the Office of the Municipal Engineer, Municipality of Naga, Cebu, in
such capacity and committing the offense in relation to office, conniving
and confederating together and mutually helping with each other, with
deliberate intent, with intent to falsify, did then and there willfully,
unlawfully and feloniously falsify a public document, consisting of a
Sworn Statement of Assets and Liabilities, Disclosure of Business Interests
and Financial Connections and Identification of Relatives In The
Government Service, [a]s of December 31, 1995, filed by accused
Federico T. Rivera and subscribed and sworn to before accused Paulino
S. Ong, wherein accused Federico T. Rivera made it appear therein that
he has no relatives within the fourth degree of consanguinity or affinity
working in the government, thereby making untruthful statements in a
narration of facts, when in truth and in fact, as accused very well knew
that they are related with each other, since accused Federico T. Rivera is
related to accused Paulino S. Ong within the fourth degree of affinity, the
mother of Federico T. Rivera’s wife being the sister of the mother of
Paulino S. Ong.
CONTRARY TO LAW. (Emphasis supplied.)
Criminal Case No. 26185
That on or about the 5th day of February 1997, in the Municipality of
Naga, Province of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, above-named [Paulino S. Ong and Federico T. Rivera]
accused, public officers, being the former Municipal Mayor and Plumber
I of the Office of the Municipal Engineer, Municipality of Naga, Cebu, in
such capacity and committing the offense in relation to office, conniving
and confederating together and mutually helping with each other, with
deliberate intent, with intent to falsify, did then and there willfully,
unlawfully and feloniously falsify a public document, consisting of a
Sworn Statement of Assets and Liabilities, Disclosure of Business Interests
and Financial Connections and Identification of Relatives In The
Government Service, [a]s of December 31, 1996, filed by accused
Federico T. Rivera and subscribed and sworn to before accused Paulino
S. Ong, wherein accused Federico T. Rivera made it appear therein that
he has no relatives within the fourth degree of consanguinity or affinity
working in the government, thereby making untruthful statements in a
narration of facts, when in truth and in fact, as accused very well knew
that they are related with each other, since accused Federico T. Rivera is
related to accused Paulino S. Ong within the fourth degree of affinity, the
mother of Federico T. Rivera’s wife being the sister of the mother of
Paulino S. Ong.
CONTRARY TO LAW. (Emphasis supplied.)
Criminal Case No. 26186
That on or about the 3rd day of March, 1995, in the Municipality of Naga,
Province of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, above-named [Paulino S. Ong and Rosalio S. Galeos]
accused, public officers, being the former Municipal Mayor and
Construction and Maintenance Man of the Office of the Municipal
Engineer, Municipality of Naga, Cebu, in such capacity and committing
the offense in relation to office, conniving and confederating together
and mutually helping with each other, with deliberate intent, with intent
to falsify, did then and there willfully, unlawfully and feloniously falsify a
public document, consisting of a Sworn Statement of Assets and
Liabilities, Disclosure of Business Interests and Financial Connections and
Identification of Relatives In the Government Services, as of December
31, 1994, filed by accused Rosalio S. Galeos and subscribed and sworn to
before accused Paulino S. Ong, wherein accused made it appear therein
that they are not related within the fourth degree of consanguinity or
affinity thereby making untruthful statements in a narration of facts,
when in truth and in fact, as accused very well k[n]ew that they are
related with each other, since accused Rosalio S. Galeos is related to
accused Paulino S. Ong, within the fourth degree of consanguinity, the
mother of accused Rosalio S. Galeos being the sister of the mother of
accused Paulino S. Ong.
CONTRARY TO LAW. (Emphasis supplied.)
Criminal Case No. 26187
That on or about the 11th day of March, 1997, in the Municipality of
Naga, Province of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, above-named [Paulino S. Ong and Rosalio S. Galeos]
accused, public officers, being the former Municipal Mayor and
Construction and Maintenance Man of the Office of the Municipal
Engineer, Municipality of Naga, Cebu, in such capacity and committing
the offense in relation to office, conniving and confederating, together
and mutually helping with each other, with deliberate intent, with intent
to falsify, did then and there willfully, unlawfully and feloniously falsify a
public document, consisting of a Sworn Statement of Assets and
Liabilities, Disclosure of Business Interests and Financial Connections and
Identification of Relatives In the Government Service, as of December
31, 1996, filed by accused Rosalio S. Galeos and subscribed and sworn to
before accused Paulino S. Ong, wherein accused made it appear therein
that they are not related within the fourth degree of consanguinity or
affinity thereby making untruthful statements in a narration of facts,
when in truth and in fact, as accused very well k[n]ew that they are
related with each other, since accused Rosalio S. Galeos is related to
accused Paulino S. Ong within the fourth degree of consanguinity, the
mother of accused Rosalio S. Galeos being the sister of the mother of
accused Paulino S. Ong.
CONTRARY TO LAW. (Emphasis supplied.)
Criminal Case No. 26188
That on or about the 1st day of June, 1994, at the Municipality of Naga,
Province of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, above-named accused, a public officer, being the
former Mayor of the Municipality of Naga, Cebu, in such capacity and
committing the offense in relation to office, with deliberate intent, with
intent to falsify, did then and there willfully, unlawfully and feloniously
falsify a public document, consisting of a Certification in the form of a
letter addressed to Mrs. Benita O. Santos, then Regional Director of the
Civil Service Commission (CSC)-Region VII, Cebu City dated June 1, 1994,
a requirement in the approval of an appointment, certifying therein that
there was a faithful compliance of the requirement/restriction provided
under the Civil Service Laws and Rules in the appointment of Rosalio
S. Galeos, as Construction and Maintenance Man of the Office of the
Municipal Engineer, Naga, Cebu, thereby making untruthful statements
in a narration of facts, when in truth and in fact as accused very well knew
that the appointment of Rosalio S. Galeos was nepotic being made in
violation of the Civil Service Rules and Laws on Nepotism, as Rosalio S.
Galeos is related to accused within the fourth degree of consanguinity,
since the mother of Rosalio S. Galeos is the sister of the mother of
accused, which Certification caused the approval of the appointment of
Rosalio S. Galeos, to the detriment of public interest.
CONTRARY TO LAW. (Emphasis supplied.)
Criminal Case No. 26189
That on or about the 1st day of June, 1994, at the Municipality of Naga,
Province of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, above-named accused, a public officer, being the
194
former Mayor of the Municipality of Naga, Cebu, in such capacity and
committing the offense in relation to office, with deliberate intent, with
intent to falsify, did then and there willfully, unlawfully and feloniously
Page
falsify a public document, consisting of a Certification in the form of a
letter addressed to Mrs. Benita O. Santos, then Regional Director of the
Civil Service Commission (CSC), Region VII, Cebu City, dated June 1, 1994,
a requirement in the approval of an appointment, certifying therein that
there was a faithful compliance of the requirement/restriction provided
under the Civil Service Laws and Rules in the appointment of Federico
T. Rivera, a Plumber I of the Office of the Municipal Engineer, Naga, Cebu,
thereby making untruthful statements in a narration of facts, when in
truth and in fact as accused very well knew that the appointment of
Federico T. Rivera was nepotic being made in violation of the Civil Service
Rules and Laws on Nepotism, as Federico T. Rivera is related to accused
within the fourth degree of affinity, since the mother of Federico T.
Rivera’s wife is the sister of the mother of accused, which certification
caused the approval of the appointment of Federico T. Rivera, to the
detriment of public interest.
CONTRARY TO LAW. (Emphasis supplied.)
Under the Joint Stipulation of Facts submitted to the court a quo, the
accused made the following admissions: (1) Ong was the Municipal
Mayor of Cebu at all times relevant to these cases; (2) Ong is related to
Galeos, within the fourth degree of consanguinity as his mother is the
sister of Galeos’ mother, and to Rivera within the fourth degree of affinity
as his mother is the sister of the mother of Rivera’s wife; and (3) Galeos
and Rivera were employed as Construction and Maintenance Man and
Plumber I, respectively, in the Municipal Government of Naga, Cebu at all
times relevant to these cases. Ong likewise admitted the genuineness and
due execution of the documentary exhibits presented by the prosecutor
(copies of SALNs and Certification dated June 1, 1994) except for Exhibit
"H" (Certification dated June 1, 1994 offered by the prosecution as
"allegedly supporting the appointment of Rosalio S. Galeos"12).13
As lone witness for the prosecution, Esperidion R. Canoneo testified that
he has been a resident of Pangdan, Naga, Cebu since 1930 and claimed
to be friends with Ong, Galeos and Rivera. He knows the mother of
Galeos, Pining Suarez or Peñaranda Suarez. But when the prosecutor
mentioned "Bining Suarez," Canoneo stated that Bining Suarez is the
mother of Galeos and that Bining Suarez is the same person as
"Bernardita Suarez." Ong is related to Galeos because Ong’s mother,
Conchita Suarez, and Galeos’ mother, Bernardita Suarez, are sisters. As
to Rivera, his wife Kensiana,14 is the daughter of Mercedes Suarez who is
also a sister of Conchita Suarez. He knew the Suarez sisters because they
were the neighbors of his grandmother whom he frequently visited when
he was still studying.15
Both Galeos and Rivera testified that they only provided the entries in
their SALN but did not personally fill up the forms as these were already
filled up by "people in the municipal hall" when they signed them.
Galeos, when shown his 1993 SALN,16 confirmed his signature thereon.
When he was asked if he understood the question "To the best of your
knowledge, are you related within the fourth degree of consanguinity or
affinity to anyone working in the government?" he answered in the
negative. He claimed that the "X" mark corresponding to the answer "No"
to said question, as well as the other entries in his SALN, were already
filled up when he signed it. When shown his SALN for the years 1994,
1995 and 1996, Galeos reiterated that they were already filled up and he
was only made to sign them by an employee of the municipal hall whom
he only remembers by face. He also admitted that he carefully read the
documents and all the entries therein were explained to him before he
affixed his signature on the document. However, when asked whether he
understands the term "fourth degree of consanguinity or affinity" stated
in the SALNs, he answered in the negative.17
Rivera testified that he was not aware that his wife was a close relative
of the Municipal Mayor because when he asked her, the latter told him
that Ong was a distant relative of hers. Rivera added that it was not Ong
who first appointed him as a casual employee but Ong’s predecessor,
Mayor Vicente Mendiola.18
On the part of Ong, he testified that at the time he was serving as
Municipal Mayor of Naga, he did not know that he and Galeos are
relatives, as in fact there are several persons with the surname "Galeos"
in the municipality. He signed Galeos’ 1993 SALN when it was presented
to him by Galeos at his office. There were many of them who brought
such documents and he would administer their oaths on what were
written on their SALN, among them were Galeos and Rivera. He came to
know of the defect in the employment of Galeos when the case was filed
by his "political enemy" in the Ombudsman just after he was elected Vice-
Mayor in 1998. As to Rivera, Ong claimed that he knows him as a casual
employee of the previous administration. As successor of the former
mayor, he had to re-appoint these casual employees and he delegated
this matter to his subordinates. He maintained that his family was not
very close to their other relatives because when he was not yet Mayor,
he was doing business in Cebu and Manila. When queried by the court if
he had known his relatives while he was campaigning considering that in
the provinces even relatives within the 6th and 7th degree are still
regarded as close relatives especially among politicians, Ong insisted that
his style of campaigning was based only on his performance of duties and
that he did not go from house to house. Ong admitted that he had been
a resident of Naga, Cebu since birth. He could no longer recall those SALN
of most of the employees whose oaths he had administered. He admitted
that he was the one who appointed Galeos and Rivera to their permanent
positions and signed their official appointment (Civil Service Form No. 33)
but he was not aware at that time that he was related to them. It was
only after the filing of the case that he came to know the wife of Rivera.
As to the qualifications of these appointees, he no longer inquired about
it and their appointments were no longer submitted to the Selection
Board. When the appointment forms for Galeos and Rivera were brought
to his office, the accompanying documents were attached thereto. Ong,
however, admitted that before the permanent appointment is approved
by the CSC, he issues a certification to the effect that all requirements of
law and the CSC have been complied with.19
On August 18, 2005, the Sandiganbayan promulgated the assailed
Decision convicting Ong, Galeos and Rivera, as follows:
WHEREFORE, judgment is hereby rendered on the following:
In Criminal Case No. 26181, judgment is hereby rendered finding accused
Paulino S. Ong and Rosalio S. Galeos GUILTY beyond reasonable doubt of
the crime of Falsification of Public Document as defined in and penalized
by Article 171 of the Revised Penal Code and, there being no modifying
circumstances, are hereby sentenced to each suffer an indeterminate
penalty of imprisonment from TWO (2) YEARS, FOUR (4) MONTHS and
ONE (1) DAY OF Prision Correccional medium as the minimum penalty to
EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor medium as the
maximum penalty and to each pay a FINE of FIVE THOUSAND PESOS
(P5,000.00).
In Criminal Case No. 26182, judgment is hereby rendered finding accused
Paulino S. Ong and Federico T. Rivera GUILTY beyond reasonable doubt
of the crime of Falsification of Public Document as defined in and
penalized by Article 171 of the Revised Penal Code and, there being no
modifying circumstances, are hereby sentenced to each suffer an
indeterminate penalty of imprisonment from TWO (2) YEARS, FOUR (4)
MONTHS and ONE (1) DAY OF Prision Correccional medium as the
minimum penalty to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor
medium as the maximum penalty and to each pay a FINE of FIVE
THOUSAND PESOS (P5,000.00).
In Criminal Case No. 26183, judgment is hereby rendered finding accused
Paulino S. Ong and Rosalio S. Galeos GUILTY beyond reasonable doubt of
the crime of Falsification of Public Document as defined in and penalized
by Article 171 of the Revised Penal Code and, there being no modifying
circumstances, are hereby sentenced to each suffer an indeterminate
penalty of imprisonment from TWO (2) YEARS, FOUR (4) MONTHS and
ONE (1) DAY OF Prision Correccional medium as the minimum penalty to
EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor medium as the
maximum penalty and to each pay a FINE of FIVE THOUSAND PESOS
195
(P5,000.00).1auuphil
In Criminal Case No. 26184, judgment is hereby rendered finding accused
Page
Paulino S. Ong and Federico T. Rivera GUILTY beyond reasonable doubt
of the crime of Falsification of Public Document as defined in and
penalized by Article 171 of the Revised Penal Code and, there being no
modifying circumstances, are hereby sentenced to each suffer an
indeterminate penalty of imprisonment from TWO (2) YEARS, FOUR (4)
MONTHS and ONE (1) DAY OF Prision Correccional medium as the
minimum penalty to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor
medium as the maximum penalty and to each pay a FINE of FIVE
THOUSAND PESOS (P5,000.00).
In Criminal Case No. 26185, judgment is hereby rendered finding accused
Paulino S. Ong and Federico T. Rivera GUILTY beyond reasonable doubt
of the crime of Falsification of Public Document as defined in and
penalized by Article 171 of the Revised Penal Code and, there being no
modifying circumstances, are hereby sentenced to each suffer an
indeterminate penalty of imprisonment from TWO (2) YEARS, FOUR (4)
MONTHS and ONE (1) DAY OF Prision Correccional medium as the
minimum penalty to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor
medium as the maximum penalty and to each pay a FINE of FIVE
THOUSAND PESOS (P5,000.00).
In Criminal Case No. 26186, judgment is hereby rendered finding accused
Paulino S. Ong and Rosalio S. Galeos GUILTY beyond reasonable doubt of
the crime of Falsification of Public Document as defined in and penalized
by Article 171 of the Revised Penal Code and, there being no modifying
circumstances, are hereby sentenced to each suffer an indeterminate
penalty of imprisonment from TWO (2) YEARS, FOUR (4) MONTHS and
ONE (1) DAY OF Prision Correccional medium as the minimum penalty to
EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor medium as the
maximum penalty and to each pay a FINE of FIVE THOUSAND PESOS
(P5,000.00).
In Criminal Case No. 26187, judgment is hereby rendered finding accused
Paulino S. Ong and Rosalio S. Galeos GUILTY beyond reasonable doubt of
the crime of Falsification of Public Document as defined in and penalized
by Article 171 of the Revised Penal Code and, there being no modifying
circumstances, are hereby sentenced to each suffer an indeterminate
penalty of imprisonment from TWO (2) YEARS, FOUR (4) MONTHS, and
ONE (1) DAY OF Prision Correccional medium as the minimum penalty to
EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor medium as the
maximum penalty and to each pay a FINE of FIVE THOUSAND PESOS
(P5,000.00).
In Criminal Case No. 26188, judgment is hereby rendered finding accused
Paulino S. Ong NOT GUILTY for Violation of Article 171 of the Revised
Penal Code for failure of the Prosecution to prove his guilt beyond
reasonable doubt; and
In Criminal Case No. 26189, judgment is hereby rendered finding accused
Paulino S. Ong GUILTY beyond reasonable doubt for Falsification of Public
Document as defined in and penalized by Article 171 of the Revised Penal
Code and, there being no modifying circumstances, is hereby sentenced
to suffer an indeterminate penalty of imprisonment from TWO (2) YEARS,
FOUR (4) MONTHS and ONE (1) DAY of Prision Correccional medium as
the minimum penalty to EIGHT (8) YEARS and ONE (1) DAY of Prision
Mayor medium as the maximum penalty and to pay a FINE of FIVE
THOUSAND PESOS (P5,000.00).
SO ORDERED.20
In its Resolution21 dated August 28, 2006, the Sandiganbayan denied the
motions for reconsideration of Ong and Galeos. However, in view of the
death of Rivera on August 22, 2003 before the promulgation of the
decision, the cases (Criminal Case Nos. 26182, 26184 and 26185) against
him were dismissed.
In G.R. Nos. 174730-37, Galeos contends that the Sandiganbayan erred
when:
1) . . . IT HELD THAT THE SUBJECT DOCUMENTARY EVIDENCE
CONTAINED UNTRUTHFUL STATEMENTS IN A NARRATION OF
FACTS.
2) . . . IT DID NOT CONSIDER PETITIONER’S VALID DEFENSE OF
GOOD FAITH AND LACK OF INTENT TO COMMIT THE CRIMES
IMPUTED.
3) . . . IT GAVE FULL CREDENCE TO THE TESTIMONY OF THE SOLE
WITNESS FOR THE PROSECUTION.22
In support of his assigned errors, Galeos argues that he did not make
untruthful or false statements in his SALN since a "statement" requires a
positive averment and thus silence or non-disclosure cannot be
considered one. And even if they are considered statements, Galeos
contends that they were not made in a "narration of facts" and the least
they could be considered are "conclusions of law." He also argues that
the prosecution failed to adduce any evidence to support the finding that
he was aware of their relationship at the time of the execution of the
SALN. With the presence of good faith, Galeos avers that the fourth
element of the crime – the perversion of truth in the narration of facts
was made with the wrongful intent of injuring a third person – is missing.
He also faults the Sandiganbayan for its heavy reliance on the
uncorroborated testimony of the prosecution’s sole witness despite the
fact that there are aspects in his testimony that do not inspire belief.
On the other hand, in G.R. Nos. 174845-52, Ong argues that the
Sandiganbayan erred when:
(a)
. . . IT HELD THAT THE SUBJECT DOCUMENTARY EVIDENCE
CONTAINED UNTRUTHFUL STATEMENTS IN A NARRATION OF
FACTS.
(b)
IN CRIMINAL CASES NOS. 26181-26187, [IT HELD] THAT A
PERSON MERELY ADMINISTERING THE OATH IN A DOCUMENT
IS GUILTY OF THE CRIME OF FALSIFICATION BY MAKING
UNTRUTHFUL STATEMENTS IN A NARRATION OF FACTS.
(c)
. . . IN CRIMINAL CASE NO. 26189, … IT INFER[R]ED, DESPITE THE
COMPLETE ABSENCE OF ANY RELEVANT AND MATERIAL
EVIDENCE, THAT RESPONDENT’S EXHIBIT "I" (OR PETITIONER’S
EXHIBIT "8") REFERS TO OR SUPPORTS THE APPOINTMENT OF
FEDERICO T. RIVERA.23
Ong similarly argues that the subject SALN do not contain any untruthful
statements containing a narration of facts and that there was no wrongful
intent of injuring a third person at the time of the execution of the
documents. He contends that he cannot be held liable for falsification for
merely administering the oath in a document since it is not among the
legal obligations of an officer administering the oath to certify the
truthfulness and/or veracity of the contents of the document. Neither
can he be made liable for falsification regarding the letter-certification he
issued since there was no evidence adduced that it was made to support
Rivera’s appointment.
In the Joint Memorandum filed by the Ombudsman through the Office of
the Special Prosecutor of the Sandiganbayan, it was pointed out that
Galeos categorically admitted during his testimony that before affixing
his signature on the subject SALN, he carefully read its contents and the
entries therein have been explained to him. Moreover, the admission
made by Ong during the pre-trial under the joint stipulation of facts
indicated no qualification at all that he became aware of his relationship
196
with Galeos and Rivera only after the execution of the subject
documents. The defense of lack of knowledge of a particular fact in issue,
being a state of mind and therefore self-serving, it can be legally assumed
Page
that the admission of that particular fact without qualification reckons
from the time the imputed act, to which the particular fact relates, was
committed. As to mistaken reliance on the testimony of prosecution
witness, the analysis and findings in the assailed decision do not show
that such testimony was even taken into consideration in arriving at the
conviction of petitioners.24
With respect to Ong’s liability as conspirator in the execution of the SALN
containing untruthful statements, the Special Prosecutor argues that as a
general rule, it is not the duty of the administering officer to ascertain the
truth of the statements found in a document. The reason for this is that
the administering officer has no way of knowing if the facts stated therein
are indeed truthful. However, when the facts laid out in the document
directly involves the administering officer, then he has an opportunity to
know of their truth or falsity. When an administering officer nevertheless
administers the oath despite the false contents of the document, which
are known to him to be false, he is liable, not because he violated his duty
as an administering officer, but because he participated in the
falsification of a document.25
After a thorough review, we find the petitions unmeritorious.
Petitioners were charged with falsification of public document under
Article 171, paragraph 4 of the Revised Penal Code, as amended, which
states:
Art. 171. Falsification by public officer, employee or notary or ecclesiastic
minister. — The penalty of prision mayor and a fine not to exceed 5,000
pesos shall be imposed upon any public officer, employee, or notary who,
taking advantage of his official position, shall falsify a document by
committing any of the following acts:
1. Counterfeiting or imitating any handwriting, signature or
rubric;
2. Causing it to appear that persons have participated in any act
or proceeding when they did not in fact so participate;
3. Attributing to persons who have participated in an act or
proceeding statements other than those in fact made by them;
4. Making untruthful statements in a narration of facts;
x x x x (Emphasis and italics supplied.)
The elements of falsification in the above provision are as follows:
(a) the offender makes in a public document untruthful
statements in a narration of facts;
(b) he has a legal obligation to disclose the truth of the facts
narrated by him; and
(c) the facts narrated by him are absolutely false.26
In addition to the afore-cited elements, it must also be proven that the
public officer or employee had taken advantage of his official position in
making the falsification. In falsification of public document, the offender
is considered to have taken advantage of his official position when (1) he
has the duty to make or prepare or otherwise to intervene in the
preparation of a document; or (2) he has the official custody of the
document which he falsifies.27Likewise, in falsification of public or official
documents, it is not necessary that there be present the idea of gain or
the intent to injure a third person because in the falsification of a public
document, what is punished is the violation of the public faith and the
destruction of the truth as therein solemnly proclaimed.28
Falsification of Public Document
by making untruthful statements
concerning relatives in the
government service
All the elements of falsification of public documents by making untruthful
statements have been established by the prosecution.
Petitioners argue that the statements "they are not related within the
fourth civil degree of consanguinity or affinity" and "that Section 79 of
the Local Government Code has been complied with in the issuance of
the appointments" are not a narration of facts but a conclusion of law, as
both require the application of the rules on relationship under the law of
succession. Thus, they cite People v. Tugbang29 where it was held that "a
statement expressing an erroneous conclusion of law cannot be
considered a falsification." Likewise, in People v. Yanza,30 it was held that
when defendant certified that she was eligible for the position, she
practically wrote a conclusion of law, which turned out to be incorrect or
erroneous; hence, she may not be declared guilty of falsification because
the law violated pertains to narration of facts.
We disagree.
A conclusion of law is a determination by a judge or ruling authority
regarding the law that applies in a particular case. It is opposed to a
finding of fact, which interprets the factual circumstances to which the
law is to be applied.31A narration of facts is merely an account or
description of the particulars of an event or occurrence. 32 We have held
that a certification by accused officials in the Statement of Time Elapsed
and Work Accomplished qualifies as a narration of facts as contemplated
under Article 171 (4) of the Revised Penal Code, as it consisted not only
of figures and numbers but also words were used therein giving an
account of the status of the flood control project.33
In this case, the required disclosure or identification of relatives "within
the fourth civil degree of consanguinity or affinity" in the SALN involves
merely a description of such relationship; it does not call for an
application of law in a particular set of facts. On the other hand, Articles
963 to 967 of the Civil Code simply explain the concept of proximity of
relationship and what constitute direct and collateral lines in relation to
the rules on succession. The question of whether or not persons are
related to each other by consanguinity or affinity within the fourth
degree is one of fact. Contrary to petitioners’ assertion, statements
concerning relationship may be proved as to its truth or falsity, and thus
do not amount to expression of opinion. When a government employee
is required to disclose his relatives in the government service, such
information elicited therefore qualifies as a narration of facts
contemplated under Article 171 (4) of the Revised Penal Code, as
amended. Further, it bears to stress that the untruthful statements on
relationship have no relevance to the employee’s eligibility for the
position but pertains rather to prohibition or restriction imposed by law
on the appointing power.
Since petitioner Galeos answered "No" to the question in his 1993 SALN
if he has relatives in the government service within the fourth degree of
consanguinity, he made an untruthful statement therein as in fact he was
related to Ong, who was then the municipal mayor, within the fourth
degree of consanguinity, he and Ong being first cousins (their mothers
are sisters). As to his 1994, 1995 and 1996 SALN, Galeos left in blank the
boxes for the answer to the similar query. In Dela Cruz v. Mudlong,34 it
was held that one is guilty of falsification in the accomplishment of his
information and personal data sheet if he withholds material facts which
would have affected the approval of his appointment and/or promotion
to a government position. By withholding information on his relative/s in
the government service as required in the SALN, Galeos was guilty of
falsification considering that the disclosure of such relationship with then
Municipal Mayor Ong would have resulted in the disapproval of his
permanent appointment pursuant to Article 168 (j) (Appointments), Rule
XXII of the Rules and Regulations Implementing the Local Government
Code of 1991 (R.A. No. 7160), which provides:
197
No person shall be appointed in the local government career service if he
Page
is related within the fourth civil degree of consanguinity or affinity to the
appointing power or recommending authority.
Section 7 (e), Rule V of the Implementing Rules of Book V, Executive Order
No. 292 otherwise known as the Administrative Code of 1987, provides
that the CSC shall disapprove the appointment of a person who "has been
issued such appointment in violation of existing Civil Service Law, rules
and regulations." Among the prohibited appointments enumerated in
CSC Memorandum Circular No. 38, series of 1993 are appointments in
the LGUs of persons who are related to the appointing or recommending
authority within the fourth civil degree of consanguinity.35
The Omnibus Rules on Appointments and Other Personnel Actions (CSC
Memorandum Circular No. 40, series of 1998 dated December 14, 1998)
contain a similar prohibition under Rule XIII, Section 9:
SEC. 9. No appointment in the national, provincial, city or municipal
governments or any branch or instrumentality thereof, including
government owned or controlled corporations with original charters shall
be made in favor of a relative of the appointing or recommending
authority, or of the chief of the bureau or office or of the person
exercising immediate supervision over the appointee.
Unless otherwise provided by law, the word "relative" and the members
of the family referred to are those related within the third degree either
of consanguinity or of affinity.
In the local government career service, the prohibition extends to the
relatives of the appointing or recommending authority, within the fourth
civil degree of consanguinity or affinity.
xxxx
The nepotism rule covers all kinds of appointments whether original,
promotional, transfer and reemployment regardless of status including
casuals and contractuals except consultants. (Emphasis supplied.)
The second element is likewise present. "Legal obligation" means that
there is a law requiring the disclosure of the truth of the facts
narrated.36 Permanent employees employed by local government units
are required to file the following: (a) sworn statement of assets, liabilities
and net worth (SALN); (b) lists of relatives within the fourth civil degree
of consanguinity or affinity in government service; (c) financial and
business interests; and (d) personal data sheets as required by law.37 A
similar requirement is imposed by Section 8 (B) of Republic Act No. 6713
otherwise known as the Code of Conduct and Ethical Standards for Public
Officials and Employees, thus:
(B) Identification and disclosure of relatives38. – It shall be the duty of
every public official or employee to identify and disclose to the best of his
knowledge and information, his relatives in the Government in the form,
manner and frequency prescribed by the Civil Service Commission.
Section 11 of the same law penalizes the violation of the above provision,
either with imprisonment or fine, and, in the discretion of the court of
competent jurisdiction, disqualification to hold public office. Such
violation if proven in a proper administrative proceeding shall also be
sufficient cause for removal or dismissal of a public official or employee,
even if no criminal prosecution is instituted against him.
The evidence on record clearly showed that Galeos’ negative answer
reflected in his SALN is absolutely false. During the trial, both Ong and
Galeos admitted the fact that they are first cousins but denied having
knowledge of such relationship at the time the subject documents were
executed. The Sandiganbayan correctly rejected their defense of being
unaware that they are related within the fourth degree of consanguinity.
Given the Filipino cultural trait of valuing strong kinship and extended
family ties, it was unlikely for Galeos who had been working for several
years in the municipal government, not to have known of his close blood
relation to Ong who was a prominent public figure having ran and won in
the local elections four times (three terms as Mayor and as Vice-Mayor
in the 1998 elections), after serving as OIC Mayor of the same
municipality in 1986 until 1988.
The same thing can be said of Ong, whose unbelievable claim that he had
no knowledge that a first cousin (Galeos) was working in the municipal
government and appointed by him to a permanent position during his
incumbency, was correctly disregarded by the Sandiganbayan. It was
simply unthinkable that as a resident of Naga, Cebu since birth and a
politician at that, he was all the time unaware that he himself appointed
to permanent positions the son of his mother’s sister (Galeos) and the
husband of his first cousin (Rivera). Indeed, the reality of local politics and
Filipino culture renders his defense of good faith (lack of knowledge of
their relationship) unavailing. Despite his knowledge of the falsity of the
statement in the subject SALN, Ong still administered the oath to Galeos
and Rivera who made the false statement under oath. The
Sandiganbayan thus did not err in finding that Ong connived with Galeos
and Rivera in making it appear in their SALN that they have no relative
within the fourth degree of consanguinity/affinity in the government
service.
Conspiracy need not be shown by direct proof of an agreement of the
parties to commit the crime,39 as it can be inferred from the acts of the
accused which clearly manifest a concurrence of wills, a common intent
or design to commit a crime.40 In this case, Ong administered the oaths
to Galeos and Rivera in the subject SALN not just once, but three times, a
clear manifestation that he concurred with the making of the untruthful
statement therein concerning relatives in the government service.
Falsification by making
untruthful statements
in the Certification re:
compliance with the
prohibition on nepotism
As chief executive and the proper appointing authority, Ong is deemed to
have issued the certification recommending to the CSC approval of
Galeos’ appointment although he admitted only the authenticity and due
execution of Exhibit "I". Since Ong was duty bound to observe the
prohibition on nepotistic appointments, his certification stating
compliance with Section 7941 of R.A. No. 7160 constitutes a solemn
affirmation of the fact that the appointee is not related to him within the
fourth civil degree of consanguinity or affinity. Having executed the
certification despite his knowledge that he and Rivera were related to
each other within the fourth degree of affinity, as in fact Rivera was his
cousin-in-law because the mother of Rivera’s wife is the sister of Ong’s
mother, Ong was guilty of falsification of public document by making
untruthful statement in a narration of facts. He also took advantage of his
official position as the appointing authority who, under the Civil Service
rules, is required to issue such certification.
The importance of the certification submitted to the CSC by the proper
appointing authority in the local government unit, regarding compliance
with the prohibition against nepotism under R.A. No. 7160 cannot be
overemphasized. Under Section 67, Book V, Chapter 10 of
the Administrative Code of 1987, a head of office or appointing official
who issues an appointment or employs any person in violation of Civil
Service Law and Rules or who commits fraud, deceit or intentional
misrepresentation of material facts concerning other civil service
matters, or anyone who violates, refuses or neglects to comply with any
of such provisions or rules, may be held criminally liable. In Civil Service
Commission v. Dacoycoy,42 we held that mere issuance of appointment
in favor of a relative within the third degree of consanguinity or affinity is
sufficient to constitute a violation of the law. Although herein petitioners
were prosecuted for the criminal offense of falsification of public
document, it becomes obvious that the requirement of disclosure of
relationship to the appointing power in the local government units simply
aims to ensure strict enforcement of the prohibition against
nepotism.1avvphil
198
Relevant then is our pronouncement in Dacoycoy:
Page
Nepotism is one pernicious evil impeding the civil service and the
efficiency of its personnel. In Debulgado, we stressed that "[T]the basic
purpose or objective of the prohibition against nepotism also strongly
indicates that the prohibition was intended to be a comprehensive
one." "The Court was unwilling to restrict and limit the scope of the
prohibition which is textually very broad and comprehensive." If not
within the exceptions, it is a form of corruption that must be nipped in
the bud or abated whenever or wherever it raises its ugly head. As we
said in an earlier case "what we need now is not only to punish the
wrongdoers or reward the ‘outstanding’ civil servants, but also to plug
the hidden gaps and potholes of corruption as well as to insist on strict
compliance with existing legal procedures in order to abate any occasion
for graft or circumvention of the law."43 (Emphasis supplied.)
The prosecution having established with moral certainty the guilt of
petitioners for falsification of public documents under Article 171 (4) of
the Revised Penal Code, as amended, we find no legal ground to reverse
petitioners’ conviction.
WHEREFORE, the petitions are DENIED. The Decision dated August 18,
2005 of the Sandiganbayan in Criminal Case Nos. 26181-26187 and 26189
is AFFIRMED.
With costs against the petitioners.
SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice
WE CONCUR:
Footnotes
38 Sec. 3. x x x
xxxx
(k) "Relatives" refers to any and all persons related to
a public official or employee within the fourth civil
degree of consanguinity or affinity, including bilas,
inso and balae.
40People v. Lenantud, G.R. No. 128629, February 22, 2001, 352
SCRA 549, 563.
41Sec. 79. Limitation on Appointments. - No person shall be
appointed in the career service of the local government if he is
related within the fourth civil degree of consanguinity or
affinity to the appointing or recommending authority.
(10) G.R. No. 168437 January 8, 2009
LAURINIO GOMA and NATALIO UMALE, Complainant,
vs.
THE COURT OF APPEALS, PEOPLE OF THE PHILIPPINES, and
SANGGUNIAN MEMBER MANUEL G. TORRALBA, Respondent.
DECISION
VELASCO, JR., J.:
The Case
Appealed, via this Petition for Review on Certiorari under Rule 45, is the
Decision1 dated June 6, 2005 of the Court of Appeals (CA) in CA-G.R. CR
No. 27963, affirming the July 28, 2003 Decision2 of the Regional Trial
Court (RTC), Branch 26 in Santa Cruz, Laguna in Criminal Case No. SC-
6712. The RTC convicted petitioners of the crime of falsification of public
document under Article 171 of the Revised Penal Code (RPC).
The Facts
On the basis of the affidavit-complaint of Manuel Torralba and two other
members of the Sangguniang Barangay of Brgy. Cabanbanan, Pagsanjan,
Laguna, the Office of the Ombudsman for Luzon filed with the RTC in Sta.
Cruz, Laguna an Information for falsification of public document under
Art. 171(2) of the RPC against petitioners Laurinio Goma and Natalio
Umale.3 Specifically, the complaint alleged that Laurinio and Natalio, as
barangay chairperson and secretary, respectively, falsified a barangay
resolution dated September 24, 1995, allocating the amount of PhP
18,000 as disbursement for a seminar for the two officials. The indicting
information, docketed as Crim. Case No. SC-6712 and raffled to Branch
26 of the Sta. Cruz RTC, alleged as follows:
That on or about September 24, 1995 in Barangay Cabanban [sic],
Pagsanjan, Laguna, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused LAURINIO GOMA and
NATALIO A. UMALI, both public officials, being the Barangay Chairman
and Barangay Secretary, respectively, taking advantage of their official
positions and committing the offense in relation to their office, in
connivance and conspiracy with each other, did then and there, willfully,
unlawfully and feloniously falsify a Resolution dated September 24, 1995,
an official document, by indicating therein that aforesaid Resolution was
passed on motion of Kagawad Renato Dizon, seconded by Kagawad
Recaredo C. Dela Cruz and unanimously approved by those present in the
meeting held on September 24, 1995 at 2:00 P.M., when in truth and in
fact no meeting was held as no quorum was mustered, to the damage
and prejudice of public interest.
CONTRARY TO LAW.4
When arraigned, both Laurinio and Natalio, assisted by counsel, pleaded
not guilty to the above charge. Pre-trial and trial then ensued.
The prosecution presented the three complaining witnesses, 5 who
testified that, for lack of quorum, no actual session of the sanggunian of
Brgy. Cabanbanan took place on September 24, 1995, the day the
disputed resolution was allegedly passed. On that day, according to the
three, they went to the barangay health center to attend a pre-
scheduled session which, however, did not push through as, apart from
them, only one other member, i.e., Laurinio, came. But they later got
wind of the existence of subject Resolution No. T-95 (Res. T-95) dated
September 24, 1995, in which it was made to appear that all the
sanggunian members attended the session of September 24, 1995 and
unanimously approved, upon motion of kagawad Renato Dizon, duly
seconded by kagawad Ricaredo dela Cruz, the allocation of PhP 18,000 to
defray the expenses of two officials who would attend a seminar in
Zamboanga. On the face of the resolution appears the signature of
Natalio and Laurinio, in their respective capacities as barangay secretary
and chairperson. It also bore the official seal of the barangay.
On October 15, 1995, the sanggunian held a special session during which
it passed a resolution therein stating that no session was held on
September 24, 1995.6
In their defense, Natalio and Laurinio, while admitting having affixed their
signatures on the adverted falsified resolution, alleged that said
resolution was nothing more than a mere proposal or a draft which
Natalio, as was the practice, prepared and signed a week before the
scheduled September 24, 1995. They also alleged that the same
resolution was not the enabling instrument for the release of the seminar
funds.
199
The Ruling of the RTC
Page
After trial, the RTC rendered on July 28, 2003 judgment, finding both
Laurinio and Natalio guilty as charged and, accordingly, sentenced them,
thus:
WHEREFORE, this Court finds both accused Laurinio Goma and Natalio A.
Umali guilty beyond reasonable doubt as principals in the felony of
falsification of public document punishable under Section [sic] 171 of the
Revised Penal Code and there being neither aggravating nor mitigating
circumstance, hereby imposes upon each of said accused the penalty of
four (4) years and two (2) months of prision correccional, as minimum, to
eight (8) years, and two (2) months of prision mayor, as maximum.
Costs against both accused.
SO ORDERED.7
The RTC found Res. T-95 to have all the appearance of a complete and
"true and genuine document," sealed and signed by the Sanggunian
secretary.8 And for reasons set out in its decision, the trial court
dismissed, as incredulous, the defense’s theory, and the arguments
propping it, about the subject resolution being just a mere proposal.
The Ruling of the CA
From the RTC decision, Laurinio and Natalio appealed to the CA, their
recourse docketed as CA-G.R. CR No. 27963, raising three issues, to wit:
(a) whether Res. T-95 is a public document; (b) whether they violated Art.
171(2) of the RPC; and (c) whether the penalty imposed is proper.
Answering all three issues in the affirmative, the CA, by its Decision dated
June 6, 2005, affirmed that of the trial court, disposing as follows:
WHEREFORE, the 28 July 2003 Decision of Branch 26, Regional Trial Court
of Santa Cruz, Laguna finding accused-appellants Laurinio Goma and
Natalio A. Umali guilty beyond reasonable doubt of the crime of
falsification of public document under Article 171(2) of the Revised Penal
Code and sentencing them to suffer the penalty of four (4) years and two
(2) months of prision correctional [sic], as minimum, to eight (8) years,
and two (2) months of prision mayor, as maximum, is AFFIRMED. Costs
against appellants.
SO ORDERED.9
Petitioners are now before this Court raising the very same issues they
earlier invoked before the CA, the first two of which may be reduced into
the following proposition: Whether Res. T-95 may be characterized as a
public document to bring the case, and render petitioners liable on the
basis of the evidence adduced, under Art. 171(2) of the RPC.
The Court’s Ruling
The petition is bereft of merit.
As a preliminary consideration, petitioners, in this recourse, merely
highlight and discuss their defense that the subject resolution is a mere
draft or proposed resolution not acted upon by the sanggunian for lack
of quorum on September 24, 1995, and that they never had any criminal
intent when they signed such proposed resolution. They deny having
affixed the barangay official seal on the subject resolution.
Subject Resolution a Public Document
Under Sec. 19(a) of Rule 132, Revised Rules on Evidence, public
documents include "[t]he written official acts, or records of the official
acts of the sovereign authority, official bodies and tribunals, and public
officers, whether of the Philippines, or of a foreign country." Verily,
resolutions and ordinances of sanggunians, be they of the sanggunian
panlalawigan, panlungsod, bayan, or barangay, come within the pale of
the above provision, such issuances being their written official acts in the
exercise of their legislative authority. As a matter of common practice, an
action appropriating money for some public purpose or creating liability
takes the form of an ordinance or resolution.
Black defines a public document as "a document of public interest issued
or published by a political body or otherwise connected with public
business."10 The term is also described as a document in the execution of
which a person in authority or notary public takes part.11 There can be no
denying that the public money-disbursing and seemingly genuine Res. T-
95, in the preparation of which petitioners, in their official capacity, had
a hand, is, in context, a public document in a criminal prosecution for
falsification of public document. And it bears to stress that in falsification
under Art. 171(2) of the RPC, it is not necessary that there be a genuine
document; it is enough that the document fabricated or simulated has
the appearance of a true and genuine document or of apparent legal
efficacy.12
Petitioners Guilty of Falsification
At the outset, it must be emphasized that the Court usually defers to
factual findings of the trial court, more so when such findings receive a
confirmatory nod from the appellate court. We explained in one case:
The rule is that the findings of fact of the trial court, its calibration of the
testimonies of the witnesses and its assessment of the probative weight
thereof, as well as its conclusions anchored on said findings, are accorded
high respect if not conclusive effect. This is more true if such findings
were affirmed by the appellate court. When the trial court’s findings have
been affirmed by the appellate court, said findings are generally binding
upon this Court.13
And this factual determination, as a matter of long and sound appellate
practice, deserves great weight and shall not be disturbed on appeal,
except only for the most convincing reasons,14 such as when that
determination is clearly without evidentiary support on record15 or when
the judgment is based on misapprehension of facts or overlooked certain
relevant facts which, if properly considered, would justify a different
conclusion.16 This is as it should be since it is not the function of the Court
under Rule 45 of the Rules of Court to evaluate and weigh all over again
the evidence presented or the premises supportive of the factual
holdings of lower courts.17
The case disposition of the CA and the factual and logical premises
holding it together commend themselves for concurrence. Its inculpatory
findings on the guilt of petitioners for falsification under Art. 171(2) of the
RPC, confirmatory of those of the trial court, are amply supported by the
evidence on record, consisting mainly of the testimony of the
complaining witnesses and a copy of the subject resolution.
Art. 171(2) of the RPC provides as follows:
ART. 171. Falsification by public officer, employee; or notary or
ecclesiastical minister.—The penalty of prision mayor and a fine not to
exceed 5,000 pesos shall be imposed upon any public officer, employee,
or notary who, taking advantage of his official position, shall falsify a
document by committing any of the following acts:
xxxx
(2) Causing it to appear that persons have participated in any act or
proceeding when they did not in fact so participate.
The elements of the crime of falsification of public documents, as above
defined and penalized, are:
200
1. That the offender is a public officer, employee, or notary
public.
Page
2. That he takes advantage of his official position.
 3. That he falsifies a document by causing it to appear that
persons have participated in any act or proceeding.
4. That such person or persons did not in fact so participate in
the proceeding.18
The first two elements clearly obtain, petitioners, during the period
material, being local government elected officials who, by reason of their
position, certified, as Natalio did, as to the holding of a barangay session
and falsely attested, as Laurinio did, as to the veracity of a resolution
supposedly taken up therein. The other two elements are likewise
present. As correctly observed by the CA:
x x x [Petitioners] made it appear in the Barangay resolution dated 24
September 1995 that all members of the Sangguniang Barangay
deliberated upon and unanimously approved the questioned resolution,
when in fact no such deliberation and approval occurred. The non-
participation of the members of the Sangguniang Barangay in the passage
of the resolution was established by the 15 October 1995 resolution
issued by 7 of the 8 members of the Sangguniang Barangay denying that
the challenged resolution was passed upon and approved by the
council.19
Petitioners’ bid to pass off the resolution in question as a mere proposal
or a draft cannot be accorded merit in the light of the manner they
worded and made it appear. Consider the following apt observations of
the trial court:
Barangay Resolution No. T-95 does not appear to be a proposed
resolution in all aspects x x x
xxxx
b) the opening paragraph unequivocally states that the
contents thereof were copied from the minutes of the ordinary
session of Sanggunian held on September 24, 1995 meeting, at
2:00 o’clock pm;
c) it announces all the names of the members of the
Sanggunian who attended the session during which said
resolution [was] passed;
d) it bears the resolution number, not the proposed resolution
number;
e) the title clearly states that the Sanggunian had already
approved the allocation of P18,000.00 for two (2) barangay
officials x x x;
f) it made mention that Kagawad Renato M. Dizon made the
motion, duly seconded by Kagawad [Ricaredo] C. de la Cruz, for
the passing of said resolution; and
g) accused Natalio A. Umali, in his official capacity as Barangay
Kalihim, certified said resolution as true and correct, and
accused Laurinio A. Goma, Punong Barangay, attested to the
truthfulness of said resolution.20
Indeed, the contents and appearance of Res. T- 95 argue against the very
idea of its being merely a proposal or a draft barangay enactment. Res
ipsa loquitur. A draft resolution would not be numbered or be carrying
certificatory and attestative signatures, let alone impressed with the dry
seal of the barangay. It would not also include such particulars as the
attendance of all members of the sanggunian and the identity of the
moving and seconding kagawads relative to the passage of the
resolution, for such details are not certain; unless they have been
rehearsed or planned beforehand. But the notion that a plan had been
arranged by the sanggunian as a body would be negated by subsequent
development which saw the approval of a resolution dated October 15,
1995 duly signed by seven kagawads virtually trashing Res. T-95 as a
falsity. The sequence of events would readily show that petitioners
falsified the subject resolution, but only to be exposed by private
complainants.
Petitioners’ allegation that kagawad Torralba was the one who affixed
the seal or that he harbored ill-feelings towards them strikes this Court
as a mere afterthought, absent convincing evidence to support the
imputation.
Finally, petitioners urge their acquittal on the theory that they did not
benefit from, or that the public was not prejudiced by, the resolution in
question, it not having been used to obtain the PhP 18,000 seminar funds.
The argument holds no water. Falsification of a public document is
consummated upon the execution of the false document. And criminal
intent is presumed upon the execution of the criminal act. Erring public
officers’ failure to attain their objectives, if that really be the case, is not
determinative of their guilt or innocence. The simulation of a public
document, done in a manner so as to give it the appearance of a true and
genuine instrument, thus, leading others to errors as to its authenticity,
constitutes the crime of falsification.21
In fine, the element of gain or benefit on the part of the offender or
prejudice to a third party as a result of the falsification, or tarnishing of a
document’s integrity, is not essential to maintain a charge for falsification
of public documents.22 What is punished in falsification of public
document is principally the undermining of the public faith and the
destruction of truth as solemnly proclaimed therein. In this particular
crime, therefore, the controlling consideration lies in the public character
of a document; and the existence of any prejudice caused to third persons
or, at least, the intent to cause such damage becomes immaterial.23
Third Issue: Imposed Penalty Proper
Finally, the penalty imposed by the RTC, as affirmed by the CA, is proper.
Art. 171 of the RPC provides for a single divisible penalty of prision
mayor to public officers or employees who, taking advantage of their
official positions, shall cause it to appear that persons have participated
in any act or proceeding when they did not in fact participate. And where
neither aggravating nor mitigating circumstance attended the execution
of the offense, as here, the imposable penalty is, according to Art. 64 of
the RPC, that of the medium period provided. The medium period
for prision mayor is from eight (8) years and one (1) day to ten (10) years.
Applying the Indeterminate Sentence Law, the penalty imposable would
be that of a degree lower than the medium period of prision mayor as
minimum, and the maximum is any period included in the medium period
of prision mayor. The degree lower than the medium period of prision
mayor is the medium period of prision correccionalwhich ranges from
two (2) years, four (4) months, and one (1) day to four (4) years and two
(2) months.
The penalty of four (4) years and two (2) months of prision correccional,
as minimum, to eight (8) years and two (2) months of prision mayor, as
maximum, thus imposed on petitioners is well within the authorized
imposable range, and is, therefore, proper.
WHEREFORE, the instant appeal is DENIED for lack of merit. Accordingly,
the appealed CA Decision dated June 6, 2005 in CA-G.R. CR No. 27963 is
hereby AFFIRMED IN TOTO.
No pronouncement as to costs.
SO ORDERED.
201
PRESBITERO J. VELASCO, JR.
Assciate Justice
Page
WE CONCUR:
(11) G.R. No. 154886. July 28, 2005
LUDWIG H. ADAZA, Petitioners,
vs.
SANDIGANBAYAN (the First DIVISION composed of Justices GREGORIO
S. ONG, CATALINO R. CASTANEDA, JR. and FRANCISCO H. VILLARUZ, JR.
and THE PEOPLE OF THE PHILIPPINES represented by SPECIAL
PROSECUTION OFFICE, Respondents.
DECISION
CARPIO-MORALES, J.:
Before this Court is a petition for certiorari under Rule 65 of the Rules of
Court assailing the June 19, 2002 Decision1 and July 3, 2002
Resolution2 of the Sandiganbayan finding petitioner Ludwig H. Adaza
(petitioner) guilty beyond reasonable doubt of Falsification of Public
Document penalized under Article 172, in relation to Article 171,
paragraph 1 of the Revised Penal Code and denying his motion for
reconsideration, respectively.
Culled from the records of the case are the following facts:
Sometime in 1996, the Department of Public Works and Highways
(DPWH) of the 1st District of Zamboanga del Norte awarded to the
Parents and Teachers Association (PTA) of Manawan National High
School (MNHS) in Manawan, Jose Dalman, Zamboanga del Norte a
contract for the construction of a school building consisting of two
classrooms at an agreed consideration of ₱111,319.50.3 Petitioner at that
time was municipal mayor of Jose Dalman.
The project was completed on June 24, 1997 per Certificate of
Completion and Turnover for Custody4 issued by the DPWH, but the PTA
failed to receive the last installment payment therefor in the amount of
₱20,847.17.5
Upon verification with the DPWH, PTA President Felix Mejorada
(Mejorada) was informed by Hazel Peñaranda (Peñaranda), Cashier II of
the 1st Engineering District of Zamboanga del Norte, that the check for
₱20,847.17 had been released to petitioner.6
Mejorada thereupon went to the Office of the Auditor of the DPWH and
requested that he be furnished with certified true copies of the relevant
documents pertaining to the contract, including the disbursement
voucher and the corresponding check representing the last payment
made by the DPWH for the project.7
Confronted with Disbursement Voucher No. B-10197073098 issued by
the DPWH, 1st Engineering District, Sta. Isabel, Dipolog City, in the
amount of P20,847.17 for payment to him as PTA President, approved by
District Engineer Jesus T. Estimo, Mejorada detected that the signature
above his printed name thereon acknowledging receipt of the check from
Releasing Officer-Cashier Peñaranda was not his. And he noticed that
petitioner’s signature was affixed on the voucher.9
Upon perusal of DBP Check No. 000071866810 dated July 18, 1997 issued
to payee "PTA Pres. By: Felix Mejorada" and drawn by OIC Assistant
District Engineer Jesus G. Sy and District Engineer Estimo, Mejorada
noticed that there were two signatures at the dorsal portion thereof, his
forged signature and another which he found to be that of Aristela Adaza
(Aristela), wife of petitioner.11
Asked by Mejorada to explain the circumstances behind the release of
the check, Peñaranda related that one afternoon in July 1997, petitioner
approached her and inquired whether the check for the final installment
payment on the contract was already prepared, to which she replied that
the check was ready but that it could not be released without claimant
Mejorada affixing his signature on the disbursement voucher. Peñaranda
further related that petitioner offered to take the disbursement voucher
and have it signed by Mejorada, hence, she handed it to petitioner but
kept the check in her custody; and when petitioner returned the voucher
to Peñaranda later that day, the check already bore a signature
purporting to be that of Mejorada.12
Continuing, Peñaranda related that petitioner thereupon requested that
the corresponding check be given to him in behalf of Mejorada.13 In order
to exculpate herself from any liability, Peñaranda asked petitioner to sign
the voucher before releasing the check. Petitioner obliged by affixing his
signature on the space below the purported signature of Mejorada.
Peñaranda then released the check to petitioner.
The check was allegedly encashed by Aristela on July 22, 1997.14
Mejorada was later to claim that on November 2, 1997, petitioner went
to his house informing him, in the presence of his brother Rotchel
Mejorada and his nephew Anecito Mejorada, that he would be paid
within the week. No payment was, however, made.15
On December 16, 1997, Mejorada repaired to the National Bureau of
Investigation (NBI), Dipolog City where he filed a complaint against
petitioner and his wife Aristela, and executed a Sworn Statement.16
On January 6, 1998, Peñaranda likewise executed a Sworn
Statement17 before the NBI.
The complaint, for falsification of public document, was forwarded to the
Office of the Ombudsman where it was docketed as Case No. OMB-MIN-
98-0096. During the pendency of the preliminary investigation, Mejorada
executed an Affidavit of Desistance18 dated May 8, 1998 alleging that his
and the PTA’s claims had been paid in full by the spouses Adaza and
requesting that the cases against them be dismissed or considered
withdrawn.
Petitioner and Aristela subsequently filed their Joint Counter-
Affidavit19 dated May 28, 1998, stating that Mejorada’s claim had already
been paid in full and that they had not in any way benefited from the
proceeds of the subject disbursement voucher and check as the proceeds
thereof were actually paid to the laborers who constructed the school
building pursuant to the contract. They likewise stated that there was
only "a communication gap" between them and Mejorada and that "after
the records have been reconciled and verified, Mejorada was convinced
that the money in question had been paid to the laborers."
On July 31, 1998, the Office of the Ombudsman issued a
Resolution20 finding probable cause against petitioner and Aristela. The
dispositive portion of the Resolution reads, quoted verbatim:
WHEREFORE, premises considered, this Office finds probable cause to
conclude that the crimes (sic) of Falsification of Public Document are (sic)
probably committed [by] Mayor Ludwig Adaza and another crime of
Falsification of Public Document was probably committed by respondents
(sic) Mayor and his co-respondent wife. Accordingly, let the appropriate
Informations be filed in court.
SO RESOLVED.21
On even date, petitioner was charged in two Informations filed before
the Sandiganbayan. The inculpatory portion of the first, docketed as
Criminal Case No. 24854, reads as follows:
202
That sometime on or about 18 July 1997, or shortly subsequent thereto,
in Dipolog City, Philippines and within the jurisdiction of this Honorable
Court, the accused Ludwig Adaza, a public officer being then the Mayor
Page
with salary grade 27 of Jose Dalman, Zamboanga del Norte, while in the
performance of his official duties, committing the offense in relation to
his official function and taking advantage of his public position, did there
and then, wilfully, unlawfully and feloniously, falsify a public document,
namely Disbursement Voucher No. B-1019707309 of the DPWH 1st
Engineering District, Dipolog City, by counterfeiting therein the signature
of Felix Mejorada when in truth and in fact, as the accused well knew,
Felix Mejorada did not affix his signature on the document and did not
authorize the accused to affix Mejorada’s signature therein.
CONTRARY TO LAW.22 (Underscoring supplied)
Petitioner was charged together with Aristela in the second Information,
docketed as Criminal Case No. 24853, the inculpatory portion of which
reads:
That sometime on or about 18 July 1997, or shortly subsequent thereto,
in Dipolog City, Philippines and within the jurisdiction of this Honorable
Court, the accused Ludwig Adaza, a public officer being then the Mayor
with salary grade 27 of Jose Dalman, Zamboanga del Norte, while in the
performance of his official duties, committing the offense in relation to
his official function and taking advantage of his public position,
conspiring, cooperating and confederating with accused Aristela Adaza,
did there and then, wilfully, unlawfully and feloniously, falsify a public
document, namely DPB Check No. 0000718668 issued by the DPWH 1st
Engineering District, Dipolog City, by counterfeiting therein the
signature of indorsement of Felix Mejorada when in truth and in fact, as
the accused well knew, Felix Mejorada did not affix his signature on the
document and did not authorize the accused to affix Mejorada’s
signature therein.
CONTRARY TO LAW.23 (Underscoring supplied)
After petitioner and his co-accused wife Aristela posted their respective
bail bonds for their provisional liberty, Mejorada filed an Affidavit of
Confirmation24 dated October 28, 1998 affirming the truth and veracity
of the contents of his Affidavit of Desistance dated May 22, 1998 and
further alleging that he believed that there was no crime of falsification
committed.
Mejorada subsequently filed still another Affidavit of
Confirmation25 dated November 9, 1998 reiterating his allegations in the
Affidavit of Confirmation dated October 28, 1998.
Petitioner and Aristela later filed a Motion for Reconsideration 26 dated
November 9, 1998 of the July 31, 1998 Resolution of the Office of the
Ombudsman finding probable cause against them, which motion was
denied by Resolution27 of December 10, 1998.
On arraignment, petitioner and Aristela, duly assisted by counsel,
pleaded not guilty28 to the charges, whereupon trial commenced.
By Decision of June 19, 2002, the Sandiganbayan found petitioner guilty
in the first case, and acquitted him and his wife Aristela in the second
case for insufficiency of evidence.
Petitioner filed on June 28, 2002 a Motion for Reconsideration29 of the
decision which was denied by Resolution of July 3, 2002, the
Sandiganbayan holding that the same was pro forma as it was not
properly set for hearing in accordance with the Rules of Court.
Petitioner filed an Urgent Motion for Reconsideration30 of the July 3,
2002 Sandiganbayan Resolution and attached thereto a Notice31 setting
his June 28, 2002 Motion for Reconsideration for hearing.
By Resolution32 of August 21, 2002, the Sandiganbayan denied
petitioner’s Urgent Motion for lack of merit.
On August 23, 2002, a Bench Warrant of Arrest33 was issued by the
Sandiganbayan against petitioner for execution of judgment.
Hence, petitioner’s present petition for certiorari34 faulting the
Sandiganbayan to have committed grave abuse of discretion:
1 SUBSTANTIVE JUSTICE.
. . . BY CONSIDERING THE MOTION FOR RECONSIDERATION OF ITS
DECISION AS PRO FORMA
2 LIGHT OF THE FACT THAT PUBLIC RESPONDENT SANDIGANBAYAN
. . . BY ALLOWING BALD TECHNICALITY TO PREVAIL OVER THE MERITS OF
THE MOTION FOR RECONSIDERATION THUS IGNORING SECTION 6 OF
RULE 1 OF THE REVISED RULES AND THE APPROPRIATELY APPLICABLE
JURISPRUDENCE
3
. . . BY IGNORING THE MERITS OF THE MOTION FOR RECONSIDERATION
AND BY CONVICTING THE ACCUSED/PETITIONER WHEN THERE IS
ABSOLUTELY NO EVIDENCE WHATSOEVER FOR CONVICTING THE
ACCUSED/PETITIONER BEYOND A REASONABLE DOUBT35 (Underscoring
supplied)
On October 29, 2002, the law office of Atty. Felipe Antonio B. Remollo
entered its appearance for petitioner.36 On even date, petitioner filed a
Supplement37 to the petition raising the following additional arguments:
I
WITH ALL DUE RESPECT, THE HONORABLE RESPONDENT
SANDIGANBAYAN HAS NO JURISDICTION OVER THE OFFENSE
CHARGED OF FALSIFICATION OF PUBLIC DOCUMENTS UNDER ARTICLE
172 PARAGRAPH 1 IN RELATION TO ARTICLE 171 PARAGRAPH 1 OF THE
REVISED PENAL CODE AGAINST THE ACCUSED (FORMER) MUNICIPAL
MAYOR (WITH SALARY GRADE 27) WHO DID NOT TAKE ADVANTAGE OF
HIS OFFICIAL POSITION IN THE ALLEGED COMMISSION OF THE CRIME AS
RULED BY THE SANDIGANBAYAN. SUCH BEING THE CASE, THE ALLEGED
OFFENSE WAS NOT COMMITTED IN RELATION TO THE OFFICE OF THE
MUNICIPAL MAYOR WHICH IS OUTSIDE THE JURISDICTION OF THE
SANDIGANBAYAN.
II
THE RIGHT OF THE ACCUSED TO "A COMPETENT AND INDEPENDENT"
COUNSEL IS ENSHRINED IN THE 1987 CONSTITUTION. THIS RIGHT
SHOULD BE UPHELD AT ALL TIMES AND SHOULD NOT BE OUTWEIGHT
(sic) OR DISLODGED BY WHATEVER GROSS PROCEDURAL LAPSES IN
SUCCESSION THAT DEFENSE COUNSEL MAY HAVE COMMITTED
TANTAMOUNT TO DENIAL OF DUE PROCESS IN THE INTEREST OF
III
THE PETITION WAS FILED WITH A STRONG SENSE OF URGENCY IN THE
ORDERED THE IMMEDIATE ARREST OF THE ACCUSED IN ITS AUGUST 21,
2002 RESOLUTION (SUBJECT OF HEREIN PETITION FOR CERTIORARI) ON
THE THEORY THAT THE ORDER OF CONVICTION OF THE ACCUSED
PETITIONER HAS BECOME FINAL BY SHEER TECHNICALITY THAT ON (sic)
THE ACCUSED’S MOTION FOR RECONSIDERATION DID NOT BEAR A
NOTICE OF HEARING.38 (Emphasis and underscoring supplied)
Petitioner’s counsel of record Homobono A. Adaza later withdrew his
appearance.39
203
The Office of the Special Prosecutor has filed its Comment 40 on the
petition, to which petitioner filed his Reply 41reiterating his arguments
raised in his Supplement to the petition.
Page
On the issue of jurisdiction, Section 4 of Republic Act No. 8249 (An Act
Further Defining the Jurisdiction of the Sandiganbayan, Amending for the
Purpose Presidential Decree No. 1606, As Amended, Providing Funds
Therefor, and for Other Purposes) provides:
Sec. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
A. Violations of Republic Act No. 3019, as amended, otherwise known as
the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and
Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where
one or more of the accused are officials occupying the following positions
in the government, whether in a permanent, acting or interim capacity,
at the time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of regional
director and higher, otherwise classified as Grade ‘27’ and higher, of the
Compensation and Position Classification Act of 1989 (Republic Act No.
6758), specifically including:
(a) Provincial governors, vice-governors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors, engineers, and other
city department heads;
(b) City mayor, vice-mayors, members of the sangguniang panlungsod,
city treasurers, assessors, engineers, and other city department heads;
(c) Officials of the diplomatic service occupying the position of consul and
higher;
(d) Philippine army and air force colonels, naval captains, and all officers
of higher rank;
(e) Officers of the Philippine National Police while occupying the position
of provincial director and those holding the rank of superior
superintendent or higher;
(f) City and provincial prosecutors and their assistants, and officials and
prosecutors in the Office of the Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or managers of government-owned
or controlled corporations, state universities or educational institutions
or foundations;
(2) Members of Congress and officials thereof classified as Grade ‘27’ and
up under the Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the
Constitution;
(4) Chairmen and members of Constitutional Commissions, without
prejudice to the provisions of the Constitution; and
(5) All other national and local officials classified as Grade ‘27’ and
higher under the Compensation and Position Classification Act of 1989.
B. Other offenses or felonies whether simple or complexed with other
crimes committed by the public officials and employees mentioned in
subsection a of this section in relation to their office.
C. Civil and criminal cases filed pursuant to and in connection with
Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.
xxx (Emphasis and underscoring supplied)
For an offense to fall under the exclusive original jurisdiction of the
Sandiganbayan, the following requisites must concur: (1) the offense
committed is a violation of (a) R.A. 3019, as amended (the Anti-Graft and
Corrupt Practices Act), (b) R.A. 1379 (the law on ill-gotten wealth), (c)
Chapter II, Section 2, Title VII, Book II of the Revised Penal Code (the law
on bribery), (d) Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986
(sequestration cases), or (e) other offenses or felonies whether simple or
complexed with other crimes; (2) the offender committing the offensesin
items (a), (b), (c) and (e) is a public official or employee42 holding any of
the positions enumerated in paragraph A of Section 4; and (3) the offense
committed is in relation to the office.43
Discussion shall be limited to the first case, subject of the present
petition.
The charge against petitioner falls under above-quoted Section 4,
paragraph B of R.A. 8249. It is undisputed that at the time the alleged
crime was committed, he was the municipal mayor of Jose Dalman, a
position corresponding to salary grade 27 under the Local Government
Code of 1991,44 which fact was properly alleged in the information. It is
thus imperative to determine whether the offense, as charged, may be
considered as having been committed "in relation to office" as this phrase
is employed in the above-quoted provision of R.A. 8249. For, for the
Sandiganbayan to have exclusive jurisdiction, it is essential that the facts
showing the intimate relation between the office of the offender and the
discharge of official duties be alleged in the information.45
In Montilla v. Hilario,46 this Court held that for an offense to
be committed in relation to the office, the relation between the crime
and the office must be direct and not accidental, such that the offense
cannot exist without the office.
People v. Montejo,47 by way of exception, enunciated the principle that
although public office is not an element of the offense charged, as long
as the offense charged in the information is intimately connected with
the office of the offender and perpetrated while he was in the
performance, though improper or irregular, of his official functions, the
accused is held to have been indicted for an offense committed in
relation to his office.
These rulings were reiterated in Sanchez v. Demetriou,48 Republic v.
Asuncion,49 Cunanan v. Arceo,50 People v. Magallanes,51 Alarilla v.
Sandiganbayan 52 and Soller v. Sandiganbayan.53
That the jurisdiction of a court is determined by the allegations in the
complaint or information, and not by the evidence presented by the
parties at the trial,54 is settled.
As early as 1954, we pronounced that "the factor that characterizes the
charge is the actual recital of the facts." "The real nature of the criminal
charge is determined not from the caption or preamble of the
information nor from the specification of the provision of law alleged to
have been violated, they being conclusions of law, but by the actual
recital of facts in the complaint or information."55 (Emphasis and
underscoring supplied)
It does not thus suffice to merely allege in the information that the crime
charged was committed by the offender in relation to his office or that
he took advantage of his position as these are conclusions of law.56 The
specific factual allegations in the information that would indicate the
close intimacy between the discharge of the offender’s official duties and
the commission of the offense charged, in order to qualify the crime as
having been committed in relation to public office,57 are controlling.
It bears noting that in Montejo,58 where this Court held that the
allegations in the information for murder were sufficient to bring the case
squarely within the meaning of an offense committed in relation to the
accused’s public office, the phrase "committed in relation to public
office" does not even appear in the information, which only underscores
the fact that said phrase is not what determines the jurisdiction of the
204
Sandiganbayan. Thus the information in said case read:
Page
Leroy S. Brown, City Mayor of Basilan City, as such, has organized groups
of police patrol and civilian commandoes consisting of regular policemen
and xxx special policemen appointed and provided by him with pistols
and high power guns and then established a camp xxx at Tipo-tipo which
is under his command xxx supervision and control where his co-
defendants were stationed, entertained criminal complaints and
conducted the corresponding investigations as well as assumed the
authority to arrest and detain persons without due process of law and
without bringing them to the proper court and that in line with this set-
up established by said Mayor of Basilan City as such, and acting upon his
orders, his co-defendants arrested and maltreated Awalin Tebag who
died in consequence thereof.
In Alarilla,59 apart from the phrase "in relation to and taking advantage of
his official functions," the information alleged specific factual allegations
showing how the therein petitioner committed the crime of grave threats
as a consequence of his office as municipal mayor, which allegations led
this Court to conclude that the crime charged was intimately connected
with the discharge of his official functions. Thus it read:
That on or about October 13, 1982, in Meycauayan, Bulacan, and within
the jurisdiction of this Honorable Court, the above-named accused, a
public officer, being then the Municipal Mayor of Meycauayan, Bulacan,
committing the crime herein charged in relation to and taking advantage
of his official functions, did then and there wilfully, unlawfully and
feloniously level and aim a .45 caliber pistol at and threaten to kill one
Simeon G. Legaspi, during a public hearing about the pollution from the
operations of the Giant Achievers Enterprises Plastic Factory and after
the said complainant rendered a privilege speech critical of the abuses
and excesses of the administration of said accused.
Although herein petitioner was described in the information as "a public
officer being then the Mayor with salary grade 27 of Jose Dalman,
Zamboanga del Norte," there was no allegation showing that the act of
falsification of public document attributed to him was intimately
connected to the duties of his office as mayor to bring the case within the
jurisdiction of the Sandiganbayan. Neither was there any allegation to
show how he made use of his position as mayor to facilitate the
commission of the crimes charged. The information merely alleges that
petitioner falsified the disbursement voucher by counterfeiting therein
the signature of Mejorada. For the purpose of determining jurisdiction, it
is this allegation that is controlling, not the evidence presented by the
prosecution during the trial.
In Bartolome v. People60 where the therein accused was charged with
falsification of official document, the information alleged as follows:
That on or about the 12th day of January, 1977, in the City of Manila,
Philippines, and within the jurisdiction of this Honorable Court, accused
Rolando Bartolome y Perez, a public officer having been duly appointed
and qualified as Senior Labor Regulation Officer and Chief of the Labor
Regulations Section, Ministry of Labor, National Capital Region, Manila,
conspiring and conniving with the other accused Elino Coronel y Santos,
also a public officer having been duly appointed and qualified as Labor
Regulation Officer of the same office, taking advantage of their
officialpositions, did then and there wilfully, unlawfully and feloniously
prepare and falsify an official document, to wit: the CS Personal Data
Sheet (Civil Service Form No. 212) which bears the Residence Certificate
No. A-9086374 issued at Manila on January 12, 1977, by making it appear
in said document that accused Rolando Bartolome y Perez had taken and
passed the ‘Career Service (Professional Qualifying Examination)’ on
‘May 2, 1976’ with a rating of ‘73.35% in Manila’ and that he was a ‘4th
Year AB’ student at the Far Eastern University (FEU), when in truth and in
fact, as both accused well knew, accused Rolando Bartolome y Perez had
not taken and passed the same nor was he a ‘4th Year AB’ student,
thereby making untruthful statements in a narration of facts.
(Underscoring supplied)
This Court held:
In the instant case, there is no showing that the alleged falsification was
committed by the accused, if at all, as a consequence of, and while they
were discharging, official functions. The information does not allege that
there was an intimate connection between the discharge of official duties
and the commission of the offense. xxx
Clearly therefore, as the alleged falsification was not an offense
committed in relation to the office of the accused, it did not come under
the jurisdiction of the Sandiganbayan. It follows that all its acts in the
instant case are null and void ab initio.61 (Underscoring supplied)
As for petitioner’s assertion that the Sandiganbayan has no jurisdiction
over the offense of falsification under Article 172 in relation to Article 171
of the Revised Penal Code, to buttress which he argues that the offender
under Article 172, paragraph 1 is not supposed to be a public official who
takes advantage of his position, thus equating the requirement of "taking
advantage of one’s public position" as stated in the aforementioned
provisions of the Revised Penal Code with the prerequisite "in relation to
one’s office" for the acquisition of jurisdiction of the Sandiganbayan as
provided for in R.A. 8249, the same must be discredited.
Article 171 reads:
ART. 171. Falsification by public officer, employee or notary or
ecclesiastic minister. – The penalty of prision mayorand a fine not to
exceed 5,000 pesos shall be imposed upon any public officer, employee,
or notary who, taking advantage of his official position, shall falsify a
document by committing any of the following acts:
1. Counterfeiting or imitating any handwriting, signature or rubric;
2. Causing it to appear that persons have participated in any act or
proceeding when they did not in fact so participate;
3. Attributing to persons who have participated in an act or proceeding
statements other than those in fact made by them;
4. Making untruthful statements in a narration of facts;
5. Altering true dates;
6. Making any alteration or intercalation in a genuine document which
changes its meaning;
7. Issuing in an authenticated form a document purporting to be a copy
of an original document when no such original exists, or including in such
copy a statement contrary to, or different from, that of the genuine
original; or
8. Intercalating any instrument or note relative to the issuance thereof in
a protocol, registry, or official book.
xxx
On the other hand, Article 172, paragraph 1 reads:
ART. 172. Falsification by private individuals and use of falsified
documents. – The penalty of prision correccional in its medium and
maximum periods and a fine of not more than 5,000 pesos shall be
imposed upon:
1. Any private individual who shall commit any of the falsifications
enumerated in the next preceding article in any public or official
document or letter of exchange or any other kind of commercial
document; xxx
The offender under Article 172 must be a private individual or maybe a
205
public officer, employee or notary public who does not "take advantage
of his official position."62 Under Article 171, an essential element of the
crime is that the act of falsification must be committed by a public officer,
Page
employee or notary who "takes advantage of his official position."
The offender "takes advantage of his official position" in falsifying a
document when (1) he has the duty to make or to prepare or otherwise
intervene in the preparation of the document; or (2) he has the official
custody of the document which he falsifies.63
It is thus apparent that for purposes of acquisition of jurisdiction by the
Sandiganbayan, the requirement imposed by R.A. 8249 that the offense
be "committed in relation" to the offender’s office is entirely distinct
from the concept of "taking advantage of one’s position" as provided
under Articles 171 and 172 of the Revised Penal Code.
R.A. 8249 mandates that for as long as the offender’s public office is
intimately connected with the offense charged or is used to facilitate the
commission of said offense and the same is properly alleged in the
information, the Sandiganbayan acquires jurisdiction.64 Indeed, the law
specifically states that the Sandiganbayan has jurisdiction over all "other
offenses or felonies whether simple or complexed with other crimes
committed by the public officials and employees mentioned in subsection
a of Section 4 in relation to their office." Public office, it bears reiterating,
need not be an element of the offense charged.
On the other hand, the element of "taking advantage of one’s position"
under the Revised Penal Code becomes relevant only in the present case,
not for the purpose of determining whether the Sandiganbayan has
jurisdiction, but for purposes of determining whether petitioner, if he is
held to be liable at all, would be legally responsible under Article 171 or
Article 172.
While the Sandiganbayan is declared bereft of jurisdiction over the
criminal case filed against petitioner, the prosecution is not precluded
from filing the appropriate charge against him before the proper court.
In light of the foregoing, further discussion on the other issues raised has
become unnecessary.
WHEREFORE, the petition is GRANTED. The Decision dated June 19, 2002
and Resolution dated July 3, 2002 of the Sandiganbayan are SET ASIDE
and declared NULL and VOID for lack of jurisdiction.
No pronouncement as to costs.
SO ORDERED.
Panganiban, (Chairman), Sandoval-Gutierrez, Corona, and Garcia, JJ.,
concur.
(12) G.R. No. 133472 December 5, 2000
CONSOLACION A. LUMANCAS and YOLANDO O. URIARTE, petitioners,
vs.
VIRGINIA B. INTAS, respondent.
DECISION
BELLOSILLO, J.:
CONSOLACION A. LUMANCAS and YOLANDO O. URIARTE seek in this
petition for review the reversal of the Amended Resolution of the Office
of the Ombudsman dated 16 August 1996 finding them administratively
liable for falsification, dishonesty and grave misconduct, and
consequently ordering their dismissal from the service, as well as its
Order dated 12 February 1998 denying their Motions for
Reconsideration.
Petitioners were regular employees of the Philippine Postal Corporation
in Tandag, Surigao del Sur. They were charged by their co-employee
Virginia B. Intas, respondent herein, for making false entries in their
respective Personal Data Sheets (PDS, [CSC Form 212]) regarding their
educational attainment, resulting in their promotion to higher positions
to the prejudice of other postal employees who had been in the service
for a longer period.
As found by the Office of the Ombudsman,1 Consolacion A. Lumancas'
original appointment as mail sorter with the Bureau of Posts showed that
her highest educational attainment was Fourth Year Pharmacy.2 Her
official Transcript of Records from the International Harvardian
University (IHU), Davao City, showed that she took up Bachelor of Science
in Commerce (BSC), Major in Management, from 1974 to 1978 when she
graduated and was issued Special Order No. 5-276 dated 6 November
1978. Lumancas' answers however in her three (3) PDS accomplished in
1989, 1991 and 1993 were inconsistent. In her PDS accomplished in
19893 Lumancas stated that she finished Bachelor of Science in
Pharmacy4 from 1970 to 1975 at the Centro Escolar University. In her PDS
accomplished in 19915 she stated that she obtained her BS Pharmacy at
the Centro Escolar University in 1974 and had her post graduate studies
at the IHU in 1978.6 In her PDS accomplished in 19937 Lumancas stated
that she graduated with the degree of Bachelor of Science in Commerce,
Major in Management, at the IHU from 1970-1974 inclusive.8 In filling up
her PDS for 1989 however she stated that she studied at the Centro
Escolar University from 1970 to 1975. When requested to submit the
academic records of herein petitioner Consolacion A. Lumancas, the IHU
submitted several records but the original of her Special Order was not
among them. According to Severina O. Villarin, Chief, Higher Education
Division, Region XI, Lumancas' name could not be found in the IHU
enrollment list filed with her office (Higher Education Division), Region XI,
from school years 1974-75 to 1978-79, meaning, that she had not
enrolled with the school during those terms.
When directed to answer, Lumancas denied the allegations. She averred
that while it was true that in her 3 February 1989 appointment she
indicated that her highest educational attainment was Fourth Year
Pharmacy, despite her allegedly having finished Bachelor of Science in
Commerce in 1978 at the IHU, this was because at that time she had not
yet received her Transcript of Records and Special Order from the IHU, so
that she was not sure whether she had passed all her subjects. Since her
position did not require her to be a graduate of Bachelor of Science in
Commerce, she did not bother to check whether she graduated from the
course.
Lumancas also claimed that her Special Order was authentic considering
that even the copy attached to the complaint9 was supposedly checked
and verified against the original and was in fact certified by Severina O.
Villarin, Chief, Higher Education Division, Region XI, Commission on
Higher Education (CHED). Lumancas admitted that there were mistakes
in the entries made in her 1989 and 1993 PDS but denied making any
mistake in 1991. She averred that there was no malice nor intent on her
part to falsify the entries in her PDS and that she was just in a hurry to fill
these up.10
As regards petitioner Yolando O. Uriarte, the Office of the Ombudsman
found that he and a certain Mario L. Julve11also acquired falsified
Transcripts of Records and Special Orders from the IHU as the Bureau of
Higher Education of DECS in Manila through Director III Diosdada C.
Boiser denied that her Office issued Special Orders to them.12Petitioners
Lumancas and Uriarte, together with Mario L. Julve, had since been
promoted one (1) rank higher on the bases of the questioned documents
presented as part of their credentials.13
On her part, Yolando O. Uriarte asserted that he finished his Bachelor of
Science in Commerce, Major in Management, at the IHU in 196814 and
that his Transcript of Records and Special Order were issued on the basis
of his completion of the academic requirements for the course. He also
claimed that his Transcript of Records and Special Order No. (B) 5-0035
were authentic as these were checked and verified by the same Severina
206
O. Villarin of CHED. He also insisted that his promotion was based on his
qualifications considering that he was with the postal service since 1975
without any derogatory record and was even cited several times for his
Page
outstanding performance.15
On 31 July 1995, in reply to a query from the Office of the Ombudsman
dated 11 July 1995, Severina O. Villarin informed the Office16 that she had
conducted an investigation and discovered that the clerk who prepared
Uriarte’s certifications relied only on photocopies of the Special Orders
purportedly issued to the IHU by the Bureau of Higher Education, Manila,
in favor of Uriarte. However, the Bureau denied having issued the Special
Orders, thus she herself had ordered the cancellation of the certifications
for being spurious.17
As regards the case of Lumancas, the IHU was requested to submit her
academic records; consequently, several records were submitted but the
original of the Special Order was not among them. Villarin further
declared that Lumancas’ name could not be found in the IHU enrollment
list filed with their office from school years 1974-75 to 1978-79, meaning,
that she had not enrolled during those terms.18
Petitioners Lumancas and Uriarte moved for a formal hearing but the
Office of the Ombudsman denied their motion on the ground that it was
apparently intended merely to delay the proceedings.19 It noted that the
motion praying for a formal hearing was filed only on 3 July 1996, or more
than nine (9) months after the parties failed to appear for the preliminary
conference on 18 September 1995,20 and after they failed to submit their
memorandum despite an order21 dated 6 October 1995 from the Office
of the Ombudsman granting their motion for extension of time to submit
their memorandum.22
After evaluating the evidence, the Office of the Ombudsman issued the
Amended Resolution of 16 August 1996,23released 17 January 1997,
finding Lumancas and Uriarte guilty as charged and dismissed them from
the service without prejudice to their right to appeal as provided under
Sec. 27, RA 6770.24
On 6 February 1997 and 7 February 1997 respondents Lumancas and
Uriarte, now herein petitioners, filed their respective motions for
reconsideration insisting on a formal hearing, which the Office of the
Ombudsman finally granted. Thereafter, hearings were held on 14-17
April 199725 after which the Office of the Ombudsman conclusively held
that despite the burning of the records of the DECS Regional Office XI in
1991, other records at the DECS-CHED did not show that Lumancas and
Uriarte had been enrolled at the IHU during the years they allegedly took
their respective courses as stated in their respective PDS.26
On 12 February 1998 Lumancas’ and Uriarte’s Motions for
Reconsideration were denied by the Office of the Ombudsman; hence,
this petition for review.
Section 27 of RA 677027 provides in part that "(f)indings of fact by the
Office of the Ombudsman when supported by substantial evidence are
conclusive." According to the Office of the Ombudsman-Mindanao, the
evidence sustains the conclusion that Lumancas and Uriarte are not
college graduates, and that their contention that the Special Orders
issued in their favor are authentic, banking on the certification issued by
Severina O. Villarin, Chief, BHE, Regional Office XI, is without merit. In
fact, upon verification by the same office from the Bureau of Higher
Education, Manila, the same BHE Regional Office XI, through Villarin
herself, cancelled the certification it previously issued and notified this
Office that the Special Orders issued in favor of Uriarte and Julve were
spurious.28
An examination of the records of the DECS, as verified by CHED officers
during the hearings, particularly Form 19,29failed to disclose that
petitioners’ names were among the list of students enrolled in the IHU
during their alleged period of study. In the case of Uriarte, although his
Transcript of Records reflects that he was enrolled in the second
semester of 1964-65 and the summer thereafter, and received grades for
subjects taken during those terms, his name was not included in the list
of students submitted by the IHU to DECS. The same is true with
Lumancas, whose name could not be found among the DECS records for
the first and second semesters of schoolyears 1976-78 although her
Transcript of Records shows that she was enrolled for that period and in
fact received grades for subjects taken during those semesters.
Laura Geronilla, Assistant Registrar of the IHU, claimed that the omissions
were unavoidable in the preparation of Form 19 by hand. But this
testimony alone cannot overturn the fact that there exists no records at
the DECS of Lumancas' or Uriarte’s enrollment at the IHU. Strangely, the
omission did not happen just once, but repeated many times over
involving several semesters and to students enrolled in different school
years. Hence, there can only be one conclusion - that petitioners were
never reported to DECS as students of the IHU because indeed they were
never enrolled thereat.
In her certification dated 14 September 199430 Laura Geronilla stated that
according to available academic records, Yolando O. Uriarte was indeed
a graduate of the IHU the school year 1967-68 with the degree of
Bachelor of Science in Commerce (BSC), Major in Management, and that
his Form 19 "had already been resubmitted to DECSRO XI for the issuance
of a corrective Special Order due to the accidental omission/exclusion of
his name in the DECS microfilm files despite its vivid inclusion in the
original paper copy submitted." Petitioners however failed to submit a
copy of such original paper or the DECS microfilm wherein Uriarte’s name
was allegedly missing, nor presented evidence that such request had
been favorably acted upon by the DECS.
It may also be noted that on 20 November 1981 31 Geronilla issued
another certification in favor of Uriarte certifying that he had "completed
all the requirements for the degree of Bachelor of Science in Commerce
(BSC), Major in Management, as of March 1979. This is to certify further
that his application for graduation has been forwarded to the DECS
Regional Office for the issuance of his Special Order."32 However,
Uriarte’s Special Order which was allegedly issued by the DECS is dated 8
January 1969. If Uriarte had actually graduated in 1968, what was the
purpose of this 1981 certification? On the other hand, if Uriarte actually
completed all the requirements for graduation only in March 1979, then
why was he issued a Special Order which antedated the day when he
became qualified to be a graduate of the school?
Quite obviously, neither Lumancas nor Uriarte is a graduate of a four (4)-
year course and thus is not qualified to be promoted to a higher position.
The use of false documents attesting that they are college graduates
when in truth and in fact they are not, makes them administratively liable
for dishonesty through the use of falsified documents.
The elements of "use of falsified documents," which is a crime under Art.
172 of the Revised Penal Code, are: (a) That the offender knew that a
document was falsified by another person; (b) That the false document is
embraced in Art. 171 or in any of subdivisions 1 or 2 of Art. 172; (c) That
he used such document (not in judicial proceedings); and, (d) That the
use of the false document caused damage to another or at least it was
used with intent to cause such damage. The fact that they used the false
certifications in support of this promotion resulted in prejudice to other
applicants genuinely qualified for the position. In this connection, we
refer to the Court’s observation in Diaz v. People33
As correctly observed by the trial court, 'It is also quite significant to note
in this score that the accused in his defense failed to present any
corroborating piece of evidence which will show that he was indeed
enrolled in the Philippine Harvardian Colleges x x x x If he had enrolled as
a student during this period of time and he was positive that the
transcript of records issued to him and in his possession is genuine and
valid, it could have been easy for him to introduce corroborating
evidence, i.e., the testimony of any of his classmates or teachers in the
different subjects that he took to support his claim that he studied and
passed these collegiate courses at the said school. But this he failed to do
despite all the opportunities open to him and in the face of damning
evidence all showing that he had not really enrolled in this school x x x
x'34
207
Finally, petitioners’ act of falsifying their Personal Data Sheets (PDS) to
reflect that they are graduates of BSC, Major in Management, from the
Page
IHU when in truth and in fact they are not, is a ground for disciplinary
action. Lumancas made different and inconsistent entries in her 1989,
1991 and 1993 PDS. Likewise, Uriarte made conflicting entries in his PDS
of February 198735 and March 1990.36 As responsible public servants who
are due for promotion, petitioners are expected to be noble exemplars
and should be models of good morals. Their repeated acts of dishonesty
are repugnant to the established code of conduct and ethical standards
required of public officials and employees.37
As regular members of the career service, they are bound by the Civil
Service Law and Rules.1âwphi1 Chapter 7, Sec. 46, Book V, of EO
29238 provides "x x x x b) The following shall be grounds for disciplinary
action: (1) Dishonesty x x x x (2) Misconduct x x x x (13) Falsification of
official document x x x x" It should be emphasized that this is an
administrative case, not a criminal case; thus, petitioners’ argument that
they were not charged with the proper offense under the Revised Penal
Code is unimportant. Any of the above charges may be cited as grounds
to subject them to disciplinary action.
All the elements of falsification through the making of untruthful
statements in a narration of facts are present: (a) That the offender
makes in a document statements in a narration of facts; (b) That he has a
legal obligation to disclose the truth of the facts narrated by him; (c) That
the facts narrated by the offender are absolutely false; and, (d) That the
perversion of truth in the narration of facts was made with the wrongful
intent of injuring a third person. In People v. Po Giok To39 the Court held
that "in the falsification of public or official documents, whether by public
officials or by private persons, it is unnecessary that there be present the
idea of gain or the intent to injure a third person, for the reason that, in
contradistinction to private documents, the principal thing punished is
the violation of the public faith and the destruction of the truth as therein
solemnly proclaimed." Hence, the last requisite need not be present.
Also, petitioners themselves have affirmed in their petition that their
Personal Data Sheets were not sworn to before any administering
officer40 thereby taking their case away from the confines of perjury.
Nonetheless, they argue that they have no legal obligation to disclose the
truth in their PDS since these are not official documents. We disagree.
In Inting v. Tanodbayan41 the Court held that "the accomplishment of the
Personal Data Sheet being a requirement under the Civil Service Rules
and Regulations in connection with employment in the government, the
making of an untruthful statement therein was, therefore, intimately
connected with such employment x x x x"42 The filing of a Personal Data
Sheet is required in connection with the promotion to a higher position
and contenders for promotion have the legal obligation to disclose the
truth. Otherwise, enhancing their qualifications by means of false
statements will prejudice other qualified aspirants to the same position.
The Court notes that it is not uncommon for employees to do everything
in their power to better their lot in order to survive the nation’s
worsening economic crisis. However, let this case serve as a stern
warning to all who may be tempted to do the same that dishonesty and
disrespect for the law, however motivated, will never be countenanced
by this Court.
WHEREFORE, the petition is dismissed for lack of merit and the Amended
Resolution of the Office of the Ombudsman dated 16 August 1996
dismissing petitioners Consolation A. Lumancas and Yolando O. Uriarte
from the service, as well as its Order dated 12 February 1998 denying
reconsideration, is AFFIRMED. Costs against petitioners.
SO ORDERED.
Mendoza, Quisumbing, Buena and De Leon, Jr., JJ., concur.
Footnotes
4 In
the 1989 Form, the entry appears as follows for the College
Level: Name of School/College/University: Centro Escolar
University; Degree/Units Earned: BS Pharm IV; Inclusive Date of
Attendance: 1970-1975; thereby indicating that she finished
only her fourth year of BS Pharmacy. No entry for the Post
Graduate Level.
6 Inthe 1991 Form, the entry appears as follows for the College
Level: Name of School/College/University: Centro Escolar
University; Degree/Units Earned: BS Pharm IV; Inclusive Date of
Attendance: 1974; which is inconsistent with the 1989 form.
Again, for the Post Graduate Level, the entry appears as
follows: Name of School/College/University: International
Harvardian University; Degree/Units Earned: BSC IV; Inclusive
Date of Attendance: 1978; thereby indicating that in 1978 she
finished only her fourth year of BS Commerce; which is
inconsistent with the 1993 Form.
8 Inthe 1993 Form, the entry appears as follows for the College
Level: Name of School/College/University: International
Harvardian University; Degree/Units Earned: BSC Mgnt. grad.;
Inclusive Date of Attendance: 1970-1974; which is inconsistent
with the 1989 and 1991 Forms.
11 At the time of this appeal by certiorari, Mariano Julve, one of
the original respondents, had already been found guilty by the
Civil Service Commission in its Resolution No. 95-3793, dated
23 June 1995, on the same charges of dishonesty, falsification
and grave misconduct and had been dismissed from service,
hence making the Ombudsman resolution moot and academic
insofar as Julve is concerned.
13 Id.,
p. 17. Boiser’s letter addressed to the Postmaster II dated
9 August 1994 states as follows:
Sir:
With reference to your request of July 14, 1994,
please be informed that the name of MARIO L. JULVE
is not included in Special Order (B) No. 5-0299, s.
1978, for the BSC course issued to INTERNATIONAL
HARVARDIAN UNIVERSITY, Davao City; neither does
the name of YOLANDO A. URIARTE in Special Order
(B) No. 5-0035. S. 1969.
Special Order (B) No. 5-276, s. 1978, supposedly
issued in favor of CONSOLACION H. ALAAN, same
course and school, was not issued by this Office x x x
x
(sgd) DIOSDADA C. BOISER
Director III
20 Id.,p. 263. In a telegram received by the Office of the
Ombudsman-Mindanao on 6 September 1995, complainant
Intas stated that she found the evidences submitted to be
sufficient and waived her right to appear in the preliminary
conference.
23 Rollo,p. 41. Prior to its amendment, the Resolution included
Julve among the respondents found to be guilty of the charges
and dismissed from service. The amendment dismissing the
instant case against Julve was a necessary consequence of CSC
Resolution No. 95-3793 dated 23 June 1995.
24 The case was decided by the Office of the Ombudsman on 16
August 1996 and the amended resolution approved by the
Ombudsman on 17 January 1997, before the portion of Sec. 27
of RA 6770, providing for "appeals of all administrative
disciplinary cases, orders, directives, or decisions of the Office
of the Ombudsman to be appealed to the Supreme Court by
208
filing a petition for certiorari within ten (10) days from receipt
of the written notice of the order, directive or decision or denial
of the motion for reconsideration in accordance with Rule 45 of
Page
the Rules of Court," was declared unconstitutional in the case
 of Fabian v. Desierto, G.R. No. 129742, 16 September 1998, 295
SCRA 470. The present appeal by certiorari was filed with the
Supreme Court on 7 May 1998 before the promulgation of A.M.
No. 99-2-02-SC on 9 February 1999 holding that "any appeal by
way of petition for review from a decision or final resolution or
order of the Ombudsman in administrative cases, or special civil
action relative to such decision, resolution or order filed with
the Court after 15 March 1999 shall no longer be referred to
the Court of Appeals, but must be forthwith DENIED or
DISMISSED, respectively."
29 The Form 19 contains the names of the students, the subjects
taken up and their grades in those subjects submitted by
schools to the DECS every semester. It is the basis of the Special
Order issued by DECS to show that the student has completed
a four (4)-year course.
(13) G.R. Nos. L-49483-86 March 30, 1981
SALUD P. BERADIO, petitioner,
vs.
THE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
DE CASTRO, J.:
By petition for review on certiorari, Salud P. Beradio, an election registrar
of the COMELEC in Rosales, Pangasinan, who was convicted on four (4)
counts of the crime of falsification of public or official documents of the
seven (7) separate informations filed against her for making false entries
in her daily time records, elevates to the Court, the decision 1 of the Court
of Appeals in CA-G. R. No. 20319 to 20322 promulgated on September
18, 1978, affirming in toto the judgment of conviction rendered on July
30, 1976 by the Circuit Criminal Court, Third Judicial District, Dagupan
City. The dispositive portion of the decision of the lower court reads as
follows:
FOR THE FOREGOING DISCUSSION, and with the
prosecution not having established by proof beyond
reasonable doubt the guilt of the herein accused and
with costs de oficio; and decreeing the bail bonds
posted for her provisional release in these cases
cancelled and discharged.
On the other hand, however, the Court so finds and
holds accused Salud P. Beradio GUILTY beyond
reasonable doubt of the crime of falsification of
public or official document as charged in Criminal
Case No. CCC-0260 as to entry on July 13, 1973 only,
Criminal Case No. CCC-0261; Criminal Case No. CCC-
0262 as to entry on May 28, 1973 only, and Criminal
Case No. CCC-0264, defined and penalized under
Article 17 1, paragraph 4, of the Revised Penal Code,
and absent any aggravating or mitigating
circumstance and applying the Indeterminate
Sentence Act, hereby accordingly sentences said
Salud P. Beradio to serve an indeterminate prison
term in the following manner, to wit:
a) In Criminal Case No. CCC-0260 — a prison term of
from TWO (2) YEARS, FOUR (4) MONTHS and ONE (1)
DAY of prision correccional as minimum, to EIGHT (8)
YEARS and ONE (1) DAY of prision mayor as
maximum, with the accessories of the law, to pay a
fine of TWO THOUSAND PESOS (P2,000) but without
subsidiary imprisonment in case of insolvency and, to
pay the cost;
b) In Criminal Case No. CCC-0261 — a prison term of
from TWO (2) YEARS, FOUR (4) MONTHS and ONE (1)
DAY of prision correccional as minimum, to EIGHT (8)
YEARS of prision mayor, as maximum, with the
accessories of the law, to pay a fine of TWO
THOUSAND PESOS (P2,000) without subsidiary
imprisonment in case of insolvency, and to pay the
cost;
c) In Criminal Case No. CCC-0262 - a prison term of
from TWO (2) YEARS, FOUR (4) MONTHS and ONE (1)
DAY of prision correcional, as minimum, to EIGHT (8)
YEARS and ONE (1) DAY of prision mayor, as
maximum, with the accessories of the law, to pay a
fine of TWO THOUSAND PESOS (P2,000) without
d) In Criminal Case No. CCC-026-1 — a prison term of
from TWO (2) YEARS, FOUR(4) MONTHS and ONE (1)
DAY of prision correccional as minimum to EIGHT (8)
YEARS and 0NE (1) DAY of prision mayor, as
maximum, with the accessories of the law, to pay fine
of TWO THOUSAND PESOS (P2.000) without
subsidiary imprisonment in case of insolvency, and to
pay the cost.
The penalties herein imposed shall be served
successively with the maximum duration of the
sentences not to exceed threefold the length of tune
corresponding to one penalty imposed upon tier in
accordance with Article 70 of the Revised Penal Code.
As to charges of falsification on July 12, 1973 in
Criminal Case No. CCC-0260, and on May 30, 1973,
the Court finds no sufficient Evidence to hold the
accused liable. Consequently, the accused is hereby
absolved therefrom.
The facts pertinent to the specified dates of falsification as found by the
Court of Appeals are as follows:
... On the following particular dates, as reflected in
her daily time records (Exhs. "D" to "H"), BERADIO
reported her attendance in office and actual hours of
work performed as:
On
1) 7 1
Mar : 2:
ch 3 0
15, 5 0
197 a n.
3 . ;
m
.
1 5:
: 0
0 0

209
for insufficiency of evidence or the lack of it, the subsidiary imprisonment in case of insolvency, and to
Court hereby finds. as it so holds, accussed Salud P. 0 p.
pay the cost.
Beradio NOT GUILTY of the charges in Criminal cases p m
. .

Page
Nos. CCC-0258, CCC-0259, and CCC-0263;
consequently, she is hereby acquitted therefrom m
 . m .
t . t
o o
1 5:
2) 7 1 : 0 The veracity of the foregoing reports were negated
Mar : 2: 0 0 by the following:
ch 3 0 0 p.
23, 0 0 p m 1) On March l5, 1973, BERADIO appeared as counsel
197 a n . . for the applicants at the initial hearing and reception
3 . ; m of evidence in land Registration Case No. 19-R before
m . the Court of First Instance of Pangasinan, Branch XIV,
. t Rosales, in both morning and afternoon sessions
o (Exhs. "K", "K-1" and "K-2").
1 5:
: 0 5) 7 1
0 0 Jun : 2: 2) In the morning of March 23, 1973, BERADIO
appeared as counsel for the petitioner in the hearing
0 p. e 3 0
p m 22, 5 0 of Special Proceedings No. 24-R (summary
settlement of the estate of Vicente Oria, Court of First
. . 197 a n
m 3 . ; Instance of Pangasinan, Branch XIV, at Resales, which
. m was called first in open court and later, in chambers
t . (Exhs. "M" and M-1 ").
o
1 5: 3) On May 28, 1973, in the same case, Sp. Proc. No.
3) 7 1 : 0 24-R, BERADIO again appeared as counsel for the
Ma : 2: 0 0 petitioner in the same court which held sessions from
y 4 0 0 p. 8:45 to 11:45 (Exh. "M").
28, 5 0 p m
197 a n; . .
4) In the morning of June 6, 1973, BERADIO appeared
3 . m
as counsel for the defendant in CAR Case No. 19882-
m .
.TP '73, entitled "Pepito Felipe vs. Ismael Pontes and
. t
Camilo Tamce before CAR Branch 11 in Tayug,
o
1 5: Pangasinan (Exh. "J"). Minutes of the pre-trial
: 0 6) 8 1 conference which the appellant attended are
0 0 July : 2: manifest in the pre-trial order that was dictated in
0 p. 13, 0 0 open court (Exh. "J-1").
p m 197 0 0
. . 3 a n 5) In the morning of June 22, 1973, Beradio appeared
m . ; in Sp. Proc. No. 24-R before the Court of First Instance
. m of Pangasinan, Branch XIV at Rosales (Exh. "M").
t .
o
1 5: 6) In the morning of July 13, 1973, Beradio appeared
4) 7 1 : 0 as counsel for plaintiff at the pre-trial conference of
Jun : 2: 0 0 Civil Case No. 137R, "Venancia Diaz vs. Armando

210
e 6, 3 0 0 p. Ordonio" before Branch XIV of the Court of First
197 0 0 p m Instance of Pangasinan (Exhs. "L" to "I-3").
3 a n . .

Page
. ; m
 It is thus clear that while in the six abovementioned
dates, BERADIO made it appear in her daily time
records that she was in her office and performed her
work on the dates and hours she specified, the facts
were that she was elsewhere attending court
sessions. 2
From the said decision of the Court of Appeals and the denial of her
motion for reconsideration on November 28, 1978, Salud Beradio filed
the instant petition for review on certiorari to the Court. We asked the
Solicitor General to comment on the petition and thereafter, We resolved
to give due course to said petition it appearing that the issues raised are,
in the main questions of law rendered novel by the peculiar
circumstances of the case. Thus, he raised the following legal issues:
I COMELEC's main office in Manila her daily time records after having been
WHETHER THE CONVICTION OF THE PETITIONER
TAKEN IN THE LIGHT OF THE PROVISION OF ARTICLE
171, PARAGRAPH 4, OF THE REVISED PENAL CODE IS
LEGAL AND PROPER.
II
WHETHER THE PETITIONER COULD STILL BE LEGALLY
AND PROPERLY PROSECUTED FOR AN OFFENSE
WHERE SHE WAS NO LONGER A PUBLIC OFFICIAL
III
WHETHER PETITIONER !S UNDER LEGAL OBLIGATION
TO FILL UP AND SUBMIT TIME RECORD.
IV
ASSUMING THAT SHE IS, DO THE STATEMENTS
THEREIN REFLECTED IN HER TIME RECORD BEAR ANY'
COLOR OF TRUTH'.
V Peralta, and his wife Paz de Guzman-Peralta, trial attorney of Agrarian
WHETHER DAMAGE TO THE GOVERNMENT IN
FALSIFICATION OF PUBLIC OR OFFICIAL DOCUMENT
IS TOTALLY OF NO MOMENT.
VI falsification of public or official documents for making false entries in her
daily time .records on: 1) October 12, 1972 in Criminal Case CCC-0258; 2)
IT FAILED TO HOLD THAT. UNDER THE ESTABLISHED September 4, 1973 in Criminal Case CCC-0259; 3) July 12 and 13, 1973 in
FACTS, THE CONSTITUTION, THE LAW AND WELL- Criminal Case CCC-0260; 4) June 6 and 22, 1973 in Criminal Case CCC-
SETTLED JURISPRUDENCE, PETITIONER IS ENTITLED 0261; 5) May 28 and 30, 1973 in Criminal Case CCC-0262; 6) April 3, 1973
TO ACQUITTAL ON THE GROUND OF REASONABLE in Criminal Case CCC-0263; and 7) March 15 and 23, 1973 in Criminal Case
DOUBT. CCC-0264 that she submitted to the Commission on Election in
Manila. 5 The separate informations allege that petitioner was absent the
whole day on the days mentioned therein but to the "damage and
Salud P. Beradio, petitioner, is a lady-lawyer appointed as an election
prejudice of the National Government," she made it appear in her time
registrar of the Commission on Elections (COMELEC) on February 1, 1964
records that she was not so absent from the office, when in fact she well
(Exhibits A and A-1). In 1972 and 1973, she was stationed in Resales,
knew that on such date or time she was in the Court of First Instance of
Pangasinan, as Chief of Office, Office of the Election Registrar, COMELEC
Pangasinan, Branch XIV, Resales, Pangasinan, appearing in her cases .
holding office beside the municipal building from 8:00 a.m. to 12:00 noon
and from 1:00 o'clock to 5:00 o'clock in the afternoon. As the nature of
her job was field work, she was required to fill up and submit to the While petitioner raised the above-quoted legal issues which, to Us, point
to the more basic issues inherent in acts mala in se as contra
counter-signed by her provincial supervisor. 3 distinguished from mala prohibita, We narrowed down these issues, for
proper disposition of the instant case, into whether or not the alleged
acts of falsification of public documents imputed against the petitioner
On March 29, 1973, the COMELEC by resolution (Exhibits 1 and 1-A, CCC-
were tainted with criminal intent (dolo), and whether or not the act of
0261) granted her request for permission to appear as counsel for her
alleged false narration of facts in the daily time record bears, under the
cousins and cousins-in-law in the case before the Court of Agrarian
law, some semblance of colorable truth. This We did in full considerations
Relations in Rosales, Pangasinan. 4
of the peculiar circumstances which render the instant case novel in some
respects, worthy of pronouncements from this Court.
During her assignment as Election Registrar of Rosales, Pangasinan, one
Raymundo Valdez filed with the COMELEC, sometime in September,
At the outset, it must be emphasized that for a conviction of the offense
1973, an administrative complaint charging her of unauthorized practice
of falsification of public or official documents, defined and penalized
of law. On the other hand, Salud Beradio tendered her resignation as
under Article 171, paragraph 4 of the Revised Penal Code, the requisite
Election Registrar of Rosales, Pangasinan, which, by COMELEC resolution
elements thereof must be clearly established, namely: 1) the offender
(Exhibit B) of October 25, 1973, was accepted and made to retroact on
makes in a document false statements in a narration of facts; 2) he has a
the close of office hours on September 30, 1973. She was duly granted
legal obligation to disclose the truth of the facts narrated by him; 3) the
clearance by all the offices of the COMELEC, and she received her
facts narrated by him are absolutely false, and 4) the perversion of truth
retirement benefits under the law.
in the narration of facts was made with the wrongful intent of injuring a
third person. 6
Raymundo Valdez made an inquiry with the COMELEC on the status of his
administrative case against Salud P. Beradio, and upon being informed of
Of weight in Our criminal justice system is the principle that the essence
her separation from the service, he initiated the filing of criminal charges
of an offense is the wrongful intent (dolo), without which it cannot
against Salud Beradio on grounds of falsification of daily time records
exist. 7 Actus non facit reum nisi mens set rea, the act itself does not make
defined and penalized under Article 17 1, paragraph 4 of the Revised
a man guilty unless his intentions were so. Article 3 of the Revised Penal
Penal Code as falsification of public documents. In the Office of the
Code clearly indicates that malice or criminal intent (dolo) in some form
Provincial Fiscal of Pangasinan where he lodged the criminal charges, Jose
is an essential requisite of all crimes and offenses defined in the Code,
except in those cases where the element required is negligence (culpa).
Legal Assistance (DAR) submitted affidavits in support of the charges
against Salud P. Beradio.
211
On one point, however, the claim of the petitioner that she is not under
strict obligation to keep and submit a time record is not at all empty with
On August 4, 1975, the Provincial Fiscal of Pangasinan filed seven (7)
justification. While it is true, as held by the respondent court, 8 that the
separate informations all dated July 7, 1975 with the Circuit Criminal
Page
obligation to disclose the literal truth in filling up the daily time record is
Court, Third Judicial District, Dagupan City, charging Salud P. Beradio with
required of all officers and employees in the civil service of the
government in accordance with Civil Service Rule XV, Executive Order No.
5, Series of 1909, this vague provision, however, is rendered clear by
Section 4, Rule XV of the Civil Service Rule, dated December 3, 1962, later
Memorandum Circular No. II, Series of 1965 which exempt from
requirements of keeping and submitting the daily time records three
categories of public officers, namely: 1) Presidential appointees; 2) chiefs
and assistant chiefs of agencies; and 3) officers in the three branches of
the government. Clearly thus, petitioner as Chief of theOffice, Office
ofElection Registrar, COMELEC in the municipality of Rosales, Pangasinan
exercising supervision over four (4) subordinate employess, would fall
under the third category aforementioned. An Election Registrar of the
municipality performing the powers, dutied , responsibilities of the
COMELEC, a constitutional body, in the conduct of national or local
election, referenda, and plebiscites, in aparticular voting district may be
regarded as an officer who rank higher thab such chiefs or assistant chiefs
of agencies although he may not be a presidential appointee.
Notwithstan ding such an exemption, if the election registrars of the
various municipalities all throughout the country, who occassionaly work
more than ordinary eight-hours on the last day of the registration or on
lection day, are keeping and submitting the daily time records to the main
office in Manila, it may be only to the sake of adminstrative procedural
convenience or as a matter of practice, but by reason of strict legal
obligation.
On the main point, assuming, however, that petitioner is under strict legal
obligation to keep and submit the daily time records, We are definitely
inclined to the view that the alleged false entries made in the time
records on the specified dates contained in the information do not
constitute falsification for having been made with no malice or deliberate
intent. Noteworthy is the fact that petitioner consistently did not dispute,
but admitted in all candor her appearances in six (6) different ways, on
March 15, March 23, May 28, June 22, July 13,, all in 1973 before the
Court of First Instance, Branch XIV, Rosales, Pangasinan, in the
aforementiones cases, claiming that she did not reflect this absences in
her daily time records because they were for few minute-duration, the
longest was on March 15, 1973 being for forty-five (45) minutes; they
could be absorbed within the allowed coffee breaks of 30 minutes in the
morning and in the afternoon; that as Chief of Office, and all Election
Registrars of the COMELEC for that matter, she is allowed to have one (1)
day leave during week days provided she worked on a Saturday: and that
her brief absences did not in any way interfere with or interrupt her
official duties as an Election Registrar. Above all, petitioner categorically
emphasized that her appearances in court were duly authorized by the
COMELEC, which in certain instances were as counsel de oficio, and no
remuneration whatsoever from her clients was received by her,
Finding that the justifications claimed by Beradio as unavailing, the Court
of Appeals ruled that her various appearances in court were not on
official business, and the permission granted her by the COMELEC was to
appear in behalf of her relatives, and she was still obligated to reflect in
her daily time records only the hours when she was actually in the office. 9
We are not convinced. The Court of First Instance, Branch XIV, in Rosales,
Pangasinan, is only two (2) meters from her own office as Election
Registrar in the said municipality. She had standing authority to act as de
oficio counsel given by the COMELEC evidently in furtherance of the free
legal aid service program of the Integrated Bar, and an Identical policy of
the Government itself, 10 especially as COMELEC lawyers, before any
election had been held during the regime of martial law, did not have
much office work to keep them busy. This state of virtual absence of
electoral activities is what prompted COMELEC to authorize its lawyers to
take active part in the free legal aid program above adverted to, if to do
so would not unduly interfere with their work. In recognition of the long
standing policy of the COMELEC in response to the legal aid program of
the Government 11 and the "free access to the courts" provision of the
1973 Constitution, 12 the COMELEC, by Resolution No. 1401, 13 formally
created the Legal Assistance Office thereby constituting all COMELEC
lawyers with rank of division chief and below as COMELEC Legal
Assistance Officers. Even prior to the formal creation of the Legal
Assistance Office, the liberal policy of the COMELEC in allowing its
Election Registrars to act as counsel in areas where there are no lawyers
available is, indeed, laudable.
Under the attendant facts and circumstances in the instant case, no
criminal intent to commit the crime with which she is charged can be
imputed against the petitioner. In the information, it was alleged that the
petitioner was not in her office for the full office hours from 8:00 a.m. to
12:00 noon and from 1:00 p.m. to 5:00 p.m. on the specified dates therein
as she was then busy attending her cases in court. On the contrary, the
evidence of the prosecution belies its allegation of the wholeday absence
in office as Election Registrar. Records reveal that petitioner had stayed
in court for only 5, 30, 40 or 45 minutes a day for her appearances
therein, at no instance exceeding one (1) hours.
If petitioner filled up her daily time record for the six days in question
making it appear that she attended her office from 8:00 a.m. to 12:00
noon and from 1:00 p.m. to 5:00 p.m. there is more than color of truth in
the entry made. It is not shown that she did not report first to her office
as Election Registrar of Rosales, Pangasinan, before going to the
courtroom just two (2) meters away. Petitioner thus likened her
appearance to going out for the usual coffee breaks. The comparison is
not even apt for during the while she appeared in court, she was
rendering service more, if not wholly, for the public good, than just for
her own well-being as when she goes out for snack during the coffee-
break period. The court being only two (2) meters away from her office,
she did not even have to go so far as when one goes out for snack. What
is more, everytime she appeared in court, she surely must have made this
fact officially of record in the court proceedings, something which is not
done with leaving the office room for coffee breaks. In fine, the entries in
petitioner's daily time records were not absolutely false. The alleged false
entry may be said to have a color of truth, not a downright and willful
falsehood which alone would constitute falsification as a crime. 14 As
Cuello Calon stated: "La mera inexacted tio es bastante para integrar este
delito (Cuello Calon, Derecho Penal 6th Ed. Vol. 11, p. 216, cited in People
vs. Villena, et al., 51 O.G. 5691; People vs. La Corte, CA-G. R. No. 05818-
CR; U.S. vs. Bayot, 10 Phil. 518)."
In thus preparing her daily time record the way she did, it was evidently
in her belief in her belief that she was just making of record the fact that,
as was her honest opinion, she was entitled to receive her full pay even
for those days she appeared in court, rendering what she felt was no less
a public service, being in furtherance of a public policy on free legal
assistance. As a lawyer, and as in officer of the court, she, for one, aids in
the administration of justice, oathbound servant of society whose duty is
not solely for the benefit of her clients but for the public, particularly in
the administration of justice. The court a quo itself recognize, that the
COMELEC registrars, at that time, are directed to appear as counsel de
oficio when there are no lawyers to represent the parties in litigation. 15 If
petitioner is not at all appointed as counsel de oficio strictly in accordance
with the Revised Rules of Court, Rule 138, it is an undisputed fact, as
reflected in court records, that petitioner, true to her oath, acted as
counsel in certain cases. On this point, if one fills up his daily time record
in the belief that, on the basis of the time so indicated therein, she is
merely making an honest claim for the pay corresponding to the time so
indicated, no intent to commit the crime of falsification of public
document can be ascribed to her. In the case of the herein petitioner, she
was only submitting a time record she knew would be the basis for
computing the pay she honestly felt she deserved for the period
indicated. Indeed, the time record is required primarily, if not solely, for
the purpose of serving as basis for the determination of the amount of
pay an employee is entitled to receive for a given period.
Further, on the issue of malus animus or criminal intent, it was ruled by
the court a quo, confirmed by the respondent Court of Appeals, that in
falsification of public document, in contradistinction to private
document, the Idea of gain or the intent to injure a third person is
unnecessary, for, what is penalized is the undermining or infringement of
the public faith and the violation of the truth as therein solemnly
proclaimed, invoking the case of People vs. Po Giok Te, 96 Phil. 918.
Arguing against this ruling, petitioner cited the case of People us. Pacana,
212
47 Phil. 48, which the ponente in the instant case upheld in the case
of People vs. Motus, CA-G.R. No. 18267-CR when he was in the Court of
Appeals, that although the Idea of gain or the intent to injure a third
Page
person is unnecessary, htis Court emphasized that "it must, nevertheless,
be borne in mind that the change in th epublic document must be such
as to affect the integrity of the same or change in the public document
must be such as to affect the integrity of the same or change the effects
which it would otherwise produce; for, unless that happens, there could
not exist the essential element of the intention to commit the crime
which is required by Article 1 (now Article 3) of the Penal Code.
We find the petitioner's stand tenable. the evident purpose of requiring
government employees to keep time record is to show their attendance
in office to work and to be paid accordingly. Closely adhering tot he policy
of no work no pay, a daily time record is primarily, if not solely, intended
to prevent damage or loss tot he government as would result in instances
where it pays an employee for no work done. The integrity of the daily
time record as an official document, however, remains untarnished if the
damages sought to be prevented has not been produced. As
this ponente observed in the case of People v. Motus, supra while it is
true that a time record is an official document, it is not criminally falsified
if it does not pervert its avowed purpose as when it does not cause
damage to the government. It may be different in the case of a public
document with continuing interest affecting the public welfare which is
naturally damaged if that document is falsified where the truth is
necessary for the safeguard and protection of that general interest. In the
instant case, the time records have already served their purpose. They
have not caused any damage to the government or third person because
under the facts duly proven, petitioner may be said to have rendered
service in the interest of the public, with proper permission from her
superiors. They may now even be condemned as having no more use to
require their continued safe- keeping. Public interest has not been
harmed by their contents, and continuing faith in their verity is not
affected.
As pointed out, the obligation to make entries in the daily time records
of officers and employees in the Government service is a matter of
administrative procedural convenience in the computation of salary for a
given period, characteristically, not an outright and strict measure of
professional discipline, efficiency, dedication, honestly and competence.
Under the proven and admitted facts, petitioner-appellant surely is
entitled to receive the pay as if she had stayed in her office the whole
period covered by the official hours prescribed. ,She had perhaps made
herself even more useful in the general benefit of the public than if she
had remained practically Idle in her office as Election Registrar with
perhaps no work at all to attend to, its is generally the case long before
elections take place, specially during the martial law regime. The
COMELEC must have been fully cognizant of the legal implications of the
peculiar facts and circumstances that obtained in this case, when it gave
petitioner full clearance after she presented her resignation when an
administrative charge was filed against her by the same complainant as
in the criminal charge. The courts, in the present criminal prosecution,
should do no less. It would be too harsh and cruel for the courts to punish
petitioner not only with imprisonment but with general disqualification
and possible disbarment, for an act or omission which she performed or
failed to perform without any criminal intent. Such an insignificant
transgression, if ever it is one, would not beam the scales of justice
against the petitioner, for courts must always be, as they are, the
repositories of fairness and justice. It is inconceivable that a person who,
without any attempt to conceal her appearances in court for this is a
matter always made officially of record in the court proceedings,
emphatically, not for his own private gain, but animated by the zeal of
service not wanting in public benefit, and as an officer of the court,
petitioner could have acted with a deliberate criminal intent. Moreover,
what she stated in her daily time record, as earlier observed, had more
than a mere color of truth to exclude such act from the pale of the
criminal offense of falsification of public document with which she is
charged.
WHEREFORE, finding the guilt of petitioner not to have been established
beyond reasonable doubt, the judgment of conviction rendered by
respondent court in affirming that of the trial court is hereby reversed,
and petitioner, acquitted of the crime charged, with costs de oficio.
SO ORDERED.
Teehankee (Chairman), Makasiar, Fernandez and Guerrero, JJ., concur.
Melencio-Herrera, J., concurs in the result.
(14) G.R. Nos. L-55683 & 55903-04 February 22, 1982
PILAR S. LUAGUE, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.
ABAD SANTOS, J.:
Certiorari to review a decision of the Court of Appeals in CA-G.R. Nos.
22414-16 CR which affirmed the decision of The Court of First Instance of
Samar, Branch X, convicting the petitioner of three counts of falsification
of commercial documents in Criminal Cases Nos. 599, 600 and 601.
The facts are stated in the poorly written decision of the Court of Appeals
thus:
Iluminado Luague, a teacher clerk in the district office
of Laoang II, Northern Samar, died at the G.B. Tan
Memorial Hospital at around 7:00 o'clock in the
evening of January 24, 1972 after he was confined in
said hospital since January 3, 1972.
Thereafter, the then Bureau of Public Schools sent
the deceased's salary warrants [Exhibits A (599), A
(600) and A (601)] to the Superintendent of schools
at Catarman Northern Samar who in turn forwarded
them to the District Supervisor, Florencio Guillermo.
A payroll-warrant register accompanied the checks.
The paychecks delivered, Florencio Guillermo signed
the payroll-warrant registers certifying that on his
official oath, each employee whose name appeared
on the rolls had received the salary warrant indicated
opposite his name on February 7, 1972, February 17,
1972 and February 25, 1972, respectively, and
returned the same to Jose Figueroa, the District
Administrative Officer of Northern Samar.
Exhibit A (599) was personally received by Pilar S.
Luague, while Exhibit A (600) was received by Glen S.
Luague. Exhibit A (601) was received by Edmundo
Echano, a relative of Iliuminado Luague and who
claimed to be employed in the Office of the District
Supervisor.
Florencio Guillermo claimed that upon discovering
his mistake, he asked appellant to return the treasury
warrants issued in the name of her husband
Iluminado Luague, further claiming that appellant
promised to do so, but actually did not. Upon the
receipt of the xerox copies from the IBM Section of
the Bureau of Public Schools, Guillermo discovered
that the treasury warrants in question had been
encashed by appellant and Glen Luague with
different local stores at Laoang. Exhibit A (599) was
cleared on February 22, 1972, while Exhibit A (600)
213
was deposited to the account of a certain Lee and/or
Nicol Chu, Jr. at Philippine Bank of Communications;
and Exhibit A (601) was deposited to the account of
Page
Colgate-Palmolive Philippines, Inc. Appellant
 admitted having endorsed the treasury warrants by
means of which she was able to encash the same.
For signing the name of her husband Iluminado
Luague as payee on three treasury warrants for
purposes of endorsement, appellant stands charged
with the crime of Estafa thru Falsification of
Commercial Document. [Note: The
appellant was charged with three counts of estafa
thru falsification of commercial document but was
convicted of falsification only.]
It is the petitioner's contention before Us as well as in the Court of
Appeals that she acted in good faith or had no criminal intent when she
cashed her deceased husband's paychecks. As stated in the decision of
the Court of Appeals:
Appellant puts up the defense of good faith in signing
theme of her deceased husband in the treasury
warrants in question.
Her version: The late Iluminado Luague was on leave
from January 3 to February 9, 1972, as evidenced by
his approved application for sick leave. On January
23, 1972, the Principal, Jose Infante, while visiting
Iluminado Luague in the hospital, handed to Luague
a check representing his differentials. Luague in turn
handed over the check to his wife, the herein
appellant, who was then present. Before Infante left,
he informed the Luague spouses that Luague's pay
check for the second half of January 1972 had arrived
and advised Mrs. Luague to get the same from
Florencio Guillermo so that she could use it to pay for
medicine and hospital expenses of her husband.
Iluminado Luague instructed her [his (sic)] wife to get
the check from Florencio Guillermo. Appellant went
to the house of Guillermo in the afternoon of January
23, 1972. Guillermo asked her to sign the name of her
husband on the payroll warrant register and counter-
sign with her initials. Guillermo then handed her the
treasury warrant [Exhibit A (599)].
Iluminado Luague died on January 24, 1972. From the
proceeds of the warrants they received were paid the
amount the Luague family owed the drugstores
owned by Amor Carandang, Purisima Saba and Luz
Tan. A treasury warrant was also paid to Edward Kam
from whom they bought construction materials for
the tomb of the deceased and to Ong Kiat store for
the payment of materials used for the coffin of the
late Iluminado Luague which were purchased on
credit.
Upon the instruction of Amor Carandang and on her
belief and upon suggestion of Florencio Guillermo
himself that the warrants could be used to settle their
financial obligations incurred by the hospitalization
and death of her late husband, appellant indorsed
the said treasury warrants by signing the name of
Iluminado Luague.
Heirs of deceased government employees are
entitled to whatever unpaid salaries the deceased
employee failed to receive. Appellant claims that it
was upon this honest belief that she endorsed the
treasury warrants of her late husband to defray for
the necessary expenses incurred due to the latter's
hospitalization, funeral and burial.
The Court of Appeals did not reject the petitioner's version, except in
respect of the date when the first paycheck was delivered. In affirming
the decision of the trial court, the Court of Appeals followed the simplistic
procedure of applying literally the letter of the law, namely: there was
falsification because the petitioner "signed her husband's name in
indorsing the treasury warrants in question." The Court of Appeals failed
to take into account the following facts: That the petitioner signed her
husband's name to the checks because they were delivered to her by no
less than her husband's district supervisor long after the husband's death
which was known to the supervisor; that she used the proceeds of the
checks to pay for the expenses of her husband's last illness and his burial;
and that she believed that she was entitled to the money as an advance
payment for her husband's vacation and sick leave credits the money
value of which exceeded the value of the checks. In the fight of these
circumstances, We cannot ascribe criminal intent to the petitioner. We
sustain her claim that she acted in good faith.
During the hearing, it was brought out that the government did not
sustain any financial loss due to the encashment of the checks because
the petitioner's husband had accumulated vacation and sick leaves the
money value of which exceeded the value of the three paychecks and the
value of the checks was simply deducted from the money value of the
leaves. This explains why the petitioner was not convicted of estafa but
of falsification only. While we do not mean to imply that if there is no
damage there can be no falsification, We do say that the absence of
damage is an element to be considered to determine whether or not
there is criminal intent.
We notice here the lack of compassion on the part of the prosecuting
fiscal, the trial judge, and the Court of Appeals. Even the Solicitor General
who is alert in seeking to correct improper convictions by trial courts has
somehow misappreciated the evidence in this case.
The accused is a poor widow who was obviously in a state of
bewilderment due to the recent death of her husband when she cashed
the paychecks. She was also in dire need of money to settle the expenses
for her husband's last illness and his burial. A compassionate attitude
repeatedly urged by the First Lady, Mrs. Imelda R. Marcos, would have
been highly in order under the circumstances.
WHEREFORE, the petition is hereby granted; the decision of the Court of
Appeals is reversed; the petitioner is acquitted of the charges against her.
No costs.
SO ORDERED.
Barredo (Chairman), Aquino, Concepcion, Jr., De Castro and Ericta, JJ.,
concur.
Escolin J., took no part.
On USE OF FALSIFIED DOCUMENTS
G.R. No. 73905 September 30, 1991
MICHAEL T. DAVA, petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES and the INTERMEDIATE APPELLATE
COURT, respondents.
KV. Faylona & Associates for petitioner.
FERNAN, C.J.:
214
On October 19, 1975, while driving a car along Shaw Boulevard,
Mandaluyong, Rizal, petitioner Michael T. Dava, then holder of non-
professional driver's license No. 14744271 with official receipt No.
Page
7023037,2 bumped pedestrians Bernadette Roxas Clamor and Dolores E.
Roxas, causing death to former and physical injuries to the latter.
As a consequence of said incident, Dava was brought to Mandaluyong
Police headquarters where his driver's license was confiscated by Cpl.
Daniel Severino who later submitted Dava's driver's license to the fiscal's
office in Pasig, Rizal. license was thereafter presented as prosecution
evidence in criminal case for homicide and serious physical injuries
reckless imprudence filed against Dava in the then Court First Instance of
Rizal in Pasig.3
On April 12, 1978, Antonio Roxas, the brother of Bernadette and the
father of Dolores, saw Dava driving a maroon Volkswagen (beetle-type)
car with plate No. AD-902 B. Knowing that Dava's driver's license was
used as an exhibit in court and that no traffic violation receipt had been
issued to Dava, Roxas sought the help of then Minister of Defense Juan
Ponce Enrile in apprehending Dava for driving without a license.4 The
Ministry of Defense later indorsed Roxas' request for assistance to the
Constabulary Highway Patrol Group (CHPG).
At around 7:30 in the evening of July 21, 1978, M/Sgt. Domingo Lising and
S/Sgt. Arturo Viduya of the CHPG saw the maroon Volkswagen car
described by Roxas parked in front of the Uniwide Department Store near
the then Nation theater in Cubao, Quezon City. When the driver and his
companion arrived, Lising and Viduya confronted them and asked the
driver for his license. They were shown non-professional driver's license
No. 27068875 with official receipt No. 06058706 issued by Agency 2L
Pampanga in the name of Michael T. Dava. When asked about the source
of his license, Dava informed them that his officemate had secured it for
him.
Lising and Viduya invited Dava to the CHPG office in Camp Crame, Quezon
City for questioning. Dava refused to give a statement upon the advice of
his lawyer. Lising then submitted a spot report to Col. Maristela stating
therein that "subject had violated Section 31 of RA 4136 for false
representation in the application of a driver's license intended to be used
as a legal license."7 In his affidavit of apprehension dated November 16,
1978, Lising stated that he was 'about to book him for violation of Section
31 of Rep. Act 4136, when subsequent investigation revealed that the
Driver's License above-mentioned is a Fake and a Falsity' and therefore a
case for falsification and use of falsified documents under Section 172 of
the Revised Penal Code should be filed against Dava.8 Lising concluded
that Dava's driver's license was fake because when he compared it with
the xerox copy of Dava's license which was attached to the record of the
criminal case in Pasig, the signatures and the dates of birth indicated in
the two licenses did "not tally."9
Accordingly, an information for falsification of a public document was
filed against Dava in the then Court of First Instance of Rizal, Branch V at
Quezon City.10 One of the prosecution witnesses was Caroline Vinluan of
the Angeles City branch of the Bureau of Land Transportation (BLT). He
testified that hen was then the registrar of the said office when Dava's
driver' license was brought to him by lawyer Jose Francisco who was
interested in knowing whether it was genuine or fake and if was issued
by the Angeles City agency of the BLT. He examine it and found out that
it was "fake or illegally issued" because form No. 2706887 was one of the
fifty (50) forms which had been reported missing from their office
sometime in November, 1976 and that it was never issued to any
applicant for a license.11He added that any license that was not included
their office index card was considered as "coming from illegal source' and
"not legally issued by any agency."12
Vinluan stated that although the form used for the license was
genuine,13 the signature of the issuing official was fake.14 He "believed"
certain persons had been apprehended for "plasticization" of licenses
outside their office15 and that sometime November, 1976, agents of the
National Bureau of Investigation raided the house of a certain person
who had in his possession some of the forms which had been missing
from office.16 He concluded that the license was fake because the form
was issued by the central office to the Angeles agency, the license
appeared on its face to have been issued the San Fernando, Pampanga
agency.17
Dava was convicted of the crime charged. He appealed to then Court of
Appeals18 which affirmed the lower court's decision on January 29, 1982.
Dava filed a motion for reconsideration of the said decision contending
that the lower court had no jurisdiction to try the case. On April 27, 1982,
the Court of Appeals reversed and set aside its decision and issued a
resolution the dispositive portion of which reads:
WHEREFORE, as prayed for, our decision is hereby
reconsidered and set aside, and another judgment shall be
entered annulling the proceedings in the court a quo without
prejudice to the refiling of the charges with the proper court.
(Rollo, pp. 35-36.)
Consequently, the case was refiled with the Regional Trial Court of
Pampanga, Branch 47 at San Fernando as Criminal Case No. 2422. The
information for falsification of a public document reads as follows:
That on or about the 12th day of April, 1978, and for sometime
prior thereto, in the municipality of San Fernando, province of
Pampanga, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused MICHAEL T. DAVA,
a private individual, did then and there willfully, unlawfully and
feloniously falsify or cause to be falsified, a Non-Professional
Driver's license with Serial No. 2706887 covered by Official
Receipt No. 0605870, dated January 24, 1978, a public
document, by making it appear that the signatories therein
who are officials of the Pampanga LTC Agency participated in
the preparation thereof, when in truth and in fact they did not
so participate and the accused made use of the same knowing
it to be falsified.
ALL CONTRARY TO LAW.
At the trial, the prosecution presented Antonio Roxas who testified on
how he saw Dava driving a car and that, knowing that Dava's license had
been confiscated as a result of the filing of the homicide and serious
physical injuries through reckless imprudence case, he thereafter sought
the assistance of then Minister Enrile in apprehending Dava for driving
without a license.19 For his part, Domingo Lising, who apprehended Dava,
narrated in court how he first saw Daya driving a car along Banahaw and
N. Domingo Sts. in Quezon City until he finally confronted Dava at the
vicinity of the Araneta Coliseum and confiscated his driver's license. As
earlier stated, he conclude that the driver's license shown to him by Dava
was fake because he noticed that, when compared with the license
attached to record of the criminal case filed against Dava, the license
confiscated bore a different signature and date of birth.20
Daniel Severino, a sergeant of the Mandaluyong police, testified that he
investigated the traffic incident along Shaw Boulevard on October 19,
1975 which involved Dava and the two relatives of Antonio Roxas. He
himself confiscated Dava's no professional driver's license No. 1474427
which he later turn over to the fiscal's office.21
In the course of Severino's testimony, the defense counsel informed the
court that, upon a resolution of the Court of Appeals, Dava was allowed
by the lower court having jurisdiction over Criminal Case No. 16474 to
withdraw his driver's license 1474427 from the records of said
case.22 When confronted by the court, Dava volunteered that he
withdrew said license in December, 1982 and surrendered it to the BLT
Western District Office so that he could renew his license. 23 Hence, the
215
evidence presented before the Court was a mere xerox copy of said
license24 which also bears a notation that Dava received original driver's
license and its receipt on December 15, 1982.25
Page
Victor Martin, who had been the head of the San Fernando Pampanga
branch of the BLT and whose name appears registrar thereof in official
receipt No. 0605870 which was supposed to be attached to Dava's
driver's license No. 270688 admitted that the form of the said license was
genuine although he could not tell whether its contents were likewise
genuine because it was "opened" and "spliced."26 He asserted, however,
that since the said form "did not emanate" from his office and "a facsimile
was not printed" over his name, said license was "not OK".27
Martin said that he was informed by the property section of the BLT
regional office that the number in the license was one of "the numbers
requisitioned by (the) Angeles City agency."28 He affirmed that drivers
license No. 2706887 "was not issued by (their) agency"29 although when
recalled to the stand, he admitted that the "2L" filled in the space for
"Agency Code No." on the face of license No. 2706887 referred to the San
Fernando agency.30 Martin also confirmed the genuineness of official
receipt No. 0605870 although it was his assistant who signed it for
him31 and affirmed that the amount of P10.00 indicated therein had been
collected and received by his office.32
Lawyer Jose Francisco testified that he went to the Angeles City office of
the BLT to see its chief and inquire about the number of driver's license
issued to Dava and whether said office had indeed issued them.
According to him, the head of the office, Caroline Vinluan, advised him to
verify from the index card in the possession of the License Division head
whether the Angeles City agency had indeed issued Dava's
license.33 Thereafter, the officer-in-charge of the License Division of the
BLT in East Avenue, Quezon City, Leonardo R. Medina, issued a
certification dated December 24, 1979 to the effect that non-professional
drivers license No. 2706887 in the name of Dava was "not registered in
(their) Index Card."34
Francisco also informed the court that Carolino Vinluan, the former head
of the Angeles City BLT agency, had died on May 12, 1980.35 He offered
in evidence Vinluan's death certificate as Exh. J.
Another evidence presented by the prosecution was the transcript of
stenographic notes of the testimony of Carolino Vinluan which was taken
on January 8, 1980 at the trial of Criminal Case No. Q-10759 before the
then Court of First Instance Rizal, Branch V at Quezon City. It was marked
as Exh. K said exhibit was part of the record of Criminal Case No. 10759
which was transmitted to the Regional Trial Court Pampanga.36
The defense presented only one witness: Felizardo Manalili. A friend of
Dava and his former co-trainee at the Sandoz Philippines, a
pharmaceutical firm, Manalili testified that Dava quested him to secure a
driver's license for him because he had none. Manalili went to the San
Fernando office of the Land Transportation Commission (LTC) where he
used to secure own license. At the LTC branch office, he was
"approached"37 the fixers who roamed around the compound. When he
as them how much it would cost to secure a driver's license, he told that
it would amount to P70 .00.38 He agreed to pay amount and gave the
fixers the personal data of Dava.39
After an hour, the fixers gave Manalili the license which was inside a
plastic jacket. (Manalili identified the license as Exh. B.) He examined it
and found out that it looked "like a genuine and authentic driver's
license" to him. The license, which opened and unsealed, bore a signature
in the portion which showed the name Romeo Edu and contained all the
personal data of Dava. Because it did not bear the signature of Dava
Manalili immediately gave the license to Dava and told him to sign it
immediately. Dava did so in Manalili's presence.40
On March 22, 1984, the lower court rendered a decision41 finding that the
license in question was "fake or spurious", that was not duly issued by
any proper government licensing age and that the accused directly
participated in the commission of the falsification or caused said
falsification. The court took into account the facts that Dava was "in dire
need' of a license because of his work as a detailman; that he received his
genuine license from the court only on December 15, 1982, and that Dava
himself personally requested his friend, Manalili, to secure the license for
him. It arrived at the conclusion that since Dava was the possessor or user
of the fake license, he himself was the forger or the one who caused its
forgery or falsification. The dispositive portion of the decision reads:
IN VIEW OF THE FOREGOING, this Court finds the accused
Michael T. Dava guilty beyond reasonable doubt, as principal of
the came of Falsification of a Public Document, as defined and
penalized under the provisions of Article 172 of the Revised
Penal Code, and considering the absence of any mitigating or
aggravating circumstance, hereby sentences him under the
Indeterminate Sentence Law to suffer an indeterminate
imprisonment of one (1) year and eight (8) months of prision
correecional as minimum, to four (4) years, nine (9) months and
ten (10) days of prision correccional as maximum; and to pay a
fine of Two Thousand Five Hundred (P2,500.00) Pesos,
Philippine Currency, plus the costs of this suit.
IT IS SO ORDERED.
Dava appealed to the then Intermediate Appellate Court,42 which on
September 30, 1985 affirmed in in toto the decision of the trial court. On
February 27, 1986, the appellate court denied Dava's motion for the
reconsideration of said decision finding that no new grounds had been
raised therein. Hence, the instant petition for review on certiorari.
Petitioner assails herein the reliance of the courts below on the testimony
of Carolino Vinluan on the ground that being a part of the annulled
proceedings in Criminal Case No. Q-10759, it may not be considered as
admissible in evidence as it cannot qualify as a "testimony at a former
trial" under the provisions of Section 41, Rule 130 of the Rules of Court.
We find petitioner's contention to be meritorious. The resolution of the
then Intermediate Appellate Court in CA-G.R. No. 24312-CR, expressly
annulled the proceedings had in Criminal Case No. Q-10759 for lack of
jurisdiction of the Quezon City court over the case. That ruling is founded
on solid jurisprudence. We had time and again held that in the absence
of proof that the party raising the issue of lack of jurisdiction is barred by
estoppel,43 a decision rendered by a court without jurisdiction is a total
nullity.44 Being worthless in itself, all the proceedings founded upon it are
equally worthless.45 Hence, the testimony of Vinluan is not only
inadmissible in evidence but may well be considered as totally
nonexistent.
With the testimony of the late Carolino Vinluan out of the way, is there
sufficient evidence to warrant the conviction of petitioner for the crime
charged?
The information specifically charges the petitioner with having made it
appear in his driver's license No. 2706887 that "officials of the Pampanga
LTC agency participated" in in-preparation and with having used the said
driver's license knowing that it was falsified. The charges therefore are
found on the provisions of Article 172 (1) of the Revised Penal Code which
punishes any private individual who shall commit any the falsification
enumerated in Article 171 specifically paragraph 2 thereof which
penalizes the act of causing it to appear that persons (public officials)
have participated in any act proceeding when they did not in fact so
participate. The information also charges Dava with having knowingly
used a false document under the last paragraph of Article 172.
The evidence at hand proves that petitioner, misrepresenting that he had
no driver's license, asked his friend, Manalili, to secure one for him.
Sometime in November, 1976, Manalili, who used to get his own driver's
license in San Fernando, Pampanga, was able to secure petitioner's
driver's license No. 2706887 through fixers at the Land Transportation
Commission (LTC) agency in said locality.46 On January 24, 1978,
216
petitioner renewed his license at the said office by paying the amount of
P10.00 for which he was issued official receipt No. 0605870.47
Page
In the renewal of drivers' license, the practice then was simply to present
an official receipt showing that at the previous year the licensee had paid
for his driver's license to any agency of the LTC, and to pay the renewal
fee. As long as the transaction did not involve the issuance of "another
form," a driver did not have to fill up an application form for the renewal
of a license. The said agency would then issue an official receipt
evidencing the renewal of the license but the driver's license itself would
not be changed.48
Thus. on January 24,1978, when driver's license No. 2706887 together
with official receipt No. 86432149 were presented to the San Fernando
LTC agency, the personnel therein issued official-receipt No. 0605870 in
the name of petitioner. Although the receipt was not personally signed
by office registrar Victor Martin but by his assistant, the receipt50 was
genuine and the amount indicated therein was actually paid to and
collected by the San Fernando agency.51 The driver's license itself may
not have been issued by said agency52 but its form was likewise genuine.
However, according to Martin, it was 'not OK' because it "did not
emanate" from his office and "a facsimile was not printed over" his name
therein.53 Moreover, according to the officer-in-charge of the license
Division of the Bureau of Land Transportation in East Avenue, Quezon
City, non-professional driver's license No. 2706887 in the name of
Michael Dava Tolosa "is not registered" in their index card.54
Hence, while there is no doubt that driver's license No. 2706887 was a
spurious one, the evidence do not pinpoint the petition as the actual
falsifier. Unfortunately, however, there are pieces of evidence which
prove beyond reasonable doubt at he caused the falsification and made
use of the falsified driver's license knowing it to be so.
The elements of the crime of using a falsified document in transaction
(other than as evidence in a judicial proceed penalized under the last
paragraph of Article 172 are following: (a) the offender knew that a
document was falsified by another person; (b) the false document is
embraced in Article 171 or in any of subdivisions Nos. 1 and 2 of Article
172; (c he used such document (not in judicial proceedings), and (d) the
use of the false document caused damage to another or at last it was
used with intent to cause such damage.55 Except for last, all of these
elements have been proven beyond reason doubt in this case.
It is not disputed that it was petitioner himself who requested Manalili to
get him a license. He misrepresented to Manalili that he has not at any
time been issued a driver's license.56 Through this misrepresentation and
capitalizing on Manalili awareness of the dire necessity of obtaining a
driver's license the shortest time possible to enable petitioner to perform
duties as detailman, petitioner was able, in a very subtle clever manner,
to induce Manalili to deal with "fixers" in securing the subject driver's
license. For indeed, there was no way Manalili could obtain a drivers
license in so short a without having to deal with "fixers." Thus, as
petitioner calculated, Manalili, who appeared to have been motivated by
a sincere desire to help a friend, did not hesitate to deal with three fixers
whom he knew were not employees of the LTC to whom he paid P70.00
for the license even if the legal fee then was only P15.00.57 As it was in
truth petitioner who induced and left Manalili with no choice but to seek
the aid of fixers, the fact that it was Manalili and not petitioner who dealt
directly with said fixers cannot exculpate petitioner from the charge of
falsification. He is, beyond reasonable doubt, a principal by inducement
in the commission of said crime.
Petitioner cannot feign ignorance of the spurious character of his second
driver's license No. 2706887. Having already obtained a driver's license,
he knew that it was not legally possible for him to secure another one.
Otherwise, there would have been no need for him to misrepresent to
his friend Manalili that he was not then a holder of a driver's license. But
even with this misrepresentation, petitioner cannot even begin to believe
that Manalili would be able to secure a driver's license through legal
means in about an hour's time.58 The patent irregularity in obtaining
driver's license No. 2706887 was more than sufficient to arouse the
suspicion of an ordinary cautious and prudent man as to its genuineness
and authenticity. In fact, Manalili testified that he himself was surprised
when the fixer handed to him the plastic jacket of the driver's license of
Michael Dava on November 4, 1976, a few hours after he had sought the
fixer's assistance.59 In those days, all plastic jackets emanated from the
LTC Central Office, which accounted for the delay in the release of the
license applied for. Under these circumstances, no "reasonable and
fairminded man" would say that petitioner did not know that his license
was a fake.60
A driver's license is a public document within the purview of Articles 171
and 172. The blank form of the drivers license becomes a public
document the moment it is accomplished.61 Thus, when driver's license
No. 2706887 was filled up with petitioner's personal data and the
signature of the region of the San Fernando LTC agency was affixed
therein, even if the same was simulated, the driver's license became a
public document.
The third element of use of the falsified document is proven by the fact
that when petitioner was apprehended by Lising on April 12, 1978 it was
in his possession and it was what he presented Lising to show that he had
a license. Because he was a detailman who did his job with the use of a
car, it is probable that from November 4, 1976 (its date of issuance) until
April 12, 1978, petitioner used driver's license No. 2706887.
The driver's license being a public document, proof of the fourth element
of damage caused to another person or at least an intent to cause such
damage has become immaterial. In falsification of public or official
documents, the principal thing being punished is the violation of the
public faith and the destruction of the truth proclaimed therein.62
In his attempt at exculpation, petitioner asserts that the following ruling
in People vs. Sendaydiego,63 should be applied in his favor:
The rule is that if a person had in his possession a falsified
document and he made use of it (uttered it), taking advantage
of it and profiting thereby, the presumption is that he is the
material author of the falsification. This is especially true if the
use or uttering of the forged documents was so closely
connected in time with the forgery that the user or possessor
may be proven to have the capacity of committing the forgery,
or to have close connection with the forgers, and therefore,
had complicity in the forgery (U.S. vs. Castillo, 6 Phil. 453;
People vs. De Lara, 45 PMI. 754; People vs. Domingo, 49 Phil.
28: People vs. Astudillo, 60 Phil. 338; People vs. Manansala, 105
Phil. 1253). In the absence of a satisfactory explanation, one
who is found in possession of a forged document and who used
or uttered it is presumed to be the forger (Alarcon vs. Court of
Appeals, L-21846, March 31, 1967, 19 SCRA 688; People vs.
Caragao,
L-28258, December 27, 1969, 30 SCRA 993). (Emphasis
supplied.)
We agree with the petitioner that the presumption enunciated in the
Sendaydiego case is not absolute as it is subject to the exception that the
accused should have a satisfactory explanation why he is in possession of
a false document.64 His explanation, however, is unsatisfactory as it
consists mainly in passing the buck to his friend, Manalili. As stated
above, Manalili himself could not have acted on his own accord without
the prodding of petitioner.
We cannot help but comment on petitioner's allegations on the role of
fixers in government agencies. To him, a fixer is a "necessary evil" who
could do things fast for the right amount. He is "not necessarily involved
in the commission of forgery or falsification of official documents" and he
shares his fees with "insiders."65
Fixers indeed appear as undetachable fixtures in government licensing
agencies. Why they proliferate is a sad commentary not only on our
bureaucracy but also on our own people. While not all fixers are engaged
in illegal activities for some simple serve as "facilitators," they
217
nonetheless provide sources for exploitation of the unknowing common
people who transact business with the government and for corruption of
the gullible government employees. Their unwanted presence must be
Page
dealt with accordingly and the soonest this is undertaken by our
government agencies the better for all of us.
WHEREFORE, the decision of the respondent appellate court is hereby
affirmed. Let a copy of this decision be served on that Department of
Transportation and Communication. Cost against the petitioner.
SO ORDERED.
Gutierrez, Jr., Feliciano, Bidin and Davide, Jr., JJ., concur.
On USING FICTITIOUS NAME
G.R. No. L-63817 August 28, 1984
CORAZON LEGAMIA y RIVERA, petitioner,
vs.
INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE
PHILIPPINES, respondents.
Felipe O. Pascual for petitioner.
The Solicitor General for respondent Appellate Court.
ABAD SANTOS, J.:
This is an appeal by certiorari to review and reverse a decision of the
Intermediate Appellate Court.
In the defunct Court of First Instance of Manila, Corazon Legamia was
accused of using an alias in violation of Commonwealth Act No. 142, as
amended. The information against her reads:
That on or about November 4th, 1974, and for
sometime prior and subsequent thereto, in the City
of Manila, Philippines, the said accused did then and
there wilfully and unlawfully use the substitute or
alias name CORAZON L. REYES, which is different
from Corazon Legamia y Rivera with which she was
christened or by which she has been known since
childhood, nor as a pseudonym for literary purpose
and without having been previously authorized by a
competent Court to do so; that it was discovered only
on or about November 4th, 1974. (Rollo, pp. 11-12.)
She was convicted by the trial court which sentenced her to an
indeterminate prison term of only (1) year, as minimum, to two (2) years,
as maximum; to pay a fine a fine of
P5,000.00, with subsidiary imprisonment; and to pay the costs. The trial
court recommended, however, that she be extended executive
clemency. On appeal to the Intermediate Appellate Court, the sentence
was affirmed in toto. Hence the instant petition.
The facts:
Corazon Legamia lived with Emilio N. Reyes for 19 years from November
8, 1955 to September 26, 1974, when Emilio died. During their live-in
arrangement they produced a boy who was named Michael Raphael
Gabriel L. Reyes. He was born on October 18, 1971.
From the time Corazon and Emilio lived together until the latter's death,
Corazon was known as Corazon L. Reyes; she styled herself as Mrs. Reyes;
and Emilio introduced her to friends as Mrs. Reyes.
Emilio was Branch Claim Manager Naga Branch, of the Agricultural Credit
Administration when he died. On October 29, 1974, or shortly after
Emilio's death, Corazon filed a letter in behalf of Michael with the
Agricultural Credit Administration for death benefits. The letter was
signed "Corazon L. Reyes." The voucher evidencing payment of Michael's
claim in the amount of P2,648.76 was also signed "Corazon L. Reyes."
For using the name Reyes although she was not married to Emilio,
Felicisima Reyes who was married to Emilio filed a complaint which led
to Corazon's prosecution. Parenthetically, the amount paid to Michael is
"equivalent to 2/5 of that which is due to each legitimate child in
accordance with the provisions of the Civil Code" per advice given by Atty.
Diomedes A. Bragado of the Agricultural Credit Administration to
Felicisima. (Rollo, pp. 14-15.)
The law:
Commonwealth Act No. 142 provides in Section 1:
Section 1. Except as a pseudonym solely for literary,
cinema, television, radio or other entertainment
purposes and in athletic events where the use of
pseudonym is a normally accepted practice, no
person shall use any name different from the one
with which he was registered at birth in the office of
the local civil registry, or with which he was baptized
for the first time, or in case of an alien, with which he
was registered in the Bureau of Immigration upon
entry; or such substitute name as may have been
authorized by a competent court: Provided, That
persons, whose births have not been registered in
any local civil registry and who have not been
baptized have one year from the approval of this act
within which to register their names in the civil
registry of their residence. The name shall comprise
the patronymic name and one or two surnames. (As
amended by R.A. No. 6085.)
The issue:
Did the petitioner violate the law in the light of the facts abovestated?
The resolution:
It is not uncommon in Philippine society for a woman to represent herself
as the wife and use the name of the man she is living with despite the fact
that the man is married to another woman. The practice, to be sure, is
not encouraged but neither is it unduly frowned upon. A number of
women can be Identified who are living with men prominent in political,
business and social circles. The woman publicly holds herself out as the
man's wife and uses his family name blithely ignoring the fact that he is
not her husband. And yet none of the women has been charged of
violating the C.A. No. 142 because ours is not a bigoted but a tolerant and
understanding society. It is in the light of our cultural environment that
the law must be construed.
In the case at bar, Corazon had been living with Emilio for almost 20 years.
He introduced her to the public as his wife and she assumed that role and
his name without any sinister purpose or personal material gain in mind.
She applied for benefits upon his death not for herself but for Michael
who as a boy of tender years was under her guardianship. Surely, the
lawmakers could not have meant to criminalize what Corazon had done
especially because some of them probably had their own Corazons.
WHEREFORE, the decision under review is hereby set aside; the
petitioner is acquitted of the charge. No costs.
SO ORDERED.
218
Concepcion, Jr., Escolin and Cuevas, JJ., concur.
Makasiar (Chairman) and Guerrero, JJ., are on leave.
Page
Separate Opinions
AQUINO, J., concurring:
I concur especially for the sake of the son. But the practice should not be
encouraged. If there is no impediment, common-law husbands must
marry their wives.
Separate Opinions
AQUINO, J., concurring:
I concur especially for the sake of the son. But the practice should not be
encouraged. If there is no impediment, common-law husbands must
marry their wives.
ART. 177- USURPATION
(1) G.R. No. L-9405 December 24, 1914
THE UNITED STATES, plaintiff-appellee,
vs.
ADEL HERNANDEZ, ET AL., defendants-appellants.
Lucas Paredes for appellants.
Attorney-General Avanceña for appellee.
ARELLANO, C.J.:
Adel Hernandez, in order to enjoy a girl of 15 years, named Elena M.
Santos, had a talk with the other defendant, Juan Bautista; between them
they concocted a plan and then he proposed marriage to the girl. She
agreed and was told to come to a house, No. 104 Calle Isaac Peral, in
Ermita. The girl left the school she was attending (Meisic Intermediate)
to keep the engagement, and there Juan Bautista, under the name of
Aniceto de Castro, a fictitious name, made out that he was a Protestant
minister and before two women who pretended to be witness he
simulated the performance of a marriage ceremony. Afterwards he
certified, issuing the suitable document, that Adel Hernandez and Elena
M. Santos "were legally united in holy matrimony by me" (says Bautista)
"in the presence of Maxima Rambel and Manuela Agustin." Bautista also
certified, over the name of "Aniceto de Castro, Protestant minister," that
"the contracting parties were of the age fixed by the law for contracting
it." (Exhibit A.) In the certificate the age of the girl was set down as 20
years when she was only 15.
After the ceremony had been performed, Elena M. Santos returned to
her parents' house and did not join Adel Hernandez. According to her, she
went on thus for several months. Both before and after the ceremony in
Calle Isaac Peral, Adel Hernandez visited her in her house as a teacher
and as such was received by the girl's mother. But during the lesson one
afternoon, her daughter, so that the latter felt compelled to declare that
they were married, showing Exhibit A.
Convinced that they were married, the mother received Adel Hernandez
in her house, and Adel Hernandez and Elena M. Santos lived therein as a
married couple. So they continued for two years, but Elena did not
conceive of Adel nor did they have any offspring. But on March 1, 1912,
Adel Hernandez told Elena that he was going to enter a college in Calle
Almansa to continue his studies. Elena went to visit him in said college
twice, but the second time she did not find him there. He had gone to the
provinces.1awphil.net
He returned from the provinces and Elena, accompanied by her mother,
had an interview with him and finally made an agreement of separation
before a lawyer who drew up the grounds therefor, which were signed
by both of them in a notarial instrument in the presence of two witnesses;
but when the lawyer saw Exhibit A he then learned that it was not a
genuine but a simulated marriage.
The matter having been reported to the secret service, the assistant chief
thereof, George W. Marshall, testified in this case that on July 1, 1913, he
conducted the investigation regarding the false marriage certificate and
Adel Hernandez told him that he had in fact taken Elena on January 31,
1909, to the house at No. 104 Calle Isaac Peral before Juan Bautista, and
when asked why he had not taken her to real minister of some religion to
get married, he replied that Elena's parents were forcing him by threats
to marry her, and what he did was to reach an understanding with a
friend of his, Juan Bautista, in order to make it appear that he had got
married; he did not apply to a real minister of religion, because his
parents had not given their consent to his marriage with the girl; that he
had lived with her some six months; that that house, No. 104 Calle Isaac
Peral, belonged to his women friends who figure as witnesses in Exhibit
A. With reference to Juan Bautista, Marshall stated that he was examined
by him, Marshall, on the afternoon of the same day, July 1, 1913,
regarding the document Exhibit A, and Bautista told him that he had
written it at the request of Adel Hernandez, who "asked him to make out
these document so that he might have carnal intercourse with that girl;"
that he signed "Aniceto de Castro, Protestant minister," because his
friend Adel Hernandez begged him to make out the document so that, as
has been said, "he might have complete liberty with that woman" and to
put down everything he might wish.
Adriano Herrera, who acted as interpreter in these declarations,
corroborated them and added that "Adel Hernandez declared the
document to be false, and that he had made it out as such solely in order
to deceive the injured girl," and that Juan Bautista declared that he was
the author of the document and had made it out in order to please his
intimate friend Adel Hernandez, "so that the latter might exercise
complete liberty over Elena M. Santos by demonstrating that they were
joined in marriage."
Hence the criminal complaint filed on July 3, 1913, drawn up in these
terms: That Adel Hernandez, by means of false promises of marriage and
availing himself of a simulated ceremony, seduced Elena Miclat Santos, a
virgin over 12 and under 23 years, and succeeded in having carnal
intercourse and in living in marital relations with her; that in the
commission of this crime, Juan Bautista, conspiring and confederating
with Adel Hernandez, took part as a principal through acts of cooperation
without which the crime could not have been consummated, simulating
and pretending to be a Protestant and a minister authorized to perform
marriage ceremonies, and simulating that he was performing a marriage
ceremony between said Adel Hernandez and Elena Miclat Santos in order
thus the more easily to deceive said injured girl and cause her to live in
marital relations, as she in fact did, with the defendant Adel Hernandez.
The Court of First Instance of the city of Manila sentenced Adel
Hernandez, as guilty of seduction, to four months of arresto mayor, to
pay one-half of the costs of the trial, to endow the injured girl with the
sum of P500 Philippine currency, or in case of insolvency to the
equivalent subsidiary imprisonment, and to recognize and maintain the
offspring in due time, it there were any. It sentenced Juan Bautista, as
accomplice of the foregoing convict, to a fine of 325 pesetas, or in case
of insolvency to suffer subsidiary imprisonment according to law, and to
pay the other half of the cost. Both defendants appealed.
The first thing they allege, with respect to procedure, is that the lower
court erred in denying their petition for the transfer of the hearing in the
case to another day. This ground of error cannot be sustained. The right
of the accused, after their plea, is to request a period of two days at least,
in order to prepare their defense. They pleaded "not guilty," according to
the record of the case, of July 7, 1913. On the 15th next subsequent, they
acknowledged summons to appear for trial, which was to take place on
219
the 22d.itc-alf They had sufficient time to prepare their evidence, and
they did not request any time to prepare their defense until the trial had
actually commenced.
Page
With respect to the merits of the case, it is contended that it is erroneous
to affirm that the accused Adel Hernandez committed seduction on the
person of Elena M. Santos. But there is nothing clearer that that this
defendant, by means of deception, succeeded in enjoying the girl — the
fact is evident not only from the testimony of witnesses, but also from
documents demonstrating the deception and by facts not denied or
controverted at the trial by the defendant himself, that he had enjoyed
the girl by living in marital relations with her only when her mother was
informed from the false certificate of marriage, issued by a pretended
Protestant minister, that they were married. With reference to the
responsibility of the defendants, the part of accomplice cannot be
attributed to Juan Bautista; for he was a principal; it was really he who
supplied the essential element of deception without which there would
not have existed in the present case the crime of seduction, "cooperating
in the commission of the act by another act without which it would not
have been accomplished." (Penal Code, art. 13, No. 3.)
But furthermore, as the prosecuting attorney remarks in this instance, he
cooperated in the commission of the act by an act that in itself constitutes
another crime. He is thus really on a par with one who cooperates in the
commission of a fraud by means of the falsification of a document which
in itself is another crime. The law (Penal Code, art. 382) says:
Anyone who, without legal right or legitimate cause, shall
perform acts properly pertaining to any person in authority or
a public officer, assuming an official character, shall be
punished with the penalty of prision correccional in its
minimum and medium degree.
Without legal right Juan Bautista performed an act properly pertaining to
a person in authority, assuming the official character of a minister of a
religious sect in order to legalize a marriage, and issuing a certificate,
signed moreover, with a false name under the predication, in an
additional signature, of being a Protestant minister. The crime charged in
the information is, therefore, the complex one of seduction by means of
usurpation of functions Hernandez was likewise a coprincipal by
inducement to this crime actually committed by Bautista. Marshall said
that it appeared from his investigation that Bautista made out the
marriage certificate at the instance of an intimate friend of his called Adel
Hernandez, and that the latter admitted that he had made that request
because he wanted to live with a female cousin of his — "he reached an
understanding with an intimate friend of his called Juan Bautista, in order
to make out this document, so as to make it appear that he had got
Adriano Herrera testified that Adel Hernandez stated, as the previous
witness has said, that the document was false and that he had made it
out solely as such in order to deceive the injured girl; and that Juan
Bautista stated that he made out this document only in order to please
Adel Hernandez who had told him of his desire to possess Elena M.
Santos.
Those who directly force or induce others to commit a crime
are considered as principals. (Penal Code, art. 13.)
Inducement exist if the compact, the command, or the advice
is of such a nature that without its concurrence the crime would
not have been committed. (Decision of December 2, 1902.)
Fixing of individual responsibility is only proper when between
the proposal and the acts of each defendant there is the
necessary independence for weighing them separately, not
when there exists unity of action and mutual assistance.
(Decision of October 4, 1901.)
This being so, according to article 89 of the Penal Code, only the penalty
for the more serious crime will be imposed, to be applied in its maximum
degree, which, in this case, is the penalty for the crime of usurpation of
functions — that is, the maximum degree of prision correccional in its
minimum and medium degrees — two years eleven months and eleven
days to four years and two months.
Both the trial court and the prosecuting attorney in this instance agree
that the defendant Adel Hernandez must recognize and support the
offspring if in due time any should be had. But Elena M. Santos, the
injured girl, testified in these words:
Q. How long did you and Adel live together in your
mother's house? — A. Over two years.
Q. Did Adel Hernandez live there, sleep there, and
also eat there? — A. Yes, sir.
Q. Did you live a life of complete marital relations? —
A. Yes, sir.
Q. Were you ever pregnant? — A. No. sir.
Q. When did you and Adel separate? — A. The year
1912; he asked my permission to enter a college in
order to finish his course of study. I went to the
college twice, and the second time I went I didn't find
him any more.
Q. And since then he hasn't returned to your house?
— A. No, sir. (p. 24.)
This admitted, there is no ground for decreeing the forcible recognition
of the offspring that in the year 1912 or since July 3, 1913, the date of the
complaint, the injured girl could or might have had.
On August 4 last Juan Bautista withdrew his appeal and his withdrawal
was entered on the record on the 6th next following. The appeal actually
pending is solely that of Adel Hernandez.
On the foregoing grounds, Adel Hernandez is sentenced to two years
eleven months and eleven days of prision correccional, to endow the
injured girl with P500 Philippine currency, and to pay one-half of the
costs.
Torres, Johnson, Carson, Moreland and Araullo, JJ., concur.
(3) G.R. Nos. 186739-960 April 17, 2013
LEOVEGILDO R. RUZOL, Petitioner,
vs.
THE HON. SANDIGANBAYAN and the PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION
VELASCO, JR., J.:
This is an appeal seeking to nullify the December 19, 2008 Decision1 of
the First Division of the Sandiganbayan in Criminal Case Nos. SB-08-CRIM-
0039 to 0259, which convicted Leovegildo R. Ruzol (Ruzol), then Mayor
of General Nakar, Quezon, of Usurpation of Official Functions penalized

220
married" (p. 29). "I acceded to this request," said Bautista in his turn, "and under Article 177 of the Revised Penal Code (RPC).
I made out the document; the reason was because this friend of mine,
Adel Hernandez, begged me to make out the document so that he might Q. So you haven't any offspring? — A. No, sir.
The Facts

Page
have complete liberty with that woman and he asked me to put down
everything I might wish."
Ruzol was the mayor of General Nakar, Quezon from 2001 to 2004. Earlier The details for each Information are as follows:5 0059 17 Feb. 2003 700 board ft sliced lumber Nestor Astejada 11
in his term, he organized a Multi-Sectoral Consultative Assembly (assorted sizes)
composed of civil society groups, public officials and concerned
Criminal Date of Description of Forest Person
0060 Given the Official
18 Feb. 2003 1,632 board ft hard wood, Arthur/ Lanie 11
stakeholders with the end in view of regulating and monitoring the
Case No. Commission
transportation of salvaged forest products within the vicinity of General Product Permit Receipt No. & sanipa
kisame Occeña
Nakar. Among those present in the organizational0039 meeting were20 Jan. 2004 1,000 board ft malaruhat/ David Villareal
0061 20 Jr.
Feb. 2004 1623446
126 pcs lumber Lamberto 17
Provincial Environment and Natural Resources Officer (PENRO) Rogelio marang Aumentado
Delgado Sr. and Bishop Julio Xavier Labayen, the OCD-DD of the Prelature
0040of TIPAN,
of Infanta Emeritus of the Catholic Church and Chairperson 16an
Jan. 2004 600 board ft lawaan Pepito Aumentado
0062 3 March 2003 1623463
450 board ft hard wood Nestor Astoveza 11
environmental non-government organization that operates0041 in the
15 Jan. 2004 100 pcs. malaruhat Francisco Mendoza (assorted
1708352 sizes)
municipalities of General Nakar, Infanta and Real in Quezon province. (assorted sizes) 0063 6 March 2003 160 pcs sliced lumber Remedios Orozco 11
During the said assembly, the participants agreed that to regulate the
0042 Ruzol, shall
15 Jan. 2004 300 cubic m or 3,000 board Edmundo dela Vega (assorted
1708353 sizes)
salvaged forests products, the Office of the Mayor, through
issue a permit to transport after payment of the corresponding fees to ft good lumber 0064 10 March 2003 1,500 board ft malaruhat Nestor Astejada 11
the municipal treasurer.2 0043 15 Jan. 2004 600 board ft good lumber David Villareal, Jr. (assorted
1708321 sizes)

0044 15 Jan. 2004 1,050 board ft good lumber 0065 11 March 20031708322
Romeo Sabiduria 900 board ft sliced lumber Fernando Calzado 11
Consequently, from 2001 to 2004, two hundred twenty-one (221) (assorted sizes)
permits to transport salvaged forest products were issued 0045 to various
12 Jan. 2004 1,000 board ft malaruhat Nestor Astejada 1625521
recipients, of which forty-three (43) bore the signature of Ruzol while the 0066 13 March 2003 1,408 board ft hard wood Nestor Astejada 11
remaining one hundred seventy-eight (178) were signed 0046 by his09co-Jan. 2004 4,000 board ft good lumber Naty Orozco 1623421
(assorted sizes)
accused Guillermo T. Sabiduria (Sabiduria), then municipal administrator (assorted sizes)
0067 20 March 2003 90 pcs. sliced lumber Remy Orozco 11
of General Nakar.3 0047 08 Jan. 2004 700 board ft lauan Winnie Aceboque 1623415
(assorted sizes)
0048 05 Jan. 2004 500 board ft lauan Edmundo dela
0068 21 Vega
March 20031623041
90 pcs. sliced lumber Rene Francia 11
On June 2006, on the basis of the issued Permits to Transport, 221
Informations for violation of Art. 177 of the RPC or for Usurpation
0049 07of
Jan. 2004 4 x 5 haligi Mercy Vargas (assorted
1623314 sizes)
Authority or Official Functions were filed against Ruzol and Sabiduria, 0069
0050
docketed as Criminal Case Nos. SB-08-CRIM-0039 to 0259. 06 Jan. 2004 good lumber Mario Pujeda25 March 20031623310
500 board ft lumber Thelma Ramia 11
(assorted sizes)
0051 21 Oct. 2002 1,000 board ft sliced Conchita Odi 0830825
lumber 0070 26 March 2003 1 pc. 60 x 75 bed (narra) Roy Justo 11
Except for the date of commission, the description of forest product,
finished product
person given the permit, and official receipt number, the said
0052 21 Oct. 2002 400 board ft sliced lumber Lita Crisostomo 0830826
Informations uniformly read: 0071 14 April 2004 95 pcs. kalap (9 ft.); 6 pcs. Anita Solloza 36
0053 28 Oct. 2002 450 board ft marang Agosto Astoveza 0830829
post (10 ft.) & 500 pcs.
That, on (date of commission) or sometime prior or subsequent thereto, lumber Anahaw
in General Nakar, Quezon, and within the jurisdiction of this Honorable
0054 08 Jan. 2003 300 board ft sliced lumber 0072
Edna E. Moises
08 April 2004 0943941
460 board ft lumber Remy Orozco 36
Court, the above-named accused Leovegildo R. Ruzol and Guillermo M. (assorted sizes) (assorted sizes)
Sabiduria, both public officers, being then the Municipal Mayor and
Municipal Administrator, respectively, of General Nakar, 0055 13 Jan. 2003
Quezon, taking 1,500 board ft sliced 0073
Dante Z. Medina
14 April 2004 0943964
69 pcs. sliced lumber Dindo America 36
advantage of their official position and committing the offense in relation lumber (assorted sizes) (assorted sizes)
to their office, conspiring and confederating with each other
0056did then16 and
Jan. 2003 400 board ft sliced lumber 0074
Johnny A. Astoveza
23 April 2003 0943975
870 board ft hard lumber Amado Pradillada 36
there willfully, unlawfully and criminally, issue permit to transport (assorted sizes) (assorted sizes)
(description of forest product) to (person given the permit) under O.R.
0057position27
No. (official receipt number) under the pretense of official Jan. 2003
and 7 pcs sliced lumber & 1 0075
Sonny Leynes
24 April 2003 1181827
400 board ft lumber Romy Buendicho 36
without being lawfully entitled to do so, such authority properly piece 18 roda (assorted sizes)

221
belonging to the Department of Environment and Natural Resources, to
0058 14 Feb. 2003 2,000 pcs trophy (wood 0076
Flordeliza Espiritu
24 April 2003 1182033
400 board ft rattan Emmanuel 36
the damage and prejudice of the of the government.
carvings) Buendicho

Page
CONTRARY TO LAW.4
30 April 2004 1,000 board ft good lumber 0099
Mylene Moises
11 July 2003 3651335-C
700 board ft. cut woods 0124
Dominador Aveno
22 Sept. 2003 1247452
900 board ft. good lumber Jeffrey dela Vega 13
(assorted sizes)
0100 14 July 200 800 board ft. cut wood/ 0125
Dante Medina
22 Sept. 2003 1247180
1 Jeep load hard wood Federico Marquez 13
30 April 2004 500 board ft sliced lumber Carlito Vargas 3651336
lumber
0126 25 Sept. 2003 750 board ft. Malaruhat/ Virgilio Villareal 13
(assorted sizes)
0101 16 July 2003 600 board ft. cut lumber Rachelle Solana 1247182
Marang
08 May 2003 72 x 78 bed (narra); 3 pcs. Fely Justo 3651519
0102 23 July 2003 1,200 board ft. hard lumber 0127
Necito Crisostomo
03 Oct. 2003 1247188
750 board ft. Malaruhat/ Virgilio Villareal 13
60 x 75 bed (ling manok)
Marang
& 1 pc. 48 x 75 ed (kuling 0103 23 July 2003 700 board ft. good lumber Nestor Astejada 1247129
manok) finished product 0128 02 Oct. 2003 60 pcs. good lumber Nestor Astorza 14
0104 28 July 2003 959 board ft. cut lumber Necito Crisostomo 1247428
(assorted sizes)
12 May 2003 294 board ft lumber Virgilio Cuerdo 3650927
0105 29 July 2003 600 board ft. lumber Marilou Astejada 1247191
0129 03 Oct. 2003 1,600 board ft. good Virgilio Villareal 14
13 May 2003 43 pcs. sliced lumber Amando Lareza 3651783
0106 01 Aug. 2003 1,000 board Malaruhat Ruel Ruzol lumber (assorted sizes)
1247198
(assorted sizes)
0107 05 Aug. 2003 800 board ft. lumber 0130 03 Oct. 2003 1322853
Virgilio Aumentado 400 board ft. Malaruhat Amado Pradillada 14
14 May 2003 750 board ft good lumber Wilma Cuerdo 3651529
(assorted sizes)
15 May 2003 440 board ft lumber 0108 08 Aug. 2003 3651532
Marte Cuballes 4.8 cubic ft. Amlang Rosa Turgo 1322862
woods 0131 03 Oct. 2003 1 full load (soft wood) Flordeliza Espiritu 14
15 May 2003 214 pcs. 2x6x7 or 1,500 Anneliza Vargas 3651531
0109 12 Aug. 2003 788 Board ft. cut woods 0132
Maria 03 Oct.Teresa
2003 1322865
6,342 board ft sticks Joel Pacaiqui 14
board ft finished product
Adornado
0133 03 Oct. 2003 6,090 board ft sticks Joel Pacaiqui 14
26 May 2003 57 pcs. sliced lumber Danny Sanchez 3651585
(assorted sizes) 0110 25 Aug. 2003 500 board ft. assorted Romy Buendicho 1322929
0134 07 Oct. 2003 900 board ft. good lumber Mylene Moises 14
lumber
(assorted sizes)
27 May 2003 400 board ft cut woods Emy Francia 3651394
0111 28 Aug. 2003 2 sala sets Roy Justo 1322879
0135 13 Oct. 2003 600 board ft. Lawaan Winnie Acebaque 14
30 May 2003 300 board ft lumber Daisy Cuerdo 3650943
0112 29 Aug. 2003 456 pieces good lumber Marilou Astejada (assorted sizes)
1323056
30 May 2003 1,000 board ft lumber Lea Astoveza 3651161
(assorted sizes)
0136 13 Oct. 2003 1,700 board ft. Malaruhat Nestor Bautista 14
(assorted sizes)
0113 03 Sept. 2003 5 cubic ft softwoods Rosa Turgo (assorted sizes)
1322834
05 June 2003 130 pcs. or 1,500 board ft Jose Noly Moises 3651809
(assorted sizes)
0137 13 Oct. 2003 300 board ft. Lawaan Trinidad Guerero 14
lumber cut woods
0114 05 Sept. 2003 1,000 board ft. good Agustin Vargas (assorted sizes)
1323064
06 June 2003 300 board ft lumber Mercy Escaraga 3651169
lumber (assorted sizes)
0138 16 Oct. 2003 700 board ft. Lawaan Federico Marquez 14
18 June 2003 800 board ft good lumber Dante Medena
0115 08 Sept. 2003 3651749
80 pcs. wood post Peter Banton 1323124
0139 17 Oct. 2003 4,602 board ft. good Nenita Juntreal 14
24 June 2003 28 pcs. good lumber 0116
Virgilio Cuerdo
09 Sept. 2003 1247102
1 forward load (soft wood) Efifania V. Astrega lumber (assorted sizes)
1323023
(assorted sizes)
0117 11 Sept. 2003 1 forward load (assorted 0140
Noling 20 Oct. Multi
2003 1323072
1,700 board ft. Malaruhat Belen Ordinado 14
25 June 2003 190 pcs. good lumber Dante Medina 1247205
species) Purpose Corp. (assorted sizes)
(assorted sizes)
0118 11 Sept. 2003 500 board ft. good lumber 0141 23 Oct. 2003 1323071
Agustin Vargas 66 pcs. good lumber Nestor Astejada 14
02 July 2003 800 board ft. good lumber Dante Medina 1247221 (assorted sizes)
0119 12 Sept. 2003 900 board ft. good lumber Nestor Astejada 1323073
02 July 2003 105 pcs. fresh cut lumber Emmanuel Lusang 1247167
(assorted sizes) 0142 25 Oct. 2003 1,700 board ft. good Dante Medina 13
(assorted sizes) lumber
0120 15 Sept. 2003 950 board ft. Malaruhat Edna Moises 1323128
04 July 2003 Assorted sizes of good Alberto dela Cruz 1247172 0143 27 Oct. 2003 1,800 board ft. good Dante Medina 14
0121 16 Sept. 2003 14 pcs. Panel door Roy Justo 1323041

222
Lumber lumber (assorted sizes)
07 July 2003 Bulukan woods 0122 17 Sept. 2003 1247175
Conchita Ligaya 546 board ft. soft woods Mr. Marquez28 Oct. 2003 1322951
0144 1,254 board ft. good Jonathan Supremo 13
0123 lumber (assorted sizes)
Jane Bulagay19 Sept. 2003 1247173
1,600 board ft. good Decembrano 1323085

Page
07 July 2003 6 pcs. Haligi
lumber (assorted sizes) Sabiduria
28 Oct. 2003 2,500 board ft. lumber 0165
Ramir Sanchez
21 Nov. 2003 1483001
1,000 board ft. Malaruhat 0188
Dante Medina
19 Dec. 2003 1623057
1,500 board ft. coco Felecita Marquez 13
(assorted sizes) lumber (assorted sizes) lumber
28 Oct. 2003 500 board ft. good lumber 0166
Rolando Franela
25 Oct. 2003 1323280
2,000 board ft. lumber 0189
Federico Marquez
22 Dec. 2003 1322982
600 board ft. lumber Belen C. Ordinado 16
(assorted sizes) (assorted sizes)
0190 29 Dec. 2003 600 board ft. Lawaan Winnie Aciboque 16
03 Nov. 2003 850 finished products 0167
Naty Orozco25 Nov. 2003 1483020
500 board ft. Malaruhat Federico Marquez 1483090
0191 29 Dec. 2003 300 board ft. lumber Yolanda Crisostomo 16
(cabinet component,
0168 25 Nov. 2003 70 bundles of Rattan Manuel Buendicho 1483095
balusters, door jambs) 0192 30 Dec. 2003 800 board ft. Lawaan Pepito Aumentado 16
(assorted sizes)
03 Nov. 2003 400 board ft. good lumber Elizabeth Junio 1483022 0193 20 Nov. 2003 150 board ft. good lumber Francisco Mendoza 14
0169 28 Nov. 2003 6,542 board ft. finished Nenita Juntareal 1623019
(assorted sizes) & 6 (assorted sizes)
products (cabinet and
bundles of sticks
components) 0194 30 June 2003 450 board ft. fresh cut Mylene Moises 12
10 Nov. 2003 1,770 board ft. good Dante Medina 1483032 lumber
0170 01 Dec. 2003 400 board ft. Malaruhat Federico Marquez 1623061
lumber (assorted sizes)
0195 13 July 2001 1 L-300 load of finished Evangeline Moises 98
0171 01 Dec. 2003 500 board ft. good lumber Nestor Astejada 1483123
10 Nov. 2003 1,000 board ft. lumber Nestor Astejada 1483033 and semi-finished products
0172 01 Dec. 2003 1,500 board ft. lumber Belen Ordinado 1623063
12 Nov. 2003 900 board ft. lumber Federico Marquez 1483041 0196 02 July 2001 96 pcs. good lumber Rollie L. Velasco 98
(assorted sizes)
(assorted sizes) (assorted sizes)
0173 03 Dec. 2003 500 board ft. Laniti Rosa Turgo 1483125
12 Nov. 2003 Mini dump truck good Rizalito Francia 1483042 0197 07 May 2004 1,500 board ft. babayahin Nemia Molina 20
lumber (assorted sizes) 0174 04 Dec. 2003 1,000 board ft. lumber Dante Medina 1483127
lumber
14 Nov. 2003 500 components, 100 pcs 0175
Annie Gonzales
04 Dec. 2003 1483070
26 pcs. lumber (assorted 0198
Nenita Juntareal
19 April 2004 1483128
107 pcs. sliced lumber Carlo Gudmalin 18
balusters (assorted sizes of sizes) & 2 bundles of sticks (assorted sizes)
stringers, tassels)
0176 05 Dec. 2003 800 board ft. lumber 0199
Nestor Astejada
5 March 2004 1483131
10 pcs. Deadwood Elizabeth Junio 17
14 Nov. 2003 700 board ft. good lumber Winnie Aceboque 1323287 (Bulakan)
0177 08 Dec. 2003 678 board ft. good lumber Elenor Rutaquio 1623082
17 Nov. 2003 1,600 board ft. Malaruhat Federico Marquez 1483072
(assorted sizes) 0200 2 March 2004 600 board ft. Amalang Roda Turgo 18
lumber (assorted sizes) wood
0178 08 Dec. 2003 200 board ft. lumber William Rutaquio 1623010
05 Nov. 2003 400 board ft. Tapil & 7 Belen Ordinado 1483023
(assorted sizes) 0201 1 March 2004 149 sliced lumber (assorted Necito Crisostomo 17
pcs. 1x10x14 sizes)
0179 09 Dec. 2003 1,800 board ft. lumber Nestor Astejada 1623090
05 Nov. 2003 1,000 board ft. lumber Leonardo Aveno 1623003 0202 1 March 2004 80 bundles of rattan Manuel Buendicho 17
(assorted sizes) 0180 12 Dec. 2003 One jeep load of good Angelo Avellano 1623099
lumber (assorted sizes) 0203 23 Feb. 2004 30 pcs. sliced lumber Leonardo Aveno 17
05 Nov. 2003 150 board ft. good lumber Francisco Mendoza 1483027 (assorted sizes)
0181 12 Dec. 2003 One jeep load of good Angelo Avellano 1623099
07 Nov. 2003 433 bundles of semi-finished products Naty Orozco 1483031
lumber (assorted sizes) 0204 13 Feb. 2004 50 pcs. sliced sliced lumber Federico Marquez 17
(assorted sizes)
08 Nov. 2003 800 board ft. lumber 0182
Armando Pradillada
12 Dec. 2003 1483134
800 board ft. lumber Pepito Aumentado 1483147
(assorted sizes) 0205 12 Feb. 2004 69 pcs. sliced sliced lumber Florencio Borreo 17
0183 16 Dec. 2003 600 board ft. Malaruhat Jonathan Marcial 1623033
(assorted sizes)
25 Nov. 2003 30 pcs. sliced lumber Ariel Molina 1632059
0184 16 Dec. 2003 650 board ft. lumber Pepito Aumentado 1482987
0206 17 Feb. 2004 50 pcs. sliced sliced lumber Ronnie Astejada 17
19 Nov. 2003 1,000 board ft. good Dante Medina 1623053
0185 16 Dec. 2003 1,000 board ft. Malaruhat Dante Medina (assorted sizes)
1482986
lumber (assorted sizes)

223
0207
Aladin Aveno04 Feb. 2004 1322992
600 board ft. sliced lumber Pepito Aumentado 17
20 Nov. 2003 500 board ft. good lumber 0186
Maria 18 Dec. 2003 1323288
Teresa 100 board ft. lumber
(assorted sizes)
(assorted sizes) Adornado 19 Dec. 2003
0187 780 board ft. lumber Pepito Aumentado 1323000
0208 1 March 2004 21 pcs. Lawaan (assorted Atan Marquez 17
20 Nov. 2003 1,500 board ft. good Romeo Sabiduria 1483080

Page
sizes)
lumber (assorted sizes)
4 Feb. 2004 563 board ft. sliced lumber 0229
Decembrano17 Oct. 2003 1708487
6,090 board ft. lumber 0249
Naty Orozco20 Nov. 2002 1482834
500 board ft. lumber Luz Astoveza 09
(assorted sizes) Sabiduria (assorted sizes)
0230 17 Oct. 2003 16 pcs. panel door Roy Justo 1482743
06 Feb. 2004 80 pcs. Buukan (Ugat) Maila S. Orozco 1708547
(finished product) 0250 30 Oct. 2002 1,200 board ft. sliced Arceli Fortunado 08
lumber (assorted sizes)
30 Jan. 2004 1,000 board ft. good 0231
Pepito Aumentado
01 Oct. 2003 1708534
300 board ft. good lumber Analiza Vargas 1482710
lumber (assorted sizes) (assorted sizes) 0251 04 Oct. 2002 500 board ft. Huling Roy Justo 08
Manok
29 Jan. 2004 950 board ft. good lumber 0232
Leonardo Moises
01 Oct. 2003 1708528
700 board ft. Malaruhat Engr. Mercado 1482760
(assorted sizes) (assorted sizes) 0252 27 Sept. 2002 300 board ft. sliced lumber Roy Justo 08
(assorted sizes)
28 Jan. 2004 1,000 board ft. good 0233
Pepito Aumentado
30 Sept. 2003 1708518
500 board ft. sliced lumber Mylene Moises 1482810
lumber (assorted sizes) (assorted sizes) 0253 24 Sept. 2002 1,000 board ft. sliced Inna L. Customerado 08
lumber (assorted sizes)
28 Jan. 2004 5, 000 board ft. good 0234
Carmelita Lorenzo
29 Sept. 2003 1708521
800 board ft. good lumber Wennie Acebuque 1482703
lumber (assorted sizes) (assorted sizes) 0254 23 Sept. 2002 1,000 board ft. sliced Normelita L. 08
lumber (assorted sizes) Curioso
28 Jan. 2004 350 board ft. good lumber 0235
Amando Pradillada
15 Sept. 2003 1708368
1,500 board ft. malaruhat Decembrano 1323076
(assorted sizes) lumber (assorted sizes) 0255
Sabiduria 03 Sept. 2002 2,000 pcs. trophy (wood Floredeliza D. 68
carvings) Espiritu
23 Jan. 2004 800 board ft. lumber 0236
Pepito Aumentado
10 Sept. 2003 1708517
200 board ft. good lumber Junier Franquia 1323027
(assorted sizes) (assorted sizes) 0256 7 March 2002 2,000 sets trophy (wood Floredeliza D. 09
carvings) Espiritu
21 Jan. 2004 1,050 board ft. good 0237
Romeo Sabiduria
29 Aug. 2003 1708508
600 board ft. good lumber Annaliza Vargas 1322830
lumber (assorted sizes) 0257 03 Dec. 2001 10,000 sets trophy (wood Floredeliza D. 09
0238 07 Aug. 2003 2,000 board ft. lumber Abilardo dela Cruz 1247200
carvings) Espiritu
06 April 2004 800 board ft. sliced lumber Mylene Moises 1868025
(assorted sizes)
(assorted sizes) 0258 12 Sept. 2001 1,075 board ft of sticks & Lea A. Rivera 77
0239 06 Aug. 2003 1,000 board ft. hardwood Jennifer Nudalo 1322802
1,450 board ft. Bollilo
11 March 2004 300 pieces or 1, 200 board Ernesto Aumentado 1708975
0240 25 June 2003 600 board ft. good lumber Roy Justo (assorted sizes)
1247024
ft. sliced lumber (assorted
sizes) 0241 26 May 2003 800 board ft. lumber 0259 07 Oct. 2003 3651096
Adelino Lareza Assorted lumber Roy D. Justo 14
02 Feb. 2004 7,000 board ft. good 0242
Carmelita Lorenzo
26 May 2003 1708376
Assorted sizes good lumber Rollie Velasco Considering
3651587 that the facts are undisputed, the parties during Pre-Trial
lumber agreed to dispense with the presentation of testimonial evidence and
0243 23 May 2003 342 sliced lumber (assorted Dolores S. Gloria 3651499
submit the case for decision based on the documentary evidence and
08 Jan. 2004 600 board ft. Malaruhat Nestor Astejada 1623451
sizes) joint stipulation of facts contained in the Pre-Trial Order. Thereafter, the
10 Dec. 2003 300 pieces good lumber Francisco Mendoza
0244 20 May 2003 1623096
500 board ft. lumber Marylyn de Loreto/accused 3651574and the prosecution submitted their respective memoranda.6
Melita Masilang
18 Nov. 2003 6,432 board ft. assorted Naty Orozco 1483048 Ruzol's Defense
species 0245 02 May 2003 123 pieces sliced lumber Armando Lariza 3651656
(assorted sizes)
30 Oct. 2003 8,000 board ft. Malauban Ma. Teresa 1483019 As summarized by the Sandiganbayan, Ruzol professes his innocence
Adornado 17 Feb. 2003
0246 70 pieces sliced lumber Efren Tena/ Romeobased
1182204
on following arguments:
(assorted sizes) Serafines
21 Oct. 2003 1,770 board ft. good Dante Medina 1482796
lumber (assorted sizes) 0247 07 Feb. 2003 1 piece narra bed; 1 piece Roy D. Justo (1) As Chief Executive of the municipality of General Nakar,
1182060
narra panel door; 6 pcs. Quezon, he is authorized to issue permits to transport forest
21 Oct. 2003 300 board ft. Malaruhat Leonardo S. Aveno 1323271 products pursuant to RA 7160 which give the LGU not only
Refrigerator stand & 1 pc.
(assorted sizes) express powers but also those powers that are necessarily
Narra cabinet (finished

224
21 Oct. 2003 10,875 board ft. lumber Annie Gonzales 1323273
product) implied from the powers expressly granted as well as those that
(assorted sizes) are necessary, appropriate or incidental to the LGU’s efficient
0248 05 Dec. 2002 140 pcs. round poles Lamberto R. Ruzol 0943647
and effective governance. The LGU is likewise given powers
20 Oct. 2003 300 board ft. sliced lumber Bernardo Gonzalvo 1482835

Page
that are essential to the promotion of the general welfare of
the inhabitants. The general welfare clause provided in Section
16, Chapter 2, Title One, Book I of R.A. 7160 is a massive grant
of authority that enables LGUs to perform or exercise just
about any power that will benefit their local constituencies.
(2) In addition to the foregoing, R.A. 7160 has devolved certain
functions and responsibilities of the DENR to the LGU. And the
permits to transport were issued pursuant to the devolved
function to manage and control communal forests with an area
not exceeding fifty (50) square kilometers.
(3) The Permits to Transport were issued as an incident to the
payment of Transport Fees levied by the municipality for the
use of local public roads for the transport of salvaged forest
products. Under (a) Section 5, Article X of the Constitution, (b)
Section 129, Chapter I, Title One Book II of R.A. 7160, and (c)
Section 186, Article Five, Chapter 5, Tile One, Book II of R.A.
7160, the municipality is granted the power to create its own
sources of revenue and to levy fees in accordance therewith.
(4) The only kind of document the DENR issues relating to log,
timber or lumber is denominated "Certificate of Timber Origin"
or CTO for logs and "Certificate of Lumber Origin" or CLO for
lumber; hence, even if accused issued the Transport Permits on
his side, a person wanting to transport the said forest products
would have to apply and obtain a CTO or CLO from the DENR.
The Transport Permits issued by the accused were never taken
as a substitute for the CTO or CLO, and this is the reason why
said permits contain the annotation "Subject to DENR rules,
laws and regulations."
(5) There is no proof of conspiracy between the accused. The
Transport Permits were issued by accused Sabiduria in his
capacity as Municipal Administrator and his mere issuance is
not enough to impute upon the accused Ruzol any
transgression or wrongdoing that may have been committed in
the issuance thereof following the ruling in Arias v.
Sandiganbayan (180 SCRA 309).
(6) The DENR directly sanctioned and expressly authorized the
issuance of the 221 Transport permits through the Provincial
Environment and natural Resources officer Rogelio Delgado Sr.,
in a Multi-Sectoral Consultative Assembly.
(7) The accused cannot be convicted of Usurpation of Authority
since they did not act "under the pretense of official position,"
accused Ruzol having issued the permits in his capacity as
Mayor and there was no pretense or misrepresentation on his
part that he was an officer of DENR.7
Ruling of the Sandiganbayan
After due consideration, the Sandiganbayan rendered on December 19,
2008 a Decision, acquitting Sabiduria but finding Ruzol guilty as charged,
to wit:
WHEREFORE, premises considered, the Court resolves these cases as
follows:
1. Against the accused LEOVEGILDO R. RUZOL, judgment is
hereby rendered finding him GUILTY beyond reasonable doubt
of Two Hundred Twenty One (221) counts of the offense of
Usurpation of Official Functions as defined and penalized under
Article 177 of the Revised Penal Code and hereby sentences
him to suffer for each case a straight penalty of SIX (6) MONTHS
and ONE (1) DAY.
However, in the service of his sentences, accused Ruzol shall be
entitled to the benefit of the three-fold rule as provided in
Article 70 of the Revised Penal Code, as amended.
2. On the ground of reasonable doubt, accused GUILLERMO M.
SABIDURIA is ACQUITTED of all 221 charges. The cash bond
posted by him for his provisional liberty may now be withdrawn
by said accused upon presentation of the original receipt
evidencing payment thereof subject to the usual accounting
and auditing procedures. The hold departure procedure issued
by this Court dated 16 April 2008 is set aside and the Order
issued by the Bureau of Immigration dated 29 April 2008
including the name of Sabiduria in the Hold Departure List is
ordered recalled and cancelled.
SO ORDERED.8
The Sandiganbayan predicated its ruling on the postulate that the
authority to issue transport permits with respect to salvaged forest
products lies with the Department of Environment and Natural Resources
(DENR) and that such authority had not been devolved to the local
government of General Nakar.9 To the graft court, Ruzol’s issuance of the
subject permits constitutes usurpation of the official functions of the
DENR.
The Issue
The critical issue having a determinative bearing on the guilt or innocence
of Ruzol for usurpation revolves around the validity of the subject permits
to transport, which in turn resolves itself into the question of whether
the authority to monitor and regulate the transportation of salvaged
forest product is solely with the DENR, and no one else.
The Ruling of this Court
The petition is partly meritorious.
Subsidiary Issue:
Whether the Permits to Transport Issued by Ruzol Are Valid
In ruling that the DENR, and not the local government units (LGUs), has
the authority to issue transportation permits of salvaged forest products,
the Sandiganbayan invoked Presidential Decree No. 705 (PD 705),
otherwise known as the Revised Forestry Code of the Philippines and in
relation to Executive Order No. 192, Series of 1987 (EO 192), or the
Reorganization Act of the Department of Environment and Natural
Resources.
Section 5 of PD 705 provides:
Section 5. Jurisdiction of Bureau. The Bureau of Forest Management shall
have jurisdiction and authority over all forest land, grazing lands, and all
forest reservations including watershed reservations presently
administered by other government agencies or instrumentalities.
It shall be responsible for the protection, development, management,
regeneration, and reforestation of forest lands; the regulation and
supervision of the operation of licensees, lessees and permittees for the
taking or use of forest products therefrom or the occupancy or use
thereof; the implementation of multiple use and sustained yield
management in forest lands; the protection, development and
preservation of national parks, marine parks, game refuges and wildlife;
the implementation of measures and programs to prevent kaingin and
managed occupancy of forest and grazing lands; in collaboration with
other bureaus, the effective, efficient and economic classification of lands
of the public domain; and the enforcement of forestry, reforestation,
parks, game and wildlife laws, rules, and regulations.
225
The Bureau shall regulate the establishment and operation of sawmills,
veneer and plywood mills and other wood processing plants and conduct
studies of domestic and world markets of forest products. (Emphasis
Page
Ours.)
On the other hand, the pertinent provisions of EO 192 state:
SECTION 4. Mandate. The Department shall be the primary government
agency responsible for the conservation, management, development,
and proper use of the country’s environment and natural resources,
specifically forest and grazing lands of the public domain, as well as the
licensing and regulation of all natural resources as maybe provided for by
law in order to ensure equitable sharing of the benefits derived
therefrom for the welfare of the present and future generations of
Filipinos.
xxxx
SECTION 5. Powers and Functions. To accomplish its mandate, the
Department shall have the following functions:
xxxx
(d) Exercise supervision and control over forest lands, alienable
and disposal lands, and mineral resources and in the process of
exercising such control the Department shall impose
appropriate payments, fees, charges, rentals and any such
revenues for the exploration, development, utilization or
gathering of such resources.
xxxx
(j) Regulate the development, disposition, extraction,
exploration and use of the country’s forest, land and mineral
resources;
(k) Assume responsibility for the assessment, development,
protection, conservation, licensing and regulation as provided
for by law, where applicable, of all natural resources; the
regulation and monitoring of service contractors, licensees,
lessees, and permittees for the extraction, exploration,
development and utilization of natural resources products; the
implementation of programs and measures with the end in
view of promoting close collaboration between the
government and the private sector; the effective and efficient
classification and sub-classification of lands of the public
domain; and the enforcement of natural resources laws, rules
and regulations;
(l) Promulgate rules, regulations and guidelines on the issuance
of co-production, joint venture or production sharing
agreements, licenses, permits, concessions, leases and such are necessary, appropriate, or incidental to efficient and effective
other privileges and arrangement concerning the provisions of the basic services and facilities enumerated herein.
development, exploration and utilization of the country’s
natural resources and shall continue to oversee, supervise and xxxx
police our natural resources; to cancel or cause to cancel such
privileges and arrangement upon failure, non-compliance or
(2) For a Municipality:
violations of any regulations, orders, and for all other causes
which are furtherance of the conservation of natural resources
and supportive of the national interests; xxxx
xxxx (ii) Pursuant to national policies and subject to supervision, control and
review of the DENR, implementation of community-based forestry
projects which include integrated social forestry programs and similar
(n) Implement measures for the regulation and supervision of
projects; management and control of communal forests with an area not
the processing of forest products, grading and inspection of
exceeding fifty (50) square kilometers; establishment of tree parks,
lumber and other forest products and monitoring of the
greenbelts, and similar forest development projects. (Emphasis Ours.)
movement of timber and other forest products. (Emphasis
Ours.)
According to the Sandiganbayan, Sec. 17 of the LGC has limited the
devolved functions of the DENR to the LGUs to the following: (1) the
Invoked too is DENR Administrative Order No. 2000-78 (DAO 2000-78)
implementation of community-based forestry products; (2) management
which mandates that the permittee should secure the necessary
and control of communal forests with an area not exceeding fifty (50)
transport and other related documents before the retrieved wood
square kilometers; and (3) establishment of tree parks, greenbelts and
materials are sold to the buyers/users and/or wood processing
similar forest development projects.13 It also referred to DENR
plants.10 DAO 2000-78 obliges the entity or person concerned to secure a
Administrative Order No. 30, Series of 1992 (DAO 1992-30), which
Wood Recovery Permit––a "permit issued by the DENR to gather/retrieve
enumerates the forest management functions, programs and projects of
and dispose abandoned logs, drifted logs, sunken logs, uprooted, and fire
the DENR which had been devolved to the LGUs, as follows:14
and typhoon damaged tress, tree stumps, tops and branches."11 It
prescribes that the permittee shall only be allowed to gather or recover
logs or timber which had already been marked and inventoried by the Section 3.1 Forest Management
Community Environment and Natural Resources Officer.12 To the
Sandiganbayan, this mandatory requirement for Wood Recovery Permit a. Implementation of the following community-based forestry
illustrates that DENR is the sole agency vested with the authority to projects:
regulate the transportation of salvaged forest products.1âwphi1
i. Integrated Social Forestry Projects, currently
The Sandiganbayan further reasoned that the "monitoring and regulating funded out of regular appropriations, except at least
salvaged forest products" is not one of the DENR’s functions which had one project per province that shall serve as research
been devolved upon LGUs. It cited Sec. 17 of Republic Act No. 7160 (RA and training laboratory, as identified by the DENR,
7160) or the Local Government Code (LGC) of 1991 which provides: and those areas located in protected areas and
critical watersheds;
Section 17. Basic Services and Facilities. -
ii. Establishment of new regular reforestation
projects, except those areas located in protected
(a) Local government units shall endeavor to be self-reliant and shall
areas and critical watersheds;
continue exercising the powers and discharging the duties and functions
currently vested upon them. They shall also discharge the functions and
226
responsibilities of national agencies and offices devolved to them iii. Completed family and community-based contract
pursuant to this Code. Local government units shall likewise exercise such reforestation projects, subject to policies and
other powers and discharge such other functions and responsibilities as
Page
procedures prescribed by the DENR;
 iv. Forest Land Management Agreements in
accordance with DENR Administrative Order No. 71,
Series of 1990 and other guidelines that the DENR
may adopt; and
v. Community Forestry Projects, subject to
concurrence of financing institution(s), if foreign
assisted.
b. Management and control of communal forests with an area
not exceeding fifty (50) square kilometers or five thousand
(5,000) hectares, as defined in Section 2, above. Provided, that
the concerned LGUs shall endeavor to convert said areas into
community forestry projects;
c. Management, protection, rehabilitation and maintenance of
small watershed areas which are sources of local water supply
as identified or to be identified by the DENR; and
d. Enforcement of forest laws in community-based forestry
project areas, small watershed areas and communal forests, as
defined in Section 2 above, such as but not limited to:
i. Prevention of forest fire, illegal cutting and kaingin;
ii. Apprehension of violators of forest laws, rules and
regulations;
iii. Confiscation of illegally extracted forest products
on site;
iv. Imposition of appropriate penalties for illegal
logging, smuggling of natural resources products and
of endangered species of flora and fauna, slash and
burn farming and other unlawful activities; and
v. Confiscation, forfeiture and disposition of
conveyances, equipment and other implements used
in the commission of offenses penalized under P.D.
705 as amended by E.O. 277, series of 1987 and other
forestry laws, rules and regulations.
Provided, that the implementation of the foregoing activities outside the
devolved areas above mentioned, shall remain with the DENR.
The Sandiganbayan ruled that since the authority relative to salvaged
forest products was not included in the above enumeration of devolved
functions, the correlative authority to issue transport permits remains
with the DENR15and, thus, cannot be exercised by the LGUs.
We disagree and refuse to subscribe to this postulate suggesting
exclusivity. As shall be discussed shortly, the LGU also has, under the LGC
of 1991, ample authority to promulgate rules, regulations and ordinances
to monitor and regulate salvaged forest products, provided that the
parameters set forth by law for their enactment have been faithfully
complied with.
While the DENR is, indeed, the primary government instrumentality
charged with the mandate of promulgating rules and regulations for the
protection of the environment and conservation of natural resources, it
is not the only government instrumentality clothed with such authority.
While the law has designated DENR as the primary agency tasked to
protect the environment, it was not the intention of the law to arrogate
unto the DENR the exclusive prerogative of exercising this function.
Whether in ordinary or in legal parlance, the word "primary" can never
be taken to be synonymous with "sole" or "exclusive." In fact, neither the
pertinent provisions of PD 705 nor EO 192 suggest that the DENR, or any
of its bureaus, shall exercise such authority to the exclusion of all other
government instrumentalities, i.e., LGUs.
On the contrary, the claim of DENR’s supposedly exclusive mandate is
easily negated by the principle of local autonomy enshrined in the 1987
Constitution16 in relation to the general welfare clause under Sec. 16 of
the LGC of 1991, which provides:
Section 16. General Welfare. - Every local government unit shall exercise
the powers expressly granted, those necessarily implied therefrom, as
well as powers necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to the promotion of
the general welfare. Within their respective territorial jurisdictions, local
government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and safety,
enhance the right of the people to a balanced ecology, encourage and
support the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment among their
residents, maintain peace and order, and preserve the comfort and
convenience of their inhabitants. (Emphasis Ours.)
Pursuant to the aforequoted provision, municipal governments are
clothed with authority to enact such ordinances and issue such
regulations as may be necessary to carry out and discharge the
responsibilities conferred upon them by law, and such as shall be
necessary and proper to provide for the health, safety, comfort and
convenience, maintain peace and order, improve public morals, promote
the prosperity and general welfare of the municipality and its inhabitants,
and ensure the protection of property in the municipality.17
As held in Oposa v. Factoran, Jr.,18 the right of the people "to a balanced
and healthful ecology carries with it the correlative duty to refrain from
impairing the environment." In ensuring that this duty is upheld and
maintained, a local government unit may, if it deems necessary,
promulgate ordinances aimed at enhancing the right of the people to a
balanced ecology and, accordingly, provide adequate measures in the
proper utility and conservation of natural resources within its territorial
jurisdiction. As can be deduced from Ruzol’s memoranda, as affirmed by
the parties in their Joint Stipulation of Facts, it was in the pursuit of this
objective that the subject permits to transport were issued by Ruzol––to
regulate the salvaged forest products found within the municipality of
General Nakar and, hence, prevent abuse and occurrence of any
untoward illegal logging in the area.19
In the same vein, there is a clear merit to the view that the monitoring
and regulation of salvaged forest products through the issuance of
appropriate permits is a shared responsibility which may be done either
by DENR or by the LGUs or by both. DAO 1992-30, in fact, says as much,
thus: the "LGUs shall share with the national government, particularly the
DENR, the responsibility in the sustainable management and
development of the environment and natural resources within their
territorial jurisdiction."20 The significant role of the LGUs in environment
protection is further echoed in Joint Memorandum Circular No. 98-
01(JMC 1998-01) or the Manual of Procedures for DENR-DILG-LGU
Partnership on Devolved and other Forest Management Functions, which
was promulgated jointly by the DILG and the DENR in 1998, and provides
as follows:
Section 1. Basic Policies
Subject to the general policies on devolution as contained in RA 7160 and
DENR Administrative Order No. 30, Series of 1992, the following basic
policies shall govern the implementation of DENR-DILG-LGU partnership
on devolved and other forest management functions:
1.1. The Department of Environment and Natural Resources
(DENR) shall be the primary government agency responsible for
227
the conservation, management, protection, proper use and
sustainable development of the country’s environment and
natural resources.
Page
 1.2. The LGUs shall share with DENR the responsibility in the
sustainable management and development of the forest
resources within their territorial jurisdiction. Toward this end,
the DENR and the LGUs shall endeavor to strengthen their
collaboration and partnership in forest management.
1.3. Comprehensive land use and forest land use plans are
important tools in the holistic and efficient management of
forest resources. Toward this end, the DENR and the LGUs
together with other government agencies shall undertake
forest land use planning as an integral activity of
comprehensive land use planning to determine the optimum
and balanced use of natural resources to support local, regional
and national growth and development.
1.4. To fully prepare the LGUs to undertake their shared
responsibilities in the sustainable management of forest land
resources, the DENR, in coordination with DILG, shall enhance
the capacities of the LGUs in the various aspects of forest
management. Initially, the DENR shall coordinate, guide and
train the LGUs in the management of the devolved functions.
As the LGUs’ capacity in forest management is enhanced, the
primary tasks in the management of devolved functions shall
be performed by the LGUs and the role of the DENR becomes
assistive and coordinative.
1.5. To further the ends of local autonomy, the DENR in
consultation with the LGUs shall devolved [sic] additional
functions and responsibilities to the local government units, or
enter into agreements with them for enlarged forest
management and other ENR-related functions.
1.6. To seek advocacy, popular support and ultimately help
achieve community empowerment, DENR and DILG shall forge
the partnership and cooperation of the LGUs and other
concerned sectors in seeking and strengthening the
participation of local communities for forest management
including enforcement of forestry laws, rules and regulations.
(Emphasis Ours.)
To our mind, the requirement of permits to transport salvaged forest
products is not a manifestation of usurpation of DENR’s authority but
rather an additional measure which was meant to complement DENR’s
duty to regulate and monitor forest resources within the LGU’s territorial
jurisdiction.
This is consistent with the "canon of legal hermeneutics that instead of
pitting one statute against another in an inevitably destructive
confrontation, courts must exert every effort to reconcile them,
remembering that both laws deserve respect as the handiwork of
coordinate branches of the government."21 Hence, if there appears to be
an apparent conflict between promulgated statutes, rules or regulations
issued by different government instrumentalities, the proper action is not
to immediately uphold one and annul the other, but rather give effect to
both by harmonizing them if possible.22 Accordingly, although the DENR
requires a Wood Recovery Permit, an LGU is not necessarily precluded
from promulgating, pursuant to its power under the general welfare
clause, complementary orders, rules or ordinances to monitor and
regulate the transportation of salvaged forest products.
Notwithstanding, We still find that the Permits to Transport issued by
Ruzol are invalid for his failure to comply with the procedural
requirements set forth by law for its enforcement.
Then and now, Ruzol insists that the Permit to Transport partakes the
nature of transport fees levied by the municipality for the use of public
roads.23 In this regard, he argues that he has been conferred by law the
right to issue subject permits as an incident to the LGU’s power to create
its own sources of revenue pursuant to the following provisions of the
LGC:
Section 153. Service Fees and Charges. – Local government units may
impose and collect such reasonable fees and charges for services
rendered.
xxxx
Section 186. Power to Levy Other Taxes, Fees or Charges. – Local
government units may exercise the power to levy taxes, fees or charges
on any base or subject not otherwise specifically enumerated herein or
taxed under the provisions of the National Internal Revenue Code, as
amended, or other applicable laws: Provided, That the taxes, fees, or
charges shall not be unjust, excessive, oppressive, confiscatory or
contrary to declared national policy: Provided, further, That the
ordinance levying such taxes, fees or charges shall not be enacted
without any prior public hearing conducted for the purpose. (Emphasis
Ours.)
Ruzol further argued that the permits to transport were issued under his
power and authority as Municipal Mayor under Sec. 444 of the same law:
(iv) Issue licenses and permits and suspend or revoke the same for any
violation of the conditions upon which said licenses or permits had been
issued, pursuant to law or ordinance;
xxxx
vii) Adopt adequate measures to safeguard and conserve land, mineral,
marine, forest, and other resources of the municipality; provide efficient
and effective property and supply management in the municipality; and
protect the funds, credits, rights and other properties of the municipality.
(Emphasis Ours.)
Ruzol is correct to a point. Nevertheless, We find that an enabling
ordinance is necessary to confer the subject permits with validity. As
correctly held by the Sandiganbayan, the power to levy fees or charges
under the LGC is exercised by the Sangguniang Bayan through the
enactment of an appropriate ordinance wherein the terms, conditions
and rates of the fees are prescribed.24 Needless to say, one of the
fundamental principles of local fiscal administration is that "local revenue
is generated only from sources expressly authorized by law or
ordinance."25
It is likewise expressly stated in Sec. 444(b)(3)(iv) of the LGC that the
authority of the municipal mayor to issue licenses and permits should be
"pursuant to a law or ordinance." It is the Sangguniang Bayan, as the
legislative body of the municipality, which is mandated by law to enact
ordinances against acts which endanger the environment, i.e., illegal
logging, and smuggling of logs and other natural resources.26
In this case, an examination of the pertinent provisions of General
Nakar’s Revised Municipal Revenue Code27 and Municipal Environment
Code28 reveals that there is no provision unto which the issuance of the
permits to transport may be grounded. Thus, in the absence of an
ordinance for the regulation and transportation of salvaged products, the
permits to transport issued by Ruzol are infirm.
Ruzol’s insistence that his actions are pursuant to the LGU’s devolved
function to "manage and control communal forests" under Sec. 17 of the
LGC and DAO 1992-3029 is specious. Although We recognize the LGU’s
authority in the management and control of communal forests within its
territorial jurisdiction, We reiterate that this authority should be
exercised and enforced in accordance with the procedural parameters
established by law for its effective and efficient execution. As can be
228
gleaned from the same Sec. 17 of the LGC, the LGU’s authority to manage
and control communal forests should be "pursuant to national policies
and is subject to supervision, control and review of DENR."
Page
As correctly held by the Sandiganbayan, the term "communal
forest"30 has a well-defined and technical meaning.31Consequently, as an
entity endowed with specialized competence and knowledge on forest
resources, the DENR cannot be discounted in the establishment of
communal forest. The DILG, on behalf of the LGUs, and the DENR
promulgated JMC 1998-01 which outlined the following procedure:
Section 8.4 Communal Forest
8.4.1 Existing Communal Forest
The devolution to and management of the communal forest by the city
and municipal governments shall be governed by the following general
procedures:
(a) DENR, through its CENRO, and the concerned LGU shall
undertake the actual identification and assessment of existing
communal forests. The assessment shall determine the
suitability of the existing communal forests. If these are no
longer suitable, then these communal forests may be
disestablished. The Approval for disestablishment shall be by
the RED upon recommendation of the DENR-LGU assessment
Team through the PENRO and the RTD for Forestry;
(b) Existing communal forest which are found and
recommended by the DENR-LGU Assessment Team as still
suitable to achieve their purpose shall be maintained as such.
Thereafter, the Sangguniang Panglungsod or Sangguniang
Bayan where the communal forest is located shall pass
resolution requesting the DENR Secretary for the turnover of
said communal forest to the city or municipality. Upon receipt
of said resolution, the DENR Secretary shall issue an
Administrative Order officially transferring said communal
forest to the concerned LGU. The DENR RED shall effect the
official transfer to the concerned LGU within fifteen (15) days
from the issuance of the administrative order;
(c) Within twelve months from the issuance of the
Administrative Order and turnover of said communal forest to
the city or municipality, the LGU to which the communal forest
was transferred shall formulate and submit to the Provincial
ENR Council for approval a management plan governing the
sustainable development of the communal forest.
For the purpose of formulating the communal forest management plan,
DENR shall, in coordination with the concerned LGU, undertake a forest
resource inventory and determine the sustainable level of forest resource
utilization and provide the LGU technical assistance in all facets of forest
management planning to ensure sustainable development. The
management plan should include provision for replanting by the
communities and the LGUs of the communal forests to ensure
sustainability.
8.4.2 Establishment of New Communal Forest
The establishment of new communal forests shall be governed by the
following guidelines:
(a) DENR, through its CENRO, together with the concerned
city/municipal LGU shall jointly identify potential communal
forest areas within the geographic jurisdiction of the concerned
city/municipality.
(b) Communal forests to be established shall be identified
through a forest land use planning to be undertaken jointly
between the DENR and the concerned LGU. The ensuing forest
land use plan shall indicate, among others, the site and location
of the communal forests within the production forest
categorized as such in the forest land use plan;
(c) Once the forest land use plan has been affirmed, the local
chief executive shall initiate the passage by the LGU’s
sanggunian of a resolution requesting the DENR Secretary to
issue an Administrative Order declaring the identified area as a
communal forest. The required administrative order shall be
issued within sixty (60) days after receipt of the resolution;
(d) Upon acceptance of the responsibility for the communal
forest, the city/municipal LGU shall formulate the management
plan and submit the same to its ENR Council. The management
plan shall include provision for replanting by the communities
and the LGUs of the communal forests to ensure sustainability.
The communal forests of each municipality shall in no case exceed a total
of 5,000 hectares. (Emphasis Ours.)
It is clear, therefore, that before an area may be considered a communal
forest, the following requirements must be accomplished: (1) an
identification of potential communal forest areas within the geographic
jurisdiction of the concerned city/municipality; (2) a forest land use plan
which shall indicate, among other things, the site and location of the
communal forests; (3) a request to the DENR Secretary through a
resolution passed by the Sangguniang Bayan concerned; and (4) an
administrative order issued by DENR Secretary declaring the identified
area as a communal forest.
In the present case, the records are bereft of any showing that these
requirements were complied with. Thus, in the absence of an established
communal forest within the Municipality of General Nakar, there was no
way that the subject permits to transport were issued as an incident to
the management and control of a communal forest.
This is not to say, however, that compliance with abovementioned
statutory requirements for the issuance of permits to transport foregoes
the necessity of obtaining the Wood Recovery Permit from the DENR. As
earlier discussed, the permits to transport may be issued to complement,
and not substitute, the Wood Recovery Permit, and may be used only as
an additional measure in the regulation of salvaged forest products. To
elucidate, a person seeking to transport salvaged forest products still has
to acquire a Wood Recovery Permit from the DENR as a prerequisite
before obtaining the corresponding permit to transport issued by the
LGU.
Main Issue:
Whether Ruzol Is Guilty of Usurpation of Official Functions
The foregoing notwithstanding, Ruzol cannot be held guilty of Usurpation
of Official Functions as defined and penalized under Art. 177 of the RPC,
to wit:
Art. 177. Usurpation of authority or official functions. — Any person who
shall knowingly and falsely represent himself to be an officer, agent or
representative of any department or agency of the Philippine
Government or of any foreign government, or who, under pretense of
official position, shall perform any act pertaining to any person in
authority or public officer of the Philippine Government or any foreign
government, or any agency thereof, without being lawfully entitled to do
so, shall suffer the penalty of prision correccional in its minimum and
medium periods. (Emphasis Ours.)
As the aforementioned provision is formulated, there are two ways of
committing this crime: first, by knowingly and falsely representing
himself to be an officer, agent or representative of any department or
agency of the Philippine Government or of any foreign government; or
229
second, under pretense of official position, shall perform any act
pertaining to any person in authority or public officer of the Philippine
Government or any foreign government, or any agency thereof, without
Page
being lawfully entitled to do so.32 The former constitutes the crime of
usurpation of authority, while the latter act constitutes the crime of
usurpation of official functions.33
In the present case, Ruzol stands accused of usurpation of official
functions for issuing 221 permits to transport salvaged forest products
under the alleged "pretense of official position and without being lawfully
entitled to do so, such authority properly belonging to the Department of
Environment and Natural Resources."34 The Sandiganbayan ruled that all
the elements of the crime were attendant in the present case because
the authority to issue the subject permits belongs solely to the DENR.35
We rule otherwise.
First, it is settled that an accused in a criminal case is presumed innocent
until the contrary is proved and that to overcome the presumption,
nothing but proof beyond reasonable doubt must be established by the
prosecution.36As held by this Court in People v. Sitco:37
The imperative of proof beyond reasonable doubt has a vital role in our
criminal justice system, the accused, during a criminal prosecution,
having a stake interest of immense importance, both because of the
possibility that he may lose his freedom if convicted and because of the
certainty that his conviction will leave a permanent stain on his
reputation and name. (Emphasis supplied.)
Citing Rabanal v. People,38 the Court further explained:
Law and jurisprudence demand proof beyond reasonable doubt before
any person may be deprived of his life, liberty, or even property.
Enshrined in the Bill of Rights is the right of the petitioner to be presumed
innocent until the contrary is proved, and to overcome the presumption,
nothing but proof beyond reasonable doubt must be established by the
prosecution. The constitutional presumption of innocence requires
courts to take "a more than casual consideration" of every circumstance
of doubt proving the innocence of petitioner. (Emphasis added.)
Verily, an accused is entitled to an acquittal unless his or her guilt is
shown beyond reasonable doubt and it is the primordial duty of the
prosecution to present its side with clarity and persuasion, so that
conviction becomes the only logical and inevitable conclusion, with moral
certainty.39 As explained by this Court in People v. Berroya:40
The necessity for proof beyond reasonable doubt lies in the fact that "(i)n
a criminal prosecution, the State is arrayed against the subject; it enters
the contest with a prior inculpatory finding in its hands; with unlimited
means of command; with counsel usually of authority and capacity, who
are regarded as public officers, and therefore as speaking semi-judicially,
and with an attitude of tranquil majesty often in striking contrast to that
of defendant engaged in a perturbed and distracting struggle for liberty
if not for life. These inequalities of position, the law strives to meet by the
rule that there is to be no conviction when there is a reasonable doubt of
guilt."
Indeed, proof beyond reasonable doubt does not mean such a degree of
proof, excluding possibility of error, produces absolute certainty; moral
certainly only is required, or that degree of proof which produces
conviction in an unprejudiced mind.41 However, contrary to the ruling of
the Sandiganbayan, We find that a careful scrutiny of the events
surrounding this case failed to prove that Ruzol is guilty beyond
reasonable doubt of committing the crime of usurpation of official
functions of the DENR.
We note that this case of usurpation against Ruzol rests principally on the
prosecution’s theory that the DENR is the only government
instrumentality that can issue the permits to transport salvaged forest
products. The prosecution asserted that Ruzol usurped the official
functions that properly belong to the DENR.
But erstwhile discussed at length, the DENR is not the sole government
agency vested with the authority to issue permits relevant to the
transportation of salvaged forest products, considering that, pursuant to
the general welfare clause, LGUs may also exercise such authority. Also,
as can be gleaned from the records, the permits to transport were meant
to complement and not to replace the Wood Recovery Permit issued by
the DENR. In effect, Ruzol required the issuance of the subject permits
under his authority as municipal mayor and independently of the official
functions granted to the DENR. The records are likewise bereft of any
showing that Ruzol made representations or false pretenses that said
permits could be used in lieu of, or at the least as an excuse not to obtain,
the Wood Recovery Permit from the DENR.
Second, contrary to the findings of the Sandiganbayan, Ruzol acted in
good faith.
It bears stressing at this point that in People v. Hilvano,42 this Court
enunciated that good faith is a defense in criminal prosecutions for
usurpation of official functions.43 The term "good faith" is ordinarily used
to describe that state of mind denoting "honesty of intention, and
freedom from knowledge of circumstances which ought to put the holder
upon inquiry; an honest intention to abstain from taking any
unconscientious advantage of another, even though technicalities of law,
together with absence of all information, notice, or benefit or belief of
facts which render transaction unconscientious."44 Good faith is actually
a question of intention and although something internal, it can be
ascertained by relying not on one’s self-serving protestations of good
faith but on evidence of his conduct and outward acts.45
In dismissing Ruzol’s claim of good faith, the Sandiganbayan reasoned as
follows:
If it is really true that Ruzol believed himself to be authorized under R.A.
7160 to issue the subject permits, why did he have to secure the approval
of the various NGOs, People’s Organizations and religious organizations
before issuing the said permits? He could very well have issued subject
permits even without the approval of these various organizations if he
truly believed that he was legally empowered to do so considering that
the endorsement of these organizations is not required by law. That Ruzol
had to arm himself with their endorsement could only mean that he
actually knew that he had no legal basis for issuing the said permits; thus
he had to look elsewhere for support and back-up.46 (Emphasis Ours.)
We, however, cannot subscribe to this posture as there is neither legal
basis nor established doctrine to draw a conclusion that good faith is
negated when an accused sought another person’s approval. Neither is
there any doctrine in law which provides that bad faith is present when
one seeks the opinion or affirmation of others.
Contrary to the conclusions made by the Sandiganbayan, We find that the
conduct of the public consultation was not a badge of bad faith, but a sign
supporting Ruzol’s good intentions to regulate and monitor the
movement of salvaged forest products to prevent abuse and occurrence
of untoward illegal logging. In fact, the records will bear that the
requirement of permits to transport was not Ruzol’s decision alone; it
was, as earlier narrated, a result of the collective decision of the
participants during the Multi-Sectoral Consultative Assembly. As attested
to by Bishop Julio Xavier Labayen, it was the participants who agreed that
the subject permits be issued by the Office of the Mayor of General
Nakar, through Ruzol, in the exercise of the latter’s authority as local chief
executive.47
The Sandiganbayan also posits the view that Ruzol’s good faith is negated
by the fact that if he truly believed he was authorized to issue the subject
permits, Ruzol did not have to request the presence and obtain the
permission of PENRO Rogelio Delgado Sr. during the Multi-Sectoral
Assembly.48
230
The graft court’s above posture, however, does not commend itself for
concurrence. If, indeed, Ruzol willfully and deliberately intended to usurp
the official functions of the DENR as averred by the prosecution, he would
Page
not have asked the presence of a DENR official who has the authority and
credibility to publicly object against Ruzol’s allegedly intended
usurpation. Thus, the presence of PENRO Delgado during the Multi-
Sectoral Assembly does not negate, but strengthens Ruzol’s claim of good
faith.
As a final note, We emphasize that the burden of protecting the
environment is placed not on the shoulders of DENR alone––each and
every one of us, whether in an official or private capacity, has his or her
significant role to play. Indeed, protecting the environment is not only a
responsibility but also a right for which a citizen could and should freely
exercise. Considering the rampant forest denudation, environmental
degradation and plaguing scarcity of natural resources, each of us is now
obligated to contribute and share in the responsibility of protecting and
conserving our treasured natural resources.
Ruzol chose to exercise this right and to share in this responsibility by
exercising his authority as municipal mayor––an act which was executed
with the concurrence and cooperation of non-governmental
organizations, industry stakeholders, and the concerned citizens of
General Nakar. Admittedly, We consider his acts as invalid but it does
necessarily mean that such mistakes automatically demand Us to rule a
conviction. This is in consonance with the settled principle that "all
reasonable doubt intended to demonstrate error and not crime should
be indulged in for the benefit of the accused."49
Under our criminal judicial system, "evil intent must unite with the
unlawful act for a crime to exist," as "there can be no crime when the
criminal mind is wanting."50 Actus non facit reum, nisi mens sit rea.
In the present case, the prosecution has failed to prove beyond
reasonable doubt that Ruzol possessed that "criminal mind" when he
issued the subject permits. What is clear from the records is that Ruzol,
as municipal mayor, intended to regulate and monitor salvaged forest
products within General Nakar in order to avert the occurrence of illegal
logging in the area. We find that to hold him criminally liable for these
seemingly noble intentions would be a step backward and would run
contrary to the standing advocacy of encouraging people to take a pro-
active stance in the protection of the environment and conservation of
our natural resources.
Incidentally, considering the peculiar circumstances of the present case
and considering further that this case demands only the determination of
Ruzol's guilt or innocence for usurpation of official functions under the
RPC, for which the issue on the validity of the subject Permits to Transport
is only subsidiary, We hereby resolve this case only for this purpose and
only in this instance, pro hac vice, and, in the interest of justice, rule in
favor of Ruzol' s acquittal.
IN VIEW OF THE FOREGOING, the December 19, 2008 Decision of the
Sandiganbayan First Division in Criminal Case Nos. SB-08-CRIM-0039 to
0259, finding Leovegildo R. Ruzol guilty of violating Art. 177 of the Revised
Penal Code, is hereby REVERSED and SET ASIDE.
Accused Leovegildo R. Ruzol is, thus, ACQUITTED on the basis of
reasonable doubt of the crimes as charged.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice
WE CONCUR:
(3) G.R. No. 74727 June 16, 1988
MELENCIO GIGANTONI y JAVIER, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and INTERMEDIATE APPELLATE
COURT, respondents.
YAP, C.J.:
This is an appeal by certiorari from the decision of the then Intermediate
Appellate Court in AC-G.R. No. 01119 entitled "People of the Philippines
v. Melencio Gigantoni y Javier," promulgated on November 13, 1985,
which affirmed the decision of the Regional Trial Court, Branch 159, Pasig,
Metro Manila, finding the accused guilty of usurpation of authority under
Article 177 of the Revised Penal Code with modification of the penalty by
reducing the same to one (1) month and one (1) day of arresto mayor to
one (1) year and one (1) day of prision correccional, after crediting the
accused with a mitigating circumstance analogous to voluntary
confession of guilt.
Petitioner Melencio Gigantoni y Javier, was charged before the Regional
Trial Court of Rizal, Pasig, with the crime of usurpation of authority in
violation of Article 177 of the Revised Penal Code upon an information
alleging that the crime was committed as follows:
That on or about the 14th and 15th day of May, 1981,
in the Municipality of Makati, Metro Manila,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, who is
not a bonafide agent of the CIS, Philippine
Constabulary, did then and there willfully, unlawfully,
knowingly and falsely represented himself as a
bonafide agent of the CIS, Philippine Constabulary,
said accused, knowing fully well his representation to
be false.
After arraignment during which the accused pleaded not guilty and after
trial, the lower court rendered judgment finding the accused guilty as
charged. On appeal to the appellate court, the judgment was affirmed
with modification only as to the penalty imposed.
The facts of the case, as recited in the decision of the appellate court, are
as follows:
During the period material to this case, or in 1981,
accused-appellant Melencio Gigantoni was an
employee of Black Mountain Mining Inc. and Tetra
Management Corporation, which are both private
companies doing business in the Philippines .... On
May 14, 1981, as an employee of said companies,
Gigantoni went to the office of the Philippine Air
Lines (PAL) at Vernida Building, Legaspi Street,
Makati, Metro Manila, allegedly to conduct
verification of some travels made by Black
Mountain's officials. Upon reaching the said PAL
office, he falsely represented himself to the PAL legal
officer as a PC-CIS agent investigating a kidnapping
case, and requested that he be shown the PAL
records particularly the passenger manifests for
Manila-Baguio-Manila flights covering the period
February 1 to 3 1981. He explained that he was then
at the tracking stage of aforementioned kidnapping
case. ... To further convince the PAL officials of his
supposed mission, Gigantoni exhibited his
Identification card purporting to show that he was a
PC-CIS agent. ... Thereupon, his aforesaid request was
granted, and PAL legal officer Atty. Conrado A. Boro
showed to him the requested PAL records. Gigantoni
then secured xerox copies of the requested manifest
...and the used PAL tickets of one Cesar (Philippe)
Wong, an SGV auditor, and that of a certain Daisy
Britanico, an employee of Black Mountain.
231
Thereafter, he left the PAL premises.
When Gigantoni was no longer around, PAL general
Page
counsel Ricardo Puno, Jr., inquired from Atty. Boro
about Gigantoni's purpose in securing copies of PAL
 records. They then became suspicious of the
accused" real identity prompting them to conduct
verification from the PC-CIS office. They subsequently
learned from General Uy of PC-CIS that Gigantoni was
no longer a CIS agent since June 30, 1980 as he had
been dismissed from the service for gross misconduct
... brought about by the extortion charges filed
against him and his final conviction by the
Sandiganbayan for the said offense.... Upon
discovering the foregoing, Atty. Puno immediately
alerted the NBI as Gigantoni would be coming back to
the PAL office the following day. ...
On May 15, 1981, when Gigantoni returned to the
Makati PAL office, he was brought by Atty. Puno to
their conference room while awaiting for the arrival
of the NBI agents who were earlier contacted. In the
presence of Atty. Boro and a PAL security, Gigantoni
was confronted by Atty. Puno as to his real Identity.
He later admitted that he was no longer with the CIS;
that he was working for the Black Mountain Mining
Corporation; and that he was just checking on a claim
for per diem of one of their employees who had
travelled. ...
Upon the arrival of NBI agents Teodoro Pangilinan,
Lolito Utitco and Dante Crisologo, Attys. Puno and
Boro turned over the person of Gigantoni to the NBI.
They also submitted a complaint affidavit against
Gigantoni .... On that same day, after the
investigation, arrest and booking conducted by the
NBI, Gigantoni was charged before the Office of the
Provincial Fiscal of Rizal, thru its office in Makati, with
the crime of Usurpation of Authority.
The petitioner-accused raised substantially the same errors on appeal to
respondent appellate court, to wit:
1. The appellate court erred in interpreting that presumption that official
duty has been regularly performed, its applicable in the case at bar;
2. The appellate court erred in its interpretation of the difference
between suspension and dismissal.
The gist of petitioner's contention is that he could not be guilty of the
crime charged because at the time of the alleged commission of the
offense, he was still a CIS agent who was merely suspended and was not
yet informed of his termination from the service. Furthermore, he avers
that the receipt by him of the notice of dismissal, if there was any, could
not be established on mere presumption of law that official duty has been
regularly performed.
Article 177 of the Revised Penal Code on usurpation of authority or
official functions, under which the petitioner was charged, punishes any
person: (a) who knowingly and falsely represents himself to be an officer,
agent or representative of any department or agency of the Philippine
Government or of any foreign government; or (b) who, under pretense of
official position, performs any act pertaining to any person in authority
or public officer of the Philippine Government or any foreign government
or any agency thereof, without being lawfully entitled to do so. The
former constitutes the crime of usurpation of authority under which the
petitioner stands charged, while the latter act constitutes the crime of
usurpation of official functions.
The question before us is—did petitioner knowingly and
falsely represent himself as an agent of the CIS, Philippine Constabulary?
Petitioner admits that he received a notice of his suspension from the CIS
effective June 20, 1980. This admission is supported by the record (Annex
"D") which shows the letter of Lt. Col. Sabas Edades to petitioner, dated
June 23, 1980, regarding said action. Said official letter was also sent to
the Commissioner of the Merit Systems Board, Civil Service Commission,
the Minister of National Defense and the Commanding General of the CIS.
However, as to petitioner's alleged dismissal effective June 20, 1980, he
denies having been informed thereof. The record is bereft of any
evidence or proof adduced by the prosecution showing that the dismissal
was actually conveyed to petitioner. That is why the court, in convicting
him, relied on the disputable presumption that official duty has been
regularly performed, that is, that it is presumed that he was duly notified
of his dismissal.
The failure of the prosecution to prove that petitioner was duly notified
of his dismissal from the service negatives the charge that he "knowingly
and falsely" represented himself to be a CIS agent. The constitutional
presumption of innocence can only be overturned by competent and
credible proof and never by mere disputable presumptions, as what the
lower and appellate courts did when they presumed that petitioner was
duly notified of his dismissal by applying the disputable presumption
"that official duty has been regularly performed." It was not for the
accused to prove a negative fact, namely, that he did not receive the
order of dismissal. In criminal cases, the burden of proof as to the offense
charged lies on the prosecution. Hence, it was incumbent upon the
prosecution to establish by positive evidence the allegation that the
accused falsely represented himself as a CIS agent, by presenting proof
that he knew that he was no longer a CIS agent, having been duly notified
of his dismissal. It is essential to present proof that he actually knew at
the time of the alleged commission of the offense that he was already
dismissed from the service. A mere disputable presumption that he
received notice of his dismissal would not be sufficient.
The Solicitor General has argued in his memorandum, that it makes no
difference whether the accused was suspended or dismissed from the
service, "for both imply the absence of power to represent oneself as
vested with authority to perform acts pertaining to an office to which he
knowingly was deprived of " (Emphasis supplied). The observation of the
Solicitor General is correct if the accused were charged with usurpation
of official function (second part of Article 177), but not if he is charged
merely with usurpation of authority (first part of Article 177). The
information charges the accused with the crime of usurpation of
authority for "knowingly and falsely representing himself to be an officer,
agent or representative of any department or agency of the Philippine
Government."
Petitioner is not accused of usurpation of official functions. It has not
been shown that the information given by PAL to the accused was
confidential and was given to him only because he was entitled to it as
part of the exercise of his official function. He was not charged in the
information for such an offense. In fact, it appears from the record of the
case that the information, which was not claimed to be secret and
confidential, was readily made available to the accused because PAL
officials believed at the time that he was a CIS agent. And this was the
only offense with which he was charged in the information, that
he knowingly and falsely represented himself to be a CIS agent.
Premises considered, the decision of the respondent Appellate Court
affirming the judgment of conviction of the Regional Trial Court is
reversed and set aside. Petitioner-accused, Melencio Gigantoni y Javier is
hereby aquitted of the crime charged.
SO ORDERED.
Melencio-Herrera, Paras, Padilla and Sarmiento, JJ., concur.
Art. 183 –PERJURY
(1) G.R. No. L-65006 October 31, 1990
REOLANDI DIAZ, petitioner,
232
vs.
PEOPLE OF THE PHILIPPINES and INTERMEDIATE APPELLATE
COURT, respondents.
Page
Paterno R. Canlas Law Offices for petitioner.
PARAS, J.:
In Criminal Case No. 934 of the Court of First Instance of Pampanga, Fifth
Judicial District, Branch VI, San Fernando, Pampanga, petitioner Reolandi
Diaz was charged with the crime of Falsification of Official Document
committed as follows:
That on or about the 5th day of December 1972, in
the Municipality of San Fernando, Province of
Pampanga, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused,
Reolandi M. DIAZ, then a Senior Clerk at the Jose
Abad Santos High School and, therefore, a public
employee, did then and there willfully, unlawfully
and feloniously commit falsification of official
documents, to wit: by executing and filing in the
office of the Civil Service Commission of said
municipality a Personal Data Sheet, CS Form No.
212(65), an official document, stating and malting it
appear therein that he was a fourth year Bachelor of
Arts student in 1950-54 at the Cosmopolitan and
Harvardian Colleges which document is a
requirement for his reappointment as School
Administrative Assistant I of the Jose Abad Santos
High School and wherein the academic requirement
to said Position is at least a fourth year college
undergraduate, when in truth and in fact, the said
accused well knew that the statement is false and he
did not reach the fourth year in a Bachelor of Arts
degree course, and consequently, by reason of said
untruthful narration of facts, his appointment to the
said position was approved by the Civil Service
Commission.
All contrary to law. (p. 44, Rollo)
After trial following a plea of not guilty upon arraignment, petitioner was
found guilty as charged. The dispositive portion of the trial court's
decision is as follows:
WHEREFORE and in view of all the foregoing, this
Court finds the accused Reolandi M. Diaz guilty as
charged of the crime of falsification of official
document penalized under Article 171, paragraph 4,
of the Revised Penal Code, and he is therefore
sentenced to suffer the indeterminate penalty of
imprisonment of two (2) years, four (4) months and
one (1) day of prision correccional, as minimum, to six
(6) years and (1) day of prision mayor, as maximum,
and to pay a fine of ONE THOUSAND (P1,000.00)
PESOS without subsidiary imprisonment in case of
insolvency.
Costs against the accused. (pp. 55-56, Rollo)
Petitioner appealed the aforesaid judgment of conviction to the
Intermediate Appellate Court, said appeal being docketed thereat as CA-
G.R. No. 24580- Cr.
In its Decision promulgated on April 7,1983, the respondent court
modified the trial court's decision by increasing the maximum of the
indeterminate penalty of imprisonment in the event of non-payment of
the fine due to insolvency, but affirmed the verdict of conviction in all
other respects. The pertinent and dispositive portions of respondent
court's decision read:
The penalty for the offense of falsification of an
official document committed under Article 171,
paragraph 4 of the Revised Penal Code is (prision
mayor) and a fine not to exceed P5,000.00. The
correct penalty that should be imposed on the
appellant applying the Indeterminate Sentence Law
is imprisonment of Two (2) Years, Four (4) Months
and One (1) Day of (prison correctional) as minimum
to Eight (8) Years and One (1) Day of (prision
mayor) as maximum In cam of non-payment of the
fine of P1,000.00 due to insolvency, the appellant
should be subject to subsidiary imprisonment.
WHEREFORE, with the above modification as to the
penalty and the imposition of subsidiary
imprisonment in case of insolvency, the decision
appealed from is affirmed in all other respects with
costs against accused- appellant' (P. 68, Rollo)
Petitioner's motion for reconsideration was denied, hence, the present
recourse.
It is the contention of petitioner that he is entitled to an acquittal
because—
1. The findings of the lower court adopted by the respondent
intermediate Appellate Court that he was not a fourth year A-B. College
student is contrary to the evidence presented.
2. The respondent intermediate Appellate Court gravely commuted an
error of law in convicting him as he did not have any legal obligation to
state in CS Form 212 that he was a fourth year college student.
3. The Intermediate Appellate Court committed a grave abuse of
discretion in finding that the transcript of records (Exhibit I) is spurious.
Upon the following facts, found by both the trial court and respondent
Intermediate Appellate Court, to have been sufficiently and satisfactorily
established by the evidence on record, it appears that petitioner Reolandi
Diaz was a senior clerk at the Jose Abad Santos High School in San
Fernando, Pampanga.
In 1972 he sought appointment as School Administrative Assistant I of the
same school and as one of the requirements for appointment to said
position, filled up the prescribed personal information sheet, Civil Service
Form 212, and swore to the truth and veracity of the data and
information therein furnished by him before the proper administering
officer. As one of the required informations, he indicated in Exh "A" that
his highest educational attainment was Fourth Year A.B. (Liberal Arts)
allegedly pursued or obtained at the Cosmopolitan and Harvardian
Colleges, respectively, during the years 1950 to 1954 inclusive. On the
basis thereof, he was extended an appointment as School Administrative
Assistant I (Exh. "B"). His personal information sheet (Exh. "A") together
with his appointment paper (Exh. "B"), the certification as to the
availability of funds for the position (Exh. "C") and the resolution of the
Provincial Board of Pampanga creating the position (Exh. "D") were all
forwarded to the Civil Service Commission for the approval of petitioner's
appointment.
But contrary to petitioner's claim that his highest educational attainment
was Fourth Year A.B. which he allegedly took at the Cosmopolitan and
Harvardian Colleges during the years 1950 to 1954, he was never enrolled
at the Cosmopolitan Colleges which later became the Abad Santos
Educational Institution and still later the Ortanez University-at any time
during the period covering the years from 1950 to 1954, inclusive as
certified to by the Registrar of Ortanez University, Mr. Atilano D.
Solomon. Likewise, petitioner was never a student at the Harvardian
Colleges in Tondo, during the first quarter of school year 1953-1954,
233
inclusive, as certified to by the school's President, Mrs. Virginia King vda.
de Yap.
Page
Neither did petitioner ever enroll as a collegiate student at the
Harvardian Colleges in San Fernando, Pampanga after he finished his
secondary course in the same school in June 1950, as certified to by its
Executive Director, Atty. Arnulfo Garcia.
Also, the name of petitioner was not included in all the enrollment lists
of college students submitted to the then Bureau of Private Schools of
the Department of Education by the Harvardian Colleges at San
Fernando, Pampanga and at Tondo, Manila, during the period during
which petitioner claimed to have been enrolled. The same thing is true
with the list submitted by the Cosmopolitan Colleges to the said bureau.
The petitioner did not take the witness stand. He only presented in
evidence an alleged transcript of record (Exh. 1) purporting to show that
he took up collegiate courses at the Philippine Harvardian College in
Tondo, Manila, beginning from the first quarter of the school year 1951-
1952 up to the first quarter of school year 1953-1954 which transcript of
record was allegedly signed by Mrs. Virginia King vda. de Yap, for and in
behalf of the then President of the school, Ildefonso Yap. But Mrs. Virginia
Yap, testifying for the prosecution disowned the said signature. Besides,
at the bottom portion of the transcript is a printed notation reading —
this is only valid with the college seal and signature of Pres. Ildefonso D.
Yap. Exhibit "I" lacks the imprint of the college seal and the signature of
President Ildefonso Yap himself. No other corroborating piece of
evidence was presented by petitioner.
Contrary to petitioner's posture, there was ample, solid and conclusive
evidence adduced by the prosecution to prove that he was not a fourth
year A.B. undergraduate.
It was clearly established that the statement made by the accused — that
he reached fourth year A.B. and that he studied for this course (Liberal
Arts) at the Cosmopolitan Colleges and the Harvardian Colleges from the
years 1950-1954, is devoid of truth. The records of these colleges do not
at all reveal that petitioner was even enrolled at any time from 1950 to
1954 in its College of Liberal Arts. His name does not appear and could
not be found in the enrollment lists submitted to the Bureau of Private
Schools by these colleges.
While the petitioner in his defense presented an alleged transcript (Exh.
purporting to show that he took up collegiate course at the Philippine
Harvardian College in Tondo, Manila, beginning from the first quarter of
the school year 1951-1952 up to the first quarter of the school year 1953-
1954, both the trial court and the respondent court correctly disregarded
said transcript as having emanated from a spurious source. The transcript
presented lacks the authenticating marks-the imprint of the college seal
and the signature of the President of the college.
As correctly observed by the trial court —
It is also quite significant to note in this score that the
accused in his defense failed to present any
corroborating piece of evidence which will show that
he was indeed enrolled in the Philippine Harvardian
Colleges from the first quarter of the school year
1953- 1954. If he had enrolled as a student during this
period of time and he was positive that the transcript
of records issued to him and in his possession is
genuine and valid, it could have been easy for him to
introduce corroborating evidence, i.e., the testimony
of any of his classmates or teachers in the different
subjects that he took to support his claim that he
studied and passed these collegiate courses at the
said school. But this he failed to do despite all the
opportunities open to him and in the face of damning
evidence all showing that he had not really enrolled
in this school or in the other school mentioned by him
the personal information sheet that he filed up as
requirement for his appointment. (p. 53, Rollo)
Following the doctrine laid down, however, in the case of People v. Rufo
B. Cruz, No. L-15132, May 25,1960,108 Phil. 255 and the earlier case of
United States v. Tupasi Molina, 29 Phil. 119, the crime committed under
the foregoing facts, is perjury. This offense, as defined in Article 183 of
the Revised Penal Code is the willful and corrupt assertion of a falsehood
under oath or affirmation administered by authority of law on a material
matter. The said article provides —
Art. 183. False testimony in other cases and perjury
in solemn affirmation. The penalty of arresto mayorin
its maximum period to prision correccional in its
minimum period shall be imposed upon any person
who, knowingly making untruthful statements and
not being included in the provisions of the next
preceding articles, shall testify under oath or make an
affidavit upon any material matter before a
competent person authorized to administer an oath
in cases in which the law so requires.
Any person who, in case of a solemn affirmation
made in lieu of an oath, shall commit any of the
falsehoods mentioned in this and the three preceding
articles of this section shall suffer respective
penalties provided therein.
In that case of People v. Cruz, supra, the accused Rufo B. Cruz failed up an
application form (Civil Service Form No. 2) for the patrolman
examination. He stated therein that he had never been accused, indicted
or tried for violation of any law, ordinance or regulation before any court,
when in truth and in fact, as the accused well knew, he had been
prosecuted and tried before the Justice of the Peace of Cainta, Rizal, for
different crimes. The application was signed and sworn to by him before
the municipal mayor of Cainta, Rizal.
This Court in that case held:
This article is similar to Section 3 of Act No. 1697 of
the Philippine Commission, which was formerly the
law punishing perjury. Under said section 3 of that
Act, this Court, in the case of United States v. Tupasi
Molina (29 Phil. 119), held that a person, who stated
under oath in his application to take police
examination that he had never been convicted of any
crime, when as a matter of fact he has previous
convictions, committed perjury. The facts in that case
are almost exactly analogous to those in the present,
and we find no reason, either in law or in the
arguments of the Solicitor General to modify or
reverse the conclusion of this Court therein. More so,
because all the elements of the offense of perjury
defined in Art. 183 of the Revised Penal Code concur
in the present case.
The elements of the crime of perjury are —
(a) That the accused made a statement under oath or executed an
affidavit upon a material matter.
(b) That the statement or affidavit was made before a competent officer,
authorized to receive and administer oath.
(c) That in that statement or affidavit, the accused made a and deliberate
assertion of a falsehood.
(d) That the sworn statement or affidavit containing the falsity is required
by law or made for a legal purpose.
234
All the foregoing elements are present in the case at bar.
Perjury under Art. 183 of the Revised Penal Code carries a lesser penalty.
Page
The penalty for this crime is arresto mayor in its maximum period
to prision correccional in its minimum period. Since there is no mitigating
and aggravating circumstance the penalty should be imposed in its
medium period. Applying the Indeterminate Sentence Law, the penalty
should be from four (4) months of arresto mayor as minimum to one (1)
year and one (1) day of prision correccional as maximum.
WHEREFORE, in view of the foregoing considerations, the decision
appealed from is modified as follows:
(a) The accused Reolandi Diaz is found guilty of the crime of perjury
defined and penalized under Art. 183 of the Revised Penal Code; and
(b) The accused is hereby sentenced to suffer the penalty of from four (4)
months of arrests mayor as minimum to one (1) year and one (1) day
of prision correccional as maximum.
SO ORDERED.
Melencio-Herrera (Chairperson), Padilla, Sarmiento and Regalado, JJ.,
concur.
(2) G.R. No. 162187 November 18, 2005
CRISTE B. VILLANUEVA, Petitioner,
vs.
THE HON. SECRETARY OF JUSTICE and HORST-KESSLER VON
SPRENGEISEN, Respondents.
DECISION
CALLEJO, SR., J.:
Before the Court is a petition for review on certiorari of the Decision1 of
the Court of Appeals (CA) in CA-G.R. SP No. 76999 dismissing the petition
for certiorari assailing the finding of the Secretary of Justice that no
probable cause exists against private respondent Horst-Kessler Von
Sprengeisen for perjury.
The Antecedents
On April 2, 1996, the Refractories Corporation of the Philippines (RCP)
filed a protest before the Special Committee on Anti-Dumping of the
Department of Finance against certain importations of Hamburg Trading
Corporation (HTC), a corporation duly organized and existing under the
laws of the Philippines. The matter involved 151.070 tons of magnesite-
based refractory bricks from Germany.2 The case was docketed as Anti-
Dumping Case No. I-98.
The protest was referred to the Bureau of Import Services (BIS) of the
Department of Trade and Industry, to determine if there was a prima
facie case for violation of Republic Act (R.A.) No. 7843, the Anti-Dumping
Law. Sometime in February 1997, the BIS submitted its report to the Tariff
Commission, declaring that a prima facie case existed and that continued
importation of refractory bricks from Germany would harm the local
industry. It adopted the amount of DM 1,200 per metric ton as the normal
value of the imported goods.3
The HTC received a copy of the said report on February 14, 1997.
However, before it could respond, the chairman of the Tariff Commission
prodded the parties to settle the matter amicably. A conference ensued
between RCP Senior Vice President and Assistant General Manager Criste
Villanueva and Jesus Borgonia, on the one hand, and HTC President and
General Manager Horst-Kessler Von Sprengeisen and Sales Manager
Dennis Gonzales, on the other. During the conference, the parties agreed
that the refractory bricks were imported by the HTC at a price less than
its normal value of DM 1,200, and that such importation was likely to
injure the local industry. The parties also agreed to settle the case to
avoid expenses and protracted litigation. HTC was required to reform its
price policy/structure of its importation and sale of refractory bricks from
Germany to conform to the provisions of R.A. No. 7843 and its rules and
regulations. Jesus Borgonio thereafter prepared and signed a
compromise agreement containing the terms agreed upon which
Villanueva and Borgonia signed.4 Bienvenido Flores, an Office Clerk of
RCP, delivered the agreement to HTC at the 9th Floor of Ramon
Magsaysay Center Building, 1680 Roxas Boulevard, Manila by Von
Sprengeisen’s approval.5
However, Von Sprengeisen did not sign the agreement. Borgonia revised
the agreement by inserting the phrase "based on the findings of the BIS"
in paragraph 1 thereof. Villanueva and Borgonia signed the agreement
and had the same delivered to the office of HTC on April 22, 1997 by Lino
M. Gutierrez, a technical assistant of RCP. Gonzales received the
agreement and delivered the same to Von Sprengeisen. After 20 minutes,
Gonzales returned, with the agreement already signed by Von
Sprengeisen.6 Gonzales, who had also signed, then gave it to Gutierrez.
On the same day, Notary Public Zenaida P. De Zuñiga notarized the
agreement.7 Gonzales delivered a copy of the notarized Agreement to
HTC.8
RCP submitted the compromise agreement to the Tariff Commission.
During the May 9, 1997 hearing before the Commission for the approval
of the agreement, a representative of HTC appeared. He offered no
objection to the Agreement. The Commission submitted its report to the
Special Committee which rendered a decision declaring that, based on
the findings of the BIS, the normal value of the imported refractory bricks
was DM 1,200 per metric ton. HTC received a copy of the decision on
March 4, 1998. Neither RCP nor HTC appealed the decision to the Court
of Tax Appeals.
In the meantime, HTC imported refractory bricks from Germany anew
and noted that the normal value of the said importation under the
decision of the Special Committee based on the BIS report was DM 1,200
per metric ton. On July 28, 1998, the HTC filed an Urgent Motion to Set
Aside and/or Vacate Judgment with the Special Committee on Anti-
Dumping, praying that such decision be declared null and void on the
following grounds:
1. THE FRAUD HAD BEEN COMMITTED BY THE PROTESTANT DURING THE
NEGOTIATION FOR THE PREPARATION OF THE COMPROMISE
AGREEMENT.
2. THAT INSERTIONS AND/OR SUBSTITUTION OF THE FACTS NOT AGREED
UPON WAS DELIBERATELY AND SURREPTITIOUSLY MADE BY THE
PROTESTANT IN THE COMPROMISE AGREEMENT WITHOUT THE
KNOWLEDGE AND CONSENT OF THE PROTESTEE.9
The motion was verified by Von Sprengeisen. The HTC averred therein
that Villanueva violated Article 172 of the Revised Penal Code when he
surreptitiously inserted the phrase "based on the findings of the BIS" in
the agreement without the knowledge and consent of Von Sprengeisen
and despite their agreement to put behind them the findings of the BIS.
Appended to the motion was an Affidavit of Merit executed by Von
Sprengeisen in which he alleged, inter alia, that sometime in February
1997, the BIS came out with its Report declaring that the normal value of
the magnesite-based refractory bricks was DM 1,200 per metric ton;
before
HTC could respond to the report, Villanueva invited him to a conference
for the purpose of finding the best solution to the pending case before
the Commission; he and Gonzales attended the meeting during which it
was agreed, by way of a compromise, that the parties will accept the
amount of DM 1,050 per metric ton as the normal value for all magnesite-
based refractory bricks from Germany; when he received the draft of the
compromise agreement prepared by Villanueva, he approved the same;
subsequently, Villanueva transmitted a compromise agreement already
235
signed by him to Von Sprengeisen for his review, approval and signature;
believing that the compromise agreement reproduced the contents of
the first compromise agreement, he signed the second agreement
Page
without reading it; when he received, on March 4, 1998, a copy of the
decision of the Tariff Commission based on the compromise agreement
of the parties wherein the committee adopted the findings and
recommendations of the BIS (that the normal value of the shipment was
DM 1,200 per metric ton), he was shocked because he never agreed to
the use of such findings for the reformation of its price policies; there
was, in fact, an agreement between him and Villanueva to put behind
them the findings of the BIS; he called up Villanueva at his office but failed
to contact him despite several attempts; suspecting that something amiss
happened, he had the draft of the first compromise agreement retrieved
but his secretary failed to locate the same; it was only sometime later
that his secretary found the folder-file containing the draft and was
appalled to discover that Villanueva had substantially altered the first
draft of the compromise agreement; this made him conclude and confirm
his suspicion that Villanueva, thru deceit and fraud, induced him to sign
the compromise agreement to the prejudice of the HTC.10
The RCP opposed the motion. But, in a parallel move, Villanueva, in his
capacity as Senior Vice President and Assistant General Manager of RCP,
filed a criminal complaint for perjury against Von Sprengeisen in the
Office of the City Prosecutor of Manila. Appended thereto was a
complaint-affidavit executed by Villanueva wherein he declared, inter
alia, that Von Sprengeisen made the following false statements in the
Urgent Motion, thus:
a. [Complainant] was the one who called up his office, inviting him to a
meeting for the purpose of finding the best and most equitable solution
to the case (p. 3, Urgent Motion);
b. RCP and Hamburg Trading agreed to put behind them the findings and
recommendations of the Bureau of Import Services (BIS) with respect to
the anti-dumping protest filed by RCP (p. 3, Urgent Motion);
c. The original version of the Compromise Agreement sent to him was
merely a draft (p. 3, Urgent Motion);
d. The phrase "based on the findings of the Bureau of Import Services"
was inserted in paragraph 1 of the final Compromise Agreement without
his knowledge and consent (p. 3, Urgent Motion); and
e. [Complainant] was the one who surreptitiously inserted the aforesaid
phrase (p. 3, Urgent Motion).11
Villanueva also alleged that Von Sprengeisen made the following false
statements in his Affidavit of Merit:
a. [Complainant] invited him to a conference for the purpose of finding
the best solution to the case;
b. [Complainant and he] agreed to put behind [them] the findings and
recommendation of the BIS submitted to the Secretary of Finance;
c. We agreed to the amount of DM 1,050/ton as the normal value for all
magnesite-based refractory bricks from Germany;
d. The original version of the Compromise Agreement sent to him was
merely a draft; and
e. Through deceit and fraud, [complainant] induced [respondent] to sign
the final Compromise Agreement.12
In his Counter-Affidavit, Von Sprengeisen averred that whoever called the
other for a conference was not a material matter. Since the first draft of
the Compromise Agreement transmitted to him was by fax, he asked the
complainant to send to him the hard copy of the Agreement for his
signature. He further narrated that when he received the hard copy of
the compromise agreement, he did not bother to review since he
assumed that it contained the same provisions in the faxed copy. He did
not suggest that the phrase "based on the findings of the BIS" be inserted
in the hard copy of the agreement because he and Villanueva were at
odds on the BIS finding the normal price of the goods was DM 1,200 per
metric ton. He insisted that it would have been senseless of him to agree
to such insertion; as such, he did not make any willful and deliberate
assertion of any falsehood as to any material fact.13
Investigating Prosecutor Francisco G. Supnet found no probable cause for
perjury against the private respondent and recommended the dismissal
of the complaint. Second Assistant City Prosecutor Leoncia Dimagiba
reviewed the resolution of Prosecutor Supnet and found probable cause
for perjury against the private respondent for alleging in his Affidavit of
Merit
that he was induced to sign the compromise agreement through fraud
and deceit. According to the Second Assistant City Prosecutor, the
allegation of the private respondent "thru deceit and fraud to sign the
final Compromise Agreement" was a deliberate assertion of a falsehood,
designed as it was merely to give the BIS the impression that private
respondent was misled into agreeing to the compromise agreement. She
further opined that the allegation was perjurious, considering that the
private respondent had sufficient time to pass upon the Compromise
Agreement and could have availed the services of legal minds who could
review the terms and conditions thereof before signing the
same;14 hence, she recommended the reversal of Prosecutor Supnet’s
resolution and the filing of the information. The City Prosecutor approved
the recommendation of the Second Assistant City Prosecutor.
Accordingly, an Information for perjury was filed against the private
respondent with the Metropolitan Trial Court of Manila.
The private respondent appealed the resolution to the Secretary of
Justice, who reversed the resolution of the City Prosecutor on September
20, 2002. According to the Justice Secretary, the complainant failed to
establish the materiality of the alleged false assertions and that the said
assertions were willful and deliberate. Moreover, the allegations in the
Affidavit of Merit are not altogether false since the intention of the
parties in executing the compromise agreement was precisely to put
behind the ruling of the BIS, despite which the complainant inserted the
condition that the parties would be bound by such findings and
recommendations.15 The decretal portion of the resolution reads:
WHEREFORE, the appealed resolution of the City Prosecutor of Manila is
hereby REVERSED. The City Prosecutor is directed to withdraw the
information for perjury against respondent Horst-Kessler von
Sprengeisen and to report the action taken within ten (10) days from
receipt hereof.
SO ORDERED.16
Villanueva then filed a petition for certiorari with the CA assailing the
resolution of the Justice Secretary, alleging therein that grave abuse of
discretion, amounting to excess or lack of jurisdiction, was committed in
issuing the said resolution.17 The private respondent, for his part, sought
the dismissal of the petition alleging that, as found by the Justice
Secretary, there was no probable cause against him for perjury.18
On February 13, 2004, the CA dismissed the petition and affirmed the
resolution of the Justice Secretary.19
The CA declared that, as posited by the Office of the Solicitor General in
its comment on the petition, the parties had agreed to put behind them
the findings and recommendations of the BIS with respect to the anti-
dumping protest. The appellate court stated that its finding is buttressed
by the fact that the amount of DM 1,050 was not mentioned in the first
compromise agreement and that, under such agreement, the HTC
obliged itself "to reform
its pricing policy and structure with respect to refractory products being
imported to and sold in the Philippines in accordance with the provisions
of R.A. No. 7843 and its implementing rules and requirements." The CA
emphasized that it was inclined to believe that there was no meeting of
the minds of the parties when the petitioner inserted the phrase "based
on the findings of the BIS" in the revised compromise agreement; hence,
there could not have been perjury when the private respondent executed
236
the Affidavit of Merit and the Urgent Motion to Set Aside and/or Vacate
Judgment. The CA also agreed with the findings of the Secretary of Justice
that the insertion of the condition in the compromise agreement that the
Page
parties would be bound by the BIS findings and recommendation gave
the private respondent reason to believe that he was deceived by the
petitioner into signing the Agreement; as such, the private respondent’s
allegation in his Affidavit of Merit, that he was induced to signing the
Compromise Agreement through fraud and deceit, was not altogether
false. Consequently, the CA ruled, the private respondent did not make
any willful and deliberate assertion of a falsehood.20 The appellate court
conformed to the disquisitions of the Secretary of Justice in the assailed
resolution and concluded that the private respondent did not, in the
Affidavit of Merit, make a willful and deliberate assertion of a
falsehood.21
Aggrieved, the petitioner filed a petition for review on certiorari with this
Court against private respondent Von Sprengeisen and the Secretary of
Justice, insisting that the CA committed grave abuse of discretion
amounting to excess or lack of jurisdiction in dismissing the petition and
affirming the assailed resolution.
The petitioner maintains that, during the preliminary investigation, he
adduced substantial evidence to prove probable cause for perjury against
the private respondent. He maintains that probable cause does not mean
actual and positive causes; nor does it import absolute certainty. It is
merely based on opinion and reasonable belief. It is enough that it is
believed that the act or omission complained of constitutes the offense
charged. He avers that, contrary to the claim of the private respondent in
his Affidavit of Merit, the meeting between him and Jesus Borgonio, on
the one hand, and the private respondent and HTC Sales Manager Dennis
Gonzales, on the other, was arranged by the latter and not by him. As
gleaned from the draft and final copies of the compromise agreement,
the parties made express reference to the prima facie findings of the BIS
that the actual export price of HTC was below the fair market value. By
agreeing that such findings of the BIS be included in the Compromise
Agreement, the said private respondent impliedly agreed to such findings
as basis of the price for which HTC would sell the German-made
magnesite-based refractory bricks in the Philippines. The petitioner avers
that the fact that the amount of DM 1,050 per metric ton was not
specifically mentioned in the compromise agreement was of no
importance, considering the parties’ acceptance of such findings is based
on R.A. No. 7843. He points out that the private respondent could not
have failed to notice the difference between the first draft and the final
copy of the agreement before signing it because, as alleged by Lino
Gutierrez in his reply affidavit, it took the private respondent twenty
minutes or so after receiving the agreement to review the final draft
before signing it. Moreover, the Urgent Motion to Set Aside and/or
Vacate Judgment signed by the private respondent was filed more than
15 months from the execution of the compromise agreement and after
four months from the Tariff Commission’s approval thereof.
The petitioner argues that it is incredible that during the interregnum of
19 months, the private respondent failed to discover the
revisions/insertions in the final draft of the compromise agreement.
Considering the premises, the petitioner submits, the private
respondent’s filing of the Urgent Motion for and in behalf of HTC was
merely an afterthought, to enable the latter to escape compliance with
the terms and conditions of the Agreement.
The petitioner further insists that the insertion of the contested phrase
in the final draft of the compromise agreement was necessary although
it may not be in the best interest of HTC. He posits that the falsehoods
made by the private respondent in his Urgent Motion and Affidavit of
Merit were material to the proceedings in the Anti-Dumping Office of the
Tariff Commission because these were used to set aside the compromise
agreement executed by the parties.
In his Comment on the petition, the private respondent avers that the
issues raised by the petitioner are factual, hence, improper in a petition
for
review on certiorari under Rule 45 of the Rules of Court. The
determination of the existence of a probable cause is primarily an
administrative sanction of the Secretary of Justice. He insists that the
findings of the Justice Secretary should be accorded great respect,
especially since the same were upheld by the CA. He asserts that the
petitioner failed to establish in the CA and in this Court that the Justice
Secretary committed a grave abuse of discretion amounting to excess or
lack of jurisdiction in her resolution.
The petition has no merit.
The pivotal issue in this case is factual – whether or not, based on the
records, there was probable cause for the private respondent’s
indictment for perjury.
Rule 45 of the Rules of Court provides that only questions of fact may be
raised in a petition for review on certiorari. Findings of facts of a quasi-
judicial agency, as affirmed by the CA, are generally conclusive on the
Court, unless cogent facts and circumstances of such a nature warranting
the modification or reversal of the assailed decision were ignored,
misunderstood or misinterpreted. Thus, the Court may delve into and
resolve factual issues in exceptional cases. The petitioner has failed to
establish that any such circumstance is present in the case at bar.22
The Court finds that the public respondent did not commit any grave
abuse of discretion amounting to excess or lack of jurisdiction in issuing
the assailed resolution, and that the CA did not commit any reversible
error in its assailed decision and resolution. If at all the public respondent
erred in issuing the assailed resolution, such is merely an error in the
exercise of jurisdiction, reversible by a petition for review under Rule 43
of the Rules of Court especially so where, as in this case, the issues before
the CA were factual and not legal. The absence or existence of probable
cause in a given case involves a calibration and a reexamination of the
evidence adduced by the parties before the Office of the City Prosecutor
of Manila and the probative weight thereof. The CA thus ruled correctly
when it dismissed the petition before it.
Probable cause, for purposes of filing a criminal information, has been
defined as such facts as are sufficient to engender a well-founded belief
that a crime has been committed and that the private respondent is
probably guilty thereof. It is such a state of facts in the mind of the
prosecutor as would lead a person of ordinary caution and prudence to
believe or entertain an honest or strong suspicion that a thing is so. The
term does not mean "actual or positive cause;" nor does it import
absolute certainty. It is merely based on opinion and reasonable belief.
Thus, a finding of probable cause does not require an inquiry into
whether there is sufficient evidence to procure a conviction. It is enough
that it is believed that the act or omission complained of constitutes the
offense charged. Precisely, there is a trial for the reception of evidence of
the prosecution in support of the charge."23
The determination of its existence lies within the discretion of the
prosecuting officers after conducting a preliminary investigation upon
complaint of an offended party.24 The Resolution of the Secretary of
Justice declaring the absence or existence of a probable cause affirmed
by the CA is accorded high respect. However, such finding may be
nullified where grave abuse of discretion amounting to excess or lack of
jurisdiction is established.25
Perjury is defined and penalized in Article 183 of the Revised Penal Code,
thus:
Art. 183. False testimony in other cases and perjury in solemn
affirmation. The penalty of arresto mayor in its maximum period
to prision correccional in its minimum period shall be imposed upon any
person who, knowingly making untruthful statements and not being
included in the provisions of the next preceding articles, shall testify
under oath or make an affidavit upon any material matter before a
competent person authorized to administer an oath in cases in which the
law so requires.
237
Any person who, in case of a solemn affirmation made in lieu of an oath,
shall commit any of the falsehoods mentioned in this and the three
preceding articles of this section shall suffer the respective penalties
Page
provided therein.
Perjury is an obstruction of justice; its perpetration may affect the
earnest concerns of the parties before a tribunal. The felony is
consummated when the false statement is made.26
The seminal modern treatment of the history of perjury concludes that
one consideration of policy overshadows all others – the measures taken
against the offense must not be so severe as to discourage aggrieved
parties from lodging complaints or testifying.27 As quoted by Dean
Wigmore, a leading 19th Century Commentator, noted that English law,
"throws every fence round a person accused of perjury, for the obligation
of protecting witnesses from oppression or annoyance, by charges, or
threats of charges, of having made false testimony is far paramount to
that of giving even perjury its deserts."28
Perjury is the willful and corrupt assertion of a falsehood under oath or
affirmation administered by authority of law on a material matter. 29 The
elements of the felony are:
(a) That the accused made a statement under oath or executed an
affidavit upon a material matter.
(b) That the statement or affidavit was made before a competent officer,
authorized to receive and administer oath.
(c) That in that statement or affidavit, the accused made a willful and
deliberate assertion of a falsehood.
(d) That the sworn statement or affidavit containing the falsity is required
by law or made for a legal purpose.30
A mere assertion of a false objective fact, a falsehood, is not enough. The
assertion must be deliberate and willful.31Perjury being a felony by dolo,
there must be malice on the part of the accused.32 Willfully means
intentionally; with evil intent and legal malice, with the consciousness
that the alleged perjurious statement is false with the intent that it should
be received as a statement of what was true in fact. It is equivalent to
"knowingly." "Deliberately" implies meditated as distinguished from
inadvertent acts.33 It must appear that the accused knows his statement
to be false or as consciously ignorant of its truth.34
Perjury cannot be willful where the oath is according to belief or
conviction as to its truth. A false statement of a belief is not perjury. Bona
fide belief in the truth of a statement is an adequate defense.35 A false
statement which is obviously the result of an honest mistake is not
perjury.
There are two essential elements of proof for perjury: (1) the statement
made by the defendants must be proven false; and (2) it must be proven
that the defendant did not believe those statements to be true.36
Knowledge by the accused of the falsity of his statement is an internal
act. It may be proved by his admissions or by circumstantial evidence. The
state of mind of the accused may be determined by the things he says
and does, from proof of a motive to lie and of the objective falsity itself,
and from other facts tending to show that the accused really knew the
things he claimed not to know.37
A conviction for perjury cannot be sustained merely upon the
contradictory sworn statements of the accused. The prosecution must
prove which of the two statements is false and must show the statement
to be false by other evidence than the contradicting statement.38 The
rationale of this principle is thus:
… Proof that accused has given contradictory testimony under oath at a
different time will not be sufficient to establish the falsity of testimony
charged as perjury, for this would leave simply one oath of the defendant
as against another, and it would not appear that the testimony charged
was false rather than the testimony contradictory thereof. The two
statements will simply neutralize each other; there must be some
corroboration of the contradictory testimony. Such corroboration,
however, may be furnished by evidence aliunde tending to show perjury
independently of the declarations of testimony of the accused.39
The term "material matter" is the main fact subject of the inquiry, or any
circumstance which tends to prove that fact, or any fact or circumstance
which tends to corroborate or strengthen the testimony related to the
subject of the inquiry, or which legitimately affects the credence of any
witness who testified. In this case, a matter is material if it has a material
effect or tendency to influence the Commission in resolving the motion
of HTC one way or the other. The effects of the statement are weighed in
terms of potentiality rather than probability.40 The prosecution need not
prove that the false testimony actually influenced the Commission.41
The private respondent did err when he declared, in the motion of the
HTC and his affidavit, that it was the petitioner who invited him to a
conference. The truth of the matter is that it was Gonzales who did so.
Nonetheless, the issue of who called for a conference is of de
minimis importance because, after all, the parties agreed to meet after
having been prodded by the Chairman of the Commission to settle the
case instead of going through the tribulations and expenses of a
protracted litigation. No adverse inference (related to the merits of their
respective contention in this case) can be ascribed as to whoever called
the conference. After all, parties are even urged to settle cases amicably.
Besides, as correctly declared by the Second Assistant City Prosecutor in
her resolution:
The allegation that it was complainant who invited respondent to the
meeting may not be a deliberate lie. Respondent may not have known
who arranged the meeting, but as he was able to talk to complainant, he
presumed that it was complainant who extended the invitation.
Moreover, the identity of the one who initiated the meeting is not
material considering that there was a meeting of the minds of the
Parties.42
The Court also agrees with the contention of the private respondent that
the copy of the first agreement transmitted to him was a fax copy of the
draft, and that, contrary to the allegations of the private respondent,
such agreement was prepared by Borgonia and not by the petitioner. As
gleaned from page two of the agreement, the particulars of the residence
certificates of the petitioner and the private respondent were not
typewritten, hence, cannot as yet be notarized. As claimed by the private
respondent, a copy was transmitted to him for his personal review, and
if he found it to be in order, the petitioner and Borgonia would prepare
and sign the agreement and give it back to him for review and signature,
with the particulars of his community tax certificate indicated in the final
copy.
Undeniably, the identity of the person who prepared or caused to
prepare the compromise agreement subsequently signed by the
petitioner and the private respondent was of prime importance because
only such person should be charged for perjury. The private respondent
erroneously stated in his Affidavit of Merit and Urgent Motion that it was
the petitioner who prepared the agreement that was signed by the
parties. It turned out that it was Borgonia who prepared the first and the
second copies. However, the private respondent cannot be held liable for
perjury since it was Borgonia who prepared the agreement and not the
petitioner. The Court agrees with the following contention of the private
respondent in his counter-affidavit:
4.6 While complainant claims that it was not he but Mr. Borgonia who
made the insertions, there is no doubt that, indeed, the insertions were
made into the document. Since complainant is the signatory to the
Compromise Agreement, it is but natural for one to presume that he had
made the insertions. At the same time, I can not be expected to know
that it was Mr. Borgonia, as claimed by complainant, who made such
insertions.43
238
Indeed, Borgonia was merely the Manager of the Management
Information Group of RCP, whereas the petitioner was no less than its
Page
Senior Vice President and Assistant General Manager, Borgonia’s
superior. Unless and until approved by the petitioner, any agreement
prepared by Borgonia was merely a piece of paper, barren of any legal
effect. In this case, the compromise agreement prepared by Borgonia had
the petitioner’s
imprimatur. Borgonia was merely a witness to the agreement. For all legal
intents and purposes, the petitioner had the compromise agreement
prepared under his supervision and control. It cannot thus be concluded
that the private respondent made a deliberate falsehood when he alleged
that the agreement was prepared by the petitioner.
The Court is not persuaded by the petitioner’s claim that, during the
conference, he and the private respondent agreed that, based on the BIS
report, the normal value of the imported refractory bricks per metric ton
was DM 1,200, and that such report would be used as basis for the
revision of the price policy and structure of HTC.
It bears stressing that, during the conference, the petitioner and the
private respondent had agreed on three aspects of the case: (1) based on
the prima facie findings of the BIS, the normal value of the goods per
meter ton was DM 1,200 and that the actual export price of HTC was
below the fair market value; (2) to terminate the case, HTC will have to
adjust and revise its price policy and structure for imported refractory
bricks to conform to R.A. No. 7843 and rules and regulations
implementing the law; and (3) if HTC fails or refuses to comply with its
undertaking, RCP will be entitled to a writ of execution without need of
demand. However, the petitioner and the private respondent could not
have agreed on such base price; the petitioner insisted on the amount
recommended by the BIS (DM 1,200) while the private respondent
insisted on DM 950. There was an impasse. By way of a compromise, the
parties agreed to do away with the BIS recommended base
value and agreed for HTC to base the normal value of the importation per
metric ton under R.A. No. 7843 and the rules issued implementing the
law. This is gleaned from the affidavit of Borgonia:
13. During the meeting, Mr. von Sprengeisen suggested that the value of
DM 1,050/ton be applied as the price at which Hamburg Trading would
sell German-made magnesite-based refractory bricks in the Philippines.
Mr. Villanueva did not agree to the suggested value, as we considered it
low. In the end, both parties decided to base the determination of the
price on the provisions of Republic Act No. 7843 and its implementing
rules and regulations. …44
Borgonia prepared the first compromise agreement and incorporated
therein the agreement of the petitioner and the private respondent
arrived at during the conference, thus:
1. For the purpose of buying peace and by way of concession in order to
end litigation, the SECOND PARTY undertakes and commits to reform its
pricing policy and structure with respect to refractory products being
imported interest sold in the Philippines in accordance with the
provisions of Republic Act 7843 and its implementing rules and
regulations.45
If, as claimed by the petitioner in his Affidavit-Complaint, he and the
private respondent had agreed that HTC will use as basis for its price
policy and structural revision, the BIS report, for sure, Borgonia would
have incorporated the said agreement in the first compromise
agreement. He did not, and Borgonia has not offered any explanation for
such failure. The petitioner signed the draft of the agreement without any
plaint or revision. It was only in the second compromise agreement that
was later signed by the petitioner and the private respondent that
Borgonia incorporated the phrase
"based on the findings of the BIS." Borgonia and the petitioner made the
insertion on their own, without the a prioriconsent of the private
respondent.
The Court is not convinced by the petitioner’s contention (and that of
Borgonia in his Affidavit) that the petitioner and the private respondent
had agreed to leave the final determination of the base value or price of
importation per metric ton to a third party (BIS). The private respondent
could not have agreed to the use of the BIS report because, as mentioned,
he had strenuously objected to its use as basis for the revision of its price
policy and structure. For HTC to admit that the BIS finding of DM 1,200
per metric ton was the normal value of the refractory bricks from
Germany for the purpose of resolving the anti-dumping case is one thing;
but for HTC to agree to be bound by the BIS recommendation for the
purpose of revising its price policy and structure is completely a different
matter.
With the petitioner and the private respondent’s admission of the prima
facie findings of the BIS, the Commission can prepare its
recommendation to the Special Committee on the protest of the RCP to
the HTC importation subject of the case. Thereafter:
D. The Special Committee shall, within fifteen (15) days after receipt of
the report of the Commission, decide whether the article in question is
being imported in violation of this section and shall give due notice of
such decision. In case the decision of dumping is in the affirmative, the
special committee shall direct the Commissioner of Customs to cause the
dumping duty, to be levied, collected and paid, as prescribed in this
section, in addition to any other duties, taxes and charges imposed by law
on such article, and on the articles of the same specific kind or class
subsequently imported under similar circumstances coming from the
specific country.
In the event that the Special Committee fails to decide within the period
prescribed herein, the recommendation of the Commission shall be
deemed approved and shall be final and executory.46
On the matter of the revision or adjustment of the price policy and
structure of HTC, the parties had agreed to accomplish the same in due
time. It goes without saying that the RCP retained the right to object to
or protest to the price policy and structure revision of HTC.
The agreement of the petitioner and the private respondent not to be
bound by the base value in the BIS report for the revision of its price
policy and structure is not unexpected because: (1) the findings of the BIS
are only prima facie, meaning to say, not conclusive, and HTC was
accorded a chance to base its price policy and structure on evidence and
informations other than those contained in the BIS report; (2) the normal
value of the imported refractory bricks may fluctuate from time to time,
hence, the need for any importer to revise its price policy and structure
from time to time; and (3) the base value to be used by HTC in revising its
price policy would be scrutinized and resolved initially by the
Commission, by the Special Committee and by the Court of Tax Appeals
on appeal.
The process agreed upon by the petitioner and the private respondent
was not only practical and fair, but in accord with law as well.
In fine, the private respondent did not commit any falsehood in the
Urgent Motion and his Affidavit of Merit when he declared that he and
the
petitioner put behind them the BIS report, and agreed to use R.A. No.
7843 and the rules and regulations implementing the same to determine
the base price for the revision of the price policy and structure of HTC.
Admittedly, the respondent did not object to the offending phrase before
and after signing the agreement and for a considerable stretch period
until HTC filed its motion. However, we do not agree with the contention
of the petitioner that such failure of the respondent to object to the
offending phrase for such period of time amounted to an admission that,
indeed, the private respondent was aware of the offending phrase in the
Agreement, and to his agreement thereto; and estopped the private
respondent from alleging that he was deceived by the petitioner into
signing the Compromise Agreement. In his appeal to the DOJ, the private
respondent declared that:
239
3.9 True, respondent-appellant may have been remiss and lacking in
circumspect in failing to review the hard copy Compromise Agreement
and notice the insertion. Being in the trading business, respondent-
Page
appellant personally handles hundreds of documents daily and is on the
telephone for most of the day communicating with suppliers and
customers. And he had no reason to believe that either complainant-
appellee or Mr. Borgonia would make such an insertion, especially after
respondent-appellant had accepted the fax Compromise Agreement
wording and conveyed such acceptance to complainant-appellee’s office.
Respondent-appellant also had to reason to even think that such a
surreptitious insertion would be made; after all, he had a very warm and
friendly meeting with complainant-appellee and Mr. Borgonia and came
out of it with a feeling that he could trust complainant-appellee (p. 4,
Annex "C").
3.10 Hence, when respondent-appellant alleges that he was induced to
sign the hard copy Compromise Agreement through fraud and deceit,
respondent-appellant honestly believes that he was misled into signing
it. He was misled by the fact that he had been sent the fax Compromise
Agreement by complainant-appellee, that he had conveyed its
acceptability to complainant-appellee and now requested for the hard
copy for execution, that he had been led to trust that the findings and
recommendation of the BIS were being put behind them and that
complainant-appellee had agreed to such a compromise. The transmittal
of the hard copy Compromise Agreement, without any notice or mention
by complainant-appellee or complainant-appellee’s office that it
contained
insertions or wording different from the fax Compromise Agreement, and
on respondent-appellant’s understanding that the wording of the hard
copy Compromise Agreement would be exactly the same as the fax
Compromise Agreement, constitutes the fraud or deceit allegedly by
respondent-appellant.47
In his rejoinder-affidavit, the private respondent explained that:
2. Again, contrary to the allegations in the Reply-Affidavits, I was unable
to review the Compromise Agreement delivered by Mr. Gutierrez on 22
April 1997 as I was busy with numerous calls and business at the time it
was delivered. Also, I had been led to believe in our meetings with Mr.
Villanueva and Mr. Borgonia that I could trust them. So, after having seen
the fax Compromise Agreement and being amenable to it, I trusted that
they would send a genuine hard copy. As it turned out, I was mistaken.48
Moreover, even before filing the Urgent Motion and signing the Affidavit
of Merit, the private respondent tried for several times to contact the
petitioner, but the latter failed to return his calls. This reinforced the
suspicion of the private respondent that the insertion of the offending
phrase was not, after all, inadvertent but deliberate, calculated to
deceive him to the prejudice of HTC. The private respondent may be
blamed for putting too much trust and confidence on the petitioner, but
he certainly cannot be indicted for perjury for lack of probable cause.
The petitioner failed to append to his petition records of the Commission
that the private respondent appeared for HTC, on May 9, 1997, before
the Commission for the hearing on the Compromise Agreement; and
showing that the private respondent did not object thereto.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of
merit. The assailed Decision of the Court of Appeals in CA-G.R. SP No.
76999 is AFFIRMED. Costs against the petitioner.
SO ORDERED.
ROMEO J. CALLEJO, SR.
Associate Justice
WE CONCUR
Footnotes
2 Section 3 of Republic Act No. 7843 reads:
SEC. 3. Section 301, Part 2, Title II, Book I of the Tariff and
Customs Code of the Philippines, as amended, is hereby further
amended to read as follows:
"SEC. 301. Dumping Duty. –
"A. Whenever the Secretary of Finance or the Secretary of
Trade and Industry (hereinafter called the ‘Secretary’) receives
an anti-dumping petition from the domestic industry or the
Secretary has reason to believe, from any invoice or other
document or newspaper, magazine or information or
translation thereof by any reputable language translator made
available by any government agency or interested party, that a
specific kind or class of foreign article, is being imported into,
or sold or is likely to be sold in the Philippines at a price less
than its normal value, the importation or sale of which might
injure, or retard the establishment of, or is likely to injure an
industry producing like articles in the Philippines, the Secretary
shall, within twenty (20) days from receipt of such petition or
information, determine a prima facie case of dumping. Within
five (5) days from such receipt, he shall notify the protestee-
importer and require him to submit within ten (10) days from
such notice evidence from the producer of the imported article
duly authenticated by the Philippine consular or trade office to
support the normal value of such product. If no such evidence
is submitted within the prescribed period, the Secretary shall
base his decision on the available pertinent data.
"Pending determination of a prima facie case of dumping, the
petitioner may petition that the release from the Bureau of
Customs of the alleged dumped product be withheld. If the
Secretary determines that on the face of the petition and
documents presented, there exists an imminent danger of
injury to a particular industry as a result of the alleged dumping,
he shall direct the Commissioner of Customs to hold the release
of the questioned importation, upon filing by the petitioner of
a bond equal to the alleged margin of dumping. The bond shall
answer for damages which the importer may suffer as a result
of the holding of the release of the questioned importation, in
case the Secretary finds that there is no prima facie case.
However, the petitioner’s liability for damages shall not exceed
the amount of his bond. This bond shall be cancelled once
a prima faciecase has been determined by the Secretary. The
Secretary may, motu proprio, hold the release of the
questioned articles based on his information that an imminent
danger of injury exists to a particular industry as a result of the
alleged dumping.
"The Secretary upon the determination of a prima facie case of
dumping shall so advise the Tariff Commission (hereinafter
called the ‘Commission’) and shall instruct the Commissioner of
Customs to hold the release of the goods or articles in question,
unless the protestee/importer shall have filed a cash bond not
less than the provisionally estimated dumping duty plus the
applicable regular duty based on the documentary evidence
submitted with the dumping protest, to answer for the
payment of such duties, fees and charges if a dumping case is
established. If the protest is dismissed, the cash deposit shall
be returned to the importer within ten (10) days from the
finality of the order."
The law has been amended by Republic Act No. 8752,
otherwise known as the Anti-Dumping Act of 1999.
22 (1) … the conclusion is a finding grounded entirely on
speculation, surmise and conjecture; (2) the inference made is
manifestly mistaken; (3) there is grave abuse of discretion; (4)
the judgment is based on a misapprehension of facts; (5) the
240
findings of fact are conflicting; (6) the Court of Appeals went
beyond the issues of the case and its findings are contrary to
the admissions of both appellant and appellees; (7) the findings
Page
of fact of the Court of Appeals are contrary to those of the trial
court; (8) said findings of fact are conclusions without citation
 of specific evidence on which they are based; (9) the facts set
forth in the petition as well as in the petitioner’s main and reply
briefs are not disputed by the respondents; and (10) the
findings of fact of the Court of Appeals are premised on the
supposed absence of evidence and contradicted by the
evidence on record. (Sarmiento v. Court of Appeals, G.R. No.
110871, 2 July 1998, 291 SCRA 656)
(3) G.R. No. 142011 March 14, 2003
ALFONSO C. CHOA, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and LENI CHOA, respondents.
SANDOVAL-GUTIERREZ, J.:
Alfonso Chan Choa, petitioner, is a Chinese national. On April 25, 1989,
he filed with the Regional Trial Court (RTC), Branch 41, Bacolod City, a
verified petition for naturalization,1 docketed as Special Proceeding No.
5395.
During the initial hearing of the case on August 27, 1990, petitioner
testified on direct examination but he was not able to finish the same. On
August 29, 1990, he filed a motion to withdraw his petition for
naturalization.2 The trial court granted the motion in its Resolution dated
September 28, 1990,3 which partly reads:
"The petitioner, Alfonso Chan Choa, has not yet finished
testifying on direct-examination. Although the petitioner has
not stated in his said ‘Motion To Withdraw Petition’ the reason
why he is withdrawing his petition at this stage of the
proceedings, the petitioner can not be compelled to continue
with his petition for naturalization.
"In view thereof, the petitioner, Alfonso Chan Choa, is allowed
to withdraw his petition for naturalization.
"SO ORDERED."
Meanwhile, on August 5, 1992, State Prosecutor Pedro D. Delfin on detail
at Bacolod City, acting upon the complaint of petitioner’s wife, Leni, filed
an Information4 with the Municipal Trial Court in Cities (MTCC), Branch 3,
Bacolod City, charging petitioner with perjury under Article 183 of the
Revised Penal Code, docketed as Criminal Case No. 50322. The
Information reads:
"That on or about 30th day of March, 1989, in the City of
Bacolod, Philippines, and within the jurisdiction of this
Honorable Court, the herein accused did then and there,
willfully, unlawfully, feloniously and knowingly made untruthful
statements or falsehoods upon material matters required by
the Revised Naturalization Law (C.A. No. 473) in his verified
‘Petition for Naturalization’ dated April 13, 1989
(sic),5 subscribed and sworn to before Notary Public Felomino
B. Tan, Jr., who is authorized to administer oath, which petition
bears Doc. No. 140, Page No. 29, Book No. XXIII, series of 1989,
in the Notarial Register of said Notary Public, by stating therein
the following, to wit:
‘5.) I am married to a Filipino. My wife’s name is Leni
Ong Choa and now resides at 46 Malaspina Street,
Bacolod City. I have two (2) children whose names,
dates and places of birth, and residence are as
follows:
Name Date of Birth
ALBRYAN ONG CHOA July 19, 1981
CHERYL May 5, 1983
LYNNE ONG
CHOA
xxx xxx xxx
‘10) I am of good moral character, I believe in the
principles underlying the Philippine Constitution. I
have conducted myself in a proper and
irreproachable manner during the entire period of
my residence in the Philippines in my relations with
the constituted government as well as with the
community in which I am living.’
xxx xxx xxx
when in truth and in fact, said accused knew that his wife Leni
Ong Choa and their two (2) children were not then residing at
said address at # 46 Malaspina Street, Villamonte, Bacolod City,
having left the aforesaid residence in 1984, or about five (5)
years earlier and were then residing at Hervias Subdivision,
Bacolod City; that contrary to his aforesaid allegation in his
verified Petition for Naturalization, accused, while residing at
211 106 Street, Greenplains Subdivision, Bacolod City, has been
carrying on an immoral and illicit relationship with one Stella
Flores Saludar, a woman not his wife since 1984, and begetting
two (2) children with her as a consequence, as he and his wife,
the private offended party herein, have long been separated
from bed and board since 1984; which falsehoods and/or
immoral and improper conduct are grounds for disqualification
to become a citizen of the Philippines.
"Act contrary to law."
Upon arraignment, petitioner entered a plea of not guilty. Trial ensued
thereafter.
After trial, the MTCC rendered a Decision6 dated February 21, 1995
finding petitioner guilty of perjury, as charged, thus:
"FOR ALL THE FOREGOING, this Court finds the accused guilty
beyond reasonable doubt of the offense which he is presently
charged, and there being no aggravating or mitigating
circumstances that may be considered, the accused is
Place of Birth sentencedResidence
to suffer the penalty of six (6) months and one (1)
Bacolod City day of 46 prision correccional
Malaspina St.,and to pay the costs."
Bacolod City
Petitioner
Bacolod City filed 46
a motion
Malaspina reconsideration,7 contending, among
for a St.,
others, that there is no basis
Bacolod City to convict him of perjury because almost
two years prior to the filing of the Information, his motion to withdraw
the petition for naturalization containing the alleged false statements
was granted by the MTCC, hence, the alleged false statements were no
longer existing or had become functus officio.
The MTCC, in its Order8 dated March 31, 1995, denied petitioner’s
motion for reconsideration.
On appeal, the Regional Trial Court (RTC), Branch 54, Bacolod City, in a
Decision dated September 12, 1996, affirmed the MTCC judgment.9
Petitioner then filed with the Court of Appeals a petition for review,
docketed as CA-G.R. CR No. 19968. In his comment, the Solicitor General
recommended the acquittal of petitioner, contending that the
withdrawal of his petition for naturalization rendered the same functus
241
officio, thus making the questioned false statements inexistent.
The Court of Appeals, in its Decision dated June 8, 1999,10 affirmed the
Page
RTC Decision with modification, thus:
 "WHEREFORE, finding the appealed decision of the Regional
Trial Court to be in accordance with law and evidence, we
AFFIRM the same with the modification that petitioner-
accused-appellant Alfonso Choa is sentenced to suffer
imprisonment, after applying the Indeterminate Sentence Law
without any aggravating or mitigating circumstance, for a
period of three (3) months of arresto mayor, to one (1) year and
eight (8) months of prision correccional.
"SO ORDERED."
In convicting petitioner, the Appellate Court adopted as its own the RTC’s
findings as follows:
"Evidence presented clearly proved that all the above-
enumerated elements (of perjury) have been duly executed by
the accused. His allegations in his petition regarding his, his
wife’s and children’s residences and his positive averment of
the fact that he is of good moral character and had conducted
himself in an irreproachable manner during his stay in the
Philippines are material matters in connection with his petition
for naturalization as they are essential facts required by Sec. 7
of C.A. No. 473 for one to fulfill for the acquisition of Philippine
citizenship. They are the very facts which would be the subject
of inquiry by the court hearing the petition and the same would
be the basis of the court’s ruling whether one is qualified and
granted Philippine citizenship.
"Paragraph 2 of Art. 183 of the Revised Penal Code provides
that the statement or affidavit is to be made before a
competent officer, authorized to receive and administer oath.
The information shows that the statement was duly subscribed
and sworn to before Notary Public Felomino B. Tan, Jr., a
person competent and authorized by law to receive and
administer oath and the same was entered in his notary
register as Doc. No. 140, Page No. 29, Book No. XXIII, Series of
1989.
"That the accused made a willful and deliberate assertion of
falsehood could be gleaned from the discrepancies in his given
addresses. In his petition for naturalization he gave No. 46
Malaspina Street, Villamonte, Bacolod City as his and his wife’s
residence, while in the birth certificates and the affidavit of
admission of paternity of both Fonsella Kae Saludar and Steve
Albert Saludar, he gave No. 211, 106 Street, Greenplains
Subdivision, Bacolod City as his address besides from the fact
that while may have been residing in the above-stated
addresses, his wife and children have been staying at Hervias
Subdivision, Bacolod City since the latter part of 1984.
Furthermore, cohabiting openly with another woman not his
wife and siring (2) children with the same, in open defiance with
the norm of morality of the community where monogamy is the
accepted practice, is very inconsistent with his allegations of a
moral life, proper and irreproachable, considering that the
accused, by his own admission is a graduate of the University
of St. La Salle, a school known for its high academic and moral
standards. These assertions are not only willful and deliberate
but a perversion of truth which the law is mandated to punish.
"Section 7 of C.A. 473 provides:
‘Any person desiring to acquire Philippine citizenship
shall file with the competent Court, a petition in
triplicate, accompanied by two (2) photographs of
the petitioner, setting forth his name and
surname; his present and former residence, his
occupation; the place and date of his birth, whether
single or married, the name, age, birthplace and
residence of the wife and each of the children…x x x.’
(underscoring supplied)
"The above-cited provisions are the pertinent law which
specifically requires any person desiring to acquire Philippine
citizenship to accomplish, thus complying with the fourth
element of the crime of perjury. (pp. 119-120, Original Records,
Vol. II)"11
Petitioner filed a motion for reconsideration but it was denied by the
Court of Appeals in a Resolution dated February 22, 2000.12
Hence, the present petition for review on certiorari.13
Both the petitioner and the Solicitor General in their respective pleadings
contend that the challenged Decision of the Court of Appeals should be
reversed because: (a) not all the elements of the crime of perjury are
present; and (b) the withdrawal of the petition for naturalization which
contains the alleged untruthful statements bars the prosecution of
petitioner for perjury.
Thus, the issue here is whether petitioner may be convicted of perjury
based on the alleged false statements he stated in his petition for
naturalization withdrawn almost two years prior to the filing of the
Information for perjury.
The petition is unmeritorious.
Article 183 of the Revised Penal Code under which petitioner has been
charged and convicted, provides:
"Art. 183. False testimony in other cases and perjury in solemn
affirmation. – The penalty of arresto mayor in its maximum
period to prision correccional in its minimum period shall be
imposed upon any person who, knowingly making untruthful
statements and not being included in the provisions of the next
preceding articles, shall testify under oath, or make an affidavit,
upon any material matter before a competent person
authorized to administer an oath in cases in which the law so
requires.
"Any person who, in case of a solemn affirmation made in lieu
of an oath, shall commit any of the falsehoods mentioned in
this and the three preceding articles of this section, shall suffer
the respective penalties provided therein."
The elements of perjury are:
1. The accused made a statement under oath or executed an
affidavit upon a material matter;
2. The statement or affidavit was made before a competent
officer authorized to receive and administer oath;
3. In that statement or affidavit, the accused made a willful and
deliberate assertion of a falsehood; and
4. The sworn statement or affidavit containing the falsity is
required by law or made for a legal purpose.14
All these elements are present in the instant case. Petitioner willfully and
deliberately alleged false statements concerning his "residence" and
"moral character" in his petition for naturalization. This was sufficiently
proven by the prosecution, as succinctly noted by the Court of Appeals in
its assailed Decision.
The petition for naturalization was duly subscribed and sworn to by
242
petitioner before Notary Public Filomino B. Tan, Jr., a person competent
and authorized by law to receive and administer oath. Also, petitioner
started testifying under oath on his false allegations before the trial court.
Page
The allegations in the petition regarding "residence" and "moral
character" are material matters because they are among the very facts in
issue or the main facts which are the subject of inquiry15 and are the
bases for the determination of petitioner's qualifications and fitness as a
naturalized Filipino citizen. Thus, C.A. No. 473 provides:
"SEC. 2. Qualifications. – Subject to section four of this Act, any
person having the following qualifications may become a
citizen of the Philippines by naturalization:
xxx xxx xxx
"Third. He must be of good moral character and believes in the
principles underlying the Philippine Constitution, and must
have conducted himself in a proper and irreproachable manner
during the entire period of his residence in the Philippines in his
relation with the constituted government as well as with the
community in which he is living;
xxx xxx xxx
"SEC. 7. Petition for citizenship. – Any person desiring to acquire
Philippine citizenship shall file with the competent court, a
petition in triplicate, accompanied by two photographs of the
petitioner, setting forth his name and surname; his present and
former places of residence; his occupation; the place and date
of his birth; whether single or married and if the father of
children, the name, age, birthplace and residence of the wife
and of the children; x x x; a declaration that he has the
qualifications required by this Act, specifying the same, and that
he is not disqualified for naturalization under the provisions of
this Act; x x x." (italics supplied)
The necessity of declaring a truthful and specific information on the
"residence" and "moral character" in the petition for naturalization has
been underscored by this Court in Chua Kian Lai vs. Republic,16 thus:
"One qualification for Philippine citizenship is that the
petitioner ‘must be of good moral character.’ That
circumstance should be specifically alleged in the petition.
xxx xxx xxx
"The law explicitly requires that the applicant should indicate
in his petition ‘his present and former places of residence’ (Sec.
7, Com. Act No. 473). That requirement is designed to facilitate
the verification of petitioner’s activities which have a bearing
on his petition for naturalization, especially so as to
his qualifications and moral character, either by private
individuals or by investigative agencies of the government, by
pointing to them the localities or places wherein appropriate
inquiries may be made (Keng Giok vs. Republic, 112 Phil. 896).
Moreover, the suppression of that information might constitute
falsehood which signifies that the applicant lacks good moral
character and is not, therefore, qualified to be admitted as a
citizen of the Philippines." (italics supplied)
Fully cognizant of the truth surrounding his moral character and
residence, petitioner instead declared falsely in his verified petition for
naturalization that "he has all the qualifications and none of the
disqualification under C.A. No. 473."17 Clearly, he willfully asserted
falsehood under oath on material matters required by law.
We cannot go along with the submission of the petitioner and the
Solicitor General that petitioner could no longer be prosecuted for
perjury in view of the withdrawal of the petition for naturalization
containing his false material statements. In this jurisdiction, it is not
necessary that the proceeding in which the perjury is alleged to have
been committed be first terminated before a prosecution for the said
crime is commenced.18 At the time he filed his petition for naturalization,
he had committed perjury. As discussed earlier, all the elements of the
crime were already present then. He knew all along that he wilfully stated
material falsities in his verified petition. Surprisingly, he withdrew his
petition without even stating any reason therefor.19 But such withdrawal
only terminated the proceedings for naturalization. It did not extinguish
his culpability for perjury he already committed. Indeed, the fact of
withdrawal alone cannot bar the State from prosecuting petitioner, an
alien, who made a mockery not only of the Philippine naturalization law
but the judicial proceedings as well. And the petition for naturalization
tainted with material falsities can be used as evidence of his unlawful act.
Petitioner then claims that since the petition for naturalization is a
pleading, the allegations therein are absolutely privileged and cannot be
used for any criminal prosecution against him, citing Sison vs.
David,20 People vs. Aquino21 and Flordelis vs. Himalaloan.22
The argument is unavailing. Sison and Aquino both involve libel cases. In
Sison, this Court categorically stressed that the term "absolute privilege"
(or "qualified privilege") has an "established technical meaning, in
connection withcivil actions for libel and slander." The purpose of the
privilege is to ensure that "members of the legislature, judges of courts,
jurors, lawyers, and witnesses may speak their minds freely and exercise
their respective functions without incurring the risk of a criminal
prosecution or an action for the recovery of damages. It is granted in aid
and for the advantage of the administration of justice."23 Certainly, in the
present case, petitioner cannot seek refuge under the absolutely
privileged communication rule since the false statements he made in his
petition for naturalization has instead made a mockery of the
administration of justice.
The Flordelis case is likewise not in point. There, Flordelis was charged
with perjury for having alleged false statements in his verified answer.
This Court held that no perjury could be committed by Flordelis because
"an answer to a complaint in an ordinary civil action need not be under
oath," thus, "it is at once apparent that one element of the crime of
perjury is absent x x x, namely, that the sworn statement complained
of must be required by law."24
Anent the alleged violation of petitioner's constitutional right to equal
protection, suffice it to state that such right cannot be invoked to protect
his criminal act.
In People vs. Cainglet,25 this Court emphatically stressed that "every
interest of public policy demands that perjury be not shielded by artificial
refinements and narrow technicalities. For perjury strikes at the
administration of the laws. It is the policy of the law that judicial
proceedings and judgments be fair and free from fraud, and that litigants
and parties be encouraged to tell the truth, and that they be punished if
they do not."
WHEREFORE, the instant petition for review on certiorari is hereby
DENIED. The appealed Decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
Puno, (Chairman), Panganiban, Corona, and Carpio-Morales, JJ., concur.
(4) A.C. No. 4634 September 24, 1997
JESUS CABARRUS, JR., complainant,
vs.
JOSE ANTONIO S. BERNAS, respondent.
243
TORRES, JR., J.:
Page
On August 30, 1996, Mr. Jesus Cabarrus, Jr. filed an administrative
complaint for disbarment against Atty. Jose Antonio Bernas for alleged
violations of Article 172 of the Revised Penal Code and Code of
Professional Responsibility. In his complaint-affidavit1 dated August 12,
1996, complainant alleged as follows:
A. That on April 16, 1996, respondent Ramon B.
Pascual, Jr., subscribed under oath before Marie
Lourdes T. Sia Bernas, a notary public in Makati City,
wife of lawyer Jose Antonio Bernas, a verification and
certification of non-forum shopping which was
appended to a complaint for reconveyance of
property and damages, denominated as Civil Case
No. 65646, filed before the Regional Trial Court in
National Capital Region, RTC, which case was raffled
to RTC Branch 159 in Pasig City. A photocopy of said
complaint is hereto attached and marked as Annexex
(sic) A, A-1, A-3, A-4, A-5 and A-6;
B. That as basis for the instant complaint for
falsification of public document, I am hereto quoting
verbatim, the test (sic) of Annex A-6, the verification
and certification of non-forum shopping which
states:
Ramon B. Pascual, Jr., under oath, depose and states:
He is the plaintiff in this case, and certify that he
cause the preparation of the foregoing pleading, the
content of which are true to his personal knowledge
and that he has not commenced any other action or
proceeding involving the same issues in any court,
including the Supreme Court, the Court of Appeals, or
any other tribunal or agency. If he should learn that a
similar action of (sic) proceeding has been filed or is
pending before the Supreme Court or any other
Tribunal agency, he undertake to report to (sic) that
fact within Five (5) days from notice to this notice (sic)
to this Honorable Court. Emphasis supplied.
C. That the cause of action relied upon by the
respondent in Civil Case No. 65646 is fraud, facilitated
by forgery as gleaned from paragraphs 15, 16, and 22;
D. That contrary to the tenor, import and meanoing
(sic) of the allegation under 1-B of the instant
complaint, respondent and his counsel Jose Antonio
Bernas caused the preparation and filing of a criminal
complaint for falsification of a public document on
April 11, 1996, (three days before the filing of the
aforecited Civil Case) at the AOED of the National
Bureau of Investigation if (sic) Taff (sic) Ave., a xerox
copy of said complaint is hereto attached and marked
as Annex "B".
D-1. That as stated in Annex "B", the gravaman of the
affidavit complaint of the respondent is forgery, the
same legal issue in Civil Case No. 65646;
D-2. That as early as August 14, 1995, respondent
counsel, Jose Antonio Bernas filed a written
complaint at the NBI for the same cause of action
which was reiterated in another letter submitting to
the NBI standard specimen signatures dated October
1995, copies of said letter complaint are hereto
attached and marked as Annexes (sic) "C".
E. That respondent Ramon B. Pascual, Jr., on the basis
of Annexes A, B, C, D, inclusive of submarkings
knowingly subverted and perverted the truth when
he falsify certified (sic) and verified under oath in the
verification and certification of non-forum shopping,
that:
He has not commenced any other
action or proceeding involving
the same issues in any court,
including the Supreme Court, the
Court of Appeals, or any other
Tribunal or agency." Where
verification-certification was
placed under oath and was
conveniently notarized by the
wife of the counsel of respondent
in both cases at Branch 159 of the
RTC in Pasig and at the NBI, an
agency within the ambis (sic) and
purview of the circulus (sic) of the
Supreme Court prohibiting forum
shopping.
F. That Jose Antonio Bernas, the counsel on record of
the respondents in Civil Case No. 65646 is the same
lawyer who instigated a criminal complaint at the NBI
for forgery and respondents themselves conspired
and confabulated with each other in facilitating and
insuring the open, blatant and deliberate violation of
Art. 172 of the Revised Penal Code which states:
Art. 172. Falsification by private
individual and use of falsified
documents. — The penalty
of prision correccional in its
medium and maximum periods
and a fine of not more than
P5,000 pesos shall be imposed
upon:
1. Any private individual who
shall commit any of the
falsifications enumerated in the
next preceding article in any
public or official document or
letter of exchanged (sic) or any
other kind of commercial
document; and
2. Any person who, to the
damage of a third party, or with
the intent to cause such damage,
shall in any private document
commit any of the acts of
falsification enumerated in the
next preceding article.
Any person who shall knowingly
introduce in evidence in any
judicial proceeding or to the
damage of another or who, with
the intent to cause such damage,
shall use any of the false
documents embraced in the next
preceding article, or in any of the
foregoing subdivisions of this
article, shall be punished by the
penalty next lower in degree.
G. That Atty. Jose Antonio Bernas should be disbarred
for having instigated, abetted and facilitated the
244
perversion and subversion of truth in the said
verification and certification of non-forum shopping.
Contrary to Canon 1, Rule 1.01, 1.02, Canon 3, 3.01,
Page
Canon 10 of the Code of Professional Responsibility
for Lawyers, the pertinent provisions of which are fraudulent, There is forum-shopping whenever, as a result of an adverse opinion in
herein below quoted and a copy of said code is misleading, one forum, a party seeks a favorable opinion (other than by appeal
hereto attached and marked as Annex "E"; deceptive, or certiorari) in another. Therefore, a party to a case resorts to forum
undignified, shopping because "by filing another petition involving the same essential
CANON 1. A. LAWYER SHALL self- facts and circumstances, . . . , respondents approached two different fora
UPHOLD THE CONSTITUTION, laudatory or in order to increase their chances of obtaining a favorable decision or
OBEY THE LAWS OF THE LAND unfair action.4 In this case, there is no forum shopping to speak of. Atty. Bernas,
PROMOTE RESPECT FOR LAW statement or as counsel of Mr. Pascual, Jr., merely requested the assistance of the NBI
AND LEGAL PROCESSES. claim to investigate the alleged fraud and forgery committed by Mr. Jesus
regarding his Cabarrus.5 The filing of a civil case for reconveyance and damages before
qualified (sic) the Regional Trial Court of Pasig City does not preclude respondent to
Rule 1.01 —
or legal institute a criminal action. The rule allows the filing of a civil case
A lawyer
services. independently with the criminal case without violating the circulars on
shall not
forum shopping. It is scarcely necessary to add that Circular No. 28-91
engage in
CANON 10. A LAWYER OWES must be so interpreted and applied as to achieve the purposes projected
unlawful,
CANDOR, FAIRNESS AND GOOD by the Supreme Court when it promulgated that Circular. Circular No. 28-
dishonest,
FAITH TO THE COURT. 91 was designed to serve as an instrument to promote and facilitate the
immoral or
orderly administration of justice and should not be interpreted with such
decietful (sic)
absolute literalness as to subvert its own ultimate and legitimate
conduct. In his Comment,2 respondent Jose Antonio Bernas avers that he has not
objective or the goal of all rules of procedure — which is to achieve
committed forum shopping because the criminal action is not an action
substantial justice as expeditiously as possible.6
Rule 1.02 — that involves the same issue as those in a civil action and both suits can
A lawyer exist without constituting forum shopping so long as the civil aspect has
not been prosecuted in the criminal case. He emphasized that forum Adjunct to this, Act No. 1577, specifically section 1 hereof provides, viz:
shall not
counsel or shopping only exists when identical reliefs are issued by the same parties
abet in multiple fora. Sec. 1. There is hereby created a Bureau of
activities Investigation under the Department of Justice which
simed (sic) at In his Supplemental Comment,3 respondent further contends that shall have the following functions:
defiance of neither he or his client Pascual has commenced any criminal action.
the law or at Pascual merely requested the NBI to assist in the investigation or (a) To undertake investigation of crimes and other
lessening prosecution, and left it to the NBI to determine whether the filing of an offenses against the laws of the Philippines, upon its
confidence in endorsement to the prosecutor, who would determine probable cause, initiative and as public interest may require;
the legal would be appropriate. It was only upon request of the NBI that he
system. assisted Ramon Pascual in drafting an affidavit-complaint for falsification (b) To render assistance, whenever properly
of public documents against complainant. Likewise, respondent by requested in the investigation or detection of crimes
CANON 3. A. LAWYER IN MAKING counsel reiterates that the letter transmitted to the NBI cannot constitute and other offenses;
KNOWN HIS LEGAL SERVICES an action or proceeding because the NBI's functions are merely
SHALL USE ONLY TRUE, HONEST, investigatory and informational in nature. NBI has no prosecutorial
(c) To act as a national clearing house of criminal and
FAIR, DIGNIFIED AND OBJECTIVE functions or quasi-judical powers and is incapable of granting relief or
other informations for the benefit and use of all
INFORMATION OF (sic) remedy. The NBI cannot be an agency contemplated by the circular.
prosecuting and law-enforcement entities of the
STATEMENT OF FACTS. Philippines, identification records of all persons
The core issue to be resolved here is whether respondent Atty. Bernas without criminal convictions, records of identifying
Rule 3.01 — transgressed Circular No. 28-91, Revised Circular No. 28-91, and marks, characteristics, and ownership or possession
A lawyer Administrative Circular No. 04 - 94 on forum shopping. of all firearms as well as of test bullets fired

245
shall not use therefrom;
or permit the After a careful scrutiny of the records, we find the administrative
use of any complaint bereft of merit and should be dismissed.

Page
false,
 (d) To give technical aid to all prosecuting and law-
enforcement officers and entities of the Government
as well as the courts that may request its services;
(e) To extend its services, whenever properly
requested in the investigation of cases of
administrative or civil nature in which the
Government is interested;
(f) To undertake the instruction and training of
representative number of city and municipal peace
officers at the request of their respective superiors
along effective methods of crime investigation and
detection in order to insure greater efficiency in the
discharge of their duties;
(g) To establish and maintain an up-to-date scientific
crime laboratory and to conduct researches in
furtherance of scientific knowledge in criminal
investigation;
(h) To perform such other related functions as the
Secretary of Justice may assign from time to time.
Explicitly, the functions of the National Bureau of Investigations are
merely investigatory and informational in nature. It has no judicial or
quasi-judicial powers and is incapable of granting any relief to a party. It
cannot even determine probable cause. It is an investigative agency
whose findings are merely recommendatory. It undertakes investigation
of crimes upon its own initiative and as public welfare may require. It
renders assistance when requested in the investigation or detection of
crimes which precisely what Atty. Bernas sought in order to prosecute
those persons responsible for defrauding his client.
The courts, tribunals and agencies referred to under Circular No. 28-91,
Revised Circular No. 28-91 and Administrative Circular No. 04-94 are
those vested with judicial powers or quasi-judicial powers and those who
not only hear and determine controversies between adverse parties, but
to make binding orders or judgments. As succinctly put it by R.A. 157, the
NBI is not performing judicial or quasi-judicial functions. The NBI cannot
therefore be among those forums contemplated by the Circular that can
entertain an action or proceeding, or even grant any relief, declaratory or
otherwise.
WHEREFORE, premises considered, the instant complaint is hereby
DISMISSED.
SO ORDERED.
Regalado and Puno, JJ., concur.
Mendoza, J., is on leave.
(5a) A.M. No. MTJ-95-1063 February 9, 1996
ALFONSO C. CHOA, complainant,
vs.
JUDGE ROBERTO S. CHIONGSON, respondent.
RESOLUTION
DAVIDE, JR., J.:
The uncomplicated issues in this administrative complaint have been
property joined with the filing of the respondent's comment as required
in the 1st Indorsement of 18 August 1995 of Hon. Bernardo P. Abesamis,
Deputy Court Administrator. No further pleadings need be required from
the parties.
In the complaint signed by Atty. Raymundo A. Quiroz as counsel for the
complainant and verified by the latter, the respondent is charged with
grave misconduct, gross bias and partiality, and having knowingly
rendered an unjust judgment in Criminal Case No. 50322 entitled,
"People of the Philippines vs. Alfonso C. Choa.
Criminal Case No. 50322 was for Perjury and initiated by the
complainant's wife, Leni L. Ong-Choa, through the filing of a letter-
complaint with the Office of the City Prosecutor of Bacolod City. This
complaint arose from the alleged untruthful statements or falsehoods in
the complainant's Petition for Naturalization dated 30 March 1989 which
was docketed as Case No. 5395, of Branch 41 of the Regional Trial Court
(RTC) of Bacolod City.
In due course, an Information was filed, in the Municipal Trial Court in
Cities (MCTC) of Bacolod City by the Office of the Prosecutor, charging
the complainant herein with perjury allegedly committed as follows:
That on or about the 30th day of March, 1989, in the City of
Bacolod, Philippines, and within the jurisdiction of this
Honorable Court, the herein accused, did, then and there
wilfully, unlawfully, feloniously and knowingly made untruthful
statements of [sic] falsehoods upon material matters required
by the Revised Naturalization Law (C.A. No. 473) in his verified
"Petition for Naturalization" dated April 13, 1989, subscribed
and sworn to before Notary Public Felomino B. Tan, Jr., who is
authorized to administer oath[s], which petition bears Dec. No.
140; Page No. 29; Book No. XXIII; and Series of 1989, in the
Notarial Register of said Notary Public, by stating therein the
following, to wit:
5. I am married to a Filipino. My wife's name is Leni
Ong Choa and now resides at 46 Malaspina Street,
Bacolod City. I have two (2) children, whose names,
dates and places of birth, and residences are as
follows:
NAME DATE OF BIRT
ALBRYAN ONG CHOA July 19, 1981
CHERYL LYNNE ONG CHOA May 5, 1983
10. I am of good moral character, I believe in the
principles underlying the Philippine Constitution. I
have conducted myself in a proper and
irreproachable manner during the entire period of
my residence in the Philippines in my relations with
the constituted government as well as with the
community in which I am living.
xxx xxx xxx
When in truth and in fact said accused knew that his wife Leni
Ong Choa and their two (2) children were not then residing at
the said address at No. 46 Malaspina Street, Villamonte,
Bacolod City, having left the aforesaid residence in 1984, or
about five (5) years earlier and were then residing at Hervias
Subdivision, Bacolod City, that contrary to his aforesaid
allegations in his verified Petition for Naturalization, accused
while residing at 211, 106 Street, Greenplains Subdivision,
Bacolod City, has been carrying on an immoral and illicit
relationship with one Stella Flores Saludar, a woman not his
wife since 1984, and begotting [sic] two (2) children with her as
a consequence, as he and his wife, the private offended party
herein, have long been separated from bed and boards [sic]
246
since 1984; which falsehoods and/or immoral and improper
conduct are grounds for disqualifications [sic] of [sic] becoming
a citizen of the Philippines.
Page
 Act contrary to law.
The case was docketed as Criminal Case No. 50322 and was assigned to
Branch III thereof where the respondent is the presiding Judge.
After trial, the respondent Judge rendered judgment on 21 February 1995
and found the complainant herein guilty beyond reasonable doubt of the
crime of perjury. The respondent Judge accordingly sentenced him to
suffer the penalty of six months and one day of prision correccional and
to pay the costs.
The complainant moved for a reconsideration of the judgment alleging
that: (1) there is no basis for the conviction since his petition for
naturalization had been withdrawn and therefore had become functus
oficio; (2) the petition for naturalization is a pleading, hence its
allegations are privileged; and (3) his prosecution violates the equal
protection clause of the Constitution. The last ground is founded on an
admission made by a representative of the Office of the Solicitor General
of her lack of knowledge of any perjury case filed based on a withdrawn
or dismissed petition for naturalization.
The respondent Judge denied the motion for reconsideration for lack of
merit in an order dated 31 March 1995.
The complainant filed the instant complaint on 14 July 1995 and prayed
for the removal of the respondent Judge from office. As grounds therefor,
he alleges that:
(1) The respondent Judge is guilty of Grave Misconduct, Gross
Bias and Partiality, and Knowingly Rendering An Unjust
Judgment when he intentionally failed to divulge the next-
door-neighbor relationship between him and the family of Leni
Ong Choa and to disqualify himself from sitting in the criminal
case on such ground as part of the grand design and
preconceived intention to unjustly convict the complainant of
the crime charged without due process.
(2) The allegations in the Information do not constitute the
offense of perjury.
(3) The petition having been withdrawn with finality, it has
become functus oficio and it is as if the Petition was not filed at
all so that whatever false statements were contained therein
were no longer required by law and had ceased to be on a
material matter.
(4) The respondent Judge admitted for prosecution Exhibit "P"
(handwritten list of properties) even if this was self-serving as
it was undated and unsigned; and Exhibit "Q" (letter of Leni Ong
Choa's counsel to the complainant) even if it was also self-
serving as there was no showing that he received the letter.
(5) The respondent Judge has sentenced the complainant to
suffer a penalty higher than that provided by law, without
applying the Indeterminate Sentence Law.
The respondent Judge refutes the charge in his Comment dated 12
September 1995, thus:
He denies being the next-door-neighbor of Leni Ong Choa there
being a house, belonging to the Sia family, separating his house
and that of Leni Choa; he and the rest of the members of his
family are not acquainted with Leni Choa or any member of her
family and had not exchanged greetings nor is he even a
nodding acquaintance of Leni Choa or any member of her
family.
He asserts that if the allegations in the Information do not
constitute an offense, the complainant, should have filed a
Motion to Quash but he did not. Just the same, when the
complainant stated in the Petition that he together with his
wife and children lived at 46 Malaspina St., Bacolod City, he
committed a falsehood under oath because the truth is two (2)
years before the filing of the Petition, his wife and two (2)
children were not living with him anymore, caking him liable for
perjury.
Respondent also avers that the complainant is not of good
moral character contrary to what he stated in the Petition for
Naturalization since he is conducting and extra-marital
relationship with Stella Flores Saludar, his former employee,
with whom he has begotten two (2) children. As a matter of
fact, a case for concubinage against complainant was filed and
is now pending in Court.
According to the respondent, a reading of the Order granting
the Motion to Withdraw the Petition will show that the
Prosecutor representing the Office of the Solicitor General
opposed the Motion to Withdraw the Petition for the reason
that the complainant had abandoned his wife and two (2)
children, is not giving them support and is now living with his
paramour.
On the claim of the complainant that his petition for
naturalization has became functus officio in view of its
withdrawal, hence no longer existent, the respondent Judge
maintains that the withdrawal reduced the petition to functus
oficio only for the purpose of the Special Proceedings but not
when it is used as evidence in other cases.
On the issue of the admissibility of the Exhibits P, Q and R, the
respondent Judge contends that Exhibits P, Q and R were duly
identified by Leni Ong Choa and her testimonies on these were
found to be credible by the Court.
Finally, respondent Judge asserts that the Indeterminate
Sentence Law is not applicable in the perjury case as the
penalty imposed by the court did not exceed one (1) year.
The respondent Judge then prays for the dismissal of the complaint for
being patently without merit and for the censure and reprimand of the
complainant's counsel with a warning to refrain from filing similar
harassment suits.
In the Evaluation contained in a Memorandum dated 17 November 1995
and duly approved by the Court Administrator, Hon. Zenaida N. Elepaño,
Deputy Court Administrator, makes the following findings and
conclusions:
EVALUATION: A careful study of the records shows that the
allegations of the complainant are devoid of any merit.
The charge that respondent Judge and Leni Choa are nieghbors
[sic] appears to be petty under the circumstances. Granting
that they are indeed next-door neighbors does not necessarily
mean that respondent Judge has violated Rule 137 of the Rules
of Court for Disqualification of Judges. Nowhere in said Rule is
it ordained that being the neighbor of a party litigant is reason
enough for the Judge to disqualify himself from hearing the
former's case.
With respect to the complainant's claim that the allegations in
the Information do not constitute the offense of perjury, an
administrative proceeding is not the forum to decide whether
the judge has erred or not, especially as complainant has
247
appealed his conviction.
Even if the matter can be examined, we do not find any error in
Page
the Court's decision.
The elements of perjury as enumerated in the case of People of
the Philippines vs. Bautista (C.A., 40 O.G. 2491) are as follows:
(a) statement in the affidavit upon material latter made under
oath;
(b) The affiant swears to the truthfulness of the statements in
his affidavit before a competent officer authorized to
administer oath;
(c) There is a willful and deliberate assertion of falsehood; and
(d) Sworn statement containing the falsity is required by law.
It cannot be denied that the petition for naturalization filed by
Alfonso C. Choa was made under oath and before a competent
officer authorized to administer oath as shown by the records
(p. 4 APPENDIX "A"). This petition for naturalization is required
by law as a condition precedent for the grant of Philippine
citizenship (Section 7 Com. Act No. 473).
The question now boils down to whether there is a willful and
deliberate assertion of falsehood.
As shown by the records (p. 1 APPENDIX "A"), Alfonso C. Choa
declared in his petition dated 30 March 1989 that his wife Leni
Ong Choa resides at 46 Malaspina St. Bacolod City while in the
administrative complaint he filed against respondent Judge, he
stated that his wife Leni Ong Choa left their family residence
(46 Malaspina St. Bacolod City) in the latter part of 1984 (p. 6
par. 2 of Adm. Complaint). This simply means that when he filed
his petition for naturalization, Leni Ong Choa was not residing
at the abovementioned address anymore.
It was also proven that Alfonso C. Choa had a child with a
woman not his wife and he himself signed the birth certificate
as the father of that child (p. 4 APPENDIX "E"). This is contrary
to what he declared in his petition that he is of good moral
character which is required under the Naturalization Law (par.
3 Sec. 2 Com. Act No. 473).
There was therefore a deliberate assertion of falsehood by
Alfonso C. Choa to warrant conviction for perjury as found by
Judge Chiongson.
As to the complainant's claim that the withdrawal of the
petition makes it functus oficio, we sustain the respondent
Judge's view that the Petition can be used as evidence in
another case. In the case of People of the Philippines
vs. Cainglet (16 SCRA 748) the Court held that "every interest
of public policy demands that perjury be not shielded by
artificial refinements and narrow technicalities. For perjury
strikes at the very administration of the laws (Jay vs. State,
[1916] 15 Ala. App. 255, 43 So. 137). It is the policy of the law
that judicial proceedings and judgment shall be fair and free
from fraud, and that litigants and parties be encouraged to tell
the truth and that they be punished if they do not (People vs.
Niles, 300 Ill., 458, 133 N.E. 252, 37 A.R.L. 1284, 1289)".
On whether the judge erred in not applying the Indeterminate
Sentence Law to the case, we cite Section 2 of R.A. No. 4103
(Indeterminate Sentence Law) which provides in part that "This
Act shall not apply to . . . those whose maximum term of
imprisonment does not exceed one year, . . ." Since the penalty
for perjury under Article 183 of the Revised Penal Code
is arresto mayor in its maximum period which is one (1) month
and one (1) day to six (6) months to prision correccional in its
minimum period which is six (6) months and one (1) day to two
(2) years and four (4) months, the respondent Judge was
correct in not applying the Indeterminate Sentence Law.
As earlier stated, the foregoing discussion is in no way the final
appreciation of the Court's decision which is on appeal, but is
made only to illustrate the utter lack of merit of this charge.
Counsel for the complainant must be reprimanded for assisting
in the filing of this complaint.
Deputy Court Administrator Elepaño then recommends:
Premises considered, it is respectfully recommended that this
complaint against Judge Roberto S. Chiongson be DISMISSED
for lack of merit. It is further recommended that Atty.
Raymundo A. Quiroz be REPRIMANDED for assisting in the filing
of a patently unmeritorious complaint.
We fully agree with Deputy Court Administrator Elepaño that the
allegations in the complaint are utterly devoid of merit. Good faith and
good motive did not seem to have inspired the filing of the complaint.
Indeed, as correctly pointed out by the respondent, if the complainant
and his counsel honestly believed that the allegations in the Information
in the perjury case did not constitute an offense, they should have filed a
motion to quash. Under Section 3(a), Rule 117 of the Rules of Court, the
accused may move to quash the complaint or information on this ground.
The complainant never did; he was arraigned and entered into trial.
Although his failure to do so did not operate as a waiver of the said
ground pursuant to Section 8 of the same Rule, it showed, nevertheless,
his admission of the weakness of the ground. If he had perceived it to be
strong, he would not have wasted an opportunity to put an early end to
the ordeal of a prolonged litigation. Besides, this ground had not at all
been invoked by him, as shown in the order of 31 March 1995 denying
the complainant's motion for the reconsideration.
The withdrawal of the Petition for Naturalization did not and cannot
amount to a recall of the questioned untruthful statements. Neither
could it extinguish any offense which may have been committed by
reason of such untruthful statements.
As to the respondent Judge's being a next-door neighbor of the
complainant's wife the complainant in the perjury case it must be
stressed that that alone is not a ground for either a mandatory
disqualification under the first paragraph or for a voluntary
disqualification under the second paragraph of Section 1, Rule 137 of the
Rules of Court. In any event, the complainant has failed to disclose in his
complaint that he had raised this matter at any time before the rendition
of the judgment. In fact, the summary of the grounds of his motion for
reconsideration in the respondent's order denying the said motion does
not include this matter. If indeed the complainant honestly believed in
the justness of this grievance, he would have raised it in an appropriate
pleading before the trial court.
Finally, the nature and character of the complainant's grievances relative
to the respondent's judgment finding the former guilty of perjury may
only be properly ventilated in an appropriate judicial proceeding, such as
an appeal from the judgment.
This kind of recourse; whether made in addition to a regular appeal from
the judgment, or in lieu thereof, if none had been made, is clearly without
any basis and cannot be tolerated for it robs Judges of precious time
which they could otherwise devote to the cases in their courts or to the
unclogging of their dockets.
Atty. Raymundo A. Quiroz, counsel for the complainant, must have been
aware of the utter lack of merit of the charges against the respondent. As
a Member of the Philippine Bar he is bound: (1) by his oath, not to,
248
wittingly or willingly, promote or sue any groundless, false, or unlawful
suit nor give aid nor consent to the same; (2) by Section 20(c)i Rule 138
of the Rules of Court, to counsel or maintain such action or proceedings
Page
only as appear to him to be just; and (3) to uphold the Code of
Professional Responsibility. It was incumbent upon him to give a candid
and honest opinion on the merits and probable results of the
complainant's case (Rule 15.05, Canon 15, Code of Professional
responsibility) with the end in view of promoting respect for the law and
legal processes (Canon 1, Id.). He should, therefore, be required to show
cause why no disciplinary action should be taken against him for his
apparent failure to observe the foregoing duties and responsibilities.
WHEREFORE, for want of merit, the instant complaint is DISMISSED.
For the reasons above stated, Atty. Raymundo A. Quiroz is hereby
directed to SHOW CAUSE, within fifteen (15) days from notice hereof,
why he should not be disciplinary dealth with for his apparent failure to
comply with his duties and responsibilities stated above.
SO ORDERED.
Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur.
(5b) A.M. No. MTJ-95-1063 August 9, 1996
ALFONSO C. CHOA, complainant,
vs.
JUDGE ROBERTO S. CHIONGSON, respondent.
DAVIDE, JR., J.:p
In the resolution of 9 February 1996, this Court dismissed the instant
complaint for want of merit and directed Atty. Raymundo A. Quiroz,
counsel for the complainant, to show cause within fifteen days from
notice why he should not be disciplinarily dealt with for his apparent
failure to comply with the duties and responsibilities of a member of the
Bar. Such duties and responsibilities were noted in the following
paragraph of the resolution:
Atty. Raymundo A. Quiroz, counsel for the
complainant, must have been aware of the utter lack
of merit of the charges against the respondent. As a
Member of the Philippine Bar he is bound: (1) by his
oath, not to, wittingly or willingly, promote or sue any
groundless, false, or unlawful suit nor give aid nor
consent to the same; (2) by Section 20(c), Rule 138 of
the Rules of Court, to counsel or maintain such
actions or proceedings only as appear to him to be
just; and (3) to uphold the Code of Professional
Responsibility. It was incumbent upon him to give a
candid and honest opinion on the merits and
probable results of the complainant's case (Rule
15.05, Canon 15, Code of Professional Responsibility)
with the end in view of promoting respect for the law
and legal processes (Canon 1, He should, therefore,
be required to show cause why no disciplinary action
should be taken against him for his apparent failure
to observe the foregoing duties and responsibilities.
Atty. Quiroz received a copy of the foregoing resolution on 16 February
1996, and on 2 March 1996, he filed a Motion for Extension of Time
wherein he prayed that he be given an extension of six days from 2 March
1996 — the expiry date of the original period to file his compliance to the
show-cause order — within which to file his compliance to or motion for
reconsideration of the resolution.
In the resolution of 25 March 1996, this Court granted Atty. Quiroz's
motion but only insofar as the filing of his compliance was concerned, as
clearly shown in the notice of the resolution sent to him reading as
follows:
Quoted hereunder, for your information, is a
resolution of the Third Division of this Court dated
MAR. 25, 1996:
Administrative Matter MTJ-95-1063 (Alfonso C. Choa
vs. Judge Roberto S. Chiongson, etc.) — The first
motion of Atty. Raymundo A. Quiroz, counsel for
complainant, for extension of six (6) days form March
2, 1996 or until March 8, 1996 within which to file
compliance with the resolution of February 9, 1996
which directed him to show cause, why he should not
be disciplinarily dealt with for his apparent failure to
comply with his duties and responsibilities, is
GRANTED, with WARNING that no further extension
will be given.
It appears that on 8 March 1996 Atty. Quiroz filed with the Office of the
Court Administrator a pleading entitled Compliance/Motion for
Reconsideration. This pleading is more of a motion for reconsideration. It
was filed on the last day of the period he solicited in his motion for
extension. Since the resolution of 25 March 1996 granted only an
extension of the period to submit his compliance, it necessarily follows
that the motion for reconsideration was filed beyond the reglementary
period. It bears stressing that paragraph 5 of this Court's en
banc resolution of 7 April 1988 provides that, as a general policy, no
motion for extension of time to file a motion reconsideration shall be
granted after the Court has rendered its judgment. Accordingly, the
motion for reconsideration must forthwith be DENIED for having been
filed late. In any event, it has no merit whatsoever except, perhaps, as to
its sophistry.
The only issue then left is the sufficiency and adequacy of his explanation
which is, nevertheless, inexorably linked to the motion for
reconsideration. Atty. Quiroz asserts that he never had the intention to
prosecute or sue any groundless, false, or unlawful suit or to file the
instant complaint in addition to the appeal or in lieu thereof; that he
assisted the complainant in the honest belief that the latter has really a
cause of action against the respondent; and that he "was not ventilating
in the instant case the complainant's grievances relative to the
respondent's judgment finding [the complainant] guilty of perjury but
was only raising the matter to show that indeed the respondent was
biased because of such next-door-neighbor relationship."
These explanations deserve scant consideration. The claim of "honest
belief," which amounts to a claim of good faith, fails to convince us in light
of what follows.
Nothing is further from the truth than the claim of Atty. Quiroz that he
"was not ventilating in the instant case the complainant's grievances
relative to the respondent's judgment finding [the complainant] guilty of
perjury but was only raising the matter to show that indeed the
respondent was biased because of such next-door-neighbor
relationship." He was in fact, attacking the judgment of conviction by
asserting that the trial court's only recourse was to acquit the
complainant because (a) the allegations in the information do not
constitute the offense of perjury; (b) the complainant's petition for
naturalization, which was the basis for the charge of perjury, having been
withdrawn with finality, had become functus officio, i.e. as if the petition
was not filed at all, and, therefore, whatever false statement contained
therein was no longer required by law and had ceased to be on a material
matter; (c) the respondent had admitted in evidence exhibits which are
obviously inadmissible; and (d) the respondent had sentenced the
complainant with the penalty higher than that provided by law without
applying the Indeterminate Sentence Law.
249
The upshot of these allegations is that the complainant's (Mr. Choa's)
conviction of the crime of perjury is baseless or unfounded in law and in
fact and is nothing but the product of the respondent's prejudice against
Page
Mr. Choa because the respondent happens to be a "next-door neighbor"
of Mr. Choa's wife, the private complainant in the perjury case.
Considering that Mr. Choa seasonably appealed from the judgment of the courts. That is his right as a citizen, and it is even subjects a lawyer to disciplinary
conviction, Atty. Quiroz knew or ought to know that all the matters which his duty as an officer of the court to avail of such action.
he may find relevant or material for the reversal of the judgment and the right. Thus, in In Re: Almacen (31 SCRA 562, 579-580
consequent acquittal of his client, Mr. Choa, may be raised with the [1970]), this Court explicitly declared: xxx xxx xxx
appellate court, and that this Court, not being the venue for such appeal,
cannot resolve the appeal even by way of an administrative complaint Hence, as a citizen and as officer of the court, a The lawyer's duty to render respectful subordination
against the judge who convicted Mr. Choa. lawyer is expected not only to exercise the right, but to the courts is essential to the orderly administration
also to consider it his duty to avail of such right. No of justice. Hence, in the assertion of their clients'
If Atty. Quiroz then assisted Mr. Choa in the preparation of this case, he law may abridge this right. Nor is he "professionally rights, lawyers — even those gifted with superior
had nothing in mind but to harass the respondent Judge and to unduly answerable to a scrutiny into the official conduct of intellect — are enjoined to rein up their tempers.
influence the course of the appeal in the criminal case by injecting into the judges, which would not expose him to legal
the mind of the appellate judge that, indeed, something was definitely animadversion as a citizen" (Case of Austin, 28 Am
Elsewise stated, the right to criticize, which is
wrong with the appealed decision because the ponentethereof is now Dec. 657, 665).
guaranteed by the freedom of speech and of
facing a serious administrative complaint arising from his improper
expression in the Bill of Rights of the Constitution,
conduct therein. It might even be said that the filing of this case was to Above all others, the members of the bar have the must be exercised responsibly, for every right carries
send a signal to the appellate judge in the criminal case that an affirmance best opportunity to become conversant with the with it a corresponding obligation. Freedom is not
of the challenged decision would clearly be erroneous, if not equally character and efficiency of our judges. No class is less freedom from responsibility, but freedom with
baseless and unfounded as that of the trial court below. likely to abuse the privilege, or no other class has as responsibility. In Zaldivar vs. Gonzales (166 SCRA
great an interest in the preservation of an able 316, 353-354 [1988]), it was held:
While a lawyer owes absolute fidelity to the cause of his client, full upright bench. (State Board of Examiners in Law vs.
devotion to his genuine interest, and warm zeal in the maintenance and Hart, 116 N.W. 212, 216).
Respondent Gonzales is entitled
defense of his rights, as well as the exertion of his utmost learning and
to the constitutional guarantee
ability,1 he must do so only within the bounds of the law.2 He must give a To curtail the right of a lawyer to be critical of the of free speech. No one seeks to
candid and honest opinion on the merits and probable results of his foibles of the courts and judges is to seal the lips of deny him that right least of all
client's case3 with the end in view of promoting respect for the law and those in the best position to give advice and who this Court. What respondent
legal processes,4 and counsel or maintain such actions or proceedings might consider it their duty to speak disparagingly. seems unaware of is that
only as appear to him to be just, and such defenses only as he believes to "Under such a rule," so far as the bar is concerned, freedom of speech and of
be honestly debatable under the law.5 He must always remind himself of "the merits of a sitting judge may be rehearsed, but expression, like all constitutional
the oath he took upon admission to the Bar that he "will not wittingly or as to his demerits there must be profound silence." freedoms, is not absolute and
willingly promote or sue any groundless, false or unlawful suit nor give (State vs. Circuit Court [72 N.W. 196]). that freedom of expression
aid nor consent to the same"; and that he "will conduct [himself] as
needs an occasion to be adjusted
lawyer according to the best of [his] knowledge and discretion with all
Nevertheless, such a right is not without limit. For, as to and accommodated with the
good fidelity as well to the courts as to [his] clients." Needless to state,
this Court warned in Almacen: requirements of equally
the lawyer's fidelity to his client must not be pursued at the expense of
important public interests. One
truth and the administration of justice,6 and it must be done within the
But it is a cardinal condition of all of these fundamental public
bounds of reason and common sense.7 A lawyer's responsibility to
such criticism that it shall interests is the maintenance of
protect and advance the interests of his client does not warrant a course
be bona fide, and shall not spill the integrity and orderly
of action propelled by ill motives and malicious intentions against the
over the walls of decency and functioning of the administration
other party.8
propriety. A wide chasm exists of justice. There is no antimony
between fair criticism, on the one between free expression and the
As an officer of the court and its indispensable partner in the sacred task integrity of the system of
hand, and abuse and slander of
of administering justice, graver responsibility is imposed upon a lawyer administering justice. For the
courts and the judges thereof, on
than any other to uphold the integrity of the courts and to show respect protection and maintenance of
the other. Intemperate and

250
to its officers. This does not mean, however, that a lawyer cannot criticize freedom of expression itself can
unfair criticism is a gross violation
a judge. As we stated in Tiongco vs. Hon. Aguilar:9 be secured only within the
of the duty of respect to courts. It
is such a misconduct that context of a functioning and

Page
It does not, however, follow that just because a orderly system of dispensing
lawyer is an officer of the court, he cannot criticize justice, within the context, in
 other words, of viable
independent institutions for
delivery of justice which are
accepted by the general
community.
Proscribed then are, inter alia, the use of
unnecessary language which jeopardizes high esteem
in courts, creates or promotes distrust in judicial
administration (Rheem, supra), or tends necessarily
to undermine the confidence of people in the
integrity of the members of this Court and to degrade
the administration of justice by this Court (In re:
Sotto, 82 Phil. 595 [1949]); or of offensive and
abusive language (In re: Rafael Climaco, 55 SCRA 107
[1974]); or abrasive and offensive language (Yangson
vs. Salandanan, 68 SCRA 42 [1975]); or of
disrespectful, offensive, manifestly baseless, and
malicious statements in pleadings or in a letter
addressed to the judge (Baja vs. Macandog, 158 SCRA
391 [1988], citing the resolution of 19 January 1988
in Phil. Public Schools Teachers Association vs.
Quisumbing, G.R. No. 76180, and Ceniza vs.
Sebastian, 130 SCRA 295 [1984]); or of disparaging,
intemperate, and uncalled-for remarks (Sangalang vs.
Intermediate Appellate Court, 177 SCRA 87 [1989]).
Any criticism against a judge made in the guise of an administrative
complaint which is clearly unfounded and impelled by ulterior motive will
not excuse the lawyer responsible therefor under his duty of fidelity to
his client. As we stated in Ng vs. Alfaro,10 lawyers, as officers of the court,
should not encourage groundless administrative cases against court
officers and employees. The time of the latter should not be wasted in
answering or defending groundless complaints; every minute of it is
precious and must be reserved for the enhancement of public service.
Our precious time too should not be diverted to such cases.
We find the explanation of Atty. Quiroz to be unsatisfactory.
WHEREFORE, we hereby impose upon ATTY, RAYMUNDO A. QUIROZ a
FINE in the amount of Five Thousand Pesos (P5,000,00) to be paid within
five (5) days from notice hereof. He is further WARNED that a commission
of the same or similar acts in the future shall be dealt with more severely.
SO ORDERED.
Narvasa C.J., Melo, Francisco and Panganiban, JJ., concur.
tao sa office kaya sinabi sa anak ko. Isinumbong sa
akin ng anak ko.
(6) A.M. No. P-94-1081 October 25, 1995
Kinabukasan po ay isinumbong ko sa judge ng Branch
19. Pinagsabihan siya. Nangako na hihiwalay na raw
VIRGINIA E. BURGOS, complainant,
vs. siya. Hindi na raw kami guguluhin. Hindi po tumupad.
JOSEFINA R. AQUINO, Court Stenographer, RTC, Branch 19, Malolos, Ang pagpunta lang po sa office ang sinunod pero
Bulacan, respondent. patuloy pa rin po ang paghahabol sa asawa ko. Ayaw
pong tumigil. Matalas po at walang kahihiyan.
Nito pong nakaraang linggo May 26 at 28, 1994
PUNO, J.:
nagbantay na naman po ang anak sa harapan ng
office ng asawa ko. Hindi po tumigil. Alam po ito ng
This administrative matter refers to the charge of immorality brought by
buong compound ng kapitolyo. Kilalang-kilala po siya
complainant against respondent, for maintaining illicit relations with
sa gawain nga immoral. Hindi po ako
complainant's husband which eventually begot them a child, a daughter
nagsisinungaling. Totoong lahat ito. Siguro po ay
named Jocelyn A. Burgos.
nauunawaan ninyo ako, dahil may ina rin po kayo na
katulad ko na napakasakit kapag niloko. Dapat na
The letter-complaint of complainant states: pong masugpo itong gawain ng ganitong mga babae,
kung hindi po natin papansinin ay marami pang
Sir: pamilya na masisira. Masyado na po akong
nasasaktan.
Ito po ay may kinalaman sa isang empleyado ninyo sa
Branch 19, Malolos, Bulacan na si Josefina R. Aquino, Kalakip po rito ang mga papeles na siya ay may anak.
court stenographer.
Nais ko pong paimbistigahan siya sa pagkaimmoral
dahil siya po ay may-anak sa aking asawa.
Nito nga pong mga nagdaan panahon ay hindi ko na
pinapansin pero grabe na po ang mga gawain. Nuon
pong isang taon, April 1993, napagalaman ko na
nagbababad sa office ng asawa ko, kasama ang
kanyang anak. Nakikialam sa mga gawain sa office at
nagpapanggap pang Mrs. siya ng asawa ko. Maluag
siyang nakaaalis sa office niya nuong panahon na iyon
na walang pumupuna. Sa katunayan po ay kalakip
nito ang papeles na nilalakad niya kahit office hour.
Hindi siya mapigil sa pagpunta sa office ng asawa ko,
sa dahilan mag-iiskandalo raw siya. Tumagal po iyon
ng mahabang panahon sapagkat hindi ko po ugali ang
pumunta sa office ng asawa ko.
251
Napagalaman ko lang po ito nang umuwi ang anak ko
na sumama sa office ng asawa ko. Hindi po tumigil ng
Page
kapupunta ruon kahit na nanduon ang anak ko. Hindi
naman po kilala ng anak ko. Hindi na po matiis ng mga

We asked the respondent to file her Comment. In her Comment, she
admitted that she had an illicit relation with complainant's husband. The
illicit relation allegedly happened prior to her employment in the
judiciary. She claimed that the affair occurred in 1979 and their love child,
Jocelyn, was born on March 19, 1980.2 She joined the judiciary only on
July 9, 1981 as Court Clerk Interpreter I at the Municipal Trial Court of
Guiguinto, Bulacan and was promoted to Stenographic Reporter. She
later transferred to the Regional Trial Court of Malolos, Bulacan, Branch
19, in 1983. She now avers that she had severed her relation with Atty.
Burgos arising from their disagreement over support.
In her Reply, complainant maintained that her husband and respondent
are still "on." She had also demanded the respondent to disallow her
daughter from using the family name Burgos.
We referred the letter-complaint to Executive Judge Natividad C. Dizon,
Regional Trial Court, Malolos, Bulacan, Branch 19, for investigation. In her
report and recommendation, dated March 17, 1995, Judge Dizon found
the following:
xxx xxx xxx
The parties, through counsel, agreed that they will
just submit their respective position papers relative
to their respective contentions. No testimonial
evidence was presented but only documentary.
xxx xxx xxx
It appears from the Personal V Data Sheet submitted by
the respondent to the Supreme i Court, under Column
No. 20 that: in 1974 to September
r 30, 1979, she was
employed as Clerk Stenographer g in the Fiscal's Office
which is a clear indication that
i when she got pregnant
with her child she was in the n government service.
Also in Item No. 27 of said Personal
i Data Sheet, under
references, it can be noteda that she named Atty.
Francisco Burgos as one of her E references.
. could be presumed undisputably that the reason for
B
It is a given fact, as the records clearly show, that
when respondent had an affair u with the husband of
the complainant which resulted r in the birth of the
love child, respondent was g in the government
service. The admission in theoAnswer (Exh. "B") of the
respondent that she was s a victim of amorous
advances of complainant's husband sometime in
1
1979 and out of that relationship a child was born
confirmed the fact that respondent, while in the
government service committed a disgraceful and
immoral act for which respondent may be subjected
to disciplinary action. Now, whether the relationship
with the husband of the complainant is still
subsisting, complainant submitted documents typed
by the respondent at the office of complainant's
husband showing that in the said pleadings
typewritten below are the initials "fcb\jo" and also
complainant claims that respondent brags about her
being a mistress and introduces herself as the legal
wife and goes to the office of her paramour almost
everyday during office hours (Letter to the
undersigned attached as Annex "4"). Complainant
also claims that her husband supports respondent
and the child. However, she did not present evidence
to prove such. Therefore, except for the fact that
there was admission on the part of the respondent
that complainant's husband is the father of
respondent's child and the relationship was during
the time she was an employee of the Fiscal's Office,
no sufficient evidence was presented that the
relationship is subsisting while respondent was in the
judiciary.3
Judge Dizon recommended respondent's suspension from
service.
We then referred the report to the Office of the Court Administrator for
evaluation. In its Memorandum, dated June 19, 1995, it held:
This Office finds merit on the conclusion of the
investigating Judge that indeed the respondent
committed an immoral act while in the government
service, regardless of whether or not it was
committed when employed in the Judiciary. At the
time she gave birth to her child, the respondent may
not be in the government service. However, the child
was conceived when she was still in the Fiscal's Office
where the complainant's husband likewise worked. It
her resignation is because of her conception and
eventually giving birth to her child.
This Office went deeper in its evaluation inquiring
further on the personal record of herein respondent.
Her personal record reveals that respondent was
employed as Clerk-Typist in the Office of the
Governor of Malolos, Bulacan from August 1, 1974 to
April 22, 1976, and from April 23, 1976 to September
30, 1979 as Clerk Stenographer in the Fiscal's Office
on the same province. She resigned from the Fiscal's
Office and subsequently got herself employed as
Court Interpreter in MTC, Guiguinto, Bulacan on July
9, 1981. While it is true that in all her personal record
from the time she assumed office in the Judiciary, she
declares her status as single with a child named
Jocelyn Aquino born on March 19, 1980, however, in
one of her personal data sheets dated October 26,
1982, respondent did not declare her child.
Moreover, it is worthy to note that in her Statement
of Assets and Liabilities dated July 11, 1984, April 30,
1990, May 14, 1992, April 5, 1993, and April 13, 1994,
her only child, though declared, already carries the
name Jocelyn A. Burgos. The reason for the change in
her child's surname was not explained.
It is to be emphasized that the offense of disgraceful
and immoral conduct is punishable by DISMISSAL
from the service. Whether or not the immoral
relationship still subsist is no longer material.
Documents submitted by a government employee to
form part of his/her personal file are official
documents. Any alteration or material changes in the
content thereof without a valid justification is
252
tantamount to falsification which is likewise
penalized by DISMISSAL from the service. It could be
added that in these official documents, the employee
Page
declares under the penalty of perjury that all
 statements given in the document are true and
correct to the best of his knowledge and belief. It
appears from these documents and in the record of
the case that no doubt, herein respondent is guilty of
immorality and committed an act of falsifying her
own records and therefore, guilty of perjury, which
merit a severe punishment.4
We agree with the findings of the Office of the Court Administrator.
Respondent has admitted her illicit relationship with Atty. Francisco C.
Burgos, complainant's husband in 1979 which gave life to their love child,
Jocelyn, in 1980. She, however, denies the charge of complainant that
she continues to carry on her dalliance with Atty. Burgos.
The evidence proves the charge of complainant. Complainant submitted
pleadings in various courts filed by her husband, Atty. Burgos and typed
by respondent. These pleadings are: (1) Motion for Extension to File Brief
filed in the Court of Appeals in CA-G.R. No. 13785, dated April 1,
1993;5 (2) Motion to Reset, dated April 12, 1993, and filed in Civil Case
No. 423 in the Municipal Trial Court of Pulilan, Bulacan;6 and (3) Position
Paper, dated May 12, 1993, filed also in the Municipal Trial Court of
Pulilan, Bulacan in Civil Case No. 423.7 All these pleadings bear the initials
"fcb/jo" and which were typed by the respondent in the office of Atty.
Burgos. As the legitimate wife of Atty. Burgos, it is not difficult for
complainant to obtain copies of these pleadings. It is not also far fetched
for respondent to type them for she is a court stenographer. Given these
circumstances, it behooved the respondent to disprove the charge that
her relationship with complainant's husband has not ceased. She did
nothing to meet this burden. We hold that the evidence on record is
substantial enough to conclude that respondent did not stop her illicit
relationship with complainant's husband. Proceedings in administrative
investigation are not strictly governed by the technical rules of evidence.
They are summary in nature.
The Code of Judicial Ethics mandates that the conduct of court personnel
must be free from any whiff of impropriety, not only with respect to his
duties in the judicial branch but also to his behavior outside the court as
a private individual.8 There is no dichotomy of morality; a court employee
is also judged by his private morals.9 The exacting standards of morality
and decency have been strictly adhered to and laid down by the Court to
those in the service of the judiciary. 10 Respondent, as a court
stenographer, did not live up to her commitment to lead a moral life. Her
act of maintaining relation with Atty. Burgos speaks for itself.
Likewise, the records reveal that when respondent applied in the
judiciary she filled up the prescribed personal information sheet, Civil
Service Form 212, dated October 26, 1982 and did not disclose the
existence of her daughter. The form itself gives this warning: "I declare
under penalties of perjury that the answers given above are true and
correct to the best of my knowledge and belief." Despite the warning, she
professed that her statements were true.11Under Article 183 of the
Revised Penal Code, perjury is the deliberate making of untruthful
statements upon any material matter before a competent person
authorized to administer an oath in cases in which the law so requires.
The required Civil Service Form 212 submitted by respondent to form
part of her personal file is an official document. Her deliberate omission
to disclose her child without a valid justification makes her liable for
perjury.12
IN VIEW HEREOF, respondent Josefina R. Aquino is meted the penalty of
suspension from office for six (6) months for immorality and perjury. Let
a copy of this decision be entered in respondent's personal record.
SO ORDERED.
Narvasa, C.J., Regalado, Mendoza and Francisco, JJ., concur.
R.A. 9165- Comprehensive Dangerous Drugs Act of 2002
(1) G.R. No. 149878 July 1, 2003
PEOPLE OF THE PHILIPPINES, plaintiff–appellee,
vs.
TIU WON CHUA a.k.a. "Timothy Tiu" and QUI YALING y CHUA a.k.a. "Sun
Tee Sy y Chua," accused–appellant.
PUNO, J.:
This is an appeal from the decision of the Regional Trial Court (RTC) of
Manila, Branch 27, convicting appellants Tiu Won Chua a.k.a. Timothy Tiu
(Tiu Won) and Qui Yaling y Chua a.k.a. Sun Tee Sy y Chua (Qui Yaling) for
violation of Section 16, Article III of Republic Act No. 6425, otherwise
known as the Dangerous Drugs Act of 1972, as amended by Republic Act
No. 7659.
Appellants were charged with the crime of illegal possession of a
regulated drug, i.e., methamphetamine hydrochloride, otherwise known
as "shabu," in an information which reads:
The undersigned accuses TIU WON CHUA aka "Timothy Tiu" and QUI
YALING Y CHUA aka "Sun Tee Sy Y Chua" of violation of Section 16, Article
III in relation to Section 2 (e-2), Article I of Republic Act No. 6425, as
amended by Batas Pambansa Blg. 179 and as further amended by
Republic Act No. 7659, committed as follows:
That on or about the 3rd day of October 1998, in the City of
Manila, Philippines, the said accused without being authorized
by law to possess or use any regulated drug, did then and there
wilfully, unlawfully, knowingly and jointly have in their
possession and under their custody and control the following,
to wit:
A sealed plastic bag containing two three four point five (234.5)
grams of white crystalline substance;
Four (4) separate sealed plastic bags containing six point two
two four three (6.2243) grams of white crystalline substance;
Sixteen (16) separate sealed plastic bags containing twenty
point three six seven three (20.3673) grams of white crystalline
substance; or a total of 261.0916 grams, and;
An improvised tooter with traces of crystalline substance
known as "SHABU" containing methamphetamine
hydrochloride, a regulated drug, without the corresponding
license or prescription thereof.
Contrary to law.1
During arraignment, a plea of not guilty was entered. Appellants, with the
assistance of counsel, and the prosecution stipulated on the following
facts:
1. The authenticity of the following documents:
a. The letter of Police Senior Inspector Angelo Martin
of WPD, District Intelligence Division, United Nations
Avenue, Ermita, Manila, dated October 12, 1998, to
the Director of the NBI requesting the latter to
253
conduct a laboratory examination of the specimen
mentioned therein;
Page
b. The Certification issued by Forensic Chemist Loreto
Bravo of the NBI, dated October 13, 1998, to the
 effect that the specimen mentioned and enumerated
therein gave positive results for methamphetamine
hydrochloride, Exhibit "B"; and
c. Dangerous Drug Report No. 98-1200 issued by
Forensic Chemist Bravo, dated October 13, 1998, to
the effect that the specimen mentioned therein gave
positive results for methamphetamine
hydrochloride;
2. The existence of one plastic bag containing 234.5 grams of
methamphetamine hydrochloride, Exhibit "D"; four (4) plastic
sachets also containing methamphetamine hydrochloride with
a total net weight of 6.2243 grams, Exhibits "E", "E-1", "E-2" and
"E-3"; additional 16 plastic sachets containing
methamphetamine hydrochloride with a total net weight of
20.3673 grams, Exhibits "F", "F-1" to "F-15", and one
improvised tooter with a length of 8 inches more or less and
with a red plastic band, Exhibit "G";
3. Forensic Chemist Loreto Bravo has no personal knowledge as
to the source of the regulated drug in question; and
4. Tiu Won Chua and Qui Yaling y Chua as stated in the
information are the true and correct names of the two
accused.2
The witnesses presented by the prosecution were SPO1 Anthony de Leon,
PO2 Artemio Santillan and PO3 Albert Amurao. Their testimonies show
that the police authorities, acting on an information that drug-related
activities were going on at the HCL Building, 1025 Masangkay St.,
Binondo, Manila, surveyed the place on October 2, 3, 4 and 5, 1998. At
about 10 p.m. of October 6, they conducted a test-buy operation,
together with a Chinese-speaking asset. They were able to buy P2,000.00
worth of substance from appellants, which, upon examination by the PNP
crime laboratory, proved positive for methamphetamine
hydrochloride.3 Nonetheless, they did not immediately arrest the
suspects but applied for a warrant to search Unit 4-B of HCL Building,
1025 Masangkay St., Binondo, Manila. Their application to search the unit
supposedly owned by "Timothy Tiu" was granted by Judge Ramon
Makasiar of Branch 35 of the RTC of Manila on October 9. 4 Armed with
the warrant, they proceeded to the place and learned that Tiu Won was
not inside the building. They waited outside but Tiu Won did not come.
After several stakeouts, they were able to implement the warrant on
October 12. Failing to get the cooperation of the barangay officials, they
requested the presence of the building coordinator, Noel Olarte, and his
wife, Joji, who acted as witnesses.
During the enforcement of the warrant, there were three (3) persons
inside the apartment, namely, appellants Tiu Won and Qui Yaling, and a
housemaid. The search was conducted on the sala and in the three (3)
bedrooms of Unit 4-B. On top of a table inside the master’s bedroom, one
(1) big pack, containing 234.5 grams of shabu, was found inside a black
leather man’s handbag supposedly owned by Tiu Won, while sixteen (16)
small packs of shabu weighing 20.3673 grams were found inside a lady’s
handbag allegedly owned by Qui Yaling. Also contained in the inventory
were the following items: an improvised tooter, a weighing scale, an
improvised burner and one rolled tissue paper.5 The authorities also
searched a Honda Civic car bearing Plate No. WCP 157, parked along
Masangkay Street, registered in the name of the wife of Tiu Won and
found four (4) plastic bags containing 6.2243 grams of shabu, which were
likewise confiscated. A gun in the possession of Tiu Won was also seized
and made subject of a separate criminal case.
The defense presented appellants Tiu Won and Qui Yaling. They denied
that Timothy Tiu and Tiu Won Chua are one and the same person. They
presented papers and documents to prove that appellant is Tiu Won Chua
and not Timothy Tiu, as stated in the search warrant. Tiu Won also
claimed that he does not live in the apartment subject of the search
warrant, alleging that he is married to a certain Emily Tan and is a resident
of No. 864 Alvarado St., Binondo, Manila. Nonetheless, he admitted that
his co-appellant, Qui Yaling, is his mistress with whom he has two
children. Qui Yaling admitted being the occupant of the apartment, but
alleged that she only occupied one room, while two other persons, a
certain Lim and a certain Uy, occupied the other rooms. Both appellants
denied that they were engaged in the sale or possession of shabu. They
asserted that they are in the jewelry business and that at the time the
search and arrest were made, the third person, whom the prosecution
identified as a housemaid, was actually a certain Chin, who was there to
look at some of the pieces of jewelry sold by Tiu Won. They also denied
that a gun was found in the possession of Tiu Won.
Qui Yaling recalled that upon asking who was it knocking at the door of
her apartment on October 12, the police authorities represented that
they were electric bill collectors. She let them in. She was surprised when
upon opening the door, around ten (10) policemen barged inside her unit.
She, together with Tiu Won and Chin, was asked to remain seated in the
sofa while the men searched each room. Tiu Won alleged that after a
fruitless search, some of the policemen went out, but came back a few
minutes later with another person. Afterwards, he was made to sign a
piece of paper. Appellants also claimed that the policemen took their
bags which contained money, the pieces of jewelry they were selling and
even Qui Yaling’s cell phone. They both denied that shabu was discovered
in the apartment during the search. Appellants were arrested and
brought to the police station.
In a decision, dated August 15, 2001, the RTC found proof beyond
reasonable doubt of the guilt of the appellants and sentenced them to
suffer the penalty of reclusion perpetua and a fine of P500,000.00 each.6
Thus, appellants interpose this appeal raising the following assignment of
errors:
I
THE TRIAL COURT ERRED IN DISREGARDING THE LEGAL
DEFECTS OF THE SEARCH WARRANT USED BY THE POLICE
OPERATIVES AGAINST BOTH ACCUSED.
II
THE TRIAL COURT ERRED IN TAKING INTO CONSIDERATION
EVIDENCES (sic) WHICH SHOULD HAVE BEEN EXCLUDED AND
DISREGARDED WHICH RESULTED IN THE ERRONEOUS
CONVICTION OF BOTH ACCUSED.
III
THE TRIAL COURT ERRED IN CONVICTING BOTH ACCUSED
DESPITE THE ABSENCE OF PROOF BEYOND REASONABLE
DOUBT.
IV
THE TRIAL COURT ERRED IN DISREGARDING THE FACT THAT
THE CONSTITUTIONAL RIGHTS OF BOTH ACCUSED WERE
SERIOUSLY VIOLATED BY THE POLICE OPERATIVES.7
These issues can be trimmed down to two i.e., the legality of the search
warrant and the search and arrest conducted pursuant thereto, and the
correctness of the judgment of conviction imposed by the RTC.
As regards the propriety of the search warrant issued in the name of
Timothy Tiu, which did not include appellant Qui Yaling, appellants
contend that because of this defect, the search conducted and
consequently, the arrest, are illegal. Being fruits of an illegal search, the
evidence presented cannot serve as basis for their conviction.
254
We beg to disagree. There are only four requisites for a valid warrant, i.e,:
(1) it must be issued upon "probable cause"; (2) probable cause must be
Page
determined personally by the judge; (3) such judge must examine under
oath or affirmation the complainant and the witnesses he may produce;
and (4) the warrant must particularly describe the place to be searched
and the persons or things to be seized.8 As correctly argued by the
Solicitor General, a mistake in the name of the person to be searched
does not invalidate the warrant,9 especially since in this case, the
authorities had personal knowledge of the drug-related activities of the
accused. In fact, a "John Doe" warrant satisfies the requirements so long
as it contains a descriptio personae such as will enable the officer to
identify the accused.10 We have also held that a mistake in the
identification of the owner of the place does not invalidate the warrant
provided the place to be searched is properly described. 11
Thus, even if the search warrant used by the police authorities did not
contain the correct name of Tiu Won or the name of Qui Yaling, that
defect did not invalidate it because the place to be searched was
described properly. Besides, the authorities conducted surveillance and
a test-buy operation before obtaining the search warrant and
subsequently implementing it. They can therefore be presumed to have
personal knowledge of the identity of the persons and the place to be
searched although they may not have specifically known the names of
the accused. Armed with the warrant, a valid search of Unit 4-B was
conducted.
We affirm, however, the illegality of the search conducted on the car, on
the ground that it was not part of the description of the place to be
searched mentioned in the warrant. It is mandatory that for the search
to be valid, it must be directed at the place particularly described in the
warrant.12 Moreover, the search of the car was not incidental to a lawful
arrest. To be valid, such warrantless search must be limited to that point
within the reach or control of the person arrested, or that which may
furnish him with the means of committing violence or of escaping.13 In
this case, appellants were arrested inside the apartment, whereas the car
was parked a few meters away from the building.
In a prosecution for illegal possession of a dangerous drug, it must be
shown that (1) appellants were in possession of an item or an object
identified to be a prohibited or regulated drug, (2) such possession is not
authorized by law, and (3) the appellants were freely and consciously
aware of being in possession of the drug. 14 We also note that the crime
under consideration is malum prohibitum, hence, lack of criminal intent
or good faith does not exempt appellants from criminal liability. Mere
possession of a regulated drug without legal authority is punishable
under the Dangerous Drugs Act.15
In the case at bar, the prosecution has sufficiently proved that the packs
of shabu were found inside Unit 4-B, HCL Building, 1025 Masangkay St.,
Binondo, Manila. Surveillance was previously conducted. Though no
arrest was made after the successful test-buy operation, this does not
destroy the fact that in a subsequent search, appellants were found in
possession of shabu. The testimonies of the prosecution witnesses are
consistent in that after the test-buy operation, they obtained a search
warrant from Judge Makasiar, pursuant to which, they were able to
confiscate, among others, several packs of shabu from a man’s handbag
and a ladies’ handbag inside a room in the unit subject of the warrant.
Furthermore, the seizure of the regulated drug from Unit 4-B is proven
by the "Receipt for Property Seized"16 signed by SPO1 de Leon, the seizing
officer, Noel, the building administrator, and Joji Olarte, his wife, who
were also present. De Leon attested to the truth and genuineness of the
receipt which was not contradicted by the defense.
Be that as it may, we cannot sustain the trial court’s decision attributing
to both appellants the illegal possession of the same amount of shabu.
We note that nowhere in the information is conspiracy alleged. Neither
had it been proven during the trial. As such, we need to look at the
individual amounts possessed by each appellant.
In his testimony, Tiu Won admitted ownership of the man’s handbag
where 234.5 grams of shabu were found, viz:
Q: During those ten to 20 minutes, what were those
policemen doing inside that unit?
A: They went inside the rooms and started ransacking the
drawers and everything. As a matter of fact, even handbags
were searched by them.
Q: Whose handbags were searched?
A: My bag, the one I was carrying that day, with jewelry
and checks and others were taken by them.17(emphasis
supplied)
Qui Yaling, in her appellant’s brief, denied owning the handbag where
20.3673 grams of shabu were discovered. However, during her
testimony, she admitted its ownership, viz:
Q: Now, the police testified before this court that you has
(sic) a bag and when they searched this bag, it yielded some
sachets of shabu(.) (W)hat can you say about that?
A: That is an absolute lie, sir. What they saw in my bag were
my cosmetics.18 (emphasis supplied)
An admission is an act or declaration of a party as to the existence of a
relevant fact which may be used in evidence against him.19 These
admissions, provided they are voluntary, can be used against appellants
because it is fair to presume that they correspond with the truth, and it
is their fault if they do not.20
Qui Yaling likewise argues that the lower court erred in attributing
ownership of the handbag to her considering that there was another girl
present at the apartment during the search. She contends that since the
prosecution was not able to establish the ownership of the bag, then such
could have also been owned by Chin.
We do not subscribe to this argument. The defense failed to bring Chin
to court, although during the course of the presentation of their
evidence, they manifested their intention to present her testimony.
Furthermore, a visitor does not normally leave her bag lying anywhere,
much more in the master’s bedroom. Being the occupant of the
apartment, it is more logical to presume that the handbag belongs to Qui
Yaling. The failure of the prosecution to present the bags and proofs that
the bags belong to the appellants is immaterial because the bags, the
license of Tiu Won found inside the man’s handbag and the passport of
Qui Yaling found inside the ladies’ handbag are not illegal. Having no
relation to the use or possession of shabu, the authorities could not
confiscate them for they did not have the authority to do so since the
warrant authorized them to seize only articles in relation to the illegal
possession of shabu.21 Not within their control, they could not have been
presented in court.
We now come to the penalties of the appellants. R. A. No. 6425, as
amended by R. A. No. 7659, applies. Thus, since 234.5 grams of shabu
were found inside the man’s handbag, deemed to be owned by Tiu Won,
he is guilty of violating Section 16, Article III of R.A. No. 6425, while Qui
Yaling, whose handbag contained only 20.3673 grams of shabu is guilty
of violating Section 20 thereof. Section 16, in connection with Section 20
(1st paragraph), provides the penalty of reclusion perpetua to death and
a fine ranging from five hundred thousand pesos to ten million pesos
where the amount of shabu involved is 200 grams or more. Where the
amount is less than 200 grams, Section 20 punishes the offender with the
penalty ranging from prision correccional to reclusion perpetua.
IN VIEW WHEREOF, the decision of RTC Br. 27, Manila as to the penalty
of appellant Tiu Won is affirmed, while that of appellant Qui Yaling is
modified. Tiu Won Chua is sentenced to a penalty of reclusion perpetua,
255
and a fine of five hundred thousand pesos (P500,000.00) in accordance
with Section 16 and Section 20 (1st paragraph) of R.A. No. 6425, as
amended by R.A. No. 7659. Qui Yaling y Chua is sentenced to an
Page
indeterminate sentence of prision correccional as minimum to prision
mayor as maximum, there being no mitigating or aggravating
circumstances.
SO ORDERED.
Panganiban, Sandoval-Gutierrez, Corona, and Carpio-Morales,
JJ., concur.
(2) G.R. No. 179940 April 23, 2008
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NORBERTO DEL MONTE y GAPAY @ OBET, accused-appellant.
DECISION
CHICO-NAZARIO, J.:
Assailed before Us is the Decision1 of the Court of Appeals in CA-G.R. CR-
H.C. No. 02070 dated 28 May 2007 which affirmed with modification the
Decision2 of the Regional Trial Court (RTC) of Malolos, Bulacan, Branch
78, in Criminal Case No. 3437-M-02, finding accused-appellant Norberto
del Monte, a.k.a. Obet, guilty of violation of Section 5,3 Article II of
Republic Act No. 9165, otherwise known as "Comprehensive Dangerous
Drugs Act of 2002."
On 11 December 2002, accused-appellant was charged with Violation of
Section 5, Article II of Republic Act No. 9165, otherwise known as
Comprehensive Dangerous Drugs Act of 2002. The accusatory portion of
the information reads:
That on or about the 10th day of December 2002, in the
municipality of Baliuag, province of Bulacan, Philippines, and
within the jurisdiction of this Honorable Court, the above-
named accused, without authority of law and legal justification,
did then and there wilfully, unlawfully and feloniously sell,
trade, deliver, give away, dispatch in transit and transport
dangerous drug consisting of one (1) heat-sealed transparent
plastic sachet of Methylamphetamine Hydrochloride weighing
0.290 gram.4
The case was raffled to Branch 78 of the RTC of Malolos, Bulacan and
docketed as Criminal Case No. 3437-M-02.
When arraigned on 20 January 2003, appellant, assisted by counsel de
oficio, pleaded "Not Guilty" to the charge.5On 17 February 2003, the pre-
trial conference was concluded.6 Thereafter, trial on the merits ensued.
The prosecution presented as its lone witness PO1 Gaudencio M.
Tolentino, Jr., the poseur-buyer in the buy-bust operation conducted
against appellant, and a member of the Philippine National Police (PNP)
assigned with the Philippine Drug Enforcement Agency (PDEA) Regional
Office 3/Special Enforcement Unit (SEU) stationed at the Field Office,
Barangay Tarcan, Baliuag, Bulacan.
The version of the prosecution is as follows:
On 10 December 2002, at around 3:00 o’clock in the afternoon, a
confidential informant went to the office of the PDEA SEU in Barangay
Tarcan, Baliuag, Bulacan and reported that appellant was selling shabu.
Upon receipt of said information, a briefing on a buy-bust operation
against appellant was conducted. The team was composed of SPO2
Hashim S. Maung, as team leader, PO1 Gaudencio Tolentino, Jr. as the
poseur-buyer, and PO1 Antonio Barreras as back-up operative. After the
briefing, the team, together with the confidential informant, proceeded
to Poblacion Dike for the execution of the buy-bust operation.
When the team arrived at appellant’s place, they saw the appellant
standing alone in front of the gate. The informant and PO1 Tolentino
approached appellant. The informant introduced PO1 Tolentino to
appellant as his friend, saying "Barkada ko, user." PO1 Tolentino gave
appellant P300.00 consisting of three marked P100 bills.7 The bills were
marked with "GT JR," PO1 Tolentino’s initials. Upon receiving
the P300.00, appellant took out a plastic sachet from his pocket and
handed it over to PO1 Tolentino. As a pre-arranged signal, PO1 Tolentino
lit a cigarette signifying that the sale had been consummated. PO1
Barreras arrived, arrested appellant and recovered from the latter the
marked money.
The white crystalline substance8 in the plastic sachet which was sold to
PO1 Tolentino was forwarded to PNP Regional Crime Laboratory Office 3,
Malolos, Bulacan, for laboratory examination to determine the presence
of the any dangerous drug. The request for laboratory examination was
signed by SPO2 Maung.9 Per Chemistry Report No. D-728-2002,10 the
substance bought from appellant was positive for methamphetamine
hydrochloride, a dangerous drug.
The testimony of Nellson Cruz Sta. Maria, Forensic Chemical Officer who
examined the substance bought from appellant, was dispensed after
both prosecution and defense stipulated that the witness will merely
testify on the fact that the drugs subject matter of this case was
forwarded to their office for laboratory examination and that laboratory
examination was indeed conducted and the result was positive for
methamphetamine hydrochloride.11
For the defense, the appellant took the witness stand, together with his
common-law wife, Amelia Mendoza; and nephew, Alejandro Lim.
From their collective testimonies, the defense version goes like this:
On 10 December 2002, appellant was sleeping in his sister’s house in
Poblacion Dike when a commotion woke him up. His nephew, Alejandro
Lim, was shouting because the latter, together with appellant’s common-
law wife, Amelia Mendoza, and a niece, was being punched and kicked
by several police officers. When appellant tried to pacify the policemen
and ask them why they were beating up his common-law wife and other
relatives, the policemen arrested him, mauled him, punched him on the
chest, slapped him and hit him with a palo-palo. He sustained swollen
face, lips and tooth. His common-law wife was likewise hit on the chest
with the palo-palo.
The policemen then took appellant and his common-law wife to a house
located in the middle of a field where the former demanded P15,000.00
for their liberty. The next day, appellant was brought to the police station.
Amelia Mendoza identified PO1 Tolentino and PO1 Barreras as the police
officers who manhandled them and who demanded P15,000.00 so that
she and appellant could go home. The following day at 6:00 a.m., she said
her child and cousin arrived with the P15,000.00. She was released but
appellant was detained. She does not know why the police officers filed
this case against appellant. What she knows is that they were asking
money from them.
Alejandro Lim merely corroborated the testimonies of appellant and
Amelia Mendoza.
On 8 March 2004, the trial court rendered its decision convicting
appellant of Violation of Section 5, Article II of Republic Act No. 9165, and
sentenced him to life imprisonment and to pay a fine of P5,000,000.00.
The dispostive portion of the decision reads:
WHEREFORE, the foregoing considered, this Court hereby finds
accused Norberto del Monte y Gapay @ Obet GUILTY beyond
256
reasonable doubt of the offense of Violation of Section 5, Art.
II of R.A. 9165 and sentences him to suffer the penalty of LIFE
IMPRISONMENT and a fine of P5,000,000.00. With cost.
Page
 The drugs subject matter of this case is hereby ordered
forfeited in favor of the government. The Branch of this Court
is directed to turn over the same to the Dangerous Drugs Board
within ten (10) days from receipt hereof for proper disposal
thereof.12
The trial court found the lone testimony of PO1 Gaudencio M. Tolentino,
Jr. to be credible and straightforward. It established the fact that
appellant was caught selling shabu during an entrapment operation
conducted on 10 December 2002. Appellant was identified as the person
from whom PO1 Tolentino bought P300.00 worth of shabuas confirmed
by Chemistry Report No. D-728-2002. On the other hand, the trial court
was not convinced by appellant’s defense of frame-up and denial.
Appellant failed to substantiate his claims that he was merely sleeping
and was awakened by the screams of his relatives who were being
mauled by the police officers.
Appellant filed a Notice of Appeal on 10 March 2004.13 With the filing
thereof, the trial court directed the immediate transmittal of the entire
records of the case to us.14 However, pursuant to our ruling in People v.
Mateo,15 the case was remanded to the Court of Appeals for appropriate
action and disposition.16
On 28 May 2007, the Court of Appeals affirmed the trial court’s decision
but reduced the fine imposed on appellant to P500,000.00. It disposed of
the case as follows:
WHEREFORE, the appeal is DISMISSED and the decision dated
March 8, 2004 of the RTC, Branch 78, Malolos, Bulacan, in
Criminal Case No. 3437-M-02, finding accused-appellant
Norberto del Monte guilty beyond reasonable doubt of
Violation of Section 5, Article II, Republic Act No. 9165, and
sentencing him to suffer the penalty of life imprisonment
is AFFIRMED with the MODIFICATION that the amount of fine
imposed upon him is reduced from P5,000,000.00
to P500,000.00.17
A Notice of Appeal having been timely filed by appellant, the Court of
Appeals forwarded the records of the case to us for further review.18
In our Resolution19 dated 10 December 2007, the parties were notified
that they may file their respective supplemental briefs, if they so desired,
within 30 days from notice. Both appellant and appellee opted not to file
a supplemental brief on the ground they had exhaustively argued all the
relevant issues in their respective briefs and the filing of a supplemental
brief would only contain a repetition of the arguments already discussed
therein.
Appellant makes a lone assignment of error:
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-
APPELLANT GUILTY OF THE OFFENSE CHARGED DESPITE THE
INADMISSIBILITY OF THE EVIDENCE AGAINST HIM FOR FAILURE
OF THE ARRESTING OFFICERS TO COMPLY WITH SECTION 21 OF
R.A. 9165.20
Appellant anchors his appeal on the arresting policemen’s failure to
strictly comply with Section 21 of Republic Act No. 9165. He claims that
pictures of him together with the alleged confiscated shabu were not
taken immediately upon his arrest as shown by the testimony of the lone
prosecution witness. He adds that PO1 Tolentino and PO1 Antonio
Barreras, the police officers who had initial custody of the drug allegedly
seized and confiscated, did not conduct a physical inventory of the same
in his presence as shown by their joint affidavit of arrest. Their failure to
abide by said section casts doubt on both his arrest and the admissibility
of the evidence adduced against him.
At the outset, it must be stated that appellant raised the police officers’
alleged non-compliance with Section 2121 of Republic Act No. 9165 for
the first time on appeal. This, he cannot do. It is too late in the day for
him to do so. In People v. Sta. Maria22 in which the very same issue was
raised, we ruled:
The law excuses non-compliance under justifiable grounds.
However, whatever justifiable grounds may excuse the police
officers involved in the buy-bust operation in this case from
complying with Section 21 will remain unknown, because
appellant did not question during trial the safekeeping of the
items seized from him. Indeed, the police officers’ alleged
violations of Sections 21 and 86 of Republic Act No. 9165 were
not raised before the trial court but were instead raised for
the first time on appeal. In no instance did appellant least
intimate at the trial court that there were lapses in the
safekeeping of seized items that affected their integrity and
evidentiary value. Objection to evidence cannot be raised for
the first time on appeal; when a party desires the court to
reject the evidence offered, he must so state in the form of
objection. Without such objection he cannot raise the
question for the first time on appeal.(Emphases supplied.)
In People v. Pringas,23 we explained that non-compliance with Section 21
will not render an accused’s arrest illegal or the items seized/confiscated
from him inadmissible. What is of utmost importance is the preservation
of the integrity and the evidentiary value of the seized items as the same
would be utilized in the determination of the guilt or innocence of the
accused. In the case at bar, appellant never questioned the custody and
disposition of the drug that was taken from him. In fact, he stipulated that
the drug subject matter of this case was forwarded to PNP Regional Crime
Laboratory Office 3, Malolos, Bulacan for laboratory examination which
examination gave positive result for methamphetamine hydrochloride, a
dangerous drug. We thus find the integrity and the evidentiary value of
the drug seized from appellant not to have been compromised.
We would like to add that non-compliance with Section 21 of said law,
particularly the making of the inventory and the photographing of the
drugs confiscated and/or seized, will not render the drugs inadmissible in
evidence. Under Section 3 of Rule 128 of the Rules of Court, evidence is
admissible when it is relevant to the issue and is not excluded by the law
or these rules. For evidence to be inadmissible, there should be a law or
rule which forbids its reception. If there is no such law or rule, the
evidence must be admitted subject only to the evidentiary weight that
will accorded it by the courts. One example is that provided in Section 31
of Rule 132 of the Rules of Court wherein a party producing a document
as genuine which has been altered and appears to be altered after its
execution, in a part material to the question in dispute, must account for
the alteration. His failure to do so shall make the document inadmissible
in evidence. This is clearly provided for in the rules.
We do not find any provision or statement in said law or in any rule that
will bring about the non-admissibility of the confiscated and/or seized
drugs due to non-compliance with Section 21 of Republic Act No. 9165.
The issue therefore, if there is non-compliance with said section, is not of
admissibility, but of weight – evidentiary merit or probative value – to be
given the evidence. The weight to be given by the courts on said evidence
depends on the circumstances obtaining in each case.
The elements necessary for the prosecution of illegal sale of drugs are (1)
the identity of the buyer and the seller, the object, and consideration;
and (2) the delivery of the thing sold and the payment therefor.24 What
is material to the prosecution for illegal sale of dangerous drugs is the
proof that the transaction or sale actually took place, coupled with the
presentation in court of evidence of corpus delicti.25
All these elements have been shown in the instant case. The prosecution
clearly showed that the sale of the drugs actually happened and that
the shabu subject of the sale was brought and identified in court. The
poseur buyer positively identified appellant as the seller of the shabu. Per
Chemistry Report No. D-728-2002 of Forensic Chemical Officer Nellson
257
Cruz Sta. Maria, the substance, weighing 0.290 gram, which was bought
by PO1 Tolentino from appellant in consideration of P300.00, was
examined and found to be methamphetamine hydrochloride (shabu).
Page
In the case before us, we find the testimony of the poseur-buyer,
together with the dangerous drug taken from appellant, more than
sufficient to prove the crime charged. Considering that this Court has
access only to the cold and impersonal records of the proceedings, it
generally relies upon the assessment of the trial court, which had the
distinct advantage of observing the conduct and demeanor of the
witnesses during trial. It is a fundamental rule that findings of the trial
courts which are factual in nature and which involve credibility are
accorded respect when no glaring errors, gross misapprehension of facts
and speculative, arbitrary and unsupported conclusions can be gathered
from such findings. The reason for this is that the trial court is in a better
position to decide the credibility of witnesses having heard their
testimonies and observed their deportment and manner of testifying
during the trial.26
The rule finds an even more stringent application where said findings are
sustained by the Court of Appeals.27Finding no compelling reason to
depart from the findings of both the trial court and the Court of Appeals,
we affirm their findings.
Appellant denies selling shabu to the poseur-buyer insisting that he was
framed, the evidence against him being "planted," and that the police
officers were exacting P15,000.00 from him.
In the case at bar, the evidence clearly shows that appellant was the
subject of a buy-bust operation. Having been caught in flagrante delicto,
his identity as seller of the shabu can no longer be doubted. Against the
positive testimonies of the prosecution witnesses, appellant’s plain
denial of the offenses charged, unsubstantiated by any credible and
convincing evidence, must simply fail.28 Frame-up, like alibi, is generally
viewed with caution by this Court, because it is easy to contrive and
difficult to disprove. Moreover, it is a common and standard line of
defense in prosecutions of violations of the Dangerous Drugs Act.29 For
this claim to prosper, the defense must adduce clear and convincing
evidence to overcome the presumption that government officials have
performed their duties in a regular and proper manner. 30 This, appellant
failed to do. The presumption remained unrebutted because the defense
failed to present clear and convincing evidence that the police officers did
not properly perform their duty or that they were inspired by an
improper motive.
The presentation of his common-law wife, Amelia Mendoza, and his
nephew, Alejandro Lim, to support his claims fails to sway. We find both
witnesses not to be credible. Their testimonies are suspect and cannot be
given credence without clear and convincing evidence. Their claims, as
well as that of appellant, that they were maltreated and suffered injuries
remain unsubstantiated. As found by the trial court:
The accused, on the other hand, in an effort to exculpate
himself from liability raised the defense of frame-up. He alleged
that at the time of the alleged buy bust he was merely sleeping
at the house of his sister. That he was awakened by the yells
and screams of his relatives as they were being mauled by the
police officers. However, this Court is not convinced. Accused
failed to substantiate these claims of maltreatment even in the
face of his wife’s and nephew’s testimony. No evidence was
presented to prove the same other than their self-serving
claims.31
Moreover, we agree with the observation of the Office of the Solicitor
General that the witnesses for the defense cannot even agree on what
time the arresting policemen allegedly arrived in their house. It
explained:
To elaborate, appellant testified that it was 3 o’clock in the
afternoon of December 10, 2002 when he was roused from his
sleep by the policemen who barged into the house of his sister
(TSN, July 7, 2003, p. 2). His common-law wife, however,
testified that it was 10-11 o’clock in the morning when the
policemen came to the house (TSN, Oct. 13, 2003, p. 6). On the
other hand, Alejandro Lim testified that he went to sleep at 11
o’clock in the morning and it was 10 o’clock in the morning
when the policemen arrived (TSN, Feb.2, 2004, p. 6). He thus
tried to depict an absurd situation that the policemen arrived
first before he went to sleep with appellant.32
Having established beyond reasonable doubt all the elements
constituting the illegal sale of drugs, we are constrained to uphold
appellant’s conviction.
The sale of shabu is penalized under Section 5, Article II of Republic Act
No. 9165. Said section reads:
SEC. 5. Sale, Trading, Administration, Dispensation, Delivery,
Distribution and Transportation of Dangerous Drugs and/or
Controlled Precursors and Essential Chemicals. – The penalty of
life imprisonment to death and a fine ranging from Five
hundred thousand pesos (P500,000.00) to Ten million pesos
(P10,000,000.00) shall be imposed upon any person, who,
unless authorized by law, shall sell, trade, administer, dispense,
deliver, give away to another, distribute, dispatch in transit or
transport any dangerous drug, including any and all species of
opium poppy regardless of the quantity and purity involved, or
shall act as a broker in any of such transactions.
Under said law, the sale of any dangerous drug, regardless of its quantity
and purity, is punishable by life imprisonment to death and a fine
of P500,000.00 to P10,000,000.00. For selling 0.290 gram of shabu to
PO1 Tolentino, and there being no modifying circumstance alleged in the
information, the trial court, as sustained by the Court of Appeals,
correctly imposed the penalty of life imprisonment in accordance with
Article 63(2)33 of the Revised Penal Code.
As regards the fine to be imposed on appellant, the trial court pegged the
fine at P5,000,000.00 which the Court of Appeals reduced
to P500,000.00. Both amounts are within the range provided for by law
but the amount imposed by the Court of Appeals, considering the
quantity of the drugs involved, is more appropriate.
WHEREFORE, premises considered, the instant appeal is DENIED. The
Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02070 dated 28
May 2007, sustaining the conviction of appellant Norberto Del Monte,
a.k.a. Obet, for violation of Section 5, Article II of Republic Act No. 9165,
is hereby AFFIRMED. No costs.
SO ORDERED.
(3) G.R. No. 141532 April 14, 2004
PEOPLE OF THE PHILIPPINES, appellee,
vs.
GATUDAN BALAG-EY and EDWIN ALIONG y SUNGOT, appellants.
DECISION
PANGANIBAN, J.:
hose who engage in the illicit trade of dangerous drugs and who prey on
misguided members of society must be caught and put behind bars. To
do this, however, the prosecution must prove their guilt beyond
reasonable doubt. Without such proof, acquittal is the only recourse.
258
The Case
Gatudan Balag-ey and Edwin Aliong appeal the October 20, 1999
Page
Decision1 of the Regional Trial Court (RTC) of Baguio City (Branch 6) in
Criminal Case No. 16100-R, in which they were found guilty of illegal
possession and attempted sale of prohibited drugs. The dispositive
portion of the assailed Decision reads:
"Wherefore, the Court finds accused Gatudan Balag-ey and
Edwin Aliong guilty beyond reasonable doubt of the offense of
illegal possession of and attempt to sell marijuana with a total
weight of 18,352.82 grams in violation of Section 21, Article IV
in relation to Section 4, Article II of Republic Act 6425, as
amended by Republic Act 7659 as charged in the Information
which is included in the offense of sale or delivery of marijuana
proved and hereby sentences each of them to the penalty of
Reclusion Perpetua and to pay the fine of ₱500,000.00 each,
without subsidiary imprisonment in case of insolvency, and to
pay the costs.
"The accused Gatudan Balag-ey and Edwin Aliong, being both
detention prisoners, are entitled to be credited 4/5 of their
preventive imprisonment in the service of their sentence in
accordance with Article 29 of the Revised Penal Code.
"The 18,352.82 grams of bricks of marijuana contained in the
cigarette box with the marking Philip Morris are forfeited in
favor of the State to be destroyed immediately in accordance
with law."2 (Citations omitted)
Appellants were charged in an Amended Information3 dated December
9, 1998, as follows:
"That on or about the 28th day of September, 1998, in the City
of Baguio, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring,
confederating and mutually aiding x x x each other, without any
authority of law, did then and there willfully, unlawfully and
feloniously have in their possession and attempt to sell twenty
(20) bricks of dried marijuana leaves/fruiting tops, a prohibited
drug, weighing about 18,352.82 grams (actual weight) more or
less, to SPO1 DANILO P. NATIVIDAD, a member of the Philippine
National Police, 14th Narcotics Regional Office, who acted as
poseur buyer, for ₱1,000.00 per kilo, in violation of the
aforecited provision of law."4
During their respective arraignments on December 21, 19985 and January
21, 1999,6 appellants, with the assistance of their counsels
de parte,7 pleaded not guilty to the charge. After trial in due course, the
court a quorendered the assailed Decision. It also denied appellants’
Motion for Reconsideration.8
The Facts
Version of the Prosecution
In its Brief, the Office of the Solicitor General (OSG) presents the
prosecution’s version of the facts as follows:
"About 10:30 in the morning of September 28, 1998, the 14th
Narcotics Regional Office (NARCOM) with office at DPS
Compound, Baguio City, received a confidential information
from Roger Imasa that a certain Gatudan of La Trinidad,
Benguet, was engaged in the sale of marijuana. He was
allegedly looking for buyers. Police Senior Inspector Rodolfo
Castel formed a team for the possible arrest of Gatudan. SPO1
Danilo Natividad was designated as poseur buyer with SPO1
Pedro Rabago and PO2 Emerson Lingbawan as back-up. SPO1
Natividad was given the boodle money.
"Later in the morning of the same day, SPO1 Natividad and
Imasa were able to locate Gatudan at the Universal Martial Arts
Gym along Zandueta Street, Baguio City. Imasa introduced
SPO1 Natividad to Gatudan as a friend and a drug user. After a
brief conversation, Gatudan agreed to sell to SPO1 Natividad all
of his available marijuana, about 20 kilos in all, at ₱1,000.00 per
kilo. They agreed to meet at five in the afternoon in front of
Jollibee at the Session Road. The buy-bust team was alerted
and briefed.
"About 4:30 in the afternoon of the same day, Imasa, SPO1
Natividad, SPO1 Rabago and PO2 Lingbawan proceeded to
Jollibee Session Road on board a taxi. SPO1 Rabago and PO2
Lingbawan positioned themselves in the vicinity while SPO1
Natividad proceeded to wait in front of Jollibee.
"Not long after, Gatudan alighted from a Tamaraw FX Taxi. His
companion, co-accused Aliong, remained inside the taxi with
the cigarette box marked Philip Morris at the back
compartment of the taxi. After seeing Gatudan, SPO1 Natividad
approached him and inquired about the deal. Gatudan told him
that the stuff was ready and opened the [back] compartment
of the taxi. He noticed the plastic straw and opened the
cigarette box containing the marijuana bricks. After confirming
the contents, SPO1 Natividad gave the pre-arranged signal by
removing his bull cap.
"SPO1 Rabago and PO2 Lingbawan rushed to the scene. After
identifying themselves as police officers, they arrested Balag-
ey and Aliong. They (Balag-ey and Aliong) were informed of
their constitutional rights. The box was confiscated and SPO1
Natividad put his initials on it for identification. They were
brought to the NARCOM office in the same Tamaraw FX taxi
driven by Vicente Garbo.
"At the NARCOM office, they issued a receipt of the property
seized, prepared the booking sheet and arrest report of
Gatudan. SPO1 Natividad executed his Affidavit regarding the
buy-bust and arrest of Gatudan and Aliong as well as the Joint
Affidavit of the back-up team.
"Preliminary findings of Alma Margarita Villaseñor, forensic
chemist of the PNP Crime Laboratory in Camp Bado Dangwa, La
Trinidad, Benguet, found the bricks to be positive for
marijuana. A more detailed laboratory examination embodied
in Chemistry Report No. D-011-98 confirmed the findings about
the 20 bricks of marijuana with a total weight of 18,352.82
grams."9 (Citations omitted)
Version of the Defense
Vehemently denying that he was arrested during the alleged buy-bust
operation, Appellant Balag-ey states his version of the facts in this
manner:
"x x x [Balag-ey] was surprised when policemen in civilian
[clothes] suddenly arrested him at around 5:00 p.m. of
September 28, 1998, at the Universal Martial Arts Gym. The
policemen immediately handcuffed him, and brought him to
the NARCOM office. Upon [his] arrival at the NARCOM office,
he saw Roger Imasa and accused-appellant Edwin Aliong in
handcuffs.
"The NARCOM agents interrogated him and insisted that he
divulge the name of the supplier of marijuana from Sagada.
Accused Balag-ey retorted that he had no knowledge of the
matters being asked of him and that he was merely a student
at the Universal Martial Arts Gym. However, the NARCOM
agents persisted and continued to inquire for the identity of the
alleged supplier of the marijuana. He was even threatened that
he will rot in jail, if he failed to disclose the identity of the
marijuana supplier. During his custody, accused Balag-ey was
259
never informed of his constitutional rights and he was not
provided with any counsel."10
Page
For his part, Appellant Aliong narrates the facts in this wise:
"1. [Aliong] is a martial arts instructor teaching kick boxing, introduced himself as a police officer went inside and sat down. With regard to Aliong, the RTC held that he, together with Balag-ey, had
combat aikido, boxing, among others at his gym at No. 49-B, He was told to sit at the front seat. About 4 men who loaded a cigarette box containing marijuana in a taxi, brought it to
Zandueta Street, Baguio City. His gym is known as the Universal introduced themselves as police officers went near the taxi; Jollibee-Session Road, and delivered it to the poseur-buyer. Thus, the trial
Martial Arts Organization; court brushed aside the claim of Aliong that he had no knowledge of
"11. After the men who introduced themselves as police Balag-ey’s marijuana transaction.
"2. He knows one Roger Imasa, a known asset of the x x x officers came inside the taxi, Roger Imasa was nowhere to be
NARCOM, his kumpadre and one of the Martial Arts instructors found. Then they proceeded to the NARCOM Office at DPS Hence, this appeal.12
at the Universal Martial Arts Organization; Compound, where someone -- later to be identified as Police
Officer Lingbawan -- asked his companions[:] ‘Kumusta?’ (How The Issues
"3. Likewise, he knows his co-accused, Gatudan Balag-ey. is it?), to which one of his companions answered. ‘Palpak’ (It
Gatudan Balag-ey is his friend way back during the 1980’s; was a failure). The one who answered ‘it was a failure’ was the
Appellant Balag-ey raises the following supposed errors for our
alleged poseur buyer, Police Officer Natividad;
consideration:
"4. Sometime in 1997 and again in 1998, Gatudan Balag-ey
visited him at his gym. Considering that they are friends, he "12. He was thereafter told to ‘just relax.’ Police officer
"I
allowed Gatudan to practice in his gym; Lingbawan then convinced him to testify that Gatudan Balag-
ey was with him inside the taxi. Thereafter, Officer Lingbawan
convinced him that if he would cooperate, he will become an The trial court erred in giving full weight and credence to the
"5. One time, x x x Gatudan Balag-ey asked him if he would like testimonies of the arresting officers despite glaring
asset and that if he refuses to cooperate, he will be implicated
to have money. He asked how and Gatudan said that he knew inconsistencies and improbabilities.
just the same. Thus, he agreed to become an asset and [he said]
of somebody who was looking for a buyer of marijuana.
that ‘Gatudan Balag-ey was with him inside the taxi.’ For this
reason, he was made to sign [an] Affidavit. Incidentally, it was "II
"6. He then told Gatudan that he hates that kind of job. He even the NARCOM officers who prepared the said affidavit and they
advised Gatudan to avoid that kind of job because that is merely told him to sign the same; The trial court erred in finding that the guilt of Accused-
difficult;
appellant Gatudan Balag-ey for the crime charged has been
"13. For the record, he never saw the contents of the box and proven beyond reasonable doubt."13
"7. He mentioned his conversation to his friend, Roger Imasa, it was only at the NARCOM Office that he was informed of its
the NARCOM asset. Roger then told him that if he likes, they contents; Appellant Aliong, on the other hand, alleges the following errors:
would cause the arrest of Gatudan;
"14. He was then made to stay at the NARCOM Office. The next "I
"8. Roger Imasa then told him to introduce him to Gatudan. day, September 29, 1998, he was released. And he was released
Roger told him that he introduced him as someone who knows because he was totally innocent of the transaction between
a buyer. Thereafter, he introduced Roger Imasa to Gatudan Gatudan Balag-ey, the ‘CI’ Roger Imasa and the alleged poseur Whether or not the honorable trial court was correct in
Balag-ey and when the two were introduced, they talked to buyer, Police Officer Danilo Natividad."11 (Citations omitted) convicting the accused despite the conflicting testimonies of
each other; the prosecution witnesses. The police officers testified that
accused and Gatudan Balag-ey rode together in the FX taxi
Ruling of the Trial Court while the alleged driver testified that it was herein Accused-
"9. In the afternoon of September 28, 1998, Roger Imasa, the
appellant Aliong and another person who rode in the said FX
NARCOM [a]sset, convinced him to tell Gatudan to go
Disregarding the defenses proffered by appellants, the trial court ruled Taxi.
somewhere. Gatudan refused. He and Roger Imasa then went
that they had been caught, in flagrante delicto, selling or delivering 20
to the Hangar Market. Roger then went out and when he came
bricks of marijuana weighing 18,352.82 grams to the poseur-buyer -- "II
back, he was carrying one [carton box]. He never saw the
SPO1 Natividad.
contents of the [carton];
Whether or not the honorable trial court is correct in convicting
In the case of Balag-ey, the court a quo found it difficult to believe that the accused despite the testimonies of the police officers that
"10. Roger then loaded the [carton] in an [FX] Taxi. [Thereafter,]

260
police operatives would plant evidence against him. It also discredited his herein accused-appellant has no knowledge of the alleged buy-
Roger told the taxi driver to bring them to the DPS Compound.
claim that he had been arrested at the Universal Martial Arts Gym along bust operation. The testimonies of the police officers [show]
However, they dropped by at the Jollibee Session Road. Roger
Zandueta Street, rather than at a Jollibee fast-food restaurant chain along that it was the accused, Gatudan Balag-ey, who owned the
then went out of the taxi and then told him to wait. Thus, he

Page
Session Road ("Jollibee-Session Road"). marijuana delivered to the alleged poseur-buyer, Danilo
just sat down inside the F[X] Taxi. After 5 minutes, a man who
 Natividad. Thus, it is incorrect for the honorable trial court to
hold herein Accused-appellant Aliong in conspiracy with
Gatudan Balag-ey.
"III
Considering the peculiar facts obtaining in the case at bar,
whether or not the honorable trial court is correct in convicting
the accused appellant despite the fact that the alleged
cooperating individual (‘CI’), Roger Imasa, was not presented as
a witness.
"IV
Whether or not the honorable trial court is correct in convicting
the accused despite clear and hard evidence that no buy-bust
operation was actually conducted as shown by the fact that no
money changed hands between the alleged poseur buyer and
the accused, Gatudan Balag-ey. This is further shown by the
fact that no ‘marked money’ was produced and marked in court
as evidence."14
In short, appellants question (1) the credibility of the prosecution
witnesses, (2) the sufficiency of the prosecution evidence, and (3) the
existence of the buy-bust operation.
The Court’s Ruling
The appeal is meritorious.
First Issue:
Credibility of the Prosecution Witnesses
Appellant Balag-ey impugns the veracity of the testimonies of the
arresting officers that he was caught in the act of selling marijuana at
Jollibee-Session Road. He maintains that he was arrested at the Universal
Martial Arts Gym located on Zandueta Street.
As a rule, the trial court’s findings of fact and conclusions on the
credibility of witnesses are accorded high respect 15and due
weight,16 unless it has overlooked material and relevant points that
would have led it to rule otherwise. In the present case, however, the RTC
committed glaring factual oversights that impel us to depart from this
general doctrine.17
The witnesses of Balag-ey -- Diosdado Mapala18 and Angie Liza
Ladiwan19 -- testified that on the afternoon of September 28, 1998, they
saw appellant in handcuffs, being led by police officers downstairs at the
Universal Martial Arts Gym. Hence, they had the impression that he was
arrested there. Nonetheless, the trial court ruled that their testimonies
were consistent with the fact that the arresting officers had brought
appellant to the gym after his arrest in this wise:
"Seventh, the testimonies of Diosdado Mapala and Angie Liza
Ladiwan cannot be given weight by the court to show that
Gatudan was arrested at the Universal Martial Arts Gym at
Zandueta Street.
"Diosdado Mapala was not inside the Universal Martial Arts
Gym at that time and so he could not say what happened inside
the said Gym [or] if Gatudan was really arrested there. Mapala
himself said that he was outside the Gym in front of a certain
grocery and was crossing the road when he noticed Gatudan in
handcuffs being accompanied by male persons coming from
the direction of Universal Martial Arts Gym.
"This does not establish [with] certainty that Gatudan was
arrested inside the Universal Martial Arts Gym, [b]ecause it
could happen that Gatudan was arrested in Jollibee Session
Road and then brought back to the Universal Martial Arts by the
police and when he was coming out that was the time and
occasion when Diosdado Mapala saw Gatudan in
handcuffs."20 (Italics supplied)
There is no evidence on record, however, that the arresting officers did
bring Balag-ey to the gym after his arrest. Quite the contrary, SPO1
Natividad categorically averred that Gatudan had not been brought to
the Universal Martial Arts Gym at any time after his alleged arrest. The
police officer testified on direct examination as follows:
"Prosecutor Vergara [to SPO1 Natividad]:
Q Aside from physical examination, did you bring him anywhere
else?
A No more, sir.
Q He was not brought back to the gymnasium, Mr. Witness.
A No sir."21 (Italics supplied)
Moreover, Garbo, the taxi driver, categorically said that when his taxi was
hailed on the afternoon of September 28, 1998, Balag-ey was not Aliong’s
companion. Garbo likewise testified that the police officers had not gone
to the Universal Martial Arts Gym after that incident. Pertinent portions
of his testimony are herein quoted:
"[Atty. Molintas:]
Q You mean you do not know the identity of the person who
was with Aliong at that time he was arrested?
A No sir.
Q You cannot describe him to be a short person who is with
dark complexion?
A Somewhat dark and short, sir.
Q When Edwin Aliong was arrested in Session [R]oad, was this
companion of his not brought to the NARCOM office?
A No sir.
Q Do you know where he went after Aliong was arrested?
A No sir.
Q Aside from the NARCOM officers and Edwin Aliong whom
they brought to the NARCOM office, were there other
companions of the NARCOM officers who followed you in
another vehicle towards the NARCOM office?
A None, sir.
Q You said you went to Hilltop with the NARCOM officers. From
the Hilltop where you went, have you seen this Universal
Martial Arts Gym?
A No x x x, sir.
261
Q Anyway, the NARCOM officers told you to wait and after
some time, they came back, is that your testimony?
Page
A Yes sir.
Q When they came back and boarded your vehicle, they have
another person or they arrested another person, is that
correct?
A I did not notice, sir.
Q This person you mentioned a while ago who identified himself
as Gatudan Balag-ey, you said that you saw him at the Fiscal’s
Office when you were investigated, would that be correct?
A Yes sir.
Q That was the first time you saw him, would that be correct?
A Yes sir.
Q You did not see him at that time of the arrest of Edwin Aliong?
A Inside the taxi sir, no sir.
Q You mean when Edwin Aliong was arrested, Gatudan Balag-
ey was not inside the taxicab?
A No x x x, sir.
Q And in fact, Gatudan Balag-ey could not be the companion of
Edwin Aliong because Gatudan Balag-ey is quite tall and fair in
complexion while the companion of Edwin Aliong was quite
dark and short, would that be correct?
A Yes sir.
COURT:
The court would like to be clear on that. You are telling this
court then that the two persons who boarded that box in your
taxi, one of whom was Aliong but the other is not Balag-ey, is
that what you are telling the Court?
A No, sir. But his features, it is not like him.
COURT:
Continue
Atty. Molintas:
Q In fact, you testified on this matter before Fiscal Vergara
when you were investigated in his office, would that be
correct?
A Yes sir.
Q Could you tell the Court who prepared that Affidavit which
you identified earlier as your Affidavit?
A It was prepared at the NARCOM office.
Q After they prepared that, they released you on the same date
on September 28, 1998, would that be correct?
A Yes sir.
Q In other words, you were made to sleep at the NARCOM
office on September 28, 1998?
A I did not sleep there, sir.
Q So where did you sleep on the night of September 28, 1998?
A In our house, sir.
Q At the NARCOM office, you said earlier that you never met
Gatudan Balag-ey, would that be correct?
A Yes sir.
Q In your Affidavit, a name Gatudan Balag-ey was indicated, do
you know who included this name Gatudan in your Affidavit?
A The person who investigated me whose name I do not know
wrote that, sir.
Q Because the truth is, you never knew Gatudan Balag-ey and
you never met him on September 28, 1998, correct?
A Yes sir."22
xxxxxxxxx
"[Atty. Dumawing:]
Q So the 6th paragraph of your Affidavit which states and I
quote, ‘That when we arrived in front of Jollibee, one male
alighted from the taxi and proceeded inside the Jollibee and
when they returned he has already one male companion and
they went near my taxi and his (Gatudan) male companion
checked the contents of the box and later announced that he is
a Narcotics agent until other members of the Narcotics agents
arrived and arrested my passengers and proceeded to
Narcotics Office at DPS Compound, Baguio City x x x’ is not
entirely correct, is it not, Mr. Witness?
A Yes sir because when I was relating, they were typing it.
COURT:
Q Now, the Court wants to be very clear on that, so that there
will be no mistakes about it. You are telling us then that it was
not Gatudan Balag-ey who alighted from your taxi, then came
back with another companion to check the contents of the box
in the taxi?
A No sir."23
Even Aliong said in his testimony that for fear of being implicated, he was
forced to declare that Balag-ey had been arrested with him at Jollibee-
Session Road. He testified thus:
"[Atty. Dumawing:]
Q So, after you arrived at the NARCOM Office at the DPS
Compound, what happened, if any?
A They told me, ‘Edwin, just relax.’ Then they talked to each
other.
Q Do you know what they were talking about?
A No, sir, because I went out.
262
Q What happened after that?
A After they talked, Li[ng]bawan called me.
Page
Q Do you remember for how long they were talking?
A About more than 5 minutes, sir.
Q And where were you during all these 5 minutes that they
were talking?
A I was outside, sir.
Q Outside of…?
A Outside of the NARCOM office, sir.
Q So, when this Li[ng]bawan finally called you, what did he tell
you, if any?
A Li[ng]bawan was convincing me to testify that Gatudan Balag-
ey was with me inside the taxi.
Q What did you say to his proposal, Mr. Witness?
A I refused because I told him Gatudan Balag-ey was not my
companion.
Q What was the response of Li[ng]bawan when you refused?
A He talked to me and even hit my conscience. He told me to
think it over because I should think of the number of persons
who could be destroyed by that box of marijuana, that it might
include my children or even my relatives. And he told me that
it was already confirmed that Gatudan Balag-ey is a pusher and
he asked me to cooperate.
Q What else did he tell you, if any, in order to convince you?
A He told me that if I cooperate, I will be officially included as
an asset.
Q What else?
A No more, sir.
Q He did not threaten you?
A He told me that if I don’t cooperate, I will be implicated just A What I know is it was Li[ng]bawan who prepared it because
the same. he was the one talking to me and he was the one who showed
it to me.
Q So, what was your response to Li[ng]bawan when he said
that? Q Did you understand all the contents of this [A]ffidavit of
yours?
A I told him that Gatudan Balag-ey might take revenge against
me. A No sir, only the first part.
Q When you told that to Li[ng]bawan, what did he say, if any? Q What particular part of this [A]ffidavit did you understand,
Mr. Witness?
A He told me not to worry because they will take care of me.
A Only that portion which says that Gatudan Balag-ey was with
Q So, what followed next, Mr. Witness? me inside the taxi. And when I saw that, I did not mind the rest
anymore.
A When he told me that, I agreed to be an asset [and] to say
that Gatudan Balag-ey was with me inside the taxi. Q By the way, what is your highest educational attainment, Mr.
Witness?
Q Why did you finally agree to testify falsely against Gatudan
Balag-ey? A Second year high school, sir.
PROS. VERGARA: Q Now, Mr. Witness, are the contents of this [A]ffidavit true as
far as you know?
Already answered.
A No, sir.
COURT:
Q Now, Mr. Witness, despite knowing that the contents of this
[A]ffidavit are not true, why did you sign it?
May answer.
A Because the NARCOM officer told me that if I will not sign it, I
WITNESS:
will be implicated.
A Because Li[ng]bawan told me that Gatudan Balag-ey is a
COURT: (to witness)
confirmed pusher. So, because as I said I hate that kind of
activity, I agreed.
Q Did you realize that by your testimony now you have actually
implicated yourself because in your testimony you are the one
Q Mr. Witness, you executed an [a]ffidavit earlier marked by
who brought the box of marijuana to Jollibee Restaurant in that
the prosecution as Exhibit ‘H.’ Who prepared this [A]ffidavit?
taxi?
A The NARCOM officers, sir.
A What I agreed with Roger Imasa was to bring that carton of
marijuana to the NARCOM office, sir.
263
Q Who particularly among the NARCOM officers?
COURT:
Page
Continue.
 ATTY. DUMAWING:
Q Mr. Witness, have you seen the contents of that box?
A No, sir.
Q Did you ever personally hold that box?
A No, sir.
Q Now, Mr. Witness, you finally agreed to testify against
Gatudan Balag-ey. What did Li[ng]bawan do, if any, after that?
A He told me to call up the gym and inform them that a
NARCOM officer will go to the gym and that they should show
that officer who Gatudan is.
Q What did you do after that?
A I called my wife by phone and relayed to her what
Li[ng]bawan told me, that when they arrive at the gym they will
point Gatudan to them.
Q So, after you called your gym, as instructed by Li[ng]bawan,
what did the NARCOM people do, if any?
A I told Lingbawan that I made a call. After that, they talked for
a while and then they left.
Q Do you know where they proceeded to?
A What I know is they proceeded to the gym because that is
where they asked me to make a call.
Q So, what happened after they left?
A After 30 minutes, they came back with Gatudan Balag-ey,
sir."24 (Italics supplied)
Because of the vacillating statements of Aliong, the trial court regarded
his testimony as dubious and highly suspect. Still, it should not have been
dismissed outright, as he had been able to give an adequate explanation
for his testimonial change. Besides, he had nothing to gain from testifying
that Balag-ey had not been with him during the alleged buy-bust
operation.
The foregoing points show the lack of credibility of the prosecution’s A Yes sir.
claim that Balag-ey was arrested while in the act of selling marijuana at
Jollibee-Session Road. Q And despite that, you did not provide him any lawyer?
Balag-ey also protests the denial of his right to counsel during his A No more sir.
custodial investigation. Section 12 of Article III of the Constitution
provides that any person under custodial investigation for the
Q In fact you have a very big Memorandum in your office
commission of an offense should have a right to independent and
regarding Republic Act 7438?
competent counsel at every phase of the investigation -- from its
inception to its end.25
A Yes sir.
Both PO1 Natividad and PO3 Emerson Lingbawan affirmed that Balag-ey
had not been assisted by counsel at any stage of the investigation. During Q And you allowed Garbo to get in touch with a lawyer and
cross-examination, they testified as follows: submit an affidavit and in fact you did not recommend that he
be prosecuted?
"Atty. Molintas [to PO1 Natividad]:
A Because he gave a voluntary affidavit that is why when the
investigator took it after reading the affidavit he conferred with
Q How about Gatudan, did you provide him [with] a lawyer at
his own lawyer.
that time?
Q And that affidavit was prepared by your investigator?
A We did not provide him because he did not give his affidavit
or any confessional statement?
A Yes sir.
Q Is that your procedure? You only get a lawyer to assist him if
you intend to get his confession? Q And likewise you did not recommend the prosecution of
Aliong because he also gave his affidavit?
A Yes sir.
A Yes sir."26
Q You do not provide him a counsel so that …
xxx xxx xxx
A We apprised [him of] his constitutional rights but …
"Atty. Dumawing [to PO3 Lingbawan]:
Q Yes. The question is -- you do not find it necessary or you do
Q Between 5:00, a little past 5:00 and until the afternoon of
not know that the law require[s] that you provide him a lawyer?
September 29, 1998, these two accused were under your
custody?
A But he did not require any lawyer.
A Yes sir.
Q Maybe you did not ask him to give any but do you know that
the law requires you as a detaining officer to provide him a
lawyer? Q And while they were under your custody they were not
assisted by counsel?
264
A Yes, your Honor, we told him but …
A None sir.
Page
Q The question is, do you know that you are required to provide
him a lawyer immediately after his arrest?
 Q Notwithstanding the fact that you informed them of their
constitutional rights?
A We only informed their relatives sir."27
The violation of Balag-ey’s right to counsel during his custodial
investigation excludes, from the ambit of the trial court’s evidence, his
alleged extrajudicial admission that he was the owner of the seized
marijuana.28
Second Issue: Sufficiency of Prosecution Evidence
Balag-ey and Aliong were charged with violation of Section 4 in relation
to Section 21 of RA 6425, as amended by RA 765929 -- an offense they
allegedly committed by "conspiring, confederating and mutually aiding
each other, without any authority of law, [and by] hav[ing] in their
possession and attempt[ing] to sell twenty (20) bricks of dried marijuana
leaves/fruiting tops, a prohibited drug x x x."
The aforementioned Section 4 penalizes "any person who, unless
authorized by law, shall sell, administer, deliver, give away to another,
distribute, dispatch in transit or transport any prohibited drug, or shall
act as a broker in any of such transactions." This provision is violated by
the commission of any of the acts specified therein or a combination
thereof.30 Moreover, the prevailing doctrine is that "possession of
prohibited drugs" is a necessary element in the offense of selling them,
except where the seller is also found in possession of another quantity of
prohibited drugs not covered by or included in the sale and which are
probably intended for some future dealings or use by the seller.31
On the other hand, the aforecited Section 21 punishes an attempt or a
conspiracy, among others, in the "[s]ale, administration, delivery,
distribution and transportation of dangerous drugs." This is one of the
few instances when the law specifically punishes mere conspiracy. 32
Having charged the accused with conspiracy, it was incumbent upon the
prosecution to prove that Balag-ey and Aliong had come to an agreement
concerning the possession and the sale of marijuana and had decided to
execute the agreement.33
Furthermore, in a prosecution for the sale of dangerous drugs, it is
material and indispensable (1) to prove that the accused sold and
delivered the prohibited drug to another, as well as to present in court
the corpus delicti as evidence; and (2) to prove that the accused knew
that what was sold and delivered was a dangerous drug.34 The attempt
to sell the drugs may be established by overt acts showing that the Q The question is, during the negotiation the first time you went
accused knowingly commenced the commission of the crime. 35 to the Universal Martial Arts [Gym], the truth is, he was not
there?
The flaws and the insufficiency of the evidence against Balag-ey have
been discussed earlier. We shall now take up the sufficiency of the A He was not there sir.
evidence against Aliong.
Q You only saw him at Session Road?
Aliong was not identified by the entrapping police officers as one of those
who had offered to sell marijuana to SPO1 Natividad. It was neither A Yes sir.
alleged nor established that the two had been in contact prior to the
supposed buy-bust operation. It was not shown that the former had, at
Q Inside the taxicab?
any time, known that the contents of the Philip Morris cigarette box were
prohibited drugs. It was not he, but his companion, who loaded the box
A Inside the taxicab sir.
into the baggage compartment of the taxi,36 according to the testimony
of Garbo, the taxi driver. As to who the companion of Aliong had been
was not adequately proven. When the testimonies of the latter and of Q When you met Gatudan at Session Road, did Aliong alight
Prosecution Witness Garbo are taken together, it becomes reasonably from the taxicab?
doubtful that the companion referred to was Balag-ey.
A No sir.
Hence, except for the fact that Aliong was on board the taxi from where
the box of marijuana was seized, and that he was the one who paid extra Q Did you ask the taxi driver who paid the taxi fare at that time?
fare to the driver while they waited for the return of the former’s
companion, there is no evidence that Aliong conspired with Balag-ey and
A No sir.
attempted to sell the prohibited drugs. The rule is settled that, without
any other evidence, mere presence at the scene of the crime is not by
Q Until now you do not know?
itself sufficient to establish conspiracy.37
After questioning Aliong, even the entrapping police officers initially A Yes sir.
cleared him of complicity. Indeed, they found no reason to indict him
together with Balag-ey in the original Information.38 SPO1 Natividad, in Q So, what we are made to understand is, after doing your part
particular, testified as follows: as poseur-buyer, you did not participate anymore in the
investigation of the case?
"Atty. Molintas (to PO1 Natividad):
A I assisted the investigator when we inventoried the marijuana
Q About Aliong, when was he released? sir.
A He spent the night in our office and then he was released Q That’s it[?] Nothing more?
after the investigator said that he has no knowledge of the
marijuana. A Nothing more sir. The investigation and the documentation,
I did not participate [therein] anymore.
Q Your investigator says that he has no knowledge but this time
you are the poseur-buyer. What was the participation of Aliong Q [Do you] suggest, Mr. Witness that the person you actually
265
when the negotiation was being made? met at the Universal Martial Arts Gym and [with whom you]
negotiated about the [sale] of marijuana was a certain Edwin
A According to Aliong, he only accompanied the suspect Aliong?
Page
Gatudan sir.
A No sir, Gatudan.
Q [Do you] also suggest that Gatudan was not there in the
morning?
A He was there sir. The only [one] I knew is Gatudan.
Q [Do you] also suggest, Mr. Witness, that at Session Road, in
front of the Jollibee, the persons riding the taxicab were Roger
[I]masa, Edwin Aliong and Gatudan was not there?
A No sir, Gatudan and Aliong."39
xxx xxx xxx
"Atty. Dumawing [to SPO1 Natividad]:
Q Now, Mr. Witness, is it not a fact that before you conduct a
buy-bust operation you subject the person or a suspect to
surveillance?
A Yes, sir.
Q And in this particular case, Mr. Witness, you never subjected
accused Edwin Aliong to surveillance?
A No, sir.
Q You also know what they call an Order of Battle. Will you tell
the Honorable Court what that is?
A It is a NARCOM watch list of persons who are engaged in the
traffic of drugs.
Q And is it not a fact that the name of Edwin Aliong does not
appear in your Order of Battle?
A Yes, sir.
Q Mr. Witness, when this case was filed by your office with the
Prosecutor’s Office, you only charged Gatudan Balag-ey?
A Yes, sir.
Q You did not initially includ[e] Edwin Aliong?
A Yes, sir, because to our knowledge, after the investigation
was finished in our office, Roger Imasa revealed to us that
Edwin Aliong is his sub-agent.
Q So that is the reason why you did not include him initially in
the charge, is it not?
A That is one reason, sir."40 (Italics supplied)
The above admissions, taken together with the acts of Aliong -- prior to,
contemporaneous with, and subsequent to his arrest -- fail to establish
any conspiracy.
Even the charge of illegal possession of prohibited drugs was not
established beyond reasonable doubt. The elements of this offense are
the following: (1) the accused is in possession of an item or object, which
is identified to be a prohibited drug; (2) such possession is not authorized
by law; and (3) the accused freely and consciously possessed the
drug.41 Admittedly, the third requisite was not convincingly established
by the prosecution.
In view of the lapses in the prosecution’s case, the quantum of evidence
needed to convict Aliong and Balag-ey -- proof beyond reasonable doubt
-- has not been adequately established by the prosecution. Our minds
cannot rest easy on their supposed guilt. We reiterate the conventional
wisdom that it is better to free ten guilty persons than to convict an
innocent one.42
Third Issue:
Buy-Bust Operation
Both appellants argue that no buy-bust operation took place on
September 28, 1998, as shown by the inability of the prosecution to
present in court the alleged police informant and the marked money.
Likewise, they point out that even the prosecution’s witnesses testified
that money had not changed hands during the alleged transaction.
Well-established is the rule that the presentation of a confidential
informant in a buy-bust operation is not always required,43 especially
when the sale was actually witnessed and adequately proved by other
prosecution witnesses.44 This rule admits of exceptions, however, as
when the appellant vehemently denies selling prohibited drugs; and
when there are material inconsistencies in the testimonies of the
arresting officers.45
For like reason, the presentation of the buy-bust money46 and proof of its
actual payment47 -- pieces of evidence that are otherwise not
indispensable -- become necessary if the constitutional presumption of
innocence is to be overcome. In the present case, the material
inconsistencies in the testimonies of the prosecution witness and the
non-presentation of the buy-bust money raise reasonable doubts about
the occurrence of a buy-bust operation.
The unrelenting drive against illegal drugs is indeed commendable. Those
who engage in the illicit trade of marijuana and who prey on the
misguided members of society must be caught and prosecuted properly.
While courts are committed to assist the government in its campaign
against illegal drugs, a conviction under the Dangerous Drugs Law will
prosper only after the prosecution discharges its constitutional burden to
prove guilt beyond reasonable doubt. Otherwise, this Court is likewise
duty-bound to uphold the constitutional presumption of innocence.
WHEREFORE, the appeal is GRANTED, and the assailed
Decision REVERSED. Appellants Gatudan Balag-ey and Edwin Aliong y
Sungot are hereby ACQUITTED on reasonable doubt.
Let them be immediately released from their place of confinement,
unless there is any other legal or valid cause to detain them further. The
director of the Bureau of Corrections shall report to this Court, within ten
(10) days from notice of this judgment, on his action in obedience to this
directive. No costs.
SO ORDERED.
Davide, Jr., Ynares-Santiago, Carpio, and Azcuna, JJ., concur.
(6) G.R. No. 191366 December 13, 2010
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
ARNOLD MARTINEZ Y NGELES, EDGAR DIZON Y FERRER, REZIN
MARTINEZ Y CAROLINO, and RAFAEL GONZALES Y CUNANAN, Accused-
266
Appellants.
Page
DECISION
MENDOZA, J.:
This is an appeal from the August 7, 2009 Decision1 of the Court of
Appeals (CA), in CA-G.R. HC-NO. 03269, which affirmed the February 13,
2008 Decision2 of the Regional Trial Court, Branch 41, Dagupan
City (RTC), in Criminal Case No. 2006-0525-D, finding the accused guilty
of violating Section 13, in relation to Section 11, Article II of Republic Act
No. 9165 for Possession of Dangerous Drugs During Parties, Social
Gatherings or Meetings.
The Facts
The Information indicting the accused reads:
That on or about the 2nd day of September 2006, in the City of Dagupan,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, ARNOLD MARTINEZ y ANGELES, EDGAR DIZON y
FERRER, REZIN MARTINEZ y CAROLINO, ROLAND DORIA y DIAZ and
RAFAEL GONZALES y CUNANAN, without authority of law, confederating
together, acting jointly and helping one another, did then and there
wilfully, unlawfully and criminally, sniff and possess dangerous drugs
(shabu residues) contained in empty plastic sachets and rolled aluminum
foil, during a party, or at a social gathering or meeting, or in the proximate
company of at least two (2) person[s].
Contrary to Section 13, Article II, R.A. 9165.3
Version of the Prosecution
As culled from the testimonies of prosecution witnesses, Police Officer 1
Bernard Azardon (PO1 Azardon), one of the apprehending officers, and
Police Inspector Lady Ellen Maranion (P/Insp. Maranion), the forensic
chemical officer, it appears that on September 2, 2006, at around 12:45
o’clock in the afternoon, PO1 Azardon was on duty at the Police
Community Precinct II along Arellano Street, Dagupan City, when a
concerned citizen entered the precinct and reported that a pot session
was going on in the house of accused Rafael Gonzales (Gonzales) in
Trinidad Subdivision, Dagupan City. Upon receipt of the report, PO1
Azardon, PO1 Alejandro Dela Cruz (PO1 Dela Cruz), and members of the
Special Weapons and Tactics (SWAT) team hied to Trinidad Subdivision,
Dagupan City. Upon inquiry from people in the area, the house of
Gonzales was located.
As the police officers entered the gate of the house, they saw accused
Orlando Doria (Doria) coming out of the side door and immediately
arrested him. Inside the house, they saw accused Gonzales, Arnold
Martinez (A. Martinez), Edgar Dizon (Dizon), and Rezin Martinez (R.
Martinez) in a room. The four were surprised by the presence of the
police. In front of them were open plastic sachets (containing shabu
residue), pieces of rolled used aluminum foil and pieces of used
aluminum foil.
The accused were arrested and brought to the police precinct. The items
found in the room were seized and turned over to the Pangasinan
Provincial Police Crime Laboratory Officer, P/Insp. Maranion. The latter
conducted a laboratory examination on the seized items and all 115
plastic sachets, 11 pieces of rolled used aluminum foil, and 27 of the 49
pieces of used aluminum foil tested positive for methamphetamine
hydrochloride. The accused were subjected to a drug test and, except for
Doria, they were found to be positive for methamphetamine
hydrochloride.
Version of the Defense
The defense, through its witnesses, accused A. Martinez, Dizon, and R.
Martinez, claimed that in the morning of September 2, 2006, the three of
them were along Arellano Street in Trinidad Subdivision, Dagupan City, to
meet with a certain Apper who bumped the passenger jeep of R. Martinez
and who was to give the materials for the painting of said jeep. As they
were going around the subdivision looking for Apper, they saw Gonzales
in front of his house and asked him if he noticed a person pass by. While
they were talking, Doria arrived. It was then that five to seven policemen
emerged and apprehended them. They were handcuffed and brought to
the police station in Perez, Dagupan City, where they were incarcerated
and charged with sniffing shabu.
The Ruling of the RTC
The case against Doria was dismissed on a demurrer to evidence.
On February 13, 2008, the RTC rendered its decision, the dispositve
portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered finding
accused ARNOLD MARTINEZ y Angeles, EDGAR DIZON y Ferrer, REZIN
MARTINEZ y Carolino, and RAFAEL GONZALES y Cunanan GUILTY beyond
reasonable doubt of the crime of Possession of Dangerous Drugs During
Parties, Social Gatherings or Meetings defined and penalized under
Section 13 in relation to Section 11, Article II of Republic Act 9165, and
each of them is sentenced to suffer the penalty of life imprisonment and
to pay the fine in the amount of P500,000.00, and to pay the cost of suit.
The subject items are hereby forfeited in favor of the government and to
be disposed of in accordance with the law.
SO ORDERED.4
The RTC was of the view that the positive testimony of prosecution
witness PO1 Azardon, without any showing of ill-motive on his part,
prevailed over the defenses of denial and alibi put up by the accused. The
accused were held to have been in constructive possession of the subject
items. A conspiracy was also found present as there was a common
purpose to possess the dangerous drug.
The Ruling of the CA
The CA ruled that there was sufficient evidence to support the findings of
the RTC as to the constructive possession of the dangerous drugs by the
accused. It further held that although the procedure regarding the
custody and disposition of evidence prescribed by Section 21 of R.A. No.
9165 was not strictly complied with, the integrity and evidentiary value
of the evidence were nonetheless safeguarded. The CA was of the view
that the presumption of regularity in the performance of official duty was
not sufficiently controverted by the accused.
Not in conformity, the accused now interposes this appeal before this
Court praying for the reversal of the subject decision, presenting the
following
Assignment of Errors
For accused Arnold Martinez, Edgar Dizon and Rezin Martinez
1. The lower court erred in finding the accused-appellants to
be having a pot session at the time of their arrest;
2. The lower court erred in not seeing through the antics of
the police to plant the shabu paraphernalia to justify the
arrest of the accused-appellants without warrant;
3. The lower court erred in not finding that the corpus
delicti has not been sufficiently established;
267
4. The lower court erred in not finding the uncorroborated
testimony of PO1 Azardon insufficient to convict the accused-
appellants of the crime charged;
Page
 5. The lower court erred in not acquitting the accused-
appellants.
For accused Rafael Gonzales
I papers, and effects against unreasonable searches and seizures of
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-
APPELLANT DESPITE THE PROSECUTION’S FAILURE TO OVERTHROW THE
CONSTITUTIONAL PRESUMPTION OF INNOCENCE.
II
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-
APPELLANT DESPITE THE PROSECUTION’S FAILURE TO ESTABLISH THE
CHAIN OF CUSTODY OF THE ALLEGED CONFISCATED DRUG.
After an assiduous assessment of the evidentiary records, the Court finds
that the prosecution failed to prove the guilt of the accused. The principal
reasons are 1] that the evidence against the accused are inadmissible;
and 2] that granting the same to be admissible, the chain of custody has
not been duly established.
Illegal Arrest, Search and Seizure
Indeed, the accused is estopped from assailing the legality of his arrest if
he fails to raise such issue before arraignment. 5 However, this waiver is
limited only to the arrest. The legality of an arrest affects only the
jurisdiction of the court over the person of the accused. A waiver of an
illegal warrantless arrest does not carry with it a waiver of the
inadmissibility of evidence seized during the illegal warrantless arrest.6
Although the admissibility of the evidence was not raised as in issue by
the accused, it has been held that this Court has the power to correct any
error, even if unassigned, if such is necessary in arriving at a just
decision,7 especially when the transcendental matter of life and liberty is
at stake.8 While it is true that rules of procedure are intended to promote
rather than frustrate the ends of justice, they nevertheless must not be
met at the expense of substantial justice. Time and again, this Court has
reiterated the doctrine that the rules of procedure are mere tools
intended to facilitate the attainment of justice, rather than frustrate it.
Technicalities should never be used to defeat substantive rights.9 Thus,
despite the procedural lapses of the accused, this Court shall rule on the
admissibility of the evidence in the case at bench. The clear infringement
of the accused’s right to be protected against unreasonable searches and
seizures cannot be ignored.
The State cannot, in a manner contrary to its constitutional guarantee,
intrude into the persons of its citizens as well as into their houses, papers
and effects.10 Sec. 2, Art. III, of the 1987 Constitution provides:
Section 2. - The right of the people to be secure in their persons, houses,
whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things
to be seized.
This constitutional guarantee, however, is not a blanket prohibition
against all searches and seizures without warrant. Arrests and seizures in
the following instances are allowed even in the absence of a warrant —
(i) warrantless search incidental to a lawful arrest;11 (ii) search of
evidence in "plain view;" (iii) search of a moving vehicle; (iv) consented
warrantless search; (v) customs search; (vi) stop and frisk; and (vii)
exigent and emergency circumstances.12
This case would appear to fall under either a warrantless search
incidental to a lawful arrest or a plain view search, both of which require
a lawful arrest in order to be considered valid exceptions to the
constitutional guarantee. Rule 113 of the Revised Rules of Criminal
Procedure provides for the circumstances under which a warrantless
arrest is lawful. Thus:
Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private
person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit
an offense;
(b) When an offense has just been committed and he has
probable cause to believe based on personal knowledge of
facts or circumstances that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is
serving final judgment or is temporarily confined while his case
is pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) above, the person arrested
without a warrant shall be forthwith delivered to the nearest police
station or jail and shall be proceeded against in accordance with section
7 of Rule 112.
A review of the facts reveal that the arrest of the accused was illegal and
the subject items were confiscated as an incident thereof. According to
the testimony of PO1 Azardon and his Joint Affidavit13 with PO1 Dela
Cruz, they proceeded to, and entered, the house of accused Gonzales
based solely on the report of a concerned citizen that a pot session was
going on in said house, to wit:
Q: I go back to the information referred to you by the
informant, did he not tell you how many persons were actually
conducting the pot session?
A: Yes, sir.
Q: When you went to the place of Rafael Gonzales, of course
you were not armed with a search warrant, correct?
A: None, sir.
Q: Before the information was given to you by your alleged
informant, you did not know personally Rafael Gonzales?
A: I have not met [him] yet but I heard his name, sir.
Q: When this informant told you that he was told that there
was [an] ongoing pot session in the house of Rafael Gonzales,
was this report to you placed in the police blotter before you
proceeded to the house of Rafael Gonzales?
A: I think it was no longer recorded, sir.
Q: In other words, you did not even bother to get the personal
data or identity of the person who told you that he was
allegedly informed that there was an ongoing pot session in the
house of Rafael Gonzales?
A: What I know is that he is a jeepney driver of a downtown
268
jeepney but he does not want to be identified because he was
afraid, sir.
Page
Q: And likewise, he did not inform you who told him that there
was an ongoing pot session in the house of Rafael Gonzales?
A: No more, sir.
Q: But upon receiving such report from that jeepney driver you
immediately formed a group and went to the place of Rafael
Gonzales?
A: Yes, sir.
xxx
Q: When you were at the open gate of the premises of Rafael
Gonzales, you could not see what is happening inside the house
of Rafael Gonzales?
A: Yes, sir.
Q: You did not also see the alleged paraphernalia as well as the
plastic sachet of shabu on the table while you were outside the
premises of the property of Rafael Gonzales?
xxx
Q: Before they entered the premises they could not see the
paraphernalia?
COURT: Answer.
A: Of course because they were inside the room, how could we
see them, sir.
Q: But still you entered the premises, only because a certain
person who told you that he was informed by another person
that there was an ongoing pot session going on inside the house
of Rafael Gonzales?
A: Yes, sir.
Q: And that is the only reason why you barged in inside the
house of Rafael Gonzales and you arrested the persons you
saw?
A: Yes, sir.14
Paragraph (c) of Rule 113 is clearly inapplicable to this case. Paragraphs
(a) and (b), on the other hand, may be applicable and both require
probable cause to be present in order for a warrantless arrest to be valid.
Probable cause has been held to signify a reasonable ground of suspicion
supported by circumstances sufficiently strong in themselves to warrant
a cautious man’s belief that the person accused is guilty of the offense
with which he is charged.15
Although this Court has ruled in several dangerous drugs cases16 that
tipped information is sufficient probable cause to effect a warrantless
search,17 such rulings cannot be applied in the case at bench because said
cases involve either a buy-bust operation or drugs in transit, basically,
circumstances other than the sole tip of an informer as basis for the
arrest. None of these drug cases involve police officers entering a house
without warrant to effect arrest and seizure based solely on an informer’s
tip. The case of People v. Bolasa18 is informative on this matter.
In People v. Bolasa, an anonymous caller tipped off the police that a man
and a woman were repacking prohibited drugs at a certain house. The
police immediately proceeded to the house of the suspects. They walked
towards the house accompanied by their informer. When they reached
the house, they peeped inside through a small window and saw a man
and woman repacking marijuana. They then entered the house,
introduced themselves as police officers, confiscated the drug
paraphernalia, and arrested the suspects. This Court ruled:
The manner by which accused-appellants were apprehended does not
fall under any of the above-enumerated categories. Perforce, their arrest
is illegal. First, the arresting officers had no personal knowledge that at
the time of their arrest, accused-appellants had just committed, were
committing, or were about to commit a crime. Second, the arresting
officers had no personal knowledge that a crime was committed nor did
they have any reasonable ground to believe that accused-appellants
committed it. Third, accused-appellants were not prisoners who have
escaped from a penal establishment.
Neither can it be said that the objects were seized in plain view. First,
there was no valid intrusion. As already discussed, accused-appellants
were illegally arrested. Second, the evidence, i.e., the tea bags later on
found to contain marijuana, was not inadvertently discovered. The police
officers intentionally peeped first through the window before they saw
and ascertained the activities of accused-appellants inside the room. In
like manner, the search cannot be categorized as a search of a moving
vehicle, a consented warrantless search, a customs search, or a stop and
frisk; it cannot even fall under exigent and emergency circumstances, for
the evidence at hand is bereft of any such showing.
On the contrary, it indicates that the apprehending officers should have
conducted first a surveillance considering that the identities and address
of the suspected culprits were already ascertained. After conducting the
surveillance and determining the existence of probable cause for
arresting accused-appellants, they should have secured a search warrant
prior to effecting a valid arrest and seizure. The arrest being illegal ab
initio, the accompanying search was likewise illegal. Every evidence thus
obtained during the illegal search cannot be used against accused-
appellants; hence, their acquittal must follow in faithful obeisance to the
fundamental law.19
It has been held that personal knowledge of facts in arrests without
warrant must be based upon probable cause, which means an actual
belief or reasonable grounds of suspicion. The grounds of suspicion are
reasonable when the suspicion, that the person to be arrested is probably
guilty of committing an offense, is based on actual facts, that is,
supported by circumstances sufficiently strong in themselves to create
the probable cause of guilt of the person to be arrested. 20
As to paragraph (a) of Section 5 of Rule 113, the arresting officers had no
personal knowledge that at the time of the arrest, accused had just
committed, were committing, or were about to commit a crime, as they
had no probable cause to enter the house of accused Rafael Gonzales in
order to arrest them. As to paragraph (b), the arresting officers had no
personal knowledge of facts and circumstances that would lead them to
believe that the accused had just committed an offense. As admitted in
the testimony of PO1 Azardon, the tip originated from a concerned citizen
who himself had no personal knowledge of the information that was
reported to the police:
Q: Mr. Witness, you claimed that the reason for apprehending
all the accused was based on a tip-off by an informant?
A: Yes, sir.
Q: What exactly [did] that informant tell you?
A: He told us that somebody told him that there was an ongoing
pot session in the house of one of the accused Rafael Gonzales,
sir.
Q: You mean to say that it was not the informant himself to
269
whom the information originated but from somebody else?
A: That was what he told me, sir.
Page
 Q: Because of that you proceeded to where the alleged pot
session was going on? [No Answer]
Q: Did you[r] informant particularly pinpointed [sic] to where
the alleged pot session was going on?
A: No more because he did not go with us, sir.
Q: So you merely relied on what he said that something or a pot
session was going on somewhere in Arellano but you don’t
know the exact place where the pot session was going on?
A: Yes, sir.
Q: And your informant has no personal knowledge as to the
veracity of the alleged pot session because he claimed that he
derived that information from somebody else?
A: This is what he told us that somebody told him that there
was an ongoing pot session, sir.
Q: Despite of [sic] that information you proceeded to where?
A: Trinidad Subdivision, sir.
xxx
Q: Mr. Witness, did your informant named [sic] those included
in the alleged pot session?
A: No, sir.
Q: That was, because your informant don’t [sic] know physically
what was really happening there?
A: He was told by another person that there was an ongoing
pot session there, sir.21 [Emphasis supplied]
Neither can it be said that the subject items were seized in plain view.
The elements of plainview are: (a) a prior valid intrusion based on the
valid warrantless arrest in which the police are legally present in the
pursuit of their official duties; (b) the evidence was inadvertently
discovered by the police who have the right to be where they are; (c) the
evidence must be immediately apparent; and, (d) "plain view" justified
mere seizure of evidence without further search.22
The evidence was not inadvertently discovered as the police officers
intentionally entered the house with no prior surveillance or investigation
before they discovered the accused with the subject items. If the prior
peeking of the police officers in Bolasa was held to be insufficient to
constitute plain view, then more so should the warrantless search in this
case be struck down. Neither can the search be considered as a search of
a moving vehicle, a consented warrantless search, a customs search, a
stop and frisk, or one under exigent and emergency circumstances.
The apprehending officers should have first conducted a surveillance
considering that the identity and address of one of the accused were
already ascertained. After conducting the surveillance and determining
the existence of probable cause, then a search warrant should have been
secured prior to effecting arrest and seizure. The arrest being illegal, the
ensuing search as a result thereof is likewise illegal. Evidence procured
on the occasion of an unreasonable search and seizure is deemed tainted
for being the proverbial fruit of a poisonous tree and should be
excluded.23 The subject items seized during the illegal arrest are thus
inadmissible. The drug, being the very corpus delicti of the crime of illegal
possession of dangerous drugs, its inadmissibility thus precludes
conviction, and calls for the acquittal of the accused.
As has been noted previously by this Court, some lawmen, prosecutors
and judges have glossed over illegal searches and seizures in cases where
law enforcers are able to present the alleged evidence of the crime,
regardless of the methods by which they were obtained. This attitude
tramples on constitutionally-guaranteed rights in the name of law
enforcement. It is ironic that such enforcement of the law fosters the
breakdown of our system of justice and the eventual denigration of
society. While this Court appreciates and encourages the efforts of law
enforcers to uphold the law and to preserve the peace and security of
society, we nevertheless admonish them to act with deliberate care and
within the parameters set by the Constitution and the law.24
Chain of Custody
Even granting that the seized items are admissible as evidence, the
acquittal of the accused would still be in order for failure of the
apprehending officers to comply with the chain of custody requirement
in dangerous drugs cases.
The accused contend that the identity of the seized drug was not
established with moral certainty as the chain of custody appears to be
questionable, the authorities having failed to comply with Sections 21
and 86 of R.A. No. 9165, and Dangerous Drug Board (DDB) Resolution No.
03, Series of 1979, as amended by Board Regulation No. 2, Series of 1990.
They argue that there was no prior coordination with the Philippine Drug
Enforcement Agency (PDEA), no inventory of the confiscated items
conducted at the crime scene, no photograph of the items taken, no
compliance with the rule requiring the accused to sign the inventory and
to give them copies thereof, and no showing of how the items were
handled from the time of confiscation up to the time of submission to the
crime laboratory for testing. Therefore, the corpus delicti was not proven,
thereby producing reasonable doubt as to their guilt. Thus, they assert
that the presumption of innocence in their favor was not overcome by
the presumption of regularity in the performance of official duty.
The essential requisites to establish illegal possession of dangerous drugs
are: (i) the accused was in possession of the dangerous drug, (ii) such
possession is not authorized by law, and (iii) the accused freely and
consciously possessed the dangerous drug.25 Additionally, this being a
case for violation of Section 13 of R.A. No. 9165, an additional element of
the crime is (iv) the possession of the dangerous drug must have occurred
during a party, or at a social gathering or meeting, or in the proximate
company of at least two (2) persons.
The existence of the drug is the very corpus delicti of the crime of illegal
possession of dangerous drugs and, thus, a condition sine qua non for
conviction. In order to establish the existence of the drug, its chain of
custody must be sufficiently established. The chain of custody
requirement is essential to ensure that doubts regarding the identity of
the evidence are removed through the monitoring and tracking of the
movements of the seized drugs from the accused, to the police, to the
forensic chemist, and finally to the court.26 Malillin v. People was the first
in a growing number of cases to explain the importance of chain of
custody in dangerous drugs cases, to wit:
As a method of authenticating evidence, the chain of custody rule
requires that the admission of an exhibit be preceded by evidence
sufficient to support a finding that the matter in question is what the
proponent claims it to be. It would include testimony about every link in
the chain, from the moment the item was picked up to the time it is
offered into evidence, in such a way that every person who touched the
exhibit would describe how and from whom it was received, where it was
and what happened to it while in the witness' possession, the condition
in which it was received and the condition in which it was delivered to
the next link in the chain. These witnesses would then describe the
precautions taken to ensure that there had been no change in the
condition of the item and no opportunity for someone not in the chain to
have possession of the same.27
270
Section 1(b) of DDB Regulation No. 1, Series of 2002,28 defines chain of
custody as follows:
Page
b. "Chain of Custody" means the duly recorded authorized movements
and custody of seized drugs or controlled chemicals or plant sources of
dangerous drugs or laboratory equipment of each stage, from the time of
seizure/confiscation to receipt in the forensic laboratory to safekeeping
to presentation in court for destruction. Such record of movements and
custody of seized item shall include the identity and signature of the
person who held temporary custody of the seized item, the date and time
when such transfer of custody were made in the course of safekeeping
and used in court as evidence, and the final disposition;
If the substance is not in a plastic container, the officer should put it in prosecution witnesses and the documentary records of the case reveals
one and seal the same. In this way the substance would assuredly reach irreparably broken links in the chain of custody.
the laboratory in the same condition it was seized from the accused.
Further, after the laboratory technician tests and verifies the nature of According to the apprehending police officers in their Joint Affidavit, the
the substance in the container, he should put his own mark on the plastic following were confiscated from the accused, to wit:
container and seal it again with a new seal since the police officer’s seal
has been broken. At the trial, the technician can then describe the sealed
a) Several pcs of used empty plastic sachets containing
condition of the plastic container when it was handed to him and testify
suspected shabu residues.
on the procedure he took afterwards to preserve its integrity.

b) Eight used (8) disposable lighters ( two (2) pcs colored

Paragraph 1, Section 21, Article II of R.A. No. 9165, provides for
safeguards for the protection of the identity and integrity of dangerous
drugs seized, to wit:
SEC. 21. Custody and Disposition of Confiscated, Seized, and/or
Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA
shall take charge and have custody of all dangerous drugs, plant sources
of dangerous drugs controlled precursors and essential chemicals, as well
as instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition in the
following manner:
(1) The apprehending team having initial custody and control of the drugs
shall, immediately after seizure and confiscation, physically inventory and
photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public official who shall be
required to sign the copies of the inventory and be given a copy thereof.
People v. Habana thoroughly discusses the proper procedure for the
custody of seized or confiscated items in dangerous drugs cases in order
to ensure their identity and integrity, as follows:
Usually, the police officer who seizes the suspected substance turns it
over to a supervising officer, who would then send it by courier to the
police crime laboratory for testing. Since it is unavoidable that possession
of the substance changes hand a number of times, it is imperative for the
officer who seized the substance from the suspect to place his marking
on its plastic container and seal the same, preferably with adhesive tape
that cannot be removed without leaving a tear on the plastic container.
If the sealing of the seized substance has not been made, the prosecution
would have to present every police officer, messenger, laboratory
technician, and storage personnel, the entire chain of custody, no matter
how briefly one’s possession has been. Each of them has to testify that
the substance, although unsealed, has not been tampered with or
substituted while in his care.29
Section 21(a) of the Implementing Rules and Regulations (IRR) of R.A. No.
9165 further elaborates, and provides for, the possibility of non-
compliance with the prescribed procedure:
(a) The apprehending officer/team having initial custody and control of
the drugs shall, immediately after seizure and confiscation, physically
inventory and photograph the same in the presence of the accused or the
person/s from whom such items were confiscated and/or seized, or
his/her representative or counsel, a representative from the media and
the Department of Justice (DOJ), and any elected public official who shall
be required to sign the copies of the inventory and be given a copy
thereof: Provided, that the physical inventory and photograph shall be
conducted at the place where the search warrant is served; or at the
nearest police station or at the nearest office of the apprehending
officer/team, whichever is practicable, in case of warrantless seizures;
Provided, further that non-compliance with these requirements under
justifiable grounds, as long as the integrity and the evidentiary value of
the seized items are properly preserved by the apprehending
officer/team, shall not render void and invalid such seizures of and
custody over said items. [Emphasis supplied]
Accordingly, non-compliance with the prescribed procedural
requirements will not necessarily render the seizure and custody of the
items void and invalid, provided that (i) there is a justifiable ground for
such non-compliance, and (ii) the integrity and evidentiary value of the
seized items are properly preserved. In this case, however, no justifiable
orange, two (2) pcs colored yellow, one (1) pc colored green &
one (1) pc colored white ).
c) Several pcs of used rolled aluminum foil containing
suspected shabu residues.
d) Several pcs of used cut aluminum foil containing suspected
shabu residues.
e) One (1) pc glass tube containing suspected shabu residues.30
[Emphases supplied]
At the police station, the case, the accused, and the above-mentioned
items were indorsed to Duty Investigator Senior Police Officer 1 Pedro
Urbano, Jr. (SPO1 Urbano) for proper disposition.31 A letter-request for
laboratory examination was prepared by Police Superintendent Edgar
Orduna Basbag for the following items:
a) Pieces of used empty small plastic sachets with suspected
shabu residues marked "DC&A-1."
b) Pieces of used rolled and cut aluminum foil with suspected
shabu residues marked "DC&A-2."
c) Pieces of used cut aluminum foil with suspected shabu
residues marked "DC&A-3."32
[Emphases supplied]
The letter-request and above-mentioned items were submitted to

At the trial, the officer can then identify the seized substance and the
procedure he observed to preserve its integrity until it reaches the crime
laboratory.
271
ground is found availing, and it is apparent that there was a failure to
P/Insp. Maranion by SPO3 Froilan Esteban (SPO3 Esteban). Final
properly preserve the integrity and evidentiary value of the seized items
Chemistry Report No. D-042-06L listed the specimens which were
to ensure the identity of the corpus delicti from the time of seizure to the
submitted for testing, to wit:

Page
time of presentation in court. A review of the testimonies of the
SPECIMENS SUBMITTED:
A – A1 to A115 – One Hundred fifteen (115) open transparent
plastic sachet with tag each containing suspected shabu
residue without markings.
B – B1 to B11 – Eleven (11) rolled used aluminum foil with tag
each containing suspected shabu residue without markings.
C – C1 to C49 – Forty-nine (49) used aluminum foil with tag
each containing suspected shabu residue without markings.33
[Emphases supplied]
Three days after the subject items were seized, or on September 5, 2006,
a Confiscation Receipt was issued by PO1 Azardon and PO1 Dela Cruz,
which reads:
DCPS AID SOTG 05 September 2006
CONFISCATION RECEIPT
TO WHOM IT MAY CONCERN:
THIS IS TO CERTIFY that on or about 12:45 noon of September 4, 2006,
we together with our precinct supervisor, SPO4 Pedro Belen Jr., and
SWAT members composed of SPO1 Marlon Decano, PO3 Manuel Garcia,
PO2 Adriano Cepiroto and PO1 Aldrin Guarin apprehended the following
names of persons of ARNOLD MARTINEZ Y ANGELES, 37 yrs old, married,
jobless, a resident of Lucao Dist., this city; EDGAR DIZON Y FERRER, 36 yrs
old, single, tricycle driver, a resident of 471 Lucao Dist., this city. REZIN
MARTINEZ Y CAROLINO, 44 yrs old, married, jitney driver, a resident of
Lucao Disttrict this city; ROLAND DORIA Y DIAZ, 39 yrs old, married,
businessman, resident of Cabeldatan, Malasiqui, Pangasinan and RAFAEL
GONZALES Y CUNANAN, 49 yrs old, separated, jobless and a resident of
Trinidad Subd., Arellano-Bani this city.
Suspects were duly informed of their constitutional rights and were
brought to Dagupan City Police Station, Perez Market Site Dagupan City
and indorsed to Duty Desk Officer to record the incident and the sachet
of suspected Shabu Paraphernalias were brought to PNP Crime
Laboratory, Lingayen, Pangasinan for Laboratory Examination.
Seizing Officer:
(sgd.) (sgd.)
PO1 Bernard B Azardon PO1 Alejandro Dela Cruz
Affiant Affiant
Remarks:
Refused to Signed
Refused to Signed
Refused to Signed
Refused to Signed
Refused to Signed34
[Emphases supplied]
The 115 open transparent plastic sachets, 11 pieces of rolled used
aluminum foil, and 27 (of the 49) pieces of used aluminum foil, all
containing shabu residue, as identified in the Final Chemistry Report,
were presented in court and marked as Exhibits "H" and series, "I" and
series, and "J" and series, respectively. Said items were identified by PO1
Azardon and P/Insp. Maranion at the witness stand.35
The CA ruled that the integrity and evidentiary value of the subject items
were properly preserved as there was sufficient evidence to prove that
the items seized from the accused were the same ones forwarded to the
crime laboratory for examination, as shown in the Confiscation Receipt
and the letter-request for laboratory examination.
A review of the chain of custody indicates, however, that the CA is
mistaken.
First, the apprehending team failed to comply with Section 21 of R.A. No.
9165. After seizure and confiscation of the subject items, no physical
inventory was conducted in the presence of the accused, or their
representative or counsel, a representative from the media and the DOJ,
and any elected public official. Thus, no inventory was prepared, signed,
and provided to the accused in the manner required by law. PO1 Azardon,
in his testimony,36admitted that no photographs were taken. The only
discernable reason proffered by him for the failure to comply with the
prescribed procedure was that the situation happened so suddenly. Thus:
Q: But upon receiving such report from that jeepney driver you
immediately formed a group and went to the place of Rafael
Gonzales?
A: Yes, sir.
Q: Such that you did not even inform the PDEA before you
barged in that place of Rafael Gonzales?
A: It was so suddenly, [sic] sir.
Q: And that explains the reason why you were not able to have
pictures taken, is that correct?
A: Yes, sir.37
[Emphasis supplied]
The Court does not find such to be a justifiable ground to excuse non-
compliance. The suddenness of the situation cannot justify non-
compliance with the requirements. The police officers were not
prevented from preparing an inventory and taking photographs. In fact,
Section 21(a) of the IRR of R.A. No. 9165 provides specifically that in case
of warrantless seizures, the inventory and photographs shall be done at
the nearest police station or at the nearest office of the apprehending
officer/team. Whatever effect the suddenness of the situation may have
had should have dissipated by the time they reached the police station,
as the suspects had already been arrested and the items seized.
Moreover, it has been held that in case of warrantless seizures nothing
prevents the apprehending officer from immediately conducting the
physical inventory and photography of the items at their place of seizure,
as it is more in keeping with the law’s intent to preserve their integrity
and evidentiary value.38
This Court has repeatedly reversed conviction in drug cases for failure to
comply with Section 21 of R.A. No. 9165, resulting in the failure to
properly preserve the integrity and evidentiary value of the seized items.
Some cases are People v. Garcia,39 People v. Dela Cruz,40 People v. Dela
Cruz,41 People v. Santos, Jr.,42 People v. Nazareno,43People v.
Orteza,44 Zarraga v. People,45 and People v. Kimura.46
Second, the subject items were not properly marked. The case of People
272
v. Sanchez is instructive on the requirement of marking, to wit:
Page
What Section 21 of R.A. No. 9165 and its implementing rule do not
expressly specify is the matter of "marking" of the seized items in
warrantless seizures to ensure that the evidence seized upon
apprehension is the same evidence subjected to inventory and
photography when these activities are undertaken at the police station
rather than at the place of arrest. Consistency with the "chain of custody"
rule requires that the "marking" of the seized items - to truly ensure that
they are the same items that enter the chain and are eventually the ones
offered in evidence - should be done (1) in the presence of the
apprehended violator (2) immediately upon confiscation.This step
initiates the process of protecting innocent persons from dubious and
concocted searches, and of protecting as well the apprehending officers
from harassment suits based on planting of evidence under Section 29
and on allegations of robbery or theft.
For greater specificity, "marking" means the placing by the apprehending
officer or the poseur-buyer of his/her initials and signature on the item/s
seized. x x x Thereafter, the seized items shall be placed in an envelope
or an evidence bag unless the type and quantity of the seized items
require a different type of handling and/or container. The evidence bag
or container shall accordingly be signed by the handling officer and
turned over to the next officer in the chain of custody.47 [Emphasis in the
original]
Nowhere in the testimony of PO1 Azardon or in his Joint Affidavit with
PO1 Dela Cruz does it appear that the subject items were at all marked.
It was only in the letter-request for laboratory examination that the
subject items were indicated to have been marked with "DC&A-1,"
"DC&A-2" and "DC&A-3." There is no showing, however, as to who made
those markings and when they were made. Moreover, those purported
markings were never mentioned when the subject items were identified
by the prosecution witnesses when they took the stand.
The markings appear to pertain to a group of items, that is, empty plastic
sachets, rolled and cut aluminium foil, and cut aluminium foil, but do not
specifically pertain to any individual item in each group. Furthermore, it
was only in the Chemistry Report48 that the precise number of each type
of item was indicated and enumerated. The Court notes that in all
documents prior to said report, the subject items were never accurately
quantified but only described as "pieces,"49 "several pcs,"50 and "shabu
paraphernallas."51 Strangely, the Chemistry Report indicates that all the
subject items had "no markings," although each item was reported to
have been marked by P/Insp. Maranion in the course of processing the
subject items during laboratory examination and testing.52 Doubt,
therefore, arises as to the identity of the subject items. It cannot be
determined with moral certainty that the subject items seized from the
accused were the same ones subjected to the laboratory examination
and presented in court.
This Court has acquitted the accused for the failure and irregularity in the
marking of seized items in dangerous drugs cases, such as Zarraga v.
People,53 People v. Kimura,54 and People v. Laxa.55
Third, the Confiscation Receipt relied upon by the prosecution and the
courts below gives rise to more uncertainty. Instead of being prepared on
the day of the seizure of the items, it was prepared only three days after.
More important, the receipt did not even indicate exactly what items
were confiscated and their quantity. These are basic information that a
confiscation receipt should provide. The only information contained in
the Confiscation Receipt was the fact of arrest of the accused and the
general description of the subject items as "the sachet of suspected
Shabu paraphernallas were brought to the PNP Crime Laboratory." The
receipt is made even more dubious by PO1 Azardon’s admission in his
testimony56 that he did not personally prepare the Confiscation Receipt
and he did not know exactly who did so.
Fourth, according to the Certification57 issued by the Dagupan Police
Station, the subject items were indorsed by PO1 Dela Cruz to Duty
Investigator SPO1 Urbano for proper disposition. These were later turned
over by SPO3 Esteban to P/Insp. Maranion. There is, however, no showing
of how and when the subject items were transferred from SPO1 Urbano
to SPO3 Esteban.
Fifth, P/Insp. Maranion appears to be the last person in the chain of
custody. No witness testified on how the subject items were kept after
they were tested prior to their presentation in court. This Court has
highlighted similar shortcomings in People v. Cervantes,58 People v.
Garcia,59 People v. Sanchez,60 and Malillin v. People.61
More irregularities further darken the cloud as to the guilt of the accused.
Contrary to PO1 Azardon’s testimony62that they were tipped off by a
concerned citizen while at the police station, the Letter63 to the Executive
Director of the DDB states that the apprehending officers were tipped off
"while conducting monitoring/surveillance." Said letter also indicates, as
does the Confiscation Receipt, that the arrest and seizure occurred on
September 4, 2006, and not September 2, 2006, as alleged in the
Information. It was also mentioned in the aforementioned Certification
of the Dagupan Police and Joint Affidavit of the police officers that a glass
tube suspected to contain shabu residue was also confiscated from the
accused. Interestingly, no glass tube was submitted for laboratory
examination.
In sum, numerous lapses and irregularities in the chain of custody belie
the prosecution’s position that the integrity and evidentiary value of the
subject items were properly preserved. The two documents specifically
relied on by the CA, the Confiscation Receipt and the letter-request for
laboratory examination, have been shown to be grossly insufficient in
proving the identity of the corpus delicti. The corpus delicti in dangerous
drugs cases constitutes the drug itself. This means that proof beyond
reasonable doubt of the identity of the prohibited drug is essential before
the accused can be found guilty.64
Regarding the lack of prior coordination with the PDEA provided in
Section 86 of R.A. No. 9165, in People v. Sta. Maria,65 this Court held that
said section was silent as to the consequences of such failure, and said
silence could not be interpreted as a legislative intent to make an arrest
without the participation of PDEA illegal, nor evidence obtained pursuant
to such an arrest inadmissible. Section 86 is explicit only in saying that the
PDEA shall be the "lead agency" in the investigation and prosecution of
drug-related cases. Therefore, other law enforcement bodies still possess
authority to perform similar functions as the PDEA as long as illegal drugs
cases will eventually be transferred to the latter.
Let it be stressed that non-compliance with Section 21 of R.A. No. 9165
does not affect the admissibility of the evidence but only its
weight.66 Thus, had the subject items in this case been admissible, their
evidentiary merit and probative value would be insufficient to warrant
conviction.
It may be true that where no ill motive can be attributed to the police
officers, the presumption of regularity in the performance of official duty
should prevail. However, such presumption obtains only when there is no
deviation from the regular performance of duty.67 Where the official act
in question is irregular on its face, the presumption of regularity cannot
stand.
In this case, the official acts of the law enforcers were clearly shown and
proven to be irregular. When challenged by the evidence of a flawed
chain of custody, the presumption of regularity cannot prevail over the
presumption of innocence of the accused.68
This Court once again takes note of the growing number of acquittals for
dangerous drugs cases due to the failure of law enforcers to observe the
proper arrest, search and seizure procedure under the law.69 Some bona
fidearrests and seizures in dangerous drugs cases result in the acquittal
of the accused because drug enforcement operatives compromise the
integrity and evidentiary worth of the seized items. It behooves this Court
to remind law enforcement agencies to exert greater effort to apply the
rules and procedures governing the custody, control, and handling of
273
seized drugs.
It is recognized that strict compliance with the legal prescriptions of R.A.
Page
No. 9165 may not always be possible. Thus, as earlier stated, non-
compliance therewith is not necessarily fatal. However, the lapses in
procedure must be recognized, addressed and explained in terms of their
justifiable grounds, and the integrity and evidentiary value of the
evidence seized must be shown to have been preserved.70
On a final note, this Court takes the opportunity to be instructive on Sec.
1171 (Possession of Dangerous Drugs) and Sec. 1572 (Use of Dangerous
Drugs) of R.A. No. 9165, with regard to the charges that are filed by law
enforcers. This Court notes the practice of law enforcers of filing charges
under Sec. 11 in cases where the presence of dangerous drugs as basis
for possession is only and solely in the form of residue, being subsumed
under the last paragraph of Sec. 11. Although not incorrect, it would be
more in keeping with the intent of the law to file charges under Sec. 15
instead in order to rehabilitate first time offenders of drug use, provided
that there is a positive confirmatory test result as required under Sec. 15.
The minimum penalty under the last paragraph of Sec. 11 for the
possession of residue is imprisonment of twelve years and one day, while
the penalty under Sec. 15 for first time offenders of drug use is a
minimum of six months rehabilitation in a government center. To file
charges under Sec. 11 on the basis of residue alone would frustrate the
objective of the law to rehabilitate drug users and provide them with an
opportunity to recover for a second chance at life.
In the case at bench, the presence of dangerous drugs was only in the
form of residue on the drug paraphernalia, and the accused were found
positive for use of dangerous drugs. Granting that the arrest was legal,
the evidence obtained admissible, and the chain of custody intact, the
law enforcers should have filed charges under Sec. 15, R.A. No. 9165 or
for use of dangerous drugs and, if there was no residue at all, they should
have been charged under Sec. 1473 (Possession of Equipment,
Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs
During Parties, Social Gatherings or Meetings). Sec. 14 provides that the
maximum penalty under Sec. 1274(Possession of Possession of
Equipment, Instrument, Apparatus and Other Paraphernalia for
Dangerous Drugs) shall be imposed on any person who shall possess any
equipment, instrument, apparatus and other paraphernalia for
dangerous drugs. Under Sec. 12, the maximum penalty is imprisonment
of four years and a fine of ₱50,000.00. In fact, under the same section,
the possession of such equipment, apparatus or other paraphernalia is
prima facie evidence that the possessor has used a dangerous drug and
shall be presumed to have violated Sec. 15.1avvphi1
In order to effectively fulfill the intent of the law to rehabilitate drug
users, this Court thus calls on law enforcers and prosecutors in dangerous
drugs cases to exercise proper discretion in filing charges when the
presence of dangerous drugs is only and solely in the form of residue and
the confirmatory test required under Sec. 15 is positive for use of
dangerous drugs. In such cases, to afford the accused a chance to be
rehabilitated, the filing of charges for or involving possession of
dangerous drugs should only be done when another separate quantity of
dangerous drugs, other than mere residue, is found in the possession of
the accused as provided for in Sec. 15.
WHEREFORE, the August 7, 2009 Decision of the Court of Appeals in CA-
G.R. HC-NO. 03269 is REVERSED and SET ASIDE and another judgment
entered ACQUITTING the accused and ordering their immediate release
from detention, unless they are confined for any other lawful cause.
Let a copy of this decision be furnished the Director of the Bureau of
Corrections, Muntinlupa City, for immediate implementation. The
Director of the Bureau of Corrections is directed to report to this Court
within five days from receipt of this decision the action he has taken.
Copies shall also be furnished the Director-General, Philippine National
Police, and the Director-General, Philippine Drugs Enforcement Agency,
for their information and guidance.
The Regional Trial Court, Branch 41, Dagupan City, is directed to turn over
the seized items to the Dangerous Drugs Board for destruction in
accordance with law.
SO ORDERED.
JOSE CATRAL MENDOZA
Associate Justice
WE CONCUR
Footnotes
71 Section 11. Possession of Dangerous Drugs. - The penalty of
life imprisonment to death and a fine ranging from Five
hundred thousand pesos (₱500,000.00) to Ten million pesos
(₱10,000,000.00) shall be imposed upon any person, who,
unless authorized by law, shall possess any dangerous drug in
the following quantities, regardless of the degree of purity
thereof:
(1) 10 grams or more of opium;
(2) 10 grams or more of morphine;
(3) 10 grams or more of heroin;
(4) 10 grams or more of cocaine or cocaine
hydrochloride;
(5) 50 grams or more of methamphetamine
hydrochloride or "shabu";
(6) 10 grams or more of marijuana resin or marijuana
resin oil;
(7) 500 grams or more of marijuana; and
(8) 10 grams or more of other dangerous drugs such
as, but not limited to,
methylenedioxymethamphetamine (MDA) or
"ecstasy", paramethoxyamphetamine (PMA),
trimethoxyamphetamine (TMA), lysergic acid
diethylamine (LSD), gamma hydroxyamphetamine
(GHB), and those similarly designed or newly
introduced drugs and their derivatives, without
having any therapeutic value or if the quantity
possessed is far beyond therapeutic requirements, as
determined and promulgated by the Board in
accordance to Section 93, Article XI of this Act.
Otherwise, if the quantity involved is less
than the foregoing quantities, the penalties
shall be graduated as follows:
(1) Life imprisonment and a fine ranging from Four
hundred thousand pesos (₱400,000.00) to Five
hundred thousand pesos (₱500,000.00), if the
quantity of methamphetamine hydrochloride or
"shabu" is ten (10) grams or more but less than fifty
(50) grams;
(2) Imprisonment of twenty (20) years and one (1)
day to life imprisonment and a fine ranging from Four
hundred thousand pesos (₱400,000.00) to Five
hundred thousand pesos (₱500,000.00), if the
quantities of dangerous drugs are five (5) grams or
more but less than ten (10) grams of opium,
morphine, heroin, cocaine or cocaine hydrochloride,
274
marijuana resin or marijuana resin oil,
methamphetamine hydrochloride or "shabu", or
other dangerous drugs such as, but not limited to,
Page
MDMA or "ecstasy", PMA, TMA, LSD, GHB, and those
similarly designed or newly introduced drugs and
 their derivatives, without having any therapeutic
value or if the quantity possessed is far beyond
therapeutic requirements; or three hundred (300)
grams or more but less than five hundred (500) grams
of marijuana; and
(3) Imprisonment of twelve (12) years and one (1) day
to twenty (20) years and a fine ranging from Three
hundred thousand pesos (₱300,000.00) to Four
hundred thousand pesos (₱400,000.00), if the
quantities of dangerous drugs are less than five (5)
grams of opium, morphine, heroin, cocaine or
cocaine hydrochloride, marijuana resin or marijuana
resin oil, methamphetamine hydrochloride or
"shabu", or other dangerous drugs such as, but not
limited to, MDMA or "ecstasy", PMA, TMA, LSD, GHB,
and those similarly designed or newly introduced
drugs and their derivatives, without having any
therapeutic value or if the quantity possessed is far
beyond therapeutic requirements; or less than three
hundred (300) grams of marijuana.
72Section 15. Use of Dangerous Drugs. – A person
apprehended or arrested, who is found to be positive for use of
any dangerous drug, after a confirmatory test, shall be imposed
a penalty of a minimum of six (6) months rehabilitation in a
government center for the first offense, subject to the
provisions of Article VIII of this Act. If apprehended using any
dangerous drug for the second time, he/she shall suffer the
penalty of imprisonment ranging from six (6) years and one (1)
day to twelve (12) years and a fine ranging from Fifty thousand
pesos (₱50,000.00) to Two hundred thousand pesos
(₱200,000.00): Provided, That this Section shall not be
applicable where the person tested is also found to have in
his/her possession such quantity of any dangerous drug
provided for under Section 11 of this Act, in which case the
provisions stated therein shall apply.
74Section 12. Possession of Equipment, Instrument, Apparatus
and Other Paraphernalia for Dangerous Drugs. - The penalty of
imprisonment ranging from six (6) months and one (1) day to
four (4) years and a fine ranging from Ten thousand pesos
(₱10,000.00) to Fifty thousand pesos (₱50,000.00) shall be
imposed upon any person, who, unless authorized by law, shall
possess or have under his/her control any equipment,
instrument, apparatus and other paraphernalia fit or intended
for smoking, consuming, administering, injecting, ingesting, or
introducing any dangerous drug into the body: Provided, That
in the case of medical practitioners and various professionals
who are required to carry such equipment, instrument,
apparatus and other paraphernalia in the practice of their
profession, the Board shall prescribe the necessary
implementing guidelines thereof.
The possession of such equipment, instrument,
apparatus and other paraphernalia fit or intended for
any of the purposes enumerated in the preceding
paragraph shall be prima facie evidence that the
possessor has smoked, consumed, administered to
himself/herself, injected, ingested or used a
dangerous drug and shall be presumed to have
violated Section 15 of this Act.

73Section 14. Possession of Equipment, Instrument, Apparatus

and Other Paraphernalia for Dangerous Drugs During Parties,
Social Gatherings or Meetings. - The maximum penalty
provided for in Section 12 of this Act shall be imposed upon any
person, who shall possess or have under his/her control any

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equipment, instrument, apparatus and other paraphernalia fit
or intended for smoking, consuming, administering, injecting,
ingesting, or introducing any dangerous drug into the body,

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during parties, social gatherings or meetings, or in the
proximate company of at least two (2) persons.